An Introduction to
Labor and Employment Law
Michael Evan Gold
2018

Cornell University

DEDICATION

I dedicate this work to Sarah Dogbe Gold,

who truly values the opportunity for education.

MEG
Ithaca, New York
November, 2018

Labor and Employment Law by Michael Evan Gold is released under a Creative Commons Attribution-NonCommercial 4.0
International license.
Published by SUNY OER Services
Milne Library
State University of New York at Geneseo
Geneseo, NY 14454
Distributed by State University of New York Press
ISBN: 978-1-64176-050-8

Table of Contents
CHAPTER 1: LABOR LAW BEFORE THE LABOR ACT
The Colonial Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
THE BACKGROUND OF THE EARLY AMERICAN LABOR CASES . . . . . . . . . . 1
The Strike as a Criminal Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Early Nineteenth Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
The Philadelphia Cordwainers Case . . . . . . . . . . . . . . . . . . . . . . 28
Mid-Nineteenth Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Commonwealth v. Hunt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
The Picket Line as the Tort of Damage to Business . . . . . . . . . . . . . . . . . . . . . . . 69
Vegelahn v. Guntner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Strikes and Boycotts as Violations of Anti-trust Law. . . . . . . . . . . . . . . . . . . . . . 91
The Sherman Act of 1890 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
The Danbury Hatters Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
The Clayton Act of 1914. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Duplex Printing Co. v. Deering . . . . . . . . . . . . . . . . . . . . . . . . . 105
The Unconstitutionality of Government Protection of Labor
Constitutionality of Federal Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Adair v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Constitutionality of State Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Coppage v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Government by Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
In re. Debs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Organizing as Inducement to Breach of Contract . . . . . . . . . . . . . . . . . . 187
Hitchman Coal & Coke Co. v. Mitchell . . . . . . . . . . . . . . . . . . . 195

CHAPTER 2: MODERN LABOR LAW
Introduction to the Norris-LaGuardia Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
The Constitutionality of the Labor Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
NLRB v. Jones & Laughlin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

Coverage of the Labor Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Supervisors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Packard Motor Co. v. NLRB. . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Independent Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
NLRB v. Hearst Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
The Duty of Fair Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Vaca v. Sipes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Concerted Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Jefferson Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
NLRB v. Local Union No. 1229, IBEW (Jefferson Standard). . . . . . . . . 334
Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Budd v. NLRB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
Replacement of Strikers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
The Policy
Report of the Report of the Committee on Education and Labor of
the House of Representatives on H.R. 5, the Cesar Chavez
Workplace Fairness Act (1993). . . . . . . . . . . . . . . . . . . . . . . . . 347
The Law
NLRB v. Mackay Radio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
Solicitation on Company Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
NLRB v. Babcock & Wilcox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
Plant Closings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
Textile Workers v. Darlington. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Promises and Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
NLRB v. Exchange Parts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
Authorization Cards and Bargaining Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
NLRB v. Gissel Packing Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
Successorship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431
NLRB v. Burns International Security . . . . . . . . . . . . . . . . . . . . . . . . . . 434
Remedies for Refusal to Bargain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
Ex-Cell-O . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454
Bargaining in Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
General Electric . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472

CHAPTER 3: EMPLOYMENT DISCRIMINATION LAW
SEX DISCRIMINATION IN COMPENSATION:
THE EQUAL PAY ACT OF 1963

Equal Pay, Equal Work, and "Any Other Factor Other Than Sex" . . . . . . . . . . 486
Hodgson v. Robert Hall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Equal Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
Brennan v. Prince William Hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506
Equal Work and Similar Working Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . 519
Usery v. Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
DISCRIMINATION BASED ON RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN:

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Disparate Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532
Slack v. Havens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 534
Sexual Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542
Rabidue v. Osceola . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544
Bona Fide Occupational Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 555
Dothard v. Rawlinson (bfoq) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557
Proof of Disparate Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568
Conventional Proof of Disparate Treatment . . . . . . . . . . . . . . . . . . . . . . 568
McDonnell Douglas v. Green . . . . . . . . . . . . . . . . . . . . . . . . . . . 569
Statistical Proof of Disparate Treatment. . . . . . . . . . . . . . . . . . . . . . . . . 575
Int'l B'hood of Teamsters v. U.S.. . . . . . . . . . . . . . . . . . . . . . . . . 578
Disparate Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591
Griggs v. Duke Power Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599
Business Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
Spurlock v. United Airlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
Proof of Disparate Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Dothard v. Rawlinson (disparate impact) . . . . . . . . . . . . . . . . . . . . . . . . 616
Green v. Missouri Pacific RR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624
Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640
Grutter v. Bollinger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644

Reasonable Accommodation to Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hardison v. Trans World Airlines (D.C. Mo.) . . . . . . . . . . . . . . . . . . . . . . .
Hardison v. Trans World Airlines (8th Cir.). . . . . . . . . . . . . . . . . . . . . . . . .
DISCRIMINATION BASED ON DISABILITY:
THE AMERICANS WITH DISABILITIES ACT

What is a Handicap or Disability?
School Board of Nassau County v. Arline . . . . . . . . . . . . . . . . . . . . . . . . . .
What is a Handicap or Disability (cont'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sutton v. United Airlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

APPENDIX
CONSTITUTION AND STATUTES

Constitution of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Antitrust Acts
Sherman Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Clayton Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Title VII Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Equal Pay Act of 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
National Labor Relations Act and Labor Management Relations Act . . . . . . . . . . .
Norris-LaGuardia Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

GLOSSARY

A Glossary of Legalisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Table of Cases and Materials
CHAPTER 1: LABOR LAW BEFORE THE LABOR ACT
CASES

Adair v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Hunt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Coppage v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Danbury Hatters Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Duplex v. Deering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hitchman Coal & Coke Co. v. Mitchell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In re. Debs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Philadelphia Cordwainers Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Vegelahn v. Guntner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
MATERIALS

Background of the Early American Labor Cases . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 2: MODERN LABOR LAW
CASES *

Babcock & Wilcox adv. NLRB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Budd v. NLRB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Burns Intl' Security adv. NLRB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textile Workers v. Darlington. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ex-Cell-O . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Parts adv. NLRB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General Electric . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gissel Packing Co. adv. NLRB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hearst Publications adv. NLRB
Jefferson Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Jefferson Standard) Local Union No. 1229, IBEW adv. NLRB . . . . . . . . . . . . . . .
Jones & Laughlin adv. NLRB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

* When the first party in the name of a case is the National Labor Relations Board, the case
is listed according to the adverse party. Thus, NLRB v. Jones & Laughlin is listed as "Jones
& Laughlin adv. NLRB."

Mackay Radio adv. NLRB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Packard Motor Co. v. NLRB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Vaca v. Sipes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
MATERIALS

Introduction to the Norris-LaGuardia Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Report of the Committee on Education and Labor of the House of
Representatives on H.R. 5, the Cesar Chavez Workplace Fairness
Act (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 3: EMPLOYMENT DISCRIMINATION LAW
CASES

Brennan v. Prince William . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dothard v. Rawlinson (bfoq) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dothard v. Rawlinson (disparate impact) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Green v. Missouri Pacific RR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Griggs v. Duke Power Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Grutter v. Bollinger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hardison v. Trans World Airlines (D.C.Mo.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hardison v. Trans World Airlines (8th Cir.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hodgson v. Robert Hall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Int'l B'hood of Teamsters v. U.S.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
McDonnell Douglas v. Green . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rabidue v. Osceola . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
School Board of Nassau County v. Arline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Slack v. Havens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Spurlock v. United Airlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sutton v. United Airlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Usery v. Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 1

LABOR LAW BEFORE THE LABOR ACT

Labor and Employment Law

1

The Colonial Period
The Background of the Early American Labor Cases
The system of laissez-faire capitalism that we take
for granted today was not the economic or political
system in Europe or America in the Seventeenth Century,
when the American Colonies were founded, or even in the
Eighteenth Century, when the Colonies rebelled. In those
days, both business and labor were accustomed to
government regulation. This was particularly true in the
early colonial days: economic activity was regulated in
the interest of a religious and political program. The
entrepreneur did not believe one was free to carry on
one's business any way one saw fit; the desire to make
money was often subordinated to other values.
Nor did
the worker believe one was free to withhold one's labor
and demand whatever wages and working conditions one
desired. The notion of a market for labor may explain a
great deal of the behavior of employers and workers
today, but it explains much less of the relationship
between masters and servants of two and three hundred
years ago.
(Those today who argue that the U.S.
Constitution should be interpreted strictly according to
the views of the Founders of the Republic might do well
to keep in mind the differences between the economies and
societies of the early Eighteenth Century and the early
Twenty-first Century.)
The colonial experience was rooted in English
mercantilism, which was the dominant theory of political
economy from the Sixteenth Century until it was replaced
by the laissez-faire economics of the Industrial
Revolution. The objective of mercantilism was to create
a secure, prosperous, and self-sufficient nation or
empire. Mercantilists believed that prosperity could be
attained and preserved by maintaining a strong national
defense, by accumulating a store of precious metals, by
subsidizing home industries and protecting them against
foreign competition, and by competing successfully in
foreign markets.
In order to compete overseas, the
mercantilists sought to assure that their industries had
the necessary raw materials and that the costs of
production were low. A supply of raw materials could be
obtained from colonies.
From the point of view of the
parent country, the main purpose of colonies was to send
raw materials home in exchange for finished products
manufactured in the parent country. The interests of the

Labor and Employment Law

ii

2

Background of the Early American Labor Cases

colonies were consistently subordinated to the interests
of the parent country. (This practice eventually became
a major cause of the American Revolution.) Production
costs could be kept down by guaranteeing the entrepreneur
an inexpensive, yet adequate supply of labor. Workers
should receive a subsistence wage))high enough to
guarantee the long-term supply of labor, but no higher.
Subsistence wages were thought to have other virtues as
well: they kept the laboring class in its place, and,
because a laborer with extra money in one's pocket was
prone to substitute leisure for work, subsistence wages
kept workers from falling into indolence and other vices.
English mercantile policy towards labor rested on
the Statute of Artificers, enacted in the Sixteenth
Century; this statute modified the Statute of Laborers,
enacted in the Fourteenth Century.
The Statute of
Laborers was enacted after the bubonic plagues had
drastically reduced the supply of labor; in some areas of
Europe, as many as two-thirds of the peasantry died.
When the supply of labor went down, the price went up.
The aristocracy did not like the idea and responded in
several ways in the Statute of Laborers. In general, the
statute assumed that the lord of the manor had
jurisdiction over the lives of one's workers and that the
workers were a sort of property possessed by the lord.
In particular, the statute prohibited workers from
refusing to work. The statute also prohibited workers
from combining with one another in pursuit of higher
wages. The statute prohibited a lord from enticing away
the servant of another lord. And the statute established
for the entire nation maximum wage scales for various
jobs. Wages were set by the day; hourly wages were not
introduced until the Industrial Revolution. After half
a century, this wage structure proved to be too rigid,
and it was replaced towards the end of the Fourteenth
Century by a decentralized structure in which justices of
the peace fixed wages according to the local price of
food. Being men of property, the justices were none too
generous in the level of wages they fixed.
Half a
century later, wages were once again set nationally.
The Statute of Artificers of 1563 returned wage
fixing to the local level. The length of the working day
was also fixed; it was, in essence, dawn to dusk. The
statute also required people of certain classes, such as
vagabonds, beggars, peddlers, and gypsies, to take jobs.
Young men of these classes who refused to serve as
apprentices could be impressed into the military.
Laborers who refused to work for the ordinary rate of pay

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iii

were guilty of a crime, the punishment for which included
a whipping and a term of labor in jail.
Women and
children were required to work as well.
Thus, in the
early Seventeenth Century, when a certain spinster
refused to enter into service, that is, become a servant
in someone else's household, the overseers of the town of
Turvile committed her to the workhouse because she set an
"ill example to lazy and thriftless people."
The American Colonies readily adopted a program of
compulsory labor. The Colonies went further than England
in the classes of people who were required to work.
Whereas England required only vagabonds, beggars, and
gypsies to work, the Colonies required labor of all ablebodied men and, occasionally, of women as well.
Sometimes, the requirement was a response to an
emergency.
For example, a Massachusetts act of 1646
required artificers and handicraftsmen "to work by the
day for their neighbours in mowing, reaping of corn, and
inning thereof"; the reason was that the harvests of hay,
corn, flax, and hemp fell so closely to one another that
the crops might otherwise have been lost.
During the
Pequot War of 1637 and King Philip's War of 1675,
civilians in Massachusetts were required to maintain the
farms of soldiers engaged in the hostilities; a similar
practice was observed in the southern Colonies.
More commonly, the requirement of work arose on a
regular basis. All males between ages sixteen and sixty
were required to serve in the militia. They were also
required to work on public projects, the foremost of
which was the construction and repair of roads; other
examples were forts, bridges, dams, dikes, ponds, meeting
houses, prisons, river channels — all the social capital
that we have inherited and take for granted.
In the
northern Colonies, the amount of work that a man owed was
often determined by the size of his land; this was, in
effect, a property tax.
In southern Colonies, a man
could discharge his duty to work by sending a servant or
slave. The requirement of work was gradually abandoned
after the Revolution, but in some places remained in
effect through the Nineteenth Century.
Colonists could also be required to work on private
projects. In order to attract an entrepreneur to engage
in an undertaking desired by the community, the
authorities in a colony sometimes promised a supply of
free labor. For example, in 1644 the governors of New
Haven agreed to require every man to give four days of
work to some entrepreneurs who were digging a channel,

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and in 1670 Newark induced entrepreneurs to set up a corn
mill by offering three days of work of every man and
woman in the town. (You might be surprised to hear that
we do the same thing today, indirectly, by offering tax
breaks. The new business pays lower taxes, and the rest
of us, therefore, pay more taxes; so that, instead of
working one hundred twenty days of the year to pay our
taxes, we work one hundred twenty-two days.)
The reader may be wondering what happened if someone
refused to work. Early statutes punished idleness by a
whipping or a fine.
For example, when Massachusetts
required craftsones to help bring in the harvest, the men
were paid for this work; but, if they failed to work,
they were fined double the usual daily wage. If a man
failed to appear for his share of public work, some towns
authorized the constable to impress another worker, and
fined the absent man the wages of that worker and of the
constable; other towns allowed a man to pay a fee in lieu
of working. Later statutes prescribed forced labor or
commitment to a workhouse.
We will consider below why the Colonies adopted a
system of compulsory labor.
However, having just
mentioned the workhouse, we may consider this institution
further.
The idea of workhouses came to the Colonies from
England. We have noted the English practice of punishing
some classes of people who refused to work. Punishing
them was sensible so long as mercantilists believed that
unemployment was the result of a defect of character. In
time, however, the English recognized that factors like
the enclosure of farm land, the rising cost of living,
and fluctuating business cycles meant that permanent
employment was not available to every willing worker. As
early as 1535, therefore, a statute adopted the principle
that work should be provided for the able-bodied.
Thereafter, workhouses began to emerge, and an act of
1575 made them part of the national program for relief of
the poor. English workhouses usually concentrated on the
manufacture
of
textiles;
sometimes
they
offered
instruction in trades. Living conditions in workhouses
were bad; contemporary reports describe them as dirty and
infested with vermin.
Workhouses were transplanted to the Colonies. In
1658 Plymouth passed an ordinance providing for a house
of correction where vagrants, idle residents, rebellious
children, and servants who refused to work would be

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v

employed. Later in the Seventeenth Century and in the
early Eighteenth Century, royal instructions required
colonial governors to set up workhouses, and by the
middle 1700s workhouses had been erected in Boston, New
York, and Philadelphia. On the eve of the Revolution,
when industry was taking root in America, private
businesses could draw workers from the workhouses.
Indeed, entrepreneurs sometimes built factories on the
understanding that they would be staffed with labor from
workhouses.
In Boston in 1768 a spinning mill was
established for the very purpose of employing the poor,
and funds were provided for setting up spinning schools
for children.
The undertakers of this enterprise
disclaimed any motive to profit from it; rather, they
said they hoped to reduce the number of poor in
almshouses (in which paupers were fed and sheltered) and
to "habituate the People to Industry, and preserve their
Morals, who, instead of their continuing a burden to
society, will become some of its most useful Members."
A similar project had been started in Philadelphia four
years earlier.
Colonial workhouses always had a moral quality to
them; vagrancy, idleness, and refusal to work were vices.
Vice is not far removed from crime, and the Colonists
quickly perceived that workhouses could serve a dual
function.
In 1735 a grand jury in Charleston, South
Carolina complained that, due to the absence of a
workhouse in which to punish the idle, the poor were
flocking to the town. Thus workhouses also became houses
of correction for miscreants, and minor offenses were
frequently punished with terms in the workhouse.
Now let us attempt to explain why the Colonies
adopted compulsory labor.
Three reasons may be
suggested.
One was simply that the Colonists brought
English law with them. The laws of England continued to
be influential in America through the Nineteenth Century.
A second reason for compulsory labor in the Colonies
was the Puritan ethic, which strongly condemned idleness.
Colonial almanacs were studded with aphorisms on the
sinfulness of being unemployed.
The Ameses reminded
their readers, "Toil and be strong," and Poor Richard
advised, "Leisure is the Time for doing something
useful." Colonial children wrote in their copybooks, "By
the sweat of thy brow, thou shalt eat thy bread." On the
eve of his execution, a burglar exhorted the good
citizens of Boston to

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"Shun vain and idle Company;
They'll lead you soon astray;
From ill-fam'd Houses ever flee,
And keep yourselves away.
With honest Labor earn your Bread,
While in your youthful Prime;
Nor come you near the Harlot's Bed,
Nor idly waste your Time.
The dreadful Deed for which I die
Arose from small Beginning;
My idleness brought poverty,
And so I took to Stealing."

The settlers of the middle and southern Colonies were not
Puritans, but they also discountenanced idleness. For
example, William Penn's Frame of Government provided that
"all children within this province of the age of twelve
years, shall be Taught some useful trade or skill, to the
end that none may be idle, but the poor may work to live,
and the rich, if they become poor, may not want."
Southern towns prohibited the sale of liquor to servants
or slaves lest they waste their time in drinking.
A third reason for compulsory labor was that the
Colonies were chronically short of labor. This shortage
was perhaps the salient fact of economic life in the
Colonies for many years, and it deserves careful
attention. Let us consider the reasons for the shortage
and then turn to some of its effects.
Why the Colonies were short of labor in the early
years of colonization is obvious: there were only so many
ships available to carry immigrants, and each ship could
transport only so many people. Whereas the reader was
born into a secure community with a fully developed
capital stock — productive farms and factories, sturdy
houses, paved roads, etc. — the Colonists arrived in a
completely undeveloped land that was peopled by not
always friendly natives. Everything had to be built from
scratch, and sometimes defended against attack. There
were never enough hands for the work that needed to be
done.
Why the Colonies continued to be short of labor for
a century and a half is not so obvious.
Indeed, the
shortage itself may be surprising.
Having studied
economics, the reader has probably been thinking that the
shortage of labor should have had two consequences:
first, the price of labor should have risen; second,

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workers should have flocked to the Colonies. The reader
is probably correct about the price of labor.
Many
scholars believe that wages in the Colonies were 30 to
100 percent higher than in Europe, and this situation
obtained through at least the Revolution. (By the way,
wages in the Colonies were often calculated by the
project.
For example, John Pynchon of Springfield,
Massachusetts recorded that he had "Agreed with Thomas
Barber [for Barber] to Build me a Barne over the great
River, [the barn to be] 50 foote long and 24 feete wide,
with a leantoe all along the back side," the project "to
be compleated [by] Harvest next," for which "I am to
allow him £21." Wages were also calculated by the day,
week, or month, but rarely by the hour.) The belief that
wages were higher in the Colonies than in Europe is based
on nominal wages, as measured in pounds and shillings;
these were indeed higher in the Colonies. But one must
note that this belief has been disputed in recent years.
Some scholars argue that real wages, as measured by
productivity and buying power, were no higher in the
Colonies than in Europe. We need not choose between the
competing bodies of scholarship, for the point is not
important for our purposes. The reason is that, because
people knew that nominal wages were higher in the
Colonies than in England, and because one may doubt that
workers in the Seventeenth and Eighteenth Centuries
appreciated the difference between nominal wages and real
wages, English and Continental workers must have believed
that they could earn more money in the Colonies. So why
didn't they jump on ships bound for America and glut the
labor market? The explanation lies in reasons internal
and external to the Colonies.
The internal reason was very powerful. It was the
ready availability of land.
To a European in the
Seventeenth Century, owning land was the crowning
achievement of life. It meant personal independence and
high social status. Ambitious immigrants who arrived in
the Colonies saved their wages, bought land as soon as
they could — and thereby took themselves out of the labor
market for a good deal of the year. If real wages in the
Colonies were in fact fifty or seventy-five percent
higher than in Europe, this process would have occurred
very quickly; but it would have occurred even if real
wages in Europe and in the Colonies were equal.
One reason external to the Colonies for the shortage
of labor was the unwillingness of people to leave home
for distant shores. To draw an equally distant analogy,
the median starting salary for students graduating

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college with a bachelor's degree last June was
approximately $40,000. How many of them would seriously
consider taking a job in the developing world, for
example, West Africa, for $60,000? Of those who would
consider it, how many would go if they might never return
home?
Another external reason for the shortage of labor in
the Colonies was the policy of the British government,
which, for a good part of the colonial period,
discouraged — and even forbade — emigration. Now, this
was not so in the beginning.
In the early years of
settlement, emigration to the Colonies was encouraged.
It was widely believed that England was overpopulated and
that shipping the poor and vagrant classes to America
(many haughty American families have humble European
origins) would yield a triple benefit: these undesirables
would no longer burden English society; they would behave
like good mercantilists by extracting raw materials and
sending them back to England for processing; and they
would become consumers of England's products. Skilled
workers, though in demand at home, were also permitted to
emigrate to America, perhaps based on the belief that a
modicum of skills was necessary to establish permanent
settlements; certainly farmers, called "husbandmen," were
essential. Thus, the passenger manifests of two ships
arriving in Virginia in 1623 listed twenty-five
tradesmen, four husbandmen, one student, one servant, and
only ten "gentlemen." (This low proportion of immigrants
from the upper classes of England lasted — perhaps to the
good fortune of the Colonies — throughout the colonial
period.)
A great majority of the passengers arriving
with John Winthrop in Massachusetts in 1630 belonged to
the families of artisans or farmers, and a list of the
Colonists in New England in 1634, though incomplete,
reveals a heavy majority of cloth workers and husbandmen.
As a result, even frontier communities were often served
by a variety of tradesones.
But policy changed when fledgling colonial industry
began to compete with English industry.
As early as
1666, King Charles II prohibited the transportation of
knitting frames to the Colonies.
At the start of the
next century, the English Board of Trade urged Parliament
to restrict workers engaged in the manufacture of woolen
goods from leaving the country. England actually began
restricting the emigration of skilled artisans in 1718.
Fearing the loss both of skilled workers and of the trade
secrets they would take with them, Parliament in 1765
forbade the emigration of all trained machine operators

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and made it a crime, punishable by fine and imprisonment,
to entice an operative to emigrate. Soon thereafter, it
became criminal to export textile machinery, plans, or
models. Criminals and vagabonds were shipped over until
the eve of the Revolution, but even they were restrained
by a prohibitive per capita tax in 1774. These measures
were the seventh of the twenty-seven specific grievances
set forth in the Declaration of Independence:
"He {namely, King George III} has endeavoured to
prevent the population of these States; for that
purpose obstructing the Laws of Naturalization of
Foreigners; refusing to pass other[] [laws] to
encourage their migration hither, and raising the
conditions of new Appropriation of Lands."

By the 1780s (which, though after the Revolution, was
still within the period of an insufficient supply of
labor) the restricted classes included all workers in
textile plants, in plants that manufactured textile
machinery, in the iron and steel industry, and in coal
mines.
The restrictions were only partially effective.
Ship captains became adept at avoiding them, and many
skilled workers came from the Continent instead of
England. The Virginia Company brought over Dutch workers
to erect sawmills. Polish workers were imported to start
the naval stores industry, and Italians, to establish a
glassworks.
Peter Hasenclever, a Prussian ironmaster,
transported from Germany over five hundred miners,
foreones, colliers, carpenters, masons, and laborers,
together with their wives and children. Other skilled
artisans who managed to reach the Colonies included
flaxworkers from the north of Ireland, who developed the
linen industry in New England, the Eastern Shore of
Maryland, and South Carolina; Huguenots, who pioneered
the manufacture of salt and the production of indigo in
South Carolina; and Italians trained in silk culture, who
helped establish that industry in Georgia. Nonetheless,
although the restrictions were not fully effective, they
did hold down immigration substantially.
To these reasons for the shortage of labor in the
Colonies, an additional reason should be added.
The
Colonials were industrious people. In consequence, the
economies of the Colonies grew quickly, and with them
grew the demand for workers.
In sum, the following causes contributed to the
chronic shortage of labor in the Colonies: the

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availability of land and the desire of immigrants to own
land; the unwillingness of workers to leave their native
countries; English restrictions on emigration; and the
rapid growth of the colonial economies. The shortage of
labor, together with the influence of English law and the
Puritan ethic, explain why the Colonies adopted a program
of compulsory labor.
The shortage of labor in the Colonies had other
effects as well. One was a desperate need for skilled
workers.
Some colonial projects failed for want of
skilled workers.
There was no point in importing
machinery unless it was accompanied by a skilled mechanic
who could assemble and repair it. Because of this need,
the Colonials resorted to a variety of means to attract
craftsones.
A few were willing to come as indentured
servants; they agreed to work for a period of years in
exchange for their transportation and maintenance. But
most indentured servants were simple laborers; craftsones
in Europe usually lived well enough that they had to be
lured to the Colonies. Among the lures were substantial
bounties paid to the worker and to the family that was
often left behind for a few years.
Exemptions from
taxes, military service, and compulsory labor on public
projects were also dangled before skilled Europeans to
induce them to immigrate.
Perhaps the strongest
inducement for many was the opportunity to own land or
set up businesses of their own. Some Colonies also tried
to attract skilled workers from the other Colonies.
The shortage of labor in the Colonies led them, as
it had led England, to control the price of labor. In
the earliest days of settlement, the tiny Colonies had
general wage fixing: the price for each and every task
was set by the community as a whole or by its leaders.
Hours of work were also regulated.
For example,
Massachusetts prescribed a 10-hour day for field workers
and a 12-hour day for craftsones. The Colonies grew, and
during most of the Seventeenth Century, only maximum
wages were established.
When this practice was
abandoned, the Colonies continued to set the wages of
quasi-public jobs like porters, millers, smiths, chimney
sweeps, and grave diggers. Fees for public services like
slaughtering, grinding, and sawing were also set by law.
Despite wage controls, the scarcity of labor meant that
its price was high.
If wages are controlled, prices must also be
controlled lest they grow so high that workers can no
longer buy the products. In turn, controlling the price

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xi

of products prevents the wages of labor from rising lest
the cost of making the products exceed the allowable
price for them.
Thus, the prices of necessities like
bread, leather, and bricks were widely regulated in the
Colonies, as were the prices that taverns and inns could
charge for liquor, food, and lodging.
Some of the
Colonies, particularly in the South, also regulated the
quality and measure of products, and the amounts that
could be made and sold.
Another consequence of the shortage of labor in the
Colonies was a number of laws that prohibited workers
from changing jobs. In Virginia in the Seventeenth and
Eighteenth Centuries, craftsones were required to work at
their trades and were not permitted to turn to husbandry,
that is, buy and work on their own farms.
This flat
prohibition proved difficult to enforce, but as late as
1748 persons imported as tradesones or wage workers were
penalized by extra service if they refused to work at
their trades.
Rhode Island required workers in the
building trades who left their work to pay a substantial
fine to their former employers.
Restrictions
like
these,
though
eventually
abandoned, were especially burdensome because, as I have
mentioned, most immigrants dreamed of the status and
personal independence that came with owning land. A law
prohibiting artisans from leaving their trades frustrated
this dream, and must have made them deeply discontent.
This signifies something important about the colonial
mind. In order to enforce laws forbidding tradesones to
leave their occupations, and to live with the resulting
resistance, the Colonials must have had a strong sense of
obligation to the community, a strong appreciation of the
need for individuals to make sacrifices for the good of
the group.
Of course, there may also have been an
element of exploitation in their motivation, or perhaps
of thinking something like, "These are our colonies. If
you want to join us, you have to pay our price." Nor
need one deny that another element of their motivation
might have been a sense of justice: the artisans were
wooed because their skills were needed, and it was unfair
for them not to provide what they had promised.
But
neither exploitation nor justice seems sufficient to
explain these restrictions. It must be added that the
Colonials genuinely believed that, in some cases,
individual good must give way to the good of the
community.

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This belief, which Americans have largely discarded,
was a contributing cause of another colonial policy, one
that is particularly relevant for present purposes. That
policy was embodied in rules against workers combining
for the purpose of raising their wages — that is, as we
would say today, against labor unions. The English had
prohibited combinations of workers since the Fourteenth
Century, and the Colonies — facing a shortage of labor
and believing in the individual's duty to the community
— followed suit.
If a worker had to work, an employer had to employ.
Under the Tudor industrial code, English employers, known
as masters, could not fire employees, known as servants,
without just cause during the term of employment, which
was typically one year. On a number of occasions in the
Sixteenth
and
Seventeenth
Centuries,
the
English
government required manufacturers to continue producing,
even though there was no market for their goods.
A
servant could not quit a job before its term expired, nor
could another master hire a servant who quit prematurely.
The reason for such laws was not altogether humanitarian.
A parish was responsible to care for its poor.
An
unemployed worker and one's dependents were likely to
become indigent — and, therefore, charges on the public
purse.
Throughout this period, the prohibition on
workers' combining for higher wages remained in effect in
England.
Workers who could not leave their jobs or
bargain for higher wages were open to exploitation. As
a result, whether from humane concern for the suffering
of workers or from economic concern for an adequate
supply of labor, the Tudor industrial code also
restrained unconscionable practices by land owners
against workers.
The Colonies generally had similar laws, both as to
employment and as to the poor. In Rhode Island a master
could not dismiss a covenant servant before the end of
the agreed term without reasonable and sufficient cause
plus the written approval of the chief officer of the
town and "three or foure able and discreet men of the
Common Council." In 1657 Boston required employers who
set servants at liberty "to see after their imployment,
and to secure the Town from any charge that might
otherwise be occasioned by such."
Even free workers
could not be dismissed irresponsibly lest they become
burdens on the public.
In 1642 a Massachusetts court
awarded one Thomas Marvin not only wages for the period
he had worked, but also twenty shillings "for being
turned away in winter, unprovided."
(Of course, some

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xiii

Colonials did work for others for short periods of time,
for example, to help bring in a harvest. Nonetheless,
the doctrine of employment-at-will, under which an
employer
or
a
worker
can
sever
the
employment
relationship at any time and for any reason, is a recent
development.)
Colonial masters also had to provide medical care
for servants.
A master was responsible for medical,
surgical, and nursing care for an injured servant and
could not discharge a servant who contracted an incurable
illness.
Still another consequence of the shortage of labor
was that women and children became unskilled and semiskilled workers.
This practice was the norm on the
European Continent, and it was known, though not so
widespread, in England. In Germany a child might be sent
to a spinning school at the age of six; one observer
lauded a system like this in which "a man that has most
children lives best." Daniel Defoe was gratified that,
in the vicinity of the town of Taunton, there was not a
child five years of age but could, if properly trained,
"earn its own bread."
In the Colonies, women and children were employed in
many occupations.
The demand for child labor,
particularly on the frontier, created an incentive, if
any were needed, for the high birth rate and large
families of colonial times. If a family fell into hard
times, daughters could be placed in service in the
household of a more fortunate neighbor. For example, in
1684 John Pynchon of Springfield entered in his account
book: "Goodwife Jefferys being here and proffering her
daughter Hannah to come to us: I treated with her and
shee yielded to our having [Hannah] (whom she says is 12
years old and since last August) till shee be 18 yeares
old." Pynchon agreed to provide "her cloathes which she
now needs to wear" and a pair of shoes, her wage to be
about £6 per year.
Sons were also hired out, though
generally for shorter periods of time.
No one worked harder than an adult Colonial woman.
While a man might rest after cutting hay, or potter about
the barn in the winter, a woman was responsible on a
daily basis for cooking, cleaning house, spinning thread,
making and repairing clothes — and washing them with soap
she also made; for gardening, preserving food, milking
cows, churning butter, and pressing cheese; as well as
for bearing, nursing, and educating children — in

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addition to which she was known to hire out at harvest
time. Colonial girls and women surely heard in church,
and knew they were expected to live up to, the
expectations of the Book of Proverbs (31:10-31):
"A woman of valour, who can find?
For her price is far above rubies.
"The heart of her husband doth safely trust in her,
And he hath no lack of gain.
"She doeth him good and not evil
All the days of her life.
"She seeketh wool and flax,
And worketh willingly with her hands.
"She is like the merchant ships:
She bringeth her food from afar.
"She riseth also while it is yet night,
And giveth food to her household,
And a portion to her maidens.
"She considereth a field, and buyeth it;
With the fruit of her hands,
she planteth a vineyard.
"She girdeth her loins with strength,
And maketh strong her arms.
"She perceiveth that her merchandise is good;
Her lamp goeth not out by night.
"She layeth her hands to the distaff,
And her hands holdeth the spindle.
"She stretcheth out her hand to the poor;
Yea, she reacheth forth her hands to the needy;
"She is not afraid of the snow for her household;
For all her household are clothed with scarlet.
"She maketh for herself coverlets;
Her clothing is fine linen and purple.
"Her husband is known in the gates,
When he sitteth among the elders of the land.
"She maketh linen garments and selleth them;
And delivereth girdles unto the merchant.
"Strength and dignity are her clothing;
And she laugheth at the time to come.
"She openeth her mouth with wisdom;
And the law of kindness is on her tongue.
"She looketh well to the ways of her household,
And eateth not the bread of idleness.
"Her children rise up, and call her blessed;
Her husband also, and he praiseth her;
"Many daughters have done valiantly,
But thou excellest them all.
"Grace is deceitful, and beauty is vain;
But a woman that feareth the Lord
she shall be praised.
"Give her of the fruit of her hands;
And let her works praise her in the gates."

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The scarcity and resulting high cost of labor had
still further consequences.
One consequence was that
they were a brake on expansion of colonial production.
Colonial products cost so much to make that they
generally could not compete with European-made products;
this was often true even when the cost of shipping across
the ocean was added to the price of the European items.
To protect local producers, the Colonies resorted to nonimportation agreements.
Another consequence of the
scarcity and high cost of labor was that the colonial
worker enjoyed a higher standard of living than one's
European counterpart.
A third consequence was that
Colonials frequently worked in more than one craft.
Sometimes the crafts were related: a blacksmith might
also be a toolmaker, and a carpenter might also be an
undertaker.
At least as often, the crafts were
unrelated: Joshua Hempstead of New London, Connecticut
was a farmer, surveyor, house and ship carpenter,
stonecutter, sailor, trader, and an attorney.
John
Julius Sorge advertised in New York that he manufactured
cleaning
fluid,
toilet
water,
soap,
candles,
insecticides, and wine; he also made artificial fruit and
removed hair from ladies' foreheads and arms.
Paul
Revere was known not only for his midnight ride, but also
as a silversmith, an engraver of copper plate, a dentist
— and a manufacturer of clock faces for clockmakers, of
branding irons for hatters, and of spatulas and probes
for surgeons. He also set up a foundry and a mill for
rolling copper into sheets.
This may be part of the
reason that European guilds were not transplanted to
America.
Let us now focus briefly on skilled labor in the
Colonies. We have noted that English mercantile policy
aimed, among other things, to ensure the demand for
English products in foreign markets. English products,
therefore, had to be of good quality.
Good quality
products necessitated skilled workers. Workers learned
their skills in apprenticeships.
The Statute of
Artificers set the period of apprenticeship at seven
years. In addition, the statute allowed only children of
parents who owned a specified amount of property to
become apprentices. The Colonies adopted the seven-year
period of apprenticeship, but they refused to impose
property qualifications on parents. However, because it
was customary for parents to pay masters to accept
children into the more highly skilled crafts and the
professions, there may have been a de facto property
qualification in the Colonies.

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Artisans trained in Europe were widely considered to
be superior to artisans trained in the Colonies.
For
example, the owners of a china factory in Philadelphia
advertised for workers, with the stipulation that "none
will be employed who have not served their apprenticeship
in England, France, or Germany." Immigrant tradesones
often boasted of their European training. A tailor in
Charleston advertised that he had been "foreman to the
most eminent master-taylors in London and Paris, and by
them acknowledged to be as compleat a workman as ever
they employed, particularly in the art of cutting." A
linen printer and dyer from Dublin told Bostonians that
he could produce colors "as good and as lasting as any
that comes from Europe." We must add, however, that not
all imported workers lived up to expectations. George
Cabot wrote to Alexander Hamilton in 1791 that thirtynine of the forty workers in Cabot's cotton mill in
Beverly, Massachusetts were natives of the vicinity, as
the Irish artisans who had been imported for the jobs had
"proved
deficient
in
some
quality
essential
to
usefulness."
We have mentioned that many artisans plied their
trades only long enough to buy land.
Others had no
desire to become farmers. A small amount of capital was
sufficient to open a business that produced for local
consumption, and high wages allowed those workers who
were so inclined to own their own shops.
There were
constant opportunities in colonial and revolutionary
times for artisans to become entrepreneurs.
A class of skilled white artisans gradually
developed in the North. No such class developed in the
South, where conditions were different. The land and the
weather were well suited to the development of large
farms or plantations that produced cash crops like
tobacco. The following was written of Virginia at the
close of the Seventeenth Century:
"For want of Towns, Markets, and Money, there is
but
little
Encouragement
for
Tradesmen
and
Artificers, and therefore little Choice of them,
and their Labour [is] very dear in the Country.
Then a great deal of [a] Tradesman's Time being
necessarily spent in going and coming to and from
his Work, in dispers'd County Plantations, and his
Pay being generally in straggling Parcels of
Tobacco, the Collection Whereof costs about 10 per
cent, and the best of this Pay coming but once a
year [when the crop is harvested], so that he
cannot ... [accumulate for sale] a small stock, as

Labor and Employment Law

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Background of the Early American Labor Cases

xvii

Tradesmen do in England and Elsewhere, All this
occasions the Dearth of all Tradesmen's Labour, and
likewise
the
Discouragement,
Scarcity,
and
Insufficiency of Tradesmen."

Wanting artisans, southern masters trained slaves in
the skills needed on plantations. Because the wealthier
plantations also carried on industrial enterprises — a
large plantation may have had much in common with a
medieval manor — the variety as well as the number of
skilled African-Americans was great.
Slaves were not
only farmers, but also carpenters, coopers, stone masons,
millers, blacksmiths, shoemakers, spinners, and weavers.
Skilled slaves were frequently hired out by their masters
to the owners of smaller plantations. White artificers
tried to check the growth of skilled slave labor, but
their efforts were futile because planters believed that
slave labor was more economical than free labor.
Not
until after the Civil War were whites successful in
excluding blacks from skilled work.
There was industry in the Colonies from their early
days.
The typical industrial unit established by a
colonial entrepreneur was small, composed of one or two
masters and a like number of apprentices. Corporations,
which are a means for many persons to pool their
resources in order to create a large capitalization, were
not known in colonial times.
At least one reason for
this fact is that each corporation needed a special
charter from the legislature; there were no general
incorporation laws before the Nineteenth Century. Home
work was also common.
For example, weaving and shoe
making were usually done in the worker's home from
materials (and sometimes implements) supplied by an
entrepreneur. However, at the time of the Revolution,
some factories were beginning to develop, as in spinning,
and, of course, this development continued thereafter.
Colonial workers tended to be independent because
they were in great demand. (The reader will understand
what this means in a few years when one tries to make a
building contractor keep to a schedule.) The scarcity of
workers,
their
high
wages,
and
their
personal
independence combined to yield colonial workers much more
esteem than European workers enjoyed.
Even a humble
tailor like Thomas Stebbins of Springfield, if he were a
man of parts, could be elected second in command of the
town militia. Add to this the work ethic that we have
already discussed, and the ease with which workers could
become land owners or shop keepers, and the result was
that the social class structure of England did not take

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deep root in American soil.
Two consequences of this
fact may be noted.
First, respect for the worker had
much to do with the growth of democracy in this country.
As the reader knows, Colonials did not unanimously desire
the Revolution; perhaps one-third of the population were
loyalists, and another third were undecided.
But the
artisans were vigorous and radical supporters of
independence.
A second consequence of the failure of
English class structure to grow in American soil is that,
when workers on both sides of the Atlantic began in the
Eighteenth Century to unite into associations to further
their political and economic goals — that is, when labor
unions started to develop — the histories of English and
American unions diverged sharply. The differences may be
traced partly to the greater economic democracy in the
United States and the lack of a strong sense of class
identity among American workers.
So far we have been describing economic and social
relationships in the Colonies. Now let us turn to legal
relationships, that is, how the law conceived of the
economic and social relationships that have been
described.
During the Eighteenth Century, and for centuries
before that, the basic legal unit was the household.
Simplifying somewhat, we can say that the head of the
household was the man. Vis-a-vis the rest of the world,
he acted for the entire household; that is, the law took
cognizance only of his actions or of actions that he
authorized.
For example, only he could buy or sell
property or enter into a contract. No one else in the
household could enter into legally binding relations with
the rest of the world without his consent.
More important for our purposes was the role of the
head of the household vis-a-vis other members of the
household.
Four major types of relationship existed,
namely, husband to wife, father to child, master to
servant, and master to slave.
Once again, the law
recognized the man as the dominant figure; wives,
children, servants, and slaves were subject to his
orders.
Note that the locus of the master-servant and
master-slave relationships was the household. There were
no free-standing places of employment. Rather, work took
place within the household. One typical household was a
farm. Everyone worked on the land; the boundaries of the
farm and of the household were the same. A household

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Background of the Early American Labor Cases

xix

typical of a city was a shop, say, a blacksmith or a
tailor, but once again the working and living spaces were
on the same parcel of land. Commonly, the shop was on
the ground level and the living quarters were above. If
a member of one household hired out, that is, worked in
a second household for money, the worker became, for most
legal purposes, a member of the second household, and
was, therefore, subject to the control of the master of
that household; but the money belonged to the master of
the first household.
We noted above two general ideas that were
instantiated in the Statute of Laborers in the Fourteenth
Century and the Statute of Artificers in the Sixteenth
Century, namely, that the lord of the manor had
jurisdiction over the lives of one's workers and had a
property right in their labor. These ideas persisted in
the Colonies in the Eighteenth Century, with the lord of
the manor being replaced by the head of the household.
Indeed, the law understood the household as a small
state. The head of the household had jurisdiction over
its members in much the way that the monarch had
jurisdiction over the people of the kingdom and had a
property interest in (owned) the labor of the members of
the household.
Because
of
this
way
of
conceiving
human
relationships, the law of the Eighteenth Century was
concerned principally with the interests of free white
males. Let us consider children first. Suppose a farmer
agreed that his daughter would work for a neighboring
farmer for a year, and that after six months she wanted
to quit, but her new master was unwilling to release her.
The dispute was not understood as one between her and her
master; the dispute was seen as one between her father,
who formerly owned her labor, and her master, who
presently owned it.
Similarly, suppose a father
apprenticed his son to a silver smith for the usual
period of seven years, and that after a year or two the
boy tired of the work and returned home. The smith could
not sue the boy; rather, the smith could sue the father
for breach of contract. Or suppose business fell off and
the smith could no longer support the boy, and so turned
him out. The father, not the boy, could sue the smith.
Or suppose the boy was on the scrawny side and did not
like hefting the smith's heavy tools; but the boy had a
good mind and he liked to read, and so he left the smith
and apprenticed himself to a printer who needed help. In
this case, the smith could sue the printer for enticing
away a servant. We need hardly add that, in all of these

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Background of the Early American Labor Cases

cases, the law focused on the interests of the parties —
the fathers and the masters; the interests of the sons
and daughters were neglected.
Wives were no better off than children.
An
unmarried woman who lived with her parents was under her
father's control.
If she married, she passed to the
control of her husband. She could not own property. She
had to work for whomever her husband designated.
She
could not even keep the earnings of her labor. Gradually
during the Nineteenth Century, the rights of women were
recognized.
For example, beginning with Arkansas in
1835, statutes allowed a married woman to own property
inherited from her parents; before then, the property had
become her husband's. Massachusetts in 1855 and New York
in 1861 permitted women to make contracts, engage in
business, and sue and be sued in court.
But in most
states well into the Nineteenth Century, women had no
civil rights.
Slaves, of course, had no rights at all; they were
property.
Indeed, as the Dred Scott case affirmed,
Article IV of the Constitution provided that if a slave
escaped and sought asylum in another state, the master's
demand for return of the slave had to be honored, even if
the state in which the slave was found prohibited
slavery. Slaves were so completely property that their
children were also the property of their masters.
President Lincoln's Emancipation Proclamation freed the
slaves of the Confederacy.
The Thirteenth Amendment
freed all the rest of the slaves in America.
The
Fourteenth Amendment guaranteed former slaves equal
rights under the law.
And the Fifteenth Amendment
granted freedmen the right to vote.
As a practical
matter, however, the Fourteenth and Fifteenth Amendments
were useless to persons of color until the middle of the
Twentieth Century.
All of these relationships — parent-child, husbandwife, master-servant, and master-slave — were status
relationships.
As such, they were defined by law and
custom. By virtue of occupying the statuses of master
and servant, the master had jurisdiction over the servant
and owned the servant's labor. There is another way in
which relationships can be conceived. We can think of
them as contractual, that is, as the result of agreement
by free and independent parties. The parties in a status
relationship have little power to change it. Rights and
duties are fixed and inescapable. But the parties in a
contractual relationship have almost complete power over

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21

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xxi

it. They specify what their rights and duties are. In
fact, there is no relationship at all unless the parties
agree to it.
The
theory
of
contract
in
general
became
increasingly influential during the Nineteenth Century,
and the law of contract was extended to domains which had
not been thought of as contractual in the past.
This
occurred primarily because of the growth of manufacturing
and commerce, but it had effects on other areas as well.
As contract became the paradigm for understanding the
exchange of money for labor, the ideas waned that the
master had jurisdiction over the servant and owned the
servant's labor.
Of course, some relationships were not affected at
all; they remain status relationships to this day. The
parent-child relationship is still a status relationship
in the eyes of the law. Minors have no legal right to
bargain with their parents over the parents' right to
control their children, and parents have no legal right
to bargain with their minors over the parents' duty to
support and care for the children.
Some relationships were partially modified by the
growth of contract law. The husband-wife relationship
today is partly status and partly contractual.
For
example, if one spouse dies without a will, the law
provides that the surviving spouse will inherit a
significant share of the property of the decedent. (This
assumes that the surviving spouse did not murder the
decedent, in which case the rules are a little
different.) This right derives from the status of the
parties.
But the law allows spouses to enter into an
antenuptial agreement, that is, a contract, that can
modify the surviving spouse's right to inherit property.
And some relationships were wholly transformed by
contract law.
The employment relationship today is
almost entirely contractual. It is usually established
informally; the boss says, "You're hired." Therefore, we
will focus on the law as it applies to this relationship,
which is not based on a written contract. This law is
known as "employment at will," and it has been in place
since the latter part of the Nineteenth Century.
The
doctrine is simple: the worker may quit a job at any time
and for any reason, and the employer may discharge a
worker at any time and for any reason (except for a few
reasons that have recently been specified by statute, for
example, racial discrimination).

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Employment at will is so strongly entrenched in the
law that evidence that the parties intended a different
result is often ignored. For example, suppose a worker
is discharged and she sues, claiming that the employer
offered her a permanent job.
She concedes that the
employer had a right to discharge her if the job were
abolished or if her performance were unsatisfactory, but
she claims that her performance was satisfactory and the
job still exists. In almost every state, her case will
be dismissed. Some exceptions to employment at will have
developed in recent years, and we will consider them in
due course.
In theory, employment at will is perfectly fair to
both parties. The employer makes an offer of a job with
certain wages and working conditions, and the worker
decides whether or not to accept the offer. If a worker
wants more money or easier working conditions, the worker
is free to ask the employer to agree to a change — and to
quit if the employer refuses to change. Similarly, if
the employer wants to pay less money or demand additional
work, and if the worker does not agree, the employer is
free to discharge the worker and find another.
In practice, employment at will allows employers to
exercise nearly all of the authority that masters
formerly held over servants, but frees employers of
nearly all of the duties that they formerly had to honor.
As an individual, the worker's only remedy for low wages,
unreasonable demands, or dangerous working conditions, is
to quit; and this is not a practical remedy in many
cases. Also, by permitting layoffs when business slows
down, the doctrine allows employers to shift a large part
of the cost of bad management decisions, or declining
economic conditions, or both, from the company to the
worker.
Whether fair or unfair, employment at will has been
the default position of labor and employment law for the
past one hundred twenty-five years. In a real way, the
rest of this course is about efforts to modify employment
at will.
Sources
Innes, Stephen, Labor in a New Land: Economy and
Society in Seventeenth-Century Springfield (Princeton U.
Press, 1983).

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Background of the Early American Labor Cases

xxiii

Morris, Richard B., Government and Labor in Early
America (Columbia U. Press, 1946).
Steinfeld, Robert J., The Invention of Free Labor
(U. of North Carolina Press, 1991).
QUESTIONS FOR REFLECTION
1. In what ways was the life of a colonial worker
different from the life of a worker today?
2. Was the life of a colonial worker better in any
way than the life of a worker today?
3. Is it possible that we would return to any of the
colonial labor policies? If so, which policies and under
what circumstances?

Ù

Labor and Employment Law

24

The Strike as a Criminal Conspiracy
EARLY NINETEENTH CENTURY

INTRODUCTION
Let us now take a brief look at concerted or joint
action by workers in England and the colonies.
The
reader is familiar with medieval craft guilds. They were
not unions of workers, but trade associations of master
craftsones, and they exercised considerable power over
the quality and price of products, the compensation of
the journeyones who worked under the masters, and the
system of apprenticeship by which new workers learned and
entered the trade. Although guilds never took firm hold
in America, in the early days, especially in the northern
colonies, governments allowed some associations of
craftsones, such as shoemakers, tailors, and carpenters,
to exercise powers similar to those enjoyed by European
guilds.
Medieval guilds were protected from non-residents'
entering town and competing with local masters. There
was some of this in the colonies as well, for example,
building tradesones in New York City complained about
low-priced competitors coming from the Jerseys.
(Is
there anything new under the sun?)
Another way that medieval guilds protected their
members was that workers were prohibited from changing
occupations.
Freedom of occupational choice was
restricted well into the Eighteenth Century in the
colonies. Also, occupations were strictly defined. A
leather tanner could not make shoes, nor could a
shoemaker tan leather.
These restrictions were undermined by the growth of
laissez faire philosophy. During the Eighteenth Century,
the early guilds, the restrictions on competition from
non-residents,
and
the
prohibition
on
changing
occupations disappeared in the colonies.
Although many trades were unregulated, certain
trades were licensed and regulated as today's public
utilities are. Licensed masters — examples are bakers,
coopers, butchers, porters, carones — enjoyed a monopoly

Labor and Employment Law

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25

The Philadelphia Cordwainers Case

in their trades, in exchange for which the government set
the prices of their products or services. Licensing of
quasi-public
trades,
together
with
price-fixing,
continued through the Revolution in many parts of the
colonies.
Masters in both licensed and unlicensed trades
sometimes withheld their labor in order to induce the
government to authorize higher prices. We say "withheld
their labor," rather than "struck," because we want to
make clear that these were masters, not employees. Of
course, masters usually worked actively at their trades,
so they may properly be called workers; but they were
definitely not employees.
As for combinations of journeyones, that is, of
employees, instances are rare.
Friendly societies
appeared in the Eighteenth Century, but their purposes
were to provide assistance to ill or injured workers and
to pay funeral costs and benefits to the families of
deceased members. Masters were permitted to join. Among
the earliest combinations in the colonies of journeyones
seeking higher wages were tailors and printers who struck
in New York City in the 1760s and 1770s. Such strikes
were the result of ad hoc groups, not of permanent labor
unions. In contrast, combinations of masters to set the
wages of employees were common and legal; indeed, these
trade associations sometimes published their actions in
newspapers.
Permanent associations of workers — that is, labor
unions — emerged in America after the Revolution. The
causes include the rise of the factory, the transition
from custom-made items to wholesale production, the
concentration of workers in the expanding industries, and
the workers' realization that they were unlikely ever to
earn enough money to buy land or set up their own shops.
Philadelphia was the leading city in the early years of
the nation, and labor union activity there was perhaps
the most intense.
For example, shoemakers, called
"cordwainers," formed a union and struck at least three
times before the end of the century.
Employers' response to organization by workers was
to strengthen and increase in number the employers' trade
associations. At least one of the cordwainers' strikes

Labor and Employment Law

26

The Philadelphia Cordwainers Case

iii

in Philadelphia occurred after the employers' association
had lowered wages.
The following report of a case is unusual. Usually,
we read one or more opinions written by the judge(s) who
decided the case. In the Philadelphia Cordwainers case,
however, we read the arguments of the parties' attorneys
to the jury and the judge's charge to the jury.
The defendants in the case were journeymen
cordwainers (shoe workers) who were indicted for the
crime of conspiracy. A conspiracy is a combination of
two or more persons to perform an unlawful act or to
perform a lawful act by unlawful means. The indictment
contained three charges or counts, that is, alleged three
separate crimes. The counts were similar in that each
count alleged the defendants had engaged in a conspiracy,
but different in that each conspiracy had a different
purpose. Thus, all three counts alleged that the
defendants had combined in an association (a proto-labor
union) to achieve a specific purpose.
The unlawful
purposes were
Count 1:
Count 2:
Count 3:

to work only at rates set by the
association
to prevent other workers from accepting
lower rates
to refuse to work in the same shop as
anyone who had broken any of the
association’s rules (for example, by
working for lower rates).

These facts were largely true and, therefore, the issue
was whether these facts amounted to a criminal
conspiracy. Here follow excerpts from the arguments to
the jury of the prosecution and the defense and the
charge of the judge to the jury. The paragraph numbers
in braces have been added by the editor for convenience
of reference.
As you read the arguments and the charge to the
jury, focus on the following issues:
¶ 3.
Does illegal behavior by one party justify
illegal behavior by the other party?

Labor and Employment Law

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27

The Philadelphia Cordwainers Case

¶3. Had the masters previously attempted to control
the price of labor?
¶¶29-30.
coercion, or
coercion?

Does the law prohibit only
does the law also prohibit

physical
economic

¶¶ 29-30. Did the defendants use economic force to
compel any journeyone to leave one's job or to compel any
master to discharge a journeyone?

Labor and Employment Law

28

The Philadelphia Cordwainers' Casea

3 Commons and Gilmore, A Documentary History
of American Industrial Society 55 ff.
(1806)
{The order of some of the paragraphs has been changed, and some paragraphs have
been divided into several separate paragraphs. The numbering of the paragraphs, however,
indicates their place in the original document.}

Mr. HOPKINSON {for the prosecution}
{1} ... The facts, which form the basis of this controversy, seem so well
understood on both sides; so little contrariety appears in the testimony respecting
them, that I may say, the dispute is more a question of principle than of evidence....
{2} The cause is an important one.... It is said on the one side to involve an
important principle of civil liberty, that men in their transactions with others, have a
right to judge in their own behalf, and value their labour as they please: on the
contrary, we shall shew that the claims and conduct of the defendants are contrary to
just government, equal laws, and that due subordination to which every member of the

{A word about the use of brackets and braces in these materials is necessary. By
convention, brackets are used by a writer to indicate additions by the writer to another
person's words. For example —
"Palmadesso said, 'He [Mozart] was a great musician, but they [the Beatles] were
far superior.'"
The writer of this sentence, who is anonymous, is quoting what another person, Palmadesso,
said. The writer adds in brackets information that will help the reader understand what
Palmadesso meant. This convention works satisfactorily when only two persons are
involved, but a problem arises when three or more persons are involved — as in these
materials, in which three persons may have something to say: the first person is the author
of the opinion; the second is the person whose words the first person is quoting; and the
third is your editor. The author of the opinion may have added to the words of the second
person, and your editor may wish to add to the words of either the author or the second
person. A way is needed to distinguish between additions by the author of the opinion and
additions by your editor. Accordingly, in these materials brackets enclose additions
supplied by the author of the opinion, and braces enclose additions supplied by your editor.
For example —
"Learned Hand {who was a highly regarded judge in the first half of the Twentieth
Century} is reported to have said as he sentenced a defendant to prison, 'Don't do
the crime [the defendant was convicted of assault] if you can't do the time [he got
five years].'"
The anonymous writer is quoting Judge Hand. Hand said, "Don't do the crime if you can't
do the time." The anonymous writer added that the crime was assault and the sentence was
five years. Your editor adds that Hand was a respected judge.}
a

Labor and Employment Law

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The Philadelphia Cordwainers Case

vi

community is bound to submit ... all these are essentially connected with the present
prosecution.
{3} It has been attempted to be shewn {by the defendants}, that the master
workmen {i.e., the employers}, associated and formed themselves into similar
societies, and this they say constitutes a defence for the defendants; if the fact be so
... two wrongs never make a right. If the masters have associated in the manner stated,
they are amenable to the law in the same manner as the associated journeymen. ... yet
in justice to them, I must say, that all proof of this sort has failed; there has been no
proof shewn, that the masters associated for unlawful, or oppressive purposes; or that
when associated, they ever attempt to controul the journeymen. There is nothing like
it in the constitution and minutes, that were read from the book produced. They say
they associated for the convenience of the trade; nothing is said of raising or
decreasing wages; nothing relative to any provision or declaration, as to the price of
workmanship, &c.
{4} ... {I}t has been proved, a certain number of persons, among whom are the
present defendants, associated for several distinct and criminal purposes. This is the
gi©sªt of the prosecution, it is not for what any one man of them has done, that the state
prosecutes: the offence is in the combination.
{5} Why a combination in such case is criminal, will not be difficult to
explain: we live under a government composed of a constitution and laws ... and every
man is obliged to obey the constitution, and the laws made under it. When I say he
is bound to obey these, I mean to state the whole extent of his obedience. Do you feel
yourselves bound to obey any other laws, enacted by any other legislature, than that
of your own choice? Shall these, or any other body of men, associate for the purpose
of making new laws, laws not made under the constitutional authority, and compel
their fellow citizens to obey them, under the penalty of their existence? This
prosecution contravenes no man’s right, it is to prevent an infringement of right; it is
in favour of the equal liberty of all men, this is the policy of our laws; but if private
associations and clubs, can make constitutions and laws for us ... if they can associate
and make by-laws paramount, or inconsistent with the state laws; What, I ask,
becomes of the liberty of the people, about which so much is prated; about which the
opening counsel made such a flourish!
{6} It is not intended to take away the right of any man to put his own price
upon his own labour; they may ask what they please, individually. But when they
associate, combine and conspire, to prevent others from taking what they deem a
sufficient compensation for their labour ... and where they undertake to regulate the
trade of the city, they undertake to regulate what interferes with your rights and mine.
I now am to speak to the policy of permitting such associations. This is a large,

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encreasing, manufacturing city. Those best acquainted with our situation, believe that
manufactures will, bye and bye, become one of its chief means of support. A vast
quantity of manufactured articles are already exported to the West Indies, and the
southern states; we rival the supplies from England in many things, and great sums are
annually received in returns. It is then proper to support this manufacture. Will you
permit men to destroy it, who have no permanent stake in the city; men who can pack
up their all in a knapsack, or carry them in their pockets to New York or Baltimore?
These manufactures are not confined to boots and shoes ... though that is very
important, as you learn from Mr. Bedford, that he could export 4000 dollars worth,
annually. Other articles, to a great amount, are manufactured here, and exported; such
as coaches and other pleasurable carriages; windsor chairs, and particular
manufactures of iron. I cannot make a calculation of the importance of manufactures
to this city.
{7} If the court and jury shall decide, that journeymen may associate together,
and determine that none shall work under certain prices; then, when orders arrive for
considerable quantities of any article, the association may determine to raise the
wages, and reduce the contractors to diminish their profit; to sustain a loss, or to
abandon the execution of the orders, as was done in Bedford’s case, who told you he
could have afforded to execute the orders he obtained at the southward, had wages
remained the same as when he left Philadelphia. When they found he had a contract,
they took advantage of his necessity. What was done by the journeymen shoemakers
may be done by those of every other trade, or manufacturer in the city.... A few more
things of this sort, and you will break up the manufactories; the masters will be afraid
to make a contract, therefore he must relinquish the export trade, and depend
altogether upon the profits of the work of Philadelphia, and confine his supplies
altogether to the city. The last turn-out {strike} had like to have produced that effect:
Mr. Ryan told you he had intended to confine himself to bespoke work {i.e., custommade orders}.
{8} It must be plain to you, that the master employers have no particular
interest in the thing ... if they pay higher wages, you must pay higher for the articles.
They, in truth, are protecting the community. Nor is it merely the advance of wages
that encreases the price to the consumer, the master must have some compensation for
the advance of his cash, and the credit he frequently gives. They have no interest to
serve in the prosecution; they have no vindictive passions to gratify ... they merely
stand as the guardians of the community from imposition and rapacity.
{9} A great rise was attempted, in 1805, on prices mutually agreed upon in
1804, without reason, in a mild winter, when wood and every necessary of life was
unusually cheap.... I can see no pretext for the attempt, but the encreasing avarice of
these men. They took the advantage of their masters, I mean their employers in the

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fall of 1805, when the business was becoming brisk; when they knew the employers
must have work done for their customers; they ask{ed} from seventy-five to twentyfive cents advance on making boots, according to their quality. Is this spirit of
exaction to be encouraged? Will the community be satisfied to be at the mercy of
these men? Your verdict must determine, whether it is to be continued or suppressed:
nor can they plead the conduct of the masters as an apology. You heard but one
witness say they ever reduced the prices of workmanship in the dullest season; and he
speaks only of a reduction of twenty-seven cents, viz., from two dollars seventy-seven
cents to two dollars fifty.
{10} If this conspiracy was to be confined to the persons themselves, it would
not be an offence against the law; but they go further. There are two counts in the
indictment; you are to consider each, and to give your verdict on each. The first is for
contriving, and intending, unjustly, and oppressively, to encrease and augment the
wages usually allowed them. The other for endeavouring to prevent, by threats,
menaces, and other unlawful means, other journeymen from working at the usual
prices, and that they compelled others to join them.
{11} If these persons claim the right to put the price on their own work, if they
say their labour is their own, and they are the judges of its value, why not admit the
same right to others? If it is the right of Dubois, and the other defendants, is it not
equally the right of Harrison and Cummings? We stand up for the right of the
journeymen, as well as of the masters. The last turn-out was carried by a small
majority ... 60 against 50, or thereabout: shall 60 unreasonable men, perhaps single
men, having no one to provide for but themselves, distress and bring to destruction,
50 married men with their families? Let the 60 put what price they please on their
own work; but the others are free agents also: leave them free, or talk no more of
equal rights, of independence, or of liberty.
{12} It may be answered, that when men enter into a society, they are bound
to conform to its rules; they may say, the majority ought to govern the minority ...
granted ... but they ought to leave a man free to join, or not to join the society. If I go
into a country I am bound to submit to its laws, but surely I may judge, whether or not
I will go there. The society has no right to force you into its body, and then say you
shall obey its rules under severe penalties. By their constitution you find, and from
their own lips I must take the words, that though a man wants no more wages than he
gets, he must join in a turn-out. The man who seeks an asylum in this country, from
the arbitrary laws of other nations, is coerced into their society, though he does not
work in the article intended to be raised; he must leave his seat and join the turn-out.
This was Harrison’s case ... he worked exclusively in shoes, they in boots; he was a
stranger, he was a married man, with a large family; he represented his distressed
condition; they entangle him, but shew no mercy. The dogs of vigilance find, by their

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scent, the emigrant in his cellar or garret: they drag him forth, they tell him he must
join them; he replies, I am well satisfied as I am.... No ... they chase him from shop
to shop; they allow him no resting place, till he consents to be one of their body; he
is expelled {from} society, driven from his lodgings, proscribed from working; he is
left no alternative, but to perish in the streets, or seek some other asylum on a more
hospitable shore. To the prayers of Harrison and Dobbins, they gave this stern
answer: we hear your prayer, but we will not relax ... you may perish, but we will not
permit you to work.
{13} I will now proceed to shew you what the law is, and you will receive
from the court more information on the subject. It will be seen, that the mere
combination to raise wages is considered an offence at common law: the reason is
founded in common sense. Suppose the bakers were to combine, and agree not to sell
a loaf of bread, only for one week, under a dollar, would not this be an injury to the
community? ... Certainly it would: and few men, unless their pockets were filled with
money, could support it for any considerable length of time. All combinations to
regulate the price of commodities {are} against the law. Extend the case to butchers,
and all others who deal in articles of prime necessity, and the good policy of the law
is then apparent.
{14} My intention, in shewing what the objects of the society were in 1799,
was to convince you that the present defendants, and the majority of the society, were
aiming at the same point in the turn-out of last fall. Some of the acts, stated by
Harrison and Dobbins, may not have been personal acts of the defendants; but in cases
of combinations and conspiracies, each must answer for the whole: the act of one is
the act of each, and to this point is 2 M’Nally, p. 611. ‘The existence of a conspiracy
being proved, &c. each of the parties is liable.’
{15} All the defendants have been proved to have taken an active part in this
combination, by giving notice to the masters, that unless they accept the terms
proposed, they will be subjected to all the penalties of their club; such as were
inflicted on the shops in 1799....
{16} This case has exhibited such a tissue of infractions of personal rights by
the club of journeymen shoemakers, that was our state legislature to dare to pass such
laws as these men have passed, it would be a just cause of rebellion. I will go further,
and say, it would produce rebellion if the legislature should say, that a man should not
work under a certain sum ... it would lead to beggary, and no man would submit to it.
Then, shall a secret body exercise a power over our fellow-citizens, which the
legislature itself is not invested with? The fact is, they do exercise a sort of authority
the legislature dare not assume.

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{17} It now rests with the jury, under the direction of the court to say, whether
we shall in future be governed by secret clubs, instead of the constitution and laws of
the state; a verdict of not guilty, will sanction combinations of the most dangerous
kind; a contrary verdict will give the victory to the known and established laws of the
commonwealth.
Mr. FRANKLIN for the defense
{18} Has the master then the sole right of determining the wages which are to
be given for the labour of his journeymen? This would be too arbitrary a power for
any man to contend for; it would be an insult to your understanding, to insist upon it.
The real value of labour, in a country, must depend upon a variety of circumstances,
which neither the master or his journeymen can in any way controul. As to the price
which any particular employer may pay his workmen, that must be regulated by the
contract between them. If they can mutually agree upon a price to be given, the master
is bound to give, and the journeymen must abide by the sum stipulated. A different
price will be given to different workmen; some deserve more than others, either on
account of their greater industry and application, or their greater skill and ingenuity.
But if the employer and journeymen cannot agree upon the work to be done, or the
price to be paid, neither is bound to recede from his determination.
{19} If, then, any one man has this right, has not every other man the same
privilege? If one journeyman has a right to adopt measures to prevent the effects of
the obstinacy or combination of the master shoemakers, may not a number unite for
the same object? A purpose innocent or lawful in one man, cannot be otherwise in a
society or body of men. Supposing, therefore, that the facts charged in the first count
were true; that the men refused to work but at certain prices, it is no crime, and they
cannot be punished for it.
{20} But independently of those grounds, we have fully shewn, that the
demand of those men was reasonable and just. The master workmen had raised the
price of these very articles; this is in proof, not only on the testimony of the
journeymen, but two of the masters....
{21} It is to be remembered that whatever circumstances arose from the
transactions in 1799, they are not to be imputed to the journeymen, but to the master;
for Mr. Harrison is proved to be mistaken in saying, that the turn-out in that year, was
for an advance of wages; it is in evidence, that it was intended to prevent the masters
from lowering the wages of the journeymen, which they had attempted; you must be
sensible how difficult it is for the journeymen to resist the masters, who are rich, and
abound in the means to support a contest; the journeymen are poor and destitute of
means, though on that occasion, it appears the masters were obliged to abandon their

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scheme of reduction. The journeymen obtained the same wages they had had; you
may, therefore, be certain they were reasonable, or they would not be given by men
who could continue the resistance.
{22} Now, if any journeyman who chose to work at the rates or prices offered
by the employers, contrary to the wish of other journeymen, were threatened by them,
or any of them, with injury to his person or property, he has a complete and ample
remedy provided for him by law without resorting to the measures which have been
adopted. He might have them bound over to their good behaviour, and if they
afterwards were guilty of any threats, their recognizance would be forfeited, and they
would be obliged to pay the penalty. But it does not appear that either of the
defendants or members of that association, uttered any menaces or were guilty of any
assault. Blair said, some of his people were beaten, in 1797, but that is not brought
home to either of the defendants.
{23} The third charge branches forth into three divisions. First ... Combining
to make unlawful and arbitrary bye laws. What proof is there of the association
having made any unlawful or arbitrary bye laws? ... None.... But supposing that such
laws had been enacted by the society, are the defendants to answer for them in this
way? Should it not appear clearly, that they assented to them? When the question
was taken, the defendants might have been in the minority; and shall they be punished
for an act of the society of which they have shewn their disapprobation? It appears in
evidence, that some of the defendants opposed the adoption of the resolutions which
were passed on this very occasion.
[Here he reviewed the testimony on this point.]
{24} The positions advanced by the prosecuting counsel on this subject, might
be carried to a very alarming extent. If his sentiments be correct, there are many
associations in this city, of high standing, which are acting illegally, and may be made
the objects of a criminal prosecution. These associations are governed by rules and
bye laws, which, however correct in themselves and proper for the regulation of the
members of the body, are far from being conformable to the standard by which he
seems to think the legality of such rules is to be tried.
{25} I will mention but one instance, and refer to your recollection for
numerous other examples which might be adduced. A large and respectable society
in this city has, among many excellent laws for its government, one which Mr.
Hopkinson might think very arbitrary and oppressive. Some gentlemen whom I see
on the jury, are well acquainted with the society and the rule to which I allude. It is
to this effect: That such members as shall marry in any other mode than that
prescribed by the rules of their discipline ... though it might be in strict conformity to

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the laws of the land ... and such as shall marry any other than members ... shall be
expelled from the society ... nor can they be restored until they have made a full
acknowledgment of the error of their conduct.
{26} On the trial of an indictment, against the members of this society, for
combining to make arbitrary and oppressive bye laws, large room would be afforded
to the gentleman for the display of his eloquence in expatiating on the impropriety of
laws, which impose so severe a penalty on a legal and justifiable act ... on the impolicy
of rules manifestly tending to create a restriction on the frequency of marriages, and
a variety of other topics which his ingenuity would furnish. In fact, according to the
doctrine which he has laid down, I know of no society which can legally exist ... if it
adopt any other rules, or bye laws than the constitution or laws of the state.
{27} Second.... Refusing to work for any master or person, that should employ
any journeymen who infringed the said law.
{28} Third.... Preventing by threats, menaces, or other injuries, any other
workmen from working for such master.
{29} I shall consider these two subjects together. Is there the slightest
evidence, that the defendants ever compelled a single journeyman to leave this
employer? How did they compel? Did they use any violence? If they had, they were
subject to the laws and might have been individually punished for it. But neither
violence, threats, nor menaces, were used.... No man was the object of force or
compulsion.... The very head and font of their offending was their refusing to work
for any master who employed such journeymen as infringed the rules of the society
to which they belonged.
{30} This I deny to be an offence. There is no crime in my refusing to work
with a man who is not of the same association with myself. Supposing the ground of
my refusal to be ever so unreasonable or ridiculous ... to be in reality, mere caprice or
whim.... Still it is no crime.... The motive for my refusal may be illiberal, but it
furnishes no legal foundation for a prosecution: I cannot be indicted for it. Every man
may chuse his company, or refuse to associate with any one whose company may be
disagreeable to him, without being obliged to give a reason for it: and without
violating the laws of the land....
{31} I will conclude this part of my argument, with the remarks of a very
sensible and judicious writer, which are so apposite to the subject before you, that I
think it right to submit them to your consideration. 1. Smith’s Wealth of Nations, page
89:

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“Workmen desire to get as much, masters to give as little, as possible. The
former are disposed to combine in order to raise, the latter in order to lower.
It is not, however, difficult to foresee which of the two parties must, upon
all ordinary occasions, have the advantage in the dispute, and force the other
into a compliance with their terms. The masters being fewer in number, can
combine much more easily; and the law, besides, authorises, or at least does
not prohibit their combinations, while it prohibits those of the workmen. We
have no acts of parliament against combining to lower the price of work; but
many against combining to raise it. In all such disputes the masters can hold
out much longer. A landlord, a farmer, a master manufacturer, or merchant,
though they did not employ a single workman, could generally live a year or
two upon the stocks which they have already acquired. Many workmen
could not subsist a week, few could subsist a month, and scarce any a year
without employment. In the long run, the workman may be as necessary to
his master, as his master is to him; but the necessity is not so immediate.
We rarely hear, it has been said, of the combinations of masters; though
frequently of those of workmen. But whoever imagines, upon this account,
that masters rarely combine, is as ignorant of the world as the subject.
Masters are always and every where in a sort of tacit, but constant and
uniform combination, not to raise the wages of labour above their actual
rate. To violate this combination is every where a most unpopular action,
and a sort of reproach to a master among his neighbours and equals. We
seldom, indeed, hear of this combination, because it is the usual, and one
may say, the natural state of things, which nobody ever hears of. Masters,
too, sometimes enter into particular combinations to sink the wages of
labour below this rate. These are always conducted with the utmost silence
and secrecy, till the moment of execution, and when the workmen yield, as
they sometimes do, without resistance, though severely felt by them, they are
never heard of by other people.”b

{Immediately following this passage, Adam Smith wrote the following, which is
as true today as it was in 1776.
b

"Such combinations, however, are frequently resisted by a contrary defensive
combination of the workmen; who sometimes too, without any provocation of this
kind, combine of their own accord to raise the price of their labour. Their usual
pretences are, sometimes the high price of provisions; sometimes the great profit
which their masters make by their work. But whether their combinations be
offensive or defensive, they are always abundantly heard of. In order to bring the
point to a speedy decision, they have always recourse to the loudest clamour, and
sometimes to the most shocking violence and outrage. They are desperate, and act
with the folly and extravagance of desperate men, who must either starve, or
frighten their master into an immediate compliance with their demands. The
masters upon these occasions are just as clamorous upon the other side, and never
cease to call aloud for the assistance of the civil magistrate {i.e., police and judges},
and the rigorous execution of those laws which have been enacted with so much

(continued...)

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{32} I feel for the situation of the court and jury, occasioned by the length of
this trial; but particularly for the gentleman who is still indisposed: I will, therefore,
be as short as possible in what I have to add. I had reached that part of my subject,
which relates to the law of the case, and on which this prosecution is said to be
grounded. 1. Hawk. p. 348, “to prejudice a third person ... to impoverish him is
criminal in a confederacy.” This comes within the meaning of the rule. I was willing
to admit, that a conspiracy to do an illegal act was criminal. To prejudice or
impoverish a third person, would be immoral and wicked in an individual, therefore,
in more. But there are many acts of an individual which may, in their effects,
prejudice another, which are not unlawful or indictable. For instance, there is a house
not far distant from us, which is situated between a blacksmith’s and tallow-chandler’s
shop; the tenants suffer great inconvenience from the smoke and smell. These shops
also prejudice the owner, for he cannot obtain so high a rent for his house, as if they
were removed. The workmen employed in them, therefore, occasion a very serious
inconvenience to a third person; but who can think them criminal? And yet, according
to the doctrine contended for, when carried to its full extent, if each of these shops
belonged to a society, the individuals who composed it might be indicted for a
conspiracy to prejudice and impoverish a third person, and be punished by fine and
imprisonment at the discretion of the court. A man has a right to refuse to work or
associate with another; if he refuse, it may operate an injury to the employer, but he
is not answerable for that injury.
{33} ... If this be correct, what are all your town meetings, your ward
committees, and your associations to support particular candidates for office? These
are combinations to maintain one another in very important matters: but, if the
authority cited, be law here, they are illegal ... you must discontinue them, or you
render yourselves liable to an indictment for a conspiracy: they are all, all unlawful.
{34} It is lawful for a man to improve himself in any art or science, but he
must not join with others for the purpose. What then becomes of the numerous

b

(...continued)

severity against the combinations of servants, labourers, and journeymen. The
workmen, accordingly, very seldom derive any advantage from the violence of
those tumultuous combinations, which, partly from the interposition of the civil
magistrate, partly from the superior steadiness of the masters, partly from the
necessity which the greater part of the workmen are under of submitting for the sake
of present subsistence, generally end in nothing, but the punishment or ruin of the
ringleaders."

Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, v. I, pp. 84-85
(Oxford U. Press, 1976). }

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literary associations which do so much honor to Philadelphia? What fate awaits the
academy of fine arts, of which the learned counsel is so zealous and useful a member?
{35} It is an act of virtue to assist the poor; but to unite with others for the
purpose is criminal. What then are all your charitable and benevolent societies, but
unlawful combinations, and punishable by this law?
{36} It is lawful for a man to be active in the promotion and encouragement
of trade, manufactures, and agriculture; but a society formed for the purpose, becomes
a wicked and unlawful confederacy. Your Chamber of Commerce must therefore be
closed, and your manufacturing and agricultural societies be dissolved.
{37} Our constitution says that “the citizens have a right in a peaceable
manner to assemble together for the common good.” If the manner, therefore, in
which the defendants met for the purpose of their association was peaceable, it
completely destroys the foundation of the present prosecution.
Mr. RODNEY {for the defense}
{38} It is nothing more or less than this, whether the wealthy master
shoemakers of this populous and flourishing city, shall charge you and me what price
they please for our boots and shoes, and at the same time have the privilege of fixing
the wages of the poor journeymen they happen to employ. They may color it as they
please. I care not what complection they give it, or in what specious garb they may
array it, the simple and naked question is that which I have stated.
{39} You are called to decide for the first time, in this free country, and to fix
the precedent, in favour of the doctrine contained in this indictment. The prosecutors,c
not content with building costly mansions, rapidly amassing fortunes, aspire to lay up
their plums annually, and they will do it, if you once give them the privilege of fixing
the prices of those who are to work for them; to discover all this does not require day
light; a candle, wax taper, or a lantern will be sufficient for the purpose.
{40} Let the jury take out the book of the masters’ society, and they will find
ample powers vested in them to regulate and fix the prices of the different articles of
their trade; and to form a league to reduce the wages of their journeymen. The 5th
article of their constitution, declares, that after thirty members have subscribed, none
shall be admitted who offers any boots or shoes for sale in the public market, or who
advertises the price of their articles in the public newspapers. Where is the harm of
c

{Rather than an officer of government like the district attorney, the prosecutors of
this case were the master shoemakers. — ed.}

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advertising the price of boots and shoes? It is a masonic secret, they will not submit
it to vulgar inspection.... Another article of the society of the 13th of April 1789,
declares that the society shall consult together for the general “good of the trade, &c.”
... What language can be more comprehensive or expressive than this? Within its
capacious grasp there is no object! no subject of their professional interest which may
not be fairly included!
{41} If it is for the general good of the trade, to raise the price of boots half a
dollar a pair, and to reduce, at the same time, the journeymen’s wages for making
them, the other half dollar a pair, about which you find they have no squeamishness,
this clause would authorize them to do it.... It is for the good of the trade and not for
the good of the public that they associated.
{42} My word for it, this indictment has not originated from motives of
friendship for us, nor is it thus zealously supported with a view to our interest or that
of their customers. The very endeavor to impose such a belief upon you, must prove
vain and fatal to their cause. Their attempt to mask their object, which they would
blush to reveal; and to cover their selfish views, with the mantle of pure friendship for
us; and sincere attachment to our interests; and of genuine patriotism, cannot succeed!
This idle parade of merit on their part, and these hollow, empty pretensions to credit,
for the disinterestedness of their conduct, will meet that fate, which they so justly
deserve. This masked battery, which they have opened on us, will be turned by the
jury on themselves.
...
Recorder LEVY {Judge, charging the jury}d
...
{43} No matter what their motives were, whether to resist the supposed
oppression of their masters, or to insist upon extravagant compensation. No matter
whether this prosecution originated from motives of public good or private interest,
the question is, whether the defendants are guilty of the offences charged against
them? A great part of the crimes prosecuted to trial in this court, are brought forward,
I believe, from improper motives: for example, the prosecutions against tippling
houses are generally occasioned by a difference taking place between the buyer and
the seller, when the one is nearly as much in fault as the other. In the case of the crime
of treason, it is often one of the parties who impeaches the other, and a quarrel about
the felonious booty often leads to the detection of the thief. If the defendants are
d

{The order of some of the paragraphs has been changed. — ed.}

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guilty of the crime, no matter whether the prosecutor brings his action from motives
of public good, or private resentment. The prosecutors are not on their trial, if they
have proved the offence, alleged in the indictment against the defendants; and if the
defendants are guilty, will any man say, that they ought not to be convicted: because
the prosecution was not founded in motives of patriotism? Certainly the only question
is, whether they are guilty or innocent. If they are guilty and were possessed of nine
tenths of the soil of the whole United States, and the patronage of the union, it is the
bounden duty of the jury to declare their guilt....
{44} What are the offences alleged against them? They are contained in the
charges of the indictment.
[Here he recited from the indictment the first and second counts.]
{45} These are the questions for our consideration, and it lies with you to
determine how far the evidence supports the charges, and how the principles of the
law bear upon them.
{46.1} It is proper to consider, is such a combination consistent with the
principles of our law, {or} injurious to the public welfare? The usual means by which
the prices of work are regulated, are the demand for the article and the excellence of
its fabric. Where the work is well done, and the demand is considerable, the prices
will necessarily be high. Where the work is ill done, and the demand is
inconsiderable, they will unquestionably be low. If there are many to consume, and
few to work, the price of the article will be high: but if there are few to consume, and
many to work, the article must be low. Much will depend too, upon these
circumstances, whether the materials are plenty or scarce; the price of the commodity,
will in consequence be higher or lower. These are the means by which prices are
regulated in the natural course of things. To make an artificial regulation, is not to
regard the excellence of the work or quality of the material, but to fix a positive and
arbitrary price, governed by no standard, controuled by no impartial person, but
dependent on the will of the few who are interested; this is the unnatural way of
raising the price of goods or work. This is independent of the number of customers,
or of the quality of the material, or of the number who are to do the work. It is an
unnatural, artificial means of raising the price of work beyond its standard, and taking
an undue advantage of the public.
{46.2} Is the rule of law bottomed upon such principles, as to permit or protect
such conduct? Consider it on the footing of the general commerce of the city. Is there
any man who can calculate (if this is tolerated) at what price he may safely contract
to deliver articles, for which he may receive orders, if he is to be regulated by the
journeymen in an arbitrary jump from one price to another? It renders it impossible

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for a man, making a contract for a large quantity of such goods, to know whether he
shall lose or gain by it. If he makes a large contract for goods to-day, for delivery at
three, six, or nine months hence, can he calculate what the prices will be then, if the
journeymen in the intermediate time, are permitted to meet and raise their prices,
according to their caprice or pleasure? Can he fix the price of his commodity for a
future day? It is impossible that any man can carry on commerce in this way. There
cannot be a large contract entered into, but what the contractor will make at his peril.
He may be ruined by the difference of prices made by the journeymen in the
intermediate time.
{46.3} What then is the operation of this kind of conduct upon the commerce
of the city? It exposes it to inconveniences, if not to ruin; therefore, it is against the
public welfare.
{46.5} Consider these circumstances as they affect trade generally. Does this
measure tend to make good workmen? No: it puts the botch incapable of doing justice
to his work, on a level with the best tradesman. The master must give the same wages
to each. Such a practice would take away all the excitement to excel in workmanship
or industry.
{46.6} Consider the effect it would have upon the whole community. If the
masters say they will not sell under certain prices, as the journeymen declare they will
not work at certain wages, they, if persisted in, would put the whole body of the
people into their power. Shoes and boots are articles of the first necessity. If they
could stand out three or four weeks in winter, they might raise the price of boots to
thirty, forty, or fifty dollars a pair, at least for some time, and until a competent supply
could be got from other places. In every point of view, this measure is pregnant with
public mischief and private injury ... tends to demoralize the workmen ... destroy the
trade of the city, and leaves the pockets of the whole community to the discretion of
the concerned. If these evils were unprovided for by the law now existing, it would
be necessary that laws should be made to restrain them.
{47} What has been the conduct of the defendants in this instance? They
belong to an association, the object of which is, that every person who follows the
trade of a journeyman shoemaker, must be a member of their body. The apprentice
immediately upon becoming free, and the journeyman who comes here from distant
places, are all considered members of this institution. If they do not join the body, a
term of reproach is fixed upon them. The members of the body will not work with
them, and they refuse to board or lodge with them. The consequence is, that every one
is compelled to join the society. It is in evidence, that the defendants in this action all
took a part in the last attempt to raise their wages.... Keimer was their secretary, and
the others were employed in giving notice, and were of the tramping committee. If

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the purpose of the association is well understood, it will be found they leave no
individual at liberty to join the society or reject it. They compel him to become a
member. Is there any reason to suppose that the laws are not competent to redress an
evil of this magnitude? The laws of this society are grievous to those not inclined to
become members ... they are injurious to the community, but they are not the law of
Pennsylvania. We live in a community, where the people in their collective capacity
give the first momentum, and their representatives pass laws on circumstances, and
occasions, which require their interference, as they arise.
{46.4} How does it operate upon {other workers}? We see that those who
are in indigent circumstances, and who have families to maintain, and who get their
bread by their daily labour, have declared here upon oath, that it was impossible for
them to hold out; the masters might do it, but they could not: and it has been admitted
by the witnesses for the defendants, that such persons, however sharp and pressing
their necessities, were obliged to stand to the turn-out, or never afterwards to be
employed. They were interdicted from all business in future, if they did not continue
to persevere in the measures, taken by the journeymen shoemakers. Can such a
regulation be just and proper? Does it not tend to involve necessitous men in the
commission of crimes? If they are prevented from working for six weeks, it might
induce those who are thus idle, and have not the means of maintenance, to take other
courses for the support of their wives and children. It might lead them to procure it
by crimes—by burglary, larceny, or highway robbery! A father cannot stand by and
see, without agony, his children suffer; if he does, he is an inhuman monster; he will
be driven to seek bread for them, either by crime, by beggary, or a removal from the
city.
...
{48} ... {The law} says there may be cases in which what one man may do
without offence, many combined may not do with impunity. It distinguishes between
the object so aimed at in different transactions. If the purpose to be obtained, be an
object of individual interest, it may be fairly attempted by an individual.... Many are
prohibited from combining for the attainment of it.
{49} What is the case now before us? ... A combination of workmen to raise
their wages may be considered in a two fold point of view: one is to benefit
themselves ... the other is to injure those who do not join their society. The rule of law
condemns both. If the rule be clear, we are bound to conform to it even though we do
not comprehend the principle upon which it is founded. We are not to reject it
because we do not see the reason of it. It is enough, that it is the will of the majority.
It is law because it is their will — if it is law, there may be good reasons for it though
we cannot find them out. But the rule in this case is pregnant with sound sense and

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xx

all the authorities are clear upon the subject. Hawkins, the greatest authority on the
criminal law, has laid it down, that a combination to maintain one another, carrying
a particular object, whether true or false, is criminal ... the authority cited from 8 Mod.
Rep. does not rest merely upon the reputation of that book. He gives you other
authorities to which he refers. It is adopted by Blackstone, and laid down as the law
by Lord Mansfield 1793, that an act innocent in an individual, is rendered criminal by
a confederacy to effect it.
{50} In the profound system of law (if we may compare small things with
great), as in the profound systems of Providence ... there is often great reason for an
institution, though a superficial observer may not be able to discover it. Obedience
alone is required in the present case, the reason may be this. One man determines not
to work under a certain price and it may be individually the opinion of all: in such a
case it would be lawful in each to refuse to do so, for if each stands, alone, either may
extract from his determination when he pleases. In the turn-out of last fall, if each
member of the body had stood alone, fettered by no promises to the rest, many of them
might have changed their opinion as to the price of wages and gone to work; but it has
been given to you in evidence, that they were bound down by their agreement, and
pledged by mutual engagements, to persist in it, however contrary to their own
judgment. The continuance in improper conduct may therefore well be attributed to
the combination. The good sense of those individuals was prevented by this
agreement, from having its free exercise.
{51.1} Considering it in this point of view, let us take a look at the cases
which have been compared to this by the defendants' counsel. Is this like the
formation of a society for the promotion of the general welfare of the community, such
as to advance the interests of religion, or to accomplish acts of charity and
benevolence? Is it like the society for extinguishing fires? or those for the promotion
of literature and the fine arts, or the meeting of the city wards to nominate candidates
for the legislature or the executive? These are for the benefit of third persons; {in
contrast, the defendants'} society ... {seeks} to promote the selfish purposes of the
members. The mere mention of them is an answer to all, that has been said on that
point. There is no comparison between the two; they are as distinct as light and
darkness. How can these cases be considered on an equal footing?
{51.2} The journeymen shoemakers have not asked an encreased price of work
for an individual of their body; but they say that no one shall work, unless he receives
the wages they have fixed. They could not go farther than saying, no one should work
unless they all got the wages demanded by the majority; is this freedom? Is it not
restraining, instead of promoting, the spirit of '76 when men expected to have no law
but the Constitution, and laws adopted by it or enacted by the legislature in conformity
to it? Was it the spirit of '76, that either masters or journeymen, in regulating the

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prices of their commodities should set up a rule contrary to the law of their country?
General and individual liberty was the spirit of '76. It is our first blessing. It has been
obtained and will be maintained ... we will not leave it to follow an ignus fatius {will
o' the wisp}, calculated only to mislead our judgment. It is not a question, whether we
shall have an imperium in imperio {state within a state}, whether we shall have,
besides our state legislature a new legislature consisting of journeymen shoemakers.
It is of no consequence, whether the prosecutors are two or three, or whether the
defendants are ten thousand, their numbers are not to prevent the execution of our
laws.... Though we acknowledge it is the hard hand of labour that promises the wealth
of a nation, though we acknowledge the usefulness of such a large body of tradesmen
and agree they should have every thing to which they are legally entitled; yet we
conceive they ought to ask nothing more. They should neither be the slaves nor the
governors of the community.
....
{The jury convicted the defendants, and they were fined eight dollars each plus
court costs.}

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The Philadelphia Cordwainers Case
COMMENT

The central issue in the case, though not stated
baldly, was whether unions are legitimate organizations.
This issue is not settled in the minds of many Americans
today.
Recorder (judge) Levy had a theory of economics. He
believed in the identity of interest among the principal
actors in a capitalist economy, that is, among employers,
non-union workers, and consumers; and he believed that
this interest was opposed to the interest of union
members.
Such beliefs are held by many people today.
Yet Levy did not subscribe to the school of classical
economics that was emerging; a genuinely laissez faire
philosophy requires that the government leave unions
alone. (Nor do many of today's conservatives, who want
to preserve regulation of unions.)
Levy paid no heed to Adam Smith's insight that
accumulation of capital gives employers great power over
workers, or he thought that such power was wholly
legitimate. Many agree with this view today, but many
disagree.
Levy also believed that unions were undemocratic
because they exerted influence over workers, and this
power was in his mind illegitimate. Unions do influence
workers' lives, and the appropriate degree of union power
is a contested issue today.
There is some question whether Levy correctly
interpreted the law. The first question he faced was,
what is the source of law? In particular, was the common
law of England part of American law after the Revolution?
In general, the answer was yes. Two (of many) reasons
may be suggested to explain this fact. First, up to the
Revolution, colonial law was in fact English law.
Colonial judges and lawyers were familiar with English
law; indeed, it was the only law they knew. Second, the
colonials respected and valued English law. One of the
causes of the Revolution was the colonials' belief that
they were being denied the legal rights of Englishmen.
The cry, "No taxation without representation," meant that
the residents of England were not taxed without the
agreement of their representatives in Parliament, and the
colonials demanded the same right.
This demand, of

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course, implied a fundamental acceptance of English
political institutions.
Connected with respect for
English political institutions was respect for English
economic institutions. England industrialized before the
Colonies did and quite naturally served as a model for
young America.
While reserving the right to adapt
English law to American conditions, American judges
followed English precedents because the results they had
produced in England were satisfactory.
Respect for
English political and economic institutions led to
respect for English legal institutions.
Believing that English law was incorporated into
American law, Levy faced a second question: What is the
law of criminal conspiracy? Was it a crime for workers
to strike? The answer to this question is unclear. Some
scholars argue that Levy misinterpreted the law; other
scholars argue that he read the law correctly. Without
entering this debate, we may note that the law was
ambiguous enough (and the arguments of the defendants'
lawyers were strong enough) that Levy could have found
the law to favor the workers if he had wanted to.
Whether or not Levy stated the law correctly, he
stated the law in a way that would be convincing to the
jury. Why should a judge have to convince a jury about
the law?
In those days, juries had much more power than
they have today, for juries used to decide not only the
facts of a case, but also the law. This fact explains
why the lawyers in the Philadelphia Cordwainers case
argued about the law to the jury. Recorder Levy told the
jury what he thought the law was, but the jury was free
to
reject
his
view
and
accept
the
defendants'
interpretation. Therefore, Levy's statement reveals what
he thought would be convincing to a jury of American shop
keepers. And because they convicted the defendants, we
may assume the jury liked the law as Levy stated it. It
is likely, then, that the jury shared Levy's beliefs
about economics and unions.
In "The First American Labor Case," 41 YALE LAW JOURNAL
165 (1931), Walter Nelles argues that the Philadelphia
Cordwainers case reveals a conflict of ideologies that
continue to compete for our allegiance.
However, the
implications of the ideologies on specific issues have
changed to some extent.

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The Philadelphia Cordwainers Case

Disciples of Alexander Hamilton (known as Tories)
believed that wealth is the principal element of human
welfare and that increasing wealth is desirable. It is
true that, as wealth increases, its distribution becomes
less even; that is, the gap between rich and poor widens.
But for Hamiltonians, wealth is good, and the abilities
to create and accumulate wealth are also good. Those who
become wealthy are those with more ability; this ability
is good; and it follows that the wealthy deserve their
exalted status. But, as Hamiltonians were quick to point
out, this process is not harmful to the poor. They may
have less ability to create and accumulate wealth and
are, therefore, inferior to wealthy people; but the poor
in a rich society are, in absolute terms, better off than
they would be in a poor society. The poorest person in
Ithaca is far richer than one's counterpart in Bolivia,
Liberia, or India; the average American lives a better
life in material terms than the greatest kings of the
past.
Thus, the welfare of the poor depends on the
welfare of the rich. (In the parlance of Ronald Reagan,
this is the trickle down theory; or, as John Kennedy
said, a rising tide lifts all ships.)
Applying this ideology to specific issues, we find
that the Hamiltonians favored an active government that
would promote the growth of manufacturing. They opposed
the growth of unions, which subtracted from the power of
capitalists. It should not surprise the reader to learn
that the jury that convicted the Philadelphia cordwainers
was composed of petty bourgeois, that is, shop keepers,
who subscribed to the Hamiltonian ideology.
In contrast, disciples of Thomas Jefferson (called
Whigs) believed that wealth was only one element of human
welfare. Jeffersonians were strong individualists; they
opposed efforts by the government to restrict individual
liberty.
But Jeffersonians also believed that the
various elements of human welfare must be kept in
balance, and, if one grows out of proportion and becomes
harmful, it must be cut back. Thus, manufacturing may
add to wealth, but it could be restricted, or even
outlawed, because of its effects on individual workers.
The ideal citizens in Jeffersonian ideology were the
individual farmer and the master craft worker because
they worked, not solely for money, but also for personal
satisfaction; their labor remained creative. (Karl Marx
made the same point.) Further, Jeffersonians believed

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xxv

that freedom in America depended on substantial equality
of citizens; among equal individuals, competition is
possible because no one is strong enough to destroy the
others. But if the disparity of power became too great
(in
other
words,
if
wealth
accumulated
in
the
manufacturing classes), the government could properly
intervene to restore balance.
Applying this ideology to specific issues, we find
that the Jeffersonians took a laissez-faire approach to
the economy; the government should not act to encourage
the growth of manufacturing.
Jeffersonians were
sympathetic to labor unions, which were necessary to give
workers a sense of individual dignity and to counterbalance the power that accumulation of capital conferred
on employers.
Today's liberals and conservatives have scrambled
the ideologies of the Founders. Modern conservatives,
like Hamiltonians, favor the interests of capital and
employers, but, like Jeffersonians, preach individualism
and laissez faire. Modern liberals, like Jeffersonians,
lean towards the interests of unions and individual
consumers, but, like Hamiltonians, favor an active
government. The student may decide for oneself whether
the political and economic philosophies of the Founders
were more coherent than the philosophies of today are.
"That which hath been is that which shall be;
"And that which hath been done is that which
shall be done;
"And there is nothing new under the sun. "

Ecclesiastes i.9.
QUESTIONS FOR REFLECTION
1. Does the outcome of the Philadelphia Cordwainers
case seem consistent with the colonial labor practices,
or does the case mark a change in attitudes?
2. The prosecution argues that a conspiracy of
bakers to raise the price of bread would be illegal, and,
therefore, a conspiracy to raise the price of labor is
also illegal (see ¶ 13). This argument treats labor as
an article of commerce. Should labor be regarded as an
article of commerce?

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3. Recorder Levy told the jury that sometimes a
group may not do what an individual may do (see ¶ 48).
Should he have stated a standard for distinguishing
between cases in which persons may act in combination and
cases in which persons may not act in combination? What
value would such a standard have? Should we insist that
judges state standards in cases like this one?
(In fairness to Recorder Levy, we must add that he
did note that the defendants drew analogies to a
religious society that expels members who marry outside
the religion, to a fire brigade, to a literary society,
and to a nominating committee in a city ward. Levy said
these analogies were improper because the societies
existed to benefit third persons, whereas the union
existed to benefit only its own members (see ¶ 51). This
may have been Levy's attempt to state a standard. If so,
it was at best partially successful. The standard works
in the case of a fire brigade, which is truly altruistic.
The standard does not work as well in the cases of
religious societies, literary societies, and ward
nominating committees (nascent political parties), which
seem to serve primarily the interests of their own
members, not third persons.)
4. Was Recorder Levy's charge to the jury based
solely on the law? If not, what other beliefs influenced
him? Is it proper for judges to be influenced by such
beliefs?
5. Recorder Levy spoke at some length on the duty of
jurors to accept and enforce the law (see ¶¶ 49-50).
Perhaps he feared "jury nullification," in which juries
ignore a law which they think will produce an unjust
result. Should a jury have this right?
6. Should illegal behavior by one person excuse
illegal behavior by another?
EXERCISES
1. Here is an excerpt from ¶ 46.6:
"Consider the effect it would have upon the
whole community. If the masters say they will
not sell under certain prices, as the
journeymen declare they will not work at

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xxvii

certain wages, they, if persisted in, would put
the whole body of the people into their power.
Shoes and boots are articles of the first
necessity. If they could stand out three or
four weeks in winter, they might raise the
price of boots to thirty, forty, or fifty
dollars a pair, at least for some time, and
until a competent supply could be got from
other places."
Paraphrase this argument in your own words.
a virtue.

Brevity is

2. Here is an excerpt from ¶ 49:
"If the rule be clear, we are bound to conform
to it even though we do not comprehend the
principle upon which it is founded. We are not
to reject it because we do not see the reason
of it. It is enough, that it is the will of
the majority. It is law because it is their
will — if it is law, there may be good reasons
for it though we cannot find them out."
Paraphrase this argument in your own words.
a virtue.

Brevity is

3. Here is an excerpt from ¶ 51.1:
{51.1} Considering it in this point of view,
let us take a look at the cases which have been
compared to this by the defendants' counsel.
Is this like the formation of a society for the
promotion of the general welfare of the
community, such as to advance the interests of
religion, or to accomplish acts of charity and
benevolence?
Is it like the society for
extinguishing fires? or those for the promotion
of literature and the fine arts, or the meeting
of the city wards to nominate candidates for
the legislature or the executive? These are
for the benefit of third persons;
{in
contrast, the defendants'} society ... {seeks}
to promote the selfish purposes of the members.
The mere mention of them is an answer to all,
that has been said on that point. There is no
comparison between the two; they are as

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The Philadelphia Cordwainers Case
distinct as light and darkness. How can these
cases be considered on an equal footing?"

Paraphrase this argument in your own words.
a virtue.

Ù

Brevity is

Labor and Employment Law

52

The Strike as a Criminal Conspiracy (continued)
MID-NINETEENTH CENTURY

Introduction
The facts of the following case, Commonwealth v.
Hunt, are similar to the preceding case, the Philadelphia
Cordwainers case.
In both cases, the defendants were
union members who sought to improve their wages and
working conditions by enforcing the closed shop, which is
a shop in which only members in good standing of the
union are allowed to work; and in both cases, the
defendants were charged with the crime of criminal
conspiracy.
But whereas the Philadelphia Cordwainers
case placed about equal emphasis on harm to the economy
and harm to non-members of the union, the Hunt case
emphasized only harm to non-members.
The indictment in Hunt contained three counts of
conspiracy; that is, the prosecution alleged that the
defendants had committed three separate crimes:
I.

The first count was that the defendants
conspired to form a union and agreed that no
member would work for an employer who also
hired non-members.

II.

The second count was that the defendants
conspired to force an employer to discharge a
non-member named Jeremiah Horne.

III. The third count was that the defendants
conspired
to
impoverish
Mr.
Horne
by
preventing him from practicing his trade.

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Commonwealth v. Hunt

The trial court convicted the defendants on all
three counts. They appealed, arguing that what they had
done was not a crime.
The student should try to infer from the opinion the
elements of a conspiracy, that is, the facts which the
prosecution must prove to convict the defendants. In
addition, the student should attempt to identify the
issue that each argument addresses.

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iii

Commonwealth v. Hunt
45 Mass. 111 (1842)

SHAW, C. J.
...
{1} ... {A} conspiracy must be a combination of two or more persons, by
some concerted action, to accomplish some criminal or unlawful purpose, or to
accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful
means....
...
{2} ... {I}t appears to us ... necessary ... that when the criminality of a
conspiracy consists in an unlawful agreement of two or more persons to compass or
promote some criminal or illegal purpose, that purpose must be fully and clearly
stated in the indictment; and if the criminality of the offence ... consists in the
agreement to compass or promote some purpose, not of itself criminal or unlawful,
by the use of fraud, force, falsehood, or other criminal or unlawful means, such
intended use of fraud, force, falsehood, or other criminal or unlawful means, must be
set out in the indictment....
{3} With these general views of the law, it becomes necessary to consider the
circumstances of the present case ....
...
{First Count of the Indictment}
{4} The first count {of the indictment} set forth that the defendants ... being
workmen and journeymen in the ... occupation of bootmakers ... formed themselves
into a society, and agreed not to work for any person who should employ any
journeyman or other person {who was} not a member of such society....
{5} The manifest intent of the association is to induce all those engaged in
the same occupation to become members of it. Such a purpose is not unlawful. It
would give them a power which might be exerted for useful and honorable purposes,
or for dangerous and pernicious ones. If the latter were the real and actual object, ...
it should have been specially charged. Such an association might be used to afford
each other assistance in times of poverty, sickness and distress; or to raise their
intellectual, moral and social condition; or to make improvement in their art; or for

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Commonwealth v. Hunt

other proper purposes. Or the association might be designed for purposes of
oppression and injustice. But in order to charge all those who become members of
an association with the guilt of a criminal conspiracy, it must be averred and proved
that the actual, if not the avowed, object of the association, was criminal. An
association may be formed, the declared objects of which are innocent and laudable,
and yet they may have secret articles, or an agreement communicated only to the
members, by which they are banded together for purposes injurious to the peace of
society or the rights of its members. Such would undoubtedly be a criminal
conspiracy, on proof of the fact, however meritorious and praiseworthy the declared
objects might be. The law is not to be hoodwinked by colorable pretences. It looks
at truth and reality, through whatever disguise it may assume. But to make such an
association, ostensibly innocent, the subject of prosecution as a criminal conspiracy,
the secret agreement which makes it so is to be averred and proved as the gist of the
offence. {Or} when an association is formed for purposes actually innocent, and
afterwards its powers are abused, by those who have the control and management of
it, to purposes of oppression and injustice, it will be criminal in those who thus
misuse it, or give consent thereto, but not in the other members of the association. In
this case, no such secret agreement, varying the objects of the association from those
avowed, is set forth in this count of the indictment.
{6} Nor can we perceive that the objects of this association, whatever they
may have been, were to be attained by criminal means. The means which they
proposed to employ, as averred in this count, ... were, that they would not work for
a person, who, after due notice, should employ a journeyman not a member of their
society. Supposing the object of the association to be laudable and lawful, or at least
not unlawful, are these means criminal? The case supposes that these persons are not
bound by contract, but free to work for whom they please, or not to work, if they so
prefer. In this state of things, we cannot perceive that it is criminal for men to agree
together to exercise their own acknowledged rights, in such a manner as best to
subserve their own interests. One way to test this is to consider the effect of such an
agreement where the object of the association is acknowledged on all hands to be a
laudable one. Suppose a class of workmen, impressed with the manifold evils of
intemperance, should agree with each other not to work in a shop in which ardent
spirit was furnished, or not to work in a shop with any one who used it, or not to
work for an employer, who should, after notice, employ a journeyman who habitually
used it. The consequences might be the same. A workman who should still persist
in the use of ardent spirit would find it more difficult to get employment; a master
employing such a one might, at times, experience inconvenience in his work in losing
the services of a skillful but intemperate workman. Still, it seems to us that as the
object would be lawful, and the means not unlawful, such an agreement could not be
pronounced a criminal conspiracy.

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Commonwealth v. Hunt

v

{7} From this count in the indictment, we do not understand that the
agreement was that the defendants would refuse to work for an employer, to whom
they were bound by contract for a certain time, in violation of that contract; nor that
they would insist that an employer should discharge a workman engaged by contract
for a certain time in violation of such contract....
{Second Count of the Indictment}
{8} The second count ... alleges that the defendants ... did ... conspire ... and
agree together not to work for any master or person who should employ any workman
... who should break any of {the} by-laws {of their society}, unless such workmen
should pay to {the society} such {fines} as should be agreed upon as a penalty for the
breach of {the bylaws}, and that by means of {this} conspiracy they did compel one
Isaac B. Wait, a master cordwainer, to turn out of his employ {i.e., to discharge} one
Jeremiah Horne, a journeyman boot-maker.... {This} is simply an averment of an
agreement amongst themselves not to work for a person who should employ any
person not a member of a certain association. It sets forth no illegal or criminal
purpose to be accomplished, nor any illegal or criminal means to be adopted for the
accomplishment of any purpose. It was an agreement, as to the manner in which they
would exercise an acknowledged right to contract with others for their labor. It does
not aver a conspiracy or even an intention to raise their wages ....
...
{9} ... If, for instance, the indictment had averred a conspiracy by the
defendants to compel Wait to turn Horne out of his employment, and to accomplish
that object by the use of force or fraud, it would have been a very different case;
especially if it might be fairly construed ... that Wait was under obligation, by
contract for an unexpired term of time, to employ and pay Horne.... To mark the
difference between the case of a journeyman or a servant and {one's} master {who
are} mutually bound by contract, and the {case of the} same parties when free to
engage anew, I should have before cited the case of the Boston Glass Co. v. Binney,
4 Pick. 425. In that case, it was held actionable to entice another person's hired
servant to quit his employment, during the time for which he was engaged {by
contract}; but not actionable to treat with such hired servant, whilst actually hired
and employed by another, to leave his service and engage in the employment of the
person making the proposal when the term for which he is engaged shall expire. It
acknowledges the established principle that every free man, whether skilled laborer,
mechanic, farmer or domestic servant, may work or not work ... with any company
or individual, at his own option, except so far as he is bound by contract. But
whatever might be the force of the word "compel" {in the indictment} ... it is
disarmed and rendered harmless by the precise statement of the means by which such

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compulsion was to be effected. It was the agreement not to work for him, by which
they compelled Wait to decline employing Horne longer....
{Third Count of the Indictment}
{10} The third count, reciting a wicked and unlawful intent to impoverish one
Jeremiah Horne and hinder him from following his trade as a boot-maker, charges
the defendants ... with an unlawful conspiracy by wrongful ... means to impoverish
said Horne and to deprive and hinder him from his ... trade and getting his support
thereby, and that, in pursuance of said unlawful combination, they did unlawfully ...
hinder and prevent ... and greatly impoverish him.
{11} If the fact of depriving Jeremiah Horne of the profits of his business, by
whatever means it might be done, would be unlawful and criminal, a combination to
compass that object would be an unlawful conspiracy....
{12} {But s}uppose a baker in a small village had the exclusive custom of his
neighborhood and was making large profits by the sale of his bread. Supposing a
number of those neighbors, believing the price of his bread too high, should propose
to him to reduce his prices, or if he did not, that they would introduce another baker;
and on his refusal, such other baker should, under their encouragement, set up a rival
establishment and sell his bread at lower prices; the effect would be to diminish the
profit of the former baker and, to the same extent, to impoverish him. And it might
be said and proved that the purpose of the associates was to diminish his profits, and
thus impoverish him, though the ultimate and laudable object of the combination was
to reduce the cost of bread to themselves and their neighbors. The same thing may
be said of all competition in every branch of trade and industry; and yet it is through
that competition that the best interests of trade and industry are promoted. It is
scarcely necessary to allude to the familiar instances of opposition lines of
conveyance, rival hotels, and the thousand other instances where each strives to gain
custom to himself by ingenious improvements, by increased industry, and by all the
means by which he may lessen the price of commodities, and thereby diminish the
profits of others.
{13} We think, therefore, that associations may be entered into, the object of
which is to adopt measures that may have a tendency to impoverish another, that is,
to diminish his gains and profits, and yet so far from being criminal or unlawful, the
object may be highly meritorious and public spirited. The legality of such an
association will therefore depend upon the means to be used for its accomplishment.
If it is to be carried into effect by fair or honorable and lawful means, it is, to say the
least, innocent; if by falsehood or force, it may be stamped with the character of
conspiracy. It follows as a necessary consequence that, if criminal and indictable, it

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is so by reason of the criminal means intended to be employed for its
accomplishment....
...
{The convictions of the defendants were reversed.}

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Commonwealth v. Hunt
COMMENTS

Commonwealth v. Hunt is important because it is one
of the first cases to hold that labor unions are
legitimate associations and not criminal conspiracies.
Courts in other states continued for several years to
convict defendants of joining unions; Hunt did not mark
the turning of the tide.
But it did provide the
intellectual basis, a legal construct, which courts that
wanted to recognize the legitimacy of unions could adopt.
Hunt is important, therefore, because of its
reasoning. The author of the opinion was Chief Justice
Shaw, who was widely respected in his day, and the
elements of his opinion have remained relevant in labor
law.
Three of those elements were the defendants'
purposes or ends, the defendants' means or behaviors, and
the defense of competition.
The Defendants' Purpose
The law has long used an actor's end or purpose as
an element of illegal behavior. If you point a gun at
someone and pull the trigger, with the intent to injure
or kill the person, and the person dies, you are guilty
of first degree murder; and your punishment could be
death.
If you point a gun at someone and pull the
trigger, believing the chamber is empty and intending
only to amuse yourself, but unfortunately the chamber
contains a bullet and the person dies, you are not guilty
of first degree murder; you might be guilty of negligent
homicide, and your punishment (if you were prosecuted at
all) would be a term in jail. Chief Justice Shaw defined
criminal conspiracy to include an element of purpose or
motive.
If the defendants intended to destroy an
employer's business or to impoverish a non-union worker,
their purpose would have been illegal, and they would
have committed a crime. But if the defendants intended
only to improve their own working conditions, their
purpose would have been perfectly lawful.
Purpose is a malleable concept.
This is so for
several reasons. One reason is that a person so often
has more than one purpose in mind, and a judge may choose
any of those purposes, however small a part of the
actor's motivation, and call it "the defendant's
purpose." For example, the purpose of the neighbors in

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ix

Chief Justice Shaw's example was to lower the price of
bread. Let us suppose that they were also angry at the
baker for charging such high prices, and so they had a
secondary purpose, viz., to punish the baker.
The
secondary purpose may have been a minor part of their
motivation, a motive so weak that they would never have
acted on it by itself. Yet a judge could rule that their
act was illegal because they sought to impoverish the
baker.
A second reason that purpose is malleable is that,
although a person may desire a particular result, one
often foresees that another result will probably occur as
well.
The union's purpose in the Hunt case was to
improve the wages and working conditions of the members.
Let us suppose they bore no ill towards Mr. Horne; they
had no desire to prevent him from earning a living, and
certainly no desire to impoverish him. Yet they foresaw
that their refusal to work alongside of him could damage
him economically. A judge could rule that foreseeable
consequences, though not intended, count as purposes: in
which case, the defendants' purpose was to impoverish Mr.
Horne.
A third reason that purpose is malleable is that one
purpose often links to another. The defendants in Hunt
consciously intended —
•
to induce all workers in their trade to join
their society,
•
to adopt rules of the society which members
were supposed to obey,
•
to fine or expel any member who violated the
rules, and
•
to refuse to work in the same shop as a nonmember.
All of these purposes together served another purpose —
•
to protect the defendants' wages and working
conditions.
Assuming that we count foreseeable, albeit unintended,
consequences as purposes, the defendants foresaw the
consequences of the foregoing acts and, therefore, they
also intended —
•
to induce a master like Wait to discharge a
non-member like Horne and
•
to cause economic hardship to the non-member;
or, if the master did not discharge the non-member —
•
to damage the master's business.

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A judge could identify any of these acts as the
defendants' purpose. The student might reply that only
the last act was the defendants' end, and all the
preceding acts were means. But which act was the last?
The last thing the defendants did was to refuse to work
alongside of Horne. Was this refusal their purpose? The
last thing that happened to Horne was that he lost wages
and was impoverished. Was his loss the defendants' last
act? Suppose Wait had refused to discharge Horne, the
defendants had walked out of the shop, and Wait had lost
business. The last thing that happened to Wait would
have been that he lost business.
Was this loss the
defendants' last act?
A fourth reason that purpose is malleable is that a
judge's finding of purpose is practically beyond
challenge. Purpose is a state of mind. Only the actor
knows one's real purpose.
Yet we can hardly trust a
person accused of wrongdoing to state one's true purpose.
We must trust the judge to rule on purpose. If you say
your purpose was this and that, which is a legal one, but
the judge says your purpose was the other thing, which
was an illegal one, no one but you can disagree with the
judge.
When purpose is involved, courts frequently have a
choice, and the characterization they choose may depend
on the result they want in the case. When Nineteenth
Century judges wanted to limit unions by convicting the
defendants, the judges said that the defendants were
seeking to impoverish non-members. Of course, the judges
might honestly have believed they could know the
defendants' true purpose, and perhaps a desire to
restrict union activity and an honest belief about
purpose melded in judges' minds.
In contrast, when
Nineteenth Century judges wanted to recognize unions by
exonerating the defendants, the judges said that the
defendants were seeking to improve wages and working
conditions.
Chief Justice Shaw evidently wanted to
recognize unions, and, therefore, he characterized their
purpose in an acceptable way. He favored competition,
and perhaps this policy influenced how he characterized
the defendants' purpose.
Purpose remains an element of many legal claims
today, and judges are equally able to manipulate their
characterization of purposes.

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xi

The Defendants' Means
Chief Justice Shaw examined not only the purpose or
end of the alleged conspiracy, but also the means adopted
to achieve the end.
He stated that, to establish a
criminal conspiracy, the prosecution had to allege that
either the means or the end was unlawful.
As with
purposes, examining means remains important today.
There is perhaps less room for judicial maneuvering
with regard to means as compared to purposes. The reason
is that means involve actions, which are susceptible of
observation by many persons and, therefore, of more
objectivity. Nevertheless, the characterization of means
can be manipulated. The complaint against the defendants
alleged they had compelled the employer to discharge
Horne. As Shaw noted, the word "compel" is ambiguous.
He said that, if the defendants compelled the employer to
fire Horne by striking until he was discharged, that was
not illegal; but if they compelled the discharge by force
or fraud, that would have been illegal. The conviction
was void, said Shaw, because the complaint failed to
allege unambiguously that the defendants' means were
illegal. Yet, although it was true that the defendants
had not used physical force against Horne, they had used
economic force. Implicitly, therefore, Shaw held that
economic force was not an illegal mean. But if he had
wanted the conviction to stand, he could as easily have
stated that economic force is an illegal mean and,
therefore, it was illegal for the defendants to strike in
order to compel their employer to discharge a fellow
worker. Many other judges adopted such reasoning well
into the Twentieth Century.
Mean or End?
Another way in which means and ends are slippery in
the law is that either can often be characterized as the
other. Shaw wrote in ¶ 5 that the defendants' intent or
end was to induce all bootmakers to join the union. Was
this truly their end? It seems unlikely that their goal
was a society comprising all bootmakers for its own sake.
Was not such a society in fact a mean to their end, which
was to receive more money for their labor? Similarly,
Shaw wrote in ¶ 10 that the third count of the indictment
alleged that the defendants' end was to deprive Horne of
his trade and impoverish him. It is possible that the

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defendants bore Horne malice because he worked for less
than union scale, and so they might have desired to
impoverish him. Yet is it not more likely that depriving
Horne of work was a mean to the end of receiving more
money for their labor? Indeed, is it not possible that
the defendants did not care what happened to Horne as
long as he stopped underselling them?
Was his
impoverishment a collateral, and perhaps undesired,
consequence of the defendants' aim of improving their
wages? Would the defendants have cared in the least if
he had turned to carpentry and become rich at it?
In the Hunt case, it did not matter whether an act
was characterized as a mean or an end, for, whichever the
act was, a conspiracy resulted if the act was illegal.
But whether an act was a mean or an end might matter in
another kind of case; and if it did, the judge would have
wide discretion in characterizing the act.
LEVELS OF ABSTRACTION IN COMMONWEALTH v. HUNT

The student who studies Chief Justice Shaw's
reasoning carefully will find a link to the idea of
levels of abstraction. Recall that he was examining the
indictment against the defendants. An indictment must
allege a crime. The indictment alleged that inducing all
bootmakers to join the defendants' association was an
illegal purpose. Shaw replied that, if the defendants
succeeded in this purpose, they would gain power. He
seemed to believe that gaining power was a certain
consequence of inducing all bootmakers to join the
association. Accordingly, we may infer that he believed
that the indictment alleged two facts in this connection:
the defendants sought to induce all bootmakers to join
the association, and the defendants would gain power.
But even this additional fact did not rescue the
indictment; Shaw still held that it did not allege a
crime.
Why not? The reason, wrote Shaw, was that the power
could be used for good or ill. FOR GOOD: the power could
be used to assist members of the association in times of
poverty or sickness; to raise their intellectual, moral,
or social condition; or to improve their craft. FOR ILL:
the power could be used for oppression and injustice. To
draw a comparison, suppose a student were indicted for
opening a bank account. The account could be used for

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xiii

good, such as paying one's bills, or for ill, such as
laundering stolen funds.
In both the case of the
bootmakers' association and the case of the student's
bank account, the indictment was written at too high a
level of abstraction (was too general): it captured
lawful as well as unlawful behavior. A proper indictment
must allege, not the possibility of unlawful behavior,
but its occurrence.
Specific unlawful acts must be
alleged. In other words, a proper indictment must be
written at the appropriate level of abstraction, and the
indictments in our cases were written at an improper
level, a level too high on the abstraction ladder.a
Shaw made a similar argument regarding the
allegation that the defendants used illegal means. The
indictment alleged that the defendants refused to work in
the same shop as a bootmaker who was not a member of
their association. Shaw replied that the defendants were
free to work, or not to work, as they pleased, and this
freedom included the right to leave their jobs in pursuit
of their own interests.b
He acknowledged that if the

a. If Shaw had been able to think of no legitimate use of
the power gained by forming a union, he would have considered
such power to be intrinsically evil.
In this event, the
indictment would probably have been acceptable; further
specificity — a lower level of abstraction — would have been
unnecessary if the power could have been used only for evil.
The student may be wondering what the appropriate level
of abstraction is for an indictment. Although this is not a
course in criminal law, we may suggest that an indictment
should be written at a low enough level of abstraction that
the accused person receives fair notice of the illegal
conduct. For example, "On August 1, 2004 the defendant opened
a checking account at the Tompkins Trust Company and deposited
into it $100,000 which the defendant knew his co-conspirator,
Simon Boccanegra, had earned by the sale of illegal drugs. On
August 5, 2004 the defendant moved $10,000 from the Tompkins
Trust account to an account in the name of Peter Grimes at the
First National Bank of Podunk for the purpose of concealing
the origin of this money; moved another $10,000 from the
Tompkins Trust account to an account in the name of ...."
b. Shaw mentioned an exception to this rule: if the
defendants had agreed to an employment contract in which they
promised to work for a definite period of time (e.g., a year),
(continued...)

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defendants exercised this freedom, the bootmaker whom
they shunned could have trouble finding a job, and the
employer could have trouble finding a replacement for the
shunned bootmaker. Accordingly, we may infer that Shaw
considered these additional facts to be implied by the
indictment. Even so, he held that it did not allege a
crime.
Why not? Because, like the power the defendants'
association would gain from inducing all bootmakers to
join the association, the defendants' freedom to quit
their jobs could be used for good or ill. FOR GOOD: the
defendants might quit rather than work in a shop in which
ardent spirits were served, or in which an intemperate
co-worker was employed.
FOR ILL: the defendants, by
threatening to quit their jobs, might force a master to
violate an employment contract by prematurely discharging
a co-worker who had been engaged for a definite period of
time.
Therefore, the allegation that the defendants
threatened to quit their jobs was too general; it did not
state a crime. To say the same thing, the indictment
failed because it was written at too high a level of
abstraction.c
The Importance of Hunt
If the Hunt case was a victory for unions, it was a
victory in a single battle; unions were still far from
winning the war. This is true because Shaw's opinion is
remarkably narrow; the defendants got off on a
technicality. For, although the opinion may seem like
judicial approval of unions, in fact the opinion held
only that the indictment failed to allege a crime. A

b. (...continued)
they would not have been at liberty to quit at will.

c. It is interesting that Shaw judged the defendants' mean
by the end which the mean might serve. He said the freedom to
quit one's job was good if used to combat dipsomania, bad if
used to induce an employer to breach a contract.
Thus he
turned the question of the legality of the defendants' mean
into the question of the legality of their end. Perhaps he
believed that, as a mean, quitting a job held at will was
always lawful, or perhaps he simply begged the question of
whether or not quitting one's job was lawful.

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xv

properly written indictment would have alleged a crime,
and Shaw gave examples of allegations that would have
stated crimes. Regarding purpose, if the indictment had
alleged that the union had secret articles indicating a
design to injure persons or society, or that the
defendants had actually used the union for purposes of
oppression or injustice, a crime would have been alleged.
Regarding means, if the indictment had stated that the
defendants had contracts of employment for a specific
period of time, and if the defendants had violated such
contracts, that is, quit before the contracts had
expired; or if Mr. Horne had had such a contract, and the
defendants forced the employer to fire him in violation
of his contract, a crime would have been alleged. The
opinion almost reads like advice to a prosecuting
attorney on how to write the next indictment.
Why did Shaw write the opinion this way? One may
suspect he wanted to make clear that his court was not
endorsing the labor movement. In fact, the opinion put
unions on a fairly short leash. They might exist, but if
they went any further than a strike for higher wages, it
would be easy for a judge in the future to rein them in.
We cannot resist closing this discussion of the
substance of Hunt with a word about Chief Justice Shaw.
One might be inclined to think him a liberal because he
held in favor labor unions. Perhaps he was. But perhaps
he was influenced by his family's holdings in
manufacturing plants in which many workers were union
members; during this period, American manufacturers were
seeking protective tariffs and relied on the political
support of their workers. Also, a few years later Shaw
held that the U.S. Constitution did not prohibit
Massachusetts from operating segregated schools for black
pupils. Roberts v. Boston, 5 Cush. 198. He missed his
chance to become a truly great judge.
QUESTIONS FOR REFLECTION
1. The crime of conspiracy is separate from its
underlying crime. If two persons plan to commit a crime
(for example, hack into their professor's computer and
change their grades), and if they take at least one step
in furtherance of their plan (they design a protocol
appropriate to their purpose), they have committed the
crime of conspiracy. This is true even if they change

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their minds and abandon their plan.
support making conspiracy a crime?

Do good reasons

2. Why must a complaint be dismissed if it does not
allege facts that constitute a crime?
3. The defendants admitted that they had committed
two of the three elements of conspiracy.
Thus, the
prosecution proved the majority of its case. Why was
this not sufficient for the prosecution to win?
4. The court said that the defendants, by creating
a union, gained power that could have been used for good
or for evil.
Every society has the right to protect
itself against harm. Does not society have the right to
outlaw unions because they have the potential to harm
society?
5. The complaint alleged that the defendants
intended to impoverish Jeremiah Horne. May we fairly say
that the defendants intended this result? The effect of
the their act was to prevent non-members from working.
Was this part of their purpose? We know that their main
purpose was to raise their pay.
Their means were to
refuse to work in the same shop as non-members. These
means were consciously and intentionally adopted, so it
is fair to say that the means were also part of the
defendants' purpose. Thus, we may say the defendants'
purpose was to raise their pay by refusing to work
alongside of non-members. But is it also correct to say
that the defendants' purpose included preventing nonmembers from working?
This was an effect of their
action. There is no evidence that they intended this
effect; they might have been perfectly content for nonmembers to take jobs in other shops, and surely would not
have objected to non-members' taking jobs in other
occupations.
Nevertheless, the defendants must have
realized that non-members would have trouble finding
work.
Therefore, one might argue that the defendants
intended to impoverish non-members.
Naturally, the defense would disagree. Although it
used this analogy for another purpose, the defense in the
Philadelphia Cordwainers case mentioned the analogy to a
blacksmith's shop that gives off smoke and fumes that
annoy neighbors. We would not say that the blacksmith
intended to annoy the neighbors, argues the defense; the

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xvii

smoke is merely an unfortunate effect of a lawful act.
The defendants were performing a lawful act, namely,
seeking to raise their compensation; the effect of this
act on non-members was unfortunate but not intended.
This disagreement may be expressed in general terms:
If an individual's purpose is to perform act A; if A is
likely to cause effect A; and if the individual does not
wish to cause A, but is aware that A can cause A, is it
correct to conclude that the individual's purpose
includes A?
The prosecution thought so; the defense
thought not. Which was correct?
6. The defendants refused to work for Isaac Wait as
long as he employed Jeremiah Horne because Horne refused
to join the union, whereupon Wait discharged Horne. Is
it fair to say that the defendants compelled Wait to
discharge Horne? Is it fair to say that the defendants
sought to compel Horne to join the union? Should it not
be illegal to compel a person to perform an act that one
does not wish, and has not previously promised, to
perform?
7. Review the Philadelphia Cordwainers case. Does
it appear that the prima facie case of conspiracy was the
same in that case as in Hunt?
8. In the example of the baker in a small village (¶
12), why were not the neighbors guilty of conspiracy?

Ù

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69

The Picket Line as the Tort of Damage to Business
Introduction
The first thing to note about the following case,
Vegelahn v. Guntner, is that it is a civil case, not a
criminal case. The student should be aware of a few of
the differences between criminal and civil cases.
In a criminal case, the prosecution is the
government. The accused party is called the defendant or
the respondent. The offense is against the public at
large, and, therefore, the remedies run to the benefit of
the public.
Thus, a defendant who is convicted in a
criminal case may be punished by a sentence in jail or by
a fine payable to the government.
In a civil case, the prosecution is a private party,
who is called the plaintiff or the petitioner.
The
accused party is called the defendant or the respondent.
The offense is against a private party (usually the
plaintiff), and, therefore, the remedies run to the
benefit of the plaintiff. A defendant who loses a civil
case is not punished,a but is required to compensate the
plaintiff for injuries the defendant has caused.
The
principal form of compensation is money, which is payable
to the plaintiff. (Lawyers call such money "damages.")
Another kind of remedy, which has been important in labor
cases, is the injunction, the purpose of which is to stop
the defendant from inflicting any further injury on the
plaintiff. The court orders the defendant to stop the
wrongful behavior, for example, to cease playing your
stereo so loudly that the professor who lives next door
to you cannot sleep.
In Vegelahn the plaintiff was an employer.
The
defendants were members of a union who were on strike and
were picketing in front of the employer's shop.
The
employer sought an injunction against the picketing.

a

An exception to this statement is punitive damages,
which are designed to punish a civil defendant. Although they
attract a great deal of attention, punitive damages are in
fact rarely awarded.

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The facts of Vegelahn differed from the facts of the
Philadelphia Cordwainers case and Commonwealth v. Hunt in
an important respect: the union in Vegelahn used a
different tactic, a picket line (which, in those days,
was called a patrol).
Numerous union members marched
back and forth in front of the employer's door and tried
to dissuade other workers from entering. Sometimes the
pickets were peaceable, but sometimes they physically
blocked the door and threatened or intimidated the other
workers.
The employer filed a law suit, probably in a city or
county court, and asked the judge or, perhaps, a justice
of the peace or a magistrate, whose name is not given,
for a preliminary injunction against the strike.b
A
preliminary injunction is a temporary one; it lasts only
until the court reaches a final decision in the case,
which usually happens after a trial. The unnamed judge
issued a preliminary injunction that not only prohibited
blocking the door and threatening other workers, but also
prohibited peaceful attempts to persuade other workers
not to enter. {¶ 1} In effect, the judge prohibited all
picketing.
Then the case went to a hearing before Justice
Holmes. He was a member of the Supreme Judicial Court of
Massachusetts, but he was, evidently, a trial judge as
well.
At the end of the hearing or trial, the
preliminary injunction expired.
Justice Holmes then
issued a final or permanent injunction, which would last
indefinitely, that prohibited only physical obstruction,
threats, and intimidation.
{¶ 2}
In other words,
Holmes's final injunction permitted peaceful picketing.
This decision was appealed to the Supreme Judicial
Court. In an opinion by Justice Allen, the majority of
the court ruled that the preliminary injunction was
correct, that is, that all picketing should have been

b

Another name for a preliminary injunction is an
interlocutory injunction.
In the following opinion the
injunction is sometimes called a decree.

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prohibited. {¶¶ 1,6} Justice Holmes dissented, arguing
that the injunction he had approved was correct.c

c

Today a judge would not sit in review of a decision the
judge had previously issued. If Vegelahn arose today, and
everything else about it were the same, Justice Holmes would
recuse himself when his decision was reviewed by the Supreme
Judicial Court.

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Vegelahn v. Guntner
167 Mass. 92 (1896)

{1} {The defendants, who were 14 individuals and two labor unions, went
on strike against an employer and set up a patrol (picket line) in front of the
employer's shop. They attempted to dissuade workers from crossing the line to
accept work in the shop; some such workers already had specific employment
contracts with the employer, and some did not. The strikers also occasionally
threatened personal injury or other harm to workers who considered crossing the line,
and there may have been a technical battery (that is, an unwelcomed touch). The
patrol was generally maintained by two men, but sometimes more joined and blocked
the employer's door. The employer applied to an unidentified judge, who issued a
preliminary injunction (also called a decree). It restrained the defendants
from interfering with the plaintiff's business by patrolling the sidewalk or
street in front or in the vicinity of the premises occupied by him, for the
purpose of preventing any person or persons who now are or may hereafter
be in his employment, or desirous of entering the same, from entering it, or
continuing in it; or by obstructing or interfering with such persons, or any
others, in entering or leaving the plaintiff's said premises; or by
intimidating, by threats or otherwise, any person or persons who now are
or may hereafter be in the employment of the plaintiff, or desirous of
entering the same, from entering it, or continuing in it; or by any scheme or
conspiracy among themselves or with others, organized for the purpose of
annoying, hindering, interfering with, or preventing any person or persons
who now are or may hereafter be in the employment of the plaintiff, or
desirous of entering the same, from entering it, or from continuing therein.

At a subsequent hearing, another judge, Oliver Wendell Holmes, Jr., modified the
preliminary injunction and issued a final or permanent injunction that permitted
picketing as long as the strikers did not physically obstruct the employer's premises,
use force or threats of force against workers who chose to cross the picket line, or
attempt to induce workers with employment contracts with the employer to dishonor
their promises. Holmes's final injunction provided that the
defendants and each and every one of them, their agents and servants, be
restrained and enjoined from interfering with the plaintiff's business by
obstructing or physically interfering with any persons in entering or leaving
the plaintiff's premises ... or by intimidating, by threats, express or implied,
of violence or physical harm to body or property, any person or persons
who now are or hereafter may be in the employment of the plaintiff, or
desirous of entering or continuing in it, or by in any way hindering,
interfering with, or preventing any person or persons who now are in the
employment of the plaintiff from continuing therein, so long as they may
be bound to do so by lawful contract.

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v

The final injunction was appealed to the Supreme Judicial Court of Massachusetts
(of which Justice Holmes was a member). In an opinion by Justice Allen, the court
decided that the preliminary injunction, as originally issued by the unidentified judge,
was proper. Justice Holmes dissented, arguing that the final injunction he had issued
was correct.}
ALLEN, J., delivered the opinion of the court.
{2} The principal question in this case is whether the defendants should be
enjoined against maintaining the patrol. The report shows that, following upon a
strike of the plaintiff's workmen, the defendants conspired to prevent him from
getting workmen, and thereby to prevent him from carrying on his business, unless
and until he should adopt a certain schedule of prices. The means adopted were
persuasion and social pressure, threats of personal injury or unlawful harm conveyed
to persons employed or seeking employment, and a patrol of two men in front of the
plaintiff's factory, maintained from half past six in the morning till half past five in
the afternoon, on one of the busiest streets of Boston. The number of men was greater
at times, and at times showed some little disposition to stop the plaintiff's door. The
patrol proper at times went further than simple advice, not obtruded beyond the point
where the other person was willing to listen; and it was found that the patrol would
probably be continued, if not enjoined. There was also some evidence of persuasion
to break existing contracts.
{3} The patrol was maintained as one of the means of carrying out the
defendants' plan, and it was used in combination with social pressure, threats of
personal injury or unlawful harm, and persuasion to break existing contracts. It was
thus one means of intimidation indirectly to the plaintiff, and directly to persons
actually employed or seeking to be employed by the plaintiff, and of rendering such
employment unpleasant or intolerable to such persons. Such an act is an unlawful
interference with the rights both of employer and of employed. An employer has a
right to engage all persons who are willing to work for him, at such prices as may be
mutually agreed upon; and persons employed or seeking employment have a
corresponding right to enter into or remain in the employment of any person or
corporation willing to employ them.... No one can lawfully interfere by force or
intimidation to prevent employers or persons employed or wishing to be employed
from the exercise of these rights. In Massachusetts, as in some other States, it is even
made a criminal offence for one by intimidation or force to prevent or seek to prevent
a person from entering into or continuing in the employment of a person or
corporation. Intimidation is not limited to threats of violence or of physical injury to
person or property. It has a broader signification, and there also may be a moral
intimidation which is illegal. Patrolling or picketing, under the circumstances {of this
case}, has elements of intimidation like those which were found to exist in Sherry v.

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Perkins, 147 Mass. 212 {1888}.... The patrol {in the case at bar} was an unlawful
interference both with the plaintiff and with the workmen....
{4} The defendants contend that these acts were justifiable because they were
only seeking to secure better wages for themselves by compelling the plaintiff to
accept their schedule of wages. This motive or purpose does not justify maintaining
a patrol in front of the plaintiff's premises as a means of carrying out their conspiracy.
A combination among persons merely to regulate their own conduct is within
allowable competition, and is lawful, although others may be indirectly affected
thereby. But a combination to do injurious acts expressly directed to another, by way
of intimidation or constraint, either of himself or of persons employed or seeking to
be employed by him, is outside of allowable competition, and is unlawful. Various
decided cases fall within the former class, for example: ... Commonwealth v. Hunt,
4 Met. 111.... The present case falls within the latter class.
...
{5} A question is also presented whether the court should enjoin such
interference with persons in the employment of the plaintiff who are not bound by
contract to remain with him, or with persons who are not under any existing contract,
but who are seeking or intending to enter into his employment. A conspiracy to
interfere with the plaintiff's business by means of threats and intimidation, and by
maintaining a patrol in front of his premises in order to prevent persons from entering
his employment, or in order to prevent persons who are in his employment from
continuing therein, is unlawful, even though such persons are not bound by contract
to enter into or to continue in his employment; and the injunction should not be so
limited as to relate only to persons who are bound by existing contracts.
{6} In the opinion of a majority of the court the injunction {should} be in the
form originally issued {i.e., the preliminary injunction was correct}.
So ordered.
HOLMES, J., dissenting.
...
{7} ... There was no proof of any threat or danger of a patrol exceeding two
men, and as of course an injunction is not granted except with reference to what there
is reason to expect in its absence, the question on that point is whether a patrol of two
men should be enjoined. Again, the defendants are enjoined by the final decree from
intimidating by threats, express or implied, of physical harm to body or property, any

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person who may be desirous of entering into the employment of the plaintiff so far
as to prevent him from entering the same. In order to test the correctness of the
refusal {of the final decree} to go further, it must be assumed that the defendants
obey the express prohibition of the decree. If they do not, they fall within the
injunction as it now stands, and are liable to summary punishment. The important
difference between the preliminary and the final injunction is that the former goes
further, and forbids the defendants to interfere with the plaintiff's business "by any
scheme ... organized for the purpose of ... preventing any person or persons who now
are or may hereafter be ... desirous of entering the [plaintiff's employment] from
entering it." I quote only a part, and the part which seems to me most objectionable.
This includes refusal of social intercourse, and even organized persuasion or
argument, although free from any threat of violence, either express or implied. And
this is with reference to persons who have a legal right to contract or not to contract
with the plaintiff, as they may see fit. Interference with existing contracts is forbidden
by the final decree....d It appears to me that the judgment of the majority turns in part
on the assumption that the patrol necessarily carries with it a threat of bodily harm.
That assumption I think unwarranted.... {I}t cannot be said, I think, that two men
walking together up and down a sidewalk and speaking to those who enter a certain
shop do necessarily and always thereby convey a threat of force ... especially when
they are, and are known to be, under the injunction of this court not to do so. I may
add that I think the more intelligent workingmen believe as fully as I do that they no
more can be permitted to usurp the State's prerogative of force than can their
opponents in their controversies. But if I am wrong, then the decree as it stands
reaches the patrol, since it applies to all threats of force. With this I pass to the real
difference between the interlocutory and the final decree.
{8} I agree, whatever may be the law in the case of a single defendant, that
when a plaintiff proves that several persons have combined and conspired to injure
his business, and have done acts producing that effect, he shows temporal damage
and a cause of action {that is, a right to sue}, unless the facts disclose, or the
defendants prove, some ground of excuse or justification. And I take it to be settled,
and rightly settled, that doing that damage by combined persuasion is actionable, as
well as doing it by falsehood or by force.

d

{Holmes and the majority agreed that an injunction should be issued to prohibit the
defendants from attempting to persuade workers who had employment contracts to violate
their contracts, and Holmes's injunction prohibited this. The only additional workers to
whom the majority's injunction applied were those who did not have employment contracts;
these were at-will employees who, in theory, entered into a new, one-day contract of
employment each morning. The point of disagreement between Holmes and the majority
was whether an injunction should prohibit the defendants from attempting to persuade these
at-will workers to participate in the strike. — ed.}

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{9} Nevertheless, in numberless instances the law warrants the intentional
infliction of temporal damage because it regards it as justified. It is on the question
of what shall amount to a justification, and more especially on the nature of the
considerations which really determine or ought to determine the answer to that
question, that judicial reasoning seems to me often to be inadequate. The true
grounds of decision are considerations of policy and of social advantage, and it is
vain to suppose that solutions can be attained merely by logic and the general
propositions of law which nobody disputes. Propositions as to public policy rarely
are unanimously accepted, and still more rarely, if ever, are capable of unanswerable
proof. They require a special training to enable any one even to form an intelligent
opinion about them. In the early stages of law, at least, they generally are acted on
rather as inarticulate instincts than as definite ideas for which a rational defence is
ready.
{10} To illustrate what I have said in the last paragraph, it has been the law
for centuries that a man may set up a business in a country town too small to support
more than one, although he expects and intends thereby to ruin some one already
there, and succeeds in his intent. In such a case he is not held to act "unlawfully and
without justifiable cause".... The reason, of course, is that the doctrine generally has
been accepted that free competition is worth more to society than it costs, and that
on this ground the infliction of the damage is privileged. Commonwealth v. Hunt, 4
Met. 111, 134. Yet even this proposition nowadays is disputed by a considerable
body of persons, including many whose intelligence is not to be denied, little as we
may agree with them.
{11} I have chosen this illustration partly with reference to what I have to say
next. It shows without the need of further authority that the policy of allowing free
competition justifies the intentional inflicting of temporal damage, including the
damage of interference with a man's business, by some means, when the damage is
done not for its own sake, but as an instrumentality in reaching the end of victory in
the battle of trade. In such a case it cannot matter whether the plaintiff is the only
rival of the defendant, and so is aimed at specifically, or is one of a class all of whom
are hit. The only debatable ground is the nature of the means by which such damage
may be inflicted. We all agree that it cannot be done by force or threats of force. We
all agree, I presume, that it may be done by persuasion to leave a rival's shop and
come to the defendant's. It may be done by the refusal or withdrawal of various
pecuniary advantages which, apart from this consequence, are within the defendant's
lawful control. It may be done by the withdrawal, or threat to withdraw, such
advantages from third persons who have a right to deal or not to deal with the
plaintiff, as a means of inducing them not to deal with him either as customers or
servants. Commonwealth v. Hunt, 4 Met. 111.

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ix

{12} I pause here to remark that the word "threats" often is used as if, when
it appeared that threats had been made, it appeared that unlawful conduct had begun.
But it depends on what you threaten. As a general rule, even if subject to some
exceptions, what you may do in a certain event you may threaten to do, that is, give
warning of your intention to do in that event, and thus allow the other person the
chance of avoiding the consequences. So as to "compulsion," it depends on how you
"compel." Commonwealth v. Hunt, 4 Met. 111, 133. So as to "annoyance" or
"intimidation." In Sherry v. Perkins, 147 Mass. 212, it was found as a fact that the
display of banners which was enjoined was part of a scheme to prevent workmen
from entering or remaining in the plaintiff's employment "by threats and
intimidation." The context showed that the words as there used meant threats of
personal violence, and intimidation by causing fear of it.
{13} I have seen the suggestion made that the conflict between employers and
employed is not competition. But I venture to assume that none of my brethren would
rely on that suggestion. If the policy on which our law is founded is too narrowly
expressed in the term "free competition," we may substitute "free struggle for life."
Certainly the policy is not limited to struggles between persons of the same class
competing for the same end. It applies to all conflicts of temporal interests.
{14} So far, I suppose, we are agreed. But there is a notion which latterly has
been insisted on a good deal, that a combination of persons to do what any one of
them lawfully might do by himself will make the otherwise lawful conduct unlawful.
It would be rash to say that some as yet unformulated truth may not be hidden under
this proposition. But in the general form in which it has been presented and accepted
by many courts, I think it plainly untrue, both on authority and on principle.
Commonwealth v. Hunt, 4 Met. 111.... But it is not necessary to cite cases; it is plain
from the slightest consideration of practical affairs, or the most superficial reading
of industrial history, that free competition means combination, and that the
organization of the world, now going on so fast, means an ever increasing might and
scope of combination. It seems to me futile to set our faces against this tendency.
Whether beneficial on the whole, as I think it, or detrimental, it is inevitable, unless
the fundamental axioms of society, and even the fundamental conditions of life, are
to be changed.
{15} One of the eternal conflicts out of which life is made up is that between
the effort of every man to get the most he can for his services, and that of society,
disguised under the name of capital, to get his services for the least possible return.
Combination on the one side is patent and powerful. Combination on the other is the
necessary and desirable counterpart, if the battle is to be carried on in a fair and equal
way....

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{16} If it be true that workingmen may combine with a view, among other
things, to getting as much as they can for their labor, just as capital may combine
with a view to getting the greatest possible return, it must be true that when combined
they have the same liberty that combined capital has to support their interests by
argument, persuasion, and the bestowal or refusal of those advantages which they
otherwise lawfully control. I can remember when many people thought that, apart
from violence or breach of contract, strikes were wicked, as organized refusals to
work. I suppose that intelligent economists and legislators have given up that notion
to-day. I feel pretty confident that they equally will abandon the idea that an
organized refusal by workmen of social intercourse with a man who shall enter their
antagonist's employ is wrong, if it is dissociated from any threat of violence, and is
made for the sole object of prevailing if possible in a contest with their employer
about the rate of wages. The fact that the immediate object of the act by which the
benefit to themselves is to be gained is to injure their antagonist, does not necessarily
make it unlawful, any more than when a great house lowers the price of certain goods
for the purpose, and with the effect, of driving a smaller antagonist from the business.
Indeed, the question seems to me to have been decided as long ago as 1842 by the
good sense of Chief Justice Shaw, in Commonwealth v. Hunt, 4 Met. 111....
....

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COMMENTS
Two important substantive aspects of this case are
the court's ruling on the legality of the union's new
tactic of patrolling and the court's authorization of an
injunction.
Before learning about these aspects, the
student should review the NOTE ON THE PRIMA FACIE CASE AND
AFFIRMATIVE DEFENSE.1.
The Legality of Patrolling
The employer in Vegelahn accused the strikers of
committing the tort of damage to business. This tort
comprised a prima facie case and an affirmative defense.
The key element of the prima facie case was whether the
defendants pursued the end of damaging the plaintiff's
business. One of the key elements of the affirmative
defense was whether the defendants' means were lawful.
Thus, when labor cases were decided under the category of
damage to business, the courts focused on much the same
behavior as they did when the category was conspiracy.
THE PRIMA FACIE CASE OF DAMAGE TO BUSINESS

Both Justice Allen for the majority and Justice
Holmes in dissent treated Vegelahn as a case of damage to
business. The majority said that the defendants sought
to prevent the employer from hiring replacement workers
and to prevent replacement workers from taking jobs with
the employer.e This end was illegal prima facie because
"[a]n employer has a right to engage all persons who are
willing to work for him ... and persons employed or
seeking employment have a corresponding right to enter
into or remain in the employment of any person or
corporation willing to employ them" (¶ 3).
Thus, by
convincing the court that the defendants had combined to
achieve an unlawful end, the employer proved a prima
facie case of damage to business.

e

We have previously noted that ends or purposes may be
characterized in various ways and that the ability to
characterize a party's ends or purposes gives judges a great
deal of power. In this case, the majority could as easily
have said that the defendants' end was to raise their wages,
a lawful goal.

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THE AFFIRMATIVE DEFENSE OF COMPETITION

The defendants asserted the affirmative defense of
competition, and the majority recognized the existence of
this defense. We say this for four reasons. First, the
majority wrote, "A combination among persons merely to
regulate
their
own
conduct
is
within
allowable
competition, and is lawful, although others may be
indirectly affected thereby" (¶ 4). This sentence seems
to be a terse summary of the defense of competition.
Second, after stating in ¶ 4 that the defendants relied
on the defense of competition, the majority immediately
moved on to discuss the defendants' means.
Had the
defense of competition not been accepted by the majority,
it probably would have said so outright (especially
because Holmes in dissent acknowledged the defense).
Third, had the defense of competition not been accepted
by the majority, it would have needed to discuss its own
precedent of Commonwealth v. Hunt. The defendants had
exactly the same purpose in Hunt as in Vegelahn, and the
defendants were exonerated in Hunt. Thus, in order to
have condemned the defendants' purpose in Vegelahn, the
majority would have had to overrule or distinguish Hunt;
and the majority did neither.
And finally, Justice
Holmes believed that the majority recognized the defense
of competition. After using the example of setting up a
second business in a town too small to support more than
one such business(¶ 10), and arguing that workers and
employers were in competition with one another, Holmes
said he believed his brethren on the court agreed on this
score (¶ 13).
Justice Holmes also accepted the defense of
competition, and he developed his argument in some
detail.
He began by stating an idea of surpassing
significance:
"The
true
grounds
of
decision
are
considerations of policy and of social
advantage, and it is vain to suppose that
solutions can be attained merely by logic and
the general propositions of law which nobody
disputes" (¶ 9).
This idea, which applies to all legal cases (not merely
labor law cases), has set the course for legal analysis
in America to the present. Holmes asserted that social

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policy should determine legal categories,
reverse. Ultimately, law is politics.

not

the

Holmes had previously indicated his acceptance of
the rule that deliberately damaging another's business is
prima facie illegal (¶ 8):
"I agree ... that when a plaintiff proves that
several persons have combined and conspired to
injure his business, and have done acts
producing that effect, he shows temporal
damage and a cause of action {that is, the
plaintiff has a right to bring a legal
action}.... And I take it to be settled, and
rightly settled, that doing that damage by
combined persuasion is actionable...."
But in some circumstances this sort of damage is
justified; that is, an affirmative defense or excuse
exists (¶ 11):
"{T}he policy of allowing free competition
justifies
the
intentional
infliction
of
temporal damage, including the damage of
interference with a man's business, by {legal}
means, when the damage is done, not for its
own sake, but as an instrumentality in
reaching the end of victory in the battle of
trade.... The only debatable ground is the
nature of the means by which such damage may
be inflicted."
Thus, Holmes believed that a combination to damage a
business was prima facie illegal, even though legal means
were used; but (assuming only legal means were used) the
affirmative defense of competition applied when the
plaintiff and defendants were in competition with one
another. The application to the case at bar was obvious.
A union that struck or otherwise interfered with a
business committed, prima facie, a tortious act, but the
act was justified if the workers and the employer were in
competition with one another. (We will consider below
whether workers and employers are in competition.)
In sum, all justices of the court in Vegelahn
believed that the defendants' end (damaging the
employer's business) was prima facie illegal, but an

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affirmative defense applied when the damage was inflicted
by workers during a labor dispute with their employer.
The affirmative defense, however, was qualified by
the rule that the means of competition had to be lawful.
If the defendants engaged in competition by illegal
means, the defense of competition would be lost.
Accordingly, the majority turned to the defendants'
means.
The majority could not hold either that forming a
union or that striking was an unlawful mean. Regarding
forming a union, Commonwealth v. Hunt had held that
unions are not illegal per se, as they may pursue lawful
goals. Regarding striking, Hunt had also held that a
simple strike was not unlawful. However, the majority
could hold that another act of a union was unlawful: and
so the court focused on the patrol.
We may assume that the defendants argued that there
was really no difference between a simple strike and a
strike with a patrol; that both had the same purpose,
viz., to deprive the employer of workers, and both
utilized the same means, viz., informing potential
replacements of the labor dispute and urging them not to
break the strike. The majority disagreed. Justice Allen
understood the simple strike as a mean, which he
characterized as a "combination among persons merely to
regulate their own conduct." Thus, strikers did no more
than refuse to socialize with and work next to an
objectionable person.
Allen stated that a strike was
"within allowable competition" (¶ 4) and it remained a
legal mean, even though others (the employer and the
shunned worker) were damaged by the tactic.
Patrolling, however, was a different act, a
different mean, in the mind of the majority. It allowed
an injunction against patrolling because it was "a
combination to do injurious acts expressly directed to
another, by way of intimidation or restraint..." (¶ 4,
emphasis added).
A simple strike was a lawful mean
because it was not intimidating, but a patrol was an
unlawful mean because it was intimidating.
Was the majority right that strikes were not
intimidating, but patrols were? We may assume that, in
the days of the Hunt case, strikers did their best to

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make miserable the lives of workers like Jeremiah Horne.
Strikers probably tried to persuade such workers to honor
the strike and, failing in that, probably applied
unflattering epithets to such workers and refused to
socialize with them. All of this seems no different from
peaceful attempts by patrolling strikers to persuade
potential replacements to honor the strike. (There were
surely incidents of violence and threats of violence,
both in the Vegelahn patrol and in earlier strikes, but
we shall ignore those incidents. Radicals might have
thought that violence against capital was justified.
That position, however, had few adherents in America, and
the final decree issued by Holmes enjoined threats and
violence.)
If the reasoning in the preceding paragraph be
correct, the difference between a simple strike and a
strike with a peaceful patrol was not the effort to cut
off the supply of replacement workers or the mean of
persuasion. The difference, if any, between striking and
patrolling must have had something to do with the act of
walking back and forth in front of the employer's shop.
The majority said that patrolling was a form of moral
intimidation, which was illegal.
Unfortunately, the
majority did not define moral intimidation or distinguish
it from lawful persuasion. Perhaps the majority's idea
was that violence was so closely associated with patrols
that an average person who saw a patrol felt intimidated.
If so, one may wonder how the majority knew this fact.
Justice Holmes denied it; he accused the majority of
making an unwarranted assumption (¶ 7), which is strong
language for one judge to hurl at another.
An Historical Explanation Differing perceptions of
patrolling is one explanation of why the majority and
Holmes disagreed.
Another explanation is possible,
however (and perhaps both are true).
A capitalist
economy sees labor and capital in different lights. It
is true that capitalism envisions labor markets, just as
it envisions product markets. But whereas the capitalist
system permits, encourages, in fact, depends upon
accumulation of capital, the system discourages the
accumulation of labor. Accumulating even a small amount
of capital is good (e.g., enough to open a small
business); accumulating a large amount of capital is
better. Of course, accumulation may be carried too far.
Too much concentration of capital may actually threaten

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the capitalist system itself. But short of monopolies
and oligopolies, accumulation of capital is a prominent
aspect of capitalism. Labor power, however, is regarded
differently by capitalism.
Whereas accumulation of a
small amount of capital can be useful, accumulation of a
small amount of labor is irrelevant.
A union is not
effective if only a small percentage of the workers in a
firm or in an industry belongs to the union; it is
unlikely to win any concessions from employers because so
many other workers will accept less than the union
demands. A union is effective, and becomes a relevant
actor in capitalism, only to the extent that it controls
the supply of labor.
Therefore, unions that matter
represent an accumulation of labor power that can distort
the market.
Monopolies increase the price of the
commodity they control.
Effective unions get higher
wages and better working conditions for their members
than employers would pay in the absence of unions. So
unions, being a form of monopoly, are an undesirable
feature of a capitalist system.f
Why did unions begin to patrol, and what explains
the Hunt court's acceptance of the legitimacy of strikes
and the Vegelahn court's rejection of the legitimacy of
picket lines? Perhaps the answers lie in a change in the
economy between 1842 and 1896. Unions may have begun to
picket towards the end of the 19th Century because they
could no longer control the supply of labor merely by
excluding workers like Jeremiah Horne. A cordwainer in
the first half of the century was a skilled artisan who
had passed through an apprenticeship and belonged to a
society of cordwainers; one could not easily be replaced
if one struck. So it was sufficient if union members
refused to work in the same shop as non-members; the
strike was effective because replacements were usually
unavailable. The labor monopoly was effective. But a
factory worker at the end of the century was an unskilled
or semi-skilled hand who belonged to no society of

f

This reasoning assumes the labor market would be
competitive in the absence of unions. What if this assumption
is false? What if we assume that jobs are in limited supply?
Today's system of labor relations seems to make this
assumption, countering the employer's monopsony of jobs with
the union's monopoly of labor. Is this a fair fight? Is it
rational to fight fire with fire?

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workers and could be replaced readily.
If the union
struck, the employer could quickly replace the strikers.
The labor monopoly had collapsed.
This change may
explain why the unions began to picket at the struck
shop. They needed a new way to discourage replacements.
If the foregoing explanation be correct, it remains
to explain why the courts' attitude towards union tactics
changed. Perhaps skilled workers in the first half of
the century (all the early labor cases involved skilled
workers) had enough power to demand acceptance; after
all, if their strikes were effective, they must have had
some real economic power, and economic power in America
has always translated into political power. But at the
end of the century, unskilled workers had no such power.
Perhaps, therefore, the courts ruled for the unions when
they were economically strong and against them when they
were economically weak.
THE GREAT GAME

Labor relations in America has long been a great
game, a game of cat and mouse in which unions devise a
new tactic, employers check the tactic (sometimes with
the aid of the courts), unions devise a new tactic that
skirts the check (a loophole in the law), employers
respond, and so on.
At the time of the Philadelphia
Cordwainers case, unions had invented the simple strike
for a closed shop, and employers checked it by persuading
the courts to outlaw this tactic. In Commonwealth v.
Hunt unions won the right to strike for a closed shop.
The court cautioned, however, that a strike would be
illegal if it sought to compel the employer to discharge
a worker who had an employment contract for a definite
term.
As the Industrial Revolution spread in America,
factories became the center of production, work was deskilled, and workers lost economic power; in consequence,
the simple strike became less potent as a weapon of
industrial warfare. Unions responded with a new tactic:
the patrol in front of the entrance to the shop or
factory. If the patrollers tried to persuade a worker
with a contract for a term to dishonor the contract, they
violated the law as announced in Hunt; but if they
limited themselves to approaching at-will workers, the
patrollers were safe within the rule of Hunt. Because

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most workers were employed at will by the end of the 19th
Century, the unions' new tactic enjoyed some success.
Employers needed a counter-move. The unions' end
had become acceptable; it was agreed that workers could
unite to seek better terms of employment.
Their end
being secure, only their means were vulnerable.
They
were not inducing breach of contracts for a term, and (if
they were wise) they were not violent. Employers had to
find another way to attack the unions' means.
They
happened upon the concept of moral intimidation, which
the court in Vegelahn accepted, and thereby employers
neutralized the unions' new tactic of patrolling. As the
student will see in subsequent cases, unions continued to
develop new tactics, and employers continued to respond.
Injunctions
So far, we have discussed the first important
substantive aspect of the Vegelahn case, the legality of
patrolling. Now we will turn to the second important
aspect, the injunction.
From an employer's perspective, criminal prosecution
of union members is an awkward and unreliable way to
combat unions.g In the first place, the government may
refuse to indict the defendants. The district attorney
may be busy with more important cases like murder and
rape and embezzlement, and the discretion of a district
attorney in deciding whether to prosecute is unreviewable
in court. Also, the district attorney may be reluctant
to prosecute union members because they will certainly
oppose one's re-election. Second, even if the government
does indict, the district attorney, and not the employer,
controls the case. The district attorney may accept a
plea bargain, or seek a light penalty, or not understand
the realities of the situation and, therefore, present
the evidence poorly. Third, criminal cases are tried by
juries, which are unpredictable.
Juries are usually
selected from lists of voters. At the beginning of the
Nineteenth Century, the franchise was often limited to
property holders; recall that, in the Philadelphia
g

Criminal prosecution would be awkward and unreliable in
the same ways today, and for this reason we will speak in the
present tense.

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xix

Cordwainers case, the jury was composed entirely of small
businessmen. By the end of the century, universal white
male suffrage was the norm. As more workers serve on
juries, guilty verdicts are probably harder to win in
labor cases.
After all, it only takes one person to
cause a hung jury.
Fourth, the burden of proof in
criminal cases is heavy.
The jury must find the
defendant guilty beyond a reasonable doubt. And last but
far from least, criminal proceedings are slow.
There
must be an investigation, then an indictment, then a
trial. And no penalty can be imposed until the end of
the process. So, even if the defendants are eventually
convicted, the strike may have continued for many weeks
or months.
Each of these problems with the criminal process is
eliminated if the employer can seek an injunction. It is
a civil, not a criminal, case. The employer, not the
government, decides whether to bring the case, and the
employer, not the district attorney, controls the case,
that is, decides what evidence should be presented and
whether to settle. There is no jury; injunctions are
ruled on by judges, and judges are generally more
sympathetic to employers' interests than juries are.
After all, judges usually come from the dominant classes
in society and are interested in preserving the status
quo from which their power derives. The burden of proof
in civil cases is much lighter — preponderance of the
evidence. This means that the judge rules in favor of
the party whose evidence is stronger. The judge may have
genuine doubts about the employer's evidence; but if it
is stronger than the union's, an injunction can be
issued. Injunctions can be obtained very quickly. An
employer can usually get one's lawyer to bring a law suit
on the same day as a strike begins, and a judge can issue
an injunction, based on sworn affidavits, as soon as the
suit is filed. It is not unusual to see a strike begin
with mass picketing at 8:00 A.M. and an injunction
limiting the number of pickets to be issued by 4:00 P.M.
And an injunction is enforced by the very judge who
issued it. Judges do not take kindly to union members
who have violated their orders.
It is evident that the injunction is the perfect
weapon for an employer to use against a union. Vegelahn
was an early example of an injunction. The theory of the
case was that the members of the union were engaged in a

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Vegelahn v. Guntner

civil conspiracy to violate others' rights. Thousands
upon thousands of injunctions were issued thereafter,
sometimes on a theory of civil conspiracy, sometimes on
other theories.
The Effects of the Opinions of
Chief Justice Shaw
and
Justice Holmes
Justice Holmes's dissent in Vegelahn was indebted to
Chief Justice Shaw's opinion in Hunt. Holmes's reference
to a man's opening a business in a town that is too small
to accommodate two such businesses was almost identical
to Shaw's example of the townsfolk who set up a new baker
because the prices of the existing baker are too high.
In both cases, the actors meant to harm the businesses of
other persons, yet competition was a complete defense.
Also, Holmes adopted Shaw's focus on means and ends. The
workers sought improvement in their terms and conditions
of employment; these ends were lawful.
As for their
means, threats and violence were wrongful, and an
injunction could properly be issued against them; but
peaceful patrolling (which the majority called moral
intimidation) was not illegal.
Holmes was indebted to Shaw in another regard.
Holmes contended that it is wrong to harm another's
business, but competition is a defense.
Shaw had
recognized the defense of competition between businesses.
Holmes carried the idea further by recognizing that
workers are in competition with their employers. Holmes
argued that workers must be allowed the same freedom to
act in concert as capital is allowed to combine into
corporations.h
Holmes's ideas functioned much like Shaw's opinion
in the Hunt case: it had a relatively minor impact at
the time it was announced, but, by providing a rationale,
it served as the foundation for change in the future.
Upon Shaw's thoughts grew the notion that labor unions
are not criminal conspiracies. Upon Holmes's thoughts
h

As we argued above in this NOTE, Justice Allen also
seemed to have believed that workers compete with their

employers.

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xxi

grew the notion that unions are not civil conspiracies.
When the rest of America accepted these ideas, unions
were neither criminal nor civil conspiracies; they were
lawful organizations.
QUESTIONS FOR REFLECTION
1. Was the movement of labor cases from the criminal
to the civil courts a desirable development?
2. Does an employer have the right to hire any
willing worker? Does a worker have the right to accept
an employer's offer of a job? Does a union wrongfully
interfere with these rights?
3. Who are the real competitors in the labor market?
Do workers compete with one another, or do workers
compete with employers?
4. Justice Holmes wrote (¶ 15):
"One of the eternal conflicts out of
which life is made up is that between the
effort of every man to get the most he can for
his services, and that of society, disguised
under the name of capital, to get his services
for the least possible return. Combination on
the
one
side
is
patent
and
powerful.
Combination on the other is the necessary and
desirable counterpart, if the battle is to be
carried on in a fair and equal way...."
(a) How did Holmes know this? Do you think evidence to
this effect was presented to the court? (b) Assuming
Holmes's was correct that combinations of capital are
powerful, was his prescription apt?
Does the
accumulation of capital by employers justify unions'
attempt to create a monopoly of labor?
5. In the Philadelphia Cordwainers case Recorder
Levy asserted that often times many persons may not do
what one person may do, and jury agreed: for it found the
defendants guilty of a crime for jointly withholding
their labor in pursuit of higher wages, though everyone
agreed that an individual could withhold one's labor for
this purpose. In Vegelahn Justice Holmes disagreed with
Levy (¶ 14):

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"But there is a notion which latterly has been
insisted on a good deal, that a combination of
persons to do what any one of them lawfully might
do by himself will make the otherwise lawful
conduct unlawful.
It would be rash to say that
some as yet unformulated truth may not be hidden
under this proposition. But in the general form in
which it has been presented and accepted by many
courts, I think it plainly untrue, both on
authority and on principle. Commonwealth v. Hunt,
4 Met. 111...."

Was Hunt good authority for Holmes's view?
Did the
majority in Vegelahn disagree with Holmes on this score?
If so, why did the majority neglect to distinguish or
overrule Hunt; and if not, was the majority's opinion
grounded on other reasoning?

Ù

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91

Strikes and Boycotts as Violations of
Anti-trust Law
THE SHERMAN ACT OF 1890
Introduction
Danbury Hatters is an anti-trust case. The Sherman
Anti-trust Act of 1890 was passed primarily to control
business trusts and monopolies, but this act soon proved
effective in controlling labor unions. The defendants in
the case were the members of the United Hatters of North
America, a labor union that had organized 70 of 82 hat
manufacturers in America and that sought, as unions do,
to organize the rest. In particular, the union wanted
Mr. Loewe's firm to sign a union contract, but he
refused: whereupon the Hatters not only struck, but also
deployed two tactics that we have not previously seen in
the cases, namely, primary and secondary boycotts.
A
primary boycott is a campaign against the employer's
products. With the help of the American Federation of
Labor, the Hatters urged all of America's union members,
as well as other sympathetic persons, to refrain from
purchasing Loewe's hats.
A secondary boycott is an
effort to cause other employers, who are not directly
involved in the dispute (hence, they are called
"secondary employers"), to cease doing business with the
primary employer.
Secondary boycotts come in several
varieties; the one used in this case was a simple one,
being a boycott of the products of firms that dealt with
Loewe's (e.g., retailers who sold Loewe's hats). Again
with the help of the A F of L, the Hatters warned
wholesalers and retailers not to handle Loewe's hats and
threatened that, if they ignored the warnings, the union
would boycott their businesses as well.

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Loewe v. Lawlor
(The Danbury Hatters Case)
208 U.S. 274 (1908)

{The plaintiff manufactured hats in Danbury, Connecticut. The United
Hatters of North America was trying to organize the plaintiff's workers. The plaintiff
sued the members of the union, accusing them of conspiring to violate the anti-trust
act. Specifically, the plaintiff charged that, when he refused to sign a contract with
the union, it not only prepared to strike his plant, but also conspired with the
American Federation of Labor to organize a nation-wide boycott of his hats (a
primary boycott). In addition, the defendants threatened to boycott any wholesaler
or retailer who bought or sold the plaintiff's hats (a secondary boycott).
{Before a trial was held, the defendants moved to dismiss the case on the
ground that they had done nothing wrong; in other words, even if the facts in the
complaint were proved to be true, the plaintiff would lose. The District Court granted
the motion to dismiss, and the Court of Appeals affirmed.}
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
{1} This was an action brought in the Circuit Court for the District of
Connecticut under § 7 of the {Sherman} Anti-Trust Act of July 2, 1890, claiming
threefold damages for injuries inflicted on plaintiffs by a combination or conspiracy
declared to be unlawful by the act.
...
{2} The first, second and seventh sections of that act are as follows:
1. "Every contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the several States,
or with foreign nations, is hereby declared to be illegal. Every person who
shall make any such contract or engage in any such combination or
conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction
thereof, shall be punished by fine not exceeding five thousand dollars, or by
imprisonment not exceeding one year, or by both said punishments, in the
discretion of the court.
2. "Every person who shall monopolize, or attempt to monopolize,
or combine or conspire with any other person or persons, to monopolize any
part of the trade or commerce among the several States, or with foreign
nations, shall be deemed guilty of a misdemeanor, and, on conviction
thereof, shall be punished by fine not exceeding five thousand dollars, or by

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iii

imprisonment not exceeding one year, or by both said punishments, in the
discretion of the court."
7. "Any person who shall be injured in his business or property by
any other person or corporation by reason of anything forbidden or declared
to be unlawful by this act, may sue therefor in any Circuit Court of the
United States in the district in which the defendant resides or is found,
without respect to the amount in controversy, and shall recover three fold
the damages by him sustained, and the costs of suit, including a reasonable
attorney's fee."

{3} In our opinion, the combination described in the declaration is a
combination "in restraint of trade or commerce among the several States," in the
sense in which those words are used in the act, and the action can be maintained
accordingly.
{4} And that conclusion rests on many judgments of this court, to the effect
that the act prohibits any combination whatever to secure action which essentially
obstructs the free flow of commerce between the States, or restricts, in that regard,
the liberty of a trader to engage in business.
{5} The combination charged falls within the class of restraints of trade aimed
at compelling third parties and strangers involuntarily not to engage in the course of
trade except on conditions that the combination imposes; and there is no doubt that
(to quote from the well-known work of Chief Justice Erle on Trade Unions) "at
common law every person has individually, and the public also has collectively, a
right to require that the course of trade should be kept free from unreasonable
obstruction." But the objection here is to the jurisdiction, because, even conceding
that the declaration states a case good at common law, it is contended that it does not
state one within the statute....
...
{6} Nor can the act in question be held inapplicable because defendants were
not themselves engaged in interstate commerce. The act made no distinction between
classes. It provided that "every" contract, combination or conspiracy in restraint of
trade was illegal. The records of Congress show that several efforts were made to
exempt, by legislation, organizations of farmers and laborers from the operation of
the act and that all these efforts failed, so that the act remained as we have it before
us.
{7} In an early case, United States v. Workingmen's Amalgamated Council,
54 Fed. Rep. 994, the United States filed a bill under the Sherman act in the Circuit

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The Danbury Hatters Case

Court for the Eastern District of Louisiana, averring the existence of "a gigantic and
widespread combination of the members of a multitude of separate organizations for
the purpose of restraining the commerce among the several States and with foreign
countries," and it was contended that the statute did not refer to combinations of
laborers. But the court, granting the injunction, said:
"I think the Congressional debates show that the statute had its
origin in the evils of massed capital; but, when the Congress came to
formulating the prohibition, which is the yardstick for measuring the
complainant's right to the injunction, it expressed it in these words: 'Every
contract or combination in the form of trust, or otherwise in restraint of
trade or commerce among the several States or with foreign nations, is
hereby declared to be illegal.' The subject had so broadened in the minds of
the legislators that the source of the evil was not regarded as material, and
the evil in its entirety is dealt with. They made the interdiction include
combinations of labor, as well as of capital; in fact, all combinations in
restraint of commerce, without reference to the character of the persons who
entered into them. It is true this statute has not been much expounded by
judges, but, as it seems to me, its meaning, as far as relates to the sort of
combinations to which it is to apply, is manifest, and that it includes
combinations which are composed of laborers acting in the interest of
laborers.
...
"It is the successful effort of the combination of the defendants to
intimidate and overawe others who were at work in conducting or carrying
on the commerce of the country, in which the court finds their error and
their violation of the statute. One of the intended results of their combined
action was the forced stagnation of all the commerce which flowed through
New Orleans. This intent and combined action are none the less unlawful
because they included in their scope the paralysis of all other business
within the city as well."

....
{The judgment of the Court of Appeals was reversed, and the case was
remanded to the district court for a trial.}

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v

COMMENTS
THE ROLE OF STATUTES

Danbury Hatters is the first case in this book to
involve a statute. In the previous cases, decisions were
based on the common law, that is, the law as made by
judges.1 Perhaps the main reason for the importance of
the common law was the paucity of statutes in the
Nineteenth Century. In the Twentieth Century, however,
legislatures became increasingly active, passing more and
more statutes.
In theory and in practice, a statute trumps the
common law.
If the legislature of a jurisdiction is
unhappy with the law as announced by a court of that
jurisdiction, the legislature — being the more democratic
branch of government — may pass a statute that changes
the law; and the courts are bound to honor the statute.
Thus, there was a common law rule against restraint of
trade, but it was superceded by the Sherman Anti-trust
Act.2

1

The common law originated in medieval England. In those
days, the holder of a fief had the right to administer justice
in his fiefdom. This right was important not only because of
the power inherent in judging, but also because of fees the
lord of the fief could charge the parties for the privilege of
his justice.
Given the number of fiefs, the size of the
country, and the difficulty of communication (not to mention
the possibilities of caprice, corruption, and irrationality),
it is no surprise that rules of law varied from place to
place.
During the Middle Ages, kings struggled with lesser lords
for money and power.
As part of their effort to increase
royal revenue and influence, the kings dispatched itinerant
judges to dispense the king's justice throughout the realm.
Springing from a single font, the king's justice was expected
to be uniform, and indeed the king's judges met regularly to
discuss cases and harmonize their judgments. The law made by
the king's judges became known as the "common law" because it
was common throughout the land.
2

We prefaced this paragraph with the qualifier "in theory"
because it is the province of courts to interpret statutes.
Thus, for practical purposes, the courts have the last word on
(continued...)

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The Danbury Hatters Case
A NEW TACTIC ELICITS AN OLD RESPONSE

Several other aspects of the Danbury Hatters case
deserve attention. One is that unions had developed a
new tactic, and it was held illegal. The same thing had
happened twice before.
The unions' initial tactic,
maintaining a closed shop and striking for higher wages,
was outlawed in the Philadelphia Cordwainers case. The
unions' next major innovation in tactics, the picket
line, was outlawed in Vegelahn v. Guntner.
And now
boycotts were prohibited.
Whether there is a pattern
here, the student may judge for oneself. The student may
also wish to think about how the law is likely to treat
recent developments in union tactics, such as the
corporate campaign and the "labor rat."
EMPLOYERS MOVE TO THE FEDERAL COURTS

Another aspect of the Danbury Hatters case worth
noting is that, whereas Philadelphia Cordwainers,
Commonwealth v. Hunt, and Vegelahn v. Guntner were
decided by state courts, Danbury Hatters was a federal
case. Thus, a few words about precedents in state and
federal courts are in order. State judicial systems are
independent of one another. As a result, the decision of
a court in Alabama is not binding on a court in Wyoming.
Nevertheless, if a court in Wyoming is considering an
issue which has not previously been decided in Wyoming,
a precedent on that issue from Alabama will have some
persuasive force. The federal and state judicial systems
are, in large part, separate as well,3 but they overlap
to a degree. If a federal court is deciding an issue of

2

(...continued)
the meaning of the law: if judges are dissatisfied with a
statute, they can modify it by their (mis)interpretation of
it. The legislature, of course, is free to amend the statute
in order to correct the courts.
3

Occasionally, federal law displaces state law on an issue;
for example, a federal court may rule that a state law is
preempted by a federal law or that a state law is
unconstitutional under the federal constitution. Rulings of
this sort are much less frequent than the degree of attention
they receive might suggest.

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vii

state law,4 the federal court (even the U.S. Supreme
Court) will treat that state's precedents as binding on
that issue. If the state has no precedent on the issue,
the federal court will decide the issue by attempting to
determine how the state would have ruled; this decision
will not bind the state's courts, but may influence them.
Similarly, if a state court is deciding an issue of
federal law, the state court will follow federal
precedents. If no federal precedent exists on the issue,
the state court will decide the issue by attempting to
determine how the federal courts would rule; this
decision will not bind the federal courts, but may
influence them.
Hierarchies also affect precedents. The higher the
court, the more influential its decisions. Looking down
a line of authority, the decision of a higher court is,
naturally, binding on a lower court. Looking up a line
of authority, the decision of a lower court, though not
binding on a higher court, has some persuasive force. In
Danbury Hatters the Supreme Court was not bound by the
decision of the Circuit Court for the Eastern District of
Louisiana in U.S. v. Workingmen's Amalgamated Council,
yet the Supreme Court relied heavily on the lower court's
reasoning.
AN OLD THEORY IS REVIVED

A third noteworthy aspect of Danbury Hatters is that
the defendants were found liable for acting in
combination for the restraint of trade.
The idea of
combination was important a hundred years earlier when
union activity was held to be a criminal conspiracy.
Anti-trust cases are civil, not criminal, cases.
In
Vegelahn v. Guntner, the judges began translating the
doctrine of criminal conspiracy into civil conspiracy,
and the Danbury Hatters case continued this process.
Indeed, shortly before the Sherman Act was passed, the
Supreme Court held that some kinds of union activity were
criminal conspiracies. The case was Callan v. Wilson,
127 U.S. 540, decided in 1888. A musician named Krause

4

Federal courts may decide issues of state law, and state
courts may decide issues of federal law.
It is a common
mistake to believe that state courts may hear only state cases
and federal courts may hear only federal cases.

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evidently broke a union rule and was fined.
When he
refused to pay, the defendants, who were probably leaders
of the union, used the Cordwainers' tactic: they directed
that union members refuse to work for any employer who
hired Krause; and when some musicians ignored this
directive, the union directed that members refuse to work
for any employer who hired these musicians as well: in
short, the union blacklisted Krause and boycotted
employers who hired him or his allies. The defendants
were charged with criminal conspiracy.
The precise
holding of the Supreme Court is that the defendants were
entitled to a jury trial; but, implicitly, the Court held
that this sort of boycott was a crime.
If the Court
believed that the musicians' boycott was a criminal
conspiracy, we should not be surprised to find that the
Court believed that the Hatters' boycott was a civil
conspiracy.
AN EXPLANATION OF THE DECISION

The holding of the Danbury Hatters case has been
criticized because it authorized the courts, with no
guidance from the legislature, to create a new body of
law to regulate labor unions. Critics argue that courts
should not engage in this kind of law making. But the
courts continue to make new law when it suits them.
Why did the Court rule as it did?
Why were the
courts so willing to extend anti-trust law to cover
unions? Willie Forbath offers this explanation: At the
local level, a union has to control the supply of labor
in order to organize a firm and bargain with its owner.
By the start of the Twentieth Century, the judges were
largely willing to tolerate this degree of monopoly. But
several unions at this time had gone beyond the local
level of activity. They had created national federations
which were capable of organizing large-scale primary and
secondary boycotts. These national unions were assuming
the characteristics of trusts. Many federal judges were
strongly opposed to the great trusts of the late
Nineteenth Century; the trusts were monopolistic and
anti-competitive. As unions began to resemble business
trusts, judges became willing to invoke anti-trust law
against organized labor.

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ix

THE REST OF THE STORY

The student may be curious about what happened to
the Hatters. There had been no trial as yet. Rather,
when Mr. Loewe, the plaintiff, filed the complaint, the
defendants asked the court to dismiss the complaint on
the ground that, even if every fact alleged in the
complaint were proved to be true, the defendants would
still win because the law did not apply to union
activity. It would be as if Kalil's roommate sued him
for burping too often. Kalil would move to dismiss the
complaint because, even if he did it, it was not against
the law.5 The lower courts agreed with the defendants;
they held that the Sherman Act did not apply to unions
and, accordingly, dismissed the complaint. As you have
read, the Supreme Court disagreed; it held the law did
cover unions. But this holding did not mean that Mr.
Loewe won. The holding only meant that, if he proved the
facts he alleged in the complaint, he would win. So the
case was sent back to the district court for a trial.
The plaintiff won the trial.
The court found the
boycotts had cost his business over $80,000. Under the
Sherman Act, a victim of a restraint of trade is entitled
to treble damages plus court costs. As a result, Mr.
Loewe was awarded $252,000, which was a huge sum in 1908.
The Supreme Court affirmed this award. Lawlor v. Loewe,
235 U.S. 522 (1915). The plaintiff had sued, not the
union, but the individual members of the union.
The
reason was that unions are unincorporated associations,
which lacked legal standing in the past; they could not
sue or be sued. As a result, the plaintiff started to
collect this money from the workers. He attached their
bank accounts and began to levy on their houses. The A
F of L launched a campaign to raise money and eventually
settled the case for $234,000 cash.
The case,
particularly the employer's attempt to seize the workers'
homes, became a cause celebre, and the memory of the case
influenced Congress four decades later to limit employers
to collecting damages from unions, never from workers
(section 301(b) of the Taft-Hartley Act).

5

In this regard, Kalil's case would be analogous to
Commonwealth v. Hunt, in which the court held that the
indictment did not allege a crime.

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QUESTIONS FOR REFLECTION
1. For the purpose of interpreting a statute —
Rule 1.

A tribunal will not allow legislators to
testify as to the meaning of a statute
that has been enacted.

Rule 2.

A tribunal will use for this purpose
legislators' remarks while the bill that
became the statute was being debated.

What reasons support these rules?
be changed?

Should either of them

2. Was the pattern noted above — unions develop a
new tactic, courts outlaw it — merely a coincidence, or
was it caused by something fundamental in American
institutions?
3. The Court drew arguments in support of its
holding from the text of the statute, the legislative
history of the statute, other courts' decisions, and
scholarship.
Purpose of the act is also used to
illuminate the will of Congress. Can these sources be
ranked in a hierarchy of authority?
4. If anti-trust law as applied to unions was a
species of the law of civil conspiracy, the union's means
or ends must have been illegal. Which was it?
5. Labor law today provides that a judgment against
a union cannot be collected from its members. Is this a
good rule? Should not the members of an organization be
responsible to parties whom it injures?

Ù

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101

Strikes and Boycotts as Violations of
Anti-trust Law (continued)
THE CLAYTON ACT OF 1914
Introduction
Like the Danbury Hatters case, the following case,
Duplex v. Deering, involves primary and secondary
boycotts. In a primary boycott, the union urges people
to stop dealing with an employer who will not accede to
the union's demands.
This employer is known as the
primary employer because the union's primary dispute is
with this firm.
Primary boycotts come in several
varieties.
Perhaps the most common is a consumer
boycott, in which the union urges consumers not to
purchase the employer's products. Although not commonly
referred to as a boycott, a strike may be considered a
kind of primary boycott because the union asks workers
not to accept employment with the primary employer. The
essence of the primary boycott is that the union seeks to
apply economic pressure directly against the offending
employer.
In contrast, in a secondary boycott the union uses
economic pressure to induce other firms to cease doing
business with the primary employer.
These firms are
known as secondary (or neutral) employers because the
union has no dispute with them (except that they do
business with the primary employer). Secondary employers
supply goods or services to the primary employer (for
example, raw materials and transportation) or buy goods
or services from the primary employer (for example,
finished products). A secondary boycott involves more
than a mere request that a secondary firm cease dealing
with a primary employer; a secondary boycott involves the
union's use of economic force to compel the secondary
employer to sever ties with the primary employer. Thus,
a union might strike a secondary employer until it stops
dealing with the primary employer, or union members who
work for secondary employers might refuse to handle any
goods coming from the primary employer.

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Duplex v. Deering

Primary
Employer

Secondary
Employer

Union

Both primary and secondary boycotts occurred in the
Danbury Hatters Case. The union went on strike against
the primary employer, Loewe's, which manufactured hats,
and asked consumers not to buy its hats.
This was a
primary boycott.
The union also urged people not to
patronize any shops that sold Loewe's hats. This was a
secondary boycott because it put economic pressure on
secondary employers (retail merchants) to induce them to
cease doing business with the primary employer.
Both primary and secondary boycotts also occurred in
the following case, Duplex v. Deering.
The employer,
Duplex, manufactured printing presses.
The union's
strike against Duplex was unsuccessful.
A primary
boycott would have been worthless because the market for
printing presses was small, so the union organized
secondary boycotts. The union threatened to strike any
business that purchased presses made by Duplex.
The
union threatened to organize a strike of the employees of
the trucking company that transported Duplex's presses.
The union threatened to strike repair shops that serviced
Duplex's presses, and so forth.
Duplex responded to the secondary boycotts by
seeking an injunction against them, and such an
injunction would almost surely have been issued under the

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iii

Sherman Anti-trust Act. But the legal environment had
recently changed. After the Danbury Hatters case,
organized labor vigorously sought exemption from the
Sherman Act. The result was the Clayton Act of 1914,
which amended the Sherman Act. When Congress debated the
bill that became the Clayton Act, a major issue was how
anti-trust law should apply to labor unions.
Samuel Gompers hailed the Clayton Act as the
"industrial Magna Carta" for working people. Courts had
treated human labor like any other article of commerce at
least since Commonwealth v. Hunt, but section 6 of the
Clayton Act declared:
"That the labor of a human being is not a
commodity or article of commerce."
This declaration seemed to remove labor from the reach of
anti-trust law, which applies to restraint of trade: if
human labor is not a commodity or article of commerce, it
cannot be traded and a monopoly of labor is not a
restraint of trade. Section 6 continued:
"Nothing contained in the anti-trust laws shall
be construed to forbid the existence and
operation of labor ... organizations ... or to
forbid ... such organizations from lawfully
carrying out the legitimate objects thereof;
nor shall such organizations ... be held or
construed to be illegal combinations or
conspiracies in restraint of trade ...."
Gompers declared, "These words are sledgehammer blows to
the wrongs and injustices so long inflicted on the
workers."a And if these sledgehammer blows were not good
enough, the first paragraph of section 20 of the Clayton
Act added:
"That no restraining order or injunction shall
be granted by any [federal court] ... in any
case between an employer and employees ...
involving, or growing out of, a dispute
concerning terms and conditions of employment,
unless necessary to prevent irreparable injury

a

Summers and Wellington, Labor Law, 1st ed., p. 174.

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to property ...; and no such restraining order
or injunction shall prohibit any person ...
from ceasing to perform any work or labor or
from recommending, advising, or persuading
others by peaceful means so to do ... or from
ceasing to patronize ... any party to such
dispute, or from persuading others by peaceful
and lawful means so to do ...."

These words seemed to prohibit federal courts from
issuing injunctions against strikes and boycotts. The
second paragraph of section 20 concluded with the clause,
"nor shall any of the acts specified in this paragraph be
considered or held to be violations of any [federal]
law...."
This clause seemed to say that strikes and
boycotts were lawful.
But the attentive student has noticed that we
consistently said that the Act seemed to do this or that.
In fact, it did not do any of this. Samuel Gompers was
wrong, as Duplex v. Deering demonstrated.

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v

Duplex Printing Co. v. Deering
254 U.S. 443 (1921)

MR. JUSTICE PITNEY delivered the opinion of the court.
{1} This was a suit in equity brought by appellant in the District Court for the
Southern District of New York for an injunction to restrain a course of conduct
carried on by defendants in that District and vicinity in maintaining a boycott against
the products of complainant's factory.... Complainant is a Michigan corporation and
manufactures printing presses at a factory in Battle Creek, in that State, employing
about 200 machinists in the factory in addition to 50 office-employees, traveling
salesmen, and expert machinists or road men who supervise the erection of the
presses for complainant's customers at their various places of business.....
{2} ... Complainant conducts its business on the "open shop" policy, without
discrimination against either union or non-union men. The individual defendants and
the local organizations of which they are the representatives are affiliated with the
International Association of Machinists, an unincorporated association having a
membership of more than 60,000; and are united in a combination, to which the
International Association also is a party, having the object of compelling complainant
to unionize its factory and enforce the "closed shop," the eight-hour day, and the
union scale of wages, by means of interfering with and restraining its interstate trade
in the products of the factory. Complainant's principal manufacture is newspaper
presses of large size and complicated mechanism, varying in weight from 10,000 to
100,000 pounds, and requiring a considerable force of labor and a considerable
expenditure of time — a week or more — to handle, haul and erect them at the point
of delivery. These presses are sold throughout the United States and in foreign
countries; and, as they are especially designed for the production of daily papers,
there is a large market for them in and about the City of New York. They are
delivered there in the ordinary course of interstate commerce, the handling, hauling
and installation work at destination being done by employees of the purchaser under
the supervision of a specially skilled machinist supplied by complainant. The acts
complained of and sought to be restrained have nothing to do with the conduct or
management of the factory in Michigan, but solely with the installation and operation
of the presses by complainant's customers. None of the defendants is or ever was an
employee of complainant, and complainant at no time has had relations with either
of the organizations that they represent. In August, 1913 (eight months before the
filing of the bill), the International Association called a strike at complainant's factory
in Battle Creek, as a result of which union machinists to the number of about eleven
in the factory and three who supervised the erection of presses in the field left
complainant's employ. But the defection of so small a number did not materially
interfere with the operation of the factory, and sales and shipments in interstate

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commerce continued. The acts complained of made up the details of an elaborate
programme adopted and carried out by defendants and their organizations in and
about the City of New York as part of a country-wide programme adopted by the
International Association, for the purpose of enforcing a boycott of complainant's
product. The acts embraced the following, with others: warning customers that it
would be better for them not to purchase, or having purchased not to install, presses
made by complainant, and threatening them with loss should they do so; threatening
customers with sympathetic strikes in other trades; notifying a trucking company
usually employed by customers to haul the presses not to do so, and threatening it
with trouble if it should; inciting employees of the trucking company, and other men
employed by customers of complainant, to strike against their respective employers
in order to interfere with the hauling and installation of presses, and thus bring
pressure to bear upon the customers; notifying repair shops not to do repair work on
Duplex presses; coercing union men by threatening them with loss of union cards and
with being blacklisted as "scabs" if they assisted in installing the presses; threatening
an exposition company with a strike if it permitted complainant's presses to be
exhibited; and resorting to a variety of other modes of preventing the sale of presses
of complainant's manufacture in or about New York City, and delivery of them in
interstate commerce, such as injuring and threatening to injure complainant's
customers and prospective customers, and persons concerned in hauling, handling,
or installing the presses. In some cases the threats were undisguised, in other cases
polite in form but none the less sinister in purpose and effect. {The district court
refused to grant an injunction and dismissed the case.} All the judges of the Circuit
Court of Appeals concurred in the view that defendants' conduct consisted essentially
of efforts to render it impossible for complainant to carry on any commerce in
printing presses between Michigan and New York; and that defendants had agreed
to do and were endeavoring to accomplish the very thing pronounced unlawful by this
court in Loewe v. Lawlor, 208 U.S. 274; 235 U.S. 522.... {Nevertheless, the Court
of Appeals affirmed the decree of the district court.}

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...
{3} ... {C}omplainant's business of manufacturing printing presses and
disposing of them in commerce is a property right, entitled to protection against
unlawful injury or interference; ... unrestrained access to the channels of interstate
commerce is necessary for the successful conduct of the business; ... a widespread
combination exists, to which defendants and the associations represented by them are
parties, to hinder and obstruct complainant's interstate trade and commerce by the
means that have been indicated; and ... as a result of it complainant has sustained
substantial damage to its interstate trade, and is threatened with further and
irreparable loss and damage in the future{. These facts are} proved by clear and
undisputed evidence. Hence the right to an injunction is clear if the threatened loss
is due to a violation of the Sherman Act as amended by the Clayton Act.
{4} Looking first to the former act, the thing declared illegal by its first
section is
"Every contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several States, or
with foreign nations."

The accepted definition of a conspiracy is, a combination of two or more persons by
concerted action to accomplish a criminal or unlawful purpose, or to accomplish
some purpose not in itself criminal or unlawful by criminal or unlawful means. If the
purpose be unlawful it may not be carried out even by means that otherwise would
be legal; and although the purpose be lawful it may not be carried out by criminal or
unlawful means.
{5} The substance of the matters here complained of is an interference with
complainant's interstate trade, intended to have coercive effect upon complainant, and
produced by what is commonly known as a "secondary boycott," that is, a
combination not merely to refrain from dealing with complainant, or to advise or by
peaceful means persuade complainant's customers to refrain ("primary boycott"), but
to exercise coercive pressure upon such customers, actual or prospective, in order to
cause them to withhold or withdraw patronage from complainant through fear of loss
or damage to themselves should they deal with it.
{6} As we shall see, the recognized distinction between a primary and a
secondary boycott is material to be considered upon the question of the proper
construction of the Clayton Act. But, in determining the right to an injunction under
that and the Sherman Act, it is of minor consequence whether either kind of boycott
is lawful or unlawful at common law or under the statutes of particular States....

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{7} In Loewe v. Lawlor, 208 U.S. 274, where there was an effort to compel
plaintiffs to unionize their factory by preventing them from manufacturing articles
intended for transportation beyond the State, and also by preventing vendees from
reselling articles purchased from plaintiffs and negotiating with plaintiffs for further
purchases, by means of a boycott of plaintiffs' products and of dealers who handled
them, this court held that there was a conspiracy in restraint of trade actionable under
§ 7 of the Sherman Act, and in that connection said (p. 293):
"The act prohibits any combination whatever to secure action which
essentially obstructs the free flow of commerce between the States, or
restricts, in that regard, the liberty of a trader to engage in business.
The combination charged falls within the class of restraints of trade
aimed at compelling third parties and strangers involuntarily not to
engage in the course of trade except on conditions that the
combination imposes."
And when the case came before the court a second time, Lawlor v. Loewe, 235 U.S.
522, it was held that the use of the primary and secondary boycott and the circulation
of a list of "unfair dealers," intended to influence customers of plaintiffs and thus
subdue the latter to the demands of the defendants, and having the effect of interfering
with plaintiffs' interstate trade, was actionable.
{8} In Eastern States Retail Lumber Dealers' Association v. United States,
234 U.S. 600, {retailers of lumber wanted to prevent wholesalers from selling directly
to consumers;} wholesale dealers {who persisted in selling to consumers} were
subjected to coercion merely through the circulation among retailers, who were
members of the association, of information in the form of a kind of "black list,"
intended to influence the retailers to refrain from dealing with the listed wholesalers,
and it was held that this constituted a violation of the Sherman Act. Referring to this
decision, the court said, in Lawlor v. Loewe, 235 U.S. 522, 534, "That case
establishes that, irrespective of compulsion ... the circulation of a list of 'unfair
dealers,' manifestly intended to put the ban upon those whose names appear therein,
among an important body of possible customers combined with a view to joint action
and in anticipation of such reports, is within the prohibitions of the Sherman Act if
it is intended to restrain and restrains commerce among the States."
{9} It is settled by these decisions that such a restraint produced by peaceable
persuasion is as much within the prohibition as one accomplished by force or threats
of force; and it is not to be justified by the fact that the participants in the combination
or conspiracy may have some object beneficial to themselves or their associates
which possibly they might have been at liberty to pursue in the absence of the statute.

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ix

{10} Upon the question whether the provisions of the Clayton Act forbade the
grant of an injunction under the circumstances of the present case, the Circuit Court
of Appeals was divided; the majority holding that under § 20, "perhaps in conjunction
with section 6," there could be no injunction. These sections are set forth in the
margin.a Defendants seek to derive from them some authority for their conduct. As
to § 6, it seems to us its principal importance in this discussion is for what it does not
authorize, and for the limit it sets to the immunity conferred. The section assumes the
normal objects of a labor organization to be legitimate, and declares that nothing in
the anti-trust laws shall be construed to forbid the existence and operation of such
organizations or to forbid their members from lawfully carrying out their legitimate
objects; and that such an organization shall not be held in itself — merely because of
its existence and operation — to be an illegal combination or conspiracy in restraint

"Sec. 6. That the labor of a human being is not a commodity or article of commerce.
Nothing contained in the antitrust laws shall be construed to forbid the existence and
operation of labor, agricultural, or horticultural organizations, instituted for the purposes of
mutual help, and not having capital stock or conducted for profit, or to forbid or restrain
individual members of such organizations from lawfully carrying out the legitimate objects
thereof; nor shall such organizations, or the members thereof, be held or construed to be
illegal combinations or conspiracies in restraint of trade, under the antitrust laws."
a

"Sec. 20. That no restraining order or injunction shall be granted by any court of
the United States, or a judge or the judges thereof, in any case between an employer and
employees, or between employers and employees, or between employees, or between
persons employed and persons seeking employment, involving, or growing out of, a dispute
concerning terms or conditions of employment, unless necessary to prevent irreparable injury
to property, or to a property right, of the party making the application, for which injury there
is no adequate remedy at law, and such property or property right must be described with
particularity in the application, which must be in writing and sworn to by the applicant or
by his agent or attorney.
"And no such restraining order or injunction shall prohibit any person or persons,
whether singly or in concert, from terminating any relation of employment, or from ceasing
to perform any work or labor, or from recommending, advising, or persuading others by
peaceful means so to do; or from attending at any place where any such person or persons
may lawfully be, for the purpose of peacefully obtaining or communicating information, or
from peacefully persuading any person to work or to abstain from working; or from ceasing
to patronize or to employ any party to such dispute, or from recommending, advising, or
persuading others by peaceful and lawful means so to do; or from paying or giving to, or
withholding from, any person engaged in such dispute, any strike benefits or other moneys
or things of value; or from peaceably assembling in a lawful manner, and for lawful
purposes; or from doing any act or thing which might lawfully be done in the absence of
such dispute by any party thereto; nor shall any of the acts specified in this paragraph be
considered or held to be violations of any law of the United States."

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of trade. But there is nothing in the section to exempt such an organization or its
members from accountability where it or they depart from its normal and legitimate
objects and engage in an actual combination or conspiracy in restraint of trade. And
by no fair or permissible construction can it be taken as authorizing any activity
otherwise unlawful, or enabling a normally lawful organization to become a cloak for
an illegal combination or conspiracy in restraint of trade as defined by the anti-trust
laws.
{11} The principal reliance is upon § 20. This regulates the granting of
restraining orders and injunctions by the courts of the United States in a designated
class of cases.... All its provisions are subject to a general qualification respecting the
nature of the controversy and the parties affected. It is to be a "case between an
employer and employees, or between employers and employees, or between
employees, or between persons employed and persons seeking employment,
involving, or growing out of, a dispute concerning terms or conditions of
employment."
{12} The first paragraph ... is but declaratory of the law as it stood before {the
Clayton Act was passed}. The second paragraph declares that "no such restraining
order or injunction" shall prohibit certain conduct specified — manifestly still
referring to a "case between an employer and employees ... involving, or growing out
of, a dispute concerning terms or conditions of employment," as designated in the
first paragraph. It is very clear that the restriction upon the use of the injunction is in
favor only of those concerned as parties to such a dispute as is described....
{13} The majority of the Circuit Court of Appeals appear to have entertained
the view that the words "employers and employees," as used in § 20, should be treated
as referring to "the business class or clan to which the parties litigant respectively
belong"; and that, as there had been a dispute at complainant's factory in Michigan
concerning the conditions of employment there — a dispute created, it is said, if it did
not exist before, by the act of the Machinists' Union in calling a strike at the factory
— § 20 operated to permit members of the Machinists' Union elsewhere — some
60,000 in number — although standing in no relation of employment under
complainant, past, present, or prospective, to make that dispute their own and proceed
to instigate sympathetic strikes, picketing, and boycotting against employers wholly
unconnected with complainant's factory and having relations with complainant only
in the way of purchasing its product in the ordinary course of interstate commerce —
and this where there was no dispute between such employers and their employees
respecting terms or conditions of employment.
{14} We deem this construction altogether inadmissible. Section 20 must be
given full effect according to its terms as an expression of the purpose of Congress;

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xi

but it must be borne in mind that the section imposes an exceptional and
extraordinary restriction upon the equity powers of the courts of the United States and
upon the general operation of the anti-trust laws, a restriction in the nature of a special
privilege or immunity to a particular class, with corresponding detriment to the
general public.... Full and fair effect will be given to every word if the exceptional
privilege be confined — as the natural meaning of the words confines it — to those
who are proximately and substantially concerned as parties to an actual dispute
respecting the terms or conditions of their own employment, past, present, or
prospective.a The extensive construction adopted by the majority of the court below
virtually ignores the effect of the qualifying words. Congress had in mind particular
industrial controversies, not a general class war. "Terms or conditions of
employment" are the only grounds of dispute recognized as adequate to bring into
play the exemptions; and it would do violence to the guarded language employed
were the exemption extended beyond the parties affected in a proximate and
substantial, not merely a sentimental or sympathetic, sense by the cause of dispute.
{15} Nor can § 20 be regarded as bringing in all members of a labor
organization as parties to a "dispute concerning terms or conditions of employment"
which proximately affects only a few of them, with the result of conferring upon any
and all members — no matter how many thousands there may be, nor how remote
from the actual conflict — those exemptions which Congress in terms conferred only
upon parties to the dispute. That ... would virtually repeal by implication the
prohibition of the Sherman Act, so far as labor organizations are concerned,
notwithstanding repeals by implication are not favored; and in effect, as was noted
in Loewe v. Lawlor, 208 U.S. 274, 303-304, would confer upon voluntary
associations of individuals formed within the States a control over commerce among
the States that is denied to the governments of the States themselves.
{16} The qualifying effect of the words descriptive of the nature of the dispute
and the parties concerned is further borne out by the phrases defining the conduct that
is not to be subjected to injunction or treated as a violation of the laws of the United
States, that is to say:
(a) "terminating any relation of employment ... or persuading others by
peaceful and lawful means so to do"; (b) "attending at any place where any

{In other words, the phrase in § 20 "a dispute concerning terms or conditions of
employment" applies only to a labor dispute between an employer and one's own employees;
the term does not apply to disagreements between an employer and any other workers. As
a result, the exemption from anti-trust law created by the Clayton Act protects only workers
who are engaged in labor conflict with their own employer. The defendants in the case at
bar, not being employees of Duplex, were not exempt from anti-trust law. —ed.}
a

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such person or persons may lawfully be, for the purpose of peacefully
obtaining or communicating information, or from peacefully persuading any
person to work or to abstain from working;" (c) "ceasing to patronize or to
employ any party to such dispute, or ... recommending, advising, or
persuading others by peaceful and lawful means so to do"; (d) "paying or
giving to, or withholding from, any person engaged in such dispute, any
strike benefits..."; (e) "doing any act or thing which might lawfully be done
in the absence of such dispute by any party thereto."

The emphasis placed on the words "lawful" and "lawfully," "peaceful" and
"peacefully," and the references to the dispute and the parties to it, strongly rebut a
legislative intent to confer a general immunity for conduct violative of the anti-trust
laws, or otherwise unlawful. The subject of the boycott is dealt with specifically in
the "ceasing to patronize" provision, and by the clear force of the language employed
the exemption is limited to pressure exerted upon a "party to such dispute" by means
of "peaceful and lawful" influence upon neutrals. There is nothing here to justify
defendants or the organizations they represent in using either threats or persuasion to
bring about strikes or a cessation of work on the part of employees of complainant's
customers or prospective customers, or of the trucking company employed by the
customers, with the object of compelling such customers to withdraw or refrain from
commercial relations with complainant, and of thereby constraining complainant to
yield the matter in dispute. To instigate a sympathetic strike in aid of a secondary
boycott cannot be deemed "peaceful and lawful" persuasion. In essence it is a threat
to inflict damage upon the immediate employer, between whom and his employees
no dispute exists, in order to bring him against his will into a concerted plan to inflict
damage upon another employer who is in dispute with his employees.
{17} The majority of the Circuit Court of Appeals, very properly treating the
case as involving a secondary boycott, based the decision upon the {mistaken} view
that it was the purpose of § 20 to legalize the secondary boycott "at least in so far as
it rests on, or consists of, refusing to work for any one who deals with the principal
offender." ...
...
{18} The extreme and harmful consequences of the construction adopted in
the court below are not to be ignored. The present case furnishes an apt and
convincing example. An ordinary controversy in a manufacturing establishment, said
to concern the terms or conditions of employment there, has been held {by the union
to be} a sufficient occasion for imposing a general embargo upon the products of the
establishment and a nation-wide blockade of the channels of interstate commerce
against them, carried out by inciting sympathetic strikes and a secondary boycott
against complainant's customers, to the great and incalculable damage of many

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xiii

innocent people far remote from any connection with or control over the original and
actual dispute — people constituting, indeed, the general public upon whom the cost
must ultimately fall, and whose vital interest in unobstructed commerce constituted
the prime and paramount concern of Congress in enacting the antitrust laws, of which
the section under consideration forms after all a part.
...
Decree reversed....
MR. JUSTICE BRANDEIS, dissenting, with whom MR. JUSTICE HOLMES and
MR. JUSTICE CLARKE, concur.
{19} The Duplex Company, a manufacturer of newspaper printing presses,
seeks to enjoin officials of the machinists' and affiliated unions from interfering with
its business by inducing their members not to work for plaintiff or its customers in
connection with the setting up of presses made by it. Unlike Hitchman Coal & Coke
Co. v. Mitchell, 245 U.S. 229, there is here no charge that defendants are inducing
employees to break their contracts. Nor is it now urged that defendants threaten acts
of violence. But plaintiff insists that the acts complained of violate both the common
law of New York and the Sherman Act and that, accordingly, it is entitled to relief by
injunction under the state law and under § 16 of the Clayton Act.
{20} The defendants admit interference with plaintiff's business but justify on
the following ground: There are in the United States only four manufacturers of such
presses; and they are in active competition. Between 1909 and 1913 the machinists'
union induced three of them to recognize and deal with the union, to grant the
eight-hour day, to establish a minimum wage scale and to comply with other union
requirements. The fourth, the Duplex Company, refused to recognize the union;
insisted upon conducting its factory on the open shop principle; refused to introduce
the eight-hour day and operated for the most part, ten hours a day; refused to establish
a minimum wage scale; and disregarded other union standards. Thereupon two of the
three manufacturers who had assented to union conditions, notified the union that
they should be obliged to terminate their agreements with it unless their competitor,
the Duplex Company, also entered into the agreement with the union, which, in
giving more favorable terms to labor, imposed correspondingly greater burdens upon
the employer. Because the Duplex Company refused to enter into such an agreement
and in order to induce it to do so, the machinists' union declared a strike at its factory,
and in aid of that strike instructed its members and the members of affiliated unions
not to work on the installation of presses which plaintiff had delivered in New York.
Defendants insist that by the common law of New York, where the acts complained

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of were done, and where this suit was brought, and also by § 20 of the Clayton Act,
the facts constitute a justification for this interference with plaintiff's business.
{21} First. As to the rights at common law:b Defendants' justification is that
of self-interest. They have supported the strike at the employer's factory by a strike
elsewhere against its product. They have injured the plaintiff, not maliciously, but
in self-defense. They contend that the Duplex Company's refusal to deal with the
machinists' union and to observe its standards threatened the interest not only of such
union members as were its factory employees, but even more of all members of the
several affiliated unions employed by plaintiff's competitors and by others whose
more advanced standards the plaintiff was, in reality, attacking; and that none of the
defendants and no person whom they are endeavoring to induce to refrain from
working in connection with the setting up of presses made by plaintiff is an outsider,
an interloper. In other words, that the contest between the company and the
machinists' union involves vitally the interest of every person whose cooperation is
sought. May not all with a common interest join in refusing to expend their labor
upon articles whose very production constitutes an attack upon their standard of
living and the institution which they are convinced supports it? Applying
common-law principles the answer should, in my opinion, be: Yes, if as matter of fact
those who so cooperate have a common interest.
{22} The change in the law by which strikes once illegal and even criminal
are now recognized as lawful was effected in America largely without the
intervention of legislation. This reversal of a common-law rule was not due to the
rejection by the courts of one principle and the adoption in its stead of another, but
to a better realization of the facts of industrial life. It is conceded that, although the
strike of the workmen in plaintiff's factory injured its business, the strike was not an
actionable wrong because the obvious self-interest of the strikers constituted a
justification. Formerly courts held that self-interest could not be so served {e.g., the
Philadelphia Cordwainers case}. But even after strikes to raise wages or reduce
hours were held to be legal because of self-interest {e.g., Commonwealth v. Hunt),
some courts held that there was not sufficient causal relationship between a strike to
unionize a shop and the self-interest of the strikers to justify injuries inflicted. But
other courts, repeating the same legal formula, found that there was justification,

{The majority relied on the Clayton Act to issue the injunction. Consequently, the
student may be wondering why Justice Brandeis discussed the common law of conspiracy.
The reason may be that the plaintiff sought an injunction under either the common law or
the Clayton Act. Brandeis argued below that the majority was mistaken and the Clayton Act
did not allow an injunction. But even if this argument were correct, it was still possible that
the plaintiff was entitled to an injunction under the common law. Therefore, Brandeis had
to show that the common law did not support an injunction. — ed.}
b

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because they viewed the facts differently. When centralization in the control of
business brought its corresponding centralization in the organization of workingmen,
new facts had to be appraised. A single employer might, as in this case, threaten the
standing of the whole organization and the standards of all its members; and when he
did so the union, in order to protect itself, would naturally refuse to work on his
materials wherever found. When such a situation was first presented to the courts,
judges concluded that the intervention of the purchaser of the materials established
an insulation through which the direct relationship of the employer and the
workingmen did not penetrate; and the strike against the material was considered a
strike against the purchaser by unaffected third parties. But other courts, with better
appreciation of the facts of industry, recognized the unity of interest throughout the
union, and that, in refusing to work on materials which threatened it, the union was
only refusing to aid in destroying itself.
{23} So, in the case at bar ... I should say, as the two lower courts apparently
have said, that the defendants and those from whom they sought cooperation have a
common interest which the plaintiff threatened. This view is in harmony with the
views of the Court of Appeals of New York. For in New York, although boycotts
like that in Loewe v. Lawlor, 208 U.S. 274, are illegal because they are conducted not
against a product but against those who deal in it and are carried out by a combination
of persons not united by common interest but only by sympathy, it is lawful for all
members of a union by whomever employed to refuse to handle materials whose
production weakens the union.... In my opinion, therefore, plaintiff had no cause of
action by the common law of New York.
{24} Second. As to the anti-trust laws of the United States: {The Clayton
Act} was the fruit of unceasing agitation, which extended over more than twenty
years and was designed to equalize before the law the position of workingmen and
employer as industrial combatants. Aside from the use of the injunction, the chief
source of dissatisfaction with the existing law lay in the doctrine of malicious
combination {i.e., conspiracy}, and, in many parts of the country, in the judicial
declarations of the illegality at common law of picketing and persuading others to
leave work. The grounds for objection to the latter are obvious. The objection to the
doctrine of malicious combinations requires some explanation. By virtue of that
doctrine, damage resulting from conduct such as striking or withholding patronage
or persuading others to do either, which without more might be damnum absque
injuria because the result of trade competition, became actionable when done for a
purpose which a judge considered socially or economically harmful and therefore
branded as malicious and unlawful. It was objected that, due largely to environment,
the social and economic ideas of judges, which thus became translated into law, were
prejudicial to a position of equality between workingman and employer; that due to
this dependence upon the individual opinion of judges great confusion existed as to

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what purposes were lawful and what unlawful; and that in any event Congress, not
the judges, was the body which should declare what public policy in regard to the
industrial struggle demands.
{25} By 1914 the ideas of the advocates of legislation had fairly crystallized
upon the manner in which the inequality and uncertainty of the law should be
removed. It was to be done by expressly legalizing certain acts regardless of the
effects produced by them upon other persons. As to them Congress was to extract the
element of injuria from the damages thereby inflicted, instead of leaving judges to
determine according to their own economic and social views whether the damage
inflicted on an employer in an industrial struggle was damnum absque injuria,
because an incident of trade competition, or a legal injury, because in their opinion,
economically and socially objectionable. This idea was presented to the committees
which reported the Clayton Act. The resulting law set out certain acts which had
previously been held unlawful, whenever courts had disapproved of the ends for
which they were performed; it then declared that, when these acts were committed in
the course of an industrial dispute, they should not be held to violate any law of the
United States. In other words the Clayton Act substituted the opinion of Congress as
to the propriety of the purpose for that of differing judges; and thereby it declared that
the relations between employers of labor and workingmen were competitive relations,
that organized competition was not harmful and that it justified injuries necessarily
inflicted in its course. Both the majority and the minority report of the House
Committee indicate that such was its purpose. If, therefore, the act applies to the case
at bar, the acts here complained of cannot "be considered or held to be violations of
any law of the United States," and, hence, do not violate the Sherman Act.
{26} The Duplex Company contends that § 20 of the Clayton Act does not
apply to the case at bar, because it is restricted to cases "between an employer and
employees, or between employers and employees, or between employees, or between
persons employed and persons seeking employment, involving, or growing out of, a
dispute concerning terms or conditions of employment"; whereas the case at bar
arises between an employer in Michigan and workingmen in New York not in its
employ, and does not involve their conditions of employment. But Congress did not
restrict the provision to employers and workingmen in their employ. By including
"employers and employees" and "persons employed and persons seeking
employment," it showed that it was not aiming merely at a legal relationship between
a specific employer and his employees. Furthermore, the plaintiff's contention proves
too much. If the words are to receive a strict technical construction, the statute will
have no application to disputes between employers of labor and workingmen, since

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the very acts to which it applies sever the continuity of the legal relationship.c The
further contention that this case is not one arising out of a dispute concerning the
conditions of work of one of the parties is, in my opinion, founded upon a
misconception of the facts.
{27} Because I have come to the conclusion that both the common law of a
State and a statute of the United States declare the right of industrial combatants to
push their struggle to the limits of the justification of self-interest, I do not wish to be
understood as attaching any constitutional or moral sanction to that right. All rights
are derived from the purposes of the society in which they exist; above all rights rises
duty to the community. The conditions developed in industry may be such that those
engaged in it cannot continue their struggle without danger to the community. But
it is not for judges to determine whether such conditions exist, nor is it their function
to set the limits of permissible contest and to declare the duties which the new
situation demands. This is the function of the legislature....

{The "continuity of the legal relationship" is severed because, at common law, an
employee who goes on strike has resigned one's job. — ed.}
c

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D
uplexv.D
eering

COMMENTS
THE SUBSTANCE OF THE CASE

Self Interest as a Defense
Justice
Brandeis
argued
that,
although
the
Machinists may have damaged the plaintiff's business,
their acts were justified under common law because they
were taken in self defense of their economic interests.
¶¶ 21-22.
This argument should be familiar to the
student.
It is essentially the same argument that
Justice Holmes advanced unsuccessfully in Vegelahn v.
Guntner: damage to business is prima facie wrong, and
competition is a defense.
Thus, one should not be
surprised that Holmes, who had been appointed to the U.S.
Supreme Court by the time Duplex was decided, joined in
Brandeis's dissent.
The majority did not rebut the self-interest
argument directly. Perhaps rebuttal was unnecessary; the
majority authorized an injunction under anti-trust law,
not the common law, and self interest is not a recognized
defense under anti-trust law.d But perhaps the majority
rebutted the self-interest argument indirectly.
The
majority wrote that § 20 exempts from anti-trust law only
the parties to a labor dispute and that the defendants in
the case, who were members of the Machinists Union in New
York, had no dispute with the plaintiff, who was an
employer in Michigan (¶¶ 12-14).
From this it would
follow that the defendants were not acting in their self
interest.
Could any forceful rebuttal have been made to
Brandeis's argument?
If owners of capital may unite
through corporations, why may not laborers unite through
unions? If corporations may resist unions, why may not
unions resist corporations? But perhaps these rhetorical
questions are too general. The issue is usually more
specific — whether a particular tactic, such as a
secondary boycott, should be allowed. One may believe in

d

Nearly all business decisions are made out of self
interest. Thus, if self-interest were a defense to anti-trust
law, the defense might swallow the rule.

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uplexv.D
eering

xix

the right of labor to unite and still wish to outlaw
boycotts.
Levels of Abstraction
The student should note how the arguments in the
preceding paragraph operate on different levels of
abstraction. Brandeis's argument is the more abstract:
if capital may unite, so may labor.
The majority's
rebuttal is pitched at a lower level on the abstraction
ladder.
The rebuttal asserts that additional facts
should be taken into account, such as the particular
tactic used by the union (the secondary boycott), because
of the effects of those facts.
Which is the more
appropriate level of abstraction on which to decide this
issue?
And more generally, how should we go about
choosing the appropriate level of abstraction on which to
decide an issue?
Two Fundamental Questions
The majority omitted any reference to the majestic
language of section 6, that "the labor of a human being
is not a commodity or article of commerce."
This
omission is important because these words tend to refute
the majority's view that section 6 merely restated
existing law.
If human labor is not an article of
commerce, it is not affected by anti-trust law. Should
labor be regarded as an article of commerce?
In ¶ 25 Brandeis wrote that the Clayton Act
"declared that the relations between employers of labor
and workingmen were competitive relations, that organized
competition was not harmful and that it justified
injuries necessarily inflicted in its course."
The
student will recall that Holmes made a similar point in
Vegelahn v. Guntner.
Should we regard the relations
between employers and workers as competitive?
Legislative History
For two reasons, we omitted from the case the
Court's extensive discussion of legislative history.
First, this book generally deletes legislative history
from cases because it is often like the Bible: various
(and sometimes contradictory)
interpretations of the
text are plausible. If the student goes to law school,

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uplexv.D
eering

one will learn how to make arguments based on legislative
history; but one will not learn how to find the real
intent of the legislature.
Second, the legislative
history of the Clayton Act is genuinely ambiguous. There
are statements that support the majority's holding in
Duplex and statements that support the dissent. In their
book the Labor Injunction, Frankfurter and Greene state,
"The Supreme Court had to find meaning where Congress had
done its best to conceal meaning" (p. 145).
It was
irresponsible of Congress to produce a statute with such
an ambiguous history. It looks as though Congress was
heavily pressured by unions and management and, rather
than resolve the problem, decided to pass it on to the
courts. This may have been a politic solution, but it is
not the way our government should operate. And, given
the character of the judges in the first half of the
Twentieth Century, the outcome was certain.
The Aftermath of Duplex v. Deering
The judges went right to work on organized labor as
soon as Duplex was decided. The sledgehammer blows, of
which Samuel Gompers had spoken, did not free workers,
but forged even tighter chains. The links of the chain
were both procedural and substantive; that is, they
changed the procedural rules that govern how cases are
tried and relief is granted, and they changed the
substantive rules of law.
INJUNCTIONS

Procedurally, the Clayton Act was more damaging to
unions than the Sherman Act. The Sherman Act permitted
injunctions only at the behest of the U.S. government,
whereas the Clayton Act allowed private parties to obtain
injunctions. As Summers and Wellington have commented,
the Clayton Act "hand[ed] to employers their favorite
remedy in their favorite forum" — namely, injunctions
issued in federal court. Labor Law: Cases and Materials
(1968), p. 183.
REACH OF THE CLAYTON ACT

Substantively, the Clayton Act was applied to union
activity that had previously been immune. For example,
when the Shopmen struck the railroads in 1922, protesting
a reduction in wages, federal judges quickly enjoined the

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uplexv.D
eering

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strike on the theory that the strike interrupted
interstate commerce. This theory implied that any strike
that prevented goods from crossing state lines violated
the anti-trust laws.
Practically any strike has this
effect, of course. The Supreme Court never adopted this
theory — though lower courts, where most cases are
decided, were more receptive to it; and perhaps the
theory was more limited than our statement implies: it
may have meant only that strikes by employees of firms
involved in interstate transportation (such as railroads
and trucking companies) were illegal. But even in this
limited version, the theory outlawed straightforward
strikes.
Another example of the application of the Clayton
Act to unions is the two Coronado Coal opinions, both of
which were written by the Supreme Court. The issue was
whether a strike that prevented production of goods, and,
therefore, reduced the volume of goods in interstate
commerce, violated the anti-trust laws. The Mine Workers
struck the Coronado coal mines in Arkansas; the strike,
which was violent, was also effective, and mining and
shipment of coal were stopped. The company sued and won
a judgment for three quarters of a million dollars in the
trial court, but in the first Coronado Coal opinion the
Supreme Court sent the case back for a new trial. United
Mine Workers v. Coronado Coal Co., 259 U.S. 344 (1922).
The high court held that a violation of the anti-trust
law was not proved merely by showing that union activity
reduced the amount of coal shipped in interstate
commerce.e What mattered was the union's motive. (The
student will recall that motive had been important since
Commonwealth v. Hunt.) Two motives were possible. The
union might have been seeking to improve the wages and
working conditions of the workers in the firm that was
being struck, or the union might have been seeking to cut
off the supply of non-union coal from Arkansas in order
to protect unionized mines in other states. The former
motive was lawful, the latter was not; and if, as was
likely, both motives were at work, the outcome depended
on which motive was primary. The trial court had not
made the relevant findings as to the union's motives, and
for this reason the case was sent back for retrial. Of

e

Otherwise, every successful strike would have become
illegal.

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uplexv.D
eering

course, the union lost the retrial, and this time the
trial judge made the right findings, namely, that the
union's primary motive was to cut off the supply of nonunion coal that undermined unionized firms elsewhere. In
the second Coronado Coal opinion, the Supreme Court
affirmed the judgment for the employer. Coronado Coal
Co. v. United Mine Workers, 268 U.S. 295 (1925).
The Court's opinions in the Coronado Coal cases can
be criticized. One criticism is that the opinions gave
a great deal of discretion — perhaps too much discretion
— to trial judges. We noted above that motive is always
a sensitive inquiry: only the actor knows one's real
reasons for doing what one did, and we cannot rely on the
actor to tell the truth if it might incriminate oneself.
As a result, if a judge says, "The defendant's motive was
A," and A was illegal, there is no trustworthy person who
can contradict the judge; we have to accept the judge's
determination and trust in one's impartiality and
professionalism.
One might suggest that the federal
judges were not impartial towards labor at the beginning
of the Twentieth Century, and we might agree; but this is
not the criticism that we have in mind: the possibility
of bias always exists and is not peculiar to labor cases.
Rather, our criticism is that, as the Supreme Court was
fully aware, unions very often — perhaps, almost always
— have both motives which the Court identified: they want
to wrench better wages and working conditions from the
employer, and they want to protect gains previously
wrenched from the employer's competitors. Which of these
motives is primary and which, secondary in a given case?
One may doubt that union organizers themselves know most
of the time, and one should have no doubt that a judge
cannot find out; in fact, because the motives are likely
to be equally strong, or at least because each is
sufficient cause of the union's behavior, there may not
exist any answer to the question. Therefore, a judge
trying an anti-trust case against a union was free to
choose either motive as the primary one, according to
whom the judge wanted to win the case; and this choice
could not be effectively reviewed on appeal.
Another criticism of the Coronado Coal cases is that
they ignored the reality of product markets and
corresponding union structures. Other things being equal
(even if they rarely are), a union must organize most of
the competitors in a given product market; otherwise,

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uplexv.D
eering

xxiii

cheaper non-union producers will force the unionized
firms to leave the market or to take back the union's
gains.
The Coronado Coal cases, therefore, prevented
unions from doing what they needed to do in order to
survive.
The cases limited unions to bargaining for
surplus value that results when other things are not
equal. For example, if there are ten firms in a product
market and all are identical, none can afford to sign a
union contract for higher wages unless all sign, and the
Coronado Coal cases made it virtually illegal for a union
to try to organize them all.f But suppose that Firm No.
1 has an advantage over the others because of a cheap
source of raw materials.
A union could attempt to
capture this firm's advantage and translate it into
higher wages without weakening the firm's competitive
position.
Assuming competitive markets, this was the
only possibility that the Supreme Court left open to
unions.
The last anti-trust case we will consider is Bedford
Cut Stone Co. v. Journeymen Stonecutters Assoc., 274 U.S.
37 (1927).
When the Stonecutters struck an Indiana
quarry, their fellow Stonecutters across the country
refused to work on stone cut by non-union workers. The
Stonecutters did not involve any other crafts, as in
Duplex, nor did they intend to reduce non-union
competition, as in Coronado Coal.
Nonetheless, the
Supreme Court held that they were not acting for the
purpose of improving their own terms and conditions of
employment, and, therefore, they acted in restraint of
trade. Thus, sympathy strikes were illegal.
Keeping the Anti-trust Law in Perspective
The federal anti-trust law was a powerful weapon
against organized labor, but we should not overstate its
importance.
Labor faced other, even more powerful

f

It might have been permissible for a union to try to
organize all ten firms simultaneously, but organizing on this
scale is rarely feasible. If the union tried to organize the
firms one at a time, the first organizing drive would have
been lawful; but the second and subsequent drives would have
been vulnerable to legal attack on the theory that the union's
motive was to protect the organized shop by minimizing
competition from the unorganized shops.

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uplexv.D
eering

weapons. One was the set of common law restrictions on
organizing, striking, and boycotting, as exemplified by
Vegelahn v. Guntner (also, Hitchman Coal v. Mitchell,
which appears below). A second was the injunction. And
a third was the Supreme Court's use of the federal
Constitution to prevent the federal government and the
states from innovating in regard to labor law. In the
next case, we will turn to this third weapon, the
Constitution.
For the moment, we will conclude our
comment on Duplex v. Deering with a further word about
anti-trust law. By authorizing collective bargaining in
the National Labor Relations Act, Congress substantially
diminished labor's exposure to anti-trust violations. We
will not discuss anti-trust law further in this book.
Suffice it to say that anti-trust law still exists, and
it can be used to limit union conduct; but most union
behavior either is exempt from anti-trust law or is
prohibited by the Labor Act, which takes precedence.
QUESTIONS FOR REFLECTION
1. What should a court do when the text of a statute
is ambiguous in a certain application, and the
legislative history either is silent or points in
opposite directions?
2. Why did Brandeis take the trouble to write a
dissenting opinion? Why would any judge bother?
3. The majority frequently used the words like
"compel," "coerce," and "threat" to describe the
defendants' acts.
(See, e.g.,
¶ 2 ("compelling the
complainant
to
unionize,"
"coercing
union
men,"
"threatening
customers
with
sympathetic
strikes,"
"threatening {workers} with loss of union cards"), ¶ 5
("intended to have a coercive effect upon complainant,"
"coercive pressure upon such customers"), ¶ 16 ("with the
object
of
compelling
such
customers,"
"thereby
constraining
complainant,"
"a
threat
to
inflict
damage").) Were these words used appropriately? To what
extent does the answer depend on whether secondary
boycotts should be illegal?
5. Brandeis said that some judges were better
acquainted than others with the facts of industrial life.
Should a judge take such information into account when

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uplexv.D
eering

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interpreting a statute, or should the judge adhere to the
intent of the legislature?

Ù

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126

The Unconstitutionality of Government
Protection of Labor
CONSTITUTIONALITY OF FEDERAL LAWS
Introduction
The origin of the following case, Adair v. United
States, lies in the Pullman Strike of 1894, which the
student may have studied in one's course on labor history
and which we will say more about when we reach the Debs
case.
For present purposes, we need only say that,
following the strike, President Cleveland appointed a
special commission to investigate problems on the
railroads.
The commission recommended, among other
things, that Congress protect railway workers' right to
organize unions. After a great struggle in Congress, the
Erdman Act of 1898, which applied only to railroads,
established machinery for mediation and arbitration of
disputes, banned yellow dog contracts and blacklisting,
and prohibited discrimination against workers because of
their membership in a union. In spite of the prohibition
against discrimination (to which we will refer as "the
anti-discrimination section"), William Adair, the chief
of operations of the Louisville & Nashville RR., fired O.
B. Coppage because the latter joined a union. Adair was
prosecuted for violating the Erdman Act. Plainly, he did
violate the Act. The issue before the Supreme Court was
whether
the
anti-discrimination
section
was
unconstitutional.
The Court found that two provisions of the
Constitution applied to the case. The first provision
was the Fifth Amendment, which requires the federal
government to respect due process of law. The issue was
whether the Erdman Act denied due process to Adair. The
second provision was the Commerce Clause, which empowers
Congress to regulate interstate commerce. The issue was
whether the Erdman Act applied to interstate or
intrastate commerce.

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Adair v. United States
208 U.S. 161 (1908)
MR. JUSTICE HARLAN delivered the opinion of the Court.
{1} ... The 2d, 3d, 4th, 5th, 6th, 7th, 8th and 9th sections {of the Erdman Act
of 1898} relate to the settlement, by means of arbitration, of controversies concerning
wages, hours of labor, or conditions of employment arising between a carrier subject
to the provisions of the act and its employes, which seriously interrupt or threaten to
interrupt the business of the carrier. Those sections prescribe the mode in which
controversies may be brought under the cognizance of arbitrators, in what way the
arbitrators may be designated, and the effect of their decisions....
...
{2} The 10th section, upon which the present prosecution is based, is in these
words:
"That any employer subject to the provisions of this act and any
officer, agent, or receiver of such employer, who shall require any employe,
or any person seeking employment, as a condition of such employment, to
enter into an agreement, either written or verbal, not to become or remain
a member of any labor corporation, association, or organization; or shall
threaten any employe with loss of employment, or shall unjustly
discriminate against any employe because of his membership in such a labor
corporation, association, or organization ... upon conviction thereof in any
court of the United States of competent jurisdiction in the district in which
such offense was committed, shall be punished for each offense by a fine
of not less than one hundred dollars and not more than one thousand
dollars."

{3} It may be observed in passing that while that section makes it a crime
against the United States to unjustly discriminate against an employe of an interstate
carrier because of his being a member of a labor organization, it does not make it a
crime to unjustly discriminate against an employe of the carrier because of his not
being a member of such an organization.a
...
{4} The specific charge ... was
a

{In other words, the act outlawed the closed non-union shop, but permitted the closed
union shop. — ed.}

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Adair v. United States
"that said William Adair, agent and employe of said common carrier and
employer as aforesaid, in the district aforesaid, on and before the 15th day
of October, 1906, did unlawfully and unjustly discriminate against said O.
B. Coppage, employe as aforesaid, by then and there discharging said O. B.
Coppage from such employment of said common carrier and employer,
because of his membership in said labor organization, and thereby did
unjustly discriminate against an employe of a common carrier and employer
engaged in interstate commerce because of his membership in a labor
organization, contrary to the forms of the statute in such cases made and
provided, and against the peace and dignity of the United States."

...
{The jury found the defendant guilty as charged.}
{5} May Congress make it a criminal offense against the United States — as
by the tenth section of the act of 1898 it does — for an agent or officer of an interstate
carrier, having full authority in the premises from the carrier, to discharge an employe
from service simply because of his membership in a labor organization?
...
{6} The first inquiry is whether the part of the tenth section of the act of 1898
upon which the first count of the indictment was based is repugnant to the Fifth
Amendment of the Constitution declaring that no person shall be deprived of liberty
or property without due process of law. In our opinion that section, in the particular
mentioned, is an invasion of the personal liberty, as well as of the right of property,
guaranteed by that Amendment. Such liberty and right embraces the right to make
contracts for the purchase of the labor of others and equally the right to make
contracts for the sale of one's own labor; each right, however, being subject to the
fundamental condition that no contract, whatever its subject matter, can be sustained
which the law, upon reasonable grounds, forbids as inconsistent with the public
interests or as hurtful to the public order or as detrimental to the common good. This
court has said that "in every well-ordered society, charged with the duty of conserving
the safety of its members, the rights of the individual in respect of his liberty may, at
times, under the pressure of great dangers, be subjected to such restraint, to be
enforced by reasonable regulations, as the safety of the general public may demand."
Jacobson v. Massachusetts, 197 U.S. 11, 29, and authorities there cited.... {A}s agent
of the railroad company and as such responsible for the conduct of the business of one
of its departments, it was the defendant Adair's right — and that right inhered in his
personal liberty, and was also a right of property — to serve his employer as best he
could, so long as he did nothing that was reasonably forbidden by law as injurious to
the public interests. It was the right of the defendant to prescribe the terms upon

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Adair v. United States

which the services of Coppage would be accepted, and it was the right of Coppage
to become or not, as he chose, an employe of the railroad company upon the terms
offered to him. Mr. Cooley, in his treatise on Torts, p. 278, well says: "It is a part of
every man's civil rights that he be left at liberty to refuse business relations with any
person whomsoever, whether the refusal rests upon reason, or is the result of whim,
caprice, prejudice or malice. With his reasons neither the public nor third persons
have any legal concern. It is also his right to have business relations with any one
with whom he can make contracts, and if he is wrongfully deprived of this right by
others, he is entitled to redress."
{7} In Lochner v. New York, 198 U.S. 45, 53, 56, which involved the validity
of a state enactment prescribing certain maximum hours for labor in bakeries, and
which made it a misdemeanor for an employer to require or permit an employe in
such an establishment to work in excess of a given number of hours each day, the
court {held the law unconstitutional. The court} said:
"The general right to make a contract in relation to his business is part of
the liberty of the individual protected by the Fourteenth Amendment of the
Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578. Under that
provision no State can deprive any person of life, liberty or property without
due process of law. The right to purchase or to sell labor is part of the
liberty protected by this amendment, unless there are circumstances which
exclude the right. There are, however, certain powers, existing in the
sovereignty of each State in the Union, somewhat vaguely termed 'police
powers,' the exact description and limitation of which have not been
attempted by the courts. Those powers, broadly stated and without, at
present, any attempt at a more specific limitation, relate to the safety,
health, morals and general welfare of the public. Both property and liberty
are held on such reasonable conditions as may be imposed by the governing
power of the State in the exercise of those powers, and with such conditions
the Fourteenth Amendment was not designed to interfere.... In every case
that comes before this court, therefore, where legislation of this character
is concerned and where the protection of the Federal Constitution is sought,
the question necessarily arises: Is this a fair, reasonable and appropriate
exercise of the police power of the State, or is it an unreasonable,
unnecessary and arbitrary interference with the right of the individual to his
personal liberty or to enter into those contracts in relation to labor which
may seem to him appropriate or necessary for the support of himself and his
family? Of course the liberty of contract relating to labor includes both
parties to it. The one has as much right to purchase as the other to sell
labor."

Although there was a difference of opinion in that case among the members of the
court as to certain propositions, there was no disagreement as to the general

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v

proposition that there is a liberty of contract which cannot be unreasonably interfered
with by legislation....
{8} While, as already suggested, the right of liberty and property guaranteed
by the Constitution against deprivation without due process of law, is subject to such
reasonable restraints as the common good or the general welfare may require, it is not
within the functions of government — at least in the absence of contract between the
parties — to compel any person in the course of his business and against his will to
accept or retain the personal services of another, or to compel any person, against his
will, to perform personal services for another. The right of a person to sell his labor
upon such terms as he deems proper is, in its essence, the same as the right of the
purchaser of labor to prescribe the conditions upon which he will accept such labor
from the person offering to sell it. So the right of the employe to quit the service of
the employer, for whatever reason, is the same as the right of the employer, for
whatever reason, to dispense with the services of such employe. It was the legal right
of the defendant Adair — however unwise such a course might have been — to
discharge Coppage because of his being a member of a labor organization, as it was
the legal right of Coppage, if he saw fit to do so — however unwise such a course on
his part might have been — to quit the service in which he was engaged, because the
defendant employed some persons who were not members of a labor organization.
In all such particulars the employer and the employe have equality of right, and any
legislation that disturbs that equality is an arbitrary interference with the liberty of
contract which no government can legally justify in a free land....
{9} As the relations and the conduct of the parties towards each other was
{sic} not controlled by any contract other than a general agreement on one side to
accept the services of the employe and a general agreement on the other side to render
services to the employer — no term being fixed for the continuance of the
employment — Congress could not, consistently with the Fifth Amendment, make
it a crime against the United States to discharge the employe because of his being a
member of a labor organization.
{10} But it is suggested that the authority to make it a crime for an agent or
officer of an interstate carrier, having authority in the premises from his principal, to
discharge an employe from service to such carrier, simply because of his membership
in a labor organization, can be referred to the power of Congress to regulate interstate
commerce, without regard to any question of personal liberty or right of property
arising under the Fifth Amendment. This suggestion can have no bearing in the
present discussion unless the statute, in the particular just stated, is within the
meaning of the Constitution a regulation of commerce among the States. If it be not,
then clearly the Government cannot invoke the commerce clause of the Constitution
as sustaining the indictment against Adair.

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...

{11} ... Manifestly, any rule prescribed for the conduct of interstate
commerce, in order to be within the competency of Congress under its power to
regulate commerce among the States, must have some real or substantial relation to
or connection with the commerce regulated. But what possible legal or logical
connection is there between an employe's membership in a labor organization and the
carrying on of interstate commerce? Such relation to a labor organization cannot
have, in itself and in the eye of the law, any bearing upon the commerce with which
the employe is connected by his labor and services. Labor associations, we assume,
are organized for the general purpose of improving or bettering the conditions and
conserving the interests of its members as wage-earners — an object entirely
legitimate and to be commended rather than condemned. But surely those
associations as labor organizations have nothing to do with interstate commerce as
such. One who engages in the service of an interstate carrier will, it must be assumed,
faithfully perform his duty, whether he be a member or not a member of a labor
organization. His fitness for the position in which he labors and his diligence in the
discharge of his duties cannot in law or sound reason depend in any degree upon his
being or not being a member of a labor organization. It cannot be assumed that his
fitness is assured, or his diligence increased, by such membership, or that he is less
fit or less diligent because of his not being a member of such an organization. It is the
employe as a man and not as a member of a labor organization who labors in the
service of an interstate carrier. Will it be said that the provision in question had its
origin in the apprehension, on the part of Congress, that if it did not show more
consideration for members of labor organizations than for wage-earners who were not
members of such organizations, or if it did not insert in the statute some such
provision as the one here in question, members of labor organizations would, by
illegal or violent measures, interrupt or impair the freedom of commerce among the
States? We will not indulge in any such conjectures, nor make them, in whole or in
part, the basis of our decision. We could not do so consistently with the respect due
to a coordinate department of the Government. We could not do so without imputing
to Congress the purpose to accord to one class of wage-earners privileges withheld
from another class of wage-earners engaged, it may be, in the same kind of labor and
serving the same employer. Nor will we assume, in our consideration of this case,
that members of labor organizations will, in any considerable numbers, resort to
illegal methods for accomplishing any particular object they have in view.
{12} Looking alone at the words of the statute for the purpose of ascertaining
its scope and effect, and of determining its validity, we hold that there is no such
connection between interstate commerce and membership in a labor organization as
to authorize Congress to make it a crime against the United States for an agent of an
interstate carrier to discharge an employe because of such membership on his part....

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vii

{13} It results, on the whole case, that the provision of the statute under which
the defendant was convicted must be held to be repugnant to the Fifth Amendment
and as not embraced by nor within the power of Congress to regulate interstate
commerce, but under the guise of regulating interstate commerce and as applied to
this case it arbitrarily sanctions an illegal invasion of the personal liberty as well as
the right of property of the defendant Adair.
...
{The verdict was set aside.}
MR. JUSTICE MCKENNA, dissenting.
{14} The opinion of the court proceeds upon somewhat narrow lines and
either omits or does not give adequate prominence to the considerations which, I
think, are determinative of the questions in the case. The principle upon which the
opinion is grounded is, as I understand it, that a labor organization has no legal or
logical connection with interstate commerce, and that the fitness of an employe has
no dependence or relation with his membership in such organization. It is hence
concluded that to restrain his discharge merely on account of such membership is an
invasion of the liberty of the carrier guaranteed by the Fifth Amendment of the
Constitution of the United States. The conclusion is irresistible if the propositions
from which it is deduced may be viewed as abstractly as the opinion views them.
May they be so viewed?
{15} A summary of the act is necessary to understand § 10. Detach that
section from the other provisions of the act and it might be open to condemnation.
{16} The first section of the act designates the carriers to whom it shall apply.
The second section makes it the duty of the Chairman of the Interstate Commerce
Commission and the Commissioner of Labor, in case of a dispute between carriers
and their employes which threatens to interrupt the business of the carriers, to put
themselves in communication with the parties to the controversy and use efforts to
"mediation and conciliation." If the efforts fail, then § 3 provides for the appointment
of a board of arbitration — one {member} to be named by the carrier, one by the
labor organization to which the employes belong, and the two thus chosen shall select
a third.
{17} There is a provision that if the employes belong to different
organizations, they shall concur in the selection of the arbitrator. The board is to give
hearings; power is invested in the board to summon witnesses, and provision is made
for filing the award in the clerk's office of the Circuit Court of the United States for

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the district where the controversy arose. Other sections complete the scheme of
arbitration thus outlined, and make, as far as possible, the proceedings of the
arbitrators judicial, and pending them put restrictions on the parties and damages for
violation of the restrictions.
{18} Even from this meager outline may be perceived the justification and
force of § 10. It prohibits discrimination ... or the discharge from employment of
members of labor organizations "because of such membership." This the {majority}
opinion condemns. The actions prohibited, it is asserted, are part of the liberty of a
carrier protected by the Constitution of the United States from limitation or
regulation....
...
{19} From these considerations we may pass to an inspection of the statute
of which § 10 is a part, and inquire as to its purpose, and if the means which it
employs has relation to that purpose and to interstate commerce. The provisions of
the act are explicit and present a well coordinated plan for the settlement of disputes
between carriers and their employes, by bringing the disputes to arbitration and
accommodation, and thereby prevent strikes and the public disorder and derangement
of business that may be consequent upon them. I submit no worthier purpose can
engage legislative attention or be the object of legislative action....
{20} We are told that labor associations are to be commended. May not then
Congress recognize their existence; yes, and recognize their power as conditions to
be counted with in framing its legislation? Of what use would it be to attempt to
bring bodies of men to agreement and compromise of controversies if you put out of
view the influences which move them or the fellowship which binds them — maybe
controls and impels them — whether rightfully or wrongfully, to make the cause of
one the cause of all? And this practical wisdom Congress observed — observed, I
may say, not in speculation of uncertain provision of evils, but in experience of evils
— an experience which approached to the dimensions of a National calamity. The
facts of history should not be overlooked, nor the course of legislation. The act
involved in the present case was preceded by one enacted in 1888 of similar purport.
25 Stat. 501, c. 1063. That act did not recognize labor associations, or distinguish
between the members of such associations and the other employes of carriers. It
failed in its purpose, whether from defect in its provisions or other cause we may only
conjecture. At any rate, it did not avert the strike at Chicago in 1894. Investigation
followed, and, as a result of it, the act of 1898 was finally passed. Presumably its
provisions and remedy were addressed to the mischief which the act of 1888 failed
to reach or avert. It was the judgment of Congress that the scheme of arbitration
might be helped by engaging in it the labor associations. Those associations unified

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bodies of employes in every department of the carriers, and this unity could be an
obstacle or an aid to arbitration. It was attempted to be made an aid, but how could
it be made an aid if, pending the efforts of "mediation and conciliation" of the dispute,
as provided in § 2 of the act, other provisions of the act may be arbitrarily
disregarded, which are of concern to the members in the dispute? How can it be an
aid, how can controversies which may seriously interrupt or threaten to interrupt the
business of carriers (I paraphrase the words of the statute), be averted or composed
if the carrier can bring on the conflict or prevent its amicable settlement by the
exercise of mere whim and caprice? I say mere whim or caprice, for this is the liberty
which is attempted to be vindicated as the Constitutional right of the carriers. And
it may be exercised in mere whim and caprice. If ability, the qualities of efficient and
faithful workmanship can be found outside of labor associations, surely they may be
found inside of them. Liberty is an attractive theme, but the liberty which is exercised
in sheer antipathy does not plead strongly for recognition.
...
{21} I have said that it is not necessary to suppose that labor organizations
will violate the law, and it is not. Their power may be effectively exercised without
violence or illegality, and it cannot be disrespect to Congress to let a committee of the
Senate speak for it and tell the reason and purposes of its legislation. The Committee
on Education in its report said of the bill: "The measure under consideration may
properly be called a voluntary arbitration bill, having for its object the settlement of
disputes between capital and labor, as far as the interstate transportation companies
are concerned. The necessity for the bill arises from the calamitous results in the way
of ill-considered strikes arising from the tyranny of capital or the unjust demands of
labor organizations, whereby the business of the country is brought to a standstill and
thousands of employes, with their helpless wives and children, are confronted with
starvation." And, concluding the report, said: "It is our opinion that this bill, should
it become a law, would reduce to a minimum labor strikes which affect interstate
commerce, and we therefore recommend its passage."
{22} With the report was submitted a letter from the Secretary of the Interstate
Commerce Commission, which expressed the judgment of that body, formed, I may
presume, from experience of the factors in the problem. The letter said: "With the
corporations as employers on one side and the organizations of railway employes as
the other, there will be a measure of equality of power and force which will surely
bring about the essential requisites of friendly relation, respect, consideration, and
forbearance." And again: "It has been shown before the labor commission of England
that where the associations are strong enough to command the respect of their
employers the relations between employer and employe seem most amicable. For
there the employers have learned the practical convenience of treating with one

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thoroughly representative body instead of with isolated fragments of workmen; and
the labor associations have learned the limitations of their powers."
...
MR. JUSTICE HOLMES, dissenting.
{23} I also think that the statute is constitutional, and but for the decision of
my brethren I should have felt pretty clear about it.
...
{24} The ground on which this particular law is held bad is not so much that
it deals with matters remote from commerce among the States, as that it interferes
with the paramount individual rights, secured by the Fifth Amendment. The section
is, in substance, a very limited interference with freedom of contract, no more. It
does not require the carriers to employ any one. It does not forbid them to refuse to
employ any one, for any reason they deem good.... The section simply prohibits the
more powerful party to exact certain undertakings, or to threaten dismissal or unjustly
discriminate on certain grounds against those already employed.... I turn to the
general question whether the employment can be regulated at all. ... Where there is,
or generally is believed to be, an important ground of public policy for restraint, the
Constitution does not forbid it, whether this court agrees or disagrees with the policy
pursued. It cannot be doubted that to prevent strikes, and, so far as possible, to foster
its scheme of arbitration, might be deemed by Congress an important point of policy,
and I think it impossible to say that Congress might not reasonably think that the
provision in question would help a good deal to carry its policy along. But suppose
the only effect really were to tend to bring about the complete unionizing of such
railroad laborers as Congress can deal with, I think that object alone would justify the
act. I quite agree that the question what and how much good labor unions do, is one
on which intelligent people may differ, — I think that laboring men sometimes
attribute to them advantages, as many attribute to combinations of capital
disadvantages, that really are due to economic conditions of a far wider and deeper
kind — but I could not pronounce it unwarranted if Congress should decide that to
foster a strong union was for the best interest, not only of the men, but of the railroads
and the country at large.

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COMMENTS
LIBERTY OF CONTRACT UNDER THE FIFTH AMENDMENT:
ANALYZING AND EVALUATING THE COURT'S REASONING

Did Liberty of Contract Under the Fifth Amendment
Include the Right to Enter into Labor Contracts?
Some aspects of the Adair case deserve comment and
extension.
One is that although the Court repeated a
number of times that the Constitution prohibits the
government from interfering with liberty of contract, the
Court did not explain why liberty of contract should be
included within the liberty and property protected by the
Fifth Amendment. The Court cited Lochner v. New York as
precedent. Lochner also said that liberty of contract is
protected by the Fifth Amendment, and also did not
explain why this is so, and also cited a precedent. That
precedent was Allgeyer v. Louisiana, 165 U.S. 578 (1897),
in which we find, at last, a justification for the
holding that liberty of contract is a constitutional
right.
The liberty mentioned in {the Due Process Clause of
the Fifth Amendment} ... embrace{s} the right of
the citizen to be free in the enjoyment of all his
faculties; to be free to use them in all lawful
ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any
livelihood or avocation, and for that purpose to
enter into all contracts which may be proper,
necessary, and essential to his carrying out to a
successful conclusion the purposes above mentioned.

165 U.S. at 589.

Allgeyer also cited a precedent.

It was said by Mr. Justice Bradley in
Butchers' Union v. Crescent City ... that
"the
right to follow any of the common occupations of
life is an inalienable right. It was formulated as
such under the phrase 'pursuit of happiness' in the
Declaration of Independence, which commenced with
the fundamental proposition that 'all men are
created equal; that they are endowed by their
Creator with certain inalienable rights; and among
these are life, liberty, and the pursuit of
happiness." This right is a large ingredient of
the civil liberty of the citizen.

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Allgeyer v. Louisiana, 165 U.S. at 589-590, quoting
Butchers' Union v. Crescent City, at 111 U.S. at 762.
The Court's reasoning can be analyzed into a series
of legal syllogisms. By analyzing the Court's reasoning
in this way, we can identify the premises and
conclusions, consider whether the premises are true or
well supported, and judge whether the conclusions follow
logically from the premises.
I
MAJOR PREMISE:

Liberty included inalienable rights.

MINOR PREMISE:

The pursuit of happiness was an
inalienable right. The Declaration
of Independence.

CONCLUSION:

Liberty included
happiness.

the

pursuit

of

The Court offered no support for the major premise,
that liberty included inalienable rights. Evidently, the
Court believed this proposition was self evident.
It
does seem to be true: a right is meaningless unless one
is at liberty to exercise that right.
The Court cited the Declaration of Independence as
support for the minor premise, that the pursuit of
happiness is an inalienable right.
This citation is
striking because the Constitution, not the Declaration,
established the government, delineated its powers, and
listed citizens' rights against the government. Courts
today rarely if ever refer to the Declaration. Whether
the pursuit of happiness is an inalienable right is a
question of political philosophy that depends (among
other things) on how one defines "happiness" and on how
one deals with rights that conflict with one another. We
are often called upon to sacrifice a degree of happiness
for other goods; for example, we pay taxes. Thus, the
minor premise cannot be considered self evidently true,
and the Court's support for it was dubious.
The logic of the syllogism was correct.
If the
premises were true, the conclusion followed from them.

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II
MAJOR PREMISE:

Liberty included
happiness.

the

pursuit of

MINOR PREMISE:

The pursuit of happiness included
pursuing
a
lawful
occupation.
Allgeyer
v.
Louisiana,
citing
Butchers' Union v. Crescent City.

CONCLUSION:

Liberty included pursuing a lawful
occupation.

It is common in a chain of reasoning for the
conclusion of one syllogism to stand as a premise in
another syllogism.
The major premise of the Court's
second syllogism was supported by the first syllogism.
Thus, whether we accept the truth of the major premise of
the second syllogism depends on our evaluation of the
first syllogism.
The minor premise of the second syllogism was
supported by citations to the Allgeyer and Butchers'
Union cases. The doctrine of precedent allows this sort
of support without further discussion; issues decided in
a case may be taken as settled in future cases.
As
parties or advocates in a law suit, we may argue that a
precedent was decided incorrectly, though this sort of
argument is rarely successful. But as citizens in a
democracy, we are free to examine the precedent and
consider whether it decided the issue correctly.
The conclusion followed logically from the premises.
III
MAJOR PREMISE:

Pursuing
an
occupation usually
included hiring workers or being
hired as a worker.

MINOR PREMISE:

To hire or be hired as a worker was
to enter into a labor contract.

CONCLUSION:

Pursuing
an
occupation
usually
included
entering
into
labor
contracts.

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The Court cited no support for the major premise,
but, as an empirical matter, it seems to have been a true
legislative fact.
The minor premise was a rule of law. Perhaps it was
so firmly established in precedent that the Court saw no
need to support it with a citation, or perhaps the
premise was inchoate and judges accepted it without
realizing what they were doing.b
The conclusion followed logically from the premises.
IV
MAJOR PREMISE:

Liberty included pursuing a lawful
occupation.

MINOR PREMISE:

Pursuing
a
lawful occupation
included
entering
into
labor
contracts.

CONCLUSION:

Liberty included entering into labor
contracts.

The two premises were established by previous
syllogisms. The conclusion followed logically from the
premises.
V

b

MAJOR PREMISE:

The Fifth Amendment forbade the
government to deprive a person of
liberty without due process.

MINOR PREMISE:

Liberty included entering into labor
contracts.

CONCLUSION:

The Fifth Amendment forbade the
government to interfere with labor
contracts.

We may note, however, that the premise could have been
otherwise. As our review of Colonial practices revealed, the
employment relationship may be conceived as a status
relationship, governed by law, and wholly or partly protected
from change by contract.

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The major premise was as well supported as a legal
proposition can be: it was a paraphrase of the Fifth
Amendment of the Constitution.
The minor premise was
established by a previous syllogism.
The conclusion
followed logically from the premises.
VI
MAJOR PREMISE:

The Fifth Amendment forbade the
government to interfere with labor
contracts.

MINOR PREMISE:

The anti-discrimination clause of
the Erdman Act interfered with labor
contracts by prohibiting an employer
from terminating a labor contract
because a worker joined a union.

CONCLUSION:

The anti-discrimination clause of
the Erdman Act was unconstitutional.

The major premise was the conclusion of the fifth
syllogism. The minor premise was a correct description
of the anti-discrimination clause of the Erdman Act. The
conclusion followed logically from the premises.
Having analyzed the Court's argument into its
premises and conclusions, we can discover its strengths
and weaknesses. The Court was arguing that liberty of
contract, which is protected by the Fifth Amendment,
included the right to enter into labor contracts. The
first syllogism in this argument was probably its weakest
link. Nonetheless, the argument was strong enough that
Justice Holmes, who dissented from the Court's ultimate
conclusion, accepted the argument. Holmes disagreed with
another of the majority's arguments, to which we now turn
our attention.
Did Public Policy Allow a Restriction on
Liberty of Contract in this Case?
In the NOTE ON PRIMA FACIE CASE AND AFFIRMATIVE DEFENSE.1, we
discussed the legal equivalent of an excuse: an act that
is ordinarily prohibited may be permissible in some
circumstances.
The prohibited act is defined in the
prima facie case; the excuse is defined in the
affirmative defense. Although it would not be described

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in this terminology, the Court's approach to liberty of
contract under the Fifth Amendment was built on the same
superstructure.
A statute might have interfered with
liberty of contract (the prohibited act), yet have been
constitutional if the statute served a legitimate public
policy (the excuse).
An example of a statute that interfered with liberty
of contract, yet was excused or justified by public
policy, was a case which the majority did not cite, viz.,
Holden v. Hardy, 169 U.S. 366 (1898). The operator of an
underground mine required miners to labor in the mine for
ten hours per day. This requirement violated a statute
of the State of Utah that established an eight-hour day
for underground mines.
The operator challenged the
statute on the ground that it interfered with liberty of
contract. The Supreme Court conceded the interference,
but upheld the statute because it served a legitimate
public policy. The Court said that a state may protect
the health and safety of its workers.
In his dissent in Adair, Justice Holmes might have
cited Holden v. Hardy and argued that public policy
justified the anti-discrimination clause of the Erdman
Act.c He chose, however, to rest his dissent on a more
general point — the proper relationship of the courts to
the legislature. In order to clarify the disagreement
between the majority and Holmes on this point, let us
create legal syllogisms of their arguments.
MAJORITY
A
MAJOR PREMISE:

c

In
reviewing
a
statute that
restricts
liberty
of
contract,
courts
could
make
their
own
determination
of
whether
the
restriction
was
based
on
a
legitimate public policy.

In order to make such an argument, Holmes would have had to
draw an analogy between Holden and Adair. The student should
consider whether such an analogy would have been sound. Were
Holden and Adair analogous, or were they distinguishable?

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MINOR PREMISE:

The anti-discrimination clause of
the Erdman Act was based on the
policy of promoting arbitration of
disputes between railroads and labor
unions.

CONCLUSION:

Courts could determine whether this
policy was legitimate.
B

MAJOR PREMISE:

If a statute that interfered with
liberty of contract was based on a
policy that was not legitimate, the
statute was unconstitutional.

MINOR PREMISE:

Promoting
arbitration
of labor
disputes on the railroads, on which
the anti-discrimination clause of
the Erdman Act was based, was not a
legitimate public policy.

CONCLUSION:

The anti-discrimination clause was
unconstitutional.
HOLMES

MAJOR PREMISE:

Courts must accept Congressional
determinations of public policy
unless they are irrational.

MINOR PREMISE:

The
anti-discrimination clause,
which was based on the policy of
promoting arbitration of disputes
between railroads and labor unions,
was not irrational.

CONCLUSION:

The anti-discrimination clause was
constitutional.

These syllogisms make clear that the major
disagreement between the majority and the dissent was
over the major premise of syllogism A in the majority's
opinion and the major premise of Holmes's syllogism.
Holmes believed that the legislature should determine
public policy, and the courts should generally defer to
legislative determinations. As a result, Holmes argued

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that
courts
should
not
oversee
Congressional
determinations of public policy (except in the rare case
in which Congress acted irrationally), whereas the
majority argued for more active judicial oversight. This
disagreement was as much a matter of political philosophy
as of law.
ARE SYMMETRICAL RIGHTS EQUAL RIGHTS?

Another aspect of the Adair case that is worthy of
note is how vigorously the Court emphasized the equality
of the rights of employers and employees. Each time the
Court mentioned the railroad's right to purchase labor,
the Court also mentioned the worker's right to sell one's
labor. Here are two examples:
It was the right of the {railroad} to prescribe the
terms upon which the services of Coppage would be
accepted, and it was the right of Coppage to become
or not, as he chose, an employe of the railroad
company upon the terms offered to him. ¶ 6.
Of course, liberty of contract relating to labor
includes both parties to it. The one has as much
right to purchase as the other to sell labor. ¶ 7.

And, said the Court, these rights are not merely
symmetrical; they are, in fact, equal.
Here are two
examples:
In all such particulars, the employer and the
employe have equality of right, and any legislation
that disturbs that equality is an arbitrary
interference with the liberty of contract .... ¶ 8.
The right of a person to sell his labor upon such
terms as he deems proper is, in its essence, the
same as the right of the purchaser of labor to
prescribe the conditions upon which he will accept
such labor from the person offering to sell it.
(Emphasis added.) ¶ 8.

How could the law make employer and employee more equal
than by giving each the same right? Yet one may wonder
whether these rights, which are equal in form, are equal
in substance, that is, whether they are equally valuable.

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THE MAJORITY'S STANDARD FOR JUDGING PUBLIC POLICY

A third interesting aspect of the case is the
Court's standard for determining when the powers of
government may be exercised to restrict liberty of
contract. Quoting from Lochner, the Court said:
Those powers, broadly stated and without, at
present, any attempt at a more specific limitation,
relate to the safety, health, morals and general
welfare of the public. ... In every case that
comes
before
this
court,
therefore,
where
legislation of this character is concerned and
where the protection of the Federal Constitution is
sought, the question necessarily arises: Is this a
fair, reasonable and appropriate exercise of the
police power of the State, or is it an
unreasonable,
unnecessary
and
arbitrary
interference with the right of the individual to
his personal liberty ...? ¶ 7.

As the student may already have observed, this is no
standard at all. The government may restrict liberty of
contract when doing so is "fair, reasonable and
appropriate," but not when doing so is "unreasonable,
unnecessary, and arbitrary." Such a false standard does
not explain the Court's decision or provide guidance for
future cases.
WAS PROTECTIVE LABOR LEGISLATION

"FAIR, REASONABLE, AND APPROPRIATE"?
A few days after announcing the decision in Adair,
the Supreme Court decided Muller v. Oregon, 208 U.S. 412
(1908).
The State of Oregon had enacted a statute
limiting the employment of women to ten hours per day.
A supervisor in a laundry was convicted of requiring a
woman to work in excess of ten hours. Relying on Lochner
v. New York, which had invalidated a state law
prescribing the ten-hour day in bakeries, the supervisor
challenged the constitutionality of the Oregon statute.
But, wrote Justice Brewer for a unanimous Court, this
challenge
assumes that the difference between the sexes does
not justify a different rule respecting a
restriction of the hours of labor....

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145

Adair v. United States
... That woman's physical structure and the
performance of maternal functions place her at a
disadvantage in the struggle for subsistence is
obvious. This is especially true when the burdens
of motherhood are upon her.
Even when they are
not, by abundant testimony of the medical
fraternity, continuance for a long time on her feet
at work, repeating this from day to day, tends to
injurious effects upon the body, and, as healthy
mothers are essential to vigorous offspring, the
physical well-being of woman becomes an object of
public interest and care in order to preserve the
strength and vigor of the race.
Still again, history discloses the fact that
woman has always been dependent upon man.
He
established his control at the outset by superior
physical strength, and this control in various
forms ... has continued to the present....
Doubtless there are individual exceptions, and
there are many respects in which she has an
advantage over him; but looking at it from the
viewpoint of the effort to maintain an independent
position in life, she is not upon an equality....
It is impossible to close one's eyes to the fact
that she still looks to her brother and depends
upon him. 208 U.S. at 419, 421-422.

So-called "protective legislation" for women was
evidently "fair, reasonable, and appropriate" and,
therefore, constitutional.
(The prohibition on sex
discrimination in Title VII of the Civil Rights Act of
1964 has changed the status of such legislation.)
QUESTIONS FOR REFLECTION
1. A fundamental question in Adair was whether
Congress had the power to regulate employment contracts.
Do you think Congress should have this power?
2. Was the majority correct that both employers and
workers had liberty of contract and that these rights
were equal?
3. One purpose of the Erdman Act was to facilitate
the unionization of railroad workers. Was this a proper
purpose for Congress to pursue?

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xxi

4. The gist of Justice Holmes's dissent was that the
legislature, not the courts, should establish public
policy.
Holmes believed that procedure outranked
substance, that the way a decision was made was more
important than the goodness of the decision.
Was he
right?
His view may be attractive in the context of
cases like Adair, in which the courts were antipathetic
to organized labor.
Before you make up your mind,
however, reflect on cases like Brown v. Board of
Education (1954), in which the courts, not Congress or
state legislatures, ordered desegregation of public
schools, and Lawrence v. Texas (2003), in which the
courts,
not
Congress
or
state
legislatures,
decriminalized homosexual acts between consenting adults
in private.

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The Unconstitutionality of Government
Protection of Labor (continued)
CONSTITUTIONALITY OF STATE LAWS
Introduction
The preceding case, Adair v. United States, involved
a constitutional challenge to a federal statute.
In
contrast, the next case, Coppage v. Kansas, involved a
constitutional challenge to a state statute.
The challenge to the federal statute in Adair was
grounded on the Fifth Amendment to the Constitution. The
Fifth Amendment was not available for this purpose in
Coppage because the Fifth Amendment applies only to the
federal government, not to state governments. Instead,
the challenge in Coppage was grounded on the Fourteenth
Amendment.a The Fourteenth Amendment also contains a due
process clause, and it is usually interpreted to limit
the power of state governments in much the same way as
the Fifth Amendment limits the power of the federal
government.
The background of all the early American labor cases
was the struggle between employers and workers.
The
development that precipitated both Adair and Coppage was
This
the growing political power of organized labor.
power had been used to induce several states, including
Kansas, to outlaw yellow dog contracts. Without yellow
dog contracts, employers could not so easily obtain

a

The first section of the Fourteenth Amendment reads:
SECTION ONE. All persons born or naturalized in the
United States and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No state shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.

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ii

injunctions against union organizing.b
Therefore,
although the Coppage case was technically about the
constitutionality of a single state statute, the case was
significant because it defined the role that a state
government might play in the struggle between workers and
employers.
We noted in connection with Adair that the level of
abstraction at which a case is decided can affect its
outcome, in particular, which prior cases will serve as
precedents. In the following case, level of abstraction
also plays a role.
Compare how the majority
characterizes the issue with how Justice Day in dissent
characterizes it.

b

See Hitchman Coal v. Mitchell, below.

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Coppage v. State of Kansas
236 U.S. 1 (1915)
MR. JUSTICE PITNEY delivered the opinion of the court.
{1} {A Kansas court fined the plaintiff in error (a superintendent employed
by a railroad) for violating a state law that read:}
"AN ACT to provide a penalty for coercing or influencing or
making demands upon or requirements of employes, servants, laborers, and
persons seeking employment....
"SECTION 1. That it shall be unlawful for any individual or
member of any firm, or any agent, officer or employe of any company or
corporation, to coerce, require, demand or influence any person or persons
to enter into any agreement, either written or verbal, not to join or become
or remain a member of any labor organization or association, as a condition
of such person or persons securing employment, or continuing in the
employment of such individual, firm, or corporation.
"SEC. 2. Any individual or member of any firm or any agent,
officer or employe of any company or corporation violating the provisions
of this act shall be deemed guilty of a misdemeanor, and upon conviction
thereof shall be fined in a sum not less than fifty dollars or imprisoned in
the county jail not less than thirty days."

{2} The judgment was affirmed by the Supreme Court of the State, two
justices dissenting (87 Kansas, 752), and the case is brought here upon the ground
that the statute, as construed and applied in this case, is in conflict with that provision
of the Fourteenth Amendment of the Constitution of the United States which declares
that no State shall deprive any person of liberty or property without due process of
law.
{3} The facts, as recited in the opinion of the Supreme Court {of Kansas}, are
as follows: About July 1, 1911, one Hedges was employed as a switchman by the St.
Louis & San Francisco Railway Company, and was a member of a labor organization
called the Switchmen's Union of North America. Plaintiff in errorc was employed by
the railway company as superintendent, and as such he requested Hedges to sign an
agreement, which he presented to him in writing, at the same time informing him that
if he did not sign it he could not remain in the employ of the company. The following
is a copy of the paper thus presented:

c

{"Plaintiff in error" is an older term meaning the appellant, i.e., the party who is
appealing the judgment of the lower court. In this case, the plaintiff in error was T. B.
Coppage. We do not know whether he was related to O. B. Coppage in Adair v. U.S.}

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iv

Coppage v. Kansas
Fort Scott, Kansas, , 1911.
Mr. T. B. Coppage, Superintendent Frisco Lines, Fort Scott:
We, the undersigned, have agreed to abide by your request, that is,
to withdraw from the Switchmen's Union, while in the service of the Frisco
Company.
(Signed)

{4} Hedges refused to sign this, and refused to withdraw from the labor
organization. Thereupon plaintiff in error, as such superintendent, discharged him
from the service of the company.
{5} At the outset, a few words should be said respecting the construction of
the act. It uses the term "coerce," and some stress is laid upon this in the opinion of
the Kansas Supreme Court. But, on this record, we have nothing to do with any
question of actual or implied coercion or duress, such as might overcome the will of
the employe by means unlawful without the act. In the case before us, the state court
treated the term "coerce" as applying to the mere insistence by the employer, or its
agent, upon its right to prescribe terms upon which alone it would consent to a
continuance of the relationship of employer and employe.... There is neither finding
nor evidence that the contract of employment was other than a general or indefinite
hiring, such as is presumed to be terminable at the will of either party.... {T}here is
nothing to show that Hedges was subjected to the least pressure or influence, or that
he was not a free agent, in all respects competent, and at liberty to choose what was
best from the standpoint of his own interests.... And if the right that plaintiff in error
exercised is founded upon a constitutional basis, it cannot be impaired by merely
applying to its exercise the term "coercion." We have to deal, therefore, with a statute
that, as construed and applied, makes it a criminal offense punishable with fine or
imprisonment for an employer or his agent to merely prescribe, as a condition upon
which one may secure certain employment or remain in such employment (the
employment being terminable at will), that the employe shall enter into an agreement
not to become or remain a member of any labor organization while so employed; the
employe being subject to no incapacity or disability, but on the contrary free to
exercise a voluntary choice.
{6} In Adair v. United States, 208 U.S. 161, this court had to deal with a
question not distinguishable in principle from the one now presented.... Adair was
convicted upon an indictment charging that he, as agent of a common carrier subject
to the provisions of the Act, unjustly discriminated against a certain employe by
discharging him from the employ of the carrier because of his membership in a labor
organization. The court held that portion of the Act upon which the conviction rested

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v

to be an invasion of the personal liberty as well as of the right of property guaranteed
by the Fifth Amendment, which declares that no person shall be deprived of liberty
or property without due process of law. Speaking by Mr. Justice Harlan, the court
said (208 U.S., p. 174):
While, as already suggested, the right of liberty and property
guaranteed by the Constitution against deprivation without due process of
law, is subject to such reasonable restraints as the common good or the
general welfare may require, it is not within the functions of government —
at least in the absence of contract between the parties — to compel any
person in the course of his business and against his will to accept or retain
the personal services of another, or to compel any person, against his will,
to perform personal services for another. The right of a person to sell his
labor upon such terms as he deems proper is, in its essence, the same as the
right of the purchaser of labor to prescribe the conditions upon which he
will accept such labor from the person offering to sell it. So the right of the
employe to quit the service of the employer, for whatever reason, is the
same as the right of the employer, for whatever reason, to dispense with the
services of such employe. It was the legal right of the defendant Adair —
however unwise such a course might have been — to discharge Coppage
[the employe in that case] because of his being a member of a labor
organization, as it was the legal right of Coppage, if he saw fit to do so —
however unwise such a course on his part might have been — to quit the
service in which he was engaged, because the defendant employed some
persons who were not members of a labor organization. In all such
particulars the employer and the employe have equality of right, and any
legislation that disturbs that equality is an arbitrary interference with the
liberty of contract which no government can legally justify in a free land.

{7} Unless it is to be overruled, this decision is controlling upon the present
controversy; for if Congress is prevented from arbitrary interference with the liberty
of contract because of the "due process" provision of the Fifth Amendment, it is too
clear for argument that the States are prevented from the like interference by virtue
of the corresponding clause of the Fourteenth Amendment; and hence if it be
unconstitutional for Congress to deprive an employer of liberty or property for
threatening an employe with loss of employment or discriminating against him
because of his membership in a labor organization, it is unconstitutional for a State
to similarly punish an employer for requiring his employe, as a condition of securing
or retaining employment, to agree not to become or remain a member of such an
organization while so employed.
{8} It is true that, while the statute that was dealt with in the Adair case
contained a clause substantially identical with the Kansas act now under consideration
— a clause making it a misdemeanor for an employer to require an employe or

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Coppage v. Kansas

applicant for employment, as a condition of such employment, to agree not to become
or remain a member of a labor organization, — the conviction was based upon
another clause, which related to discharging an employe because of his membership
in such an organization; and the decision, naturally, was confined to the case actually
presented for decision. In the present case, the Kansas Supreme Court sought to
distinguish the Adair decision upon this ground. The distinction, if any there be, has
not previously been recognized as substantial, so far as we have been able to find....
{9} But, irrespective of whether it has received judicial recognition, is there
any real distinction? The constitutional right of the employer to discharge an
employe because of his membership in a labor union being granted, can the employer
be compelled to resort to this extreme measure? May he not offer to the employe an
option, such as was offered in the instant case, to remain in the employment if he will
retire from the union; to sever the former relationship only if he prefers the latter?
Granted the equal freedom of both parties to the contract of employment, has not each
party the right to stipulate upon what terms only he will consent to the inception, or
to the continuance, of that relationship? And may he not insist upon an express
agreement, instead of leaving the terms of the employment to be implied? Can the
legislature in effect require either party at the beginning to act covertly; concealing
essential terms of the employment — terms to which, perhaps, the other would not
willingly consent — and revealing them only when it is proposed to insist upon them
as a ground for terminating the relationship? Supposing an employer is unwilling to
have in his employ one holding membership in a labor union, and has reason to
suppose that the man may prefer membership in the union to the given employment
without it — we ask, can the legislature oblige the employer in such case to refrain
from dealing frankly at the outset? And is not the employer entitled to insist upon
equal frankness in return? Approaching the matter from a somewhat different
standpoint, is the employe's right to be free to join a labor union any more sacred, or
more securely founded upon the Constitution, than his right to work for whom he
will, or to be idle if he will? And does not the ordinary contract of employment
include an insistence by the employer that the employe shall agree, as a condition of
the employment, that he will not be idle and will not work for whom he pleases but
will serve his present employer, and him only, so long as the relation between them
shall continue? Can the right of making contracts be enjoyed at all, except by parties
coming together in an agreement that requires each party to forego, during the time
and for the purpose covered by the agreement, any inconsistent exercise of his
constitutional rights?
{10} These queries answer themselves. The answers, as we think, lead to a
single conclusion: Under constitutional freedom of contract, whatever either party has
the right to treat as sufficient ground for terminating the employment, where there is
no stipulation on the subject, he has the right to provide against by insisting that a

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vii

stipulation respecting it shall be a sine qua non of the inception of the employment,
or of its continuance if it be terminable at will. It follows that this case cannot be
distinguished from Adair v. United States.
{11} ... The principle is fundamental and vital. Included in the right of
personal liberty and the right of private property — partaking of the nature of each —
is the right to make contracts for the acquisition of property. Chief among such
contracts is that of personal employment, by which labor and other services are
exchanged for money or other forms of property. If this right be struck down or
arbitrarily interfered with, there is a substantial impairment of liberty in the
long-established constitutional sense. The right is as essential to the laborer as to the
capitalist, to the poor as to the rich; for the vast majority of persons have no other
honest way to begin to acquire property, save by working for money.
{12} ... We do not mean to say, therefore, that a State may not properly exert
its police power to prevent coercion on the part of employers towards employes, or
vice versa. But, in this case, the Kansas court of last resort has held that Coppage, the
plaintiff in error, is a criminal punishable with fine or imprisonment under this statute
simply and merely because, while acting as the representative of the Railroad
Company and dealing with Hedges, an employe at will and a man of full age and
understanding, subject to no restraint or disability, Coppage insisted that Hedges
should freely choose whether he would leave the employ of the Company or would
agree to refrain from association with the union while so employed. This
construction is, for all purposes of our jurisdiction, conclusive evidence that the State
of Kansas intends by this legislation to punish conduct such as that of Coppage,
although entirely devoid of any element of coercion, compulsion, duress, or undue
influence....
{13} Laying aside, therefore, as immaterial for present purposes, so much of
the statute as indicates a purpose to repress coercive practices, what possible relation
has the residue of the Act to the public health, safety, morals or general welfare?
None is suggested, and we are unable to conceive of any. The Act ... is intended to
deprive employers of a part of their liberty of contract, to the corresponding
advantage of the employed and the upbuilding of the labor organizations. But no
attempt is made, or could reasonably be made, to sustain the purpose to strengthen
these voluntary organizations, any more than other voluntary associations of persons,
as a legitimate object for the exercise of the police power. They are not public
institutions, charged by law with public or governmental duties, such as would render
the maintenance of their membership a matter of direct concern to the general
welfare. If they were, a different question would be presented.

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{14} As to the interest of the employed, it is said by the Kansas Supreme
Court (87 Kansas, p. 759) to be a matter of common knowledge that "employes, as
a rule, are not financially able to be as independent in making contracts for the sale
of their labor as are employers in making contracts of purchase thereof." No doubt,
wherever the right of private property exists, there must and will be inequalities of
fortune; and thus it naturally happens that parties negotiating about a contract are not
equally un-hampered by circumstances. This applies to all contracts, and not merely
to that between employer and employe. Indeed a little reflection will show that
wherever the right of private property and the right of free contract co-exist, each
party when contracting is inevitably more or less influenced by the question whether
he has much property, or little, or none; for the contract is made to the very end that
each may gain something that he needs or desires more urgently than that which he
proposes to give in exchange. And, since it is self-evident that, unless all things are
held in common, some persons must have more property than others, it is from the
nature of things impossible to uphold freedom of contract and the right of private
property without at the same time recognizing as legitimate those inequalities of
fortune that are the necessary result of the exercise of those rights. But the Fourteenth
Amendment, in declaring that a State shall not "deprive any person of life, liberty or
property without due process of law," gives to each of these an equal sanction; it
recognizes "liberty" and "property" as co-existent human rights, and debars the States
from any unwarranted interference with either.
...
{15} We need not refer to the numerous and familiar cases in which this court
has held that the {police} power may properly be exercised for preserving the public
health, safety, morals, or general welfare, and that such police regulations may
reasonably limit the enjoyment of personal liberty, including the right of making
contracts.... An evident and controlling distinction is this: that in those cases it has
been held permissible for the States to adopt regulations fairly deemed necessary to
secure some object directly affecting the public welfare, even though the enjoyment
of private rights of liberty and property be thereby incidentally hampered; while in
that portion of the Kansas statute which is now under consideration — that is to say,
aside from coercion, etc. — there is no object or purpose, expressed or implied, that
is claimed to have reference to health, safety, morals, or public welfare, beyond the
supposed desirability of leveling inequalities of fortune by depriving one who has
property of some part of what is characterized as his "financial independence." In
short, an interference with the normal exercise of personal liberty and property rights
is the primary object of the statute, and not an incident to the advancement of the
general welfare. But, in our opinion, the Fourteenth Amendment debars the States
from striking down personal liberty or property rights, or materially restricting their
normal exercise, excepting so far as may be incidentally necessary for the

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ix

accomplishment of some other and paramount object, and one that concerns the
public welfare. The mere restriction of liberty or of property rights cannot of itself
be denominated "public welfare," and treated as a legitimate object of the police
power; for such restriction is the very thing that is inhibited by the Amendment.
{16} It is said in the opinion of the state court that membership in a labor
organization does not necessarily affect a man's duty to his employer; that the
employer has no right, by virtue of the relation, "to dominate the life nor to interfere
with the liberty of the employe in matters that do not lessen or deteriorate the
service"; and that "the statute implies that labor unions are lawful and not inimical to
the rights of employers." The same view is presented in the brief of counsel for the
State, where it is said that membership in a labor organization is the "personal and
private affair" of the employe. To this line of argument it is sufficient to say that it
cannot be judicially declared that membership in such an organization has no relation
to a member's duty to his employer; and therefore, if freedom of contract is to be
preserved, the employer must be left at liberty to decide for himself whether such
membership by his employe is consistent with the satisfactory performance of the
duties of the employment.
{17} Of course we do not intend to say, nor to intimate, anything inconsistent
with the right of individuals to join labor unions, nor do we question the legitimacy
of such organizations so long as they conform to the laws of the land as others are
required to do. Conceding the full right of the individual to join the union, he has no
inherent right to do this and still remain in the employ of one who is unwilling to
employ a union man, any more than the same individual has a right to join the union
without the consent of that organization. Can it be doubted that a labor organization
— a voluntary association of working men — has the inherent and constitutional right
to deny membership to any man who will not agree that during such membership he
will not accept or retain employment in company with non-union men?d Or that a
union man has the constitutional right to decline proffered employment unless the
employer will agree not to employ any non-union man? (In all cases we refer, of
course, to agreements made voluntarily, and without coercion or duress as between
the parties. And we have no reference to questions of monopoly, or interference with
the rights of third parties or the general public. These involve other considerations,
respecting which we intend to intimate no opinion.) And can there be one rule of
liberty for the labor organization and its members, and a different and more restrictive
rule for employers? We think not; and since the relation of employer and employe
is a voluntary relation, as clearly as is that between the members of a labor
organization, the employer has the same inherent right to prescribe the terms upon

d

{Compare the opinion of Recorder Levy in the Philadelphia Cordwainers' Case. — ed.}

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Coppage v. Kansas

which he will consent to the relationship, and to have them fairly understood and
expressed in advance.
{18} When a man is called upon to agree not to become or remain a member
of the union while working for a particular employer, he is in effect only asked to deal
openly and frankly with his employer, so as not to retain the employment upon terms
to which the latter is not willing to agree. And the liberty of making contracts does
not include a liberty to procure employment from an unwilling employer, or without
a fair understanding. Nor may the employer be foreclosed by legislation from
exercising the same freedom of choice that is the right of the employe.
{19} To ask a man to agree, in advance, to refrain from affiliation with the
union while retaining a certain position of employment, is not to ask him to give up
any part of his constitutional freedom. He is free to decline the employment on those
terms, just as the employer may decline to offer employment on any other; for "It
takes two to make a bargain." Having accepted employment on those terms, the man
is still free to join the union when the period of employment expires; or, if employed
at will, then at any time upon simply quitting the employment. And, if bound by his
own agreement to refrain from joining during a stated period of employment, he is in
no different situation from that which is necessarily incident to term contracts in
general. For constitutional freedom of contract does not mean that a party is to be as
free after making a contract as before; he is not free to break it without accountability.
Freedom of contract, from the very nature of the thing, can be enjoyed only by being
exercised; and each particular exercise of it involves making an engagement which,
if fulfilled, prevents for the time any inconsistent course of conduct.
...
Judgment reversed....
MR. JUSTICE HOLMES, dissenting.
{20} I think the judgment should be affirmed. In present conditions a
workman not unnaturally may believe that only by belonging to a union can he secure
a contract that shall be fair to him. If that belief, whether right or wrong, may be held
by a reasonable man, it seems to me that it may be enforced by law in order to
establish the equality of position between the parties in which liberty of contract
begins. Whether in the long run it is wise for the workingmen to enact legislation of
this sort is not my concern, but I am strongly of opinion that there is nothing in the
Constitution of the United States to prevent it, and that Adair v. United States, 208
U.S. 161, and Lochner v. New York, 198 U.S. 45, should be overruled....

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xi

MR. JUSTICE DAY, with whom MR. JUSTICE HUGHES concurs, dissenting.
...
{21} That the right of contract is a part of individual freedom within the
protection of this amendment, and may not be arbitrarily interfered with, is conceded.
While this is true, nothing is better settled by the repeated decisions of this court than
that the right of contract is not absolute and unyielding, but is subject to limitation
and restraint in the interest of the public health, safety and welfare, and such
limitations may be declared in legislation of the State....
...
{22} ... Whether a given exercise of such authority transcends the limits of
legislative authority must be determined in each case as it arises. The preservation
of the police power of the States, under the authority of which that great mass of
legislation has been enacted which has for its purpose the promotion of the health,
safety and welfare of the public, is of the utmost importance....
{23} Of the necessity of such legislation, the local legislature is itself the
judge, and its enactments are only to be set aside when they involve such palpable
abuse of power and lack of reasonableness to accomplish a lawful end that they may
be said to be merely arbitrary and capricious, and hence out of place in a government
of laws and not of men, and irreconcilable with the conception of due process of law.
{24} By this it is not meant that the legislative power is beyond judicial
review. Such enactments as are arbitrary or unreasonable and thus exceed the exercise
of legislative authority in good faith, may be declared invalid when brought in review
by proper judicial proceedings. This is necessary to the assertion and maintenance
of the supremacy of the Constitution.
{25} Conceding then that the right of contract is a subject of judicial
protection, within the authority given by the Constitution of the United States, the
question here is, was the power of the State so arbitrarily exercised as to render its
action unconstitutional and therefore void? It is said that this question is
authoritatively determined in this court, in the case of Adair v. United States, 208
U.S. 161 {but the Court in that case did not reach the issue in the case at bar; and the
issues are distinguishable.}
...

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{26} There is nothing in the statute now under consideration which prevents
an employer from discharging one in his service at his will. The question now
presented is, May an employer, as a condition of present or future employment,
require an employe to agree that he will not exercise the privilege of becoming a
member of a labor union, should he see fit to do so? In my opinion, the cases are
entirely different, and the decision of the questions controlled by different principles.
The right to join labor unions is undisputed, and has been the subject of frequent
affirmation in judicial opinions. Acting within their legal rights, such associations
are as legitimate as any organization of citizens formed to promote their common
interest. They are organized under the laws of many States, by virtue of express
statutes passed for that purpose, and, being legal, and acting within their
constitutional rights, the right to join them, as against coercive action to the contrary,
may be the legitimate subject of protection in the exercise of the police authority of
the States. This statute, passed in the exercise of that particular authority called the
police power, the limitations of which no court has yet undertaken precisely to define,
has for its avowed purpose the protection of the exercise of a legal right, by
preventing an employer from depriving the employe of it as a condition of obtaining
employment. I see no reason why a State may not, if it chooses, protect this right, as
well as other legal rights.
{27} But it is said that the contrary must necessarily result, if not from the
precise matter decided in the Adair case, then from the principles therein laid down,
and that it is the logical result of that decision that the employer may, as a condition
of employment, require an obligation to forego the exercise of any privileges because
of the exercise of which an employe might be discharged from service. I do not
concede that this result follows from anything decided in the Adair case. That case
dealt solely with the right of an employer to terminate relations of employment with
an employe, and involved the constitutional protection of his right so to do, but did
not deal with the conditions which he might exact or impose upon another as a
condition of employment.
{28} The act under consideration is said to have the effect to deprive
employers of a part of their liberty of contract, for the benefit of labor organizations.
It is urged that the statute has no object or purpose, express or implied, that has
reference to health, safety, morals, or public welfare, beyond the supposed desirability
of leveling inequalities of fortune by depriving him who has property of some part of
his "financial independence."
{29} But this argument admits that financial independence is not
independence of law or of the authority of the legislature to declare the policy of the
State as to matters which have a reasonable relation to the welfare, peace and security
of the community.

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...
{30} The act must be taken as an attempt of the legislature to enact a statute
which it deemed necessary to the good order and security of society.... The legislature
may have believed, acting upon conditions known to it, that the public welfare would
be promoted by the enactment of a statute which should prevent the compulsory
exaction of written agreements to forego the acknowledged legal right here involved,
as a condition of employment in one's trade or occupation.
{31} It would be impossible to maintain that because one is free to accept or
refuse a given employment, or because one may at will employ or refuse to employ
another, it follows that the parties have a constitutional right to insert in an agreement
of employment any stipulation they choose. They cannot put in terms that are against
public policy either as it is deemed by the courts to exist at common law or as it may
be declared by the legislature as the arbiter within the limits of reason of the public
policy of the State. It is no answer to say that the greater includes the less and that
because the employer is free to employ, or the employe to refuse employment, they
may agree as they please....
...
{32} It may be that an employer may be of the opinion that membership of his
employes in the National Guard, by enlistment in the militia of the State, may be
detrimental to his business. Can it be successfully contended that the State may not,
in the public interest, prohibit an agreement to forego such enlistment as against
public policy? Would it be beyond a legitimate exercise of the police power to
provide that an employe should not be required to agree, as a condition of
employment, to forego affiliation with a particular political party, or the support of
a particular candidate for office? It seems to me that these questions answer
themselves. There is a real and not a fanciful distinction between the exercise of the
right to discharge at will and the imposition of a requirement that the employe, as a
condition of employment, shall make a particular agreement to forego a legal right.
The agreement may be, or may be declared to be, against public policy, although the
right of discharge remains. When a man is discharged, the employer exercises his
right to declare such action necessary because of the exigencies of his business, or as
the result of his judgment for other reasons sufficient to himself. When he makes a
stipulation of the character here involved essential to future employment, he is not
exercising a right to discharge, and may not wish to discharge the employe when, at
a subsequent time, the prohibited act is done. What is in fact accomplished, is that
the one engaging to work, who may wish to preserve an independent right of action,
as a condition of employment, is coerced to the signing of such an agreement against
his will, perhaps impelled by the necessities of his situation. The State, within

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constitutional limitations, is the judge of its own policy and may execute it in the
exercise of the legislative authority. This statute reaches not only the employed but
as well one seeking employment. The latter may never wish to join a labor union.
By signing such agreements as are here involved he is deprived of the right of free
choice as to his future conduct, and must choose between employment and the right
to act in the future as the exigencies of his situation may demand. It is such contracts,
having such effect, that this statute and similar ones seek to prohibit and punish as
against the policy of the State.
{33} It is constantly emphasized that the case presented is not one of coercion.
But in view of the relative positions of employer and employed, who is to deny that
the stipulation here insisted upon and forbidden by the law is essentially coercive?
No form of words can strip it of its true character. Whatever our individual opinions
may be as to the wisdom of such legislation, we cannot put our judgment in place of
that of the legislature and refuse to acknowledge the existence of the conditions with
which it was dealing. Opinions may differ as to the remedy, but we cannot
understand upon what ground it can be said that a subject so intimately related to the
welfare of society is removed from the legislative power. Wherein is the right of the
employer to insert this stipulation in the agreement any more sacred than his right to
agree with another employer in the same trade to keep up prices?e He may think it
quite as essential to his "financial independence" and so in truth it may be if he alone
is to be considered. But it is too late to deny that the legislative power reaches such
a case. It would be difficult to select any subject more intimately related to good
order and the security of the community than that under consideration -- whether one
takes the view that labor organizations are advantageous or the reverse. It is certainly
as much a matter for legislative consideration and action as contracts in restraint of
trade.
{34} It is urged that a labor organization — a voluntary association of
working-men — has the constitutional right to deny membership to any man who will
not agree that during such membership he will not accept or retain employment in
company with non-union men. And it is asserted that there cannot be one rule of
liberty for the labor organization and its members and a different and more restrictive
rule for employers.
{35} It of course is true, for example, that a Church may deny membership
to those who unite with other denominations, but it by no means follows that the State
e

{An agreement between employers to set prices would violate the anti-trust law. Justice
Day is arguing that if liberty of contract is not infringed by a statute outlawing contracts to
set prices, liberty of contract is not infringed by a statute outlawing yellow dog contracts. —
ed.}

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may not constitutionally prohibit a railroad company from compelling a working-man
to agree that he will, or will not, join a particular church. An analogous case, viewed
from the employer's standpoint, would be: Can the State, in the exercise of its
legislative power, reach concerted effort of employes intended to coerce the employer
as a condition of hiring labor that he shall engage in writing to give up his privilege
of association with other employers in legal organizations, corporate or otherwise,
having for their object a united effort to promote by legal means that which employers
believe to be for the best interest of their business?
{36} I entirely agree that there should be the same rule for employers and
employed, and the same liberty of action for each. In my judgment, the law may
prohibit coercive attempts, such as are here involved, to deprive either of the free
right of exercising privileges which are theirs within the law. So far as I know, no
law has undertaken to abridge the right of employers of labor in the exercise of free
choice as to what organizations they will form for the promotion of their common
interests, or denying to them free right of action in such matters.
{37} But it is said that in this case all that was done in effect was to discharge
an employe for a cause deemed sufficient to the employer — a right inherent in the
personal liberty of the employer protected by the Constitution. This argument loses
sight of the real purpose and effect of this and kindred statutes. The penalty imposed
is not for the discharge but for the attempt to coerce an unwilling employe to agree
to forego the exercise of the legal right involved as a condition of employment. It is
the requirement of such agreements which the State declares to be against public
policy.
{38} I think that the act now under consideration, and kindred ones, are
intended to promote the same liberty of action for the employe as the employer
confessedly enjoys. The law should be as zealous to protect the constitutional liberty
of the employe as it is to guard that of the employer. A principal object of this statute
is to protect the liberty of the citizen to make such lawful affiliations as he may desire
with organizations of his choice. It should not be necessary to the protection of the
liberty of one citizen that the same right in another citizen be abridged or destroyed.
{39} If one prohibitive condition of the sort here involved may be attached,
so may others, until employment can only be had as the result of written stipulations,
which shall deprive the employe of the exercise of legal rights which are within the
authority of the State to protect. While this court should, within the limitations of the
constitutional guaranty, protect the free right of contract, it is not less important that
the State be given the right to exert its legislative authority, if it deems best to do so,
for the protection of rights which inhere in the privileges of the citizen of every free
country.

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{40} The Supreme Court of Kansas in sustaining this statute, said that
"employes as a rule are not financially able to be as independent in making contracts
for the sale of their labor as are employers in making a contract of purchase thereof,"
and in reply to this it is suggested that the law cannot remedy inequalities of fortune,
and that so long as the right of property exists, it may happen that parties negotiating
may not be equally unhampered by circumstances.
{41} This view of the Kansas court, as to the legitimacy of such
considerations, is in entire harmony, as I understand it, with the former decisions of
this court in considering the right of state legislatures to enact laws which shall
prevent the undue or oppressive exercise of authority in making contracts with
employes. In Holden v. Hardy, 169 U.S. 366, this court considering legislation
limiting the number of hours during which laborers might be employed in a particular
employment, said:
"The legislature has also recognized the fact, which the experience of
legislators in many States has corroborated, that the proprietors of these
establishments and their operatives do not stand upon an equality, and that
their interests are, to a certain extent, conflicting. The former naturally
desire to obtain as much labor as possible from their employes, while the
latter are often induced by the fear of discharge to conform to regulations
which their judgment, fairly exercised, would pronounce to be detrimental
to their health or strength. In other words, the proprietors lay down the
rules and the laborers are practically constrained to obey them. In such
cases self-interest is often an unsafe guide, and the legislature may properly
interpose its authority.... But the fact that both parties are of full age and
competent to contract does not necessarily deprive the State of the power
to interfere where the parties do not stand upon an equality, or where the
public health demands that one party to the contract shall be protected
against himself. 'The State still retains an interest in his welfare, however
reckless he may be. The whole is no greater than the sum of all the parts,
and when the individual health, safety and welfare are sacrificed or
neglected, the State must suffer.'" (Page 397.)

{42} This language was quoted with approval in Chicago, Burlington &
Quincy R. R. Co. v. McGuire, 219 U.S. 549, 570, in which a statute of Iowa was
sustained, prohibiting contracts limiting liability for injuries made in advance of the
injuries received, and providing that the subsequent acceptance of benefits under such
contracts should not constitute satisfaction for injuries received after the contract.
Certainly it can be no substantial objection to the exercise of the police power that the
legislature has taken into consideration the necessities, the comparative ability, and
the relative situation of the contracting parties. While all stand equal before the law,
and are alike entitled to its protection, it ought not to be a reasonable objection that

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one motive which impelled an enactment was to protect those who might otherwise
be unable to protect themselves.
{43} I therefore think that the statute of Kansas, sustained by the Supreme
Court of the State, did not go beyond a legitimate exercise of the police power, when
it sought, not to require one man to employ another against his will, but to put
limitations upon the sacrifice of rights which one man may exact from another as a
condition of employment. Entertaining these views, I am constrained to dissent from
the judgment in this case.

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COMMENTS
LAISSEZ-FAIRE, SOCIAL DARWINISM, AND NATURAL RIGHTS

Adair and Coppage exemplify how the Nineteenth
Century philosophies of laissez-faire economics and
Social Darwinism combined to influence legal doctrine.
Indeed, the judges wrote these philosophies into the
Constitution, at least as far as they served the
interests of capital.
In brief, laissez-faire doctrine calls for the
government to leave the economy alone.
Parties to
contracts should be left free to negotiate any terms they
desire.
We need say little more about laissez-faire
economics.
It has been resurrected as neoclassical
economics, which has captured the majority of economics
departments in the land and which the student is advised
to evaluate with care.
But a few words about Social
Darwinism are in order.
Social Darwinism grew out of Charles Darwin's theory
that evolution is explained by survival of the fittest.
Evolution is the empirical observation that the
characteristics of species change over time. Survival of
the fittest is the hypothesis or theory that successful
changes survive. For example, fossils reveal that the
creature we know as giraffe used to have a short neck,
and it fed on bushes and low leaves. These creatures
lived in a time when food was plentiful, and the animals
increased in number. These are empirical observations
and inferences based on observations. Now commences the
theorizing. Short-necked giraffes increased to the point
that there were not enough bushes and low leaves to
support any more of them.
Then something interesting
happened. Some giraffes were born with necks that were
a little bit longer than the rest. (We do not know why
changes of this sort occur; theories abound.
But the
reason for changes in species is not important for our
purposes.) A longer neck was an advantage because the
animal could nibble on higher food as well as bushes and
low leaves, so the slightly longer-necked giraffes
multiplied faster than the shorter-necked giraffes with
which they competed for food. In time, the longer-necked
giraffes replaced all of their competitors; that is, the
shorter-necked giraffes died out. And then it happened
all over again: some giraffes were born with necks that

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were a little bit longer than the rest, and they
flourished and multiplied and drove out the competition.
And then it happened again and again. Other changes may
have played roles as well; for example, a change in
weather might have reduced the amount of bushes and low
leaves, but not affected higher leaves, or other short
beasts might have begun to compete with the shorternecked giraffes for bushes and low leaves. Over a long
period of time, giraffes came to have long necks.
According to the theory of survival of the fittest, the
longer-necked giraffes were better adaptations to the
environment in which they lived than their shorter-necked
cousins.
The theory smacks of tautology because fitness is
defined in terms of survival. The fittest are the ones
that survive because fitness simply means a species has
survived.
Nevertheless, the theory became widely
accepted in the Nineteenth Century and was easily applied
to the human race; after all, we are a species of mammal.
The theory can be applied to society. The application
runs like this: It has always been true that some human
beings are more successful than others. Every culture
has values, and some people score higher on those values
than others. Hierarchies result. Consider the culture
of young boys. Athletic prowess is a major value. Good
athletes enjoy more prestige than poor athletes.
Or
consider fashions in appearance. When this writer was in
junior high school, and appearance was very important to
him and his peers, the coolest hair style for boys was a
crew cut on top and long hair slicked back on the sides.
If one had straight hair, one could enhance one's esteem
by adopting this hairdo. If, like this writer, one had
curly hair, one was out of luck. (White folks did not
dream of straightening their hair back then.)
A
generation later, styles had changed, and curls were in.
The children of the author's straight-haired classmates
were out of style (or had to pay their hair stylists for
appropriate treatments), whereas this writer's children
enjoyed prestige just for being themselves. The point is
that we have — probably always have had, perhaps always
will have — criteria of value, and they produce
hierarchies of human beings. Some criteria are stable,
like athletic prowess; some are not, like hair styles.
Darwin's theory can be used to explain these
hierarchies; the explanation is called Social Darwinism.

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It holds that the most successful human beings are the
fittest, the best adaptations to the environment. Two
conclusions follow: The successful are superior to the
unsuccessful, and the successful deserve their success.
If one is wealthy — and wealth is the principal measure
of value in modern American culture — the reason is that
one has the highly valued talent of making money. Poor
people lack this talent. Therefore, because one's wealth
is the result of one's talent, one deserves it. Poor
people are poor because they lack the talent of making
money; so they are inferior, and they deserve to be poor.
Social Darwinism can be criticized. Those straighthaired youths in the 1950's were not, for this reason,
better persons than this writer was; they were just
luckier. Or take the case of other talents. Suppose one
person invented the computer, and this person was born a
hundred years earlier than she actually was.
Without
Twentieth Century technology, she could not have made a
computer; at best she would have been considered
eccentric, and she might have been considered crazy. Or
suppose Achilles, the greatest of the Greek warriors, and
perhaps the most famous hero of all time in the Western
world, had been born today. How useful would his ability
to hurl a spear be in New York or Chicago? The best he
could hope for would be a spot on the Olympic team and,
after that, maybe a job as a bartender or insurance sales
agent or actor with a German accent.
In short, a
criticism of Social Darwinism is that chance is at least
as important to success as talent.
Australia, New Zealand, Canada, and the United
States stand as some evidence for this criticism of
Social Darwinism.
These nations, which are among the
most prosperous on earth, were colonized and developed by
the dregs of European society, including criminals.
Successful persons rarely emigrate to the wilderness.
Few of the ancestors of the citizens of these countries
were among the elite of the lands they left, and the same
is true of the United States.
Two other criticisms of Social Darwinism may be
mentioned. First, the analogy between the natural world
and the social world of humans is imperfect. An animal
cannot change its environment, whereas humans can change
their social environment. Humans can manipulate their
social environment in ways to their personal advantage,

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so that success is no longer an objective measure of
fitness.
Second, Social Darwinism imagines that
individual humans compete in our environment in the same
way that animals compete in their environments. However,
some of the most successful species of animals cooperate
rather than compete. Indeed, individual members of such
species may cooperate to the point of self sacrifice; for
example, a soldier bee will die for the sake of the hive.
It follows that competition is not the only route to
success, and it may not be the best route.
In spite of these and other criticisms,f Social
Darwinism had a powerful appeal in the Nineteenth
Century, and still has today, particularly to the people
at the top of the hierarchy. They want to believe that
they deserve to be there; they feel they are superior to
those beneath them, and they want a rationale to explain
their superiority.
The rationale of the early
Protestants, a group that included the Puritans who
founded New England, was that they were the elect, the
chosen of God. That rationale ran out of force in the
Eighteenth and Nineteenth Centuries. The Enlightenment
made us naturalists, and today we seek scientific
explanations. And so we have Social Darwinism. Survival
of the fittest appears to be scientific. It applies to
every living creature. If the best are on top, it is the
natural order of things.
Social Darwinism can be linked with laissez-faire
economics.
The argument is that the economy is an

f

One might add a criticism of evolutionary theory in
general, not merely of its application to human society,
namely, that people who apply the theory commonly assume that
whatever they observe — in a living creature or a social
structure — is (or was) good, or at least well adapted.
But
"mistakes" in evolution are bound to happen; counterproductive changes must occur. If the theory is correct, they
will not endure; but a mistake might persist for a substantial
period of time because the creature has other strengths that
overbalance the weakness. A person at the top of a social
ladder often has a number of undesirable qualities.
For
example, suppose a person had invented the mass production
assembly line.
This person would have become fabulously
wealthy and powerful, and held up to others as a model,
despite being paternalistic towards workers and an outspoken
racist.

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environment, much like the environment in which animals
live, and it should be left to operate naturally so that
the most able, the most productive, can become the most
successful. Governmental interference will distort the
economy and destroy efficiency. The beneficiaries of
government interference are not the most productive, but
the friends of politicians.
Social Darwinism and laissez-faire economics can be
linked to the idea of natural rights, to which the
authors of the Constitution subscribed. The argument is
that every human being has a natural right to deal with
other human beings, to bargain and enter into contracts
on whatever terms are satisfactory to the parties.
Because this is a natural right, the government may not
interfere with it.
The cases we have been discussing used laissez-faire
economics and Social Darwinism to create new natural
rights, which were implied into the Constitution for the
benefit of entrepreneurs. The process started with the
simple notion that employment is a contract between
employer and employee.
That employment is contractual
may seem obvious to us today, but, as the student knows,
it was not obvious to the Founders of America. To them,
employment was a status relationship.
Masters and
servants were like husbands and wives, and parents and
children, and could be regulated by government. We have
seen already that the government played an active role in
Colonial times with regard to entering and leaving
occupations, compensation, and production.
But during
the Nineteenth Century, the role of the government
diminished, and the employment relationship came to be
understood in terms of contract, not status. The cases
the student has read consistently characterize employment
as being the result of an offer by an employer and an
acceptance by a worker, that is, as a contract.
The second step in the process of using laissezfaire economics and Social Darwinism to create new
natural rights in the Constitution, was the assertion
that each person has a constitutional right to be free of
governmental interference in pursuing an occupation. To
repeat what Justice Bradley said in the Butchers' Union
case, "the right to follow any of the common occupations
of life is an inalienable right." Because employment is
contractual, it follows that the right to enter into

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employment contracts is also inalienable. As the Court
held in Allgeyer, "The liberty mentioned in [the due
process clause] ... embrace[s] the right of the citizen
... to pursue any livelihood or avocation, and for that
purpose to enter into all contracts which may be proper,
necessary, and essential" to this purpose.
Justice
Pitney explicitly made these connections in ¶ 11 of
Coppage:
"The principle is fundamental and vital. Included
in the right of personal liberty and the right of
private property )) partaking of the nature of each
)) is the right to make contracts for the
acquisition of property.
Chief among such
contracts is that of personal employment, by which
labor and other services are exchanged for money
and other forms of property."

The final step in the process was to prohibit the
government from regulating the employment relationship.
Lochner held that the government could not mandate a tenhour maximum for bakers. Adair held the government could
not forbid discrimination because of union membership.
Coppage held that the government could not prohibit
yellow dog contracts.
The judges were aware of what they were doing. Like
all true believers, they were convinced that their
philosophy was right, and they were not ashamed of it.
They consciously wrote it into the Constitution.
Consider the words of Justice Pitney in Coppage, some of
which were quoted earlier:
"As to the interest of the employed, it is
said by the Kansas supreme court to be a matter of
common knowledge that 'employees, as a rule, are
not financially able to be as independent in making
contracts for the sale of their labor as are
employers in making a contract of purchase
thereof.'"g ¶ 14.

g

This curious way of saying that workers have less
bargaining power than employers is reminiscent of Adam Smith's
analysis that appeared in the Philadelphia Cordwainers case.
He noted that employers are wealthier and, therefore, if a
dispute arises, they can hold out longer than workers.

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Justice Pitney continued:
"No doubt, wherever the right of private property
exists, there must and will be inequality of
fortune; and thus it naturally happens that parties
negotiating about a contract are not equally
unhampered by circumstances....
And since it is
self-evident that, unless all things are held in
common, some persons must have more property than
others, it is from the nature of things impossible
to uphold freedom of contract and the right of
private property without at the same time
recognizing as legitimate those inequalities of
fortune that are the necessary result of the
exercise of those rights. But the 14th Amendment,
in declaring that a state shall not 'deprive any
person of life, liberty, or property without due
process of law,' gives to each of these an equal
sanction; it recognizes 'liberty' and 'property' as
coexistent human rights, and debars the states from
any unwarranted interference with either." ¶ 14 .

This passage is especially interesting because it says
that inequality of wealth is a natural consequence of the
right of private property.
The Constitution protects
private property; therefore, the Constitution protects
inequality of wealth. It follows that the Constitution
prohibits any attempts by the government to ameliorate
inequality of wealth, such as improving the bargaining
power of workers through labor unions.
The process of injecting laissez-faire and Social
Darwinism into the Constitution did not occur without
objection. Justice Holmes was fully aware of what was
happening, and he consistently dissented. His dissent in
Lochner (in which the majority invalidated the ten-hour
law for bakers) deserves our attention. He wrote:
"This case is decided upon an economic theory
which a large part of the country does not
entertain.
If it were a question of whether I
agreed with that theory, I should desire to study
it further and long before making up my mind. But
I do not conceive that to be my duty, because I
strongly believe that my agreement or disagreement
has nothing to do with the right of a majority to
embody their opinions in law.
It is settled by
various decisions of this court that state
constitutions and state laws may regulate life in

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many ways which we as legislators might think
injudicious, or ... tyrannical.... Sunday {closing}
laws and usury laws are ancient examples. A more
modern one is the prohibition of lotteries. The
liberty of the citizen to do as he likes so long as
he does not interfere with the liberty of others to
do the same, which has been a shibboleth for some
well-known
writers,h
is
interfered
with
by
{mandatory} school {attendance} laws, by the
Postoffice, by every state or municipal institution
which takes his money for purposes thought
desirable, whether he likes it or not. ' Some of
these laws embody convictions or prejudices which
judges are likely to share. Some may not. But a
Constitution is not intended to embody a particular
economic theory, whether of paternalism and the
organic relation of the citizen to the state, or of
laissez-faire.
It is made for people of
fundamentally differing views....
The 14th
Amendment does not enact Mr. Herbert Spencer's
Social Statics...."i {This book was a statement of
Social Darwinism.} 198 U.S. at 75-76.

This dissent is somewhat disingenuous. Holmes did not
need further study to make up his mind about laissezfaire economics; he believed in it, as we know from his
dissent in Guntner, in which he argued that workers and
employers are in competition.
They compete for the
surplus, that is, for the difference between the cost of
producing a product and the price that consumers pay for
it. If capital is allowed to combine, labor should be
allowed to combine as well, and the government should
leave both alone.
If he believed in laissez-faire, why did Holmes
object to writing it into the Constitution? He offered
one reason, and we may suggest another. He said that the
majority, through the legislature, should be free to
embody their economic opinions into law, and it is not
the place of judges to stand in the way.

h

Most notably, perhaps, John Stuart Mill in "On Liberty."
i

The final sentence in this quotation has been moved. It
appears in Holmes's opinion at the point indicated by this
symbol ' in the quotation.

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Holmes might have had another reason for dissenting
in the cases we are considering. Perhaps his objection
was that the majority of the Supreme Court was not truly
In spite of the
adopting laissez-faire economics.j
repeated assertions that employers and employees had
equal rights, the truth is that the Court was giving
great freedom to entrepreneurs while at the same time
severely limiting the freedom of labor unions. We have
seen some of this already in the Danbury Hatters case, in
which the Court initially applied the Sherman Anti-trust
Act to unions, and in Duplex v. Deering, in which the
Court held that the Clayton Act did not exempt labor from
anti-trust law; we will see the same thing again in
Hitchman Coal, which allowed an injunction against
organizing in West Virginia.
And we will see how the
courts used injunctions to shackle unions when we turn to
the Debs Case.
It has occurred to many observers
(including modern libertarians), and it might have been
in Justice Holmes's mind as well, that the courts were
not adopting laissez-faire in full. Laissez-faire called
for the government, including the courts, to keep hands
off actors in the economy. The courts used laissez-faire
to give capital almost complete freedom from the
government. However, the courts abandoned laissez-faire
when they actively intervened to restrict the activity of
labor unions.
A final word about the holding of Coppage.
In a
line of cases the student has read, the courts kept
organized labor under control by outlawing private
behaviors.
Thus, Vegelahn v. Guntner prohibited
picketing, and the Danbury Hatters case and Duplex v.
Deering prohibited boycotts. Normally, the legislature
has the right to the last word on whether private
behavior is legal or illegal. For example, if a court
ruled that homosexuals may not marry, the legislature
could enact a statute permitting them to marry; if a
court ruled that an employer may discharge a worker for
any reason, the legislature could pass a law protecting
workers against unjust discharge.
Knowing that the
legislature could overrule the courts on the legality of
private behavior, unions went to the legislative branch
of government for relief from judicial rulings; and the

j

See John Roche, "Entrepreneurial Liberty and the Fourteenth
Amendment," 4 Labor History 3 (Winter, 1963).

Labor and Employment Law

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xxvii

legislatures responded with statutes limiting hours of
work per day and prohibiting discrimination against union
members.
Such statutes were meant to stymie judicial
control of the private behavior of unions.
In order for
the courts to maintain their control of labor, it became
necessary for them to develop a new strategy; and they
did.
As the student knows, cases like Lochner v. New
York, Adair v. U.S., and Coppage v. Kansas held
unconstitutional statutes enacted to protect workers and
unions.
Thus, Lochner, Adair, and Coppage marked a
significant shift in the relationship of the law to
organized labor. To their power to control the private
behavior of unions, the courts added the power to control
the public acts of another branch of government.

QUESTIONS FOR REFLECTION
1. The majority held that it was not coercive for an
employer to require a worker to agree to a yellow dog
contract, and Kansas could not change this lawful act
into coercion merely by putting a label on it.
This
holding was crucial to the outcome of the case because
outlawing coercion is a legitimate public policy; so if
demanding a yellow dog contract were coercive, the Kansas
statute would have been constitutional.
The employer in Coppage used economic power to
induce job applicants to sign yellow dog contracts. The
Court held that the employer's use of economic power was
not coercive and, therefore, legitimate.
But earlier
cases which the student has read had held that workers'
use of economic power via unions was coercive and,
therefore, illegitimate.
What is coercion?
Compare
Vegelahn v. Guntner, in which the court declared that
peaceful picketing was "moral intimidation," and Hitchman
Coal v. Mitchell, in which the court held that it was
coercive for the union to urge members to perform the
lawful act of quitting work (striking) in order to secure
higher wages. Is there a difference between identifying
an act for what it is and merely putting a label on it,
or was Humpty Dumpty right after all?k
k

"'When I use a word,' Humpty Dumpty said, in a rather
scornful tone, 'it means just what I choose it to mean —
(continued...)

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Coppage v. Kansas

2. The majority argued that a state had no
legitimate interest in strengthening a private, voluntary
association like a union. If so, why did the state have
an
interest
in
strengthening
private,
voluntary
associations that existed for the purpose of aggregating
capital, namely, corporations?
3. In Adair v. U.S. the majority said that whether
a worker is willing and able to perform a job is
unrelated to union membership; as a result, the
government had no basis in the Commerce Clause to promote
unionization of the railroads. In Coppage v. Kansas the
state argued that an employer has no right to interfere
with a worker's desire to join a union because union
membership was unrelated to a worker's duty to one's
employer (and, therefore, the state could protect the
worker's right); the majority of the Court replied that
union membership may well affect a member's duty to one's
employer. Did the Court change its mind, or were these
statements inconsistent?
4. The majority held that Adair and Coppage were
indistinguishable in part on the argument that, if the
anti-yellow
dog
contract
statute
were
sustained,
employers would evade the statute by hiring a worker
regardless of one's intent to join a union (thus the
employer would appear to obey the statute) and then
firing the worker as soon as one joined a union. Such a
course of behavior would have been illegal. Thus, the
Court struck down the statute in part on the ground that
citizens would violate the law. Is it proper for a court
to base a ruling on the assumption that citizens will
behave illegally?
Did the Court make a contrary
assumption in Adair?
5. Holmes argued that liberty of contract was more
than symmetry of rights, but required equality of
bargaining power.
Do you think this argument was

k

(...continued)
neither more nor less.' 'The question is,' said Alice,
'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master
— that's all.'" Lewis Carroll, Through the Looking-Glass, ch.
6, p. 205 (1934 edition).

Labor and Employment Law

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xxix

correct?
If so, do you also think that substantive
economic rights may exist, for example, a right to a
living wage or adequate medical care?
6. Adair held that an employer had a constitutional
right to discharge a worker for joining a union. As a
practical matter, Adair also meant that an employer could
refuse to hire a union member. (The reasoning is that if
an employer had to hire a union member, but was free to
discharge one, the employer would hire the union member
and a minute later fire the person.) Justice Day sought
to distinguish Adair on the ground that a law against
yellow dog contracts did not penalize an employer for
discharging a worker, but for attempting to coerce a
worker into abandoning one's right to join a union in the
future. From the point of view of a worker, is there any
difference between promising not to join a union and
knowing one will be fired if one joins a union?
7. The law against yellow dog contracts aimed to
protect workers from coercion in exercising their right
to join a lawful private association, viz., a union. Day
argued that the state could protect this right. He drew
an analogy to a law that would protect employers from
coercion by workers in exercising the employer's right to
join a lawful trade association. Day implied that the
two laws stood or fell together. Thus, Day's argument
was a reductio ad absurdum within an analogy.
Let us
assume the analogy was sound, i.e., that a worker's
joining a union was like an employer's joining a trade
association.
Whether the reductio was convincing
depended on the implied belief that a legislature could
constitutionally enact a statute that prohibited workers
from using their economic power to induce an employer not
to join a trade association. Was this belief justified?
Would invalidation of such a law have been unthinkable?
8. A yellow dog contract deprived a worker of the
liberty to join a union. The Kansas statute sought to
deprive the employer of the liberty to hire only nonunion workers. Were Adair and Coppage really about which
party, employer or worker, would preserve freedom of
action in the future?

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Coppage v. Kansas

9. Justice Day cited the precedent of Holden v.
Hardy, in which the Supreme Court upheld a statute
limiting hour of work for underground miners.
The
rationale of the case, according to a passage from the
opinion quoted by Day (¶ 41), was that the workers lacked
bargaining power and needed the protection of the law.
Day also cited Chicago, Burlington & Quincy R.R. Co. v.
McGuire, which held that a state might prohibit employers
from demanding that applicants for jobs agree to a
limitation on the employer's liability to them for
injuries suffered on the job (¶ 42), and implied that
this decision was also based on workers' lack of
bargaining power. Can these decisions be distinguished
from Adair and Coppage, or did the later cases implicitly
overrule the earlier ones?
Why did not Day also cite
Lochner v. New York?
10. Do you think the theory of Social Darwinism has
merit?
11. Would our society and economy be better off
today if we adhered rigorously to laissez-faire?

Ù

Labor and Employment Law

177

Government by Injunction
JURISDICTION
Introduction
The origin of the Debs case is the Pullman strike of
1894. Pullman cars were special sleeping cars on trains.
They were manufactured by the Pullman Co. in the company
town of Pullman, Illinois, near Chicago.a Pullman cars
were owned and operated by the Pullman Co., not by the
railroads. If a traveler wanted to sleep in a Pullman
car, one bought a separate ticket for this purpose. The
Pullman Co. paid a fee to the railroad for hauling its
cars.
Most railway workers had been organized by 1894, but
Pullman refused to deal with a national union. In May of
that year, Pullman cut the wages of its workers by twenty
percent. When they protested, the company evicted the
protesters from their houses. In response, the workers
joined the American Railway Union. Eugene Debs was the
president.
The union had lost the strike of 1877; that
strike had turned violent, and the violence had justified
federal intervention to protect the flow of interstate
commerce.
Remembering this lesson, Debs carefully
masterminded a job action directed at Pullman cars, not
at the railroads themselves, so that interstate commerce
(except for Pullman cars) would continue unabated.
Workers were instructed not to handle Pullman cars, but
otherwise to continue performing their duties.
One
morning in late June, Pullman cars from Michigan to
California were found resting on sidings; the workers had
cut them out of trains and left them behind.
President Cleveland immediately ordered the U. S.
Marshal at Chicago to place special deputies on all
interstate trains.
Also, the railroads' managers
attached U. S. mail cars to Pullman cars in the hope that

a

In a company town, all the property is owned by the
company, including public buildings like schools. Workers
rent their homes from the company; therefore, if the company
becomes dissatisfied with a worker, the worker can lose not
only one's job, but also one's abode.

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the mail would be stopped, and that would provide a basis
for federal action.
But the workers had no trouble
separating mail cars from Pullman cars. The managers'
next step was to refuse to run any trains that did not
meet their specifications, which, of course, included
Pullman cars.
It was the managers, therefore, who
stopped the trains. But it must be added that there was
a degree of violence in some railroad yards.
On June 30th, the Attorney General of the U.S.,
Richard
Olney,
demonstrated
his
impartiality
by
appointing Edwin Walker to assist the U.S. attorney in
Chicago.
Walker was general counsel for the Chicago,
Milwaukee, and St. Paul RR. and a legal advisor to the
General Managers' Association.
With Walker's help, the government attorneys drafted
an application for an injunction on July 1st and
presented it to the judges the following day. The judges
suggested some modifications, which the government
adopted, and the injunction was issued. It prohibited a
few named persons, "all persons combining and conspiring
with them, and all other persons whomsoever" from
interfering with or stopping the business of any of the
railroads and from interfering with or stopping any mail
trains or other trains, whether freight or passenger. As
if this language were not inclusive enough, the
injunction specifically restrained Debs and others from
sending any communications that would incite or encourage
or persuade any employees of the railroads to refuse to
perform their duties, in other words, to continue
striking. The injunction was personally served on Debs
and other union leaders and published in newspapers and
read aloud in railroad yards. Some historians claim that
most of the violence that occurred during the strike came
in response to the injunction.
Debs and his deputies did not comply with the
injunction, and they were arrested on July 7th. They
were held in contempt and sentenced to six months in
prison.
The major issue before the Supreme Court was
jurisdiction.
Jurisdiction refers to the power of a
court to hear and decide a case.
If a court lacks
jurisdiction of a case, but hears it nonetheless, the
court's order is void.

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iii

Courts are organs of government; therefore, their
existence and power must originate in the state or
federal
constitution.
In
some
instances,
the
constitution creates a court and establishes its
jurisdiction.
In other instances, the constitution
empowers the legislature to create courts and establish
their jurisdiction.
The Constitution of the United States creates only
one court, the Supreme Court. The Constitution gives the
Supreme Court jurisdiction over a small group of casesb
and empowers Congress to give it jurisdiction over other
cases. The Constitution also allows Congress to create
lower federal courts and define their jurisdiction. As
a result, the federal courts are considered to be courts
of limited jurisdiction; they may hear only those classes
of cases specifically named in the Constitution or in an
act of Congress.c
Debs argued in the Supreme Court that federal courts
did not have jurisdiction to enjoin the railroad strike.
Debs's argument was strong, for neither the Constitution
nor any act of Congress specifically gave federal courts
this sort of jurisdiction.

b

c

See Article III, Section 2.

In contrast, many state courts are courts of general
jurisdiction, which means they are empowered to all classes
of cases.

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In re. Debs

158 U.S. 564 (1895)
Petition for Writ of Habeas Corpus.d
{At the direction of the Attorney General, the U.S. Attorney in Illinois (the
petitioner) filed a petition in federal circuit court for an injunction against the
defendants, who were officers of the American Railway Union. The petition
contained the following allegations:
Twenty-two railroads pass through Chicago.e These railroads carry
passengers, freight, mail, and military troops and provisions in interstate
commerce. Sleeping cars are essential to the operation of interstate
railroads.
The union is on strike against the Pullman Car Company. The
defendants have conspired to boycott the Pullman Co.; they have asked
members of their union, as well as sympathetic members of other railway
unions, to refuse to work on trains that included Pullman cars, and this
request is being honored.
The defendants intend to take control of the railroad business and
to prevent the railroads from doing their usual business. Union members
have gathered in large numbers at railroad yards and, by threats and
violence, prevented the railroads from hiring workers who would handle
Pullman cars. Union members have also obstructed and wrecked trains by
locking switches, removing spikes and rails from the tracks, destroying
signals, and assaulting switchmen, and otherwise have deprived the railroad
companies of the control and management of their businesses.
As a result, supplies of coal, fuel, grain, fruits, vegetables, meat,
etc. have been interrupted, to the injury of dealers in these products and
consumers. Thus interstate trade in these commodities has been obstructed
and destroyed.
Defendants have threatened to continue to obstruct interstate
commerce and to paralyze the operations of every railway in the country.

d

{"Habeas corpus" means, literally, "you may have the body." A writ of habeas
corpus is an order from a court to (often) a jailer to bring a prisoner before the court for a
hearing on whether the prisoner should be freed. A petition for a writ of habeas corpus
is, in effect, a request that the court consider whether to release a prisoner. — ed.}
e

{Chicago was the principal railroad hub in the country. — ed.}

Labor and Employment Law

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v

The circuit court issued an injunction commanding the defendants "and all other
persons whomsoever" to desist and refrain from "interfering with, hindering,
obstructing, or stopping any of the business of any of the ... named railroads" or of
any other trains engaged in interstate commerce. The injunction was served on the
defendants, who disobeyed it and were held in contempt and sentenced to jail.}
MR. JUSTICE BREWER delivered the opinion of the Court.
{1} The case presented by the bill is this: The United States, finding that the
interstate transportation of persons and property, as well as the carriage of the mails,
is forcibly obstructed, and that a combination and conspiracy exists to subject the
control of such transportation to the will of the conspirators, applied to one of their
courts, sitting as a court of equity, for an injunction to restrain such obstruction and
prevent carrying into effect such conspiracy....
...
{2} Congress has exercised the power granted in respect to interstate
commerce in a variety of legislative acts. Passing by for the present all that
legislation in respect to commerce by water, and considering only that which bears
upon railroad interstate transportation (for this is the specific matter involved in this
case), these acts may be noticed: First, that of June 15, 1866, c. 124, 14 Stat. 66,
carried into the Revised Statutes as section 5258, which provides:
"Whereas the Constitution of the United States confers upon
Congress, in express terms, the power to regulate commerce among the
several States, to establish post roads, and to raise and support armies:
Therefore, Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That every railroad
company in the United States whose road is operated by steam, its
successors and assigns, be, and is hereby, authorized to carry upon and over
its road, boats, bridges, and ferries all passengers, troops, government
supplies, mails, freight, and property on their way from any
State to another State, and to receive compensation therefor, and to connect
with roads of other States so as to form continuous lines for the
transportation of the same to the place of destination."

{3} Second. That of March 3, 1873, c. 252, 17 Stat. 584, (Rev. Stat. §§ 4386
to 4389,) which regulates the transportation of live stock over interstate railroads.
Third. That of May 29, 1884, c. 60, § 6, 23 Stat. 31, 32, prohibiting interstate
transportation by railroads of live stock affected with any contagious or infectious
disease. Fourth. That of February 4, 1887, c. 104, 24 Stat. 379, with its amendments
of March 2, 1889, c. 382, 25 Stat. 855, and February 10, 1891, c. 128, 26 Stat. 743,
known as the "interstate commerce act," by which a commission was created with

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large powers of regulation and control of interstate commerce by railroads, and the
sixteenth section of which act gives to the courts of the United States power to
enforce the orders of the commission. Fifth. That of October 1, 1888, c. 1063, 25
Stat. 501, providing for arbitration between railroad interstate companies and their
employes; and, sixth, the act of March 2, 1893, c. 196, 27 stat. 531, requiring the use
of automatic couplers on interstate trains, and empowering the Interstate Commerce
Commission to enforce its provisions.
{4} Under the power vested in Congress to establish post offices and post
roads, Congress has, by a mass of legislation, established the great post office system
of the country, with all its detail of organization, its machinery for the transaction of
business, defining what shall be carried and what not, and the prices of carriage, and
also prescribing penalties for all offences against it.
{5} Obviously these powers given to the national government over interstate
commerce and in respect to the transportation of the mails were not dormant and
unused. Congress had taken hold of these two matters, and by various and specific
acts had assumed and exercised the powers given to it, and was in the full discharge
of its duty to regulate interstate commerce and carry the mails. The validity of such
exercise and the exclusiveness of its control had been again and again presented to
this court for consideration. It is curious to note the fact that in a large proportion of
the cases in respect to interstate commerce brought to this court the question
presented was of the validity of state legislation in its bearings upon interstate
commerce, and the uniform course of decision has been to declare that it is not within
the competency of a State to legislate in such a manner as to obstruct interstate
commerce. If a State with its recognized powers of sovereignty is impotent to
obstruct interstate commerce, can it be that any mere voluntary association of
individuals within the limits of that State has a power which the State itself does not
possess?
{6} As, under the Constitution, power over interstate commerce and the
transportation of the mails is vested in the national government, and Congress by
virtue of such grant has assumed actual and direct control, it follows that the national
government may prevent any unlawful and forcible interference therewith. But how
shall this be accomplished? Doubtless, it is within the competency of Congress to
prescribe by legislation that any interference with these matters shall be offences
against the United States, and prosecuted and punished by indictment in the proper
courts. But is that the only remedy? Have the vast interests of the nation in interstate
commerce, and in the transportation of the mails, no other protection than lies in the
possible punishment of those who interfere with it? To ask the question is to answer
it. By article 3, section 2, clause 3, of the Federal Constitution it is provided: "The
trial of all crimes except in cases of impeachment shall be by jury; and such trial shall

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vii

be held in the State where the said crime shall have been committed." If all the
inhabitants of a State, or even a great body of them, should combine to obstruct
interstate commerce or the transportation of the mails, prosecutions for such offences
had in such a community would be doomed in advance to failure. And if the certainty
of such failure was known, and the national government had no other way to enforce
the freedom of interstate commerce and the transportation of the mails than by
prosecution and punishment for interference therewith, the whole interests of the
nation in these respects would be at the absolute mercy of a portion of the inhabitants
of that single State.
{7} But there is no such impotency in the national government. The entire
strength of the nation may be used to enforce in any part of the land the full and free
exercise of all national powers and the security of all rights entrusted by the
Constitution to its care. The strong arm of the national government may be put forth
to brush away all obstructions to the freedom of interstate commerce or the
transportation of the mails. If the emergency arises, the army of the Nation, and all
its militia, are at the service of the Nation to compel obedience to its laws.
{8} But passing to the second question, is there no other alternative than the
use of force on the part of the executive authorities whenever obstructions arise to the
freedom of interstate commerce or the transportation of the mails? Is the army the
only instrument by which rights of the public can be enforced and the peace of the
nation preserved? Grant that any public nuisance may be forcibly abated either at the
instance of the authorities, or by any individual suffering private damage therefrom,
the existence of this right of forcible abatement is not inconsistent with nor does it
destroy the right of appeal in an orderly way to the courts for a judicial determination,
and an exercise of their powers by writ of injunction and otherwise to accomplish the
same result....
{9} So, in the case before us, the right to use force does not exclude the right
of appeal to the courts for a judicial determination and for the exercise of all their
powers of prevention. Indeed, it is more to the praise than to the blame of the
government, that, instead of determining for itself questions of right and wrong on the
part of these petitioners and their associates and enforcing that determination by the
club of the policeman and the bayonet of the soldier, it submitted all those questions
to the peaceful determination of judicial tribunals, and invoked their consideration
and judgment as to the measure of its rights and powers and the correlative
obligations of those against whom it made complaint. And it is equally to the credit
of the latter that the judgment of those tribunals was by the great body of them
respected, and the troubles which threatened so much disaster terminated.
...

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{10} We do not care to place our decision upon this ground alone. Every
government, entrusted, by the very terms of its being, with powers and duties to be
exercised and discharged for the general welfare, has a right to apply to its own courts
for any proper assistance in the exercise of the one and the discharge of the other....
The obligation which it is under to promote the interest of all, and to prevent the
wrongdoing of one resulting in injury to the general welfare, is often of itself
sufficient to give it a standing in court....
...
{11} The national government, given by the Constitution power to regulate
interstate commerce, has by express statute assumed jurisdiction over such commerce
when carried upon railroads. It is charged, therefore, with the duty of keeping those
highways of interstate commerce free from obstruction, for it has always been
recognized as one of the powers and duties of a government to remove obstructions
from the highways under its control.
...
{12} A most earnest and eloquent appeal was made to us in eulogy of the
heroic spirit of those who threw up their employment, and gave up their means of
earning a livelihood, not in defence of their own rights, but in sympathy for and to
assist others whom they believed to be wronged. We yield to none in our admiration
of any act of heroism or self-sacrifice, but we may be permitted to add that it is a
lesson which cannot be learned too soon or too thoroughly that under this government
of and by the people the means of redress of all wrongs are through the courts and at
the ballot-box, and that no wrong, real or fancied, carries with it legal warrant to
invite as a means of redress the cooperation of a mob, with its accompanying acts of
violence.
....
{Because the injunction had been properly issued and the defendants had
violated it, the petition for habeas corpus was denied.}

Labor and Employment Law

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ix

In re. Debs
COMMENTS

Few decisions of the Supreme Court have been
attacked so vigorously and effectively as Debs has been.
Politicians in both parties excoriated it. It expanded
the power of the executive and judicial branches of
government.
The president could obtain injunctions
against any behavior that the courts believed to threaten
the general welfare; of course, there is no limit to the
concept of the "general welfare."
Congress, which is
supposed to make our laws, became an unnecessary
appendage. As a conservative leader of the bar stated,
"If the course there followed can be supported, the
principles of equity jurisprudence have received an
important extension which may render 'government by
injunction' more than a mere epithet."f Although this
statement may overstate the courts' assumption of power,
it is certainly true that the Debs case brought a great
deal of union activity under the jurisdiction of the
federal courts; and, as we have previously suggested,
employers loved being in federal court.
The disagreement between the Court that decided Debs
and the critics of that decision may be conceived in
terms of levels of abstraction. The Court argued that
its jurisdiction could be inferred from federal
responsibility for interstate commerce. This argument
operated at a high level of generality. The significant
fact would be that the Constitution created a federal
interest in a field.
Critics of Debs believed that
issues of jurisdiction should be resolved at a lower
level of generality.
They wanted to recognize two
additional facts as significant: whether a statute
pertained to the parties' behavior, and whether that or
another statute conferred jurisdiction on the federal
courts to hear cases concerning that behavior.
Over the
prevailed.

years,

the

view

of

the

critics

has

QUESTIONS FOR REFLECTION
1. The Court compared the powers of a state to the
powers of a voluntary association. "{C}an it be that any
f

Frankfurter and Greene, The Labor Injunction, p. 88.

Labor and Employment Law

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In re. Debs

mere voluntary association of individuals within the
limits of that state has a power which the state itself
does not possess?" (¶ 5) Is this a convincing argument?
2. The Court said the government deserved praise for
having asked for an injunction from a court of law rather
than sending in troops.
Does this praise justify the
court's injunction?
3. Reread the first four sentences of ¶ 6. Do they
implicitly concede the defendants' strongest argument?

Labor and Employment Law

187

Government by Injunction (continued)
ORGANIZING AS INDUCEMENT TO BREACH OF CONTRACT
Introduction
The Constitution, as interpreted in Adair v. U.S.
and Coppage v. Kansas, and the jurisdiction of federal
courts, as interpreted in In re. Debs, greatly expanded
the power of the federal courts over labor relations.
This power was frequently exercised via injunctions
issued in law suits brought by employers against unions
based on the claim of inducement to breach of contract.
Accordingly, let us examine this claim and see how it was
applied to labor relations.
If A and B have a contract, and C tries to induce A
not to perform, the courts will often issue an injunction
restraining C from interfering with B's reasonable
expectations.a

Inducement to Breach of Contract

a

The origin of this doctrine is rooted in the notion that an
employer has a legal interest in the service of one's workers.
Roman law allowed the head of a household to recover damages
for injury to a member of the household, including workers.
The Statute of Laborers of 1351 made it a crime for a servant
to leave one's master prematurely and for an employer to hire
a servant who was pledged to another employer. Curiously, the
law never recognized a legal interest in a worker in one's
job.

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Hitchman Coal v. Mitchell

Inducement to Breach of Contract:
Between Businesses

The doctrine appeared in its modern form when an
opera singer (A) agreed to perform at a certain theater
(B) on a certain date.
Then, a rival impresario (C)
persuaded her to perform for him on the same date. The
court issued an injunction against the rival impresario,
forbidding him from interfering with the contract between
the theater owner and the singer. The court also issued
an injunction against the singer, restraining her from
performing at any other theater on that date.
Inducement to breach of contract became an
important weapon for employers to use against unions.

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Hitchman Coal v. Mitchell

iii

Inducement to Breach of Contract:
Strike Prevents Delivery

Suppose Firm A agreed to sell goods to Firm B and
deliver them on a certain date, but timely delivery
became problematic because Firm A's union (C) went on
strike.
Firm B could sue the union, claiming it was
interfering with a contract for the delivery of goods,
and get an injunction against the strike.

Labor and Employment Law

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190

Hitchman Coal v. Mitchell

Inducement to Breach of Contract:
Contract for a Term

Similarly, if a union (C) were trying to organize a
firm (A), an employee (B) who had an employment contract
for a definite term might sue the union (with a little
help from the employer, of course) because, if the
organizing campaign succeeded, the union would require
the employer to hire only union members, and this
requirement would force the employer to fire the employee
before one's term expired.

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Inducement to Breach of Contract:
Company Unions

Another way that employers (A) used the law to
battle unions was to create company unions (B), which the
employers dominated. When an independent union (C) tried
to organize the workers, the company union and the
employer applied for, and received, an injunction
restraining the independent union from interfering with
the contract between the employer and the company union.

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Inducement to Breach of Contract:
Yellow Dog Contracts

Perhaps the most common instance involved yellow dog
contracts.
Workers (A) signed a contract with their
employers (B) not to join unions. If a union (C) tried
to organize the shop, the employer would seek an
injunction to protect one's contractual expectation that
one's workers would not become union members.
The
injunction would be granted, and the organizing campaign
would be crushed.
An evenhanded approach would have allowed unions to
obtain similar injunctions, but the courts were not
usually willing to allow tit for tat.
When a union
sought to enjoin an employer's lockout, the court denied
relief, saying, "The interference of a court of equity in
labor disputes directed against either employer or
laborer should be exercised sparingly and with caution."
(It is only fair to add, however, that this was a New
York decision, and New York allowed a wider scope of
union activity than most other states.)

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Inducement to Breach of Contract:
By Unions Against Employers

Seeing how employers used yellow dog contracts,
unions (B) tried to apply sauce to the gander by
requiring that their members (A) sign agreements in which
they promised never to work for an employer who required
a yellow dog contract. When a member who had signed such
an agreement applied for a job with an employer (C) who
required a yellow dog contract, the union sued the
employer, seeking an injunction to restrain the employer
from inducing the member to breach one's agreement with
the union. But the court denied relief.

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In Hitchman Coal v. Mitchell, the Mine Workers
sought to unionize the coal mines in the panhandle of
West Virginia. The union's principal motivation was to
protect
mines
that
were
already
organized
from
competition from low-wage non-union mines. One non-union
mine operator had signed union contracts in the past and
had endured significant labor unrest. Thereafter this
operator refused to sign with the union and, further,
secured yellow dog contracts from its miners. When the
Mine Workers undertook to organize the employees of this
operator, the union's organizer did his best to avoid the
yellow dog contracts. He did not enroll any workers into
the union; rather, he told them they were joining a
secret order and asked them to promise only to join the
union in the future. Upon learning of the organizing,
the operator secured an injunction against the union.
The trial court ruled that the union was a common law
conspiracy in restraint of trade, that the union was also
a conspiracy against the rights of non-union workers in
West Virginia,b and that the union sought to induce the
miners to breach their employment contracts with the
operator.
The trial court issued an injunction
restraining the Mine Workers from organizing in the
entire State of West Virginia. The injunction forbade
the union even from talking to workers.
The Supreme
Court affirmed this injunction, adding that the union was
trying to enroll a sufficient number of workers that the
employer, out of fear that the workers would strike,
would sign a contract with the union.

b

These two parts of the holding, that the union was an
illegal conspiracy and that the union interfered with the
rights of non-union workers, are reminiscent of the
Philadelphia Cordwainers case and Vegelahn v. Guntner.

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Hitchman Coal & Coke Company v. Mitchell
245 U.S. 229 (1917)
Mr. Justice PITNEY delivered the opinion of the Court.
{The plaintiff operated a coal mine in the Panhandle District of West Virginia.
The defendants were officers of the United Mine Workers of America. The mine was
non-union until 1903. In that year, the union threatened to strike another mine owned
by the plaintiff unless the Hitchman mine were unionized. The plaintiff recognized
the union, whereupon a dispute arose over compensation; the ensuing strike lasted six
weeks. A two-week strike occurred during the following year. In 1906 a
disagreement between the union and an association of operators with which the
plaintiff was not affiliated led to yet another strike. Each strike subjected the plaintiff
to heavy losses.
{During the 1906 strike, a group of employees approached the plaintiff,
seeking to abandon the strike. The plaintiff allowed them to return to work on
condition that they resign from the union. Thereafter, the plaintiff required each
employee to agree to a "yellow dog contract" in which the employee promised that,
as long as he worked for the company, he would stay out of the union. Arguing that
the union's organizing campaign interfered with these contracts, the plaintiff obtained
an injunction from a district court, forbidding the union to attempt to organize mine
workers anywhere in the state. The Court of Appeals lifted the injunction.}
...
{1} In fact, all coal mines in the Panhandle and elsewhere in West Virginia,
except in a small district known as the Kanawha field, were run "non-union," while
the entire industry in Ohio, Indiana, and Illinois was operated on the "closed-shop"
basis, so that no man could hold a job about the mines unless he was a member of the
United Mine Workers of America. Pennsylvania occupied a middle ground, only a
part of it being under the jurisdiction of the Union. Other States need not be
particularly mentioned.
{2} The unorganized condition of the mines in the Panhandle and some other
districts was recognized as a serious interference with the purposes of the Union in
the Central Competitive Field, particularly as it tended to keep the cost of production
low, and, through competition with coal produced in the organized field, rendered it
more difficult for the operators there to maintain prices high enough to induce them
to grant certain concessions demanded by the Union. This was the subject of earnest
and protracted discussion in the annual international convention of the U.M.W.A.
held at Indianapolis, Indiana, in the month of January, 1907....

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...

{3} The discussion continued during three days, and at the end of it the report
of a committee which expressed disagreement with Vice President Lewis' opposition
to sectional settlements and recommended "a continuation in the future of the same
wise, conservative business-like policies" that had been pursued by President
Mitchell, was adopted by a viva voce vote.
{4} The plain effect of this action was to approve a policy which, as applied
to the {case at bar}, meant that in order to relieve the union miners of Ohio, Indiana,
and Illinois from the competition of the cheaper product of the non-union mines of
West Virginia, the West Virginia mines should be "organized" by means of strikes
local to West Virginia, the strike benefits to be paid by assessments upon the union
miners in the other States mentioned, while they remained at work.
...
{5} The evidence renders it clear that Hughes was sent into the Panhandle to
organize all the mines there, in accordance with the resolution of the sub-district
convention.... The only defendant who testified upon the subject declared that
Hughes was employed by District No. 6 as an organizer, but denied that he had power
or authority to shut down the Hitchman mine.
{6} He arrived at that mine some time in September, 1907, and remained
there or in that vicinity until the latter part of October, conducting a campaign of
organization at the Hitchman and at the neighboring Glendale and Richland mines.
{7} The evidence shows that he had distinct and timely notice that
membership in the Union was inconsistent with the terms of employment at all three
mines, and a violation of the express provisions of the agreement at the Hitchman and
Glendale.
...
{The plaintiff sought an injunction, which the district court granted. The
defendants were restrained from persuading the plaintiff’s employees to join the
union without the plaintiff’s consent.}
{8} The District Court based its decision upon two grounds: (1) That the
organization known as the United Mine Workers of America, and its branches, as
conducted and managed at the time of the suit and for many years before, was a
common-law conspiracy in unreasonable restraint of trade, and also and especially a

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conspiracy against the rights of non-union miners in West Virginia; and (2) That the
defendants, in an effort to compel the plaintiff to enter into contractual relations with
the Union relating to the employment of labor and the production of coal, although
having knowledge of express contracts existing between plaintiff and its employees
which excluded relations with the Union, endeavored by unlawful means to procure
a breach of these contracts by the employees.
...
{The court of appeals reversed the district court, holding that the union was
a legal organization and was free to attempt peaceably to induce the plaintiff’s
employees to join the union.}
{9} In short, at the time the bill was filed, defendants, although having full
notice of the terms of employment existing between plaintiff and its miners, were
engaged in an earnest effort to subvert those relations without plaintiff's consent, and
to alienate a sufficient number of the men to shut down the mine, to the end that the
fear of losses through stoppage of operations might coerce plaintiff into "recognizing
the union" at the cost of its own independence. The methods resorted to by their
"organizer" were such as have been described. The legal consequences remain for
discussion.
...
{10} What are the legal consequences of the facts that have been detailed?
{11} That the plaintiff was acting within its lawful rights in employing its
men only upon terms of continuing nonmembership in the United Mine Workers of
America is not open to question. Plaintiff's repeated costly experiences of strikes and
other interferences while attempting to "run union" were a sufficient explanation of
its resolve to run "non-union," if any were needed. But neither explanation nor
justification is needed. Whatever may be the advantages of "collective bargaining,"
it is not bargaining at all, in any just sense, unless it is voluntary on both sides. The
same liberty which enables men to form unions, and through the union to enter into
agreements with employers willing to agree, entitles other men to remain independent
of the union and other employers to agree with them to employ no man who owes any
allegiance or obligation to the union. In the latter case, as in the former, the parties
are entitled to be protected by the law in the enjoyment of the benefits of any lawful
agreement they may make. This court repeatedly had held that the employer is as free
to make non-membership in a union a condition of employment, as the working man
is free to join the union, and that this is a part of the constitutional rights of personal
liberty and private property, not to be taken away even by legislation, unless through

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some proper exercise of the paramount police power. Adair v. United States, 208
U.S. 161, 174; Coppage v. Kansas, 236 U.S. 1, 14. In the present case, needless to
say, there is no act of legislation to which defendants may resort for justification.
{12} Plaintiff, having in the exercise of its undoubted rights established a
working agreement between it and its employees, with the free assent of the latter, is
entitled to be protected in the enjoyment of the resulting status, as in any other legal
right. That the employment was "at will," and terminable by either party at any time,
is of no consequence. In Truax v. Raich, 239 U.S. 33, 38 this court ruled upon the
precise question as follows: "It is said that the [complaint] does not show an
employment for a term, and that under an employment at will the complainant could
be discharged at any time for any reason or for no reason, the motive of the employer
being immaterial. The conclusion, however, that is sought to be drawn, is too broad.
The fact that the employment is at the will of the parties, respectively, does not make
it one at the will of others. The employee has manifest interest in the freedom of the
employer to exercise his judgment without illegal interference or compulsion, and ...
the unjustified interference of third persons is actionable although the employment
is at will."
{13} In short, plaintiff was and is entitled to the good will of its employees,
precisely as a merchant is entitled to the good will of his customers although they are
under no obligation to continue to deal with him. The value of the relation lies in the
reasonable probability that by properly treating its employees, and paying them fair
wages, and avoiding reasonable grounds of complaint, it will be able to retain them
in its employ, and to fill vacancies occurring from time to time by the employment
of other men on the same terms. The pecuniary value of such reasonable probabilities
is incalculably great, and is recognized by the law in a variety of relations.
{14} The right of action for persuading an employee to leave his employer is
universally recognized — nowhere more clearly than in West Virginia — and it rests
upon fundamental principles of general application, not upon the English statute of
laborers.
{15} We turn to matters set up by way of justification or excuse for
defendants' interference with the situation existing at plaintiff's mine.
{16} The case involves no question of the rights of employees. Defendants
have no agency for plaintiff's employees, nor do they assert any disagreement or
grievance in their behalf. In fact, there is none; but, if there were, defendants could
not, without agency, set up any rights that employees might have. The right of the
latter to strike would not give to defendants the right to instigate a strike. The
difference is fundamental.

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{17} It is suggested as a ground of criticism that plaintiff endeavored to secure
a closed non-union mine through individual agreements with its employees, as if this
furnished some sort of excuse for the employment of coercive measures to secure a
closed union shop through a collective agreement with the Union. It is a sufficient
answer, in law, to repeat that plaintiff had a legal and constitutional right to exclude
union men from its employ. But it may be worth while to say, in addition: first, that
there was no middle ground open to plaintiff; no option to have an "open shop"
employing union men and non-union men indifferently; it was the Union that insisted
upon closed-shop agreements, requiring even carpenters employed about a mine to
be members of the Union, and making the employment of any non-union man a
ground for a strike; and secondly, plaintiff was in the reasonable exercise of its rights
in excluding all union men from its employ, having learned, from a previous
experience, that unless this were done union organizers might gain access to its mine
in the guise of laborers.
{18} Defendants set up, by way of justification or excuse, the right of
workingmen to form unions, and to enlarge their membership by inviting other
workingmen to join. The right is freely conceded, provided the objects of the union
be proper and legitimate, which we assume to be true, in a general sense, with respect
to the Union here in question. The cardinal error of defendants' position lies in the
assumption that the right is so absolute that it may be exercised under any
circumstances and without any qualification; whereas in truth, like other rights that
exist in civilized society, it must always be exercised with reasonable regard for the
conflicting rights of others....
{19} Now, assuming defendants were exercising, through Hughes, the right
to invite men to join their Union, still they had plain notice that plaintiff's mine was
run "non-union," that none of the men had a right to remain at work there after joining
the Union, and that the observance of this agreement was of great importance and
value both to plaintiff and to its men who had voluntarily made the agreement and
desired to continue working under it. Yet defendants, far from exercising any care
to refrain from unnecessarily injuring plaintiff, deliberately and advisedly selected
that method of enlarging their membership which would inflict the greatest injury
upon plaintiff and its loyal employees. Every Hitchman miner who joined Hughes'
"secret order" and permitted his name to be entered upon Hughes' list was guilty of
a breach of his contract of employment and acted a lie whenever thereafter he entered
plaintiff's mine to work. Hughes not only connived at this, but must be deemed to
have caused and procured it, for it was the main feature of defendants' plan, the sine
qua non of their programme. Evidently it was deemed to be necessary, in order to
"organize the Panhandle by a strike movement," that at the Hitchman, for example,
man after man should be persuaded to join the Union, and having done so to remain
at work, keeping the employer in ignorance of their number and identity, until so

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many had joined that by stopping work in a body they could coerce the employer and
the remaining miners to "organize the mine," that is, to make an agreement that none
but members of the Union should be employed, that terms of employment should be
determined by negotiation not with the employees but with union officers — perhaps
residents of other States and employees of competing mines — and that all questions
in controversy between the mine operator and the miners should likewise be settled
with outsiders.
{20} True, it is suggested that under the existing contract an employee was
not called upon to leave plaintiff's employ until he actually joined the Union, and that
the evidence shows only an attempt by Hughes to induce the men to agree to join, but
no attempt to induce them to violate their contract by failing to withdraw from
plaintiff's employment after actually joining. But in a court of equity, which looks to
the substance and essence of things and disregards matters of form and technical
nicety, it is sufficient to say that to induce men to agree to join is but a mode of
inducing them to join, and that when defendants "had sixty men who had signed up
or agreed to join the organization at Hitchman," and were "going to shut the mine
down as soon as they got a few more men," the sixty were for practical purposes, and
therefore in the sight of equity, already members of the Union, and it needed no
formal ritual or taking of an oath to constitute them such; their uniting with the Union
in the plan to subvert the system of employment at the Hitchman mine, to which they
had voluntarily agreed and upon which their employer and their fellow employees
were relying, was sufficient.
...
{21} In any aspect of the matter, it cannot be said that defendants were
pursuing their object by lawful means. The question of their intentions -- of their
bona fide -- cannot be ignored. It enters into the question of malice. As Bowen, L.J.,
justly said, in the Mogul Steamship Case, 23 Q. B. Div. 613,
"Intentionally to do that which is calculated in the ordinary course
of events to damage, and which does, in fact, damage another in that other
person's property or trade, is actionable if done without just cause or
excuse."

And the intentional infliction of such damage upon another, without justification or
excuse, is malicious in law....
{22} Another fundamental error in defendants' position consists in the
assumption that all measures that may be resorted to are lawful if they are "peaceable"
— that is, if they stop short of physical violence, or coercion through fear of it. In our
opinion, any violation of plaintiff's legal rights contrived by defendants for the

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purpose of inflicting damage, or having that as its necessary effect, is as plainly
inhibited by the law as if it involved a breach of the peace. A combination to procure
concerted breaches of contract by plaintiff's employees constitutes such a violation.
...
{23} It was one thing for plaintiff to find, from time to time, comparatively
small numbers of men to take vacant places in a going mine, another and a much
more difficult thing to find a complete gang of new men to start up a mine shut down
by a strike, when there might be a reasonable apprehension of violence at the hands
of the strikers and their sympathizers. The disordered condition of a mining town in
time of strike is matter of common knowledge. It was this kind of intimidation, as
well as that resulting from the large organized membership of the Union, that
defendants sought to exert upon plaintiff, and it renders pertinent what was said by
this court in the Gompers case (221 U.S. 418, 439), immediately following the
recognition of the right to form labor unions:
"But the very fact that it is lawful to form these bodies, with
multitudes of members, means that they have thereby acquired a vast power,
in the presence of which the individual may be helpless. This power, when
unlawfully used against one, cannot be met, except by his purchasing peace
at the cost of submitting to terms which involve the sacrifice of rights
protected by the Constitution; or by standing on such rights and appealing
to the preventive powers of a court of equity. When such appeal is made it
is the duty of government to protect the one against the many as well as the
many against the one."

{24} Defendants' acts cannot be justified by any analogy to competition in
trade. They are not competitors of plaintiff; and if they were, their conduct exceeds
the bounds of fair trade. Certainly, if a competing trader should endeavor to draw
custom from his rival, not by offering better or cheaper goods, employing more
competent salesmen, or displaying more attractive advertisements, but by persuading
the rival's clerks to desert him under circumstances rendering it difficult or
embarrassing for him to fill their places, any court of equity would grant an injunction
to restrain this as unfair competition.
{25} Upon all the facts, we are constrained to hold that the purpose
entertained by defendants to bring about a strike at plaintiff's mine in order to compel
plaintiff, through fear of financial loss, to consent to the unionization of the mine as
the lesser evil, was an unlawful purpose, and that the methods resorted to by Hughes
— the inducing of employees to unite with the Union in an effort to subvert the
system of employment at the mine by concerted breaches of the contracts of
employment known to be in force there, not to mention misrepresentation, deceptive

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statements, and threats of pecuniary loss communicated by Hughes to the men —
were unlawful and malicious methods, and not to be justified as a fair exercise of the
right to increase the membership of the Union.
...
{The judgment of the Court of Appeals was reversed and the injunction, with
modifications, was reinstated.}
Mr. Justice BRANDEIS, dissenting.
...
{26} The United Mine Workers of America does not appear to differ
essentially in character and purpose from other international unions which, like it, are
affiliated with the American Federation of Labor. Its membership is said to be larger
than that of any other; and it may be more powerful. But the common law does not
limit the size of unions or the degree to which individual workmen may by union
increase their bargaining power. As stated in Gompers v. Bucks Stove & Range Co.,
221 U.S. 418, 439:
"The law, therefore, recognizes the right of workingmen to unite and to
invite others to join their ranks, thereby making available the strength,
influence and power that come from such association."

We do not find either in the decisions or the statutes of West Virginia anything
inconsistent with the law as declared by this court. The union is not an unlawful
organization, and is not in itself an unlawful conspiracy. We have no occasion to
consider the legality of the specific provisions contained in its constitution or by-laws.
...
{27} Third: The alleged conspiracy against the West Virginia mines.
{28} It was doubtless the desire of the United Mine Workers to unionize
every mine on the American continent and especially those in West Virginia which
compete directly with the mines of Western Pennsylvania, Ohio, Indiana, and other
States already unionized. That desire and the purpose to effect it were not unlawful.
They were part of a reasonable effort to improve the condition of workingmen
engaged in the industry by strengthening their bargaining power through unions; and
extending the field of union power. No conspiracy to shut down or otherwise injure
West Virginia was proved, nor was there any averment in the bill of such conspiracy,

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or any issue otherwise raised by the pleadings which justified the consideration of that
question by the District Court.
{29} Fourth: "Unionizing plaintiff's mine without plaintiff's consent."
{30} The fundamental prohibition of the injunction is against acts done "for
the purpose of unionizing plaintiff's mine without plaintiff's consent." Unionizing a
shop does not mean inducing the employees to become members of the union.d It

d

A witness for the defendants testified as follows:
"There is a difference between unionizing a mine and unionizing the employees in
a mine; unionizing the employees is having the men join the organization;
unionizing a mine is creating joint relations between the employers and employees;
a mine cannot be unionized unless the employer enters into contractual relations
with the union; it is not the policy or purpose of the United Mine Workers as an
organization to coerce a man into doing a thing against his will; this distinction
between unionizing a mine and unionizing the employees of a mine has existed since
the organization came about, and this method of unionizing a mine existed in 1906
and 1907."

A witness for the plaintiff testified that
"the term 'union,' when applied to mining, means the United Mine Workers, and a
union mine is a mine that is under their jurisdiction and so recognized...." The
contrary is "non-union or open shop."

And further,
"The men might be unionized at a mine and the mine owners not recognize the
union. That would in effect be an open shop. When I said 'unionize the employees'
I meant practically all of the employees; but a union mine, as I understand it, is one
wherein the closed shop is practically enforced."

In such case, the witness explained, the operator would be practically in contract relation
with the organization.
It was also testified:
"The difference between organizing the men at the mine and organizing the mine is
that when the miners are organized the work of organizing the mine is only just
started. They next proceed to meet with the operator who owns the mine, or
operates it, for the purpose of making contracts or agreements. Under the
constitution and methods of the United Mine Workers a mine cannot be organized
without the consent of the owner, and it is not the object or purpose of the United
Mine Workers to do so, and never has been; it has never been attempted as far as

(continued...)

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means inducing the employer to enter into a collective agreement with the union
governing the relations of the employer to the employees. Unionizing implies,
therefore, at least formal consent of the employer. Both plaintiff and defendants
insisted upon exercising the right to secure contracts for a closed shop. The plaintiff
sought to secure the closed non-union shop through individual agreements with
employees. The defendants sought to secure the closed union shop through a
collective agreement with the union. Since collective bargaining is legal, the fact that
the workingmen's agreement is made not by individuals directly with the employer,
but by the employees with the union and by it, on their behalf, with the employer, is
of no significance in this connection. The end being lawful, defendant's efforts to
unionize the mine can be illegal, only if the methods or means pursued were
unlawful; unless indeed there is some special significance in the expression
"unionizing without plaintiff's consent."
{31} It is urged that a union agreement curtails the liberty of the operator.
Every agreement curtails the liberty of those who enter into it. The test of legality is
not whether an agreement curtails liberty, but whether the parties have agreed upon
some thing which the law prohibits or declares otherwise to be inconsistent with the
public welfare. The operator by the union agreement binds himself: (1) to employ
only members of the union; (2) to negotiate with union officers instead of with
employees individually the scale of wages and the hours of work; (3) to treat with the
duly constituted representatives of the union to settle disputes concerning the
discharge of men and other controversies arising out of the employment. These are
the chief features of a "unionizing" by which the employer's liberty is curtailed. Each
of them is legal. To obtain any of them or all of them, men may lawfully strive and
even strike. And, if the union may legally strike to obtain each of the things for
which the agreement provides, why may it not strike or use equivalent economic
pressure to secure an agreement to provide them?
{32} It is also urged that defendants are seeking to "coerce" plaintiff to
"unionize" its mine. But coercion, in a legal sense, is not exerted when a union
merely endeavors to induce employees to join a union with the intention thereafter to
order a strike unless the employer consents to unionize his shop. Such pressure is not
coercion in a legal sense. The employer is free either to accept the agreement or the
disadvantage. Indeed, the plaintiff's whole case is rested upon agreements secured
under similar pressure of economic necessity or disadvantage. If it is coercion to

(...continued)

witness knows. After a mine has been organized, the agreement between the
employer and the organization is paramount. The constitution of the organization
has nothing to do with the workings afterwards; that agreement does not take away
from the operator the control of his men."

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threaten to strike unless plaintiff consents to a closed union shop, it is coercion also
to threaten not to give one employment unless the applicant will consent to a closed
non-union shop. The employer may sign the union agreement for fear that labor may
not be otherwise obtainable; the workman may sign the individual agreement for fear
that employment may not be otherwise obtainable. But such fear does not imply
coercion in a legal sense.
{33} In other words an employer, in order to effectuate the closing of his shop
to union labor, may exact an agreement to that effect from his employees. The
agreement itself being a lawful one, the employer may withhold from the men an
economic need — employment — until they assent to make it. Likewise an agreement
closing a shop to non-union labor being lawful, the union may withhold from an
employer an economic need — labor — until he assents to make it. In a legal sense
an agreement entered into, under such circumstances, is voluntarily entered into; and
as the agreement is in itself legal, no reason appears why the general rule that a legal
end may be pursued by legal means should not be applied. Or, putting it in other
words, there is nothing in the character of the agreement which should make unlawful
means used to attain it, which in other connections are recognized as lawful.
{34} Fifth: There was no attempt to induce employees to violate their
contracts.
{35} The contract created an employment at will; and the employee was free
to leave at any time. The contract did not bind the employee not to join the union;
and he was free to join it at any time. The contract merely bound him to withdraw
from plaintiff's employ, if he joined the union. There is evidence of an attempt to
induce plaintiff's employees to agree to join the union; but none whatever of any
attempt to induce them to violate their contract. Until an employee actually joined
the union he was not, under the contract, called upon to leave plaintiff's employ.
There consequently would be no breach of contract until the employee both joined the
union and failed to withdraw from plaintiff's employ. There was no evidence that any
employee was persuaded to do that or that such a course was contemplated. What
perhaps was intended was to secure agreements or assurances from individual
employees that they would join the union when a large number of them should have
consented to do so; with the purpose, when such time arrived, to have them join the
union together and strike -- unless plaintiff consented to unionize the mine. Such a
course would have been clearly permissible under the contract.
{36} Sixth: Merely persuading employees to leave plaintiff's employ or others
not to enter it was not unlawful.

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{37} To induce third persons to leave an employment is actionable if done
maliciously and without justifiable cause although such persons are free to leave at
their own will. It is equally actionable so to induce others not to enter the service.
The individual contracts of plaintiff with its employees added nothing to its right in
this connection, since the employment was terminable at will.
{38} As persuasion, considered merely as a means, is clearly legal, defendants
were within their rights if, and only if, their interference with the relation of plaintiff
to its employees was for justifiable cause. The purpose of interfering was confessedly
in order to strengthen the union, in the belief that thereby the condition of workmen
engaged in mining would be improved; the bargaining power of the individual
workingman was to be strengthened by collective bargaining; and collective
bargaining was to be ensured by obtaining the union agreement. It should not, at this
day, be doubted that to induce workingmen to leave or not to enter an employment
in order to advance such a purpose is justifiable when the workmen are not bound by
contract to remain in such employment.
{39} Seventh: There was no "threat, violence or intimidation."
{40} The decree enjoined "threats, violence or intimidation." Such action
would, of course, be unlawful though employed in a justifiable cause. But there is no
evidence that any of the defendants have resorted to such means. The propaganda
among plaintiff's employees was conducted almost entirely by one man, the defendant
Hughes, a District No. 6 organizer. His actions were orderly and peaceable,
consisting of informal talks with the men, and a few quietly conducted public
meetings, in which he argued the benefits of organization and pointed out to the men
that, although the company was then paying them according to the union scale, there
would be nothing to prevent a later reduction of wages unless the men united. He
also urged upon the men that if they lost their present jobs, membership in the union
was requisite to obtaining employment in the union mines of the neighboring States...

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.
{41} When this suit was filed no right of the plaintiff had been infringed and
there was no reasonable ground to believe that any of its rights would be interfered
with; and, in my opinion, the Circuit Court of Appeals properly reversed the decree
of the District Court, and directed that the bill be dismissed.
Mr. Justice HOLMES and Mr. Justice CLARKE concur in this dissent.

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Hitchman Coal v. Mitchell
COMMENTS
INJUNCTIONS AND EMPLOYMENT AT WILL

Several
aspects
of
the
Hitchman
case
are
interesting. One is that an injunction was granted to
protect yellow dog contracts signed by employees at will.
In the past, courts had granted this sort of relief when
employer C tried to woo away employer A's worker (B) only
if employer A and the worker had a contract for a
definite term, say, one year (or even one night, as in
the case of the opera singer). The rationale was that,
during the life of the contract, it was wrong for
employer C to try to persuade the worker to breach the
contract by quitting before its expiration. Employer A
had a reasonable expectation that the worker would remain
on the job until the contract expired, and the courts
would protect this expectation. However, if employer A
and the worker had an at-will contract, so that either
one could terminate the relationship at any time and for
any reason, most courts would not enjoin employer C from
wooing the worker.
The rationale was that the worker
could quit at any time, so employer C was not trying to
persuade the worker to breach the contract. Employer A
had no reasonable expectation that the worker would
remain on the job for any period of time; therefore, the
courts would not intervene.
This reasoning was originally applied to yellow dog
contracts.
When the employer and the workers had
contracts for a definite term, the courts held the
employer had a reasonable expectation with which the
union should not interfere; and an injunction against
union organizing was issued. If the employer and the
workers had only at-will contracts, the employer had no
reasonable expectation, and, therefore, the union was not
interfering when it solicited the workers to join the
union.
But the Court in Hitchman Coal ignored this
reasoning.
Workers gained some power in state legislatures
towards the end of the Nineteenth Century. As a result,
eleven states enacted statutes outlawing yellow dog
contracts.
The principal effect of those laws was to
prevent courts from enjoining organizing drives on the
theory of inducement to breach of contract. If there was
no yellow dog contract, the union was not inducing the

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xxiii

worker to breach a contract by joining. Some states also
prohibited employers from discriminating against union
members, as did the federal government regarding
railroads. But, as the student knows, these legislative
efforts were fated to fail. In Adair v. U.S. and Coppage
v. Kansas the Supreme Court held unconstitutional
statutes that prohibited discrimination against union
members or outlawed yellow dog contracts.
THE REACH OF HITCHMAN COAL

The student may be wondering how the labor movement
survived after Hitchman Coal, Duplex v. Deering, Adair v.
U.S., and Coppage v. Kansas, for these cases appeared to
allow employers to secure injunctions to quash any
organizing drive. The answer is that Hitchman Coal did
not reach as far as it seemed.
Two years later in
American Steel Foundries v. Tri-City Central Trades
Council, 257 U.S. 184 (1921), the Court limited Hitchman
Coal to some extent. In Tri-City a strike had shut down
a firm. When the firm sought to reopen with replacement
workers, the local trades council began to picket. The
picketers sometimes threatened and assaulted the
replacements, and the employer secured an injunction
against these behaviors.
But the injunction also
prohibited persuasion and peaceful picketing directed at
the replacements.
Regarding this aspect of the
injunction, the Court was surprisingly sympathetic to
unions — up to a point.
Speaking for all but one
justice, Chief Justice Taft wrote:
"Is interference of a labor organization by
persuasion and appeal to induce a strike against
low wages, under such circumstances, without lawful
excuse and malicious? We think not. Labor unions
are recognized by the Clayton Act as legal when
instituted for mutual help and lawfully carrying
out their legitimate objects. They have long been
thus recognized by the courts. They were organized
out of the necessities of the situation. A single
employee was helpless in dealing with an employer.
He was dependent ordinarily on his daily wage for
the maintenance of himself and family.
If the
employer refused to pay him the wages that he
thought fair, he was nevertheless unable to leave
the employ and to resist arbitrary and unfair
treatment. Union was essential to give laborers
opportunity to deal on equality with their

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Hitchman Coal v. Mitchell
employer. They united to exert influence upon him
and to leave him in a body, in order, by this
inconvenience, to induce him to make better terms
with them. They were withholding their labor of
economic value to him to make him pay what they
thought it was worth.
The right to combine for
such a lawful purpose has, in many years, not been
denied by any court. The strike became a lawful
instrument in a lawful economic struggle or
competition between employer and employees as to
the share or division between them of the joint
product of labor and capital.
To render this
combination at all effective, employees must make
their combination extend beyond one shop. It is
helpful to have as many as may be in the same trade
in the same community united, because, in the
competition between employers, they are bound to be
affected by the standard of wages of their trade in
the neighborhood.
Therefore, they may use all
lawful propaganda to enlarge their membership, and
especially among those whose labor at lower wages
will injure their whole guild. It is impossible to
hold such persuasion and propaganda, without more,
to be without excuse and malicious. The principle
of maliciously enticing laborers still remains, and
action may be maintained therefor in proper cases;
but to make it applicable to local labor unions in
such a case as this seems to us to be
unreasonable." 257 U.S. 208-210 (emphasis added).

We have emphasized the word "local" in the last sentence
because it was part of the rationale on which the Court
distinguished earlier cases and limited the reach of TriCity. Discussing those old friends of ours, means and
ends, the Court said that both of them were illegal in
Hitchman Coal. The end was to control the production and
sale of non-union coal in West Virginia in order to
protect unionized mines elsewhere. This end was illegal
because it was remote from the benefit that union members
would derive and because such nation-wide control of
interstate commerce was dangerous.
The means were
deception and misrepresentation, for the union sought to
induce non-union workers secretly to break their
promises, join the union, and, when the employer was
helpless, force agreement to unionization.
Tri-City
differed from Hitchman because the former involved only
a local union, whose end was improvement of local wages;
this end was proximate, not remote. Also, the Tri-City
unions had not utilized any deceitful means. Thus, it

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appeared after Tri-City that local efforts at organizing
would be tolerated as long as the union did not use
deceitful tactics.
The Court's opinion in Tri-City was not faithful to
the precedent set in Hitchman Coal.
Rather, Tri-City
interpreted Hitchman Coal in significant ways. Tri-City
implied that Hitchman Coal turned on the defendants'
means and ends; in fact, the majority scarcely mentioned
them (though Justice Brandeis mentioned them in his
dissent, ¶ 39). The rationale of Hitchman Coal was that
the union was interfering with the employer's reasonable
expectations deriving from his yellow dog contracts with
the workers. The union was equally interfering with the
employer's contractual expectations in Tri-City, but the
Court ignored the interference. The Court in Hitchman
Coal repudiated the argument that workers compete with
their employers (¶ 25). The Court in Tri-City explicitly
referred to "a lawful economic struggle or competition
between employer and employees as to the share or
division between them of the join product of labor and
capital." The power to interpret is the power to change.
Nonetheless, the Court kept unions on a tight leash.
The opinion in Tri-City distinguished a number of older
cases (and, by implication, suggested that they remained
good law). If the union intended to cause workers to
breach their contracts with their employer (the Court had
not changed its mind about enforcing yellow dog
contracts), or utilized a secondary boycott, or engaged
in misrepresentation or intimidation, an injunction would
be appropriate. Similarly, if an employee sued a union
for threatening to strike unless his employer discharged
him (recall the Philadelphia Cordwainers case), an
injunction would be in order because of "suggestions of
coercion, attempted monopoly, deprivation of livelihood,
and remoteness of the legal purpose of the union to
better its members’ condition ...." 257 U.S. at 210-211.
ORGANIZING AS COERCION

Another interesting aspect of the Hitchman case is
that the Court characterized union organizing as
coercive. The union sought to "coerce the plaintiff into
'recognizing the union,'" ¶ 9; used "coercive measures,"
¶ 14; and tried to "coerce the employer and the remaining

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Hitchman Coal v. Mitchell

miners to 'organize the mine,'" ¶ 18.e
Was this
characterization appropriate? Coercion "may imply the
exercise of physical or moral power."f The union did not
seek to apply physical power; anyway, use of physical
power would clearly have been illegal.
The union may
have sought to apply moral power, but the employer was
evidently well steeled against it. What the union sought
to apply was economic power. In the market place, use of
economic power by business is usually condoned, and often
praised. It is called competition. Apparently, use of
economic power by workers, in the eyes of the Court, was
another matter. As legal doctrine was expanded to enjoin
picketing in Vegelahn v. Guntner because it was "moral
intimidation," so legal doctrine was expanded in Hitchman
Coal to enjoin professional organizing because it was
"economic coercion."
The Court in Hitchman Coal did not justify its
holding. Rather than explaining why workers should not
be allowed to use economic force in the same way that
businesses used it, the Court labeled union organizing as
coercive. Thus, the Court expanded an existing category
(coercion), which everyone agreed was illegal, to include
a new phenomenon (organizing). The Court's reasoning was
analogical: union organizing was similar to other kinds
of coercion and, therefore, was illegal. The analogy was
controversial at the beginning of the 20th Century and
remains controversial at the beginning of the 21st
Century.

e

The Court also used the word in its more traditional sense:
"Another fundamental error in the defendants' position
consists in the assumption that all measures that may be
resorted to are lawful if they are 'peaceable' — that is, if
they stop short of physical violence, or coercion through fear
of it," ¶ 22.
But even here, the Court is arguing that
coercion includes more than force, for the Court continued:
"In our opinion, any violation of plaintiff's legal rights
contrived by defendants for the purpose of inflicting damage,
or having that as its necessary effect, is as plainly
inhibited by the law as if it involved a breach of the
peace.," ibid.
f

Webster's Dictionary of Synonyms, G. & C. Merriam Co.,
Springfield, MA, 1st ed., 1951 at p. 358.

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xxvii

FAIRNESS, EMPLOYERS' RIGHTS, AND WORKERS' RIGHTS

Another interesting aspect of Hitchman Coal was that
the Supreme Court granted an injunction against a union
that was found to be interfering with the employer's
legal right to demand yellow dog contracts. Expressed
more abstractly, the Court enjoined the union from using
economic force to prevent the employer from exercising a
legal right. One might think that the Due Process and
Equal Protection clauses of the Constitution (or perhaps
the fundamental principle of fairness) would have made
the Court equally willing to enjoin employers from using
economic force to prevent workers from exercising their
legal rights, or at least to allow legislatures to pass
laws to protect workers in this way. But, as the student
has seen, Coppage v. Kansas struck down the Kansas
statute that outlawed yellow dog contracts. Was not the
purpose of this statute to prevent employers from using
economic force to prevent workers from exercising their
legal right to join labor unions?
The Court's reply to this reasoning would have been
to move the analysis to a lower level of abstraction.
The union was not merely interfering with the employer's
exercise of a legal right; the union was inducing workers
to breach their yellow dog contracts. But even at this
level of abstraction, the Court's treatment of employers
and unions was not consistent.
Suppose an employer
discharged a worker for joining a union (a la Adair), or
a worker joined a union, then applied for a job, and the
employer conditioned the job on the workers' resignation
from the union (a la Coppage). Would not the employer's
act have been inducement to breach of contract, or
something similar to it? The Court's response would have
been that a legal claim had long existed for persuading
an employee to leave one's employer (¶ 14), whereas no
such claim existed for persuading a member to resign from
an organization.
The answer to this argument is
straightforward.
The employer's right to sue for
persuading an employee to leave one's employer was
created by the legislature, and the legislature should
have been equally free to create a new claim for
persuading a member to resign from a labor union (which
is exactly what the Kansas statute attempted to do).

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Hitchman Coal v. Mitchell
PRIMA FACIE CASE AND DEFENSE

Finally, it is interesting to observe that the
judges continued to think of labor relations in terms of
prima facie wrongs and defenses.
The majority in
Hitchman Coal wrote, quoting an English case:
"'Intentionally
to
do
that
which
is
calculated in the ordinary course of events to
damage, and which does, in fact, damage another in
that other person's property or trade, is
actionable without just cause or excuse.'" ¶ 22.

As we noted above, the Court went on to say that the
union could not invoke the defense of competition because
workers are not competitors of their employers.
In
dissent, Justice Brandeis agreed that inducing workers to
leave their employer was prima facie wrong, but argued
that the union's acts were lawful because it sought to
improve the terms and conditions of the workers'
employment by means of collective bargaining (¶¶ 38-39).
QUESTIONS FOR REFLECTION
1. Was it right for the Supreme Court to extend the
claim for inducement to breach of contract to cover not
only employment contracts for a term, but also employment
contracts at will?
2. Unions began to make contracts with their members
in which the members promised not to take jobs with
employers who demanded yellow dog contracts. Why do you
think unions did this?
3. The majority characterized the union's tactics as
coercive. Surely it was true that the union sought to
force the employer to recognize and bargain with the
union.
If the union had used physical force, for
example, assaulted the employer, it would have been
illegal. Is economic force analogous to physical force,
or should they be distinguished?
4. Review ¶ 23 of the majority's opinion.
Court rely on good evidence?

Did the

5. Review ¶ 11 of the majority's opinion. The cases
on which it relies, Adair v. United States and Coppage v.

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xxix

Kansas, held it was unconstitutional for the government
to restrict employers' liberty of contract.
You know
that the Constitution regulates the government, not
private parties. Is the constitutional right which the
Court cites an appropriate precedent for the case at bar?
6. The majority argued that the union sought to
induce the workers to breach their yellow dog contracts.
Brandeis argued that the union did not. Which side got
the better of this argument?
7. The majority held, "the purpose entertained by
defendants to bring about a strike at plaintiff's mine in
order to compel plaintiff, through fear of financial
loss, to consent to the unionization of the mine as the
lesser evil, was an unlawful purpose ...." {¶ 25} What
was the effect of this holding on recognition of unions?
8. We have observed in connection with Commonwealth
v. Hunt that the characterization of purpose is
malleable; a court can describe a party's purpose in
various ways.
Could the Court reasonably have
characterized the defendants' purpose in another way?

Ù

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216

CHAPTER 2

MODERN LABOR LAW

Labor and Employment Law

217

Introduction to the Norris-LaGuardia Act of 1932
The student should read the Norris-LaGuardia Act,
which is printed in Chapter IV of the readings.
Comment
Injunctions were powerful weapons for employers to
use against labor, and judges were allies of the
employers.
We have previously described how quickly
injunctions can be obtained. Now we will describe some
of the characteristics of labor injunctions during the
half century that preceded the Norris-LaGuardia Act of
1932. In doing so, we will draw heavily on Frankfurter
and Greene's book entitled The Labor Injunction,
published in 1930.
Labor injunctions were often based on a complaint
that was written in general terms. One judge criticized
the one before him as
"a
blanket
complaint
abounding
in
general
conclusions but lacking in facts and circumstances
.... A complaint in an action for an injunction
... should be detailed, certain, and specific,
giving facts and circumstances, including time and
place of each alleged act of coercion, the name of
the person coerced, if known, the manner in which
he was coerced, and the manner in which and the
extent to which it affected or impeded the
employer's right to conduct his business in a
lawful way." Badger Brass v. Daly, 137 Wis. 601,
606 (1909).

Judges usually rely on affidavits to learn the facts
that justify an injunction. Employers' affidavits were
commonly sworn to by a "professional affidavit-maker —
{that is,} the privately subsidized policeman, the
private detective, {or} the 'industrial spy.'" Even the
Supreme Court later commented on the probity of labor
spies: "All know that men who accept such employment
commonly lack fine scruples, often wilfully misrepresent
innocent conduct and manufacture charges." Sinclair v.
U.S., 279 U.S. 749 (1929).
Labor injunctions cast a very broad net.
The
injunction in the Debs case applied, not only to the

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Comment and Questions on the Norris-LaGuardia Act of 1932

named respondents and their agents, but also to "all
persons whomsoever" who learned of its contents.
Any
worker, indeed, any person, could be swept in by these
words, so long as a judge could be convinced that the
person knew about the injunction. Oftentimes, a person's
knowledge of an injunction was presumed because it had
been posted on a wall, published in a newspaper, or read
aloud to a large group of persons, even though an
individual claimed one actually knew nothing about the
injunction.
Labor injunctions prohibited a terrific range of
behavior.
They were often as broad as imaginable,
prohibiting interference with an employer's business,
employees, and customers "by any means whatsoever." One
could hardly know what to do lest a judge later decide it
interfered with the business in some way.
A barber was
held in contempt for putting a sign in his window saying,
"No scabs wanted here," and a newspaper was cited for
referring to strike breakers as "traitors." Injunctions
sometimes said, "Do nothing that is alleged in the
complaint."
This sort of order was particularly
troublesome for two reasons: first, as noted, the
complaints were often nothing but generalities; second,
the injunction applied to anyone who had knowledge of it,
but the complaint was actually served only on the parties
named to the case.
Injunctions were also written in specifics. Perhaps
the most common act specifically prohibited was picketing
(recall Vegelahn v. Guntner); indeed, the Supreme Court
seemed to create a presumption that picketing was violent
and could be enjoined when it said, "The name 'picket'
indicated a militant purpose, inconsistent with peaceable
persuasion." American Foundries v. Tri-City Council, 257
U.S. 184 at 205 (1921). Speech was also a common target
of injunctions. The Debs and Hitchman cases restrained
any speech aimed at persuading workers to cease
performing their duties, or, in other words, to strike.
Unionists have been enjoined from publicizing strikes and
from attempting to persuade potential employees (that is,
strike breakers) not to accept work. Injunctions have
been issued against "abusive language," "bad language,"
"indecent
language,"
"annoying
language,"
and
"opprobrious epithets" (a term which every worker surely
understood), and sometimes particular words were
outlawed, such as "unfair," "scab," and "traitor." One

218

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Comment and Questions on the Norris-LaGuardia Act of 1932

219

iii

court issued an injunction against a union's holding a
vote on whether or not to strike.
The U.S. Attorney
General asked for and obtained an injunction against
threatening to strike, giving any messages regarding a
strike, encouraging a strike, and paying strike benefits.
An employer was enjoined from collecting dues pursuant to
a check off clause in a collective bargaining agreement.
A court ordered a union not to spend any money on
attorney's fees, court costs, or appeal bonds; prohibited
union members from congregating in a church parking lot;
and restrained the members from singing any songs within
the hearing of employees on the job.
One injunction
required that pickets be U.S. citizens who speak
English.*
As we have previously observed, a person charged
with violating an injunction — that is, of being in
contempt of court — is tried by the judge who issued the
injunction. The constitutional safeguards that protect
defendants in criminal cases are largely absent. In the
labor cases we are considering, there was no jury and no
privilege against self-incrimination. The complaint and
the injunction were often vague, for example, "Do not
interfere with the employer's business," so that the
injunction was like a dragnet, catching anyone whom the
judge wished to punish.
Perhaps even more important,
this sort of an injunction was a scarecrow: because it
was so difficult for a person to know whether any
particular act was prohibited, many people refrained from
perfectly legal activity out of fear that it was covered
by the injunction.
Labor injunctions were effective. A strike depends
on emotion, which is closely connected to timing. The
first few days are the most important. If the workers
lose heart, the strike is lost. Therefore, an injunction

*

These requirements may have been intended to affect the
union's tactics. Most of the workers were foreign-born, so
not many could qualify as picketers. Also, if the pickets
spoke in Polish or Italian to the workers, the employer
would not understand what the pickets were saying and it
would be harder to prove in contempt proceedings that the
pickets violated the injunction. English-speaking citizens
would be less likely to be able to speak to the workers in
their native tongues.

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Comment and Questions on the Norris-LaGuardia Act of 1932

at the right moment can win a strike for an employer.
Workers respect, or at least fear, the power of judges.
When a judge enjoins a strike, many workers feel a duty
to obey the injunction, and many others are afraid to
disobey it. During the half century beginning in 1880,
a great number of strikes were crushed by injunctions.
The Pullman strike was typical. In Debs's words:
"As soon as the employees found that we {the
leaders of the strike} were arrested and taken from
the scene of action, they became demoralized, and
that ended the strike.
It was not the soldiers
that ended the strike; it was not {rival unions}
that ended the strike; it was simply the United
States courts that ended the strike. Our men were
in a position that never would have been shaken
under any circumstances if we the leaders had been
permitted to remain upon the field, remain among
them; but once ... we were taken from the scene of
action and restrained from sending telegrams or
issuing the orders necessary, or answering
questions ... {t}he headquarters were demoralized
and abandoned.... The men went back to work, and
the ranks were broken.... {T}he strike was broken
by the Federal courts ... {which} restrain{ed} us
from discharging our duties as officers and
representatives of the employees. *

Efforts were made to curb the courts' abuse of
injunctions, but the efforts were unsuccessful.
When
judges were told that they were exceeding their powers,
they often made one of two replies. First, the judges
said, the injunction could do no harm because it is
directed only at illegal acts.
But injunctions often
included more than illegal acts. For example, it was not
illegal to publicize a strike or persuade potential
strike breakers to go elsewhere.
Also, injunctions
written in broad and vague terms (such as, "Do not
interfere with the employer's business") often dissuaded
*

The quotation is from United States Strike Commission,
Report on the Chicago Strike of June-July, 1894, S. Exec.
Doc. No. 7, 53d Cong. 3d Sess (1895) at XXXIX-XL, appearing
in Owen Fiss, Injunctions, pp. 598-599. The facts are drawn
from Fiss, pp. 596-612; John Roche, "Entrepreneurial Liberty
and the Fourteenth Amendment," 4 Labor History 3 (Winter,
1963); and Frankfurter and Greene, The Labor Injunction, pp.
18, 88.

220

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Comment and Questions on the Norris-LaGuardia Act of 1932

v

people from doing what they had a right to do. Second,
the judges said, an injunction was kinder than a police
officer's club; recall that the Supreme Court in Debs
praised the government for applying for an injunction
instead of sending in the army. But the police could
only suppress behavior that violated the criminal law,
whereas injunctions left large, undefined areas in which
judges could decide whether to prohibit or permit
behavior. And the protections that attach to criminal
proceedings, such as a jury trial, were absent in
contempt proceedings.
In the late Nineteenth and early Twentieth
Centuries, some states passed laws aimed at limiting the
power of judges to intervene in labor relations; but the
courts held the laws were unconstitutional.
We have
already discussed legislative attempts to alter the
substantive law, such as laws against discrimination
because of union membership and yellow dog contracts; the
decisions in Adair and Coppage struck down these laws.
The same reasoning was used when legislatures altered the
procedural law, that is, restricted the power of judges
to issue injunctions in labor disputes. Anti-injunction
laws in California, Arizona, and Massachusetts were
invalidated on the ground that they interfered with the
constitutional right to acquire and use property.
Many attempts were made to pass a bill in Congress
to limit injunctions in federal courts. For example, in
five successive messages to Congress, President Theodore
Roosevelt urged such a law. In 1905 he said:
"It must be remembered that a preliminary
injunction in a labor case, if granted without
adequate proof ... may often settle the dispute
between the parties; and therefore if improperly
granted may do irreparable wrong .... {T}here have
undoubtedly been flagrant wrongs committed by
judges in connection with labor disputes even
within the last few years...."

And in 1908 he added:
"They are blind who fail to realize the
extreme bitterness caused among large
bodies of worthy citizens by the use
that has been repeatedly made of the
power of injunction in labor disputes."

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Comment and Questions on the Norris-LaGuardia Act of 1932

However, prior to the Norris-LaGuardia Act, to which we
will turn in a moment, the only successful federal bill
was the Clayton Act; yet the courts often ignored its
procedural clauses.
Sections 17 through 19 of the
Clayton Act were intended to reform some abuses, for
example, issuing injunctions without notice; but between
1914 and 1928, more labor injunctions were issued without
notice than during any previous fourteen-year span. Most
of these injunctions were in effect for more than ten
days without a hearing at which the union could argue its
case, and for this reason they violated the Clayton Act.
The Act also required judges to set forth their reasons
for issuing injunctions; however, when trial judges
failed to do so, appellate judges held the failure was a
mere error and the injunctions were still valid. (One
must obey an erroneous injunction.)
The Clayton Act
required that injunctions be specific, but the courts
held that a prohibition against "interfering in any
respect" with the employer's business was specific
enough. And courts continued to hold in contempt persons
who were not parties to the case, but who supposedly
received notice of the injunction through publication,
posting, or public reading.
In 1932, during the Great Depression and the last
year of the Hoover administration, the Norris-LaGuardia
Act became law. It did not change the substantive law in
any way. The doctrines of conspiracy, anti-trust, and
inducement to breach of contract all remained in place,
and, of course, the constitutional doctrine of liberty of
contract was unaffected. All the Act did was to limit
the authority of federal courts (but not state courts) to
issue injunctions in labor disputes.
Let us examine
several of its sections.
Section 1 (the first paragraph) contains words that
are more important than the student may realize.
It
states:
"That no court of the United States* ...
shall have jurisdiction to issue any
... injunction in a case involving or
growing out of a labor dispute, except

*

That is, no federal court; as opposed to state
courts, over which Congress has no power.

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Comment and Questions on the Norris-LaGuardia Act of 1932
in
strict
conformity
with
provisions of this Act ...."

vii

the

The important idea here is jurisdiction, which refers to
the power of a court to hear a case. In general, if a
court has jurisdiction over a case, and makes a mistake,
the parties to the case are bound by that mistake; they
must obey the court unless they take an appeal and an
appellate court corrects the mistake. This rule applies
to appellate as well as trial courts. Suppose the trial
court misinterprets the law and rules in favor of the
wrong party; and the loser appeals, and the appellate
courts make the same mistake. When the last appeal is
exhausted, the case is closed.
The courts made a
mistake, and the loser has had bad luck; but one must
accept one's fate and abide by the courts' order, even if
a later case declares that the earlier one was wrongly
decided.
This rule applies to injunctions, too. Suppose a
trial court enjoins certain behavior by the respondent.
The injunction is erroneous; it should not have been
issued.
Nonetheless, the respondent must obey the
injunction. Of course, one may try to convince the trial
court that it made an error, and one may appeal to higher
courts; but all the while, one must continue to obey the
injunction. If one disobeys the injunction, one can be
punished for contempt of court, even if the appellate
courts later hold that the injunction should not have
been issued.
This rule applies when the court has jurisdiction of
the case; the foregoing examples assumed that the court
had jurisdiction. A different rule applies if the court
lacks jurisdiction. In this event, the party is free to
ignore the court's order, even an injunction, because the
court had no power to issue it.
This is a simplified explanation of jurisdiction,
which in fact is considerably more complicated, and the
rules vary according to the kind of jurisdiction that is
lacking.
This is not the place to expound upon the
niceties of personal jurisdiction, subject matter
jurisdiction, and jurisdiction in rem. As a practical
matter, if one is aware of a court order, it should be
obeyed, even if one believes the court lacked
jurisdiction to issue the order. Also, there is a great

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risk in ignoring a court order because of lack of
jurisdiction: if one turns out to be wrong, and the court
really did have jurisdiction, one stands in contempt of
court.
Our point here is that the Norris-LaGuardia Act did
not merely change the federal law about injunctions. The
Act did change the law; but if that were all it did, and
a court issued an erroneous injunction, the parties would
have been bound to obey it. The Act went further and
withdrew
jurisdiction
from
the
courts
to
issue
injunctions except as permitted by the Act. This is the
strongest step Congress can take in regard to a court.
Congress deprived the federal courts of the power to
issue injunctions in labor disputes unless in strict
conformity to the Act (and the words "strict conformity"
appear in the Act).
Therefore, if a court issues an
erroneous labor injunction, the parties may ignore it
because the court lacked jurisdiction.
Section 2 of the act establishes the public policy
of the United States regarding labor disputes. As the
student likely realized when reading this section, the
ideas in the dissenting opinions of Justices Holmes and
Brandeis were adopted by Congress. Section 2 states that
the government allows capitalists to aggregate their
property. An individual worker is practically powerless
when one sells one's labor to these aggregations. Actual
liberty of contract requires that the government allow
workers
to
organize
themselves
into
unions
and
collectively negotiate the terms and conditions of
employment.
Employers should be prohibited from
interfering with workers' efforts to organize themselves.
In effect, this section creates a new definition of
duress or coercion, one that includes the case in which
an employer has enormous bargaining power and the worker
has none. The Norris-LaGuardia Act must be interpreted
in light of these policies.
Section 3 forbids federal courts from enforcing
yellow dog contracts. You may wonder how Congress could
do this in light of the Coppage case, which prohibited
the government from outlawing such contracts. The answer
is that section 3 does not outlaw yellow dog contracts;
the section only states that federal courts may not
enforce them. Parties remain free to enter into yellow
dog contracts, and state courts may enforce them.

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225

ix

There is an element of symmetry in section 3. It
denies federal enforcement when employers force workers
to promise not to join unions and when unions force
employers to promise not to join employer organizations.
One would test one's memory trying to recall a case in
which a union sought to prevent an employer from joining
the Chamber of Commerce or National Association of
Manufacturers, but the possibility exists.
As the
student will recall from Adair v. U.S. and Coppage v.
Kansas, the principle of symmetry (though not equality)
is important in labor law.
Section 4 prohibits federal courts from enjoining
specific behaviors in connection with labor disputes,
such as striking, joining and supporting a union, and
peaceably urging others to do the same. Obviously, this
section was aimed at the injunctions that judges too
readily issued against these activities.
Not so obviously, however, the section addresses the
fundamental question in labor law: What is the limit of
legitimate union activity? Once again, we find ourselves
back to Chief Justice Shaw's opinion in Commonwealth v.
Hunt: we examine means and ends. Section 4 deals with
means. Permissible means include striking, joining and
supporting a union, urging others to do the same, and
the other actions listed in the section, so long as the
acts are taken in consequence of a labor dispute.
Permissible ends are discussed in Section 13, so let
us examine that section now. It makes sense if we recall
Justice Holmes's opinion in Vegelahn. Unions do inflict
injuries on other persons, such as employers and nonunion workers, and inflicting injury on others is wrong
unless it is justified. Holmes thought that the workers'
self-interest was a sufficient justification. Section 13
may be thought of as defining a union's legitimate selfinterest. The section establishes that the injuries a
union inflicts (by the means listed in section 4) are
justified so long as they "involve or grow out of a labor
dispute." A labor dispute is defined by two elements:
who the parties are and what they disagree about.
A
labor dispute exists if the parties are in the same
industry, trade, craft, or occupation; or are employees
of the same employer; or are members of the same
organization of workers or employers: and if the
controversy between the parties is occasioned by the

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Comment and Questions on the Norris-LaGuardia Act of 1932

terms
and
conditions
of
employment
or
by
the
representation of workers by unions, regardless of
whether the disputants in the controversy are an employer
and one's employees.
This is a broad description of permissible ends.
Recall that in the Duplex case the Court held that the
Clayton Act exempted unions from anti-trust law only when
the parties were an employer and one's employees.
Section 13 is explicitly more generous to workers; it is
a labor dispute, and a federal court may not issue an
injunction, even if the disputants in the controversy are
an employer and someone else's employees. Also, a great
many secondary boycotts are beyond the reach of federal
injunctions.
So long as the basic dispute is over
recognition of a union or the terms and conditions of
employment, and the workers are in the same industry, or
work for the same employer, or belong to the same union,
it is a labor dispute. In effect, section 13 enacts, as
far as federal injunctions are concerned, Justice
Brandeis's dissent in Duplex. He argued:
"When centralization in the control of business
brought its corresponding centralization in the
organization of workingmen, new facts had to be
appraised. A single employer might ... threaten
the standing of the whole organization and the
standards of all its members; and when he did so,
the union, in order to protect itself, would
naturally refuse to work on his materials wherever
found .... {Courts must appreciate} the facts of
industry {and} {recognize} the unity of interest
throughout the union, and that, in refusing to work
on materials which threatened it, the union was
only refusing to aid in destroying itself." 254
U.S. at 482.

But there is a limit, namely, where the union's selfinterest stops and it is acting only in sympathy with
another union. It is not a labor dispute, and federal
courts may issue injunctions, if the parties are not in
the same industry or union.
Section 5 prohibits federal injunctions from being
issued on the ground that a union is an unlawful
combination or conspiracy because its members did any of
the acts listed in section 4. Also, section 4 mentions
that the acts listed in it may be performed "singly or in

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227

xi

concert." The purpose of this phrase and of section 5 is
to curb the doctrine that strikes and boycotts are
illegal conspiracies.
Section 7 requires federal courts to hold hearings,
with witnesses and cross-examination, before injunctions
are issued in labor disputes.
An injunction can be
issued only if the court finds that the respondent has
committed or threatened to commit unlawful acts and that
the local police cannot provide adequate protection to
the complainant.
(The complainant is usually an
employer, and the respondent is usually a union; so we
will refer to employers and unions from now on.) The
local chief of police must be notified of the hearing.
Section 7 also requires the court to find, with
regard to each item of relief (that is, with regard to
each act which the injunction prohibits), that the
employer would suffer more injury if the injunction is
denied than the union would suffer if the injunction is
granted. This requirement needs some explanation. The
theory of a preliminary injunction is to preserve the
status quo for both parties until the court can decide
the dispute.
Suppose a woman loans her great
grandmother's wedding dress to her cousin for the
latter's wedding.
It is very special to the woman
because her grandmother, her mother, and her aunt were
also married in it, and she plans the same. But then she
learns that her cousin plans to alter the dress in
various ways to make it more modern; and when she demands
that the cousin return it, the latter refuses, claiming
she has as much right to the dress as the woman does.
The woman could sue her cousin and ask for a preliminary
injunction, forbidding her to alter the dress until the
judge can decide the case. The injunction would preserve
the status quo as far as both parties to the case are
concerned and would probably be granted.
A labor injunction, however, does not fit well into
the theory of preserving the status quo. The injunction
works well for the employer, who continues doing business
and resisting the strike. But for the union, as we have
previously seen, the injunction stops the strike cold;
the time, money, and effort put into organizing and
motivating the workers are lost. Even if the injunction
is lifted later because it was erroneously granted, the
strike usually cannot be revived.
Before 1932, the

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Comment and Questions on the Norris-LaGuardia Act of 1932

federal courts were very solicitous of the employer's
interests and expressed deep concern over injuries that
strikes and boycotts caused to businesses.
But the
judges paid no heed to the harm done to a union by an
injunction.
For this reason, section 7 of NorrisLaGuardia requires the court to give fair consideration
to the interests of both the union and the employer. An
injunction can be issued only if the harm from which it
will save the employer exceeds the harm which it will
cause the union.
We have mentioned that section 7 requires the court
to hold a hearing before issuing an injunction. There is
an exception to that requirement. The court may issue a
temporary restraining order, without a hearing, without
notice to the union, and based on affidavits alone, if
the employer can convince the judge that the union is
threatening very serious and immediate injury. Such a
restraining order may last for no longer than five days.
In the past, restraining orders had been allowed to stand
for weeks and months before a hearing was held. In the
Hitchman Coal case, for example, the restraining order
was in effect for seven months before a hearing was held.
Finally, for our purposes, section 11 provides that
a person charged with contempt in a labor case is
entitled to a jury trial.
A point that we made at the beginning of this
comment, and
that we tried to keep in the student's
attention by our choice of words as we discussed various
sections of the act, deserves reemphasis. That point is
that Norris-LaGuardia did not change the substantive law
in any way; the act merely restricted the power of
federal judges to issue injunctions in labor disputes.
Therefore, based on the doctrines of conspiracy, antitrust, and inducement to breach of contract, federal
courts remained free to award money damages to employers
for injuries caused by unions; and state courts continued
to issue injunctions and to award damages.
Nevertheless, Norris-LaGuardia was an improvement as
far as unions were concerned, particularly in states,
such as New York, whose laws permitted a substantial
range of union activity.
Before the Norris-LaGuardia
Act, federal judges in these states enjoined union
conduct that state courts would not have enjoined. In

228

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Comment and Questions on the Norris-LaGuardia Act of 1932

xiii

these states, therefore, removal of the federal judges'
jurisdiction to issue injunctions was important to
unions. But states like New York were few in number, and
the need remained for more fundamental and substantive
revision of labor law.
QUESTIONS FOR REFLECTION
1. During a labor dispute, how can strikers be
notified of an injunction?
2. Are there circumstances in which a union would
want an injunction to be issued against a strike?

Ù

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230

The Constitutionality of the Labor Act
Introduction
NLRB v. Jones & Laughlin concerns the power of the
government to regulate labor relations.
Ours is a
government of limited powers. The reason is our belief
that political power belongs to the people.
We have
chosen to delegate some of that power to the government
(reserving the rest for ourselves). Thus, the government
has only the powers conferred on it by the Constitution.
If one of the branches of the government exceeds its
powers, its act is unconstitutional and void. The final
arbiter of whether an act is constitutional — that is,
within the powers granted by the Constitution — is
usually the courts.
Is the National Labor Relations Act a constitutional
exercise of the power of Congress?
This question was
raised by employers in five cases decided by the Supreme
Court soon after the Labor Act was passed. The argument
based on the Due Process Clause was that it protects the
liberty and property of citizens from the government. By
requiring employers to bargain with unions instead of
individual workers, and by prohibiting employers from
discriminating
against
workers
because
of
union
membership, the Act infringed on employers' liberty and
property rights.
The argument based on the Commerce
Clause was that it authorizes Congress to regulate
interstate commerce, but not intrastate commerce.
Because manufacturing and labor relations were intrastate
commerce, the Act exceeded the power of Congress under
the Commerce Clause.
The facts of Jones & Laughlin are typical of all
five cases.
The Labor Board held that the employer
discharged several workers because they belonged to a
union, and by the discharges coerced and intimidated
other employees in the exercise of their right to self
organization. The Board ordered the employer to cease
and desist from discrimination and coercion and to offer
reinstatement with back pay to the discharged workers.
The employer refused to comply with the Board's order,
whereupon the Board petitioned the Court of Appeals to
enforce the order.
The Court of Appeals denied the
petition on the ground that the Labor Act was

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unconstitutional. The Board then asked the Supreme Court
to review the decision, and the Court took the case.
Although the Supreme Court gave its answer to the
question of constitutionality in Jones & Laughlin, some
of the Labor Board's arguments on the issue appeared in
the Board's brief in Associated Press v. NLRB as well.
Here follow excerpts from the briefs of the Board in
Associated Press and Jones & Laughlin and from the brief
of the employer in Jones & Laughlin.
The arguments in these briefs are sophisticated
treatments of constitutional law that would normally
exceed the grasp of students at the beginning of their
first course on law. But these arguments are based on
Adair v. U.S. and Coppage v. Kansas, which the student
has already studied in Part I of this book; and so the
student should be able to identify, understand, and
paraphrase the arguments.

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232

iii

National Labor Relations Board v. Jones & Laughlin
301 U.S. 1 (1937)

Associated Press v. National Labor Relations Board
301 U.S. 103 (1937)

FROM THE BRIEF OF THE LABOR BOARD
{The briefs are signed by Homer Cummings, Attorney General of the U.S.;
Stanley Reed, Solicitor General of the U.S.; Charles E. Wyzanski, Jr. and A. H.
Feller, Special Assistants to the Attorney General; Charles A. Horsky, attorney; J.
Warren Madden, Chair of the NLRB; Charles Fahy, General Counsel of the NLRB;
Robert B. Watts, Associate General Counsel; and Philip Levy, Laurence A. Knapp,
Malcolm F. Halliday, and David A. Moscovitz, attorneys.}
{THE DUE PROCESS ARGUMENT}
Subsections (1) and (3) of Section 8 of the National Labor Relations Act
Are ... Consistent With The Fifth Amendment
...
... With respect to the provisions which are here involved, the Board contends
... that their validity under the Fifth Amendment is sustained by the decision in Texas
& New Orleans R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548....
... The Texas & New Orleans case arose under the Railway Labor Act of 1926.
That statute, in order to prevent industrial disputes on the railroads, established
machinery for mediation, negotiation, and collective bargaining. In that Act (as it
read when the Texas & New Orleans case was decided) Congress, in Section 2,
subdivision third, had provided:
Representatives, for the purposes of this Act, shall be designated by
the respective parties in such manner as may be provided in their corporate
organization or unincorporated association, or by other means of collective
action, without interference, influence, or coercion exercised by either party
over the self-organization or designation of representatives by the other.
[Italics supplied.]

In the Texas & New Orleans case, the Brotherhood filed a bill of complaint
alleging that the railroad had intimidated members of the Brotherhood and persuaded
and coerced them to withdraw from membership, and prayed that the railroad be

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restrained from such interference, influence, or coercion in violation of the statute.
In response to the carrier’s argument that if the statute authorized the decree
it was invalid under the Fifth Amendment, this Court ... stated (p. 570):
... Congress may facilitate the amicable settlement of disputes which
threaten the service of the necessary agencies of interstate transportation.
In shaping its legislation to this end, Congress was entitled to take
cognizance of actual conditions and to address itself to practicable
measures. The legality of collective action on the part of employees in
order to safeguard their proper interests is not to be disputed. It has long
been recognized that employees are entitled to organize for the purpose of
securing the redress of grievances and to promote agreements with
employers relating to rates of pay and conditions of work. Congress was
not required to ignore this right of the employees but could safeguard it and
seek to make their appropriate collective action an instrument of peace
rather than of strife. Such collective action would be a mockery if
representation were made futile by interferences with freedom of choice.
Thus the prohibition by Congress of interference with the selection of
representatives for the purpose of negotiation and conference between
employers and employees, instead of being an invasion of the constitutional
right of either, was based on the recognition of the rights of both.

The provisions of the National Labor Relations Act here involved ...
correspond in every manner material to the due process issue with Section 2, third,
of the Railway Labor Act.... We submit, therefore, that their validity under the Fifth
Amendment is established by the decision of this Court in that case.
{The employer} relies upon Adair v. United States, 208 U.S. 161, and
Coppage v. Kansas, 236 U.S. l. In the Texas & New Orleans case this Court
considered both these cases and expressly rejected them as inapplicable (281 U.S. at
570-571):
The {employers} invoke the principle declared in Adair v. United States,
208 U.S. 161, and Coppage v. Kansas, 236 U.S. 1, but these decisions are
inapplicable. The Railway Labor Act of 1926 does not interfere with the
normal exercise of the right of the carrier to select its employees or to
discharge them. The statute is not aimed at this right of the employers but
at the interference with the right of employees to have representatives of
their own choosing. As the carriers subject to the Act have no
constitutional right to interfere with the freedom of the employees in
making their selection, they cannot complain of the statute on constitutional
grounds.

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v

The Court thus held that the discharge of employees because of activity in the
Brotherhood was not a “normal exercise of the right” to hire or discharge employees
which is protected under the due process clause of the Fifth Amendment. Likewise
under the present Act, as the court below pointed out, there is no interference with the
normal right to hire or discharge, for inefficiency or any other reason satisfactory to
the employer, “provided he does not use the power of discharge as a weapon for
interfering with the right of employees to organize and bargain collectively.”
The Adair and Coppage cases need not be extensively analyzed here. It is
sufficient to say that both decisions were vigorously urged by the carrier in the Texas
& New Orleans case. The facts of the latter case are so similar to those of the case
at bar that the earlier cases, if inapplicable there, cannot be applicable here.
{THE COMMERCE CLAUSE ARGUMENT}
Subsections (1) and (3) of Section 8 of the Act, As Applied to Interstate
Enterprises, Bear a Reasonable and Direct Relation to the Protection of
Interstate Commerce from the Burden of Industrial Strife, and Consequently
Are a Valid Exercise of the Commerce Power
...
The basic validity of the Act presents two problems. First, does industrial
strife in interstate enterprises constitute a burden on interstate commerce which
Congress may remove or prevent? Second, does the present Act invoke appropriate
means for the mitigation or elimination of that burden?
INDUSTRIAL STRIFE IN INTERSTATE ENTERPRISES CONSTITUTES A
BURDEN ON INTERSTATE COMMERCE WHICH CONGRESS MAY
REMOVE OR PREVENT
That industrial disputes in an industry or business engaged in interstate
commerce may and very frequently do burden and interrupt the flow of such
commerce is a fact of common knowledge. A strike or lockout ordinarily means a
complete or partial suspension of business. That such an effect is so direct and
substantial as to be within the scope of Congressional power has been settled by
Texas & New Orleans R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, where
this Court in a unanimous opinion upheld Section 2, third of the Railway Labor Act
of 1926, which prohibited interference with the self-organization of employees and
their free choice of representatives for collective action. The Court said (p. 570):

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We entertain no doubt of the constitutional authority of Congress
to enact the prohibition. The power to regulate commerce is the power to
enact “all appropriate legislation” for its “protection and advancement”
(The Daniel Ball, 10 Wall. 557, 564); to adopt measures “to promote its
growth and insure its safety” (County of Mobile v. Kimball, 102 U.S. 691,
696, 697); to “foster, protect, control and restrain” (Second Employers
Liability Cases, 223 U.S. 1, 47). Exercising this authority, Congress may
facilitate the amicable settlement of disputes which threaten the service of
the necessary agencies of interstate transportation.

The Railway Labor Act was thus upheld by this Court “upon the express
ground that to facilitate the amicable settlement of disputes which threatened the
service of the necessary agencies of interstate transportation tended to prevent
interruptions of service and was therefore within the delegated power of regulation.”
Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 369. It is apparent that in
like fashion industrial strife threatening the operation of various other forms of
commercial intercourse among the States, such as motor and water transportation,
pipe lines, freight agency services, and communication by wireless, telephone,
telegraph or radio, would directly affect interstate commerce and hence fall within
Congressional power to mitigate or eliminate.
{The employer's} contention that the principle of the Texas & New Orleans
case is limited to instrumentalities of commerce {e.g., railroads} cannot stand. Such
instrumentalities are not the only form of interstate commerce, and cases under the
Sherman Act make clear that the Federal power extends to the elimination of labor
disputes burdening interstate commerce in other forms. It cannot be questioned,
therefore, that Congress acted within its constitutional power in adopting special
preventive means to avoid such burdens at least where, as Congress found in Section
1 of the Act, they are caused by industrial strife “(a) impairing the efficiency, safety,
or operation of the instrumentalities of commerce,” or “(b) occurring in the current
of commerce” ...
The existence of a power in Congress to protect interstate commerce from
these burdens is in no way inconsistent with the statement that “the relation of
employer and employee is a local relation.” Carter v. Carter Coal Co., 298 U.S. 238,
308. That statement cannot be understood as in conflict with the cases in which
Congress has subjected that relationship to valid regulation. Thus, on the very subject
matter here involved, although it be said that the right to join a labor organization is,
standing alone, a local matter, that right may be protected by Congress where its
protection will assist in maintaining the orderly conduct of interstate commerce, and
in furthering the peaceful settlement of disputes which threaten it. Texas & New
Orleans R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548....

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vii

We submit, therefore, that beyond any question industrial strife, at least in
enterprises in interstate or foreign commerce, constitutes a burden on that commerce
which Congress may remove or prevent. The remaining question is whether the
means employed here are appropriate to that end.
SUBSECTIONS (1) AND (3) OF SECTION 8 OF THE NATIONAL LABOR
RELATIONS ACT PROVIDE A REASONABLE MEANS OF ELIMINATING
THE BURDENS ON INTERSTATE COMMERCE ARISING OUT OF
INDUSTRIAL STRIFE
Industrial disputes are of two basic types. The first type arises out of
employer resistance to the attempt of employees to form and maintain labor
organizations, to obtain recognition of these organizations, to bargain collectively,
and the like — briefly, the struggles to organize and establish the procedure of
collective bargaining. The second type of dispute arises over the substantive terms
of the employment contract, such as rate of wages, hours of work, or other matters of
working conditions.
Subsections (1) and (3) of Section 8 of the Act, which are the only provisions
invoked against {the employer}, bear upon both types of industrial controversies, by
eliminating the causes of the first, and by affording a basis for the amicable and
permanent adjustment of the second through the procedure of voluntary negotiation
and collective bargaining conducted by freely chosen representatives of the
employees.
THE ACT ELIMINATES INDUSTRIAL STRIFE GROWING OUT OF THE
EFFORTS OF EMPLOYEES TO ORGANIZE AND BARGAIN COLLECTIVELY
BY REMOVING THE CAUSES OF SUCH STRIFE
... {The brief discusses instances in which employers' opposition to
unionization led to industrial strife.}

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THE ACT FACILITATES THE PREVENTION AND ADJUSTMENT OF
INDUSTRIAL STRIFE ARISING OUT OF DIFFERENCES OVER TERMS AND
CONDITIONS OF EMPLOYMENT
... {The brief discusses instances in which collective bargaining averted
industrial strife.}
The {Employer} Is Engaged in Interstate Commerce
{The brief discusses the employer's business, stressing that it brings huge
quantities of raw materials across state lines, processes them into finished products,
and ships those products across state lines.}
We believe that the Board would have been justified in concluding from the
facts with respect to {the employer}, without more, {that it is engaged in interstate
commerce and} that industrial strife in that enterprise would have the necessary effect
of burdening or injuring interstate commerce....
FROM THE BRIEF OF THE EMPLOYER
{The brief is signed by Earl F. Reed of Pittsburgh, PA; Charles Rosen of New
Orleans, LA; and W. D. Evans and John E. Laughlin, Jr.}
{THE DUE PROCESS ARGUMENT}
The Provisions of the National Labor Relations Act Which the National
Labor Relations Board Seeks to Apply to This Respondent Are Invalid and
Void Under the Fifth Amendment to the Constitution of the United States.
THE DECISIONS OF THIS COURT IN ADAIR V. UNITED STATES AND
COPPAGE V. KANSAS ARE DETERMINATIVE IN THE PRESENT CASE.
The real issue in the present case, from a factual standpoint, is the alleged
commission by the respondent of unfair labor practices in the discharge of union
employees. The portion of the statute involved is Section 8(3), which prohibits
discrimination in regard to hire or tenure of employment or of any term or condition
of employment to encourage or discourage membership in any labor organization.
We believe that this provision constitutes an arbitrary interference with the
respondent’s freedom of contract and therefore violates the due process requirements
of the Fifth Amendment to the Federal Constitution.
...

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ix

One of the foremost rights protected by the Constitution is the right to enter
or refrain from normal contractual relations. It is a necessary corollary that the law
must also respect the individual’s freedom to contract concerning the normal
incidents of his employment. Similarly, the employer enjoys a corresponding right
to conduct his business in an orderly fashion, free from unjustifiable restraints and
regimentation.
These rights have not been enforced in derogation of the Government’s power
to enact policea measures for the protection of the health, safety and well-being of the
citizens. Consequently, State laws regulating hours of labor, working conditions and
the payment of wages have been upheld, to protect the physical well-being of
employees and to prevent fraud and oppression. But once the Government has gone
beyond police measures and deliberately interfered with freedom of contract, to force
its temporary economic conceptions upon its citizens, the Court has scrutinized its
legislative efforts with the greatest of care. The present statute clearly falls into this
category. Its provisions relating to majority rule for purposes of collective bargaining
and to unfair labor practices are not designed to protect the property of employers or
the well-being of employees, but are rather intended to force a novel economic policy
into the relations of employees with each other and with their employers. Therefore,
it is proper to consider whether or not they infringe upon the freedom of the parties
to such an extent as to render them subject to attack.
In Adair v. United States, 208 U.S. 161 (1908), similar legislation of Congress
prohibiting discrimination by an employer against union members was invalidated,
because it conflicted with the principle of Allgeyer v. Louisiana, 165 U.S. 578, supra,
the Court stating:
“The right of a person to sell his labor upon such terms as he deems
proper is, in its essence, the same as the right of the purchaser of labor to
prescribe the conditions upon which he will accept such labor from the
person offering to sell it.”
“In all such particulars the employer and the employee have
equality of right, and any legislation that disturbs that equality is an
arbitrary interference with the liberty of contract which no government can
legally justify in a free land.” (pp. 174, 175)

a

{The legal name for the power of government to protect the health, safety, and well being
of citizens is the "police power." The word "police" derives from a Middle French word
meaning the conduct of public affairs; this word derived from the Latin word for state and
the Greek word for city, "polis." — ed.}

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Subsequently, in Coppage v. Kansas, 236 U.S. 1 (1914), the Court reexamined the
Adair case. Again the conclusion was reached that such legislation constituted an
unjustifiable interference with the freedom of contract, the Court declaring:
“Included in the right of personal liberty and the right of private
property — partaking of the nature of each — is the right to make
contracts for the acquisition of property. Chief among such contracts is that
of personal employment, by which labor and other services are exchanged
for money or other forms of property. If this right be struck down or
arbitrarily interfered with, there is a substantial impairment of liberty in the
long-established constitutional sense.”
...
“And can there be one rule of liberty for the labor organization and
its members, and a different and more restrictive rule for employers? We
think not; and since the relation of employer and employee is a voluntary
relation, as clearly as is that between members of a labor organization, the
employer has the same inherent right to prescribe the terms upon which he
will consent to the relationship, and to have them fairly understood and
expressed in advance.” (pp. 14, 20)

The provisions of the Labor Act which are in controversy in the present case
present a much greater menace to the employer’s freedom of contract than the
enactments which were denied validity in the Coppage and Adair cases. In the Adair
case the Court had before it a Federal statute prescribing, as a criminal offense, the
discharge of an employee because of union activities, while the Kansas statute, which
was involved in the Coppage case, merely prohibited employment contracts which
required the employee to renounce his membership in a labor organization. The
National Labor Relations Act not only prohibits the discharge of employees because
of union activities, but it also pretends to give the petitioner authority to require the
employer to restore employment. The dangerous implications of such procedure ...
are apparent. The employer may be compelled to continue a relationship which is not
of his own seeking, and his discretion in hiring and retaining employees is completely
overridden.
Thus in Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U.S.
522 (1923), a Kansas statute creating an industrial court with power to hear disputes
between employer and employees over wages and other terms of employment was
involved. The statute was confined in operation to employers engaged in the business
of manufacturing food and certain other more or less essential industries, the
determination of the public character of the employer’s business being vested in the
industrial court. Th{is} Court said of the statute:

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“It curtails the right of the employer on the one hand, and of the
employee on the other, to contract about his affairs. This is part of the
liberty of the individual protected by the guaranty of the due process clause
of the Fourteenth Amendment. Meyer v. Nebraska, 262 U.S. 390 (1923).
While there is no such thing as absolute freedom of contract, and it is
subject to a variety of restraints, they must not be arbitrary or unreasonable.
Freedom is the general rule, and restraint the exception.” (p. 534)
...

THE PETITIONER’S ACTION CONSTITUTES AN UNLAWFUL
INTERFERENCE WITH THE NORMAL RIGHT OF THE RESPONDENT TO
MANAGE ITS OWN BUSINESS.
The text of this brief might well be taken from the paragraph of the majority
opinion in Railroad Retirement Board v. The Alton Railroad Co., et al., 295 U.S. 330
(1935),b where, in speaking of the Texas & New Orleans Railroad decision, it was
said:
“The railroad labor act was upheld by this court upon the express
ground that to facilitate the amicable settlement of disputes which
threatened the service of the necessary agencies of interstate transportation
tended to prevent interruptions of service and was therefore within the
delegated power of regulation. It was pointed out that the act did not
interfere with the normal right of the carrier to select its employees or
discharge them. Texas & New Orleans R. Co. v. Brotherhood of Railway
& S.S. Clerks, 281 U.S. 548, 570, 571.” (Italics supplied) (p. 369)

Apply this to the instant case and the results are convincing that the decision
of the Labor Board cannot be sustained {for the National Labor Relations Act is a
much deeper intrusion on an employer's rights than is the Railway Labor Act}. In
questions of employer-employee relationships, the law has always been hesitant to
interfere. Courts of equity from time immemorial have refused to compel specific
performance of an employment contract as against either the employer or the
b

{The facts of the case are that Congress established a compulsory retirement and pension
program for all carriers subject to the Interstate Commerce Act. Even though the Supreme
Court had long approved of federal regulation of railroads, the Court invalidated this statute.
Justice Roberts for the majority concluded that pensions were not related to interstate
transportation. In response to the argument that pensions improve morale and make workers
more efficient, he replied that, if this argument were accepted, there would be no limit to the
field of such regulation. The statute was aimed at the social welfare of the worker, which
was a local matter. — ed.}

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employee.c From the standpoint of the employee, the law has recognized that he
should not be forced into a relationship which may be distasteful to him. From the
standpoint of the employer, the courts have recognized that the right to judge the
capabilities of his employees is absolutely essential to the proper management of a
business. A variety of reasons may lead an employer to discharge an employee. It
may be a question of efficiency, of application, or discipline. On other occasions the
employer may be required to take action to protect the morale of his other employees,
to prevent dissatisfaction of other workers, or to put an end to suspected theft,
sabotage or other undesirable conditions. In such cases, it may be preferable, for
obvious reasons of policy, to withhold disclosure of the cause of the discharge. In any
case the question of judgment is a delicate one which the law has always seen fit to
rest in the personal discretion of the employer. If it is proper for the law to deprive
the employer of his right to judgment and to rest the function in a board of this
character, and then to compel the employer to restore the employee who has been
discharged, there is an end to efficient management.
{THE COMMERCE CLAUSE ARGUMENTd}
The National Labor Relations Act Is a Labor Act and Not a True Regulation
of Interstate Commerce.
Under this aspect of the case it is necessary to make an inquiry into the objects
of the National Labor Relations Act, to determine whether it represents an honest
endeavor to regulate commerce among the several states, or an usurpation of the
reserved powers of the separate states to control questions of internal policy. As a
consequence, the question resolves itself into two subsidiary questions, the first
dealing with the scope of Congressional power over interstate commerce, and the
second with the nature and objects of the statute involved.

c

{Specific performance is a remedy for breach of contract in which the court directs the
defaulting party to do what has been promised. (The alternative remedy is to pay damages.)
If you sign a contract to buy a house and, on the closing date, the seller refuses to sign the
deed, you may ask the court for an order of specific performance, requiring the seller to sign
the deed. Courts generally will not order specific performance of employment contracts. —
ed.}
d

{Some of the employer's arguments on the Commerce Clause have been reordered. —
ed.}

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THE POWER OF THE CONGRESS OF THE UNITED STATES UNDER THE
INTERSTATE COMMERCE CLAUSE OF THE CONSTITUTION IS LIMITED
TO THE BONA FIDE REGULATION OF
INTERSTATE COMMERCE.
The problem of measuring the constitutional validity of the National Labor
Relations Act, in its application to the industrial relations of the {employer}, is
greatly simplified if the inquiry begins with the Constitution itself and pays true heed
to the literal requirements of the document....
...
The Constitution provides in Section 8 of Article I, “The Congress shall have
power ... to regulate Commerce with Foreign nations and among the several States,
and with the Indian Tribes....”
The draftsmen of the Constitution foresaw that if economic and political
intercourse between the States was to be fostered, and the welfare of the nation
protected, it would be necessary to curb the selfish interests of the individual States
where they might easily conflict with the interests of the federation as a whole.
Therefore, jurisdiction over interstate commerce — a fertile field for controversy
among individual States — was granted to the Federal Government. Its jurisdiction
involves the power to regulate, restrict and protect interstate commerce, but it does
not include, and was not designed to include, the right to use such jurisdiction as a
pretext to interfere with the local sovereignty of the States. If this one premise is
carefully borne in mind, the apparent confusion which sometimes arises as to the
limitations on the powers of each of the concurrent governments and which pervades
the {Labor Board's} argument is to a large extent removed.
Breadth and meaning were given to the Commerce Clause in Gibbons v.
Ogden, 9 Wheat. 1 (1824). It is apparent from the language of the case, considered
as a whole, that Chief Justice Marshall, although a firm believer in a strong
centralized government, had no thought but that the Commerce Clause meant just
what it says, that is, that Congress may regulate “commerce among the States.” Even
under the most careful scrutiny, the opinion proceeds solely on the principle that
Congress has been accorded power over commerce, that is, the movement of persons
and commodities among the several States, and not over farming or mining or
manufacturing, — things which may precede or follow, but are not commerce.
The true meaning of the Commerce Clause, as exemplified by this decision,
has sometimes been lost sight of in recent years. The argument is often made, as in
the {Labor Board's} brief, that the nation has come to a new conception of commerce,

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xiv

that business has outgrown the State and has become a matter of national concern,
and that our purely internal political, economic{} and social life is so intimately
connected with our national commerce that it has been swallowed up in the latter’s
importance. On this hypothesis, it is not difficult to argue that the wages of a
newsboy, the prices of a grocer and the advertising policies of a local dentist in some
degree affect incomes and business. The impact may be slight, but in the end, it may
be contended, it either encourages or discourages commerce among the States.
Despite this confusion of issues, the Constitution, in the last analysis, still
requires the separation of State and Federal power. The decision of this Court in A.
L. A. Schechter Poultry Corporation, et al., v. United States, 295 U.S. 495 (1935), is
a mandate that the literal requirements of the Constitution must not be ignored.e It
may be true that purely internal affairs do indirectly affect interstate commerce, just
as interstate commerce bears indirectly upon internal affairs; but while this might be
urged as a reason for altering our Constitutional form of government, it is not an
excuse for attempting to obliterate the Constitutional distinction between commerce
and that which is not.
...

e

{The National Industrial Recovery Act of 1933 was one of the major pillars of the New
Deal. Designed to revive the economy, the Recovery Act envisioned that employers would
form trade associations which would write codes that regulated unfair trade practices (i.e.,
eliminated cut-throat price competition among firms), set minimum wages and maximum
hours, and required collective bargaining if the workers desired it. The Act authorized the
president, upon application by a trade association, to promulgate its code, after which
violating it was a misdemeanor.
{In the Schechter case, a wholesale poultry market in Brooklyn was found guilty of
violating the wage and hour provisions of the Code of Fair Competition for the Live Poultry
Industry of Metropolitan New York. Ninety-six percent of the poultry marketed in this area
came from other states. Schechter purchased poultry from commission men in New York
City, and the poultry was trucked to Schechter's slaughterhouses in Brooklyn. Schechter
sold only to local dealers.
{Schechter argued he was not engaged in interstate commerce. The government
replied that he was part of the "stream of commerce," or at least that his operations "affected
commerce." The Supreme Court rejected the government's arguments and held the Recovery
Act unconstitutional . Schechter was not in the stream of commerce because interstate
transactions ended when the poultry reached the Brooklyn slaughterhouses; the slaughtering
and subsequent sales were local transactions. The wages and hours of Schechter's employees
had no direct relation to interstate commerce; they may have affected commerce indirectly,
but they did not affect it directly. — ed.}

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These decisions provide a sound basis for discussing the constitutionality of
the National Labor Relations Act, because they enable us to perceive the real issue.
The line between the divergent jurisdictions is defined by our political charter; it must
be obeyed and neither the state nor the federal government may crowd the other from
its allotted territory by an appeal to a broader construction than the instrument will
bear. The federal government may regulate and protect the streams of commerce and
the beds through which they run, but it may not say that all activities are commerce,
or concern commerce, and thereby hope to intrude in matters which are traditionally
the concern of the separate states.
THE FACT THAT THE {EMPLOYER} RECEIVES AND TRANSMITS RAW
MATERIALS AND PRODUCTS IN INTERSTATE COMMERCE DOES NOT
SUBJECT ITS INDUSTRIAL RELATIONS AND ACTIVITIES TO
CONGRESSIONAL LEGISLATION.
It is admitted that raw materials are brought from several States to the
{employer’s} plant at Aliquippa. We are equally ready to concede that a large
percentage of its manufactured products has found its way to States other than the
State of Pennsylvania. But we cannot yield to the proposition that these factors
suffice to subject the production activities of the (employer} to the regulation of
Congress.
...
Arkadelphia Milling Co. v. St. Louis Southwestern Railways Co., 249 U.S.
134 (1918) arose out of actions by certain shippers and railway companies to enjoin
the enforcement of intrastate railways rates fixed by a state railway commission. The
facts indicated, in one of the cases, that the shipper was engaged in transporting logs
from its lumber operation in the state to its mills, where the logs were processed and
manufactured into staves and other products and held in storage to be sold and
shipped in accordance with the demands of the market. Almost 95% of the finished
articles were eventually delivered to points outside of the state. The court found that
the interstate movement did not begin until the sale and delivery of the finished
products, declaring:
“It is not merely that there was no continuous movement from the
forest to the points without the State, but that when the rough material left
the woods it was not intended that it should be transported out of the State,
or elsewhere beyond the mill, until it had been subjected to a manufacturing
process that materially changed its character, utility, and value.” (p. 151)

Similarly in Oliver Iron Co. v. Lord, 262 U.S. 172 (1923), {the Court
declared} that mining “like manufacturing, is a local business” ....

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... {L}ocal activities such as mining, manufacturing, warehousing, processing
and the like are not withdrawn from the jurisdiction of the states {i.e., are not
interstate commerce} because of subsequent or precedent movements in interstate
commerce. The first of these decisions is Kidd v. Pearson, 128 U.S. 1 (1888). The
argument was advanced that the state had transgressed beyond its proper jurisdiction
in prohibiting the manufacture of intoxicants, because the statute restricted the
movement of interstate commerce. In pointing out the fundamental distinction
between local activities and commerce, the court declared:
“No distinction is more popular to the common mind, or more
clearly expressed in economic and political literature, than that between
manufactures and commerce. Manufacture is transformation — the
fashioning of raw materials into a change of form for use. The functions of
commerce are different.” (p. 20)
...
“The reach and consequences of the contention repel its acceptance.
If the possibility, or, indeed, certainty of exportation of a product or article
from a State determines it to be in interstate commerce before the
commencement of its movement from the State, it would seem to follow
that {it} is in such commerce from the instant of its growth or production,
and in the case of {minerals}, as they lie in the ground. The result would
be curious. It would nationalize all industries, it would nationalize and
withdraw from state jurisdiction and deliver to federal commercial control
the fruits of California and the South, the wheat of the West and its meats,
the cotton of the South, the shoes of Massachusetts and the woolen
industries of other States, at the very inception of their production or
growth, that is, the fruits unpicked, the cotton and wheat ungathered, hides
and flesh of cattle yet ‘on the hoof,’ wool yet unshorn, and coal yet
unmined, because they are in varying percentages destined for and surely
to be exported to States other than those of their production.” (Italics
supplied). (p. 259)

{THE FACT THAT THE EMPLOYER'S BUSINESS HAS AN EFFECT ON
INTERSTATE COMMERCE DOES NOT SUBJECT ITS ACTIVITIES TO
CONGRESSIONAL LEGISLATION.}
It was this danger of the destruction of the powers of the States which seems
to have evoked the following statement in the Schechter case:

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“But where the effect of intrastate transactions upon interstate
commerce is merely indirect, such transactions remain within the domain
of state power. If the Commerce Clause were construed to reach all
enterprises and transactions which could be said to have an indirect effect
upon interstate commerce, the federal authority would embrace practically
all the activities of the people, and the authority of the state over its
domestic concerns would exist only by sufferance of the federal
government. Indeed, on such a theory, even the development of the state’s
commercial facilities would be subject to federal control.” (Italics
supplied) (p. 546)

... Congress [unsuccessfully sought to} to justify the Agricultural Adjustment
Act {on the ground of effects on the national economy}. This Court was urged to
find that the decrease in farm prices, incident to the depression, had seriously affected
the national income and therefore the general welfare. In other words, it was
contended that farming had become a national problem, just as it is contended in the
instant case, that the {employer’s} relations with its employees have been converted
into a matter of national concern because of the size of the {employer’s} operations
and the magnitude of the steel industry in general. The tremendous mass of data and
opinion received in evidence by the {Labor} Board to show the past history of the
steel industry and its industrial relations had this object in view: to convince this
Court that the need of organization in the steel industry is a matter of national
importance. The majority opinion in United States v. Butler, et al., 297 U.S. 1
(1936), makes short shrift of this argument in the simple statement:
“It does not help to declare that local conditions throughout the
nation have created a situation of national concern; for this is but to say
that whenever there is a widespread similarity of local conditions, Congress
may ignore constitutional limitations upon its own powers and usurp those
reserved to the states.” (pp. 74-75)

... There is no better way to demonstrate our conclusions than by a reference
to the opinion of Chief Justice Hughes in the Schechter case:
“The argument of the government proves too much. If the federal
government may determine the wages and hours of employees in the
internal commerce of a state, because of their relation to cost and prices and
their indirect effect upon interstate commerce, it would seem that a similar
control might be exerted over other elements of cost, also affecting prices,
such as the number of employees, rents, advertising, methods of doing
business, etc. All the processes of production and distribution that enter
into cost could likewise be controlled. If the cost of doing an intrastate
business is in itself the permitted object of federal control, the extent of the
regulation of cost would be a question of discretion and not of power.” (p.
549)

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THE EMPLOYER'S RELATIONS AND TRANSACTIONS WITH ITS PRODUCTION
EMPLOYEES ARE NOT IN OR CONNECTED WITH INTERSTATE COMMERCE.

The distinction which we have emphasized between the local activities of a
business and its subsequent or precedent participation in interstate commerce, has
been maintained in the field of labor relations.
The labor provisions of the Bituminous Coal Conservation Act were almost
identical with the provisions of the National Labor Relations Act. It, too, was
prefaced with a legislative declaration of policy that the right of mine workers to
organize and bargain collectively for wages, hours of labor and conditions of
employment should be guaranteed in order to prevent constant wage cutting and
disparage labor costs detrimental to fair interstate competition and in order to avoid
obstructions to interstate commerce that occur in industrial disputes over labor
relations at the mine. The Bituminous Coal Conservation Act likewise provided for
the creation of a Labor Board to administer the labor provisions of the Code which
was imposed by the statute on the producers of coal. Among the required provisions
of the Code was a clause that “employees shall have the right to organize and bargain
collectively through representatives of their own choosing, and shall be free from
interference, restraint or coercion of employers, or their agents, in the designation of
such representatives or in self-organization or in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection; and no employee
and no one seeking employment shall be required, as a condition of employment, to
join any company union.”
Other provisions {of the Coal Act} assured the right of peaceable assemblage
to workers and authorized the Labor Board to determine whether or not an
organization of employees was controlled or dominated by an employer and to certify
the freely chosen representatives of the employees. Additional labor provisions
provided for the negotiation of agreements covering hours of labor and wages by the
chosen representatives of the employers and employees.
The majority opinion in Carter v. Coal Company, et al., 298 U.S. 238 (1936),
gave careful consideration to these provisions and found the conclusion inescapable
that labor relations are not in or a part of interstate commerce and therefore cannot
be subject to regulation by Congress. In this connection, it was said:
“One who produces or manufactures a commodity, subsequently
sold and shipped by him in interstate commerce, whether such sale and
shipment were originally intended or not, has engaged in two distinct and
separate activities. So far as he produces or manufactures a commodity, his
business is purely local. So far as he sells and ships, or contracts to sell and
ship, the commodity to customers in another state, he engages in interstate

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commerce. In respect of the former, he is subject only to regulation by the
state; in respect of the latter, to regulation only by the federal government.
Utah Power & L. Go. v. Pfost, 286 U.S. 165, 182. Production is not
commerce, but a step in preparation for commerce. Chassaniol v.
Greenwood, 291 U.S. 584, 587.
We have seen that the word ‘commerce’ is the equivalent of the
phrase ‘intercourse for the purposes of trade.’ Plainly, the incidents leading
up to and culminating in the mining of coal do not constitute such
intercourse. The employment of men, the fixing of their wages, hours of
labor and working conditions, the bargaining in respect of these things —
whether carried on separately or collectively — each and all constitute
intercourse for the purposes of production, not of trade. The latter is a
thing apart from the relation of employer and employee, which in all
producing occupations is purely local in character. Extraction of coal from
the mine is the aim and the completed result of local activities. Commerce
in the coal mine is not brought into being by force of these activities, but by
negotiations, agreements, and circumstances entirely apart from production.
Mining brings the subject matter of commerce into existence. Commerce
disposes of it.
A consideration of the foregoing, and of many cases which might
be added to those already cited, renders inescapable the conclusion that the
effect of the labor provisions of the act, including those in respect of
minimum wages, wage agreements, collective bargaining, and the Labor
Board and its powers, primarily falls upon production and not upon
commerce; and confirms the further resulting conclusion that production is
a purely local activity. It follows that none of these essential antecedents
of production constitutes a transaction in or forms any part of interstate
commerce. Schechter Corp. v. United States, supra, p. 542 et seq.
Everything which moves in interstate commerce has had a local origin.
Without local production somewhere, interstate commerce, as now carried
on, would practically disappear. Nevertheless, the local character of
mining, of manufacturing and of crop growing is a fact, and remains a fact,
whatever may be done with the products.” (Italics supplied) (pp. 303-304)
...

The case of Texas and New Orleans Railroad Co. v. Brotherhood of Railway
and Steamship Clerks, et al., 281 U.S. 548 (1930), furnishes no precedent for the
National Labor Relations Act. This case arose under the Railroad Labor Act of 1926,
which set up machinery for the voluntary adjustment and arbitration of labor disputes
before boards of adjustment and boards of arbitration. The plaintiff union had a
controversy with the Railroad before a board of adjustment; pending the decision, the
defendant railroad created a rival union, by indulging in alleged coercive and
oppressive tactics. The union brought injunction proceedings under the section of the

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Act which declared that “representatives, for the purposes this Act, shall be
designated by the respective parties ... without interference, influence or coercion....”
The District Court expressly held that the statute was constitutional and granted an
injunction. The Circuit Court of Appeals affirmed the District Court, stating:
“We think that under the power to regulate interstate commerce it
is competent for Congress to make provision for the settlement of disputes
between interstate carriers and their employees with reference to rates of
wages, rules, and working conditions, to the end of preventing such disputes
resulting in the interruption or stopping of the movement in interstate
commerce of freight or passengers.” (33 F.(2d) 13, 16).

This Court accepted the argument of the Circuit Court and sustained the Act
as a regulation of commerce with the statement, “Congress may facilitate the
amicable settlement of disputes which threaten the service of the necessary agents of
interstate transportation.”
We submit that the distinction between the present case and ... the Texas &
New Orleans Railroad Company case is implicit in the opinion of this Court. The
transportation of persons and commodities between states is, of course, the very
essence of interstate commerce. As a consequence, congressional regulation of rates,
transportation facilities, equipment, personnel and related matters has been uniformly
sustained. It would be indeed difficult to find a more comprehensive and thorough
program of legislation than that developed in the Halls of Congress to govern the
operations of carriers and communication systems....
Even assuming that participation by an employer in interstate commerce might
subject certain of his activities to congressional regulation, nevertheless the
relationship between the employer and his employees is purely a local matter.
Although an employee may be employed in indirectly assisting the movement of
interstate commerce, his relationship to his employer is not a part of commerce. It is
a status existing wholly within the State, whose incidents, such as wages, hours of
labor and the like, are purely domestic in character. It may be true that congressional
regulation of the local incidents of employment in cases involving interstate carriers
{e.g., railroads} has been sustained, where the Court has found the true object of
Congress to be the protection of interstate commerce. But there is no precedent for
interference where the real purpose of the regulation is deliberately to interfere in
matters which are not the concern of the Federal Government. If the proposition
should be accepted that the most insignificant participation in interstate commerce
subjects all of the activities and all of the relationships of an employer to
congressional measures, then there would be nothing to prevent congressional entry
into the field of fire and building regulations, safety requirements, and a thousand
similar measures, local in character. Yet no one would argue that regulations

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governing the erection and operation of factories, the hours and wages of employees,
and the conditions of safe employment should be functions of the central government.

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COMMENTf
CURRENT AND COUNTER-CURRENT

Our study of labor law before the enactment of the
National Labor Relations Act may have suggested a
pattern: Each time workers developed a new tactic, the
courts outlawed it. The strike was held to be a criminal
conspiracy in the Philadelphia Cordwainers case.
The
picket line was enjoined in Vegelahn v. Guntner.
Secondary boycotts were held a violation of anti-trust
law in the Danbury Hatters case.
Another pattern may also be identified. It was a
counter-current, one that validated the efforts of
workers to organize themselves and bargain collectively.
This counter-current flowed primarily in legislative
channels, though it also moved in judicial channels
(chiefly in dissenting opinions).
Eventually, the
counter-current predominated.
The first tributary feeding the counter-current was
Commonwealth v. Hunt, which approved the strike. Only a
few courts followed the lead of Massachusetts. However,
state legislatures undertook the task. In the last years
of the Nineteenth Century and the first years of the
Twentieth Century, several state legislatures enacted
statutes providing that labor unions were not criminal
conspiracies.
A major tributary was Justice Holmes's dissent in
Vegelahn v. Guntner, which argued that peaceful picketing
is justified by the workers' self-interest.
Holmes's
opinion played much the same role as Chief Justice Shaw's
opinion in Hunt: as Shaw provided the conceptual basis on
which unions would later be exonerated from the charge of
criminal conspiracy, so Holmes provided the theoretical
basis on which unions would later be exonerated from the
charge of civil conspiracy.
Next came the Clayton Act. It may be argued that
Congress intended the act to reverse the holding in the

f

Citations to pages in this comment refer to the lower-case
Roman numerals at the top of the page (not to the Arabic
numerals at the bottom of the page) of Jones & Laughlin.

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252

xxiii

Danbury Hatters case that anti-trust law applies to
unions, though it must be admitted that the legislative
history of the Clayton Act looks in both directions.
Nonetheless, we do find evidence of legislative support
for collective bargaining.
And Justice Brandeis's
dissent in Duplex v. Deering is evidence of judicial
support for the same goal.
Then the counter-current became stronger.
Both
Congress and state legislatures attempted to prohibit
employers from discriminating against union members and
to outlaw the yellow dog contract.
If yellow dog
contracts were illegal, courts could no longer grant
injunctions against union organizing on the theory of
inducement to breach of contract. The Supreme Court held
these statutes were unconstitutional in Adair and
Coppage.
Yet once again we find evidence of judicial
support for the aims of workers in the dissenting
opinions of Justices Holmes, McKenna, and Day; and the
legislative support for this end, which produced clearly
pro-labor statutes, was strong.
Finally, the Norris-LaGuardia Act limited the
jurisdiction of federal courts to issue injunctions in
labor disputes. Several states passed "Little NorrisLaGuardia" acts as well.
An interesting aspect of the counter-current is that
it was composed of specific reactions to specific
problems. The Hunt case reacted to earlier cases that
held unions to be criminal conspiracies, and later state
legislatures enacted laws saying that unions were not
criminal conspiracies. Sections 6 and 20 of the Clayton
Act were a reaction to the Danbury Hatters case, which
held that unions are covered by federal anti-trust law.
Federal and state statutes prohibiting employers from
discriminating because of union membership were a
reaction to unsavory behavior by employers. Federal and
state statutes barring the yellow dog contract were a
reaction to injunctions that prohibited organizing as a
form of inducement to breach of contract.
And the
Norris-LaGuardia Act was a specific reaction to the
specific problem of injunctions issued by federal judges
who were antipathetic to labor unions.
The counter-current, then, was a piecemeal approach
to labor policy. Except for the dissenting opinions of

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NLRB v. Jones & Laughlin and Associated Press v. NLRB

Holmes and Brandeis, which formulated the broad principle
of labor self-interest, it appears that, through 1932,
few persons saw a need for a comprehensive solution to
the labor problem.
The administration of Franklin Roosevelt, which took
office in 1933, brought a wider vision to government.
Its primary goal was to end the Depression. Whereas the
Hoover administration believed that recovery would come
naturally, and that all that was necessary were band-aid
programs like welfare — more specific reactions to
specific problems — Roosevelt's "brain trust" was
convinced that systematic intervention by government was
necessary. The National Industrial Recovery Act created
a new agency, the National Recovery Administration, the
purpose of which was to stimulate production and
consumption.
The Agricultural Adjustment Act, which
created another new agency, the Agricultural Adjustment
Administration, had a similar purpose. Underpinning the
creation of these and other agencies was the theory that
the government could — and, given the crisis of the
times, should — formulate and implement policies that
would lead the country out of the Depression. Roosevelt,
then, envisioned an active government, one that
identified important goals and established institutions
to achieve those goals.
Those institutions were administrative agencies,
which were a developing phenomenon. It is doubtful that
the old methods of government would have worked. A law
requiring higher production or prohibiting lay offs would
have had little effect. What was needed was the ability
to take account of the multiplicity of reality in a
nation of 3.5 million square miles and 125 million living
souls. But Congress simply could not make a law for the
shoe industry, another law for the steel industry,
another for potato farms, another for cotton growers, and
so on. An administrative agency, however, with power to
make regulations that were binding on the public at large
— that is, in effect, the power to make laws — could deal
with the myriad of issues that arise as a policy is
applied in the world.
The great innovation of the
Roosevelt administration was that Congress set the
overall policies, and the administrative agencies applied
them. Congress created the skeleton, and the agencies
put the flesh on it.

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xxv

This notion of government informed the National
Labor Relations Act of 1935 (NLRA) (often called the
Wagner Act after its chief sponsor in the Senate). The
student is advised to read the act, which is in Part IV
of the readings.
In brief, the NLRA guaranteed to
workers the right to engage in concerted activity, that
is, to form, join, and assist labor unions, and to
bargain collectively through agents of their own
choosing. Any state laws to the contrary were preempted.
To protect against employers' infringing on these rights,
the act created a number of unfair labor practices. It
became illegal for an employer to discriminate against
union members or to refuse to bargain with a union that
represented a majority of workers. An employer who was
accused of committing an unfair labor practice would be
tried before the National Labor Relations Board, which
had power to order a guilty employer to cease the unfair
labor practice and to compensate workers for monetary
losses caused by the illegal behavior. Decisions of the
Labor Board could be reviewed in the courts.
It was
anticipated that problems would arise over bargaining
agents. Do the workers truly want to be represented by
a union, or do they prefer to bargain individually with
their employer? If they want a union, do they prefer
union A or union B? The Labor Board was empowered to
investigate
and
decide
questions
concerning
representation as well.
NLRB v. JONES & LAUGHLIN

Employers were unhappy with the Labor Act.
It
represented a significant abridgment of the freedom they
had formerly enjoyed. The act also gave workers, through
unions, a degree of power.
Accordingly, employers
immediately challenged the constitutionality of the act.
The case that reached the Supreme Court was Jones &
Laughlin, and it appeared that employers had a good
chance of winning it. As the student knows from reading
Adair v. U.S. and Coppage v. Kansas, Supreme Court cases
had limited the power of government, both federal and
state, to regulate labor relations. The cases followed
two lines:
those prohibiting both state and federal
governments from interfering with the liberty of
contract, and those prohibiting the federal government
from legislating regarding local, as opposed to
interstate, commerce.

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xxvi

LIBERTY OF CONTRACT

To review briefly, in Lochner v. N.Y. a state
prescribed maximum daily hours for bakery workers. The
Supreme Court held the statute was unconstitutional under
the Fourteenth Amendment because it interfered with
liberty of contract and was not a reasonable exercise of
the state's police power. In Adair v. U.S. Congress made
it a crime for a railroad to discriminate against an
employee because of membership in a labor union.
The
Supreme Court held this law violated the Fifth Amendment
by infringing on liberty of contract.
In Coppage v.
Kansas a state outlawed the yellow dog contract.
The
Supreme Court struck down this law as a violation of
liberty of contract.
The Labor Board's Argument
Lochner, Adair, and
Coppage were a major problem for the Labor Board as it
tried to vindicate the Labor Act. The solution to the
problem lay in a case decided in 1935, Texas & New
Orleans RR. Co. v. Brotherhood of Ry and SS Clerks, in
which the Supreme Court upheld the constitutionality of
the Railway Labor Act. Without saying so explicitly, the
Board argued that Texas & New Orleans RR. had overruled
the older cases.g Here is how the Board presented these
arguments.
The Board quoted a passage from Texas & New Orleans
RR. (p. ii) in which the Court said that
•
•

g

workers' collective action was not only a
lawful act, but also a right that Congress
could protect from infringement;
protection of this right was not an invasion of
the employer's rights, but a recognition of the
rights of employers and employees; and

Perhaps deeming it unwise to say expressly to the Supreme
Court that it had overruled itself, the Board's brief subtly
implied as much by stating, "The Adair and Coppage cases need
not be extensively analyzed here. It is sufficient to say
that both decisions were vigorously urged by the carrier in
the Texas & New Orleans case. The facts of the latter case
are so similar to those of the case at bar that the earlier
cases, if inapplicable there, cannot be applicable here" (p.
iii).

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•

xxvii

Congress could seek to make collective
bargaining an instrument for achieving labor
peace.

The Board's brief argued that this rationale applied to
the case at bar: the brief implied that if workers on
railroads had a right to collective action, and if
Congress could protect this right, the same was true for
other workers; and that if Congress could seek to promote
collective bargaining as an instrument of labor peace on
the railroads, Congress could use the same instrument to
promote labor peace for other industries.
It remained for the Board to deal with Adair and
Coppage. Fortunately for the Board, the Court itself had
dealt with those cases in Texas & New Orleans RR. (pp.
ii-iii). In that case, the Court stated that section 2,
third of the Railway Labor Act
does not interfere with the normal exercise of
the right of the carrier to select its
employees or to discharge them. The statute is
not aimed at this right of the employers but at
the interference with the right of employees to
have representatives of their own choosing. ...
{Employers} have no constitutional right to
interfere with the freedom of the employees in
making their selection....
The Board put a touch of gloss on this statement. The
employer in Texas & New Orleans RR. had been accused (as
had the employer in Jones & Laughlin) of discharging
workers because of their union activity.
The Board
wrote, "The Court thus held that the discharge of
employees because of activity in the {union} was not a
'normal exercise of the right' to hire or discharge
employees which is protected under the due process clause
of the Fifth Amendment."
The Board implied that the reasoning of Texas & New
Orleans RR. was this: Adair and Coppage established that
employers had a constitutional right to hire and fire
workers. No right is absolute, however; one right stops
where another begins. The employer's right to hire and
fire does not preempt the workers' right to collective
action.
When protecting the workers' right from
interference, Congress did not infringe on the employer's

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NLRB v. Jones & Laughlin and Associated Press v. NLRB

right because that right never included interfering with
workers' rights.
The lynchpin of the Board's argument was the
workers' right to collective action; indeed, the Board's
argument was plausible only if such a right existed. If
the right did exist, the employer's and the workers'
rights overlapped one another and needed to be
accommodated.
Thus, the Board took the position that
Texas & New Orleans RR. had overruled Adair and Coppage.
The Board argued that earlier cases may have held that
Congress could not restrict an employer's right to hire
and fire, but Texas & New Orleans RR. held the opposite.
If the Board's argument were correct, it was no longer
unconstitutional for the government to prohibit an
employer from discharging a worker for joining a union.
The Employer's Argument
The employer's brief
reminded the Court of doctrine as it existed before Texas
& New Orleans RR.: The Constitution safeguards liberty
of contract, and the government may not regulate wages,
hours of work, or other terms of employment except to
safeguard the health or safety of workers or to prevent
fraud of oppression. In support of this doctrine, the
employer cited cases like Adair and Coppage.
Then the brief argued that the Labor Act infringed
on liberty of contract even more than the Erdman Act had
in Adair.
The Erdman Act prohibited discharge of a
worker for joining a union; the Labor Act not only
prohibited such a discharge, but also required the
employer to reinstate the worker.
If the statute in
Adair was unconstitutional, the Labor Act was even more
so.
This argument assumed the continuing vitality of
Lochner and its ilk, and ignored the Board's contention
that Texas & New Orleans RR. had overruled those cases.
But the employer's brief could not ignore Texas & New
Orleans RR. altogether, and the employer's next argument
addressed this case.
At this point the employer
confronted a major obstacle:
The Board had a strong
argument that Texas & New Orleans RR. had overruled
Lochner, etc. How could the employer get around Texas &
New Orleans RR.? As the student learned in the comment
following the Philadelphia Cordwainers Case, one way to
handle an adverse precedent is to argue that it was

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xxix

wrongly decided.
If the Board had been reluctant to
argue that Texas & New Orleans RR. had overruled older
cases like Lochner and Adair, the employer must have been
even more reluctant to argue that the recent case of
Texas & New Orleans RR. was wrongly decided. And yet
this is exactly what the employer did; and like the
Board, the employer did it subtly.
The employer's
strategy was to emphasize the merit of the older cases.
By implication, if they were correct, Texas & New Orleans
RR. was wrong.
Courts, argued the employer, had always been
reluctant to require specific performance of employment
contracts or otherwise to interfere in the relationship
of employer and employee. For a variety of reasons, this
reluctance remains good policy. The government should
not get involved in employment.
By depriving the
employer of the right to make judgments about workers,
the Labor Act would put an end to efficient management of
business. This argument was essentially a justification
for the decisions in Lochner and Adair, an argument that
they should not be overruled.
Of course, if they
remained good law, the Labor Act was unconstitutional.
INTERSTATE COMMERCE

The Supreme Court had a long and clear line of
precedent on the difference between interstate and local
commerce, and some of the precedents were recent.
In
Schechter Poultry v. U.S., the National Industrial
Recovery Act — a pillar of the Roosevelt Administration's
effort to pull the nation out of the Depression — was
invalidated on the ground that the statute regulated
local, not interstate commerce. The Schechter Poultry
Company was located in New York City. Even though 96% of
the poultry in New York City came from across state
lines, the Court held that slaughtering was a local
matter. Any effect that slaughtering had on interstate
commerce was indirect and beyond the reach of the federal
government.h
In U.S. v. Butler, the Agricultural
h

The statute was held unconstitutional on another ground as
well, viz., that Congress had wrongfully delegated legislative
responsibility by authorizing private industry, through the
National Recovery Administration, to formulate "Codes of Fair

(continued...)

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xxx

Adjustment Act — another pillar of the New Deal — was
held unconstitutional because it regulated farming, which
was a local matter and not an aspect of interstate
commerce. And in Carter v. Carter Coal Co. — decided the
very year before the Jones & Laughlin case — the Court
struck down the Bituminous Coal Conservation Act of 1935.
The act forgave tax on sales of coal by mines if the
operators of the mines agreed to charge a minimum price
for coal, to abide by minimum wages and maximum hours for
miners, and to bargain collectively with the miners'
union. The Supreme Court invalidated the statute on the
ground that employment is local, not interstate commerce.
The Court reasoned that employment is an aspect of
production, and production is a local affair that
Congress may not regulate.
The Labor Board's Argument
The Commerce Clause
cases summarized above weighed heavily against the Labor
Board, but once again Texas & New Orleans RR. provided a
ray of hope. In that case, the Supreme Court had stated
(and had later repeated in Alton RR.) that Congress could
promote settlement of disputes that threatened the
"necessary agencies of interstate commerce" (p. iv). The
Board's task became characterizing the Jones & Laughlin
company as a necessary agency of interstate commerce.
The Board undertook this task in two steps.
The
first was easy and obvious: The necessary agencies of
interstate commerce, wrote the Board, included not only
the railroads, but also "other forms of commercial
intercourse among the States" (p. iv), such as motor and
water
transportation,
and
radio,
telephone,
and
telegraph.
It was indisputable that Congress could
regulate these forms of transportation and communication
because they were so closely analogous to railroads, and
so the courts had held.i

h

(...continued)

Competition."
Laughlin.
i

This

ground

was

not

relevant

to

Jones

&

The Board's brief cited cases in support of this
proposition, but we omitted them from the excerpts of the
brief printed above.

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xxxi

The Board's second step was to argue that Jones &
Laughlin's business was similar to businesses that were
indisputably involved in interstate commerce.
The
Board's problem here is apparent: a steel mill is not a
form of transportation or communication.
For this
reason, the Board attempted to broaden the category of
businesses involved in interstate commerce. The brief
made this attempt with both subtle and forthright moves.
The subtle move was a shift in terminology. Compare
the key sentence in the Supreme Court's opinion in Texas
& New Orleans RR. with the paraphrase of that sentence in
the Board's brief:
Texas & New Orleans RR.
Congress may facilitate the amicable settlement
of disputes which threaten the service of the
necessary agencies of interstate commerce.
The Labor Board's Brief
It is apparent that in like fashion industrial
strife threatening the operation of various
other forms of commercial intercourse among the
States, such as motor and water transportation,
pipe lines, freight agency services, and
communication by wireless, telephone, telegraph
or radio, would directly affect interstate
commerce and hence fall within Congressional
power to mitigate or eliminate.
(p. iv)

The Supreme Court's sentence seemed to say that

•

Congress could regulate the necessary agencies
of interstate commerce
railroads were necessary agencies of interstate
commerce
the Railway Labor Act regulated railroads, and
therefore
the Railway Labor Act was constitutional.

•
•
•

The Board's sentence, however, suggested a different
interpretation of the rationale of Texas & New Orleans
RR:

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xxxii
•
•
•
•
•
•

Congress could protect interstate commerce from
interruption
industrial strife threatened to interrupt
interstate commerce
Congress could, therefore, seek to mitigate
industrial strife
railroads were part of interstate commerce
the Railway Labor Act sought to mitigate or
eliminate labor strife on the railroads, and
therefore
the Railway Labor Act was constitutional.

Thus, by a subtle change in wording, the Board argued
that Congress could regulate, not merely the necessary
agencies of interstate commerce, but all of interstate
commerce. Congress could regulate the railroads because
they were a part of interstate commerce, and the same
thing could be said of Jones & Laughlin's steel mill.
Because it was involved in interstate commerce, and
because the Labor Act sought to mitigate industrial
strife that would affect interstate commerce, the Labor
Act was constitutional.
The Board's more forthright move to broaden the
category of interstate commerce was to draw on cases
decided under the Sherman and Clayton Anti-trust Acts (p.
iv). Somewhat expanded, the Board's argument began with
the accepted proposition that Congress may regulate only
interstate commerce. The anti-trust statutes, therefore,
regulated interstate commerce. These statutes had been
applied to industrial strife involving labor unions.
Hence, industrial strife must have directly affected
interstate commerce.
It followed that Congress could
seek to mitigate industrial strife that affected
interstate commerce.
Jones & Laughlin was a large
company that received raw materials and shipped finished
goods across state lines. The company was part of the
national economy and, therefore, industrial strife in the
company would directly affect interstate commerce.
The Employer's Argument
The employer's brief
advocated
close
adherence
to
the
traditional
understanding of interstate commerce. The understanding
had two main parts.
The first part pertained to the
nature of the employer's business, and the second, to the
nature of the employment relationship, regardless of the
business.

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xxxiii

Beginning with the nature of the business, the
employer argued that farming, mining, and manufacturing
were local, and their status remained local however they
affected commerce in other places; only the movement of
goods and persons across state lines was interstate
commerce. So held Gibbons v. Ogden as long ago as 1824,
and so held Schechter Poultry v. U.S. as recently as
1935.
If commerce changes from local to interstate
merely because of its effects elsewhere, "the wages of a
newsboy, the prices of a grocer and the advertising
policies of a local dentist" become interstate commerce
because "in some degree {they} affect incomes and
business" (pp. xi-xii).
Then the employer replied to the Board's argument
that the steel mill was in interstate commerce because it
received raw materials from, and shipped products to,
other states.
In Arkadelphia Milling v. St. Louis
Southwestern RR. a company shipped 95 percent of its
finished products across state lines. Nevertheless, the
Supreme Court held that its manufacturing process
remained local. In Kidd v. Pearson, a state outlawed the
manufacture of intoxicating beverages.
A distillery
argued the law was unconstitutional because it regulated
interstate commerce.
But the Supreme Court held that
manufacturing was local and, therefore, within the power
of a state to regulate or prohibit.
Were the rule
otherwise, said the Court,
{i}t would nationalize all industries, it would
nationalize
and
withdraw
from
state
jurisdiction and deliver to federal commercial
control the fruits of California and the South,
the wheat of the West and its meats ... the
shoes
of
Massachusetts
and
the
woolen
industries of other States, at the very
inception of their production or growth ...
because they are in varying percentages
destined for and surely to be exported to
{other} States ...
(p. xiv; italics omitted). Nor did it matter, continued
the employer's brief, that local commerce affected
commerce elsewhere. As the Court had stated in Schechter
Poultry:
If the Commerce Clause were construed to reach

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NLRB v. Jones & Laughlin and Associated Press v. NLRB
all enterprises and transactions which would be
said to have an indirect effect on interstate
commerce, the federal authority would embrace
practically all the activities of the people
...

(p. xv). Even if many local matters accumulated into a
national problem, they were still local matters.
Per
U.S. v. Butler:
It does not help to declare that local
conditions throughout the nation have created
a situation of national concern; for this is
but to say that whenever there is a widespread
similarity of local conditions, Congress may
ignore constitutional limitations upon its own
powers and usurp those reserved to the states
(p. xv; italics omitted).
Turning to the second part of the traditional
understanding, the employer argued that the Labor Act was
regulation of employment, and employment was not
interstate commerce. The whole relationship of employer
to employee — hiring, firing, and all the terms and
conditions of employment — was local.
Therefore,
Congress had no power to regulate employment.
The
Supreme Court had reaffirmed this principle as recently
as 1936 in Carter v. Carter Coal Co., in which the
Bituminous
Coal
Conservation
Act
was
held
unconstitutional. This act was invalidated because, said
the Court, employment is an aspect of production, and
production is local. The employer's brief noted that the
Bituminous Coal Conservation Act had created a scheme of
labor relations that was similar to the scheme in the
Labor Act, and it followed that the Labor Act was also
unconstitutional.
Then the brief addressed Texas & New Orleans RR.,
which had sustained the Railway Labor Act. The employer
conceded that the provisions of this act were analogous
to the provisions of the Labor Act, but argued that this
similarity did not mean that the Labor Act was
constitutional.
Rather, a significant distinction
between these acts existed: the Railway Labor Act applied
to the interstate carriers.
The Court had based its
ruling that the Railway Labor Act was constitutional on

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xxxv

this very distinction, writing, "Congress may facilitate
the amicable settlement of disputes which threaten the
service
of
the
necessary
agents
of
interstate
transportation" (p. xviii). Thus, Texas & New Orleans
RR. was a narrow holding that applied only to employment
on the agents of interstate commerce like railroads. In
contrast, the Labor Act applied to all businesses;
therefore, the Labor Act could not be sustained on the
authority of Texas & New Orleans RR. For all businesses
that were not interstate carriers, employment remained
local and beyond the power to Congress to control.
EVALUATION OF THE ARGUMENTS

The Labor Board had precedent on its side on the
liberty-of-contract
argument.
The older cases like
Adair and Coppage had been undermined by Texas & New
Orleans RR. If the Fifth Amendment rights of a railroad
are not infringed by the requirements of collective
bargaining under the Railway Labor Act, the Fifth
Amendment rights of other private employers were not
infringed by the National Labor Relations Act.
The employer had precedent on its side on the
Commerce Clause argument. The distinction between local
and interstate commerce was well established, and
employment had always been a local matter.
The Labor
Board's two arguments — that labor relations had become
a national problem, and that the flow of interstate
commerce was affected by labor unrest — had both been
rejected by the Supreme Court in earlier cases.
The
Texas & New Orleans RR case held that the employment
practices of a railroad could be regulated, so employment
was no longer a purely local matter; but the ground of
the
holding
was
that
railroads
were
the
very
instrumentalities of interstate commerce. As railroads
carried products across state lines, they were pure
interstate commerce.
Regulation of the employment
practices of railroads in order to keep interstate
commerce open was plainly different from regulating the
labor relations of a steel mill.

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NLRB v. Jones & Laughlin and Associated Press v. NLRB
THE SUPREME COURT'S DECISION

In NLRB v. Jones & Laughlin the Supreme Court upheld
the constitutionality of the Labor Act.
The Court
accepted the Board's arguments that the act regulated
interstate commerce (disapproving earlier cases like
Carter Coal) and did not infringe on liberty of contract
(following Texas & New Orleans RR.).
QUESTION FOR REFLECTION
1. Texas and New Orleans RR. overruled a long line
of cases which had held that liberty of contract prevents
the
government
from
regulating
the
employment
relationship (except in extraordinary circumstances), and
Jones & Laughlin overruled an equally long line of cases
which had held that employment was a local matter and not
part of interstate commerce.
When the Supreme Court
announces a rule of constitutional law, should the Court
adhere to that rule forever (unless, of course, the
Constitution is amended)?
If not, what justifies
overruling a constitutional precedent? Does it suffice
that the current Supreme Court believes that the earlier
decision was mistaken, or must there be a stronger
reason?
2. Jones & Laughlin held that workers have a right
to collective action, and Congress may prevent employers
from interfering with this right. Plainly, the Supreme
Court's view of this right and of its relationship to
employers' rights had changed since Adair and Coppage.
Why did this change occur?
3. In Texas & New Orleans RR. the Supreme Court
sustained the Railway Labor Act because it was not aimed
at the "normal exercise of the right of the carrier to
select its employees or to discharge them ... but at the
interference with the right of employees to have
representatives of their own choosing." Was this a sound
argument?
4. Does the National Labor Relations Act, which
promotes unionization, make sense today when work can be
relocated to other countries where the cost of labor is
much lower?

Ù

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266

Coverage of the Labor Act
SUPERVISORS
SUPERVISORS AS EMPLOYEES

Introduction
Every statute intends to protect certain classes of
persons.
Some statutes protect all persons.
For
example, a statute against battery protects all persons
from being struck intentionally.
Other statutes are
limited in scope, protecting specific classes of persons.
The Labor Act falls into the latter category. First of
all, the Act applies only to employees; thus, it does not
apply to independent contractors, who are self employed,
for example, a gardener who serves many customers. But
the Labor Act is even more limited than this, for it does
not protect some classes of workers who are generally
regarded as employees, for example, agricultural workers.
Foreones are employees. Should they be covered by the
Labor Act?
The courts and Congress have disagreed on
this question.

Labor and Employment Law

267

ii

Packard Motor Co. v. NLRB
330 U.S. 485 (1947)

Mr. Justice JACKSON delivered the opinion of the Court.
The question presented by this case is whether foremen are entitled as a class
to the rights of self-organization, collective bargaining, and other concerted activities
as assured to employees generally by the National Labor Relations Act. The case
grows out of conditions in the automotive industry, and, so far as they are important
to the legal issues here, the facts are simple.
The Packard Motor Car Company employs about 32,000 rank and file
workmen. Since 1937 they have been represented by the United Automobile Workers
of America affiliated with the Congress of Industrial Organizations. These employees
are supervised by approximately 1,100 employees of foreman rank consisting of
about 125 "general foremen," 643 "foremen," 273 "assistant foremen," and 65
"special assignment men." Each general foreman is in charge of one or more
departments, and under him in authority are foremen and their assistant foremen.
Special assignment men are described as "trouble-shooters."
The function of these foremen in general is typical of the duties of foremen
in mass production industry generally. Foremen carry the responsibility for
maintaining quantity and quality of production, subject, of course, to the overall
control and supervision of the management. Hiring is done by the labor relations
department, as is the discharging and laying off of employees. But the foremen are
provided with forms and with detailed lists of violations of discipline, and initiate
recommendations for promotion, demotion and discipline.
All such
recommendations are subject to the reviewing procedure concerning grievances
provided in the collectively-bargained agreement between the Company and the rank
and file union.
The foremen as a group are highly paid and, unlike the workmen, are paid for
justifiable absence and for holidays, are not docked in pay when tardy, receive longer
paid vacations, and are given severance pay upon release by the Company.
These foremen determined to organize as a unit of the Foremen's Association
of America, an unaffiliated organization which represents supervisory employees
exclusively. Following the usual procedure, after the Board had decided that "all
general foremen, foremen, assistant foremen, and special assignment men employed
by the Company at its plants in Detroit, Michigan, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of § 9(b) of the Act," the
Foremen's Association was certified as the bargaining representative. The Company

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iii

asserted that foremen were not "employees" entitled to the advantages of the Labor
Act, and refused to bargain with the union. After hearing on charge of unfair labor
practice, the Board issued the usual cease and desist order. The Company resisted
and challenged validity of the order. The judgment of the court below decreed its
enforcement, and we granted certiorari.
The issue of law as to the power of the National Labor Relations Board under
the National Labor Relations Act is simple, and our only function is to determine
whether the order of the Board is authorized by the statute.
The privileges and benefits of the Act are conferred upon employees, and §
2(3) of the Act, so far as relevant, provides, "The term 'employee' shall include any
employee...." The point that these foremen are employees both in the most technical
sense at common law as well as in common acceptance of the term, is too obvious to
be labored. The Company, however, turns to the Act's definition of employer, which
it contends reads foremen out of the employee class and into the class of employers.
Section 2(2) reads: "The term 'employer' includes any person acting in the interest
of an employer, directly or indirectly...." The context of the Act, we think, leaves no
room for a construction of this section to deny the organizational privilege to
employees because they act in the interest of an employer. Every employee, from the
very fact of employment in the master's business, is required to act in his interest. He
owes to the employer faithful performance of service in his interest, the protection of
the employer's property in his custody or control, and all employees may, as to third
parties, act in the interests of the employer to such an extent that he is liable for their
wrongful acts. A familiar example would be that of a truck driver for whose
negligence the Company might have to answer.
The purpose of § 2(2) seems obviously to render employers responsible in
labor practices for acts of any persons performed in their interests. It is an adaptation
of the ancient maxim of the common law, respondeat superior, by which a principal
is made liable for the tortious acts of his agent and the master for the wrongful acts
of his servants. Even without special statutory provision, the rule would apply to
many relations. But Congress was creating a new class of wrongful acts to be known
as unfair labor practices, and it could not be certain that the courts would apply the
tort rule of respondeat superior to those derelictions. Even if it did, the problem of
proof as applied to this kind of wrongs might easily be complicated by questions as
to the scope of the actor's authority and of variance between his apparent and his real
authority. Hence, it was provided that in administering this act the employer, for its
purposes, should be not merely the individual or corporation which was the
employing entity, but also others, whether employee or not, who are "acting in the
interest of an employer."

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iv

Even those who act for the employer in some matters, including the service
of standing between management and manual labor, still have interests of their own
as employees. Though the foreman is the faithful representative of the employer in
maintaining a production schedule, his interest properly may be adverse to that of the
employer when it comes to fixing his own wages, hours, seniority rights or working
conditions. He does not lose his right to serve himself in these respects because he
serves his master in others. And we see no basis in this Act whatever for holding that
foremen are forbidden the protection of the Act when they take collective action to
protect their collective interests.
The company's argument is really addressed to the undesirability of permitting
foremen to organize. It wants selfless representatives of its interest. It fears that if
foremen combine to bargain advantages for themselves, they will sometimes be
governed by interests of their own or of their fellow foremen, rather than by the
company's interest. There is nothing new in this argument. It is rooted in the
misconception that because the employer has the right to wholehearted loyalty in the
performance of the contract of employment, the employee does not have the right to
protect his independent and adverse interest in the terms of the contract itself and the
conditions of work. But the effect of the National Labor Relations Act is otherwise,
and it is for Congress, not for us, to create exceptions or qualifications at odds with
its plain terms.
Moreover, the company concedes that foremen have a right to organize. What
it denies is that the statute compels it to recognize the union. In other words, it wants
to be free to fight the foremen's union in the way that companies fought other unions
before the Labor Act. But there is nothing in the Act which indicates that Congress
intended to deny its benefits to foremen as employees, if they choose to believe that
their interests as employees would be better served by organization than by individual
competition.2
...
We are invited to make a lengthy examination of views expressed in Congress
while this and later legislation was pending to show that exclusion of foremen was
intended. There is, however, no ambiguity in this Act to be clarified by resort to
legislative history, either of the Act itself or of subsequent legislative proposals which

2. If a union of vice presidents, presidents or others of like relationship to a
corporation comes here claiming rights under this Act, it will be time enough then
to point out the obvious and relevant differences between the 1100 foremen of this
company and corporate officers elected by the board of directors.

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v

failed to become law.
Counsel also would persuade us to make a contrary interpretation by citing a
long record of inaction, vacillation and division of the National Labor Relations
Board in applying this Act to foremen. If we were obliged to depend upon
administrative interpretation for light in finding the meaning of the statute, the
inconsistency of the Board's decisions would leave us in the dark.3 But there are
difficult questions of policy involved in these cases which, together with changes in
Board membership, account for the contradictory views that characterize their history
in the Board. Whatever special questions there are in determining the appropriate
bargaining unit for foremen are for the Board, and the history of the issue in the
Board shows the difficulty of the problem committed to its discretion. We are not at
liberty to be governed by those policy considerations in deciding the naked question
of law whether the Board is now, in this case, acting within the terms of the statute.
It is also urged upon us most seriously that unionization of foremen is from
many points bad industrial policy, that it puts the union foremen in the position of
serving two masters, divides his loyalty and makes generally for bad relations
between management and labor. However we might appraise the force of these
arguments as a policy matter, we are not authorized to base decision of a question of
law upon them. They concern the wisdom of the legislation; they cannot alter the
meaning of otherwise plain provisions.
The judgment of enforcement is affirmed.
Mr. Justice DOUGLAS, with whom the Chief Justice and Mr. Justice
BURTON concur, dissenting.
First. Over thirty years ago Mr. Justice Brandeis, while still a private citizen,
saw the need for narrowing the gap between management and labor, for allowing
labor greater participation in policy decisions, for developing an industrial system in
which cooperation rather than coercion was the dominant characteristic. In his view,

3. The Board had held that supervisory employees may organize in an independent
union, Union Collieries Coal Co, 44 NLRB 165, and in an affiliated union,
Godchaux Sugars, Inc., 44 NLRB(F) 874. Then it held that there was no unit
appropriate to the organization of supervisory employees. Re. Maryland Drydock
Co., 49 NLRB 733 (1943).... [I]n Re. California Packing Corp., 66 NLRB(F) 1461,
the Board re-embraced its earlier conclusions with the same progressive boldness it
had shown in the Union Collieries and Godchaux Sugars cases. In none of this series
of cases did the Board hold that supervisors are not employees.

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these were measures of therapeutic value in dealing with problems of industrial unrest
or inefficiency.
The present decision may be a step in that direction. It at least tends to
obliterate the line between management and labor. It lends the sanctions of federal
law to unionization at all levels of the industrial hierarchy. It tends to emphasize that
the basic opposing forces in industry are not management and labor but the operating
group, on the one hand, and the stockholder and bondholder group, on the other. The
industrial problem as so defined comes down to a contest over a fair division of the
gross receipts of industry between these two groups. The struggle for control or
power between management and labor becomes secondary to a growing unity in their
common demands on ownership.
I do not believe this is an exaggerated statement of the basic policy questions
which underlie the present decision. For if foremen are "employees" within the
meaning of the National Labor Relations Act, so are vice-presidents, managers,
assistant managers, superintendents, assistant superintendents — indeed, all who are
on the payroll of the company, including the president; all who are commonly
referred to as the management, with the exception of the directors. If a union of vicepresidents applied for recognition as a collective bargaining agency, I do not see how
we could deny it and yet allow the present application. But once vice-presidents,
managers, superintendents, foremen all are unionized, management and labor will
become more of a solid phalanx than separate factions in warring camps. Indeed, the
thought of some labor leaders that if those in the hierarchy above the workers are
unionized, they will be more sympathetic with the claims of those below them, is a
manifestation of the same idea.
I mention these matters to indicate what tremendously important policy
questions are involved in the present decision. My purpose is to suggest that if
Congress, when it enacted the National Labor Relations Act, had in mind such a basic
change in industrial philosophy, it would have left some clear and unmistakable trace
of that purpose. But I find none.
Second. "Employee" is defined to include "any" employee. § 2(3). If we stop
there, foremen are included as are all employees from the president on down. But we
are not warranted in stopping there. The term "employee" must be considered in the
context of the Act. When it is so considered, it does not appear to be used in an allembracing sense. Rather, it is used in opposition to the term "employer." An
employer is defined to include "any person acting in the interest of an employer." §
2(2). The term "employer" thus includes some employees. And I find no evidence
that one personnel group may be both employers and employees within the meaning
of the Act. Rather, the Act on its face seems to classify the operating group of

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vii

industry into two classes; what is included in one group is excluded from the other.
It is not an answer to say that the two statutory groups are not exclusive
because every "employee" while on duty — whether driving a truck or stoking a
furnace or operating a lathe — is "acting in the interest" of his employer and is then
an "employer" in the statutory sense. The Act was not declaring a policy of vicarious
responsibility of industry.a It was dealing solely with labor relations. It put in the
employer category all those who acted for management not only in formulating but
also in executing its labor policies.
Foremost among the latter were foremen. Trade union history shows that
foremen were the arms and legs of management in executing labor policies. In
industrial conflicts they were allied with management. Management indeed
commonly acted through them in the unfair labor practices which the Act condemns.
When we upheld the imposition of the sanctions of the Act against management, we
frequently relied on the acts of foremen through whom management expressed its
hostility to trade unionism.
Third. The evil at which the Act was aimed was the failure or refusal of
industry to recognize the right of workingmen to bargain collectively. In § 1 of the
Act, Congress noted that such an attitude on the part of industry led "to strikes and
other forms of industrial strife or unrest" so as to burden or obstruct interstate
commerce. We know from the history of that decade that the frustrated efforts of
workingmen, of laborers, to organize led to strikes, strife, and unrest. But we are
pointed to no instances where foremen were striking; nor are we advised that
managers, superintendents, or vice-presidents were doing so.
Indeed, the problems of those in the supervisory categories of management did
not seem to have been in the consciousness of Congress. Section 1 of the Act refers
to "wage rates," "wage earners," "workers." There is no phrase in the entire Act
which is descriptive of those doing supervisory work. Section 2(3) exempts from the
term "employee" any "agricultural laborer." But if "employee" includes a foreman,
it would be most strange to find Congress exempting "agricultural laborer" but not
"agricultural foremen." The inference is strong that since it exempted only
agricultural "laborers," it had no idea that agricultural "foremen" were under the Act.

a. {Vicarious liability means that one person is responsible for the acts of another
person. The owner of a company is vicariously liable (responsible for) the negligence
of the company's truck drivers. —ed.}

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If foremen were to be included as employees under the Act, special problems
would be raised — important problems relating to the unit in which the foremen
might be represented.b Foremen are also under the Act as employers. That dual
status creates serious problems. An act of a foreman, if attributed to the management,
constitutes an unfair labor practice; the same act may be part of the foreman's activity
as an employee. In that event the employer can only interfere at his peril. The
complications of dealing with the problems of supervisory employees strongly
suggest that if Congress had planned to include them in its project, it would have
made some special provision for them. But we find no trace of a suggestion that
when Congress came to consider the units appropriate for collective bargaining, it
was aware that groups of employees might have conflicting loyalties. Yet that would
have been one of the most important and conspicuous problems if foremen were to
be included. The failure of Congress to formulate a policy respecting the peculiar and
special problems of foremen suggests an absence of purpose to bring them under the
Act. And the notion is hard to resist that the very absence of a declaration by
Congress of its policy respecting foremen is the reason the Board has been so much
at large in the treatment of the problem under the Act. See the cases collected in note
3 of the opinion of the Court.
Fourth. When we turn from the Act to the legislative history, we find no trace
of Congressional concern with the problems of supervisory personnel. The reports
and debates are barren of any reference to them, though they are replete with
references to the function of the legislation in protecting the interests of "laborers"
and "workers."
Fifth. When we turn to other related legislation, we find that when Congress
desired to include managerial officials or supervisory personnel in the category of
employees, it did so expressly. The Railway Labor Act, § 151, defines "employee"
to include "subordinate official." The Merchant Marine Act, which deals with
maritime labor relations as a supplement to the National Labor Relations Act, defines
"employee" to include "subordinate official." And the Social Security Act, § 1301,

b. {One possible problem is that, if foreones and workers were in the same
bargaining unit, the foreones, because of their authority at work, would dominate the
union meetings and exert a disproportionate influence on the rank-and-file members.
The reverse problem is also possible: because foreones have little economic power
(if they strike, they are easily replaced), they would depend heavily on support from,
and therefore become beholden to, the rank-and-file. A third possible problem is that
foreones, for fear of being punished by their union, would be reluctant to enforce
discipline on the job against workers who were members of the same bargaining unit.
— ed.}

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ix

includes an officer of a corporation in the term employee. The failure of Congress
to do the same when it wrote the National Labor Relations Act has some significance,
especially where the legislative history is utterly devoid of any indication that
Congress was concerned with the collective bargaining problems of supervisory
employees.
Sixth. The truth of the matter is, I think, that when Congress passed the
National Labor Relations Act in 1935, it was legislating against the activities of
foremen, not on their behalf. Congress was intent on protecting the right of free
association — the right to bargain collectively — by the great mass of workers, not
by those who were in authority over them and enforcing oppressive industrial
policies. Foremen were instrumentalities of those industrial policies. They blocked
the wage earners' path to fair collective bargaining. To say twelve years later that
foremen were treated as the victims of that anti-labor policy seems to me a distortion
of history.
If we were to decide this case on the basis of policy, much could be said to
support the majority view. But I am convinced that Congress never faced those
policy issues when it enacted this legislation. I am sure that those problems were not
in the consciousness of Congress. A decision on these policy matters cuts deep into
our industrial life. It has profound implications throughout our economy. It involves
a fundamental change in much of the thinking of the nation on our industrial
problems. The question is so important that I cannot believe Congress legislated
unwittingly on it. Since what Congress wrote is consistent with a restriction of the
Act to workingmen and laborers, I would leave its extension over supervisory
employees to Congress.
...
What I have said does not mean that foremen have no right to organize for
collective bargaining. The general law recognizes their right to do so. And some
states have placed administrative machinery and sanctions behind that right. But as
I read the Federal Act, Congress has not yet done so.

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Comment
CONGRESSIONAL REACTION TO PACKARD

Congress disagreed with the Supreme Court's decision
in Packard and amended the Labor Act to exclude
supervisors from its protection.
A brief legislative
history of this amendment follows.
In 1947 Representative Hartley introduced H.R. 3020
to amend the Labor Act.
As reported by the House
Committee on Education and Labor, the bill, among other
things, proposed adding a definition of the term
"supervisor"
and
excluding
supervisors
from
the
definition of the term "employee."
H.R. 3020, 80th
Cong., 1st Sess., § 101 (§§ 2(3) and 2(12)), reprinted in
National Labor Relations Board, Legislative History of
the Labor Management Relations Act, 1947 (hereinafter
cited as Leg. Hsty. 1947), pp. 33, 40-41. The majority
of the committee endorsed this amendment in its report to
the House of Representatives:
When Congress passed the Labor Act, we were
concerned, as we said in its preamble, with the
welfare of "workers" and "wage earners," not of the
boss. It was to protect workers and their unions
against foremen, not to unionize foremen, that
Congress passed the act.
In few trades, and in
none of the great mass-producing industries, were
foremen unionized. It was not until about 7 years
after Congress passed the Labor Act that anyone
asked the Labor Board to establish a unit composed
of supervisors. Notwithstanding that in the act
Congress had defined as an "employer" "any person
acting in the interest of an employer," the Board
held, in the first such case, that supervisors in
coal mines are "employees," and it certified as the
bargaining agent of supervisors of Union Collieries
Coal Co. a union that claimed to be "independent"
but that turned out to be a stalking horse for the
United Mine Workers of America, and that now is
part of the catch-all District 50 of that union

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Packard v. NLRB
(Matter of Union Collieries Coal Company, 41 NLRB
96 (1942)). A little later the Board certified as
the bargaining agent of foremen of Godchaux Sugars,
Inc., the union of rank and file workers whom the
foremen were supposed to supervise (44 NLRB 874
(1942)).
As a result of the Board's certifying unions
of foremen in the Union Collieries and Godchaux
Sugar cases, there was introduced in Congress a
bill taking foremen out of the Labor Act. (H.R.
2239, 78th Cong.). While the bill was pending in
the Military Affairs Committee of the House, the
Board, on May 10, 1943, in Matter of Maryland
Drydock Company (49 NLRB 733), reversed itself,
holding that, except in trades where foremen were
organized in 1935, it would not find units of
supervisors appropriate for the purposes of
collective bargaining under the Wagner Act. The
Military Affairs Committee then dropped H.R. 2239.
In deciding the Maryland Drydock case, the
Board pointed out that unionizing foremen under the
Labor Act would be bad for output, which the act
was intended to promote, bad for the rank and file,
and bad for the foremen themselves.
In several
cases, the Board confirmed its decision in the
Maryland Drydock case.
Then, in the Matter of
Packard Motor Car Company (61 NLRB 4 (1945)), the
Board changed its mind again, certifying as the
bargaining agent of five ranks of Packard's foremen
the Foremen's Association of America, which [the
Board] had held [previously] it ought not to
certify as the bargaining agent for foremen of
General Motors, Murray Corp., and other companies.
Later the Board certified a division of District 50
of the United Mine Workers of America as the
bargaining agent of supervisors in the mines, and
subjected them to discipline and control of the
United Mine Workers and its leaders.
. . .

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The evidence before the committee shows
clearly that unionizing supervisors under the Labor
Act is inconsistent with the purpose of the act to
increase output of goods that move in the stream of
commerce, and thus to increase its flow.
It is
inconsistent with the policy of Congress to assure
to workers freedom from domination or control by
their
supervisors
in
their
organizing
and
bargaining activities. It is inconsistent with our
policy to protect the rights of employers; they, as
well
as
workers,
are
entitled
to
loyal
representatives in the plants, but when the foremen
unionize, even in a union that claims to be
"independent" of the union of the rank and file,
they are subject to influence and control by the
rank and file union, and instead of their bossing
the rank and file, the rank and file bosses them.
The evidence shows that rank and file unions have
done much of the actual organizing of foremen, even
when
the
foremen's
union
professes
to
be
"independent." Without any question, this is why
the unions seek to organize the foremen.
One of the most important items of evidence
in this question came to light after the committee
concluded the hearings.
In November 1942, Ford
Motor Co. recognized the Foreman's Association of
America as the representative of several ranks of
supervisors.
In 1944, the Ford Co. made a full
collective-bargaining
agreement
with
the
association. In testifying before our committee,
the president of the association urged the relation
between Ford and the association as ground for
unionizing foremen.
Other evidence showed,
however,
that
after
Ford
recognized
the
association, there were more strikes and stoppages
by foremen at Ford's than in any other company.
Although the president of the association claimed
that productivity was high in plants it had
organized, we had quoted to us statements by Mr.
Henry Ford II that productivity declined after the
foremen organized, and this evidence was supported

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by evidence from other companies.
On April 8, 1947, Mr. John S. Bugos, vice
president and director of industrial relations at
Ford's, terminated Ford's contract with the
Foreman's Association.
His letter to the
association constitutes the clearest evidence that
supervisors are not properly subject to the Labor
Act:
. . .
After 3 years' experience — a period
which seems to us ample for a test — it is
our conclusion that the results have been
the opposite of what we have hoped for.
Rather than exerting its efforts to draw
foremen into closer relationship with the
rest of management, your association has
worked in the opposite direction. We feel
that your association under the agreement
has failed to meet the test of practice.
As recently as last Saturday — April
5, 1947 — 33 foremen, all except 3 from the
River Rouge rolling mill, walked off the
job without permission, and contrary to
specific instructions to remain.
They
stayed off the job about 2 ½ hours,
attending a meeting of the association.
This unauthorized absence involved grave
risks to our employees in the rolling mill.
The fact that no damage came to men or
property was fortunate, but it is something
which
the
absent
members
of
your
association could not guarantee.
Efforts were made — we are glad to
say unsuccessfully — to induce foremen in
the open hearth department to leave their
jobs at the same time. There is no need to
point out the risk to men and property in

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leaving open hearth furnaces unattended.
Your association recently instructed
its members not to comply with company
requirements that they check employees
under
their
supervision
at
various
locations away from the job where they were
felt to be loitering. Spokesmen for your
association did not agree with the company
as to the proper technique for handling an
admittedly bad situation.
It is clearly
the responsibility of the company, and not
of your association, to determine the
procedure in such situations.
. . .
The
essential
characteristic
of
management is responsibility.
It follows
that the characteristic which distinguishes
a foreman is a sense of responsibility. It
is our observation that the activities of
your association under our agreement has
tended to lead our foremen away from
management responsibility, and has in fact
opposed efforts of the company in this
direction.
. . . .

If management is to be free to manage
American industry as in the past and to produce the
goods on which depends our strength in war and our
standard of living always, the Congress must
exclude foremen from the operation of the Labor
Act, not only when they organize into unions of the
rank and file and into unions affiliated with those
of the rank, but also when they organize into
unions that claim to be independent of the unions
of the rank and file.
The committee received in evidence about 200

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letters that the Foreman's Association had
exchanged with unions of the rank and file. They
showed a closer and more intimate relation between
the association and the unions of men the foremen
supervise than one ordinarily finds between unions
affiliated together in the same federation, and a
subservience of the association to unions of the
rank and file that is rare among unions.
The evidence shows that foremen's unions are,
and must be, wholly dependent upon rank-and-file
unions and under constant obligation to them. The
foremen cannot strike without the support of the
rank and file and its agreement not to do the work
of striking foremen. The association admits that
it has such an agreement with the CIO.
The
association
has
adopted
a
formal
"policy"
forbidding its members, when the rank-and-file
unions strike, to enter the struck plants and
protect and maintain them without the consent of
the rank-and-file unions.
The evidence further shows that rank-and-file
unions tell the foreman's union when the foremen
may strike and when they may not, what duties the
foremen may do and what ones they may not, what
plants the foreman's union may organize and what
ones it may not.
It shows that rank-and-file
unions have helped foremen's unions, not for the
benefit of the foremen, but for the benefit of the
rank and file, at the expense of the foreman's
fidelity in doing his duties. The chairman of a
rank-and-file pit committee summed the matter up
when he said:
Well, we are trying to get them (the
supervisors) to join the union, the bosses
to join the union, and then we'll be their
bosses. We'll be their bosses.

That
most
foremen
themselves
see
the
impropriety of their unionizing, and its danger for

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their own status, is clear from the fact that,
although the Foreman's Association of America is
the largest union of foremen, only about 1 percent
of the foremen have joined it.
Management, like labor, must have faithful
agents. — If we are to produce goods competitively
and in such large quantities that many can buy them
at low cost, then, just as there are people on
labor's side to say what workers want and have a
right to expect, there must be in management and
loyal to it persons not subject to influence or
control of unions, not only to assign people to
their work, to see that they keep at their work and
do it well, to correct them when they are at fault,
and to settle their complaints and grievances, but
to determine how much work employees should do,
what pay they should receive for it, and to carry
on the whole of labor relations.
. . .
Supervisors are management people. They have
distinguished themselves in their work. They have
demonstrated their ability to take care of
themselves without depending upon the pressure of
collective action. No one forced them to become
supervisors.
They abandoned the "collective
security" of the rank and file voluntarily because
they believed the opportunities thus opened to them
to be more valuable to them than such "security".
It seems wrong, and it is wrong, to subject people
of this kind, who have demonstrated their
initiative, their ambition and their ability to get
ahead, to the leveling processes of seniority,
uniformity and standardization that the Supreme
Court recognizes as being fundamental principles of
unionism.
(J. I. Case Co. v. National Labor
Relations Board, 321 U.S. 332 (1944).) It is wrong
for the foremen, for it discourages the things in
them that made them foremen in the first place.
For the same reason, that it discourages those best

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qualified to get ahead, it is wrong for industry,
and particularly for the future strength and
productivity of our country.
. . .
The bill does not forbid anyone to organize.
It does not forbid any employer to recognize a
union of foremen. Employees who, in the past, have
bargained
collectively
with
supervisors
may
continue to do so. What the bill does is to say
what the law always has said until the Labor Board,
in the exercise of what it modestly calls its
"expertness," changed the law:
That no one,
whether employer or employee, need have as his
agent one who is obligated to those on the other
side, or one whom, for any reason, he does not
trust.

H. Rep. 245, 80th Cong., 1st Sess., pp. 13-17, reprinted
in Leg. Hsty 1947, pp. 304-308.
The minority of the committee argued against this
amendment in its report to the House of Representatives:
It is estimated that there are between 4 and
5 million men and women working in supervisory jobs
in this Nation's industry.
The right of these
employees to organize and bargain collectively in
a manner which is insured to other workers will be
materially impaired by the proposed bill.
The
recognition of the necessity for organization by
workers as a means of achieving a fair share of the
country's wealth is the gravamen of the National
Labor Relations Act.
The rejection of this
principle in the case of supervisory employees can
be considered only in terms of discrimination
against such employees.
Supervisory employees, it is true, play a
dual role in our industrial life. The fact that
they are, for some purposes, the agent of

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management does not derogate from the companion
fact that even agents have an interest to protect
against their principal.
The identity of
supervisors with management is far from complete.
Their working conditions, wages, and tenure are
determined by management policy which in the
absence of organization they are in an unfavorable
position to oppose.
The issue of the inability of the supervisory
employee, who is unionized, to discharge his
functions with loyalty and competency is constantly
raised.
This issue may be partially met by
providing that supervisors are entitled to organize
and bargain collectively with their employers
provided that they do not belong to the union to
which the production employees of the employer
belong, or to any union dominated or controlled by
the union to which the production employees belong.
The record of industries where the unionization of
supervisors is prevalent, such as the building
industry, the maritime industry, the printing
industry, and the railroad industry, refute the
suspicion of conflict and betrayal on the part of
such supervisors. The essential loyalties required
of supervisors in the effective accomplishment of
their duties are no more inconsistent with their
interest in the conditions of their employment than
is true in the case of other employees.
Recognition by the National Labor Relations
Board of the right of supervisors to organize and
bargain collectively has reduced the number of
strikes by this class of employee.
To withdraw
this recognition and with it the orderly machinery
for achieving organization will not eliminate
unionism among supervisors.
It will force them
instead to the alternative of economic self-help,
and in this state of affairs there is no incentive
for supervisory employees to create unions which
would be truly autonomous and separated from the
pressures of union groups subordinate to them in

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the employment structure.

H .Rep. 245, 80th Cong., 1st Sess., pp. 71-72, reprinted
in Leg. Hsty. 1947, pp. 362-363.
A few days later, Senator Taft introduced S. 1126.
This bill also proposed, among other things, to exclude
supervisors from the protection of the Labor Act, though
the bill included a different definition of "supervisor."
S. 1126, 80th Cong., 1st Sess., §§ 2(3) and 2(11),
reprinted in Leg. Hsty. 1947, pp. 102-103, 104.
The House passed the Representative Hartley's bill,
and the Senate passed Senator Taft's bill. The two bills
were
referred
to
a
conference
committee,
which
recommended Senator Taft's proposal on supervisors. H.
Rep. 510, 80th Cong., 1st Sess., p. 35, reprinted in Leg.
Hsty. 1947, p. 539. Section 2 of the Labor Act now reads
in pertinent part:
Sec. 2. When used in this Act —
. . .
(3) The term "employee" ... shall not include
... any individual employed as a supervisor....

Congress also added § 2(11) to the Act. It contains a
list of criteria for deciding whether a worker is a
supervisor or an employee:
The term "supervisor" means any individual
having authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of
a merely routine or clerical nature, but requires
the use of independent judgment.

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OTHER CATEGORIES OF WORKERS

We have seen that the Labor Act does not cover all
workers.
In addition to supervisors, the following
classes of employees are not protected by the Act:
•

employees of
governments

federal,

state,

and

local

•

employees of railroads and airlines

•

agricultural workers

•

domestic servants working in their employer's
home

•

spouses and children of their employers.

Agricultural laborers, domestic servants, and spouses and
children of their employers may be employees under other
statutes. For example, they are covered by the federal
Social Security System and by state workers' compensation
laws.
At common law, if workers went on strike, they were
no longer employees of the firm. Section 2(3) of the
Labor Act changed this rule by defining "employee" to
include strikers. As a result, a striker retains the
protection of the Act.
For example, it would be
discrimination for an employer to discharge a worker
because the worker is one of the leaders of the strike.
But if a striker accepts in another firm a regular job
that is substantially equivalent to the job the striker
held in the struck firm, the striker becomes an employee
of the second firm and is no longer an employee of the
struck firm.
In some cases, employees who are not protected by
the Labor Act are protected by other laws. Thus, the
Railway Labor Act covers employees of railroads and
airlines. Several states have laws that allow collective
bargaining for their governmental employees.
A few

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states have enacted statutes that allow for collective
bargaining by agricultural workers.
QUESTIONS FOR REFLECTION
1. Do you think the 1947 amendments were a good
idea, or was Packard a better rule for industrial
relations?
2. The majority of the Court argued for one approach
to the issue of coverage of supervisors, and Congress
opted for a second approach. Justice Douglas's dissent
argued for a third approach. Justice Douglas's approach
has come to be known as the "labor nexus" test. Do you
think the labor nexus test is a better way to deal with
collective bargaining rights for supervisors?
3. On the issues of whether salts are employees
under the Labor Act and, if so, whether they should be
allowed to vote in representation elections, the
employer's and the union's arguments are presented in
neutral terms, but the arguments are motivated entirely
by the interests of the parties. The employer wants to
expel the traitor from the company and, if that effort is
unsuccessful, at least to prevent the traitor from voting
in the election; the unions wants the opposite. Should
the law decide the issues according to the neutral
arguments, or should the law take into account the
interests of the parties?
4. The rules on the eligibility of strikers and
replacements to vote in representation elections during
strikes are stated in terms that are neutral with respect
to how the worker is likely to vote. Thus, one rule says
that temporary replacements may not vote, and no
consideration seems to be given to how a temporary
replacement would probably vote.
Similarly, the
governing criterion — that a worker may vote if one has
a reasonable expectation of continued employment — also
seems to be neutral as to how workers are likely to vote.
But the purpose of an election held during a strike is
anything but neutral. Its purpose is to decertify the

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union. Everyone knows that strikers will probably vote
in favor of the union, and that replacements will
probably vote against it. Accordingly, employers want
replacements to be allowed to vote and strikers to be
prohibited from voting. Unions, of course, want just the
opposite. Both sides will present those neutral-sounding
arguments that serve the parties' interests.
Knowing
this, should we continue to debate the issues in terms of
neutral arguments, or should we entertain arguments
frankly based on the parties' interests?
5. On the issue of whether the Board should order a
new election because one of the parties has distributed
false propaganda, does one's position on this issue
depend in any way on one's view of the average worker?

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INDEPENDENT CONTRACTORS

Introduction
Workers and employers are engaged in a war of attack
and counter-attack, move and counter-move, thrust and
parry. It is the second longest war in history. Here is
a summary of the history we have already observed:
•In
the Eighteenth
Century,
master
craftsones began to abandon custom-made goods
in favor of mass-produced goods; this change
was the background of the Philadelphia
Cordwainers case.
In connection with this
change, the masters lowered the price they
paid for each item produced by journeyones.a
•The journeyones responded by changing
the
character
of
their
benevolent
associations.
These
associations
had
previously helped members in time of need,
e.g., by providing money to a member who was
injured or to a member's family to pay for his
funeral.
The journeyones transformed these
associations into proto-labor unions, and they
invented the strike. The associations set the
price the members would accept for the items
which the members produced (in today's terms,
they set the union scale), and they enforced
the price scale by refusing to work for (i.e.,
striking) any master who employed a journeyone
who was not a member of the association.
•The masters counter-attacked by accusing
the journeyones of participating in a criminal
conspiracy, and the courts held that strikes
were illegal.

a

The masters paid the workers who made the items, such as
shoes, on a piece-rate system: x dollars for each pair of
shoes. The workers typically owned their own tools and worked
in their homes. Thus, the workers were not employees in the
modern sense of the word, but were more like independent
contractors.

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NLRB v. Hearst Publications
•Workers, naturally, tried to convince
the courts that strikes should not be
considered
criminal
conspiracies,
and
eventually succeeded (Commonwealth v. Hunt).
•Strikers had always tried to protect
their strikes by urging other workers not to
accept employment, and customers not to buy
goods, from the struck employer.
As cities
grew, strikers no longer knew other workers
and customers personally, so the strikers had
to find another way to protect their strikes.
Perhaps drawing from their experience during
the Civil War, they hit upon the idea of a
patrol or picket line in front of the
employer's business.
•For reasons we have mentioned, employers
found criminal law less and less useful in
combating strikes. Then it occurred to their
lawyers that civil law could be pressed into
use.
The employers accused the workers of
engaging in a civil conspiracy.
Civil law
allowed
employers
to
secure
injunctions
against picketing (Vegelahn v. Guntner).
•And so workers tried another tactic —
boycotts, both primary and secondary.
•Boycotts were effective, and employers
needed to curtail them. Anti-trust law proved
a handy tool for this purpose (the Danbury
Hatters case and Duplex v. Deering).
•Employers began to do business on a
national scale. One result was to drive down
wages to the lowest wage that workers in any
part of the country would accept; this became
the national wage because any employer paying
more could be undersold.
•Unions replied by trying to organize all
of the firms in the same industry.

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NLRB v. Hearst Publications
•Employers used anti-trust law to ban
union organizing if the union's purpose was to
protect unionized workers from competition
from non-union firms (the Coronado Coal
cases).
•Unions
efforts.

stepped

up

their

organizing

•Employers fired any employee who joined
a union and required new employees to promise
not to join a union (yellow dog contract).
Employers secured injunctions against union
organizing that led workers to disregard their
yellow dog contracts (Hitchman Coal v.
Mitchell).
•Unions became large and powerful enough
to influence the political process.
They
prevailed on Congress to pass the Erdman Act,
which fostered collective bargaining on the
railroads
and
prohibited
discrimination
against union members. They also prevailed on
states like Kansas to outlaw yellow dog
contracts (thus blocking injunctions against
organizing).
•Employers persuaded the courts to hold
unconstitutional both the Erdman Act and the
statutes outlawing yellow dog contracts. The
judges said that these laws infringed on
liberty of contract and that employers had a
constitutional right to refuse to hire or to
fire a worker for joining a union. Employers
also
secured
injunctions
against
union
organizing on the ground that it interfered
with their yellow dog contracts.
•Unions induced Congress to enact the
Norris-LaGuardia Act, sharply limiting the use
of injunctions from federal courts in labor
disputes.
The National Labor Relations Act did not stop the
war, though the act did channel some of the conflict into
collective bargaining. The war continues today, as the
student will notice as we examine cases under the Labor

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NLRB v. Hearst Publications

Act. We cannot attend to all of the issues, but we can
mention three of the more interesting new battle grounds.
One is employers' increasing use of temporary employees,
who do not have the right to organize and demand
collective bargaining.
A second new battle ground is employers' increasing
use of subcontracts with other firms. Instead of hiring
janitors (or clerks or accountants, etc.), a firm (the
"user firm" or "client firm") makes a contract with
another firm (the "provider firm" or "supplier firm")
under which the latter supplies janitors (or clerks,
etc.) to former. The workers are hired, compensated, and
fired by the supplier firm, and legally they are
employees of the supplier. There is no doubt that the
workers may organize and bargain collectively with the
supplier firm, but such bargaining is often severely
limited because of the contract between the supplier and
the user; for instance, if the contract provides that the
supplier will provide all janitorial work for a total of
x dollars, the supplier will not agree to raising the
workers' wages if the raise would cause the supplier's
costs to exceed x dollars.
For this reason, workers
often seek to bargain collectively with the user firm as
well.
If the workers perform their duties off the
premises of the user firm, they are employees only of the
supplier and may not demand to bargain with the user.
Often, however, the workers perform their duties on the
premises of the user. If the user supervises their work,
the law may consider the workers to be employees of both
the supplier and the user.
It is unclear, however,
whether the Labor Act will allow workers to force two
such employers to bargain jointly with the union.
A third new battle ground is firms' increasing use
of subcontracts with individual workers, who are often
called "contingent workers."
Contingent workers are
independent contractors in the eyes of the law. A firmb

b

We use the term "firm" rather than "employer" because no
employment relationship exists between a firm and an
independent contractor; indeed, the firm's purpose in dealing
with independent contractors is to avoid establishing an
employment relationship. Whether the firm has achieved this
purpose is often contested. Desiring the protection of the
(continued...)

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v

has few obligations to an independent contractor other
than the payment of money; for example, the firm owes no
payroll taxes on independent contractors and usually
provides them with no fringe benefits. Correspondingly,
an independent contractor has few rights against the firm
except to receive the contract price.
Most importantly for the purpose of labor law, an
independent contractor is not an employee under the Labor
Act. In consequence, an independent contractor is not
protected against acts that would be unfair labor
practices if committed against an employee (e.g.,
discharge for supporting a union), and an employer need
not bargain collectively with an organization that
represents independent contractors.c
Accordingly,
whether a worker is an employee or an independent
contractor is a significant question.
Two types of issue lurk in the following case. One
is an issue of law, and the other is an issue of
application of law to fact. The student should identify
each of these issues and keep separate in one's mind the
arguments that apply to each of them.

b

(...continued)
law, workers often claim that, despite the firm's effort to
characterize them as independent contractors, they are really
employees. Thus, the issue in this sort of case is whether
the firm is, or is not, the employer of the workers, and to
use the term "employer" would be to prejudge the case.
c

Several other consequences follow from being classified
as an independent contractor instead of an employee.
For
example, an independent contractor is not covered by workers'
compensation and unemployment insurance programs.

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NLRB v. Hearst Publications et al.
322 U.S. 111 (1944)

Mr. Justice RUTLEDGE delivered the opinion of the Court.
These cases arise from the refusal of respondents, publishers of four Los
Angeles daily newspapers, to bargain collectively with a union representing newsboys
who distribute their papers on the streets of that city. Respondents' contention that
they were not required to bargain because the newsboys are not their "employees"
within the meaning of that term in the National Labor Relations Act, § 2(3), presents
the important question which we granted certiorari to resolve.
The proceedings before the National Labor Relations Board were begun with
the filing of four petitions for investigation and certification by Los Angeles
Newsboys Local Industrial Union No. 75. Hearings were held in a consolidated
proceeding after which the Board made findings of fact and concluded that the regular
full-time newsboys selling each paper were employees within the Act and that
questions affecting commerce concerning the representation of employees had arisen.
It designated appropriate units and ordered elections. At these the union was selected
as their representative by majorities of the eligible newsboys. After the union was
appropriately certified, the respondents refused to bargain with it. Thereupon
proceedings under § 10 were instituted, a hearing was held and respondents were
found to have violated §§ 8 (1) and 8 (5) of the Act. They were ordered to cease and
desist from such violations and to bargain collectively with the union upon request.
Upon respondents' petitions for review and the Board's petitions for
enforcement, the Circuit Court of Appeals, one judge dissenting, set aside the Board's
orders. Rejecting the Board's analysis, the court independently examined the question
whether the newsboys are employees within the Act, decided that the statute imports
common-law standards to determine that question, and held the newsboys are not
employees. 136 F.2d 608.
...The findings of the Board disclose that the Los Angeles Times and the Los
Angeles Examiner, published daily and Sunday, are morning papers. Each publishes
several editions which are distributed on the streets during the evening before their
dateline, between about 6:00 or 6:30 p.m. and 1:00 a.m., and other editions
distributed during the following morning until about 10:00 o'clock. The Los Angeles
Evening Herald and Express, published every day but Sunday, is an evening paper,
which has six editions on the presses between 9:00 a.m. and 5:30 p.m. The News,
also published every day but Sunday, is a twenty-four hour paper with ten editions.
The papers are distributed to the ultimate consumer through a variety of
channels, including independent dealers and newsstands often attached to drug,
grocery or confectionery stores, carriers who make home deliveries, and newsboys

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vii

who sell on the streets of the city and its suburbs. Only the last of these are involved
in this case.
The newsboys work under varying terms and conditions. They may be
"bootjackers," selling to the general public at places other than established corners,
or they may sell at fixed "spots." They may sell only casually or part-time, or fulltime; and they may be employed regularly and continuously or only temporarily. The
units which the Board determined to be appropriate are composed of those who sell
full-time at established spots. Those vendors, misnamed boys, are generally mature
men, dependent upon the proceeds of their sales for their sustenance, and frequently
supporters of families. Working thus as news vendors on a regular basis, often for
a number of years, they form a stable group with relatively little turnover, in contrast
to schoolboys and others who sell as bootjackers, temporary and casual distributors.
Over-all circulation and distribution of the papers are under the general
supervision of circulation managers. But for purposes of street distribution each
paper has divided metropolitan Los Angeles into geographic districts. Each district
is under the direct and close supervision of a district manager. His function in the
mechanics of distribution is to supply the newsboys in his district with papers which
he obtains from the publisher and to turn over to the publisher the receipts which he
collects from their sales....
The newsboys' compensation consists in the difference between the prices at
which they sell the papers and the prices they pay for them. The former are fixed by
the publishers and the latter are fixed either by the publishers or, in the case of the
News, by the district manager. In practice the newsboys receive their papers on
credit. They pay for those sold either sometime during or after the close of their
selling day, returning for credit all unsold papers. Lost or otherwise unreturned
papers, however, must be paid for as though sold. Not only is the "profit" per paper
thus effectively fixed by the publisher, but substantial control of the newsboys' total
"take home" can be effected through the ability to designate their sales areas and the
power to determine the number of papers allocated to each. While as a practical
matter this power is not exercised fully, the newsboys' "right" to decide how many
papers they will take is also not absolute. In practice, the Board found, they cannot
determine the size of their established order without the cooperation of the district
manager. And often the number of papers they must take is determined unilaterally
by the district managers.
In addition to effectively fixing the compensation, respondents in a variety of
ways prescribe, if not the minutiae of daily activities, at least the broad terms and
conditions of work. This is accomplished largely through the supervisory efforts of
the district managers, who serve as the nexus between the publishers and the

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newsboys. The district managers assign "spots" or corners to which the newsboys are
expected to confine their selling activities.16 Transfers from one "spot" to another
may be ordered by the district manager for reasons of discipline or efficiency or other
cause. Transportation to the spots from the newspaper building is offered by each of
respondents. Hours of work on the spots are determined not simply by the impersonal
pressures of the market, but to a real extent by explicit instructions from the district
managers. Adherence to the prescribed hours is observed closely by the district
managers or other supervisory agents of the publishers. Sanctions, varying in severity
from reprimand to dismissal, are visited on the tardy and the delinquent. By similar
supervisory controls minimum standards of diligence and good conduct while at work
are sought to be enforced. However wide may be the latitude for individual initiative
beyond those standards, district managers' instructions in what the publishers
apparently regard as helpful sales technique are expected to be followed. Such varied
items as the manner of displaying the paper, of emphasizing current features and
headlines, and of placing advertising placards, or the advantages of soliciting
customers at specific stores or in the traffic lanes are among the subjects of this
instruction. Moreover, newsboys are furnished with sales equipment, such as racks,
boxes and change aprons, and advertising placards by the publishers. In this pattern
of employment the Board found that the newsboys are an integral part of the
publishers' distribution system and circulation organization. And the record discloses
that the newsboys and checkmen feel they are employees of the papers; and
respondents' supervisory employees, if not respondents themselves, regard them as
such.
In addition to questioning the sufficiency of the evidence to sustain these
findings, respondents point to a number of other attributes characterizing their
relationship with the newsboys17 and urge that on the entire record the latter cannot
be considered their employees. They base this conclusion on the argument that by
16

Although from time to time these "spots" are bought and sold among the vendors
themselves, without objection by district managers and publishers, this in no way negates
the need for the district managers' implicit approval of a spotholder or their authority to
remove vendors from their "spots" for reasons of discipline or efficiency.
17

E. g., that there is either no evidence in the record to show, or the record explicitly
negatives, that respondents carry the newsboys on their payrolls, pay "salaries" to them,
keep records of their sales or locations, or register them as "employees" with the Social
Security Board, or that the newsboys are covered by workmen's compensation insurance or
the California Compensation Act. Furthermore, it is urged the record shows that the
newsboys all sell newspapers, periodicals and other items not furnished to them by their
respective publishers, assume the risk for papers lost, stolen or destroyed, purchase and sell
their "spots," hire assistants and relief men and make arrangements among themselves for
the sale of competing or leftover papers.

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ix

common-law standards the extent of their control and direction of the newsboys'
working activities creates no more than an "independent contractor" relationship and
that common-law standards determine the "employee" relationship under the Act.
They further urge that the Board's selection of a collective bargaining unit is neither
appropriate nor supported by substantial evidence.
I
The principal question is whether the newsboys are "employees." Because
Congress did not explicitly define the term, respondents say its meaning must be
determined by reference to common-law standards. In their view "common-law
standards" are those the courts have applied in distinguishing between "employees"
and "independent contractors" when working out various problems unrelated to the
Wagner Act's purposes and provisions.
The argument assumes that there is some simple, uniform and easily
applicable test which the courts have used, in dealing with such problems, to
determine whether persons doing work for others fall in one class or the other.
Unfortunately this is not true. Only by a long and tortuous history was the simple
formulation worked out which has been stated most frequently as "the test" for
deciding whether one who hires another is responsible in tort for his wrongdoing.
But this formula has been by no means exclusively controlling in the solution of other
problems. And its simplicity has been illusory because it is more largely simplicity
of formulation than of application. Few problems in the law have given greater
variety of application and conflict in results than the cases arising in the borderland
between what is clearly an employer-employee relationship and what is clearly one
of independent, entrepreneurial dealing. This is true within the limited field of
determining vicarious liability in tort. It becomes more so when the field is expanded
to include all of the possible applications of the distinction.
It is hardly necessary to stress particular instances of these variations or to
emphasize that they have arisen principally, first, in the struggle of the courts to work
out common-law liabilities where the legislature has given no guides for judgment,
more recently also under statutes which have posed the same problem for solution in
the light of the enactment's particular terms and purposes. It is enough to point out
that, with reference to an identical problem, results may be contrary over a very
considerable region of doubt in applying the distinction, depending upon the state or
jurisdiction where the determination is made; and that within a single jurisdiction a
person who, for instance, is held to be an "independent contractor" for the purpose of
imposing vicarious liability in tort may be an "employee" for the purposes of
particular legislation, such as unemployment compensation. In short, the assumed
simplicity and uniformity, resulting from application of "common-law standards,"

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does not exist.
Mere reference to these possible variations as characterizing the application
of the Wagner Act in the treatment of persons identically situated in the facts
surrounding their employment and in the influences tending to disrupt it, would be
enough to require pause before accepting a thesis which would introduce them into
its administration. This would be true, even if the statute itself had indicated less
clearly than it does the intent they should not apply.
Two possible consequences could follow. One would be to refer the decision
of who are employees to local state law. The alternative would be to make it turn on
a sort of pervading general essence distilled from state law. Congress obviously did
not intend the former result. It would introduce variations into the statute's operation
as wide as the differences the forty-eight states and other local jurisdictions make in
applying the distinction for wholly different purposes. Persons who might be
"employees" in one state would be "independent contractors" in another. They would
be within or without the statute's protection depending not on whether their situation
falls factually within the ambit Congress had in mind, but upon the accidents of the
location of their work and the attitude of the particular local jurisdiction in casting
doubtful cases one way or the other. Persons working across state lines might fall in
one class or the other, possibly both, depending on whether the Board and the courts
would be required to give effect to the law of one state or of the adjoining one, or to
that of each in relation to the portion of the work done within its borders.
Both the terms and the purposes of the statute, as well as the legislative
history, show that Congress had in mind no such patchwork plan for securing
freedom of employees' organization and of collective bargaining. The Wagner Act
is federal legislation, administered by a national agency, intended to solve a national
problem on a national scale. It is an Act, therefore, in reference to which it is not only
proper but necessary for us to assume, "in the absence of a plain indication to the
contrary, that Congress ... is not making the application of the federal act dependent
on state law." Jerome v. United States, 318 U.S. 101, 104. Nothing in the statute's
background, history, terms or purposes indicates its scope is to be limited by such
varying local conceptions, either statutory or judicial, or that it is to be administered
in accordance with whatever different standards the respective states may see fit to
adopt for the disposition of unrelated, local problems. Consequently, so far as the
meaning of "employee" in this statute is concerned, "the federal law must prevail no
matter what name is given to the interest or right by state law." Morgan v.
Commissioner, 309 U.S. 78, 81.

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xi

II
Whether, given the intended national uniformity, the term "employee"
includes such workers as these newsboys must be answered primarily from the
history, terms and purposes of the legislation. The word "is not treated by Congress
as a word of art having a definite meaning...." Rather, "it takes color from its
surroundings ... [in] the statute where it appears," United States v. American Trucking
Assns., 310 U.S. 534, 545, and derives meaning from the context of that statute,
which "must be read in the light of the mischief to be corrected and the end to be
attained." South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 259.
Congress, on the one hand, was not thinking solely of the immediate technical
relation of employer and employee. It had in mind at least some other persons than
those standing in the proximate legal relation of employee to the particular employer
involved in the labor dispute. It cannot be taken, however, that the purpose was to
include all other persons who may perform service for another or was to ignore
entirely legal classifications made for other purposes. Congress had in mind a wider
field than the narrow technical legal relation of "master and servant," as the common
law had worked this out in all its variations, and at the same time a narrower one than
the entire area of rendering service to others. The question comes down therefore to
how much was included of the intermediate region between what is clearly and
unequivocally "employment," by any appropriate test, and what is as clearly
entrepreneurial enterprise and not employment.
It will not do, for deciding this question as one of uniform national
application, to import wholesale the traditional common-law conceptions or some
distilled essence of their local variations as exclusively controlling limitations upon
the scope of the statute's effectiveness. To do this would be merely to select some of
the local, hairline variations for nation-wide application and thus to reject others for
coverage under the Act. That result hardly would be consistent with the statute's
broad terms and purposes.
Congress was not seeking to solve the nationally harassing problems with
which the statute deals by solutions only partially effective. It rather sought to find
a broad solution, one that would bring industrial peace by substituting, so far as its
power could reach, the rights of workers to self-organization and collective
bargaining for the industrial strife which prevails where these rights are not
effectively established. Yet only partial solutions would be provided if large
segments of workers about whose technical legal position such local differences exist
should be wholly excluded from coverage by reason of such differences. Yet that
result could not be avoided, if choice must be made among them and controlled by
them in deciding who are "employees" within the Act's meaning. Enmeshed in such

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distinctions, the administration of the statute soon might become encumbered by the
same sort of technical legal refinement as has characterized the long evolution of the
employee-independent contractor dichotomy in the courts for other purposes. The
consequences would be ultimately to defeat, in part at least, the achievement of the
statute's objectives. Congress no more intended to import this mass of technicality
as a controlling "standard" for uniform national application than to refer decision of
the question outright to the local law.
The Act, as its first section states, was designed to avert the "substantial
obstructions to the free flow of commerce" which result from "strikes and other forms
of industrial strife or unrest" by eliminating the causes of that unrest. It is premised
on explicit findings that strikes and industrial strife themselves result in large measure
from the refusal of employers to bargain collectively and the inability of individual
workers to bargain successfully for improvements in their "wages, hours or other
working conditions" with employers who are "organized in the corporate or other
forms of ownership association." Hence the avowed and interrelated purposes of the
Act are to encourage collective bargaining and to remedy the individual worker's
inequality of bargaining power by "protecting the exercise . . . of full freedom of
association, self-organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions of their employment
or other mutual aid or protection." § 1.
The mischief at which the Act is aimed and the remedies it offers are not
confined exclusively to "employees" within the traditional legal distinctions
separating them from "independent contractors." Myriad forms of service
relationship, with infinite and subtle variations in the terms of employment, blanket
the nation's economy. Some are within this Act, others beyond its coverage. Large
numbers will fall clearly on one side or on the other, by whatever test may be applied.
But intermediate there will be many, the incidents of whose employment partake in
part of the one group, in part of the other, in varying proportions of weight. And
consequently the legal pendulum, for purposes of applying the statute, may swing one
way or the other, depending upon the weight of this balance and its relation to the
special purpose at hand.
Unless the common-law tests are to be imported and made exclusively
controlling, without regard to the statute's purposes, it cannot be irrelevant that the
particular workers in these cases are subject, as a matter of economic fact, to the evils
the statute was designed to eradicate and that the remedies it affords are appropriate
for preventing them or curing their harmful effects in the special situation.
Interruption of commerce through strikes and unrest may stem as well from labor
disputes between some who, for other purposes, are technically "independent
contractors" and their employers as from disputes between persons who, for those

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xiii

purposes, are "employees" and their employers. Inequality of bargaining power in
controversies over wages, hours and working conditions may as well characterize the
status of the one group as of the other. The former, when acting alone, may be as
"helpless in dealing with an employer," as "dependent ... on his daily wage" and as
"unable to leave the employ and to resist arbitrary and unfair treatment" as the latter.
For each, "union ... [may be] essential to give ... opportunity to deal on equality with
their employer."25 And for each, collective bargaining may be appropriate and
effective for the "friendly adjustment of industrial disputes arising out of differences
as to wages, hours, or other working conditions."26 In short, when the particular
situation of employment combines these characteristics, so that the economic facts
of the relation make it more nearly one of employment than of independent business
enterprise with respect to the ends sought to be accomplished by the legislation, those
characteristics may outweigh technical legal classification for purposes unrelated to
the statute's objectives and bring the relation within its protections.
To eliminate the causes of labor disputes and industrial strife, Congress
thought it necessary to create a balance of forces in certain types of economic
relationships. These do not embrace simply employment associations in which
controversies could be limited to disputes over proper "physical conduct in the
performance of the service."27 On the contrary, Congress recognized those economic
relationships cannot be fitted neatly into the containers designated "employee" and
"employer" which an earlier law had shaped for different purposes. Its Reports on the
bill disclose clearly the understanding that "employers and employees not in
proximate relationship may be drawn into common controversies by economic
forces,"28 and that the very disputes sought to be avoided might involve "employees
[who] are at times brought into an economic relationship with employers who are not

25

American Steel Foundries Co. v. Tri-City Council, 257 U.S. 184, 209, cited in H.
R. Rep. No. 1147, 74th Cong., 1st Sess. 10.
26

The practice of self-organization and collective bargaining to resolve labor
disputes has for some time been common among such varied types of "independent
contractors" as musicians, actors, and writers, and such atypical "employees" as insurance
agents, artists, architects and engineers. {Citations omitted.}
27

Control of "physical conduct in the performance of the service" is the traditional
test of the "employee relationship" at common law. Cf., e. g., Restatement of the Law of
Agency § 220 (1)
28

Sen. Rep. No. 573, 74th Cong., 1st Sess. 7.

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their employers."29 In this light, the broad language of the Act's definitions, which in
terms reject conventional limitations on such conceptions as "employee," "employer,"
and "labor dispute," leaves no doubt that its applicability is to be determined broadly,
in doubtful situations, by underlying economic facts rather than technically and
exclusively by previously established legal classifications.
Hence "technical concepts pertinent to an employer's legal responsibility to
third persons for acts of his servants" have been rejected in various applications of
this Act both here (International Association of Machinists v. Labor Board, 311 U.S.
72, 80-81; H. J. Heinz Co. v. Labor Board, 311 U.S. 514, 520-521) and in other
federal courts. There is no good reason for invoking them to restrict the scope of the
term "employee" sought to be done in this case. That term, like other provisions,
must be understood with reference to the purpose of the Act and the facts involved
in the economic relationship. "Where all the conditions of the relation require
protection, protection ought to be given."33
It is not necessary in this case to make a completely definitive limitation
around the term "employee." That task has been assigned primarily to the agency
created by Congress to administer the Act. Determination of "where all the
conditions of the relation require protection" involves inquiries for the Board charged
with this duty. Everyday experience in the administration of the statute gives it
familiarity with the circumstances and backgrounds of employment relationships in
various industries, with the abilities and needs of the workers for self-organization
and collective action, and with the adaptability of collective bargaining for the
peaceful settlement of their disputes with their employers. The experience thus
acquired must be brought frequently to bear on the question who is an employee
under the Act. Resolving that question, like determining whether unfair labor
practices have been committed, "belongs to the usual administrative routine" of the
Board. Gray v. Powell, 314 U.S. 402, 411.
In making that body's determinations as to the facts in these matters
conclusive, if supported by evidence, Congress entrusted to it primarily the decision
whether the evidence establishes the material facts. Hence in reviewing the Board's
ultimate conclusions, it is not the court's function to substitute its own inferences of
fact for the Board's, when the latter have support in the record. Undoubtedly
questions of statutory interpretation, especially when arising in the first instance in
judicial proceedings, are for the courts to resolve, giving appropriate weight to the
judgment of those whose special duty is to administer the questioned statute. But
29

Sen. Rep. No. 573, 74th Cong., 1st Sess. 6.

33

Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 552 (C. C. A.).

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xv

where the question is one of specific application of a broad statutory term in a
proceeding in which the agency administering the statute must determine it initially,
the reviewing court's function is limited. . . . [T]the Board's determination that
specified persons are "employees" under this Act is to be accepted if it has "warrant
in the record" and a reasonable basis in law.
In this case the Board found that the designated newsboys work continuously
and regularly, rely upon their earnings for the support of themselves and their
families, and have their total wages influenced in large measure by the publishers,
who dictate their buying and selling prices, fix their markets and control their supply
of papers. Their hours of work and their efforts on the job are supervised and to some
extent prescribed by the publishers or their agents. Much of their sales equipment and
advertising materials is furnished by the publishers with the intention that it be used
for the publisher's benefit. Stating that "the primary consideration in the determination
of the applicability of the statutory definition is whether effectuation of the declared
policy and purposes of the Act comprehend securing to the individual the rights
guaranteed and protection afforded by the Act," the Board concluded that the
newsboys are employees. The record sustains the Board's findings and there is ample
basis in the law for its conclusion.
...
The judgments are reversed and the causes are remanded for further
proceedings not inconsistent with this opinion.

Mr. Justice ROBERTS, dissenting.
I think the judgment of the Circuit Court of Appeals should be affirmed. The
opinion of that court seems to me adequately to state the controlling facts and
correctly to deal with the question of law presented for decision. I should not add
anything were it not for certain arguments presented here and apparently accepted by
the court.
I think it plain that newsboys are not "employees" of the respondents within
the meaning and intent of the National Labor Relations Act. When Congress, in § 2
(3), said "The term 'employee' shall include any employee ...," it stated as clearly as
language could do it that the provisions of the Act were to extend to those who, as a
result of decades of tradition which had become part of the common understanding
of our people, bear the named relationship. Clearly also Congress did not delegate
to the National Labor Relations Board the function of defining the relationship of
employment so as to promote what the Board understood to be the underlying

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purpose of the statute. The question who is an employee, so as to make the statute
applicable to him, is a question of the meaning of the Act and, therefore, is a judicial
and not an administrative question.
I do not think that the court below suggested that the federal courts sitting in
the various states must determine whether a given person is an employee by
application of either the local statutes or local state decisions. Quite the contrary. As
a result of common law development, many prescriptions of federal statutes take on
meaning which is uniformly ascribed to them by the federal courts, irrespective of
local variance. This court has repeatedly resorted to just such considerations in
defining the very term "employee" as used in other federal statutes, as the opinion of
the court below shows. There is a general and prevailing rule throughout the Union
as to the indicia of employment and the criteria of one's status as employee.
Unquestionably it was to this common, general, and prevailing understanding that
Congress referred in the statute and, according to that understanding, the facts stated
in the opinion below, and in that of this court, in my judgment, demonstrate that the
newsboys were not employees of the newspapers.
It is urged that the Act uses the term in some loose and unusual sense such as
justifies the Board's decision because Congress added to the definition of employee
above quoted these further words: "and shall not be limited to the employees of a
particular employer, unless the Act explicitly states otherwise ..." The suggestion
seems to be that Congress intended that the term employee should mean those who
were not in fact employees, but it is perfectly evident, not only from the provisions
of the Act as a whole but from the Senate Committee's Report, that this phrase was
added to prevent any misconception of the provisions whereby employees were to be
allowed freely to combine and to be represented in collective bargaining by the
representatives of their union. Congress intended to make it clear that employee
organizations did not have to be organizations of the employees of any single
employer. But that qualifying phrase means no more than this and was never
intended to permit the Board to designate as employees those who, in traditional
understanding, have no such status.

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xvii

QUESTIONS FOR REFLECTION
What was the issue of law in this case, and what was
its resolution? What was the issue of application of law
to fact, and what was its resolution?
Comment
In footnote 27, the Majority stated the common law
standard:
Control of "physical conduct in the performance of
the service" is the traditional test of the
"employee relationship" at common law.

Today this standard is more commonly called the "right of
control" test. Congress believed that this standard, and
not the majority's "economic realities" test, was the
right one and included in the Taft-Hartley Act an
amendment to overrule the decision in Hearst.
The
amendment was brief; the words emphasized in the
following quotation were added to section 2(3):
The term "employee" ... shall not include ... any
individual having the status of an independent
contractor....

The House report accompanying the Taft-Hartley amendment
to section 2(3) summarized the difference between
employees and independent contractors:
"{E}mployees" work for wages or salaries under
direct supervision.
"Independent contractors"
undertake to do a job for a price, decide how the
work will be done, usually hire others to do the
work, and depend for their income not upon wages
but upon the difference between what they pay for
goods, materials, and labor and what they receive
for the end result, that is, profits.

This passage provides reasonably good guidance as to the
factors that define an independent contractor; the report
stresses the entrepreneurial aspects of the work. The
report provides much less guidance as to the factors that
define an employee; it says only that an employee works
under "direct supervision." This term may be considered
synonymous with the term "right to control" which is
widely used today. In brief, if the firm has the power

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to direct the worker as to when, where, and how to do the
job, the worker is an employee. (The power to direct
need not be exercised in a given case; it suffices that
the firm has the power to direct as to these details.)
But if the firm merely specifies the end product of the
job, leaving the worker to decide when, where, and how to
do the work, the worker is an independent contractor.

Ù

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306

The Duty of Fair Representation
Introduction
In all the free world except the United States and
Canada, the principle of freedom of association implies
that a worker is free to join the union of one's choice
and to be represented by that union vis-a-vis the
employer.
Under this regime, which we may call
"multiplicity of representation," there is little or no
problem of tyranny of the majority. If the majority of
a union made a decision that was unacceptable to a
minority (for example, to bargain for a large increase in
pension
benefits
instead
of
a
raise
in
pay),
dissatisfied individuals could leave the union and either
choose another union to represent them or bargain for
themselves as individuals.
In contrast, in the United States and Canada, the
majority of workers in a bargaining unit decides whether
to be represented by a union. If the majority rejects
unionization, each worker must bargain as an individual
with the employer.a If the majority chooses to unionize,
it also decides which union will represent all of the
workers.b
Under
this
regime,
which
is
called
"exclusivity of representation," tyranny of the majority
is a constant threat. Whatever the majority decides is
binding on every individual; and as long as the majority
of workers in the bargaining unit wants the union, it
will represent all the workers, including the minority.
The duty of fair representation has evolved as a measure
of protection for minorities within unions.
As you read the following case, it will be helpful
for you to be familiar with the doctrine of exhaustion of
remedies.
The doctrine requires that, before one may

a

The worker may join a union, but the employer need not
recognize the union as the worker's bargaining agent.
b

The worker need not join this union, though non-members may
be required to pay for the union's services. A worker who
chooses not to join the union designated by the majority may
join another union, but the employer may not recognize this
union as the worker's bargaining agent.

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Vaca v. Sipes

file a lawsuit, one must invoke and exhaust any
administrative remedies that may exist.
For example,
suppose state law provides that a student who believes
that a college has treated one unfairly may file a
complaint with the president of the college.
If the
president's decision is unsatisfactory, the student may
appeal to the Intercollegiate Review Board, which sits in
panels of professors and administrators who are not
associated with the student's college.
Now suppose a
student believes that her professor gave her a low grade
because she disagreed with the professor in class, and,
without going to the president of her university or the
Review Board, she sues the university. The court will
dismiss her case because she has not exhausted an
available administrative remedy. Suppose she complains
to the president of the college, who rules against her,
and then, without appealing to the Review Board, she
sues.
The court will dismiss her case for the same
reason.
There is an exception to exhaustion of remedies: if
pursuing administrative remedies would plainly be futile,
one may sue in court at once.
Thus, our student's
lawsuit would not be dismissed if she could convince the
court that the president of her college and the Review
Board were so prejudiced against her that they could not
render an impartial decision.
Collective bargaining agreements commonly contain
grievance procedures that end with binding arbitration.
These procedures are a species of administrative remedy.
Thus, the doctrine of exhaustion of remedies generally
precludes a union from filing an unfair labor practice
charge against an employer, or vice-versa, for breach of
a labor contract until the grievance/arbitration
procedure has been carried to completion.
It may also be helpful for you to know more than the
Court tells you about Smith v. Evening News. A newspaper
publisher had a valid collective bargaining agreement
with a union that represented a unit of building
maintenance workers. A clause in the agreement provided
that the newspaper would not discriminate against any
member of the unit because of membership in the union.
When another union went on strike against the newspaper,
the maintenance workers were willing to cross the picket
line and continue working; but the newspaper locked them

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iii

out. However, the newspaper did not lock out non-union
employees.
Smith, a maintenance worker, sued the
newspaper for breach of contract, arguing the newspaper
had violated the non-discrimination clause of the
agreement. The newspaper moved to dismiss the suit on
the ground that the federal courts lacked jurisdiction,
but the Supreme Court held that § 301 of the Labor Act
allows federal courts to hear cases brought by individual
workers to vindicate their rights under a collective
agreement. Exhaustion of remedies did not apply to the
Smith case because the agreement did not contain a
grievance/arbitration procedure.
As in Hearst, the Court in the following case
resolves two different types of issue, an issue of law
and an issue of application of law to fact. The student
should identify each of these issues and separate in
one's mind the arguments that apply to each of them.

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Vaca v. Sipes

386 U.S. 171 (1967)
Mr. Justice WHITE delivered the opinion of the Court.
On February 13, 1962, Benjamin Owens filed this class action against
petitioners as officers and representatives of the National Brotherhood of
Packinghouse Workers and of its Kansas City Local No. 12 (the Union) [including
the president of Local 12, Vaca], in the Circuit Court of Jackson County, Missouri.
Owens, a Union member, alleged that he had been discharged from his employment
at Swift & Company's (Swift) Kansas City Meat Packing Plant in violation of the
collective bargaining agreement then in force between Swift and the Union, and that
the Union had "arbitrarily, capriciously and without just or reasonable reason or
cause" refused to take his grievance with Swift to arbitration under the fifth step of
the bargaining agreement's grievance procedures.
... After a jury trial, a verdict was returned awarding Owens $7,000
compensatory and $3,300 punitive damages. The trial judge set aside the verdict and
entered judgment for [the unions].... The Supreme Court of Missouri reversed and
directed reinstatement of the jury's verdict. During the appeal, Owens died and
respondent [Sipes], the administrator of Owens' estate, was substituted. We granted
certiorari to consider whether the finding of Union liability and the relief afforded
Owens are consistent with governing principles of federal labor law. ...[W]e conclude
... the governing federal standards were not applied here, and that the judgment of the
Supreme Court of Missouri must accordingly be reversed.
In mid-1959, Owens, a long-time high blood pressure patient, became sick
and entered a hospital on sick leave from his employment with Swift. After a long
rest during which his weight and blood pressure were reduced, Owens was certified
by his family physician as fit to resume his heavy work in the packing plant.
However, Swift's company doctor examined Owens upon his return and concluded
that his blood pressure was too high to permit reinstatement. After securing a second
authorization from another outside doctor, Owens returned to the plant, and a nurse
permitted him to resume work on January 6, 1960. However, on January 8, when the
[Company] doctor discovered Owens' return, he was permanently discharged on the
ground of poor health.
Armed with his medical evidence of fitness, Owens then sought the Union's
help in securing reinstatement, and a grievance was filed with Swift on his behalf.
By mid-November 1960, the grievance had been processed through the third and into
the fourth step of the grievance procedure established by the collective bargaining

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v

agreement.c Swift adhered to its position that Owens' poor health justified his
discharge, rejecting numerous medical reports of reduced blood pressure proffered
by Owens and by the Union. Swift claimed that these reports were not based upon
sufficiently thorough medical tests.
On February 6, 1961, the Union sent Owens to a new doctor at Union expense
"to see if we could get some better medical evidence so that we could go to
arbitration with his case." This examination did not support Owens' position. When
the Union received the report, its executive board voted not to take the Owens
grievance to arbitration because of insufficient medical evidence. Union officers
suggested to Owens that he accept Swift's offer of referral to a rehabilitation center,
and the grievance was suspended for that purpose. Owens rejected this alternative
and demanded that the Union take his grievance to arbitration, but the Union refused.
With his contractual remedies thus stalled at the fourth step, Owens brought this suit.
The grievance was finally dismissed by the Union and Swift shortly before trial
began in June 1964.
In his charge to the jury, the trial judge instructed that petitioners would be
liable if Swift had wrongfully discharged Owens and if the Union had "arbitrarily ...
and without just cause or excuse ... refused" to press Owens' grievance to arbitration.
Punitive damages could also be awarded, the trial judge charged, if the Union's
conduct was "willful, wanton and malicious." However, the jury must return a verdict
for the defendants, the judge instructed, "if you find and believe from the evidence
that the union and its representatives acted reasonably and in good faith in the
handling and processing of the grievance of the plaintiff." The jury then returned the
general verdict for Owens which eventually was reinstated by the Missouri Supreme
Court.
It is now well established that, as the exclusive bargaining representative of
the employees in Owens' bargaining unit, the Union had a statutory duty fairly to
represent all of those employees, both in its collective bargaining with Swift and in
its enforcement of the resulting collective bargaining agreement. The statutory duty
of fair representation was developed over 20 years ago in a series of cases involving

c

The agreement created a five-step procedure for the handling of grievances. In steps one
and two, either the aggrieved employee or the Union's representative presents the grievance
first to Swift's department foreman, and then in writing to the division superintendent. In
step three, grievance committees of the Union and management meet, and the company must
state its position in writing to the Union. Step four is a meeting between Swift's general
superintendent and representatives of the National Union. If the grievance is not settled in
the fourth step, the National Union is given power to refer the grievance to a specified
arbitrator.

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Vaca v. Sipes

alleged racial discrimination by unions certified as exclusive bargaining
representatives under the Railway Labor Act, and was soon extended to unions
certified under the N.L.R.A. Under this doctrine, the exclusive agent's statutory
authority to represent all members of a designated unit includes a statutory obligation
to serve the interests of all members without hostility or discrimination toward any,
to exercise its discretion with complete good faith and honesty, and to avoid arbitrary
conduct. It is obvious that Owens' complaint alleged a breach by the Union of a duty
grounded in federal statutes, and that federal law therefore governs his cause of
action....
... For the fact is that the question of whether a union has breached its duty of
fair representation will in many cases be a critical issue in a suit under § 301
charging an employer with a breach of contract. To illustrate, let us assume a
collective bargaining agreement that limits discharges to those for good cause and
that contains no grievance, arbitration or other provisions purporting to restrict access
to the courts. If an employee is discharged without cause, either the union or the
employee may sue the employer under § 301. Under this section, courts have
jurisdiction over suits to enforce collective bargaining agreements even though the
conduct of the employer which is challenged as a breach of contract is also arguably
an unfair labor practice within the jurisdiction of the NLRB. Smith v. Evening News
Assn., 371 U.S. 195....
However, if the wrongfully discharged employee himself resorts to the courts
before the grievance procedures have been fully exhausted, the employer may well
defend on the ground that the exclusive remedies provided by such a contract have
not been exhausted. Since the employee's claim is based upon breach of the
collective bargaining agreement, he is bound by terms of that agreement which
govern the manner in which contractual rights may be enforced. For this reason, it
is settled that the employee must at least attempt to exhaust exclusive grievance and
arbitration procedures established by the bargaining agreement. However, because
these contractual remedies have been devised, and are often controlled, by the union
and the employer, they may well prove unsatisfactory or unworkable for the
individual grievant. The problem then is to determine under what circumstances the
individual employee may obtain judicial review of his breach-of-contract claim
despite his failure to secure relief through the contractual remedial procedures.
An obvious situation in which the employee should not be limited to the
exclusive remedial procedures established by the contract occurs when the conduct
of the employer amounts to a repudiation of those contractual procedures. In such
a situation (and there may, of course, be others), the employer is estopped by his own
conduct to rely on the unexhausted grievance and arbitration procedures as a defense
to the employee's cause of action.

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vii

We think that another situation when the employee may seek judicial
enforcement of his contractual rights arises if, as is true here, the union has sole
power under the contract to invoke the higher stages of the grievance procedure, and
if, as is alleged here, the employee-plaintiff has been prevented from exhausting his
contractual remedies by the union's wrongful refusal to process the grievance. It is
true that the employer in such a situation may have done nothing to prevent
exhaustion of the exclusive contractual remedies to which he agreed in the collective
bargaining agreement. But the employer has committed a wrongful discharge in
breach of that agreement, a breach which could be remedied through the grievance
process to the employee-plaintiff's benefit were it not for the union's breach of its
statutory duty of fair representation to the employee. To leave the employee
remediless in such circumstances would, in our opinion, be a great injustice. We
cannot believe that Congress, in conferring upon employers and unions the power to
establish exclusive grievance procedures, intended to confer upon unions such
unlimited discretion to deprive injured employees of all remedies for breach of
contract. Nor do we think that Congress intended to shield employers from the
natural consequences of their breaches of bargaining agreements by wrongful union
conduct in the enforcement of such agreements.
...
A breach of the statutory duty of fair representation occurs only when a
union's conduct toward a member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith. There has been considerable debate over the extent
of this duty in the context of a union's enforcement of the grievance and arbitration
procedures in a collective bargaining agreement. Some have suggested that every
individual employee should have the right to have his grievance taken to arbitration.
Others have urged that the union be given substantial discretion (if the collective
bargaining agreement so provides) to decide whether a grievance should be taken to
arbitration, subject only to the duty to refrain from patently wrongful conduct such
as racial discrimination or personal hostility.
Though we accept the proposition that a union may not arbitrarily ignore a
meritorious grievance or process it in perfunctory fashion, we do not agree that the
individual employee has an absolute right to have his grievance taken to arbitration
regardless of the provisions of the applicable collective bargaining agreement. In §
203 (d), Congress declared, "Final adjustment by a method agreed upon by the parties
is ... the desirable method for settlement of grievance disputes arising over the
application or interpretation of an existing collective-bargaining agreement." In
providing for a grievance and arbitration procedure which gives the union discretion
to supervise the grievance machinery and to invoke arbitration, the employer and the
union contemplate that each will endeavor in good faith to settle grievances short of

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arbitration. Through this settlement process, frivolous grievances are ended prior to
the most costly and time-consuming step in the grievance procedures. Moreover,
both sides are assured that similar complaints will be treated consistently, and major
problem areas in the interpretation of the collective bargaining contract can be
isolated and perhaps resolved. And finally, the settlement process furthers the
interest of the union as statutory agent and as coauthor of the bargaining agreement
in representing the employees in the enforcement of that agreement.
If the individual employee could compel arbitration of his grievance
regardless of its merit, the settlement machinery provided by the contract would be
substantially undermined, thus destroying the employer's confidence in the union's
authority and returning the individual grievant to the vagaries of independent and
unsystematic negotiation. Moreover, under such a rule, a significantly greater
number of grievances would proceed to arbitration. This would greatly increase the
cost of the grievance machinery and could so overburden the arbitration process as
to prevent it from functioning successfully. It can well be doubted whether the
parties to collective bargaining agreements would long continue to provide for
detailed grievance and arbitration procedures of the kind encouraged by § 203(d)
if their power to settle the majority of grievances short of the costlier and more timeconsuming steps was limited by a rule permitting the grievant unilaterally to invoke
arbitration. Nor do we see substantial danger to the interests of the individual
employee if his statutory agent is given the contractual power honestly and in good
faith to settle grievances short of arbitration. For these reasons, we conclude that a
union does not breach its duty of fair representation, and thereby open up a suit by
the employee for breach of contract, merely because it settled the grievance short of
arbitration.
...
Applying the proper standard of union liability to the facts of this case, we
cannot uphold the jury's award, for we conclude that as a matter of federal law the
evidence does not support a verdict that the Union breached its duty of fair
representation. As we have stated, Owens could not have established a breach of that
duty merely by convincing the jury that he was in fact fit for work in 1960; he must
also have proved arbitrary or bad-faith conduct on the part of the Union in processing
his grievance. The evidence revealed that the Union diligently supervised the
grievance into the fourth step of the bargaining agreement's procedure, with the
Union's business representative serving as Owens' advocate throughout these steps.
When Swift refused to reinstate Owens on the basis of his medical reports indicating
reduced blood pressure, the Union sent him to another doctor of his own choice, at
Union expense, in an attempt to amass persuasive medical evidence of Owens' fitness
for work. When this examination proved unfavorable, the Union concluded that it

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ix

could not establish a wrongful discharge. It then encouraged Swift to find light work
for Owens at the plant. When this effort failed, the Union determined that arbitration
would be fruitless and suggested to Owens that he accept Swift's offer to send him
to a heart association for rehabilitation. At this point, Owens' grievance was
suspended in the fourth step in the hope that he might be rehabilitated.
In administering the grievance and arbitration machinery as statutory agent
of the employees, a union must, in good faith and in a nonarbitrary manner, make
decisions as to the merits of particular grievances. In a case such as this, when
Owens supplied the Union with medical evidence supporting his position, the Union
might well have breached its duty had it ignored Owens' complaint or had it
processed the grievance in a perfunctory manner. But here the Union processed the
grievance into the fourth step, attempted to gather sufficient evidence to prove
Owens' case, attempted to secure for Owens less vigorous work at the plant, and
joined in the employer's efforts to have Owens rehabilitated. Only when these efforts
all proved unsuccessful did the Union conclude both that arbitration would be
fruitless and that the grievance should be dismissed. There was no evidence that any
Union officer was personally hostile to Owens or that the Union acted at any time
other than in good faith. Having concluded that the individual employee has no
absolute right to have his grievance arbitrated under the collective bargaining
agreement at issue, and that a breach of the duty of fair representation is not
established merely by proof that the underlying grievance was meritorious, we must
conclude that that duty was not breached here.
Mr. Justice BLACK, dissenting.
The Court today opens slightly the courthouse door to an employee's
incidental claim against his union for breach of its duty of fair representation, only
to shut it in his face when he seeks direct judicial relief for his underlying and more
valuable breach-of-contract claim against his employer. This result follows from the
Court's announcement in this case, involving an employee's suit against his union, of
a new rule to govern an employee's suit against his employer. The rule is that before
an employee can sue his employer under § 301 of the [Labor Act] for a simple breach
of his employment contract, the employee must prove not only that he attempted to
exhaust his contractual remedies, but that his attempt to exhaust them was frustrated
by "arbitrary, discriminatory, or ... bad faith" conduct on the part of his union. With
this new rule and its result I cannot agree.
... {Justice Black criticized the majority's holding that a worker like Mr.
Owens may sue one's employer for breach of the collective bargaining agreement
only if the worker succeeds in proving that the union breached its duty of fair
representation in dealing with the worker's claim. As a result of this holding, even

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if the employer infringed on the worker's right by breaching the collective agreement,
the worker's suit against the employer must be dismissed if the union observed its
duty of fair representation. Justice Black contended that whether the employer
breached the contract was not in any way related to whether the union satisfied the
duty of fair representation.}
... Today the Court holds that an employee with a meritorious claim has no
absolute right to have it either litigated or arbitrated. Fearing that arbitrators would
be overworked, the Court allows unions unilaterally to determine not to take a
grievance to arbitration—the first step in the contract grievance procedure at which
the claim would be presented to an impartial third party—as long as the union
decisions are neither "arbitrary" nor "in bad faith." The Court derives this standard
of conduct from a long line of cases holding that "[a] breach of the statutory duty of
fair representation occurs only when a union's conduct toward a member of the
collective bargaining unit is arbitrary, discriminatory, or in bad faith." What the
Court overlooks is that those cases laid down this standard in the context of situations
where the employee's sole or fundamental complaint was against the union. There
was not the slightest hint in those cases that the same standard would apply where the
employee's primary complaint was against his employer for breach of contract and
where he only incidentally contended that the union's conduct prevented the
adjudication, by either court or arbitrator, of the underlying grievance. If the Court
here were satisfied with merely holding that in this situation the employee could not
recover damages from the union unless the union breached its duty of fair
representation, then it would be one thing to say that the union did not do so in
making a good-faith decision not to take the employee's grievance to arbitration. But
if, as the Court goes on to hold, the employee cannot sue his employer for breach of
contract unless his failure to exhaust contractual remedies is due to the union's breach
of its duty of fair representation, then I am quite unwilling to say that the union's
refusal to exhaust such remedies—however nonarbitrary—does not amount to a
breach of its duty. Either the employee should be able to sue his employer for breach
of contract after having attempted to exhaust his contractual remedies, or the union
should have an absolute duty to exhaust contractual remedies on his behalf. The
merits of an employee's grievance would thus be determined by either a jury or an
arbitrator. Under today's decision it will never be determined by either.
And it should be clear that the Court's opinion goes much further than simply
holding that an employee has no absolute right to have the union take his grievance
to arbitration. Here, of course, the union supervised the grievance into the fourth step
of the contract machinery and dropped it just prior to arbitration on its belief that the
outcome of arbitration would be unfavorable. But limited only by the standard of
arbitrariness, there was clearly no need for the union to go that far. Suppose, for
instance, the union had a rule that it would not prosecute a grievance even to the first

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xi

step unless the grievance were filed by the employee within 24 hours after it arose.
Pursuant to this rule, the union might completely refuse to prosecute a grievance filed
several days late. Thus, the employee, no matter how meritorious his grievance,
would get absolutely nowhere. And unless he could prove that the union's rule was
arbitrary (a standard which no one can define), the employee would get absolutely no
consideration of the merits of his grievance—either by a jury, an arbitrator, the
employer, or by the union. The Court suggests three reasons for giving the union this
almost unlimited discretion to deprive injured employees of all remedies for breach
of contract. The first is that "frivolous grievances" will be ended prior to timeconsuming and costly arbitration. But here no one, not even the union, suggests that
Benjamin Owens' grievance was frivolous. The union decided not to take it to
arbitration simply because the union doubted the chance of success. Even if this was
a good-faith doubt, I think the union had the duty to present this contested, but
serious, claim to the arbitrator whose very function is to decide such claims on the
basis of what he believes to be right. Second, the Court says that allowing the union
to settle grievances prior to arbitration will assure consistent treatment of "major
problem areas in the interpretation of the collective bargaining contract." But can it
be argued that whether Owens was "fit to work" presents a major problem in the
interpretation of the collective bargaining agreement? The problem here was one of
interpreting medical reports, not a collective bargaining agreement, and of evaluating
other evidence of Owens' physical condition. I doubt whether consistency is either
possible or desirable in determining whether a particular employee is able to perform
a particular job. Finally, the Court suggests that its decision "furthers the interest of
the union as statutory agent." I think this is the real reason for today's decision, which
entirely overlooks the interests of the injured employee, the only one who has
anything to lose. Of course, anything which gives the union life and death power
over those whom it is supposed to represent furthers its "interest." I simply fail to see
how the union's legitimate role as statutory agent is undermined by requiring it to
prosecute all serious grievances to a conclusion or by allowing the injured employee
to sue his employer after he has given the union a chance to act on his behalf.
Henceforth, in almost every § 301 breach-of-contract suit by an employee
against an employer, the employee will have the additional burden of proving that the
union acted arbitrarily or in bad faith. The Court never explains what is meant by
this vague phrase or how trial judges are intelligently to translate it to a jury. ...
{T}oday's decision, requiring the individual employee to take on both the employer
and the union in every suit against the employer and to prove not only that the
employer breached its contract, but that the union acted arbitrarily, converts what
would otherwise be a simple breach-of-contract action into a three-ring donnybrook.
It puts an intolerable burden on employees with meritorious grievances and means
they will frequently be left with no remedy. Today's decision, while giving the
worker an ephemeral right to sue his union for breach of its duty of fair

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representation, creates insurmountable obstacles to block his far more valuable right
to sue his employer for breach of the collective bargaining agreement.

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Comment
A
worker
who
believes
the
duty
of
fair
representation has been violated can pursue either of two
remedies. One remedy is to file a lawsuit against the
union. If the employer is involved in the dispute, the
worker may also sue the employer. For example, suppose
Akiko is fired for insubordination; she claims she was
fired because she rebuffed her supervisor's sexual
advances.
She files a grievance, but it cannot be
settled.
The question then becomes whether the union
should take the case to arbitration.
The grievance
committee votes to drop the matter. The committee says
its reason is that it believes an arbitrator would deny
the grievance; Akiko believes the true reason is bad
blood between her and some members of the committee.
Thus, she believes that the employer violated the
contract by firing her without just cause and that the
union breached the duty of fair representation by
refusing to arbitrate the matter. One remedy she has is
to sue them both in court. The other remedy is to file
a charge against the union with the Labor Board. This is
possible because the Board has held that a union's breach
of the duty of fair representation is an unfair labor
practice.
A Labor Board charge could not be filed
against the employer in a case like this, however,
because a breach of contract is usually not an unfair
labor practice.
Which is the better remedy for the worker? Three
considerations apply. First, the worker who goes to the
Labor Board incurs no cost because the government pays
for the investigation and trial, whereas the worker who
hires an attorney to file a private lawsuit is likely to
incur substantial costs. Second, the Labor Board usually
will not act against an employer in a fair representation
case. Third, if the employer is not a party to the case,
the only relief the worker can get is from the union.
Therefore, if the union is at fault and it can provide
adequate relief to the worker, a charge filed with the
Labor Board might be sufficient. For example, suppose a
woman believes that she is not getting jobs through the
union's hiring hall because of her gender. If so, the
union could provide complete relief: it could compensate
her for money she lost from jobs to which she was not
referred, and it could refer her fairly in the future.
But if the employer has also acted wrongfully, only a

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lawsuit can provide complete relief. If Akiko wishes to
be reinstated to her job, she must go to court and sue
both the union and the employer.
QUESTIONS FOR REFLECTION
1. What was the issue of law in Vaca, and what was
its resolution? What was the issue of application of law
to fact, and what was its resolution?
2. The Court creates the impression that the outcome
of the case was dictated by the legal doctrine of
exhaustion of remedies.
Do you agree?
What argument
could one make that Owens did exhaust his remedies and,
therefore, was free to sue in court?
3. Were Justice Black's criticisms well taken? In
particular, were his criticisms of the majority's three
reasons convincing? (See the penultimate paragraph of
his opinion.)

Ù

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320

Concerted Activity
Introduction
The heart of the Labor Act is section 7.
The
central idea of section 7 is to give workers the legal
right to negotiate with their employer as a group instead
of as individuals. Congress created this right because
individuals have little bargaining power when they deal
with employers, particularly large corporations.
The
result of this lack of power is that workers can be
forced to accept low wages and poor working conditions.
But if workers can band together and, as a group —
usually, through a union — negotiate with their employer,
they have a better chance to achieve a living wage and
decent working conditions.
To reach these goals, section 7 guarantees employees
the right to engage in concerted activity, which means
the right to act together to improve their working lives.
The right to concerted activity includes the rights to
assist and to join labor unions. Employers are forbidden
For example, it
to interfere with these activities.
would be an unfair labor practice for an employer to fire
a worker for going to talking to a union representative.
Congress recognized that some workers prefer not to
engage in concerted activity. Therefore, section 7 also
guarantees employees the right to refrain from assisting
and joining unions. Unions and employers are forbidden
to interfere with this right as well (except to the
extent that union security is lawful). For example, it
would be an unfair labor practice for a union to threaten
to use violence against a worker who refused to support
the union in a representation election.
Now let us take a closer look at section 7.
states:
"Employees
shall
have
the
right
to
selforganization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, and shall also have the right to

It

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ii

refrain from any or all of such activities.... "

The several rights protected by section 7 are commonly
referred to collectively as the "right to concerted
activity."a Only workers who are engaged in concerted
activity are protected by the Labor Act.
Concerted activity has two separate elements. The
first element is that the workers' activity must be
concerted. This element has two parts. (1) The workers'
act must be the joint or mutual effort of at least two
workers (or of one worker on behalf of others), and (2)
the act must pertain to the terms or conditions of
employment. (1) Thus, an individual worker, acting in
one's own behalf, is not engaged in concerted activity
and is, therefore, not protected by § 7. For example, if
Juanita asks her employer for a raise, and is fired
because she asks, she will find no relief in the Labor
Act.
But two or more workers acting together are
protected. If Juanita and Zbigniew together ask their
employer for a raise, or if Juanita asks on behalf of
herself and Zbigniew, and either is disadvantaged because
of the request, the employer has committed an unfair
labor practice.
(2) It is also necessary that the
workers' joint or mutual act pertain to the terms of
their employment. If Juanita and Zbigniew together ask
their employer to donate the firm's profits to the Nature
Conservancy, and they are fired because they asked, they
will get sympathy but not action from the Labor Board.
The examples in the preceding paragraph illustrate
the truism that the end points of a continuum are often
agreed upon easily.
The dividing line is often more
controversial. The Supreme Court's decision in NLRB v.
Washington Aluminum, 370 U.S. 9 (1962) provides some help
in drawing the line. It was an extraordinarily cold day
in Baltimore, and the furnace in the shop failed to

a

A more complete term would be the "the right to protected
concerted activity" because, as explained in the text below,
some activity is concerted but not protected. When one is
focusing on whether an act is concerted (as we are now), one
tends to speak of the right to concerted activity. When one
is focusing on whether a concerted act is protected, one tends
to speak of the right to protected activity.

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iii

start. The workers, who were not represented by a union,
stood around in their jackets for a while, grumbling as
you might expect, and then several of them decided it was
too cold to work and they left. They were discharged for
leaving work without permission. The Labor Board held
the discharges were illegal because the workers were
engaged in concerted activity. The Supreme Court agreed.
The workers were engaged in a joint effort, and their
focus was one of the conditions of employment. It was
irrelevant that no union was present, desired, or even
contemplated.
The Act seeks to promote collective
bargaining, which requires a union; but it is not unusual
for workers, with no thought of unionizing in mind, to
begin a process that eventually leads to unionization.
It was also irrelevant that the workers never presented
a specific demand to their employer. Their behavior may
have been rash and unwise, but the Labor Act does not
require workers to conform to judges' notions of
reasonable behavior. And it was irrelevant that the
workers broke a rule (left work without permission)
because the rule, as applied in this context, was
illegal. No employer may have a rule against workers'
engaging in concerted activity, else every employer would
have a rule against joining a union or going on strike.
The second element of concerted activity is that the
workers' activity must be protected, that is, within the
scope of the protection of section 7. It is obvious that
Congress did not intend for section 7 to protect all
kinds of joint or mutual activity that pertains to
employment.
If two workers get angry and beat their
foreone with their fists, or steal tools, or bomb the
factory, they may be acting in concert concerning the
terms of their employment, but they are not protected by
the Act. Which concerted acts are protected, and which
are not, is the subject of the Jefferson Standard case.
It may be helpful for the student to know more about
some of the cases to which the majority and dissenting
opinions allude. In NLRB v. Peter Cailler Kohler Swiss
Chocolate, the company used milk in making chocolate
candy. The company bought the milk at a favorable price
from a farmers' cooperative named the Dairymen's League.
In 1939 a rival farmers' cooperative, the Dairy Farmers'
Union, organized a "milk holiday" or "milk strike," in
which it sought to increase the price of milk by
withholding it from the market. The League opposed the

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iv

milk holiday and wished to defeat it by making up for the
milk withheld by the Dairy Farmers' Union; the company
aided the League by releasing it from its obligation to
supply milk for chocolate so the League could send more
milk to market.
In 1940 the Dairy Farmers' Union
proposed another milk holiday. At the instigation of an
employee of the company, the labor union that represented
the company's workers passed and publicized a resolution
supporting the Dairy Farmers' Union. The company fired
the instigator.
When charged with an unfair labor
practice, the company argued that the resolution was not
protected concerted activity because it did not deal with
the terms and conditions of employment; but the Board and
Court of Appeals held the resolution was protected.
In Hoover Co., the employer and Local 709 of the
Electrical Workers signed a series of collective
bargaining agreements before 1948; but, when the one
ending in 1948 expired, the parties could not agree on a
new contract. On April 28, 1948 the employer withdrew
recognition of Local 709 on the ground that it no longer
represented a majority of the workers.b For the purpose
of regaining recognition, Local 709 called a strike on
June 10th and began a consumer boycott of the employer's
products on July 13th. On July 20th, Local 709 voted to
abandon the strike — but not the boycott — and most of
the strikers returned to work. The employer, however,
refused to reinstate the members of Local 709's executive
committee because of the boycott.
The employer was
charged with an unfair labor practice for refusing to
reinstate the members of the executive board.
The
central issue was whether the consumer boycott was
protected concerted activity. The Board held that the
boycott was concerted activity and that the employer was
guilty of an unfair labor practice. Meanwhile, as the
strike and boycott were in progress, a rival union was
trying to win the support of the workers. On July 13th
the rival union filed a petition with the Board,
requesting certification as the exclusive bargaining
agent. (Although the fact is not relevant to the outcome
of the case, the rival union won the election.)

b

If Local 709 in fact no longer represented a majority of
the workers, the employer was permitted — indeed, required —
to cease bargaining with the local.

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v

In NLRB v. Fansteel, 306 U.S. 240 (1939), workers
staged a sit-down strike, that is, they occupied the
plant (thus they committed trespass) and refused to
leave, even after the employer secured an injunction
(thus they committed contempt of court). The employer
fired the leaders of the strike. The Labor Board ordered
their reinstatement, finding they were engaged in
protected activity because they had been provoked into
the sit-down strike by the employer's severe and repeated
unfair labor practices. The Supreme Court, however, held
that the strikers' conduct was not protected by § 7. In
NLRB v. Southern Steamship, 316 U.S. 31 (1942), sailors
called a strike while on board a ship, which was
tantamount to a mutiny. The Supreme Court held their
conduct was not protected by § 7. In American News Co.,
55 NLRB 1302 (1944), workers struck for a raise in pay
that would have violated federal wage and price controls
during World War II, and they were discharged. The Board
held their strike was not protected by § 7.
As you read Jefferson Standard, in addition to
reflecting on whether the majority of the Board, the
dissent, or Justice Burton presented the best arguments,
try to determine exactly what took the workers' conduct
outside the protection of the Act.

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325

Jefferson Standard Broadcasting Company
94 NLRB 1507 (1951)
...
On September 3, 1949, Respondent [Jefferson Standard] discharged 10 of its
technical employees for having published and distributed the so-called "second-class"
handbill, set forth {below in n. 9}, in the course of peaceful picketing sponsored by
the Union which was otherwise concededly lawful and protected under the Act. The
Trial Examiner found that by this action Respondent violated Section 8(a) (1) and (3)
of the Act because, he concluded, the handbill to which the Company took exception
was a protected ... concerted activity. The question before us is whether this
conclusion rests upon a proper construction of Section 7 of the Act. That section
guarantees to employees the right to engage in "concerted activities for the purpose
of collective bargaining or other mutual aid or protection." However, as this Board
and the courts have long held, it does not embrace concerted activity undertaken for
an unlawful objective, or protect employees against discharge for resorting to
"indefensible" means (such as sit-down strikes, sabotage, "violence or similar
conduct") in pursuit of their collective ends, however lawful.
The facts essential to an appraisal of the objectives sought by the employees
in this case, and the means they adopted, are as follows:
The Union, which had represented the technical employees at the Company's
radio transmitters for several years, began negotiations for a new contract in or before
January 1949, and on May 9, 1949, was certified by the Board as the statutory
representative of the employees in the bargaining unit. Early in July, the Union and
the Company reached an impasse and suspended negotiations because of their
inability to agree upon a provision covering arbitration of disputes over the discharge
of employees for "cause." On or about July 9, the Union commenced picketing
Respondent's downtown place of business in Charlotte, without calling a strike. By
placards and handbills, the pickets appealed to the public, in the name of the Union,
to support the employees' stand in the labor dispute. This pressure evidently proved
unavailing, for within a few weeks after the Company had placed its newly installed
television broadcast facilities into operation, the Union resolved to get "tough," and
published the "second-class" handbill which provoked the discharges.
The thesis of this handbill, which the Union distributed during a 10-day period
beginning on August 24, was that Respondent was mulcting the public by furnishing
technically inadequate, "second-class," television service.9 Its text made no reference
9

The text of the handbill was:
(continued...)

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vii

to the labor dispute which had occasioned the picketing. It was distributed widely
throughout the business section of Charlotte, not only at the picket line, but
elsewhere, in places such as busses, barber shops and restaurants. Although drafted
and approved by the Union's officers and executive committee, the handbill did not
bear the Union's name, but was signed simply "WBT TECHNICIANS." It occasioned
widespread comment in the community, and caused Respondent to apprehend a loss
of advertising revenue due to dissatisfaction with its television broadcasting service.
In short, the employees in this case deliberately undertook to alienate their
employer's customers by impugning the technical quality of his product. As the Trial
Examiner found, they did not misrepresent, at least wilfully, the facts they cited to
support their disparaging report. And their ultimate purpose — to extract a
concession from the employer with respect to the terms of their employment — was
lawful. That purpose, however, was undisclosed; the employees purported to speak
as experts, in the interest of consumers and the public at large. They did not indicate
that they sought to secure any benefit for themselves, as employees, by casting
discredit upon their employer.
In our judgment, these tactics, in the circumstances of this case, were hardly
less "indefensible" than acts of physical sabotage. The Board has held, and we
reaffirm, that the Act protects employees against employer reprisal when they speak
freely "on organizational matters" (to borrow the Trial Examiner's expression), and
in one way or another denounce their employer for his conduct of labor relations or
affairs germane to the employment relationship. Moreover, employees acting in
9

(...continued)
Is Charlotte a Second-Class City?
You might think so from the kind of Television programs being
presented by the Jefferson Standard Broadcasting Co. over WBTV.
Have you seen one of their television programs lately? Did you know
that all the programs presented over WBTV are on film and may be
from one day to five years old? There are no local programs
presented by WBTV. You cannot receive the local baseball games,
football games or other local events because WBTV does not have the
proper equipment to make these pickups. Cities like New York,
Boston, Philadelphia, Washington receive such programs nightly.
Why doesn't the Jefferson Standard Broadcasting Company purchase
the needed equipment to bring you the same type of programs enjoyed
by other leading American cities? Could it be that they consider
Charlotte a second-class community and only entitled to the pictures
now being presented to them?

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viii

concert may exhort consumers to refrain from purchasing their employer's product
unless and until he alters his labor policy or practices. But this is a different case.
Here, the subject matter of the employees' verbal attack upon the employer was not
related to their interests as employees. And the gist of their appeal to the public was
that the employer ought to be boycotted because he offered a shoddy product to the
consuming public — not because he was "unfair" to the employees who worked on
that product. Even in the Peter Cailler Kohler Swiss Chocolate case, upon which our
dissenting colleague relies, the employees' broadside, superficially unrelated as it was
to any labor dispute or matter pertaining to the employer's labor relations,16 did not
go so far as to suggest that consumers ought to avoid the employer's product because
it was of inferior quality.17
For these reasons, without attempting to formulate a test which will decide
every imaginable case involving similar questions as to the scope of Section 7, we
hold that the employees in this case went beyond the pale when they published the
"second-class" handbill.18 We shall therefore dismiss the complaint insofar as it
alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging
those individuals who were actually implicated in the publication and distribution of
that leaflet.
...
Member MURDOCK, dissenting in part:
I cannot agree with the conclusion of my colleagues of the majority that the
Respondent did not commit an unfair labor practice violative of Section 8 (a) (1) and
(3) of the Act when it discharged a group of employees for publication and

16

130 F. 2d 503 (C.A.2). However, the publication in that case was signed in the
name of the employees' labor organization....
17

We subscribe, of course, to the general philosophy expounded by the Court in
construing and applying Section 7 in that case. But we think that Judge Learned
Hand's eloquent passage, wrested from its context, does not call for literal reading
here.
18

...

We also do not decide whether the disparagement of product involved here
would have justified the employer in discharging the employees responsible for it,
had it been uttered in the context of a conventional appeal for support of the union in
the labor dispute.

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ix

distribution of the "second-class city" handbill....
Before discussing the issue in detail, I would note at the outset that the
holding of the majority that the distribution of the "second-class city" handbill is one
of the most important decisions dealing with that subject which the Board has ever
issued. It should be recognized as a decision of far-reaching significance. I find it a
startling decision — startling because it necessarily sets aside principles which this
Board with court sanction has heretofore recognized as the proper test of protected
concerted activity; startling because it has shriveled the previously recognized area
of statutory protection for concerted activities and left employers, employees, and the
Board itself without any certain standards to mark the remaining greatly
circumscribed area.
First, what are the facts? What were the contents of the handbill, the
circulation of which my colleagues find was "hardly less 'indefensible' than acts of
physical sabotage"? It reads thus: [The text of the handbill appears in note 9 in the
majority's opinion.] It is not denied by my majority colleagues that the facts recited
in the handbill with reference to the Respondent's TV programs were substantially
accurate and that those who drafted and distributed it on the picket line and elsewhere
believed it to be true. It is not denied that the handbill was in fact one more union
weapon (specifically so recognized by the Employer although not bearing the union
name) designed to exert additional pressure upon the Employer to accept the Union's
position in the pending labor dispute. This was a dispute concerning a new contract
which had deadlocked over the inclusion in the contract of an arbitration provision
in connection with discharges. It is not denied that the handbill did not incite or seek
any violation of any law — it incited no more than a public demand for better
television programs.
Inescapably we are confronted in this case with concerted and union activity
for the mutual aid and protection of the technicians — activity in aid of a collective
bargaining dispute with Respondent. What is the proper principle or test applicable
to determine whether such presumptively protected activity nevertheless falls into one
of the categories of exceptions which must be denied the protection of Section 7 of
the Act? In the recent Hoover Company case, 90 NLRB 1614, the Board reviewed
the authorities and restated the applicable principles. After referring to previously
recognized exceptions, such as violent picketing, sit-down strikes, strikes against
Board certifications, etc., the Board said:
Nonetheless, it is clear that in engrafting these exceptions upon the
broad language of Section 7, the Board and the courts have been
particularly careful to limit such exceptions to those instances in
which the means employed involved violence or similar conduct, or

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where the objectives sought were inconsistent with the terms or the
clearly enunciated policy of this act or other Federal statutes. As we
have had occasion to observe in the past, in light of the history of
judicial treatment of labor relations which preceded the enactment of
Section 7, "it seems most improbable that Congress intended to vest
this Board, or the courts in reviewing our action, with any broad
discretion to determine what we or the courts might choose to
consider the proper objectives of concerted activity." We are
free)indeed we are compelled — to examine the objectives of
concerted activity to determine whether they are independently
unlawful or inconsistent with the basic policy of this Act or of other
pertinent Federal statutes. We are not free, however, to measure
concerted activity in terms of whether the conduct is wise or fair, or
satisfies standards which we think desirable.
In the instant case the Respondent's argument rests wholly
upon the proposition that the conduct of a consumer boycott by
employees while they continue to work and receive wages from the
boycotted employer is unjust and disloyal. This may well be true, as
it is true, to be sure, in certain other individual instances where
employees strike, picket, or engage in other forms of concerted
activity. But absent any showing that the means employed were other
than peaceful or that the objectives sought were as have been held for
reasons of clear public policy to be improper, we find no authority to
regard the concerted activity involved herein as unprotected.
[Emphasis supplied.]

One of the main authorities relied upon by the Board in its statement of principles in
the Hoover case was the decision of the Second Circuit Court of Appeals in the Peter
Cailler Kohler case, 130 F. 2d 503. In an opinion by Judge Learned Hand, now
widely acclaimed on his impending retirement as the foremost American jurist, that
court, in language peculiarly appropriate to the facts in this case, stated the applicable
rule as follows:
We agree that the act does not excuse "concerted activities,"
themselves independently unlawful. But so long as the "activity" is
not unlawful, we can see no justification for making it the occasion
for a discharge; a union may subsidize propaganda, distribute
broadsides, support political movements, and in any other way further
its cause or that of others whom it wishes to win to its side. Such
activities may be highly prejudicial to its employer; his customers

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xi

may refuse to deal with him, he may incur the enmity of many in the
community whose disfavor will bear hard upon him; but the statute
forbids him by a discharge to rid himself of those who lay such
burdens upon him. Congress has weighed the conflict of his interest
with theirs, and has pro tanto shorn him of his powers.... [Emphasis
supplied.]
It is thus clear from these decisions that concerted activity such as is here involved
loses its protection only if it is "unlawful." It may be "unlawful" in the sense that the
means used is independently unlawful. Examples of this are violence and sit-down
strikes of the character involved in the Fansteel case, 306 U.S. 240, as well as that in
the Southern Steamship case, 316 U.S. 31, the latter involving a violation of the
Federal Mutiny Act. Even where the means is entirely peaceful and not
independently unlawful, however, an unlawful objective will destroy the protection
which would otherwise exist. The classic example of this second type of
unlawfulness is the American News case, 55 NLRB 1302, involving a strike to
compel an employer to violate the Wage Stabilization Act.
Applying these established principles to the facts in this case, it is plain that
none of the elements necessary to cause a loss of the protection accorded concerted
activity is here present. There was nothing unlawful about the means used — the
distribution of handbills containing substantially truthful statements — one of the
most traditional and peaceful forms of union activity in a labor dispute. There was
nothing unlawful about the objective of the handbills, either from the standpoint of
the likely immediate consequences of the distribution or from the standpoint of the
ultimate action sought to be obtained thereby from the Employer. From the
standpoint of ultimate objective, the handbill was an additional pressure technique to
force the Employer to agree to an arbitration clause in a contract — a provision which
the Employer clearly might accept without violating any law. The likely immediate
consequences of the distribution insofar as the impact of the handbill on the public
was concerned would be the stimulation of a public demand for better TV programs.
Surely there is nothing unlawful or contrary to public policy in that objective.
My colleagues of the majority have meticulously avoided any discussion of
the tests for protected concerted activity which have been laid down in the Board's
Hoover case and the court's Peter Cailler Kohler decision and the result of the
application of such tests to the facts of this case. In a footnote, after a passing tribute
to the general philosophy expounded by the court and to Judge Hand's "eloquent
passage," the majority simply brushes off the carefully phrased test laid down in the
court's opinion, saying that it "does not call for literal reading here." They fail to
indicate how else it can be read, or how they would read it. At the same time they
specifically disavow any attempt to formulate a new standard by which to determine

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when protection is lost and rest their decision simply on their conclusion that the
employees here went "beyond the pale." In adopting such an approach, it seems to
me they are flying in the face of the limitation on our authority so recently
acknowledged by the Board in the Hoover decision, in which it said: "We are not free,
however, to measure concerted activity in terms of whether the conduct is wise or
fair, or satisfies standards which we think desirable."
To the extent that it is possible to distill some limited test or standard for loss
of protection from the majority decision, it would appear to stand at least for this
proposition: Where concerted activity is undertaken by employees "to alienate their
employer's customers by impugning the technical quality of his product," it is
unprotected. Yet in a footnote which apparently has reference to the previously
recited facts that "the handbill did not bear the union's name," and its text "made no
reference to the labor dispute," the majority say that they do not decide whether the
disparagement of product here involved would have justified a discharge if "it had
been uttered in the context of a conventional appeal for support of the union in the
labor dispute." Surely the protection accorded to concerted activity by the statute
cannot be made to depend upon such technicalities as the format of handbills — the
presence or absence at the end of such magic phrase as "Support the XYZ union in
its current labor dispute with this employer!" Furthermore, I am unable to see how
the mere presence of a labor dispute and the failure of the handbill to make any
specific reference to it or to the union could operate to make unlawful what I consider
would be protected concerted activity even if there were no union and no labor
dispute in the picture. If employees under the latter circumstance concertedly decided
to enlighten the public on such a matter, perhaps feeling that the public would
favorably remember them when they might need help in a labor dispute with their
employer, there being nothing unlawful about such conduct, it would not lose its
protection as concerted activity. I am not aware that the Board has ever held that the
area of protection accorded "concerted activity" of employees is any less than
accorded union activity.
Even if the Board is to ignore the test of unlawfulness as the proper basis for
determining loss of protection, I find it an anomaly that the majority could regard the
kind of concerted activity here involved as "beyond the pale," while the kind of
concerted activity involved in the Hoover and Peter Cailler Kohler cases is deemed
to be within the pale and entitled to protection. In the Hoover case the Board held in
part that a union's consumer boycott conducted in conjunction with a strike, the
objective of which was to compel recognition, was a protected activity even though
recognition might have resulted in a MidWest Piping violation of the Act by the

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xiii

employer.1 Beyond that the Board held that employees were engaged in a concerted
activity protected from discharge in carrying on a consumer boycott of the employer's
products for a different objective after abandonment of the strike and while
continuing to work.b Stated bluntly, the Hoover decision means that this Board sees
nothing "beyond the pale" in employees insisting on the right to be paid to make
products which they are simultaneously trying to make it impossible to sell. Yet how
relatively inconsequential was any actual damage to the employer from the concerted
activity involved in the instant case? These employees did no more than to point out
to the public what in large measure it already knew — that the Employer's TV
programs consisted largely of canned film of varying degrees of antiquity with no live
local talent as in other cities; and to incite a demand for better programs and the
equipment which would make them possible. Unlike the activity held protected in
the Hoover case, this handbill did not and could not result in any present financial
loss to the Respondent.38 True, the handbill might be embarrassing to the Respondent
{Midwest Piping, 63 NLRB 1060 (1945), made it an unfair labor practice for an
employer to recognize one of two or more unions that are competing to represent a
bargaining unit if a representation petition has previously been filed with the Board.
In Hoover the purpose of the boycott when it was started was to force the employer
to recognize Local 709; because a rival union had filed a petition for certification, the
employer might have violated the Midwest Piping doctrine by recognizing Local 709.
Murdock's point is that, if this boycott was protected concerted activity, the WBT's
technicians' handbill was also protected.
{The Midwest Piping doctrine was not well received by the courts of appeal
and was vitiated by a series of Board decisions beginning in 1982. — ed.}
1

{The Board found that the purpose of the boycott changed after the strikers
returned to work. The purpose was no longer to gain recognition, but to force the
employer to reinstate the members of the executive board. — ed.}
b

As the majority opinion indicates, the Respondent only "apprehended" the
remote contingency of an inability to increase its revenues by charging higher
advertising rates in the future based upon the presence of a larger number of TV sets
in the area, if the handbill should discourage people who did not then own TV sets
from buying them.
I should make clear that in making this comparison with the Hoover case I do
not mean to suggest that I believe that the question of economic loss to the employer
is determinative of whether concerted activity is protected or unprotected. All strikes
and many forms of concerted activity necessarily result in financial loss to an
employer. Yet as Judge Hand states in the Peter Cailler Kohler decision, the fact that
the activity is "highly prejudicial" to the employer and causes him to "incur the
(continued...)
38

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Jefferson Standard

and might require it to explain its inability to present better programs or even provoke
a decision to purchase equipment to televise some live local sporting events, etc. But
is the right to engage in concerted activities conferred by the statute to be made so
ephemeral as to be forfeited simply because the activities are embarrassing to the
employer?
It should also be noted that the concerted activity held to be protected in the
Peter Cailler Kohler case did not even occur in the course of a labor dispute between
the employer and his employees as did the activity in the instant case. The employer
there had acted contrary to the interests of certain dairy farmer producers (not
employees) who were conducting a milk "strike," by purchasing and processing milk,
not for its own manufacturing operations, but for delivery to the metropolitan market.
The Kohler employees gratuitously injected themselves into this picture in which
their own interests were not affected, by passing and publishing a union resolution
which lambasted their employer's actions. The resolution charged the employer with
having "aided and abetted" the forces who were using "every vile and vicious means"
to stop the dairy farmers in the current milk "strike"; it protested the employer's action
and expressed the union's support of the dairy farmers. The court upheld the Board
in finding such concerted activity to be protected from discharge even though
undertaken in behalf of farmer producers and not for the immediate benefit of the
union members who passed the resolution.39 If, as the Board and court held,
employees who have no dispute with their own employer over wages, hours or
working conditions, are entitled to be protected from discharge in lambasting their
employer in this fashion in the context of the Kohler case, I can see no logical basis
for concluding that the employees in the instant case are "beyond the pale" by reason
(...continued)
enmity of many in the community" and his customers "to refuse to deal with him"
does not give the employer the right to discharge those "who lay such burdens upon
him." I am suggesting, however, that if the Board approaches the issue of protection
from the standpoint whether the activity is to be deemed "beyond the pale," certainly
the extent of the actual injury the employer suffers is a factor to be considered in
weighing his right to extinguish his employee's right to engage in concerted activity;
and the Board should not incongruously hold peaceful concerted activity which
results in no substantial damage to the employer unprotected, as it is doing here,
while holding seriously prejudicial activity of the type involved in the Hoover case
to be protected.
38

The theory on this aspect of the case was that the Kohler Company employees
could give support to the farmers in the belief or hope that the farmers might
reciprocate if at sometime in the future a dispute arose between the Kohler Company
and its employees.
39

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xv

of the temperate and truthful criticism of their employer made in a handbill in the
course of a labor dispute in which they are seeking a concession in the form of an
arbitration clause in a contract. To characterize this conduct as "hardly less
`indefensible' than acts of physical sabotage," as my majority colleagues do, is to
draw a patently farfetched and unwarranted analogy.
I am greatly disturbed by the impact this decision of the Board will have in
analogous situations. Suppose some employees in a defense plant manufacturing war
material, knowing some to be defective (as has sometimes actually happened in the
past) decide to write a letter to the defense procurement agency involved or to a
newspaper, pointing out the existence of defects. The employer discharges them for
disparaging his product. Consistent with today's decision this Board would have to
find that the concerted activity was not protected because the employees impugned
the technical quality of the employer's product. A shrinking of the scope of the
statutory protection afforded concerted activity to exclude the area excepted by
today's decision — in effect muzzling employees who would speak out on matters of
general public concern, whether they be the character of TV programs or defective
war materials — in my view is not consistent either with the statute or with any
salutary public policy.
iiii
The union appealed the Board's decision to the Court
of Appeals for the District of Columbia, which remanded
the case to the Board to consider further whether the
technicians' behavior contravened federal or local law or
the basic policies of the Labor Act.
Instead of
reconsidering its decision, the Board secured a writ of
certiorari from the Supreme Court.
Here follows an
excerpt from the opinion of Justice Burton.
iiii

NLRB v. Local Union No. 1229, IBEW (Jefferson Standard)
346 U.S. 464, 471-477 (1953)

From the opinion of Justice BURTON.
In its essence, the issue is simple. It is whether these employees, whose
contracts of employment had expired, were discharged "for cause." They were
discharged solely because, at a critical time in the initiation of the company's
television service, they sponsored or distributed 5,000 handbills making a sharp,
public, disparaging attack upon the quality of the company's product and its business

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policies, in a manner reasonably calculated to harm the company's reputation and
reduce its income. The attack was made by them expressly as "WBT
TECHNICIANS." It continued ten days without indication of abatement. The Board
found that —
It [the handbill] occasioned widespread comment in the
community, and caused Respondent to apprehend a loss of advertising
revenue due to dissatisfaction with its television broadcasting service.
In short, the employees in this case deliberately undertook to
alienate their employer's customers by impugning the technical quality
of his product. As the Trial Examiner found, they did not
misrepresent, at least wilfully, the facts they cited to support their
disparaging report. And their ultimate purpose — to extract a
concession from the employer with respect to the terms of their
employment — was lawful. That purpose, however, was undisclosed;
the employees purported to speak as experts, in the interest of
consumers and the public at large. They did not indicate that they
sought to secure any benefit for themselves, as employees, by casting
discredit upon their employer. 94 NLRB at 1511.
The company's letter shows that it interpreted the handbill as a demonstration of
such detrimental disloyalty as to provide "cause" for its refusal to continue in its
employ the perpetrators of the attack. We agree.
Section 10 (c) of the Taft-Hartley Act expressly provides, "No order of the
Board shall require the reinstatement of any individual as an employee who has been
suspended or discharged, or the payment to him of any back pay, if such individual
was suspended or discharged for cause." There is no more elemental cause for
discharge of an employee than disloyalty to his employer. It is equally elemental that
the Taft-Hartley Act seeks to strengthen, rather than to weaken, that cooperation,
continuity of service and cordial contractual relation between employer and employee
that is born of loyalty to their common enterprise.
Congress, while safeguarding in § 7 the right of employees to engage in
"concerted activities for the purpose of collective bargaining or other mutual aid or
protection," did not weaken the underlying contractual bonds and loyalties of
employer and employee. The conference report that led to the enactment of the law
said:
[T]he courts have firmly established the rule that under the existing
provisions of section 7 of the National Labor Relations Act,

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xvii

employees are not given any right to engage in unlawful or other
improper conduct. . . .
...
... Furthermore, in section 10 (c) of the amended act, as proposed in
the conference agreement, it is specifically provided that no order of
the Board shall require the reinstatement of any individual or the
payment to him of any back pay if such individual was suspended or
discharged for cause, and this, of course, applies with equal force
whether or not the acts constituting the cause for discharge were
committed in connection with a concerted activity." H.R. Rep. No.
510, 80th Cong., 1st Sess. 38-39.
This has been clear since the early days of the Wagner Act. In 1937, Chief
Justice Hughes, writing for the Court, said:
The Act does not interfere with the normal exercise of the
right of the employer to select its employees or to discharge them.
The employer may not, under cover of that right, intimidate or coerce
its employees with respect to their self-organization and
representation, and, on the other hand, the Board is not entitled to
make its authority a pretext for interference with the right of discharge
when that right is exercised for other reasons than such intimidation
and coercion." Labor Board v. Jones & Laughlin, 301 U.S. 1, 45-46.
Many cases reaching their final disposition in the Courts of Appeals furnish
examples emphasizing the importance of enforcing industrial plant discipline and of
maintaining loyalty as well as the rights of concerted activities. The courts have
refused to reinstate employees discharged for "cause" consisting of insubordination,
disobedience or disloyalty....
The [Court of Appeals] cases illustrate the responsibility that falls upon the
Board to find the facts material to such decisions. The legal principle that
insubordination, disobedience or disloyalty is adequate cause for discharge is plain
enough. The difficulty arises in determining whether, in fact, the discharges are made
because of such a separable cause or because of some other concerted activities
engaged in for the purpose of collective bargaining or other mutual aid or protection
which may not be adequate cause for discharge.
In the instant case the Board found that the company's discharge of the nine
offenders resulted from their sponsoring and distributing the "Second-Class City"

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handbills of August 24-September 3, issued in their name as the "WBT
TECHNICIANS." Assuming that there had been no pending labor controversy, the
conduct of the "WBT TECHNICIANS" from August 24 through September 3
unquestionably would have provided adequate cause for their disciplinary discharge
within the meaning of § 10 (c). Their attack related itself to no labor practice of the
company. It made no reference to wages, hours or working conditions. The policies
attacked were those of finance and public relations for which management, not
technicians, must be responsible. The attack asked for no public sympathy or
support. It was a continuing attack, initiated while off duty, upon the very interests
which the attackers were being paid to conserve and develop. Nothing could be
further from the purpose of the Act than to require an employer to finance such
activities. Nothing would contribute less to the Act's declared purpose of promoting
industrial peace and stability.
The fortuity of the coexistence of a labor dispute affords these technicians no
substantial defense. While they were also union men and leaders in the labor
controversy, they took pains to separate those categories. In contrast to their claims
on the picket line as to the labor controversy, their handbill of August 24 omitted all
reference to it. The handbill diverted attention from the labor controversy. It attacked
public policies of the company which had no discernible relation to that controversy.
The only connection between the handbill and the labor controversy was an ultimate
and undisclosed purpose or motive on the part of some of the sponsors that, by the
hoped-for financial pressure, the attack might extract from the company some future
concession. A disclosure of that motive might have lost more public support for the
employees than it would have gained, for it would have given the handbill more the
character of coercion than of collective bargaining. Referring to the attack, the Board
said, "In our judgment, these tactics, in the circumstances of this case, were hardly
less 'indefensible' than acts of physical sabotage." 94 NLRB at 1511. In any event,
the findings of the Board effectively separate the attack from the labor controversy
and treat it solely as one made by the company's technical experts upon the quality of
the company's product. As such, it was as adequate a cause for the discharge of its
sponsors as if the labor controversy had not been pending. The technicians,
themselves, so handled their attack as thus to bring their discharge under § 10 (c).
The Board stated, "We ... do not decide whether the disparagement of product
involved here would have justified the employer in discharging the employees
responsible for it, had it been uttered in the context of a conventional appeal for
support of the union in the labor dispute." Id. at 1512, n. 18. This underscored the
Board's factual conclusion that the attack of August 24 was not part of an appeal for
support in the pending dispute. It was a concerted separable attack purporting to be
made in the interest of the public rather than in that of the employees.

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xix

QUESTIONS FOR REFLECTION
If workers have a duty of loyalty to their employer,
should an employer have a duty of loyalty to one's
workers?
If so, what should the content of the
employer's duty be, and how should it be enforced? What
should the relief be for an employer's violation of the
duty?

Ù

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339

Discrimination
THE DEFINITION OF DISCRIMINATION

Introduction
The Labor Act makes it an unfair labor practice for
an employer to discriminate against a worker because of
union activity. Section 8(a)(3) reads:
Sec. 8. (a) It shall be an unfair labor practice
for an employer —
(3) by discrimination in regard to hire or
tenure of employment or any term or condition of
employer to encourage or discourage membership in
any labor organization ....

The words "membership in any labor organization" have
been construed broadly to include virtually all of the
concerted activity that is protected by section 7,
including, e.g., discussing terms of employment with a
co-worker, attempting to organize a union, and processing
grievances under a labor contract.
The act also makes it an unfair labor practice for
a union to cause an employer to discriminate against a
worker. Section 8(b)(2) reads:
Sec. 8. (b) It shall be an unfair labor practice
for a labor organization or its agents —
(2) to cause or attempt to cause an employer
to discriminate against an employee in violation of
subsection 8(a)(3)....

Like many concepts in the law, discrimination is
similar to our everyday ideas.
Until about 1970, "to
discriminate" meant intentionally to disadvantage someone
for an improper reason.
For example, if two students
submit papers of equal quality, and one receives an A
because the writer is friendly with the grader while the
other paper receives a C because the writer is on bad
terms with the grader, we would say that the grader
discriminates against the student who receives the C.
This idea of discrimination was incorporated into section

Labor and Employment Law

340

Budd v. NLRB

ii

8(a)(3) of the Labor Act.a
Discrimination under the Labor Act has two elements
(in other words, in order to establish discrimination,
the General Counsel must prove): (1) the employer
disadvantaged a worker in the terms and conditions of
employment, and (2) the employer's conscious reason was
the worker's concerted activity.
As a rule, both of
these elements must be satisfied. Thus, many acts by an
employer are harmful to a worker — layoff, denial (or
imposition) of overtime, and discharge, to name a few.
Yet these acts are not discriminatory unless the motive
behind them is improper.
It is not an unfair labor
practice for an employer to lay off a worker because
business is bad, but it is illegal to lay off a worker
because one has been agitating for a union. Similarly,
it is not an unfair labor practice for a union to insist
that Jonathan be laid off instead of Harriet because she
has more seniority, but it would be illegal if the union
did so because Jonathan refused to join the union.
The following case is about discrimination. It is
somewhat unusual, but representative nonetheless.

a

Since 1970, another definition of discrimination has
evolved.
Under this definition, which is often called
"disparate impact," to discriminate means to disadvantage
someone without good reason.
Unlike the older definition,
disparate impact does not require that the actor be aware of
having an improper reason.
Disparate impact has not been
incorporated into the Labor Act.

Labor and Employment Law

341

Edward G. Budd Mfg. Co. v. National Labor Relations Board
138 F.2d 86 (3d Cir. 1943)

BIGGS, Circuit Judge.
{The United Auto Workers (referred to below as "the CIO union") filed
charges against the employer, the Budd Mfg. Co. (the petitioner), and the Labor
Board issued a complaint.} The complaint, as subsequently amended, alleges that the
petitioner, in September, 1933, created and foisted a labor organization, known as the
Budd Employee Representation Association, upon its employees and thereafter
contributed financial support to the Association and dominated its activities. The
amended complaint also alleges that in July, 1941, the petitioner discharged an
employee, Walter Weigand, because of his activities on behalf of the union.... The
petitioner denies these charges.... After extensive hearings before a trial examiner,
the Board on June 10, 1942 issued its decision and order, requiring the
disestablishment of the Association and the reinstatement of Weigand....
{The court reviewed the evidence sustaining the Board's finding that the
employer illegally dominated the Association.}
Another indication of the dependent nature of the Association should be
referred to. We think it is symptomatic. The petitioner treated the employee
representatives with extraordinary lenience. The testimony shows to what very great
lengths the employer went in its parental treatment of the Association and its officers.
The petitioner permitted the employee representatives to conduct themselves about
as they wished. They left the plant at will whether on personal business or on the
business of the Association. Some of them did very little or no work, but they
received full pay. It is clear that some of them, Walter Weigand for example,
[deserved discipline but] were not disciplined because they were representatives. We
can scarcely believe that the petitioner would have displayed such an attitude toward
officers of an undominated "adversary" labor organization.
In our opinion the decision of the Board to the effect that the Association was
and is subject to the petitioner's domination and control is amply supported by the
evidence.
The case of Walter Weigand is extraordinary. If ever a workman deserved
summary discharge, it was he. He was under the influence of liquor while on duty.
He came to work when he chose, and he left the plant and his shift as he pleased. In
fact, a foreman on one occasion was agreeably surprised to find Weigand at work and
commented upon it. Weigand amiably stated that he was enjoying it.6 He brought
6

Weigand stated that he was carried on the payroll as a "rigger". He was asked
(continued...)

Labor and Employment Law

iv

342

Budd v. NLRB

a woman (apparently generally known as the "Duchess") to the rear of the plant yard
and introduced some of the employees to her. He took another employee to visit her
and, when this man got too drunk to be able to go home, punched his time-card for
him and put him on the table in the representatives' meeting room in the plant in order
to sleep off his intoxication. Weigand's immediate superiors demanded again and
again that he be discharged, but each time higher officials intervened in Weigand's
behalf because, as was naively stated, he was "a representative." In return for not
working at the job for which he was hired, the petitioner gave him full pay and on
five separate occasions raised his wages. One of these raises was general; that is to
say, Weigand profited by a general wage increase throughout the plant, but the other
four raises were given Weigand at times when other employees in the plant did not
receive wage increases.
The petitioner contends that Weigand was discharged because of cumulative
grievances against him. But about the time of the discharge it was suspected by some
of the representatives that Weigand had joined the complaining CIO union. One of
the representatives taxed him with this fact, and Weigand offered to bet a hundred
dollars that it could not be proved. On July 22, 1941 Weigand did disclose his union
membership to the vice-chairman (Rattigan) of the Association and to another
representative (Mullen) and apparently tried to persuade them to support the union.
Weigand asserts that the next day he, with Rattigan and Mullen, were seen talking to
CIO organizer Reichwein on a street corner. The following day, according to
Weigand's testimony, Mullen came to Weigand at the plant and stated that Weigand,
Rattigan and himself had been seen talking to Reichwein and that he, Mullen, had just
had an interview with Personnel Director McIlvain and Plant Manager Mahan.
According to Weigand, Mullen said to him, "Maybe you didn't get me in a jam."
And, "We were seen down there." The following day Weigand was discharged.
As this court [has] stated, an employer may discharge an employee for a good
reason, a poor reason or no reason at all so long as the provisions of the National
Labor Relations Act are not violated. It is, of course, a violation to discharge an
employee because he has engaged in activities on behalf of a union. Conversely, an
employer may retain an employee for a good reason, a bad reason or no reason at all,
and the reason is not a concern of the Board. But it is certainly too great a strain on
our credulity to assert, as does the petitioner, that Weigand was discharged for an
accumulation of offenses. We think that he was discharged because his work on
behalf of the CIO had become known to the plant manager. That ended his sinecure
at the Budd plant. The Board found that he was discharged because of his activities
on behalf of the union. The record shows that the Board's finding was based on
6

(...continued)
what was a rigger. He replied: "I don't know; I am not a rigger."

Labor and Employment Law

343

Budd v. NLRB

v

sufficient evidence.
The order of the Board will be enforced.

QUESTIONS FOR REFLECTION
1. Would it have been an unfair labor practice for
the employer to have favored Weigand if no union were on
the scene and the boss just liked him? Why or why not?
2. Would it have been an unfair labor practice if
the boss stopped liking Weigand and withdrew his
benefits? Why or why not?
3. If Weigand was not entitled to the benefits he
received, why was it illegal for the employer to withdraw
those benefits?
4. Suppose Weigand's supervisor had two reasons for
discharging Weigand. One reason was lawful (Weigand was
the worst employee ever) and one reason was unlawful
(Weigand became affiliated with the CIO). How should the
law treat a case of "mixed motive"?

Ù

Labor and Employment Law

344

Replacement of Strikers
THE POLICY
Introduction
Over the years, several efforts have been made in
Congress to overrule the dictum in Mackay Radio and
prohibit employers from hiring permanent replacements for
strikers. The efforts were increased after the Supreme
Court's decision in Trans World Airlines v. Independent
Federation of Flight Attendants, 489 U.S. 426 (1989),
which allowed employers to treat crossovers as though
they were permanent replacements.a In TWA, the contract
between the employer and the union allowed workers to bid
for job assignments, flight schedules, etc. on the basis
of seniority; more senior workers were, as usual, the
best protected against layoffs. The union struck after
the contract expired. During the strike, the employer
allowed permanent replacements and crossovers to choose
jobs, flights, etc. according to the seniority provisions
of the expired contract.
When the strike ended, the
employer refused to displace crossovers from the jobs for
which they had successfully bid during the strike, with
the result that many senior strikers were bumped by
crossovers with less seniority. The Supreme Court held
that the employer's policy was lawful under the Railway
Labor Act. Because the Court discussed and rejected the
union's argument that the policy would have been unlawful
under the National Labor Relations Act (once again, the
Supreme Court decided a question regarding the reemployment rights of strikers in dictum), it appears that
employers under the latter statute may also treat
crossovers as though they were permanent replacements.
The Cesar Chavez Workplace Fairness Act, H.R. 5,
passed the House of Representatives, but not the Senate,
during the 103d Congress (1993-1994).
The bill would
a

A crossover is a worker who is employed by a firm when a
strike against the firm begins and who joins the strike for a
while but returns to work ("crosses over" the picket line)
before the strike ends. A worker who stays at work and never
joins the strike is treated similarly to, and may be called,
a crossover.

Labor and Employment Law

345

ii
have added § 8(a)(6) to the Labor Act, effectively
overruling the dicta in Mackay Radio and TWA for
employees represented by labor unions. If enacted, the
relevant section of the Act would have read:
Sec. 8. (a) It shall be an unfair labor practice
for an employer—
...
(6) to promise, to threaten, or to take other
action—
(i)
to
hire
a
permanent
replacement for an employee who—
(A) at the commencement
of a labor dispute was an
employee of the employer in
a bargaining unit in which a
labor organization
(I)
was
the
certified
or
recognized
exclusive
representative, or
(II) at least 30
days
prior
to
the
commencement
of
the
dispute had filed a
petition pursuant to
section 9(c)(1) on the
basis
of
written
authorizations
by
a
majority of the unit
employees,
and
the
Board
has
not
completed
the
representation
proceeding; and
(B) in connection with
that dispute has engaged in
concerted activities for the
purpose
of
collective
bargaining or other mutual
aid or protection through
that labor organization; or

Labor and Employment Law

346

iii
(ii) to withhold or deny any other
employment right or privilege to an
employee who meets the criteria of
subparagraphs (A) and (B) of clause (i)
and
who
is
working
for
or
has
unconditionally offered to return to
work for the employer, out of a
preference for any other individual
that is based on the fact that the
individual
is
performing,
has
performed,
or
has
indicated
a
willingness to perform bargaining unit
work for the employer during the labor
dispute.]

Labor and Employment Law

347

iv

Report of the Committee on Education and Labor
of the House of Representatives
on H.R. 5,
the Cesar Chavez Workplace Fairness Act
Rept. No. 103-116, Part I (103d Cong., 1st Sess., 1993)
From the majority report
(urging approval of the bill)
III. BACKGROUND
A.

The National Labor Relations Act and Mackay

For more than half a century, the NLRA has been the principal Federal law
governing labor-management relations in this country. At the core of the Act is
Congress's intent to promote collective bargaining as the preferred method of
resolving labor-management disputes and preserving economic stability in the private
sector. To that end, the Act encourages the use of certain peaceful self-help options
as each side seeks to achieve its economic objectives. Congress has viewed the
resolution of economic differences through "controlled conflict" in the collective
bargaining arena not only as the best solution for labor and management, but also as
the solution best serving the public's interest in the free flow of commerce.
The NLRA promises workers that they shall have the right, without fear of
employer discipline or discharge, to join unions, to bargain collectively, and)if no
agreement can be reached)to participate in peaceful concerted activity to further their
bargaining goals. The ultimate form of such peaceful concerted activity is the
economic strike. It is the primary method for resolving disputes when a union and
an employer are unable to agree on the terms of a contract. Moreover, the possibility
of a strike is often the primary force driving both sides to settle their contractual
disagreement. Employees contemplating a strike face the prospect of lost wages and
benefits for the duration of their walkout. Employers must cope with the possible
loss of revenue over the same time period. These economic risks, of comparable
magnitude, have tended to produce a desire for compromise.
The Act expressly recognizes the central importance of the right to strike.
Section 7 establishes the employees' right to engage in concerted activities for mutual
aid or protection, which includes the right to withhold their labor when all other
means of settlement have failed. And section 13 provides, "Nothing in this Act shall
be construed so as to interfere with or impede or diminish in any way the right to

Labor and Employment Law

348

v
strike." In short, Congress from the outset made clear that the right to strike is critical
in providing the balance that makes the bargaining process work.
Notwithstanding the protection promised to striking workers, the Supreme
Court, in one of its earliest decisions interpreting the NLRA, imposed a significant
limit on the right to engage in an economic strike. In the case of Labor Board v.
Mackay Radio, 304 U.S. 333, 345 (1938), the Court stated that an employer's "right
to protect and continue his business" justified the hiring of permanent replacements
for employees who were on economic strike. The actual dispute in the Mackay case
did not involve permanent replacements at all. Rather, it involved an unfair labor
practice charge that the employer had discriminated against active union supporters
when deciding which former strikers should be reinstated to vacant positions. The
Supreme Court ruled for the Board and against the employer on that issue. But in
doing so, the Court stated in dicta that an employer had the right to fill the places left
vacant by strikers, in order to "protect and continue his business," and the employer
was not bound to discharge those replacements when strikers elected to resume their
jobs. Id.
Although not part of its holding in Mackay, the Court's pronouncement on
permanent replacements has become settled doctrine. An employer has an absolute
right, in the event of an economic strike, to hire replacements on a permanent basis,
thereby eliminating the jobs of striking workers.
This policy has a number of adverse consequences. It effectively allows
employers to punish workers who exercise their lawful right to strike. It subverts the
processes of securing union representation and negotiating a collective bargaining
agreement. It encourages employers to reject cooperative labor-management relations
and instead force confrontations with their employees in hopes of eliminating their
union. And it tips an already skewed balance of power in labor relations even more
in favor of management.
...
Professor Paul Weiler of the Harvard Law School has put the point this way
in testimony before the Senate Subcommittee on Labor:
For the last several decades, labor law classes around the
country have annually broken out in laughter at the thought that
lawyers and judges would draw such a spurious distinction between

Labor and Employment Law

349

vi
discharging and permanently replacing an employee in his job.b But
to ordinary workers, this legal distinction is no joke at all. The
employee may have spent twenty to thirty years with a firm, investing
his whole working life building up a stake of experience and security
in this enterprise that cannot possibly by duplicated somewhere else.
Then, if the employee chooses to go out on strike, pursuing the course
our labor law says is the only way open to try to improve (or even
maintain) terms and conditions of employment, the firm's
management is free to hire replacements who with less than twenty to
thirty minutes on the job get a permanent claim to the position as
against the striker.
"Prohibiting Discrimination Against Economic Strikers: Hearings on S. 55 Before
the Subcommittee on Labor of the Senate Committee on Labor and Human
Resources," 102d Cong., 1st Sess. 88, 89 (Mar. 12, 1991).
...
B.

Minimal impact of permanent replacement doctrine before 1980

The Mackay doctrine from its inception has been viewed as incompatible with
basic rights and values of Federal labor law. Yet despite widespread criticism of the
decision, it is only recently that Congress has made a serious effort to address the
issue of permanent replacements. The Committee concludes that there is a sound
basis for the new attention being devoted to this issue. The Mackay decision for its
first 40 years was largely an aberration with few practical consequences. But in the
years since 1980, it has become a significant practical problem that now warrants
legislative action.
...
2.

Limited use of permanent replacements prior to 1980

Before 1980, it was extremely rare for employers to hire permanent
replacements during an economic strike. Indeed, the use of such replacements was
{An employer may not discharge a worker for going on strike because
discharge would be discrimination due to concerted activity; but under Mackay Radio
it is not considered discrimination for an employer permanently to replace a worker
on strike over economic issues. Professor Weiler is saying that, to an ordinary
person, the difference between being discharged and being permanently replaced is
laughable.}
b

Labor and Employment Law

350

vii
so infrequent that virtually all evidence on the subject is anecdotal. One notable
exception is a study conducted by Dr. Charles Perry of the Industrial Research Unit
of the Wharton Business School, together with two management labor lawyers. See
Perry, Kramer and Schneider, "Operating During Strikes: Company Experience,
NLRB Policies, and Governmental Regulations," Labor Relations and Public Policy
Series No. 23, University of Pennsylvania (1982). (Cited [hereafter] as "Wharton
Study".)
In his introduction to the Wharton Study, the Director of the Industrial
Research Unit described management determinations to operate struck facilities at all
as a "relatively new phenomenon," and identified the use of permanent replacements
in that context as "rather unique." Wharton Study at (iii). Against this background,
Dr. Perry conducted extensive interviews during 1980 with management personnel
from 15 companies known to have operated a major production facility during a
strike. He found that "the basic policy of virtually all of the firms studied" was "to
rely exclusively on managerial and supervisory personnel in manning a struck
facility." Id. at 64. Thus, many firms reported using "supplementary" rather than
"replacement" workers: this included deferring retirement of salaried personnel;
expanding use of existing on-site contractor personnel; and hiring temporary
supervisors or security personnel.
The desire to avoid needless confrontation also helped determine the type of
outside replacements used. Most of those who hired outside replacements
"consciously avoided the use of permanent replacements either by explicitly stating
that they were hiring only temporary replacements or by being silent on the subject
of whether replacements were temporary or permanent." Id. at 64. The Wharton
Study concluded: "Although the right to operate during strikes provides employers
with a weapon to augment their right to take a strike in the conduct of collective
bargaining, to date that weapon has only seldom been used; it has not become a basic
part of the American system of collective bargaining." Id. at 1231.
Forty years after Mackay, the Wharton Study found that the option of hiring
permanent replacements "remain[ed] difficult and unpopular." Id. at 125.
3.

Explanation for limited use of permanent replacements

Several factors contributed to employers' reluctance to use an economic
weapon that had been held lawful by the Supreme Court. First, employers had a
sound economic motive for not using permanent replacements. Productivity in the
workplace is closely linked to a long-term, stable, and experienced work force, and
also to high employee morale. Each of these assets is likely to be sacrificed through
the upheaval and antagonism that result from the hiring of permanent replacements.

Labor and Employment Law

viii
As indicated in the Wharton Study, employers prior to 1980 generally were unwilling
to make such a short-sighted and unproductive business decision.
Second, employers were restrained by a desire to maintain an image as
corporate "good citizens." Unfair labor practices were relatively rare (fewer than
10,000 charges per year in the 1960's opposed to more than 20,000 per year in the
1980's) when compared with the lawlessness we see today. Managers tended to have
long-term ties to their community and would have had to live with the divisions that
use of permanent replacements could cause. Before the PATCO strike in 1981, most
employers perceived that it was wrong to fire employees who had spent years
working for them, helping them build the company, over a temporary economic
dispute.
Third, and perhaps most important, the law governing labor-management
relations during a strike initially militated against the use of permanent replacements.
Significantly, unions had useful responses available that made it hazardous for
employers to engage in the practice.
The Mackay case was decided in 1938, three years after enactment of the
NLRA and six years following enactment of the Norris LaGuardia Act, which
operated to restrain Federal judicial intervention in labor disputes. At the time of
Mackay, if an employer attempted to operate with permanent replacements, the
strikers had a right to pressure the struck firm's suppliers and customers)through
peaceful means)to cease doing business with that firm during the strike. Thus, even
if a struck employer successfully hired permanent replacements, his striking
employees could continue to exert countervailing economic pressures on him through
appeals to fellow workers, and sympathetic consumers, at all of the enterprises upon
which the struck employer depended. These appeals could take the form of secondary
strikes; peaceful consumer picketing of a struck employer's suppliers or customers;
and the negotiation of "hot cargo agreements" granting bargaining unit members a
contractual right to refuse to handle certain goods, such as goods produced by an
employer operating during a strike. Given that these effective secondary economic
pressures were available to striking employees in the early days of the NLRA, the
employer who used the Mackay weapon did so at the risk of being economically
isolated.
In addition to having available certain countervailing economic weapons,
unions in 1938 also had the ability to strengthen solidarity within the bargaining unit
against an employer that used permanent replacements.
The right to hire permanent replacements allows employers to break strike
solidarity by coercing strikers)who are afraid of permanent job loss)to cross picket

351

Labor and Employment Law

352

ix
line and return to work. But at the time of Mackay, unions could, and often did,
negotiate for the closed shop. By doing so, unions could assure that only union
members who had agreed to abide by union rules)including those respecting strike
solidarity)would be hired into the bargaining unit, thereby maximizing the bargaining
unit's power during a strike. In addition, even when a union lost a strike, its
negotiation of closed shop agreements elsewhere enabled its out-of-work members
to obtain comparable employment. In both these ways, unions could reduce the
power of an employer to break solidarity by threatening workers with replacement
and job loss if they remained on strike.
A final factor which strengthened the effectiveness of strikes was the fact that
the original Wagner Act did not exclude foremen and supervisors from the definition
of employee. In the 1940's the NLRB held that foremen and supervisors had the right
to engage in concerted activity such as forming a union or respecting a picket line.
The Supreme Court upheld this principle in Packard Co. v. Labor Board, 330 U.S.
485 (1947). The strike and the threat to strike are much more potent when an
employer is faced with the prospect of losing the services of supervisory employees
in addition to those employees within union bargaining units.c
In sum, for many years under the Mackay doctrine, employers very rarely
made use of permanent replacement. Economic factors, employer morality, and the
state of the law all combined to discourage such use.
IV. NEED FOR THE LEGISLATION
A.

Recent Supreme Court decisions

The Mackay doctrine was an unimportant anomaly in American labor
relations during the first four decades after it was handed down by the Supreme Court
in 1938. But in the last decade Mackay has played a far more prominent and
destructive role. Two Supreme Court decisions in the 1980's gave new impetus to the
Mackay doctrine.
In Belknap v. Hale, 463 U.S. 491 (1983), the Court held that workers
promised permanent replacement status could enforce this promise in state court
against an employer that discharged them to make room for strikers who were being

Congress [overruled] the holding in Packard when it added section 2(11) to
the National Labor Relations Act in 1947.
c

Labor and Employment Law

x
reinstated.d The Court's holding in Belknap)that a state law action for breach of
contract was not preempted by the NLRA)increased the value attached to the
"permanent replacement" promise, thereby weakening the position of workers
engaged in a lawful strike.
Then, in TWA, Inc. v. Flight Attendants, 489 U.S. 426 (1989), the Court relied
on Mackay to further erode the protection accorded to economic strikes. The TWA
case extended the permanent replacement doctrine to cover employees under the
Railway Labor Act (RLA). But more important was the Court's holding that junior
striking employees who "cross over" a picket line to return to work may be retained
at the end of the strike, or given superior positions, in preference to more senior
employees who remained on strike. It cannot be disputed that this preferential
treatment for so-called "crossovers" is inherently destructive of the right to strike.
The employer effectively encourages junior employees to "break ranks" by offering
the inducement of post-strike job placements and job security that they could not
otherwise obtain....

{As part of a strike-settlement agreement, employers sometimes discharge
permanent replacements or recall all strikers and assign jobs by seniority, resulting
in layoff of replacements. Belknap held that federal law does not prohibit states from
allowing permanent replacements who are discharged or laid off to sue the employer
for breach of contract. The worker's theory would be that employer promised not to
discharge the worker when the strike was over.—ed.}
d

353

Labor and Employment Law

354

xi
B.

Substantial use of permanent replacements since 1980

Whereas the Wharton Study concluded that the use of permanent
replacements prior to 1980 was "rather unique" and that basic policy of all of the
firms studied was "to rely exclusively on managerial and supervisory personnel in
manning a struck facility," the evidence from more recent studies shows a massive
change.
...
2.

Gramm study

A survey of employer responses to strikes was conducted in 1989 by
Associate Professor Cynthia Gramm at the University of Alabama-Huntsville. See,
C. Gramm, "Employer's Decision to Operate During Strikes: Consequences and
Policy Implications" in Employee Rights in Changing Economy, 33-40 (W. Spriggs,
ed. 1991) (hereinafter "Gramm study"). Professor Gramm studied two randomly
drawn samples of strikes during the period 1984 to 1988. One sample included 35
strikes across the country (U.S.) and the other included 21 strikes in New York State
(N.Y.). Professor Gramm compiled her data from surveys of managers who were
involved in these strikes. She found that employers hired permanent replacements
in about 16 percent of the U.S. strike sample, and about 24 percent of the N.Y. strike
sample. Gramm found that in contrast, temporary replacements were used less
frequently by employers in both samples: 6 percent of the employers in the U.S.
sample, and 10 percent of employer in the N.Y. sample.
In an effort to examine whether employers have increased their use of
permanent replacements during strikes, Gramm asked managers who indicated there
had been previous strikes involving the same bargaining unit whether they had hired
replacements during these prior strikes. As Gramm explained, "Every single manager
said that this particular strike was the first attempt to hire replacement workers. This
strategy appears to be a new experience for the firms in the sample." Gramm study
at 35. Gramm also compared her results to those a decade earlier:
Another study involving case studies of fifteen firms
conducted by Perry, Kramer, and Schneider in the early 1980s found
that managers in most of the firms explicitly chose not to hire
replacement workers. If they felt they had to hire replacement
workers in order to keep operating, they chose to hire temporary
replacements. They did not want to hire permanent replacements.
Comparing that finding with my finding that firms are hiring
permanent replacements more frequently than temporary replacements

Labor and Employment Law

xii
suggests that the willingness of employers to hire permanent
replacements has increased during the 1980s. Id.
Finally, Gramm examined how the use of permanent replacements affects the
length of strikes. She found that strikes lasted substantially longer when permanent
replacements were hired than when temporary replacements or no replacements were
hired. In the U.S. sample, strikes lasted a mean duration of 363 days when the
employer hired permanent replacements; this compares to a mean of 72 days when
the employer hired temporary replacements, and a mean of 64 days when no
replacements were hired.
...
C.

Explanation for increased use of permanent replacements

Each of the factors that previously contributed to employer reluctance to use
permanent replacements has been affected by subsequent events. The Committee
believes that changes in the attitudes and economic motivation of some employers,
and in the state of labor law, all have contributed to the substantially increased use of
permanent replacements during economic strikes.
President Reagan's firing and permanent replacement of 12,000 striking air
traffic controllers in 1981 had a dramatic impact on the way many Americans view
strikes, including the view taken by a new generation of corporate managers. Even
though that strike by Federal employees was illegal, American employers did not
readily make this distinction. President Reagan's action was regarded by many
observers as a signal to the employer community that it was acceptable to dismiss
striking workers. The events surrounding the air traffic controllers' strike ushered in
a much more aggressive, and even hostile, employer strategy toward lawful strikes.
The Committee believes, however, that other factors account more directly for
the increased use of permanent replacements. One such factor is a change in the
structure and mobility of corporate capital. Since 1981, there has been a wave of
mergers and leveraged buyouts in this country, along with a distorted focus on shortterm performance. Many employers, overloaded with debt, have tended to regard
workers as mere assets to be used and discarded. Because they have just taken over
an enterprise, these new employers have no investment in their newly acquired work
force. Frequently, their interest in short-term returns leads them to ignore or even
sacrifice long-term employee interests by getting rid of a loyal, experienced work
force.
This so-called "new breed of employer" does not hesitate to permanently

355

Labor and Employment Law

356

xiii
replace a union work force. The New York Daily News advertised for permanent
replacements and spent millions of dollars training them months before any labor
dispute had even arisen. And Frank Lorenzo twice rushed into bankruptcy court to
repudiate his firm's collective bargaining agreements. For this new breed of
employer, who use and even encourage strikes in order to undermine the collective
bargaining process, the basic assumption that there are economic reasons to retain a
long-term work force is no longer applicable.
...
D.

Adverse consequences of permitting use of permanent replacements
1.

Mackay undermines the rights of individual workers

The NLRB promises workers a fair chance to engage in collective bargaining.
The Act states that workers shall have the right, without fear of employer discipline
or discharge, to join unions, to bargain collectively, and, if no agreement can be
reached, to participate in a peaceful strike to further their bargaining goals. Section
13 of the NLRA says, "Nothing in this Act ... shall be construed to impede or
diminish in any way the right to strike...."
But today, workers have not so much a right to strike as a right to quit.
Workers who exercise the "right" to strike face the very real prospect of losing their
jobs to "permanent replacements." Even long-term employees, who have invested
decades of their lives in a firm, risk losing their jobs for doing nothing more than
exercising their right to participate in a lawful and peaceful strike. From a striking
employee's perspective, the fact that one has not been (illegally) discharged, but rather
(legally) permanently replaced, is truly a distinction without a difference. The words
of the law do not ring true. The Act's promise to workers has become a false one.
The system of collective bargaining envisioned by our labor law is premised
on treating both employers and employees fairly. The ability to permanently replace
a striking worker inevitably undermines this most important objective. It is
impossible to convince a long-term, conscientious employee of the law's consistency
after the employee has lost a job for doing no more than exercising a protected right.
The Committee has heard extensive testimony demonstrating that the impact
of permanent replacements is ultimately borne by individual workers and their
families. The economic and emotional impact is severe. To hardworking Americans
and their families, the loss of a job can be, in the words of one witness, a form of
economic execution. As explained by Chester Abbott, Secretary-Treasurer of
Teamsters Local 829:

Labor and Employment Law

357

xiv
I have seen first hand what this vicious practice has done to
hardworking and decent people. Members of our local have had their
cars repossessed and their homes jeopardized because of mortgage
payment problems. The financial and emotional stress of this tragedy
has extracted personal cost[s] as well, resulting in the break-up of the
members' families through separation [for example, the worker must
go to another town to find a job] and divorce. The issue of permanent
replacement of strikers is not some economic equation dreamt up by
some company official who is only interested in the bottom line. It is
not simply this debate in the halls of Congress. Rather, it is real life
that often carries devastating consequences for your constituents.
"Legislative hearings on H.R. 3936, before the Subcommittee on Labor-Management
Relations of the House Committee on Education and Labor," 101st Cong., 2d Sess.
69 (June 13, 1990)....
...
2.

The Mackay doctrine undermines collective bargaining

In addition to jeopardizing the rights of individual workers, the Mackay
doctrine has also subverted the Act's core goal of securing stable collective bargaining
relationships. This subversion may occur at several different stages. During the
course of an organizing campaign, employers are permitted to tell their employees
that a union means the possibility of a strike and the likelihood of permanent
replacements. This lawful threat of "job loss for joining a union" has a significant
chilling effect on the exercise of employee free choice.
Even when a union is elected by a majority of employees and certified by the
NLRB as exclusive representative, negotiation of the initial collective bargaining
agreement is often a special challenge. Employers involved in a first contract
negotiation may be skeptical about the benefits of having a union. In these
circumstances, the use—or even the threatened use—of permanent replacements may
substantially diminish the prospects for establishing a collective bargaining
relationship. This frustrates the employees' desire for union representation that was
expressed in the election.
Once collective bargaining has been established, maintaining a fair balance
between labor and management is critical to the stability and success of the
relationship. The guarantee of a right to strike is an essential part of maintaining such
a balance. The ability to strike, should negotiations ultimately fail to produce an
agreement, provides leverage for union negotiators and an incentive for an employer

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to bargain seriously. But the readiness of employers to replace strikers permanently
has increasingly hovered over the bargaining table from the outset of negotiations....
...
3.

Permanent replacements lead to contentious and protracted strikes

When striking workers are permanently replaced, the strike is converted from
a limited dispute about working conditions to a broader confrontation about retention
of jobs and the right of the workers to union representation. Unions understandably
insist on the reinstatement of strikers as a precondition to settlement of the strike.
This issue is often more difficult to resolve than the original economic dispute
separating the parties....
...
The Mackay doctrine, itself, has become the cause of strikes.
Frequently, strikes occur because of the previously described incentive
Mackay provides employers who wish to continually challenge the choice of
employees to be represented by a union. As stated by Professor Getman: "Mackay
motivates employers to bargain not to reach an agreement but rather to force a strike,
so that it can permanently rid itself of union supporters and very possibly the union
itself." "Striker Replacement Bill Hearings," supra at 138.
...
4.

Employers do not need the Mackay weapon.

The permanent replacement doctrine of Mackay is not just bad even on its
own terms. An employer who seeks "to protect and continue his business" has many
alternatives to hiring permanent replacements.
An employer's options include: hiring temporary replacements, relying on
supervisory or management personnel, transferring or subcontracting work, or
stockpiling in advance of a strike. In addition, the Supreme Court has long held that
an employer lawfully may lock out his employees as a means of controlling the timing
of a work stoppage and obtaining bargaining advantage. Thus, even when the
employees choose not to strike and are willing to continue working without a contract
under terms that the employer unilaterally imposes, the employer can lawfully lock
out the employees. The employer may choose when and how to do this to maximize
its bargaining advantage.

Labor and Employment Law

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...
5.

Mackay undermines the development of cooperative labormanagement relations

Good will between labor and management must be nurtured if we are to keep
pace with our global competitors. Many point to the economic success of Japan,
Germany and other European countries in fostering harmonious labor-management
relations. There is a direct correlation between efficient economic performance and
cooperative working relationships between employers and employees. In each of
these countries, collective bargaining is an important element in fostering cooperative
labor-management relations.
Our foreign competitors have laws which recognize the importance of
establishing an equitable balance between labor and management. Their laws
encourage long-term bargaining relationships, promoting the stability and durability
of such relationships. In each country, should bargaining fail to produce an
agreement, employees have a right to strike which includes the right to reinstatement
at the conclusion of the strike. Permanent replacements are not permitted.
...
V. RESPONSE TO OPPONENT'S ARGUMENTS
The opponents of H.R. 5 make a number of arguments against the bill. In the
Committee's view, none of these arguments is valid.
A.

Doesn't the amended version of H.R. 5 discriminate against non-union
employees?

No. This attack on the bill seems hypocritical, but more importantly, it is
inaccurate. Anyone—regardless of whether they are union members—would be
protected if their union-represented bargaining unit engaged in a lawful economic
strike. By contrast, the mere fact of being a member of a union would not protect a
worker against permanent replacement if that union were not authorized to act as his
collective bargaining representative or if the union that represents him for collective
bargaining purposes did not sanction the strike.
The bill does exclude from coverage non-union workplaces. This exclusion
is intended to protect employers against undisciplined and unpredictable work
stoppages by employees who might have no clearly articulated demands and no
identified representative authorized to negotiate and settle their grievances.

Labor and Employment Law

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B.

Will H.R. 5 damage cooperative labor-management relations?

Quite the contrary. Taking away management's unilateral right to destroy the
union will foster cooperation, not hinder it. As former Secretary of Labor Ray
Marshall put it, "It's very hard to have a cooperative relationship between parties with
unequal power. Sooner or later the party with more power will exert it, and then there
is no cooperative relationship anymore." The Journal of Commerce put it more
colorfully when it likened the Mackay doctrine to bringing a loaded gun to the
bargaining table and pointing it at the union's head. Journal of Commerce, 8A (Mar.
18, 1991). Intimidation does not foster cooperation.
C.

Will H.R. 5 upset a "delicate balance" in the economic weapons available to
management and labor that has existed since Mackay was decided in 1938?

As explained earlier, the initial balance of the Act has been tipped in
management's favor many times over the last five decades. Unions have lost the right
to engage in most forms of peaceful secondary activity; they have lost the right to
impose strike solidarity; they have lost the right to engage in the most effective kinds
of strikes; and they have lost the unilateral right to determine the timing of work
stoppages. All of these rights were protected at the time Mackay was decided.
During the same period, employers were given new weapons, including the right to
lock out the union offensively, even prior to impasse.
Passage of H.R. 5 will help to restore, not upset, the desired "delicate balance"
in relative bargaining power.
D.

Don't employers need permanent replacements in order to operate during a
strike?

No. Struck employers have traditionally operated through a combination of
strategies including hiring temporary replacements, subcontracting the struck work,
assigning bargaining unit work to non-unit employees, and stockpiling inventory. In
light of the growth of the temporary employment industry and our recent chronically
high unemployment rates, it is undoubtedly easier today to find temporary
replacement workers for even skilled jobs than it was ten years ago, let alone 50 years
ago.
E.

Won't H.R. 5 inevitably lead to more strikes?

No. Employees are reluctant to strike, even in the face of oppressive working
conditions, because they give up their wages and benefits for the duration of the
strike. Any increase in strike activity due to removal of the threat of permanent

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replacement is likely to be counterbalanced by the fact that employers will no longer
use the tactic of forcing strikes in order to avail themselves of permanent
replacements and, ultimately, to break the union. Studies show that the presence of
permanent replacements produces longer and more bitter strikes.
F.

Won't H.R. 5, by making strikes "risk-free," guarantee unions will win every
strike and drive employers into bankruptcy?

No. Strikes are never "risk-free" for the workers. The hardship of doing
without a paycheck and health insurance puts enormous pressure on the strikers to
settle a dispute as soon as possible. Most American workers have no cushion, no
money socked away to make house payments and car payments, to buy food or to pay
doctors' bills. Strikes are a last resort when negotiations fail, not a risk-free lark for
workers and their families.
Moreover, workers have no incentive to make demands that would throw their
employers into bankruptcy or otherwise cause permanent economic harm to their
employers. The worker, after all, is dependent on the employer's long-term economic
health. Workers realize this, and this realization significantly moderates worker
demands.
Employers win many strikes in which the use of permanent replacements
never occurs and is never threatened. By stockpiling product in advance, employing
temporary replacements, subcontracting struck work, or using non-strikers, managers,
and supervisors, employers often are able to maintain production and revenues
throughout a strike. There is no dispute that the majority of employers over the years
have chosen not to use permanent replacements.
G.

Won't H.R. 5 put American companies at a disadvantage with respect to their
international competitors?

No. Our principal economic competitors and trading partners including
Germany, Japan, Canada, and France have long recognized that using permanent
replacements is unwise as a matter of both public policy and good business. Each
country prohibits the use of permanent replacements for strikers. Moreover, we
cannot hope to compete in global markets if those who labor cannot work with those
who manage. Hiring permanent replacements sends an unmistakable message that
workers are disposable, reducing employee morale and lowering productivity. For
example, a study conducted by William N. Cooke, a Wayne State University
professor of industrial relations, indicates that in the long run firms that adopt
hardball, confrontational tactics such as the use of permanent strike replacements are
less profitable than firms that adopt a cooperative approach to labor relations....

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...
From the minority report
(urging rejection of the bill)
We oppose H.R. 5 as introduced and as reported by the Committee on
Education and Labor. If enacted, H.R. 5 will upset over fifty years of accepted labor
law by prohibiting the use of permanent replacement workers in economic strikes.
In doing so, it will unfairly strengthen the hand of organized labor while weakening
the economic power of employers. The resulting imbalance will inevitably lead to
more strikes, impair labor-management relations, and threaten the economic survival
of many businesses.
H.R. 5 ignores economic realities
Proponents of H.R. 5 contend that the practice of hiring permanent
replacements has increased so dramatically over the last several years that its use by
management in labor disputes has become nearly commonplace. Unfortunately, this
contention ignores the economic realities that are inextricably linked to any
employers' decision to pursue such a course of action.
Any strike, no matter how short-lived, causes some economic disruption.
H.R. 5, by preventing management from hiring permanent replacement workers,
would simply give organized labor little to lose in calling a strike, regardless of the
issues or circumstances involved. With much of the risk removed from its
participation in the collective bargaining process, there is little to temper labor's
impulse to strike, and it seems inevitable that strike activity will increase. H.R. 5
allows organized labor the comfort of being able to go out on strike, with the full
knowledge that as soon as the walkout causes any discomfort, striking employees can
return to work to jobs that must be waiting for them.
In the meantime, business, which suffers from lost productivity and profits
regardless of whether it hires temporary or permanent replacements during a strike,
could be left without the ability to continue operation. Assertions of the bill's
proponents notwithstanding, it is impossible for many employers to keep an operation
running for any sustained period of time utilizing supervisory personnel or temporary
replacements. Geographic isolation, specialized skill requirements, or the threat of
union violence all may drive employers to the necessity of offering permanent
employment to those who cross the picket lines.
Nonetheless, in no case does an employer make the decision to hire permanent
replacements lightly, for such a decision inevitably entails many costs. These include

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increased expenses for hiring and training, additional security costs, a decline in
production until training is complete, as well as the potential loss of customer
confidence and local community goodwill.
If H.R. 5 were to become law, the consequences to the economic health of this
country would be enormous, as strike activity increased and employers were forced
to accede to unreasonable economic demands by labor or risk going out of business.
Nonunion workers in related businesses could also find themselves out of work as
[part of] a domino effect of stalled industries and services respond[ing] to prolonged
shutdowns by laying off employees.
We are convinced that if employers who are faced with unreasonable demands
from a union cannot consider hiring permanent replacements, even as a last resort,
many businesses will face [the] choice of either closing down altogether, or agreeing
to union's demands and ultimately being forced out of business because of an inability
to compete in the market place. Either choice will have devastating economic effects
on the employees, their families, the business owners, and the communities in which
they live.
H.R. 5 upsets the balance of interests and risk
We are also troubled and, frankly, perplexed by the efforts H.R. 5's
proponents to overturn over 50 years of well-settled labor law. Indeed, the bill runs
counter to the very purpose of our collective bargaining system, which is to facilitate
the resolution of disputes between employees and employers within the general
confines of a competitive market place. Fundamental to that system and its overall
effectiveness, is a delicate balance that both protects the interests of labor and
management and, at the same time, exposes both to certain risks.
While there may be changes to the law of labor-management relations that
would improve the collective bargaining process, the current law is based on the
premise that the interests of all parties in a labor dispute deserve protection. The law
protects workers' right to strike, and the right of employers to continue business
operations during a strike. If an employer is found to have committed unfair labor
practices in the course of a strike undertaken to secure economic concessions, all
economic strikers are entitled to full reinstatement and back pay. If, however, the
strike is fully based on economic disagreements between labor and management,
management may continue to operate with workers to whom it may offer permanent
employment.
At the same time, both management and labor must confront certain risks that
are inherent in any labor dispute. Put simply, besides having something to lose if they

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fail to reach agreement, labor is threatened with the prospect of permanent
replacement if it goes on strike; and business is faced with the decline in production
and profits which invariably accompany a strike, whether or not permanent
replacements are employed.
This balance of protections and risks is designed to encourage settlement of
labor disputes. For 55 years this balance has served labor and management very well,
and has never been seriously questioned by the Congress)or by the Supreme Court,
which first articulated the permanent replacement doctrine in its Mackay decision in
1938. The result, as noted by the General Accounting Office, has been very few
instances when permanent replacements have been used, and then, only as a last
resort.
Accordingly, we fail to see the merit in any proposal that would upset the
delicate balance which is, and always has been, one of the underpinnings of our
collective bargaining system. Unfortunately, H.R. 5 is just such a proposal and,
therefore, does not deserve our support.
Our opposition to H.R. 5 however, should not be construed as advocating
"union-busting" or other tactics which diminish the lawful exercise of the right to
strike. Rather, we are attempting to maintain the foundation of our system of
collective bargaining, which is that both parties to a labor dispute must have the
means necessary)both the right to strike, and the right to permanently replace, which
make the prospect of prolonged dispute costly and to be avoided by both sides.
H.R. 5 would add to the regulatory burden which impairs the ability of American
businesses to compete in the global economy
Finally, we are compelled to note that H.R. 5, in addition to all its substantive
shortcomings, is another in a long line of recent legislative initiatives that will add
significant costs to doing business in this country. H.R. 5 cannot be considered in a
vacuum. The Civil Rights Act of 1991 became effective on November 21, 1991. It
was soon followed by the employment requirements of the Americans with
Disabilities Act (ADA), which became effective on July 26, 1992. The ADA has
been called the most significant change in workplace law in many years. And, with
passage of the Civil Rights Act, punitive and compensatory damages have been added
to the arsenal of plaintiffs' lawyers in labor law litigation for the first time. More
recently, the Family and Medical Leave Act became law on February 5, 1993. When
provisions of that new law become effective in August 5, 1993, employers will once
again have to modify their labor-management practices in order to comply with
another set of federal requirements. Whatever the intrinsic merits of these initiatives,
it can hardly be argued that they will not, in total, add to the regulatory burden placed

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on employers.
These are only, of course, a few of the labor laws employers must comply
with, and, indeed, even more are pending in the 103rd Congress. For instance,
currently waiting in the wings of the Committee on Education and Labor is a massive
bill amending the Occupational Safety and Health Act (H.R. 1280), a bill to add
punitive and compensatory damages to litigation under the Employee Retirement
Income Security Act (H.R. 1881), and, as if these are not enough, a bill to completely
eliminate the caps on damages under the Civil Rights Act mentioned above (H.R.
224.) And, with health care reform a virtual certainty, the prospects for costly new
benefit mandates are greater than ever.
This is not to suggest that Congress should never consider or pass legislation
affecting the American workplace, and we acknowledge that improvements could be
made in current law to improve the productivity of labor-management relations, but
where will it all end? Congress cannot continue to layer one law over another into
perpetuity; choices have to be made and priorities set. Not every interest group can
be or should be satisfied through a legislative response. The business community can
only withstand so much, and all the good intentions in the world for workers, which
we all share, will mean nothing to a worker without a job.
We must, in short, be very careful before we pass yet another new restriction
on American businesses, and Congress should enact new laws only when a truly
pressing societal need for that law has been demonstrated. H.R. 5 not only fails to
meet that test, but, we feel, will do much more harm than good, for the reasons such
as above. At a time when American industry faces ever mounting competition from
around the world, we believe that our nation certainly does not need legislation
designed to encourage strikes and a resulting loss of competitive standing.
H.R. 5 would reverse 55 years of labor-management law which recognizes the
right of employers to maintain operations during an economic strike by hiring
permanent replacement workers
In the 1938 decision NLRB v. Mackay Radio & Telegraph Co., the Supreme
Court concluded that, although section 13 of the National Labor Relations Act
(NLRA) prohibits employer interference with the right to strike:
... it does not follow that an employer, guilty of no act
denounced by the statute, has lost the right to protect and continue his
business by supplying in places left vacant by strikers. And he is not
bound to discharge those hired to fill the places of the strikers, upon
the election of the latter to resume their employment, in order to

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create places for them. The assurance by [the employer] to those who
accepted employment during the strike that if they so desired their
places might be permanent was not an unfair labor practice nor was
it such to reinstate only so many of the strikers as there were vacant
places to be filled. 304 U.S. at 345.
The Court thus concluded that hiring "permanent" replacements during
"economic" strikes was not an unfair labor practice prohibited by the NLRA. The
Supreme Court emphasized that, under the Act, economic strikers continue to retain
their status as employees and would have the jobs available to them when the
replacement workers departed. In returning to the facts at hand, the Court determined
that, in reinstating employees after the strike, the employer refused to reinstate certain
strikers because of their leadership in union activities, and thus had committed unfair
labor practices. The Court then affirmed the National Labor Relations Board's order
to reinstate those strikers.
This decision illuminated the distinction, continued in current law, between
economic strikes and unfair labor practice strikes. Economic strikes are those
conducted over wages, working conditions, fringe benefits, and the like, while unfair
labor practice strikes are those conducted to protest the alleged conduct of an
employer in violation of the NLRA. The distinction is most significant because of
the differing re-employment rights of returning strikers. ... Mackay Radio decision
now stands for [the proposition that] economic strikers may be permanently replaced
subject to a right to be recalled as vacancies occur. Unfair labor practice strikers, on
the other hand, who unconditionally offer to return to work, have a right to be
reinstated even if it requires the termination of replacement workers.
Proponents of H.R. 5 claim that the legislation would reverse the abovequoted portion of Mackay, asserting that permanent replacement of economic strikers
interferes with the "right to strike." As is obvious from the quotation and the above
discussion, the impact that Mackay had on the "right to strike" was to impose some
risk on those asserting that right. Mackay allowed an employer "guilty of no act
denounced by the statute," to continue to operate a business despite a union's attempt
to achieve its own economic goals. As the subsequent development of the doctrine
showed, Mackay, consistent with the balancing of employer and employee interests
that is at the heart of the NLRA, is about weighing the steps an employer may
legitimately take to maintain operations against the infringement on the right of
employees to engage in concerted activities that such steps may have. The Supreme
Court concluded, we believe correctly, that the right of employers to continue
business operations by hiring permanent replacement workers was not an
encroachment on employee rights that rose to the level of an unfair labor practice.

Labor and Employment Law

xxiv
The origins and development of the Mackay Radio doctrine demonstrate that the
right of employers to hire permanent replacement workers is a well-accepted
facet of labor law
Proponents of H.R. 5 urge that the Supreme Court announced the right of
employers to hire permanent replacement workers during an economic strike in a
discussion that was peripheral to the holding of the Mackay decision. They contend
that this right became enshrined in precedent without a thorough examination of the
issue of permanent replacement either in the decision or when the NLRA was passed.
However, this contention ignores legislative developments prior to passage
of the NLRA, amendments to the NLRA subsequent to the Mackay decision, and the
evolution of the Mackay doctrine though 50 years of Supreme court decision making.
At the time of the decision in Mackay Radio, the right of employers to continue
operations during an economic strike by hiring permanent replacement workers had
been congressionally recognized for several years. In 1934, Senator Robert Wagner
introduced the Labor Disputes Act, which was a harbinger of the later enacted NLRA.
This bill contained a definition of "employee" which explicitly excluded an individual
hired to replace a striking employee. This definition, which excluded permanent
replacement workers from the protections of the Act, promoted vigorous debate, and
the exclusion was eventually deleted in subsequent drafts.
In the following Congress, the National Labor Relations Act (also known as
the "Wagner" Act) was proposed and its definition of "employee" did not exclude
striker replacements. In fact, a memorandum prepared by the Senate Committee on
Education and Labor comparing the Wagner Act with the earlier Labor Disputes Act
specifically recognized the legitimacy of the employer's right to maintain operations
by hiring permanent replacement workers. In explaining the provisions including
economic strikers in the definition of the term "employee," the memorandum
provided:
[The Wagner Act] provides that the labor dispute shall be
"current" and that the employer is free to hasten its end by hiring a
new permanent crew of workers and running the plant on a normal
basis....
The broader definition of "employee" in [the Wagner Act]
does not lead to the conclusion that no strike may be lost or that all
strikers must be restored to their jobs, or that an employer may not
hire new workers, temporary or permanent, at will.
Senate Committee on Education and Labor, Comparison of S. 282 and S. 1958, 74th

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Cong., 1st Sess. (1935), pp. 22-22, reprinted in I Legislative History of the National
Labor Relations Act, 1935, pp. 1319, 1346.
It was only several years after the passage of the Wagner Act of 1935 that the
Supreme Court judicially recognized the right of employers to continue operations by
hiring permanent replacement workers during an economic strike. Although
proponents of H.R. 5 contend that it was not essential to the holding in Mackay, the
Supreme Court would never have reached the question of whether an employer could
discriminate against active union members in reinstating strikers if the legal
requirement was that an employer had to reinstate all strikers. By analyzing the
circumstances under which an employer could choose between employees in
reinstatement, the Supreme Court had to make the assumption that the employer was
under no obligation to reinstate the strikers.
In the years following the Mackay decision, there was ample evidence that the
Congress did not find the doctrine of permanent replacement to be inconsistent with
the goal of the NLRA. In fact, Senator Wagner, the author of the NLRA, was himself
quoted as saying:
Every step that the Supreme Court has taken toward clarifying
the meaning and defining the scope of the [Wagner] Act has made it
easier for workers and employers to deal successfully under its
provisions.2
Moreover, as the NLRA was amended subsequent to the Mackay decisions,
the permanent replacement doctrine was basically incorporated into other provisions
of the Act dealing with the rights of economic strikers. Section 9(c)(3) of the NLRA,
which was added by 1947 Taft-Hartley changes to the Act and amended by 1959
Landrum-Griffin changes, implicitly recognizes the right of employers to hire
permanent replacement workers in an economic strike. That provision deals with the
voting rights of "employees on strike who are not entitled to reinstatement" and has
always been interpreted to refer to replaced economic strikers.d
National Labor Relations Act and Proposed Amendments: Hearings Before
the Senate Committee on Education and Labor, 76th Cong., 1st Sess (1939)
(statement of Sen. Robert F. Wagner).
2

Whether a permanently replaced striker may vote in a representation election is
important principally in the following situation: The union strikes. The employer
hires many permanent replacements. The employer then doubts that the union still
(continued...)
d{

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The Supreme Court continued to develop the doctrine of permanent
replacement in numerous decisions [after] Mackay. In Mastro Plastics Corp. v.
NLRB, the Supreme Court again sharply defined the distinction between economic
strikes and unfair labor practice strikes, and, in the latter case, recognized that striking
employees are "entitled to reinstatement with back pay even if replacements for them
have been made."3 Later, in the 1962 Erie Resistor decision, while concluding that
an employer could not offer additional benefits to replacement workers, the Court did
not question "the continuing vitality of the Mackay rule."4 Again, in National Labor
(...continued)
represents the majority of the workers. The Labor Board holds an election in which
the workers vote on whether they wish to continue being represented by the union.
Under the Wagner Act, permanently replaced strikers were allowed to vote in such
an election. (They usually voted for the union, so unions had a good chance to win
the election.) Under the Taft-Hartley Act, permanently replaced strikers were
prohibited from voting in such an election. (As a result, employers had a much better
chance of winning the election.) Section 9(c)(3) of the Landrum-Griffin Act, which
remains in force today, provides that permanently replaced strikers may vote in such
an election if it is conducted within 12 months of the commencement of the strike, but
not thereafter. The minority's argument is that, both in 1947 and in 1959, Congress
assumed the legality of hiring permanent replacements.—ed.}
350 U.S. 270, 278 (1956). {Section 8(d) provides, in relevant part, that if a
collective bargaining agreement is in effect, neither party may terminate or modify
the contract until 60 days after notifying the other party in writing of the desire for
change and until 30 days after notifying the Federal Mediation and Conciliation
Service that a labor dispute exists; and that employees who engage in a premature
strike lose all their protections under the Labor Act (meaning that they can be fired).
In Mastro Plastics, union workers struck over their employer's unfair labor practice;
because they failed to give the required notices specified in § 8(d), their employer
concluded they had lost the protection of the Act and fired them. The Supreme
Court, however, held that the notice requirements apply only to economic strikes, not
to unfair labor practice strikes, and therefore that the strikers were entitled to
reinstatement with back pay, even if the employer had hired permanent replacements.
The minority's argument is that, even though the Court created a special privilege for
unfair labor practice strikers, the Court recognized that economic strikers could be
permanently replaced.)ed.}
3

National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 232
(1962). {In this case, the employer, in order to attract replacements during a strike,
offered 20 years worth of extra seniority to replacements. The Supreme Court held
(continued...)
4

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xxvii
Relations Board v. Fleetwood Trailer Co., the Supreme Court recognized the
employer's right to continue operations by hiring permanent replacement workers
while maintaining that the displaced economic striker's right to reinstatement
continued until he has obtained "other regular and substantially equivalent
employment."5 As recently as 1990, in NLRB v. Curtin Matheson Scientific, Inc., the
Court acknowledged that employers could hire permanent replacement workers when
it found that the employer cannot presume that such workers do not support the union
for purposes of its duty to bargain.6
(...continued)
this offer of super seniority was an unfair labor practice because of its drastic effect
both on the strike and on labor-management relations after the strike. The minority's
argument is that the Court did not question the right of the employer to hire
permanent replacements.)ed.}
4

389 U.S. 375, 379 (1967). {In Fleetwood Trailer, an employer cut back
operations during a strike. When the strike ended, some strikers were recalled, but
there were no positions for a number of them. Six strikers who were not recalled
indicated that their desire to be recalled when their jobs were reactivated. Later,
when their jobs were reactivated, the employer hired six new applicants instead of
recalling the strikers. The Supreme Court held that the strikers remained employees
under the Act and were entitled to preference over new applicants. (However, the
strikers would not have been entitled to this preference if their jobs had been
abolished)that is, if the new applicants had been hired for newly created jobs)or if
the strikers were no longer employees of this employer because they had accepted
permanent employment at another firm.) The minority's argument is that the Court
again recognized the right of a struck employer to hire permanent replacements.)ed.}
5

110 S.Ct. 1542 (1990). {When permanent replacements are hired during a
strike, the employer may doubt that the majority of employees still desires to be
represented by the union. As mentioned above in n. d, an election can be held. But
it is also possible for the employer simply to withdraw recognition from the union,
provided the employer has a good-faith doubt as to the union's majority status. In this
event, the union will file an unfair labor practice charge, accusing the employer of
refusing to bargain. The central issue in the case will be whether the employer had
a good-faith doubt. For the purpose of deciding this issue, both replacements and
strikers are counted as employees. The Labor Board presumes that replacements
support the union in the same proportion as the replaced workers did. The effect of
this presumption is to place the burden on the employer to prove that the majority of
employees no longer bears allegiance to the union. In Curtin Matheson, a collective
contract expired; the union rejected the employer's last offer, and the employer
(continued...)
6

Labor and Employment Law

xxviii
As the foregoing discussion indicates, the right of employers to maintain
operations during an economic strike by hiring permanent replacement workers did
not evolve in the offhanded manner the proponents of H.R. 5 would have one believe.
Employers were understood to retain that right prior to the passage of the National
Labor Relations Act, and in numerous cases since the 1938 decision, the Supreme
Court has reaffirmed the Mackay doctrine. Further, subsequent case law and
legislative developments related to the rights of both replacement workers and
economic strikers have started from the premise of the per se legality of permanent
replacement.
The many legal protections in the NLRA that are extended to strikers ensure that
permanent replacement is not the same as firing a striker
Another argument raised by supporters of the ban on permanent replacement
workers is that employers have used their ability to hire such workers as a means to
"bust" unions and that permanent replacement is essentially "firing" an employee for
engaging in strike activity protected by section 7 of the NLRA. However, several
other legal doctrines that have developed under the NLRA make it difficult for
employers to use permanent replacement workers for this purpose. In the first
instance, the use of permanent replacement workers as a means to eliminate a union
from a workplace is thwarted by the fact that, to the extent that an employer is
engaging in surface bargaining and is trying to instigate a strike so nonunion
(...continued)
locked out the 27 workers in the bargaining unit. The union responded by calling a
strike. Five workers decided to cross the picket line and report for work. The
employer then hired 29 permanent replacements to replace the 22 remaining strikers.
The union abandoned the strike; it accepted the employer's last offer, and the strikers
offered to return to work. The employer replied that the strikers had been replaced.
The employer also withdrew recognition from the union, which filed an unfair labor
practice charge. The Board applied its presumption that the replacements supported
the union in the same proportion as the strikers and required the employer to
substantiate its doubt as to the union's majority status. The Board evaluated the
employer's evidence and held that it was insufficient to support a good-faith doubt.
Accordingly, the Board ordered the employer to recognize and bargain with the
union. The Court of Appeals refused to enforce the Board's order because the court
rejected the Board's presumption that replacements support the union in the same
proportion as strikers do; the court believed that the Board should presume that
replacements do not support the union. The Supreme Court reversed the Court of
Appeals and upheld the Board, finding the Board's presumption was justified. The
minority's argument is that the Court once again acknowledged that employers may
hire permanent replacements for strikers.)ed.}
6

371

Labor and Employment Law

372

xxix
replacement workers could be hired, the employer would be guilty of an unfair labor
practice and could not permanently replace the strikers. Further, economic strikers
remain members of the bargaining unit eligible to participate in union elections for
12 months. Thus, hiring permanent replacement workers does not provide a ready
majority for voting out a union.
The National Labor Relations Board (NLRB) and the Courts have gone to
great lengths to balance the rights of strikers against the rights of employers to
continue to operate their businesses during strikes. In NLRB v. Erie Resistor Corp.,
which was mentioned previously, the Supreme Court held that a struck employer may
not offer inducements, such as super-seniority, to striker replacements, and to do so
constitutes an unfair labor practice. The Court reasoned that although "the employer's
interest must be deemed to outweigh the damage to concerted activities caused by
permanently replacing strikers, it does not follow that the [employer's interest] also
outweighs the far greater encroachment resulting from super-seniority in addition to
permanent replacement."8 Thus, the Supreme Court accommodated the rights of all
parties in a fair and balanced manner consistent with section 7 of the NLRA. Taking
its cue from the Court, the NLRB held, in Burlington Homes, Inc.,9 that the employer
commits an unfair labor practice when wages or benefits are offered to replacements
that are higher than those offered the union during negotiations before the strike.
Strikers retain their status as employees under section 2(3) of the Act, and the
Supreme Court held in Fleetwood Trailer10 that, in the absence of "legitimate and
substantial business justification," the employer commits an unfair labor practice if
others are preferred over unreplaced "economic" strikers long after the strike has
ended even though no jobs were available at the time the "economic" strikers applied
for reinstatement. Expanding the Fleetwood protections, the Board held in Laidlaw
Corp.11 that economic strikers who unconditionally apply for reinstatement (1) remain
employees even if their positions are held by "permanent" replacements and (2) are
entitled to full reinstatement upon the departure of the "permanent" replacement,
unless they have acquired regular and substantial equivalent employment, or the
employer proves failure to offer full reinstatement was for legitimate and substantial
business reasons. Furthermore, reinstated strikers are entitled to all benefits,
including past seniority. In other words, "permanently" replaced economic strikers

8

373 U.S. 221, 232 (1962).

9

246 NLRB 1029 (1979).

10

389 U.S. 375 (1967).

11

171 NLRB 1366 (1968).

Labor and Employment Law

xxx
have the right to reinstatement over all others once their replacements depart, and
strikers so reinstated retain all past benefits.
An employer walks a mine field in replacing strikers. If it is subsequently
found that a strike was an unfair labor practice rather than an economic strike, an
employer may be liable for back pay to all strikers from the time they unconditionally
offered to return to work. Because of the Supreme Court's decision in Belknap v.
Hale,13 ... an employer must be extremely cautious in hiring "permanent"
replacements who were promised permanent jobs but were later discharged to make
room for returning strikers whom the employer reinstated in accordance with a
settlement agreement [because the discharged replacements may sue the employer if
state law allows]. Accordingly, the employer is subject to paying "damages" to
"permanent replacements."
The Supreme Court's decision in NLRB v. Curtin Matheson Scientific, Inc.
further put employers at peril if they question a union's majority status when a
majority of the employees are replacements for striking employees. The Court ruled
it may not be presumed that replacements do not support the striking union, and an
employer commits an unfair labor practice if he refuses to bargain with the union on
the claim that replacements outnumber strikers.
The many-layered protections that are extended to striking employees during
a strike, at the time an employer makes a decision to hire replacement workers, and
when the striking employee offers to return to work, guarantee that an employer
cannot cavalierly hire permanent replacement workers as a means to "bust" a union.
These protections also serve to ensure that many "permanently" replaced strikers do
eventually get their old jobs back. In fact, the Bureau of National Affairs conducted
a study that indicated that, even in those rare strikes involving permanent replacement
workers, where the status of strikers could be determined, a majority were reinstated
to their former jobs.15 Beyond these legal protections, it should be reemphasized that
sound practical considerations mitigate against hiring permanent replacement workers
at all. The animosity created between labor and management, the difficulty of
recruitment, and the costs of training replacement workers are but a few of the
reasons why employers only reluctantly fill strike vacancies with permanent
replacement workers. The sad fact is that H.R. 5 will likely lead to more job loss
through the economic disruption caused by increased strike activity than will the
limited use by employers of permanent replacement workers during economic strikes.

13

463 U.S. 491 (1983).

15

See "Daily Labor Report," No. 75, p. E-3 (April 17, 1992).

373

Labor and Employment Law

374

xxxi
There was no increase in the incidence of striker replacement activity during the
1980's that would justify passage of H.R. 5
Proponents of H.R. 5 have argued that, after 55 years of coexisting with the
possibility of permanent replacement, the practice has increased so dramatically in the
last decade that it has become management's first and most common response to any
labor dispute. Some have gone so far as to accuse employers of deliberately forcing
strikes in order "bust" the union by hiring permanent replacements. Unfortunately,
these contentions ignore both the facts surrounding the incidence of permanent
replacement hirings, as well as the business realities of an employer's decision to
resort to such a tactic.
The notion that employers cavalierly decide to replace entire units of
employees contradicts the nearly universal efforts of employers to ensure workforce
stability. Indeed, an experienced, well trained workforce is one of an employer's most
valuable assets. In today's competitive marketplace, employers strive to hire and
retain a quality workforce. Moreover, hiring permanent replacements is not only
costly, in terms of recruitment, training, and productivity loss, it often is associated
with strike violence, public relations problems and costly litigation. As a result, most
employers involved in labor disputes will hire permanent replacements when faced
with the most dire of circumstance and then, only as a last resort.
The only study of which we are aware that compares the use of permanent
replacement workers prior to 1980 with the use in later years was conducted by the
Employment Policy Foundation. The study, which was based on research of
published cases decided from 1938 to 1989 citing the Mackay decision, found that the
use of permanent replacements was both rare and relatively constant during that
period.16
The rarity of an employer's resort to hiring permanent replacement workers
is also borne out in a 1991 General Accounting Office study which found that
permanent replacement workers were used in only 17% of recent strikes, and that
only 4% of strikers were legally "replaced" in 1985. By 1989, the number of workers
who were not reinstated after a strike had dropped to 3%.17 To those who contend
that the practice of hiring permanent replacements "exploded" in the 1980s, the GAO
The study is published in "Loading the Scales: Is the Balance Between the
Right to Strike and the Right to Operate in Need of Reform?" by Daniel V. Yager,
Employment Policy Foundation (1993).
16

See GAO/HRD-91-2, "Strikes and the Use of Permanent Strike
Replacements in the 1970's and 1980's" (January 1991).
17

Labor and Employment Law

xxxii
has stated that there is "little supporting data" that employers have hired more
permanent replacements since 1981. While the GAO did note that 45% of employers
and 77% of the union representatives believed that replacement workers were hired
more often in the 1980's, such unbuttressed opinion is hardly conclusive evidence on
which to base a radical change in labor law.
Our Federal labor laws are designed to help resolve costly disputes between
employees and employers. And while an employer's ability to hire permanent
replacements is but one aspect of that design, its role in maintaining a balance
between labor and management is evidenced by how little it is actually used.
Comparisons to the labor-management laws of other nations are irrelevant to the
issue of whether H.R. 5 makes policy sense in the United States
Much has been made by proponents of H.R. 5 of the fact that the United
States is the only industrialized nation in the world to allow the permanent
replacement of striking workers. While a recent study by the United States Council
for International Business and the Institute for International Human Resources casts
doubt on this assertion,18 even if it were accurate, such a comparison ignores not only
the comprehensive body of statutory and regulatory labor relations law in each
country, but also the economic, social, and cultural context of which any legal system
is a part.
We could also pick and choose among the labor relations laws of other nations
to find provisions that might be more amendable to the interests of American
businesses than the system of balanced interests [in which] they must work within in
this country. It would be interesting to note the position of the proponents of H.R. 5
on some of the other aspects of the labor relations laws of Great Britain, France,
Germany, or the other nations whose ban on permanent replacement workers is so
highly touted. Would H.R. 5's supporters favor multi-union representation of
employees in the same work unit as is permitted in France, Italy and Germany?
Maybe the proponents of H.R. 5 would support legislation to allow individual
employee bargaining or unilateral employer action superseding collective bargaining
agreement provisions as is the law in Germany, Austria, Luxembourg, Netherlands,
Ireland, Spain and the United Kingdom? Perhaps Germany's ban on any strike that
is severe enough to "grievously wound" a company is a provision that H.R. 5's
proponents can accept? Would those who support H.R. 5 also support a CanadianThe 1993 study found that, of 32 countries responding [to] a survey of labor
law and practices, seven countries clearly permit the use of permanent replacements,
including Australia, Austria, Hong Kong, Ireland, Norway, South Africa, and the
United Kingdom.
18

375

Labor and Employment Law

376

xxxiii
style prohibition on strikes seeking union recognition or over the interpretation of a
collective bargaining agreement?19
A decision by any other country to include a ban on the hiring of permanent
replacement workers within the fabric of their labor always tells us very little about
whether that policy makes sense for the United States. The fact remains that within
the context of our system of labor relations law, the collective bargaining process
simply will not work with the inequality of power that will result from a ban on
permanent replacement workers. Collective bargaining works because both labor and
management have powerful economic tools—the right to strike and the right to hire
replacement workers in an economic strike respectively—that make it in their mutual
interests to hammer out an agreement. Without that balance, the concessions
demanded by organized labor will become more unrealistic and more strikes will
result.
H.R. 5's ban on permanent replacement workers is not limited to union
workplaces
H.R. 5, as it was originally introduced in the 102nd Congress, was criticized
because it covered non-union workplaces where it was asserted that the bill's
protections would lead to indiscriminate and undisciplined strikes by groups of
employees over minor issues. The Peterson substitute offered on the House floor
during the last Congress attempted to address this issue by providing that the bill's
protections apply only in union workplaces and in workplaces where a majority of
employees have signed union authorization cards and the union, at least 30 days prior
to the strike, has filed a petition to be recognized as the exclusive bargaining agent.
H.R. 5 mimics the Peterson substitute with respect to the issue of the coverage of
union versus nonunion workplaces.
Although the change in the coverage provision was purportedly designed to
avoid disruption of nonunion workplaces, the ban on the use of permanent
replacement workers continues to apply in the context of recognitional strikes.
Essentially, any union with a "card check" majority could force an employer to
recognize it as the exclusive bargaining agent simply by calling a strike. Many
employers, who under the bill would be prohibited from maintaining operations by
hiring permanent replacement workers, would not have the luxury of waiting for an
NLRB-certified election to determine if the union in fact had majority status. Both
employers and the labor community are well aware that the fact that a majority of
employees have signed authorization cards is not a true indicator of the level of union
support.
19

See, generally, "Loading the Scales," supra n. 16.

Labor and Employment Law

xxxiv
The exemption of non-union workplaces from H.R. 5's prohibition creates an
anomaly under the NLRA whereby non-union employees are ... second class citizens
in terms of an employer's ability to permanently replace them. This unprecedented
legal preference for union workers will surely be used as an organizational tool by
labor unions struggling to increase their ranks above the paltry 12% of the private
sector workforce they currently represent. The proponents of this legislation, by
exempting nonunion workplaces, are recognizing that there is a legitimate use of the
weapon of hiring permanent replacement workers. However, they then turn this
recognition on its head by establishing a prohibition that allows them to tell nonunion
employees that if they join the union, they can't be permanently replaced, whether it
is legitimate or not.
...
H.R. 5 threatens the rights of employees who exercise their option not to strike.
Another decision that H.R. 5 is purportedly designed to overrule is the 1989
Supreme Court decision in Trans World Airlines, Inc. v. Independent Federation of
Flight Attendants, 489 U.S. 426 (1989). This decision dealt with the issue of the
rights of full-term strikers vis-a-vis the rights of crossover employees who did not
honor the duration of the strike. In that case, at the conclusion of an economic strike,
TWA refused to displace junior crossover employees who were able to bid into
desirable job vacancies left open by more senior full-term strikers. Under the
collective bargaining agreement, there was a seniority bidding system which would
normally allow the most senior employees to select the most favorable job
assignments, flight schedules and bases of operation. In essence, the returning
strikers were arguing that at the conclusion of the strike, all the jobs should be re-bid
so senior employees could get their previous job assignments back.
The Supreme Court held that there was no valid reason to treat crossover
employees any differently than newly hired replacement workers and concluded that
to do so would have the effect of penalizing workers who exercised their right not to
strike. Thus, just as an employer is not bound to terminate a replacement worker to
give a job to a returning striker, [an employer is] not bound to displace a crossover
employee to give a specific job to a returning striker. The Court found that whether
jobs were filled by crossover employees or replacement workers, they were simply
not "available positions" to which returning strikers had a right to reinstatement.
The Supreme Court distinguished the Erie Resistor decision, which held that
it is an unfair labor practice to give additional benefits to new hires or crossover
employees. The employer in that case had given employees who did not honor the
strike 20 years of additional seniority credit. In Trans World Airlines, the Supreme

377

Labor and Employment Law

378

xxxv
Court found that full-term strikers lost no seniority either in actual or relative terms,
and, in any future reduction in force, strikers could displace both junior crossover
employees and new hires just as if the strike had never occurred.
The result contemplated by H.R. 5 would require employers to discriminate
against those who choose not to strike, in order to benefit those who do. Such a result
is entirely inconsistent with section 7 of the NLRA which, by design, protects
employees' right to engage in concerted activities, as well as the right of employees
to refrain from such activities.
CONCLUSION
Regardless of its duration, any strike causes some disrupt[ion] to our
productive capacity, and in an increasingly competitive global economy, that is a
result that none of us can favor. In those circumstances where geographic isolation
or the need for special skills make it impossible to maintain business operations
during a strike without hiring permanent replacement workers, the economic
disruption caused by H.R. 5 will be even worse.
Moreover, our federal labor laws are predicated upon, and have consistently
maintained, a balance of interests and risks between employees and employers. By
prohibiting the hiring of permanent replacement workers, H.R. 5 will place so heavy
a thumb on the scale in favor of labor that the foundation of our system of collective
bargaining will be seriously undermined.
In conclusion, therefore, we believe that the consequences of enacting this bill
are likely to be broadly felt, as more American businesses are rendered unproductive
by increased work stoppages and uncompetitive by inflationary labor demands. The
unfortunate result will be shrinking profitability, investment, and ultimately, jobs.

Labor and Employment Law

379

xxxvi

Questions for Discussion
1. The majority argues that H.R. 5 would promote
productivity by preserving a stable and experienced work
force. Is this an appropriate consideration?
2. Relying on Professor Gramm's study, the majority
states
that
strikes
last
longer
when
permanent
replacements are hired.
In which direction does
causality flow?
In other words, has Professor Gramm
reversed the cause and the effect?
3. After noting instances in which employers have
used permanent replacements, the majority writes, "For
this new breed of employer, who use and even encourage
strikes in order to undermine the collective bargaining
process, the basic assumption that there are economic
reasons to retain a long-term work force is no longer
applicable." Is this statement consistent with the rest
of the majority's argument? If economic realities have
changed, should employers adhere to old practices?
4. Based on Professor Cooke's study, the majority
argues that, in the long run, firms that "adopt hardball,
confrontational tactics such as the use of permanent
strike replacements are less profitable than firms that
adopt a cooperative approach to labor relations."
In
which direction does causality flow? Has Professor Cooke
reversed cause and effect?
5. Should it be an unfair labor practice for an
employer to break a union by forcing a strike (for
example, by making a demand in bargaining that the union
could not accept) and hiring permanent replacements?

Labor and Employment Law

380

THE LAW
We have noted above that, at common law, a worker who went on strike was
considered to have resigned. Consequently, before 1935 an employer was at liberty
to replace strikers. We have also noted that the Labor Act changed this rule so that
strikers remain employees of the struck firm.
Section 8(a)(3) prohibits an employer from discriminating against a worker
because of concerted activity. A strike is concerted activity. A replacement is a
worker who chooses not to engage in a strike. Thus, it can be argued that hiring a
replacement for a striker is to discriminate against the striker for engaging in
concerted activity and in favor of the replacement for not engaging in concerted
activity. In addition, at the time the following case was decided, section 13 of the Act
read:
"Nothing in this Act shall be construed so as either to interfere with
or impede or diminish in any way the right to strike."t
Replacing strikers arguably interferes with, impedes, or diminishes their right to
strike. Among other things, the following case considers whether this reasoning is
sound. As you read the case, consider whether the Court's statement on replacement
of economic strikers is holding or dictum.

t

Section 13 now reads:

"Nothing in this Act, except as specifically provided for herein, shall
be construed so as either to interfere with or impede or diminish in
any way the right to strike, or to affect the limitations or qualifications
on that right."
The changes in section 13 do not affect the issue in the following case.

Labor and Employment Law

381

xxxviii

National Labor Relations Board v. Mackay Radio
304 U.S. 333 (1937)

{The employer (respondent) operated facilities in several cities. The union
called a nation-wide strike over economic issues. Although all of the workers in the
San Francisco office heeded the call, few workers elsewhere struck. Wishing to
maintain operations in San Francisco, the employer asked employees in other cities
to fill in for the strikers. The employer promised that those who agreed would be
allowed to remain in San Francisco if they chose. By the third day of the strike, 11
employees had transferred to San Francisco.
{Seeing the strike was unsuccessful elsewhere, the workers in San Francisco
offered to return to work. The employer accepted the offer, but drew up a list of 11
strikers who would not be recalled because their jobs had been taken by replacements.
Later, six of the replacements decided to return to the cities from which they came,
and six of the strikers on the list were recalled.
{The union filed a charge with the Labor Board, alleging that the workers on
the no-recall list were chosen because they had been the most active in the strike. The
Board agreed, holding the employer had violated §§ 8(a)(1) and (3) by refusing to
recall five strikers because of their concerted activity. The Board ordered the
employer to reinstate the five remaining strikers. The Court of Appeals refused to
enforce the Board's order. The Supreme Court granted the Board's petition for
certiorari and upheld the Board. The Court's comments on the employer's right to
hire permanent replacements for strikers follow.}
Mr. Justice ROBERTS delivered the opinion of the Court.
...
The strikers remained employees under § 2(3) of the Act, which provides:
"The term 'employee' shall include ... any individual whose work has ceased as a
consequence of, or in connection with, any current labor dispute or because of any
unfair labor practice, and who has not obtained any other regular and substantially
equivalent employment...." Within this definition the strikers remained employees
for the purpose of the Act and were protected against the unfair labor practices
denounced by it. Nor was it an unfair labor practice to replace the striking employees
with others in an effort to carry on the business. Although § 13 provides, "Nothing
in this Act shall be construed so as to interfere with or impede or diminish in any way
the right to strike," it does not follow that an employer, guilty of no act denounced by
the statute, has lost the right to protect and continue his business by supplying places
left vacant by strikers. And he is not bound to discharge those hired to fill the places

Labor and Employment Law

382

NLRB v. Mackay Radio

xxxix

of strikers, upon the election of the latter to resume their employment, in order to
create places for them. The assurance by respondent to those who accepted
employment during the strike that if they so desired their places might be permanent
was not an unfair labor practice, nor was it such to reinstate only so many of the
strikers as there were vacant places to be filled. But the claim put forward is that the
unfair labor practice indulged by the respondent was discrimination in reinstating
striking employees by keeping out certain of them for the sole reason that they had
been active in the union. As we have said, the strikers retained, under the Act, the
status of employees. Any such discrimination in putting them back to work is,
therefore, prohibited by § 8.
...
As we have said, the respondent was not bound to displace men hired to take
the strikers' places in order to provide positions for them. It might have refused
reinstatement on the grounds of skill or ability, but the Board found that it did not do
so. It might have resorted to any one of a number of methods of determining which
of its striking employees would have to wait because five men had taken permanent
positions during the strike; but it is found that the preparation and use of the list, and
the action taken by respondent, was with the purpose to discriminate against those
most active in the union. There is evidence to support these findings.
....

QUESTIONS FOR REFLECTION
1. The Court said the employer could have determined
which strikers to recall by "any one of a number of
methods" other than the extent of their concerted
activity.
Name a few methods that would not have
violated the Labor Act.
2. What reasons did the Court give for saying that
an employer may hire permanent replacements? How much
respect does a case deserve as precedent if a court has
not revealed its reasons for decision?
3. Perhaps the Court's discussion of an employer's
right to hire permanent replacements is so brief because
it was not an issue in the case! One reason it was not
an issue is that the Labor Board did not hold that it was

Labor and Employment Law

xl

383

NLRB v. Mackay Radio

an unfair labor practice for the employer to bring in
permanent replacements for economic strikers.
The
General Counsel charged, and the Board held, only that
the employer committed discrimination by deciding which
strikers to recall according to how active they had been
during the strike. Nevertheless, the employer argued in
its brief to the Supreme Court that it had the right to
hire permanent replacements, and in its reply brief, the
Board conceded that employers may hire permanent
replacements for economic (but not for unfair labor
practice) strikers. That the parties agreed on the point
is a second reason why the legality of hiring permanent
replacements was not an issue before the Court. In such
cases, it is normal practice for courts to refrain from
commenting on the issue.
Had the Court in Mackay
followed this practice, it might have written something
like this:
The employer brought in permanent replacements for
the strikers.
The employer and the Board agree
that an employer may hire permanent replacements
for economic strikers. Assuming without deciding
that this is the law, we proceed to the issue on
which the parties disagree, to wit, whether the
Board may order an employer to reinstate strikers
as a remedy for an unfair labor practice.

What is the name for a statement like this? What effect
would it probably have on subsequent cases?
4. The rule of Mackay Radio applies to economic
strikes, that is, strikes motivated by a dispute over the
terms and conditions of employment.
Most strikes are
economic, but some strikes are motivated by an employer's
unfair labor practices. For example, in the introduction
to Jefferson Standard we mentioned the Fansteel case, in
which workers struck because their employer had committed
serious unfair labor practices.
(a) Should
permitted today?

unfair

labor

practice

strikes

be

(b) If so, should an employer be allowed to replace
unfair labor practice strikers?

Ù

Labor and Employment Law

384

Solicitation on Company Property
Introduction
Property rights are among the most nearly absolute
of all the rights we enjoy. For example, if you own a
piece of real estate, you may exclude everyone else on
earth from it, and you may allow (in legal terms, grant
a license to) someone to enter only upon conditions that
you specify.a
Property rights apply not only to real estate, but
also to moveable property (known as a chattel), whether
it be tangible, such as a pin, a bookcase, or a tractor,
or intangible, such as a debt, a copyright, or the
In general, the same rights
goodwill of a business.b
that apply to real estate apply to chattels.
A business is typically a combination of real estate
and chattels. Part of operating a business is usually
hiring workers. Workers generally must enter property in
the control of the business; thus, employment involves
property rights of real estate. Workers normally must
handle tools that belong to the business, and often deal
with intangible things like secret formulae or the names
of customers; thus, employment also involves property
rights of chattels.
In the past, when we protected
property rights to the fullest, an employer had the right
to exclude a worker from the real estate on which the
business was located, to license the worker to enter the
property only during hours specified by the employer, and
to control the behavior of the worker while on the
property and while handling the employer's chattels.

a

The same applies to leased property, except that the
lease usually reserves to the landlord the right to enter for
specific purposes, for example, to make repairs.
b

The terms "personal
synonyms for "chattel."

property"

and "personalty"

are

Labor and Employment Law

ii

385

NLRB v. Babcock and Wilcox

We have seen that, in the Nineteenth and early Twentieth
Centuries, the property rights just mentioned were
considered to be constitutional rights, and the
Our
government was prohibited from infringing them.c
view of the Constitution changed during the 1930s, and
today we recognize that the government may pass laws that
limit, to some extent, one's property rights. When the
Labor Act was held to be constitutional, employers lost
the right to discriminate against workers on the basis of
their concerted activity.d Similarly, fifty years ago,
a landlord was free to refuse to rent an apartment to a
person, a business was free to refuse to serve a
customer, and an employer was free to refuse to hire a
worker, because of the person's race. Today, however,
the law prohibits racial discrimination in renting real
estate, in serving the public, and in employing workers.
A result of our changing view of the importance of
property rights vis-a-vis other rights is that boundaries
must be re-drawn between competing legitimate interests.
The law must determine where the property right of a
business ends and the right of a customer or employee
begins. One of the first situations in which a boundary
had to be drawn involved labor relations.
In two cases decided in a single opinion, Republic
Aviation v. NLRB and NLRB v. Le Tourneau, 324 U.S. 793
(1945), the Supreme Court considered the legality of
employers' rules that prohibited workers from soliciting
for the union on company property during rest breaks,
lunch, and other non-working hours.
Solicitation
included wearing union insignia like buttons and speaking
to co-workers.
The Board had concluded that the nosolicitation rules violated section 8(a)(1).
The
employers' principal argument was that the Board had not
followed proper procedures in reaching its conclusion,

c

Recall Adair v. United States and Coppage v. Kansas.

d

Recall NLRB v. Jones & Laughlin.

Labor and Employment Law

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NLRB v. Babcock and Wilcox

iii

and most of the Supreme Court's opinion was devoted to
rejecting this argument. But the Court also addressed
the issue of whether the no-solicitation rules were
lawful. It wrote:
These cases bring here for review the action
of the National Labor Relations Board in working
out an adjustment between the undisputed right of
self-organization assured to employees under the
Wagner Act and the equally undisputed {property}
right of employers to maintain discipline in their
establishments. Like so many others, these rights
are not unlimited in the sense that they can be
exercised without regard to any duty which the
existence of rights in others may place upon
employer or employee. Opportunity to organize and
proper discipline are both essential elements in a
balanced society." 324 U.S. at 797-798.
Not only has the Board in these cases
sufficiently expressed the theory upon which it
concludes that rules against solicitation or
prohibitions against the wearing of insignia must
fall as interferences with union organization, but,
in so far as rules against solicitation are
concerned, it had theretofore succinctly expressed
the requirements of proof which it considered
appropriate to outweigh or overcome the presumption
as to rules against solicitation. In the Peyton

Labor and Employment Law

iv

387

NLRB v. Babcock and Wilcox
Packing Co. Case, 49 NLRB (F) 828 at 843, the
presumption adopted by the Board is set forth.10 324
U.S. at 803.
__________
10
49 NLRB (F) at 843, 844: "The Act, of course,
does not prevent an employer from making and enforcing
reasonable rules covering the conduct of employees on
company time.
Working time is for work.
It is
therefore within the province of an employer to
promulgate and enforce a rule prohibiting union
solicitation during working hours. Such a rule must be
presumed to be valid in the absence of evidence that it
was adopted for a discriminatory purpose. It is no less
true that time outside working hours, whether before or
after work, or during luncheon or rest periods, is an
employee's time to use as he wishes without unreasonable
restraint, although the employee is on company property.
It is therefore not within the province of an employer
to promulgate and enforce a rule prohibiting union
solicitation by an employee outside of working hours,
although on company property.
Such a rule must be
presumed to be an unreasonable impediment to selforganization and therefore discriminatory in the absence
of evidence that special circumstances make the rule
necessary
in
order
to
maintain
production
or
discipline."

It is clear, therefore, that employees may solicit
one another for unionization on company property during
non-working hours. May they get help from a union? That
is, may a union representative, who is not an employee of
the company, enter company property and do what employees
themselves may do, namely, solicit employees to join the
union during non-working hours? Here follow the decision
of the Court of Appeals for the Fifth Circuit on this
issue plus excerpts from briefs filed in the Supreme
Court in the appeal of the Fifth Circuit's decision. A
central issue is whether Republic Aviation and Le
Tourneau are precedents for the case at bar, or whether
they are distinguishable.

Labor and Employment Law

388

National Labor Relations Board v. Babcock and Wilcox Co.
222 F.2d 316 (5th Cir. 1955)
HUTCHESON, Chief Judge.
{The employer, Babcock & Wilcox (the respondent), prohibited nonemployees from soliciting on company property. The rule was enforced without
discrimination, that is, outsiders — whether soliciting for a union or for any other
purpose — were barred. Union organizers who sought to solicit in the parking lot on
company property complained to the Board, which held the employer in violation of
§ 8(a)(1) and ordered the employer to permit the organizers to solicit on company
property. The employer refused to obey the Board's order, and the Board petitioned
the court for enforcement.}
...
... Th{e} question is whether, on a record devoid of proof that any employees
were disciplined or in any manner discriminatorily dealt with by the respondent, or
were or desired to be members of the union, or were in any way connected with or
interested in the distribution by the union representatives of its literature, the board
had authority to require the respondent to institute in favor of non-employee union
organizers, complete strangers to it and to its employees, a discriminatory nonenforcement of its non-distribution rule, which the proof showed and examiner and
board found had always and uniformly been enforced in a completely nondiscriminatory way.
... We find ourselves in full agreement too with the contention of the
respondent that the orders of the board in this case are not in accordance with, but in
direct violation of, the letter and spirit of the Labor Management Act, as amended.
Indeed we are at a loss to understand how on this record — which contains neither
findings (nor evidence furnishing a basis for findings) that the rights or interests of
respondent's employees are involved or will be furthered by compelling the
respondent to institute a discriminatory application in favor of a particular labor union
of its non-distribution rule — the board can take to itself the power to accord the
union rights which the statute does not accord it by imposing against the respondent,
in favor of a particular union, a servitude on its propertye which the law, neither in
terms nor in spirit, accords to it, in a case, too, where no employee is involved, no
employee is complaining, and no rights of employees have been invaded or abridged
by the respondent. We think that the order is itself in violation of the Labor
Management Act and of the board's duty to impartially enforce it as between union

e

{A servitude is an easement, that is, the right of one person to use the property of
another person for a special purpose. — ed.}

Labor and Employment Law

vi

389

NLRB v. Babcock and Wilcox

and management in the interest of neither but only in the interest of the employees.
...
Enforcement of the Board's order is denied.
iiii
The Labor Board obtained a writ of certiorari from
the Supreme Court. The Board and the employer offered
the following arguments.
iiii

National Labor Relations Board v. Babcock & Wilcox Co.
351 U.S. 105 (1956)

From the brief of the Labor Board
(Petitioner)
{The brief is signed by Simon E. Sobeloff, Solicitor General of the U.S., and
Theophil C. Kammholz, General Counsel, David P. Findling, Associate General
Counsel, Dominick L. Manoli, Assistant General Counsel, and Ruth V. Reel,
attorney, NLRB.}
The Board properly found that respondent violated Section 8(a)(1) of the
Act by prohibiting union organizers from distributing union literature
on its plant parking lot during the employees' free time.
In National Labor Relations Board v. Le Tourneau Company, 324 U.S. 793,
this Court held that an employer prohibition against the distribution of union
literature by employees on a company parking lot unlawfully interfered with the rights
guaranteed employees by Section 7 of the Act because it constituted an unreasonable
impediment to the employees' exercise of those rights. The only significant factual
difference between the two cases, which the court below deemed decisive, is that here
the employer's rule against such distribution was enforced against nonemployee union
organizers. Nevertheless, we believe that the principles upon which the Le Tourneau
decision rests also sustain the Board's ruling here that respondent violated Section
8(a)(1) of the Act in barring these union organizers from distributing union literature
on its parking lot.
1. In Le Tourneau, as here, the employer's plant was located in a rural area.
The employees' dwellings were widely scattered within a radius of 20 miles from the

Labor and Employment Law

390

NLRB v. Babcock and Wilcox

vii

plant. Contact on public ways or on noncompany property with employees at or near
the plant was limited to those employees, approximately one-third of the working
force, who were likely to walk across the public highway near the plant on their way
to work or who would stop their private automobiles, busses or other conveyances on
the public roads for communications.
The employer in that case adopted and enforced a rule prohibiting his
employees from distributing union literature during their free time on a companyowned parking lot adjacent of his fenced-in plant. Although neither union bias nor
a discriminatory purpose prompted the adoption or enforcement of the rule, the Board
concluded that the prohibition constituted an unreasonable and therefore illegal
impediment to the employees' exercise of the rights guaranteed by Section 7 of the
Act. This Court upheld the Board's invalidation of the employer's rule as an
appropriate "adjustment between the undisputed right of self-organization assured to
employees under the ... Act and the equally undisputed right of employers to maintain
discipline in their establishments." 324 U.S. at 797-798.
The underlying considerations which prompted the Board and this Court to
reach that conclusion are relevant and controlling here. Insuring the right of
employees to organize for mutual aid is, as this Court pointed out, a "dominant
purpose" of the Act. In order that employees may effectively exercise the rights
guaranteed them under the Act, there must be available to the employees adequate
channels of communication for the receipt and transmittal of organizational
information, both oral and written. On the other hand, due recognition must be given
to the employer's property and legitimate business interests. "Like so many others,
these rights are not unlimited in the sense that they can be exercised without regard
to any duty which the existence of rights in others may place upon employer or
employee. Opportunity to organize and proper discipline are both essential elements
in a balanced society." 324 U.S. at 798. Therefore, where an employer seeks to
justify a rule prohibiting organizational activities on his premises, the critical issue
before the Board is whether, on balance, the injury to the organizational interests of
the employees which the rule imposes outweighs the injury which the employer
would sustain if the rule were abrogated.
Weighing these factors, the Board found in Le Tourneau, with the subsequent
approval of this Court, that the prohibition against distribution of union literature on
the company parking lot deprived the employees of an important avenue of
communication, and therefore seriously impeded the exercise of their right to selforganization for purposes of collective bargaining....
Against the detriment to employee interests which the parking lot prohibition
imposed, the Board weighed the employer's need for such a restriction to maintain

Labor and Employment Law

viii

391

NLRB v. Babcock and Wilcox

production or discipline or to protect other legitimate interests. The Board had
already concluded that an employer was justified in prohibiting organizational
activities during working hours, and, further, that his interest in keeping a clean and
orderly plant warranted a prohibition against distribution of union literature inside the
plant even during nonworking hours. Noting, however, that "considerations of
efficiency and order which may be deemed of first importance within buildings where
production is being carried on, do not have the same force in the case of parking lots"
(54 NLRB at 1261), the Board found that permitting distribution of union literature
on the parking lot during nonworking hours would impose little, if any, detriment
upon the legitimate interests of the employer and that the employer remained free to
protect those interests by methods which did not adversely affect the rights of
employees.
Thus, the employer's assertion that the rule was necessary to prevent littering
of the parking lot did not justify a prohibition against distribution, because the
littering could be avoided by a rule against littering. His claim that the prohibition
was necessary to prevent literature from going into the plant where it might provoke
controversy which might impair efficiency and safety was deemed to be equally
insubstantial, since his interest in these respects could as well be safeguarded by a
rule barring the carrying of literature into the plant as by a rule directed against
distribution on the parking lot. Accordingly, the Board found that, on balance, the
employer's business interests were insufficient to justify the impediment which the
parking lot prohibition imposed upon the effective exercise of the employees'
organizational rights, and that therefore the employer's proprietary interest could
properly be subordinated to the employees' interest in self-organization. And this
court approved the accommodation the Board had made between the competing
interests.
Upon substantially identical reasoning, the Board has concluded in the instant
and other cases that a similar ban against distribution of literature by union organizers
on a company parking lot likewise constitutes an unlawful interference with the
employees' organizational rights if it unreasonably restricts opportunity for their
exercise. {Emphasis added.} Proceeding under the principles which this Court
approved in the Le Tourneau case, the Board has assessed the impact of such a
restriction upon the organizational interests of the employees. It has recognized that,
as this Court noted in Thomas v. Collins, 323 U.S. 516, 533-534, adequate
opportunity for employees to receive information not only from fellow employees but
also from union organizers is an indispensable attribute of the right to selforganization. It has found that this right cannot, as a practical matter, be effectively
realized unless the union has access to the employees in the area in the immediate
vicinity of the plant. For union distributors face the same practical hardships which
confront employee distributors in attempting to distribute literature to employees'

Labor and Employment Law

392

NLRB v. Babcock and Wilcox

ix

homes scattered throughout a large city or over a wide rural area.
...
2. The court below distinguished Le Tourneau and held it inapplicable
because the distributors there were employees while the distributors here were
nonemployee union organizers. {Emphasis added.} Basically, the ruling below rests
on the premise that, where the prohibition is against nonemployees rather than
employees, it cannot be said that "rights of employees have been invaded or
abridged." This premise misconceives the scope of employee rights under the Act.
The statutory guarantee of self-organization, as this Court recognized in
Thomas v. Collins, 323 U.S. 516, 534, includes not only the right of employees "fully
and freely to discuss and be informed" concerning organizational matters, but also the
"necessarily correlative" right of a "union, its members and officials ... to discuss with
and inform the employees" about the advantages of self-organization. The Court
further noted (323 U.S. at 533) that the right "to organize freely for collective
bargaining ... comprehends whatever may be appropriate and lawful to accomplish
and maintain such organization." As stated in the Senate Report on Violations of
Free Speech and Rights of Labor (S. Rep. No. 1150, 77th Cong., 2d Sess., Part 1, pp.
4-5):
... The right of self-organization and collective bargaining is
a complex whole, embracing the various elements of meetings,
speeches, peaceful picketing, the printing and distribution of
pamphlets, news and argument, all of which, however, are traceable
to the fundamental liberties of expression and assembly. So
compounded, the right of self-organization and collective bargaining
is fundamental, being one phase of the process of free association
essential to the democratic way of life.
Obedient to the broad legislative purpose incorporated in the Act, the Board
has found from the outset of its administration that "The rights guaranteed to
employees by the act include full freedom to receive aid, advice, and information
from others, concerning those rights and their enjoyment" (Matter of Harlan Fuel
Company, 8 NLRB 25, 32).
Both before and after the passage of the Act it has, of course, been common
practice for employees to avail themselves of the services of outside organizers. The
necessity for invoking such assistance, particularly in the light of modern industrial
conditions, requires little elaboration. Today, as everyone knows, it is commonly true
that effective union organization can be best promoted by persons who devote their

Labor and Employment Law

x

393

NLRB v. Babcock and Wilcox

full time and knowledge to the task. Union representatives who specialize in
organization are experienced in organizing techniques and familiar with the
complexities of present day labor law. Formal training in organizational methods is
increasingly an indispensable prerequisite to organizing work. Unions have more and
more drawn upon colleges and graduate and law schools for the knowledge and skills
required by ambitious organizing campaigns. In addition, the labor movement has
developed its own training schools for organizers comparable to the salesmanship
training courses of industry and the programs of business colleges and graduate
schools. Employees who are unable to tap such organizational know-how gained
from long experience or specialized training are manifestly handicapped in exercising
their statutory right to self-organization for purposes of collective bargaining. And
to the extent that otherwise appropriate channels of communication between
employees and such organizers are blocked, as here, the employees' statutory rights
are diminished.
Contrary to the view of the court below, it should not be significant, even
assuming it to be correct, that the record in the instant case may be "devoid of proof
that any employees ... were or desired to be members of the Union, or were in any
way connected with or interested in the distribution by the union representatives of
its literature." While the record actually suggests that the court's statement was
inaccurate, the decisive point in any event is that employee rights are no less involved
merely because organizational information is disseminated by the union on its own
initiative rather than by the employees or upon their invitation. In either case, the
distributors are "pursuing the same end, namely, to advise the workers at the plant of
their rights under the Act and of the purported advantages of unionization" (Judge
Healy dissenting in National Labor Relations Board v. Monsanto Chemical Co., 225
F. 2d 16, 22 (C.A.9)). Where lack of interest stems from apathy or ignorance of the
advantages of self-organization, employees cannot realize the benefits of the statutory
guarantees unless those advantages are called to their attention. Indeed, it has been
noted that "very few American employees organize themselves. They have to be
organized." 93 Cong. Rec. 4432. Adequate opportunity to receive information from
outside organizers is therefore both appropriate and essential for the exercise and
enjoyment of the employees' right of self-organization, and therefore necessarily
encompassed within its protection.
An employer may not restrict the exercise of that right solely on the ground
that his property rights entitle him to exclude "trespassers." This Court has
recognized that the grant to employees in Section 7 of the Act of the right to engage
in concerted activities for purposes of self-organization may properly supersede the
employer's right, as property owner, to exercise absolute dominion over the property
on which such activities occur. As stated in National Labor Relations Board v. Stowe
Spinning Co., 336 U.S. 226, 232, "It is not 'every interference with property rights

Labor and Employment Law

394

NLRB v. Babcock and Wilcox

xi

that is within the Fifth Amendment.... Inconvenience, or even some dislocation of
property rights, may be necessary in order to safeguard the right to collective
bargaining.'" And, of course, National Labor Relations Board v. Le Tourneau applies
this familiar principle....
... Having opened up its property for employee use for its own advantage,
respondent cannot exclude as trespassers persons whose presence is necessary for an
effective exercise of the employees' statutory rights. The necessity for protecting the
statutory rights of employees who use the plant parking lot affords ample basis for
superseding the "dominion" which the employer-owner of a parking lot may exercise
over his property. Indeed, even the court below recognized, as both the Board and the
courts of appeals have generally held, that where employees live on company property
the employer's proprietary interest may properly be subordinated to the employees'
statutory rights so as to permit outside organizers to have access to them for the
purpose of assisting them in the exercise of these rights. The premise on which such
cases stand is that access is necessary to the effective exercise of the employees'
rights. By the same token, the employer's proprietary interest in the instant case may
properly be subordinated to the employees' interest in self-organization for purposes
of collective bargaining. And, as we have shown, the Board was fully justified in
concluding that access to the employees at the plant property is necessary if they are
to make effective use of the statutory guarantees.
From the brief of the employer
(Respondent)
{The brief is signed by O. B. Fisher, Paris, TX.}
2.
Unions Have No Inherent Right to Distribute Union Literature in the Manner
Quickest, Most Convenient and Cheapest for Them As Against the Right of
Ownership of Property
Throughout Petitioner's brief, the theme is that union organizers have the right
to distribute their literature and solicit union membership at the location or locations
most convenient to them, in the quickest manner and with the least expense possible.
Where do they get such a right? The Act does not expressly or impliedly give to nonemployee organizers such right. The Board, based on a conclusion that the union
could not readily distribute its literature off Respondent's premises, gave to its
organizers the right to make distribution thereof on Respondent's property, the place
most convenient for it.

Labor and Employment Law

xii

395

NLRB v. Babcock and Wilcox
...

Even if we are to concede that the immediate vicinity of the plant is the most
convenient place for distribution of union literature and perhaps the least expensive,
the Act does not give to the non-employee union organizer the inherent right to do his
solicitation at the place most convenient to him, particularly at the sacrifice of the
property rights of others. The Petitioner's argument, that the union cannot convey
information to employees unless it has access to the employees in the immediate
vicinity of the plant, is completely fallacious. Respondent is surprised at Petitioner
advancing such an argument with all of the means, devices and methods of
communication that we have and which were at the union's disposal here, had it
desired to use them....
Respondent recognizes that employees are entitled to freedom in receiving
advice and information from others concerning their rights under the Act. However,
this does not give to the union organizers, ... the right to exact a servitude upon the
employer's property whereby the employer is required to permit the union organizer
to go on his property....
If we are to face realities, we must face the fact that labor unions in the United
States are big business with substantial wealth at their control. Where do the
representatives of this business get the right to use another's property in the
furtherance of their efforts solely because it will be easier, cheaper and more
convenient for them, as contended by Petitioner? Surely the employer is not called
on to furnish a forum for the union organizer, in order to make his job easier, quicker
and cheaper for him. An employer is not required to aid employees to organize, but
only not to interfere.
...
The magnitude of the right to own and control property has always been
recognized and jealously guarded by our courts as a necessary part of liberty and
freedom. The right has never been lightly dealt with. It is of such importance to our
society and democracy that it is protected and guaranteed by the Fifth Amendment to
the Constitution of the United States. Admittedly, the exercise of the elements of
enjoyment and ownership of property are subject to government regulation to the
extent that the exercise of an equally valuable and important right by another shall not
be denied to him. However, in each instance that our courts have found it necessary
to make some dislocation of property rights in favor of strangers, it was only when
the stranger had encountered an insuperable and unsurpassable hardship or difficulty
in exercising some Constitutional right, for example, his freedom of communication
with others.

Labor and Employment Law

396

NLRB v. Babcock and Wilcox

xiii

...
5.
Board Improperly Equalizes Rights of Employees and Non-employees
The order entered by the Board, which Petitioner here seeks to have enforced,
accords to non-employee union organizers exactly the same rights and privileges as
is accorded unto employees. The equalization of those rights was never intended by
the Act, nor by Congress. As stated by the Fifth Circuit Court of Appeals in the case
of National Labor Relations Board v. Swartz, 146 F. 2d 773 (1945) at page 774:
Contrary to a rather general misconception, the National Labor
Relations Act was passed for the primary benefit of the employees as
distinguished from the benefit of labor unions....
...
... {B}asic distinctions exist between rights accorded employees and nonemployees by the Act. Section 7 of the Act specifically gives the rights encompassed
in the Act to employees and also specifically provides that employees shall have the
right to refrain from any or all of the activities provided for in the Act. Nonemployees have no rights under the Act except such rights, by inference, as are
necessary to prevent the rights accorded employees from being forfeited.
Nevertheless, the Board here seeks to have this Court perpetuate an order of its own
which would equalize the standards governing the conduct and rights of nonemployee union organizers under the Act. Such equalization was never intended by
Congress, and is not provided for, either expressly or impliedly by the Act. A
distinction between those rights has been consistently recognized by our courts and
properly so. The Petitioner here seeks to do away with that distinction. The
Petitioner seeks to justify such equalization by arguing that it has put ample
safeguards in the order by which it permits the employer to impose reasonable rules
and regulation. Such argument is completely foreign to the question before this
Court. To require that employees be permitted to distribute literature on the
employer's parking lot, does not invade his property or abridge his rights, they being
licensees, as does the requirement permitting non-employees to distribute literature
on the employer's parking lot. The employee already has a license from the owner of
the parking lot to use it. Our courts have consistently recognized basic distinctions
between the rights of licensees and strangers to the use of property in a variety of
situations. The courts should not entertain the thought of equalizing those rights in
any situation unless and until specifically provided for by Congress. Even then
serious questions under the Fifth Amendment to the Constitution would arise.

Labor and Employment Law

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NLRB v. Babcock and Wilcox
...

By its order in this case the Board would accord respondent the right to
impose reasonable and non-discriminatory regulations "in the interest of plant
efficiency and discipline" in respect to the use of its property for organizational
purposes but not so as to deny "full access" to non-employee union organizers for the
purposes of soliciting union memberships and distributing union literature. Plant
efficiency and discipline make sense when related to employees, but they become
sheer nonsense when they are related to non-employees. How can an employer
provide for the discipline of non-employees who are trespassers as to him and over
whom he can exercise neither sanction nor control?

Labor and Employment Law

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NLRB v. Babcock and Wilcox

xv

QUESTIONS FOR REFLECTION
1. Republic Aviation and Le Tourneau held that an
employer may not prohibit employees from soliciting for
a union on company property during non-working hours.
Can you think of any circumstances in which an employer
may legitimately prohibit workers from soliciting for a
union on company property during non-working hours?
2. The holding of a case is limited by the facts of
the case.
This is an important principle of legal
doctrine, and it bears repeating. The holding of a case
is limited by the facts of the case. The solicitation in
Republic Aviation and Le Tourneau occurred before a union
had been recognized as the bargaining agent for a unit of
workers; therefore, the rule of those cases applies only
to solicitation BEFORE a union has been recognized. But
a precedent can often be stretched to apply to related
cases. How should the precedent of Republic Aviation and
Le Tourneau be applied AFTER a union has been recognized?
(a) For example, should employees have the right to
discuss a grievance arising under a labor contract on
company property during non-working hours?
(b) Another example: suppose some employees become
dissatisfied with their union. Should employees have the
right to criticize the union on company property during
non-working hours or to solicit one another to replace
the union or oust it?
3. One argument in favor of allowing union
organizers on to company property is that unions
experience significant difficulty in contacting workers
in other places. Imagine yourself to be an experienced
advocate for employers in Babcock & Wilcox.
You know
that sometimes a small concession can avert a great loss.
Can you think of a concession that would be small in
comparison to allowing union organizers on to company
property, yet would mitigate the difficulty the unions
have identified?
4. The employer's brief notes that unions have
become "big business." So have union-busting firms, that
is, professional consultants who specialize in defeating
union organizing campaigns.
These consultants have
developed sophisticated techniques for persuading workers

Labor and Employment Law

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NLRB v. Babcock and Wilcox

to vote against unions.
Also, large privately owned
shopping malls have proliferated.
Because they are
private
property,
their
owners
may
exclude
all
solicitors, including union organizers. If Congress were
debating a statute to overrule Babcock and Wilcox, how
should these developments affect the debate?

Ù

Labor and Employment Law

400

Plant Closings
Introduction
Imagine you are the officer of the day at a regional
office of the Labor Board. A union representative files
a charge that says:
"My union just won an election at the
Darlington
Co.
Immediately
after
the
election, we tried to schedule a meeting with
management to commence bargaining. They said
there was no point because the owner had
decided to close the plant rather than deal
with a union.
He did and we all were laid
off."
In your mind, you load the program entitled, "Match the
Facts," and you enter the facts in the charge. Does your
mental computer detect a match between the facts of an
unfair labor practice and the facts in the charge?

Labor and Employment Law

401

Textile Workers v. Darlington Mfg. Co.
380 U.S. 263 (1965)

JUSTICE HARLAN delivered the opinion of the Court.
We here review judgments of the Court of Appeals setting aside and refusing
to enforce an order of the National Labor Relations Board which found respondent
Darlington guilty of an unfair labor practice by reason of having permanently closed
its plant following petitioner union's election as the bargaining representative of
Darlington's employees.
Darlington Manufacturing Company was a South Carolina corporation
operating one textile mill. A majority of Darlington's stock was held by Deering
Milliken, a New York "selling house" marketing textiles produced by others. Deering
Milliken in turn was controlled by Roger Milliken, president of Darlington, and by
other members of the Milliken family. The National Labor Relations Board found
that the Milliken family, through Deering Milliken, operated 17 textile
manufacturers, including Darlington, whose products, manufactured in 27 different
mills, were marketed through Deering Milliken.
In March 1956 petitioner Textile Workers Union initiated an organizational
campaign at Darlington which the company resisted vigorously in various ways,
including threats to close the mill if the union won a representation election.3 On
September 6, 1956, the union won an election by a narrow margin. When Roger
Milliken was advised of the union victory, he decided to call a meeting of the
Darlington board of directors to consider closing the mill. Mr. Milliken testified
before the Labor Board:
"I felt that as a result of the campaign that had been conducted and the
promises and statements made in these letters that had been distributed
[favoring unionization], that if before we had had some hope, possible hope
of achieving competitive [costs] ... by taking advantage of new machinery
that was being put in, that this hope had diminished as a result of the
election because a majority of the employees had voted in favor of the
union . . . ." (R. 457.)

The board of directors met on September 12 and voted to liquidate the
3

The Board found that Darlington had interrogated employees and threatened to
close the mill if the union won the election. After the decision to liquidate was made,
Darlington employees were told that the decision to close was caused by the election, and
they were encouraged to sign a petition disavowing the union. These practices were held
to violate § 8 (a)(1) of the National Labor Relations Act, and that part of the Board decision
is not challenged here.

Labor and Employment Law

402

Textile Workers v. Darlington

iii

corporation, action which was approved by the stockholders on October 17. The
plant ceased operations entirely in November, and all plant machinery and equipment
were sold piecemeal at auction in December.
The union filed charges with the Labor Board claiming that Darlington had
violated §§ 8 (a)(1) and (3) of the National Labor Relations Act by closing its plant,
and § 8 (a)(5) by refusing to bargain with the union after the election.5 The Board, by
a divided vote, found that Darlington had been closed because of the antiunion
animus of Roger Milliken, and held that to be a violation of § 8 (a)(3). The Board
also found Darlington to be part of a single integrated employer group controlled by
the Milliken family through Deering Milliken; therefore Deering Milliken could be
held liable for the unfair labor practices of Darlington. Alternatively, since
Darlington was a part of the Deering Milliken enterprise, Deering Milliken had
violated the Act by closing part of its business for a discriminatory purpose. The
Board ordered back pay for all Darlington employees until they obtained substantially
equivalent work or were put on preferential hiring lists at the other Deering Milliken
mills. Respondent Deering Milliken was ordered to bargain with the union in regard
to details of compliance with the Board order.
On review, the Court of Appeals, sitting en banc, set aside the order and
denied enforcement by a divided vote. The Court of Appeals held that even accepting
arguendo the Board's determination that Deering Milliken had the status of a single
employer, a company has the absolute right to close out a part or all of its business
regardless of antiunion motives. The court therefore did not review the Board's
finding that Deering Milliken was a single integrated employer. We granted
certiorari to consider the important questions involved. We hold that so far as the
Labor Relations Act is concerned, an employer has the absolute right to terminate his
entire business for any reason he pleases, but disagree with the Court of Appeals that
such right includes the ability to close part of a business no matter what the reason.
We conclude that the cause must be remanded to the Board for further proceedings.
...

5

The union asked for a bargaining conference on September 12, 1956 (the day that
the board of directors voted to liquidate), but was told to await certification by the Board.
The union was certified on October 24, and did meet with Darlington officials in November,
but no actual bargaining took place. The Board found this to be a violation of § 8 (a)(5).
Such a finding was in part based on the determination that the plant closing was an unfair
labor practice, and no argument is made that § 8 (a)(5) requires an employer to bargain
concerning a purely business decision to terminate his enterprise. Cf. Fibreboard Paper
Products Corp. v. Labor Board, 379 U.S. 203.

Labor and Employment Law

iv

403

Textile Workers v. Darlington
I.

We consider first the argument, advanced by the petitioner union ... and
rejected by the Court of Appeals, that an employer may not go completely out of
business without running afoul of the Labor Relations Act if such action is prompted
by a desire to avoid unionization. Given the Board's findings on the issue of motive,
acceptance of this contention would carry the day for the Board's conclusion that the
closing of this plant was an unfair labor practice, even on the assumption that
Darlington is to be regarded as an independent unrelated employer. A proposition
that a single businessman cannot choose to go out of business if he wants to would
represent such a startling innovation that it should not be entertained without the
clearest manifestation of legislative intent or unequivocal judicial precedent so
construing the Labor Relations Act. We find neither.
So far as legislative manifestation is concerned, it is sufficient to say that
there is not the slightest indication in the history of the Wagner Act or of the TaftHartley Act that Congress envisaged any such result under either statute.
As for judicial precedent, the Board recognized that "there is no decided case
directly dispositive of Darlington's claim that it had an absolute right to close its mill,
irrespective of motive." 139 N. L. R. B., at 250....
The courts of appeals have generally assumed that a complete cessation of
business will remove an employer from future coverage by the Act. Thus the Court
of Appeals said in these cases: The Act "does not compel a person to become or
remain an employee. It does not compel one to become or remain an employer.
Either may withdraw from that status with immunity, so long as the obligations of
any employment contract have been met." 325 F.2d, at 685. The Eighth Circuit, in
Labor Board v. New Madrid Mfg. Co., 215 F.2d 908, 914, was equally explicit:
"But none of this can be taken to mean that an employer does not have the

absolute right, at all times, to permanently close and go out of business ...
for whatever reason he may choose, whether union animosity or anything
else, and without his being thereby left subject to a remedial liability under
the Labor Management Relations Act for such unfair labor practices as he
may have committed in the enterprise, except up to the time that such actual
and permanent closing ... has occurred."12

12

In New Madrid the business was transferred to a new employer, which was held
liable for the unfair labor practices committed by its predecessor before closing. The
closing itself was not found to be an unfair labor practice.

Labor and Employment Law

404

Textile Workers v. Darlington

v

The AFL-CIO suggests in its amicus brief that Darlington's action was similar
to a discriminatory lockout, which is prohibited "'because designed to frustrate
organizational efforts, to destroy or undermine bargaining representation, or to evade
the duty to bargain.'" One of the purposes of the Labor Relations Act is to prohibit
the discriminatory use of economic weapons in an effort to obtain future benefits.
The discriminatory lockout designed to destroy a union, like a "runaway shop," is a
lever which has been used to discourage collective employee activities in the future.
But a complete liquidation of a business yields no such future benefit for the
employer, if the termination is bona fide.14 It may be motivated more by spite against
the union than by business reasons, but it is not the type of discrimination which is
prohibited by the Act. The personal satisfaction that such an employer may derive
from standing on his beliefs and the mere possibility that other employers will follow
his example are surely too remote to be considered dangers at which the labor
statutes were aimed.15 Although employees may be prohibited from engaging in a
strike under certain conditions, no one would consider it a violation of the Act for
the same employees to quit their employment en masse, even if motivated by a desire
to ruin the employer. The very permanence of such action would negate any future
economic benefit to the employees. The employer's right to go out of business is no
different.
We are not presented here with the case of a "runaway shop," whereby
Darlington would transfer its work to another plant or open a new plant in another
locality to replace its closed plant.17 Nor are we concerned with a shutdown where
the employees, by renouncing the union, could cause the plant to reopen.18 Such cases
would involve discriminatory employer action for the purpose of obtaining some
benefit from the employees in the future.19 We hold here only that when an

14

The Darlington property and equipment could not be sold as a unit, and were
eventually auctioned off piecemeal. We therefore are not confronted with a sale of a going
concern, which might present different considerations under §§ 8 (a)(3) and (5).
15

Different considerations would arise were it made to appear that the closing
employer was acting pursuant to some arrangement or understanding with other employers
to discourage employee organizational activities in their businesses.
17

After the decision to close the plant, Darlington accepted no new orders, and
merely continued operations for a time to fill pending orders.
18

Similarly, if all employees are discharged but the work continues with new
personnel, the effect is to discourage any future union activities.
19

All of the cases to which we have been cited involved closings found to have been
(continued...)

Labor and Employment Law

vi

405

Textile Workers v. Darlington

employer closes his entire business, even if the liquidation is motivated by
vindictiveness toward the union, such action is not an unfair labor practice.20
II.
While we thus agree with the Court of Appeals that viewing Darlington as
an independent employer the liquidation of its business was not an unfair labor
practice, we cannot accept the lower court's view that the same conclusion
necessarily follows if Darlington is regarded as an integral part of the Deering
(...continued)
motivated, at least in part, by the expectation of achieving future benefits. See cases cited
in notes 16, 18, supra. The two cases which are urged as indistinguishable from Darlington
are Labor Board v. Savoy Laundry, 327 F.2d 370, and Labor Board v. Missouri Transit Co.,
250 F.2d 261. In Savoy Laundry the employer operated one laundry plant where he
processed both retail laundry pickups and wholesale laundering. Once the laundry was
marked, all of it was processed together. After some of the employees organized, the
employer discontinued most of the wholesale service, and thereafter discharged some of his
employees. There was no separate wholesale department, and the discriminatory motive
was obviously to discourage unionization in the entire plant. Missouri Transit presents a
similar situation. A bus company operated an interstate line and an intrastate shuttle service
connecting a military base with the interstate terminal. When the union attempted to
organize all of the drivers, the shuttle service was sold and the shuttle drivers were
discharged. Although the two services were treated as separate departments, it is clear from
the facts of the case that the union was attempting to organize all of the drivers, and the
discriminatory motive of the employer was to discourage unionization in the interstate
service as well as the shuttle service.
20

Nothing we have said in this opinion would justify an employer's interfering with
employee organizational activities by threatening to close his plant, as distinguished from
announcing a decision to close already reached by the board of directors or other
management authority empowered to make such a decision. We recognize that this
safeguard does not wholly remove the possibility that our holding may result in some
deterrent effect on organizational activities independent of that arising from the closing
itself. An employer may be encouraged to make a definitive decision to close on the theory
that its mere announcement before a representation election will discourage the employees
from voting for the union, and thus his decision may not have to be implemented. Such a
possibility is not likely to occur, however, except in a marginal business; a solidly successful
employer is not apt to hazard the possibility that the employees will call his bluff by voting
to organize. We see no practical way of eliminating this possible consequence of our
holding short of allowing the Board to order an employer who chooses so to gamble with
his employees not to carry out his announced intention to close. We do not consider the
matter of sufficient significance in the overall labor-management relations picture to require
or justify a decision different from the one we have made.

Labor and Employment Law

406

Textile Workers v. Darlington

vii

Milliken enterprise. The closing of an entire business, even though discriminatory,
ends the employer-employee relationship; the force of such a closing is entirely spent
as to that business when termination of the enterprise takes place. On the other hand,
a discriminatory partial closing may have repercussions on what remains of the
business, affording employer leverage for discouraging the free exercise of § 7 rights
among remaining employees of much the same kind as that found to exist in the
"runaway shop" and "temporary closing" cases. Moreover, a possible remedy open
to the Board in such a case, like the remedies available in the "runaway shop" and
"temporary closing" cases, is to order reinstatement of the discharged employees in
the other parts of the business. No such remedy is available when an entire business
has been terminated. By analogy to those cases involving a continuing enterprise we
are constrained to hold, in disagreement with the Court of Appeals, that a partial
closing is an unfair labor practice under § 8(a)(3) if motivated by a purpose to chill
unionism in any of the remaining plants of the single employer and if the employer
may reasonably have foreseen that such closing would likely have that effect.
While we have spoken in terms of a "partial closing" in the context of the
Board's finding that Darlington was part of a larger single enterprise controlled by the
Milliken family, we do not mean to suggest that an organizational integration of
plants or corporations is a necessary prerequisite to the establishment of such a
violation of § 8 (a)(3). If the persons exercising control over a plant that is being
closed for antiunion reasons (1) have an interest in another business, whether or not
affiliated with or engaged in the same line of commercial activity as the closed plant,
of sufficient substantiality to give promise of their reaping a benefit from the
discouragement of unionization in that business; (2) act to close their plant with the
purpose of producing such a result; and (3) occupy a relationship to the other
business which makes it realistically foreseeable that its employees will fear that such
business will also be closed down if they persist in organizational activities, we think
that an unfair labor practice has been made out. Although the Board's single
employer finding necessarily embraced findings as to Roger Milliken and the
Milliken family which, if sustained by the Court of Appeals, would satisfy the
elements of "interest" and "relationship" with respect to other parts of the Deering
Milliken enterprise, that and the other Board findings fall short of establishing the
factors of "purpose" and "effect" which are vital requisites of the general principles
that govern a case of this kind. Thus, the Board's findings as to the purpose and
foreseeable effect of the Darlington closing pertained only to its impact on the
Darlington employees. No findings were made as to the purpose and effect of the
closing with respect to the employees in the other plants comprising the Deering
Milliken group. It does not suffice to establish the unfair labor practice charged here
to argue that the Darlington closing necessarily had an adverse impact upon
unionization in such other plants. We have heretofore observed that employer action
which has a foreseeable consequence of discouraging concerted activities generally

Labor and Employment Law

viii

407

Textile Workers v. Darlington

does not amount to a violation of § 8 (a)(3) in the absence of a showing of motivation
which is aimed at achieving the prohibited effect.... In an area which trenches so
closely upon otherwise legitimate employer prerogatives, we consider the absence of
Board findings on this score a fatal defect in its decision. The Court of Appeals for
its part did not deal with the question of purpose and effect at all, since it concluded
that an employer's right to close down his entire business because of distaste for
unionism, also embraced a partial closing so motivated.
Apart from this, the Board's holding should not be accepted or rejected
without court review of its single employer finding, judged, however, in accordance
with the general principles set forth above. Review of that finding, which the lower
court found unnecessary on its view of the cause, now becomes necessary in light of
our holding in this part of our opinion, and is a task that devolves upon the Court of
Appeals in the first instance. In these circumstances, we think the proper disposition
of this cause is to require that it be remanded to the Board so as to afford the Board
the opportunity to make further findings on the issue of purpose and effect. This is
particularly appropriate here since the cases involve issues of first impression. If
such findings are made, the cases will then be in a posture for further review by the
Court of Appeals on all issues. Accordingly, without intimating any view as to how
any of these matters should eventuate, we vacate the judgments of the Court of
Appeals and remand the cases to that court with instructions to remand them to the
Board for further proceedings consistent with this opinion.
It is so ordered.

Labor and Employment Law

408

ix

Textile Workers v. Darlington
QUESTIONS FOR REFLECTION

1. We have noted that the elements of the unfair
labor practice of discrimination are (1) the worker was
engaged in concerted activity, (2) the employer
disadvantaged the worker, and (3) the employer's reason
was the worker's concerted activity. Do the facts of
Darlington seem to match the facts of discrimination? If
so, why did the Supreme Court exonerate the employer?
2. What is
Darlington case?

holding

3. Why
Darlington?

the

did

and

Court

what

is

announce

dictum
the

in

the

dictum

in

4. The Court suggests that lack of an effective
remedy in the case of a total shut down is a reason to
distinguish cases of runaway shops and partial closings.
Is the Court right about this?
Exercises
1. Suppose a union is attempting to organize all the
hourly-paid workers of a university. Before an election,
the university closes its janitorial unit and contracts
the work out: whereupon the union files an unfair labor
practice charge.
Write a brief opinion that resolves
this case based on Darlington?
Hint: an opinion is
essentially an argument. Your opinion should therefore
include the elements in our model of legal argument.
2. The Court distinguishes several cases in section
II of its opinion. Choose one of these distinctions and
express it within the model of a complete distinction.

Ù

Labor and Employment Law

409

Promises and Benefits
Introduction
Section 8(a) of the Labor Act lists unfair labor
practices which employers are forbidden to commit. The
first one on the list, § 8(a)(1), is the most general; it
forbids an employer
"to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in
section 7."

Interference, restraint, and coercion are broad concepts,
indeed, too broad for the purposes of Labor Law. For
example, suppose a worker, on company property and during
working hours, wishes to solicit other workers to join
the union.
Not surprisingly, the employer has a rule
against such solicitation. Is the rule illegal? In the
ordinary English meaning of "interference," the rule does
interfere with the worker's concerted activity; yet
surely the Labor Act was not intended to outlaw the rule.
Most Americans agree that working time is for work.
Accordingly, the legal meaning of interference is
narrower than its English meaning. Like many other words
in statutes, "interference" is a term of art, that is, a
term that has a special meaning within a discipline.
In Labor Law, deciding whether an employer's act
interferes with workers' rights requires balancing the
interests of the workers against the interests of the
employer.
Thus, in the example in the previous
paragraph, it was decided that the employer's interest in
insisting that workers perform their duties during
working hours outweighed the worker's interest in
soliciting for the union during working hours.
In the following case, the Labor Board charged the
employer with interference in violation of section
8(a)(1). Therefore, the court was called upon to weigh
the employer's interest against the union's interest.

Labor and Employment Law

410

National Labor Relations Board v. Exchange Parts
375 U.S. 405 (1964)

Mr. Justice HARLAN delivered the opinion of the Court.
This case presents a question concerning the limitations which § 8(a)(1) of the
National Labor Relations Act places on the right of an employer to confer economic
benefits on his employees shortly before a representation election. The precise issue
is whether that section prohibits the conferral of such benefits, without more, where
the employer's purpose is to affect the outcome of the election. We granted the
National Labor Relations Board's petition for certiorari to clear up a possible conflict
between the decision below and those of other Courts of Appeals on an important
question of national labor policy. For reasons given in this opinion, we conclude that
the judgment below must be reversed.
The respondent, Exchange Parts Company, is engaged in the business of
rebuilding automobile parts in Fort Worth, Texas. Prior to November 1959 its
employees were not represented by a union. On November 9, 1959, the International
Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers,
AFL-CIO, advised Exchange Parts that the union was conducting an organizational
campaign at the plant and that a majority of the employees had designated the union
as their bargaining representative. On November 16 the union petitioned the Labor
Board for a representation election. The Board conducted a hearing on December 29,
and on February 19, 1960, issued an order directing that an election be held. The
election was held on March 18, 1960.
At two meetings on November 4 and 5, 1959, C.V. McDonald, the Vice
President and General Manager of Exchange Parts, announced to the employees that
their "floating holiday" in 1959 would fall on December 26 and that there would be
an additional "floating holiday" in 1960. On February 25, six days after the Board
issued its election order, Exchange Parts held a dinner for employees at which Vice
President McDonald told the employees that they could decide whether the extra day
of vacation in 1960 would be a "floating holiday" or would be taken on their
birthdays. The employees voted for the latter. McDonald also referred to the
forthcoming representation election as one in which, in the words of the trial
examiner, the employees would "determine whether ... [they] wished to hand over
their right to speak and act for themselves." He stated that the union had distorted
some of the facts and pointed out the benefits obtained by the employees without a
union. He urged all the employees to vote in the election.
On March 4 Exchange Parts sent its employees a letter which spoke of "the
Empty Promises of the Union" and "the fact that it is the Company that puts things
in your envelope...." After mentioning a number of benefits, the letter said: "The
Union can't put any of those things in your envelope))only the Company can do

Labor and Employment Law

411

NLRB v. Exchange Parts

iii

that." Further on, the letter stated: "... [I]t didn't take a Union to get any of those
things and ... it won't take a Union to get additional improvements in the future."
Accompanying the letter was a detailed statement of the benefits granted by the
company since 1949 and an estimate of the monetary value of such benefits to the
employees. Included in the statement of benefits for 1960 were the birthday holiday,
a new system for computing overtime during holiday weeks which had the effect of
increasing wages for those weeks, and a new vacation schedule which enabled
employees to extend their vacations by sandwiching them between two weekends.
Although Exchange Parts asserts that the policy behind the latter two benefits was
established earlier, it is clear that the letter of March 4 was the first general
announcement of the changes to the employees. In the ensuing election the union
lost.
The Board, affirming the findings of the trial examiner, found that the
announcement of the birthday holiday and the grant and announcement of overtime
and vacation benefits were arranged by Exchange Parts with the intention of inducing
the employees to vote against the union. It found that this conduct violated § 8(a)(1)
of the National Labor Relations Act and issued an appropriate order. On the Board's
petition for enforcement of the order, the Court of Appeals rejected the finding that
the announcement of the birthday holiday was timed to influence the outcome of the
election. It accepted the Board's findings with respect to the overtime and vacation
benefits, and the propriety of those findings is not in controversy here. However,
noting that "the benefits were put into effect unconditionally on a permanent basis,
and no one has suggested that there was any implication the benefits would be
withdrawn if the workers voted for the union," 304 F.2d 368, 375, the court denied
enforcement of the Board's order. It believed that it was not an unfair labor practice
under § 8(a)(1) for an employer to grant benefits to its employees in these
circumstances.
...
We think the Court of Appeals was mistaken in concluding that the conferral
of employee benefits while a representation election is pending, for the purpose of
inducing employees to vote against the union, does not "interfere with" the protected
right to organize.
The broad purpose of § 8(a)(1) is to establish "the right of employees to
organize for mutual aid without employer interference." Republic Aviation Corp. v.
Labor Board, 324 U.S. 793. We have no doubt that it prohibits not only intrusive
threats and promises but also conduct immediately favorable to employees which is
undertaken with the express purpose of impinging upon their freedom of choice for
or against unionization and is reasonably calculated to have that effect. In Medo

Labor and Employment Law

iv

412

NLRB v. Exchange Parts

Photo Supply Corp. v. Labor Board, 321 U.S. 678, this Court said: "The action of
employees with respect to the choice of their bargaining agents may be induced by
favors bestowed by the employer as well as by his threats or domination." Although
in that case there was already a designated bargaining agent and the offer of "favors"
was in response to a suggestion of the employees that they would leave the union if
favors were bestowed, the principles which dictated the result there are fully
applicable here. The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not likely to miss the
inference that the source of benefits now conferred is also the source from which
future benefits must flow and which may dry up if it is not obliged.3 The danger may
be diminished if, as in this case, the benefits are conferred permanently and
unconditionally. But the absence of conditions or threats pertaining to the particular
benefits conferred would be of controlling significance only if it could be presumed
that no question of additional benefits or renegotiation of existing benefits would
arise in the future; and, of course, no such presumption is tenable.... We cannot agree
with the Court of Appeals that enforcement of the Board's order will have the "ironic"
result of "discouraging benefits for labor." 304 F.2d, at 376. The beneficence of an
employer is likely to be ephemeral if prompted by a threat of unionization which is
subsequently removed. Insulating the right of collective organization from calculated
good will of this sort deprives employees of little that has lasting value.
Reversed.

The inference was made almost explicit in Exchange Parts' letter to its employees
of March 4, already quoted, which said: "The Union can't put any of those ...
[benefits] in your envelope))only the Company can do that." (Original italics.) We
place no reliance, however, on these or other words of the respondent dissociated
from its conduct. Section 8(c) of the Act provides that the expression or
dissemination of "any views, argument, or opinion" "shall not constitute or be
evidence of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit."
3

Labor and Employment Law

413

NLRB v. Exchange Parts

v

QUESTIONS FOR REFLECTION
1. What were the standards used by the Labor Board,
by the Court of Appeals, and by the Supreme Court in this
case, and were they objective or subjective?
2. Which tribunal's standard was most favorable to
employers? to unions?
3. Suppose an employer raises pay shortly before a
union election in order to match the pay increase of a
competitor. In light of Exchange Parts, is the raise
illegal interference?
4. Suppose an employer regularly evaluates workers
and adjusts pay in December. A union organizing campaign
begins in November, and an election is scheduled for
January 15th.
What should the employer do about the
December evaluations?
5. What is the Supreme Court's view of the average
worker? Do you share it?
6. Why shouldn't an employer be allowed to purchase
the loyalty of workers, and why shouldn't they be allowed
to sell it? Specifically, should an employer be allowed
to say shortly before an election, "If you vote against
the union, I'll raise your pay by $x"?
7. We saw above in the Darlington case that an
employer may close a business rather than deal with a
union. Suppose an employer tells one's workers, shortly
before they vote in a representation election, that the
business will be closed if the union wins.
Has the
employer made a threat in violation of section 8(a)(1)?

Ù

Labor and Employment Law

414

Authorization Cards and Bargaining Orders
Introduction
In order to move the Labor Board to schedule a
representation election, a union must produce a "showing
of interest," i.e., demonstrate that a substantial number
For many years, the
of workers desires an election.
Board has accepted proof that at least 30 percent of the
workers want an election as sufficient.
A showing of interest is almost always made by means
of cards signed by workers.
Cards come in several
Three kinds are important for present
varieties.
purposes: membership cards, which say, in effect, "I
hereby join the union"; authorization cards, which say,
"I authorize the union to represent me vis-a-vis the
employer (and I will decide later whether I will join)";
and election cards, which say, "I desire an election (and
I will decide later whether I will vote for the union
and, if it wins, whether I will join)." Membership and
authorization cards demonstrate support for the union;
election cards do not. Sometimes a worker is told that
a membership or authorization card will be used only to
get an election; in this event, the union could not use
the card to prove the extent of its support. But proof
as to what was said before a card was signed is
problematic.
The difference between membership and authorization
cards, on the one hand, and election cards, on the other
hand, is important should the Board consider issuing a
bargaining order.
A bargaining order instructs an
employer to recognize and bargain with a union, even
though the union has not won a representation election.
The Board will issue a bargaining order if an employer
commits such serious unfair labor practices during the
campaign preceding a representation election that the
workers could not cast free and uncoerced ballots, for
example, if the employer fired union supporters, spied on
union meetings, threatened to reduce pay if the union
won, and so forth.
The Board will issue a bargaining order only if
evidence exists that, at some time before the election,
the majority of workers favored representation by the

Labor and Employment Law

ii

415

NLRB v. Gissel Packing Co.

union. Otherwise, a union might be established as the
bargaining agent when only a minority of workers desires
it. Election cards obviously may not be used to obtain
a bargaining order, but the Board accepts authorization
and membership cards for this purpose. In the following
case, employers challenged this practice.

Labor and Employment Law

416

NLRB v. Gissel Packing Co.
395 U.S. 575 (1969)

{Four cases were decided in a single opinion. In each case, a union waged
an organizational campaign and secured membership or authorization cards from a
majority of employees. The union then demanded recognition from the employer,
who refused on the ground that cards are an unreliable indicator of employee
sentiment. Then the employer embarked on a vigorous antiunion campaign. In
General Steel and Sinclair, the unions petitioned for elections; the unions lost the
elections, but the Board set them aside because serious unfair labor practices had
interfered with the employees' free choice. In Heck's the union petitioned for an
election, but it was never held because the union filed unfair labor practice charges
and the Board, following its customary procedure, postponed the election until the
charges were disposed of. In Gissel, the union never petitioned for an election, but
instead filed charges with the Board. In each case, the Board found that the union
had secured valid membership or authorization cards from a majority of employees
in an appropriate unit; that the employer violated §§ 8(a)(1) and (3) during the
campaign opposing the union, and these violations were so serious that a fair election
could not be held; and that the appropriate remedy (in addition to a cease-and-desist
order and relief for specific victims) was an order requiring the employer to recognize
and bargain with the union as representative of the employees in the unit. In General
Steel, Heck's, and Gissel, the Court of Appeals for the Fourth Circuit enforced the
Board's orders regarding the §§ 8(a)(1) and (3) violations, but, following its decision
in NLRB v. Logan Packing Co., 386 F.2d 562 (4th Cir. 1967), refused to enforce the
bargaining orders because of the unreliability of authorization cards. In Sinclair, the
Court of Appeals for the First Circuit enforced the bargaining order.}
From the Brief of the Labor Board
(Petitioner)
{The brief is signed by Erwin S. Griswold, Attorney General, and Peter L.
Strauss, Assistant to the Solicitor General, of the United States; and Arnold Ordman,
General Counsel, Dominick L. Manoli, Associate General Counsel, Norton J. Come,
Assistant General Counsel, and Thomas E. Silfen, attorney, National Labor Relations
Board.}
UNDER BOTH THE WAGNER ACT AND THE PRESENT ACT, A UNION IS
NOT LIMITED TO A BOARD ELECTION AND CERTIFICATION AS THE
ONLY MEANS TO ESTABLISH REPRESENTATIVE STATUS
Both Section 8(5) of the Wagner Act and Section 8(a)(5) of the present Act
require an employer to bargain with the representative of his employees as defined
in Section 9(a). In both, Section 9(a) refers to the representative as one "designated
or selected" by a majority of the employees without specifying any particular method

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by which it is to be chosen. Accordingly, early in the administration of the Wagner
Act, it was recognized that a union need not have been certified as the winner of a
Board election to invoke the Section 8(5) bargaining obligation; it could establish
majority status and thus the bargaining obligation by other means, such as cards by
which the employees authorized it to represent them for collective bargaining. The
existence of alternative routes to majority status, including authorization cards, has
consistently been recognized under the present Act also by the courts of appeals as
well as this Court.
ALTHOUGH AN EMPLOYER ACTING IN GOOD FAITH IS ENTITLED TO
INSIST UPON AN ELECTION, SUBSTANTIAL EMPLOYER UNFAIR
LABOR PRACTICES MAY JUSTIFY A REMEDIAL ORDER TO BARGAIN
WITH A UNION WHICH HAS OBTAINED AUTHORIZATION CARDS
FROM A MAJORITY OF EMPLOYEES
... [U]nfair labor practices sufficient to dissipate a union's majority also
preclude the Board from conducting a fair election.... The Board's election procedures
normally provide a better means of testing majority status than a check of
authorization cards. However, where the employer has precluded a fair election by
his unfair labor practices ... [i]f in fact the union commanded a majority when it made
its demand, he may be ordered to bargain with it. As the Court of Appeals for the
District of Columbia Circuit stated in Joy Silk Mills, Inc. v. National Labor Relations
Board, 185 F.2d 732, 741,
"The Act provides for election proceedings in order to provide
a mechanism whereby an employer acting in good faith may secure
a determination of whether or not the union does, in fact, have a
majority.... Another purpose is to insure that the employees may
freely register their individual choices concerning representation.
Certainly it is not one of the purposes of the election procedure to
supply the employer with a procedural device by which he may secure
the time necessary to defeat efforts toward organization being made
by a union...."
Accordingly, under both the Wagner Act and the present Act, the courts of
appeals in every circuit, including the Fourth Circuit prior to its recent departure,
have enforced Board orders to bargain where a union had obtained authorization
cards from a majority of employees and the Board found that the employers' unfair
labor practices which tended to dissipate the union's majority and to preclude a fair
Board election.

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v

THE CONSIDERATIONS RELIED ON BY THE COURT BELOW DO NOT
WARRANT A DEPARTURE FROM THESE PRINCIPLES
In departing from these well settled principles, the Fourth Circuit has held
that "absent other affirmative evidence to show employer knowledge that its
employees desire union representation, an employer may properly have a good faith
doubt as to the union's majority status and withhold recognition pending the result
of a certification election." National Labor Relations Board v. Bratten Pontiac
Corp., 406 F.2d 349 (4th Cir. 1969). Its position rests upon two premises: (1) that
union authorization cards are inherently unreliable as an indication that the
employees want the union to represent them; and (2) that Congress, in amending the
Act in 1947, intended to make a Board election the only method for resolving
questions about a union's majority status. Neither of these premises is valid.
Although there have been abuses in the use of authorization cards —
primarily misrepresentations as to whether by signing the card the employees were
designating the union as their representative or merely authorizing it to seek an
election to determine that issue — it does not follow that cards are so inherently
unreliable that they may never be used to determine majority status. The Board
views an election as ordinarily the most satisfactory, and indeed the preferred,
method of measuring employee sentiment. But, if an employer has engaged in
conduct tending to destroy the conditions necessary for a fair election, authorization
cards may be the most effective method of assuring employee choice. If in a specific
case union authorization cards have been misused, the proper remedy is to hold that
the union did not represent a majority of the employees. To give an employer's claim
of doubt presumptive validity, as the Fourth Circuit does, is to enable employers to
eliminate cards as a basis for representation in all cases, and is thus to permit them
to delay or prevent unionization through interference with the election process.
... [T]he court below contrasts the card check process with a secret ballot
election, concluding that the lack of secrecy in the former creates an inherent
unreliability. Specifically, the court dwells upon the probable ill-effects of social
pressure and group psychology when the choice of a bargaining representative takes
place in public view. But this argument assumes that employees who sign union
authorization cards do so lightly and without any real intention of having the union
represent them for collective bargaining purposes. In view of the substantial benefits
of unionization, there is no warrant for this assumption. Moreover, social pressure
exists in an election campaign, no less than in a card signing drive; if employees
desire to sign cards only if their friends have, they will wish to vote as their friends
do. The single moment of secrecy in the voting booth cannot totally eliminate all
influences — from the employer, the union, and friends — that have been brought
to bear during a campaign. And again, where the employer has warped the campaign

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by his unfair acts, the authorization cards may represent the most accurate view
possible of employee sentiment.
In sum, the Fourth Circuit has overstated the deficiencies of authorization
cards; its rigid rule that authorization cards are per se unreliable certainly does not
fit cases such as those here, where the supposed infirmities of cards are not in fact
present and where the employer's unfair labor practices have effectively foreclosed
the preferred election route.
WHERE THE BOARD HAS FOUND A REFUSAL TO BARGAIN IN
VIOLATION OF SECTION 8(a)(5), IT MAY APPROPRIATELY ENTER A
BARGAINING ORDER EVEN THOUGH SUBSEQUENTLY THE UNION
MAY HAVE LOST ITS MAJORITY STATUS
Upon finding that an employer refused to bargain in violation of Section
8(a)(5) of the Act, the Board is not limited to a cease-and-desist remedy; it may
properly order the employer to bargain with the union without first requiring the
union to show that it still represents a majority of the employees.
Where there has been a refusal to bargain accompanied by serious unfair labor
practices against a union which has obtained authorization cards from a majority of
employees, it is likely that its majority status will be dissipated as a result of the
unfair labor practices and the time required for the Board to issue its decision and
remedial order. Merely to issue a cease-and-desist order and to direct an election in
this situation would both prejudice the employees' right freely to determine whether
they desire a representative and profit the wrongdoing employer. The new test of the
union's majority would most probably reflect an unlawfully altered picture of
employee sentiment.
This would be precisely the result which the recalcitrant employer hoped to
achieve by his refusal to bargain and his course of unlawful conduct. Further, such
a limitation on remedy would encourage the employer to meet the new election with
renewed coercion, aggravating the unlawful situation already existing. In any
particular case, an effective remedy may require an order restoring the parties to the
positions they occupied when the refusal to bargain took place by directing the
employer to bargain with the union on the basis of its original showing of majority
status.44
"When the preferred method of determining employee wishes has been
tampered with, it totally begs the question to say that employee rights are sacrificed
by a bargaining order. Employee rights are affected whatever the result: If an
(continued...)
44

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vii

From the Brief of the Union
(Petitioner)
{The brief is signed by Albert Gore, Joseph M. Jacobs, and Judith A.
Lonnquist, Chicago, IL.}
REPRESENTATION ELECTIONS ARE NOT NECESSARILY THE MOST
RELIABLE INDICATORS OF EMPLOYEES' DESIRES
In Logan, the Fourth Circuit espoused its view, correlative with its holding
on the inherent unreliability of cards, that a representation election under the auspices
of the NLRB is the sole method reliably to determine employees' wishes. However,
careful analysis of and familiarity with the election processes and the human
variables incident thereto belie the validity of the Fourth Circuit's belief.
A "SECRET BALLOT" IS NO MORE INDICATIVE OF EMPLOYEES'
INTENT THAN AN AUTHORIZATION CARD
The Logan court noted that cards are unreliable, inter alia, because they are
"obtained before the employees are exposed to any counter-argument and without an
opportunity for reflection or recantation" [386 F.2d at 566]. This conclusion
overlooks the realities of the employer-employee relationship, for whereas the
employee is exposed to the union's arguments only during an organizing campaign,
he is subjected to daily exposure of the employer's views. From the day he is hired
the employee is indoctrinated with management's views of unionization, labor
economics and employer prerogative. Thus, numerous studies have demonstrated
that long prior to the advent of a union organizational campaign, many employers
have imbued employees with an "elemental fear of reprisal" sufficient to forestall any
union activity.104 Moreover, it should be noted that employees are acutely aware that
(...continued)
inadequate rerun remedy is routinely applied, the rights of those employees who
desire collective bargaining, and whose desires were met with violations of the law,
are not being protected; if a bargaining order is issued, the rights of those who oppose
collective bargaining are being tramped on if ... a poll, conducted after the effects of
the earlier coercion were satisfactorily dissipated, would indicate a union loss. Thus
it is impossible to defend a refusal to impose a bargaining order unless one is willing
to defend the adequacy of the particular remedies in fact applied in connection with
the decision to direct a second election...." Lesnick, 65 Mich. L.Rev. at 862.
44

104

See Bok, "The Regulation of Campaign Tactics in Representation Elections
(continued...)

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if the union loses the election, it will hold no sway over their economic lives,
whereas, if the union wins, the employer still maintains his economic life-and-death
power over his employees.
Nonetheless, the Fourth Circuit asserts that "exposure of each employee to
both sides of the issue" renders the employee's choice "when the ballot is cast — as
reasoned and rational as possible," N.L.R.B. v. Logan Packing Co., 386 F.2d at n. 16.
However, even full exposure to both the union's and management's propaganda may
be totally irrelevant to the employee's decision to designate a union whether by
authorization cards or an election. A study of why workers join unions concludes:
"Often the decision to join a union is not based on logical
reasoning in which self-interest figures to a large degree, but upon
expediency — a reaction to the pressures of the moment."
Other studies indicate that the decision to vote for the union is made before the
election procedure is invoked and thus pre-election propaganda, whether one- or
both-sided, may have little influence on the voter:
"After extensive empirical research, various voting analysts
have come to suspect that even if election propaganda is read, it will
largely serve to provide rationalizations for decisions already reached
on other grounds.... As some have observed: "Arguments (read or
heard by the voters) enter the final stage of decision more as
(...continued)
Under the National Labor Relations Act," 78 Harv. L. Rev. 38, 125, and authorities
cited therein at n. 238. See also, Butler, op. cit. at 136. Case studies conducted by
Butler revealed that employer threats remained foremost in employees' memories,
whereas recollections of other campaign propaganda faded with the passage of time:
104

"The workers interviewed made no mention of any economic
activities on the part of the organizer though they fairly well agreed
that the management was set on keeping the union out and two
remembered that he said that he would close the plant if the union
came in."
In the instant Gissel case the evidence disclosed interference, restraint and coercion
practiced in respect to employees more than three months prior to the commencement
of the Union's organizing campaign. Moreover, Gissel's antiunion attitude had been
instilled in many of the same employees in 1960 when the company was found to
have violated sections 8(a)(1) and (3).

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ix

indicators than as influences. They point out, like signboards along
the road, the way to turn in order to reach a destination which is
already determined."
Further, Bok suggests that votes "as reasoned and rational as possible" may not result
in expression of majority will because few voters are able to appraise evidence
sufficiently systematically and rationally in the increasingly complex arena of labor
relations and because often the adverse arguments of labor and management will not
yield to logical analysis.109 Accordingly, there is reason to doubt that a ballot cast in
an NLRB election is, as asserted by the Fourth Circuit, the result of a free choice, "as
reasoned and rational as possible."110
...

Bok states [78 Harv. L. R. at n. 34]: "The most conscientious voter may be
unable to decide on logical grounds whether the indeterminate possibility of a five
cent increase, an expanded health insurance program, and a grievance procedure
outweighs the indeterminate chance of a strike or a relocation of the enterprise.
Moreover, legal rules will have no meaningful effect unless the questionable
campaign tactics are truly capable of affecting the decisions of enough conscientious
voters to affect the outcome of the election. And even if these conditions are
satisfied, the law will only succeed in causing the election to correspond more closely
to the values and preferences of the rational voters. If these voters represent a small
minority — as most empirical studies would have us believe — the law may still fail
to bring about an election result that will correspond to the values and desires of the
majority."
109

It is clear that the employer engages in much conduct which, although of
seeming little moment to reviewing tribunals, nonetheless just as seriously interferes
with the free choice of employees as do unfair labor practices or other conduct
sufficient to set aside an election. For example, during a union campaign, when a
supervisor has prior thereto said, "Hello," to the employees and ceases such practice,
this affects employees' votes. When the supervisor, during the election campaign,
stands at an employee's station for a number of minutes or even seconds when it was
not his practice to do so theretofore, this affects the employee's "free choice." In such
innumerable ways of daily contact, the employees are affected in their so-called "free
choice" and, accordingly, because of the superior position of the employer, his daily
and even minute by minute contact with the employees can and does affect the
employee's vote to the extent that no "free and fair election" is ever truly possible.
It is therefore a rebuttable homily when it is said that an election is more reliable
indicator of employees' wishes than unambiguous authorization cards.
110

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NLRB v. Gissel Packing Co.
ELECTIONS ARE SUSCEPTIBLE TO MISREPRESENTATION AND
COERCION

Although the Board supposedly conducts its elections only in so-called
"laboratory conditions," "no seasoned observer considers [this objective] realistic."
"[E]lection campaigns are characterized by 'prattle rather than precision' and
exaggerations, name calling, inaccuracies, and, to some extent, deliberate falsehoods
[which] are sometimes permitted as usual electioneering devices and campaign
tactics."
In addition, much objectionable conduct which interferes with the employee's
"free choice" is held by the Board to be insufficient to invalidate an election. For
instance, inadvertent misstatement, which under Board law will not void an election,
deprives the employee of a free choice just as effectively as a fraudulent
misrepresentation. Also, misinformation disseminated more than 24 hours before an
election may impair the employee's freedom of choice regardless of whether there is
ample time for the employees to verify it or for the union to rebut it (the Board's tests
for validity). Information concerning the misrepresentation may not be
communicated to the union in sufficient time for rebuttal. Employees may not have
time or may be reluctant to question the union, or the union may not have sufficient
access to the employees, especially close to the date of the election, whereas the
employer has almost unlimited access.
Employer speeches and interrogation, even if held lawful by the Board,
cannot help but have a disproportionate impact on employees.
While the Fourth Circuit imports great weight to the opportunity afforded by
the election process, for employees to hear "both sides of the issue,"
misrepresentation, intimidation and a myriad of other influences too often render
such opportunity more destructive than protective of employee rights.
Procedurally, many valid objections to conduct affecting the results of an
election are never raised because they come to the union's attention, if at all, after the
short period for filing objections has run. Also, many unions fail to file objections
because of the expense of litigation, the unlikelihood of success in re-run elections,
the potential long administrative delay and the possibility that even if the union gains
certification in a re-run election, the employer may refuse to bargain to challenge the
certification through a lengthy Board and Court unfair labor practice proceeding. An
employer need not articulate his anti-union attitudes to "men who know the
consequences of incurring [their] employer's strong displeasure" — knowledge
gleaned from daily exposure to management's influence. Even the standards set by
the Board to protect employees from coercive interrogation may not adequately

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xi

safeguard the employee's free choice in an election.
One commentator discussed the fallibility of these standards [Bok, 78 Harv.
L. R. at 109, 108]:
"current standards ... will not suffice to rule out the existence of
coercion; it is quite possible that intimidation will occur even if all,
or most of the factors cut in favor of the employer.
"...
"... employees may be somewhat more easily intimidated if
top management itself takes the trouble to inquire into their
activities...."
Nonetheless many elections are upheld despite evidence of employer captive
audience speeches and wholesale interrogation on the Board's theory that there is no
coercive impact on employees if management gives assurances against reprisal or
merely expresses opinion.
Many employer statements held by the Board to be protected by Section 8(c)
have persuasive impact on employees inconsistent with free choice, e.g.,
economically based statements concerning partial or complete plant shut down or
expressions of opinion as to economic consequences of selecting a union: strikes,
loss of seniority, loss of employer-employee "good will." The Board in evaluating
such pre-election conduct balances the employee's right to a "free choice" in a
"laboratory election atmosphere" against the employer's right vigorously to argue his
side of the issue in accordance with considerations of free speech under Section 8(c).
In applying this test, however, the Board too frequently does not ensure a reasoned
and rational vote by failing to restrict pre-election campaigning to legitimate
arguments relevant and conducive to the employee's reasoned choice. Almost
universally employers utilize the pre-election period not to educate employees, but
by planting fear of dire consequences in the minds of employees if the union should
win, to prevent unionization of their companies by engaging in conduct inconsistent
with employee free choice. In this regard the election procedure is particularly
susceptible to employer manipulation to serve not the purposes of the Act, but the
ends of the employer.
...

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NLRB v. Gissel Packing Co.
From the Brief of the AFL-CIO
(Amicus Curiae)

{The brief is signed by J. Albert Woll, General Counsel, and Thomas E.
Harris, Associate General Counsel, of the AFL-CIO; and Robert C. Mayer and
Laurence Gold, Washington, D.C.}
...
This temptation to violate the Act is enhanced by the fact that the minimum
benefit which may be expected in any event is delay. An employer who litigates an
unfair labor practice charge through the Courts of Appeal is assured approximately
two years before any remedy at all is imposed. During an organizing campaign as
during a strike, time is one-dimensional — delay inevitably works for the employer.
Employees seek representation in order to deal with immediate practical problems
rather than to fulfill a timeless platonic ideal. If the desire for immediate
representation is frustrated by delays caused by the employer's unfair labor practices,
the union's strength tends to be dissipated even though the end result of the litigation
is in its favor. For there are no means at its disposal to maintain and strengthen the
employees' desire for unionization. In light of this fact, it is plain that effective
remedies are of the essence. If the ultimate order does nothing more than revivify the
campaign years after it was thwarted, there is every reason to violate the law and
none but scruple to obey it. Once this is recognized, it is plain that an order to cease
and desist is obviously insufficient in itself. It is an invitation to commit unfair labor
practices to secure delay, safe in the knowledge that the only cost of doing so will be
an order not to repeat the violation.
...

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xiii

From the Brief of Gissel Packing Co.
(Respondent)
{The brief is signed by John E. Jenkins, Jr. and C. Robert Schaub,
Huntington, W.Va.}
AUTHORIZATION CARDS ARE AN UNRELIABLE INDICATOR OF AN
EMPLOYEE'S ACTUAL PREFERENCE AS TO REPRESENTATION BY A
LABOR ORGANIZATION
RIGHTS OF INDIVIDUAL EMPLOYEES
It is one of the oddities of these times that, in the present posture of labormanagement relations, the general assumption by labor advocates is that the interests
of labor and management are necessarily in opposition, with a battle line drawn
between "organized labor" on the one hand and management on the other.
This view, apparently followed by the NLRB, is in direct contravention of the
intent of labor legislation. The rights given are not phrased to apply to "organized
labor," or labor unions. Instead, the rights to be considered are those of the
individual employee. As stated in Section 7 of the NLRA:
"Employees shall have the right to self-organization, to form, join or
assist labor organizations... [emphasis added]."
In practice, the individual employee has become the forgotten man. The
actions and decisions of the NLRB in large part involve the employee only as a prize
with rules regulating the manner of his capture by unions.
The situation present in this cause strongly reflects this treatment. The NLRB
has an elective process with which to determine the actual and uncoerced desire of
an employee under safeguards far stronger and more protective than are those under
which this nation does now, and has from inception, chosen those who are
responsible for the actions and continuing existence of the nation.
The Board chooses not to believe its own statements as to elections. It says,
at page 65 of the Commerce Clearing House reproduction, Thirty-Second Annual
Report of the National Labor Relations Board (1968):
"Board elections are conducted in accordance with strict
standards designed to assure that the participating employees have an
opportunity to determine, and to register a free and untrammeled

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NLRB v. Gissel Packing Co.
choice in the selection of, a bargaining representative."

It is apparent that the use of authorization cards to effect recognition has
become more popular with unions unwilling to risk a fair and honest selection
through a supervised election. In recent years, cognizance of the abuses attendant
with the securing of such cards on an individual basis has become recognized by
some authorities, and by some court which decline to act as rubber-stamp enforcers
of Board decisions.
The reason for union reliance on any method of gaining recognition other than
through fair choice is apparent when it is found that in fiscal year 1967, the latest for
which figures are available, 7,882 elections were conducted by the Board, and four
out of ten were lost by unions. Of the 7,882, 4,722, or 60%, were won by unions,
including elections where the essential choice was between rival unions. Chart 12,
Thirty-second Annual Report of the National Labor Relations Board (1968).
Doubt as to the validity of authorization cards has long been present. For
instance, then Board Chairman McCullock pointed out in a speech to the American
Bar Association that in 57 elections where unions presented authorization cards from
over 70% of the employees, they won 43, or 75% of them; thus, unions lost one in
four elections where employees were given a free choice, even though their cardbased apparent approval would indicate that a lost election would be a statistical
rarity. 1962 PROCEEDINGS, SECTION OF LABOR RELATIONS LAW,
AMERICAN BAR ASSOCIATION 14-17.
The unreliability of authorization cards has been recognized by the AFL-CIO
in the oft-quoted remark from the AFL-CIO Guidebook for Union Organizers (1961)
that:
"NLRB pledge cards are at best a signifying of intention at a given
moment. Sometimes they are signed to 'get the union off my back.'"
From the brief of General Steel Products
(Respondent)
{The brief is signed by Lewis P. Hamlin, Jr., Salisbury, NC.}
UNRELIABILITY OF AUTHORIZATION CARDS
When the Board conducts elections it insists upon so called "laboratory
conditions" — an unlikely term which is hardly descriptive of any election — but as
a minimum it always means a closely supervised secret balloting outside the presence

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xv

of both the employer and the union organizer. This "laboratory" test for elections is
impossible to reconcile with the totally unsupervised solicitation of cards by union
professionals, under partisan conditions, where the "voter" is required to accept or
reject in full view of those who solicit him. The unreliability of such expressions has
been nowhere better summarized than by the Court of Appeals for the Fourth Circuit
in National Labor Relations Board v. Logan Packing Co., 386 F.2d 562, 564-6 (C.A.
4). We quote a part of this opinion (footnotes omitted):
"In stark contrast is a decisional rule that bypasses the election
processes and places signed authorization cards on a parity with an
affirmative vote in a secret election.
"It would be difficult to imagine a more unreliable method of
ascertaining the real wishes of employees than a 'card check,' unless
it were an employer's request for an open show of hands. The one is
no more reliable than the other. No thoughtful person has attributed
reliability to such card checks. This, the Board has fully recognized.
So has the AFL-CIO. In 1962, Board Chairman McCulloch presented
to the American Bar Association data indicating some relationship
between large card-signing majorities and election results. Unions
which presented authorization cards from thirty to fifty per cent of the
employees won nineteen per cent of the elections; those having
authorization cards from fifty to seventy per cent of the employees
won only forty-eight per cent of the elections, while those having
authorization cards from over seventy per cent of the employees won
seventy-four per cent of the elections.
"The unreliability of the cards is not dependent upon the
possible use of misrepresentations and threats, however. It is
inherent, as we have noted, in the absence of secrecy and in the
natural inclination of most people to avoid stands which appear to be
nonconformist and antagonistic to friends and fellow employees. It
is enhanced by the fact that usually, as they were here, the cards are
obtained before the employees are exposed to any counter argument
and without an opportunity for reflection or recantation. Most
employees having second thoughts about the matter and regretting
having signed the card would do nothing about it; in most situations,
only one of rare strength of character would succeed in having his
card returned or destroyed. Cards are collected over a period of time,
however, and there is no assurance that an early signer is still of the
same mind on the crucial date when the union delivers its bargaining
demand.

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"An employer could not help but doubt the results of a card
check as an indication of the wishes of employees, for there is nothing
in the process to allay it. Unless the employer is extraordinary
gullible and unimaginative, he will at least suspect unreliability in the
cards, and their signatures. If he has no honest doubt of the Union's
claim of support by a majority of the employees, it will be because of
other evidence known to him not because of the card check."
LACK OF EMPLOYEE OPPORTUNITY TO HEAR BOTH SIDES

When an election is to be held the Board now insists that the employer furnish
the union in advance with a list of names and addresses of all employees. This is
done to insure that the union will have a chance to communicate with them so that
they may hear both sides and vote intelligently. The Board's reasoning is set out in
Excelsior Underwear, Inc., 156 NLRB 1236 (1966):
"Accordingly, we now establish a requirement that will be
applied in all election cases. That is, within 7 days after the Regional
Director has approved a consent-election agreement entered into by
the parties or after the Regional Director or the Board has directed an
election, the employer must file with the Regional Director an
election eligibility list, containing the names and addresses of all the
eligible voters. The Regional Director, in turn, shall make this
information available to all parties in the case. Failure to comply
with this requirement shall be grounds for setting aside the election
whenever proper objections are filed.
"The considerations that impel us to adopt the foregoing rule
are these: The control of the election proceeding, and the
determination of the steps necessary to conduct that election fairly
(are) matters which Congress entrusted to the Board alone. In
discharging that trust, we regard it as the Board's function to conduct
elections in which employees have the opportunity to cast their
ballots for or against representation under circumstances that are free
not only from interference, restraint, or coercion violative of the Act,
but also from other elements that prevent or impede a free and
reasoned choice. Among the factors that undoubtedly tend to impede
such a choice is a lack of information with respect to one of the
choices available. In other words, an employee who has had an
effective opportunity to hear the arguments concerning representation
is in a better position to make a more fully informed and reasoned
choice. Accordingly, we think that it is appropriate for us to remove

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xvii

the impediment to communication to which our new rule is directed."
Surely this contrasts strangely with the Board's willingness to count authorization
cards solicited at a time when no election has even been set or called for and when,
more often than not, the employee has been exposed only to the union's solicitations
and with no opportunity to hear what the employer or anyone else has to say about
it.
EMPLOYEES ARE DENIED THE OPPORTUNITY TO CHANGE THEIR
MINDS
A further evil in card check proceedings is that the employee who signs a card
is locked in. He cannot get his card back or avoid its being counted by anything less
than a formal application to the union (if this will do it). An application to the Board
will not accomplish anything.
This very thing happened in the present General Steel case. Ten employees
endeavored to intervene through counsel of their own before the Trial Examiner,
declaring that they had changed their minds and had voted against the union and
desired to have their cards suppressed. The motion to intervene was denied and all
but two of these cards were counted for the union! Contrast this with a voter's right
to change his mind even to the last minute before marking his ballot.

QUESTION FOR REFLECTION
The parties were battling about the validity of
authorization cards, but this was not the real issue in
the case. Cards were a minor issue. What was actually
at stake?

Ù

Labor and Employment Law

431

Successorship
Introduction
It is not uncommon for one business to acquire or
merge with another. In Labor Law, the acquired business
is known as the "predecessor" or "predecessor employer,"
and the acquiring business is known as the "successor" or
"successor employer." If the workers of the predecessor
were represented by a union, the issue arises whether the
union should continue to serve as the bargaining agent of
the workers vis-a-vis the successor.
The issue of successorship presents itself in a
variety of contexts. In John Wiley & Sons v. Livingston,
the publishing company John Wiley & Sons acquired another
publishing company, Interscience, and the latter ceased
to operate as a separate entity.
At the time of
acquisition, John Wiley's employees were not represented
by a union, but some of Interscience's employees were
represented. The collective agreement between the union
and Interscience did not contain a successorship clause.a
John Wiley did not agree to assume the obligations of
Interscience, but the law of the state which governed the
transaction provided that a successor employer is liable
for the obligations of a predecessor.b Wiley retained
almost all of Interscience's workers, and they performed
the same work on the same products as they had before the
acquisition.

a

A successorship clause is a provision in a labor
contract in which the employer promises that, in the event it
is acquired by another firm, the
acquisition agreement
between the two firms will specify that the successor will
recognize the union as the bargaining agent of the workers in
the unit and will honor the terms of the labor contract.
b

Labor law is federal law; therefore, the state law
applied to obligations like debts and promises to deliver
goods, but did not apply to obligations under labor contracts.
In the absence of such a state law, whether a successor
business assumes the obligations of the predecessor business
is a matter for negotiation between the parties.

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NLRB v. Burns Security

The contract between Interscience and the union
provided the workers with typical rights, such as
seniority, severance pay, and contributions to a pension
fund, and also contained an arbitration clause. By its
terms, that contract was to expire a few months after the
acquisition.
Both before and after the acquisition, the union
maintained that it continued to represent the former
Interscience workers and demanded that Wiley honor
certain rights in the contract.
Wiley refused to
recognize the union and contended that the acquisition
had terminated the labor contract. Shortly before the
expiration date of the contract, the union demanded that
Wiley arbitrate the dispute.
Wiley refused, and the
union sued in court to compel arbitration.
The Supreme Court required Wiley to arbitrate the
union's claims. The Court wrote:
"We hold that disappearance by merger of a
corporate employer which has entered into a
collective bargaining agreement with a union does
not automatically terminate all rights of the
employees covered by the agreement, and that, in
appropriate circumstances, present here, the
successor employer may be required to arbitrate
with the union under the agreement." 376 U.S. at
548.

The
Court
did
not
delineate
the
"appropriate
circumstances" which cause the duty to arbitrate to
survive the acquisition.
However, the passage just
quoted implies that the duty does not survive all
acquisitions, as does another passage in the opinion,
which states that the "lack of any substantial continuity
of identity in the business enterprise before and after
the change" in ownership would defeat the duty. 376 U.S.
at 551. Nor did the Court hold that Wiley was obliged to
honor the workers' substantive rights under the
Interscience contract (and, indeed, most of the union's
claims were rejected in the subsequent arbitration, 55 LA
210 (1970)).

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NLRB v. Burns Security

iii

In the following case, the Labor Board, on the one
hand, and both the majority and the dissent, on the other
hand, disagree about the precedential effect of Wiley.
Did the Board or the Court use that case appropriately?

Labor and Employment Law

434

iv

NLRB v. Burns International Security
406 U.S. 272 (1972)

Mr. Justice WHITE delivered the opinion of the Court.
Burns International Security Services, Inc. (Burns), replaced another
employer, the Wackenhut Corp. (Wackenhut), which had previously provided plant
protection services for the Lockheed Aircraft Service Co. (Lockheed) located at the
Ontario International Airport in California. When Burns began providing security
service, it employed 42 guards; 27 of them had been employed by Wackenhut. Burns
refused, however, to bargain with the United Plant Guard Workers of America (UPG)
which had been certified after a National Labor Relations Board (Board) election as
the exclusive bargaining representative of Wackenhut's employees less than four
months earlier. The issues presented in this case are whether Burns refused to
bargain with a union representing a majority of employees in an appropriate unit and
whether the National Labor Relations Board could order Burns to observe the terms
of a collective-bargaining contract signed by the union and Wackenhut that Burns
had not voluntarily assumed. Resolution turns to a great extent on the precise facts
involved here.
I
The Wackenhut Corp. provided protection services at the Lockheed plant for
five years before Burns took over this task. On February 28, 1967, a few months
before the changeover of guard employers, a majority of the Wackenhut guards
selected the union as their exclusive bargaining representative in a Board election
after Wackenhut and the union had agreed that the Lockheed plant was the
appropriate bargaining unit. On March 8, the Regional Director certified the union
as the exclusive bargaining representative for these employees, and, on April 29,
Wackenhut and the union entered into a three-year collective-bargaining contract.
Meanwhile, since Wackenhut's one-year service agreement to provide security
protection was due to expire on June 30, Lockheed had called for bids from various
companies supplying these services, and both Burns and Wackenhut submitted
estimates. At a pre-bid conference attended by Burns on May 15, a representative of
Lockheed informed the bidders that Wackenhut's guards were represented by the
union, that the union had recently won a Board election and been certified, and that
there was in existence a collective-bargaining contract between Wackenhut and the
union.3 Lockheed then accepted Burns's bid, and on May 31 Wackenhut was notified
3

A Burns executive later admitted in the unfair-labor-practice proceeding that
(continued...)

Labor and Employment Law

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NLRB v. Burns Security

v

that Burns would assume responsibility for protection services on July 1. Burns
chose to retain 27 of the Wackenhut guards, and it brought in 15 of its own guards
from other Burns locations.
During June, when Burns hired the 27 Wackenhut guards, it supplied them
with membership cards of the American Federation of Guards (AFG), another union
with which Burns had collective-bargaining contracts at other locations, and
informed them that they had to become AFG members to work for Burns, that they
would not receive uniforms otherwise, and that Burns "could not live with" the
existing contract between Wackenhut and the union. On June 29, Burns recognized
the AFG on the theory that it had obtained a card majority. On July 12, however, the
UPG demanded that Burns recognize it as the bargaining representative of Burns's
employees at Lockheed and that Burns honor the collective-bargaining agreement
between it and Wackenhut. When Burns refused, the UPG filed unfair labor practice
charges, and Burns responded by challenging the appropriateness of the unit and by
denying its obligation to bargain.
The Board, adopting the trial examiner's findings and conclusions, found the
Lockheed plant an appropriate unit and held that Burns had violated §§8(a)(2) and
8(a)(1) by unlawfully recognizing and assisting the AFG, a rival of the UPG; and that
it had violated §§8(a)(5) and 8(a)(1) by failing to recognize and bargain with the
UPG and by refusing to honor the collective-bargaining agreement that had been
negotiated between Wackenhut and UPG.
Burns did not challenge the §8(a)(2) unlawful assistance finding in the Court
of Appeals but sought review of the unit determination and the order to bargain and
observe the pre-existing collective-bargaining contract. The Court of Appeals
accepted the Board's unit determination and enforced the Board's order insofar as it
related to the finding of unlawful assistance of a rival union and the refusal to
bargain, but it held that the Board had exceeded its powers in ordering Burns to
honor the contract executed by Wackenhut. Both Burns and the Board petitioned for
certiorari, Burns challenging the unit determination and the bargaining order and the
Board maintaining its position that Burns was bound by the Wackenhut contract, and
we granted both petitions, though we declined to review the propriety of the

3

(...continued)
Burns was aware of the union's status, the unit certification, and the collective-bargaining
contract after the May 15 meeting.

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NLRB v. Burns Security

bargaining unit.
II
... Because the Act itself imposes a duty to bargain with the representatives
of a majority of the employees in an appropriate unit, the initial issue before the
Board was whether the charging union was such a bargaining representative.
The trial examiner first found that the unit designated by the regional director
was an appropriate unit for bargaining. The unit found appropriate was defined as
"[a]ll full-time and regular part-time employees of [Burns] performing plant
protection duties ... at Lockheed, Ontario International Airport; excluding office
clerical employees, professional employees, supervisors, and all other employees as
defined in the Act." This determination was affirmed by the Board, accepted by the
Court of Appeals, and is not at issue here because pretermitted by our limited grant
of certiorari.
The trial examiner then found, inter alia, that Burns "had in its employ a
majority of Wackenhut's former employees," and that these employees had already
expressed their choice of a bargaining representative in an election held a short time
before. Burns was therefore held to have a duty to bargain, which arose when it
selected as its work force the employees of the previous employer to perform the
same tasks at the same place they had worked in the past.
The Board, without revision, accepted the trial examiner's findings and
conclusions with respect to the duty to bargain, and we see no basis for setting them
aside. In an election held but a few months before, the union had been designated
bargaining agent for the employees in the unit and a majority of these employees had
been hired by Burns for work in the identical unit. It is undisputed that Burns knew
all the relevant facts in this regard and was aware of the certification and of the
existence of a collective-bargaining contract. In these circumstances, it was not
unreasonable for the Board to conclude that the union certified to represent all
employees in the unit still represented a majority of the employees and that Burns
could not reasonably have entertained a good-faith doubt about that fact. Burns's
obligation to bargain with the union over terms and conditions of employment
stemmed from its hiring of Wackenhut's employees and from the recent election and
Board certification. It has been consistently held that a mere change of employers or
of ownership in the employing industry is not such an "unusual circumstance" as to
affect the force of the Board's certification within the normal operative period if a
majority of employees after the change of ownership or management were employed
by the preceding employer.

Labor and Employment Law

437

NLRB v. Burns Security

vii

It goes without saying, of course, that Burns was not entitled to upset what
it should have accepted as an established union majority by soliciting representation
cards for another union and thereby committing the unfair labor practice of which it
was found guilty by the Board. That holding was not challenged here and makes it
imperative that the situation be viewed as it was when Burns hired its employees for
the guard unit, a majority of whom were represented by a Board-certified union.
It would be a wholly different case if the Board had determined that because
Burns's operational structure and practices differed from those of Wackenhut, the
Lockheed bargaining unit was no longer an appropriate one. Likewise, it would be
different if Burns had not hired employees already represented by a union certified
as a bargaining agent,5 and the Board recognized as much at oral argument. But
where the bargaining unit remains unchanged and a majority of the employees hired
by the new employer are represented by a recently certified bargaining agent, there
is little basis for faulting the Board's implementation of the express mandates of
§8(a)(5) and §9(a) by ordering the employer to bargain with the incumbent union.
III
It does not follow, however, from Burns's duty to bargain that it was bound
to observe the substantive terms of the collective-bargaining contract the union had
negotiated with Wackenhut and to which Burns had in no way agreed. Section 8(d)
of the Act expressly provides that the existence of such bargaining obligation "does
not compel either party to agree to a proposal or require the making of a concession."
Congress has consistently declined to interfere with free collective bargaining and
has preferred that device, or voluntary arbitration, to the imposition of compulsory
terms as a means of avoiding or terminating labor disputes. In its report
accompanying the 1935 Act, the Senate Committee on Education and Labor stated:
"The committee wishes to dispel any possible false impression that
this bill is designed to compel the making of agreements or to permit
governmental supervision of their terms. It must be stressed that the duty
to bargain collectively does not carry with it the duty to reach an
agreement, because the essence of collective bargaining is that either party
shall be free to decide whether proposals made to it are satisfactory." S.
Rep. No. 573, 74th Cong., 1st Sess., 12 (1935).
5

The Board has never held that the National Labor Relations Act itself requires that
an employer who submits the winning bid for a service contract or who purchases the assets
of a business be obligated to hire all of the employees of the predecessor through it is
possible that such an obligation might be assumed by the employer. However, an employer
who declines to hire employees solely because they are members of a union commits a
§8(a)(3) unfair labor practice.

Labor and Employment Law

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viii

NLRB v. Burns Security

This Court immediately noted this fundamental theme of the legislation: "[The Act]
does not compel any agreement whatever... . The theory of the Act is that free
opportunity for negotiation with accredited representatives of employees is likely to
promote industrial peace and may bring about the adjustments and agreements which
the Act in itself does not attempt to compel." NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 45.
Section 8(d) made this policy an express statutory mandate, and was enacted
in 1947 because Congress feared that "the present Board has gone very far, in the
guise of determining whether or not employers had bargained in good faith, in setting
itself up as the judge of what concessions an employer must make and of the
proposals and counterproposals that he may or may not make. ... [U]nless Congress
writes into the law guides for the Board to follow, the Board may attempt to carry
this process still further and seek to control more and more the terms of collective
bargaining agreements." H.R. Rep. No. 245, 80th Cong., 1st Sess., 19-20 (1947).
This history was reviewed in detail and given controlling effect in H. K.
Porter Co. v. NLRB, 397 U.S. 99 (1970). There this Court, while agreeing that the
employer violated §8(a)(5) by adamantly refusing to agree to a dues checkoff,
intending thereby to frustrate the consummation of any bargaining agreement, held
that the Board had erred in ordering the employer to agree to such a provision:
"[W]hile the Board does have power ... to require employers and employees
to negotiate, it is without power to compel a company or a union to agree
to any substantive contractual provision of a collective-bargaining
agreement.
"...
"... It would be anomalous indeed to hold that while §8(d) prohibits
the Board from relying on a refusal to agree as the sole evidence of badfaith bargaining, the Act permits the Board to compel agreement in that
same dispute. The Board's remedial powers under §10 of the Act are broad,
but they are limited to carrying out the policies of the Act itself. One of
these fundamental policies is freedom of contract." 397 U.S. at 102, 108
(citations omitted).

These considerations, evident from the explicit language and legislative
history of the labor laws, underlay the Board's prior decisions, which until now have
consistently held that, although successor employers may be bound to recognize and
bargain with the union, they are not bound by the substantive provisions of a
collective-bargaining contract negotiated by their predecessors but not agreed to or
assumed by them. As the Court of Appeals said in this case, "In none of the previous
successorship cases has the Board ever reached that result. The successor has always

Labor and Employment Law

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NLRB v. Burns Security

ix

been held merely to have the duty of bargaining with his predecessor's union."8 441
F.2d at 915.
The Board, however, has now departed from this view and argues that the
same policies that mandate a continuity of bargaining obligation also require that
successor employers be bound to the terms of a predecessor's collective-bargaining
contract. It asserts that the stability of labor relations will be jeopardized and that
employees will face uncertainty and a gap in the bargained-for terms and conditions
of employment, as well as the possible loss of advantages gained by prior
negotiations, unless the new employer is held to have assumed, as a matter a federal
labor law, the obligations under the contract entered into by the former employer.
Recognizing that under normal contract principles a party would not be bound to a
contract in the absence of consent, the Board notes that in John Wiley & Sons, Inc.
v. Livingston, 376 U.S. 543, 550 (1964), the Court declared that "a collective
bargaining agreement is not an ordinary contract" but is, rather, an outline of the
common law of a particular plant or industry. The Court held in Wiley that although
the predecessor employer which had signed a collective-bargaining contract with the
union had disappeared by merger with the successor, the union could compel the
successor to arbitrate the extent to which the successor was obligated under the
collective-bargaining agreement. The Board contends that the same factors that the
Court emphasized in Wiley, the peaceful settlement of industrial conflicts and
"protection [of] the employees [against] a sudden change in the employment
relationship," id., at 549, require that Burns be treated under the collective-bargaining
contract exactly as Wackenhut would have been if it had continued protecting the
Lockheed plant.
We do not find Wiley controlling in the circumstances here. Wiley arose in
the context of a §301 suit to compel arbitration, not in the context of an unfair labor
practice proceeding where the Board is expressly limited by the provisions of §8(d).
That decision emphasized "[t]he preference of national labor policy for arbitration
as a substitute for tests of strength before contending forces" and held only that the
agreement to arbitrate, "construed in the context of a national labor policy," survived
the merger and left to the arbitrator, subject to judicial review, the ultimate question
of the extent to which, if any, the surviving company was bound by other provisions
of the contract.
Wiley's limited accommodation between the legislative endorsement of
8

When the union that has signed a collective-bargaining contract is decertified, the
succeeding union certified by the Board is not bound by the prior contract, need not
administer it, and may demand negotiations for a new contract, even if the terms of the old
contract have not yet expired.

Labor and Employment Law

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NLRB v. Burns Security

freedom of contract and the judicial preference for peaceful arbitral settlement of
labor disputes does not warrant the Board's holding that the employer commits an
unfair labor practice unless he honors the substantive terms of the pre-existing
contract. The present case does not involve a §301 suit; nor does it involve the duty
to arbitrate. Rather, the claim is that Burns must be held bound by the contract
executed by Wackenhut, whether Burns has agreed to it or not and even though
Burns made it perfectly clear that it had no intention of assuming that contract. Wiley
suggests no such open-ended obligation. Its narrower holding dealt with a merger
occurring against a background of state law that embodied the general rule that in
merger situations the surviving corporation is liable for the obligations of the
disappearing corporation. Here there was no merger or sale of assets, and there were
no dealings whatsoever between Wackenhut and Burns. On the contrary, they were
competitors for the same work, each bidding for the service contract at Lockheed.
Burns purchased nothing from Wackenhut and became liable for none of its financial
obligations. Burns merely hired enough of Wackenhut's employees to require it to
bargain with the union as commanded by §8(a)(5) and §9(a). But this consideration
is a wholly insufficient basis for implying either in fact or in law that Burns had
agreed or must be held to have agreed to honor Wackenhut's collective-bargaining
contract.
We agree with the Court of Appeals that the Board failed to heed the
admonitions of the H. K. Porter case. Preventing industrial strife is an important aim
of federal labor legislation, but Congress has not chosen to make the bargaining
freedom of employers and unions totally subordinate to this goal. When a bargaining
impasse is reached, strikes and lockouts may occur. This bargaining freedom means
both that parties need not make any concessions as a result of Government
compulsion and that they are free from having contract provisions imposed upon
them against their will. Here, Burns had notice of the existence of the Wackenhut
collective-bargaining contract, but it did not consent to be bound by it. The source
of its duty to bargain with the union is not the collective-bargaining contract but the
fact that it voluntarily took over a bargaining unit that was largely intact and that had
been certified within the past year. Nothing in its actions, however, indicated that
Burns was assuming the obligations of the contract, and "allowing the Board to
compel agreement when the parties themselves are unable to agree would violate the
fundamental premise on which the Act is based — private bargaining under
governmental supervision of the procedure alone, without any official compulsion
over the actual terms of the contract." H. K. Porter Co. v. NLRB, 397 U.S. at 108.
We also agree with the Court of Appeals that holding either the union or the
new employer bound to the substantive terms of an old collective-bargaining contract
may result in serious inequities. A potential employer may be willing to take over
a moribund business only if he can make changes in corporate structure, composition

Labor and Employment Law

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xi

of the labor force, work location, task assignment, and nature of supervision.
Saddling such an employer with the terms and conditions of employment contained
in the old collective-bargaining contract may make these changes impossible and may
discourage and inhibit the transfer of capital. On the other hand, a union may have
made concessions to a small or failing employer that it would be unwilling to make
to a large or economically successful firm. The congressional policy manifest in the
Act is to enable the parties to negotiate for any protection either deems appropriate,
but to allow the balance of bargaining advantage to be set by economic power
realities. Strife is bound to occur if the concessions that must be honored do not
correspond to the relative economic strength of the parties.
The Board's position would also raise new problems, for the successor
employer would be circumscribed in exactly the same way as the predecessor under
the collective-bargaining contract. It would seemingly follow that employees of the
predecessor would be deemed employees of the successor, dischargeable only in
accordance with provisions of the contract and subject to the grievance and
arbitration provisions thereof. Burns would not have been free to replace
Wackenhut's guards with its own except as the contract permitted. Given the
continuity of employment relationship, the pre-existing contract's provisions with
respect to wages, seniority rights, vacation privileges, pension and retirement fund
benefits, job security provisions, work assignments and the like would devolve on the
successor. Nor would the union commit a §8(b)(3) unfair labor practice if it refused
to bargain for a modification of the agreement effective prior to the expiration date
of the agreement. A successor employer might also be deemed to have inherited its
predecessor's pre-existing contractual obligations to the union that had accrued under
past contracts and that had not been discharged when the business was transferred.
"[A] successor may well acquire more liabilities as a result of Burns than appear on
the face of a contract."11 Finally, a successor will be bound to observe the contract
despite good-faith doubts about the union's majority during the time that the contract
is a bar to another representation election. For the above reasons, the Board itself has
expressed doubts as to the general applicability of its Burns rule.
In many cases, of course, successor employers will find it advantageous not
only to recognize and bargain with the union but also to observe the pre-existing
contract rather than to face uncertainty and turmoil. Also, in a variety of
circumstances involving a merger, stock acquisition, reorganization, or assets
purchase, the Board might properly find as a matter of fact that the successor had
assumed the obligations under the old contract. Such a duty does not, however,
ensue as a matter of law from the mere fact that an employer is doing the same work
11

Doppelt, Successor Companies: The NLRB Limits the Options — and Raises
Some Problems, 20 DePaul L. Rev. 176, 191 (1971).

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NLRB v. Burns Security

in the same place with the same employees as his predecessor, as the Board had
recognized until its decision in the instant case. We accordingly set aside the Board's
finding of a §8(a)(5) unfair labor practice insofar as it rested on a conclusion that
Burns was required to but did not honor the collective-bargaining contract executed
by Wackenhut.
IV
It therefore follows that the Board's order requiring Burns to "give retroactive
effect to all the clauses of said [Wackenhut] contract and, with interest of 6 percent,
make whole its employees for any losses suffered by reason of Respondent's
[Burns's] refusal to honor, adopt and enforce said contract" must be set aside. We
note that the regional director's charge instituting this case asserted that "[o]n or
about July 1, 1967, Respondent [Burns] unilaterally changed existing wage rates,
hours of employment, overtime wage rates, differentials for swing shift and
graveyard shift, and other terms and conditions of employment of the employees in
the appropriate unit...," and that the Board's opinion stated that "[t]he obligation to
bargain imposed on a successor-employer includes the negative injunction to refrain
from unilaterally changing wages and other benefits established by a prior collectivebargaining agreement even though that agreement had expired. In this respect, the
successor-employer's obligations are the same as those imposed upon employers
generally during the period between collective-bargaining agreements." This
statement by the Board is consistent with its prior and subsequent cases that hold that
whether or not a successor employer is bound by its predecessor's contract, it must
not institute terms and conditions of employment different from those provided in its
predecessor's contract, at least without first bargaining with the employees'
representative. Thus, if Burns, without bargaining to impasse with the union, had
paid its employees on and after July 1 at a rate lower than Wackenhut had paid under
its contract, or otherwise provided terms and conditions of employment different
from those provided in the Wackenhut collective-bargaining agreement, under the
Board's view, Burns would have been subject to an order to restore to employees
what they had lost by this so-called unilateral change.
Although Burns had an obligation to bargain with the union concerning wages
and other conditions of employment when the union requested it to do so, this case
is not like a §8(a)(5) violation where an employer unilaterally changes a condition
of employment without consulting a bargaining representative. It is difficult to
understand how Burns could be said to have changed unilaterally any pre-existing
term or condition of employment without bargaining when it had no previous
relationship whatsoever to the bargaining unit and, prior to July 1, no outstanding
terms and conditions of employment from which a change could be inferred. The
terms on which Burns hired employees for service after July 1 may have differed

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xiii

from the terms extended by Wackenhut and required by the collective-bargaining
contract, but it does not follow that Burns changed its terms and conditions of
employment when it specified the initial basis on which employees were hired on
July 1.
Although a successor employer is ordinarily free to set initial terms on which
it will hire the employees of a predecessor, there will be instances in which it is
perfectly clear that the new employer plans to retain all of the employees in the unit
and in which it will be appropriate to have him initially consult with the employees'
bargaining representative before he fixes terms. In other situations, however, it may
not be clear until the successor employer has hired his full complement of employees
that he has a duty to bargain with a union, since it will not be evident until then that
the bargaining representative represents a majority of the employees in the unit as
required by §9(a) of the Act. Here, for example, Burns's obligation to bargain with
the union did not mature until it had selected its force of guards late in June. The
Board quite properly found that Burns refused to bargain on July 12 when it rejected
the overtures of the union. It is true that the wages it paid when it began protecting
the Lockheed plant on July 1 differed from those specified in the Wackenhut
collective-bargaining agreement, but there is no evidence that Burns ever unilaterally
changed the terms and conditions of employment it had offered to potential
employees in June after its obligation to bargain with the union became apparent. If
the union had made a request to bargain after Burns had completed its hiring and if
Burns had negotiated in good faith and had made offers to the union which the union
rejected, Burns could have unilaterally initiated such proposals as the opening terms
and conditions of employment on July 1 without committing an unfair labor practice.
The Board's order requiring Burns to make whole its employees for any losses
suffered by reason of Burns's refusal to honor and enforce the contract cannot,
therefore, be sustained on the ground that Burns unilaterally changed existing terms
and conditions of employment, thereby committing an unfair labor practice which
required monetary restitution in these circumstances.
Affirmed.
Mr. Justice REHNQUIST, with whom the CHIEF JUSTICE, Mr. Justice
BRENNAN, and Mr. Justice POWELL join, concurring and dissenting.
Although the Court studiously avoids using the term "successorship" in
concluding that Burns did have a statutory obligation to bargain with the union, it
affirms the conclusions of the Board and the Court of Appeals to that effect which
were based entirely on the successorship doctrine. Because I believe that the Board
and the Court of Appeals stretched that concept beyond the limits of its proper
application, I would enforce neither the Board's bargaining order nor its order

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NLRB v. Burns Security

imposing upon Burns the terms of the contract between the union and Wackenhut.
I therefore concur in part and dissent in part.
...
The Court concludes that because the trial examiner and the Board found the
Lockheed facility to be an appropriate bargaining unit for Burns's employees, and
because Burns hired a majority of Wackenhut's previous employees who had worked
at that facility, Burns should have bargained with the union, even though the union
never made any showing to Burns of majority representation. There is more than one
difficulty with this analysis.
First, it is by no means mathematically demonstrable that the union was the
choice of a majority of the 42 employees with which Burns began the performance
of its contract with Lockheed. True, 27 of the 42 had been represented by the union
when they were employees of Wackenhut, but there is nothing in the record before
us to indicate that all 27 of these employees chose the union as their bargaining agent
even at the time of negotiations with Wackenhut. There is obviously no evidence
whatever that the remaining 15 employees of Burns, who had never been employed
by Wackenhut, had ever expressed their views one way or the other about the union
as a bargaining representative. It may be that, if asked, all would have designated the
union. But they were never asked. Instead, the trial examiner concluded that because
Burns was a "successor" employer to Wackenhut, it was obligated by that fact alone
to bargain with the union.
...
... The imposition of successorship in this case is unusual because the
successor, instead of purchasing business or assets from or merging with Wackenhut,
was in direct competition with Wackenhut for the Lockheed contract. I believe that
a careful analysis of the admittedly imprecise concept of successorship indicates that
important rights of both the employee and the employer to independently order their
own affairs are sacrificed needlessly by the application of that doctrine to this case.
It has been aptly observed that the doctrine of "successor" employer in the
field of labor law is "shrouded in somewhat impressionist approaches."3 In John
Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964), we employed a form of the
"successor" doctrine to impose upon an employer an obligation to arbitrate disputes
under an arbitration clause in an agreement entered into between a predecessor
3

International Assn. of Machinists v. NLRB, 414 F.2d 1135, 1139 (1969) (Leventhal,
J., concurring).

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xv

employer and the bargaining representative of the latter's employees. The doctrine
has been applied by the Board and by the courts of appeals to impose upon the
successor employer a duty to bargain with representatives of the employees of his
predecessor, to support a finding of unfair labor practices from a course of conduct
engaged in by both the predecessor and the successor, and to require the successor
to remedy unfair labor practices committed by a predecessor employer. The
consequences of the application of the "successor" doctrine in each of these cases has
been that the "successor" employer has been subjected to certain burdens or
obligations to which a similarly situated employer who is not a "successor" would not
be subject.
The various decisions that have applied the successor doctrine exhibit more
than one train of reasoning in support of its application. There is authority for the
proposition that it rests in part at least upon the need for continuity in industrial labor
relations, and the concomitant avoidance of industrial strife that presumably follows
from such continuity. On examination, however, this proposition may more
accurately be described as a statement of the result of a finding of successorship,
rather than a reason for making that finding.
Other cases have stated the guiding principle to be whether the "employing
industry" remains essentially the same after the change in ownership. Under this
approach a variety of facts relating to the "employing industry" have been examined
to see whether a sufficient number remain unchanged to warrant the imposition of
successorship. While it cannot be doubted that a determination as to successorship
will vary with different fact situations, some general concept of the reason for the
successorship doctrine is essential in order to determine the importance of the various
factual combinations and permutations that may or may not call for its application.
This Court's opinion in Wiley makes it clear that one of the bases for a finding
of successorship is the need to grant some protection to employees from a sudden
transformation of their employer's business that results in the substitution of a new
legal entity, not bound by the collective-bargaining contract under contract law, as
the employer, but leaves intact significant elements of the employer's business. The
Court said there:
"The objectives of national labor policy, reflected in established
principles of federal law, require that the rightful prerogative of owners
independently to rearrange their businesses and even eliminate themselves
as employers be balanced by some protection to the employees from a
sudden change in the employment relationship. The transition from one
corporate organization to another will in most cases be eased and industrial
strife avoided if employees' claims continue to be resolved by arbitration
rather than by 'the relative strength ... of the contending forces'...." 376

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NLRB v. Burns Security
U.S. at 549.

But other language in Wiley makes it clear that the considerations favoring the
continuity of existing bargaining relationships are not without their limits:
"We do not hold that in every case in which the ownership or
corporate structure of an enterprise is changed the duty to arbitrate
survives. As indicated above, there may be cases in which the lack of any
substantial continuity of identity in the business enterprise before and after
a change would make a duty to arbitrate something imposed from without,
not reasonably to be found in the particular bargaining agreement and the
acts of the parties involved." 376 U.S. at 551.

The conflicting implications in these portions of the opinion in Wiley suggest
that employees are indeed entitled to a measure of protection against change in the
employing entity where the new employer continues to make use of tangible or
intangible assets used in carrying on the business of the first employer. They also
make clear that the successorship doctrine, carried to its ultimate limits, runs counter
to other equally well-established principles of labor law. Industrial peace is an
important goal of the Labor Management Relations Act. But Congress has time and
again refused to sacrifice free collective bargaining between representatives of the
employer for a system of compulsory arbitration. As the Court said in NLRB v.
Insurance Agents, 361 U.S. 477, 488 (1960):
"The mainstream of cases before the Board and in the courts reviewing its
orders, under the provisions fixing the duty to bargain collectively, is
concerned with insuring that the parties approach the bargaining table with
this attitude [good faith]. But apart from this essential standard of conduct,
Congress intended that the parties should have wide latitude in their
negotiations, unrestricted by any governmental power to regulate the
substantive solution of their differences."

And this Court has recently held that the Board itself may not compel one of the
parties in the collective-bargaining process to agree to any particular proposal of the
other. Conceivably the imposition of a system of compulsory arbitration, or the
granting of authority to the Board to insist that the parties at some point agree on
particular terms of a potential contract, would lessen the risk of industrial strife. But
Congress has plainly been unwilling to purchase industrial peace at the price of
substantial curtailment of free collective bargaining by the freely chosen
representatives of the employees with their employer.
There is also a natural tension between the constraints imposed on employers
by the Labor Management Relations Act, and the right of those employers in
competition with one another "independently to rearrange their businesses and even

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eliminate themselves as employers." Wiley, 376 U.S. at 549. An employer's ability
to compete in this market is affected, of course, by the terms of whatever collectivebargaining agreement he negotiates with the representative of his employees. Aside
from the direct influence on price brought about by the terms of a collectivebargaining agreement, the collective-bargaining process itself presents a certain cost
factor that may affect competition between employers in the market. The national
commitment to collective bargaining embodied in the Labor Management Relations
Act either requires or permits many of these constraints. But quite reasonable
expectations of the employees in a particular collective-bargaining unit may be
disappointed by a voluntary change in the condition of the employer that is quite
incapable of being remedied by any rational application of the successorship doctrine.
An employer is free to cease doing business, even though he chooses to do so wholly
because of anti-union animus. An employer may adamantly refuse, at the expiration
of the period covered by a collective-bargaining agreement, to again consent to a
particular term of the agreement that the employees regarded as significant. These
examples of permissible employer conduct for which the Labor Management
Relations Act provides no remedy, notwithstanding that the conduct results in the
disappointment of legitimate expectations of employees, suggest that the
successorship principle, like every other principle of law, has limits beyond which
it may not be expanded.
Wiley speaks in terms of a change in the "ownership or corporate structure of
an enterprise" as bringing into play the obligation of the successor employer to
perform an obligation voluntarily undertaken by the predecessor employer. But while
the principle enunciated in Wiley is by no means limited to the corporate merger
situation present there, it cannot logically be extended to a mere naked shifting of a
group of employees from one employer to another without totally disregarding the
basis for the doctrine. The notion of a change in the "ownership or corporate
structure of an enterprise" connotes at the very least that there is continuity in the
enterprise, as well as change; and that continuity be at least in part on the employer's
side of the equation, rather then only on that of the employees. If we deal with the
legitimate expectations of employees that the employer who agreed to the collectivebargaining contract perform it, we can require another employing entity to perform
the contract only when he has succeeded to some of the tangible or intangible assets
by the use of which the employees might have expected the first employer to have
performed his contract with them.
Phrased another way, the doctrine of successorship in the federal common
law of labor relations accords to employees the same general protection against
transfer of assets by an entity against which they have a claim as is accorded by other
legal doctrines to nonlabor-related claimants against the same entity. Nonlaborrelated claimants in such transfer situations may be protected not only by assumption

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agreements resulting from the self-interest of the contracting parties participating in
a merger or sale of assets, but also by state laws imposing upon the successor
corporation of any merger the obligations of the merged corporation and by bulk
sales acts found in numerous States. These latter are designed to give the nonlaborrelated creditor of the predecessor entity some claim, either as a matter of contract
right against the successor, or as a matter of property right, to charge the assets that
pass from the predecessor to the successor. The implication of Wiley is that the
federal common law of labor relations accords the same general type and degree of
protection to employees claiming under a collective-bargaining contract.
Cases from the courts of appeals have found successorship, consistently with
these principles, where the new employer purchases a part or all of the assets of the
predecessor employer; where the entire business is purchased by the new employer;
and where there is merely a change in the ownership interest in a partnership that
operates the employing entity. Other courts of appeals have, equally consistently
with these principles, refused to find a successorship where there have been no
contractual dealings between the two employers, and all that has taken place is a shift
in employees.
The rigid imposition of a prior-existing labor relations environment on a new
employer whose only connection with the old employer is the hiring of some of the
latter's employees and the performance of some of the work which was previously
performed by the latter, might well tend to produce industrial peace of a sort. But
industrial peace in such a case would be produced at a sacrifice of the determination
by the Board of the appropriateness of bargaining agents and of the wishes of the
majority of the employees which the Act was designed to preserve. These latter
principles caution us against extending successorship, under the banner of industrial
peace, step by step to a point where the only connection between the two employing
entities is a naked transfer of employees. Justice Holmes in Hudson Water Co. v.
McCarter, 209 U.S. 349, 355 (1908) summarized the general problem this way:
"All rights tend to declare themselves absolute to their logical
extreme. Yet all in fact are limited by the neighborhood of principles of
policy which are other than those on which the particular right is founded,
and which become strong enough to hold their own when a certain point is
reached."

Burns acquired not a single asset, tangible or intangible, by negotiation or
transfer from Wackenhut. It succeeded to the contractual rights and duties of the
plant protection service contract with Lockheed, not by reason of Wackenhut's
assignment or consent, but over Wackenhut's vigorous opposition. I think the only
permissible conclusion is that Burns is not a successor to Wackenhut. Following its
decision in this case, the Board concluded in Lincoln Private Police, 189 NLRB No.

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xix

103 (1971), that an employer of guards was not a successor, saying:
"Respondent, moreover, has operated as an entirely new and
independent business enterprise. It obtained its own operating capital,
purchased new uniforms, vehicles, and equipment, and occupied different
premises than Industrial. Additionally, there is no indication that there has
been any carryover of supervisory personnel from Industrial to
Respondent." 189 NLRB at __.

To conclude that Burns was a successor to Wackenhut in this situation, with
its attendant consequences under the Board's order imposing a duty to bargain with
the bargaining representative of Wackenhut's employees, would import unwarranted
rigidity into labor-management relations. The fortunes of competing employers
inevitably ebb and flow, and an employer who has currently gained production orders
at the expense of another may well wish to hire employees away from that other.
There is no reason to think that the best interests of the employees, the employers,
and ultimately of the free market are not served by such movement. Yet inherent in
the expanded doctrine of successorship that the Board urges in this case is the notion
that somehow the "labor relations environment" comes with the new employees if the
new employer has but obtained orders or business that previously belonged to the old
employer. The fact that the employees in the instant case continued to perform their
work at the same situs, while not irrelevant to the analysis, cannot be deemed
controlling. For the rigidity that would follow from the Board's application of
successorship to this case would not only affect competition between Wackenhut and
Burns, but would also affect Lockheed's operations. In effect, it would be saddled,
as against its competitors, with the disadvantageous consequences of a collectivebargaining contract unduly favorable to Wackenhut's employees, even though
Lockheed's contract with Wackenhut was set to expire at a given time. By the same
token, it would be benefited, at the expense of its competitors, as a result of a
"sweetheart" contract negotiated between Wackenhut and its employees.* From the
viewpoint of the recipient of the services, dissatisfaction with the labor relations
environment may stimulate a desire for change of contractors. Where the relation
between the first employer and the second is as attenuated as it is here, and the
reasonable expectations of the employees equally attenuated, the application of the
successorship doctrine is not authorized by the Labor Management Relations Act.
*

{This and the preceding sentence probably mean that an employer in Lockheed's
position might be advantaged or disadvantaged vis-a-vis its competitors, depending on the
nature of the labor contract between the union and the predecessor employer. If that
contract were overly generous to the workers, Lockheed would be paying too much for their
services (though this disadvantage would expire with the labor contract). If that contract
were unduly stingy to the workers (a sweetheart contract), Lockheed would be getting their
services below the market rate. — ed.}

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NLRB v. Burns Security

This is not to say that Burns would be unilaterally free to mesh into its
previously recognized Los Angeles County bargaining unit a group of employees
such as were involved here who already have designated a collective-bargaining
representative in their previous employment. Burns's actions in this regard would be
subject to the commands of the Labor Management Relations Act, and to the
regulation of the Board under proper application of governing principles. The
situation resulting from the addition of a new element of the component work force
of an employer has been dealt with by the Board in numerous cases, and various
factors are weighed in order to determine whether the new workforce component
should be itself a separate bargaining unit, or whether the employees in this
component shall be "accreted" to the bargaining unit already in existence. Had the
Board made the appropriate factual inquiry and determinations required by the Act,
such inquiry might have justified the conclusion that Burns was obligated to
recognize and bargain with the union as a representative of its employees at the
Lockheed facility.
But the Board, instead of applying this type of analysis to the union's
complaints here, concluded that because Burns was a "successor" it was absolutely
bound to the mold that had been fashioned by Wackenhut and its employees at
Lockheed. Burns was thereby precluded from challenging the designation of
Lockheed as an appropriate bargaining unit for a year after the original certification.
I am unwilling to follow the Board this far down the successorship road, since
I believe to do so would substantially undercut the principle of free choice of
bargaining representatives by the employees and designation of the appropriate
bargaining unit by the Board that are guaranteed by the Act.

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xxi

QUESTIONS FOR REFLECTION
1. How should union support among the predecessor's
employees be measured?
For example, suppose the
predecessor employed 100 workers; 60 were members of the
union, and 40 paid agency shop fees as required by the
collective bargaining agreement. The successor hires 50
former employees and 40 new employees. We could assume
that all of the predecessor's employees support the
union, in which event the union would have majority
support among the successor's workers. We could assume
that the predecessor's employees supported the union in
proportion to the union's membership, in which event the
union would have the support of (50 x .6 =) 30 of the
successor's employees — not a majority of the new work
force. Or we hold a representational election. Which
approach should we use?
2. Suppose a successor employer purposefully refuses
to hire a predecessor's workers in order to avert the
obligation to bargain with the union. Would this be an
unfair labor practice? If so, what should the remedy be?
3. When a successor buys a predecessor, is the
predecessor absolved of existing contractual obligations
to other businesses?
If not, why should both the
predecessor and the successor be absolved of contractual
obligations to the union?

Ù

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452

REMEDIES FOR REFUSING TO BARGAIN
Introduction
When an individual is victimized by an unfair labor
practice, the Board must order the respondent to cease
and desist from the illegal conduct, and, if the
individual has lost wages or seniority, the Board may
also order the respondent to make the victim whole for
these loses. The remedies for a refusal to bargain are
parallel.
The respondent is always ordered to cease
violating the law, in other words, to bargain in good
faith in the future. If specific losses can be proved,
the Board may order the respondent to compensate the
victims. For example, if an employer unilaterally cuts
wages from eight dollars an hour to seven, the Board may
order the employer to pay the eight-dollar rate in the
future (at least until bargaining can occur) and to pay
the workers one dollar for each hour they worked at the
seven dollar rate.
Another common example — and a more difficult one to
deal with — is the employer who violates the law by
refusing to bargain in good faith during negotiations.
The topic is often wages. What should the remedy be for
this violation? A cease-and-desist order is appropriate,
of course, but what about money?
Do workers lose
anything when their employer refuses to bargain with
their union, and, if so, can the loss be measured with
reasonable accuracy? Prior to Ex-Cell-O, the Board did
not award compensation in this situation.
It will help the student to keep in mind the
procedural context in which cases like Ex-Cell-O arise.
If the union wins a representation election, the employer
may object to the result on various grounds.
For
example, the employer may believe that the bargaining
unit sought by the union is not appropriate, or that
ineligible persons were allowed to vote in the election
or eligible persons were prevented from voting, or that
irregularities tainted the pre-election campaign and
interfered with the workers' freedom of choice.
The
regional director rules on the employer's objection. If
the employer is not satisfied with the director's ruling,
it may be appealed to the Labor Board. Decisions of the
Board in representation cases are considered to be
administrative rulings and, therefore, may not be
appealed to the courts. Accordingly, the decision of the
Board is final — in theory.

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Ex-Cell-O

In practice, however, if the Board denies the
employer's appeal, the employer may refuse to bargain
with the union. The union must then file an unfair labor
practice charge against the employer.a When the regional
office of the Board investigates the charge, it is found
to be valid; after all, the employer's objection has
already been overruled by both the region and the Board.
So the regional director issues an unfair labor practice
complaint. The employer spurns all efforts to settle the
case, and a hearing is held before an administrative law
judge (formerly known as a trial examiner). The employer
defends on the ground that the election was invalid. The
administrative law judge, knowing that the Board has
already found the election was proper, summarily rules
against the employer. The employer appeals to the Labor
Board.
The Board, of course, denies the appeal and
orders the employer to bargain with the union. The order
of the Board is not self-enforcing, and the employer
refuses to obey it.
The General Counsel must then
petition the Court of Appeals to enforce the Board's
order. At the hearing before the court, the employer
once again argues that the election was invalid; and the
court rules on this issue. Thus, the Board's decision on
the representation issue, which is theoretically not
appealable, is in fact appealed. If the court disagrees
with the Board's decision, the election is invalidated
and the employer does not have to bargain with the union.
If the court agrees with Board's decision, the employer
is ordered to bargain with the union.
Ex-Cell-O followed this pattern through the Board's
ruling on the unfair labor practice charge.
Then the
case got interesting.
Instead of requesting only the
usual cease-and-desist order, the General Counsel asked
for an order that the employer pay the workers the
additional wages the union would have secured for them
via collective bargaining. The administrative law judge
recommended this remedy, and the Board focused on whether
such a remedy was appropriate.

a
Alternatively, the union could strike in protest of the
employer's unfair labor practice and rely on economic power to
compel bargaining.

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iii

Ex-Cell-O Corporation
185 NLRB 107 (1970)

{The union won a representation election on October 22, 1964. The employer
objected to the results on the ground that the union had made misrepresentations
before the election. The regional director overruled the objections on December 29,
1964, and the Board affirmed this ruling on October 28, 1965. The employer then
refused to bargain with the union in order to secure judicial review of the Board's
decision: whereupon, the union accused the employer of an unfair labor practice, and
the Board issued a complaint on November 23, 1965. A trial was held on the
complaint in June and July of 1966.}
... On March 2, 1967, the Trial Examiner issued his Decision, finding that the
Company had unlawfully refused to bargain in violation of Section 8(a)(5) and (1) of
the Act and recommended the standard bargaining order as a remedy. In addition, the
Trial Examiner ordered the Company to compensate its employees for monetary
losses incurred as a result of its unlawful conduct.
It is not disputed that Respondent refused to bargain with the Union, and we
hereby affirm the Trial Examiner's conclusion that Respondent thereby violated
Section 8(a)(1) and (5) of the Act. The compensatory remedy which he recommends,
however, raises important issues concerning the Board's powers and duties to fashion
appropriate remedies in its efforts to effectuate the policies of the National Labor
Relations Act.
It is argued that such a remedy exceeds the Board's general statutory powers.
In addition, it is contended that it cannot be granted because the amount of employee
loss, if any, is so speculative that an order to make employees whole would amount
to the imposition of a penalty. And the position is advanced that the adoption of this
remedy would amount to the writing of a contract for the parties, which is prohibited
by Section 8(d).
We have given most serious consideration to the Trial Examiner's
recommended financial reparations Order, and are in complete agreement with his
finding that current remedies of the Board designed to cure violations of Section
8(a)(5) are inadequate. A mere affirmative order that an employer bargain upon
request does not eradicate the effects of an unlawful delay of 2 or more years in the
fulfillment of a statutory bargaining obligation. It does not put the employees in the
position of bargaining strength they would have enjoyed if their employer had
immediately recognized and bargained with their chosen representative. It does not
dissolve the inevitable employee frustration or protect the Union from the loss of
employee support attributable to such delay. The inadequacy of the remedy is all the

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Ex-Cell-O

more egregious where, as in the recent NLRB v. Tiidee Products, Inc. case,f the court
found that the employer had raised "frivolous" issues in order to postpone or avoid
its lawful obligation to bargain. [As a result, the employer was ordered to
compensate the union and the Board for their litigation expenses.] We have weighed
these considerations most carefully. For the reasons stated below, however, we have
reluctantly concluded that we cannot approve the Trial Examiner's Recommended
Order that Respondent compensate its employees for monetary losses incurred as a
consequence of Respondent's determination to refuse to bargain until it had tested in
court the validity of the Board's certification.
Section 10(c) of the Act directs the Board to order a person found to have
committed an unfair labor practice to cease and desist and "to take such affirmative
action including reinstatement of employees with or without back pay, as will
effectuate the policies of this Act." This authority, as our colleagues note with full
documentation, is extremely broad and was so intended by Congress. It is not so
broad, however, as to permit the punishment of a particular respondent or a class of
respondents. Nor is the statutory direction to the Board so compelling that the Board
is without discretion in exercising the full sweep of its power, for it would defeat the
purposes of the Act if the Board imposed an otherwise proper remedy that resulted
in irreparable harm to a particular respondent and hampered rather than promoted
meaningful collective bargaining. Moreover, as the Supreme Court recently
emphasized, the Board's grant of power does not extend to compelling agreement.
It is with respect to these three limitations upon the Board's power to remedy a
violation of Section 8(a)(5) that we examine the UAW's requested remedy in this
case.
The Trial Examiner concluded that the proposed remedy was not punitive, that
it merely made the employees partially whole for losses occasioned by the
Respondent's refusal to bargain, and was much less harsh than a back pay order for
discharged employees, which might require the Respondent to pay wages to these
employees as well as their replacements. Viewed solely in the context of an
assumption of employee monetary losses resulting directly from the Respondent's
violation of Section 8(a)(5), as finally determined in court, the Trial Examiner's
conclusion appears reasonable. There are, however, other factors in this case which
provide counterweights to that rationale. In the first place, there is no contention that
this Respondent acted in a manner flagrantly in defiance of the statutory policy. On
the contrary, the record indicates that this Respondent responsibly fulfills its legally
established collective-bargaining obligations. It is clear that Respondent merely
sought judicial affirmance of the Board's decision that the election of October 22,
1964, should not be set aside on the Respondent's objections. In the past, whenever
an employer has sought court intervention in a representation proceeding, the Board
has argued forcefully that court intervention would be premature, that the employer
had an unquestioned right under the statute to seek court review of any Board order

f

426 F.2d 1243 (D.C. Cir. 1970).

Labor and Employment Law

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v

before its bargaining obligation became final. Should this procedural right in 8(a)(5)
cases be tempered by a large monetary liability in the event the employer's position
in the representation case is ultimately found to be without merit? Of course, an
employer or a union which engages in conduct later found in violation of the Act,
does so at the peril of ultimate conviction and responsibility for a make-whole
remedy. But the validity of a particular Board election tried in an unfair labor
practice case is not, in our opinion, an issue on the same plane as the discharge of
employees for union activity or other conduct in flagrant disregard of employee
rights. There are wrongdoers and wrongdoers. Where the wrong in refusing to
bargain is, at most, a debatable question, though ultimately found a wrong, the
imposition of a large financial obligation on such a respondent may come close to a
form of punishment for having elected to pursue a representation question beyond the
Board and to the courts. The desirability of a compensatory remedy in a case
remarkably similar to the instant case was recently considered by the Court of
Appeals for the District of Columbia in United Steelworkers [Quality Rubber
Manufacturing Company, Inc.] v. NLRB, 430 F.2d 519. There the court,
distinguishing Tiidee Products, indicated that the Board was warranted in refusing to
grant such a remedy in an 8(a)(5) case where the employer "desired only to obtain an
authoritative determination of the validity of the Board's decision." It is not clear
whether the court was of the opinion that the requested remedy was within the
Board's discretion or whether it would have struck down such a remedy as punitive
in view of the technical nature of the respondent's unfair labor practice. In any event,
we find ourselves in disagreement with the Trial Examiner's view that a
compensatory remedy as applied to the Respondent in the instant case is not punitive
"in any sense of the word."
In Tiidee Products the court suggested that the Board need not follow a
uniform policy in the application of a compensatory remedy in 8(a)(5) cases. Indeed,
the court noted that such uniformity in this area of the law would be unfair when
applied "to unlike cases." The court was of the opinion that the remedy was proper
where the employer had engaged in a "manifestly unjustifiable refusal to bargain" and
where its position was "palpably without merit." As in Quality Rubber, the court in
Tiidee Products distinguished those cases in which the employer's failure to bargain
rested on a "debatable question." With due respect for the opinion of the Court of
Appeals for the District of Columbia, we cannot agree that the application of a
compensatory remedy in 8(a)(5) cases can be fashioned on the subjective
determination that the position of one respondent is "debatable" while that of another
is "frivolous." What is debatable to the Board may appear frivolous to a court, and
vice versa. Thus the debatability of the employer's position in an 8(a)(5) case would
itself become a matter of intense litigation.
We do not believe that the critical question of the employer's motivation in
delaying bargaining should depend so largely on the expertise of counsel, the accident
of circumstances, and the exigencies of the moment.
In our opinion, however, the crucial question to be determined in this case

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relates to the policies which the requested order would effectuate. The statutory policy
as embodied in Section 8(a)(5) and (d) of the Act was considered at some length by
the Supreme Court in H. K. Porter Co., Inc. v. NLRB, 397 U.S. 99.a There the Court
held that the Board had power to require employers and employees "to negotiate" but
that the Board was without power to compel a company or a union "to agree to any
substantive contractual provision of a collective bargaining agreement." The purpose
of the act, the Court held, was to ensure that employers and their employees "work
together to establish mutually satisfactory conditions." The Court noted that Congress
was aware that agreement between employers and unions might not always be reached,
that agreement might in some cases be impossible, or thwarted by strikes and lockouts.
But it was never intended, the Court held, that the Government in such cases step in
and become a party to the negotiations. Recognizing that the Board's remedial powers
might be insufficient to cope with important labor problems, the Supreme Court
nevertheless struck down an order requiring the respondent employer involuntarily to
agree to a specific contractual provision. It was the job of Congress, not the Board or
the courts, Justice Black wrote, "to decide when and if it is necessary to allow
governmental review of proposals for collective bargaining agreements and
compulsory submission to one side's demands."
It is argued that the instant case is distinguishable from H. K. Porter in that
here the requested remedy merely would require an employer to compensate
employees for losses they incurred as a consequence of their employer's failure to
agree to a contract he would have agreed to if he had bargained in good faith. In our
view, the distinction is more illusory than real. The remedy in H. K. Porter operates
prospectively to bind an employer to a specific contractual term. The remedy in the
instant case operates retroactively to impose financial liability upon an employer
flowing from a presumed contractual agreement. The Board infers that the latter
contract, though it never existed and does not and need not exist, was denied existence
by the employer because of his refusal to bargain. In either case the employer has not
agreed to the contractual provision for which he must accept full responsibility as
though he had agreed to it. Our colleagues contend that a compensatory remedy is
not the "writing of a contract" because it does not "specify new or continuing terms
of employment and does not prohibit changes in existing terms and conditions." But
there is no basis for such a remedy unless the Board finds, as a matter of fact, that a
contract would have resulted from bargaining. The fact that the contract, so to speak,
is "written in the air" does not diminish its financial impact upon the recalcitrant
employer who, willy nilly, is forced to accede to terms never mutually established by
the parties. Despite the admonition of the Supreme Court that Section 8(d) was
intended to mean what it says, i.e., that the obligation to bargain "does not compel
either party to agree to a proposal or require the making of a concession," one of the
parties under this remedy is forced by the Government to submit to the other side's
The Board found the employer had refused to bargain over one specific topic,
namely, the union's request for a dues checkoff clause. As a remedy, the Board
ordered the employer to accept a checkoff clause. The Supreme Court affirmed the
finding of a refusal to bargain, but refused to enforce the remedy. — ed.}
a{

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demands. It does not help to argue that the remedy could not be applied unless there
was substantial evidence that the employer would have yielded to these demands
during bargaining negotiations. Who is to say in a specific case how much an
employer is prepared to give and how much a union is willing to take? Who is to say
that a favorable contract would, in any event, result from negotiations? And it is only
the employer of such good will as to whom the Board might conclude that he, at least,
would have given his employees a fair increase, who can be made subject to a
financial reparations order; should such an employer be singled out for the imposition
of such an order? To answer these questions the Board would be required to engage
in the most general, if not entirely speculative, inferences to reach the conclusion that
employees were deprived of specific benefits as a consequence of their employer's
refusal to bargain.
Much as we appreciate the need for more adequate remedies in 8(a)(5) cases,
we believe that, as the law now stands, the proposed remedy is a matter for Congress,
not the Board. In our opinion, however, substantial relief may be obtained
immediately through procedural reform, giving the highest possible priority to 8(a)(5)
cases combined with full resort to the injunctive relief provisions of Section 10(j) and
(e) of the Act.
Members MCCULLOCH and BROWN, dissenting in part:
Although concurring in all other respects in the Decision and Order of the
Board, we part company with our colleagues on the majority in that we would grant
the compensatory remedy recommended by the Trial Examiner. Unlike our
colleagues, we believe that the Board has the statutory authority to direct such relief
and that it would effectuate the policies of the Act to do so in this case.
Section 10(c) of the act directs the Board to remedy unfair labor practices by
ordering the persons committing them to cease and desist from their unlawful conduct
"and to take such affirmative action including reinstatement of employees with or
without back pay, as will effectuate the policies of the Act...." The phrase "affirmative
action" is nowhere qualified in the statute, except that such action must "effectuate the
policies of this Act," and indicates the intent of Congress to vest the Board with
remedial powers coextensive with the underlying policies of the law which is to be
enforced. This provision "did not pass the Wagner Act Congress without objection
to the uncontrolled breadth of this power."11
But the broad language survived the challenge.
...
The declared policy of the Act is to promote the peaceful settlement of disputes

11

Local 60, Carpenters v. NLRB, 365 U.S. 651 (concurring opinion).

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by encouraging collective bargaining and by protecting employee rights. To
accomplish this purpose, Board remedies for violations of the Act should, on one
hand, have the effect of preventing the party in violation from so acting in the future,
and from enjoying any advantage he may have gained by his unlawful practices. But
they must also presently dissipate the effects of violations on employee rights in order
that the employees so injured receive what they should not have been denied. A Board
order so devised is to be enforced by the courts "unless it can be shown that the order
is a patent attempt to achieve ends other than those which can fairly be said to
effectuate the policies of the Act."22
Deprivation of an employees' statutory rights is often accompanied by serious
financial injury to him. Where this is so, an order which only guarantees the exercise
of his rights in the future often falls far short of expunging the effects of the unlawful
conduct involved. Therefore, one of the Board's most effective and well-established
affirmative remedies for unlawful conduct is an order to make employees financially
whole for losses resulting from violations of the Act. Various types of compensatory
orders have been upheld by the Supreme court in the belief that "Making the workers
whole for losses suffered on account of an unfair practice is part of the vindication of
the public policy which the Board enforces."24 The most familiar of these is the back
pay order used to remedy the effect of employee discharges found to be in violation
of Section 8(a)(3) of the Act. While the cease-and-desist and reinstatement orders
remedy the denial of the aggrieved employee's rights and protect the prospective
exercise thereof, the back pay order repairs the financial losses which have been
suffered, and, thus making the employee whole, serves to recreate, as fully as possible,
the conditions and relationships that would have been, had there been no unfair labor
practice.
...
The Board has already recognized in certain refusal-to-bargain situations that
the usual bargaining order is not sufficient to expunge the effect of an employer's
unlawful and protracted denial of its employees' right to bargain. Though the
bargaining order serves to remedy the loss of legal right and protect its exercise in the
future, it does not remedy the financial injury which may also have been suffered. In
a number of situations the Board has ordered the employer who unlawfully refused to
bargain to compensate its employees for their resultant financial losses. Thus, some
employers unlawfully refuse to sign [a written contract after an oral agreement has
been reached]. The Board has in these cases ordered the employer to execute the
agreement previously reached and, according to its terms, to make whole the
employees for the monetary losses suffered because of the unlawful delay in its
effectuation.

22

Fibreboard Paper Product Corp. v. NLRB, 379 U.S. 203, 216.

24

Phelps Dodge v. NLRB, 313 U.S. 177 at 197.

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ix

Similarly, in American Fire Apparatus Co.,36 the employer {had awarded
Christmas bonuses for several years before the union organized the plant. The first
collective bargaining agreement, signed in September, did not mention bonuses. The
following Christmas, the employer} violated Section 8(a)(5) by unilaterally
discontinuing payment of Christmas bonuses, and the Board concluded that only by
requiring the bonuses to be paid could the violation be fully remedied. The Court of
Appeals for the Eighth Circuit in enforcing the order commented, "Nor do we believe
that the difficulty in computing the precise amount due each employee is a substantial
reason for modifying the Board's order." In Leeds & Northrup Co. v. NLRB, 391 F.2d
874, which involved a related problem, the Court of Appeals for the Third Circuit
reached a similar conclusion. {The employer had implemented a profit-sharing plan
before the union organized the plant. Several collective bargaining agreements did not
mention the plan, and the company renewed the plan annually. Then, during the term
of an agreement,} the employer unilaterally altered its formula for computing its
annual profitsharing bonus. The Board found that a violation of Section 8(a)(5) had
occurred and ordered payment to the employees of the difference between what they
had received and the amount they would have been paid under the prior method of
computation. In enforcing that order, the court stated:
The Board's back pay award in this case is supportable on the ground that the
union might have successfully resisted all or a portion of the reduction in its
share of profits had it been afforded an opportunity to bargain, and the
employees should not be left in a worse position than they might have
enjoyed if the union had been given the opportunity to bargain. While it is
true that a retroactive order might afford the employees a better position than
the union's bargaining might have achieved, the Board can hardly be said to
be effectuating policies beyond the purposes of the Act by resolving the
doubt against the party who violated the Act. Retroactive enforcement must
always contain in it some element of hardship on the employer, but a failure
to grant back pay imposes at least an equal hardship on the employees.

And in Fibreboard Paper Products Corp., {the agreement between the
employer and the union covered maintenance and other jobs in a plant. While the
agreement was in force} the employer unilaterally contracted out its maintenance
operations in violation of Section 8(a)(5). The Board concluded that an order to
bargain about this decision could not, by itself, adequately remedy the effects of the
violation. It further ordered the employer to reinstate the employees and to make them
whole for any loss of earnings suffered on account of the unlawful conduct. The
Supreme Court upheld the compensatory remedy and stated, "There has been no
showing that the Board's order restoring the status quo ante to insure meaningful
bargaining is not well designed to promote the policies of the Act."38

36

160 NLRB 1318.

38

379 U.S. at 216.

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The question now before us is whether a reimbursement order is an appropriate
remedy for other types of unlawful refusals to bargain. On the basis of the foregoing
analysis regarding Section 10(c), we believe that the Board has the power to order this
type of relief. Further, for the reasons set forth herein, we are of the view that the
compensatory remedy is appropriate and necessary in this case to effectuate the
policies of the act.
An employer's unlawful refusal to bargain completely frustrates the purposes
of the Act, as it directly contravenes the congressional policy of encouraging collective
bargaining and also denies the statutory right of the employees to bargain collectively
through their chosen representative. It is clear from the Act itself and from its
legislative history that immediate recognition of this right was contemplated; and
partly to achieve this goal Congress, in originally enacting the Act in 1935, excluded
Board orders in certification proceedings under Section 9(c) from direct review in the
courts. This judgment was reaffirmed in 1947 when a conference committee rejected
a proposed House amendment which would have permitted any interested persons to
obtain review immediately after certification because "such provision would permit
dilatory tactics in representation proceedings."41 Very often, as noted by the Supreme
Court, the procedural delays necessary to make a fair determination on charges of
unfair labor practices have the effect of postponing indefinitely the performance of
employers' statutory duty to bargain, thus depriving employees of their legal right to
such collective-bargaining representation. The Board has taken various steps in an
effort to relieve the wrongful effects of such delay. Thus, in Frank Bros. Company,
for example, the Board issued a bargaining order even though the union had lost its
majority before the issuance of the complaint alleging the refusal to bargain, and the
Supreme Court upheld this action, commenting that to order further elections would
be "providing employers a chance to profit from a stubborn refusal to abide by the law.
That the Board was within its statutory authority in adopting the remedy which it had
adopted to foreclose the probability of such frustrations of the Act seems too plain for
anything but statement."44
The present remedies for unlawful refusals to bargain often fall short, as in the
present case, of adequately protecting the employees' right to bargain. Recent court
decisions, congressional investigations, and scholarly studies have concluded that, in
the present remedial framework, justice delayed is often justice denied.
In NLRB v. Tiidee Products, Inc., the Court of Appeals for the District of
Columbia Circuit recently stated:46
While [the Board's usual bargaining] remedy may provide some bargaining
41

Statement by Senator Taft, 93 Cong. Rec. 6444 (1947).

44

321 U.S. 702 at 705....

46

426 F.2d 1243.

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from the date of the order's enforcement, it operates in a real sense so as to
be counter productive, and actually to reward an employer's refusal to
bargain during the critical period following a union's organization of his
plant. The obligation of collective bargaining is the core of the Act, and the
primary means fashioned by Congress for securing industrial peace.
... Employee interest in a union can wane quickly as working
conditions remain apparently unaffected by the union or collective
bargaining. When the company is finally ordered to bargain with the union
some years later, the union may find that it represents only a small fraction
of the employees. Thus the employer may reap a second benefit from his
original refusal to comply with the law: He may continue to enjoy lower
labor expenses after the order to bargain either because the union is gone or
because it is too weak to bargain effectively.

A study by Professor Philip Ross shows that a contract is signed in most
situations where the employer honors its duty to bargain without delay, but that the
chance of a contract being signed is cut in half if the case must go to court
enforcement of a bargaining order.48 In the interim, of course, the employees are
deprived of their rightful union representation and the opportunity to bargain over their
terms and conditions of employment, while at the same time their employers may gain
a monetary advantage over their competitors who have complied with their legal duty.
The present case is but another example of a situation where a bargaining order
by itself is not really adequate to remedy the effects of an unlawful refusal to bargain.
The Union herein requested recognition on August 3, 1964, and proved that it
represented a majority of employees 2½ months later in a Board-conducted election.
Nonetheless, since October 1965 the employer, by unlawfully refusing to bargain with
the Union, has deprived its employees of their legal right to collective bargaining
through their certified bargaining representative.50 While a bargaining order at this
48

Ross, The Government as a Source of Union Power 251.

We find no merit in the Respondent's contention in the present case that, at least in
a "technical" refusal to bargain situation, a compensatory remedy would penalize it for
obtaining judicial review of the Board's representation proceedings. In Consolo v.
Federal Maritime Commission, 383 U.S. 607 at 624, 625, the Court rejected the same
contention. Relying on a case involving the Board (NLRB v. Electric Vacuum Cleaner
Company, Inc., 315 U.S. 685) the Court concluded, "At any rate it has never been the law
that a litigant is absolved from liability for that time during which his litigation is
pending" (id. at 624-625) and noted (at 625) that the time of appeal allowed the
respondent to continue its unlawful conduct [and thus to] continue to injure the petitioner.
That such a remedy would include the entire amount lost by the wronged party, instead
of being reduced by the amount accruing while the violator was contesting the issue, no
more makes the remedy penal in character under this Act than it does elsewhere. "The
litigant must pay for his experience, like others who have tried and lost." Life and
Casualty Ins. Co. v. McCray, 291 U.S. 566, 575.
50

(continued...)

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time, operating prospectively, may insure the exercise of that right in the future, it
clearly does not repair the injury to the employees here, caused by the Respondent's
denial of their rights during the past 5 years.
In these refusal-to-bargain cases there is at least a legal injury. Potential
employee losses incurred by an employer's refusal to bargain in violation of the Act
are not limited to financial matters such as wages. Thus, it is often the case that the
most important employee gains arrived at through collective bargaining involve such
benefits as seniority, improved physical facilities, a better grievance procedure or a
right to arbitration. Therefore, even the remedy we would direct herein is not
complete, limited as it is to only some of the monetary losses which may be measured
or estimated. The employees would not be made whole for all the losses incurred
through the employer's unfair labor practice. But, where the legal injury is
accompanied by financial loss, the employees should be compensated for it. The
compensatory period would normally run from the date of the employer's unlawful
refusal to bargain until it commences to negotiate in good faith, or upon the failure of
the Union to commence negotiations, within 5 days of the receipt of the Respondent's
notice of its desire to bargain with the Union, although here a later starting date could
be used because this remedy would be a substantial departure from past practices.
Further, the Board could follow its usual procedure of providing a general
reimbursement order with the amount, if any, to be determined as part of the
compliance procedure.
This type of compensatory remedy is in no way forbidden by Section 8(d). It
would be designed to compensate employees for injuries incurred by them by virtue
of the unfair labor practices and would not require the employer to accept the measure
of compensation as a term of any contract which might result from subsequent
(...continued)

There is no question of the right of an employer to test the legal propriety of a
Board certification or to test its legal position respecting any issue of law or fact upon
which a Board bargaining order is predicated, but it should not thereby realize benefits
not usually flowing from such a proceeding. In other words, should an employer choose
to await court action and if its legal position be sustained, it would not only be absolved
of the duty to bargain, but also of any monetary remedy arising out of the order
contemplated herein; if, on the other hand, an employer be found to have rested its refusal
to bargain on an erroneous view of law or fact, any loss to employees incurred by its
continued adherence to that error should be borne by that employer and not by its
employees. That is the risk taken by all litigants.
The employer's argument for tolling the compensatory period during the time he
contests the violation is contrary to the policy of the Act in fostering the prompt
commencement of collective bargaining, a policy shown explicitly in the denial of
judicial review of the Board's representation proceedings. To allow the employer to avoid
making his employees whole for the period bargaining was delayed by his litigating a
mistaken view of the law would encourage such delay in the areas in which Congress
particularly deemed speed to be essential.

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collective bargaining. The remedy contemplated in no way "writes a contract"
between the employer and the union, for it would not specify new or continuing terms
of employment and would not prohibit changes in existing terms and conditions. All
of these would be left to the outcome of bargaining, the commencement of which
would terminate Respondent's liability.
Furthermore, this compensatory remedy is not a punitive measure. It would
be designed to do no more than reimburse the employees for the loss occasioned by
the deprivation of their right to be represented by their collective-bargaining agent
during the period of the violation. The amount to be awarded would be only that
which would reasonably reflect and be measured by the loss caused by the unlawful
denial of the opportunity for collective bargaining. Thus, employees would be
compensated for the injury suffered as a result of their employer's unlawful refusal to
bargain, and the employer would thereby be prohibited from enjoying the fruits of its
forbidden conduct — to the end, as embodied in the Act, that collective bargaining be
encouraged and the rights of the injured be protected. It is well settled that a
reimbursement order is not a redress for a private wrong, since the Act does not create
a private cause of action for damages, but is a remedy created by statute and designed
to aid in the achievement of the public policy embodied in the Act. Accordingly, as
the reimbursement order sought herein is meant to enforce public policy, the Board's
exercise of its discretion in ordering such a remedy would not be strictly confined to
the same considerations which govern comparable awards in either equity courts or
damage awards in legal actions. In the first place, it is well established that, where the
defendant's wrongful act prevents exact determination of the amount of damage, he
cannot plead such uncertainty in order to deny relief to the injured person, but rather
must bear the risk of the uncertainty which was created by his own wrong. The Board
is often faced with the task of determining the precise amount of a make-whole order
where the criteria are less than ideal, and has successfully resolved the questions
presented.62
The problem most frequently arises when we must determine the amount of back
pay due to unlawfully discharged employees. As we recently stated in connection
with this issue (The Buncher Company, 164 NLRB 340):
62

In solving many of the problems which arise in back pay cases, the
Board occasionally is required to adopt formulas which result in back
pay determinations that are close approximations because no better
basis exists for determining the exact amount due. However, the fact
that the exact amount due is incalculable is no justification for
permitting the Respondent to escape completely his legal obligation
to compensate the victims of his discriminatory actions for the loss of
earnings which they suffered. In general, courts have acknowledged
that in solving such back pay problems, the Board is vested with wide
discretion in devising procedures and methods which will effectuate
the purposes of the Act and [have] generally limited [their] review to
whether a method selected was "arbitrary or unreasonable in the
(continued...)

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But even if a reimbursement order were judged by legal or equitable principles
regarding damages, the remedy would not be speculative. It is well established that
the rule which precludes recovery of "uncertain damages" refers to uncertainty as to
the fact of injury, rather than to the amount. Where, as here, the employer has
deprived its employees of a statutory right, there is by definition a legal injury suffered
by them, and any uncertainty concerns only the amount of the accompanying
reimbursable financial loss.
From a remedial viewpoint, the present type of refusal to bargain differs from
other 8(a)(5) situations where reimbursement has been ordered only in the method of
proof needed to calculate the amount of financial loss, if any, which the employees
may have suffered. In the cases involving employer refusals to sign agreements
already reached, the employees' losses were compensated according to the terms of
such agreement for the length of the delay in effectuation caused by the employer.
Where the employer unilaterally discontinued a Christmas bonus, the amount of
employee loss was determined by utilizing the past records of bonuses given and the
methods by which they were previously calculated. In a recent case,66 a union and
multiemployer bargaining association successfully bargained to a contract. The
employer subsequently refused to sign the contract and attempted to withdraw from
the multiemployer bargaining association. The Board found a violation of Section
8(a)(5) and ordered the employer to cease and desist from unfair labor practices, to
sign the contract, and to pay the fringe benefits provided for in that contract. The
court of appeals had agreed with the Board's finding of violation and its order to cease
and desist from violation and to sign the contract, but refused to enforce that part of
the Board's order requiring the Respondent to pay the contractual fringe benefits as
being outside the Board's powers. The Supreme Court, on writ of certiorari, affirmed
the Board order in toto, finding that the provision ordering the Respondent to pay the
contractual fringe benefits was within the Board's remedial power granted in Section
10(c) of the Act. In situations of unlawful unilateral discontinuance of part of an
operation, the compensation is based upon the wage rates previously earned by the
injured employees. It may be noted that the Supreme Court upheld the order in
Fibreboard even though the amount of actual loss might be deemed speculative
because it was not shown that, had the employer bargained lawfully, it would not have
contracted out the work and discharged the employees.
As previously indicated, the injury suffered by employees is predicated upon
the employees' being deprived of the right to collective bargaining as required by the
Act. The burden of proof would be upon the General Counsel at the compliance stage
to translate that legal injury into terms of measurable financial loss, if any, which the
employees might reasonably be found to have suffered as a consequence of that injury.
62

66

(...continued)
circumstances involved," or whether in determining the amount, a
"rational basis" was utilized.

NLRB v. Joseph T. Strong dba Strong Roofing, 393 U.S. 357.

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xv

A showing at the compliance stage by the General Counsel or Charging Party
by acceptable and demonstrable means that the employees could have reasonably
expected to gain a certain amount of compensation by bargaining would establish a
prima facie loss, and the Respondent would then be afforded an opportunity to rebut
such a showing. This might be accomplished, for example, by adducing evidence to
show that a contract would probably not have been reached, or that there would have
been less or no increase in compensation as a result of any contract which might have
been signed.
Accordingly, uncertainty as to the amount of loss does not preclude a makewhole order proposed here, and some reasonable method or basis of computation can
be worked out as part of the compliance procedure. These cannot be defined in
advance, but there are many methods for determining the measurable financial gain
which the employees might reasonably have expected to achieve, had the Respondent
fulfilled its statutory obligation to bargain collectively. The criteria which prove valid
in each case must be determined by what is pertinent to the facts. Nevertheless, the
following methods for measuring such loss do appear to be valuable, although these
are neither exhaustive nor exclusive. Thus, if the particular employer and union
involved have contracts covering other plants of the employer, possibly in the same
or a relevant area, the terms of such agreements may serve to show what the
employees could probably have obtained by bargaining. The parties could also make
comparisons with compensation patterns achieved through collective bargaining by
other employees in the same geographic area and industry. Or the parties might
employ the national average percentage changes in straight time hourly wages
computed by the Bureau of Labor Statistics.
And there [are] other available significant data which may be utilized to
indicate the value of the lost collective-bargaining opportunity. For example, the
Bureau of Labor Statistics conducts an annual study of union wage scales in the
building construction, local transit, local trucking, and printing industries. This study
covers all local unions in 68 selected cities. The Bureau also issues monthly reports
of wage and benefit changes under collective-bargaining agreements in manufacturing
establishments employing 1,000 or more production and related workers. A related
survey of wage developments in smaller manufacturing units covers both unionized
and nonunionized establishments. There are other Bureau of Labor Statistics facts
which may bear on the remedy. One of significance is the periodic wage and benefits
survey of 50 manufacturing and 20 nonmanufacturing industries. The data collected
in this program report on about 20 million employees on both a national and regional
basis, usually with listings by size of establishment, size of community, collectivebargaining coverage, and type of product or plant group. Another Bureau of Labor
Statistics program periodically gathers wage and benefits data on a Standard
Metropolitan Statistical Area basis for more than 60 occupational categories in all but
the smallest establishments. Depending on the type of industry, these surveys cover
from 8 to 72 metropolitan areas. Guidance may also be forthcoming, on occasion,
from other forms of data frequently cited in the collective-bargaining process, such as
Consumer Price Indices and productivity statistics. Other relevant wages and benefit

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information will be available to the General Counsel and the parties from private
sources, and their use and usefulness in the compliance process will likely vary with
particular circumstances of the individual case. Furthermore, additional data could
become available through new compilations which might later be undertaken by the
Bureau of Labor Statistics or other agencies, including this agency, as well as by
unions, employers, and private and public organizations and institutions.
In the instant case, as noted above, a prima facie showing of loss can readily
be made out by measuring the wage and benefit increments that were negotiated for
employees at Respondent's other organized plants against those given employees in
this bargaining unit during the period of Respondent's unlawful refusal to bargain.
Granted that the task of determining loss may be more difficult in other cases where
no similar basis for comparison exists, this is not reason enough for the Board to shirk
its statutory responsibilities, and no reason at all for it to do so in a case such as this
where that difficulty is not present.
For the reasons set out above, we would order the Employer to make its
employees whole for their measurable losses, if any, resulting from the unlawful
refusal to bargain. We dissent from the Decision of the Board to the extent that it fails
to direct such a remedy.

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Questions for Discussion
1. One of the majority's reasons for denying
monetary relief was that crucial questions could not be
answered, namely, would good-faith bargaining have
resulted in a raise for the workers, and, if so, how much
would it have been? These are counter-factual questions;
answering them would require determining what would have
happened if the facts had been different. The majority
balked at employing counter-factual reasoning and refused
to determine what would have occurred if the employer had
bargained in good faith.
Counter-factual reasoning, however, is used in other
areas of labor law that we have studied. For example,
suppose an applicant is not hired because the employer
believes her to be a union agitator. In order to award
her back pay, the Board must determine what would have
occurred if she had been hired. The Board must answer
counter-factual questions such as, would her work have
been satisfactory, how many hours would she have worked,
and would she have been laid off? The Board also answers
counter-factual questions in mixed motive cases, that is,
cases in which an employer has two or more reasons for an
act and one of the reasons is illegal. In such cases,
the General Counsel establishes a prima facie case by
proving that one of the employer's reasons was illegal;
but the employer may defend the case by proving that the
same decision would have been made even in the absence of
the illegal reason (in other words, that a lawful reason
was a sufficient cause of the employer's act). The
employer's defense requires counter-factual reasoning.
Why is counter-factual reasoning appropriate in back
pay and mixed motive cases, but inappropriate in refusalto-bargain cases?
2. The dissent cited American Fire Apparatus Co.,
Leeds & Northrup Co. v. NLRB, and Fibreboard Paper
Products v. NLRB. Are these cases analogous to Ex-CellO, or can they be distinguished?
3. The majority argues that any change on this issue
should be effected by Congress. In general, when should
a tribunal itself change a policy, and when should the
tribunal wait for legislative action?

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4. If the union had had sufficient economic power,
it would have forced the employer to bargain in good
faith by striking. Should the law give the union what it
lacked the bargaining power to achieve?
5. Can you think of a remedy that would serve the
purposes of the dissent without being subject to the
objections of the majority?
6. The elaborate procedures for appealing the
Board's initial order certifying the union may take two
years.
Who benefits from the delay?
Should the
procedures be modified?

Ù

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Bargaining in Good Faith
Introduction
Section 8(a)(5) requires employers and § 8(b)(3)
requires unions to bargain collectively with each other.
Section 8(d) defines this duty as the obligation "to meet
at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of
employment...."
Is this an objective or a subjective
The words "good faith" imply a subjective
standard?
standard, for good faith is an actor's state of mind.
Yet the words "meet at reasonable times" imply an
objective standard because, in the law, reasonableness is
what an ordinary person in the actor's position would
have thought (as distinguished from what the actor may
actually have thought); and the words "wages, hours, and
other terms and conditions of employment" also imply an
objective element because the meanings of those terms are
well settled and do not vary with persons. As you read
the following case, try to determine whether bargaining
in good faith is a single duty, and if so, whether it is
judged by an objective or a subjective standard; or
whether bargaining in good faith is several duties, some
judged by objective and others judged by subjective
standards.
The following case is so famous (or infamous) that
the employer's strategy has acquired its own name,
"Boulwarism." Named after Lemuel Boulware, the manager
who devised the strategy, Boulwarism was an attempt to
In
apply marketing techniques to labor relations.
marketing, a company researches the wants and needs of
customers, designs a product that should satisfy those
wants and needs, creates a demand for the product by
advertising which extols the virtues of the product, and
Similarly, in
aggressively fights the competition.
Boulwarism the employer surveyed the desires of workers,
fashioned a proposal that (in the company's opinion)
reasonably satisfied those desires, actively communicated
the virtues of the proposal to the workers, criticized
both the union and its proposals, and asserted that
nothing, not even a strike, would persuade the employer
to deviate from its "firm and fair" offer. One issue in
the case is whether Boulwarism, taken in its totality,
indicated an improper attitude towards collective

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bargaining. Several other, more specific issues also tax
the members of the Board.
As you read the opinions, make a list of the various
ways mentioned in which §§ 8(a)(5) and 8(b)(3) can be
violated. Also, consider whether the opinions provide
helpful guidance to employers and unions that wish "to
meet at reasonable times and confer in good faith."

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iii

General Electric Company
150 NLRB 192 (1964)
The Trial Examiner found that Respondent {the employer, General Electric}
had not bargained in good faith with the Union, thereby violating § 8(a)(5) and (1) of
the Act, as evidenced by:
(a) its failure timely to furnish certain information requested
by the Union during contract negotiations;
(b) its attempts, while engaged in national negotiations with
the Union, to deal separately with locals on matters which were
properly the subject of national negotiations, and its solicitations of
locals separately to abandon or refrain from supporting the strike;
(c) its presentation of its personal accident insurance proposal
to the Union on a take-it-or-leave-it basis;
(d) its overall approach to and conduct of bargaining.
We agree with these findings of the Trial Examiner. Because Respondent's
defense of its bargaining conduct raises a fundamental question as to the requirements
of the statutory bargaining obligation, we have stated for more particular emphasis
the reasons why we agree with the Trial Examiner that Respondent did not bargain
in good faith with the Union.
In challenging the Trial Examiner's finding that it violated § 8(a)(5),
Respondent argues that an employer cannot be found guilty of having violated its
statutory bargaining duty where it is desirous of entering into a collective-bargaining
agreement, where it has met and conferred with the bargaining representative on all
required subjects of bargaining as prescribed by statute and has not taken unlawful
unilateral action, and where it has not demanded the inclusion in the collective
bargaining contract of any illegal clauses or insisted to an impasse upon any
nonmandatory bargaining provisions. Given compliance with the above, Respondent
further argues that an employer's technique of bargaining is not subject to approval
or disapproval by the Board.
Respondent reads the statutory requirements for bargaining collectively too
narrowly. It is true that an employer does violate § 8(a)(5) where it enters into
bargaining negotiations with a desire not to reach an agreement with the union, or has
taken unilateral action with respect to a term or condition of employment or has
adamantly demanded the inclusion of illegal or nonmandatory clauses in the

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General Electric

collective bargaining contract. But, having refrained from any of the foregoing
conduct, an employer may still have failed to discharge its statutory obligation to
bargain in good faith. As the Supreme Court has said:8
... the Board is authorized to order the cessation of behavior
which is in effect a refusal to negotiate, or which directly obstructs or
inhibits the actual process of discussion, or which reflects a cast of
mind against reaching agreement. [Emphasis supplied.]
Thus, a party who enters into bargaining negotiations with a "take-it-or-leaveit" attitude violates its duty to bargain although it goes through the forms of
bargaining, does not insist on any illegal or nonmandatory bargaining proposals, and
wants to sign an agreement. For good-faith bargaining means more than "going
through the motions of negotiating."10 "... the essential thing is rather the serious
intent to adjust differences and to reach an acceptable common ground...."
Good-faith bargaining thus involves both a procedure for meeting and
negotiating, which may be called the externals of collective bargaining, and a bona
fide intention, the presence or absence of which must be discerned from the record.
It requires recognition by both parties, not merely formal but real, that "collective
bargaining" is a shared process in which each party, labor union and employer, has
the right to play an active role. On the part of the employer, it requires at a minimum
recognition that the statutory representative is the one with whom it must deal in
conducting bargaining negotiations, and that it can no longer bargain directly or
indirectly with the employees.
It is inconsistent with this obligation for an employer to mount a campaign,
as Respondent did, both before and during negotiations, for the purpose of
disparaging and discrediting the statutory representative in the eyes of its employee
constituents, to seek to persuade the employees to exert pressure on the representative
to submit to the will of the employer, and to create the impression that the employer
rather than the union is the true protector of the employees' interests. As the Trial
Examiner phrased it, "the employer's statutory obligation is to deal with the
employees through the union, and not with the union through the employees."
We do not rely solely on Respondent's campaign among its employees for our
finding that it did not deal in good faith with the Union. Respondent's policy of
disparaging the Union by means of the communications campaign ... was
8

NLRB v. Katz, 369 U.S. 736 at 747.

10

NLRB v. Truitt, 351 U.S. 149 at 154 (Frankfurter, J.).

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v

implemented and furthered by its conduct at the bargaining table. Thus, the
negotiations themselves, although maintaining the form of "collective bargaining,"
fell short, in a realistic sense, of the concept of meaningful and fruitful "negotiation"
envisioned by the Act.
As the record in the case reflects, Respondent regards itself as a sort of
administrative body which has the unilateral responsibility for determining wages and
working conditions for employees, and it regards the union's role as merely that of a
kind of adviser for an interested group—the employees. Thus, according to its
professed philosophy of "bargaining," Respondent, on the basis of its own research
and evaluation of union demands, determines what is "right" for its employees, and
then makes a "fair and firm offer" to the unions without holding anything back for
later trading or compromising. It professes a willingness to make prompt adjustments
in its offer, but only if new information or a change in facts indicates that its initial
offer is no longer "right." It believes that if its research has been done properly, there
will be no need to change its offer unless something entirely unforeseen has
developed in the meantime. Simultaneously, Respondent emphasizes, especially to
employees, that as a matter of policy it will not be induced by a strike or a threat of
a strike to make any change in its proposals which it believes to be "wrong."
This "bargaining" approach undoubtedly eliminates the "ask-and-bid" or
"auction" form of bargaining, but in the process devitalizes negotiations and
collective bargaining and robs them of their commonly accepted meaning.
"Collective bargaining" as thus practiced is tantamount to mere formality and serves
to transform the role of the statutory representative from a joint participant in the
bargaining process to that of an adviser. In practical effect, Respondent's
"bargaining" position is akin to that of a party who enters into negotiations "with a
predetermined resolve not to budge from an initial position," an attitude inconsistent
with good-faith bargaining.17
In fact Respondent here went even further. It consciously placed itself in a
position where it could not give unfettered consideration to the merits of any
proposals the Union might offer. Thus, Respondent pointed out to the Union, after
Respondent's communications to the employees and its "fair and firm offer" to the
Union, that "everything we think we should do is in the proposal and we told our
employees that, and we would look ridiculous if we changed now."
In short, both major facets of Respondent's 1960 "bargaining" technique, its
campaign among the employees and its conduct at the bargaining table,
complementing each other, were calculated to disparage the Union and to impose
17

NLRB v. Truitt, 351 U.S. 149 at 154 (Frankfurter, J.).

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General Electric

without substantial alteration Respondent's "fair and firm" proposal, rather than to
satisfy the true standards of good faith collective bargaining required by the statute.
A course of conduct whose major purpose is so directed scarcely evinces a sincere
desire to resolve differences and reach a common ground. For the above reasons, we
adopt [the Trial Examiner's] conclusion that Respondent did not bargain in good faith
with the Union, thereby violating § 8(a)(5) and (1) of the Act.
Our concurring colleague, Member JENKINS, who joins us in finding certain
conduct of the Respondent inconsistent with its bargaining obligation under the
statute, misreads the majority opinion and the Trial Examiner's Intermediate Report,
which we affirm, in asserting that our decision is not based on an assessment of
Respondent's conduct, but only on its approach to or techniques in bargaining.
On the contrary, our determination is based upon our review of the
Respondent's entire course of conduct, its failure to furnish relevant information, its
attempts to deal separately with locals and to bypass the national bargaining
representative, the manner of its presentation of the accident insurance proposal, the
disparagement of the Union as bargaining representative by the communication
program, its conduct of the negotiations themselves, and its attitude or approach as
revealed by all these factors.
Nothing in our decision bans fact gathering or any specific methods of
formulating proposals. We prescribe no time table for negotiators. We lay down no
rules as to any required substance or content of agreements. Our decision rests rather
upon a consideration for the totality of Respondent's conduct.
In one central point of our colleague's comment, with all respect, we believe
he is in error. His strictures in relation to our interpretation of the law's restraints on
"take-it-or-leave-it" bargaining were decisively answered by the Supreme Court in its
review of the nature of the bargaining obligation in Insurance Agents:18
... the legislative history [of Taft-Hartley] makes it plain that Congress
was wary of the position of some unions, and wanted to ensure that
they would approach the bargaining table with the same attitude of
willingness to reach an agreement as had been enjoined on
management earlier. It intended to prevent employee representatives
from putting forth the same "take-it-or-leave-it" attitude that had been
condemned in management.

18

NLRB v. Insurance Agents, 361 U.S. 477 at 487.

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vii

And in Justice Frankfurter's opinion in Truitt,19 upon which our colleague
relies, the Justice also wrote:
... it [good faith] is inconsistent with a predetermined resolve not to
budge from an initial position.
While we share his objective and that of our dissenting colleague of
encouraging a maximum of freedom and experimentation in collective bargaining,
when questions are raised under the law as construed by the courts and the Board
concerning the conformity of a specific respondent's course of conduct with the
requirements of the law, the Board must apply the law to the totality of that conduct
in the interest of preserving and fostering collective bargaining itself. That is what
we have sought to do here.
Member JENKINS, concurring:
The fundamental issues in this case have been obscured by slogans and
shibboleths which have understandably led my colleagues into deciding issues which
in my judgment are not presented for decision. Moreover, the Board has undertaken
to describe the statutory obligation to bargain in good faith by utilizing conclusionary
comments which may be justified by the facts in this case but which have such farreaching implications as to warrant the expression of my individual views designed
to limit the reach of this decision.
Stripped of verbiage, this case presents the fundamental issue of whether the
course of conduct engaged in by the Employer during the 1960 contract negotiations,
which led to an unsuccessful 3-week strike, fell below the standard of good-faith
bargaining required by § 8(a)(5) of the Act. Certain specific conduct was alleged as
the basis for finding that the Respondent's conduct violated 8(a)(5) and (1) of the Act.
This Board has repeatedly held that conduct designed to undermine the union,
or to demonstrate to employees the futility of engaging in collective bargaining
through a union, fails to meet the standard of good-faith bargaining. If my colleagues
had been content to thus ground their finding in the instant case, I would have no
reason to disagree. The record clearly supports their findings with respect to (a) the
failure of Respondent to furnish certain information requested by the Union during
contract negotiations, (b) the attempts to deal separately with locals on matters which
were properly the subject of national negotiations, and (c) the Respondent's
importuning of locals to abandon or refrain from supporting the strike authorized by
the collective bargaining representative.
19

351 U.S. 149 at 154.

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General Electric
...

In effect, I read the majority opinion to hold that the Act so regulates a party's
choice of techniques in collective bargaining as to make unlawful an advance
decision, and a frank communication of that decision, concerning the position from
which a party is unwilling to retreat. The majority would apparently find that it is
unlawful for a union to present a contract proposal on a take-it-or-leave-it basis since
I assume the majority would not apply different standards to unions than to
employers.
The bargaining technique often employed by unions in support of "area
standards" contracts is not significantly different from the technique described as the
"firm, fair offer" by an employer.* I would not find a lack of good faith bargaining
where either the employer or the union entered the negotiations with a fixed position
from which it proposed not to retreat, engaging in hard bargaining to maintain or
protect such position, and made no concessions from that position as a result of
bargaining. As one member of the Supreme Court has pointed out, good faith is not
necessarily incompatible with stubbornness or even with what to an outsider may
seem unreasonableness.21
The majority states frankly that the holding of a predetermined resolve not to
budge from an initial position is incompatible with good faith bargaining. That
statement seems to ignore the language in § 8(d) of the Act which makes it clear in
unequivocal words that "such obligation does not compel either party to agree to a
proposal or require the making of a concession."
...
I know of no decision of this Board which has sought to interpret the statute
as requiring either unions or employers to follow a prescribed timetable in
communicating the various shifts in position which seem desirable as a matter of selfinterest. Thus, if either an employer or a union, for reasons dictated by self-interest,
chooses to include in a proposal trading items which it is willing later to withdraw or,
conversely, chooses to limit its proposal to items which it will never withdraw
In area standards bargaining, a union seeks to achieve the same terms and
conditions of employment at all firms within an area. Typically, the union chooses
one employer as a target and puts all of its resources into winning the most favorable
contract possible. Thereafter, as the union wins similar gains from other firms, its
reluctance to accept lesser gains increases.
*

21

NLRB v. Truitt, 351 U.S. 149, 154-155 (Frankfurter, J.).

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ix

voluntarily, the choice is its and not the Board's.
To describe the foregoing in shorthand by evocative terms provides little
guidance for either unions or employers. To condemn bargaining techniques as
unlawful because of the utilization of what the majority describes as "take it or leave
it" is to obfuscate the issue. Basically it is our purpose to examine industrial relations
against the realities that exist. It is not our function to require the adoption of a
particular technique or to condemn the use of a given technique as such.
...
If free collective bargaining is to survive, both employers and unions must
remain free of governmental interference with their right to formulate independently
the economic positions which each desires to take and to decide without
governmental compulsion whether that position shall be conveyed to the other party
at the outset, at some midpoint, or at the conclusion of negotiations. To do otherwise
maximizes governmental construction of the bargain and minimizes the free flow of
independent economic judgment essential to a strong, independent trade union
movement and a strong, independent entrepreneurial system, both of which are vital
to the kind of economy envisaged by the Act which we administer.
Member LEEDOM, dissenting in part:
My colleagues have found that the Respondent failed to bargain in good faith
with the Union in the 1960 negotiations, both in certain specific respects and
generally. Although I agree with the specific violations found, I cannot justify the bad
faith finding with respect to the Respondent's overall bargaining conduct.
On the issue as to Respondent's overall good or bad faith, it should be
conceded that there are various approaches to, and tactics in, negotiations that are
wholly consistent with the bargaining obligation imposed by the Act; and it seems to
me that both management and labor should not be discouraged from seeking new
techniques in dealing with the constantly evolving problems with which they are
faced across the bargaining table. Consequently, we should take care not to create the
impression that we view with suspicion novel approaches to, and techniques of,
collective bargaining.
This is not an area of sharp disagreement at this Board. Rather it is a question
of emphasis: Should the parties be given a wide latitude in devising their bargaining
methods, or should there be careful intervention by a regulator? At this time when
not only the industrial community, but some labor spokesmen as well, are urging less
Government intervention in industrial relations, it seems to me the emphasis should

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General Electric

be on freedom of action in the bargaining process. Very respectable authority seems
to agree: "The law of collective bargaining will have little value to the community
if the process of logical deduction from prior decisions results in wide divergence
between the administrative and judicial rules and the needs of both management and
labor."22
Notwithstanding the foregoing, I cannot fully accept Respondent's view of the
breadth of the bargaining obligation imposed by the Act, nor the limitation it believes
the law places on those matters which can properly be considered where good- or
bad-faith bargaining is in issue. In both regards its construction seems too rigid. I
nevertheless believe that both the law and good policy require that this Board not be
hypercritical of what goes on at the bargaining table or in a developing situation. In
order for collective bargaining to be free and to succeed, the parties themselves must,
with a minimum of exceptions, have the right to resort to such tactics, and to take
such positions, as they believe necessary or desirable in dealing with the matters
before them. If at each step they must consider the effect of their specific words,
actions, and proposals, upon some distant tribunal unacquainted with the particular
problems in dispute, and with that more subtle distinction, the personalities of the
negotiators themselves, they surely lose the flexibility and spontaneity necessary for
free, effective bargaining. Thus they are deprived of their right to determine, free of
governmental intervention, the substantive terms of their agreement, should one be
reached.
No matter how much we may disclaim any intent to compel bargaining to
proceed in some set form, the fact that we closely scrutinize what goes on at the
bargaining table will necessarily have the effect of directing bargaining into channels
which we have in the past approved, for in such channels will lie security in
bargaining, if not success. Whether the substitution of our judgment as to the proper
forms and content of bargaining be made directly or indirectly is a difference of no
consequence insofar as it interferes with free bargaining and tends to discourage
innovation both in tactics and proposals which, as I believe, could be of benefit not
only to the parties but to the public as well. Consequently, good policy suggests that
we leave the parties to their own devices at the bargaining table unless some
compelling facts force us into the area of bargaining. As the Supreme Court stated
in Oliver, "The purposes of the Act are served by bringing the parties together and
establishing conditions under which they are to work out their agreement

Cox and Dunlop, "Regulation of Collective Bargaining," 63 Harvard Law
Review 389 at 405.
22

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xi

themselves."25
The principal facts are not disputed. Concededly, the Respondent did not
intend to rid itself of the Union during the 1960 negotiations. Rather it approached
the bargaining table fully intending to reach an agreement with the Union and to this
end engaged in many bargaining sessions running from mid-summer to the late fall
of 1960. And the end result was in fact a comprehensive agreement. To be sure, the
respondent in presenting its offer on August 31 took a firm position, but that does not
in itself demonstrate bad faith. In fact, the Respondent's initial attitude with respect
to its offer does not appear to have been appreciably, if any, more intransigent than
that of union presenting its proposed changes.
However, I find it hard to measure degrees of intransigence and have
considerable doubts that balancing it out is of real significance; for whatever may
have been the situation at early stages of negotiation, it is clear that as negotiations
proceeded the Union backed down considerably and the Company acquiesced in a
number of changes from its original proposals. Even though the Respondent's
changes may not have been all that the Trial Examiner and majority may have wished,
I fail to see how their alleged "inconsequential" nature is some evidence of bad faith
when Respondent was not obligated to propose or agree to any change at all in its
initial offer.
The majority and the Trial Examiner advert to statements by the Respondent
and its representatives both at the bargaining table and in employee communications
which were highly critical of the Union and its president, and some also suggesting
an approach to bargaining not wholly in keeping with its statutory responsibilities.
But against the background of continuing negotiations and the Union's equally
inflammatory publications and comments, and its statements of "must" demands, the
Respondent's role in this battle of words seems to me to lose some of its evidentiary
significance. Consequently, I question whether the cause of collective bargaining is
aided by the Board's taking particular comments and evaluating them in a
dispassionate context so extremely different from that of which they were a part. It
is too easy through such an approach to find unlawful that which is perhaps at worst
only undesirable.
I do not mean to suggest that the issue of good or bad faith has any clear-cut
answer here. My position is not dictated so much by strong conviction as by
uncertainty. I am not persuaded by the reasons that the majority state for their finding
of bad faith bargaining; and the finding itself and the supporting rationale leave me
in the dark as to their practical efficacy. But I am particularly disturbed by the
25

Local 24, Teamsters v. Oliver, 358 U.S. 283, 295 (1959).

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General Electric

treatment accorded Respondent's communications. Surely the Respondent can
lawfully communicate with its employees. Yet here, although the communications
are held to be some evidence of bad faith, the majority, neither in its decision nor in
adopting the Trial Examiner's Recommended Order, provides the Respondent with
any guides by which it can with reasonable certainty determine what it can lawfully
say to its employees.
In areas such as this bordering on § 8(c) of the Act and free speech, I believe
that the Respondent is entitled to something more by way of clarification than the
vague proscription implied in the general bargaining order. But I doubt if the facts
and findings indicate what specific limitations can properly be laid down. In any
event, the situation with respect to the bad faith finding is at best ambiguous, and I
would, therefore, find that the General Counsel has failed to prove by a
preponderance of the evidence that the Respondent did not bargain in good faith
during the 1960 negotiations with the Union.

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xiii

Questions for Discussion
1. The majority of the Board held that, where the
national union is the recognized bargaining agent, an
employer may not ask local unions not to support a strike
called by the national. Yet it is permissible for an
employer to ask workers not to support a strike called by
their
bargaining
agent.
Can
these
cases
be
distinguished?
2. The majority faults the employer for attempting
to sell its proposal directly to the workers.
(a) Does this rule ignore the protection in section
8(c) for freedom of speech?
(b) Should the Board fault a union if it tried to
sell its proposal directly to the board of directors or
shareholders of a corporation?
3. Would collective bargaining be improved if the
Board stopped looking inside the bargaining room?

Ù

Labor and Employment Law

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Labor and Employment Law

484

CHAPTER 3

EMPLOYMENT DISCRIMINATION LAW

Labor and Employment Law

485

Sex Discrimination in Compensation:
The Equal Pay Act of 1963

2

Labor and Employment Law

486

Equal Pay, Equal Work
and
"Any Other Factor Other Than Sex"
Introduction
Like most Equal Pay Act cases, the following one
involved extensive findings of fact. The first issue of
fact was whether the women's pay was equal to the men's
pay. If pay had been equal, the case would have been
dismissed; the Equal Pay Act applies only to cases of
unequal pay.a The court found that pay was not equal;
the men's pay was greater than the women's pay.
Therefore, the court moved to the next issue of fact —
whether the men's work and the women's work were equal.
If not, the case would have been dismissed because the
Act applies only when a man and a woman perform equal
work. The court found that the men's and women's work
was equal. As a result, another issue of fact arose; it
was pertinent to the employer's defense. The defense
was that the difference between men's and women's pay was
based on a factor other than sex. Accordingly, the issue
of fact was, what was the basis for the pay differential?
If the basis of the differential were the sex of the
workers (i.e., men were paid more because they were men),
the defense would have failed and the employer would have
lost the case. If the basis of the differential were any
factor other than sex, the defense would succeed and the
employer would win the case.
Facts come in different varieties.
For present
purposes, we need to distinguish between material and
evidentiary facts. Material facts are the elements of
the prima facie case. The material facts of battery are
that the defendant intentionally inflicted a harmful or
offensive contact on the plaintiff. Evidentiary facts
help or tend to prove material facts. In order to prove

a

Indeed, as long as pay is equal, the content of the jobs
is unimportant.
If a woman's job calls for twice as much
effort as a man's job, requires three times the degree of
skill, carries four times the level of responsibility, and is
performed under conditions five times worse, she has no claim
if their pay is equal.

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Hodgson v. Robert Hall Clothes

the material fact that a physical contact was harmful or
offensive, a plaintiff might offer the evidentiary fact
that the contact caused a bruise on his skin; in order to
prove the material fact that the contact was intentional,
a plaintiff might offer the evidentiary fact that, just
before striking the blow that caused the bruise, the
defendant said, "I'm gonna murder you."
In the following case, the student should identify
the material facts — the prima facie case — of a
violation of the Equal Pay Act. The student should also
make a list of the evidentiary facts that tended to prove
each material fact.

Labor and Employment Law

488

James D. Hodgson, Secretary of Labor
v.
Robert Hall Clothes, Inc.
326 F. Supp. 1264 (D. Del. 1971)

STEEL, J.:
...
At all relevant times, defendant Robert Hall Clothes, Inc. (Robert Hall) has
been a Delaware corporation with its main office in New York and defendant Robert
Hall Clothes Greenbank Corp. (Greenbank) has been a Delaware corporation having
its place of business on Greenbank Road, Wilmington, Delaware. Greenbank is a
wholly owned subsidiary of Robert Hall Clothes of Jamaica, Inc., which in turn is a
wholly owned subsidiary of Robert Hall.
Greenbank first opened for business in September, 1962. It was and still is
engaged in the operation of a retail clothing store which sells men's and boys' and
ladies' and girls' clothing and apparel.
...
The men's and boys' department, and the ladies' and girls' department at
Greenbank are contained in one building. All men's and boys' merchandise sold in
the one-floor store is located in the men's and boys' department which is on one side
of the store, and all ladies' and girls' merchandise sold in the store is located in the
ladies' and girls' department which is on the other side of the store....
...
Sales personnel in the men's and boys' department (men's department) and
sales personnel in the ladies' and girls' department (ladies' department) at the
Greenbank store perform their activities under similar working conditions.
...
At the outset three substantive questions must be decided: (1) does the Act
apply where the nature of the jobs makes it impractical for both sexes to work
interchangeably; (2) are the rates of wages which Greenbank pays to saleswomen less
than those paid to salesmen; and (3) do saleswomen and salesmen perform equal
work. If these three questions are answered in the affirmative, a fourth question must
be decided, namely, whether the wage differential is based upon any factors other
than sex.

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Hodgson v. Robert Hall Clothes

vi
(1)

Application of the Act to jobs which reasonably require
performance exclusively by one sex.

The jobs performed by salesmen and salesladies, respectively, are not
reasonably susceptible of performance by both sexes because of the nature of the jobs.
One is a "male" job and the other a "female" job. Defendants have always had a
policy of having only salesmen in the men's and boys' department because of the
frequent necessity for physical contact between the salespersons and the customers
which would embarrass both and would inhibit sales unless they were of the same
sex.b ... The question arises whether the Equal Pay Act was intended to apply to jobs
which require employment by one or the other of the sexes exclusively. {After
reviewing the legislative history of the Act, interpretations by the Wage-Hour
Administrator, and case law, the court held that the Act does apply to jobs that are
segregated by sex.}
...
(2)

Pay Differential

Greenbank employs salesmen and salesladies who work regularly forty hours
a week or more and salesmen and salesladies who perform their duties on a sporadic
basis and work less than forty hours per week. The former are referred to as full-time
and the latter as part-time employees. The full-and part-time sales employees in the
men's department have always been exclusively male, and the full-and part-time sales
employees in the ladies' department have always been exclusively female. When
Greenbank opened in September 1962, it employed the following sales personnel:
two full-time females, fifteen part-time females, four full-time males, and twelve parttime males. By January 1963, the number of full-time sales personnel was reduced
to two: one man and one woman. It has since remained at that figure.
The number of part-time sales personnel was pared down gradually during
1962 and 1963. It has since varied between two and five part-time salesmen and two
and five part-time saleswomen, depending on the season.
At all times from the passage of the Act, the starting salaries for full-time
salesmen at Greenbank have ranged between 21% and 55% higher than starting
salaries for full-time saleswomen. The starting wage rate for part-time salesmen has
likewise varied between 3% and 35% higher than that paid part-time saleswomen.
See Table 1.

b

The parties to the case agreed that it was lawful for the employer to segregate the
jobs by sex. Thus, the court did not rule on whether the job segregation was lawful.

Labor and Employment Law

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Hodgson v. Robert Hall Clothes

vii

After the commencement of their employment, progressive increases were
given to both male and female personnel, part-time and full-time, at specified
intervals. These increases reflected compensation differentials which favored
salesmen over saleswomen, and ranged from 35% to 52% in the case of full-time
personnel and between 16% and 34% for part-time personnel. See Tables 2 and 3.
The progression schedules were eliminated effective February 1, 1967 and
defendants began a program of periodic merit increases in sales personnel salary and
wage rates based on the recommendation of the store manager. He would base his
recommendation on the employee's performance, length of service, attitude,
absenteeism, time since last increase and economic factors.
Incentive compensation was also paid salesmen and salesladies. This was
based upon various factors such as type, number of garments sold to a given customer
at one time, price, age of garment, etc. The system in its ramifications was extremely
complex. It was designed to move merchandise and increase profits. Since no
incentive rate existed for all male garments and all female garments, a direct
comparison of rates is not possible. Different items of merchandise carry different
amounts of incentive compensation. In both the men's and ladies' departments, the
sale of some low priced items of merchandise, if sold individually, will not earn the
selling employee any incentive compensation; almost all of the merchandise in the
store when sold in multiple units (double-header) or in combination with other items
to the same customer yield incentive compensation. Additionally, the incentive
earned upon the sale of merchandise from a prior season may change from season to
season, depending upon the length of time an item remains in the store. The longer
it remains in the store, the higher the incentive when it is sold.
The particular amount of incentive compensation placed upon a particular
item of merchandise, regardless in which department it is sold, is determined not by
whom the item is sold, but on the need to sell the particular item, the markup on the
item, the profitability to the store on the sale of the item, the length of time the item
is in the store, the ease of selling the item and its selling price. coats and suits are over
$39.95. The average unit selling price of merchandise is substantially higher in the
men's department than in the ladies' department.

Labor and Employment Law

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viii

9/5/628/30/64
8/31/649/2/65
9/3/651/31/67
2/1/674/13/70

9/5/628/30/64
8/31/649/2/65
9/3/651/31/67

9/5/628/30/64
8/31/649/2/65
9/3/651/31/67

Hodgson v. Robert Hall Clothes
Table 1—Starting
Full-Time (per week)
Part-Time (per hour)
% by which
M
F
M exceeds F M
F
$65
$42 55%
$1.42 $1.05

% by which
M exceeds F
35%

67

46

46%

1.47

1.15

28%

67

50

34%

1.47

1.25

18%

67

50

34%

1.47

1.25

18%

Table 2—6 Months After Starting
Full-Time (per week)
Part-Time (per hour)
% by which
M
F
M exceeds F M
F
$67
$44 52%
$1.47 $1.10

% by which
M exceeds F
34%

70

48

46%

1.52

1.20

27%

70

52

35%

1.52

1.30

17%

Table 3—1 Year After Starting
Full-Time (per week)
Part-Time (per hour)
% by which
M
F
M exceeds F M
F
$71
$48 48%
$1.57 $1.20

% by which
M exceeds F
30%

73

50

46%

1.57

1.25

26%

73

54

35%

1.57

1.35

16%

In both men's and ladies' departments the higher the price of the merchandise
the greater the incentive compensation. More high priced merchandise is carried in
the men's department than in the ladies' department, i.e., 60% of the men's suits and

Labor and Employment Law

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Hodgson v. Robert Hall Clothes

ix

coats are over $39.95, whereas 20% of ladies'
Merchandise in the men's department remains in the store longer before it is
sold than merchandise in the ladies' department. Merchandise sold in the ladies'
department is more related to change in fashion, and consequently, is frequently
removed and salvaged if not sold in the current season. Rarely is merchandise in the
ladies' department retained which is more than two six-month seasons old. On the
other hand, it is common for men's merchandise to date back four or six six-month
seasons. Thus, there is reasonably a greater category breakdown in the incentive
compensation payable upon the sale of men's stale merchandise than there is for
ladies' stale merchandise, i.e., in the case of men's stale merchandise, there are four
different age categories of merchandise; whereas in the case of ladies' stale
merchandise, there are only two different age categories of merchandise; the older the
merchandise within a category, the higher the incentive.
The net effect of the incentive system, however, resulted in a ratio of incentive
pay to gross sales which was approximately .2% more in the case of men than
women.
Under the Act the "wages" which must be paid at equal rates to both sexes if
the work performed is equal include "all payments made to or on behalf of the
employee as remuneration for employment." 29 C.F.R. § 800.110. The term wage
"rate" used in the Act encompasses all rates of wages "whether calculated on a time,
piece, job, incentive or other basis." 29 C.F.R. § 800.111. The Government has
established by a preponderance of the evidence that Greenbank ... has paid
saleswomen "wages" — starting, progressive and incentive — at "rates" less than
those paid to salesmen.
(3)

Equality of Jobs

Salesmen are engaged in selling men's and boys' apparel such as top coats,
sport coats, suits, slacks, sweaters, shoes, underwear, and furnishings, in sizes 2
through adult. Salesladies engaged in selling women's and girls' and infants' apparel,
such as coats, dresses, suits, slacks, skirts, pants suits, sweaters, blouses, hosiery, and
undergarments, in sizes 9 months through adult.
Obviously the jobs performed by salesmen and salesladies are not identical.
Salesmen sell different merchandise from salesladies and the customers of salesmen
are mostly men and boys whereas the customers of salesladies are mostly women and
girls. These distinctions make the job different. They do not necessarily make the job
unequal within the meaning of the Equal Pay Act. The Act does not require that the
jobs performed be identical but only that they be substantially equal. Shultz v.
Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1970). This does not depend upon job

Labor and Employment Law

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493

Hodgson v. Robert Hall Clothes

classification but rather on actual job requirements. The jobs as a whole must be
viewed over the entire work cycle. Wirtz v. Rainbo Baking Co., 303 F. Supp. 1049,
1052 (E.D. Ky. 1967). Whether by this test the jobs of salesmen and saleswomen
require substantially equal skill, effort and responsibility is the question to be
resolved.
Both male and female sales personnel engage in selling the above described
merchandise by applying sales techniques, basic knowledge of garments sold,
materials, wearability, location of items in the store, and quality of garments stocked;
by showing apparel to customers, engaging them in discussion about the merchandise,
advising and answering questions as to appearance and fit, size, color, fabrics,
appropriateness and quality of merchandise, all for the purpose of effecting a sale.
In hiring both male and female personnel consideration was given to the
appearance of applicants and their response to questions submitted to them. There
was no educational requirement for sales personnel of either sex.
Both salesmen and saleswomen perform the same inventory and stock work
and housekeeping duties. They each move garments from the stockroom to the sales
floor and make sure that the merchandise already on the floor is grouped according
to size. After customer try-ons, both salesmen and salesladies put the garments back
on the racks in their proper places.
Defendants argue that the job of selling in the men's department differs
substantially from that in the women's department because of differences in the
character, price, profitability, markup and markdown in the merchandise sold.
Defendants also argue the job content of salesmen and saleswomen differs with
respect to the type of training received, the work required of men in completing the
back of the cash alterations sales slips, their alteration and fitting responsibilities and
the use of sizing charts and tape measures in connection with fittings.
Generally speaking, the prices, profitability and markups were higher in men's
wear than in women's wear and the markdown differences were less in the case of
men's wear than in women's wear. These variances, however, were not so great as to
make any significant differences in the effort, skill and responsibility required
between the salesmen and salesladies in performing their jobs.
The character of the merchandise sold by salesmen and saleswomen was
likewise different in that the styles, colors and materials varied. Differences of this
kind do not necessarily mean that the sale of one article requires a higher degree of
skill, effort and responsibility than the sale of another, see 29 C.F.R. § 800.123, and
in the instant case they did not. Although men's suits are manufactured in various

Labor and Employment Law

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xi

models which give rise to fitting and sizing problems, just as varied styles existed
among women's garments which resulted in comparable sizing and fitting
complexities. The skill, effort and responsibility in knowing the styles, colors and
materials were not greater in the case of men than they were for women.
For the most part differences in instructions given to male and female sales
personnel were occasioned by the differences in the merchandise which they were to
sell. The testimony of salesmen as to the training which they received was not
consistent, and at best such training as they had appeared to be perfunctory and in
some instances on a day by day, on the job basis. Such training differences as existed
were a minor consideration when viewed against the substantial identity of the overall skill, effort and responsibility required of salesmen and salesladies.
As to fitting skill, effort and responsibility, some salesmen used a card which
specified suit models of various types (Ivy, Bankers, Portly, etc.,) and related these
types to waist and chest measurements of customers. By using the card the salesmen
were able to tell at a glance which model, from a fit standpoint, would be most
appropriate for a customer. This was a simple operation. The saleswomen had no
such aid. They were required visually and by experience to determine sizes and types
of dresses which would be best suited from a style and fit standpoint for customers
to wear for a particular purpose. The sizing card furnished salesmen reduced or at
least minimized the skill required of them as against that demanded for saleswomen
in size selection.
Because no alterations were made by the ladies' department, whereas
alterations were made in the men's department, salesmen were required to use a tape
measure in measuring customers but saleswomen were not. This was but a minor
variance in duties and did not distinguish the salesmen's job in any appreciable way
from that performed by the saleswomen.
Nor did the knowledge of alteration possibilities on men's clothing vary
importantly from the knowledge of saleswomen of the same possibilities. Although
no alterations were made in the women's department, the job of saleswomen made it
necessary for them to advise their customers of the "at home" alteration potentials.
The major thrust of the defendants' argument that the jobs of both sexes were
substantially unequal rests upon the asserted fact that the salesmen, unlike the
saleswomen, had to mark men's clothing so that the tailor would know what work he
should do. The job of marking men's clothing for alterations was especially
important, defendants argue, because Greenbank made it a policy to guarantee the fit
of all men's clothing for the life of the garment. Hence, Greenbank was obligated to
make additional alterations whenever the customer decided that the garment fitted

Labor and Employment Law

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Hodgson v. Robert Hall Clothes

him poorly, even if this occurred long after the date of purchase.
The basic premise of defendants' argument, i.e., that salesmen as a group had
the responsibility of marking clothes for alteration is not borne out by the evidence.
It discloses that marking was not uniformly performed by all the salesmen and that
such marking as was done by some was subject to important qualifications.
The basic policy of Greenbank since opening in September of 1962 has been
for either the manager or assistant manager to be called by a salesman to perform
marking whenever alterations were required. This policy existed at least until January
10, 1968, when defendants' answer to plaintiff's initial interrogatory 21 was filed. It
stated that male sales personnel did not engage in marking.
It is true that at times the basic policy to have the manager or assistant
manager mark the clothes has been deviated from. Such deviations as there were
involved for the most part only simple and sporadic marking. Four of ten salesmen
employed at the Greenbank store testified they performed no marking at all. Of the
remaining six, three stated that their marking was limited to pants length, sleeve
length and waist. Three other salesmen testified that they did more than this and also
marked coat size, collars or crotch, but only if the manager or assistant manager were
not available. The marking of cuffs, sleeves and waists was simple. At least two of
the employees (Blawn and Steinebach) who performed this work did so within a few
days after their employment.
The ability or inability of salesmen to mark clothes for alterations and the fact
that they may have done so were not considered by defendants in fixing the wage
differentials favoring salesmen. Considering the totality of the functions which
salesmen and salesladies performed and the responsibilities which they assumed, such
marking of clothes for alteration exclusively by salesmen as existed did not
distinguish the job performed by salesmen from that performed by saleswomen to any
significant degree.
Defendants point out that salesmen fill in the back of cash alteration sales
slips and saleswomen do not. Again, this is a matter of job detail requiring merely
the checking of spaces on the back of the alteration slip or making simple notations
on it.
...
After listening to voluminous ... testimony for days on end concerning the
differences and similarities between the jobs of salesmen and salesladies, the
conclusion is warranted that such differences as existed were at best only incidental

Labor and Employment Law

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xiii

to the job of each when considered in its totality. The skill, effort and responsibility
of each were substantially equal.
Plaintiff has borne the burden of proving by a preponderance of the evidence
that defendants have discriminated between salesmen and salesladies by paying to the
latter wages at a lesser rate than paid to the former for equal work on jobs that
required equal skill, effort and responsibility. Plaintiff has thus made out a prima
facie case against defendant for violating the Equal Pay Act. Shultz v. Wheaton Glass
Co., supra, p. 266.
Even though this be so, if the pay differential was justified by factors other
than sex, as defendants claim, defendants have a valid defense under the Act. The
defense is an affirmative one which the defendants have the burden of proving.
Shultz v. Wheaton Glass Co., supra, p. 266. This must be done by a preponderance
of the evidence.
(4)

Factors Other Than Sex

Defendants contend that the Act is violated only if a wage differential is based
solely on sex and is justified by no other factor. This contention is unacceptable.
Properly interpreted, the Act means that if the differential in pay is, in whole or in
part, based upon sex, it is not based upon factors other than sex. Only if sex plays no
part in the wage differential is it beyond the condemnation of the Act. 29 C.F.R. §
800.142.
Contrary views have been expressed. In Kilpatrick v. Sweet, 262 F. Supp.
561, 564 (M.D. Fla. 1967) the court said that "if there were any other factors other
than sex upon which a difference in wages was based, then no violation of the law
could be found." See also Shultz v. Kentucky Baptist Hospital, 62 CCH Lab. Cas.
44,117, 44,123 (W.D. Ky. 1969). This construction of the Act is not required by its
language and if adopted evasion of the Act would be easy and its remedial purpose
would be thwarted.
Defendants argue that economic considerations were the sole reasons for the
compensation differential between salesladies and salesmen and that sex had nothing
to do with it. The difference in merchandise carried in the men's department and the
relatively greater benefits which it is said that defendants experienced by the
operation of that department lie at the root of this argument.
The merchandise carried in the men's department differed from that in the
women's department in style, quality, price and carries a considerably higher markup
and markdown. On the average more merchandise in the men's department is in the

Labor and Employment Law

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Hodgson v. Robert Hall Clothes

higher price range and of better quality than in the ladies' department; on the average
the merchandise in the men's department carries a considerably higher markup and
lesser markdown than that in the ladies' department; and, of course, styles in the men's
merchandise differ from styles in the ladies' merchandise.
Defendants point to the fact that the sales in the men's department exceeded
by several fold those in the ladies' department, and that the percentage of gross profit
to sales in the former was substantially greater than in the latter.

Fiscal
Year
Ended
June 30
1963
1964
1965
1966
1967
1968
1969

SCHEDULE OF SALES AND GROSS PROFITS
BY DEPARTMENT
Men's and Boys' Clothing
Ladies' and Girls' Clothing
Dept.
Dept.
Gross
Gross
Gross
Gross
Sales
Profit
Profit %
Sales
Profit
Profit %
$ 210,639.48
$ 85,328.48
40.51
$ 177,742.17
$ 58,547.13
32.92
178,867.50
73,608.08
41.16
142,788.22
44,612.12
31.24
206,472.93
89,930.00
43.55
148,252.90
49,608.08
33.46
217,765.79
97,447.54
44.74
166,479.47
55,463.29
33.31
244,922.09
111,498.79
45.52
206,680.27
69,190.04
33.47
263,663.53
123,681.60
46.90
230,156.63
79,846.92
34.69
316,242.41
148,001.30
46.79
254,379.22
92,686.87
36.43
In establishing pay rates Robert Hall did not consider the nature of the specific
merchandise sold by individual employees and made no attempt to relate the specific
wages of specific employees to specific merchandise. Silbert, the senior vice
president and treasurer of Robert Hall, testified that the compensation differential at
Greenbank was based upon the experience which Robert Hall had in its other stores
and involved solely economic considerations which reflected the difference in
merchandise sold. Greenbank was opened in 1962. In the case of every one of its
other stores Robert Hall had learned that on the average each salesman generated per
hour of work more sales dollars and more gross profit than the average saleswoman.
Silbert said that it was solely because of this experience that Robert Hall, which fixed
compensation policies for all of its retail stores, determined to pay the differential at
Greenbank. He said that the decision was simply a forward judgment based upon past
facts.
The defendants' prognostication that at Greenbank salesmen on the average
per hour of work would sell more merchandise in terms of dollars and produce more
gross profits than saleswomen was borne out by each year's operation at Greenbank.

Labor and Employment Law

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xv

SCHEDULE OF HOURLY SALES, EARNINGS AND GROSS PROFIT
Sales
Excess
Earnings
Excess
Gross Profit
Excess
Year
Per Hour M over F Per Hour M over F
Per Hour
M over F
MEN'S & BOY'S
1963
38.31
40%
2.18
25%
15.52
72%
1964
40.22
32%
2.46
32%
16.55
74%
1965
54.77
64%
2.67
48%
23.85
114%
1966
59.58
73%
2.92
50%
26.66
134%
1967
63.14
71%
2.88
45%
28.74
133%
1968
62.27
70%
2.97
47%
29.21
127%
1969
73.00
77%
3.13
45%
34.16
127%
LADIES' & GIRLS'
1963
27.31
1.75
9.00
1964
30.36
1.86
9.49
1965
33.30
1.80
11.14
1966
34.31
1.95
11.43
1967
36.92
1.98
12.36
1968
37.20
2.02
12.91
1969
41.26
2.16
15.03
This tabulation is based on averages and does not reflect individual
performances by the sales personnel. Standing alone, the greater amount paid to the
average salesman per hour is amply justified by the greater amount of dollar volume
per hour and gross profits per hour generated by the average salesman. These average
figures, however, are less meaningful than they appear to be on the surface when
other statistical data of record is analyzed with an eye to performance by and pay to
full-time and part-time personnel, respectively.
{These} data {are} ... for the period January 26, 1969-April 15, 1969 and for
the period August 10, 1969-October 18, 1969. During these two periods Greenbank
had only one full-time salesman, Robbins, and one full-time saleswoman, Donofrio.
For the January 26, 1969 April 15, 1969 period Robbins earned $2.61 per hour, as
against $2.14 per hour for Donofrio, incentive compensation being excluded in each
instance. Robbins' compensation was, therefore, 22% more than Donofrio's. ... {F}or
the same period Robbins was responsible for $83.40 per hour of sales as against
$50.53 by Donofrio, or 65% more than Donofrio. A like comparison between
Robbins and Donofrio for the period August 10, 1969 through October 18, 1969
reveals that whereas Robbins generated 43% more gross sales per hour his
compensation per hour was only 14% more per hour than Donofrio, again excluding
incentive pay.
The discussion thus far relates to a comparison between the wage rate of an

Labor and Employment Law

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Hodgson v. Robert Hall Clothes

individual full-time salesman and an individual full-time saleswoman for two limited
periods in 1969. No comparable statistics are available of record for other periods.
Sales checks made out by the individual sales employees from which dollar volumes
could be ascertained were destroyed promptly after the district manager reviewed
them. It was only a fortuitous circumstance which caused the sales slips ... to survive.
However, there is nothing in the record to indicate that the periods in 1969 ... were
not typical.
So far as full-time employees are concerned, and apart from incentive
payments, the pay differential in favor of salesmen as against saleswomen (thus far
only one of each) was based upon economic considerations and in no way upon sex.
The wage compensation disparity between part-time salesmen and part-time
saleswomen, excluding from consideration incentive payments, presents a different
story. The part-time salesmen for the period January 26, 1969 to April 15, 1969 on
the average were responsible for $44.79 of sales per hour as against $37.47 by
saleswomen, or 20% more. The average part-time salesman was paid $1.93 per hour
in wages as against $1.61 per hour to part-time saleswomen, or 20% more. For the
period August 10, 1969 to October 18, 1969 the part-time salesmen generated on the
average 46.43 dollars of sales per hour as against 43 dollars by saleswomen, or 8%
more. The average salesman was paid during the period $1.91 per hour in wages as
against $1.65 per hour to saleswomen, or 16% more.
In the case of part-time sales personnel no records of sales per hour were
introduced in evidence for periods of time other than the two discussed. There is no
suggestion that there was a deliberate destruction of records by defendants other than
in the normal course of business. It is reasonable to infer that, had the records been
available, their disclosure would not have been significantly different from that
shown by the analysis just discussed.
The conclusion is warranted that the compensation disparity (apart from
incentives) in favor of the part-time salesmen cannot be supported by any economic
benefits which defendants received from the job performances of the salesmen. The
difference in wage rates paid to the salesmen and saleswomen was not based upon
factors other than sex.
This is borne out by individual compensation and economic benefits
comparisons. Two of Greenbank's part-time female employees, Alice Raker and C.
Jarrell, were responsible for a higher per hour dollar volume of sales than three of the
part-time male employees, McGonegal, Law and Layton, during the period from
August 10, 1969 to October 18, 1969. A division of Jarrell's gross earnings (less
incentive) by hours worked and a similar computation for the part-time salesmen

Labor and Employment Law

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Hodgson v. Robert Hall Clothes

xvii

discloses that Jarrell received a lower hourly rate than all three of these part-time
salesmen, even though her gross sales per hour were more than that made by three of
the five part-time salesmen. Silbert conceded that it was possible in a given location
that an excellent saleswoman might generate more sales than a very poor salesman,
although he said that normally this would not happen. At Greenbank this did occur.
Incentive compensation presents its own unique problem and necessitates
separate consideration. Its complex nature and the purposes it was designed to serve
have been previously discussed. Here it need only be noted that the incentives paid
depended upon differences in the style, quality, price and markup between the
merchandise sold in the two departments. Except as these factors were themselves
based upon the sex of the customers, the incentive differentials were not based in any
way upon sex, and were sanctioned by 29 C.F.R. § 800.116(e).16 Although the
example given in this regulation presupposes the hiring of males and females
indiscriminately in each of two shoe departments, it is not for this reason irrelevant
to the instant case. Were this a case in which the defendant had arbitrarily employed
only females in the department paying the lower commissions, it might be. But this
did not occur. Here the necessity of close bodily contact between customers and sales
personnel made it logical and necessary for salesmen to be employed in the men's
department and salesladies in the women's department.
In its operation the ratio of incentive pay to gross sales was only about.2%
16

Section 800.116(e) reads:

(e) Commissions. The establishment of different rates of commission
on different types of merchandise would not result in a violation of
the equal pay provisions where the factor of sex provides no part of
the basis for the differential. For example, suppose that a retail store
maintains two shoe departments, each having employees of both
sexes, that the shoes carried in the two departments differ in style,
quality, and price, and that the male and female sales clerks in the one
department are performing "equal work " with those in the other. In
such a situation, a prohibited differential would not result from
payment of a lower commission rate in the department where a lower
price line with a lower markup is sold than in the other department
where the merchandise is higher priced and has a higher markup, if
the employer can show that the commission rates paid in each
department are applied equally to the employees of both sexes in the
establishment for all employment in that department and that the
factor of sex has played no part in the setting of the different
commission rates.

Labor and Employment Law

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Hodgson v. Robert Hall Clothes

xviii

more in the case of salesmen than in the case of saleswomen. This compensation
differential distinction was based solely upon factors other than sex.
Conclusion
Plaintiff is entitled to an injunction restraining defendants from (a) further
violating the Equal Pay Act at the Greenbank store {regarding part-time women}, and
(b) from withholding back wages due {part-time} salesladies at the Greenbank store
because of violation of the Equal Pay Act. The parties have agreed to attempt to
stipulate the amount of back wages which defendants must pay.
....

Labor and Employment Law

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xix

QUESTIONS FOR REFLECTION
1. What are the material facts (elements) of the
prima facie case of a violation of the Equal Pay Act?
2. With respect to each material fact of the claim,
state the evidentiary facts that proved the material
fact.
3. The Act allows a pay differential for equal jobs
if the differential is based on a factor other than sex.
The court held that economic benefit to the employer is
a factor other than sex.
Do you agree that the Act
should be interpreted in this way?
Exercise
An employer operated a health club. It was open to
men and women on alternate days.
On men's days, all
workers were male; on women's days, all workers were
female.
(The parties agreed for purposes of the case
that this job segregation was not illegal.)
The
principal duty of the managers and assistant managers of
both sexes ("managers") was to sell memberships.
Managers were compensated solely by commission on sales.
The women's division of the business generated 50 percent
more sales than the men's division. The employer paid
male managers a commission that was 50 percent higher
than the commission paid to female managers, with the
result that male and female managers earned approximately
equal pay.
Assume Robert Hall is precedent in your
jurisdiction and, using the model of legal argument,
write two opinions — one holding the pay practice legal,
the other holding the pay practice illegal.

Ù

Labor and Employment Law

503

Equal Work
Introduction
Two jobs can be different in the tasks they require,
yet be equal in terms of skill, effort, responsibility,
and working conditions.
For example, the tasks of a
nurse and a maintenance mechanic are different, but they
may require equal levels (albeit different kinds) of
skill, effort, responsibility, and be performed under
similar working conditions.a To say that the work of two
such different jobs is equal is to say that they have
The idea is that, because they
"comparable worth."
involve equal skill, effort, etc., they are equally
valuable to the employer and deserve the same rate of
compensation. The text of the Equal Pay Act lends itself
to an interpretation that embraces comparable worth:
"No employer ... shall discriminate ... between
employees on the basis of sex by paying wages
to employees ... at a rate less than the rate
at which he pays wages to employees of the
opposite sex ... for equal work on jobs the
performance of which requires equal skill,
effort, and responsibility, and are performed
under similar working conditions ...."
Congress was aware of comparable worth as the bill
that became the Equal Pay Act was debated. At the time
some large firms, using job evaluation plans, attempted
to provide equal pay to jobs of comparable worth. The
Kennedy administration urged Congress to incorporate
comparable worth into the bill, but Congress refused.
The legislative history seems clear that Congress
a

The student may be thinking that the working conditions
of nurses and mechanics are different.
The Equal Pay Act
specifies, however, that working conditions need only be
"similar." Also, in Corning Glass Works v. Brennan, 417 U.S.
188 (1974), the Supreme Court held that the term "working
conditions" in the Act refers only to "surroundings" and
"hazards," which terms are defined technically. Surroundings
are things such as toxic chemicals and fumes, and hazards are
physical hazards. It is possible, therefore, that the working
conditions of nurses and mechanics in a given hospital might
be similar.

Labor and Employment Law

ii

504

Brennan v. Prince William Hospital

rejected the proposal to require that different jobs
receive equal pay simply because they require equal
levels of skill, effort, etc.
The courts have read the text of the Equal Pay Act
in light of its legislative history. Equal work means
not only equality of skill, effort, responsibility, and
working conditions, but also substantial identity of
tasks. Accordingly, if one of the jobs requires a task
that the other does not, and if performing this
additional task is a crucial aspect of the job — the
chief measure of this being how much of the day the
worker must devote to the task — the jobs are not equal.
The following case requires mediated application of
law to fact on issues pertaining to equal pay. When a
tribunal engages in mediated application of law to fact,
precedents are used as rules of law. Commonly, one party
urges the tribunal to use an earlier case (let us call it
A v. B) as a precedent.
If the other party is unhappy with
A v. B as a precedent, (1) the party may argue that A v. B is
distinguishable from the case at bar, in other words,
that significant differences exist between the facts of
A v. B and the facts of the case at bar; or (2) the other
party may argue that A v. B is incorrect, in other words, it
is an erroneous decision that should not be followed. Of
course, the tribunal may accept or reject such arguments.
To accept the argument is to decide not to use A v. B as a
precedent; in this event, the tribunal will (at least, it
should) state the differences in facts between the
rejected precedent and the case at bar. To reject the
argument is to decide to follow A v. B as a precedent; in
this event, the tribunal will (should) state the
similarity of facts between the precedent and the case at
bar.b

b

The student will notice that the case contains numerous
citations to earlier cases. In the interest of conserving
space, we have usually deleted such citations from the cases
in this book.
We have preserved the citations in the
following case to illustrate how earlier cases are used in
mediated application of law to fact. However, still being
conscious of space, we have omitted all but the first citation
in instances where the court has cited more than one case in
support of an assertion.

Labor and Employment Law

505

Brennan v. Prince William Hospital

iii

Like all cases, the following one also requires
direct application of law to fact. Direct application
occurs when the tribunal can determine whether the
material facts of the rule(s) of law are true of the case
at bar. In the example of A in the Note on Application
of Law to Fact, once the tribunal determined how fast A's
car was moving, it was immediately obvious that A had
exceeded the speed limit.
Most cases concerning
violations of the Equal Pay Act require extensive direct
application of law to fact.
The reason is that each
element of the plaintiff's claim calls for detailed
comparison of the man's job and the woman's job.
The
details of the jobs are evidentiary facts, which the
tribunal must compare in order to determine whether the
material facts of the claim, such as equal work and equal
effort, are true.

Labor and Employment Law

506

Peter Brennan, Secretary of Labor
v.
Prince William Hospital Corporation
503 F.2d 282 (4th Cir., 1974)

BUTZNER, CIRCUIT JUDGE:
The Secretary of Labor appeals from the dismissal of an action against Prince
William Hospital to equalize pay of male hospital orderlies and female nurses' aides
in conformity with the Equal Pay Act of 1963. The district court noted that the facts
were not in dispute and that the controversy centered on the inferences to be drawn
from them. It found that although aides and orderlies do the same type of patient care
work, the following differences exist between the jobs: the proportions of routine
care tasks are not the same; aides do work which orderlies are neither required nor
permitted to do; and, most important, orderlies do work, including extra tasks, which
aides are neither required nor permitted to do. It concluded, therefore, that the
Secretary had failed to establish that the aides and orderlies perform substantially
equal work.
We believe that the district court gave undue significance to these differences
because it misapprehended the statutory definition of equal work, which embraces
the concepts of "skill, effort, and responsibility."2 Since it applied an improper legal
standard to the relevant facts, we reverse and remand for the entry of judgment for
the Secretary.
I
In applying the Congressional mandate of equal pay for equal work on jobs
which require equal skill, effort, and responsibility, there are two extremes of
interpretation that must be avoided. Congress realized that the majority of job
differentiations are made for genuine economic reasons unrelated to sex. It did not
authorize the Secretary or the courts to engage in wholesale reevaluation of any
employer's pay structure in order to enforce their own conceptions of economic
worth. See Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7th Cir. 1972). But
if courts defer to overly nice distinctions in job content, employers may evade the Act
at will. Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1049 (5th Cir. 1973). The
response to this dilemma has been to require the Secretary to prove substantial

2

29 U.S.C. § 206(d)(1). Congress patterned the Equal Pay Act on the principles of
job classification by which many employers set wage rates. Under these principles, each
job is rated in terms of the skill, effort, and responsibility required to do it, and the working
conditions of the place where it is performed. See Corning Glass Works v. Brennan 417
U.S. 188 (1974).

Labor and Employment Law

507

Brennan v. Prince William Hospital

v

equality of skill, effort, and responsibility as the jobs are actually performed. See
Hodgson v. Fairmont Supply Co., 454 F.2d 490, 493 (4th Cir. 1971).
One of the most common grounds for justifying different wages is the
assertion that male employees perform extra tasks. These may support a wage
differential if they create significant variations in skill, effort, and responsibility
between otherwise equal jobs, see, e.g. Hodgson v. Golden Isles Convalescent
Homes, Inc., 468 F.2d 1256 (5th Cir. 1972). But the semblance of a valid job
classification system may not be allowed to mask the existence of wage
discrimination based on sex. The Secretary may therefore show that the greater pay
received by the male employees is not related to any extra tasks and thus is not
justified by them. Higher pay is not related to extra duties when one or more of the
following circumstances exists:
Some male employees receive higher pay without doing the
extra work. E.g. Shultz v. American Can Co.-Dixie Products, 424
F.2d 356 (8th Cir. 1970).
Female employees also perform extra duties of equal skill,
effort, and responsibility. E.g. Hodgson v. Fairmont Supply Co., 454
F.2d 490 (4th Cir. 1971).
Qualified female employees are not given the opportunity to
do the extra work. E.g. Shultz v. Wheaton Glass Co., 421 F.2d 259
(3d Cir. 1969).
The supposed extra duties do not in fact exist. E.g. Hodgson
v. Security National Bank, 460 F.2d 57 (8th Cir. 1972).
The extra task consumes a minimal amount of time and is of
peripheral importance. E.g. Hodgson v. Behrens Drug Co., 475 F.2d
1041 (5th Cir. 1973).
Third persons who do the extra task as their primary job are
paid less than the male employees in question. E.g. Shultz v. Wheaton
Glass Co., 421 F.2d 259 (3d Cir. 1969).
In all of these cases the basic jobs were substantially equal. Despite claims to the
contrary, the extra tasks were found to be makeweights. This left sex — which in this
context refers to the availability of women at lower wages than men — as the one
discernible reason for the wage differential. That, however, is precisely the criterion
for setting wages that the Act prohibits. See Brennan v. City Stores, Inc., 479 F.2d
235, 241 n.12 (5th Cir. 1973).

Labor and Employment Law

vi

508

Brennan v. Prince William Hospital

II
Although a number of courts have applied the Equal Pay Act to hospital and
nursing home aides and orderlies, varied employment practices among institutions
have prevented the development of an industry-wide standard. The Act must be
applied on a case by case basis to factual situations that are, for practical purposes,
unique. See Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256, 1258
(5th Cir. 1972). It is therefore necessary to examine in some detail the employment
practices of Prince William Hospital, even though the material facts are not in
dispute.
Prince William is a 154 bed general hospital in Manassas, Virginia. It
contains four medical and surgical units, intensive care and cardiac facilities, an
obstetric floor with a nursery, four operating rooms, and an emergency room.
Average occupancy is 120 patients, 60% female.
Floor orderlies and nurses' aides provide routine patient care under the
supervision of nurses. The hospital hires only men as orderlies and only women as
aides. Their numbers varied during the time covered by this case, ranging between
30-40 aides and 5-10 orderlies. When the case was tried, there were four full-time
floor orderlies and thirty-four full-time aides, plus three part-time orderlies and three
part-time aides. Full-time employees work five eight-hour shifts per week.
The hospital has maintained a pay differential between the two jobs since
1969. It uses a pay system with thirteen pay grades and five steps within each grade.
Grades are assigned to positions and steps within grade show merit or longevity. All
nurses' aides are in grade I, in which the hourly pay ranges from $1.98 to $2.31, and
all orderlies are in grade II, in which the hourly pay ranges from $2.08 to $2.43,
depending on the step in which the employee has been placed.
Before 1969 aides and orderlies had been paid the same wages, but the
hospital had difficulty in hiring orderlies. The hospital's administrator believed that
a higher wage was needed to attract orderlies because of the limited number of men
willing to do housekeeping and personal care work. When the orderlies' wage was
raised, they were given the additional duty of catheterizing male patients.
Hiring criteria for aides and orderlies are identical: a tenth grade education,
personal cleanliness, and a desire to work with people. Experience, though desirable,
is unnecessary. Although the educational level of the aides was somewhat lower,
both groups included individuals who had not finished high school. The pay
differential follows neither experience nor education. An aide with prior hospital
experience starts in grade I step 2 ($2.06), while a completely inexperienced orderly

Labor and Employment Law

509

Brennan v. Prince William Hospital

vii

starts in grade II step 1 ($2.08).
Aides and orderlies are the least skilled persons who care for patients. They
participate in a common orientation program, but much of their training is acquired
on the job. Each is assigned six to eight patients who require routine care. Whenever
possible orderlies are assigned to male patients and aides to female, but the shortage
of orderlies requires aides to care for males. Most of the time, aides and orderlies are
occupied with tasks related to routine patient care that do not require the skills of a
trained nurse.
The principal duties of both, which the hospital's director of nursing stated
were identical, can be divided into four groups: patient care, which includes oral
hygiene, back rubs, baths, bed-making, answering calls, giving bed pans, feeding,
transporting the patient, and assistance with ambulation; minor treatment, which
includes weighing, taking pulse, temperature, or blood pressure, draping and
positioning the patient, administering heat pads and ice packs, assistance with
dressing changes, and giving enemas; housekeeping, which includes room cleaning,
equipment care and cleaning, work area cleaning, and obtaining supplies; and
miscellaneous tasks, including answering the phone, running errands, and
transportation to the morgue.
The hospital emphasized statistical evidence which shows that aides and
orderlies do not perform all of their routine tasks with equal frequency. One of its
exhibits, for example, shows that aides write charts, make beds, give baths, rub backs
and fetch bed pans more often than orderlies. Orderlies, on the other hand, bring
supplies, run errands and assist the nurses with their duties more often than aides.
These distinctions, however, do not show any difference in skill, effort or
responsibility. All of the routine tasks are relatively simple. None performed more
frequently by the orderlies requires the exertion of significantly more skill, effort, or
responsibility than those performed more frequently by the aides. As hired, trained,
and employed, the orderlies and aides are practical substitutes for one another in the
performance of their basic duties. Disproportionate frequency in the performance of
the same routine tasks does not make the job unequal. See 29 C.F.R. § 800.123
(1973).
III
The district court also found that aides perform certain duties which orderlies
do not. Specifically, it found that some of the aides work in the obstetric department
and care for infants in the nursery. Orderlies were not assigned to obstetrics,
according to the director of nursing, for two reasons: there were no male patients and
their lifting ability was unneeded there. Aides assigned to obstetrics performed the

Labor and Employment Law

viii

510

Brennan v. Prince William Hospital

same duties as those on the medical and surgical wards. These facts do not show any
differences in skill, effort, or responsibility. Unless there is a difference of working
conditions involved, which is not contended here, there is no reason why the
performance of the same duties in a different location should be a significant
difference in the jobs. See 29 C.F.R. § 800.123 (1973).
IV
The final — and in some respects the most difficult — aspect of this case
pertains to extra duties throughout the hospital that are assigned to the orderlies but
not to the aides. These duties are specified in the job description of the orderlies. The
district court found that the following extra duties were the most significant: heavy
lifting, assisting in the emergency room, performing surgical preps on male patients,
providing physical security by dealing with combative or hysterical persons, and
catheterization of male patients.
Job descriptions and titles, however, are not decisive. Actual job requirements
and performance are controlling. See 29 C.F.R. § 800.121 (1973). This aspect of the
case, therefore, turns primarily on the extent to which the aides and orderlies actually
perform the extra duties nominally assigned to the orderlies and on the skill, effort
and responsibility involved in those tasks which the orderlies alone perform.
In addition to caring for assigned patients, orderlies are required to answer
calls to different parts of the hospital. On these excursions, called floating, they
perform either their basic duties or the extra tasks. Floating itself adds nothing to the
level of skill or responsibility, for that depends on the work done in the other
locations. It might add to the degree of effort involved if the orderlies, in addition,
had to perform their full basic workload. This, however, is not the case. According
to the director of nursing, an orderly's routine duties at his assigned station are
reassigned to other staff personnel, including the aides, when he is in another part of
the hospital.6
The job description states that orderlies are expected to perform total lifting
of heavy or helpless patients and to set up traction equipment. The district court,
however, found that the same tasks are performed by aides when no orderly is
available and that aides assist orderlies in these tasks. Due to the small number of
orderlies, there are rarely more than two on duty each shift, and from time to time no

6

In contrast, Hodgson v. Good Shepherd Hospital, 327 F.Supp 143, 146 (E.D. Tex.
1971), on which the hospital relies, involved orderlies without assigned patients. The court
characterized their work as "continuous, demanding, and tiring, ... so rushed as to prevent
rest or scheduled coffee breaks or lunch periods," which was not true of the aides' job.

Labor and Employment Law

511

Brennan v. Prince William Hospital

ix

orderly is available on some of the shifts. It sometimes takes more than one aide, or
mechanical assistance, to replace an orderly, but there is no evidence that any heavy
lifting cannot be done without male assistance.7 The performance of tasks involving
physical strength, therefore, though necessary to the operation of the hospital, is not
a peculiar aspect of the orderlies' job. Strength is not a factor in the hiring of
orderlies, except in the very general sense that the hospital assumes that a man
usually is stronger than a woman. A large, burly woman would not be hired as an
orderly, nor would a small, delicate man be hired as an aide. But the converse is not
true. One of the orderlies is 5 feet 2 inches tall and weighs 125 lbs., while one aide
is 6 feet 1 inch and weighs 225 lbs. The wage differential therefore can not be
justified on the grounds that the hospital is maintaining a reserve of strong men for
essential tasks.
Heavy lifting does not add significantly to the effort involved in the orderlies'
job. In the ten working days covered by the hospital's survey of activities, the
orderlies set up traction only once and lifted or assisted patients of unknown weight
54 times. Aides set up traction and lifted or ambulated patients a proportionate
number of times. The extra effort, if any, is not substantial.
The emergency room is staffed by an orderly whose status is not questioned
in this action. The hospital's claim that floor orderlies "assisted" there is supported
only by the job description, but a mere job description without evidence of actual
performance does not establish the existence of extra duties. Hodgson v. Brookhaven
General Hospital, 436 F.2d 719, 724 (5th Cir. 1970). Aides were also called to work
in the emergency room. The record proves no more than that both aides and orderlies
performed their normal duties with minor variations in a different location.
All surgical preps during the day shifts are done by the operating room staff.
On the evening and night shifts, surgical preps on men are done by orderlies, and on
women by aides or nurses. Aides also do surgical preps in the obstetric ward. A
person performing a prep explains to the patient what is about to be done, shaves the
area where the incision will be made, and washes it with antiseptic soap. The skill,
effort, and responsibility involved are identical regardless of the patient's sex.

7

The reverse was true in Hodgson v. Golden Isles Convalescent Homes, Inc., 468
F.2d 1256 (5th Cir. 1972); Hodgson v. Good Shepherd Hospital, 327 F.Supp 143 (E.D. Tex.
1971); and Hodgson v. William and Mary Nursing Hotel, 20 W.H. Cases 10 (M.D. Fla.
1972), in all of which orderlies were required to transport and set up heavy, bulky oxygen
equipment which was unsafe or impossible for the aides to move. In addition, the aides in
William and Mary were forbidden to move patients by themselves. 20 W.H. Cases at 23.

Labor and Employment Law

x

512

Brennan v. Prince William Hospital

Physical security, as an extra duty, has two components. Because of his size
and sex, the presence of a male orderly is claimed to reassure the other staff and exert
a calming and deterrent effect on potentially violent patients or intruders. Because of
his superior strength, he is given the primary responsibility for restraining actually
violent persons. According to the hospital, he therefore possesses a special skill and
is required to exert extra effort.
The hospital's contention, however, is contradicted by the record. Although
in theory the orderly deals with disturbances, in practice the nearest staff member is
expected to do so until assistance comes. Aides are expected to restrain violent or
disoriented patients themselves when possible. They also deal with intruders. The
hospital's tabulation of orderly and aide activity shows aides spending a larger
proportion of their time than orderlies in applying restraining devices to patients.
There is no evidence that orderlies do more actual physical restraint than aides.
No doubt the physical presence of a man in the house does have a comforting
effect on the staff. It is doubtful, though, that this is a significant component of the
orderly job. Unlike hospitals in which providing physical security has been found
significant,8 Prince William Hospital does not handle psychiatric, alcoholic, criminal,
or other potentially dangerous patients. There is no evidence that episodes caused by
violent or confused patients are so frequent or dangerous that orderlies are necessary
for the safety of the staff. Security guards are called to deal with violent episodes
even when orderlies are available. Moreover, the ability to deal with confused or
violent patients, according to the director of nursing, is as much a function of attitude
and experience as of size and strength. If the orderly's superior strength is an extra
skill, it is a peripheral part of his employment.
The hospital places great emphasis on the fact that orderlies insert Foley
catheters in male patients. It contends that the task is a highly skilled and responsible
procedure, requiring 30 to 45 minutes of an orderly's time.
A Foley catheter is a sterile tube which is inserted in the patient's urethra to
drain the bladder. Orderlies catheterize male patients with unobstructed urinary
tracts. If any difficulty is foreseen or experienced, a physician catheterizes the patient.
Nurses catheterize female patients. They are competent to catheterize males, but
prefer not to do so for reasons of modesty. Since the hospital has enough nurses to

8

E.g. Hodgson v. Owensboro-Daviess County Hospital, 21 W.H. Cases 250 (W.D.
Ky. 1972) (primary care of violent patients, alcoholics, and addicts); Hodgson v. Good
Shepherd Hospital, 327 F.Supp 143 (E.D. Tex. 1971) (violent alcoholics, addicts, and
psychiatric patients in lockup cells); Hodgson v. William and Mary Nursing Hotel, 20 W.H.
Cases 10 (M.D. Fla. 1971) (geriatric facility with many senile patients).

Labor and Employment Law

513

Brennan v. Prince William Hospital

xi

catheterize women, aides are not assigned this duty. The orderly's job therefore does
call for the exercise of skill and responsibility which is not required of the aides.
However, no more than one or two routine catheterizations are usually
performed each week. When no floor orderly is present, other qualified male
personnel are available to do them. The hospital looks for no special skill in this
regard from its prospective orderlies, but concedes that "any reasonably dextrous
person can learn male catheterization on the job." Orderlies were assigned this duty
only when the hospital decided that a higher wage rate was needed to attract men for
routine care work, and new orderlies who have not yet learned to catheterize are
nevertheless paid at the higher rate.
Like any other extra duty, catheterization must be evaluated as part of the
entire job. In Hodgson v. Fairmont Supply Co., 454 F.2d 490, 496 (4th Cir. 1972),
we pointed out that when jobs were substantially equal, a minimal amount of extra
skill, effort, or responsibility cannot justify wage differentials. Infrequent
performance of catheterizations, unaccompanied by other extra skills and
responsibilities, has never been held to support a pay differential between aides and
orderlies. The orderlies in Hodgson v. William and Mary Nursing Hotel, 20 W.H.
Cases 10 (M.D. Fla. 1971), for example, a case in which the district court found
catheterization to be a significant extra duty, also moved heavy equipment,
administered suction therapy, and did other demanding work not done by aides.
Catheterizations, moreover, were frequent and difficult in that geriatric nursing home.
Similarly, catheterization was only one element of the orderlies' duties, which
differed fundamentally from the aides in Hodgson v. Good Shepherd Hospital, 327
F. Supp. 143 (E.D. Tex. 1971). In contrast, catheterization which only consumed a
minimal amount of time was considered to be an insubstantial difference in Shultz
v. Brookhaven General Hospital, 305 F. Supp. 424 (E.D. Tex. 1969). We conclude,
therefore, that orderlies' pay differential cannot be justified on the basis of the
occasional extra work involved in catheterizing male patients.
In sum, the work performed by aides and orderlies is not identical. But, as we
have previously held, application of the Equal Pay Act is not restricted to identical
work. Hodgson v. Fairmont Supply Co., supra, 454 F.2d at 493. The basic routine
tasks of the aides and orderlies are equal. The variations that the district court found,
when tested by the Act's standard of "equal skill, effort, and responsibility," do not
affect the substantial equality of their overall work.

Labor and Employment Law

xii

514

Brennan v. Prince William Hospital

The judgment of the district court is reversed, and this case is remanded for
entry of judgment for the Secretary.

Labor and Employment Law

515

Brennan v. Prince William Hospital

xiii

Exercises
1. Sometimes a rule of law can be applied directly
to the facts of a case without the mediation of
additional rules of law. The law is sufficiently refined
to decide the case. To say the same thing, mediation
between the existing rule and the facts is unnecessary;
no further distinctions need be drawn; we have reached
the appropriate level of abstraction.
Indeed, direct
application of law to fact is always the final step in
the process.
Find in Prince William Hospital at least one
instance in which the court directly applies an existing
rule of law to the facts of the case. State the material
fact in issue, and make a list of the evidentiary facts
the court uses to establish the material fact.
HINT:
look at the court's discussion of duties that aides
performed and orderlies did not.
2. Often an existing rule of law cannot be applied
directly to the facts of the case at bar; in consequence,
an additional rule of law is needed to mediate between
the existing rule and the facts. A court can create the
needed rule, but usually prefers to find one in
precedent. Find in Prince William Hospital an instance
in which a rule was needed in addition to the existing
rule of law, and the court found the additional rule in
precedent. Then state the material fact in issue, and
make a list of the evidentiary facts the court uses to
establish the material fact. HINT: look at duties in the
emergency room or at orderlies' duty to catheterize
patients.
3. Parties commonly cite precedents in applying law
to fact, and opposing parties try to distinguish such
precedents.
Find in Prince William Hospital two
instances in which one party cited a precedent, but the
court found it was distinguishable. Make a list of the
facts that distinguished the precedents from the case at
bar.
HINT: look at orderlies' floating duties, at
orderlies' duty of lifting patients and setting up
traction equipment, and at orderlies' duty of providing
physical security.

Labor and Employment Law

516

xiv

Brennan v. Prince William Hospital

Tutorials
After answering the questions above, the student
should read the following hypothetical case and do the
interactive exercises after the hypothetical.
AS
background, the student should know that the Supreme
Court wrote in NLRB v. Babcock & Wilcox, 351 U.S. 105,
112-113 (1956):
[A]n employer may validly post his property against
nonemployee distribution of union literature if
reasonable efforts by the union through other
available channels of communication will enable it
to reach the employees with its message and if the
employer's notice or order does not discriminate
against the union by allowing other distribution.
In these circumstances the employer may not be
compelled to allow distribution. . . .
...
The plants {in the case at bar} are close to small
well-settled communities where a large percentage
of the employees live. The usual methods of
imparting information are available. See, e. g.,
note 1, supra.

Footnote 1, which was a quotation from the Labor Board's
decision in the case, read:
1. Other union contacts with employees: In
addition to distributing literature to some of the
employees, as shown above, during the period of
concern herein the Union has had other contacts
with some of the employees. It has communicated
with over 100 employees of Respondent on 3
different occasions by sending literature to them
through the mails. Union representatives have
communicated with many of Respondent's employees by
talking with them on the streets of Paris, {Texas}
by driving to their homes and talking with them
there, and by talking with them over the telephone.
All of these contacts have been for the purpose of
soliciting the adherence and membership of the
employees in the Union." 109 NLRB, at 492-493.

Id. at 7.

Labor and Employment Law

517

Brennan v. Prince William Hospital

xv

Hypothetical Case
Jordan, Unlimited, an employer covered by the Labor
Act, owns an independent company that explores and drills
for oil. After geologists identify a promising site and
lawyers and executives negotiate a lease, Jordan's
roughnecks sink a well and, if it is successful, pump oil
from it.
At the present time, Jordan operates three offshore
wells in American territory in the Gulf of Mexico. Over
each well is a large floating platform on which the
roughnecks work, eat, and sleep for two weeks at a time.
The platform is close enough to the mainland to receive
television and radio programs from Galveston, Texas, as
well as satellite programs. The platform is also linked
to the mainland by telephone, and mail and newspapers are
delivered by helicopter daily.
The roughnecks are grouped into three crews of fifty
persons.
Each crew works two weeks on the platform,
followed by a week's vacation. On the platform, a crew
works 12 hours and rests 12 hours. The crews' weekly
schedules overlap. Thus, on Platform 1, Kareem's crew
(the crews are identified by the name of their foreone)
worked January 1-14; Julius's crew worked January 8-21;
Oscar's crew worked January 15-28; Kareem's crew worked
January 22-February 4, etc. On Mondays the crews are
flown by helicopter between the platform and the
Galveston airport.
Few of the roughnecks live in Galveston; their homes
are scattered across five states.
As part of their
compensation, Jordan reimburses them up to $450 towards
the cost of the round-trip airfare from their homes to
Galveston each two weeks.
Jordan does not charge
roughnecks for room or board while they are on the
platform. Excluding reimbursement for airfare and the
value of room and board on the platform, Jordan pays the
roughnecks $1,500 per week on the platform.
Local 3 of the Chattelers, Tattlers, and Dawdlers of
the World represents roughnecks employed by other
companies operating near Jordan's wells.
Recently, a
roughneck named Greenstein approached Garland, the
president of Local 3, and asked it to organize his crew.
Garland said he wanted some indication that other members

Labor and Employment Law

xvi

518

Brennan v. Prince William Hospital

of the crew were interested in unionizing; he suggested
that Greenstein talk to his crew mates and distribute
union literature. Greenstein agreed and began doing so
as soon as he returned to Platform 1.
When the
superintendent of the platform learned what Greenstein
was doing, the former instructed the latter to cease.
Garland immediately filed an unfair labor practice
charge, which was sustained by the Labor Board.
Then Garland asked Jordan's permission to ride on
the Monday helicopter and talk to the roughnecks on the
platforms while they were off duty. Jordan refused.
Garland offered to arrange his own transportation to and
from the platforms for the same purpose. Jordan refused
again. He added that only employees were allowed on the
platforms, and this fact was true. Garland asked for a
list of the names and home addresses of the roughnecks.
Jordan replied that the information was confidential.
Local 3 made no further efforts to communicate with
the roughnecks, but it filed a charge of unfair labor
practice against Jordan. The foregoing facts were proved
at a hearing before an administrative law judge.
Now do the tutorial entitled "Applying Law to Fact
Without Using Precedents." When you have completed it,
do the tutorial entitled "Applying Law to Fact Using
Precedents."

Ù

Labor and Employment Law

519

Equal Effort and Similar Working Conditions
Introduction
One of the requirements for a plaintiff to prove a
violation of the Equal Pay Act is that the man's and the
woman's jobs must involve equal effort. The following
case examines whether the effort needed to perform the
job of heavy cleaner, held primarily by men, was equal
to, or greater than, the effort needed to perform the job
of light cleaner, held entirely by women.
Note how the court deals with the argument of the
government that effort was equal because the total amount
of effort expended by workers was equal for the two jobs,
and the opposing argument of the employer that effort was
not equal because the effort expended on some specific
tasks of heavy cleaning exceeded the effort expended on
any specific task of light cleaning.
These competing
arguments may be abstracted as follows:
Heavy Cleaning

Light Cleaning

Task A
Effort per repetition: 20
No. of repetitions:
1
Effort per day:
20

Task W
Effort per repetition: 3
No. of repetitions:
10
Effort per day:
30

Task B
Effort per repetition: 5
No. of repetitions:
8
Effort per day:
40

Task X
Effort per repetition: 5
No. of repetitions:
2
Effort per day:
10

Task C
Effort per repetition: 10
No. of repetitions:
4
Effort per day:
40

Task Y
Effort per repetition: 4
No. of repetitions:
10
Effort per day:
40
Task Z
Effort per repetition: 2
No. of repetitions:
10
Effort per day:
20

Total effort per day: 100

Total effort per day: 100

Labor and Employment Law

ii

520

Usery v. Columbia University

We continue to examine the skill of application of
law to fact. In this process, step 1 is to state the
general rule of law. Step 2 is to state any additional
rules of law needed to mediate between the general rule
and the facts of the case at bar. (Step 2 is usually,
but not always, necessary.) Step 3 is to find the facts
of the case. And step 4 is to apply the law directly to
the facts of the case. Pay particular attention to (step
2) how the court uses precedent to identify the mediating
rules of law, and to (step 4) how
the court
distinguishes cases that reached different results on
similar facts.

Labor and Employment Law

521

W. J. Usery, Jr., Secretary of Labor
v.
Columbia University
568 F. 2d 953 (2d Cir. 1977)

TIMBERS, Circuit Judge.
On this appeal from a judgment entered after a bench trial in the Southern
District of New York, Richard Owen, District Judge, 407 F. Supp. 1370, the essential
question presented is whether the work performed respectively by the heavy and light
cleaners employed by Columbia University is "equal" within the meaning of the
Equal Pay Act of 1963 (the Act). We agree with the district court that the work is not
equal. We affirm.
I.
The Equal Pay Act prohibits an employer from discriminating "between
employees on the basis of sex by paying wages to employees ... at a rate less than the
rate at which he pays wages to employees of the opposite sex ... for equal work on
jobs the performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions ...."
Invoking the enforcement provisions of the Fair Labor Standards Act, the
Secretary of Labor commenced the instant action against Columbia University and
its president (Columbia) on March 11, 1974. The action sought to enjoin Columbia
from discriminating against its female light cleaners, allegedly on the basis of sex in
violation of the Equal Pay Act, by paying them at a lower hourly rate than that paid
to its male heavy cleaners. The action also sought an injunction against further
violations and an award of back pay.
At a 15 day bench trial during September and November 1974, the parties,
focusing upon the statute's "equal ... effort" criterion, produced extensive evidence on
the physical requirements of the heavy and light cleaning positions. The crux of Judge
Owen's finding of fact on this critical issue is set forth in his opinion dated February
11, 1976 as follows:
"The jobs of heavy cleaner and light cleaner are different. Going
beyond the job descriptions, from the extensive testimony adduced
before me at the trial, it is clear that the job of heavy cleaner involves
greater effort than that of light cleaner." 407 F. Supp. at 1374-75.
Accordingly, the judge held that the Secretary had failed to sustain the burden of
proving that the heavy and light cleaners perform equal work within the meaning of
the Act. From the judgment dismissing the action, the Secretary has taken the instant
appeal.

Labor and Employment Law

iv

522

Usery v. Columbia
II.
...

For more than 30 years Columbia has divided the duties of its custodial force
into "heavy" and "light" categories. At the time of trial it employed 160 heavy
cleaners (designated "janitors" prior to 1972), 4 of whom were female, and 111 light
cleaners (designated "maids" prior to 1972), all of whom were female. Since 1972 all
heavy cleaning positions have been open to applicants of both sexes.5 No male ever
has applied for the position of light cleaner. The light cleaners always have been paid
less than the heavy cleaners. The differential was 45 cents an hour at the time of trial.
Columbia assigns approximately 80% of the light cleaners to its academic
buildings and the remainder to its residence halls. Each cleaner in the group assigned
to the academic buildings has daily responsibility for between 1 and 5 floors,
depending on the size of the building and the functions of the particular rooms
included in the assignment. The functions are those one would expect at any
university, including classrooms, offices, library stacks, and the like. The light
cleaners dust mop or vacuum the floors of the rooms and some of the corridors; dust,
polish, or dampcloth the furniture, fixtures, baseboards and windowsills; and remove
small spots from the walls, floors and doors. They also empty wastebaskets and
ashtrays into trash bags. These are deposited at the elevator on each floor where they
are picked up by heavy cleaners. In performing their work the light cleaners use dust
mops, carpet sweepers, household vacuum cleaners, toy brooms, rags, sponges and
14 quart buckets. Some of the light cleaners transport this equipment in wheeled
carts which weigh 60 pounds unloaded. The equipment itself, including a vacuum
cleaner, creates a 21 pound load, to which a full trash bag adds an indeterminate
amount of weight up to 30 pounds.
The light cleaners assigned to the residence halls perform the same functions
as those performed in the academic buildings. Each day they clean the common
rooms and offices on the ground floors, and the corridors and lounges on the

5

For heavy cleaning work Columbia has been paying more in cleaning wages to a limited
number of women since 1949 when the classification "shower maid" first appeared in its
collective bargaining agreement. This classification encompassed the female cleaners
assigned to the showers and lavatories in the women's residence hall at Columbia. The
classification never included more than 8 employees. At the time of trial 2 of the 4 female
heavy cleaners performed the "shower maid" function.
All other heavy cleaner positions were limited to men until 1972 when Columbia
opened them to women. The remaining 2 women employed as heavy cleaners at the time of
the trial worked within this broad, formerly male, classification.

Labor and Employment Law

523

Usery v. Columbia

v

residential floors. Students' rooms are cleaned on a special assignment basis when
unoccupied during the summer.
The heavy cleaners may be grouped roughly into four categories: (1) those
assigned to public corridors, lobbies, stairways and elevators; (2) those assigned to
public lavatories; (3) those permanently assigned to special projects; and (4) those
assigned to certain off-campus buildings.
The primary daily responsibility of group (1) is to wet mop the corridors,
lobbies, stairways, elevators, classrooms and laboratories of the academic buildings.
They also collect the bags of trash left on each floor by the light cleaners and
transport them to dumping areas.
The heavy cleaners in group (2) clean daily the university's public lavatories.
They dust and wet mop the floors, clean the toilets and sinks, empty the trash, and
wash marks from the walls. Many of the heavy cleaners in this group assist the heavy
cleaners in the first group with the job of removing trash. Depending on the load, this
takes from less than one-half hour to 2 hours daily.
In their wet mopping both of these groups use a dolly which carries two 44
quart buckets with wringers and cleaning solution. The dolly weighs 60 pounds empty
and up to 140 pounds full. For larger areas they use mop trucks which hold 30 or 60
gallons. These weigh from 160 to 200 pounds empty and from 300 to 500 pounds
full. Trash removal is accomplished by the use of trucks. These are 6 feet long, 3 feet
wide and 6 feet high, and weigh 200 pounds empty and up to 800 pounds full.
The heavy cleaners in groups (1) and (2) perform additional tasks on an
occasional basis. These include loading, unloading and transporting drums of
cleaning solvent which hold 55 gallons of liquid and weigh from 400 to 600 pounds;
climbing 14 foot ladders to clean in high places and change light bulbs; vacuuming
carpets with industrial machines which weigh from 74 to 96 pounds empty and from
122 to 192 pounds full; cleaning carpets with motorized pile lifters; shoveling snow
from entrance ways; and turning on and off heavy ventilation equipment.
The special projects handled by group (3) of the heavy cleaners are jobs done
regularly but infrequently. These include scrubbing and stripping floors, shampooing
rugs and washing Venetian blinds.
The work assignments of those classified in groups (1), (2) and (3) are not
necessarily hard and fast. For example, in Avery Hall, one of the smaller buildings,
one heavy cleaner wet mops all the corridors and staircases, cleans the lavatories and
does any project work. (Two light cleaners handle the offices and libraries in that

Labor and Employment Law

vi

524

Usery v. Columbia

building). In contrast, in a large building such as Butler Library, assignments of the
5 heavy cleaners in the building are divided among the 3 classifications. (Eleven light
cleaners are assigned to Butler).
The heavy cleaners in group (4) are assigned to small converted office
buildings located on streets adjacent to Columbia's main campus. They primarily
perform light cleaning duties. Light cleaners handled these assignments until 1974
when considerations of security prompted Columbia to substitute male employees.
The buildings involved are outside of the security perimeter of the main campus and
are cleaned during the midnight to 8 A.M. shift. Before the change heavy cleaners
escorted the light cleaners from the main campus to these buildings and locked them
in. Each light cleaner then spent the night alone in her respective building and later
was escorted back to the main campus.
These off-campus buildings are the only exception to the otherwise uniform
line of demarcation which Columbia maintains between "heavy" and "light" cleaning
tasks. Written job descriptions listing the heavy and light cleaning tasks are
incorporated in the collective bargaining agreements between Columbia and the
Transport Workers' Union.7
The cleaners themselves are well aware of the distinction between heavy and
light assignments and have not hesitated to enforce it. In 1971, for example, 8 light
cleaners successfully protested an assignment to remove heavy trash. Columbia
moreover has changed from "light" to "heavy" certain assignments which technically
were in the "light" category but which in practice called for physical exertion
comparable to that of the heavy cleaning tasks. The wastebaskets in the Journalism
building, for example, frequently are filled with books, magazines and other heavy
materials. After the light cleaners in the building complained of the resulting burden,
the job of emptying these wastebaskets was reassigned to heavy cleaners. The heavy
cleaners also collect the heavy trash which accumulates in the chemistry laboratories
and the architecture drafting rooms.
The light cleaners' perception of the distinction between their duties and those
of the heavy cleaners has manifested itself in other ways as well. Seven light cleaners
applied for and were accepted as heavy cleaners when Columbia first opened the
heavy cleaner category to women in 1972. On-the-job training commenced. By the
end of 7 weeks, 4 of the 7 had transferred back to light cleaning. No light cleaners
have applied for heavy cleaner openings posted since that time. At trial several light
cleaners testified that they had not applied for heavy cleaning positions because heavy
7

The Transport Workers' Union is the exclusive bargaining agent for all of Columbia's
custodial and maintenance employees.

Labor and Employment Law

525

Usery v. Columbia

vii

cleaning tasks were beyond their capacity. As one of them put it, "I cannot do a
heavier job than I have already."
...
III.
Since job content is a matter determined by the particular employer, whether
two job classifications entail "equal work" under the Act necessarily must be decided
on a case-by-case basis. Brennan v. Prince William Hospital Corp., 503 F.2d 282,
286 (4 Cir. 1974). The burden of proving that "equal work" is involved is on the
Secretary. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). But in
meeting that burden the Secretary does not have to prove that the duties performed
are identical. A violation of the Act may be proven if the "skill, effort, and
responsibility" required in the performance of the jobs is "substantially equal."
Hodgson v. Corning Glass Works, 474 F.2d 226, 234 (1973). One court has
suggested a balancing function in applying this "substantially equal" test:
"[Congress] did not authorize the Secretary or the courts to engage in
wholesale reevaluation of any employer's pay structure in order to
enforce their own conceptions of economic worth .... But if courts
defer to overly nice distinctions in job content, employers may evade
the Act at will." Brennan v. Prince William Hospital Corp., supra,
503 F.2d at 285.
The "equal effort" criterion — the principal issue in the instant case — has
been elaborated upon extensively in prior cases and in the interpretive bulletin
promulgated by the Secretary. 29 C.F.R. § § 800.114-800.163 (1976). Under the
Act, "effort" is the physical or mental exertion required in performing a job. So long
as the ultimate degree of exertion remains comparable, the mere fact that two jobs
call for effort different in kind will not render them unequal. Brennan v. South Davis
Community Hospital, 538 F.2d 859, 863-64 (10 Cir. 1976). Nor will effort expended
on additional tasks assigned to male employees necessarily suffice to justify a pay
differential. If the additional tasks do not consume a significant total amount of all of
the employees' time; or if female employees also perform duties which require
additional effort, Brennan v. Prince William Hospital Corp., supra, 503 F.2d at 286;
or if third persons who perform the additional tasks as their primary job are paid less
than the male employees in question, see Shultz v. Wheaton Glass Co., supra, 421
F.2d at 266 — in these situations the additional effort is insufficient to differentiate
the male positions under the Act.

Labor and Employment Law

viii

526

Usery v. Columbia

... The Secretary contends on the facts of this case that the application of these
rules requires reversal. His argument has two prongs. First, he argues that,
notwithstanding the differences between the particular tasks performed by the heavy
and light cleaners, they ultimately expend equivalent amounts of effort. What the
light cleaners save in not having to deal with heavy equipment, so the argument goes,
they expend in having to cover larger areas and in handling additional fixtures and
furniture.10 Second, he attacks the significance the district court attached to the heavy
cleaners' heavier equipment. According to the Secretary, there is "nothing in the
record ... to support the court's assumption ... that the [heavy cleaners'] equipment ...
which was either used for infrequent periods or in combination with other [heavy
cleaners] or was on wheels and could be moved easily, required any greater effort."
Turning to the first prong, it is true that the light cleaners cover a great deal
of ground each night. But the evidence of distribution of work assignments among the
buildings shows that the amount of ground covered by the heavy cleaners, while less
extensive by some number of square feet not specified by the Secretary, cannot be
dismissed so easily. The very heavy cleaners the Secretary singles out as responsible
for small areas testified to difficulties in completing their daily assignments.
Moreover the Secretary's own expert witness testified that the heavy cleaners'
corridors, lobbies, stairways, elevators and lavatories collect a greater concentration
of dirt than do the light cleaners' offices and classrooms and hence require greater
cleaning effort.
As for the second prong, we believe that the district court attached appropriate
significance to the heavy cleaners' equipment. The record clearly supports the
inference that the heavy cleaners' principal task of wet mopping heavily traversed
areas requires greater physical effort than wielding dust mops and rags. This is true
not only because the surfaces are dirtier but also because the equipment is
substantially bulkier and heavier.
The concept of "effort" in the Act is straightforward. It calls for a direct
comparison of the amount of physical exertion required by the jobs; there is no factor
added to compensate for physiological differences between men and women. Based
on our careful review of the record before us, we cannot say that the district court was

10

The mainstay of the Secretary's argument in this respect is a comparison between the
daily responsibilities of two light cleaners and those of two heavy cleaners assigned to the
public lavatories in the same academic building. Specifically, a light cleaner responsible for
60 library "cubicles," 8 carpeted offices, 5 other rooms, a classroom, a private toilet, and a
flight of stairs, is compared with a heavy cleaner responsible for the 16 public lavatories,
ranging in size from 1 toilet and sink to 4 toilets and sinks, and the trash detail in a building
used by 10,000 people daily.

Labor and Employment Law

527

Usery v. Columbia

ix

clearly erroneous in making this direct comparison and in finding as a fact that heavy
cleaning involves "greater effort".
We are mindful of other cases which, in applying the Act to janitors and
maids who perform the same general cleaning duties as Columbia's heavy and light
cleaners, have held that the jobs involve substantially equal effort. Brennan v. South
Davis Community Hospital, supra, 538 F.2d at 863-64; Brennan v. Goose Creek
Consolidated Independent School District, 519 F.2d 53, 58 (5 Cir. 1975); Brennan
v. Board of Education, Jersey City, New Jersey, supra, 374 F. Supp. at 828-29; but
see Marshall v. Marist College, No. 74 Civ. 4713-LWP (S.D.N.Y. June 30, 1977).
Close scrutiny of the facts of these cases, however, shows that the division of duties
in the instant case is materially different. The cited cases follow the fact pattern which
has emerged as the dominant one in cases under the Act involving all types of work.
The central fact is the sharing of common responsibilities by male and female
workers. The most frequently litigated question is whether additional lifting, fetching,
hauling or other tasks performed by men require an amount of additional effort
sufficient to foreclose a holding of substantial equality under the Act. For the most
part the cases have concluded that the additional duties are either too insubstantial in
amount or too inconsistently assigned to measure up to the Act's standard of
substantial equality.11
In the instant case, by contrast, the male employees' duties consistently require
greater effort. Columbia's job classifications cannot be equated with the makeweight

11

In Brennan v. South Davis Community Hospital, supra, the janitors and maids
performed common duties, except that the janitors (1) occasionally operated a floor stripping
machine; (2) refilled a soft drink machine; (3) carried trash cans to an outside receptacle; (4)
used ladders; and (5) shoveled snow. The maids also worked on ladders, occasionally carried
trash, and had additional cleaning duties not shared with the janitors. The Tenth Circuit,
while recognizing that the janitors' additional duties did require "extra effort", found the
amount too insubstantial to preclude the Act's application. 538 F.2d at 863-864.
Brennan v. Goose Creek Consolidated Independent School District, supra, was to
the same effect. There the employer's job description somewhat resembled the actual
division of duties at Columbia. But in practice the janitors and maids did almost identical
work. 519 F.2d at 58.
In Brennan v. Board of Education, Jersey City, New Jersey, supra, the maids and
janitors both performed the basic wet mopping, sweeping, and dusting in classrooms,
corridors and lavatories. The court found the janitors' yard work, snow removal, ladder work,
light hauling and floor stripping either too incidental to overcome the basis in "common
chores [performed] for the bulk of the workday" or balanced by additional tasks assigned to
the maids. 374 F. Supp. at 828-29.
....

Labor and Employment Law

x

528

Usery v. Columbia

classifications so frequently found in the prior cases. See Angelo v. Bacharach
Instrument Co., 555 F.2d 1164, 1172 & n.11 (3 Cir. 1977). Moreover, since the
"additional" duties of Columbia's heavy cleaners in fact comprise their entire jobs, the
increment of effort involved is more "substantial" than that involved in any of the
cases cited above.
Both management and employees at Columbia for more than 30 years have
recognized the existence of a material difference in the amount of effort required by
heavy and light cleaning. The job classifications here involved never were entirely
sex-based. Ever since 1949, long before most heavy cleaning positions were opened
to women on an equal basis, Columbia has paid heavy cleaners' wages to women
employed in tasks equivalent to those performed by the male cleaners. See note 5
supra. The record shows that the light cleaners are cognizant of the difference. It
supports a finding that even today it is the additional effort demanded of heavy
cleaning which has deterred the vast majority of Columbia's light cleaners from
availing themselves of the opportunity to eliminate the 45 cent hourly disparity in
pay.
Based on this evidence of the understanding and experience of those most
closely involved, together with the undisputed fact that heavy cleaning calls for
greater effort, we hold that heavy and light cleaning are not substantially equal work
within the meaning of the Act.
In reaching this conclusion we have excluded from consideration the
comparatively small number of heavy cleaners assigned to off-campus office
buildings who perform work identical to that performed by the light cleaners on
campus. On the face of it, this recently created category of heavy cleaners would fall
within the frequently cited rule mentioned above that additional tasks must "consume
a significant amount of the time of all those whose pay differentials are to be justified
in terms of them ...." Hodgson v. Brookhaven General Hospital, supra, 436 F.2d at
725.
But assuming that this strict reading of the statute applies to the heavy
cleaners assigned to off-campus buildings, even though the majority of the employees
in the "male" classification perform work consistently demanding greater effort than
that required in the "female" classification, an additional factor precludes its
application here. Judge Owen found that the light cleaning in question is performed
"alone at night in off-campus buildings located outside the University's security
perimeter." Taken in the context of his opinion, this necessarily implies a further
finding that the off-campus work is performed in more dangerous conditions. The
record does show that solicitude for the safety of the light cleaners motivated
Columbia to change the assignments.

Labor and Employment Law

529

Usery v. Columbia

xi

These circumstances call for the application of the provision of the Act which
permits pay differentials between work performed under dissimilar "working
conditions". As defined by the Supreme Court in Corning Glass Works v. Brennan,
supra, 417 U.S. at 202, this concept encompasses the "hazards" of employment.
Specifically, "the physical hazards regularly encountered, their frequency, and the
severity of injury they can cause" are taken into account. Id. This case does not
involve the dangers of a machine on an assembly line, but the risk of exposure to
urban crime faced by women working alone and unguarded in the middle of the night.
So long as the hazard is a genuine one, however, its source is not determinative under
the Act.
True, the record here does not show that any light cleaner, on or off campus,
has been a victim of crime while on the job. One court has demanded such tangible
proof of a hazard's existence before applying the "working conditions" provision of
the Act. See Hodgson v. Daisy Manufacturing Co., 317 F. Supp. 538, 543-44 (W.D.
Ark. 1970). In the instant case however we hold that the imposition of such a
threshold requirement would be unreasonable. Columbia, a great university forced to
cope with the sometimes uncongenial contemporary urban environment, is entitled
to recognition of the preventive measures it takes. Moreover the university's good
faith in this matter is not open to question. Only genuine concern could have
motivated it to increase its custodial costs and, barely two months before the instant
action was commenced, risk an adverse legal impact. Indeed, the Secretary has
described Columbia's action in reassigning these buildings to the heavy cleaners as
"laudable".
Nor do we attach significance to the fact that the heavy cleaners have not had
these off-campus assignments during the indefinite past. Any other interpretation of
the Act would deter employers who maintain job classifications in compliance with
the Act from taking corrective action once they conclude that some existing security
or safety arrangement is unsatisfactory.
Affirmed.

Labor and Employment Law

xii

530

Usery v. Columbia
QUESTIONS FOR REFLECTION

1. How should effort on jobs be compared?
In
particular, should the comparison be made at the bottom
line, that is, the total energy expended by workers, or
should the comparison be made on a task-by-task basis?
2. In comparing effort, should the relative size and
strength of the workers be taken into account? Suppose
a woman performing light cleaning burns 3,000 calories,
and a man performing heaving cleaning burns 4,000
calories.
She weighs 120 pounds, and he weighs 160
pounds. They report being equally fatigued at the end of
their shifts. Is their work equal?
3. Suppose 10 men hold job M and are paid $x per
hour while 10 women hold job W and are paid $x-1 per
hour. The duties of 8 of the men require more effort
than the duties of all the women, but the duties of 2 of
the men are substantially equal to the duties of the
women. Has the employer violated the Equal Pay Act?
4. The court mentioned that some men performed light
cleaning tasks in buildings off campus, but these jobs
were classified as heavy cleaning. Why did the court
find this permissible?
5. The Equal Pay Act was passed when it was still
lawful for an employer to segregate jobs by sex. State
and
federal
legislation
has
since
outlawed
job
segregation, and employers have responded by opening jobs
to members of both sexes. Therefore, if two jobs are
equal but one pays better than the other, a woman in the
lower-paying job may switch to the higher-paying job.
Has the Equal Pay Act become an anachronism?

Ù

Labor and Employment Law

531

Discrimination Based on
Race, Color, Religion, Sex, or National Origin:
Title VII of the Civil Rights Act of 1964

Labor and Employment Law

532

Disparate Treatment
Introduction
Two principal methods of proving discrimination have
evolved under Title VII of the Civil Rights Act of 1964.
The first is known as disparate treatment.a It refers to
intentionally denying a person an employment opportunity
on the basis of the person's race, color, religion, sex,
or national origin.b For example, an employer is guilty
of disparate treatment for refusing to promote Wu to
supervisor because, though she is qualified for the job,
the employer believes that women should not supervise
men, or cannot supervise them effectively.
Intent is crucial in a disparate treatment case.
Workers are denied employment opportunities for many
reasons, and Title VII is indifferent to most of those
reasons. Title VII may be invoked only if the employer
intentionally denies a worker an employment opportunity
because of the worker's race or gender. Thus, if the
employer decides not to promote Wu because she is active
in the union, the NLRB might be interested, but not the
EEOC. Similarly, if the employer's reason is Wu's age or
disability, Title VII is not violated, though another
statute might be.c
In the following case the court does not lay out the
prima facie case of disparate treatment. Nevertheless,
much of the prima facie case can be inferred from the
court's opinion.
To do this, the student should ask
oneself, which facts in the case were material, that is,

a

The other definition is called "disparate impact."
will consider it in a subsequent case.

We

b

For convenience, we will use the term "race or gender"
to refer to all of these bases.
c

Disparate treatment is also a definition of
discrimination under other civil rights statutes such as the
Age Discrimination in Employment Act and the Americans with
Disabilities Act.

Labor and Employment Law

ii

533

Slack v. Havens

which facts should any plaintiff
discrimination case need to prove?

in

an

employment

Labor and Employment Law

534

Slack v. Havens

iii

Slack v. Havens

7 FEP Cases 885 (S.D. CA, 1973)
GORDON THOMPSON, JR.:)This action is brought by the plaintiffs, four Black
women, who allege they were discriminatorily discharged due to their race, in
violation of the Civil Rights Act of 1964.... Plaintiffs seek back pay or lost
compensation ... and injunctive relief.
Defendant, a sole proprietor doing business as Havens Industries (hereinafter
Industries), was the employer of the plaintiffs on February 1, 1968, the date plaintiffs'
employment was terminated....
Following trial in this matter by the court sitting without a jury, counsel for
the parties filed proposed findings of fact and conclusions of law. Having considered
the evidence, oral argument and all the records of this case, the Court makes the
following findings of fact and conclusions of law.
A. Findings of Fact
...
4. On January 31, 1968, plaintiffs Berrel Matthews, Emily Hampton and
Isabell Slack were working in the bonding and coating department of defendant
Industries' plant, engaged in preparing and assembling certain tubing components for
defendant's product. A white co-worker, Sharon Murphy, was also assigned to the
bonding and coating department on that day and was performing the same general
work as the three plaintiffs mentioned above. The fourth plaintiff Kathleen Hale, was
working in another department on January 31st.
Near the end of the working day, plaintiffs Matthews, Hampton and Slack
were called together by their immediate supervisor, Ray Pohasky, and informed that
the following morning, upon reporting to work, they would suspend regular
production and engage in a general cleanup of the bonding and coating department.
The cleanup was to consist of washing walls and windows whose sills were
approximately 12 to 15 feet above the floor, cleaning light fixtures, and scraping the
floor, which was caked with deposits of hardened resin. Plaintiffs Matthews,
Hampton and Slack protested the assigned work, arguing that it was not within their
job description, which included only light cleanup in their immediate work areas, and
that it was too hard and dangerous. Mr. Pohasky agreed that it was hard work and
said that he would check to see if they had to do it.

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5. On the following work day, February 1, 1968, plaintiffs Matthews,
Hampton and Slack reported to the bonding and coating department along with
Sharon Murphy, their white co-worker. However, Mr. Pohasky excused Sharon
Murphy to another department for the day, calling in plaintiff Kathleen Hale from the
winding department where she had been on loan from the bonding and coating
department for about a week. Mr. Pohasky then repeated his announcement that the
heavy cleaning would have to be done. The four plaintiffs joined in protest against
the heavy cleanup work. They pointed out that they had not been hired to do
janitorial type work, and one of the plaintiffs inquired as to why Sharon Murphy had
been excused from the cleanup detail even though she had very little seniority among
the ladies in the bonding and coating department. In reply, they were told by Mr.
Pohasky that they would do the work, "or else." There was uncontradicted testimony
that at sometime during their conversation Pohasky injected the statement, "Colored
people should stay in their places," or words to that effect. Some further discussion
took place between plaintiffs and Pohasky and then with Gary Helming, plaintiffs'
general supervisor, but eventually each of the plaintiffs was taken to the office of Mr.
Helming where she was given her final paycheck and fired. Plaintiff Matthews
testified without contradiction that on the way to Mr. Helming's office Mr. Pohasky
made the comment, "Colored folks are hired to clean because they clean better."
6. The general cleanup work was later performed by newly-hired male
employees. Sharon Murphy was never asked to participate in this cleanup before or
after the plaintiff termination.
7. The day following the plaintiffs' firing, a conference was held between
plaintiffs and defendant Glenn G. Havens, together with Mr. Helming, Mr. Pohasky
and other company officials, but the dispute was not resolved as to the work plaintiffs
were expected to do. Apparently, the plaintiffs were offered reinstatement if they
would now agree to do the same cleanup work. They refused.
8. Sometime later plaintiffs Matthews and Hampton received telephone calls
from Mr. Helming in which he invited them to come back to the plant for job
interviews. However, neither plaintiff was extended a firm job offer. Both declined
the invitation for an interview, plaintiff Hampton expressing her attitude that all four
plaintiffs should be rehired in their former jobs.
...

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v

B. Conclusions of Law
Having concluded that defendant Industries is an "employer" under Title VII
of the Civil Rights Act for the purposes of this action, we must next consider whether
plaintiffs' termination amounted to unlawful discrimination against them because of
their race. Defendants deny that the facts support such a conclusion, contending that
plaintiffs' case amounts to nothing more than a dispute as to their job classification.
Admittedly, the majority of the discussion between plaintiffs and Industries'
management on January 31 and February 1, 1968 centered around the nature of the
duties which plaintiffs were ordered to perform. Plaintiffs pointed out that they had
not been hired with the understanding that they would be expected to perform more
than light cleanup work immediately adjacent to their work stations. They were met
with an ultimatum that they do the work)or else. Additionally, no explanation was
offered as to why Sharon Murphy, a white co-worker, had been transferred out of the
bonding and coating department the morning that the heavy cleaning was to begin
there, while plaintiff Hale was called back from the winding department, where she
had been working, to the bonding and coating area, specifically for participation in
the general cleanup. It is not disputed that Sharon Murphy had less seniority than all
of the plaintiffs except plaintiff Hale (having been hired 8 days prior to plaintiff Hale)
and no evidence of a bona fide business reason was ever educed by defendants as to
why Sharon Murphy was excused from assisting the plaintiffs in the proposed
cleaning project.
The only evidence that did surface at the trial regarding the motives for the
decisions of the management of defendant Industries consisted of certain statements
by supervisor Pohasky, who commented to plaintiff Matthews, "Colored folks were
hired to clean because they clean better," and "Colored folks should stay in their
place," or words to that effect. Defendants attempt to disown these statements with
the argument that Pohasky's state of mind and arguably discriminatory conduct were
immaterial and not causative of the plaintiffs' discharge.
But defendants cannot be allowed to divorce Mr. Pohasky's conduct from that
of Industries so easily. First of all, § 701(b) expressly includes "any agent" of an
employer within the definition of "employer." Secondly, there was a definite causal
relation between Pohasky's apparently discriminatory conduct and the firings. Had
Pohasky not discriminated against the plaintiffs by demanding they perform work he
would not require of a white female employee, they would not have been faced with
the unreasonable choice of having to choose between obeying his discriminatory work
order and the loss of their employment. Finally, by backing up Pohasky's ultimatum,
the top level management of Industries ratified his discriminatory conduct and must
be held liable for the consequences thereof.

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Slack v. Havens

Furthermore, defendants' contention that no top level management officials
of Industries intended to discriminate against the plaintiffs is irrelevant.... [A]s
District Judge McMillan put it in United States v. Central Motor Lines, Inc., 338
F.Supp. 532 (W.D.N.C. 1971) at p. 559:
In cases under Title VII, the "intent" required by the statute may be
inferred from the defendants' conduct. The statute requires only that a
defendant has meant to do what was done; that is, the act or practice must
not be accidental.

From all the evidence before it, this Court is compelled to find that defendant
Industries, through its managers and supervisor, Mr. Pohasky, meant to require the
plaintiffs to perform the admittedly heavy and possibly dangerous work of cleaning
the bonding and coating department when they would not require the same work from
plaintiffs' white fellow employee. Furthermore, it meant to enforce that decision by
firing the plaintiffs when they refused to perform that work. The consequence of the
above was racial discrimination....
C. The Measure of Damages.
The Act provides that in computing back pay,
... interim earnings or amounts earnable with reasonable diligence by ...
persons discriminated against shall operate to reduce the back pay otherwise
allocable.a

...
...
Overriding all other considerations, of course, is the traditional legal principle
that an aggrieved party should always seek to mitigate his or her damages. This
principle applies to damages in Civil Rights Act cases, since the provisions for back
pay are "not a penalty imposed as a sanction for moral turpitude," but as
"compensation for the tangible economic loss resulting from an unlawful employment
practice." Robinson v. Lorillard Corp., 444 F.2d at 804. It, therefore, stands to
reason that if the loss results from the employee's failure to mitigate, it should not be
passed on to the employer.

a

This passage now appears in § 706(g) of Title VII.

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Slack v. Havens

vii

D. Individual Claims for Back Pay.
Isabell Slack: In the plaintiffs' brief on damages, plaintiff Slack claims that
if she had not been wrongfully discharged by defendant Industries, she would have
received at least $14,817.60 in wages from the period February 1, 1968 through
January 17, 1972, the date chosen by plaintiff as the time when the corporate
defendant Industries would no longer be in a position to employ her. To offset that
amount plaintiff Slack admits to having received $13,040.00 in income exclusively
from her employment at a cleaner's in Los Angeles. She testified that she found that
job in January 1969 after seeking work in San Diego without success. She assesses
her damages, therefore, at $1,777.60.
However, this fails to take into account that during April and May of 1968
plaintiff Matthews earned $692.00 and during the month of December 1968 plaintiff
Hale earned $105.00. In the Court's opinion, plaintiff Slack's award should be further
reduced by the sum of these figures or $797.00 as an amount "earnable with
reasonable diligence." The total amount of plaintiff Slack's award should thus be
$980.00
Kathleen Hale: This plaintiff claims that she would have received $14,420.00
if she had been permitted to remain in the employ of Industries and its successors.
The Court's computations set plaintiff Hale's income during that period at $6,781.60
and ... would add $428.00 to that figure as "amounts earnable with reasonable
diligence," in view of the additional amount earned by plaintiff Matthews during the
period 1969-1970 while living in San Diego. Plaintiff Hale's award then should equal
$7,210.40 since the Court is satisfied she otherwise acted diligently to mitigate her
damages.
Berrell Matthews and Emily Hampton: Plaintiffs Matthews and Hampton
were both telephoned less than a month after their termination and invited to return
for an interview at Industries to discuss a position which was then available. Both
refused to go for an interview, indicating that they were interested in nothing less than
a full reinstatement of all four of the plaintiffs.
Whatever they believed to be their ultimate rights in this case under the Civil
Rights Act, the plaintiffs were under an immediate duty to mitigate their economic
losses. Given this opportunity for potential employment, these plaintiffs chose to
ignore it for their own reasons. Such insistence on all or nothing may seem to some
heroic. But the law recognizes only the reasonable man or woman, and in this statute,
Congress seems to have codified this attitude in its reference to "amounts earnable
with reasonable diligence." ... By failing to give the defendant an opportunity to set
things right or at least to minimize its potential exposure, these plaintiffs also failed

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Slack v. Havens

to mitigate their damages and cannot be heard to claim full back pay in the absence
of a showing that they were ready, willing and available for work.
In light of the above, the Court concludes that plaintiffs Matthews and
Hampton should be awarded the equivalent of six weeks' pay, six weeks being
calculated to constitute a reasonable period of time within which defendant Industries
could have interviewed each plaintiff and processed her for reemployment, had it
been granted the opportunity to do so. In plaintiff Matthew's case, that amounts to
$504.00 (assuming the revised wage of $2.10 per hour), and in plaintiff Hampton's
case $468.00.
....

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Slack v. Havens

ix

QUESTIONS FOR REFLECTION
1. The court held the employer responsible for the
acts and statements of the supervisor, Pohasky. Was this
fair?
Do you think Pohasky himself should have been
liable to the plaintiffs?
2. In large part, the parties to Slack agreed on the
controlling rules of law; thus, there is little mediated
application of law to fact, and most of the case involves
direct application.
Two issues of direct application
were vigorously contested: causation (motive) and damages
(back pay).
The court's opinion indicates that the employer
contested the element of causation. Did race motivate
the employer to assign the plaintiffs to heavy cleaning
and to discharge them when they refused to do the work?
If so, the plaintiffs were discriminated against. If not
— for example, if the assignment to heavy cleaning had
been motivated by the honest belief of the supervisor,
Pohasky, that the plaintiffs, as individuals, were better
suited to do the work than other employees were — the
plaintiffs were not discriminated against. Both sides
introduced evidentiary facts on the issue of causation,
and used those facts in arguments. The evidentiary facts
used by the plaintiffs were statements by Pohasky, who
said, "Colored folks are hired to clean because they
clean better" and "Colored folks should stay in their
place." The court tells us that the employer responded
that Pohasky's statements did not lead to the plaintiffs'
discharge.
Evidently, the employer argued that the
plaintiffs were discharged because they refused to
perform the work assigned to them. The evidentiary facts
incorporated in the employer's argument were that the
plaintiffs refused to do the work and that it was the
employer's policy to fire any worker who refused to
perform an assigned task.
The employer's argument raises the question, may a
worker refuse to obey an illegal order? In the present
context, may an employer discipline a worker for refusing
to obey an order that violates Title VII?
3. Back pay was an issue in the case. It appears
that the parties agreed on the legal standard: a victim
of discrimination must mitigate the employer's damages;

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Slack v. Havens

that is, the victim must use reasonable diligence in
looking for another job, and the money which the worker
actually earned, or could reasonably have earned, will be
deducted from the award of back pay. Is this the best
standard?
What purpose(s) does it serve?
(Same
question: what effects does it have?) Is there another
standard that would better serve the purposes of the
statute?
4. A few weeks after their discharges, Matthews and
Hampton received calls from the firm, inviting them to a
job interview. Both declined to attend, saying that all
the women stood together and the employer had to rehire
all of them or none of them; as the result, the court
denied Matthews and Hampton back pay for the period of
time after the calls. Was the judge's ruling fair?
5. Should the plaintiffs have been awarded "general
damages" for the insult and humiliation of racial
discrimination? Should they have been awarded punitive
damages to punish this employer and deter others?

Ù

Labor and Employment Law

542

Sexual Harassment
Introduction
Title VII prohibits disparate treatment on the basis
of sex.
As we saw in Slack v. Havens, disparate
treatment means intentionally denying an employment
opportunity to a person because of the person's race or
sex. A raise in pay is an employment opportunity; so is
a promotion. If a person is denied a raise in pay or a
promotion because of one's race or sex, the employer has
violated Title VII. The working environment is also an
employment opportunity.
If a person is treated less
favorably on the job than a person of the opposite sex,
for example, subjected to physical
or verbal abuse, the
employer has violated Title VII.a
Two common misconceptions about sexual harassment
need to be discarded. The first misconception is that
sexual harassment comes in two varieties. It is true
that, in the past, lower courts divided sexual harassment
into two types of claim, depending on the type of
opportunity which the victim was denied. If the victim
was denied a specific opportunity such as a job, a
promotion, or a raise, the claim was called "quid pro
quo" sexual harassment.b The idea was that the woman was
required to provide sexual favors as the quid pro quo for
the opportunity and, when she declined, she was denied
the opportunity.
If the victim was denied a less
specific
opportunity
such
as
being
treated
as
respectfully as men were treated, the claim was called
"hostile environment" sexual harassment.
The Supreme
Court, however, has disapproved of this distinction. In
determining whether the statute has been violated, the
issue in every case is whether the plaintiff was denied
an employment opportunity because of one's sex, and the
nature of the opportunity that was denied is not
relevant.
The second misconception grows out of the two
meanings of the word "sex": it means (a) an act of sex,
a

Sexual harassment usually involves a man harassing a
woman, and for this reason the victims in our examples will be
women. But Title VII protects men as well as women from sex
discrimination, and there have been female-on-male cases.
b

Such an opportunity is commonly, but erroneously, called
a "tangible" opportunity.

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Rabidue v. Osceola

and (b) a person's status as a male or a female. Sex
discrimination has to do with status as a male or a
female, not with the act of sex; accordingly, sexual
harassment, as a kind of sex discrimination, has to do
with status as a male or a female. Thus, although sexual
harassment is often linked to acts of sex, such as
unwelcome touching or off-color speech, sexual harassment
that is not linked to acts of sex is also illegal. For
example, suppose the only female manager in an office is
criticized by her supervisor in public, whereas the male
managers are criticized in private.
Further, the
supervisor uses rude (but not sexual) language in
reference to the woman, but not in reference to men, and
addresses the woman by her first name, but the men by
their surnames. This is sexual harassment, though acts
of sex are not involved.c
The following case addresses a number of issues that
have arisen as Title VII has been applied to sexual
harassment on the job. It was decided before the Supreme
Court disapproved of the distinction between quid pro quo
and hostile environment sexual harassment, but the case
is instructive nonetheless.

c

Given this confusion, a number of legal scholars and
practitioners speak of "gender discrimination" and "gender
harassment." However, we will refer to "sex discrimination"
because the statutes use the term "sex" and because the word
"gender" is a linguistic term referring to the rule of grammar
in some languages, such as Spanish, that nouns, verbs, and
adjectives are masculine, feminine, or neuter.

Labor and Employment Law

544

Rabidue v. Osceola Refining Co.
805 F.2d 611 (6th Cir. 1986)
Krupansky, Circuit Judge:))The plaintiff Vivienne Rabidue timely appealed
the district court's judgment in favor of defendant Osceola Refining Co. (Osceola),
a division of Texas-American Petrochemicals, Inc. (defendant or Texas-American),
after a bench trial on plaintiff's charges of sex discrimination and sexual
harassment....
A review of the record disclosed that the plaintiff entered the employ of
Osceola during December of 1970....
The plaintiff initially occupied the job classification of executive secretary.
In that position, she performed a variety of duties, which included attending the
telephone, typing, and a limited amount of bookkeeping. In 1973, the plaintiff was
promoted to the position of administrative assistant and became a salaried rather than
hourly employee. Her new position entitled her to a longer lunch hour, more liberal
vacation allowances, together with various other benefits. In her position of
administrative assistant, the plaintiff was responsible for, among other duties,
purchasing office supplies, monitoring and/or distributing incoming governmental
regulations, and contacting customers. Subsequently, she was assigned additional
duties as credit manager and office manager. Included in the plaintiff's new
responsibilities was the authority to assign work to a number of other Osceola
employees.
The plaintiff was a capable, independent, ambitious, aggressive, intractable,
and opinionated individual. The plaintiff's supervisors and co-employees with whom
plaintiff interacted almost uniformly found her to be an abrasive, rude, antagonistic,
extremely willful, uncooperative, and irascible personality. She consistently argued
with co-workers and company customers in defiance of supervisor direction and
jeopardized Osceola's business relationships with major oil companies. She
disregarded supervisory instruction and company policy whenever such direction
conflicted with her personal reasoning and conclusions. In sum, the plaintiff was a
troublesome employee.
The plaintiff's charged sexual harassment arose primarily as a result of her
unfortunate acrimonious working relationship with Douglas Henry. Henry was a
supervisor of the company's key punch and computer section. Occasionally, the
plaintiff's duties required coordination with Henry's department and personnel,
although Henry exercised no supervisory authority over the plaintiff nor the plaintiff
over him. Henry was an extremely vulgar and crude individual who customarily
made obscene comments about women generally, and, on occasion, directed such
obscenities to the plaintiff. Management was aware of Henry's vulgarity, but had
been unsuccessful in curbing his offensive personality traits during the time

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Rabidue v. Osceola

encompassed by this controversy. The plaintiff and Henry, on the occasions when
their duties exposed them to each other, were constantly in a confrontation posture.
The plaintiff, as well as other female employees, were annoyed by Henry's vulgarity.
In addition to Henry's obscenities, other male employees from time to time displayed
pictures of nude or scantily clad women in their offices and/or work areas, to which
the plaintiff and other women employees were exposed.
The plaintiff was formally discharged from her employment at the company
on January 14, 1977 as a result of her many job-related problems, including her
irascible and opinionated personality and her inability to work harmoniously with coworkers and customers. The immediate incidents that precipitated the plaintiff's
termination included a heated argument with Charles Shoemaker, the vice-president
of Osceola, concerning the implementation of certain accounting practices and
procedures by the company and a subsequent, vitriolic confrontation with Robert
Fitzsimmons, the vice-president of United Refineries, one of Osceola's major
customers, concerning pricing schedules that existed between the companies. The
latter incident proved to be highly embarrassing to Shoemaker, especially since the
plaintiff intruded into his office while he was meeting with Fitzsimmons. A male
employee assumed the plaintiff's former duties as administrative assistant.
...
[The Court of Appeals upheld the district court's finding that the plaintiff's
discharge was not discriminatory and turned to her claim of sexual harassment due
to a hostile environment.]
In addressing the issues presented by such a sexual harassment charge, this
court's attention is initially directed to the guidelines issued by the Equal
Employment Opportunity Commission (EEOC) as an informed source of instruction
to assist its efforts to probe the parameters of Title VII sexual harassment. Those
guidelines define sexual harassment in the following terms:
(a) Harassment on the basis of sex is a violation of Sec. 703 of Title
VII. Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitute sexual harassment
when (1) submission to such conduct is made either explicitly or implicitly
a term or condition of an individual's employment, (2) submission to or
rejection of such conduct by an individual is used as the basis for
employment decisions affecting such individual, or (3) such conduct has
the purpose or effect of unreasonably interfering with an individual's work
performance or creating an intimidating, hostile, or offensive working
environment.

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Rabidue v. Osceola

v

29 C.F.R. §1604.11(a) (footnote omitted).
After having considered the EEOC guidelines and after having canvassed
existing legal precedent that has discussed the issue, this court concludes that a
plaintiff, to prevail in a Title VII offensive work environment sexual harassment
action, must assert and prove that: (1) the employee was a member of a protected
class; (2) the employee was subjected to unwelcomed sexual harassment in the form
of sexual advances, requests for sexual favors, or other verbal or physical conduct of
a sexual nature; (3) the harassment complained of was based upon sex; (4) the
charged sexual harassment had the effect of unreasonably interfering with the
plaintiff's work performance and creating an intimidating, hostile, or offensive
working environment that affected seriously the psychological well-being of the
plaintiff; and (5) the existence of respondeat superior liability.
Thus, to prove a claim of abusive work environment premised upon sexual
harassment, a plaintiff must demonstrate that she would not have been the object of
harassment but for her sex. It is of significance to note that instances of complained
of sexual conduct that prove equally offensive to male and female workers would not
support a Title VII sexual harassment charge because both men and women were
accorded like treatment.
Unlike quid pro quo sexual harassment which may evolve from a single
incident, sexually hostile or intimidating environments are characterized by multiple
and varied combinations and frequencies of offensive exposures, which
characteristics would dictate an order of proof that placed the burden upon the
plaintiff to demonstrate that injury resulted not from a single or isolated offensive
incident, comment, or conduct, but from incidents, comments, or conduct that
occurred with some frequency. To accord appropriate protection to both plaintiffs
and defendants in a hostile and/or abusive work environment sexual harassment case,
the trier of fact, when judging the totality of the circumstances impacting upon the
asserted abusive and hostile environment placed in issue by the plaintiff's charges,
must adopt the perspective of a reasonable person's reaction to a similar environment
under essentially like or similar circumstances. Thus, in the absence of conduct
which would interfere with that hypothetical reasonable individual's work
performance and affect seriously the psychological well-being of that reasonable
person under like circumstances, a plaintiff may not prevail on asserted charges of
sexual harassment anchored in an alleged hostile and/or abusive work environment
regardless of whether the plaintiff was actually offended by the defendant's conduct.
Assuming that the plaintiff has successfully satisfied the burden of proving that the
defendant's conduct would have interfered with a reasonable individual's work
performance and would have affected seriously the psychological well-being of a
reasonable employee, the particular plaintiff would nevertheless also be required to

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Rabidue v. Osceola

demonstrate that she was actually offended by the defendant's conduct and that she
suffered some degree of injury as a result of the abusive and hostile work
environment.
Accordingly, a proper assessment or evaluation of an employment
environment that gives rise to a sexual harassment claim would invite consideration
of such objective and subjective factors as the nature of the alleged harassment, the
background and experience of the plaintiff, her co-workers, and supervisors, the
totality of the physical environment of the plaintiff's work area, the lexicon of
obscenity that pervaded the environment of the workplace both before and after the
plaintiff's introduction into its environs, coupled with the reasonable expectation of
the plaintiff upon voluntarily entering that environment. Thus the presence of
actionable sexual harassment would be different depending upon the personality of
the plaintiff and the prevailing work environment and must be considered and
evaluated upon an ad hoc basis. As Judge Newblatt aptly stated in his opinion in the
district court:
Indeed, it cannot seriously be disputed that in some work
environments, humor and language are rough hewn and vulgar.
Sexual jokes, sexual conversations and girlie magazines may abound.
Title VII was not meant to))or can))change this. It must never be
forgotten that Title VII is the federal court mainstay in the struggle for
equal employment opportunity for the female workers of America.
But it is quite different to claim that Title VII was designed to bring
about a magical transformation in the social mores of American
workers. Clearly, the Court's qualification is necessary to enable 29
C.F.R. §1604.11(a)(3) to function as a workable judicial standard.
Rabidue, 584 F.Supp. at 430.5

5

Such an approach is not inconsistent with the EEOC guidelines, which emphasize
the individualized nature of a probative inquiry:
(b) In determining whether alleged conduct constitutes sexual harassment,
the Commission will look at the record as a whole and at the totality of the
circumstances, such as the nature of the sexual advances and the context in which
the alleged incidents occurred. The determination of the legality of a particular
action will be made from the facts, on a case by case basis.

29 C.F.R. §1604.11(b).
The dissent's focus on certain of the above factors in isolation is misplaced. The
(continued...)

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Rabidue v. Osceola

vii

...
In the case at bar, the record effectively disclosed that Henry's obscenities,
although annoying, were not so startling as to have affected seriously the psyches of
the plaintiff or other female employees. The evidence did not demonstrate that this
single employee's vulgarity substantially affected the totality of the workplace. The
sexually oriented poster displays had a de minimis effect on the plaintiff's work
environment when considered in the context of a society that condones and publicly
features and commercially exploits open displays of written and pictorial erotica at
the newsstands, on prime-time television, at the cinema, and in other public places.
In sum, Henry's vulgar language, coupled with the sexually oriented posters, did not
result in a working environment that could be considered intimidating, hostile, or
offensive under 29 C.F.R. §1604.11(a)(3) as elaborated upon by this court.7 The
district court's factual findings supporting its conclusion to this effect were not
clearly erroneous. It necessarily follows that the plaintiff failed to sustain her burden
of proof that she was the victim of a Title VII sexual harassment violation.
Accordingly, the trial court's disposition of this issue is AFFIRMED.

5

(...continued)
district court possesses broad discretion as to the evidence to be considered in evaluating
the totality of the circumstances and the context of the alleged incidents. This court has
merely attempted to identify in general terms some criteria that may potentially enter into
a case-by-case examination of the totality of the evidence in such a case, without inferring
the weight to be accorded in the first instance by the district court to any particular factor.
7

The precedential cases addressing a sexually hostile and abusive environment
within the context of Title VII have all developed more compelling circumstances than are
presented herein. In Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981), both the plaintiff's
co-employees and supervisors harassed her with conduct that included continual personal
and telephonic sexual propositions both at work and at her home and the plaintiff's
complaints inspired her supervisor to also proposition her. 641 F.2d at 939-40. In Henson
v. Dundee, 682 F.2d 897 (11th Cir. 1982), the plaintiff was subjected to numerous harangues
and demeaning inquiries into her sexual proclivities, vulgarities, and repeated requests for
sexual relations from her supervisor, the police chief. 682 F.2d at 899-901. In Katz v. Dole,
709 F.2d 251 (4th Cir. 1983), several supervisory personnel and co-workers bombarded the
plaintiff with sexual slurs, insults, innuendo, and propositions, the plaintiff's complaints to
her supervisor generated further harassment from him, and the plaintiff's supervisor admitted
having heard co-workers direct obscenities to the plaintiff. 709 F.2d at 253-54. In the case
at bar, the charges of sexually hostile and abusive environment were limited to pictorial
calendar type office wall displays of semi-nude and nude females and Henry's off-color
language. Unlike the facts of Bundy, Henson, and Katz, this case involved no sexual
propositions, offensive touchings, or sexual conduct of a similar nature that was
systematically directed to the plaintiff over a protracted period of time.

Labor and Employment Law

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549

Rabidue v. Osceola
...
Keith, Circuit Judge, concurring in part, dissenting in part:
...

I dissent for several reasons. First, after review of the entire record I am
firmly convinced, that although supporting evidence exists, the court is mistaken in
affirming the findings that defendant's treatment of plaintiff evinced no anti-female
animus and that gender-based discrimination played no role in her discharge. The
overall circumstances of plaintiff's workplace evince an anti-female environment.
For seven years plaintiff worked at Osceola as the sole woman in a salaried
management position. In common work areas plaintiff and other female employees
were exposed daily to displays of nude or partially clad women belonging to a
number of male employees at Osceola. One poster, which remained on the wall for
eight years, showed a prone woman who had a golf ball on her breasts with a man
standing over her, golf club in hand, yelling "Fore." And one desk plaque declared,
"Even male chauvinist pigs need love." Plaintiff testified the posters offended her
and her female co-workers.
In addition, Computer Division Supervisor Doug Henry regularly spewed
anti-female obscenity. Henry routinely referred to women as "whores," "cunt",
"pussy" and "tits." Of plaintiff, Henry specifically remarked, "All that bitch needs
is a good lay" and called her "fat ass." Plaintiff arranged at least one meeting of
female employees to discuss Henry and repeatedly filed written complaints on behalf
of herself and other female employees who feared losing their jobs if they
complained directly. Osceola Vice President Charles Muetzel stated that he knew
that employees were "greatly disturbed" by Henry's language. However, because
Osceola needed Henry's computer expertise, Muetzel did not reprimand or fire
Henry. In response to subsequent complaints about Henry, a later supervisor, Charles
Shoemaker, testified that he gave Henry "a little fatherly advice" about Henry's
prospects if he learned to become "an executive type person."
In addition to tolerating this anti-female behavior, defendant excluded
plaintiff, the sole female in management, from activities she needed to perform her
duties and progress in her career. Plaintiff testified that unlike male salaried
employees, she did not receive free lunches, free gasoline, a telephone credit card or
entertainment privileges. Nor was she invited to the weekly golf matches. Without
addressing defendant's disparate treatment of plaintiff, the district court dismissed
these perks and business activities as fringe benefits. After plaintiff became credit
manager, defendant prevented plaintiff from visiting or taking customers to lunch as
all previous male credit managers had done. Plaintiff testified that upon requesting

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ix

such privileges, her supervisor, Mr. Muetzel, replied that it would be improper for
a woman to take male customers to lunch and that she "might have car trouble on the
road." Plaintiff reported that on another occasion, Muetzel asked her, "How would
it look for me, a married man, to take you, a divorced woman, to the West Branch
Country Club in such a small town?" However, defendant apparently saw no
problem in male managers entertaining female clients regardless of marital status.
Plaintiff's subsequent supervisor, Charles Shoemaker, stated to another female
worker, Joyce Solo, that "Vivienne [plaintiff] is doing a good job as credit manager,
but we really need a man on that job," adding, "She can't take customers out to
lunch." Aside from this Catch-22, Mr. Shoemaker also remarked plaintiff was not
forceful enough to collect slow-paying jobs. How plaintiff can be so abrasive and
aggressive as to require firing but too timid to collect delinquent accounts is, in my
view, an enigma.
My review of the record also shows plaintiff was consistently accorded
secondary status. Plaintiff recounted that at a meeting convened to instruct clerical
employees on their duties after the United States Refineries takeover, plaintiff was
seated with female hourly employees. The male salaried employees, apparently preinformed of the post-takeover procedures, stood at the front of the room. Plaintiff
confronted Muetzel to express surprise at being addressed as a clerical employee and
to ask what her post-takeover role would entail. Muetzel responded plaintiff would
have whatever role was handed to her. At the suggestion of her former boss, Mr.
Hansen, plaintiff wrote a memo summarizing her qualifications and pleading for nonsex based consideration for post-takeover positions. She received no response to this
memo.
In contrast to the supervisors' reluctance to address Henry's outrageous
behavior, plaintiff was frequently told to tone down and discouraged from executing
procedures she felt were needed to correct waste and improve efficiency as her job
required. Not only did plaintiff receive minimal support, but she was repeatedly
undermined. For example, supervisor Doug Henry once directed his employees to
ignore plaintiff's procedures for logging time and invoices, a particularly damaging
directive given plaintiff's responsibility of coordinating the work of Henry's computer
staff. In another example, plaintiff returned from her vacation to find that none of the
check depositing procedures agreed upon had been implemented and that some of her
duties had been permanently transferred to the male who filled in during her vacation.
In contrast to the fatherly advice and the praise for potential which Henry received,
plaintiff was informed she had set her goals too high. After dismissal, but prior to
final notice, plaintiff received instructions not to return to the refinery. In contrast,
male employees fired for embezzlement were allowed to return to clean out their
desks. Upon dismissal, plaintiff reported that Shoemaker advised her to get a
secretarial job.

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Rabidue v. Osceola

The record establishes plaintiff possessed negative personal traits. These
traits did not, however, justify the sex-based disparate treatment recounted above.
Whatever undesirable behavior plaintiff exhibited, it was clearly no worse than
Henry's. I conclude the misogynous language and decorative displays tolerated at the
refinery (which even the district court found constituted a "fairly significant" part of
the job environment), the primitive views of working women expressed by Osceola
supervisors and defendant's treatment of plaintiff as the only female salaried
employee clearly evince anti-female animus.
...
Nor do I agree with the majority holding that a court considering hostile
environment claims should adopt the perspective of the reasonable person's reaction
to a similar environment. In my view, the reasonable person perspective fails to
account for the wide divergence between most women's views of appropriate sexual
conduct and those of men. ... I would have courts adopt the perspective of the
reasonable victim which simultaneously allows courts to consider salient sociological
differences as well as shield employers from the neurotic complainant. Moreover,
unless the outlook of the reasonable woman is adopted, the defendants as well as the
courts are permitted to sustain ingrained notions of reasonable behavior fashioned by
the offenders, in this case, men.
Which brings me to the majority's mandate to consider the "prevailing work
environment," "the lexicon of obscenity that pervaded the environment both before
and after plaintiff's introduction into its environs," and plaintiff's reasonable
expectations upon "voluntarily" entering that environment. The majority suggests
through these factors that a woman assumes the risk of working in an abusive, antifemale environment. Moreover, the majority contends that such work environments
somehow have an innate right to perpetuation and are not to be addressed under Title
VII....
In my view, Title VII's precise purpose is to prevent such behavior and
attitudes from poisoning the work environment of classes protected under the Act.
To condone the majority's notion of the "prevailing workplace" I would also have to
agree that if an employer maintains an anti-semitic workforce and tolerates a
workplace in which "kike" jokes, displays of Nazi literature and anti-Jewish
conversation "may abound," a Jewish employee assumes the risk of working there,
and a court must consider such a work environment as "prevailing." I cannot. As I
see it, job relatedness is the only additional factor which legitimately bears on the
inquiry of plaintiff's reasonableness in finding her work environment offensive. In
other words, the only additional question I would find relevant is whether the
behavior complained of is required to perform the work. For example, depending on

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Rabidue v. Osceola

xi

their job descriptions, employees of soft pornography publishers or other sex-related
industries should reasonably expect exposure to nudity, sexually explicit language
or even simulated sex as inherent aspects of working in that field. However, when
that exposure goes beyond what is required professionally, even sex industry
employees are protected under the Act from nonjob-related sexual demands,
language or other offensive behavior by supervisors or co-workers. As I believe no
woman should be subjected to an environment where her sexual dignity and
reasonable sensibilities are visually, verbally or physically assaulted as a matter of
prevailing male prerogative, I dissent.
The majority would also have courts consider the background of plaintiff's coworkers and supervisors in assessing the presence of actionable work environment
sex harassment. The only reason to inquire into the backgrounds of the defendants
or other co-workers is to determine if the behavior tolerated toward female
employees is reasonable in light of those backgrounds. As I see it, these subjective
factors create an unworkable standard by requiring the courts to balance a morass of
perspectives. But more importantly, the background of the defendants or other
workers is irrelevant. No court analyzes the background and experience of a
supervisor who refuses to promote black employees before finding actionable race
discrimination under Title VII. An equally disturbing implication of considering
defendants' backgrounds is the notion that workplaces with the least sophisticated
employees are the most prone to anti-female environments. Assuming arguendo* this
notion is true, by applying the prevailing workplace factor, this court locks the vast
majority of working women into workplaces which tolerate anti-female behavior.
I conclude that for actionable offensive environment claims, the relevant inquiry is
whether the conduct complained of is offensive to the reasonable woman. Either the
environment affects her ability to perform or it does not. The backgrounds and
experience of the defendant's supervisors and employees [are] irrelevant.
Nor can I agree with the majority's notion that the effect of pin-up posters and
misogynous language in the workplace can have only a minimal effect on female
employees and should not be deemed hostile or offensive "when considered in the
context of a society that condones and publicly features and commercially exploits
open displays of written and pictorial erotica at newsstands, on prime-time television,
at the cinema and in other public places." "Society" in this scenario must primarily
refer to the unenlightened; I hardly believe reasonable women condone the pervasive
degradation and exploitation of female sexuality perpetuated in American culture.
In fact, pervasive societal approval thereof and of other stereotypes stifles female
potential and instills the debased sense of self worth which accompanies
*

I do not assert any correlation exists between the level of social sophistication
present in a work environment and anti-female behavior.

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Rabidue v. Osceola

stigmatization. The presence of pin-ups and misogynous language in the workplace
can only evoke and confirm the debilitating norms by which women are primarily
and contemptuously valued as objects of male sexual fantasy. That some men would
condone and wish to perpetuate such behavior is not surprising. However, the
relevant inquiry at hand is what the reasonable woman would find offensive, not
society, which at one point also condoned slavery. I conclude that sexual posters and
anti-female language can seriously affect the psychological well being of the
reasonable woman and interfere with her ability to perform her job.
....

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xiii

QUESTIONS FOR REFLECTION
1. How significant should it be that the plaintiff
in Rabidue voluntarily entered the environment?
2. Should the background of co-workers be taken into
account in deciding whether sexual harassment has
occurred?
3. The standard for determining whether an
environment is abusive has both objective and subjective
components. Regarding the objective component, should it
be judged by the opinion of a "reasonable person" (as the
majority held) or by the opinion of a "reasonable victim"
(as the dissent advocated)?
4. What is the subjective component of the standard
for determining whether an environment is abusive?
5. How severe must harassment be in order to violate
Title VII? Was the majority right that harassment is not
illegal unless it affects the psychological well being of
the victim?
6. Suppose a supervisor is an "equal opportunity
harasser," that is, the supervisor abuses men and women
alike.
(a) Does this violate Title VII?
(b) Suppose the abuse is sexual in nature.
The
supervisor touches the private parts of both men and
women and uses sexual language when speaking to or about
both men and women. Does this violate Title VII?
7. How should the law treat same-sex sexual
harassment, i.e., the case in which the harasser and the
victim are the same sex?

Ù

Labor and Employment Law

555

Bona Fide Occupational Qualifications
Introduction
The affirmative defense to disparate treatment is
the bona fide occupational qualification (bfoq).a Section
703(e) allows an employer to allocate employment
opportunities among workers on the basis of sex,
religion, or national origin if the characteristic is a
bona fide occupational qualification reasonably necessary
to the normal operation of that particular business or
enterprise. Note that a finding that sex, etc. is a bfoq
for one "particular employer or enterprise" does not mean
that sex, etc. is a bfoq for another employer; because of
the variation in jobs across firms, the statute requires
that decisions be made on a case-by-case basis.
In some cases, whether a characteristic is a bfoq
for a job has not been controversial. The female sex is
plainly a bfoq for the job of modeling women's fashions.
Other cases have been more controversial. Many of
these cases have involved sex.
For example, airlines
contended that the female sex was a bfoq for the job of
flight attendant.
Their argument was that customers
preferred stewardesses.
Various employers maintained
that the male sex was a bfoq for jobs that are dangerous
or strenuous. Their argument was that men were generally
stronger and more willing to take risks than women.
Although district courts sometimes accepted these
arguments, the Courts of Appeals unanimously rejected
them.
See, for example, Diaz v. Pan American World
Airways, 442 F.2d 385 (5th Cir. 1971). Fearing that the
exception would swallow the rule if the bfoq clause were
construed broadly, the appellate courts read the clause
narrowly.
They held that sex, religion, or national
origin constitutes a bfoq only when the task in question

a

An employer may also defend the case by attacking the
elements of the plaintiff's case, for example, by challenging
whether the plaintiff was qualified for the opportunity in
question. This strategy is analogous to the defendant in a
battery case who defends by trying to show that someone else
struck the plaintiff or that the blow was not harmful or
offensive.

Labor and Employment Law

ii

556

Dothard v. Rawlinson (bfoq)

is crucial to the business, all or substantially all
members of the excluded class are unable to perform the
task, and individual determinations of ability are
impractical.
The following case is the first in which the Supreme
Court expressed its view of how the bfoq clause should be
interpreted. Familiarity with the doctrine of judicial
notice will enhance one's appreciation of the case.
Judicial notice allows a court to rely on a fact as to
which there is no proof in the record. A court usually
reserves judicial notice for indisputable facts such as
the time of sunrise or the official residence of the
pope. Does the majority take judicial notice of a fact
in this case? If so, is it an appropriate fact to find
without evidence in the record?

Labor and Employment Law

557

iii

Dothard v. Rawlinson
433 U.S. 321 (1977)

Mr. Justice STEWART delivered the opinion of the Court.
Appellee Dianne Rawlinson sought employment with the Alabama Board of
Corrections as a prison guard, called in Alabama a "correctional counselor." After her
application was rejected, she brought this class suit under Title VII of the Civil Rights
Act of 1964, alleging that she had been denied employment because of her sex in
violation of federal law. A three-judge Federal District Court for the Middle District
of Alabama decided in her favor. We noted probable jurisdiction of this appeal from
the District Court's judgment.
I
At the time she applied for a position as correctional counselor trainee,
Rawlinson was a 22-year-old college graduate whose major course of study had been
correctional psychology. She was refused employment because she failed to meet the
minimum 120-pound weight requirement established by an Alabama statute. The
statute also establishes a height minimum of 5 feet, 2 inches.
After her application was rejected because of her weight, Rawlinson filed a
charge with the Equal Employment Opportunity Commission, and ultimately received
a right-to-sue letter. She then filed a complaint in the District Court on behalf of
herself and other similarly situated women, challenging the statutory height and
weight minima as violative of Title VII and the Equal Protection Clause of the
Fourteenth Amendment.b A three-judge court was convened. While the suit was
pending, the Alabama Board of Corrections adopted Administrative Regulation 204,
establishing gender criteria for assigning correctional counselors to maximum-security
institutions for "contact positions," that is, positions requiring continual close physical
proximity to inmates of the institution. Rawlinson amended her class-action
complaint by adding a challenge to Regulation 204 as also violative of Title VII and
the Fourteenth Amendment.
Like most correctional facilities in the United States, Alabama's prisons are
segregated on the basis of sex. Currently the Alabama Board of Corrections operates
four major all-male penitentiaries — Holman Prison, Kilby Corrections Facility, G.K.
Fountain Correction Center, and Draper Correctional Center. The Board also operates
the Julia Tutwiler Prison for Women, the Frank Lee Youth Center, the Number Four
{The Supreme Court's ruling on the plaintiff's challenge to the height and weight
minima is printed separately below. — ed.}
b

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Dothard v. Rawlinson (bfoq)

iv

Honor Camp, the State Cattle Ranch, and nine Work Release Centers, one of which
is for women. The Julia Tutwiler Prison for Women and the four male penitentiaries
are maximum-security institutions. Their inmate living quarters are for the most part
large dormitories, with communal showers and toilets that are open to the dormitories
and hallways. The Draper and Fountain penitentiaries carry on extensive farming
operations, making necessary a large number of strip searches for contraband when
prisoners re-enter the prison buildings.
A correctional counselor's primary duty within these institutions is to maintain
security and control of the inmates by continually supervising and observing their
activities. To be eligible for consideration as a correctional counselor, an applicant
must possess a valid Alabama driver's license, have a high school education or its
equivalent, be free from physical defects, be between the ages of 20½ years and 45
years at the time of appointment, and fall between the minimum height and weight
requirements of 5 feet 2 inches and 120 pounds, and the maximum of 6 feet 10 inches
and 300 pounds. Appointment is by merit, with a grade assigned each applicant based
on experience and education. No written examination is given.
At the time this litigation was in the District Court, the Board of Corrections
employed a total of 435 people in various correctional counselor positions, 56 of
whom were women. Of those 56 women, 21 were employed at the Julia Tutwiler
Prison for Women, 13 were employed in non-contact positions at the four male
maximum-security institutions, and the remaining 22 were employed at the other
institutions operated by the Alabama Board of Corrections. Because most of
Alabama's prisoners are held at the four maximum-security male penitentiaries, 336
of the 435 correctional counselor jobs were in those institutions, a majority of them
concededly in the "contact" classification. Thus, even though meeting the statutory
height and weight requirements, women applicants could under Regulation 204
compete equally with men for only about 25% of the correctional counselor jobs
available in the Alabama prison system.
...
III
... Regulation 204 explicitly discriminates against women on the basis of their
sex. In defense of this overt discrimination, the appellants rely on § 703(e) of Title
VII, which permits sex-based discrimination "in those certain instances where ... sex
... is a bona fide occupational qualification reasonably necessary to the normal
operation of that particular business or enterprise."
The District Court rejected the bona fide occupational qualification (bfoq)

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Dothard v. Rawlinson (bfoq)

v

defense, relying on the virtually uniform view of the federal courts that § 703(e)
provides only the narrowest of exceptions to the general rule requiring equality of
employment opportunities. This view has been variously formulated. In Diaz v. Pan
American World Airways, 442 F.2d 385, 388, the Court of Appeals for the Fifth
Circuit held that "discrimination based on sex is valid only when the essence of the
business operation would be undermined by not hiring members of one sex
exclusively." (Emphasis in original.) In an earlier case, Weeks v. Southern Bell Tel.
& Tel. Co., 408 F.2d 228, 235, the same court said that an employer could rely on the
bfoq exception only by proving "that he had reasonable cause to believe, that is, a
factual basis for believing, that all or substantially all women would be unable to
perform safely and efficiently the duties of the job involved." But whatever the verbal
formulation, the federal courts have agreed that it is impermissible under Title VII to
refuse to hire an individual woman or man on the basis of stereotyped
characterizations of the sexes, and the District Court in the present case held in effect
that Regulation 204 is based on just such stereotypical assumptions.
We are persuaded — by the restrictive language of § 703(e), the relevant
legislative history, and the consistent interpretation of the Equal Employment
Opportunity Commission19 — that the bfoq exception was in fact meant to be an
extremely narrow exception to the general prohibition of discrimination on the basis
of sex. In the particular factual circumstances of this case, however, we conclude that
the District Court erred in rejecting the State's contention that Regulation 204 falls
within the narrow ambit of the bfoq exception.
The environment in Alabama's penitentiaries is a peculiarly inhospitable one
for human beings of whatever sex. Indeed, a Federal District Court has held that the
conditions of confinement in the prisons of the State, characterized by "rampant
violence" and a "jungle atmosphere," are constitutionally intolerable. Pugh v. Locke,
406 F.Supp. 318, 325 (M.D. Ala 1976). The record in the present case shows that
because of inadequate staff and facilities, no attempt is made in the four maximumsecurity male penitentiaries to classify or segregate inmates according to their offense
or level of dangerousness — a procedure that, according to expert testimony, is
essential to effective penological administration. Consequently, the estimated 20%
of the male prisoners who are sex offenders are scattered throughout the penitentiaries'
dormitory facilities.

The EEOC issued guidelines on sex discrimination in 1965 reflecting its position
that "the bona fide occupational qualification as to sex should be interpreted
narrowly." 29 CFR § 1604.2(a). It has adhered to that principle consistently, and its
construction of the statute can accordingly be given weight.
19

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vi

In this environment of violence and disorganization, it would be an
oversimplification to characterize Regulation 204 as an exercise in "romantic
paternalism." In the usual case, the argument that a particular job is too dangerous for
women may appropriately be met by the rejoinder that it is the purpose of Title VII to
allow the individual woman to make that choice for herself. More is at stake in this
case, however, than an individual woman's decision to weigh and accept the risks of
employment in a "contact" position in a maximum-security male prison.
The essence of a correctional counselor's job is to maintain prison security.
A woman's relative ability to maintain order in a male, maximum-security,
unclassified penitentiary of the type Alabama now runs could be directly reduced by
her womanhood. There is a basis in fact for expecting that sex offenders who have
criminally assaulted women in the past would be moved to do so again if access to
women were established within the prison. There would also be a real risk that other
inmates, deprived of a normal heterosexual environment, would assault women guards
because they were women.22 In a prison system where violence is the order of the day,
where inmate access to guards is facilitated by dormitory living arrangements, where
every institution is understaffed, and where a substantial portion of the inmate
population is composed of sex offenders mixed at random with other prisoners, there
are few visible deterrents to inmate assaults on women custodians.
Appellee Rawlinson's own expert testified that dormitory housing for
aggressive inmates poses a greater security problem than single-cell lockups, and
further testified that it would be unwise to use women as guards in a prison where
even 10% of the inmates had been convicted of sex crimes and were not segregated
from the other prisoners.23 The likelihood that inmates would assault a woman
because she was a woman would pose a real threat not only to the victim of the assault
but also to the basic control of the penitentiary and protection of its inmates and the
other security personnel. The employee's very womanhood would thus directly
undermine her capacity to provide the security that is the essence of a correctional
counselor's responsibility.
The record contains evidence of an attack on a female clerical worker in an
Alabama prison, and of an incident involving a woman student who was taken
hostage during a visit to one of the maximum-security institutions.
22

Alabama's penitentiaries are evidently not typical. Appellee Rawlinson's two
experts testified that in a normal, relatively stable maximum-security prison —
characterized by control over the inmates, reasonable living conditions, and
segregation of dangerous offenders — women guards could be used effectively and
beneficially. Similarly, an amicus brief filed by the State of California attests to that
State's success in using women guards in all-male penitentiaries.
23

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Dothard v. Rawlinson (bfoq)

vii

There was substantial testimony from experts on both sides of this litigation
that the use of women as guards in "contact" positions under the existing conditions
in Alabama maximum-security male penitentiaries would pose a substantial security
problem, directly linked to the sex of the prison guard. On the basis of that evidence,
we conclude that the District Court was in error in ruling that being male is not a bona
fide occupational qualification for the job of correctional counselor in a "contact"
position in an Alabama male maximum-security penitentiary.24
The judgment is accordingly ... reversed in part, and the case is remanded to
the District Court for further proceedings consistent with this opinion.
in part.

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins ... dissenting

... I ... agree with much of the Court's general discussion in Part III of the bonafide-occupational-qualification exception contained in § 703(e) of Title VII. The
Court is unquestionably correct when it holds "that the bfoq exception was in fact
meant to be an extremely narrow exception to the general prohibition of
discrimination on the basis of sex." I must, however, respectfully disagree with the
Court's application of the bfoq exception in this case.
The Court properly rejects two proffered justifications for denying women jobs
as prison guards. It is simply irrelevant here that a guard's occupation is dangerous
and that some women might be unable to protect themselves adequately. Those
themes permeate the testimony of the state officials below, but as the Court holds, "the
argument that a particular job is too dangerous for women" is refuted by the "purpose
of Title VII to allow the individual woman to make that choice for herself." Some
women, like some men, undoubtedly are not qualified and do not wish to serve as
prison guards, but that does not justify the exclusion of all women from this
employment opportunity. Thus, "[i]n the usual case," the Court's interpretation of the
bfoq exception would mandate hiring qualified women for guard jobs in maximumsecurity institutions. The highly successful experiences of other States allowing such
job opportunities confirm that absolute disqualification of women is not, in the words
of Title VII, "reasonably necessary to the normal operation" of a maximum security
prison.

The record shows, by contrast, that Alabama's minimum-security facilities, such
as work-release centers, are recognized by their inmates as privileged confinement
situations not to be lightly jeopardized by disobeying applicable rules of conduct.
Inmates assigned to these institutions are thought to be the "cream of the crop" of the
Alabama prison population.
24

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Dothard v. Rawlinson (bfoq)

What would otherwise be considered unlawful discrimination against women
is justified by the Court, however, on the basis of the "barbaric and inhumane"
conditions in Alabama prisons, conditions so bad that state officials have conceded
that they violate the Constitution. To me, this analysis sounds distressingly like
saying two wrongs make a right. It is refuted by the plain words of § 703(e). The
statute requires that a bfoq be "reasonably necessary to the normal operation of that
particular business or enterprise." But no governmental "business" may operate
"normally" in violation of the Constitution. Every action of government is constrained
by constitutional limitations. While those limits may be violated more frequently than
we would wish, no one disputes that the "normal operation" of all government
functions takes place within them. A prison system operating in blatant violation of
the Eighth Amendment is an exception that should be remedied with all possible
speed, as Judge Johnson's comprehensive order in Pugh v. Locke, 406 F.Supp. 318
(M.D. Ala 1976), is designed to do. In the meantime, the existence of such violations
should not be legitimatized by calling them "normal." Nor should the Court accept
them as justifying conduct that would otherwise violate a statute intended to remedy
age-old discrimination.
The Court's error in statutory construction is less objectionable, however, than
the attitude it displays toward women. Though the Court recognizes that possible
harm to women guards is an unacceptable reason for disqualifying women, it relies
instead on an equally speculative threat to prison discipline supposedly generated by
the sexuality of female guards. There is simply no evidence in the record to show that
women guards would create any danger to security in Alabama prisons significantly
greater than that which already exists. All of the dangers — with one exception
discussed below — are inherent in a prison setting, whatever the gender of the guards.
The Court first sees women guards as a threat to security because "there are
few visible deterrents to inmate assaults on women custodians." In fact, any prison
guard is constantly subject to the threat of attack by inmates, and "invisible" deterrents
are the guard's only real protection. No prison guard relies primarily on his or her
ability to ward off an inmate attack to maintain order. Guards are typically unarmed
and sheer numbers of inmates could overcome the normal complement. Rather, like
all other law enforcement officers, prison guards must rely primarily on the moral
authority of their office and the threat of future punishment for miscreants. As one
expert testified below, common sense, fairness, and mental and emotional stability are
the qualities a guard needs to cope with the dangers of the job. Well qualified and
properly trained women, no less than men, have these psychological weapons at their
disposal.
The particular severity of discipline problems in the Alabama maximumsecurity prisons is also no justification for the discrimination sanctioned by the Court.

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ix

The District Court found in Pugh v. Locke that guards "must spend all their time
attempting to maintain control or to protect themselves." 406 F.Supp. at 325. If male
guards face an impossible situation, it is difficult to see how women could make the
problem worse, unless one relies on precisely the type of generalized bias against
women that the Court agrees Title VII was intended to outlaw. For example, much
of the testimony of appellants' witnesses ignores individual differences among
members of each sex and reads like "ancient canards about the proper role of women."
Phillips v. Martin Marietta Corp., 400 U.S. at 545. The witnesses claimed that
women guards are not strict disciplinarians; that they are physically less capable of
protecting themselves and subduing unruly inmates; that inmates take advantage of
them as they did their mothers, while male guards are strong father figures who easily
maintain discipline, and so on.2 Yet the record shows that the presence of women
guards has not led to a single incident amounting to a serious breach of security in any
Alabama institution.3 And, in any event, "[g]uards rarely enter the cell blocks and
dormitories," Pugh v. Locke, 406 F.Supp. at 325, where the danger of inmate attacks
is the greatest.

2

The State Commissioner of Corrections summed up these prejudices in his
testimony:
Q. Would a male that is 5'6", 140 lbs., be able to perform the
job of Correctional Counselor in an all male institution?
A. Well, if he qualifies otherwise, yes.
Q. But a female 5'6", 140 lbs., would not be able to perform
all the duties?
A. No.
Q. What do you use as a basis for that opinion?
A. The innate intention between a male and a female. The
physical capabilities, the emotions that go into the psychic make-up
of a female vs. the psychic make-up of a male. The attitude of the
rural type inmate we have vs. that of a woman. The superior feeling
that a man has, historically, over that of a female.
3

The Court refers to two incidents involving potentially dangerous attacks on
women in prisons. But these did not involve trained corrections officers; one victim
was a clerical worker and the other, a student visiting on a tour.

Labor and Employment Law

564

Dothard v. Rawlinson (bfoq)

x

It appears that the real disqualifying factor in the Court's view is "[t]he
employee's very womanhood." The Court refers to the large number of sex offenders
in Alabama prisons, and to "[t]he likelihood that inmates would assault a woman
because she was a woman." In short, the fundamental justification for the decision is
that women as guards will generate sexual assaults. With all respect, this rationale
regrettably perpetuates one of the most insidious of the old myths about women —
that women, wittingly or not, are seductive sexual objects. The effect of the decision,
made I am sure with the best of intentions, is to punish women because their very
presence might provoke sexual assaults. It is women who are made to pay the price
in lost job opportunities for the threat of depraved conduct by prison inmates. Once
again, "[t]he pedestal upon which women have been placed has ..., upon closer
inspection, been revealed as a cage." Sail'er Inn, In. v. Kirby, 5 Cal. 3d 1, 20 (1971).
It is particularly ironic that the cage is erected here in response to feared misbehavior
by imprisoned criminals.
The Court points to no evidence in the record to support the asserted
"likelihood that inmates would assault a woman because she was a woman." Perhaps
the Court relies upon common sense, or "innate recognition." But the danger in this
emotionally laden context is that common sense will be used to mask the "`romantic
paternalism'" and persisting discriminatory attitudes that the Court properly eschews.
To me, the only matter of innate recognition is that the incidence of sexually
motivated attacks on guards will be minute compared to the "likelihood that inmates
will assault" a guard because he or she is a guard.
The proper response to inevitable attacks on both female and male guards is
not to limit the employment opportunities of law-abiding women who wish to
contribute to their community, but to take swift and sure punitive action against the
inmate offenders. Presumably, one of the goals of the Alabama prison system is the
eradication of inmates' anti-social behavior patterns so that prisoners will be able to
live one day in free society. Sex offenders can begin this process by learning to relate
to women guards in a socially acceptable manner. To deprive women of job
opportunities because of the threatened behavior of convicted criminals is to turn our
social priorities upside down.5
The appellants argue that restrictions on employment of women are also justified
by consideration of inmates' privacy. It is strange indeed to hear state officials who
have for years been violating the most basic principles of human decency in the
operation of their prisons suddenly become concerned about inmate privacy. It is
stranger still that these same officials allow women guards in contact positions in a
number of nonmaximum-security institutions, but strive to protect inmates' privacy
in the prisons where personal freedom is most severely restricted. I have no doubt on
5

(continued...)

Labor and Employment Law

565

Dothard v. Rawlinson (bfoq)

xi

....

(...continued)

this record that appellants' professed concern is nothing but a feeble excuse for
discrimination.
As the District Court suggested, it may well be possible, once a
constitutionally adequate staff is available, to rearrange work assignments so that
legitimate inmate privacy concerns are respected without denying jobs to women.
Finally, if women guards behave in a professional manner at all times, they will
engender reciprocal respect from inmates, who will recognize that their privacy is
being invaded no more than if a woman doctor examines them. The suggestion
implicit in the privacy argument that such behavior is unlikely on either side is an
insult to the professionalism of guards and the dignity of inmates.

Labor and Employment Law

xii

566

Dothard v. Rawlinson (bfoq)
QUESTIONS FOR REFLECTION
1. Is the bfoq a genuine defense?

2. Should race or color be recognized as a bfoq in
an appropriate case?
3. Should a bfoq exist if members of the excluded
class, on the average, are able to perform the task that
justifies their exclusion, but not as well as the favored
class?
4. Should a bfoq exist when individual testing is
not reliable?
5. Do you think that any of your female teachers had
the authority and personal presence to be a guard in a
male prison in Alabama?
6. The majority finds that a woman guard in
Alabama's prisons would be assaulted because of her sex.
Is this a legislative or an adjudicative fact? How does
the Court know this fact is true?
7. We have noted that lawyers sometimes present
arguments that are not based on doctrine; such arguments
are commonly referred to as "policy arguments." Central
to a policy argument is an assertion of fact. Consider
the following two facts, on which policy arguments in
Dothard could easily have been built. Would they have
affected the outcome of the case?
a. Homosexual rape is frequent in prison.
b. Rape is not a crime of sex, but of violence.
8. Does privacy justify a bfoq-male for a job that
requires strip searches of male prisoners?

Labor and Employment Law

567

Dothard v. Rawlinson (bfoq)

xiii

9. Should the law require that job duties be
shuffled in order to minimize or eliminate bfoq's? For
example, suppose the answer to question 7 is yes.
Suppose also that in a certain prison all guards perform
strip searches on a rotating basis, but jobs could be
redefined so that some guards perform strip searches more
often than at present and other guards never perform
them.
Such redefinition of jobs would eliminate the
bfoq-male for the guards who do not perform strip
searches.
Should the law require the employer to
redefine these jobs to the extent feasible?

Ù

Labor and Employment Law

568

Proof of Disparate Treatment
CONVENTIONAL PROOF OF DISPARATE TREATMENT
Introduction
When one first thinks of lawsuits under Title VII,
one probably has in mind the model in which a single
worker sues an employer for intentional discrimination
based on race or gender. In such "one-on-one" cases, the
parties' proof is usually conventional evidence, that is,
documents and testimony from witnesses about what they
observed.
The following case expounds perhaps the dominant
pattern of prima facie cases in the second sense of
disparate treatment; this pattern is applicable to oneon-one cases. (Let us call this pattern the "McDonnell
Douglas formula.")
The student will naturally attend to the components
of the McDonnell Douglas formula.
In addition, the
student should ask oneself
•

Why does the formula work? Why does it tend to
prove discrimination? In other words, how does
the formula prove the elements of the prima
facie case in the first sense?

The case also specifies
production. Therefore, ask
•

the

parties'

burdens

of

Who has to offer evidence of what?

Pay particular attention to the point at which the burden
of production shifts from the plaintiff to the defendant.

Labor and Employment Law

569

McDonnell Douglas Corp. v. Green
411 U.S. 792 (1973)

Mr. Justice POWELL delivered the opinion of the Court.
The case before us raises significant questions as to the proper order and nature
of proof in actions under Title VII of the Civil Rights Act of 1964.
Petitioner, McDonnell Douglas Corp., is an aerospace and aircraft
manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000
people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic
and laboratory technician from 1956 until August 28, 1964 when he was laid off in the
course of a general reduction in petitioner's work force.
Respondent, a long-time activist in the civil rights movement, protested
vigorously that his discharge and the general hiring practices of petitioner were
racially motivated. As part of this protest, respondent and other members of the
Congress on Racial Equality illegally stalled their cars on the main roads leading to
petitioner's plant for the purpose of blocking access to it at the time of the morning
shift change. The District Judge described the plan for, and respondent's participation
in, the "stall-in" as follows:
[F]ive teams, each consisting of four cars, would "tie up" five
main access roads into McDonnell at the time of the morning rush
hour. The drivers of the cars were instructed to line up next to each
other, completely blocking the intersections or roads. The drivers
were also instructed to stop their cars, turn off the engines, pull the
emergency brake, raise all windows, lock the doors, and remain in
their cars until the police arrived. The plan was to have the cars
remain in position for one hour.
Acting under the "stall in" plan, plaintiff [respondent in the
present action] drove his car onto Brown Road, a McDonnell access
road, at approximately 7:00 a.m. at the start of the morning rush hour.
Plaintiff was aware of the traffic problems that would result. He
stopped his car with the intent to block traffic. The police arrived
shortly and requested plaintiff to move his car. He refused to move his
car voluntarily. Plaintiff's car was towed away by the police, and he
was arrested for obstructing traffic. Plaintiff pleaded guilty to the
charge of obstructing traffic and was fined.
On July 2, 1965, a "lock-in" took place wherein a chain and padlock were
placed on the front door of a building to prevent the occupants, certain of petitioner's
employees, from leaving. Though respondent apparently knew beforehand of the

Labor and Employment Law

570

McDonnell Douglas v. Green

iii

"lock-in," the full extent of his involvement remains uncertain.
Some three weeks following the "lock-in," on July 25, 1965, petitioner
publicly advertised for qualified mechanics, respondent's trade, and respondent
promptly applied for re-employment. Petitioner turned down respondent, basing its
rejection on respondent's participation in the "stall-in" and "lock-in." Shortly
thereafter, respondent filed a formal complaint with the Equal Employment
Opportunity Commission, claiming that petitioner had refused to rehire him because
of his race and persistent involvement in the civil rights movement, in violation of §§
703(a)(1) and 704(a) of the Civil Rights Act of 1964. The former section generally
prohibits racial discrimination in any employment decision while the latter forbids
discrimination against applicants or employees for attempting to protest or correct
allegedly discriminatory conditions of employment.
The Commission made no finding on respondent's allegation of racial bias
under § 703(a)(1), but it did find reasonable cause to believe petitioner had violated
§ 704(a) by refusing to rehire respondent because of his civil rights activity. After the
Commission unsuccessfully attempted to conciliate the dispute, it advised respondent
in March, 1968, of his right to institute a civil action in federal court within 30 days.
On April 15, 1968, respondent brought the present action, claiming initially
a violation of § 704(a) and, in an amended complaint, a violation of § 703(a)(1) as
well.5 The District Court dismissed the latter claim of racial discrimination in
petitioner's hiring procedures on the ground that the Commission had failed to make
a determination of reasonable cause to believe that a violation of that section had been
committed. The District Court also found that petitioner's refusal to rehire respondent
was based solely on his participation in the illegal demonstrations and not on his
legitimate civil rights activities. The court concluded that nothing in Title VII or §
704 protected "such activity as employed by the plaintiff in the 'stall in' and 'lock in'
demonstrations."
On appeal, the Eighth Circuit affirmed that unlawful protests were not
protected activities under § 704(a), but reversed the dismissal of respondent's §
703(a)(1) claim relating to racially discriminatory hiring practices, holding that a prior
Commission determination of reasonable cause was not a jurisdictional prerequisite
to raising a claim under that section in federal court. The court ordered the case
remanded for trial of respondent's claim under § 703(a)(1).

5

Respondent also contested the legality of his 1964 discharge by petitioner, but both
courts held this claim barred by the statute of limitations. Respondent does not challenge
those rulings here.

Labor and Employment Law

iv

571

McDonnell Douglas v. Green

In remanding, the Court of Appeals attempted to set forth standards to govern
the consideration of respondent's claim. The majority noted that respondent had
established a prima facie case of racial discrimination; that petitioner's refusal to
rehire respondent rested on "subjective" criteria which carried little weight in rebutting
charges of discrimination; that, though respondent's participation in the unlawful
demonstrations might indicate a lack of a responsible attitude toward performing work
for that employer, respondent should be given the opportunity to demonstrate that
petitioner's reasons for refusing to rehire him were mere pretext. In order to clarify
the standards governing the disposition of an action challenging employment
discrimination, we granted certiorari.
I
We agree with the Court of Appeals that absence of a Commission finding of
reasonable cause cannot bar suit under an appropriate section of Title VII and that the
District Judge erred in dismissing respondent's claim of racial discrimination under
§ 703(a)(1). Respondent satisfied the jurisdictional prerequisites to a federal action
(i) by filing timely charges of employment discrimination with the Commission and
(ii) by receiving and acting upon the Commission's statutory notice of the right to sue.
The Act does not restrict a complainant's right to sue to those charges as to
which the Commission has made findings of reasonable cause, and we will not engraft
on the statute a requirement which may inhibit the review of claims of employment
discrimination in the federal courts. The Commission itself does not consider the
absence of a "reasonable cause" determination as providing employer immunity from
similar charges in a federal court, 29 CFR § 1601.30, and the courts of appeal have
held that, in view of the large volume of complaints before the Commission and the
non-adversary character of many of its proceedings, "court actions under Title VII are
de novo proceedings and ... a Commission 'no reasonable cause' finding does not bar
a lawsuit in the case." Robinson v. Lorillard Corp. 444 F.2d 791, 800 (4th Cir. 1971).
The critical issue before us concerns the order and allocation of proof in a
private, non-class-action challenging employment discrimination....
...
The complainant in a Title VII trial must carry the initial burden under the
statute of establishing a prima facie case of racial discrimination. This may be done
by showing (i) that he belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking applicants; (iii) that, despite
his qualifications, he was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from persons of

Labor and Employment Law

572

McDonnell Douglas v. Green

v

complainant's qualifications.13 In the instant case, we agree with the Court of Appeals
that respondent proved a prima facie case. Petitioner sought mechanics, respondent's
trade, and continued to do so after respondent's rejection. Petitioner, moreover, does
not dispute respondent's qualifications and acknowledges that his past work
performance in petitioner's employ was "satisfactory."
The burden then must shift to the employer to articulate some legitimate,
nondiscriminatory reason for the employee's rejection. We need not attempt in the
instant case to detail every matter which fairly could be recognized as a reasonable
basis for a refusal to hire. Here petitioner has assigned respondent's participation in
unlawful conduct against it as the cause for his rejection. We think that this suffices
to discharge petitioner's burden of proof at this stage and to meet respondent's prima
facie case of discrimination.
The Court of Appeals intimated, however, that petitioner's stated reason for
refusing to rehire respondent was a "subjective" rather than objective criterion which
"carr[ies] little weight in rebutting charges of discrimination," 463 F.2d at 352. This
was among the statements which caused the dissenting judge to read the opinion as
taking "the position that such unlawful acts as Green committed against McDonnell
would not legally entitle McDonnell to refuse to hire him, even though no racial
motivation was involved...." Id. at 355. Regardless of whether this was the intended
import of the opinion, we think the court below seriously underestimated the rebuttal
weight to which petitioner's reasons were entitled. Respondent admittedly had taken
part in a carefully planned "stall-in," designed to tie up access to and egress from
petitioner's plant at a peak traffic hour. Nothing in Title VII compels an employer to
absolve and rehire one who has engaged in such deliberate, unlawful activity against
it. In upholding, under the National Labor Relations Act, the discharge of employees
who had seized and forcibly retained an employer's factory buildings in an illegal sitdown strike, the Court noted pertinently:
We are unable to conclude that Congress intended to compel
employers to retain persons in their employ regardless of their unlawful
conduct—to invest those who go on strike with an immunity from discharge
for acts of trespass or violence against the employer's property.... Apart
from the question of the constitutional validity of an enactment of that sort,
it is enough to say that such a legislative intention should be found in some
definite and unmistakable expression. NLRB v. Fansteel Corp., 306 U.S.
240, 255.

13

The facts necessarily will vary in Title VII cases, and the specification above of the
prima facie proof required from respondent is not necessarily applicable in every respect to
differing factual situations.

Labor and Employment Law

vi

573

McDonnell Douglas v. Green

Petitioner's reason for rejection thus suffices to meet the prima facie case, but
the inquiry must not end here. While Title VII does not, without more, compel
rehiring of respondent, neither does it permit petitioner to use respondent's conduct
as a pretext for the sort of discrimination prohibited by § 703(a)(1). On remand,
respondent must, as the Court of Appeals recognized, be afforded a fair opportunity
to show that petitioner's stated reason for respondent's rejection was in fact pretext.
Especially relevant to such a showing would be evidence that white employees
involved in acts against petitioner of comparable seriousness to the "stall-in" were
nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who
was engaged in unlawful, disruptive acts against it, but only if this criterion is applied
alike to members of all races.
Other evidence that may be relevant to any showing of pretext includes facts
as to the petitioner's treatment of respondent during his prior term of employment;
petitioner's reaction, if any, to respondent's legitimate civil rights activities; and
petitioner's general policy and practice with respect to minority employment. On the
latter point, statistics as to petitioner's employment policy and practice may be helpful
to a determination of whether petitioner's refusal to rehire respondent in this case
conformed to a general pattern of discrimination against blacks. In short, on the retrial
respondent must be given a full and fair opportunity to demonstrate by competent
evidence that the presumptively valid reasons for his rejection were in fact a coverup
for a racially discriminatory decision.
....

Labor and Employment Law

574

vii

McDonnell Douglas v. Green
Comment

The Supreme Court tells us that the McDonnell
Douglas formula is a prima facie case of disparate
treatment. We must understand the Court to mean a prima
facie case in the second sense, as footnote 13 makes
clear.
The formula could not be the prima facie-I of
disparate treatment because the formula applies to a
hiring case, whereas disparate treatment applies to all
employment decisions; and even in a hiring case, a
plaintiff could prove disparate treatment without using
the formula, for example, by evidence that the employer
said, "I would never hire a person of the plaintiff's
race or sex."
If a plaintiff offers evidence of the facts in the
McDonnell Douglas formula, an inference arises that the
employer discriminated against the plaintiff. This is
not to say that the plaintiff wins the case.
The
defendant may rebut the plaintiff's evidence or prove a
defense. But if, at the end of the trial, the judge or
jury believes the plaintiff's evidence and does not
believe the defendant's, the formula is enough for the
plaintiff to win the case.
The McDonnell Douglas formula is one prima facie-II
of disparate treatment. Others exist. Indeed, a nearly
infinite variety of prima facie-IIs exists for proving
disparate
treatment,
as
each
case
has
its
own
adjudicative facts.
Nonetheless, patterns of prima
facie-IIs (patterns of adjudicative facts) can be
identified. The McDonnell Douglas formula represents one
pattern.
The student has read examples of other
patterns.
QUESTIONS FOR REFLECTION
1. In the McDonnell Douglas formula, what is the
nature of the burden that shifts to the employer — a
burden of production or of persuasion?
How did the
employer satisfy the burden in this case?
2. Which of the two
employer attempt? Why?

types

of

defense

did

the

Labor and Employment Law

575

Proof of Disparate Treatment
(continued)
STATISTICAL PROOF OF DISPARATE TREATMENT
Introduction
As we studied
McDonnell Douglas v. Green, we
focused on the prima facie-IIs that prove disparate
treatment of individuals.
The four patterns that we
observed — the McDonnell Douglas formula, direct evidence
of state of mind, comparison of similarly situated
persons, and sexual harassment — are applicable to "oneon-one" cases, that is, cases in which an employer is
alleged to have discriminated against one plaintiff (or
a small number of plaintiffs). These patterns would be
much less useful in a case in which an employer is
alleged to have discriminated against many persons. Such
a case, called a class action, is brought on behalf of a
group (often a large group) of persons, and it would be
impractical to repeat the McDonnell Douglas formula (or
the other patterns) for each member of the class; indeed,
the idea of a class action is to focus on the facts
common to all members of the class and, as much as
possible, to overlook the details. Statistics are well
suited to describe common facts.
The following case
considers whether statistics can play a role in proving
intentional discrimination against a class of persons, in
other words, whether statistical evidence can constitute
another pattern of proof for prima facie cases in the
second sense of disparate treatment.
An element of disparate treatment is that the
employer
denied
employment
opportunities
to
the
plaintiff(s).
Statistics can obviously be helpful in
determining whether an employer denied employment
opportunities to members of a protected class. If 1,000
African-Americans apply for 1,000 vacant jobs at a firm
and 200 of these applicants are hired, it is evident that
the employer denied employment opportunities to 800
African-Americans.
Can statistics reveal anything else relevant to a
disparate treatment case? In particular, can statistics
help us determine whether an employer intentionally

Labor and Employment Law

576

Teamsters v. United States

xi

denied opportunities to a protected class?
Can
statistics help us to know whether the employer who
denied opportunities to 800 African-Americans was
motivated in any way by their race?
The answer is a
qualified yes: statistics can help, but they cannot carry
the whole load.
Here is what statistics can do: they can convince us
that an event is not a random variation in a fair
process, in other words, that the event is so unlikely to
occur by chance that it probably was influenced by a
cause external to the process.
But statistics cannot
tell us what that cause is.
They cannot reveal an
employer's motivation. Only conventional evidence can do
that.
Imagine that Groucho and Harpo are playing poker for
money. Groucho shuffles the deck, deals, and wins the
first hand with a royal flush. Groucho shuffles again,
deals, and wins the second hand, also with a royal flush.
Groucho shuffles a third time, deals, and once again wins
with a royal flush. Harpo commences to think along these
lines:
"A player might get a royal flush in three
consecutive hands, even in an honest game. This event
happens by chance so rarely, however, that Groucho's
'good luck' probably had a cause external to the normal
process of shuffling and dealing cards.
Knowing that
Groucho was dealing and that we were playing for money,
I strongly suspect that he has been cheating ... so I'll
never speak again."
Groucho's case shows that, when a process is
supposed to be random and we get a result that is very
unlikely to occur by chance, we can infer that an
external cause is operating. Knowledge of the background
can often suggest a likely cause. Harpo's knowledge that
Groucho was dealing and winning money suggested that
Groucho was cheating. Or suppose someone throws two dice
a hundred times, and seven turns up on half the throws.
This unlikely event most probably occurs because of a
cause external to the normal process of throwing fair
dice.
Our knowledge that seven is an important number
in craps would make us suspect that the dice are loaded.
The same reasoning can be applied to discrimination
cases.

Labor and Employment Law

xii

577

Teamsters v. United States

In the following case, the government used
statistical evidence as part of the proof that the
employer intentionally discriminated against people of
color.
As you read the case, ask yourself to which
elements of the prima facie-I of disparate treatment the
government's statistics pertained. Also consider whether
there were any flaws in the government's statistical
evidence.

Labor and Employment Law

578

Int'l B'hood of Teamsters v. United States
431 U.S. 324 (1977)

Mr. Justice STEWART delivered the opinion of the Court.
{In 1968 the United States Department of Justicea sued T.I.M.E.-D.C., a
national trucking company, alleging that it discriminated in the hiring and job
assignment of African-Americans and Spanish-surnamed Americans. Specifically,
the government claimed that the employer confined members of these groups to
service in local (intra-city) driving jobs and reserved the higher paying line (inter-city)
driving jobs for European-Americans.
{Having limited resources, the government usually brings suit only when a
case raises an important issue or an employer appears to have discriminated against
many people. This case satisfied both criteria: statistical evidence had proved to be
highly useful in proving discrimination, and the employer had thousands of
employees. This was a pattern-or-practice case, that is, the government alleged that
the employer regularly discriminated against people of color over a substantial period
of time. In such cases (or in class actions, which are like pattern-or-practice cases
except the plaintiffs are private parties), the evidence must show that the employer
discriminated against, not one or two, but many members of a protected class. To this
end, the government relied heavily on statistical evidence, though conventional
evidence, in the form of witnesses who testified to over 40 instances of discrimination
against individuals, was also offered.
{The District Court found that many qualified people of color who sought line
driving jobs had been ignored, given false or misleading information, or not
considered on the same basis as whites. The same things happened to black and
Latino city drivers who sought to transfer to line driving jobs. Both the District Court
and the Court of Appeals for the Fifth Circuit held that the government proved that the
employer had engaged in a pattern or practice of discrimination.}
...
In this Court the company and the union contend that their conduct did not
violate Title VII in any respect, asserting first that the evidence introduced at trial was
insufficient to show that the company engaged in a "pattern or practice" of
employment discrimination....

a

Since the 1972 amendments to Title VII, cases like this have been brought by the
EEOC.

Labor and Employment Law

xiv

579

Teamsters v. United States
A

Consideration of the question whether the company engaged in a pattern or
practice of discriminatory hiring practices involves controlling legal principles that are
relatively clear. The Government's theory of discrimination was simply that the
company, in violation of § 703(a) of Title VII, regularly and purposefully treated
Negroes and Spanish-surnamed Americans less favorably than white persons. The
disparity in treatment allegedly involved the refusal to recruit, hire, transfer, or
promote minority group members on an equal basis with white people, particularly
with respect to line-driving positions. The ultimate factual issues are thus simply
whether there was a pattern or practice of such disparate treatment and, if so, whether
the differences were "racially premised." McDonnell Douglas Corp. v. Green, 411
U.S. 792, 805 n. 18.15
As the plaintiff, the Government bore the initial burden of making out a prima
facie case of discrimination. And, because it alleged a systemwide pattern or practice
of resistance to the full enjoyment of Title VII rights, the Government ultimately had
to prove more than the mere occurrence of isolated or "accidental" or sporadic
discriminatory acts. It had to establish by a preponderance of the evidence that racial
discrimination was the company's standard operating procedure — the regular rather
than the unusual practice.

15

"Disparate treatment" such as is alleged in the present case is the most easily
understood type of discrimination. The employer simply treats some people less favorably
than others because of their race, color, religion, sex, or national origin. Proof of
discriminatory motive is critical, although it can in some situations be inferred from the mere
fact of differences in treatment. Undoubtedly disparate treatment was the most obvious evil
Congress had in mind when it enacted Title VII. See, e.g., 110 Cong. Rec. 13088 (1964)
(remarks of Sen. Humphrey) ("What the bill does... is simply to make it an illegal practice
to use race as a factor in denying employment. It provides that men and women shall be
employed on the basis of their qualifications, not as Catholic citizens, not as Protestant
citizens, not as Jewish citizens, not as colored citizens, but as citizens of the United States").
Claims of disparate treatment may be distinguished from claims that stress "disparate
impact." The latter involve employment practices that are facially neutral in their treatment
of different groups but that in fact fall more harshly on one group than another and cannot
be justified by business necessity. Proof of discriminatory motive, we have held, is not
required under a disparate-impact theory. Either theory may, of course, be applied to a
particular set of facts.

Labor and Employment Law

580

Teamsters v. United States

xv

We agree with the District Court and the Court of Appeals that the
Government carried its burden of proof. As of March 31, 1971, shortly after the
Government filed its complaint alleging systemwide discrimination, the company had
6,472 employees. Of these, 314 (5%) were Negroes and 257 (4%) were
Spanish-surnamed Americans. Of the 1,828 line drivers, however, there were only 8
(0.4%) Negroes and 5 (0.3%) Spanish-surnamed persons, and all of the Negroes had
been hired after the litigation had commenced. With one exception — a man who
worked as a line driver at the Chicago terminal from 1950 to 1959 — the company
and its predecessors did not employ a Negro on a regular basis as a line driver until
1969. And, as the Government showed, even in 1971 there were terminals in areas of
substantial Negro population where all of the company's line drivers were white.17 A
great majority of the Negroes (83%) and Spanish-surnamed Americans (78%) who did
work for the company held the lower paying city operations and serviceman jobs,18
whereas only 39% of the nonminority employees held jobs in those categories.
The Government bolstered its statistical evidence with the testimony of
individuals who recounted over 40 specific instances of discrimination. Upon the
basis of this testimony the District Court found that "[numerous] qualified black and
Spanish-surnamed American applicants who sought line driving jobs at the company
over the years either had their requests ignored, were given false or misleading
information about requirements, opportunities, and application procedures, or were
not considered and hired on the same basis that whites were considered and hired."
Minority employees who wanted to transfer to line-driver jobs met with similar
difficulties.19

17

In Atlanta, for instance, Negroes composed 22.35% of the population in the surrounding
metropolitan area and 51.31% of the population in the city proper. The company's Atlanta
terminal employed 57 line drivers. All were white. In Los Angeles, 10.84% of the greater
metropolitan population and 17.88% of the city population were Negro. But at the
company's two Los Angeles terminals there was not a single Negro among the 374 line
drivers. The proof showed similar disparities in San Francisco, Denver, Nashville, Chicago,
Dallas, and at several other terminals.
18

Although line-driver jobs pay more than other jobs, and the District Court found them
to be "considered the most desirable of the driving jobs," it is by no means clear that all
employees, even driver employees, would prefer to be line drivers. Of course, Title VII
provides for equal opportunity to compete for any job, whether it is thought better or worse
than another.
19

Two examples are illustrative:
George Taylor, a Negro, worked for the company as a city driver in Los Angeles,
beginning late in 1966. In 1968, after hearing that a white city driver had transferred to a
(continued...)

Labor and Employment Law

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Teamsters v. United States

The company's principal response to this evidence is that statistics can never
in and of themselves prove the existence of a pattern or practice of discrimination, or
even establish a prima facie case shifting to the employer the burden of rebutting the
inference raised by the figures. But, as even our brief summary of the evidence shows,
this was not a case in which the Government relied on "statistics alone." The
individuals who testified about their personal experiences with the company brought
the cold numbers convincingly to life.
In any event, our cases make it unmistakably clear that "[s]tatistical analyses
have served and will continue to serve an important role" in cases in which the
existence of discrimination is a disputed issue. Mayor of Philadelphia v. Educational
Equality League, 415 U.S. 605, 620. We have repeatedly approved the use of
statistical proof, where it reached proportions comparable to those in this case, to
establish a prima facie case of racial discrimination in jury selection cases. Statistics
are equally competent in proving employment discrimination.20 We caution only that

(...continued)
line-driver job, he told the terminal manager that he also would like to consider line driving.
The manager replied that there would be "a lot of problems on the road... with different
people, Caucasian, et cetera," and stated: "I don't feel that the company is ready for this right
now.... Give us a little time. It will come around, you know." Mr. Taylor made similar
requests some months later and got similar responses. He was never offered a line-driving
job or an application.
Feliberto Trujillo worked as a dockman at the company's Denver terminal. When
he applied for a line-driver job in 1967, he was told by a personnel officer that he had one
strike against him. He asked what that was and was told: "You're a Chicano, and as far as
we know, there isn't a Chicano driver in the system."
20

Petitioners argue that statistics, at least those comparing the racial composition of an
employer's work force to the composition of the population at large, should never be given
decisive weight in a Title VII case because to do so would conflict with § 703(j) of the Act,
42 U.S.C. § 2000e-2(j). That section provides:
"Nothing contained in this subchapter shall be interpreted to require any
employer ... to grant preferential treatment to any individual or to any group
because of the race ... or national origin of such individual or group on
account of an imbalance which may exist with respect to the total number
or percentage of persons of any race ... or national origin employed by any
employer ... in comparison with the total number or percentage of persons
of such race ... or national origin in any community, State, section, or other
area, or in the available work force in any community, State, section, or
other area."
(continued...)

Labor and Employment Law

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xvii

statistics are not irrefutable; they come in infinite variety and, like any other kind of
evidence, they may be rebutted. In short, their usefulness depends on all of the
surrounding facts and circumstances.
In addition to its general protest against the use of statistics in Title VII cases,
the company claims that in this case the statistics revealing racial imbalance are
misleading because they fail to take into account the company's particular business
situation as of the effective date of Title VII. The company concedes that its line
drivers were virtually all white in July 1965, but it claims that thereafter business
conditions were such that its work force dropped. Its argument is that low personnel
turnover, rather than post-Act discrimination, accounts for more recent statistical
disparities. It points to substantial minority hiring in later years, especially after 1971,
as showing that any pre-Act patterns of discrimination were broken.
The argument would be a forceful one if this were an employer who, at the
time of suit, had done virtually no new hiring since the effective date of Title VII. But
it is not. Although the company's total number of employees apparently dropped
somewhat during the late 1960's, the record shows that many line drivers continued
to be hired throughout this period, and that almost all of them were white. To be sure,
there were improvements in the company's hiring practices. The Court of Appeals
commented that "T.I.M.E.-D.C.'s recent minority hiring progress stands as a laudable
(...continued)
The argument fails in this case because the statistical evidence was not offered or
used to support an erroneous theory that Title VII requires an employer's work force to be
racially balanced. Statistics showing racial or ethnic imbalance are probative in a case such
as this one only because such imbalance is often a telltale sign of purposeful discrimination;
absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will
in time result in a work force more or less representative of the racial and ethnic composition
of the population in the community from which employees are hired. Evidence of
long-lasting and gross disparity between the composition of a work force and that of the
general population thus may be significant even though § 703(j) makes clear that Title VII
imposes no requirement that a work force mirror the general population. Considerations
such as small sample size may, of course, detract from the value of such evidence, and
evidence showing that the figures for the general population might not accurately reflect the
pool of qualified job applicants would also be relevant.
"Since the passage of the Civil Rights Act of 1964, the courts have
frequently relied upon statistical evidence to prove a violation.... In many
cases the only available avenue of proof is the use of racial statistics to
uncover clandestine and covert discrimination by the employer or union
involved."
United States v. Ironworkers Local 86, 443 F. 2d at 551.

Labor and Employment Law

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Teamsters v. United States

good faith effort to eradicate the effects of past discrimination in the area of hiring and
initial assignment." 517 F. 2d at 316. But the District Court and the Court of Appeals
found upon substantial evidence that the company had engaged in a course of
discrimination that continued well after the effective date of Title VII. The company's
later changes in its hiring and promotion policies could be of little comfort to the
victims of the earlier post-Act discrimination, and could not erase its previous illegal
conduct or its obligation to afford relief to those who suffered because of it.23
The District Court and the Court of Appeals, on the basis of substantial
evidence, held that the Government had proved a prima facie case of systematic and
purposeful employment discrimination, continuing well beyond the effective date of
Title VII. The company's attempts to rebut that conclusion were held to be
inadequate.24 For the reasons we have summarized, there is no warrant for this Court

23

The company's narrower attacks upon the statistical evidence — that there was no
precise delineation of the areas referred to in the general population statistics, that the
Government did not demonstrate that minority populations were located close to terminals
or that transportation was available, that the statistics failed to show what portion of the
minority populations [was] located close to terminals or that transportation was available,
that the statistics failed to show what portion of the minority population was suited by age,
health, or other qualifications to hold trucking jobs, etc. — are equally lacking in force. At
best, these attacks go only to the accuracy of the comparison between the composition of the
company's work force at various terminals and the general population of the surrounding
communities. They detract little from the Government's further showing that Negroes and
Spanish-surnamed Americans who were hired were overwhelmingly excluded from
line-driver jobs. Such employees were willing to work, had access to the terminal, were
healthy and of working age, and often were at least sufficiently qualified to hold city-driver
jobs. Yet they became line drivers with far less frequency than whites. See, e.g., Pretrial
Stipulation 14, summarized in 517 F.2d at 312 n. 24 (of 2,919 whites who held driving jobs
in 1971, 1,802 (62%) were line drivers and 1,117 (38%) were city drivers; of 180 Negroes
and Spanish-surnamed Americans who held driving jobs, 13 (7%) were line drivers and 167
(93%) were city drivers).
In any event, fine tuning of the statistics could not have obscured the glaring absence
of minority line drivers. As the Court of Appeals remarked, the company's inability to rebut
the inference of discrimination came not from a misuse of statistics but from "the inexorable
zero." Id., at 315.
24

The company's evidence, apart from the showing of recent changes in hiring and
promotion policies, consisted mainly of general statements that it hired only the best
qualified applicants. But "affirmations of good faith in making individual selections are
insufficient to dispel a prima facie case of systematic exclusion." Alexander v. Louisiana,
405 U.S. 625, 632.
(continued...)

Labor and Employment Law

584

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xix

to disturb the findings of the District Court and the Court of Appeals on this basic
issue.
....

(...continued)
The company also attempted to show that all of the witnesses who testified to
specific instances of discrimination either were not discriminated against or suffered no
injury. The Court of Appeals correctly ruled that the trial judge was not bound to accept this
testimony and that it committed no error by relying instead on the other overpowering
evidence in the case. The Court of Appeals was also correct in the view that individual proof
concerning each class member's specific injury was appropriately left to proceedings to
determine individual relief. In a suit brought by the Government under § 707(a) of the Act
the District Court's initial concern is in deciding whether the Government has proved that
the defendant has engaged in a pattern or practice of discriminatory conduct.

Labor and Employment Law

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Teamsters v. United States
Comment

The prima facie case in the first sense of disparate
treatment does not change, whether the proof is
conventional or statistical.
In other words, the
elements of the claim of disparate treatment are
constant, regardless of the nature of the proof. (This
is true of every legal claim.)
However, a variety of
prima facie cases in the second sense exists. We have
previously seen four varieties of prima facie-II of
disparate treatment; all of them used conventional
evidence.
Teamsters introduces us to a fifth prima
facie-II of disparate treatment, one that utilizes
statistics to prove disparate treatment of a group of
workers.
PROBABILITY ANALYSIS

Before we state the details of the prima facie-II of
disparate treatment as proved by statistics, it will be
useful to discuss the ideas that underlie this sort of
evidence. We have already met Groucho and Harpo. Their
game of cards introduces us to probability analysis. We
use probability analysis without even thinking about it.
For example, suppose one morning Inez notices that one of
the tires of her car is low on air. She goes to Bill's
Friendly Service Station; Bill finds a nail poking
through the tread and repairs it. Inez is not concerned;
tires pick up nails from time to time. The next morning
she notices another tire is low on air.
Bill finds
another nail in the tread.
Inez is unhappy, and she
grumbles a bit; but she does nothing about it.
After
all, bad luck sometimes comes in streaks.
But the
following morning another tire is low on air and Bill
finds yet another nail in it, and now Inez is rightly
suspicious. Perhaps a load of nails had been spilled on
a street which she uses regularly.
Perhaps the
adolescent who lives next door is taking revenge on her
for informing the boy's parents that he had been smoking
marijuana. Inez would reasonably begin to search for the
cause of her problem.
Inez used a rough-and-ready form of probability
analysis.
Scientists use a more rigorous form of it.
When a pharmaceutical company develops a new drug for
treating a disease, the drug must be tested for efficacy
and safety before the company is allowed to market the

Labor and Employment Law

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Teamsters v. United States

xxi

drug.
In one rigorous procedure, known as a "doubleblind trial," similar people who have the disease are
divided into two groups. Physicians administer the new
drug to one group and a placebo to the other ("the
control") group, and neither the physicians nor the
members of the groups know who is getting the drug and
who is getting the placebo. After a period of time, the
effects of the drug are compared to the effects of the
placebo. If the drug works, there should be a difference
between the groups.
For example, suppose a company develops a drug for
Gold's diseasea and arranges a trial of the drug. Let us
say there were 1,000 students in each group. Suppose we
know from past experience that, without treatment,
approximately 60 percent of victims of the disease
recover within a month. We observe that in the control
group, 590 recovered and 410 were still sick, whereas in
the group that was receiving the new drug, 700 recovered
and 300 stayed sick. Do these numbers tell us whether or
not the new drug is effective?
THE IDEA OF STATISTICAL SIGNIFICANCE

Our problem is that we know there is variability in
natural phenomena. We want to ignore differences that
occur within a phenomenon itself, and focus on
differences that have causes outside the phenomenon. In
the example of the drug trial, we expected 600 students
in the control group to recover in a month; we observed
that 590 did. This difference (10 fewer recoveries than
expected) was within the natural range of variability of
the disease; it was not caused by an agent outside the
phenomenon.
To say the same thing, the difference
between 600 and 590 recoveries is not real; these numbers
are identical for our purposes. Therefore, we conclude
that our control group was not contaminated in any way.

a

The symptoms of this disease, which seems to strike
only students, are fatigue, boredom, headaches, eye strain,
irritability, and cramps in the neck. The cause of the
disease appears to be bending over a fat book of readings
for excessive periods of time, sometimes exceeding 30
minutes.

Labor and Employment Law

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Teamsters v. United States

But what of the group that received the new drug?
Is the difference between the 600 recoveries that occur
spontaneously, and the 700 recoveries that we observed,
simply a natural variation within the normal variability
of the disease, or is it a real difference? Should we
ignore it, or does it mean something?
Mathematical
analysis reveals that the difference is real.b
The term of art used to describe a real difference
in results is statistical significance. When a result is
statistically significant, it is unlikely to be a natural
variation in the phenomenon; rather, the result probably
has a cause external to the phenomenon. Naturally, we
want to know what the cause is, but we must postpone this
inquiry for the moment.
THE QUALIFIED LABOR POOL

We cannot expect to reach the same level of
precision in life, especially in a lawsuit over
discrimination, as we can achieve in a scientific
experiment, but we can approximate it. The first step is
to determine our expectation.
This is easily done in
principle: we expect an employer to obey the law, which
means to award jobs without regard to race or sex.c In

b

A student either recovers within a month or does not;
therefore, a binomial distribution can be expected.
Applying the algorithm from Castaneda v. Partida, 430 U.S.
482 (1977) (discussed below), the standard deviation is
(/(.6 x .4)1,000 =) 15.5. The observed value is (700 - 600
= 100; 100 ÷ 15.5 =) 6.4 standard deviations from the
expected value, which is a statistically significant result.
c

Title VII prohibits discrimination based on race,
color, religion, sex, or national origin; for convenience,
we will shorten this list of protected characteristics to
"race or sex."
In addition, Title VII applies not only to
jobs, but to all employment opportunities; for example,
Title VII also prohibits discrimination in compensation,
promotion, and fringe benefits like vacations and pensions.
For this reason, it would be more accurate to say that we
expect an employer to award employment opportunities without
regard to race or sex. In the text we speak of jobs, rather
than employment opportunities, because jobs are a typical
focus of Title VII cases, and the prima facie-II of
(continued...)

Labor and Employment Law

588

Teamsters v. United States

xxiii

practice, however, converting this general expectation
into a specific number can be difficult.
Congress did not intend Title VII to compromise
efficiency within a firm.
Thus, an employer is never
expected to hire a person who is not qualified for a job.
Nor did Congress expect an employer to do the impossible.
Thus, an employer is not expected to hire a person who is
unwilling to accept the job. Putting these points into
legal vocabulary, Title VII protects only workers who are
willing and able to perform the job in question.
It follows that, as we determine our expectations
about whom a law-abiding employer would hire, we must
limit ourselves to the class of workers who are willing
and able to perform the job. Let us call this class the
qualified labor pool. A law-abiding employer will hire
workers from the qualified labor pool without regard to
their race or sex.
If every worker in the qualified labor pool is
willing and able to perform the job, each worker is, for
the employer's purposes, indistinguishable from each
other worker.
Therefore, each of them has an equal
chance of being hired. In essence, an employer who pays
attention only to qualifications hires at random from the
qualified labor pool.
Of particular importance under Title VII, men and
women, and whites and people of color, all look alike to
a non-discriminatory employer.
Consequently, in the
qualified labor pool, each man and each woman, each white
and each person of color, should have an equal chance of
being hired. In essence, a non-discriminatory employer
hires men and women, blacks and whites at random from the
qualified labor pool.
It follows that the proportion
of a protected group in the qualified labor pool should
match the proportion of the group who are hired for the
job. Suppose 30 percent of the qualified labor pool for
a job is male and 70 is female, and an employer is hiring
100 persons.
We expect this employer to hire

(...continued)
disparate treatment as proved by statistics is most easily
understood in the context of hiring, in which the employment
opportunity is jobs.
c

Labor and Employment Law

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Teamsters v. United States

approximately 30 men and 70 women.
PROXIES

The student should now be able to understand that if
an employer is accused of race or sex discrimination, it
is essential to determine the proportion of people of
color or women in the qualified labor pool.
But
determining the racial or sexual characteristics of the
qualified labor pool is nearly impossible to do directly.
The following hypothetical case illustrates this and
other problems.
The Good Foods Case
Good
Foods
is
a
large
chain
of
supermarkets in a metropolitan area.
Last
year, Good Foods received 10,000 applications
for the job of full-time clerk in its stores,
and it hired 780 white people and 220 people of
color.
Suppose Good Foods is accused of discriminating against
people of color in the hiring of full-time clerks. In
order to use statistical evidence, we need to know the
percentages of whites and people of color in the
qualified labor pool for this job.
As a practical
matter, however, we cannot count the numbers of persons
in the city who are qualified to be food clerks; and even
if we could count them, we cannot learn which of them
would accept the job with this particular employer. What
can we do?
Similar difficulties occur in other contexts and are
overcome by using proxies. A proxy stands in the place
of something else. In statistics, a fair proxy has the
same relevant characteristics as the universe for which
the proxy stands; therefore, what is true of the proxy is
true of the universe.
For example, suppose a
presidential candidate wants to know how the public feels
about the party's foreign policy. The universe is the
public, but it is impractical to ask every citizen in the
nation; however, the answers given by a properly selected
sample of between 1,000 and 1,500 persons will closely
approximate what the entire population would answer. If
two-thirds of the persons in the sample disapprove of the
policy, two-thirds of the population also disapprove of

Labor and Employment Law

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Teamsters v. United States
the policy.
population.

The

sample

is

a

fair

proxy

for

the

In employment discrimination cases, the relevant
universe is the qualified labor pool. In the Good Foods
Supermarket case, we want to know the percentages of
whites and people of color in the pool. We cannot count
them directly, and parties to litigation can rarely
afford to commission a poll. But we need not lose hope,
as other fair proxies exist.
Sometimes the population can serve as a proxy for
the qualified labor pool for a job. The population is a
fair proxy when the job in question is unskilled and the
plaintiffs' group and the comparators are equally
interested in the job.d This was so in Teamsters. The
Court allowed the government to use the population
surrounding the employer's terminals as a proxy for the
qualified labor pool for the job of truck driver. The
population was a fair proxy because no evidence in the
case indicated that African-Americans were less qualified
for, or less interested in, the job of truck driver than
whites were. This is the reason that the Supreme Court
noted that approximately half of the population of
Atlanta was black. It followed that about half of the
qualified labor pool was also black. Based on this fact,
we would expect that about half of the company's drivers
would be black.
The Good Foods case suggests another proxy, namely,
the applicant pool. Applicants are an especially good
proxy because we may safely assume that they are
interested in the job. (Some are not, but we have no
reason to believe that proportionally more black than
white applicants would be unwilling to accept the job.)
Also, because people usually do not bother to apply for
d

If a job requires a high degree of education, we must
take into account that proportionally more whites than
people of color may have the appropriate training. The
population would not be a fair proxy when the job in
question is architect or physician. Similarly, we need to
take into account that some jobs are less attractive to one
group than to another. In a case alleging sex
discrimination, the population would not be a fair proxy for
the job of plumber because fewer women than men are
interested in this trade.

Labor and Employment Law

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Teamsters v. United States

jobs for which they are totally unqualified, we may
assume that most applicants are qualified for the job.
(At any rate, we have no reason to believe that
proportionally more black than white applicants are
unqualified.) Therefore, if 75 percent of applicants for
the job of clerk in a Good Foods store are white and 25
percent are people of color, we may infer that the
qualified labor pool is also 75 percent whites and 25
percent people of color.
This fact creates the
expectation that 75 percent of the clerks hired by Good
Foods would be white and 25 percent, people of color.
EXPECTATIONS, OBSERVATIONS, AND DISPARITIES

The racial and sexual characteristics of a fair
proxy
for
the
qualified
labor
pool
create
our
expectation. Our next step is to observe the employer's
behavior. How many men and women, or whites and people
of color, did the employer hire?
These numbers are
usually obtained from the employer's records.
Then we need to compare our expectation and our
observation.
We will be satisfied if we find no
disparity.
If 25 percent of the (proxy for) the
qualified labor pool are people of color, and 25 percent
of newly hired workers are also people of color, we will
be content.
The reason is not that the employer has
satisfied a quota. Rather, the reason is that we have no
reason to believe that race has influenced the hiring
process. Think again of our example of the drug trial.
In the normal process of Gold's disease, 60 percent of
students recover within a month. If the rate of recovery
in the group receiving the new drug is also approximately
60 percent, we must conclude that the drug had no effect;
nothing outside the normal process of the disease
influenced the students' recovery.
In the context of
employment, we expect employers to obey the law;
therefore, we define non-discriminatory hiring as the
normal process.
If the employer's numbers meet our
expectation, we conclude that illegal causes like race
and sex had no effect; nothing outside the normal (nondiscriminatory)
process
of
hiring
influenced
the
employer's decisions.
In the drug trial, if 700 of 1,000 students
receiving the drug recover within a month, we must
conclude that the drug was effective.
The numbers

Labor and Employment Law

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xxvii

convince us that a cause outside the normal process of
the disease influenced the students' recovery; because of
the rigorous structure of the double-blind trial, the
only reasonable cause is the drug.
Similarly, if the
employer's numbers fall significantly beneath our
expectation, we must conclude that a cause outside the
normal hiring process contributed to the result. If we
find a significant disparity between our expectation and
our observation, race or sex may have influenced the
employer's decisions.
Our conclusion, of course, must be based on a
statistically significant disparity. An intuitive test
of significance, such as Inez's judgment about the nails
in her tires, is satisfactory for daily life, but
liability in a law suit must be grounded on a more
reliable standard because intuition can be misleading.
Consider again the Good Foods case.
The chain hires
1,000 persons, 220 of whom are persons of color. Because
they are 25 percent of the (proxy for) the qualified
labor pool, we expect people of color to receive (1,000
x .25 =) 250 jobs. The 220 jobs they get are (220 ÷ 250
=) 88 percent of what we expect. Intuition might lead us
to conclude that this disparity is too small to worry
about.
After all, 88 percent is not far from our
expectation. This result seems like flipping a coin 10
times and getting 6 heads and 4 tails.
But such a
conclusion would not be sound.
A formal test of
statistical significance will reveal that the result in
the Good Foods case is a genuine disparity, not a random
variation in a process that is indifferent to race.
A TEST OF STATISTICAL SIGNIFICANCE

There
exist
various
tests
of
statistical
significance, that is, of whether a disparity is real.
One test that has been endorsed by the Supreme Court
appears in Castaneda v. Partida, 430 U.S. 482 (1977).e
The test is appropriately used when comparing two groups,
for example, men versus women or, as in the Good Foods
case, whites versus people of color.
The test may be

e

That the Court has not endorsed other tests of
statistical significance does not mean that only this test
is acceptable in the law. Indeed, the Castaneda test is not
properly applicable to many other situations.

Labor and Employment Law

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593

Teamsters v. United States

applied as follows:
Step 1
Identify a fair proxy for the qualified labor pool.
In the Good Foods case, the proxy is applicants for
the job.
Step 2
Determine the percentage of each of the two groups
in the qualified labor pool.
In the Good Foods
case, whites are 75 percent of applicants, and
people of color are 25 percent.f
Step 3
Calculate the product of these two percentages by
multiplying them by each other. .75 x .25 = .1875.
Step 4
Determine the number of decisions the employer has
made within the period covered by the statute of
limitations.g Multiply this number by the product in
step 3, and take the square root of the result.
This number is the standard deviation for these
numbers. In the Good Foods case, 1,000 persons were
hired during the period covered by the statute of
limitations.
1,000 x .1875 = 187.5.
/187.5 =
13.7.
Step 5
Calculate the expected number of persons in the
plaintiffs' group whom a non-discriminatory employer
would have hired, that is, the number of persons in
the plaintiffs' group who would have been hired if
f

These percentages represent the probabilities of
hiring each class in a random process. If 75 percent of the
qualified labor pool is white, 75 percent of new hires will
be white if hiring is performed at random.
g

The statute of limitations in Title VII claims
requires that a charge of discrimination be filed with the
EEOC within 300 days of the alleged discriminatory act. An
employer cannot be held liable for any decisions made more
than 300 days before the charge was filed. Therefore, one
must determine the date the charged was filed. Count back
300 days and, starting on this date and going forward, count
the number of relevant decisions the employer made.

Labor and Employment Law

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xxix

race had not been a causal factor in the hiring
process.h
To do this, multiply the percentage of
plaintiffs in the qualified labor pool by the number
of decisions the employer made. In the Good Foods
case our expectation is that (.25 x 1,000 =) 250
persons of color should have been hired.
Step 6
Subtract the number of persons in the plaintiffs'
group whom the employer actually hired from the
number we expected in step 5.
In the Good Foods
case, the difference is (250 - 220 =) 30.
Step 7
Divide the difference calculated in step 6 by the
standard deviation calculated in step 4.
This
quotient tells us the number of standard deviations
by which the actual number of new hires from the
plaintiff's group differs from the expected number.
In the Good Foods case, 30 ÷ 13.7 = 2.2.
In Castaneda the Court said that if the actual number
hired from the plaintiffs' group is two or three (or
more) standard deviations below the expected number, we
may conclude that the difference or disparity we have
observed is unlikely to have occurred by chance in a nondiscriminatory hiring process — in other words, that the

h

This number is the same as the number of persons in
the plaintiffs' group who would have been hired at random
from the qualified labor pool. The reason is that all the
whites and the people of color in the qualified labor pool
are, by definition, qualified for the job and willing to
accept it. Therefore, whites and people of color in the
qualified labor pool look the same to a non-discriminatory
employer. With no basis for distinguishing between whites
and people of color, a non-discriminatory employer would
hire them in proportion to their share of the pool. If 90
percent of the pool is white and 10 percent is people of
color, 90 percent of the persons hired by a nondiscriminatory employer would be white and 10 percent would
be people of color. This result is equivalent to hiring at
random from the pool.

Labor and Employment Law

xxx

595

Teamsters v. United States

result we have observed is statistically significant.i
According to statistical theory, if a result is
statistically significant, it probably has a specific
cause. Therefore, when the disparity between the number
of persons in the plaintiff's group whom we expect to
have been hired, and the number of persons in the
plaintiff's
group
who
actually
were
hired,
is
statistically significant, we know that this disparity is
real. It is not a random variation. It has a cause.
The next question is, what is the cause?
IDENTIFYING THE CAUSE OF A DISPARITY

Let us recur briefly to the experiment designed to
determine whether the drug to treat Gold's disease is
effective. We observed that 100 more persons taking the
drug recovered within a month than did persons taking the
placebo, and the next step was to determine why this
difference occurred.
By themselves, statistics cannot
j
identify the cause.
Statistics can tell us that a
specific cause was probably at work, but they cannot
identify it.
Other information, however, can.
Our
experiment was carefully controlled so that the only
difference between the groups of patients was that one
group received the drug and the other received a placebo.
To the extent possible, every other cause was excluded.
For this reason, we may infer that the new drug was the
cause of the additional recoveries.
Unfortunately, life does not admit of double-blind
trials.
We may feel confident that an event is so
unlikely to occur by chance that it probably has a

i

This test of statistical significance may be expressed
directly in terms of probability: If the actual number
hired from the plaintiffs' group would occur by chance in a
non-discriminatory process less than one time in a hundred,
the disparity is statistically significant.
j

In Teamsters the population of Atlanta was 51 percent
black; there were 57 line drivers at the Atlanta terminal,
but none was black or Latino. The corresponding numbers for
Los Angeles were 18 percent black population, 374 line
drivers, and, again, no black drivers. Such observations
would be extraordinarily improbable in a hiring system that
was indifferent to race. Nevertheless, the Court did not
infer intentional discrimination from these numbers.

Labor and Employment Law

596

Teamsters v. United States

xxxi

specific cause, but we must acknowledge that many causes
might be responsible. When Groucho dealt himself three
consecutive royal flushes, Harpo had good reason to
believe that a specific cause was at work; but, based
only on this purely statistical information, he could not
know what the cause was. Accordingly, he turned to what
we may call background information. This is conventional
(as opposed to statistical) evidence of the context in
which the unlikely event occurred.
Groucho and Harpo
were playing cards for money; thus, Groucho had a reason
to cheat.
Groucho was dealing; thus, he had the
opportunity to cheat. And Groucho was notorious for his
bad character; thus, he had no compunctions about
cheating.
Using this background information, Harpo
reasonably concluded that the most likely cause of
Groucho's three royal flushes was his sharp dealing.
Under disparate treatment, which is intentional
discrimination, only one cause is legally relevant:
purpose.
The plaintiffs must prove that the employer
purposefully disadvantaged them.
It follows that the
last step in proving disparate treatment by statistics is
the production of evidence of the employer's state of
mind.
Statistics cannot reveal state of mind, but
conventional evidence — background information — can. In
Teamsters the Court relied on evidence that people of
color were given false information about job vacancies,
and their applications were ignored. The Court was also
aware of the long history of discrimination against
people of color in the areas where the company's
terminals were located.
Such evidence revealed the
employer's state of mind; it proved that the employer
intentionally afforded people of color a lesser chance to
become truck drivers than their white comparators.
THE PRIMA FACIE CASE IN THE SECOND SENSE
OF DISPARATE TREATMENT AS PROVED BY STATISTICS

To summarize briefly, there is only one prima facieI of discrimination, but there are many prima facie-IIs.
Some prima facie-IIs use only conventional evidence,
e.g., the formula in McDonnell Douglas v. Green. Other
prima facie-IIs use statistical evidence. We have been
focusing in this comment on one of those statistical
prima facie-IIs. Let us now summarize this pattern. It
requires a plaintiff to

Labor and Employment Law

xxxii

597

Teamsters v. United States
A)

identify a fair proxy for the qualified labor
pool, e.g., the population or the applicant
pool;

B)

identify an employment opportunity (e.g. being
hired for a job) and establish a disparity
between the percentages of the plaintiffs and
the comparators who are in the proxy and who
benefit from the opportunity;

C)

prove by conventional evidence that the
disparity is caused by the employer's intent to
disadvantage the plaintiffs because of their
race or sex.
QUESTIONS FOR REFLECTION

1. Referring to the Teamsters case, was the evidence
relevant
that
the
company's
predecessors
had
discriminated against people of color before Title VII
took effect? Why or why not?
2. The company in Teamsters pointed out that the
number of jobs for drivers declined in the late 1960s.
Was this fact relevant? Why or why not?
3. The Court's opinion notes that the employer
pointed out a number of supposed shortcomings in the
government's statistics. What were they? Regardless of
whether the government's evidence was in fact deficient
in these ways, were they appropriate factors to take into
account in evaluating statistical evidence?

Ù

Labor and Employment Law

598

Disparate Impact
Introduction
Prior to the 1960's, the only way to prove discrimination was to establish that
the actor intended to disadvantage the victim because of one's race or sex. But during
the 1960's a new way of proving discrimination evolved. Its genesis may have been
the reconciliation of an old observation and a new theory. The observation was that
people of color scored lower on intelligence tests than whites. The theory was that
natural ability does not differ across racial groups. The reconciliation was the
explanation that blacks' lower scores on intelligence tests were caused by cultural bias
in the tests. Whether the explanation was valid or not (and it was highly
controversial), it was widely propagated. Its chief importance for our purpose is
twofold. The explanation focused on the outcome of the test, not the motivation of
the people who designed or used the test. The designers (probably psychologists) and
the users (schools and employers) may have acted in good faith, yet the test was unfair
to people of color. And in focusing on outcome, the explanation was concerned with
groups of people, not individuals. The test was unfair because blacks as a group
scored lower than whites; there was no evidence that the score of any individual black
was incorrect.
By the beginning of the 1970's, a new method of proving employment
discrimination was being advanced. It focused on effects instead of motives and
concerned groups instead of individuals. Under this method, which has come to be
known as disparate impact, an act is discriminatory if its effect is to disadvantage a
racial, sexual, or ethnic class unless the act can be justified by the legitimate needs of
the business. The following case adopted the disparate impact method of proving
discrimination. As you read the case, try to identify the elements of the prima facie
case of disparate impact.

Labor and Employment Law

599

Griggs v. Duke Power Company
401 U.S. 424 (1971)

Mr. Chief Justice BURGER delivered the opinion of the Court.
We granted the writ in this case to resolve the question whether an employer
is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school
education or passing of a standardized general intelligence test as a condition of
employment in or transfer to jobs when (a) neither standard is shown to be
significantly related to successful job performance, (b) both requirements operate to
disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs
in question formerly had been filled only by white employees as part of a longstanding
practice of giving preference to whites.
Congress provided, in Title VII of the Civil Rights Act of 1964, for class
actions for enforcement of provisions of the Act, and this proceeding was brought by
a group of incumbent Negro employees against Duke Power Company. All the
petitioners are employed at the Company's Dan River Steam Station, a power
generating facility located at Draper, North Carolina. At the time this action was
instituted, the Company had 95 employees at the Dan River Station, 14 of whom were
Negroes; 13 of these are petitioners here.
The District Court found that prior to July 2, 1965, the effective date of the
Civil Rights Act of 1964, the Company openly discriminated on the basis of race in
the hiring and assigning of employees at its Dan River plant. The plant was organized
into five operating departments: (1) Labor, (2) Coal Handling, (3) Operations, (4)
Maintenance, and (5) Laboratory and Test. Negroes were employed only in the Labor
Department where the highest paying jobs paid less than the lowest paying jobs in the
other four "operating" departments in which only whites were employed.1 Promotions
were normally made within each department on the basis of job seniority. Transferees
into a department usually began in the lowest position.
In 1955 the Company instituted a policy of requiring a high school education
for initial assignment to any department except Labor, and for transfer from the Coal
Handling to any "inside" department (Operations, Maintenance, or Laboratory). When
the Company abandoned its policy of restricting Negroes to the Labor Department in
1965, completion of high school also was made a prerequisite to transfer from Labor
to any other department. From the time the high school requirement was instituted to
the time of trial, however, white employees hired before the time of the high school
1

A Negro was first assigned to a job in an operating department in August 1966, five
months after charges had been filed with the Equal Employment Opportunity Commission.
The employee, a high school graduate who had begun in the Labor Department in 1953, was
promoted to a job in the Coal Handling Department.

Labor and Employment Law

600

Griggs v. Duke Power Company

iii

education requirement continued to perform satisfactorily and achieve promotions in
the "operating" departments. Findings on this score are not challenged.
The Company added a further requirement for new employees on July 2, 1965,
the date on which Title VII became effective. To qualify for placement in any but the
Labor Department, it became necessary to register satisfactory scores on two
professionally prepared aptitude tests, as well as to have a high school education.
Completion of high school alone continued to render employees eligible for transfer
to the four desirable departments from which Negroes had been excluded if the
incumbent had been employed prior to the time of the new requirement. In September
1965 the Company began to permit incumbent employees who lacked a high school
education to qualify for transfer from Labor or Coal Handling to an "inside" job by
passing two tests)the Wonderlic Personnel Test, which purports to measure general
intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed
or intended to measure the ability to learn to perform a particular job or category of
jobs. The requisite scores used for both initial hiring and transfer approximated the
national median for high school graduates.2
...
The District Court had found that while the Company previously followed a
policy of overt racial discrimination in a period prior to the Act, such conduct had
ceased. The District Court also concluded that Title VII was intended to be
prospective only and, consequently, the impact of prior inequities was beyond the
reach of corrective action authorized by the Act.
...
The objective of Congress in the enactment of Title VII is plain from the
language of the statute. It was to achieve equality of employment opportunities and
remove barriers that have operated in the past to favor an identifiable group of white
employees over other employees. Under the Act, practices, procedures, or tests
neutral on their face, and even neutral in terms of intent, cannot be maintained if they
operate to "freeze" the status quo of prior discriminatory employment practices.
The Court of Appeals' opinion, and the partial dissent, agreed that, on the
record in the present case, "whites register far better on the Company's alternative

2

The test standards are thus more stringent than the high school requirement, since
they would screen out approximately half of all high school graduates.

Labor and Employment Law

iv

601

Griggs v. Duke Power Company

requirements" than Negroes.6 This consequence would appear to be directly traceable
to race. Basic intelligence must have the means of articulation to manifest itself fairly
in a testing process. Because they are Negroes, petitioners have long received inferior
education in segregated schools and this Court expressly recognized these differences
in Gaston County v. United States, 395 U.S. 285 (1969). There, because of the
inferior education received by Negroes in North Carolina, this Court barred the
institution of a literacy test for voter registration on the ground that the test would
abridge the right to vote indirectly on account of race. Congress did not intend by
Title VII, however, to guarantee a job to every person regardless of qualifications. In
short, the Act does not command that any person be hired simply because he was
formerly the subject of discrimination, or because he is a member of a minority group.
Discriminatory preference for any group, minority or majority, is precisely and only
what Congress has proscribed. What is required by Congress is the removal of
artificial, arbitrary, and unnecessary barriers to employment when the barriers operate
invidiously to discriminate on the basis of racial or other impermissible classification.
Congress has now provided that tests or criteria for employment or promotion
may not provide equality of opportunity merely in the sense of the fabled offer of milk
to the stork and the fox.a On the contrary, Congress has now required that the posture
6

In North Carolina, 1960 census statistics show that, while 34% of white males had
completed high school, only 12% of Negro males had done so. U.S. Bureau of the Census,
U.S. Census of Population: 1960 , Vol. 1, Characteristics of the Population, pt. 35, Table
47.
Similarly, with respect to standardized tests, the EEOC in one case found that use
of a battery of tests, including the Wonderlic and Bennett tests used by the Company in the
instant case, resulted in 58% of whites passing the tests, as compared with only 6% of the
blacks. Decision of EEOC, CCH Empl. Prac. Guide, ¶17,304.53 (Dec. 2, 1966).
a

{"The Fox and the Crane
The fox the crane did solemnly invite
Only to tantalize her appetite,
For nothing he but liquid fare provides
That spreading o'er the table thinly glides,
Of which her spearlike beak could nothing sup,
Whilst the sly fox licks all unkindly up.
The crane, this false imposture to requite
The fox to new caresses did invite,
But a glass vial did her cates contain,
Which only she with length of bill could drain.
The fox, thus foiled with her more powerful arts,
To his own cell with scorn and shame departs.

(continued...)

Labor and Employment Law

602

Griggs v. Duke Power Company

v

and condition of the job-seeker be taken into account. It has)to resort again to the
fable)provided that the vessel in which the milk is proffered be one all seekers can
use. The Act proscribes not only overt discrimination but also practices that are fair
in form, but discriminatory in operation. The touchstone is business necessity. If an
employment practice which operates to exclude Negroes cannot be shown to be
related to job performance, the practice is prohibited.
On the record before us, neither the high school completion requirement nor
the general intelligence test is shown to bear a demonstrable relationship to successful
performance of the jobs for which it was used. Both were adopted, as the Court of
Appeals noted, without meaningful study of their relationship to job-performance
ability. Rather, a vice president of the Company testified, the requirements were
instituted on the Company's judgment that they generally would improve the overall
quality of the work force.
The evidence, however, shows that employees who have not completed high
school or taken the tests have continued to perform satisfactorily and make progress
in departments for which the high school and test criteria are now used.7 The
promotion record of present employees who would not be able to meet the new
criteria thus suggests the possibility that the requirements may not be needed even for
the limited purpose of preserving the avowed policy of advancement within the
Company. In the context of this case, it is unnecessary to reach the question whether
testing requirements that take into account capability for the next succeeding position
or related future promotion might be utilized upon a showing that such long-range
requirements fulfill a genuine business need. In the present case the Company has
made no such showing.
The Court of Appeals held that the Company had adopted the diploma and test
requirements without any "intention to discriminate against Negro employees." We
do not suggest that either the District Court or the Court of Appeals erred in
examining the employer's intent; but good intent or absence of discriminatory intent
a

(...continued)
{The Moral:}
Thus fraud t'entangle fraud is oft designed,
And falsehood is by falsehood countermined."
--A fable by Aesop, translated by Thomas Philipott, 1666. — ed.}
7

For example, between July 2, 1965, and November 14, 1966, the percentage of
white employees who were promoted but who were not high school graduates was nearly
identical to the percentage of non-graduates in the entire white work force.

Labor and Employment Law

vi

603

Griggs v. Duke Power Company

does not redeem employment procedures or testing mechanisms that operate as "builtin head winds" for minority groups and are unrelated to measuring job capability.
The Company's lack of discriminatory intent is suggested by special efforts to
help the undereducated employees through Company financing of two-thirds the cost
of tuition for high school training. But Congress directed the thrust of the Act to the
consequences of employment practices, not simply the motivation. More than that,
Congress has placed on the employer the burden of showing that any given
requirement must have a manifest relationship to the employment in question.
The facts of this case demonstrate the inadequacy of broad and general testing
devices as well as the infirmity of using diplomas or degrees as fixed measures of
capability. History is filled with examples of men and women who rendered highly
effective performance without the conventional badges of accomplishment in terms
of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but
Congress has mandated the common sense proposition that they are not to become
masters of reality.
The Company contends that its general intelligence tests are specifically
permitted by § 703(h) of the Act.8 That section authorizes the use of "any
professionally developed ability test" that is not "designed, intended or used to
discriminate because of race ...." (Emphasis added.)
The Equal Employment Opportunity Commission, having enforcement
responsibility, has issued guidelines interpreting § 703(h) to permit only the use of
job-related tests.9 The administrative interpretation of the Act by the enforcing agency
8

Section 703(h) applies only to tests. It has no applicability to the high school
diploma requirement.
9

provide:

EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966,

"The Commission accordingly interprets "professionally developed ability
test" to mean a test which fairly measures the knowledge or skills required by the
particular job or class of jobs which the applicant seeks, or which fairly affords the
employer a chance to measure the applicant's ability to perform a particular job or
class of jobs. The fact that a test was prepared by an individual or organization
claiming expertise in test preparation does not, without more, justify its use within
the meaning of Title VII."

The EEOC position has been elaborated in the new Guidelines on Employee Selection
Procedures, 29 CFR § 1607, 35 Fed. Reg. 12333 (Aug. 1, 1970). These guidelines demand
(continued...)

Labor and Employment Law

604

Griggs v. Duke Power Company

vii

is entitled to great deference. Since the Act and its legislative history support the
Commission's construction, this affords good reason to treat the guidelines as
expressing the will of Congress.
...
Nothing in the Act precludes the use of testing or measuring procedures;
obviously they are useful. What Congress has forbidden is giving these devices and
mechanisms controlling force unless they are demonstrably a reasonable measure of
job performance. Congress has not commanded that the less qualified be preferred
over the better qualified simply because of minority origins. Far from disparaging job
qualifications as such, Congress has made such qualifications the controlling factor,
so that race, religion, nationality, and sex become irrelevant. What Congress has
commanded is that any tests used must measure the person for the job and not the
person in the abstract.
The judgment of the Court of Appeals is, as to that portion of the judgment
appealed from, reversed.

9

(...continued)
that employers using tests have available "data demonstrating that the test is predictive of
or significantly correlated with important elements of work behavior which comprise or are
relevant to the job or jobs for which candidates are being evaluated." Id. at § 1607.4(c).

Labor and Employment Law

viii

605

Griggs v. Duke Power Company
QUESTIONS FOR REFLECTION

1. The employer in Griggs believed in good faith
that workers with high school diplomas made better
employees and that mechanical aptitude, as measured by
the scored tests, was necessary for the jobs in question.
It is true that the employer did not have evidence to
support these beliefs, and that the diploma requirement
and aptitude test disadvantaged blacks as compared to
whites.
Nevertheless, the employer did not intend to
exclude blacks from jobs. Indeed, the employer paid most
of the cost of tuition for employees who sought a high
school education. Thus, it appears that the disparate
impact definition of discrimination outlaws unintentional
acts. Is it fair to hold employers liable for acts they
do not intend to commit?
2. Should the Court have considered the evidence
from the EEOC decision cited in n. 6?
3. The Supreme Court reversed the judgment of the
lower court, that is, held the plaintiffs won on the
issue of disparate impact. Should the Court instead have
remanded the case to the trial court for further
proceedings?
Comment
Section 703(a) of Title VII reads:
Sec. 703.
(a) It shall be an
employment practice for an employer —

unlawful

(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, conditions, or privileges of
employment because of such individual's race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his
employees or applicants for employment in any way
which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because
of such individual's race, color, religion, sex, or
national origin.

Labor and Employment Law

606

Griggs v. Duke Power Company

ix

Thus, the statute does not outlaw all discrimination. As
far as Title VII is concerned, an employer is free to
discriminate on the grounds of union activity, political
beliefs, and so forth.
The discrimination which is
outlawed by the statute is limited to disadvantage of a
worker because of one's race or sex.
This limitation gives rise to a difficult question.
In disparate treatment, it is obvious that the employer
disadvantages a worker because of the latter's race or
sex. The employer intentionally denies opportunities to
women and people of color; to say the same thing, the
employer consciously uses race or sex as a selection
criterion
for
awarding
and
denying
employment
opportunities to workers. In disparate impact, however,
it is not obvious that the employer disadvantages a
worker because of race or sex.
The employer does not
desire to deny opportunities to women or people of color.
Rather than knowingly using race or sex as a selection
criterion, the employer uses a criterion that is neutral
on its face. And so the question arises: in a disparate
impact case, how can we say that the employer denies
opportunities to workers because of their race or sex?
We cannot answer this question now. Before we can,
the student must understand the defense in disparate
impact, which is our next topic.

Ù

Labor and Employment Law

607

Business Necessity
Introduction
In a disparate impact case, the plaintiffs must
prove that a specific employment practice has a
disproportional adverse effect on their group; this is
the essence of their prima facie case. For example, the
plaintiffs in Griggs proved that the high school diploma
requirement and the mechanical aptitude test disqualified
proportionally more blacks than whites.
Then the
defendant has an opportunity to present a defense. An
employer may defend a disparate impact case in the same
ways that any other defendant may defend a case: the
defendant may attack the plaintiff's prima facie case,
prove an affirmative defense, or both.
Attacking the prima facie case of disparate impact
is similar to attacking any other prima facie case. The
employer typically attempts to discredit the plaintiffs'
witnesses or evidence; thus an employer might try to show
that the plaintiffs' statistics are inaccurate or the
plaintiff's statistical methods are flawed.
The affirmative defense to disparate impact is,
however, unique. Section 703(k)(1)(A)(i) of Title VII
specifies this defense. An employment practice with a
disproportional adverse effect is lawful if the practice
is "job related for the position in question and is
consistent with business necessity." This is known as
the business necessity defense, and an employer can win
a disparate impact case by establishing it.
One must be careful about the terms in
section
703(k)(1)(A)(i), for they are terms of art; thus, they do
not carry their ordinary English meanings. "Job related"
does not mean merely connected in some way to a job, and
"business necessity" does not mean indispensable to a
business.
Rather, these terms have acquired special
meanings in the law.
The meanings of these terms must
be derived from the cases which apply the terms.
In
Griggs, the Supreme Court held that the diploma
requirement and aptitude test were not job related and
consistent with business necessity. The meaning of the
terms "job related" and "consistent with business
necessity" can be inferred from Griggs, at least in part,

Labor and Employment Law

ii

608

Spurlock v. United Airlines

by examining it to determine the deficiencies in the
criteria.
Before reading the following case, the student
should review Griggs and determine why the Court held
that the diploma requirement and aptitude test were not
"job related for the position in question" and not
"consistent with business necessity."
The following case, though decided before section
703(k)(1)(A)(i) was added to the Act, applied the
business necessity defense.

Labor and Employment Law

609

Spurlock v. United Airlines
475 F.2d 216 (10th Cir. 1972)

LEWIS, Chief Judge:) ...
The evidence established that on May 19, 1969, the appellant applied for the
position of flight officer. At that time, appellant did not meet United's qualifications
to be considered for flight officer. He was 29 years of age, had two years of college,
principally in music education, had logged 204 hours of flight time, and had obtained
a commercial pilot's license. United's minimum requirements for flight officer were
500 hours flight time, 21 to 29 years of age, a commercial pilot's license and
instrument rating, and a college degree.
When appellant's application was received by mail in United's employment
office, it was reviewed by a clerical employee. He circled in red the respects in which
the appellant's qualifications were deficient. Appellant was then advised by letter that
United had other applicants whose qualifications more nearly met United's
requirements. No one at United saw or interviewed the appellant, and no one knew
his race [African-American].
From the evidence, the trial court found an absence of an intent to discriminate
on the part of United in hiring its flight officers. While it is important to examine the
intent of a company charged with a Title VII violation, absence of discriminatory
intent does not necessarily establish that the company's employment practices have no
discriminatory effect. Title VII is aimed at the consequences of employment practices,
not simply the motivation. Thus, when a plaintiff is claiming that the criteria used by
a company in screening job applicants discriminate against a minority group, he needs
only establish that the use of such criteria has a discriminatory result. It is not
necessary to prove a discriminatory intent but only that the discriminatory criteria
were used deliberately, not accidentally.
In order to establish that United's flight officer qualifications resulted in
discrimination against blacks, the appellant showed that out of the approximately 5900
flight officers in United's employ at the time of the trial only 9 were blacks. Appellant
contends that these statistics establish a prima facie case of racial discrimination.
United claims that these bare statistics establish nothing unless accompanied by
similar information as to the number of qualified black applicants for the flight officer
position. The circuitousness of this bootstrap argument becomes obvious when one
recalls that it is United's qualifications for flight officer that appellant claims are
discriminatory against blacks. We hold, therefore, that by showing the minuscule
number of black flight officers in United's employ, the appellant established a prima
facie case of racial discrimination in hiring practices. This is true even though it is
clear from the record that United applied its employment criteria without regard to
race or color.

Labor and Employment Law

iv

610

Spurlock v. United Airlines

Employment practices which are inherently discriminatory may nevertheless
be valid if a business necessity can be shown. And pre-employment qualifications
which result in discrimination may be valid if they are shown to be job-related. Thus,
once the appellant had established a prima facie case of racial discrimination, the
burden fell upon United to show that its qualifications for flight officer were jobrelated. The trial court found that the burden had been met and that United's job
qualifications were job-related. We agree.
The two job qualifications that appellant challenges are the requirements of a
college degree and a minimum of 500 flight hours. The evidence at trial showed that
United does not train applicants to be pilots but instead requires that their applicants
be pilots at the time of their application. It cannot seriously be contended that such
a requirement is not job-related. United also showed through the use of statistics that
applicants who have higher flight hours are more likely to succeed in the rigorous
training program which United flight officers go through after they are hired. The
statistics clearly showed that 500 hours was a reasonable minimum to require of
applicants to insure their ability to pass United's training program.1 The evidence also
showed that because of the high cost of the training program, it is important to United
that those who begin its training program eventually become flight officers. This is
an example of business necessity. We conclude that the evidence amply supports a
finding that the requirement of 500 hours flight time is job-related.

1

The statistics presented were for the period February 1965 through April 1967 and were
based on United's experience with approximately 1300 trainees, 82 of whom did not
complete the training program. The statistics produced the following results:
No. of Hours

No. of Trainees

No. of Failures

Failure Rate

200 or less

352

32

9%

201 to 500

128

19

14%

501 to 1,000

154

12

8%

1,001 to 1,500

175

9

5%

1,501 to 2,000

168

3

2%

2,001 to 2,500

119

2

2%

2,501 to 3,000

89

3

2%

3,001 to 5,001

118

2

2%

Labor and Employment Law

611

Spurlock v. United Airlines

v

With regard to the college degree requirement, United officials testified that
it was a requirement which could be waived if the applicant's other qualifications were
superior, especially if he had a lot of high quality flight time, that is, flight time in high
speed jet aircraft. The evidence showed that United flight officers go through a
rigorous training course upon being hired and then are required to attend intensive
refresher courses at six-month intervals to insure that all flight officers remain at peak
performance ability. United officials testified that the possession of a college degree
indicated that the applicant had the ability to understand and retain concepts and
information given in the atmosphere of a classroom or training program. Thus, a
person with a college degree, particularly one in the "hard" sciences, is more able to
cope with the initial training program and the unending series of refresher courses than
a person without a college degree. We think United met the burden of showing that
its requirement of a college degree was sufficiently job-related to make it a lawful preemployment standard....
When a job requires a small amount of skill and training and the consequences
of hiring an unqualified applicant are insignificant, the courts should examine closely
any pre-employment standard or criteria which discriminate against minorities. In
such a case, the employer should have a heavy burden to demonstrate to the court's
satisfaction that his employment criteria are job-related. On the other hand, when the
job clearly requires a high degree of skill and the economic and human risks involved
in hiring an unqualified applicant are great, the employer bears a correspondingly
lighter burden to show that his employment criteria are job-related. The job of airline
flight officer is clearly such a job. United's flight officers pilot aircraft worth as much
as $20 million and transport as many as 300 passengers per flight. The risks involved
in hiring an unqualified applicant are staggering. The public interest clearly lies in
having the most highly qualified persons available to pilot airliners. The courts,
therefore, should proceed with great caution before requiring an employer to lower his
pre-employment standards for such a job. We conclude that United Airlines met its
burden of proving that its employment requirements are job-related and the trial
court's finding in that regard is not clearly erroneous.
AFFIRMED.

Labor and Employment Law

vi

612

Spurlock v. United Airlines
QUESTIONS FOR REFLECTION

1. Why were the diploma requirement and aptitude
test in Griggs held to be not "job related ... and
consistent with business necessity"?
2. Was the risk of a crash relevant to Spurlock?
3. Is Spurlock evidence that courts are friendlier
to college diploma requirements than to high school
diploma requirements?
4. Suppose the year is 1966.
You have just been
hired into the human resources department of the Duke
Power Company. You quickly learn of the requirements for
promotion to the inside departments, viz., a high school
diploma and a satisfactory score on the mechanical
aptitude test. You notice that these requirements have
a disproportional adverse effect on African Americans.
You cannot know what the Supreme Court will hold in 1971,
but you do know that rational selection criteria are job
related.
What would you recommend to your superiors
concerning the promotion requirements?
5. The EEOC Guidelines, mentioned in n. 9 of Griggs,
state that a test that has an adverse effect on a
protected class is discriminatory unless the test
predicts success on important elements of the job for
which the test is used.
Determining whether a test
predicts success on the job is called validation.
Validation studies are expensive, often running into
hundreds of thousands of dollars. How are cost-conscious
employers likely to cope with the EEOC's guideline?

Ù

Labor and Employment Law

613

Proof of Disparate Impact
Introduction
We have looked, albeit briefly, at the prima facie
case in the first sense of disparate impact (Griggs v.
Duke Power Co.) and at the business necessity defense
(Spurlock v. United Air Lines). Now we turn to the way
disparate impact is proved. Unlike proof of disparate
treatment, of which we found three patterns, we find that
one pattern dominates the proof of disparate impact.a It
requires plaintiffs to
A)

identify a selection criterion (such as a
written test, a diploma requirement, or an
experience requirement) that is used to award
an employment opportunity;

B)

specify a proxy for the qualified labor pool
(the group on whom the selection criterion
operates)

C)

demonstrate that the selection criterion has an
adverse effect on the plaintiffs’ group in (a
proxy for) the qualified labor pool, in other
words, that the criterion awards the employment
opportunity to proportionally more comparators
than plaintiffs.

The first requirement is straightforward, but the second
requirement needs explanation.
The second requirement has two steps.
The first
step is to identify a fair proxy for the qualified labor
pool.
In a disparate treatment case proved by
statistics, the plaintiff may have a choice from among
several proxies, for example, the population of the area,
applicants, or recent graduates of appropriate training
programs. In a disparate impact case, the plaintiff also
has a choice of proxies, but the choice is more limited.
The proxy must be the group to which the selection

a

This pattern applies to a variety of cases, including
hiring, promotion, layoff, and discharge.
Other patterns
exist, however.

Labor and Employment Law

ii

614

Dothard v. Rawlinson (disparate impact)

criterion is applied. Nevertheless, the specification of
that group may vary. In Griggs the plaintiffs challenged
a written test, and the proxy had to be test takers; but
the proxy could have been the persons who took the test
on a certain date at a certain place, or persons who took
the test on a range of dates at one place or in several
places.
The plaintiffs in Griggs also challenged the
high school degree requirement.
This requirement was
applied to applicants, so the proxy could have been the
applicant pool; but the proxy could also have been the
population of the area in which most of the defendant's
employees lived, or the population of the state.
In
Spurlock the plaintiff challenged the requirement that
applicants have 500 hours of flight time.
The
requirement was applied to applicants, so the proxy could
have been the applicant pool, or pilots with sufficient
experience to succeed in flight school.
After the proxy is identified, the second step of
the second requirement is for the plaintiffs to determine
the representation of their group and of the comparators
in the proxy.
This is usually a matter of simple
arithmetic. Let us suppose, for example, that plaintiffs
(as in Griggs) are challenging a written test, so the
proxy is test takers. The plaintiffs need to calculate
the representation of their group and of the comparators
among test takers. Let us say that 80 percent of the
test takers are European-American and 20 percent are
Asian-American.
The third requirement calls for the plaintiffs to
prove
that
the
challenged
selection
criterion
disproportionally disadvantages their group vis-a-vis the
comparators in the proxy. This step has three parts. In
the first part, the plaintiffs calculate their share of
the persons to whom the employer has awarded the
opportunity.
This is also simple arithmetic.
In our
example, the opportunity is passing a written test. The
plaintiffs would count the number of European-Americans
and Asian-Americans who achieved a passing score.
The second part of step three also requires nothing
but elementary arithmetic. The plaintiffs must compare
their share of the proxy with their share of the persons
who gain the opportunity. If these shares are the same,
no discrimination has occurred. In our example, Asians
are 20 percent of the proxy. If 20 percent (or more) of

Labor and Employment Law

615

Dothard v. Rawlinson (disparate impact)

iii

the persons who pass the test are Asian, the plaintiffs
have no cause to complain. But if the plaintiffs’ share
of the opportunity is less than their share of the proxy,
they must proceed to the third part of step three.
If the plaintiffs’ share of the opportunity is less
than their share of the proxy, we must determine whether
the disparity is real or only apparent - whether it is
statistically significant or a random variation in a fair
process.
Suppose our plaintiffs constitute only 15
percent of the persons who pass the written test. Now
the question arises, is the disparity between 20 percent
(their share of the proxy) and 15 percent (their share of
the opportunity) statistically significant?
At this
point, proof of disparate impact is identical to proof of
disparate treatment by statistics, which we discussed
above in connection with the Teamsters case. The only
right way to answer this question is to apply a test of
statistical significance.b
In the following case the court does not discuss
whether the plaintiffs proved that the employer’s
selection criteria had an adverse effect. The reason is
probably that the disparity is so large that it is
obviously significant. The Court does, however, discuss
whether the plaintiffs’ proxy for the qualified labor
pool was appropriate.

b

Our reason for stressing the word “only” will become
evident as the student reads the comment that follows this
case.

Labor and Employment Law

616

Dothard v. Rawlinson
433 U.S. 321 (1977)

Mr. Justice STEWART delivered the opinion of the Court.
{The facts, which are stated more fully above in connection with bfoq's, were
that Dianne Rawlinson was rejected as a "correctional counselor" in Alabama because
she could not satisfy the state's requirement that prison guards weigh at least 120
pounds. The state also required that guards stand at least 5 feet 2 inches tall. The
lower court ruled in Rawlinson's favor.}
...
II
In enacting Title VII, Congress required "the removal of artificial, arbitrary,
and unnecessary barriers to employment when the barriers operate invidiously to
discriminate on the basis of racial or other impermissible classification." Griggs v.
Duke Power Co. 401 U.S. 424, 431. The District Court found that the minimum
statutory height and weight requirements that applicants for employment as
correctional counselors must meet constitute the sort of arbitrary barrier to equal
employment opportunity that Title VII forbids. The appellants assert that the District
Court erred both in finding that the height and weight standards discriminate against
women, and in its refusal to find that, even if they do, these standards are justified as
"job related."
A
The gist of the claim that the statutory height and weight requirements
discriminate against women does not involve an assertion of purposeful
discriminatory motive. It is asserted, rather, that these facially neutral qualification
standards work in fact disproportionately to exclude women from eligibility for
employment by the Alabama Board of Corrections. We dealt in Griggs and [in]
Albemarle Paper Co. v. Moody, 422 U.S. 405, with similar allegations that facially
neutral employment standards disproportionately excluded Negroes from
employment, and those cases guide our approach here.
Those cases make clear that to establish a prima facie case of discrimination,
a plaintiff need only show that the facially neutral standards in question select
applicants for hire in a significantly discriminatory pattern. Once it is thus shown that
the employment standards are discriminatory in effect, the employer must meet "the
burden of showing that any given requirement [has] ... a manifest relationship to the
employment in question." Griggs at 432. If the employer proves that the challenged
requirements are job related, the plaintiff may then show that other selection devices

Labor and Employment Law

617

Dothard v. Rawlinson (disparate impact)

v

without a similar discriminatory effect would also "serve the employer's legitimate
interest in 'efficient and trustworthy workmanship.'" Albemarle at 425.
Although women 14 years of age or older comprise 52.75% of the Alabama
population and 36.89% of its total labor force, they hold only 12.9% of its
correctional counselor positions. In considering the effect of the minimum height and
weight standards on this disparity in rate of hiring between the sexes, the District
Court found that the 5'2" requirement would operate to exclude 33.29% of the women
in the United States between the ages of 18-79, while excluding only 1.28% of men
between the same ages. The 120-pound weight restriction would exclude 22.29% of
the women and 2.35% of the men in this age group. When the height and weight
restrictions are combined, Alabama's statutory standards would exclude 41.13% of
the female population while excluding less than 1% of the male population.
Accordingly, the District Court found that Rawlinson had made out a prima facie case
of unlawful sex discrimination.
The appellants argue that a showing of disproportionate impact on women
based on generalized national statistics should not suffice to establish a prima facie
case. They point in particular to Rawlinson's failure to adduce comparative statistics
concerning actual applicants for correctional counselor positions in Alabama. There
is no requirement, however, that a statistical showing of disproportionate impact must
always be based on analysis of the characteristics of actual applicants. The
application process itself might not adequately reflect the actual potential applicant
pool, since otherwise qualified people might be discouraged from applying because
of a self-recognized inability to meet the very standards challenged as being
discriminatory. A potential applicant could easily determine her height and weight
and conclude that to make an application would be futile. Moreover, reliance on
general population demographic data was not misplaced where there was no reason
to suppose that physical height and weight characteristics of Alabama men and
women differ markedly from those of the national population.
B
We turn, therefore, to the appellants' argument that they have rebutted the
prima facie case of discrimination by showing that the height and weight
requirements are job related. These requirements, they say, have a relationship to
strength, a sufficient but unspecified amount of which is essential to effective job
performance as a correctional counselor. In the District Court, however, the
appellants produced no evidence correlating the height and weight requirements with
the requisite amount of strength thought essential to good job performance. Indeed,
they failed to offer evidence of any kind in specific justification of the statutory
standards.

Labor and Employment Law

vi

618

Dothard v. Rawlinson (disparate impact)

If the job-related quality that the appellants identify is bona fide, their purpose
could be achieved by adopting and validating a test for applicants that measures
strength directly. Such a test, fairly administered, would fully satisfy the standards
of Title VII because it would be one that "measure[s] the person for the job and not
the person in the abstract." Griggs at 436. But nothing in the present record even
approaches such a measurement.
For the reasons we have discussed, the District Court was not in error in
holding that Title VII of the Civil Rights Act of 1964, as amended, prohibits
application of the statutory height and weight requirements to Rawlinson and the
class she represents.
....

Labor and Employment Law

619

Dothard v. Rawlinson (disparate impact)

vii

Comment
A little knowledge is dangerous, especially if it is
old knowledge.
Many people believe that whether a
selection criterion has an adverse effect on a protected
class is determined by the "eighty percent (or fourfifths) rule." The student will benefit from learning
why this belief exists and why it is dangerous.
As is so often true, history illuminates the
present. The history relevant to the Eighty Percent Rule
began with a presidential order that all contracts with
the federal government contain a non-discrimination
clause; that is, in order to be awarded a contract to
provide goods or services to the government, a contractor
had to promise not to discriminate in employment on the
basis of race or sex.c
The federal government does
business with thousands and thousands of private firms.
From time to time (some would say, from moment to moment)
federal contractors do not live up to their contractual
obligations.
The government knows this fact and has
established compliance offices to monitor whether
contractors are complying with their obligations.
Beginning in the 1960s, the compliance offices began
checking on whether contractors were keeping their
promises not to discriminate on the basis of race or sex.
The number of federal contracts is huge. The number
of employees of the federal compliance offices is small,
and their resources are limited. The compliance offices
made a fully rational decision: they decided to devote
their scarce time and resources to investigating only the
most serious violations of the duty not to discriminate.
The compliance offices developed a simple test for
deciding which contractors to investigate:
if the
success rate of women or people of color for a given
opportunity is less than eighty percent of the success
rate of the comparators for this opportunity, the

c

This requirement remains in force today.

Labor and Employment Law

viii

620

Dothard v. Rawlinson (disparate impact)

compliance office will investigate.d The greatest virtue
of the Eighty Percent Rule is that one does not need a
degree in statistics to apply it. The greatest vice of
the rule is the false belief that it reveals whether
discrimination has occurred.
As we mentioned in the introduction to this case,
whether discrimination has occurred depends on whether a
disparity is statistically significant. It follows that
if the Eighty Percent Rule were a proper test of
discrimination, the rule would be a test of statistical
significance.
To say the same thing, the rule would
yield the same results as a recognized test of
statistical significance. The rule does not do this.
It is true that, in some cases involving small
groups, the Eighty Percent Rule yields the same result as
a test of statistical significance.
In most cases,
however, the rule yields an erroneous result. Consider
two examples:
Example with a Small Set of Data
An employer wants to hire 100 new
workers; 100 men and 100 women apply, and the
employer hires 45 women and 55 men.
The 80
Percent Rule asks, is the success rate of the
plaintiffs (women) at least 80 percent of the
success rate of the comparators (men)?
The
rule is satisfied in this example because
women's success rate is (45 ÷ 100 =) 45
percent, men's success rate is (55 ÷ 100 =) 55
percent, and 45 percent is (45 ÷ 55 =) 82
percent of 55 percent. Testing for statistical
significance according to the method in
Castaneda v. Partida (see the Teamsters case
d
For example, suppose a firm that builds houses hires
1,000 carpenters in a given year; 2,000 African-Americans and
6,000 European-Americans apply for these jobs, and 200
African-Americans and 800 European-Americans are hired. The
success rate of African-Americans is (200 ÷ 2,000) = 10
percent; the success rate of European-Americans is (800 ÷
6,000 =) 13 percent. The success rate of African-Americans is
(10 percent ÷ 13 percent =) 77 percent of the success rate of
European-Americans, and the Eighty Percent Rule is not
satisfied.

Labor and Employment Law

621

Dothard v. Rawlinson (disparate impact)

ix

above) the probability of selecting a man in a
sex-neutral process is (100 men ÷ 200
applicants =) .5; the probability of selecting
a woman in a neutral process is the same. The
number of decisions (persons hired) is 100.
Therefore,
the
standard
deviation
is
/(.5)(.5)(100) = 5.
Thus, the result of 45
women is (50 - 45 = 5) one standard deviation
below the expected result of 50; this result is
not statistically significant because it could
easily occur by chance in a selection process
in which sex plays no role.
Example with a large set of data
Same as above with numbers larger by a
factor of ten: 1,000 men and 1,000 women apply,
and the employer hires 450 women and 550 men.
Applying the Eighty Percent Rule yields the
same result as above; adding a zero to the
numbers does not change the proportions (450 ÷
1,000 = 45 percent; 550 ÷ 1,000 = 55 percent;
45 percent ÷ 55 percent = 82 percent).
The
test for statistical significance, however,
comes out differently.
The probabilities of
hiring men and women are the same as above
(1,000 ÷ 2,000 = .5), but the number of
decisions is much larger (1,000). The standard
deviation is (/(.5)(.5)1,000 .) 16.
The
result of 450 women is (500 - 450 = 50; 50 ÷ 16
. 3.1) more than 3 standard deviations below
the expected result of 500; this result is
statistically
significant
because
it
is
unlikely to occur by chance in a selection
process in which sex plays no role.
In the early days of Title VII, parties and some
courts adopted the Eighty Percent Rule, partly because it
appeared (albeit erroneously) to be approved by the
federal government and partly because nearly anyone could
apply the rule. It is clear today, however, that the
Eighty Percent Rule is valid only for its original
purpose — to help federal compliance offices to decide
which contractors to investigate, and is not valid for
determining whether a disparity is statistically
significant.

Labor and Employment Law

x

622

Dothard v. Rawlinson (disparate impact)
QUESTIONS FOR REFLECTION

1. (a) What proxy for the qualified labor pool did
the Court accept in Dothard? Was it a fair proxy? (b)
What proxy did the employer argue should have been used?
Should the employer's proxy have been accepted?
2. What evidence might the employer have introduced
to vindicate its selection criteria (the height and
weight requirements)?

Labor and Employment Law

623

Proof of Disparate Impact (cont'd)
Introduction
Like the preceding case, the following one pertains
to proof of disparate impact.
Note particularly the
various ways in which, according to the court, disparate
impact can be proved.
Is the court correct?
Then
consider how the defendant might have proved the business
necessity defense.

Labor and Employment Law

624

Green v. Missouri Pacific RR. Co.
523 F.2d 1290 (8th Cir. 1975)

BRIGHT, Circuit Judge:)The Missouri Pacific Railroad Company (MoPac)
follows an absolute policy of refusing consideration for employment to any person
convicted of a crime other than a minor traffic offense. Appellant Buck Green, who
is black, raises the principal question of whether this policy violates Title VII of the
Civil Rights Act of 1964, because this practice allegedly operates to disqualify blacks
for employment at a substantially higher rate than whites and is not job related.
...
On September 29, 1970, Green, then 29 years of age, applied for employment
as a clerk at MoPac's personnel office in the corporate headquarters in St. Louis,
Missouri. In response to a question on an application form, Green disclosed that he
had been convicted in December 1967 for refusing military induction. He stated that
he had served 21 months in prison until paroled on July 24, 1970.5 After reviewing
the application form, MoPac's personnel officer informed Green that he was not
qualified for employment at MoPac because of his conviction and prison record.
Green, thereafter, sought relief under Title VII, and when administrative conciliation
failed, he brought this action.
Since 1948, MoPac has followed the policy of disqualifying for employment
any applicant with a conviction for any crime other than a minor traffic offense. Prior
to 1972, MoPac also investigated an applicant's arrest record, but after the decision in
Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir. 1972), MoPac eliminated any
arrest inquiry from its application form and ceased using arrest records as an
employment criterion.
Green makes the following contentions on this appeal: (1) MoPac's policy of
not hiring any person convicted of a criminal offense has a racially discriminatory
effect and violates Title VII; (2) this policy is not justified by any business necessity....

Prior to Green's prosecution he had unsuccessfully sought classification as a
conscientious objector by his draft board. Green did not appeal his conviction but
sought post-conviction review. In proceedings which reached this court, the court,
in a divided opinion, refused to review appellant's challenge to the alleged
constitutional invalidity of his draft classification. Cassidy v. United States, 428 F.2d
585 (8th Cir. 1970). (Green's legal name at the time of these proceedings was
Cassidy).
5

Labor and Employment Law

625

Green v. Missouri Pacific

xiii

I. Whether Green proved a prima facie case of discrimination.
Although the employment practice in question is facially neutral, an
employment test or practice which operates to exclude a disproportionate percentage
of blacks violates Title VII unless the employer can establish that the practice is
justified as a business necessity. Once a prima facie case of substantially disparate
impact is made, the burden shifts to the employer to justify the employment practice
or test as a business necessity.
Thus, we examine the threshold question of whether Green has presented a
prima facie case. A disproportionate racial impact may be established statistically in
any of three ways. The first procedure considers whether blacks as a class (or at least
blacks in a specified geographical area) are excluded by the employment practice in
question at a substantially higher rate than whites.
The second procedure focuses on a comparison of the percentage of black and
white job applicants actually excluded by the employment practice or test of the
particular company or governmental agency in question.
Finally, a third procedure examines the level of employment of blacks by the
company or governmental agency in comparison to the percentage of blacks in the
relevant geographical area.
Although Green alleged that MoPac discriminates against blacks generally in
its employment practices, the district court focused only on whether a disparate impact
could be statistically demonstrated by MoPac's policy of automatically rejecting all
applicants with a conviction for an offense other than minor traffic infractions. Here,
we consider a sweeping disqualification of all persons with a past record of some
unlawful behavior, rather than a test directed at a precise measurement of intelligence
or skills. The disparity of impact, if any, will be disclosed by an examination of how
that policy affects applicants and potential applicants. We agree with the approach
taken by the district court and primarily limit our statistical analysis to the effect of
MoPac's policies against both blacks and whites in the general population in the area
from which employees are drawn (metropolitan St. Louis), and the effect of this policy
upon black and white applicants for employment with MoPac.
Initially, we note that the district court recognized statistical data and treatises
offered into evidence by the plaintiff which indicate that blacks are convicted of
crimes at a rate at least two to three times greater than the percentage of blacks in the
populations of certain geographical areas. Dr. Ronald Christensen, a qualified expert
witness for the plaintiff, concluded that it is between 2.2 and 6.7 times as likely that
a black person will have a criminal conviction record during his lifetime than that a

Labor and Employment Law

xiv

626

Green v. Missouri Pacific

white person will have such a record. He further concluded that in urban areas from
36.9 percent to 78.1 percent of all black persons would incur a conviction during their
lifetimes, but that from only 11.6 percent to 16.8 percent of all white persons would
acquire a conviction.
MoPac's records of employment applications at its corporate headquarters
during the period from September 1, 1971, through November 7, 1973, disclose that
3,282 blacks and 5,206 whites applied for employment. Of these individuals, 174
blacks (5.3 percent of the black applicants) and 118 whites (2.23 percent of the white
applicants) were rejected because of their conviction records. Thus, statistically, the
policy operated automatically to exclude from employment 53 of every 1,000 black
applicants but only 22 of every 1,000 white applicants. The rejection rate for blacks
is two and one-half times that of whites under this policy.
Although the district court recognized that these statistics denote a disparate
impact, the court further compared the number of blacks rejected (174) to the total
pool of applicants (8,488) and deemed the resulting figure of 2.05 percent as showing
a "de minimis discriminatory effect" when compared to the percentage of blacks (16
percent) in the St. Louis metropolitan area. 391 F.Supp. at 996.
The trial court's use of additional statistics supporting a conclusion of a de
minimis discriminatory effect suffers from two principal defects. First, comparing the
number of black applicants rejected because of a conviction record to the total number
of applicants does not reflect a disparity of impact separately against each race.
Moreover, because more whites than blacks applied for employment (3,282 blacks and
5,206 whites) a comparison of the rejected blacks to the total number of applicants
serves to dilute the actual discriminatory impact against blacks.
Second, comparing the resulting percentage of 2.05 against the percent of
blacks in the relevant population area is of no assistance, for the issue in Title VII
cases focuses on whether an employer has discriminated against any individual
"because of such individual's race, color, religion, sex or national origin." The issue
to be examined statistically is whether the questioned employment practice operates
in a disparate manner upon a minority race or group, not whether the individuals
actually suffering from a discriminatory practice are statistically large in number.
An employment criterion must be examined for its operation on a racially
exclusionary basis)thus its effect must be measured upon blacks separately and upon
whites separately.
The statistics establish that MoPac's employment practice under consideration
disqualifies black applicants or potential black applicants for employment at a

Labor and Employment Law

627

Green v. Missouri Pacific

xv

substantially higher rate than whites. Thus, Green has established a prima facie case
of discrimination.
II. Is MoPac's employment practice justified by "Business Necessity"?
Once a prima facie case of discrimination has been established, the defendants
must show that the employment practice in question is justified by "business
necessity." The seminal decision for business necessity, of course, is Griggs v. Duke
Power Co., 401 U.S. 424 (1971), where the Court, in discussing the reach and intent
of equal employment opportunity cases under Title VII said:
[Title VII] proscribes not only overt discrimination but also
practices that are fair in form, but discriminatory in operation. The
touchstone is business necessity. If an employment practice which
operates to exclude Negroes cannot be shown to be related to job
performance, the practice is prohibited...
...
What is required by Congress is the removal of artificial
arbitrary, and unnecessary barriers to employment when the barriers
operate invidiously to discriminate on the basis of racial or other
impermissible classification. Id. at 431.
...
What Congress has commanded is that any tests used must
measure the person for the job and not the person in the abstract. Id.
at 436.
...
In Butts v. Nichols, 381 F.Supp. 573 (S.D. Ia. 1974), the court ruled that a
provision of the Iowa Code prohibiting the employment of felons in civil service
positions violated the Equal Protection Clause of the Fourteenth Amendment.
Although the case did not arise under Title VII, the language of the court in discussing
the relationship of a conviction to employment is instructive:
There is no doubt that the State could logically prohibit and
refuse employment in certain positions where the felony conviction
would directly reflect on the felon's qualifications for the job (e.g.,
conviction of embezzlement and a job requiring the handling of large

Labor and Employment Law

628

xvi

Green v. Missouri Pacific
sums of money). The Iowa statutory scheme, however, has an acrossthe-board prohibition against the employment of felons in civil service
positions. There is simply no tailoring in an effort to limit these
statutes to conform to what might be legitimate state interests.
...
[The Iowa provision] suffers from a total lack of such
narrowing criteria. As a result, the statute is both over and under
inclusive: persons who clearly could serve the public interest are
denied civil service jobs, while misdemeanants convicted of crimes
indicating a lack of probity suffer no disqualification. In short, no
consideration is given to the nature and seriousness of the crime in
relation to the job sought. The time elapsing since the conviction, the
degree of the felon's rehabilitation, and the circumstances under which
the crime was committed are similarly ignored. Id. at 580-81.

The court in Gregory v. Litton Systems, Inc., 316 F.Supp. 401 (C.D. Cal.
1970), determined that defendant's policy of barring from employment consideration
anyone arrested on "a number of occasions" violated Title VII.
In Wallace v. Debron Corp., 494 F.2d 674 (8th Cir. 1974), we reviewed an
employer's policy of automatically discharging those individuals whose wages had
been garnisheed more than once in a 12-month period. In remanding the factual
question of whether this policy was justified by the business necessity test, we
observed that all "artificial, arbitrary, and unnecessary racial barriers to employment"
should be removed. Id. at 676.
These cases suggest that MoPac's procedure now at issue does not meet the
requirements of the business necessity test. This test has been articulated in this
circuit as follows:
It is likewise apparent that a neutral policy, which is inherently
discriminatory, may be valid if it has overriding business
justification.... However, this doctrine of business necessity, which
has arisen as an exception to the amenability of discriminatory
practices, "connotes an irresistible demand." The system in question
must not only foster safety and efficiency, but must be essential to that
goal.... In other words, there must be no acceptable alternative that
will accomplish that goal "equally well with a lesser differential racial
impact." United States v. St. Louis-San Francisco Ry. Co., 464 F.2d
301, 308 (8th Cir. 1972) (emphasis in original).

Labor and Employment Law

629

Green v. Missouri Pacific

xvii

Although this circuit's articulation of the business necessity test emphasizes
the ability of a prospective employee to do the work, the second part of the test, that
of "no acceptable alternative that will accomplish the goal equally well with a lesser
differential racial impact," constitutes a general test which applies to an employment
practice such as that in this case.
MoPac proffers a number of reasons for claiming that its policy is a business
necessity: 1) fear of cargo theft, 2) handling company funds, 3) bonding
qualifications, 4) possible impeachment of an employee as a witness, 5) possible
liability for hiring persons with known violent tendencies, 6) employment disruption
caused by recidivism, and 7) alleged lack of moral character of persons with
convictions. But, as recognized by the district court, MoPac has not empirically
validated its policy with respect to conviction records, nor shown that a less restrictive
alternative with a lesser racial impact would not serve as well.
MoPac's witness, Dr. Robert N. McMurry, a consulting industrial psychologist
to MoPac, testified that not every ex-offender will be a poor employee and that it
would be preferable for a company to consider ex-offenders on an individual basis.
He further acknowledged that an employment practice which excludes ex-offenders
accentuates recidivism. Although the reasons MoPac advances for its absolute bar can
serve as relevant considerations in making individual hiring decisions, they in no way
justify an absolute policy which sweeps so broadly.
We cannot conceive of any business necessity that would automatically place
every individual convicted of any offense, except a minor traffic offense, in the
permanent ranks of the unemployed. This is particularly true for blacks who have
suffered and still suffer from the burdens of discrimination in our society. To deny
job opportunities to these individuals because of some conduct which may be remote
in time or does not significantly bear upon the particular job requirements is an
unnecessarily harsh and unjust burden.
Accordingly, we hold that appellant Green and all other blacks who have been
summarily denied employment by MoPac on the basis of conviction records have been
discriminated against on the basis of race in violation of Title VII and that the district
court should enjoin MoPac's practice of using convictions as an absolute bar to
employment. With respect to appellant Green, the district court should determine
whether on the date of his application his background and experience qualified him
for any position with MoPac.

Labor and Employment Law

630

QUESTIONS FOR REFLECTION
1. What are the other two ways, according to the
court in MoPac, that a disproportional racial impact may
be established? Are they sound?
2. What evidence might the employer have introduced
to vindicate its selection criterion (the no-conviction
requirement)?
Comment (continued)
CAUSATION IN DISPARATE IMPACT

Now
that
the
student
understands
both
the
plaintiffs' and the defendant's evidence in a disparate
impact case, we can answer the question we raised in our
comment following Griggs v. Duke Power: in a disparate
impact case, how can we say that the employer denies
opportunities to workers because of their race or sex?
The answer is revealed by the following reasoning.
1. A selection criterion that truly selects workers
at random is not discriminatory. If an employer hires
only Virgos, the work force will contain proportionally
as many whites and people of color, men and women, as
does the qualified labor pool.

Labor and Employment Law

631

Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment

xix

Labor and Employment Law

xx

632

Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment

2. A job-related selection criterion does not select
at random.
It selects qualified workers.
If
qualifications are distributed equally across groups, a
job-related selection criterion will not favor any group,
but will select proportionally from each group.

Labor and Employment Law

633

Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment

xxi

Labor and Employment Law

xxii

634

Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment

3. It is possible, however, that qualifications are
not distributed equally across groups. If one group has
more qualified members than another, a job-related
selection criterion will appear to favor the larger
group. In fact, however, a job-related criterion will
select proportionally across groups in the qualified
labor pool. For example, suppose the selection criteria
in Dothard v. Rawlinson were job related. In this event,
being at least 5 feet 2 inches tall and weighing at least
120 pounds would correlate with successful performance of
the job; that is, taller, heavier persons would do the
job better than smaller persons. It happens that men are
taller and heavier than women. Suppose 99 percent of men
but only 59 percent of women meet the height and weight
criteria.
This group constitutes the qualified labor
pool.
At first blush, it appears that the selection
criteria favor men over women, but this appearance is
misleading.
The selection criteria will choose
proportional numbers of qualified men and women.

Labor and Employment Law

635

Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment

xxiii

Labor and Employment Law

xxiv

636

Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment

4. If a selection criterion is not job related, it
does not select qualified workers. Indeed, a selection
criterion that is not job related selects at random with
respect to job performance.f If such a criterion also
favors one group over another, the criterion neither
selects qualified workers nor selects at random. In this
event, the criterion does one thing and one thing only:
it favors one group over another on the basis of race or
sex. For example, suppose now that the height and weight
selection criteria in Dothard v. Rawlinson were not job
related.
They selected at random with respect to job
performance; taller, heavier persons did not make better
guards than smaller persons. But the criteria favored
men over women; 99 percent of men but only 59 percent of
women satisfied the criteria. Therefore, these criteria
actually did only one thing: they selected on the basis
of sex.

f

Conceivably, a criterion that is not job related could select, not at random, but
inversely with respect to job performance. The criterion might favor unqualified workers
over qualified workers. This possibility, which is probably rare, does not affect the
argument in this note.

Labor and Employment Law

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Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment

xxv

Labor and Employment Law

xxvi

638

Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment
COMPARING DISPARATE TREATMENT AND DISPARATE IMPACT

A question may have come to the mind of the
reflective student:
If there exists only one prima
facie-I of discrimination, and if there exist two methods
or prima facie-IIs for proving this prima facie-I (viz.,
disparate treatment and disparate impact), why are these
methods so different when they prove the same thing? The
answer is that they are more similar than they may seem.
In both of these methods of proving discrimination, the
plaintiffs —
•

identify a fair proxy for the qualified labor
pool. (In disparate treatment, the plaintiffs
have a choice of proxies; in disparate impact,
the proxy is the group on which the selection
criterion operates.)

•

calculate the plaintiffs' share of the proxy.

•

identify
an
employment
opportunity.
(In
disparate treatment, the opportunity is being
hired or promoted; in disparate impact, the
opportunity
is
satisfying
the
selection
criterion.)

•

calculate the plaintiffs' share
beneficiaries of the opportunity.

•

prove
that
a
statistically
significant
disparity exists between the plaintiffs' share
of the proxy and their share of the
beneficiaries of the employment opportunity.

•

establish that the cause of the disparity was
race or sex.
(In disparate treatment, the
cause is the employer's intent to discriminate;
in disparate impact, the cause is a selection
criterion that has an adverse effect on the
plaintiffs' group and is not job related.)

of

the

The foregoing list is organized according to the order of
proof in a disparate treatment case. The following list,
which contains the same information, is organized
according to the order of proof in a disparate impact
case. The plaintiffs —

Labor and Employment Law

639

xxvii

Causation in Disparate Impact and
Comparing Disparate Impact and Disparate Treatment

•

identify a selection criterion used by the
employer. (In disparate impact, the criterion
is not discriminatory on its face; in disparate
treatment, the criterion is expressly race or
sex.)

•

identify a proxy for the qualified labor pool.
(In disparate impact, the proxy is the group on
which the selection criterion operates; in
disparate treatment, the plaintiffs have a
choice of proxies.)

•

calculate the plaintiffs' share of the proxy.

•

calculate the plaintiffs' share
beneficiaries of the opportunity.

•

prove
that
a
statistically
significant
difference exists between the plaintiffs' share
of the proxy and their share of the
beneficiaries of the employment opportunity.

•

establish that the cause of the disparity was
race or sex.
(In disparate treatment, the
cause is race or sex because the selection
criterion is expressly race or sex.
In
disparate impact, the cause is race or sex
because the selection criterion has an adverse
effect on the plaintiffs' group and is not job
related.)

of

the

Thus, the only difference between disparate treatment as
proved by statistics and disparate impact is that the
selection criterion in the former is expressly race or
sex, whereas the selection criterion in the latter is not
race or sex on its face, but, because it has an adverse
effect on the plaintiffs' group and is not job related,
the criterion in operation is tantamount to race or sex.

Ù

Labor and Employment Law

640

Affirmative Action
Introduction
The legitimacy of affirmative action is one of the
great social questions of our era.
Let us define
affirmative
action
as
the
practice
of
granting
preferences to "under-represented groups" (usually women
and people of color) for opportunities like jobs and
seats in educational programs. The degree of preference
varies along a continuum, from, at one end, advertising
opportunities in media that cater to under-represented
groups, to, at the other end, reserving certain
opportunities for members of under-represented groups
(quotas). Between the ends of the continuum lie points
such as giving credit to applicants who appear to have
surmounted obstacles like racism and sexism, awarding
extra points to each applicant from an under-represented
group, and setting a target of a certain percentage of
members of under-represented groups.
The purpose of
affirmative action also varies. Sometimes the purpose is
to make up for the employer's or school's discrimination
in the past. Other times the purpose is to modify the
work or educational environment by introducing racial and
sexual diversity, to manage effectively a diverse work
force, to alter the nature of the enterprise's product or
service, or to effect change in society at large.
The anti-discrimination statutes, such as Title VII,
do not require affirmative action.
Nor does the
Constitution. Therefore, affirmative action is always
voluntary. As a practical matter, however, affirmative
action is often obligatory. For example, by executive
order, federal contractors (primarily businesses that
sell goods and services to the federal government) must
engage in affirmative action. Many businesses depend on
their trade with the government, with the result that
they have little choice but to assent to affirmative
action.
From the perspective of groups that are not under
represented, affirmative action, except for its mildest
forms, is tantamount to discrimination.
Indeed, its
opponents often call it "reverse discrimination," and on
this basis it has been challenged in court on several
occasions.
The most famous case was Regents of the

Labor and Employment Law

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Grutter v. Bollinger

ii

University of California v. Bakke, in which the medical
school of the University of California at Davis reserved
16 of 100 seats in its entering class for members of
under-represented groups. The Supreme Court ruled on two
issues: Was the quota legal? If not, would a milder
form of affirmative action be permissible; in particular,
could the school in the future take race or ethnicity
into account in admitting students? The Court divided
sharply on each issue.
Four Justices voted to answer
both questions yes; four voted to answer both questions
no. Justice Powell cast the deciding votes. He ruled
the quota was illegal, but taking race into account was
acceptable. Although there was a majority of the Court
on each issue, there was no majority opinion; indeed, the
Justices filed six separate opinions. Justice Powell's
opinion became the most influential.
The plaintiff in Bakke argued that the school's
affirmative action program was unconstitutional under the
Equal Protection Clause of the Fourteenth Amendment.a
Justice Powell applied the "strict scrutiny" test, which
is used when the government distinguishes among persons
on the basis of race or national origin.b
Under this
test, a racial distinction is permissible only if it is
narrowly tailored to achieve a compelling interest of

a

The plaintiff also challenged the program under Title VI of
the Civil Rights Act of 1964.
b

Because the University of California at Davis was a public
school, its acts were subject to the Constitution.

Labor and Employment Law

642

Grutter v. Bollinger

iii

government.c Justice Powell held that the quota failed
this test, but that a program that takes race into

c

Note the continuing attention to means and ends. The end
is a compelling interest of the government; the mean is a
narrowly tailored distinction.
Three varieties of test are used to evaluate distinctions
when their constitutionality is challenged under the Equal
Protection Clause. Which test is used depends on the basis of
the distinction.
When the basis of the distinction is
national origin or race, the test is strict scrutiny. Thus,
as mentioned in the text, strict scrutiny was applied in the
Bakke case.
When the basis of the distinction is sex, the test is
"intermediate (or mean) scrutiny," under which the distinction
is permissible if it bears a close and substantial
relationship to an important interest of the government. For
example, suppose a state law provided that, when a person
becomes legally incompetent, the court shall appoint as
guardian any willing adult son of the incompetent; but if no
adult son is willing to serve, the court shall appoint as
guardian any willing adult daughter of the incompetent. The
constitutionality of this distinction between men and women
would be decided under the intermediate scrutiny test. (We
predict the statute would be held unconstitutional.)
When the basis of the distinction is anything other than
race, national origin, or sex, the "rational basis" test is
used. Under this test, a distinction is permissible if it is
a rational step towards a legitimate objective of the
government. For example, suppose a state imposes a tax on
alcoholic
beverages
but
not
on
soft
drinks.
The
constitutionality of this distinction between hard and soft
beverages would be decided under the rational basis test. (We
predict the tax would be held constitutional.)
Rational basis is the easiest test to satisfy, and strict
scrutiny is the hardest.
There are more "legitimate"
interests of government than "important" interests, and more
"important" interests than "compelling" interests; similarly,
the latitude for a "rational step" is wider than for a "close
and substantial relationship," and wider for a "close and
substantial relationship" than for a "narrowly tailored" step.
Accordingly, distinctions based on race and national origin
are the hardest for the government to justify; distinctions
based on sex are in the middle; and distinctions based on
anything else are the easiest.

Labor and Employment Law

iv

643

Grutter v. Bollinger

account as one factor among many would pass the test. He
cited the admissions program of Harvard College as an
example of the latter.
Harvard's program, he argued,
pursued the compelling end of achieving diversity among
students,
which
contributed
to
their
education.
Harvard's program used permissible means because the
factors that constituted diversity included not only
race, but also geography, special talent, exceptional
achievement, and so forth.
Two decades after Bakke, the Fifth Circuit Court of
Appeals in Hopwood v. Texas struck down an affirmative
action plan modeled on the Harvard program. The court
argued that Bakke had been vitiated by subsequent
decisions of the Supreme Court. Some other lower courts
followed suit, generating the need for the Supreme Court
to revisit the issue in Grutter v. Bollinger.
As it considered Grutter, the Court also considered
Gratz v. Bollinger. Grutter challenged the affirmative
action program of the law school of the University of
Michigan, which counted race as one factor among others
in pursuit of a diverse class.
Gratz challenged the
affirmative action program of the College of Literature,
Science, and Arts of the same university, which, also in
pursuit of a diverse class, awarded 20 extra points to
applicants from under-represented groups.

Labor and Employment Law

644

Grutter v. Bollinger
539 U.S. 306 (2003)

JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us to decide whether the use of race as a factor in student
admissions by the University of Michigan Law School (Law School) is unlawful.
I
A
The Law School ranks among the Nation's top law schools. It receives more
than 3,500 applications each year for a class of around 350 students. Seeking to
"admit a group of students who individually and collectively are among the most
capable," the Law School looks for individuals with "substantial promise for success
in law school" and "a strong likelihood of succeeding in the practice of law and
contributing in diverse ways to the well-being of others."d More broadly, the Law
School seeks "a mix of students with varying backgrounds and experiences who will
respect and learn from each other." In 1992, the dean of the Law School charged a
faculty committee with crafting a written admissions policy to implement these goals.
In particular, the Law School sought to ensure that its efforts to achieve student body
diversity complied with this Court's most recent ruling on the use of race in university
admissions. See Regents of Univ. of Cal. v. Bakke. Upon the unanimous adoption
of the committee's report by the Law School faculty, it became the Law School's
official admissions policy.
The hallmark of that policy is its focus on academic ability coupled with a
flexible assessment of applicants' talents, experiences, and potential "to contribute to
the learning of those around them." The policy requires admissions officials to
evaluate each applicant based on all the information available in the file, including
a personal statement, letters of recommendation, and an essay describing the ways in
which the applicant will contribute to the life and diversity of the Law School. In
reviewing an applicant's file, admissions officials must consider the applicant's
undergraduate grade point average (GPA) and Law School Admissions Test (LSAT)
score because they are important (if imperfect) predictors of academic success in law
school. The policy stresses that "no applicant should be admitted unless we expect
that applicant to do well enough to graduate with no serious academic problems."
The policy makes clear, however, that even the highest possible score does not

d

Citations to the record and the briefs in the Supreme Court and to the opinions of other
Justices in this case are omitted.

Labor and Employment Law

vi

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Grutter v. Bollinger

guarantee admission to the Law School. Nor does a low score automatically
disqualify an applicant. Rather, the policy requires admissions officials to look
beyond grades and test scores to other criteria that are important to the Law School's
educational objectives. So-called "soft' variables" such as "the enthusiasm of
recommenders, the quality of the undergraduate institution, the quality of the
applicant's essay, and the areas and difficulty of undergraduate course selection" are
all brought to bear in assessing an "applicant's likely contributions to the intellectual
and social life of the institution."
The policy aspires to "achieve that diversity which has the potential to enrich
everyone's education and thus make a law school class stronger than the sum of its
parts." The policy does not restrict the types of diversity contributions eligible for
"substantial weight" in the admissions process, but instead recognizes "many possible
bases for diversity admissions." The policy does, however, reaffirm the Law School's
longstanding commitment to "one particular type of diversity," that is, "racial and
ethnic diversity with special reference to the inclusion of students from groups which
have been historically discriminated against, like African-Americans, Hispanics and
Native Americans, who without this commitment might not be represented in our
student body in meaningful numbers." By enrolling a "critical mass' of
[underrepresented] minority students," the Law School seeks to "ensure their ability
to make unique contributions to the character of the Law School."
The policy does not define diversity "solely in terms of racial and ethnic
status." Nor is the policy "insensitive to the competition among all students for
admission to the Law School." Rather, the policy seeks to guide admissions officers
in "producing classes both diverse and academically outstanding, classes made up of
students who promise to continue the tradition of outstanding contribution by
Michigan Graduates to the legal profession."
B
Petitioner Barbara Grutter is a white Michigan resident who applied to the
Law School in 1996 with a 3.8 grade point average and 161 LSAT score. The Law
School initially placed petitioner on a waiting list, but subsequently rejected her
application....
...
During the 15-day bench trial, the parties introduced extensive evidence
concerning the Law School's use of race in the admissions process. Dennis Shields,
Director of Admissions when petitioner applied to the Law School, testified that he
did not direct his staff to admit a particular percentage or number of minority

Labor and Employment Law

646

Grutter v. Bollinger

vii

students, but rather to consider an applicant's race along with all other factors.
Shields testified that at the height of the admissions season, he would frequently
consult the so-called "daily reports" that kept track of the racial and ethnic
composition of the class (along with other information such as residency status and
gender). This was done, Shields testified, to ensure that a critical mass of
underrepresented minority students would be reached so as to realize the educational
benefits of a diverse student body. Shields stressed, however, that he did not seek to
admit any particular number or percentage of underrepresented minority students.
Erica Munzel, who succeeded Shields as Director of Admissions, testified that
"critical mass" means "meaningful numbers" or "meaningful representation," which
she understood to mean a number that encourages underrepresented minority students
to participate in the classroom and not feel isolated. Munzel stated there is no
number, percentage, or range of numbers or percentages that constitute critical mass.
Munzel also asserted that she must consider the race of applicants because a critical
mass of underrepresented minority students could not be enrolled if admissions
decisions were based primarily on undergraduate GPAs and LSAT scores.
The current Dean of the Law School, Jeffrey Lehman, also testified. Like the
other Law School witnesses, Lehman did not quantify critical mass in terms of
numbers or percentages. He indicated that critical mass means numbers such that
underrepresented minority students do not feel isolated or like spokespersons for their
race. When asked about the extent to which race is considered in admissions,
Lehman testified that it varies from one applicant to another. In some cases,
according to Lehman's testimony, an applicant's race may play no role, while in others
it may be a "determinative" factor.
The District Court heard extensive testimony from Professor Richard
Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert
emphasized that the Law School seeks students with diverse interests and
backgrounds to enhance classroom discussion and the educational experience both
inside and outside the classroom. When asked about the policy's "commitment to
racial and ethnic diversity with special reference to the inclusion of students from
groups which have been historically discriminated against," Lempert explained that
this language did not purport to remedy past discrimination, but rather to include
students who may bring to the Law School a perspective different from that of
members of groups which have not been the victims of such discrimination. Lempert
acknowledged that other groups, such as Asians and Jews, have experienced
discrimination, but explained they were not mentioned in the policy because
individuals who are members of those groups were already being admitted to the Law
School in significant numbers.

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viii

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Grutter v. Bollinger

Kent Syverud was the final witness to testify about the Law School's use of
race in admissions decisions. Syverud was a professor at the Law School when the
1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In
addition to his testimony at trial, Syverud submitted several expert reports on the
educational benefits of diversity. Syverud's testimony indicated that when a critical
mass of underrepresented minority students is present, racial stereotypes lose their
force because nonminority students learn there is no "minority viewpoint" but rather
a variety of viewpoints among minority students.
In an attempt to quantify the extent to which the Law School actually
considers race in making admissions decisions, the parties introduced voluminous
evidence at trial. Relying on data obtained from the Law School, petitioner's expert,
Dr. Kinley Larntz, generated and analyzed "admissions grids" for the years in
question (1995-2000). These grids show the number of applicants and the number
of admittees for all combinations of GPAs and LSAT scores. Dr. Larntz made "cellby-cell" comparisons between applicants of different races to determine whether a
statistically significant relationship existed between race and admission rates. He
concluded that membership in certain minority groups "is an extremely strong factor
in the decision for acceptance," and that applicants from these minority groups "are
given an extremely large allowance for admission" as compared to applicants who are
members of nonfavored groups. Dr. Larntz conceded, however, that race is not the
predominant factor in the Law School's admissions calculus.
Dr. Stephen Raudenbush, the Law School's expert, focused on the predicted
effect of eliminating race as a factor in the Law School's admission process. In Dr.
Raudenbush's view, a race-blind admissions system would have a "very dramatic,"
negative effect on underrepresented minority admissions. He testified that in 2000,
35 percent of underrepresented minority applicants were admitted. Dr. Raudenbush
predicted that if race were not considered, only 10 percent of those applicants would
have been admitted. Under this scenario, underrepresented minority students would
have comprised 4 percent of the entering class in 2000 instead of the actual figure of
14.5 percent.
In the end, the District Court concluded that the Law School's use of race as
a factor in admissions decisions was unlawful. Applying strict scrutiny, the District
Court determined that the Law School's asserted interest in assembling a diverse
student body was not compelling because "the attainment of a racially diverse class
... was not recognized as such by Bakke and is not a remedy for past discrimination."
The District Court went on to hold that even if diversity were compelling, the Law
School had not narrowly tailored its use of race to further that interest. The District
Court granted petitioner's request for declaratory relief and enjoined the Law School
from using race as a factor in its admissions decisions. The Court of Appeals entered

Labor and Employment Law

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Grutter v. Bollinger

ix

a stay of the injunction pending appeal.
Sitting en banc, the Court of Appeals reversed the District Court's judgment
and vacated the injunction. The Court of Appeals first held that Justice Powell's
opinion in Bakke was binding precedent establishing diversity as a compelling state
interest.... The Court of Appeals also held that the Law School's use of race was
narrowly tailored because race was merely a "potential 'plus' factor" and because the
Law School's program was "virtually identical" to the Harvard admissions program
described approvingly by Justice Powell and appended to his Bakke opinion.
...
We granted certiorari to resolve the disagreement among the Courts of
Appeals on a question of national importance: Whether diversity is a compelling
interest that can justify the narrowly tailored use of race in selecting applicants for
admission to public universities. Compare Hopwood v. Texas (holding that diversity
is not a compelling state interest), with Smith v. University of Wash. Law School
(holding that it is).
II
A
We last addressed the use of race in public higher education over 25 years
ago. In the landmark Bakke case, we reviewed a racial set-aside program that
reserved 16 out of 100 seats in a medical school class for members of certain minority
groups. The decision produced six separate opinions, none of which commanded a
majority of the Court. Four Justices would have upheld the program against all attack
on the ground that the government can use race to "remedy disadvantages cast on
minorities by past racial prejudice." Id. at 325 (joint opinion of Brennan, White,
Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part).
Four other Justices avoided the constitutional question altogether and struck down the
program on statutory grounds. Bakke at 408 (opinion of Stevens, J., joined by Burger,
C. J., and Stewart and Rehnquist, JJ., concurring in judgment in part and dissenting
in part). Justice Powell provided a fifth vote not only for invalidating the set-aside
program, but also for reversing the state court's injunction against any use of race
whatsoever. The only holding for the Court in Bakke was that a "State has a
substantial interest that legitimately may be served by a properly devised admissions
program involving the competitive consideration of race and ethnic origin." Id. at
320. Thus, we reversed that part of the lower court's judgment that enjoined the
university "from any consideration of the race of any applicant." Ibid.

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Grutter v. Bollinger

Since this Court's splintered decision in Bakke, Justice Powell's opinion
announcing the judgment of the Court has served as the touchstone for constitutional
analysis of race-conscious admissions policies.... We therefore discuss Justice
Powell's opinion in some detail.
Justice Powell began by stating that "the guarantee of equal protection cannot
mean one thing when applied to one individual and something else when applied to
a person of another color. If both are not accorded the same protection, then it is not
equal." Id. at 289-290. In Justice Powell's view, when governmental decisions "touch
upon an individual's race or ethnic background, he is entitled to a judicial
determination that the burden he is asked to bear on that basis is precisely tailored to
serve a compelling governmental interest." Id. at 299. Under this exacting standard,
only one of the interests asserted by the university survived Justice Powell's scrutiny.
First, Justice Powell rejected an interest in "reducing the historic deficit of
traditionally disfavored minorities in medical schools and in the medical profession"
as an unlawful interest in racial balancing. Id. at 306-307. Second, Justice Powell
rejected an interest in remedying societal discrimination because such measures
would risk placing unnecessary burdens on innocent third parties "who bear no
responsibility for whatever harm the beneficiaries of the special admissions program
are thought to have suffered." Id. at 310. Third, Justice Powell rejected an interest
in "increasing the number of physicians who will practice in communities currently
underserved," concluding that even if such an interest could be compelling in some
circumstances the program under review was not "geared to promote that goal." Id.
at 306, 310.
Justice Powell approved the university's use of race to further only one
interest: "the attainment of a diverse student body." Id. at 311. With the important
proviso that "constitutional limitations protecting individual rights may not be
disregarded," Justice Powell grounded his analysis in the academic freedom that "long
has been viewed as a special concern of the First Amendment." Id. at 312, 314.
Justice Powell emphasized that nothing less than the "'nation's future depends upon
leaders trained through wide exposure' to the ideas and mores of students as diverse
as this Nation of many peoples." Id. at 313 (quoting Keyishian v. Board of Regents
of Univ. of State of N. Y. at 603 (1967)). In seeking the "right to select those students
who will contribute the most to the 'robust exchange of ideas,'" a university seeks "to
achieve a goal that is of paramount importance in the fulfillment of its mission."
Bakke at 313. Both "tradition and experience lend support to the view that the
contribution of diversity is substantial." Ibid.
Justice Powell was, however, careful to emphasize that in his view race "is
only one element in a range of factors a university properly may consider in attaining

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the goal of a heterogeneous student body." Id. at 314. For Justice Powell, "it is not
an interest in simple ethnic diversity, in which a specified percentage of the student
body is in effect guaranteed to be members of selected ethnic groups," that can justify
the use of race. Id. at 315. Rather, "the diversity that furthers a compelling state
interest encompasses a far broader array of qualifications and characteristics of which
racial or ethnic origin is but a single though important element." Ibid.
...
... [T]oday we endorse Justice Powell's view that student body diversity is a
compelling state interest that can justify the use of race in university admissions.
B
The Equal Protection Clause provides that no State shall "deny to any person
within its jurisdiction the equal protection of the laws." U.S. Const., Amdt. 14, § 2.
Because the Fourteenth Amendment "protects persons, not groups," all
"governmental action based on race — a group classification long recognized as in
most circumstances irrelevant and therefore prohibited — should be subjected to
detailed judicial inquiry to ensure that the personal right to equal protection of the
laws has not been infringed." Adarand v. Peña at 227 (emphasis in original; internal
quotation marks and citation omitted). We are a "free people whose institutions are
founded upon the doctrine of equality." Loving v. Virginia at 11 (internal quotation
marks and citation omitted). It follows from that principle that "government may
treat people differently because of their race only for the most compelling reasons."
Adarand at 227.
We have held that all racial classifications imposed by government "must be
analyzed by a reviewing court under strict scrutiny." Ibid. This means that such
classifications are constitutional only if they are narrowly tailored to further
compelling governmental interests. "Absent searching judicial inquiry into the
justification for such race-based measures," we have no way to determine what
"classifications are 'benign' or 'remedial' and what classifications are in fact motivated
by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J.
A. Croson Co. at 493 (plurality opinion). We apply strict scrutiny to all racial
classifications to "'smoke out' illegitimate uses of race by assuring that [government]
is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.
Strict scrutiny is not "strict in theory, but fatal in fact." Adarand at 237
(internal quotation marks and citation omitted). Although all governmental uses of
race are subject to strict scrutiny, not all are invalidated by it. As we have explained,
"whenever the government treats any person unequally because of his or her race, that

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person has suffered an injury that falls squarely within the language and spirit of the
Constitution's guarantee of equal protection." Id. at 229-230. But that observation
"says nothing about the ultimate validity of any particular law; that determination is
the job of the court applying strict scrutiny." Id. at 230. When race-based action is
necessary to further a compelling governmental interest, such action does not violate
the constitutional guarantee of equal protection so long as the narrow-tailoring
requirement is also satisfied.
Context matters when reviewing race-based governmental action under the
Equal Protection Clause. See Gomillion v. Lightfoot at 343-344 (admonishing that,
"in dealing with claims under broad provisions of the Constitution, which derive
content by an interpretive process of inclusion and exclusion, it is imperative that
generalizations, based on and qualified by the concrete situations that gave rise to
them, must not be applied out of context in disregard of variant controlling facts").
In Adarand at 228, we made clear that strict scrutiny must take "'relevant differences'
into account." Indeed, as we explained, that is its "fundamental purpose." Ibid. Not
every decision influenced by race is equally objectionable and strict scrutiny is
designed to provide a framework for carefully examining the importance and the
sincerity of the reasons advanced by the governmental decisionmaker for the use of
race in that particular context.
III
A
With these principles in mind, we turn to the question whether the Law
School's use of race is justified by a compelling state interest. Before this Court, as
they have throughout this litigation, respondents assert only one justification for their
use of race in the admissions process: obtaining "the educational benefits that flow
from a diverse student body." In other words, the Law School asks us to recognize,
in the context of higher education, a compelling state interest in student body
diversity.
...
The Law School's educational judgment that such diversity is essential to its
educational mission is one to which we defer. The Law School's assessment that
diversity will, in fact, yield educational benefits is substantiated by respondents and
their amici. Our scrutiny of the interest asserted by the Law School is no less strict for
taking into account complex educational judgments in an area that lies primarily
within the expertise of the university. Our holding today is in keeping with our
tradition of giving a degree of deference to a university's academic decisions, within

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constitutionally prescribed limits.
We have long recognized that, given the important purpose of public
education and the expansive freedoms of speech and thought associated with the
university environment, universities occupy a special niche in our constitutional
tradition. In announcing the principle of student body diversity as a compelling state
interest, Justice Powell invoked our cases recognizing a constitutional dimension,
grounded in the First Amendment, of educational autonomy: "The freedom of a
university to make its own judgments as to education includes the selection of its
student body." Bakke at 312. From this premise, Justice Powell reasoned that by
claiming "the right to select those students who will contribute the most to the 'robust
exchange of ideas,'" a university "seeks to achieve a goal that is of paramount
importance in the fulfillment of its mission." Id. at 313 (quoting Keyishian at 603).
Our conclusion that the Law School has a compelling interest in a diverse student
body is informed by our view that attaining a diverse student body is at the heart of
the Law School's proper institutional mission, and that "good faith" on the part of a
university is "presumed" absent "a showing to the contrary." Id. at 318-319.
As part of its goal of "assembling a class that is both exceptionally
academically qualified and broadly diverse," the Law School seeks to "enroll a
'critical mass' of minority students." The Law School's interest is not simply "to
assure within its student body some specified percentage of a particular group merely
because of its race or ethnic origin." Id. at 307 (opinion of Powell, J.). That would
amount to outright racial balancing, which is patently unconstitutional. Freeman v.
Pitts at 494 ("Racial balance is not to be achieved for its own sake"). Rather, the Law
School's concept of critical mass is defined by reference to the educational benefits
that diversity is designed to produce.
These benefits are substantial. As the District Court emphasized, the Law
School's admissions policy promotes "cross-racial understanding," helps to break
down racial stereotypes, and "enables [students] to better understand persons of
different races." These benefits are "important and laudable," because "classroom
discussion is livelier, more spirited, and simply more enlightening and interesting"
when the students have "the greatest possible variety of backgrounds."
The Law School's claim of a compelling interest is further bolstered by its
amici, who point to the educational benefits that flow from student body diversity. In
addition to the expert studies and reports entered into evidence at trial, numerous
studies show that student body diversity promotes learning outcomes, and "better
prepares students for an increasingly diverse workforce and society, and better
prepares them as professionals."

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These benefits are not theoretical but real, as major American businesses have
made clear that the skills needed in today's increasingly global marketplace can only
be developed through exposure to widely diverse people, cultures, ideas, and
viewpoints. What is more, high-ranking retired officers and civilian leaders of the
United States military assert that, "based on [their] decades of experience," a "highly
qualified, racially diverse officer corps ... is essential to the military's ability to fulfill
its principle mission to provide national security." The primary sources for the
Nation's officer corps are the service academies and the Reserve Officers Training
Corps (ROTC), the latter comprising students already admitted to participating
colleges and universities. At present, "the military cannot achieve an officer corps
that is both highly qualified and racially diverse unless the service academies and the
ROTC used limited race-conscious recruiting and admissions policies." To fulfill its
mission, the military "must be selective in admissions for training and education for
the officer corps, and it must train and educate a highly qualified, racially diverse
officer corps in a racially diverse setting." We agree that "it requires only a small step
from this analysis to conclude that our country's other most selective institutions must
remain both diverse and selective."
We have repeatedly acknowledged the overriding importance of preparing
students for work and citizenship, describing education as pivotal to "sustaining our
political and cultural heritage" with a fundamental role in maintaining the fabric of
society. Plyler v. Doe at 221. This Court has long recognized that "education ... is
the very foundation of good citizenship." Brown v. Board of Education at 493. For
this reason, the diffusion of knowledge and opportunity through public institutions
of higher education must be accessible to all individuals regardless of race or
ethnicity. The United States, as amicus curiae, affirms that "ensuring that public
institutions are open and available to all segments of American society, including
people of all races and ethnicities, represents a paramount government objective."
And, "nowhere is the importance of such openness more acute than in the context of
higher education." Effective participation by members of all racial and ethnic groups
in the civic life of our Nation is essential if the dream of one Nation, indivisible, is
to be realized.
Moreover, universities, and in particular, law schools, represent the training
ground for a large number of our Nation's leaders. Sweatt v. Painter at 634
(describing law school as a "proving ground for legal learning and practice").
Individuals with law degrees occupy roughly half the state governorships, more than
half the seats in the United States Senate, and more than a third of the seats in the
United States House of Representatives. The pattern is even more striking when it
comes to highly selective law schools. A handful of these schools accounts for 25 of
the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly
200 of the more than 600 United States District Court judges.

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In order to cultivate a set of leaders with legitimacy in the eyes of the
citizenry, it is necessary that the path to leadership be visibly open to talented and
qualified individuals of every race and ethnicity. All members of our heterogeneous
society must have confidence in the openness and integrity of the educational
institutions that provide this training. As we have recognized, law schools "cannot be
effective in isolation from the individuals and institutions with which the law
interacts." Ibid. Access to legal education (and thus the legal profession) must be
inclusive of talented and qualified individuals of every race and ethnicity, so that all
members of our heterogeneous society may participate in the educational institutions
that provide the training and education necessary to succeed in America.
The Law School does not premise its need for critical mass on "any belief that
minority students always (or even consistently) express some characteristic minority
viewpoint on any issue." To the contrary, diminishing the force of such stereotypes
is both a crucial part of the Law School's mission, and one that it cannot accomplish
with only token numbers of minority students. Just as growing up in a particular
region or having particular professional experiences is likely to affect an individual's
views, so too is one's own, unique experience of being a racial minority in a society,
like our own, in which race unfortunately still matters. The Law School has
determined, based on its experience and expertise, that a "critical mass" of
underrepresented minorities is necessary to further its compelling interest in securing
the educational benefits of a diverse student body.
B
Even in the limited circumstance when drawing racial distinctions is
permissible to further a compelling state interest, government is still "constrained in
how it may pursue that end: [T]he means chosen to accomplish the [government's]
asserted purpose must be specifically and narrowly framed to accomplish that
purpose." Shaw v. Hunt at 908 (internal quotation marks and citation omitted). The
purpose of the narrow tailoring requirement is to ensure that "the means chosen 'fit'
... the compelling goal so closely that there is little or no possibility that the motive
for the classification was illegitimate racial prejudice or stereotype." Richmond v.
Croson at 493 (plurality opinion).
...
To be narrowly tailored, a race-conscious admissions program cannot use a
quota system — it cannot "insulate each category of applicants with certain desired
qualifications from competition with all other applicants." Bakke at 315 (opinion of
Powell, J.). Instead, a university may consider race or ethnicity only as a "'plus' in a
particular applicant's file," without "insulating the individual from comparison with

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all other candidates for the available seats." Id. at 317. In other words, an admissions
program must be "flexible enough to consider all pertinent elements of diversity in
light of the particular qualifications of each applicant, and to place them on the same
footing for consideration, although not necessarily according them the same weight."
Ibid.
We find that the Law School's admissions program bears the hallmarks of a
narrowly tailored plan. As Justice Powell made clear in Bakke, truly individualized
consideration demands that race be used in a flexible, nonmechanical way. It follows
from this mandate that universities cannot establish quotas for members of certain
racial groups or put members of those groups on separate admissions tracks. Nor can
universities insulate applicants who belong to certain racial or ethnic groups from the
competition for admission. Universities can, however, consider race or ethnicity
more flexibly as a "plus" factor in the context of individualized consideration of each
and every applicant.
We are satisfied that the Law School's admissions program, like the Harvard
plan described by Justice Powell, does not operate as a quota. Properly understood,
a "quota" is a program in which a certain fixed number or proportion of opportunities
are "reserved exclusively for certain minority groups." Richmond v. Croson at 496
(plurality opinion). Quotas "'impose a fixed number or percentage which must be
attained, or which cannot be exceeded,'" Local 28 of Sheet Metal Workers v. EEOC
at 495 (1986) (O'Connor, J., concurring in part and dissenting in part), and "insulate
the individual from comparison with all other candidates for the available seats."
Bakke, at 317 (opinion of Powell, J.). In contrast, "a permissible goal ... requires only
a good-faith effort ... to come within a range demarcated by the goal itself," Sheet
Metal Workers at 495, and permits consideration of race as a "plus" factor in any
given case while still ensuring that each candidate "competes with all other qualified
applicants," Johnson v. Transportation Agency, Santa Clara Cty. at 616, 638.
Justice Powell's distinction between the medical school's rigid 16-seat quota
and Harvard's flexible use of race as a "plus" factor is instructive. Harvard certainly
had minimum goals for minority enrollment, even if it had no specific number firmly
in mind. See Bakke at 323 (opinion of Powell, J.) ("10 or 20 black students could not
begin to bring to their classmates and to each other the variety of points of view,
backgrounds and experiences of blacks in the United States"). What is more, Justice
Powell flatly rejected the argument that Harvard's program was "the functional
equivalent of a quota" merely because it had some "'plus'" for race, or gave greater
"weight" to race than to some other factors, in order to achieve student body diversity.
Id. at 317-318.

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The Law School's goal of attaining a critical mass of underrepresented
minority students does not transform its program into a quota. As the Harvard plan
described by Justice Powell recognized, there is of course "some relationship between
numbers and achieving the benefits to be derived from a diverse student body, and
between numbers and providing a reasonable environment for those students
admitted." Id. at 323. "Some attention to numbers," without more, does not
transform a flexible admissions system into a rigid quota. Ibid. ... [B]etween 1993
and 2000, the number of African-American, Latino, and Native-American students
in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent
with a quota.
...
That a race-conscious admissions program does not operate as a quota does
not, by itself, satisfy the requirement of individualized consideration. When using
race as a "plus" factor in university admissions, a university's admissions program
must remain flexible enough to ensure that each applicant is evaluated as an
individual and not in a way that makes an applicant's race or ethnicity the defining
feature of his or her application. The importance of this individualized consideration
in the context of a race-conscious admissions program is paramount. See id. at 318,
n. 52 (opinion of Powell, J.) (identifying the "denial ... of the right to individualized
consideration" as the "principal evil" of the medical school's admissions program).
Here, the Law School engages in a highly individualized, holistic review of
each applicant's file, giving serious consideration to all the ways an applicant might
contribute to a diverse educational environment. The Law School affords this
individualized consideration to applicants of all races. There is no policy, either de
jure or de facto, of automatic acceptance or rejection based on any single "soft"
variable. Unlike the program at issue in Gratz v Bollinger, the Law School awards
no mechanical, predetermined diversity "bonuses" based on race or ethnicity. See
Gratz at 271 (distinguishing a race-conscious admissions program that automatically
awards 20 points based on race from the Harvard plan, which considered race but
"did not contemplate that any single characteristic automatically ensured a specific
and identifiable contribution to a university's diversity"). Like the Harvard plan, the
Law School's admissions policy "is flexible enough to consider all pertinent elements
of diversity in light of the particular qualifications of each applicant, and to place
them on the same footing for consideration, although not necessarily according them
the same weight." Bakke at 317 (opinion of Powell, J.).
We also find that, like the Harvard plan Justice Powell referenced in Bakke,
the Law School's race-conscious admissions program adequately ensures that all
factors that may contribute to student body diversity are meaningfully considered

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alongside race in admissions decisions. With respect to the use of race itself, all
underrepresented minority students admitted by the Law School have been deemed
qualified. By virtue of our Nation's struggle with racial inequality, such students are
both likely to have experiences of particular importance to the Law School's mission,
and less likely to be admitted in meaningful numbers on criteria that ignore those
experiences.
The Law School does not, however, limit in any way the broad range of
qualities and experiences that may be considered valuable contributions to student
body diversity. To the contrary, the 1992 policy makes clear "there are many possible
bases for diversity admissions," and provides examples of admittees who have lived
or traveled widely abroad, are fluent in several languages, have overcome personal
adversity and family hardship, have exceptional records of extensive community
service, and have had successful careers in other fields. The Law School seriously
considers each "applicant's promise of making a notable contribution to the class by
way of a particular strength, attainment, or characteristic — e.g., an unusual
intellectual achievement, employment experience, nonacademic performance, or
personal background." All applicants have the opportunity to highlight their own
potential diversity contributions through the submission of a personal statement,
letters of recommendation, and an essay describing the ways in which the applicant
will contribute to the life and diversity of the Law School.
What is more, the Law School actually gives substantial weight to diversity
factors besides race. The Law School frequently accepts nonminority applicants with
grades and test scores lower than underrepresented minority applicants (and other
nonminority applicants) who are rejected. This shows that the Law School seriously
weighs many other diversity factors besides race that can make a real and dispositive
difference for nonminority applicants as well. By this flexible approach, the Law
School sufficiently takes into account, in practice as well as in theory, a wide variety
of characteristics besides race and ethnicity that contribute to a diverse student
body....
Petitioner and the United States argue that the Law School's plan is not
narrowly tailored because race-neutral means exist to obtain the educational benefits
of student body diversity that the Law School seeks. We disagree. Narrow tailoring
does not require exhaustion of every conceivable race-neutral alternative. Nor does
it require a university to choose between maintaining a reputation for excellence or
fulfilling a commitment to provide educational opportunities to members of all racial
groups. See Wygant v. Jackson Bd. of Ed. at 280, n. 6 (1986) (alternatives must serve
the interest "'about as well'"); Richmond v. Croson Co. at 509-510 (plurality opinion)
(city had a "whole array of race-neutral" alternatives because changing requirements
"would have [had] little detrimental effect on the city's interests"). Narrow tailoring

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does, however, require serious, good faith consideration of workable race-neutral
alternatives that will achieve the diversity the university seeks. Id. at 507 (set-aside
plan not narrowly tailored where "there does not appear to have been any
consideration of the use of race-neutral means"); Wygant v. Jackson at 280, n. 6
(narrow tailoring "requires consideration" of "lawful alternative and less restrictive
means").
We agree with the Court of Appeals that the Law School sufficiently
considered workable race-neutral alternatives. The District Court took the Law
School to task for failing to consider race-neutral alternatives such as "using a lottery
system" or "decreasing the emphasis for all applicants on undergraduate GPA and
LSAT scores." But these alternatives would require a dramatic sacrifice of diversity,
the academic quality of all admitted students, or both.
The Law School's current admissions program considers race as one factor
among many, in an effort to assemble a student body that is diverse in ways broader
than race. Because a lottery would make that kind of nuanced judgment impossible,
it would effectively sacrifice all other educational values, not to mention every other
kind of diversity. So too with the suggestion that the Law School simply lower
admissions standards for all students, a drastic remedy that would require the Law
School to become a much different institution and sacrifice a vital component of its
educational mission. The United States advocates "percentage plans," recently
adopted by public undergraduate institutions in Texas, Florida, and California to
guarantee admission to all students above a certain class-rank threshold in every high
school in the State. The United States does not, however, explain how such plans
could work for graduate and professional schools. Moreover, even assuming such
plans are race-neutral, they may preclude the university from conducting the
individualized assessments necessary to assemble a student body that is not just
racially diverse, but diverse along all the qualities valued by the university. We are
satisfied that the Law School adequately considered race-neutral alternatives currently
capable of producing a critical mass without forcing the Law School to abandon the
academic selectivity that is the cornerstone of its educational mission.
We acknowledge that "there are serious problems of justice connected with
the idea of preference itself." Bakke at 298 (opinion of Powell, J.). Narrow tailoring,
therefore, requires that a race-conscious admissions program not unduly harm
members of any racial group. Even remedial race-based governmental action
generally "remains subject to continuing oversight to assure that it will work the least
harm possible to other innocent persons competing for the benefit." Bakke. at 308.
To be narrowly tailored, a race-conscious admissions program must not "unduly
burden individuals who are not members of the favored racial and ethnic groups."
Metro Broadcasting, Inc. v. FCC at 630 (1990) (O'Connor, J., dissenting).

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We are satisfied that the Law School's admissions program does not. Because
the Law School considers "all pertinent elements of diversity," it can (and does) select
nonminority applicants who have greater potential to enhance student body diversity
over underrepresented minority applicants. Bakke at 317 (opinion of Powell, J.). As
Justice Powell recognized in Bakke, so long as a race-conscious admissions program
uses race as a "plus" factor in the context of individualized consideration, a rejected
applicant
"will not have been foreclosed from all consideration for that seat
simply because he was not the right color or had the wrong surname....
His qualifications would have been weighed fairly and competitively,
and he would have no basis to complain of unequal treatment under
the Fourteenth Amendment." Id. at 318.
We agree that, in the context of its individualized inquiry into the possible
diversity contributions of all applicants, the Law School's race-conscious admissions
program does not unduly harm nonminority applicants.
We are mindful, however, that "[a] core purpose of the Fourteenth
Amendment was to do away with all governmentally imposed discrimination based
on race." Palmore v. Sidoti. Accordingly, race-conscious admissions policies must
be limited in time. This requirement reflects that racial classifications, however
compelling their goals, are potentially so dangerous that they may be employed no
more broadly than the interest demands. Enshrining a permanent justification for
racial preferences would offend this fundamental equal protection principle. We see
no reason to exempt race-conscious admissions programs from the requirement that
all governmental use of race must have a logical end point. The Law School, too,
concedes that all "race-conscious programs must have reasonable durational limits."
In the context of higher education, the durational requirement can be met by
sunset provisions in race-conscious admissions policies and periodic reviews to
determine whether racial preferences are still necessary to achieve student body
diversity. Universities in California, Florida, and Washington State, where racial
preferences in admissions are prohibited by state law, are currently engaged in
experimenting with a wide variety of alternative approaches. Universities in other
States can and should draw on the most promising aspects of these race-neutral
alternatives as they develop. Cf. United States v. Lopez at 581 (Kennedy, J.,
concurring) ("The States may perform their role as laboratories for experimentation
to devise various solutions where the best solution is far from clear").
The requirement that all race-conscious admissions programs have a
termination point "assures all citizens that the deviation from the norm of equal

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treatment of all racial and ethnic groups is a temporary matter, a measure taken in the
service of the goal of equality itself." Richmond v. Croson at 510 (plurality opinion);
see also Nathanson & Bartnik at 293 ("It would be a sad day indeed, were America
to become a quota-ridden society, with each identifiable minority assigned
proportional representation in every desirable walk of life. But that is not the
rationale for programs of preferential treatment; the acid test of their justification will
be their efficacy in eliminating the need for any racial or ethnic preferences at all").
We take the Law School at its word that it would "like nothing better than to
find a race-neutral admissions formula" and will terminate its race-conscious
admissions program as soon as practicable. Bakke at 317-318 (opinion of Powell, J.)
(presuming good faith of university officials in the absence of a showing to the
contrary). It has been 25 years since Justice Powell first approved the use of race to
further an interest in student body diversity in the context of public higher education.
Since that time, the number of minority applicants with high grades and test scores
has indeed increased. We expect that 25 years from now, the use of racial preferences
will no longer be necessary to further the interest approved today.
IV
In summary, the Equal Protection Clause does not prohibit the Law School's
narrowly tailored use of race in admissions decisions to further a compelling interest
in obtaining the educational benefits that flow from a diverse student body.... The
judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and dissenting
in part.
...
... The "educational benefit" that the University of Michigan seeks to achieve
by racial discrimination consists, according to the Court, of "'cross-racial
understanding'" and "'better prepar[ation of] students for an increasingly diverse
workforce and society,'" all of which is necessary not only for work, but also for good
"citizenship." This is not, of course, an "educational benefit" on which students will
be graded on their Law School transcript (Works and Plays Well with Others: B+) or
tested by the bar examiners (Q: Describe in 500 words or less your cross-racial
understanding). For it is a lesson of life rather than law — essentially the same lesson
taught to (or rather learned by, for it cannot be "taught" in the usual sense) people
three feet shorter and twenty years younger than the full-grown adults at the

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University of Michigan Law School, in institutions ranging from Boy Scout troops
to public-school kindergartens. If properly considered an "educational benefit" at all,
it is surely not one that is either uniquely relevant to law school or uniquely
"teachable" in a formal educational setting. And therefore: If it is appropriate for the
University of Michigan Law School to use racial discrimination for the purpose of
putting together a "critical mass" that will convey generic lessons in socialization and
good citizenship, surely it is no less appropriate — indeed, particularly appropriate
— for the civil service system of the State of Michigan to do so. There, also, those
exposed to "critical masses" of certain races will presumably become better
Americans, better Michiganders, better civil servants. And surely private employers
cannot be criticized — indeed, should be praised — if they also "teach" good
citizenship to their adult employees through a patriotic, all-American system of racial
discrimination in hiring. The nonminority individuals who are deprived of a legal
education, a civil service job, or any job at all by reason of their skin color will surely
understand.
Unlike a clear constitutional holding that racial preferences in state
educational institutions are impermissible, or even a clear anticonstitutional holding
that racial preferences in state educational institutions are OK, today's Grutter-Gratz
split double header seems perversely designed to prolong the controversy and the
litigation.... [O]ther suits may challenge the bona fides of the institution's expressed
commitment to the educational benefits of diversity that immunize the discriminatory
scheme in Grutter. (Tempting targets, one would suppose, will be those universities
that talk the talk of multiculturalism and racial diversity in the courts but walk the
walk of tribalism and racial segregation on their campuses — through minority-only
student organizations, separate minority housing opportunities, separate minority
student centers, even separate minority-only graduation ceremonies.) ... Finally,
litigation can be expected on behalf of minority groups intentionally short changed
in the institution's composition of its generic minority "critical mass." I do not look
forward to any of these cases. The Constitution proscribes government
discrimination on the basis of race, and state-provided education is no exception.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Parts I-VII, concurring in
part and dissenting in part.
Frederick Douglass, speaking to a group of abolitionists almost 140 years ago,
delivered a message lost on today's majority:
"In regard to the colored people, there is always more that is
benevolent, I perceive, than just, manifested towards us. What I ask
for the negro is not benevolence, not pity, not sympathy, but simply
justice. The American people have always been anxious to know what

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they shall do with us.... I have had but one answer from the
beginning. Do nothing with us! Your doing with us has already
played the mischief with us. Do nothing with us! If the apples will
not remain on the tree of their own strength, if they are worm-eaten at
the core, if they are early ripe and disposed to fall, let them fall! ...
And if the negro cannot stand on his own legs, let him fall also. All
I ask is, give him a chance to stand on his own legs! Let him alone!
... Your interference is doing him positive injury. (Emphasis in
original).
Like Douglass, I believe blacks can achieve in every avenue of American life without
the meddling of university administrators. Because I wish to see all students succeed
whatever their color, I share, in some respect, the sympathies of those who sponsor
the type of discrimination advanced by the University of Michigan Law School (Law
School). The Constitution does not, however, tolerate institutional devotion to the
status quo in admissions policies when such devotion ripens into racial
discrimination. Nor does the Constitution countenance the unprecedented deference
the Court gives to the Law School, an approach inconsistent with the very concept of
"strict scrutiny."
No one would argue that a university could set up a lower general admission
standard and then impose heightened requirements only on black applicants.
Similarly, a university may not maintain a high admission standard and grant
exemptions to favored races. The Law School, of its own choosing, and for its own
purposes, maintains an exclusionary admissions system that it knows produces
racially disproportionate results. Racial discrimination is not a permissible solution
to the self-inflicted wounds of this elitist admissions policy.
The majority upholds the Law School's racial discrimination not by
interpreting the people's Constitution, but by responding to a faddish slogan of the
cognoscenti....
I
The majority agrees that the Law School's racial discrimination should be
subjected to strict scrutiny. Before applying that standard to this case, I will briefly
revisit the Court's treatment of racial classifications.
The strict scrutiny standard that the Court purports to apply in this case was
first enunciated in Korematsu v. United States. There the Court held that "pressing
public necessity may sometimes justify the existence of [racial discrimination]; racial
antagonism never can." Id. at 216. This standard of "pressing public necessity" has

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more frequently been termed "compelling governmental interest," see, e.g., Regents
of Univ. of Cal. v. Bakke at 299 (1978) (opinion of Powell, J.). A majority of the
Court has validated only two circumstances where "pressing public necessity" or a
"compelling state interest" can possibly justify racial discrimination by state actors.
First, the lesson of Korematsu is that national security constitutes a "pressing public
necessity," though the government's use of race to advance that objective must be
narrowly tailored. Second, the Court has recognized as a compelling state interest a
government's effort to remedy past discrimination for which it is responsible.
Richmond v. J. A. Croson Co. at 504.
The contours of "pressing public necessity" can be further discerned from
those interests the Court has rejected as bases for racial discrimination. For example,
Wygant v. Jackson Bd. of Ed. found unconstitutional a collective-bargaining
agreement between a school board and a teachers' union that favored certain minority
races. The school board defended the policy on the grounds that minority teachers
provided "role models" for minority students and that a racially "diverse" faculty
would improve the education of all students. Id. at 315 (Stevens, J., dissenting) ("An
integrated faculty will be able to provide benefits to the student body that could not
be provided by an all-white, or nearly all-white faculty"). Nevertheless, the Court
found that the use of race violated the Equal Protection Clause, deeming both asserted
state interests insufficiently compelling. Id. at 275-276, (plurality opinion); Id. at 295
(White, J., concurring in judgment) ("None of the interests asserted by [the [school
board] ... justify this racially discriminatory layoff policy").
An even greater governmental interest involves the sensitive role of courts in
child custody determinations. In Palmore v. Sidoti the Court held that even the best
interests of a child did not constitute a compelling state interest that would allow a
state court to award custody to the father because the mother was in a mixed-race
marriage. Id. at 433 (finding the interest "substantial" but holding the custody
decision could not be based on the race of the mother's new husband).
Finally, the Court has rejected an interest in remedying general societal
discrimination as a justification for race discrimination. "Societal discrimination,
without more, is too amorphous a basis for imposing a racially classified remedy"
because a "court could uphold remedies that are ageless in their reach into the past,
and timeless in their ability to affect the future." Wygant at 276 (plurality opinion).
Where the Court has accepted only national security, and rejected even the
best interests of a child, as a justification for racial discrimination, I conclude that
only those measures the State must take to provide a bulwark against anarchy, or to
prevent violence, will constitute a "pressing public necessity." Cf. Lee v. Washington
at 334 (1968) (Black, J., concurring) (indicating that protecting prisoners from

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violence might justify narrowly tailored racial discrimination); Croson at 521 (Scalia,
J., concurring in judgment) ("At least where state or local action is at issue, only a
social emergency rising to the level of imminent danger to life and limb ... can justify
[racial discrimination]").
The Constitution abhors classifications based on race, not only because those
classifications can harm favored races or are based on illegitimate motives, but also
because every time the government places citizens on racial registers and makes race
relevant to the provision of burdens or benefits, it demeans us all. "Purchased at the
price of immeasurable human suffering, the equal protection principle reflects our
Nation's understanding that such classifications ultimately have a destructive impact
on the individual and our society." Adarand v. Peña at 240 (Thomas, J., concurring
in part and concurring in judgment).
II
Unlike the majority, I seek to define with precision the interest being asserted
by the Law School before determining whether that interest is so compelling as to
justify racial discrimination. The Law School maintains that it wishes to obtain
"educational benefits that flow from student body diversity." This statement must be
evaluated carefully, because it implies that both "diversity" and "educational benefits"
are components of the Law School's compelling state interest. Additionally, the Law
School's refusal to entertain certain changes in its admissions process and status
indicates that the compelling state interest it seeks to validate is actually broader than
might appear at first glance.
Undoubtedly there are other ways to "better" the education of law students
aside from ensuring that the student body contains a "critical mass" of
underrepresented minority students. Attaining "diversity," whatever it means,5 is the
5

"Diversity," for all of its devotees, is more a fashionable catchphrase than it is a useful
term, especially when something as serious as racial discrimination is at issue. Because the
Equal Protection Clause renders the color of one's skin constitutionally irrelevant to the Law
School's mission, I refer to the Law School's interest as an "aesthetic." That is, the Law
School wants to have a certain appearance, from the shape of the desks and tables in its
classrooms to the color of the students sitting at them.
I also use the term "aesthetic" because I believe it underlines the ineffectiveness of
racially discriminatory admissions in actually helping those who are truly underprivileged.
Cf. Orr v. Orr at 283 (1979) (noting that suspect classifications are especially impermissible
when "the choice made by the State appears to redound ... to the benefit of those without
need for special solicitude"). It must be remembered that the Law School's racial
(continued...)

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mechanism by which the Law School obtains educational benefits, not an end of
itself....
...
The proffered interest that the majority vindicates today, then, is not simply
"diversity." Instead the Court upholds the use of racial discrimination as a tool to
advance the Law School's interest in offering a marginally superior education while
maintaining an elite institution. Unless each constituent part of this state interest is
of pressing public necessity, the Law School's use of race is unconstitutional. I find
each of them to fall far short of this standard.
III
A
A close reading of the Court's opinion reveals that all of its legal work is done
through one conclusory statement: The Law School has a "compelling interest in
securing the educational benefits of a diverse student body." No serious effort is
made to explain how these benefits fit with the state interests the Court has
recognized (or rejected) as compelling....
Justice Powell's opinion in Bakke and the Court's decision today rest on the
fundamentally flawed proposition that racial discrimination can be contextualized so
that a goal, such as classroom aesthetics, can be compelling in one context but not in
another. This "we know it when we see it" approach to evaluating state interests is
not capable of judicial application. Today, the Court insists on radically expanding
the range of permissible uses of race to something as trivial (by comparison) as the
assembling of a law school class. I can only presume that the majority's failure to
justify its decision by reference to any principle arises from the absence of any such
principle.
B
Under the proper standard, there is no pressing public necessity in maintaining
a public law school at all and, it follows, certainly not an elite law school. Likewise,
marginal improvements in legal education do not qualify as a compelling state
5

(...continued)
discrimination does nothing for those too poor or uneducated to participate in elite higher
education and therefore presents only an illusory solution to the challenges facing our
Nation.

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interest.
1
While legal education at a public university may be good policy or otherwise
laudable, it is obviously not a pressing public necessity when the correct legal
standard is applied....
...
IV
...
B
1
The Court's deference to the Law School's conclusion that its racial
experimentation leads to educational benefits will, if adhered to, have serious
collateral consequences. The Court relies heavily on social science evidence to
justify its deference. But see also Rothman, Lipset, & Nevitte (finding that the racial
mix of a student body produced by racial discrimination of the type practiced by the
Law School in fact hinders students' perception of academic quality). The Court
never acknowledges, however, the growing evidence that racial (and other sorts of)
heterogeneity actually impairs learning among black students. See, e.g., Flowers &
Pascarella at 674(concluding that black students experience superior cognitive
development at Historically Black Colleges (HBCs) and that, even among blacks, "a
substantial diversity moderates the cognitive effects of attending an HBC"); Allen
(finding that black students attending HBCs report higher academic achievement than
those attending predominantly white colleges).
At oral argument in Gratz v. Bollinger, counsel for respondents stated that
"most every single one of [the HBCs] do have diverse student bodies." What
precisely counsel meant by "diverse" is indeterminate, but it is reported that in 2000
at Morehouse College, one of the most distinguished HBC's in the Nation, only 0.1%
of the student body was white, and only 0.2% was Hispanic. College Admissions
Data Handbook 2002-2003 at 613. And at Mississippi Valley State University, a
public HBC, only 1.1% of the freshman class in 2001 was white. Id. at 603. If there
is a "critical mass" of whites at these institutions, then "critical mass" is indeed a very
small proportion.

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The majority grants deference to the Law School's "assessment that diversity
will, in fact, yield educational benefits." It follows, therefore, that an HBC's
assessment that racial homogeneity will yield educational benefits would similarly be
given deference. An HBC's rejection of white applicants in order to maintain racial
homogeneity seems permissible, therefore, under the majority's view of the Equal
Protection Clause. But see United States v. Fordice (Thomas, J., concurring)
("Obviously, a State cannot maintain ... traditions by closing particular institutions,
historically white or historically black, to particular racial groups"). Contained within
today's majority opinion is the seed of a new constitutional justification for a concept
I thought long and rightly rejected — racial segregation.
2
Moreover one would think, in light of the Court's decision in United States v.
Virginia that before being given license to use racial discrimination, the Law School
would be required to radically reshape its admissions process, even to the point of
sacrificing some elements of its character. In Virginia, a majority of the Court,
without a word about academic freedom, accepted the [representation of] the all-male
Virginia Military Institute (VMI) ... that some changes in its "adversative" method of
education would be required with the admission of women, id. at 540, but did not
defer to VMI's judgment that these changes would be too great. Instead, the Court
concluded that they were "manageable." Id. at 551, n. 19. That case involved sex
discrimination, which is subjected to intermediate, not strict, scrutiny. Id. at 533. So
in Virginia, where the standard of review dictated that greater flexibility be granted
to VMI's educational policies than the Law School deserves here, this Court gave no
deference. Apparently where the status quo being defended is that of the elite
establishment — here the Law School — rather than a less fashionable Southern
military institution, the Court will defer without serious inquiry and without regard
to the applicable legal standard.
C
Virginia is also notable for the fact that the Court relied on the "experience"
of formerly single-sex institutions, such as the service academies, to conclude that
admission of women to VMI would be "manageable." Id. at 544-545. Today,
however, the majority ignores the "experience" of those institutions that have been
forced to abandon explicit racial discrimination in admissions.
The sky has not fallen at Boalt Hall at the University of California, Berkeley,
for example. Prior to Proposition 209's adoption of Cal. Const., Art. 1, § 31(a),
which bars the State from "granting preferential treatment ... on the basis of race ...
in the operation of ... public education," Boalt Hall enrolled 20 blacks and 28

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Hispanics in its first-year class for 1996. In 2002, without deploying express racial
discrimination in admissions, Boalt's entering class enrolled 14 blacks and 36
Hispanics. "University of California Law and Medical School Enrollments." Total
underrepresented minority student enrollment at Boalt Hall now exceeds 1996 levels.
Apparently the Law School cannot be counted on to be as resourceful. The Court is
willfully blind to the very real experience in California and elsewhere, which raises
the inference that institutions with "reputation[s] for excellence" rivaling the Law
School's have satisfied their sense of mission without resorting to prohibited racial
discrimination.
V
Putting aside the absence of any legal support for the majority's reflexive
deference, there is much to be said for the view that the use of tests and other
measures to "predict" academic performance is a poor substitute for a system that
gives every applicant a chance to prove he can succeed in the study of law. The
rallying cry that in the absence of racial discrimination in admissions there would be
a true meritocracy ignores the fact that the entire process is poisoned by numerous
exceptions to "merit." For example, in the national debate on racial discrimination in
higher education admissions, much has been made of the fact that elite institutions
utilize a so-called "legacy" preference to give the children of alumni an advantage in
admissions. This, and other, exceptions to a "true" meritocracy give the lie to
protestations that merit admissions are in fact the order of the day at the Nation's
universities. The Equal Protection Clause does not, however, prohibit the use of
unseemly legacy preferences or many other kinds of arbitrary admissions procedures.
What the Equal Protection Clause does prohibit are classifications made on the basis
of race. So while legacy preferences can stand under the Constitution, racial
discrimination cannot.10 I will not twist the Constitution to invalidate legacy
preferences or otherwise impose my vision of higher education admissions on the
Nation. The majority should similarly stay its impulse to validate faddish racial
discrimination the Constitution clearly forbids.
In any event, there is nothing ancient, honorable, or constitutionally protected
about "selective" admissions. The University of Michigan should be well aware that
alternative methods have historically been used for the admission of students, for it
brought to this country the German certificate system in the late-19th century.
10

Were this Court to have the courage to forbid the use of racial discrimination in
admissions, legacy preferences (and similar practices) might quickly become less popular
— a possibility not lost, I am certain, on the elites (both individual and institutional)
supporting the Law School in this case.

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Wechsler at 16-39. Under this system, a secondary school was certified by a
university so that any graduate who completed the course offered by the school was
offered admission to the university. The certification regime supplemented, and later
virtually replaced (at least in the Midwest), the prior regime of rigorous subjectmatter entrance examinations. Id. at 57-58. The facially race-neutral "percent plans"
now used in Texas, California, and Florida are in many ways the descendants of the
certificate system.
Certification was replaced by selective admissions in the beginning of the 20th
century, as universities sought to exercise more control over the composition of their
student bodies. Since its inception, selective admissions has been the vehicle for
racial, ethnic, and religious tinkering and experimentation by university
administrators. The initial driving force for the relocation of the selective function
from the high school to the universities was the same desire to select racial winners
and losers that the Law School exhibits today. Columbia, Harvard, and others
infamously determined that they had "too many" Jews, just as today the Law School
argues it would have "too many" whites if it could not discriminate in its admissions
process. See id. at 155-168 (Columbia); Broun & Britt at 53-54 (Harvard).
Columbia employed intelligence tests precisely because Jewish applicants,
who were predominantly immigrants, scored worse on such tests. Thus, Columbia
could claim (falsely) that "'we have not eliminated boys because they were Jews and
do not propose to do so. We have honestly attempted to eliminate the lowest grade
of applicant [through the use of intelligence testing] and it turns out that a good many
of the low grade men are New York City Jews.'" Hawkes. In other words, the tests
were adopted with full knowledge of their disparate impact.
Similarly no modern law school can claim ignorance of the poor performance
of blacks, relatively speaking, on the Law School Admissions Test (LSAT).
Nevertheless, law schools continue to use the test and then attempt to "correct" for
black underperformance by using racial discrimination in admissions so as to obtain
their aesthetic student body. The Law School's continued adherence to measures it
knows produce racially skewed results is not entitled to deference by this Court. The
Law School itself admits that the test is imperfect, as it must, given that it regularly
admits students who score at or below 150 (the national median) on the test.
(Between 1995 and 2000, the Law School admitted 37 students — 27 of whom were
black, 31 of whom were "underrepresented minorities" — with LSAT scores of 150
or lower.) And the Law School's amici cannot seem to agree on the fundamental
question whether the test itself is useful. Compare Brief for Law School Admission
Council as Amicus Curiae 12 ("LSAT scores ... are an effective predictor of students'
performance in law school") with Brief for Harvard Black Law Students Association
et al. as Amici Curiae 27 ("Whether [the LSAT] measures objective merit ... is

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certainly questionable").
Having decided to use the LSAT, the Law School must accept the
constitutional burdens that come with this decision. The Law School may freely
continue to employ the LSAT and other allegedly merit-based standards in whatever
fashion it likes. What the Equal Protection Clause forbids, but the Court today
allows, is the use of these standards hand-in-hand with racial discrimination. An
infinite variety of admissions methods are available to the Law School. Considering
all of the radical thinking that has historically occurred at this country's universities,
the Law School's intractable approach toward admissions is striking.
The Court will not even deign to make the Law School try other methods,
however, preferring instead to grant a 25-year license to violate the Constitution. And
the same Court that had the courage to order the desegregation of all public schools
in the South now fears, on the basis of platitudes rather than principle, to force the
Law School to abandon a decidedly imperfect admissions regime that provides the
basis for racial discrimination.
VI
The absence of any articulated legal principle supporting the majority's
principal holding suggests another rationale. I believe what lies beneath the Court's
decision today are the benighted notions that one can tell when racial discrimination
benefits (rather than hurts) minority groups, and that racial discrimination is necessary
to remedy general societal ills. This Court's precedents supposedly settled both
issues, but clearly the majority still cannot commit to the principle that racial
classifications are per se harmful and that almost no amount of benefit in the eye of
the beholder can justify such classifications.
Putting aside what I take to be the Court's implicit rejection of Adarand's
holding that beneficial and burdensome racial classifications are equally invalid, I
must contest the notion that the Law School's discrimination benefits those admitted
as a result of it. The Court spends considerable time discussing the impressive
display of amicus support for the Law School in this case from all corners of society.
But nowhere in any of the filings in this Court is any evidence that the purported
"beneficiaries" of this racial discrimination prove themselves by performing at (or
even near) the same level as those students who receive no preferences. Cf.
Thernstrom & Thernstrom at 1605-1608 (discussing the failure of defenders of racial
discrimination in admissions to consider the fact that its "beneficiaries" are
underperforming in the classroom).

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The silence in this case is deafening to those of us who view higher
education's purpose as imparting knowledge and skills to students, rather than a
communal, rubber-stamp, credentialing process. The Law School is not looking for
those students who, despite a lower LSAT score or undergraduate grade point
average, will succeed in the study of law. The Law School seeks only a facade — it
is sufficient that the class looks right, even if it does not perform right.
The Law School tantalizes unprepared students with the promise of a
University of Michigan degree and all of the opportunities that it offers. These
overmatched students take the bait, only to find that they cannot succeed in the
cauldron of competition. And this mismatch crisis is not restricted to elite
institutions. See Sowell at 176-177 ("Even if most minority students are able to meet
the normal standards at the 'average' range of colleges and universities, the systematic
mismatching of minority students begun at the top can mean that such students are
generally overmatched throughout all levels of higher education"). Indeed, to cover
the tracks of the aestheticists, this cruel farce of racial discrimination must continue
— in selection for the Michigan Law Review, see University of Michigan Law School
Student Handbook 2002-2003 at 39-40 (noting the presence of a "diversity plan" for
admission to the review), and in hiring at law firms and for judicial clerkships —
until the "beneficiaries" are no longer tolerated. While these students may graduate
with law degrees, there is no evidence that they have received a qualitatively better
legal education (or become better lawyers) than if they had gone to a less "elite" law
school for which they were better prepared. And the aestheticists will never address
the real problems facing "underrepresented minorities,"11 instead continuing their
social experiments on other people's children.
Beyond the harm the Law School's racial discrimination visits upon its test
subjects, no social science has disproved the notion that this discrimination
"engenders attitudes of superiority or, alternatively, provoke[s] resentment among
those who believe that they have been wronged by the government's use of race."
Adarand at 241 (Thomas, J., concurring in part and concurring in judgment). "These
programs stamp minorities with a badge of inferiority and may cause them to develop
dependencies or to adopt an attitude that they are 'entitled' to preferences." Adarand
at 241.

11

For example, there is no recognition by the Law School in this case that even with their
racial discrimination in place, black men are "underrepresented" at the Law School. See Law
School Admissions Council Guide at 426 (reporting that the Law School has 46 black women
and 28 black men). Why does the Law School not also discriminate in favor of black men
over black women, given this underrepresentation? The answer is, again, that all the Law
School cares about is its own image among know-it-all elites, not solving real problems like
the crisis of black male underperformance.

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It is uncontested that each year, the Law School admits a handful of blacks
who would be admitted in the absence of racial discrimination. Who can differentiate
between those who belong and those who do not? The majority of blacks are
admitted to the Law School because of discrimination, and because of this policy all
are tarred as undeserving. This problem of stigma does not depend on determinacy
as to whether those stigmatized are actually the "beneficiaries" of racial
discrimination. When blacks take positions in the highest places of government,
industry, or academia, it is an open question today whether their skin color played a
part in their advancement. The question itself is the stigma — because either racial
discrimination did play a role, in which case the person may be deemed "otherwise
unqualified," or it did not, in which case asking the question itself unfairly marks
those blacks who would succeed without discrimination. Is this what the Court
means by "visibly open"?
Finally, the Court's disturbing reference to the importance of the country's law
schools as training grounds meant to cultivate "a set of leaders with legitimacy in the
eyes of the citizenry," through the use of racial discrimination deserves discussion.
As noted earlier, the Court has soundly rejected the remedying of societal
discrimination as a justification for governmental use of race. For those who believe
that every racial disproportionality in our society is caused by some kind of racial
discrimination, there can be no distinction between remedying societal discrimination
and erasing racial disproportionalities in the country's leadership caste. And if the
lack of proportional racial representation among our leaders is not caused by societal
discrimination, then "fixing" it is even less of a pressing public necessity.
The Court's civics lesson presents yet another example of judicial selection
of a theory of political representation based on skin color — an endeavor I have
previously rejected. The majority appears to believe that broader utopian goals justify
the Law School's use of race, but "the Equal Protection Clause commands the
elimination of racial barriers, not their creation in order to satisfy our theory as to how
society ought to be organized." DeFunis v. Odegaard at 342 (Douglas, J.,
dissenting).
VII
...
B
The Court also holds that racial discrimination in admissions should be given
another 25 years before it is deemed no longer narrowly tailored to the Law School's
fabricated compelling state interest. While I agree that in 25 years the practices of the

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Law School will be illegal, they are, for the reasons I have given, illegal now. The
majority does not and cannot rest its time limitation on any evidence that the gap in
credentials between black and white students is shrinking or will be gone in that time
frame. In recent years there has been virtually no change, for example, in the
proportion of law school applicants with LSAT scores of 165 and higher who are
black.14 In 1993 blacks constituted 1.1% of law school applicants in that score range,
though they represented 11.1% of all applicants. In 2000 the comparable numbers
were 1.0% and 11.3%. LSAC Statistical Report. No one can seriously contend, and
the Court does not, that the racial gap in academic credentials will disappear in 25
years. Nor is the Court's holding that racial discrimination will be unconstitutional
in 25 years made contingent on the gap closing in that time.15
Indeed, the very existence of racial discrimination of the type practiced by the
Law School may impede the narrowing of the LSAT testing gap. An applicant's
LSAT score can improve dramatically with preparation, but such preparation is a cost,
and there must be sufficient benefits attached to an improved score to justify
additional study. Whites scoring between 163 and 167 on the LSAT are routinely
rejected by the Law School, and thus whites aspiring to admission at the Law School
have every incentive to improve their score to levels above that range. (In 2000, 209
out of 422 white applicants were rejected in this scoring range). Blacks, on the other
hand, are nearly guaranteed admission if they score above 155. (In 2000, 63 out of 77
black applicants are accepted with LSAT scores above 155). As admission prospects
approach certainty, there is no incentive for the black applicant to continue to prepare
for the LSAT once he is reasonably assured of achieving the requisite score. It is far
from certain that the LSAT test-taker's behavior is responsive to the Law School's

14

I use a score of 165 as the benchmark here because the Law School feels it is the
relevant score range for applicant consideration (absent race discrimination). (The median
LSAT score for all accepted applicants from 1995-1998 was 168. The median LSAT score
for accepted applicants was 167 for the years 1999 and 2000.) University of Michigan Law
School Website (showing that the median LSAT score for accepted applicants in 2002 was
166).
15

The majority's non sequitur observation that since 1978 the number of blacks that have
scored in these upper ranges on the LSAT has grown says nothing about current trends.
First, black participation in the LSAT until the early 1990's lagged behind black
representation in the general population. For instance, in 1984 only 7.3% of law school
applicants were black, whereas in 2000 11.3% of law school applicants were black. Today,
however, unless blacks were to begin applying to law school in proportions greater than their
representation in the general population, the growth in absolute numbers of high scoring
blacks should be expected to plateau, and it has. In 1992, 63 black applicants to law school
had LSAT scores above 165. In 2000, that number was 65.

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admissions policies.16 Nevertheless, the possibility remains that this racial
discrimination will help fulfill the bigot's prophecy about black underperformance —
just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault
for every racial disparity in our society.
....
References
CASES

Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)
Brown v. Board of Education, 347 U.S. 483 (1954)
DeFunis v. Odegaard, 416 U.S. 312 (1974)
Freeman v. Pitts, 503 U.S. 467 (1992)
Gomillion v. Lightfoot, 364 U.S. 339 (1960)
Gratz v Bollinger, 539 U.S. 244 (2003)
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996)
Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616 (1987).
Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589 (1967)
Korematsu v. United States, 323 U.S. 214 (1944)
Lee v. Washington, 390 U.S. 333 (1968) (per curiam)
Local 28 of Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986)
Loving v. Virginia, 388 U.S. 1 (1967)
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990)
Orr v. Orr, 440 U.S. 268 (1979)
Palmore v. Sidoti, 466 U.S. 429 (1984)
Plyler v. Doe, 457 U.S. 202 (1982)
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)
Richmond v. J. A. Croson Co., 488 U.S. 469 (1989)
Shaw v. Hunt, 517 U.S. 899 (1996)
Smith v. University of Wash. Law School, 233 F.3d 1188 (9th Cir. 2000)
Sweatt v. Painter, 339 U.S. 629 (1950)
United States v. Fordice, 505 U.S. 717 (1992)
United States v. Lopez, 514 U.S. 549 (1995)
United States v. Virginia, 518 U.S. 515 (1996)
Wygant v. Jackson Bd. of Ed., 476 U.S. 267 (1986)

16

I use the LSAT as an example, but the same incentive structure is in place for any
admissions criteria, including undergraduate grades, on which minorities are consistently
admitted at thresholds significantly lower than whites.

Labor and Employment Law

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Grutter v. Bollinger

xxxvi

OTHER AUTHORITIES

Allen, "The Color of Success: African-American College Student Outcomes at
Predominantly White and Historically Black Public Colleges and
Universities," 62 Harv. Educ. Rev. 26 (1992)
Broun, H. & G. Britt, Christians Only: A Study in Prejudice (1931)
College Admissions Data Handbook 2002-2003 (43d ed. 2002)
Douglas, Frederick, "What the Black Man Wants: An Address Delivered in Boston,
Massachusetts, on 26 January 1865," reprinted in 4 the Frederick Douglass
Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991)
Flowers & Pascarella, "Cognitive Effects of College Racial Composition on African
American Students After 3 Years of College," 40 J. of College Student
Development 669 (1999), 669
Hawkes, Herbert E., dean of Columbia College, Letter to E. B. Wilson, June 16, 1922
(reprinted in Qualified Student 160-161)
Law School Admissions Council Guide
Law School Admissions Council Statistical Report (2001)
Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority
Applicants to Professional Schools, 58 Chicago Bar Rec. 282 (May-June
1977)
Rothman, Lipset, & Nevitte, "Racial Diversity Reconsidered," 151 Public Interest 25
(2003)
Sowell, T., Race and Culture (1994)
Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev.
1583 (1999)
"University of California Law and Medical School Enrollments," available at
http://www.ucop.edu/acadadv/datamgmt/lawmed/law-enrolls-eth2.html
University of Michigan Law School Student Handbook 2002-2003
University of Michigan Law School Website, available at
http://www.law.umich.edu/prospectivestudents/Admissions/index.htm
Wechsler, H., The Qualified Student 16-39 (1977)

Labor and Employment Law

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xxxvii

Comment
As we noted in the introduction to Grutter, the
Constitution was relevant because the University of
Michigan is a public institution. The Constitution also
applies to agencies of government in their capacity as
employers. It is likely that Grutter will be precedent
for affirmative action by public employers such as cities
and states.
The Constitution does not apply to private
employers. Of course, Title VII does, and it prohibits
discrimination on the basis of race or sex. Does Title
VII prohibit a private employer from engaging in
affirmative action?
The Supreme Court answered this
question no in United Steelworkers of America v. Weber,
443 U.S. 193 (1979). Reasoning that affirmative action
serves the central purpose of Title VII, which is to
increase employment opportunities for women and people of
color, the Court held Congress could not have intended to
outlaw all affirmative action.
The Court established
four criteria that a lawful plan must satisfy:
First, a legitimate factual basis must exist
for the plan. In Weber the evidence showed that,
although African-Americans constituted nearly 40
percent of the labor market in the area, they held
less than 2 percent of the skilled craft jobs in the
company.
As made clear in a subsequent case,
Johnson v. Transportation Agency, Santa Clara
County, 480 U.S. 616 (1987), the employer need not
have been responsible (and, a fortiori, need not
admit liability for) for the under representation.
Second, the plan must be fair to the disfavored
class (usually European-American men). In Weber no
whites were discharged, laid off, or overleaped in
order to give opportunities to blacks.
Instead,
equal numbers of blacks and whites were accepted
into a craft training program.
Third, a genuine plan must exist; an ad hoc
decision to grant a preference will not suffice.
Finally, the plan must be temporary.
The
meaning of temporary is unclear. It plainly implies
either a specific end date or an ending when a goal

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Grutter v. Bollinger
is achieved, but the Court did not indicate how many
years a plan may persist. In Weber the plan was
scheduled to terminate when blacks held 40 percent
of the skilled craft jobs in the plant.
Question

When the morality of an act is being considered,
disputes often arise between equity and justice. Equity
is based on the consequences of an act, that is, on facts
that occur afterwards.
Justice is based on the
antecedents of an act, that is, on facts that occur
beforehand.17
For example, a national debate is now
occurring over how to treat illegal immigrants. Those
who emphasize equity or consequences argue that illegal
immigrants now in the country should be granted
citizenship because their labor is important for some
industries and because families should not be broken up.
(Illegal immigrants often have children who, having been
born in this country, are American citizens.) Those who
emphasize justice or antecedents argue that illegal
immigrants should not be granted citizenship because they
knowingly violated the law when they entered the country.
We believe that both justice and equity are
legitimate considerations. One does not trump the other.
When they point in opposite directions, we have no
accepted way to arbitrate between them.
To what extent is the disagreement over the
constitutionality of affirmative action a conflict
between justice and equity, between antecedents and
consequences?

Ù

17

Persons who emphasize the equity of an act are called
"consequentialists" or "teleologists" (from the Greek word
"telos," meaning end or purpose). Those who emphasize the
justice of an act are called "non-consequentialists" or
"deontologists" (from the Greek word "deon," meaning right.)

Labor and Employment Law

678

Reasonable Accommodation to Religion
Introduction
When Congress enacted Title VII, the law contained
a simple prohibition on discrimination because of
religion. As it administered the Act, the EEOC realized
that a related problem was growing in importance:
employment policies that seem to ignore religion often
have ill effects on minority religions. One example is
the business calendar.
Most businesses are open on
Monday through Friday, and many are open on Saturday.
This calendar is problematic for Muslims, who observe the
Sabbath on Friday, and for Jews and some Christians, who
observe the Sabbath on Saturday. Similarly, most firms
are open for business on religious holidays like Yom
Kippur and Maulid al-Nabi (the birthday of the Prophet
Mohammed). Another example is the work schedule. Many
companies require their employees to work from 8:00 or
9:00 A.M. until 5:00 P.M.
For Jews and some others,
working until 5:00 P.M. on Friday in autumn and winter is
problematic because their Sabbath begins at sundown on
Friday.
Perhaps problems like these could have been dealt
with under the disparate impact theory of discrimination.
A prima facie case might be proved with evidence that an
employment practice, such as being open for business on
Saturday, has an adverse effect on members of certain
religions. The problem was that disparate impact did not
yet exist. The Equal Employment Opportunity Commission
dealt with charges of religious discrimination almost
from the day it opened its door, whereas the theory of
disparate impact evolved in academic journals and the
Commission in late 1960s. Indeed, it is likely that the
Commission's approach to cases like the Saturday
Sabbatarian contributed to (perhaps was the origin of)
the theory of disparate impact.
In 1972 Congress added section 701(j) to Title VII.
This section defines religion to include making
reasonable
accommodation
to
employees'
religious
observances. Thus, the duty in section 703 to refrain
from discrimination on the basis of religion now includes

Labor and Employment Law

ii

679

Hardison v. Trans World Airlines

the duty to make reasonable accommodation. The following
two cases explore the scope of this duty.

Labor and Employment Law

680

Hardison v. Trans World Airlines
375 F. Supp. 877 (D.C. Mo. 1974)

JOHN W. OLIVER, District Judge:)This is an action by an individual plaintiff
against his former employer, Trans World Airlines (TWA) and three labor
organizations, International Association of Machinists and Aero Space Workers,
District 142 [of the IAM], and Local 1650 [of the IAM], seeking redress from alleged
religious discrimination in violation of the Civil Rights Act of 1964. Plaintiff asserts
that his discharge from employment because of his refusal to work from sundown
Friday to sundown Saturday pursuant to the tenets of his religion was a violation of
his religious liberty. Plaintiff is a member of the Worldwide Church of God.
...
A. Union Responsibility
...
Although it is nowhere stated directly by plaintiff, it appears that he is
complaining that the union discriminated against him because of its failure to [waive]
the seniority provisions of the collective bargaining agreement between TWA and the
International, which governed plaintiff's employment. A [waiver] of those provisions
would have been required in order to adjust his schedule with one of the other workers
on his shift so that he would be able to observe his Sabbath.
Plaintiff, in arguing that the union discriminated against him by "enforcing a
collective bargaining agreement which was discriminatory against plaintiff in its
application," is arguing that the union acted wrongly by standing by the contract and
refusing actively to support plaintiff's efforts to avoid the seniority provisions of the
contract. This actually amounts to an assertion that the union has a rather stringent
duty to accommodate.
The duty to accommodate, which we shall discuss in more detail later in this
opinion, at the time the alleged discrimination in this case took place, was required by
EEOC guideline 29 C.F.R. § 1605.1:
(b) The Commission believes that the duty not to discriminate on
religious grounds, required by Section 703(a)(1) of the Civil Rights Act of
1964, includes an obligation on the part of the employer to make reasonable
accommodations to the religious needs of employees and prospective
employees where such accommodations can be made without undue
hardship on the conduct of the employer's business. [Emphasis supplied.]

The unions interpret this language to mean that the duty is imposed only on the
employer. They argue that that limitation was intentional because, they contend, a

Labor and Employment Law

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Hardison v. Trans World Airlines

union has no power to accommodate. The union only has power to control its own
organization, make collective bargaining agreements with the employer, and enforce
those agreements. The employer, the unions conclude, is the only one who is in a
position to accommodate.
We disagree. The language of the regulation does speak in terms of the
employer but so have other provisions and regulations pursuant to the Act, which have
been interpreted to include the union. For example, Section 703(h), the provision on
seniority systems discussed below, has been applied to unions.
Furthermore, this case is a perfect example of a situation [in] which a union
could accommodate a member if required to do so. TWA agreed that plaintiff could
change shifts if the union approved. Such approval would mean that the union would
have to suspend the operation of the seniority rules in plaintiff's case. Had the union
made this accommodation, plaintiff would have been able to observe his Sabbath as
he wished. The question, however, is whether Title VII imposed upon the unions the
duty to ignore their contract under the circumstances of this particular case.
We do not believe that Title VII goes that far. We find and conclude that to
require the union to ignore seniority in every case in which an employee with lesser
seniority can observe his Sabbath only by changing shifts with a more senior
employee would work an undue hardship on the union.
... Professor Harry T. Edwards and Mr. Joel H. Kaplan expressed concern that
the EEOC regulation imposing the duty to accommodate places an intolerable burden
on the employer. They described the burden of proving the absence of undue hardship
as "nearly impossible to demonstrate if the work force is large enough." Edwards and
Kaplan, Religious Discrimination and the Role of Arbitration Under Title VII, 69
Mich.L.Rev. 559, 628 (1971). They rightly argue that such an interpretation "imposes
a priority of the religious over the secular" in that it might require an employer to
favor employees whose religious beliefs require them to follow different schedules
than the regular over other employees, even to the point of violating the other
employees' bargained for rights. The same considerations apply in the case of the
unions.
The labor-management contract to which the union is a party clearly sets out
the seniority rules which are binding on the company and the union. That contract,
of course, can not operate in violation of the laws of the United States, but we do not
believe that Title VII requires that the seniority provisions be ignored. Professor
Edwards and Mr. Kaplan discuss this problem at length:
Assume that an employer operates a seven-day-a-week operation,
that he has entered into a collective bargaining contract with the union, and

Labor and Employment Law

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Hardison v. Trans World Airlines

v

that the contract provides for shift preference by seniority. What if a lowseniority employee, who works a shift that includes Saturday and Sunday,
converts to a religion that requires him not to work on one of those days?
Must the employer then transfer this employee out of a Sunday or Saturday
shift even though numerous employees with greater seniority are required
to work over the weekend? Under the EEOC guidelines, the transfer of one
employee could hardly be said to create an "undue hardship" for the
employer, but what of the other employees? What of the hardship imposed
on the employee who waited a long time to acquire sufficient seniority in
order to avoid weekend work and is now forced back into it because of
someone else's religious beliefs? Are the religious beliefs of one individual
so weighty that they supersede the lack of religious beliefs of another? [69
Mich.L.Rev. at 628.]

Professor Edwards and Mr. Kaplan argue that the EEOC guidelines are
confusing and could be construed to require the employer in every case to shift an
employee out of seniority to accommodate religious beliefs. We do not believe that
the EEOC guidelines require such a result. The hardship on [other] employees should
certainly be considered as hardship on the conduct of business, for the management
of employees is one of the chief concerns of a large business and, in the case of a labor
union, is the chief concern. A hypertechnical application of the words "undue
hardship of the employer's business" by ignoring this fact, would, as Professor
Edwards and Mr. Kaplan argue, impose "a priority of the religious over the secular"
[69 Mich.L.Rev. at 628] and would perhaps raise constitutional questions.1 We find
and conclude, therefore, that it would have been an undue hardship for the unions to
have changed plaintiff's shift in violation of the seniority provisions of the labor
management contract.
Finally, with reference to the seniority provisions, we find and conclude that
§ 703(h), if not absolutely controlling, at least indicates that Congress did not intend
that unions or employers be required to take actions that could impinge upon bona fide
seniority systems. That Section reads as follows:

1

Professor Edwards and Mr. Kaplan direct attention to Judge Learned Hand's decision
in Otten v. Baltimore & Ohio R.R., 205 F.2d 58, 61, (2d Cir. 1953), in which he stated:
The First Amendment protects one against action by the government ... but
it gives no one the right to insist that in the pursuit of their own interests others must
conform their conduct to his own religious necessities.... We must accommodate
our idiosyncrasies, religious as well as secular, to the compromises necessary in
communal life; and we can hope for no reward for the sacrifices this may require
beyond our satisfactions from within, or our expectations of a better world.

Labor and Employment Law

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Hardison v. Trans World Airlines
Notwithstanding any other provision of this subchapter, it shall not
be an unlawful employment practice for an employer to apply different
standards of compensation, or different terms, conditions, or privileges of
employment pursuant to a bona fide seniority or merit system ... provided
that such differences are not the result of an intention to discriminate
because of race, color, religion, sex, or national origin.

A significant judicial gloss has been placed on this language by courts
processing racial discrimination cases. Consequently, a seniority system can not be
"bona fide" if it perpetuates the consequences of past discrimination. In other words,
a seniority system is not lawful if it freezes Negroes into past patterns of
discrimination.
Plaintiff does not urge, nor, do we think, may he urge, that the seniority system
in this case locked in any discrimination against individuals of plaintiff's or anyone
else's religion. The seniority system was not designed with the intention to
discriminate against religion nor did it act to lock members of any religion into a
pattern wherein their freedom to exercise their religion was limited. It was
coincidental that in plaintiff's case the seniority system acted to compound his
problems in exercising his religion. He did not have sufficient seniority in the
building to which he transferred to be able to impose his choice of days off over those
of the other employees who had more seniority.
The duty to accommodate under the circumstances of this case, therefore, did
not require the union to ignore its seniority system....
...
B. TWA Responsibility
Defendant TWA makes several arguments against plaintiff's contention that
it violated Title VII of the Civil Rights Act of 1964 when it discharged him:
[1] A statutory requirement to accommodate religious needs of employees
would violate the Establishment Clause of the First Amendment.

Labor and Employment Law

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Hardison v. Trans World Airlines

vii

[2] Title VII of the Civil Rights Act of 1964 does not require employers to
affirmatively accommodate employees' religious needs.
[3] TWA made reasonable accommodations to plaintiff's religious beliefs up
to the point where further steps would have caused undue hardship.
[4] Plaintiff voluntarily placed himself in a position which he knew or should
have known would diminish his chances for Sabbath observance.
[5] TWA did not "intentionally" discriminate against plaintiff on account of
his religious beliefs.

The first question that must be resolved is indicated by #2 above, and that is,
what kind of duty to avoid religious discrimination did Title VII of the Civil Rights
Act of 1964 impose upon TWA? At the time of the acts complained of ... the statute
did not provide for any duty on the part of an employer to accommodate the religious
needs of employees.
...
The question, therefore, becomes whether the EEOC regulation [quoted above]
is a proper interpretation of the Act before it was amended to specifically include a
duty to accommodate. TWA cites Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th
Cir. 1970), aff'd per curiam by an equally divided court, 402 U.S. 649 (1971), in
support of its position that the Act did not impose a duty to accommodate. In Dewey,
an employee alleged he had been wrongfully discharged from his employment because
of his religious beliefs....
... [I]n Dewey the employer offered the plaintiff, as well as all other employees,
the option of either working on Sunday or finding a replacement. The plaintiff did
find replacements for five Sundays and then refused to find others, claiming that this
practice was a sin. The Court of Appeals held that even if the 1967 regulation were
applied, the employer made a reasonable accommodation by offering the replacement
system.
Finally, Dewey was based in large part on the final award of a grievance
arbitrator under the labor management contract, which has nothing to do with the
question at issue here.
In Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir. 1972), the Court held flatly
that the regulation was valid. It relied in part upon the amendment of the Act, which
was approved by the Congress on March 8, 1972. Far from holding that the
amendment indicates that the legislative intent of the old Act was not to include a duty

Labor and Employment Law

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Hardison v. Trans World Airlines

to accommodate, as TWA argues we should conclude, the Court in Riley held the
amendment validated and recognized the regulation as a proper interpretation of the
old Act.
The amendment to § 703(j) is as follows:
The term "religion" includes all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates that he is unable
to reasonably accommodate to an employee's or prospective employee's
religious observance or practice without undue hardship on the conduct of
the employer's business.

...
The legislative history, reported at 118 Congressional Record, §§ 227-253,
includes this statement by Senator Randolph of West Virginia, who sponsored the
amendment:
I think in the Civil Rights Act we thus intended to protect the same
rights in private employment as the Constitution protects in Federal, State
or local governments. Unfortunately, the courts have, in a sense, come down
on both sides of the issue. The Supreme Court of the United States, in a case
involving the observance of the Sabbath and job discrimination, divided
evenly on this question.
This amendment is intended, in good purpose, to resolve by
legislation)and in a way I think was originally intended by the Civil Rights
Act)that which the courts apparently have not resolved. [118 Congressional
Record at § 228.]

The measure was passed in the Senate by unanimous vote.
The Chairman of the House Committee made this statement about the
amendment:
The purpose of this subsection is to provide the statutory basis for
EEOC to formulate guidelines on discrimination because of religion such as
those challenged in Dewey v. Reynolds Metals Company, 429 F.2d 325
[324], (6th Cir. 1970). [118 Congressional Record, pp. 1861-1862.]

The measure was also passed in the House by unanimous vote.
We find and conclude that the legislative history of the amendment of the Act,
together with the fact that weight should be given to the administrative interpretation

Labor and Employment Law

686

Hardison v. Trans World Airlines

ix

of the Act, as reflected by the regulation, indicate that regulation 29 C.F.R. §
1605.1(b) was facially valid and is controlling in this case.
We find TWA's argument that the duty to accommodate an employee's
religious beliefs is a violation of the Establishment Clause of the First Amendment to
be without merit....
...
We must now determine whether TWA did in fact take steps to make an
accommodation to plaintiff's religious needs. The interpretation of the statutes
embodied in the regulation requires that the employer show that it was unable to
reasonably accommodate the employee's religious observance without undue hardship
on the conduct of the employer's business.
TWA argues that it made three efforts to reasonably accommodate plaintiff's
beliefs, that these were not successful from plaintiff's point of view, and that it was
unable to make any further efforts. In April, 1968, plaintiff wrote Everett Kussmann,
Manager of Stores Systems, asking for Friday sunset to Saturday sunset off. In
response to that request Kussmann agreed (1) to [accept] the union steward seeking
to swap days off; (2) to excuse time off on religious holidays if plaintiff agreed to
work on "Christian" holidays if requested; and (3) to attempt to find plaintiff another
job. On May 7, 1968, the steward reported that he was unable to work out scheduling
changes and that he understood that no one was willing to swap days with plaintiff.
TWA did not take part in the search for employees willing to swap shifts and it was
admitted at trial that the union made no real effort. Plaintiff, however, was able for
a period of time to work out his day off requirements within the framework of the
seniority system.
On October 4, 1968, plaintiff wrote a letter to Kussmann, informing him that
he had worked out his days off requirement by transfer to the 11-7 shift and renewing
his request for specific religious holidays off. In response, Kussmann reiterated his
offer to permit time off on plaintiff's religious holidays whenever possible and
requested a list of those holidays. On October 20, 1968, plaintiff supplied such a list
and expressed his gratitude for Kussmann's "understanding and cooperation."
On December 2, 1968 plaintiff transferred from Building 1, where he had
sufficient seniority to maintain a shift in which he could observe his Sabbath, to
Building 2, where he was near the bottom of the seniority list and could not be assured
a satisfactory shift. His reason for the change was that he was married at that time and
a change to Building 2 permitted him to work the day shift and have his evenings free.
On March 7, 1969, a man of less seniority than plaintiff went on vacation and plaintiff

Labor and Employment Law

x

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Hardison v. Trans World Airlines

was required to work in his position, which required him to work on Saturday.
Kussmann anticipated difficulties due to the events described above and so
arranged a meeting on March 6 with plaintiff and the union steward, James Tinder.
At that meeting Kussmann offered to accommodate plaintiff's religious observance by
agreeing to any trade of shifts or change of sections that plaintiff and the union could
work out. Any shift or change was impossible within the seniority framework and the
union was not willing to violate the seniority provisions set out in the contract to make
a shift or change.
TWA claims that any further action on its part would have caused undue
hardship to the conduct of its business. First, had TWA forced another employee to
trade shifts or jobs with plaintiff, such action would have violated the seniority
provisions of the labor management contract and TWA would have been subjected to
personnel problems and grievances.
Had TWA simply granted plaintiff days off on Saturday, it would have left
TWA short of help in that position. Plaintiff worked in the Stores Department of
TWA's facilities at Kansas City International Airport (KCI). That department is
responsible for housing, retaining, and making available parts for use by TWA for use
at its overhaul base at KCI and throughout its system. It operates on a twenty-four
hour, seven-day-a-week basis. On weekends TWA worked a minimum number of
employees, and plaintiff was the only person in his job on his shift during the
weekends. To leave that position empty would have impaired the supplying of parts
for essential airline operations. To fill plaintiff's position with someone from another
area would deprive that area of its regular manpower. To bring in a man not working
on that day would force TWA to pay premium wages for the time he filled in for
plaintiff.
TWA argues also that if all employees were treated uniformly as to their
religious beliefs and observances, it could be very difficult to perform seven-day-aweek airline operations.
We find and conclude that TWA's actions with respect to working out
plaintiff's religious observance was a reasonable accommodation by TWA and that
any further action by TWA would have worked an undue hardship on the conduct of
its business. The duty to accommodate does not require that an employer make every
effort short of going out of business to permit his employees to stay on the job and
also to observe their religion. The term "reasonable accommodation" (emphasis
added) should be read with the term "undue hardship" to arrive at the proper standard.

Labor and Employment Law

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Hardison v. Trans World Airlines

xi

The duty imposed on an employer by Title VII is not a duty to impose
hardships on the rest of his employees or members to accommodate the religious
beliefs of a few. It is simply a duty to take affirmative action to try to find a way to
permit the employee to observe his religion as he wishes, as opposed to a duty simply
not to intentionally discriminate....
...
In none of the cases cited did the employer show that it had taken affirmative
action on behalf of the employee. In this case, and in sharp contrast, TWA established
as a matter of fact that it did take appropriate action to accommodate as required by
Title VII. It held several meetings with plaintiff in which it attempted to find a
solution to plaintiff's problems. It did accommodate plaintiff's observance of his
special religious holidays. It authorized the union steward to search for someone who
would swap shifts, which apparently was normal procedure. Witnesses for TWA
testified that they attempted to work out plaintiff's problems in ways that had proved
successful in similar cases.
TWA would not have been placed in a position where it could not work out
plaintiff's problem [if] plaintiff, to suit his own convenience, [had not] transferred to
Building 2 where he had insufficient seniority to bid on a suitable shift. That factor,
however, should be viewed as a frustration of TWA's attempts to accommodate, and
not as an action which relieved TWA of the duty to accommodate, as TWA argues.
We find and conclude that further accommodation by TWA would have
worked an undue hardship on the conduct of its business. TWA had two choices for
further accommodation: (1) to simply allow plaintiff to take his time off and attempt
to replace him; or (2) to force another employee to change shifts.
TWA runs a twenty-four-hour-a-day, seven-day-a-week operation. Plaintiff
performed an important job for TWA and was the only person performing his
particular job on his shift during the weekend. To replace him with an employee from
another area would leave that employee's work crew short. To replace him with an
employee who was not regularly scheduled to work at that time would have caused
TWA to pay premium wages. Both of these solutions would have created an undue
burden on the conduct of TWA's business. Title VII cannot be interpreted to require
that companies finance employees' religious beliefs.
TWA is a party to a labor-management contract which clearly sets out a
seniority provision which is binding on the company and on the union. With respect
to any asserted duty on the part of TWA to change plaintiff's shift in violation of the
seniority provisions of the labor-management contract, the same considerations apply

Labor and Employment Law

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Hardison v. Trans World Airlines

here as applied with respect to the union. Title VII does not force TWA to impose
upon other employees because of one employee's religious belief. TWA's business
includes the administration of its many employees, and to impose hardships upon
them imposes hardships upon the company's business. We find and conclude,
therefore, that it would have been an undue hardship for TWA to have changed
plaintiff's shift in violation of the seniority provision of the labor-management
contract.
Finally, we again make reference to the seniority provisions of Title VII, which
exempt different treatment to different employees based upon a bona fide seniority
system from the other provisions of § 703(a)(2). That section, as we stated in
reference to the union's duty to accommodate, indicates that Congress did not intend
that unions or employers be required to take actions that would impinge upon bona
fide seniority systems.
For the reasons stated, we find and conclude that neither TWA nor any of the
three unions violated Title VII of the Civil Rights Act of 1964 by reason of its
discharge of plaintiff for his refusal to work on his Sabbath.
iiii
Having lost, Hardison appealed. The decision of the
Court of Appeals on his appeal follows.
iiii

Hardison v. Trans World Airlines
527 F.2d 33 (8th Cir. 1975)

WEBSTER, Circuit Judge:)This appeal presents for our review important
questions concerning the requirements of Title VII of the Civil Rights Act of 1964,
and the guidelines on religious discrimination promulgated thereunder....
...
{The facts are stated in the opinion of the District Court.}

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II. TWA Liability
29 C.F.R. § 1605.1, which we hold to be consistent with the statute, defines
the parameters of the employer's duty. The company may not accept the role of a
Pontius Pilate.6 An effort to accommodate the employee's religious observances must
be made. Such accommodation need only be a reasonable one. An accommodation
alternative which imposes undue hardship upon the employer's business is
unreasonable and not required. The burden of demonstrating its inability to
reasonably accommodate falls upon the employer.
The record reflects a consistent effort by Hardison to acquaint TWA with his
religious conversion and the effect of that commitment upon his ability to work during
his Sabbath period and certain other religious holidays. He made no demands which
were not consistent with his known religious beliefs. He was willing to work long
weeks or short weeks provided his religious obligation to abstain from work on his
Sabbath could be met. He even transferred to the twilight shift in order to minimize
the impact of his absence on the company.
We cannot agree with the company's contention, apparently accepted by the
District Court, that Hardison's transfer from Building No. 1 to Building No. 2 was
evidence of a lack of cooperation on his part. The implication is that if Hardison had
not transferred he would have retained enough seniority in Building No. 1 to protect
himself against Sabbath day assignments. This is not accommodation. To limit
Hardison's right of transfer within the company as a condition of accommodation
would be "to discriminate against [him] with respect to his ... conditions, or privileges
of employment, because of [his] ... religion ...." § 703(a)(1) The purpose of this
transfer was to obtain a daytime shift, Hardison having recently married. While the
regulation implies that the employee must be responsive to a reasonable
accommodation, no such accommodation was ever offered by TWA, which at all
times contended that it was precluded from accommodating Hardison's Sabbath
observance by the collective bargaining agreement. Before an employer can assert the
defense of non-cooperation, it is incumbent upon it to establish the accommodation
which it has tendered and with which the employee refused to cooperate.

6

Matthew 27:24.
["When Pilate saw that he was getting nowhere, but that instead an uproar was
starting, he took water and washed his hands in front of the crowd. "I am innocent
of this man's blood," he said. "It is your responsibility!"

[The New Testament, New International Version, the Free Bible Literature Society.)ed.]

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Hardison's job assignment in Building No. 2 was to pick up or deliver parts
needed by mechanics working in the building. He was to "run the train," that is, to
continually make the rounds of the shops in the building. He was part of a work force
of 38 to 40 people, although he would be the only person running the train during his
particular shift on the weekend. TWA conceded that there were over 200 available
employees who were capable of performing Hardison's work.
The District Court concluded that TWA had made a reasonable effort to
accommodate Hardison's religious beliefs and that the alternatives rejected by TWA
would have created an undue burden on TWA's business. Upon a full review of the
record, we must respectfully disagree with both conclusions.
Alternatives Rejected
(1) Within the framework of the collective bargaining agreement, TWA could
have permitted Hardison to work a four-day week. Hardison was willing to do this,7
but the company would not agree because it would be short-handed during one shift.
It conceded that a supervisor could be utilized or another worker on duty elsewhere
could be transferred, but urged that this would cause some other shop function to
suffer. Similar arguments have been rejected by the Equal Employment Opportunity
Commission.
In determining whether a possible accommodation would result in undue
hardship or mere inconvenience, we must look to the facts of each case. The burden
of demonstrating undue hardship is upon the employer. In this case, the company
contends that a short week for one man during the temporary period of Wyatt's
vacation would have hampered its operations. Two company witnesses expressed
such an opinion without any further evidence or factual support. We think the District
Court erroneously drew an inference of undue hardship from such testimony. The
actual hours involved in this case did not even amount to a full shift, since Hardison
had transferred to the twilight shift and would have worked from 3:00 p.m. on Friday
until sundown (approximately 6:30 p.m.), thus further reducing the impact upon the
company's operations. Balanced against the interests to be protected by § 703(a), we
cannot say such an accommodation would result in an undue hardship to the employer.

7

Hardison was also willing to work a six-day week but this solution was in apparent
violation of the 40 hour per week clause of the contract.

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xv

(2) Another alternative within the framework of the collective bargaining
agreement was for TWA to fill Hardison's Sabbath shift from other available
personnel. This could be accomplished by holding a worker over from the last shift,
calling a worker in early, or, more logically, assigning a worker from the pool of 200
employees qualified to do the work. TWA contended that this alternative would be
an undue hardship because such workers must be paid overtime compensation. The
District Court said, "The duty to accommodate does not require that an employer
make every effort short of going out of business to permit his employees to s[t]ay on
the job and also to observe their religion", 375 F.Supp. at 889, and that "Title VII
cannot be interpreted to require that companies finance employee's religious beliefs."
375 F.Supp. at 891. These general statements, while arguably correct, may tend to
distort the actual hardship which overtime payments would have imposed upon TWA
to fill Hardison's Sabbath shift under the facts of this case. The regulation does not
preclude some cost to the employer any more than it precludes some degree of
inconvenience to effect a reasonable accommodation. The regulation expressly casts
upon the employer the burden of proving undue hardship upon its business. Each case
must stand upon its own facts. The actual cost of accommodation by filling
Hardison's Sabbath shift from available personnel is not clear from the record. We do
know that in this case the cost would have ended upon Wyatt's return from his
vacation. The company might well have concluded that the additional expense was
preferable to getting along with one less man on the shift or suffering the
administrative inconvenience of seeking a swap for Hardison. It does not appear from
the record, however, that TWA gave any serious consideration to the reasonableness
of such an alternative or to the extent of the burden it might create upon the business
of TWA. We cannot say that its burden of proof has been met in this case.
(3) A third alternative considered was a swap between Hardison and another
employee, either for another shift or for the Sabbath days. While both TWA and the
union indicated no opposition to a voluntary swap, the acquiescence was clearly
couched in terms of the limitations imposed by Article VI, the seniority clause of the
collective bargaining agreement:
(b)

The principle of seniority shall apply in the application of this
Agreement in all reductions or increases of force, preference of shift
assignment, vacation period selection, in bidding for vacancies or
new jobs, and in all promotions, demotions, or transfers involving
classifications covered by this Agreement.

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Hardison v. Trans World Airlines

The company relied upon the union steward to handle the details. Every swap
was technically at risk because the exchange was subject to the right of a senior
worker to bump into the opening. Thus, the company and the union contended that
they could not individually or jointly act to make a job exchange which would
accommodate Hardison's religious need to be free of servile work on his Sabbath.
The proper relationship between a bona fide seniority system and the
requirement of reasonable accommodation under 29 C.F.R. § 1605.1 has not yet been
settled by the Supreme Court. The Equal Employment Opportunity Commission has
taken the position that when the inflexibility of a collective bargaining agreement is
raised as a defense to charges of religious discrimination, that inflexibility must be
justified by substantial business necessity. At least one court has directed that an
article in a collective bargaining agreement which would have required an employee
to work occasional Saturdays in violation of his religious beliefs not be applied to
such employee. It would seem that a collective bargaining agreement, the seniority
provisions of which preclude any reasonable accommodation for religious
observances by employees, is prima facie evidence of union and employer culpability
under the Act.12 We are not required to reach that point in this case, however, because
the evidence is clear that TWA did not seek and the union therefore did not refuse to
entertain a possible variance.
TWA did not even seek to find volunteers within the seniority system. It left
that task to the union steward, who likewise did nothing. The matter was not referred
to the Union Relief Committee, an informal organization of union members through
which the union and TWA were normally able to avoid confrontations over seniority
variances in special situations. This was the first Sabbath request which TWA and the
union had received at the Kansas City operation. While company officials testified
of their concern that giving Hardison a variance would irritate other union members,
we find no evidence to support such an inference, nor are we convinced that such
irritation, if real, would have been an undue hardship on the employer's business.
...

12

If Saturday work inevitably falls to the employees with lowest seniority, one may well
ask whether such seniority provisions would not effectively preclude TWA from ever hiring
those Seventh Day Adventists, Orthodox Jews, and members of the Worldwide Church of
God whose religious convictions preclude work from sundown on Friday until sundown on
Saturday. It is no answer to such a person, or to the statute itself, that if he compromises his
religious beliefs for a time he may develop enough seniority to practice them again.

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xvii

IV. Constitutional Claim
... We find this reasoning persuasive, and we agree with the District Court's
conclusion that the constitutional challenge must be rejected.
....

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Hardison v. Trans World Airlines
QUESTIONS FOR REFLECTION

1. Suppose an employer proposes an accommodation to a worker, and the
worker accepts it; but it would violate a seniority provision of a collective bargaining
agreement, and the union refuses to waive the contract. Is the accommodation
unreasonable because it would violate the contract?
2. Suppose TWA did not have a union contract. In
order to accommodate Hardison, TWA asked employee A to
swap shifts with Hardison on the latter's Sabbath. When
employee A refused to swap voluntarily, TWA ordered her
to swap. Did TWA discriminate against employee A?

Ù

Labor and Employment Law

Discrimination Based on Disability:
The Americans with Disabilities Act

696

Labor and Employment Law

697

file: Lab Cases\2013 Fall\Arline; August 3, 2013

What is a Handicap or Disability?
Introduction
The first step in interpreting civil rights (and
some other kinds of) legislation is determining whom the
legislation protects, in other words, the scope of the
protected class.
As we have noted, the Labor Act
protects employees, but not supervisors, and Title VII
protects workers in the labor force. The Rehabilitation
Act of 1973 and the Americans with Disabilities Act of
1990 protect persons with disabilities.
In order to
apply the Rehabilitation and Disability Acts, therefore,
it is necessary to decide what disabilities are.

Labor and Employment Law

698

School Board of Nassau County, Florida v. Arline
480 U.S. 273 (1987)

Justice BRENNAN delivered the opinion of the Court.
Section 504 of the Rehabilitation Act of 1973, as amended, (Act), prohibits a
federally funded state program from discriminating against a handicapped individual
solely by reason of his or her handicap. This case presents the questions whether a
person afflicted with tuberculosis, a contagious disease, may be considered a
"handicapped individual" within the meaning of § 504 of the Act, and, if so, whether
such an individual is "otherwise qualified" to teach elementary school.
I
From 1966 until 1979, respondent Gene Arline taught elementary school in
Nassau County, Florida. She was discharged in 1979 after suffering a third relapse
of tuberculosis within two years. After she was denied relief in state administrative
proceedings, she brought suit in federal court, alleging that the school board's decision
to dismiss her because of her tuberculosis violated § 504 of the Act.
A trial was held in the District Court, at which the principal medical evidence
was provided by Marianne McEuen, M.D., an assistant director of the Community
Tuberculosis Control Service of the Florida Department of Health and Rehabilitative
Services. According to the medical records reviewed by Dr. McEuen, Arline was
hospitalized for tuberculosis in 1957. For the next 20 years, Arline's disease was in
remission. Then, in 1977, a culture revealed that tuberculosis was again active in her
system; cultures taken in March 1978 and in November 1978 were also positive.
The superintendent of schools for Nassau County, Craig Marsh, then testified
as to the school board's response to Arline's medical reports. After both her second
relapse, in the spring of 1978, and her third relapse in November 1978, the school
board suspended Arline with pay for the remainder of the school year. At the end of
the 1978-1979 school year, the school board held a hearing, after which it discharged
Arline, "not because she had done anything wrong," but because of the "continued
reoccurrence [sic] of tuberculosis."
In her trial memorandum, Arline argued that it was "not disputed that the
[school board dismissed her] solely on the basis of her illness. Since the illness in this
case qualifies the Plaintiff as a 'handicapped person' it is clear that she was dismissed
solely as a result of her handicap in violation of Section 504." Record 119. The
District Court held, however, that although there was "[no] question that she suffers
a handicap," Arline was nevertheless not "a handicapped person under the terms of
that statute." App. to Pet. for Cert. C-2. The court found it "difficult ... to conceive
that Congress intended contagious diseases to be included within the definition of a

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iv

699

School Board of Nassau County v. Arline

handicapped person." The court then went on to state that, "even assuming" that a
person with a contagious disease could be deemed a handicapped person, Arline was
not "qualified" to teach elementary school. Id. at C-2-C-3.
The Court of Appeals reversed, holding that "persons with contagious diseases
are within the coverage of section 504," and that Arline's condition "falls ... neatly
within the statutory and regulatory framework" of the Act. 772 F.2d 759, 764 (CA11
1985). The court remanded the case "for further findings as to whether the risks of
infection precluded Mrs. Arline from being 'otherwise qualified' for her job and, if so,
whether it was possible to make some reasonable accommodation for her in that
teaching position" or in some other position. Id., at 765 (footnote omitted). We
granted certiorari and now affirm.
II
In enacting and amending the Act, Congress enlisted all programs receiving
federal funds in an effort "to share with handicapped Americans the opportunities for
an education, transportation, housing, health care, and jobs that other Americans take
for granted." 123 Cong. Rec. 13515 (1977) (statement of Sen. Humphrey). To that
end, Congress not only increased federal support for vocational rehabilitation, but also
addressed the broader problem of discrimination against the handicapped by including
§ 504, an antidiscrimination provision patterned after Title VI of the Civil Rights Act
of 1964. Section 504 of the Rehabilitation Act reads in pertinent part:
"No otherwise qualified handicapped individual in the United States,
as defined in section 706(7) of this title, shall, solely by reason of his
handicap, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance...."

In 1974 Congress expanded the definition of "handicapped individual" for use in §
504 to read as follows:3
The primary focus of the 1973 Act was to increase federal support for vocational
rehabilitation; the Act's original definition of the term "handicapped individual" reflected
this focus by including only those whose disability limited their employability, and those
who could be expected to benefit from vocational rehabilitation. After reviewing the
Department of Health, Education, and Welfare's subsequent attempt to devise regulations
to implement the Act, however, Congress concluded that the definition of "handicapped
individual," while appropriate for the vocational rehabilitation provisions in Titles I and III
of the Act, was too narrow to deal with the range of discriminatory practices in housing,
education, and health care programs which stemmed from stereotypical attitudes and
ignorance about the handicapped.
3

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700

School Board of Nassau County v. Arline

v

"[Any] person who (i) has a physical or mental impairment which
substantially limits one or more of such person's major life activities, (ii) has
a record of such an impairment, or (iii) is regarded as having such an
impairment." 29 U. S. C. § 706(7)(B).

The amended definition reflected Congress' concern with protecting the handicapped
against discrimination stemming not only from simple prejudice, but also from
"archaic attitudes and laws" and from "the fact that the American people are simply
unfamiliar with and insensitive to the difficulties [confronting] individuals with
handicaps." S. Rep. No. 93-1297, p. 50 (1974). To combat the effects of erroneous
but nevertheless prevalent perceptions about the handicapped, Congress expanded the
definition of "handicapped individual" so as to preclude discrimination against "[a]
person who has a record of, or is regarded as having, an impairment [but who] may
at present have no actual incapacity at all." Southeastern Community College v. Davis,
442 U.S. 397, 405-406, n. 6 (1979).
In determining whether a particular individual is handicapped as defined by
the Act, the regulations promulgated by the Department of Health and Human
Services are of significant assistance. As we have previously recognized, these
regulations were drafted with the oversight and approval of Congress; they provide
"an important source of guidance on the meaning of § 504." Alexander v. Choate, 469
U.S. 287, 304, n. 24 (1985). The regulations are particularly significant here because
they define two critical terms used in the statutory definition of handicapped
individual.5 "Physical impairment" is defined as follows:
"[Any] physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:

In an appendix to these regulations, the Department of Health and Human Services
explained that it chose not to attempt to "set forth a list of specific diseases and conditions
that constitute physical or mental impairments because of the difficulty of ensuring the
comprehensiveness of any such list." 45 CFR pt. 84, Appendix A, p. 310 (1985).
Nevertheless, the Department went on to state that "such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular
dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, [and]
emotional illness" would be covered. Ibid. The Department also reinforced what a careful
reading of the statute makes plain, "that a physical or mental impairment does not constitute
a handicap for purposes of section 504 unless its severity is such that it results in a
substantial limitation of one or more major life activities." Ibid. Although many of the
comments on the regulations when first proposed suggested that the definition was
unreasonably broad, the Department found that a broad definition, one not limited to socalled "traditional handicaps," is inherent in the statutory definition. Ibid.
5

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School Board of Nassau County v. Arline
neurological; musculoskeletal; special sense organs; respiratory, including
speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic
and lymphatic; skin; and endocrine." 45 CFR § 84.3(j)(2)(i) (1985).

In addition, the regulations define "major life activities" as
"functions such as caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working."
§
84.3(j)(2)(ii).

III
Within this statutory and regulatory framework, then, we must consider
whether Arline can be considered a handicapped individual. According to the
testimony of Dr. McEuen, Arline suffered tuberculosis "in an acute form in such a
degree that it affected her respiratory system," and was hospitalized for this condition.
Arline thus had a physical impairment as that term is defined by the regulations, since
she had a "physiological disorder or condition ... affecting [her] ... respiratory
[system]." 45 CFR § 84.3(j)(2)(i) (1985). This impairment was serious enough to
require hospitalization, a fact more than sufficient to establish that one or more of her
major life activities were substantially limited by her impairment. Thus, Arline's
hospitalization for tuberculosis in 1957 suffices to establish that she has a "record of
... impairment" within the meaning of 29 U. S. C. § 706(7)(B)(ii), and is therefore a
handicapped individual.
Petitioners concede that a contagious disease may constitute a handicapping
condition to the extent that it leaves a person with "diminished physical or mental
capabilities," Brief for Petitioners 15, and concede that Arline's hospitalization for
tuberculosis in 1957 demonstrates that she has a record of a physical impairment.
Petitioners maintain, however, that Arline's record of impairment is irrelevant in this
case, since the school board dismissed Arline not because of her diminished physical
capabilities, but because of the threat that her relapses of tuberculosis posed to the
health of others.
We do not agree with petitioners that, in defining a handicapped individual
under § 504, the contagious effects of a disease can be meaningfully distinguished
from the disease's physical effects on a claimant in a case such as this. Arline's
contagiousness and her physical impairment each resulted from the same underlying
condition, tuberculosis. It would be unfair to allow an employer to seize upon the
distinction between the effects of a disease on others and the effects of a disease on

Labor and Employment Law

702

School Board of Nassau County v. Arline

vii

a patient and use that distinction to justify discriminatory treatment.7
Nothing in the legislative history of § 504 suggests that Congress intended
such a result. That history demonstrates that Congress was as concerned about the
effect of an impairment on others as it was about its effect on the individual.
Congress extended coverage, in 29 U. S. C. § 706(7)(B)(iii), to those individuals who
are simply "regarded as having" a physical or mental impairment. The Senate Report
provides as an example of a person who would be covered under this subsection "a
person with some kind of visible physical impairment which in fact does not
substantially limit that person's functioning." S. Rep. No. 93-1297, at 64.9 Such an
impairment might not diminish a person's physical or mental capabilities, but could
nevertheless substantially limit that person's ability to work as a result of the negative
reactions of others to the impairment.10
The United States argues that it is possible for a person to be simply a carrier of a
disease, that is, to be capable of spreading a disease without having a "physical impairment"
or suffering from any other symptoms associated with the disease. The United States
contends that this is true in the case of some carriers of the Acquired Immune Deficiency
Syndrome (AIDS) virus. From this premise the United States concludes that discrimination
solely on the basis of contagiousness is never discrimination on the basis of a handicap. The
argument is misplaced in this case, because the handicap here, tuberculosis, gave rise both
to a physical impairment and to contagiousness. This case does not present, and we
therefore do not reach, the questions whether a carrier of a contagious disease such as AIDS
could be considered to have a physical impairment, or whether such a person could be
considered, solely on the basis of contagiousness, a handicapped person as defined by the
Act.
7

Congress' desire to prohibit discrimination based on the effects a person's handicap
may have on others was evident from the inception of the Act. For example, Representative
Vanik, whose remarks constitute "a primary signpost on the road toward interpreting the
legislative history of § 504," Alexander v. Choate, 469 U.S. 287, 295-296, and n. 13 (1985),
cited as an example of improper handicap discrimination a case in which "a court ruled that
a cerebral palsied child, who was not a physical threat and was academically competitive,
should be excluded from public school, because his teacher claimed his physical appearance
'produced a nauseating effect' on his classmates." 117 Cong. Rec. 45974 (1971). See also
118 Cong. Rec. 36761 (1972) (remarks of Sen. Mondale) (a woman "crippled by arthritis"
was denied a job not because she could not do the work but because "college trustees
[thought] 'normal students shouldn't see her'"); id., at 525 (remarks of Sen. Humphrey).
9

The Department of Health and Human Services regulations, which include among
the conditions illustrative of physical impairments covered by the Act "cosmetic
disfigurement," lend further support to Arline's position that the effects of one's impairment
on others is as relevant to a determination of whether one is handicapped as is the physical
effect of one's handicap on oneself. 45 CFR § 84.3(j)(2)(i)(A) (1985). At oral argument,
(continued...)
10

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School Board of Nassau County v. Arline

Allowing discrimination based on the contagious effects of a physical
impairment would be inconsistent with the basic purpose of § 504, which is to ensure
that handicapped individuals are not denied jobs or other benefits because of the
prejudiced attitudes or the ignorance of others. By amending the definition of
"handicapped individual" to include not only those who are actually physically
impaired, but also those who are regarded as impaired and who, as a result, are
substantially limited in a major life activity, Congress acknowledged that society's
accumulated myths and fears about disability and disease are as handicapping as are
the physical limitations that flow from actual impairment. Few aspects of a handicap
give rise to the same level of public fear and misapprehension as

10

(...continued)
the United States took the position that a condition such as cosmetic disfigurement could not
substantially limit a major life activity within the meaning of the statute, because the only
major life activity that it would affect would be the ability to work. The United States
recognized that "working" was one of the major life activities listed in the regulations, but
said that to argue that a condition that impaired only the ability to work was a handicapping
condition was to make "a totally circular argument which lifts itself by its bootstraps." Tr.
of Oral Arg. 15-16. {The Solicitor General said that "there may be some conceptual
difficulty in defining 'major life activities' to include work, for it seems 'to argue in a circle
to say that if one is excluded, for instance, by reason of [an impairment, from working with
others] ... then that exclusion constitutes an impairment, when the question you're asking is,
whether the exclusion itself is by reason of handicap.'" Sutton v. United Air Lines, 119 S.Ct.
2139, 2151.} The argument is not circular, however, but direct. Congress plainly intended
the Act to cover persons with a physical or mental impairment (whether actual, past, or
perceived) that substantially limited one's ability to work. "[The] primary goal of the Act
is to increase employment of the handicapped." Consolidated Rail Corporation v. Darrone,
465 U.S., at 633, n. 13; see also id. at 632 ("Indeed, enhancing employment of the
handicapped was so much the focus of the 1973 legislation that Congress the next year felt
it necessary to amend the statute to clarify whether § 504 was intended to prohibit other
types of discrimination as well").

Labor and Employment Law

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School Board of Nassau County v. Arline

ix

contagiousness.12 Even those who suffer or have recovered from such noninfectious
diseases as epilepsy or cancer have faced discrimination based on the irrational fear
that they might be contagious.13 The Act is carefully structured to replace such
reflexive reactions to actual or perceived handicaps with actions based on reasoned
and medically sound judgments: the definition of "handicapped individual" is broad,
but only those individuals who are both handicapped and otherwise qualified are
eligible for relief. The fact that some persons who have contagious diseases may pose
a serious health threat to others under certain circumstances does not justify excluding
from the coverage of the Act all persons with actual or perceived contagious diseases.
Such exclusion would mean that those accused of being contagious would never have
the opportunity to have their condition evaluated in light of medical evidence and a
determination made as to whether they were "otherwise qualified." Rather, they would
be vulnerable to discrimination on the basis of mythology — precisely the type of
injury Congress sought to prevent.14 We conclude that the fact that a person with a

The isolation of the chronically ill and of those perceived to be ill or contagious
appears across cultures and centuries, as does the development of complex and often
pernicious mythologies about the nature, cause, and transmission of illness. Tuberculosis
is no exception.
12

Senator Humphrey noted the "irrational fears or prejudice on the part of employers
or fellow workers" that make it difficult for former cancer patients to secure employment.
123 Cong. Rec. 13515 (1977). See also Feldman, Wellness and Work, in Psychosocial
Stress and Cancer 173-200 (C. Cooper ed. 1984) (documenting job discrimination against
recovered cancer patients); S. Sontag, Illness as Metaphor 6 (1978) ("Any disease that is
treated as a mystery and acutely enough feared will be felt to be morally, if not literally,
contagious. Thus, a surprisingly large number of people with cancer find themselves being
shunned by relatives and friends ... as if cancer, like TB, were an infectious disease"); Dell,
Social Dimensions of Epilepsy: Stigma and Response, in Psychopathology in Epilepsy:
Social Dimensions 185-210 (S. Whitman & B. Hermann eds. 1986) (reviewing range of
discrimination affecting epileptics); Brief for Epilepsy Foundation of America as Amicus
Curiae 5-14 ("A review of the history of epilepsy provides a salient example that fear, rather
than the handicap itself, is the major impetus for discrimination against persons with
handicaps").
13

Congress reaffirmed this approach in its 1978 amendments to the Act. There,
Congress recognized that employers and other grantees might have legitimate reasons not
to extend jobs or benefits to drug addicts and alcoholics, but also understood the danger of
improper discrimination against such individuals if they were categorically excluded from
coverage under the Act. Congress therefore rejected the original House proposal to exclude
addicts and alcoholics from the definition of handicapped individual, and instead adopted
the Senate proposal excluding only those alcoholics and drug abusers "whose current use
of alcohol or drugs prevents such individual from performing the duties of the job in
(continued...)
14

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School Board of Nassau County v. Arline

record of a physical impairment is also contagious does not suffice to remove that
person from coverage under § 504.15

14

(...continued)
question or whose employment ... would constitute a direct threat to property or the safety
of others." 29 U. S. C. § 706(7)(B).
This approach is also consistent with that taken by courts that have addressed the
question whether the Act covers persons suffering from conditions other than contagious
diseases that render them a threat to the safety of others.
The dissent implies that our holding rests only on our "own sense of fairness and
implied support from the Act" .... It is evident, however, that our holding is premised on the
plain language of the Act, and on the detailed regulations that implement it, neither of which
the dissent discusses and both of which support the conclusion that those with a contagious
disease such as tuberculosis may be considered "handicapped" under the Act. We also find
much support in the legislative history, while the dissent is unable to find any evidence to
support its view. Accordingly, the dissent's construction of the Act to exclude those afflicted
with a contagious disease is not only arbitrary (and therefore unfair) but unfaithful to basic
canons of statutory construction.
15

...
Nor is there any reason to think that today's decision will extend the Act beyond
manageable bounds. Construing § 504 not to exclude those with contagious diseases will
complement rather than complicate state efforts to enforce public health laws. As we state,
courts may reasonably be expected normally to defer to the judgments of public health
officials in determining whether an individual is otherwise qualified unless those judgments
are medically unsupportable. Conforming employment decisions with medically reasonable
judgments can hardly be thought to threaten the States' regulation of communicable diseases.
Indeed, because the Act requires employers to respond rationally to those handicapped by
a contagious disease, the Act will assist local health officials by helping remove an
important obstacle to preventing the spread of infectious diseases: the individual's reluctance
to report his or her condition. It is not surprising, then, that in their brief as amici curiae in
support of respondent, the States of California, Maryland, Michigan, Minnesota, New
Jersey, New York, and Wisconsin conclude that "inclusion of communicable diseases within
the ambit of Section 504 does not reorder the priorities of state regulatory agencies ... [and]
would not alter the balance between state and federal authority." Brief for State of California
et al. 30.

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xi

IV
The remaining question is whether Arline is otherwise qualified for the job of
elementary schoolteacher. To answer this question in most cases, the district court
will need to conduct an individualized inquiry and make appropriate findings of fact.
Such an inquiry is essential if § 504 is to achieve its goal of protecting handicapped
individuals from deprivations based on prejudice, stereotypes, or unfounded fear,
while giving appropriate weight to such legitimate concerns of grantees as avoiding
exposing others to significant health and safety risks.16 The basic factors to be
considered in conducting this inquiry are well established.17 In the context of the
employment of a person handicapped with a contagious disease, we agree with amicus
American Medical Association that this inquiry should include
"[findings of] facts, based on reasonable medical judgments given the state
of medical knowledge, about (a) the nature of the risk (how the disease is
transmitted), (b) the duration of the risk (how long is the carrier infectious),
(c) the severity of the risk (what is the potential harm to third parties) and (d)
the probabilities the disease will be transmitted and will cause varying
degrees of harm." Brief for American Medical Association as Amicus Curiae
19.

A person who poses a significant risk of communicating an infectious disease to
others in the workplace will not be otherwise qualified for his or her job if reasonable
accommodation will not eliminate that risk. The Act would not require a school board to
place a teacher with active, contagious tuberculosis in a classroom with elementary school
children. Respondent conceded as much at oral argument.
16

"An otherwise qualified person is one who is able to meet all of a program's
requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S.
397, 406 (1979). In the employment context, an otherwise qualified person is one who can
perform "the essential functions" of the job in question. 45 CFR § 84.3(k) (1985). When
a handicapped person is not able to perform the essential functions of the job, the court must
also consider whether any "reasonable accommodation" by the employer would enable the
handicapped person to perform those functions. Ibid. Accommodation is not reasonable if
it either imposes "undue financial and administrative burdens" on a grantee, Southeastern
Community College v. Davis, 442 U.S., at 412, or requires "a fundamental alteration in the
nature of [the] program," id., at 410. See 45 CFR pt. 84, Appendix A, p. 315 (1985)
("[Where] reasonable accommodation does not overcome the effects of a person's handicap,
or where reasonable accommodation causes undue hardship to the employer, failure to hire
or promote the handicapped person will not be considered discrimination").
17

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In making these findings, courts normally should defer to the reasonable medical
judgments of public health officials. The next step in the "otherwise-qualified" inquiry
is for the court to evaluate, in light of these medical findings, whether the employer
could reasonably accommodate the employee under the established standards for that
inquiry.
Because of the paucity of factual findings by the District Court, we, like the
Court of Appeals, are unable at this stage of the proceedings to resolve whether Arline
is "otherwise qualified" for her job. The District Court made no findings as to the
duration and severity of Arline's condition, nor as to the probability that she would
transmit the disease. Nor did the court determine whether Arline was contagious at
the time she was discharged, or whether the School Board could have reasonably
accommodated her.19 Accordingly, the resolution of whether Arline was otherwise
qualified requires further findings of fact.
V
We hold that a person suffering from the contagious disease of tuberculosis
can be a handicapped person within the meaning of § 504 of the Rehabilitation Act
of 1973, and that respondent Arline is such a person. We remand the case to the
District Court to determine whether Arline is otherwise qualified for her position. The
judgment of the Court of Appeals is
Affirmed.
Chief Justice REHNQUIST, with whom Justice SCALIA joins, dissenting.
In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), this
Court made clear that, where Congress intends to impose a condition on the grant of
federal funds, "it must do so unambiguously." id. at 17. This principle applies with full
force to § 504 of the Rehabilitation Act, which Congress limited in scope to "those
who actually 'receive' federal financial assistance." United States Department of
Transportation v. Paralyzed Veterans of America, 477 U.S. 597, 605 (1986). Yet, the
Court today ignores this principle, resting its holding on its own sense of fairness and
implied support from the Act. Such an approach, I believe, is foreclosed not only by
Pennhurst, but also by our prior decisions interpreting the Rehabilitation Act.

Employers have an affirmative obligation to take a reasonable accommodation for
a handicapped employee. Although they are not required to find another job for an
employee who is not qualified for the job he or she was doing, they cannot deny an
employee alternative employment opportunities reasonably available under the employer's
existing policies.
19

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xiii

Our decision in Pennhurst was premised on the view that federal legislation
imposing obligations only on recipients of federal funds is "much in the nature of a
contract." 451 U.S. at 17. As we have stated in the context of the Rehabilitation Act,
"'Congress apparently determined it would require ... grantees to bear the costs of
providing employment for the handicapped as a quid pro quo for the receipt of federal
funds.'" United States Department of Transportation v. Paralyzed Veterans of
America, 477 U.S. 597, 605 (1986), quoting Consolidated Rail Corporation v.
Darrone, 465 U.S. 624, 633, n. 13 (1984). The legitimacy of this quid pro quo rests
on whether recipients of federal funds voluntarily and knowingly accept the terms of
the exchange. Pennhurst at 17. There can be no knowing acceptance unless Congress
speaks "with a clear voice" in identifying the conditions attached to the receipt of
funds. Ibid.
The requirement that Congress unambiguously express conditions imposed on
federal moneys is particularly compelling in cases such as this where there exists
longstanding state and federal regulation of the subject matter. From as early as 1796,
Congress has legislated directly in the area of contagious diseases. Congress has also,
however, left significant leeway to the States, which have enacted a myriad of public
health statutes designed to protect against the introduction and spread of contagious
diseases. When faced with such extensive regulation, this Court has declined to read
the Rehabilitation Act expansively. Absent an expression of intent to the contrary,
"Congress ... 'will not be deemed to have significantly changed the federal-state
balance.'" Bowen v. American Hospital Assn., 476 U.S. 610, 644 (1986), quoting
United States v. Bass, 404 U.S. 336, 349 (1971).
Applying these principles, I conclude that the Rehabilitation Act cannot be
read to support the result reached by the Court. The record in this case leaves no
doubt that Arline was discharged because of the contagious nature of tuberculosis, and
not because of any diminished physical or mental capabilities resulting from her
condition. Thus, in the language of § 504, the central question here is whether
discrimination on the basis of contagiousness constitutes discrimination "by reason
of ... handicap." Because the language of the Act, regulations, and legislative history
are silent on this issue, the principles outlined above compel the conclusion that
contagiousness is not a handicap within the meaning of § 504. It is therefore clear that
the protections of the Act do not extend to individuals such as Arline.
In reaching a contrary conclusion, the Court never questions that Arline was
discharged because of the threat her condition posed to others. Instead, it posits that
the contagious effects of a disease cannot be "meaningfully" distinguished from the
disease's effect on a claimant under the Act. To support this position, the Court
observes that Congress intended to extend the Act's protections to individuals who
have a condition that does not impair their mental and physical capabilities, but limits

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their major life activities because of the adverse reactions of others. This
congressional recognition of a handicap resulting from the reactions of others, we are
told, reveals that Congress intended the Rehabilitation Act to regulate discrimination
on the basis of contagiousness.
This analysis misses the mark in several respects. To begin with, Congress'
recognition that an individual may be handicapped under the Act solely by reason of
the reactions of others in no way demonstrates that, for the purposes of interpreting
the Act, the reactions of others to the condition cannot be considered separately from
the effect of the condition on the claimant. In addition, the Court provides no basis
for extending the Act's generalized coverage of individuals suffering discrimination
as a result of the reactions of others to coverage of individuals with contagious
diseases. Although citing examples of handicapped individuals described in the
regulations and legislative history, the Court points to nothing in these materials
suggesting that Congress contemplated that a person with a condition posing a threat
to the health of others may be considered handicapped under the Act.5 Even in an
ordinary case of statutory construction, such meager proof of congressional intent
would not be determinative. The Court's evidence, therefore, could not possibly
provide the basis for "knowing acceptance" by such entities as the Nassau County
School Board that their receipt of federal funds is conditioned on Rehabilitation Act
regulation of public health issues.
In Alexander v. Choate, 469 U.S. at 299, this Court stated that "[any]
interpretation of § 504 must ... be responsive to two powerful but countervailing
considerations — the need to give effect to the statutory objectives and the desire to
keep § 504 within manageable bounds." The Court has wholly disregarded this

In fact, two of the examples cited by the Court may be read to support a contrary
conclusion. The 1978 amendments to the Rehabilitation Act cited by the majority
specifically exclude from the definition of a handicapped person alcoholics and drug abusers
that "constitute a direct threat to property or the safety of others." 29 U. S. C. § 706(7)(B)
(emphasis added). If anything, this exclusion evinces congressional intent to avoid the Act's
interference with public health and safety concerns. See Oversight Hearings on
Rehabilitation Act of 1973 before the Subcommittee on Select Education of the House
Committee on Education and Labor, 95th Cong., 2d Sess., 503 (1978) (statement of Rep.
Hyde) ("Congress needs to give thoughtful and wide-ranging consideration to the needs of
handicapped persons, balanced against the realities of public safety, economics, and
commonsense"). This intent is also present in the statements of Representative Vanik relied
on by the Court. Representative Vanik expressed apparent disapproval of a court ruling that
"'a cerebral palsied child, who was not a physical threat and was academically competitive,
should be excluded from public school, because his teacher claimed his physical appearance
"produced a nauseating effect" on his classmates.'" 117 Cong. Rec. 45974 (1971) (emphasis
added).
5

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School Board of Nassau County v. Arline
admonition here.

xv

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QUESTIONS FOR REFLECTION

1. In Sutton v. United Air Lines, 119 S.Ct. 2139
(1999), which follows below, Justice O'Connor reports
that, during the oral argument of Arline, the Solicitor
General said that "there may be some conceptual
difficulty in defining 'major life activities' to include
work, for it seems 'to argue in a circle to say that if
one is excluded, for instance, by reason of [an
impairment, from working with others] ... then that
exclusion constitutes an impairment, when the question
you're asking is, whether the exclusion itself is by
reason of handicap.'"
Sutton at 2151.
Was there a
conceptual difficulty? Should work count as major life
activity?
2. The Court's holding does not mean that Ms. Arline
won her case. Why not?
Exercise
The Supreme Court remanded the case to the district
court. What further evidence would the parties want to
present? See Arline v. School Bd. of Nassau County, 692
F. Supp. 1286 (M.D. FL, 1988).

Labor and Employment Law

712

What is a Handicap or Disability?
(continued)
Introduction
The Americans with Disabilities Act was patterned in
substantial part on the Vocational Rehabilitation Act.
Therefore, when an issue arises under the Disability Act,
precedents under the Rehabilitation Act are usually
applicable.
One issue common to both statutes is whether an
individual's status as a handicapped or disabled person
should be determined before or after mitigating measures
have been taken.
For example, suppose a person is
severely hard of hearing; by use of a hearing aid (a
mitigating measure), the person can hear almost normally.
Judged before mitigation, the person is handicapped or
disabled and, consequently, protected by law; judged
after mitigation, the person is not. The following case
addresses this issue in the context of the Disability
Act.

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526 U.S. 1109 (1999)

Justice O'CONNOR delivered the opinion of the Court.
The Americans with Disabilities Act of 1990 (ADA or Act) prohibits certain
employers from discriminating against individuals on the basis of their disabilities.
See § 12112(a). Petitioners challenge the dismissal of their ADA action for failure
to state a claim upon which relief can be granted. We conclude that the complaint
was properly dismissed. In reaching that result, we hold that the determination of
whether an individual is disabled should be made with reference to measures that
mitigate the individual's impairment, including, in this instance, eyeglasses and
contact lenses. In addition, we hold that petitioners failed to allege properly that
respondent "regarded" them as having a disability within the meaning of the ADA.
I
Petitioners' amended complaint was dismissed for failure to state a claim
upon which relief could be granted. Accordingly, we accept the allegations contained
in their complaint as true for purposes of this case.
Petitioners are twin sisters, both of whom have severe myopia. Each
petitioner's uncorrected visual acuity is 20/200 or worse in her right eye and 20/400
or worse in her left eye, but "with the use of corrective lenses, each ... has vision that
is 20/20 or better." App. 23. Consequently, without corrective lenses, each
"effectively cannot see to conduct numerous activities such as driving a vehicle,
watching television or shopping in public stores," id. at 24, but with corrective
measures, such as glasses or contact lenses, both "function identically to individuals
without a similar impairment," ibid.
In 1992, petitioners applied to respondent for employment as commercial
airline pilots. They met respondent's basic age, education, experience, and FAA
certification qualifications. After submitting their applications for employment, both
petitioners were invited by respondent to an interview and to flight simulator tests.
Both were told during their interviews, however, that a mistake had been made in
inviting them to interview because petitioners did not meet respondent's minimum
vision requirement, which was uncorrected visual acuity of 20/100 or better. Due to
their failure to meet this requirement, petitioners' interviews were terminated, and
neither was offered a pilot position.
In light of respondent's proffered reason for rejecting them, petitioners filed
a charge of disability discrimination under the ADA with the Equal Employment
Opportunity Commission (EEOC). After receiving a right to sue letter, petitioners
filed suit in the United States District Court for the District of Colorado, alleging that

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Sutton v. United Air Lines

iii

respondent had discriminated against them "on the basis of their disability, or
because [respondent] regarded [petitioners] as having a disability" in violation of the
ADA. App. 26. Specifically, petitioners alleged that due to their severe myopia they
actually have a substantially limiting impairment or are regarded as having such an
impairment, and are thus disabled under the Act.
The District Court dismissed petitioners' complaint for failure to state a claim
upon which relief could be granted. Because petitioners could fully correct their visual
impairments, the court held that they were not actually substantially limited in any
major life activity and thus had not stated a claim that they were disabled within the
meaning of the ADA. The court also determined that petitioners had not made
allegations sufficient to support their claim that they were "regarded" by the respondent
as having an impairment that substantially limits a major life activity. The court
observed that "the statutory reference to a substantial limitation indicates ... that an
employer regards an employee as handicapped in his or her ability to work by finding
the employee's impairment to foreclose generally the type of employment involved."
App. to Pet. for Cert. at A36 to A37. But petitioners had alleged only that respondent
regarded them as unable to satisfy the requirements of a particular job, global airline
pilot. Consequently, the court held that petitioners had not stated a claim that they were
regarded as substantially limited in the major life activity of working. Employing
similar logic, the Court of Appeals for the Tenth Circuit affirmed the District Court's
judgment.
The Tenth Circuit's decision is in tension with the decisions of other Courts of
Appeals. See, e.g., Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321, 329
(2d Cir. 1998) (holding self-accommodations cannot be considered when determining
a disability), cert. pending, No. 98-1285; Baert v. Euclid Beverage, Ltd., 149 F.3d 626,
629-630 (7th Cir. 1998) (holding disabilities should be determined without reference
to mitigating measures); Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933,
937-938 (3d Cir. 1997) (same); Arnold v. United Parcel Service, Inc., 136 F.3d 854,
859-866 (1st Cir. 1998) (same); see also Washington v. HCA Health Servs. of Texas,
Inc., 152 F.3d 464, 470-471 (5th Cir. 1998) (holding that only some impairments
should be evaluated in their uncorrected state). We granted certiorari and now affirm.
II
The ADA prohibits discrimination by covered entities, including private
employers, against qualified individuals with a disability. Specifically, it provides that
no covered employer "shall discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of employment." § 102(a). A "qualified

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individual with a disability" is identified as "an individual with a disability who, with
or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires." § 101(8). In turn, a
"disability" is defined as:
"(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment." § 3(2).

Accordingly, to fall within this definition one must have an actual disability
(subsection (A)), have a record of a disability (subsection (B)), or be regarded as
having one (subsection (C)).
The parties agree that the authority to issue regulations to implement the Act
is split primarily among three Government agencies. According to the parties, the
EEOC has authority to issue regulations to carry out the employment provisions in
Title I of the ADA.... The Attorney General is granted authority to issue regulations
with respect to Title II.... Finally, the Secretary of Transportation has authority to issue
regulations pertaining to the transportation provisions of Titles II and III....
No agency, however, has been given authority to issue regulations
implementing the generally applicable provisions of the ADA, which fall outside Titles
I-V. Most notably, no agency has been delegated authority to interpret the term
"disability." § 3(2).... The EEOC has, nonetheless, issued regulations to provide
additional guidance regarding the proper interpretation of this term. After restating the
definition of disability given in the statute, the EEOC regulations define the three
elements of disability: (1) "physical or mental impairment," (2) "substantially limits,"
and (3) "major life activities." See 29 CFR §§ 1630.2(h)-(j). Under the regulations, a
"physical impairment" includes "any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including speech
organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic,
skin, and endocrine." § 1630.2(h)(1). The term "substantially limits" means, among
other things, "unable to perform a major life activity that the average person in the
general population can perform;" or "significantly restricted as to the condition, manner
or duration under which an individual can perform a particular major life activity as
compared to the condition, manner, or duration under which the average person in the
general population can perform that same major life activity." § 1630.2(j). Finally,
"major life activities means functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working." §

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Sutton v. United Air Lines

v

1630.2(i). Because both parties accept these regulations as valid, and determining their
validity is not necessary to decide this case, we have no occasion to consider what
deference they are due, if any.
The agencies have also issued interpretive guidelines to aid in the
implementation of their regulations. For instance, at the time that it promulgated the
above regulations, the EEOC issued an "Interpretive Guidance," which provides that
"the determination of whether an individual is substantially limited in a major life
activity must be made on a case by case basis, without regard to mitigating measures
such as medicines, or assistive or prosthetic devices." 29 CFR pt. 1630, App. §
1630.2(j) (1998). The Department of Justice has issued a similar guideline. See 28 CFR
pt. 35, App. A, § 35.104 ("The question of whether a person has a disability should be
assessed without regard to the availability of mitigating measures, such as reasonable
modification or auxiliary aids and services"); pt. 36, App. B, § 36.104 (same).
Although the parties dispute the persuasive force of these interpretive guidelines, we
have no need in this case to decide what deference is due.
III
With this statutory and regulatory framework in mind, we turn first to the
question whether petitioners have stated a claim under subsection (A) of the disability
definition, that is, whether they have alleged that they possess a physical impairment
that substantially limits them in one or more major life activities. Because petitioners
allege that with corrective measures their vision "is 20/20 or better," see App. 23, they
are not actually disabled within the meaning of the Act if the "disability" determination
is made with reference to these measures. Consequently, with respect to subsection (A)
of the disability definition, our decision turns on whether disability is to be determined
with or without reference to corrective measures.
Petitioners maintain that whether an impairment is substantially limiting should
be determined without regard to corrective measures. They argue that, because the
ADA does not directly address the question at hand, the Court should defer to the
agency interpretations of the statute, which are embodied in the agency guidelines
issued by the EEOC and the Department of Justice. These guidelines specifically direct
that the determination of whether an individual is substantially limited in a major life
activity be made without regard to mitigating measures.
Respondent, in turn, maintains that an impairment does not substantially limit
a major life activity if it is corrected. It argues that the Court should not defer to the
agency guidelines cited by petitioners because the guidelines conflict with the plain
meaning of the ADA. The phrase "substantially limits one or more major life
activities," it explains, requires that the substantial limitations actually and presently

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Sutton v. United Air Lines

exist. Moreover, respondent argues, disregarding mitigating measures taken by an
individual defies the statutory command to examine the effect of the impairment on the
major life activities "of such individual." And even if the statute is ambiguous,
respondent claims, the guidelines' directive to ignore mitigating measures is not
reasonable, and thus this Court should not defer to it.
We conclude that respondent is correct that the approach adopted by the agency
guidelines — that persons are to be evaluated in their hypothetical uncorrected state —
is an impermissible interpretation of the ADA. Looking at the Act as a whole, it is
apparent that if a person is taking measures to correct for, or mitigate, a physical or
mental impairment, the effects of those measures — both positive and negative — must
be taken into account when judging whether that person is "substantially limited" in a
major life activity and thus "disabled" under the Act. The dissent relies on the
legislative history of the ADA for the contrary proposition that individuals should be
examined in their uncorrected state. Because we decide that, by its terms, the ADA
cannot be read in this manner, we have no reason to consider the ADA's legislative
history.
Three separate provisions of the ADA, read in concert, lead us to this
conclusion. The Act defines a "disability" as "a physical or mental impairment that
substantially limits one or more of the major life activities" of an individual. § 3(2)(A)
(emphasis added). Because the phrase "substantially limits" appears in the Act in the
present indicative verb form, we think the language is properly read as requiring that
a person be presently — not potentially or hypothetically — substantially limited in
order to demonstrate a disability. A "disability" exists only where an impairment
"substantially limits" a major life activity, not where it "might," "could," or "would" be
substantially limiting if mitigating measures were not taken. A person whose physical
or mental impairment is corrected by medication or other measures does not have an
impairment that presently "substantially limits" a major life activity. To be sure, a
person whose physical or mental impairment is corrected by mitigating measures still
has an impairment, but if the impairment is corrected it does not "substantially limit"
a major life activity.
The definition of disability also requires that disabilities be evaluated "with
respect to an individual" and be determined based on whether an impairment
substantially limits the "major life activities of such individual." § 3(2). Thus, whether
a person has a disability under the ADA is an individualized inquiry....

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vii

The agency guidelines' directive that persons be judged in their uncorrected or
unmitigated state runs directly counter to the individualized inquiry mandated by the
ADA. The agency approach would often require courts and employers to speculate
about a person's condition and would, in many cases, force them to make a disability
determination based on general information about how an uncorrected impairment
usually affects individuals, rather than on the individual's actual condition. For
instance, under this view, courts would almost certainly find all diabetics to be
disabled, because if they failed to monitor their blood sugar levels and administer
insulin, they would almost certainly be substantially limited in one or more major life
activities. A diabetic whose illness does not impair his or her daily activities would
therefore be considered disabled simply because he or she has diabetes. Thus, the
guidelines approach would create a system in which persons often must be treated as
members of a group of people with similar impairments, rather than as individuals.
This is contrary to both the letter and the spirit of the ADA.
The guidelines approach could also lead to the anomalous result that in
determining whether an individual is disabled, courts and employers could not consider
any negative side effects suffered by an individual resulting from the use of mitigating
measures, even when those side effects are very severe. See, e.g., Johnson,
Antipsychotics: Pros and Cons of Antipsychotics, RN (Aug. 1997) (noting that
antipsychotic drugs can cause a variety of adverse effects, including neuroleptic
malignant syndrome and painful seizures); Liver Risk Warning Added to Parkinson's
Drug, FDA Consumer (Mar. 1, 1999) (warning that a drug for treating Parkinson's
disease can cause liver damage); Curry & Kulling, Newer Antiepileptic Drugs,
American Family Physician (Feb. 1, 1998) (cataloging serious negative side effects of
new antiepileptic drugs). This result is also inconsistent with the individualized
approach of the ADA.
Finally, and critically, findings enacted as part of the ADA require the
conclusion that Congress did not intend to bring under the statute's protection all those
whose uncorrected conditions amount to disabilities. Congress found that "some
43,000,000 Americans have one or more physical or mental disabilities, and this
number is increasing as the population as a whole is growing older." § 2(a)(1). This
figure is inconsistent with the definition of disability pressed by petitioners.
Although the exact source of the 43 million figure is not clear, the
corresponding finding in the 1988 precursor to the ADA was drawn directly from a
report prepared by the National Council on Disability.... That report detailed the
difficulty of estimating the number of disabled persons due to varying operational
definitions of disability. National Council on Disability, Toward Independence 10
(1986). It explained that the estimates of the number of disabled Americans ranged
from an overinclusive 160 million under a "health conditions approach," which looks

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at all conditions that impair the health or normal functional abilities of an individual,
to an underinclusive 22.7 million under a "work disability approach," which focuses
on individuals' reported ability to work. Id. at 10-11. It noted that "a figure of 35 or 36
million [was] the most commonly quoted estimate." Id. at 10. The 36 million number
included in the 1988 bill's findings thus clearly reflects an approach to defining
disabilities that is closer to the work disabilities approach than the health conditions
approach.
This background also provides some clues to the likely source of the figure in
the findings of the 1990 Act. Roughly two years after issuing its 1986 report, the
National Council on Disability issued an updated report. See On the Threshold of
Independence (1988). This 1988 report settled on a more concrete definition of
disability. It stated that 37.3 million individuals have "difficulty performing one or
more basic physical activities," including "seeing, hearing, speaking, walking, using
stairs, lifting or carrying, getting around outside, getting around inside, and getting into
or out of bed." Id. at 19. The study from which it drew this data took an explicitly
functional approach to evaluating disabilities. It measured 37.3 million persons with
a "functional limitation" on performing certain basic activities when using, as the
questionnaire put it, "special aids," such as glasses or hearing aids, if the person usually
used such aids. U.S. Dept. of Commerce, Bureau of Census, Disability, Functional
Limitation, and Health Insurance Coverage: 1984/85, p. 1, 47 (1986). The number of
disabled provided by the study and adopted in the 1988 report, however, includes only
noninstitutionalized persons with physical disabilities who are over age 15. The 5.7
million gap between the 43 million figure in the ADA's findings and the 37.3 million
figure in the report can thus probably be explained as an effort to include in the
findings those who were excluded from the National Council figure. {The Court
mentioned persons not in institutions but with activity limitations due to mental
illnesses and mental retardation, persons under 18 with activity limitations, and
residents in nursing and related care facilities}.
Regardless of its exact source, however, the 43 million figure reflects an
understanding that those whose impairments are largely corrected by medication or
other devices are not "disabled" within the meaning of the ADA....
By contrast, nonfunctional approaches to defining disability produce
significantly larger numbers. As noted above, the 1986 National Council on Disability
report estimated that there were over 160 million disabled under the "health conditions
approach." Toward Independence at 10.... {The Court stated that the number of people
with vision impairment is 100 million, with hearing impairment is 28 million, and with
high blood pressure, 50 million.}

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Because it is included in the ADA's text, the finding that 43 million individuals
are disabled gives content to the ADA's terms, specifically the term "disability." Had
Congress intended to include all persons with corrected physical limitations among
those covered by the Act, it undoubtedly would have cited a much higher number of
disabled persons in the findings. That it did not is evidence that the ADA's coverage
is restricted to only those whose impairments are not mitigated by corrective measures.
The dissents suggest that viewing individuals in their corrected state will exclude from
the definition of "disabled" those who use prosthetic limbs. This suggestion is
incorrect. The use of a corrective device does not, by itself, relieve one's disability.
Rather, one has a disability under subsection A if, notwithstanding the use of a
corrective device, that individual is substantially limited in a major life activity. For
example, individuals who use prosthetic limbs or wheelchairs may be mobile and
capable of functioning in society but still be disabled because of a substantial limitation
on their ability to walk or run. The same may be true of individuals who take medicine
to lessen the symptoms of an impairment so that they can function but nevertheless
remain substantially limited. Alternatively, one whose high blood pressure is "cured"
by medication may be regarded as disabled by a covered entity, and thus disabled under
subsection C of the definition. The use or nonuse of a corrective device does not
determine whether an individual is disabled; that determination depends on whether
the limitations an individual with an impairment actually faces are in fact substantially
limiting.
Applying this reading of the Act to the case at hand, we conclude that the Court
of Appeals correctly resolved the issue of disability in respondent's favor. As noted
above, petitioners allege that with corrective measures, their visual acuity is 20/20 and
that they "function identically to individuals without a similar impairment," App. at24,
Amended Complaint P37e. In addition, petitioners concede that they "do not argue that
the use of corrective lenses in itself demonstrates a substantially limiting impairment."
Brief for Petitioners 9, n. 11. Accordingly, because we decide that disability under the
Act is to be determined with reference to corrective measures, we agree with the courts
below that petitioners have not stated a claim that they are substantially limited in any
major life activity.
IV
Our conclusion that petitioners have failed to state a claim that they are actually
disabled under subsection (A) of the disability definition does not end our inquiry.
Under subsection (C), individuals who are "regarded as" having a disability are
disabled within the meaning of the ADA. Subsection 3 provides that having a
disability includes "being regarded as having" "a physical or mental impairment that
substantially limits one or more of the major life activities of such individual." There
are two apparent ways in which individuals may fall within this statutory definition: (1)

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a covered entity mistakenly believes that a person has a physical impairment that
substantially limits one or more major life activities, or (2) a covered entity mistakenly
believes that an actual, nonlimiting impairment substantially limits one or more major
life activities. In both cases, it is necessary that a covered entity entertain
misperceptions about the individual — it must believe either that one has a
substantially limiting impairment that one does not have or that one has a substantially
limiting impairment when, in fact, the impairment is not so limiting. These
misperceptions often "result from stereotypic assumptions not truly indicative of ...
individual ability." See 42 U.S.C. § 12101(7). See also School Bd. of Nassau Cty. v.
Arline, 480 U.S. 273, 284 (1987) ("By amending the definition of 'handicapped
individual' to include not only those who are actually physically impaired, but also
those who are regarded as impaired and who, as a result, are substantially limited in a
major life activity, Congress acknowledged that society's accumulated myths and fears
about disability and disease are as handicapping as are the physical limitations that
flow from actual impairment"); 29 CFR pt. 1630, App. § 1630.2(l) (explaining that the
purpose of the regarded as prong is to cover individuals "rejected from a job because
of the 'myths, fears and stereotypes' associated with disabilities").
There is no dispute that petitioners are physically impaired. Petitioners do not
make the obvious argument that they are regarded due to their impairments as
substantially limited in the major life activity of seeing. They contend only that
respondent mistakenly believes their physical impairments substantially limit them in
the major life activity of working. To support this claim, petitioners allege that
respondent has a vision requirement, which is allegedly based on myth and stereotype.
Further, this requirement substantially limits their ability to engage in the major life
activity of working by precluding them from obtaining the job of global airline pilot,
which they argue is a "class of employment." See App. 24-26, Amended Complaint
P38. In reply, respondent argues that the position of global airline pilot is not a class
of jobs and therefore petitioners have not stated a claim that they are regarded as
substantially limited in the major life activity of working. Standing alone, the allegation
that respondent has a vision requirement in place does not establish a claim that
respondent regards petitioners as substantially limited in the major life activity of
working. Post-Argument Brief for the United States et al. as Amici Curiae 5-6 ("Under
the EEOC's regulations, an employer may make employment decisions based on
physical characteristics"). By its terms, the ADA allows employers to prefer some
physical attributes over others and to establish physical criteria. An employer runs afoul
of the ADA when it makes an employment decision based on a physical or mental
impairment, real or imagined, that is regarded as substantially limiting a major life
activity. Accordingly, an employer is free to decide that physical characteristics or
medical conditions that do not rise to the level of an impairment — such as one's
height, build, or singing voice — are preferable to others, just as it is free to decide that
some limiting, but not substantially limiting, impairments make individuals less than

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xi

ideally suited for a job.
Considering the allegations of the amended complaint in tandem, petitioners
have not stated a claim that respondent regards their impairment as substantially
limiting their ability to work. The ADA does not define "substantially limits," but
"substantially" suggests "considerable" or "specified to a large degree." ... The EEOC
has codified regulations interpreting the term "substantially limits" in this manner,
defining the term to mean "unable to perform" or "significantly restricted." See 29 CFR
§§ 1630.2(j)(1)(i),(ii) (1998).
When the major life activity under consideration is that of working, the
statutory phrase "substantially limits" requires, at a minimum, that plaintiffs allege they
are unable to work in a broad class of jobs. Reflecting this requirement, the EEOC uses
a specialized definition of the term "substantially limits" when referring to the major
life activity of working:
"significantly restricted in the ability to perform either a class of jobs or a
broad range of jobs in various classes as compared to the average person
having comparable training, skills and abilities. The inability to perform a
single, particular job does not constitute a substantial limitation in the major
life activity of working." § 1630.2(j)(3)(i).

The EEOC further identifies several factors that courts should consider when
determining whether an individual is substantially limited in the major life activity of
working, including the geographical area to which the individual has reasonable access,
and "the number and types of jobs utilizing similar training, knowledge, skills or
abilities, within the geographical area, from which the individual is also disqualified."
§§ 1630.2(j)(3)(ii)(A), (B). To be substantially limited in the major life activity of
working, then, one must be precluded from more than one type of job, a specialized
job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not
his or her unique talents) are available, one is not precluded from a substantial class
of jobs. Similarly, if a host of different types of jobs are available, one is not precluded
from a broad range of jobs.
Because the parties accept that the term "major life activities" includes working,
we do not determine the validity of the cited regulations. We note, however, that there
may be some conceptual difficulty in defining "major life activities" to include work,
for it seems "to argue in a circle to say that if one is excluded, for instance, by reason
of [an impairment, from working with others] ... then that exclusion constitutes an
impairment, when the question you're asking is, whether the exclusion itself is by
reason of handicap." Tr. of Oral Arg. in School Bd. of Nassau Co. v. Arline, 481 U.S.
1024, 1987 U.S. LEXIS 1785, O. T. 1986, p. 15 (argument of Solicitor General).
Indeed, even the EEOC has expressed reluctance to define "major life activities" to

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include working and has suggested that working be viewed as a residual life activity,
considered, as a last resort, only "if an individual is not substantially limited with
respect to any other major life activity." 29 CFR pt. 1630, App. § 1630.2(j) (1998)
(emphasis added) ("If an individual is substantially limited in any other major life
activity, no determination should be made as to whether the individual is substantially
limited in working" (emphasis added)).
Assuming without deciding that working is a major life activity and that the
EEOC regulations interpreting the term "substantially limits" are reasonable, petitioners
have failed to allege adequately that their poor eyesight is regarded as an impairment
that substantially limits them in the major life activity of working. They allege only that
respondent regards their poor vision as precluding them from holding positions as a
"global airline pilot." Because the position of global airline pilot is a single job, this
allegation does not support the claim that respondent regards petitioners as having a
substantially limiting impairment. See 29 CFR § 1630.2(j)(3)(i) ("The inability to
perform a single, particular job does not constitute a substantial limitation in the major
life activity of working"). Indeed, there are a number of other positions utilizing
petitioners' skills, such as regional pilot and pilot instructor to name a few, that are
available to them. Even under the EEOC's Interpretative Guidance, to which petitioners
ask us to defer, "an individual who cannot be a commercial airline pilot because of a
minor vision impairment, but who can be a commercial airline co-pilot or a pilot for
a courier service, would not be substantially limited in the major life activity of
working." 29 CFR pt. 1630, App. § 1630.2.
Petitioners also argue that if one were to assume that a substantial number of
airline carriers have similar vision requirements, they would be substantially limited
in the major life activity of working. Even assuming for the sake of argument that the
adoption of similar vision requirements by other carriers would represent a substantial
limitation on the major life activity of working, the argument is nevertheless flawed.
It is not enough to say that if the physical criteria of a single employer were imputed
to all similar employers one would be regarded as substantially limited in the major life
activity of working only as a result of this imputation. An otherwise valid job
requirement, such as a height requirement, does not become invalid simply because it
would limit a person's employment opportunities in a substantial way if it were adopted
by a substantial number of employers. Because petitioners have not alleged, and cannot
demonstrate, that respondent's vision requirement reflects a belief that petitioners'
vision substantially limits them, we agree with the decision of the Court of Appeals
affirming the dismissal of petitioners' claim that they are regarded as disabled.
For these reasons, the decision of the Court of Appeals for the Tenth Circuit
is affirmed.

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It is so ordered.
Justice STEVENS, with whom Justice BREYER joins, dissenting.
When it enacted the Americans with Disabilities Act in 1990, Congress
certainly did not intend to require United Air Lines to hire unsafe or unqualified pilots.
Nor, in all likelihood, did it view every person who wears glasses as a member of a
"discrete and insular minority." Indeed, by reason of legislative myopia it may not have
foreseen that its definition of "disability" might theoretically encompass, not just "some
43,000,000 Americans," § 2(a)(1), but perhaps two or three times that number.
Nevertheless, if we apply customary tools of statutory construction, it is quite clear that
the threshold question whether an individual is "disabled" within the meaning of the
Act — and, therefore, is entitled to the basic assurances that the Act affords — focuses
on her past or present physical condition without regard to mitigation that has resulted
from rehabilitation, self-improvement, prosthetic devices, or medication. One might
reasonably argue that the general rule should not apply to an impairment that merely
requires a nearsighted person to wear glasses. But I believe that, in order to be faithful
to the remedial purpose of the Act, we should give it a generous, rather than a miserly,
construction.
There are really two parts to the question of statutory construction presented by
this case. The first question is whether the determination of disability for people that
Congress unquestionably intended to cover should focus on their unmitigated or their
mitigated condition. If the correct answer to that question is the one provided by eight
of the nine Federal Courts of Appeals to address the issue, and by all three of the
Executive agencies that have issued regulations or interpretive bulletins construing the
statute — namely, that the statute defines "disability" without regard to ameliorative
measures — it would still be necessary to decide whether that general rule should be
applied to what might be characterized as a "minor, trivial impairment." Arnold v.
United Parcel Service, Inc., 136 F.3d 854, 866, n. 10 (1st Cir. 1998) (holding that
unmitigated state is determinative but suggesting that it "might reach a different result"
in a case in which "a simple, inexpensive remedy," such as eyeglasses, is available "that
can provide total and relatively permanent control of all symptoms"). I shall therefore
first consider impairments that Congress surely had in mind before turning to the
special facts of this case.
I
"As in all cases of statutory construction, our task is to interpret the words of
[the statute] in light of the purposes Congress sought to serve." Chapman v. Houston
Welfare Rights Organization, 441 U.S. 600, 608 (1979). Congress expressly provided
that the "purpose of [the ADA is] to provide a clear and comprehensive national

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mandate for the elimination of discrimination against individuals with disabilities." §
2(b)(1). To that end, the ADA prohibits covered employers from "discriminating
against a qualified individual with a disability because of the disability" in regard to the
terms, conditions, and privileges of employment. § 102(a) (emphasis added).
The Act's definition of disability is drawn "almost verbatim" from the
Rehabilitation Act of 1973. The ADA's definition provides:
"The term 'disability' means, with respect to an individual —
"(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment." § 3(2).

The three parts of this definition do not identify mutually exclusive, discrete
categories. On the contrary, they furnish three overlapping formulas aimed at ensuring
that individuals who now have, or ever had, a substantially limiting impairment are
covered by the Act.
An example of a rather common condition illustrates this point: There are many
individuals who have lost one or more limbs in industrial accidents, or perhaps in the
service of their country in places like Iwo Jima. With the aid of prostheses, coupled
with courageous determination and physical therapy, many of these hardy individuals
can perform all of their major life activities just as efficiently as an average couch
potato. If the Act were just concerned with their present ability to participate in society,
many of these individuals' physical impairments would not be viewed as disabilities.
Similarly, if the statute were solely concerned with whether these individuals viewed
themselves as disabled — or with whether a majority of employers regarded them as
unable to perform most jobs — many of these individuals would lack statutory
protection from discrimination based on their prostheses.
The sweep of the statute's three-pronged definition, however, makes it
pellucidly clear that Congress intended the Act to cover such persons. The fact that a
prosthetic device, such as an artificial leg, has restored one's ability to perform major
life activities surely cannot mean that subsection (A) of the definition is inapplicable.
Nor should the fact that the individual considers himself (or actually is) "cured," or that
a prospective employer considers him generally employable, mean that subsections (B)
or (C) are inapplicable. But under the Court's emphasis on "the present indicative verb
form" used in subsection (A), that subsection presumably would not apply. And under
the Court's focus on the individual's "present — not potential or hypothetical" —

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condition and on whether a person is "precluded from a broad range of jobs,"
subsections (B) and (C) presumably would not apply.
In my view, when an employer refuses to hire the individual "because of" his
prosthesis, and the prosthesis in no way affects his ability to do the job, that employer
has unquestionably discriminated against the individual in violation of the Act.
Subsection (B) of the definition, in fact, sheds a revelatory light on the question
whether Congress was concerned only about the corrected or mitigated status of a
person's impairment. If the Court is correct that "[a] 'disability' exists only where" a
person's "present" or "actual" condition is substantially impaired, there would be no
reason to include in the protected class those who were once disabled but who are now
fully recovered. Subsection (B) of the Act's definition, however, plainly covers a
person who previously had a serious hearing impairment that has since been completely
cured. Still, if I correctly understand the Court's opinion, it holds that one who
continues to wear a hearing aid that she has worn all her life might not be covered —
fully cured impairments are covered, but merely treatable ones are not. The text of the
Act surely does not require such a bizarre result.
The three prongs of the statute, rather, are most plausibly read together not to
inquire into whether a person is currently "functionally" limited in a major life activity,
but only into the existence of an impairment — present or past — that substantially
limits, or did so limit, the individual before amelioration. This reading avoids the
counterintuitive conclusion that the ADA's safeguards vanish when individuals make
themselves more employable by ascertaining ways to overcome their physical or mental
limitations.
To the extent that there may be doubt concerning the meaning of the statutory
text, ambiguity is easily removed by looking at the legislative history. As then-Justice
REHNQUIST stated for the Court in Garcia v. United States, 469 U.S. 70 (1984): "In
surveying legislative history we have repeatedly stated that the authoritative source for
finding the Legislature's intent lies in the Committee Reports on the bill, which
'represent the considered and collective understanding of those Congressmen involved
in drafting and studying the proposed legislation.'" 469 U.S. at 76 (quoting Zuber v.
Allen, 396 U.S. 168, 186 (1969)). The Committee Reports on the bill that became the
ADA make it abundantly clear that Congress intended the ADA to cover individuals
who could perform all of their major life activities only with the help of ameliorative
measures.
The ADA originated in the Senate. The Senate Report states that "whether a
person has a disability should be assessed without regard to the availability of
mitigating measures, such as reasonable accommodations or auxiliary aids." S. Rep.
No. 101-116, p. 23 (1989). The Report further explained, in discussing the "regarded

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as" prong:
"[An] important goal of the third prong of the [disability] definition is to
ensure that persons with medical conditions that are under control, and that
therefore do not currently limit major life activities, are not discriminated
against on the basis of their medical conditions. For example, individuals
with controlled diabetes or epilepsy are often denied jobs for which they are
qualified. Such denials are the result of negative attitudes and
misinformation." Id. at 24.

When the legislation was considered in the House of Representatives, its
Committees reiterated the Senate's basic understanding of the Act's coverage, with one
minor modification: They clarified that "correctable" or "controllable" disabilities were
covered in the first definitional prong as well. The Report of the House Committee on
the Judiciary states, in discussing the first prong, that, when determining whether an
individual's impairment substantially limits a major life activity, "the impairment
should be assessed without considering whether mitigating measures, such as auxiliary
aids or reasonable accommodations, would result in a less-than-substantial limitation."
H. R. Rep. No. 101-485, pt. III, p. 28 (1990). The Report continues that "a person with
epilepsy, an impairment which substantially limits a major life activity, is covered
under this test," ibid., as is a person with poor hearing, "even if the hearing loss is
corrected by the use of a hearing aid." Id. at 29.
The Report of the House Committee on Education and Labor likewise states
that "whether a person has a disability should be assessed without regard to the
availability of mitigating measures, such as reasonable accommodations or auxiliary
aids." Id. pt. II, at 52. To make matters perfectly plain, the Report adds:
"For example, a person who is hard of hearing is substantially limited in the
major life activity of hearing, even though the loss may be corrected through
the use of a hearing aid. Likewise, persons with impairments, such as
epilepsy or diabetes, which substantially limit a major life activity are
covered under the first prong of the definition of disability, even if the effects
of the impairment are controlled by medication." Ibid. (emphasis added).

All of the Reports, indeed, are replete with references to the understanding that
the Act's protected class includes individuals with various medical conditions that
ordinarily are perfectly "correctable" with medication or treatment. See 469 U.S. at 74
(citing with approval Strathie v. Department of Transportation, 716 F.2d 227 (3d Cir.
1983), which held that an individual with poor hearing was "handicapped" under the
Rehabilitation Act even though his hearing could be corrected with a hearing aid); H.
R. Rep. No. 101-485, pt. III, at 51 ("the term" disability includes "epilepsy, ... heart
disease, diabetes"); id. pt. III, at 28 (listing same impairments); S. Rep. No. 101-116,

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at 22 (same).2
In addition, each of the three Executive agencies charged with implementing
the Act has consistently interpreted the Act as mandating that the presence of disability
turns on an individual's uncorrected state. We have traditionally accorded respect to
such views when, as here, the agencies "played a pivotal role in setting [the statutory]
machinery in motion." Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980)
(brackets in original; internal quotation marks and citation omitted). At the very least,
these interpretations "constitute a body of experience and informed judgment to which
[we] may properly resort" for additional guidance. Skidmore v. Swift & Co., 323 U.S.
134, 139-140 (1944). See also Bragdon v. Abbott, 524 U.S. 624, 642 (1998) (invoking
this maxim with regard to the Equal Employment Opportunity Commission's (EEOC)
interpretation of the ADA).
The EEOC's Interpretive Guidance provides that "the determination of whether
an individual is substantially limited in a major life activity must be made on a case by
case basis, without regard to mitigating measures such as medicines, or assistive or
prosthetic devices." 29 CFR pt. 1630, App. § 1630.2(j) (1998). The EEOC further
explains:
"An individual who uses artificial legs would ... be substantially limited in the
major life activity of walking because the individual is unable to walk without
the aid of prosthetic devices. Similarly, a diabetic who without insulin would
lapse into a coma would be substantially limited because the individual
cannot perform major life activities without the aid of medication." Ibid.

The Department of Justice has reached the same conclusion. Its regulations provide that
"the question of whether a person has a disability should be assessed without regard to
the availability of mitigating measures, such as reasonable modification or auxiliary
aids and services." 28 CFR pt. 35, App. A, § 35.104 (1998). The Department of
Transportation has issued a regulation adopting this same definition of "disability." See
49 CFR pt. 37.3 (1998).

The House's decision to cover correctable impairments under subsection (A) of the
statute seems, in retrospect, both deliberate and wise. Much of the structure of the House
Reports is borrowed from the Senate Report; thus it appears that the House Committees
consciously decided to move the discussion of mitigating measures. This adjustment was
prudent because in a case in which an employer refuses, out of animus or fear, to hire an
individual who has a condition such as epilepsy that the employer knows is controlled, it
may be difficult to determine whether the employer is viewing the individual in her
uncorrected state or "regards" her as substantially limited.
2

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In my judgment, the Committee Reports and the uniform agency regulations
merely confirm the message conveyed by the text of the Act — at least insofar as it
applies to impairments such as the loss of a limb, the inability to hear, or any condition
such as diabetes that is substantially limiting without medication. The Act generally
protects individuals who have "correctable" substantially limiting impairments from
unjustified employment discrimination on the basis of those impairments. The
question, then, is whether the fact that Congress was specifically concerned about
protecting a class that included persons characterized as a "discrete and insular
minority" and that it estimated that class to include "some 43,000,000 Americans"
means that we should construe the term "disability" to exclude individuals with
impairments that Congress probably did not have in mind.
II
The EEOC maintains that, in order to remain allegiant to the Act's structure and
purpose, courts should always answer "the question whether an individual has a
disability ... without regard to mitigating measures that the individual takes to
ameliorate the effects of the impairment." Brief for United States and EEOC as Amicus
Curiae 6. "There is nothing about poor vision," as the EEOC interprets the Act, "that
would justify adopting a different rule in this case." Ibid.
If a narrow reading of the term "disability" were necessary in order to avoid the
danger that the Act might otherwise force United to hire pilots who might endanger the
lives of their passengers, it would make good sense to use the "43,000,000 Americans"
finding to confine its coverage. There is, however, no such danger in this case. If a
person is "disabled" within the meaning of the Act, she still cannot prevail on a claim
of discrimination unless she can prove that the employer took action "because of" that
impairment, and that she can, "with or without reasonable accommodation ... perform
the essential functions" of the job of a commercial airline pilot. Even then, an employer
may avoid liability if it shows that the criteria of having uncorrected visual acuity of
at least 20/100 is "job-related and consistent with business necessity" or if such vision
(even if correctable to 20/20) would pose a health or safety hazard.
This case, in other words, is not about whether petitioners are genuinely
qualified or whether they can perform the job of an airline pilot without posing an
undue safety risk. The case just raises the threshold question whether petitioners are
members of the ADA's protected class. It simply asks whether the ADA lets petitioners
in the door in the same way as the Age Discrimination in Employment Act of 1967
does for every person who is at least 40 years old, and as Title VII of the Civil Rights
Act of 1964 does for every single individual in the work force. Inside that door lies
nothing more than basic protection from irrational and unjustified discrimination
because of a characteristic that is beyond a person's control. Hence, this particular

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case, at its core, is about whether, assuming that petitioners can prove that they are
"qualified," the airline has any duty to come forward with some legitimate explanation
for refusing to hire them because of their uncorrected eyesight, or whether the ADA
leaves the airline free to decline to hire petitioners on this basis even if it is acting
purely on the basis of irrational fear and stereotype.
I think it quite wrong for the Court to confine the coverage of the Act simply
because an interpretation of "disability" that adheres to Congress' method of defining
the class it intended to benefit may also provide protection for "significantly larger
numbers" of individuals than estimated in the Act's findings. It has long been a
"familiar canon of statutory construction that remedial legislation should be construed
broadly to effectuate its purposes." Tcherepnin v. Knight, 389 U.S. 332, 336 (1967).
Congress sought, in enacting the ADA, to "provide a ... comprehensive national
mandate for the discrimination against individuals with disabilities." § 2(b)(1). The
ADA, following the lead of the Rehabilitation Act before it, seeks to implement this
mandate by encouraging employers "to replace ... reflexive reactions to actual or
perceived handicaps with actions based on medically sound judgments." Arline, 480
U.S. at 284-285. Even if an authorized agency could interpret this statutory structure
so as to pick and choose certain correctable impairments that Congress meant to
exclude from this mandate, Congress surely has not authorized us to do so.
When faced with classes of individuals or types of discrimination that fall
outside the core prohibitions of anti-discrimination statutes, we have consistently
construed those statutes to include comparable evils within their coverage, even when
the particular evil at issue was beyond Congress' immediate concern in passing the
legislation. Congress, for instance, focused almost entirely on the problem of
discrimination against African-Americans when it enacted Title VII of the Civil Rights
Act of 1964. But that narrow focus could not possibly justify a construction of the
statute that excluded Hispanic-Americans or Asian-Americans from its protection —
or as we later decided (ironically enough, by relying on legislative history and
according "great deference" to the EEOC's "interpretation"), Caucasians.
We unanimously applied this well-accepted method of interpretation last Term
with respect to construing Title VII to cover claims of same-sex sexual harassment.
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). We explained our
holding as follows:
"As some courts have observed, male-on-male sexual harassment in the
workplace was assuredly not the principal evil Congress was concerned with
when it enacted Title VII. But statutory prohibitions often go beyond the
principal evil to cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of our legislators by
which we are governed. Title VII prohibits 'discrimination ... because of ...

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sex' in the 'terms' or 'conditions' of employment. Our holding that this
includes sexual harassment must extend to sexual harassment of any kind that
meets the statutory requirements." Id. 469 U.S. at 79-80.

This approach applies outside of the discrimination context as well. In H. J. Inc.
v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), we rejected the argument
that the Racketeer Influenced and Corrupt Organization Act (RICO) should be
construed to cover only "organized crime" because Congress included findings in the
Act's preamble emphasizing only that problem. After surveying RICO's legislative
history, we concluded that even though "the occasion for Congress' action was the
perceived need to combat organized crime, ... Congress for cogent reasons chose to
enact a more general statute, one which, although it had organized crime as its focus,
was not limited in application to organized crime." 492 U.S. at 248.3
Under the approach we followed in Oncale and H. J. Inc., visual impairments
should be judged by the same standard as hearing impairments or any other medically
controllable condition. The nature of the discrimination alleged is of the same character
and should be treated accordingly.
Indeed, it seems to me eminently within the purpose and policy of the ADA to
require employers who make hiring and firing decisions based on individuals'
uncorrected vision to clarify why having, for example, 20/100 uncorrected vision or
better is a valid job requirement. So long as an employer explicitly makes its decision
based on an impairment that in some condition is substantially limiting, it matters not
under the structure of the Act whether that impairment is widely shared or so rare that
it is seriously misunderstood. Either way, the individual has an impairment that is
covered by the purpose of the ADA, and she should be protected against irrational
stereotypes and unjustified disparate treatment on that basis.
I do not mean to suggest, of course, that the ADA should be read to prohibit
discrimination on the basis of, say, blue eyes, deformed fingernails, or heights of less
than six feet. Those conditions, to the extent that they are even "impairments," do not
substantially limit individuals in any condition and thus are different in kind from the
impairment in the case before us. While not all eyesight that can be enhanced by
glasses is substantially limiting, having 20/200 vision in one's better eye is, without
The one notable exception to our use of this method of interpretation occurred in
the decision in General Elec. Co. v. Gilbert, 429 U.S. 125, (1976), in which the majority
rejected an EEOC guideline and the heavy weight of authority in the federal courts of
appeals in order to hold that Title VII did not prohibit discrimination on the basis of
pregnancy-related conditions. Given the fact that Congress swiftly "overruled" that decision
in the Pregnancy Discrimination Act of 1978, I submit that the views expressed in the
dissenting opinions in that case should be followed today.
3

Labor and Employment Law

732

Sutton v. United Air Lines

xxi

treatment, a significant hindrance. Only two percent of the population suffers from such
myopia. Such acuity precludes a person from driving, shopping in a public store, or
viewing a computer screen from a reasonable distance. Uncorrected vision, therefore,
can be "substantially limiting" in the same way that unmedicated epilepsy or diabetes
can be. Because Congress obviously intended to include individuals with the latter
impairments in the Act's protected class, we should give petitioners the same
protection.
III
The Court does not disagree that the logic of the ADA requires petitioner's
visual impairment to be judged the same as other "correctable" conditions. Instead of
including petitioners within the Act's umbrella, however, the Court decides, in this
opinion and its companion, Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133
(1999) to expel all individuals who, by using "measures [to] mitigate [their]
impairments" are able to overcome substantial limitations regarding major life
activities. The Court, for instance, holds that severe hypertension that is substantially
limiting without medication is not a "disability,"ibid., and — perhaps even more
remarkably — indicates (directly contrary to the Act's legislative history, see supra, at
7) that diabetes that is controlled only with insulin treatments is not a "disability"
either.
The Court claims that this rule is necessary to avoid requiring courts to
"speculate" about a person's "hypothetical" condition and to preserve the Act's focus
on making "individualized inquiries" into whether a person is disabled. The Court also
asserts that its rejection of the general rule of viewing individuals in their unmitigated
state prevents distorting the scope of the Act's protected class to cover a "much higher
number" of persons than Congress estimated in its findings. And, I suspect, the Court
has been cowed by respondent's persistent argument that viewing all individuals in
their unmitigated state will lead to a tidal wave of lawsuits. None of the Court's
reasoning, however, justifies a construction of the Act that will obviously deprive many
of Congress' intended beneficiaries of the legal protection it affords.
The agencies' approach, the Court repeatedly contends, "would create a system
in which persons often must be treated as members of a group of people with similar
impairments, rather than individuals, [which] is both contrary to the letter and spirit of
the ADA." The Court's mantra regarding the Act's "individualized approach," however,
fails to support its holding. I agree that the letter and spirit of the ADA is designed to
deter decision making based on group stereotypes, but the agencies' interpretation of
the Act does not lead to this result. Nor does it require courts to "speculate" about
people's "hypothetical" conditions. Viewing a person in her "unmitigated" state simply
requires examining that individual's abilities in a different state, not the abilities of

Labor and Employment Law

xxii

733

Sutton v. United Air Lines

every person who shares a similar condition. It is just as easy individually to test
petitioners' eyesight with their glasses on as with their glasses off.5
Ironically, it is the Court's approach that actually condones treating individuals
merely as members of groups. That misdirected approach permits any employer to
dismiss out of hand every person who has uncorrected eyesight worse than 20/100
without regard to the specific qualifications of those individuals or the extent of their
abilities to overcome their impairment. In much the same way, the Court's approach
would seem to allow an employer to refuse to hire every person who has epilepsy or
diabetes that is controlled by medication, or every person who functions efficiently
with a prosthetic limb.
Under the Court's reasoning, an employer apparently could not refuse to hire
persons with these impairments who are substantially limited even with medication,
but that group-based "exception" is more perverse still. Since the purpose of the ADA
is to dismantle employment barriers based on society's accumulated myths and fears,
it is especially ironic to deny protection for persons with substantially limiting
impairments that, when corrected, render them fully able and employable. Insofar as
the Court assumes that the majority of individuals with impairments such as prosthetic
limbs or epilepsy will still be covered under its approach because they are substantially
limited "notwithstanding the use of a corrective device," I respectfully disagree as an
empirical matter. Although it is of course true that some of these individuals are
substantially limited in any condition, Congress enacted the ADA in part because such
individuals are not ordinarily substantially limited in their mitigated condition, but
rather are often the victims of "stereotypic assumptions not truly indicative of the
individual ability of such individuals to participate in, and contribute to, society." §
2(a)(7).
It has also been suggested that if we treat as "disabilities" impairments that may
be mitigated by measures as ordinary and expedient as wearing eyeglasses, a flood of
For much the same reason, the Court's concern that the agencies' approach would
"lead to the anomalous result" that courts would ignore "negative side effects suffered by
an individual resulting from the use of mitigating measures" is misplaced. It seems safe to
assume that most individuals who take medication that itself substantially limits a major life
activity would be substantially limited in some other way if they did not take the medication.
The Court's examples of psychosis, Parkinson's disease, and epilepsy certainly support this
presumption. To the extent that certain people may be substantially limited only when taking
"mitigating measures," it might fairly be said that just as contagiousness is symptomatic of
a disability because an individual's "contagiousness and her physical impairment each [may
result] from the same underlying condition," School Bd. of Nassau Cty. v. Arline, 480 U.S.
273, 282 (1987), side effects are symptomatic of a disability because side effects and a
physical impairment may flow from the same underlying condition.
5

Labor and Employment Law

734

Sutton v. United Air Lines

xxiii

litigation will ensue. The suggestion is misguided. Although vision is of critical
importance for airline pilots, in most segments of the economy whether an employee
wears glasses — or uses any of several other mitigating measures — is a matter of
complete indifference to employers. It is difficult to envision many situations in which
a qualified employee who needs glasses to perform her job might be fired — as the
statute requires — "because of" the fact that she cannot see well without them. Such
a proposition would be ridiculous in the garden-variety case. On the other hand, if an
accounting firm, for example, adopted a guideline refusing to hire any incoming
accountant who has uncorrected vision of less than 20/100 — or, by the same token,
any person who is unable without medication to avoid having seizures — such a rule
would seem to be the essence of invidious discrimination.
In this case the quality of petitioners' uncorrected vision is relevant only
because the airline regards the ability to see without glasses as an employment
qualification for its pilots. Presumably it would not insist on such a qualification unless
it has a sound business justification for doing so (an issue we do not address today).
But if United regards petitioners as unqualified because they cannot see well without
glasses, it seems eminently fair for a court also to use uncorrected vision as the basis
for evaluating petitioners' life activity of seeing.
Under the agencies' approach, individuals with poor eyesight and other
correctable impairments will, of course, be able to file lawsuits claiming discrimination
on that basis. Yet all of those same individuals can already file employment
discrimination claims based on their race, sex, or religion, and — provided they are at
least 40 years old — their age. Congress has never seen this as reason to restrict classes
of antidiscrimination coverage. Indeed, it is hard to believe that providing individuals
with one more antidiscrimination protection will make any more of them file baseless
or vexatious lawsuits. To the extent that the Court is concerned with requiring
employers to answer in litigation for every employment practice that draws distinctions
based on physical attributes, that anxiety should be addressed not in this case, but in
one that presents an issue regarding employers' affirmative defenses.
In the end, the Court is left only with its tenacious grip on Congress' finding
that "some 43,000,000 Americans have one or more physical or mental disabilities,"
§ 2(a)(1) — and that figure's legislative history extrapolated from a law review "article
authored by the drafter of the original ADA bill introduced in Congress in 1988." We
previously have observed that a "statement of congressional findings is a rather thin
reed upon which to base" a statutory construction. National Organization for Women,
Inc. v. Scheidler, 510 U.S. 249, 260 (1994). Even so, as I have noted above, I readily
agree that the agencies' approach to the Act would extend coverage to more than that
number of people (although the Court's lofty estimates may be inflated because they
do not appear to exclude impairments that are not substantially limiting). It is equally

Labor and Employment Law

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735

Sutton v. United Air Lines

undeniable, however, that "43 million" is not a fixed cap on the Act's protected class:
By including the "record of" and "regarded as" categories, Congress fully expected the
Act to protect individuals who lack, in the Court's words, "actual" disabilities, and
therefore are not counted in that number.
What is more, in mining the depths of the history of the 43 million figure —
surveying even agency reports that predate the drafting of any of this case's controlling
legislation — the Court fails to acknowledge that its narrow approach may have the
perverse effect of denying coverage for a sizeable portion of the core group of 43
million. The Court appears to exclude from the Act's protected class individuals with
controllable conditions such as diabetes and severe hypertension that were expressly
understood as substantially limiting impairments in the Act's Committee Reports —
and even, as the footnote in the margin shows, in the studies that produced the 43
million figure. Given the inability to make the 43 million figure fit any consistent
method of interpreting the word "disabled," it would be far wiser for the Court to
follow — or at least to mention — the documents reflecting Congress'
contemporaneous understanding of the term: the Committee Reports on the actual
legislation.
IV
Occupational hazards characterize many trades. The farsighted pilot may have
as much trouble seeing the instrument panel as the near sighted pilot has in identifying
a safe place to land. The vision of appellate judges is sometimes subconsciously
obscured by a concern that their decision will legalize issues best left to the private
sphere or will magnify the work of an already-overburdened judiciary. Although these
concerns may help to explain the Court's decision to chart its own course — rather than
to follow the one that has been well marked by Congress, by the overwhelming
consensus of circuit judges, and by the Executive officials charged with the
responsibility of administering the ADA — they surely do not justify the Court's
crabbed vision of the territory covered by this important statute.
Accordingly, although I express no opinion on the ultimate merits of petitioners'
claim, I am persuaded that they have a disability covered by the ADA. I therefore
respectfully dissent.

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Sutton v. United Air Lines

xxv

QUESTIONS FOR REFLECTION
1. When Congress gives an administrative agency the
power to issue regulations, those regulations have
virtually the same force as a statute passed by Congress
itself.
The Disability Act empowered the EEOC and
Departments of Justice and Transportation to issue
regulations, and each agency issued a regulation saying
that disability should be judged without regard to
possible mitigation. On what reasoning does the majority
in Sutton reject these regulations? How could one reply
to the Court's reasoning?
2. The majority in Sutton disregards legislative
history that explicitly addresses mitigation by arguing
that, when the text of a statute is unambiguous,
legislative history should not be consulted.
If a
statute is unambiguous, interpretation of its words
should be unnecessary; reasonable persons should agree on
their meaning.
Thus, if the majority holds to its
position that the statute is unambiguous, the majority
should not need to interpret any words or phrases in the
statute; certainly the majority should not seek guidance
as to the meaning of the statute in its legislative
history. Does the majority in fact hold to its position,
or does it consult legislative history or otherwise
interpret the words of the statute?

Ù

APPENDIX
Constitution and Statutes
Glossary

Excerpts from
the Constitution of the United States
and Various Statutes

The Constitution of the United States
Excerpts
Preamble
We the People of the United States . . . do ordain and establish this
Constitution for the United States of America.
Article III
Section 1. The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behavior....
Section 2. The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States....
Amendments
V
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.
IX
The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.
X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.

XIV
Section 1. All persons born or naturalized in the United States and subject to
the jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.

Americans with Disabilities Act
Excerpts
GENERAL PROVISIONS
Sec. 2. DEFINITIONS — As used in this Act
(1)

DISABILITY.

The term "disability" means, with respect to an

individual —
(A)

a physical or mental impairment that substantially limits one
or more major life activities of such individual;

(B)

a record of such an impairment; or

(C)

being regarded as having such an impairment (as described
in paragraph (3)).

(2) MAJOR LIFE ACTIVITIES.
(A)

IN GENERAL.

For purposes of paragraph (1), major life
activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating,
and working.

(B)

MAJOR BODILY FUNCTIONS. For purposes of paragraph (1), a

major life activity also includes the operation of a major
bodily function, including but not limited to, functions of the
immune system, normal cell growth, digestive, bowel,
bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.
(3)

REGARDED AS HAVING SUCH AN IMPAIRMENT.

For purposes of

paragraph (1)(C):
(A)

An individual meets the requirement of "being regarded as
having such an impairment" if the individual establishes that
he or she has been subjected to an action prohibited under this
Act because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is
perceived to limit a major life activity.

(B)

(4)

Paragraph (1)(C) shall not apply to impairments that are
transitory and minor. A transitory impairment is an
impairment with an actual or expected duration of six months
or less.

RULES OF CONSTRUCTION REGARDING THE DEFINITION OF DISABILITY.

The definition of "disability" in paragraph (1) shall be construed in
accordance with the following:
(A)

The definition of disability in this Act shall be construed in
favor of broad coverage of individuals under this Act, to the
maximum extent permitted by the terms of this Act.

(B)

The term "substantially limits" shall be interpreted
consistnetly with the findings and purposes of the ADA
Amendments Act of 2008.

(C)

An impairment that substantially limits one major life activity
need not limit other major life activities in order to be
considered a disability.

(D)

An impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when
active.

(E)
(i)

The determination of whether an impairment
substantially limits a major life activity shall be made
without regard to the ameliorative effects of
mitigating measures such as —
(I)

medication, medical supplies, equipment, or
appliances, low-vision devices (which do not
include ordinary eyeglasses or contact lenses),
prosthetics including limbs and devices,
hearing aids and cochlearn immplants or other
implanable hearing devices, mobility devices,
or oxygen therapy equipment and supplies;

(II)

use of assistive technology;

(III)

reasonable accommodations or auxiliary aids
or services; or

(IV)

learned behavioral or adaptive neurological
modifications.

(ii)

The ameliorative effects of mitigating measures of
ordinary eyeglasses or contact lenses shall be
considered in determining whether an impairment
substantially limits a major life activity.

(iii)

As used in this subparagraph —
(I)

the term "ordinary eyeglasses or contact
lenses" means lenses that are intended to fully
correct visual acuity or eliminate refractive
error; and

(II)

the term "low-vision devices" means devices
that magnify, enhance, or otherwise augment
a visual image.

Sec. 3. ADDITIONAL DEFINITIONS
As used in this Act:
(1)

AUXILIARY AIDS AND SERVICES.

The term "auxiliary aids and

services" includes —
(A)

qualified interpreters or other effective methods of making
aurally delivered materials available to individuals with
hearing impairments;

(B)

qualified readers, taped texts, or other effective methods of
making visually delibered materials available to individuals
with visual impairments;

(C)

acquisition or modification of equipment or devices; and

(D)

other similar services and actions.
T1TLE I — EMPLOYMENT

Sec. 101. DEFINITIONS — As used in this title:
(1)

COMMISSION. The term "Commission" means the Equal Employment
Opportunity Commission established by section 705 of the Civil
Rights Act of 1964.

(2)

COVERED ENTITY. The term "covered entity" means an employer,

employment agency, labor organization, or joint labor-management
committee.
(3)

DIRECT THREAT. The term "direct threat" means a significant risk to

the health or safety of others that cannot be eliminated by reasonable
accommodation.

(4)

EMPLOYEE. The term "employee" means an individual employed by
an employer. With respect to employment in a foreign country, such
term includes an individual who is a citizen of the United States.

(5)

EMPLOYER.

(6)

(A)

IN GENERAL. The term "employer" means a person engaged
in an industry affecting commerce who has 15 or more
employees for each working day in each of 20 or more
calendar weeks in the current or preceding calendar year, and
any agent of such person ... and any agent of such person.

(B)

EXCEPTIONS. The term "employer" does not include —

(i)

the United States, a corporation wholly owned by the
government of the United States, or an Indian tribe; or

(ii)

a bona fide private membership club (other than a
labor organization) that is exempt from taxation under
section 501(c) of the Internal Revenue Code of 1986.

ILLEGAL USE OF DRUGS —
(A)

IN GENERAL. The term "illegal use of drugs" means the use of

drugs, the possession or distribution of which is unlawful
under the Controlled Substances Act. Such term does not
include the use of a drug taken under supervision by a
licensed health care professional, or other uses authorized by
the Controlled Substances Act or other provisions of Federal
law.
(B)

(8)

DRUGS.

The term "drug" means a controlled substance, as
defined in schedules I through V of section 202 of the
Controlled Substances Act.

QUALIFIED INDIVIDUAL WITH A DISABILITY. The term "qualified

individual with a disability” means an individual with a disability
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual
holds or desires. For the purposes of this title, consideration shall be
given to the employer's judgment as to what functions of a job are
essential; and if an employer has prepared a written description
before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions of
the job.

(9)

ACCOMODATION.

REASONABLE

The

term "reasonable

accommodation" may include —
(A)

making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and

(B)

job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies,
the provision of qualified readers or interpreters, and other
similar accommodations for individuals with disabilities.

(10) UNDUE HARDSHIP.
(A)

IN GENERAL. The term "undue hardship" means an action
requiring significant difficulty or expense, when considered
in light of the factors set forth in subparagraph (B).

(B)

FACTORS TO BE CONSIDERED.

In determining whether an
accommodation would impose an undue hardship on a
covered entity, factors to be considered include —
(i)

the nature and cost of the accommodation needed
under this Act;

(ii)

the overall financial resources of the facility or
facilities involved in the provision of the reasonable
accommodation; the number of persons employed at
such facility; the effect on expenses and resources, or
the impact otherwise of such accommodation upon
the operation of the facility;

(iii)

the overall financial resources of the covered entity;
the overall size of the business of a covered entity
with respect to the number of its employees; the
number, type, and location of its facilities; and

(iv)

the type of operation or operations of the covered
entity, including the composition, structure, and
functions of the workforce of such entity; the
geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to
the covered entity.

Sec. 102. DISCRIMINATION.
(a)

GENERAL RULE. No covered entity shall discriminate against a

qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.
(b)

CONSTRUCTION. As used in subsection (e), the term "discriminate"

includes —
(1)

limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or
status of such applicant or employee because of the disability
of such applicant or employee;

(2)

participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered entity's
qualified applicant or employee with a disability to the
discrimination prohibited by this title (such relationship
includes a relationship with an employment or referral
agency, labor union, an organization providing fringe benefits
to an employee of the covered entity, or an organization
providing training and apprenticeship programs);

(3)

utilizing standards, criteria, or methods of administration —

(4)

(A)

that have the effect of discrimination on the basis of
disability; or

(B)

that perpetuate the discrimination of others who are
subject to common administrative control;

excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an
individual with whom the qualified individual is known to
have a relationship or association;

(5)
(A)

not making reasonable accommodations to the known
physical or mental limitations of an otherwise
qualified individual with a disability who is an
applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose
an undue hardship on the operation of the business of
such covered entity; or

(B)

(6)

using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test or other selection criteria,
as used by the covered entity, is shown to be job-related for
the position in question and is consistent with business
necessity; and
(7)

(d)

denying employment opportunities to a job applicant
or employee who is an otherwise qualified individual
with a disability, if such denial is based on the need of
such covered entity to make reasonable
accommodation to the physical or mental
impairments of the employee or applicant;

failing to select and administer tests concerning
employment in the most effective manner to ensure
that, when such test is administered to a job applicant
or employee who has a disability that impairs sensory,
manual, or speaking skills, such test results accurately
reflect the skills, aptitude, or whatever other factor of
such applicant or employee that such test purports to
measure, rather than reflecting the impaired sensory,
manual, or speaking skills of such employee or
applicant (except where such skills are the factors that
the test purports to measure).

MEDICAL EXAMINATIONS AND INQUIRIES.

(2)

(3)

PREEMPLOYMENT.

(A)

PROHIBITED EXAMINATION OR INQUIRY. Except as
provided in paragraph (3), a covered entity shall not
conduct a medical examination or make inquiries of
a job applicant as to whether such applicant is an
individual with a disability or as to the nature or
severity of such disability.

(B)

ACCEPTABLE INQUIRY.

A covered entity may make
preemployment inquiries into the ability of an
applicant to perform job-related functions.

EMPLOYMENT ENTRANCE EXAMINATION. A covered entity
may require a medical examination after an offer of
employment has been made to a job applicant and prior to the
commencement of the employment duties of such applicant,
and may condition an offer of employment on the results of
such examination, if —

(A)

all entering employees are subjected to such an
examination regardless of disability;

(B)

information obtained regarding the medical condition
or history of the applicant is collected and maintained
on separate forms and in separate medical files and is
treated as a confidential medical record, except that
—

(C)
(4)

(i)

ssupervisors and managers may be informed
regarding necessary restrictions on the work
or duties of the employee and necessary
accommodations;

(ii)

first aid and safety personnel may be
informed, when appropriate, if the disability
might require emergency treatment; and

(iii)

government officials investigating compliance
with this Act shall be provided relevant
information on request; and

the results of such examination are used only in
accordance with this title.

EXAMINATION AND INQUIRY.

(A)

PROHIBITED EXAMINATION AND INQUIRIES. A
covered entity shall not require a medical examination
and shall not make inquiries of an employee as to
whether such employee is an individual with a
disability or as to the nature or severity of the
disability, unless such examination or inquiry is
shown to be job-related and consistent with business
necessity.

(B)

ACCEPTABLE EXAMINATIONS AND INQUIRIES

(C)

REQUIREMENT.
Information obtained under
subparagraph (B) regarding the medical condition or
history of any employee are subject to the
requirements of subparagraphs (B) and (C) of
paragraph (3).

.A
covered entity may conduct voluntary medical
examinations, including voluntary medical histories,
which are part of an employee health program
available to employees at that work site. A covered
entity may make inquiries into the ability of an
employee to perform job-related functions.

Sec. 103 — DEFENSES
(a)

IN GENERAL. It may be a defense to a charge of discrimination under

this Act, that an alleged application of qualification standards, tests,
or selection criteria that screen out or tend to screen out or otherwise
deny a job or benefit to an individual with a disability has been
shown to job-related and consistent with business necessity, and such
performance cannot be accomplished by reasonable accommodation,
as required under this title.
(b)

QUALIFICATION STANDARDS. The term "qualification standards" may
include a requirement that an individual shall not pose a direct threat
to the health or safety of other individuals in the workplace.

(c)

QUALIFICATION STANDARDS AND TESTS RELATED TO UNCORRECTED
VISION. Notwithstanding section 3(4)(E)(ii), a covered entity shall

not use qualification standards, employment tests, or other selectiaon
criteria based on an individual's uncorrected vision unless the
standard, test,or other selection criteria, as used by the covered entity,
is shown to be job-rleated for the position in question and consistent
with business necessity.
Sec. 104. ILLEGAL USE OF DRUGS AND ALCOHOL
(a)

QUALIFIED INDIVIDUAL WITH A DISABILITY. For purposes of this title,

the term "qualified individual with a disability" shall not include any
employee or applicant who is currently engaging in the illegal use of
drugs, when the covered entity acts on the basis of such use.
(b)

RULES OF CONSTRUCTION.

Nothing in subsection (a) shall be
construed to exclude as a qualified individual with a disability an
individual who—
(1)

has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs,
or has otherwise been rehabilitated successfully and is no
longer engaging in such use;

(2)

is participating in a supervised rehabilitation, program and is
no longer engaging in such use; or

(3)

is erroneously regarded as engaging in such use, but is not
engaging in such use;

except that it shall not be a violation of this Act for a covered entity
to adopt or administer reasonable policies or procedures, including
but not limited to drug testing, designed to ensure that an individual
described in paragraph (1) or (2) is no longer engaging in the illegal
use of drugs.

(c)

(d)

AUTHORITY OF COVERED ENTITY. A covered entity —

(1)

may prohibit the illegal use of drugs and the use of alcohol at
the workplace by all employees

(2)

may require that employees shall not the under the influence
of alcohol or be engaging in the illegal use of drugs at the
workplace;

(3)

may require that employees behave in conformance with the
requirements established under the Drug-Free Workplace Act
of 1988;

(4)

may hold an employee who engages in the illegal use of
drugs or who is an alcoholic to the same qualification
standards for employment or job performance and behavior
that such entity holds other employees, even if any
unsatisfactory performance or behavior is related to the drug
use or alcoholism of such employee....

DRUG TESTING.

(1)

IN GENERAL. For purposes of this title, a test to determine the

illegal use of drugs shall not be considered a medical
examination.

Antitrust Acts
Excerpts
Sherman Act
Sec. 1. Every contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several States, or with
foreign nations, is declared to be illegal. Every person who shall make any such
contract or engage in any such combination or conspiracy hereby declared to be
illegal shall be deemed guilty of a felony, and on conviction thereof, shall be
punished by fine not exceeding one million dollars if a corporation, or, in any other
person, one hundred thousand dollars, or by imprisonment not exceeding three years,
or by both said punishments, in the discretion of the court.
Sec. 2. Every person who shall monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to monopolize any part of the
trade or commerce among the several States, or with foreign nations, shall be
punished by fine not exceeding one million dollars, or by imprisonment not
exceeding three years, or by both said punishments, in the discretion of the court.
Sec. 4. The several district courts of the United States are invested with
jurisdiction to prevent and restrain violations of this act; and it shall be the duty of
the several United States attorneys, in their respective districts, under the direction
of the Attorney General, to institute proceedings in equity to prevent and restrain
{i.e., issue injunctions against) such violations.
Sec. 7. Any person who shall be injured in his business or property by any
other person or corporation by reason of anything forbidden or declared to be
unlawful by this act, may sue therefor ... and recover three fold the damages by him
sustained, and the costs of suit, including a reasonable attorney's fee.
Clayton Act
Sec. 6. That the labor of a human being is not a commodity or article of
commerce. Nothing contained in the antitrust laws shall be construed to forbid the
existence and operation of labor ... organizations ... or to forbid or restrain individual
members of such organizations from lawfully carrying out the legitimate objects
thereof; nor shall such organizations, or the members thereof, be held or construed
to be illegal combinations or conspiracies in restraint of trade, under the antitrust
laws.
Sec. 16. That any person, firm, corporation, or association shall be entitled
to sue for and have injunctive relief ... against threatened loss or damage by a
violation of the antitrust laws....
Sec. 20. That no restraining order or injunction shall be granted by any court
of the United States, or a judge or the judges thereof, in any case between an
employer and employees, or between employers and employees, or between

employees, or between persons employed and persons seeking employment,
involving, or growing out of, a dispute concerning terms or conditions of
employment, unless necessary to prevent irreparable injury to property, or to a
property right, of the party making application, for which injury there is no adequate
remedy at law....
And no such restraining order or injunction shall prohibit any person or
persons, whether singly or in concert, from terminating any relation of employment,
or from ceasing to perform any work or labor, or from recommending, advising, or
persuading others by peaceful means so to do; or from attending at any place where
any such person or persons may lawfully be, for the purpose of peacefully obtaining
or communicating information, or from peacefully persuading any person to work
or to abstain from working; or from ceasing to patronize or to employ any party to
such dispute, or from recommending, advising, or persuading others by peaceful and
lawful means so to do; or from paying or giving to, or withholding from, any person
engaged in such dispute, any strike benefits or other moneys or things of value; or
from peaceably assembling in a lawful manner, and for lawful purposes; or from
doing any act or thing which might lawfully be done in the absence of such dispute
by any party thereto; nor shall any of the acts specified in this paragraph be
considered or held to be violations of any law of the United States.

Civil Rights Act of 1964, Title VII
as amended
Excerpts
DEFINITIONS

Sec. 701. For the purposes of this title —
(b) The term "employer" means a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar year, and any
agent of such person....
…
(k) The terms "because of sex" or "on the basis of sex" include, but are not
limited to, because of or on the basis of pregnancy, childbirth, or related medical
conditions; and women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employed-related purposes, including
receipt of benefits under fringe benefits programs, as other persons not so affected
but similar in their ability or inability to work....
DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN

Sec. 703. It shall be an unlawful employment practice for an employer —
(a)(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual, with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an employee,
because of such individual's race, color, religion, sex, or national origin.
(b) It shall be an unlawful employment practice for an employment agency
to fail or refuse to refer for employment, or otherwise to discriminate against, any
individual because of his race, color, religion, sex, or national origin, or to classify
or refer for employment any individual on the basis of his race, color, religion, sex,
or national origin.

(c) It shall be an unlawful employment practice for a labor organization —
(1) to exclude or to expel from its membership, or otherwise to discriminate
against, any individual because of his race, color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership or applicants for
membership, or to classify or fail or refuse to refer, for employment any individual,
in any way which would deprive or tend to deprive any individual of employment
opportunities, or would limit such employment opportunities or otherwise adversely
affect his status as an employee or as an applicant for employment, because of such
individual's race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to discriminate against an
individual in violation of this section.
(d) It shall be an unlawful employment practice for any employer, labor
organization, or joint labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training programs to discriminate
against any individual because of his race, color, religion, sex, or national origin in
admission to, or employment in, any program established to provide apprenticeship
or other training.
(e) Notwithstanding any other provision of this title, (1) it shall not be an
unlawful employment practice for an employer to hire and employ employees, for
an employment agency to classify, or refer for employment any individual, for a
labor organization to classify its membership or to classify or refer for employment
any individual, or for an employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or retraining programs to
admit or employ any individual in any such program, on the basis of his religion, sex,
or national origin in those certain instances where religion, sex, or national origin is
a bona fide occupational qualification reasonably necessary to the normal operation
of that particular business or enterprise, and (2) it shall not be an unlawful
employment practice for a school, college, university, or other educational institution
or institution of learning to hire and employ employees of a particular religion if
such school, college, university, or other educational institution or institution of
learning is, in whole or in substantial part, owned, supported, controlled, or managed
by a particular religion or by a particular religious corporation, association, or
society, or if the curriculum of such school, college, university, or other educational
institution or institution of learning is directed toward the propagation of a particular
religion.
(h) Notwithstanding any other provision of this title, it shall not be an
unlawful employment practice for an employer to apply different standards of
compensation, or different terms, conditions, or privileges of employment pursuant
to a bona fide seniority or merit system, or a system which measures earnings by
quantity or quality of production or to employees who work in different locations,
provided that such differences are not the result of an intention to discriminate
because of race, color, religion, sex, or national origin, nor shall it be an unlawful
employment practice for an employer to give and to act upon the results of any
professionally developed ability test provided that such test, its administration or

action upon the results is not designed, intended or used to discriminate because of
race, color, religion, sex or national origin. It shall not be an unlawful employment
practice under this title for any employer to differentiate upon the basis of sex in
determining the amount of the wages car compensation paid or to be paid to
employees of such employer of such employer is authorized by the provisions of
section 206(d) of Title 29 {the Equal Pay Act}.
(j) Nothing contained in this title shall be interpreted to require any employer,
employment agency, labor organization, or joint labor management committee
subject to this title to grant preferential treatment to any individual or to any group
because of the race, color, religion, sex, or national origin of such individual or group
on account of an imbalance which may exist with respect to the total number or
percentage of persons of any race, color, religion, sex, or national origin employed
by any employer, referred or classified for employment by any employment agency
or labor organization, admitted to membership or classified by any labor
organization, or admitted to, or employed in, any apprenticeship or other training
program, in comparison with the total number or percentage of persons of such race,
color, religion, sex, or national origin in any community, State, section, or other area,
or in the available work force in any community, State, section, or other area.
(k)(1)(A) An unlawful employment practice based on disparate impact is
established under this title only if —
(i) a complaining party demonstrates that a respondent uses a particular
employment practice that causes a disparate impact on the basis of race, color,
religion, sex, or national origin and the respondent fails to demonstrate that the
challenged practice is job related for the position in question and consistent with
business necessity; or
(ii) the complaining party makes the demonstration described in
subparagraph (C) {below} with respect to an alternative employment practice and
the respondent refuses to adopt such alternative employment practice.
(B) (i) With respect to demonstrating that a particular employment practice
causes a disparate impact as described in subparagraph (A)(i), the complaining party
shall demonstrate that each particular challenged employment practice causes a
disparate impact, except that if the complaining party can demonstrate to the court
that the elements of respondent's decisionmaking process are not capable of
separation for analysis, the decisionmaking process may be analyzed as one
employment practice.
(ii) If the respondent demonstrates that a specific employment practice does
not cause the disparate impact, the respondent shall not be required to demonstrate
that such practice is required by business necessity.
(C) The demonstration referred to by subparagraph (A)(ii) {above} shall be
in accordance with the law as it existed on Jane 4, 1989, with respect to the concept
of “alternative employment practice.”

(2) A demonstration that an employment practice is required by business
necessity may not be used as a defense against a claim of intentional discrimination
under this title.
(3) Notwithstanding any other provision of this title, a rule barring the
employment of an individual who currently and knowingly uses or possesses a
controlled substance, as defined in schedules I and II of section 102(6) of the
Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of
a drug taken under the supervision of a licensed health care professional, or any other
use or possession authorized by the Controlled Substances Act or any other provision
of Federal law, shall be considered an unlawful employment practice under this title
only if such rule is adopted or applied with an intent to discriminate because of race,
color, religion, sex, or national origin.
(l) It shall be an unlawful employment practice for a respondent, in
connection with the selection or referral of applicants or candidates for employment
or promotion, to adjust the scores of, use different cutoff scores for, or otherwise
alter the results of, employment-related tests on the basis of race, color, religion, sex,
or national origin.
(m) Except as otherwise provided in this title, an unlawful employment
practice is established when the complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating factor for any employment practice,
even though other factors also motivated the practice.
PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES

Sec. 706. (a) The Commission is empowered, as hereinafter provided, to
prevent any person from engaging in any unlawful employment practice as set forth
in section 703 or 704 of this title.
(b) Whenever a charge is filed by or on behalf of a person claiming to be
aggrieved, or by a member of the Commission, alleging that an employer,
employment agency, labor organization, or joint labor-management committee
controlling apprenticeship or other training or retraining, including on-the-job
training programs has engaged in an unlawful employment practice, the Commission
shall serve a notice of the charge (including the date, place and circumstances of the
alleged unlawful employment practice) on such employer, employment agency, labor
organization, or joint labor-management committee (hereinafter referred to as the
"respondent") within ten days, and shall make an investigation thereof. Charges shall
be in writing under oath or affirmation and shall contain such information and be in
such form as the Commission requires. Charges shall not be made public by the
Commission. If the Commission determines after such investigation that there is not
reasonable cause to believe that the charge is true, it shall dismiss the charge and
promptly notify the person claiming to be aggrieved and the respondent of its action.
In determining whether reasonable cause exists, the Commission shall accord
substantial weight to final findings and orders made by State or local authorities in
proceedings commenced under State or local law pursuant to the requirements of
subsections (c) and (d) of this section. If the Commission determines after such
investigation that there is reasonable cause to believe that the charge is true, the

Commission shall endeavor to eliminate such alleged unlawful employment practice
by informal methods of conference, conciliation, and persuasion. Nothing said or
done during and as a part of such informal endeavors may be made public by the
Commission, its officers or employees, or used as evidence in a subsequent
proceeding without the written consent of the persons concerned. Any person who
makes public information in violation of this subsection shall be fined not more than
$1000 or imprisoned for not more than one year, or both. The Commission shall
make its determination on reasonable cause as promptly as possible and, so far as
practicable, not later than one hundred and twenty days from the filing of the charge
or, where applicable under subsection (c) or (d) of this section, from the date upon
which the Commission is authorized to take action with respect to the charge.
(c) In the case of an alleged unlawful employment practice occurring in a
State, or political subdivision of a State, which has a State or local law prohibiting
the unlawful employment practice alleged and establishing or authorizing a State or
local authority to grant or seek relief from such practice or to institute criminal
proceedings with respect thereto upon receiving notice thereof, no charge may be
filed under subsection (b) or this section by the person aggrieved before the
expiration of sixty days after proceedings have been commenced under the State or
local law, unless such proceedings have been earlier terminated, provided that such
sixty-day period shall be extended to one hundred and twenty days during the first
year after the effective date of such State or local law. If any requirement for the
commencement of such proceedings is imposed by a State or local authority other
than a requirement of the filing of a written and signed statement of the facts upon
which the proceeding is based, the proceeding shall be deemed to have been
commenced for the purposes of this subsection at the time such statement is sent by
registered mail to the appropriate State or local authority.
(d) In the case of any charge filed by a member of the Commission alleging
an unlawful employment practice occurring in a State or political subdivision of a
State which has a State or local law prohibiting the practice alleged and establishing
or authorizing a State or local authority to grant or seek relief from such practice or
to institute criminal proceedings with respect thereto upon receiving notice thereof,
the Commission shall, before taking any action with respect to such charge, notify
the appropriate State or local officials and, upon request, afford them a reasonable
time, but not less than sixty days (provided that such sixty-day period shall be
extended to one hundred and twenty days during the first year after the effective day
of such State or local law), unless a shorter period is requested, to act under such
State or local law to remedy the practice alleged.
(e)(1) A charge under this section shall be filed within one hundred and
eighty days after the alleged unlawful employment practice occurred, and notice of
the charge (including the date, place and circumstances of the alleged unlawful
employment practice) shall be served upon the person against whom such charge is
made within then days thereafter, except that in a case of an unlawful employment
practice with respect to which the person aggrieved has initially instituted
proceedings with a State or local agency with authority to grant or seek relief from
such practice or to institute criminal proceedings with respect thereto upon receiving
notice thereof, such charge shall be filed by or on behalf of the person aggrieved
within three hundred days after the alleged unlawful employment practice occurred,

or within thirty days after receiving notice that the State or local agency has
terminated the proceedings under the State or local law, whichever is earlier, and a
copy of such charge shall be filed by the Commission with that State or local agency.
(2) For purposes of this section, an unlawful employment practice occurs
with respect to a seniority system that has been adopted for an intentionally
discriminatory purpose in violation of this title (whether or not that discriminatory
purpose is apparent on the face of the seniority provision), when the seniority
system is adopted, when an individual becomes subject to the seniority system, or
when a person aggrieved is injured by the application of the seniority system or
provision of the system.
(f)(1) If within thirty days after a charge is filed with the Commission or
within thirty days after expiration of any period of reference under subsection (c) or
(d) of this section, the Commission has been unable to secure from the respondent
a conciliation agreement acceptable to the Commission, the Commission may bring
a civil action against any respondent not a government, governmental agency, or
political subdivision named in the charge. In the case of a respondent which is a
government, governmental agency or political subdivision, if the Commission has
been unable to secure from the respondent a conciliation agreement acceptable to the
Commission, the Commission shall take no further action and shall refer the case to
the Attorney General, who may bring a civil action against such respondent in the
appropriate United States district court. The person or persons aggrieved shall have
the right to intervene in a civil action brought by the Commission or the Attorney
General in a case involving a government, governmental agency, or political
subdivision. If a charge filed with the Commission pursuant to subsection (b) of this
section is dismissed by the Commission, or if within one hundred and eighty days
from the filing of such charge or the expiration of any period of reference under
subsection (c) or (d) of this section, whichever is later, the Commission has not filed
a civil action under this section or the Attorney General has not filed a civil action
in a case involving a government, governmental agency, or political subdivision, or
the Commission has not entered into a conciliation agreement to which the person
aggrieved is a party, the Commission, or the Attorney General in a case involving a
government, governmental agency, or political subdivision, shall so notify the person
aggrieved and within ninety days after the giving of such notice a civil action may
be brought against the respondent named in the charge (A) by the person claiming
to be aggrieved or (B) if such a charge was filed by a member of the Commission,
by any person whom the charge alleges was aggrieved by the alleged unlawful
employment practice.
(g)(1) If the court finds that the respondent has intentionally engaged in or
is intentionally engaging in an unlawful employment practice charged in the
complaint, the court may enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action as may be appropriate, which
may include, but is not limited to, reinstatement or hiring of employees, with or
without back pay (payable by the employer, employment agency, or labor
organization, as the case may be, responsible for the unlawful employment practice),
or any other equitable relief as the court deems appropriate. Back pay liability shall
not accrue from a date more than two years prior to the filing of a charge with the
Commission. Interim earnings or amounts earnable with reasonable diligence by the

person or persons discriminated against shall operate to reduce the back pay
otherwise allowable.
(2)(A) No order of the court shall require the admission or reinstatement of
an individual as a member of a union, or the hiring, reinstatement, or promotion of
an individual as an employee, or the payment to him of any back pay, if such
individual was refused admission, suspended, or expelled, or was refused
employment or advancement or was suspended or discharged for any reason other
than discrimination on account of race, color, religion, sex, or national origin or in
violation of section 703 or 704 of this title.
(B) On a claim in which an individual proves a violation under section
703(m) and a respondent demonstrates that the respondent would have taken the
same action in the absence of the impermissible motivating factor, the court —
(i) may grant declaratory relief, injunctive relief (except as p r o v i d e d i n
clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only
to the pursuit of a claim under section 703(m); and
(ii) shall not award damages or issue an order requiring any admission,
reinstatement, hiring, promotion, or payment, described in subparagraph (A).

The Equal Pay Act of 1963
29 U.S.C. § 206(d)(1)
No employer having employees subject to any provisions of this section shall
discriminate, within any establishment in which such employees are employed,
between employees on the basis of sex by paying wages to employees in such
establishment at a rate less than the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar
working conditions, except where such payment is made pursuant to (i) a seniority
system; (ii) a merit system; (iii) a system which measures earnings by quantity or
quality of production; or (iv) a differential based on any other factor other than sex:
Provided, That an employer who is paying a wage rate differential in violation of this
subsection shall not, in order to comply with the provisions of this subsection, reduce
the wage rate of any employee.

National Labor Relations Act
Labor Management Relations Act
Excerpts
Sec. 1. The denial by some employers of the right of employees to organize
and the refusal by some employers to accept the procedure of collective bargaining
lead to strikes and other forms of industrial strife or unrest, which have the intent or
the necessary effect of burdening or obstructing commerce by (a) impairing the
efficiency, safety, or operation of the instrumentalities of commerce; (b) occurring
in the current of commerce; (c) materially affecting, restraining, or controlling the
flow of raw materials or manufactured or processed goods from or into the channels
of commerce, or the prices of such materials or goods in commerce; or (d) causing
diminution of employment and wages in such volume as substantially to impair or
disrupt the market for goods flowing from or into the channels of commerce.
The inequality of bargaining power between employees who do not possess
full freedom of association or actual liberty of contract and employers who are
organized in the corporate or other forms of ownership association substantially
burdens and affects the flow of commerce, and tends to aggravate recurrent business
depressions, by depressing wage rates and the purchasing power of wage earners in
industry and by preventing the stabilization of competitive wage rates and working
conditions within and between industries.
Experience has proved that protection by law of the right of employees to
organize and bargain collectively safeguards commerce from injury, impairment, or
interruption, and promotes the flow of commerce by removing certain recognized
sources of industrial strife and unrest, by encouraging practices fundamental to the
friendly adjustment of industrial disputes arising out of differences as to wages,
hours, or other working conditions, and by restoring equality of bargaining power
between employers and employees.
Experience has further demonstrated that certain practices by some labor
organizations, their officers, and members have the intent or the necessary effect of
burdening or obstructing commerce by preventing the free flow of goods in such
commerce through strikes and other forms of industrial unrest or through concerted
activities which impair the interest of the public in the free flow of such commerce.
The elimination of such practices is a necessary condition to the assurance of the
rights herein guaranteed.
It is declared to be the policy of the United States to eliminate the causes of
certain substantial obstructions to the free flow of commerce and to mitigate and
eliminate these obstructions when they have occurred by encouraging the practice
and procedure of collective bargaining and by protecting the exercise by workers of
full freedom of association, self-organization, and designation of representatives of
their own choosing, for the purpose of negotiating the terms and conditions of their
employment or other mutual aid or protection.

DEFINITIONS

Sec. 2. When used in this Act))
(2) The term "employer" includes any person acting as an agent of an
employer, directly or indirectly, but shall not include the United States or any wholly
owned Government corporation, or any Federal Reserve Bank, or any State or
political subdivision thereof, or any person subject to the Railway Labor Act, as
amended from time to time, or any labor organization (other than when acting as an
employer), or anyone acting in the capacity of officer or agent of such labor
organization.
(3) The term "employee" shall include any employee, and shall not be limited
to the employees of a particular employer, unless the Act explicitly states otherwise,
and shall include any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair labor practice,
and who has not obtained any other regular and substantially equivalent employment,
but shall not include any individual employed as an agricultural laborer, or in the
domestic service of any family or person at his home, or any individual employed
by his parent or spouse, or any individual having the status of an independent
contractor, or any individual employed as a supervisor, or any individual employed
by an employer subject to the Railway Labor Act, as amended from time to time, or
by any other person who is not an employer as herein defined.
(9) The term "labor dispute" includes any controversy concerning terms,
tenure or conditions of employment, or concerning the association or representation
of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms
or conditions of employment, regardless of whether the disputants stand in the
proximate relation of employer and employee.
(11) The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such action, if in connection
with the foregoing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
RIGHTS OF EMPLOYEES

Sec. 7. Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and shall also have the right
to refrain from any or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a)(3).

UNFAIR LABOR PRACTICES

Sec. 8. (a) It shall be an unfair labor practice for an employer))
(1) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7;
(2) to dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it:
Provided, That subject to rules and regulations made and published by the
Board pursuant to section 6, an employer shall not be prohibited from
permitting employees to confer with him during working hours without loss
of time or pay;
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in
any labor organization: Provided, That nothing in this Act, or in any other
statute of the United States, shall preclude an employer from making an
agreement with a labor organization (not established, maintained, or assisted
by any action defined in section 8(a) of this Act as an unfair labor practice)
to require as a condition of employment membership therein on or after the
thirtieth day following the beginning of such employment or the effective
date of such agreement, whichever is the later, (i) if such labor organization
is the representative of the employees as provided in section 9(a), in the
appropriate collective-bargaining unit covered by such agreement when
made, and (ii) unless following an election held as provided in section 9(e)
within one year preceding the effective date of such agreement, the Board
shall have certified that at least a majority of the employees eligible to vote
in such election have voted to rescind the authority of such labor organization
to make such an agreement: Provided further, That no employer shall justify
any discrimination against an employee for non-membership in a labor
organization (A) if he has reasonable grounds for believing that such
membership was not available to the employee on the same terms and
conditions generally applicable to other members, or (B) if he has reasonable
grounds for believing that membership was denied or terminated for reasons
other than the failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining
membership;
(4) to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this Act;
(5) to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 9(a).
(b) It shall be an unfair labor practice for a labor organization or its agents))
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7: Provided, That this paragraph shall not impair the
right of a labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein; or (B) an employer in the

selection of his representatives for the purposes of collective bargaining or
the adjustment of grievances;
(2) to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a)(3) or to discriminate against an
employee with respect to whom membership in such organization has been
denied or terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership;
(3) to refuse to bargain collectively with an employer, provided it is
the representative of his employees subject to the provisions of section 9(a);
(c) The expressing of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not constitute or
be evidence of an unfair labor practice under any of the provisions of this Act, if
such expression contains no threat of reprisal or force or promise of benefit.
(d) For the purposes of this section, to bargain collectively is the performance
of the mutual obligation of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect to wages, hours, and
other terms and conditions of employment, or the negotiation of an agreement or any
question arising thereunder, and the execution of a written contract incorporating any
agreement reached if requested by either party, but such obligation does not compel
either party to agree to a proposal or require the making of a concession: Provided,
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
modifications;
(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
lockout, 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 employees, and labor organizations by paragraphs (2), (3),
and (4) 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 any notice 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, but such loss of status for such employee shall
terminate if and when he is reemployed by such employer.
REPRESENTATIVES AND ELECTIONS

Sec. 9. Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Provided, That any individual
employee or a group of employees shall have the right at any time to present
grievances to their employer and to have such grievances adjusted, without the
intervention of the bargaining representative, as long as the adjustment is not
inconsistent with the terms of a collective-bargaining contract or agreement then in
effect: Provided further, That the bargaining representative has been given
opportunity to be present at such adjustment.
LIMITATIONS

Sec. 13. Nothing in this Act, except as specifically provided for herein, shall
be construed so as either to interfere with or impede or diminish in any way the right
to strike or to affect the limitations or qualifications on that right.
Sec. 14. (a) Nothing herein shall prohibit any individual employed as a
supervisor from becoming or remaining a member of a labor organization, but no
employer subject to this Act shall be compelled to deem individuals defined herein
as supervisors as employees for the purpose of any law, either national or local,
relating to collective bargaining.
(b) Nothing in this Act shall be construed as authorizing the execution or
application of agreements requiring membership in a labor organization as a
condition of employment in any State or Territory in which such execution or
application is prohibited by State or Territorial law.
SUITS BY AND AGAINST LABOR ORGANIZATIONS
Sec. 301. (a) Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce as defined
in this Act, or between any such labor organizations, may be brought in any district
court of the United States having jurisdiction of the parties, without respect to the
amount in controversy or without regard to the citizenship of the parties.
(b) Any labor organization which represents employees in an industry

affecting commerce as defined in this Act and any employee whose activities affect
commerce as defined in this Act shall be bound by the acts of its agents. Any such
labor organization may sue or be sued as an entity and in behalf of the employees
whom it represents in the courts of the United States. Any money judgment against
a labor organization in a district court of the United States shall be enforceable only
against the organization as an entity and against its assets, and shall not be
enforceable against any individual member or his assets.
SAVING PROVISION
Sec. 502. Nothing in this Act shall be construed to require an individual
employee to render labor or service without his consent, nor shall anything in this
Act be construed to make the quitting of his labor by an individual employee an
illegal act; nor shall any court issue any process to compel the performance by an
individual employee of such labor or service, without his consent; nor shall the
quitting of labor by an employee or employees in good faith because of abnormally
dangerous conditions of work at the place of employment of such employee or
employees be deemed a strike under this Act.

Norris-LaGuardia Act
Excerpts
Sec. 1. No court of the United States … shall have jurisdiction to issue any
restraining order or temporary or permanent injunction in a case involving or
growing out of a labor dispute, except in a strict conformity with the provisions of
this Act ….
Sec. 2. In the interpretation of this Act and in determining the jurisdiction
and authority of the courts of the United States ... the public policy of the United
States is hereby declared as follows:
Whereas under prevailing economic conditions, developed with the aid of
governmental authority for owners of property to organize in the corporate and other
forms of ownership association, the individual unorganized worker is commonly
helpless to exercise actual liberty of contract and to protect his freedom of labor, and
thereby to obtain acceptable terms and conditions of employment, wherefore, though
he should be free to decline to associate with his fellows, it is necessary that he have
full freedom of association, self-organization, and designation of representatives of
his own choosing, to negotiate the terms and conditions of his employment, and that
he shall be free from the interference, restraint, or coercion of employers of labor,
or their agents, in the designation of such representatives or in self-organization or
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection; therefore, the following definitions of, and limitations upon, the
jurisdiction and authority of the courts of the United States are hereby enacted.
Sec. 3. Any undertaking or promise, such as is described in this section …
is hereby declared to be contrary to the public policy of the United States, shall not
be enforceable in any court of the United States and shall not afford any basis for the
granting of legal or equitable relief by any such court, including specifically the
following:
Every undertaking or promise hereafter made, whether written or oral,
express or implied, constituting or contained in any contract or agreement of hiring
or employment between any individual, firm, company, association, or corporation,
and any employee or prospective employee of the same whereby
(a) Either party to such contract or agreement undertakes or promises not to
join, become, or remain a member of any labor organization or of any employer
organization; or
(b) Either party to such contract or agreement undertakes or promises that he
will withdraw from an employment relation in the event that he joins, becomes, or
remains a member of any labor organization or of any employer organization.

Sec. 4. No court of the United States shall have jurisdiction to issue any
restraining order or temporary or permanent injunction in any case involving or
growing out of any labor dispute to prohibit any person or persons participating or
interested in such dispute from doing, whether singly or in concert, any of the
following acts:
(a) Ceasing or refusing to perform any work or to remain in any relation of
employment;
(b) Becoming or remaining a member of any labor organization or of any
employer organization...;
(c) Paying or giving to, or withholding from, any person participating or
interested in such labor dispute, any strike or unemployment benefits or insurance,
or other moneys or things of value;
(d) By all lawful means aiding any person participating or interested in any
labor dispute who is being proceeded against in, or is prosecuting, any action or suit
in any court of the United States or of any State;
(e) Giving publicity to the existence of, or the facts involved in, any labor
dispute, whether by advertising, speaking, patrolling, or by any other method not
involving fraud or violence;
(f) Assembling peaceably to act or to organize to act in promotion of their
interests in a labor dispute;
(g) Advising or notifying any person of an intention to do any of the Acts
heretofore specified;
(h) Agreeing with other persons to do or not to do any of the acts heretofore
specified; and
(i) Advising, urging, or otherwise causing or inducing without fraud or
violence the acts heretofore specified, regardless of any such undertaking or promise
as is described in section 3 of this Act.
Sec. 5. No court of the United States shall have jurisdiction to issue a
restraining order or temporary or permanent injunction upon the ground that any of
the persons participating or interested in a labor dispute constitute or are engaged in
an unlawful combination or conspiracy because of the doing in concert of the acts
enumerated in section 4 of this Act.
…
Sec. 7. No court of the United States shall have jurisdiction to issue a
temporary or permanent injunction in any case involving or growing out of a labor
dispute ... except after hearing the testimony of witnesses in open court (with
opportunity for cross-examination) in support of the allegations of a complaint made
under oath, and testimony in opposition thereto, if offered, and except after findings
of fact by the court, to the effect —

(a) That unlawful acts have been threatened and will be committed unless
restrained or have been committed and will be continued unless restrained ….
(b) That substantial and irreparable injury to complainant's property will
follow;
(c) That as to each item of relief granted greater injury will be inflicted upon
complainant by the denial of relief than will be inflicted upon defendants by the
granting of relief;
(d) That complainant has no adequate remedy at law; and
(e) That the public officers charged with the duty to protect complainant's
property are unable or unwilling to furnish adequate protection.
Such hearing shall be held after due and personal notice thereof has been
given, in such manner as the court shall direct, to all known persons against whom
relief is sought, and also to the chief of those public officials of the county and city
within which the unlawful acts have been threatened or committed charged with the
duty to protect complainant's property: Provided, however, That if a complainant
shall also allege that, unless a temporary restraining order shall be issued without
notice, a substantial and irreparable injury to complainant's property will be
unavoidable, such a temporary restraining order may be issued upon testimony under
oath, sufficient, if sustained, to justify the court in issuing a temporary injunction
upon a hearing after notice. Such a temporary restraining order shall be effective for
no longer than five days and shall become void at the expiration of said five days....
…
Sec. 11. In all cases arising under this Act in which a person shall be charged
with contempt in a court of the United States ... the accused shall enjoy the right to
a speedy and public trial by an impartial jury of the State and district wherein the
contempt shall have been committed....
…
Sec. 13. When used in this Act, and for the purposes of this Act
(a) A case shall be held to involve or to grow out of a labor dispute when the
case involves persons who are engaged in the same industry, trade, craft, or
occupation; or have direct or indirect interests therein; or who are employees of the
same employer; or who are members of the same or an affiliated organization of
employers or employees; whether such dispute is (1) between one or more employers
or associations of employers and one or more employees or associations of
employees; (2) between one or more employers or associations of employers and one
or more employers or associations of employers; or (3) between one or more
employees or associations of employees and one or more employees or associations
of employees; or when the case involves any conflicting or competing interests in a
"labor dispute" ... of "persons participating or interested" therein....

(b) A person or association shall be held to be a person participating or
interested in a labor dispute if relief is sought against him or it, and if he or it is
engaged in the same industry, trade, craft, or occupation in which such dispute
occurs, or has a direct or indirect interest therein, or is a member, officer, or agent
of any association composed in whole or in part of employers or employees engaged
in such industry, trade, craft, or occupation.
(c) The term "labor dispute" includes any controversy concerning terms or
conditions of employment, or concerning the association or representation of persons
in negotiating, fixing, maintaining, changing, or seeking to arrange terms or
conditions of employment, regardless of whether or not the disputants stand in the
proximate relation of employer and employee.
...
Sec. 15. All Acts and parts of Acts in conflict with the provisions of this Act
are hereby repealed.

Ù

Glossary

A Glossary of Legalisms
The following definitions are written for non-law students. The definitions
are accurate, but not always complete. They are drawn from Ballentine's Law
Dictionary, 3d ed.(1969); Bryan A. Garner, A Dictionary of Modern Legal Usage
(Oxford Univ. Press, 1987); as well as the author's experience. Most of the examples
are the author's.
alter ego: literally, "the other I," "the other self." In Labor Law, the term usually
refers to a new business that is substantially identical (same owner, same product,
etc.) to one that has just closed, the purpose being to evade the duty to bargain with
a union. "Jesse's Tours," which opened a mile away from and a month after (1) the
union won the right to represent the employees of "Jesse's Junkets" and (2) Jesse
closed the latter, was the latter's alter ego; in consequence, Jesse was obliged to
bargain with the union regarding the terms and conditions of employment of the
employees of the former.
ab initio (ab i-NISH-ç-ô): from the beginning. A trusteeship imposed for illegal
reasons is void ab initio.
a fortiori (â-for-she-ARE-ç): literally, "from the stronger"; by the force of logic; for
a stronger reason. Who would steal from a friend a fortiori would steal from a
stranger.
Death, be not proud, though some have called thee
Mighty and dreadful, for thou art not so;
For those whom thou think'st thou doest overthrow
Die not, poor Death; nor yet canst thou kill me.
From rest and sleep, which but they pictures be,
Much pleasure, then from thee much more must flow ....

—John Donne, Holy Sonnets. Annunciation x
amicus curiae (ah-ME-kus CURE-ç-î) (pl. amici (a-ME-ki) curiae): literally, "friend
of the court"; a party who has no direct stake in the outcome of a case but files a brief
with a court. Studying cases in labor and employment law, one finds amicus curiae
briefs filed by the AFL-CIO, the American Civil Liberties Union, the Business
Roundtable, the Equal Employment Advisory Council, the NAACP Legal Defense
Fund, the NOW Legal Defense Fund, the U.S. Chamber of Commerce, etc.
appellant: the party who lost in the court below and is seeking to reverse the
judgment of that court. Suppose Jones sues Smith. In the trial court, the name of the
case is Right v. Wrong; Right is the plaintiff and Wrong is the defendant. Suppose
Right wins and Wrong appeals. In the appellate court, the name of the case might
change to Wrong v. Right; Wrong is the appellant, and Right is the respondent.
Suppose, instead, that Wrong wins in the trial court and Right appeals. In the
appellate court, the name of the case would remain Right v. Wrong; Right is the
appellant, and Wrong is the respondent. If the decision of the appellate court is
appealed to a still higher court, the same process occurs again.
appellee: the party who won in the court below and who is defending the judgment
of that court.

arguendo: for the sake of argument only. "My client was in Chicago when the
victim was murdered," argued the defendant's attorney; "but assuming arguendo that
he was present at the scene of the murder, he could not have stabbed her with this
knife because his arm was broken."
case at bar: the case presently being decided. Synonyms include the "case at hand,"
the "instant case," the "present case," and (confusingly) "this case."
cause of action: a legal claim; the grounds that entitled one person to obtain legal
relief against another. "Tom, Tom, the piper's son/ Stole a pig and away he run/ The
pig was eat and Tom was beat/ And Tom went crying down the street." The owner
of the pig had a cause of action against Tom.
caveat (KA-vç-at): literally, "let him beware"; therefore, a warning. "My advice to
students is that they should always do the assigned reading before class, with one
caveat: they should also take care of their health by sleeping enough."
certiorari (sir-sure-ARE-ç): a writ or order in which the U.S. Supreme Court agrees
to allow a party who has lost in a lower court to present one's case to the Supreme
Court. The writ of certiorari is discretionary; in labor cases, there is no right of
appeal to the Supreme Court. One may file a petition for a writ of certiorari and, if
four Justices of the Court vote to hear the case, the writ is granted.
condition precedent (pre-SÇ-dent): a condition (or event) that must occur before an
obligation (such as a contract) arises. On September 1st, A agreed to pay B $50 if
B would ride a tray down Libe Slope during a blizzard. The next day, B rode a tray
down the Slope and demanded the money: whereupon A said, "I owe you nothing.
There was no blizzard today; therefore, the condition precedent to my obligation has
not occurred."
court of equity: a court that can issue an injunction. Until at least the 1930s, the
judicial systems of most states and of the federal government were bifurcated.
Depending on the nature of the plaintiff's claim, a case went to a "court of law" or
a "court of equity." Only a court of equity could issue injunctions. (The origin of
this dual structure was the judicial system of medieval England, in which courts of
law were the king's courts and courts of equity were ecclesiastical courts.) Today
nearly all American judicial systems are unified with respect to law and equity
(though special courts remain for specific purposes, e.g., family courts).
damnum absque injuria (DAM-num AB-skay in-JUR-ç-ah): damage without legal
injury. When Mary returned the engagement ring that Harry had given her, it cut
him to the quick but was damnum absque injuria.
de facto: in fact (as distinguished from de jure, q.v.). Public schools in the North are
often segregated de facto because of housing patterns and the desire for
neighborhood schools.
defendant: the party in court who is accused of having done something wrong to the
party who brought the case

defendant in error: an older term for the appellee, q.v.
de jure: by law (as distinguished from de facto, q.v.). In the past, Southern public
schools were commonly segregated de jure.
de minimus: too small to matter; trifling. The contract called for the seller to deliver
10,000 trees, in exchange for which the buyer agreed to pay $500,000. The seller
delivered 9,999 trees. This de minimus difference may have justified the buyer's
withholding $50, but did not justify the buyer's renouncing the contract.
dictum (pl. dicta): a statement by a court on an issue not necessary to the holding of
the case; an unnecessary statement. The lower federal courts are not technically
bound by dicta in the opinions of the Supreme Court, but one is an adventurous trial
judge who ignores them.
en banc: decided by all of the judges of the court, rather than by a panel of the
judges. A federal Circuit Court of Appeals may be comprised of 5 to 10 or more
judges. They normally decide cases in panels of three judges, and a decision of a
panel is binding precedent on subsequent panels. Occasionally, however, all of the
judges of the court hear a case and, sitting en banc, they may overrule a panel's
decision. The U.S. Supreme Court always sits en banc.
equity: see "court of equity" in this glossary.
ex parte: in the absence of one of the parties to the case. Some courts will issue an
ex parte restraining order against a strike, relying on the employer's representations
and without hearing from the union.
expressio unius est exclusio alterius: the expression of one thing implies the
exclusion of another thing. If a statute states a rule of law as well as a list five
exceptions to the rule, it is assumed that no further exceptions were intended.
id.: abbreviation for idem. Used in legal writing as a citation meaning "the same as
the previous citation. This court has held that birds can fly. Right v. Wrong, 123
F.2d 456 (99th Cir. 1999). However, as Justice Serçan has noted, "The penguin
can't." Id. at 789.
inclusio unius est exclusio alterius: the inclusion of one thing implies the exclusion
of other things. If a statute states a general rule and lists three exceptions, the
principle of inclusio unius est exclusio alterius suggests that no further exceptions
were intended.
infra: below, usually in the same document. The term supra is defined infra.
in limine (in LIM-in-ç): at the outset. Let us agree in limine not to condemn each
other for the arguments we make in class.
in pari materia (in-pear-ç ma-TARE-ç-ah): in relation to the same matter or subject;
having due regard for related issues. Statutes on the same subject must be read in
pari materia.

in point: see "on point" in this glossary
inter alia (inter Â-lee-ah): among other things. This glossary contains, inter alia,
some bad jokes.
in terrorem: by way or warning or intimidation; tending to inspire fear or dread. A
no-contest clause in a will, which provides that anyone who contests the validity of
the will is automatically disinherited, operates in terrorem and should be construed
narrowly.
ipse dixit: literally," he himself said it"; thus, a statement made but not supported;
an arbitrary claim. Never let your adversary get away with an ipse dixit; always
insist that a claim be supported by evidence, authority, or argument.
issue: (1) a point of disagreement. Tom wanted pizza for dinner, and Jerry wanted
Chinese. The issue was, what shall Tom and Jerry eat for dinner? (2) offspring.
Huey, Dewey, and Louie are the issue of issue of Donald's sister, Della.
judicial notice: a legal doctrine that allows a judge of a court (or a member of any
other sort of tribunal) to rely on a fact even though the parties to the case have not
introduced evidence of that fact. Judicial notice is appropriate for facts that are
common knowledge, e.g., the time the sun rose in Ithaca, New York on June 21st,
and for other facts that are within the knowledge of a person in the judge's position,
e.g., the date on which a paper was filed with the court.
malum in se: evil in itself; refers to an act so obviously bad that everyone knows it
is bad. This state needs no statute against torture to make it a crime because torture
is malum in se.
mutatis mutandis: with appropriate but unimportant changes. The President's
criticism of the Senate applied, mutatis mutandis, to the House of Representatives.
on point or in point: apposite; pertinent; dealing with or discussing the same issue
as the issue under consideration. A precedent on point controls the outcome of the
issue at hand.
per curiam (per-CURE-ç-um): literally, "by the court"; used to refer to an opinion not
signed by an individual judge. Per curiam opinions are often brief.
per se: in or by itself. Losing a leg is per se disabling to a soccer player.
plaintiff: the party who complains in court to have been wronged by some other
party.
plaintiff in error: an older term for the appellant, q.v.

police power: the power of the government to administer the community. This term
is broader than the word "police" suggests to a modern reader; the police power
extends to areas beyond the responsibility of a police officer. A better sense of the
term can be seen in the military phrase, "to police an area," which means to make the
area clean and orderly. The scope of the police power is suggested by the etymology
of the word "police," which derives from the Greek word polis, meaning city or
political community. Polis is also the source of our word "policy."
precedent on point: see "on point" in this glossary.
prima facie (PRY-mah FÂ-shah; PREE-mah FAH-she): literally, "at first view."
Prima facie case: (1) The ultimate facts which a plaintiff must prove in order to win
relief; the elements of a claim. If the plaintiff proves a prima facie case, the plaintiff
will win unless the defendant proves a defense. (2) The evidence that establishes the
existence of the ultimate facts or elements of a claim. The plaintiff's prima facie
case failed because her evidence on a crucial element of her claim was unbelievable.
pro tanto: literally, "for so much"; thus, to the extent that. Twenty months ago, the
employer discharged a worker because of the latter's concerted activity. The worker
had been earning $2,000 per month. On first inspection, therefore, the employer
owes the worker back pay in the amount of $40,000. But the worker was ill and out
of the labor market for two months; thus, even if she had not been unlawfully
discharged, she would not heave earned $4,000. In addition, for 4 months she held
a job paying $1,500 per month (= $6,000). The amount due the worker must be
reduced pro tanto (in this case, by $10,000).
quid pro quo: literally, "this for that"; thus, a thing which is exchanged for
something else. Arbitration is the quid pro quo for a no-strike clause.
respondeat superior (re-SPON-dç-at superior): an employer is responsible for the
wrongful acts of one's employee. When Jane, in the course of making a scheduled
delivery, negligently drove the Ives Co.'s truck over my big toe, Ives was liable to
me by virtue of respondeat superior.
sine qua non (SÇ-nah kwa non) literally, "without which it is not"; a necessary
prerequisite. Regular attendance to lectures is a sine qua non of success in this
course.
stare decisis (STAR-ç dç-SIGH-sus): the doctrine of precedent. A court is obliged by
stare decisis to follow its previous decisions.
sua sponte: by itself; on its own motion; without being asked to. Although both
parties were willing to go to trial, the court dismissed the case sua sponte.
sub nom.: abbreviation of sub nomine, which means under the name of. The case of
Round v. About was decided by the appellate court sub nom. Back v. Forth.
sub judice (sub jew-DÇ-see): presently under consideration by this court. The case
of Right v. Wrong must be distinguished from the case sub judice.

sui generis (SUE-ç generous) literally, “of its own kind” or self generating; thus,
unique. Labor law is neither tort nor contract, but sui generis.
supra: above, usually in the same document. The term infra is defined supra.
tort: a violation of a duty that is imposed by law (as opposed to a duty imposed by
contract) but is not a crime. Negligence, trespass to property, and battery are torts.
vel non: or not. The liability vel non of the employer turns on the supervisor's
knowledge.
writ of certiorari: see "certiorari" in this glossary.

Ù