Carey v. Westinghouse Electric Corporation

• Citation: 375 U.S. 261,84 S.Ct. 401,11 L.Ed.2d 320
• Decision Date: 06 January 1964
• Docket Number: P,No. 21,AFL-CI,21
• Parties: James B. CAREY, as President of the International Union of Electrical, Radio and Machine Workers,etitioner, v. WESTINGHOUSE ELECTRIC CORPORATION
• Court: United States Supreme Court

375 U.S. 261

84 S.Ct. 401

11 L.Ed.2d 320

James B. CAREY, as President of the International Union of Electrical, Radio and Machine Workers, AFL-CIO, Petitioner,

v WESTINGHOUSE ELECTRIC CORPORATION.

No. 21.

Argued Dec. 11 and 12, 1963.

Decided Jan. 6, 1964.

Benjamin C. Sigal, Washington, D.C., argued the cause for petitioner. With him on the briefs were David S. Davidson, Washington, D.C., and Isadore Katz, New York City.

John F. Hunt, Jr., New York City, for respondent.

Archibald Cox, Sol. Gen., for the United States, as amicus curiae, by special leave of Court.

Mr. Justice DOUGLAS delivered the opinion of the Court.

The petitioner union (IUE) and respondent employer (Westinghouse) entered into a collective bargaining agreement covering workers at several plants including one where the present dispute occurred. The agreement states that Westinghouse recognizes IUE and its locals as exclusive bargaining representatives for each of those units for which IUE or its locals have been certified by the National Labor Relations Board as the exclusive bargaining representative; and the agreement lists among those units for which IUE has been certified a unit of 'all production and maintenance employees' at the plant where the controversy arose, 'but excluding all salaried technical * * * employees.' The agreement also contains a grievance procedure for the use of arbitration in case of unresolved disputes, including those involving the 'interpretation, application or claimed violation' of the agreement.

IUE filed a grievance asserting that certain employees in the engineering laboratory at the plant in question, represented by another union, Federation, which had been certified as the exclusive bargaining representative for a unit of 'all salaried, technical' employees, excluding 'all production and maintenance' employees, were performing production and maintenance work. Westinghouse refused to arbitrate on the ground that the controversy presented a representation matter for the National Labor Relations Board. IUE petitioned the Supreme Court of New York for an order compelling arbitration. That court refused. The Appellate Division affirmed, one judge dissenting, 15 A.D.2d 7, 221 N.Y.S.2d 303. The Court of Appeals affirmed, one judge dissenting, holding that the matter was within the exclusive jurisdiction of the Board since it involved a definition of bargaining units. 11 N.Y.2d 452, 230 N.Y.S.2d 703, 184 N.E.2d 298. The case is here on certiorari. 372 U.S. 957, 83 S.Ct. 1012, 10 L.Ed.2d 10.

We have here a so-called 'jurisdictional' dispute involving two unions and the employer. But the term 'jurisdictional' is not a word of a single meaning. In the setting of the present case this 'jurisdictional' dispute could be one of two different, though related, species: either—(1) a controversy as to whether certain work should be performed by workers in one bargaining unit or those in another; or (2) a controversy as to which union should represent the employees doing particular work. If this controversy is considered to be the former, the National Labor Relations Act (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) does not purport to cover all phases and stages of it. While § 8(b)(4) (D) makes it an unfair labor practice for a union to strike to get an employer to assign work to a particular group of employees rather than to another,¹ the Act does not deal with the controversy anterior to a strike nor provide any machinery for resolving such a dispute absent a strike. The Act and its remedies for 'jurisdictional' controversies of that nature come into play only by a strike or a threat of a strike. Such conduct gives the Board authority under § 10(k) to resolve the dispute.²

Are we to assume that the regulatory scheme contains a hiatus, allowing no recourse to arbitration over work assignments between two unions but forcing the controversy into the strike stage before a remedy before the Board is available? The Board, as admonished by § 10(k),³ has often given effect to private agreements to settle disputes of this character;⁴ and that is in accord with the purpose as stated even by the minority spokesman in Congress ⁵—'that full opportunity is given the parties to reach a voluntary accommodation without governmental intervention if they so desire.' 93 Cong.Rec. 4035; 2 Leg. Hist. L.M.R.A. (1947) 1046. And see National Labor Relations Board v. Radio and Television Broadcast Engineers Union, Local 1212 etc., 364 U.S. 573, 577, 81 S.Ct. 330, 5 L.Ed.2d 302.

As Judge Fuld, dissenting below, said: 'The underlying objective of the national labor laws is to promote collective bargaining agreements and to help give substance to such agreements through the arbitration process.' 11 N.Y.2d 452, 458, 230 N.Y.S.2d 703, 706, 184 N.E.2d 298.

Grievance arbitration is one method of settling disputes over work assignments; and it is commonly used, we are told. To be sure, only one of the two unions involved in the controversy has moved the state courts to compel arbitration. So unless the other union intervenes, an adjudication of the arbiter might not put an end to the dispute. Yet the arbitration may as a practical matter end the controversy or put into movement forces that will resolve it. The case in its present posture is analogous to Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 75 S.Ct. 845, 99 L.Ed. 1155, where a railroad and two unions were disputing a jurisdictional matter, when the National Railroad Adjustment Board served notice on the railroad and one union of its assumption of jurisdiction. The railroad, not being able to have notice served on the other union, sued in the courts for relief. We adopted a hands-off policy, saying, 'Railroad's resort to the courts has preceded any award, and one may be rendered which could occasion no possible injury to it.' Id., at 373, 75 S.Ct., at 850.

Since § 10(k) not only tolerates but actively encourages voluntary settlements of work assignment controversies between unions, we conclude that grievance procedures pursued to arbitration further the policies of the Act.

What we have said so far treats the case as if the grievance involves only a work assignment dispute. If, however, the controversy be a representational one, involving the duty of an employer to bargain collectively with the representative of the employees as provided in § 8(a)(5),⁶ further considerations are necessary. Such a charge, made by a union against the employer, would, if proved, be an unfair labor practice, as § 8(a)(5) ex- pressly states. Or the unions instead of filing such a charge might petition the Board under § 9(c)(1) to obtain a clarification of the certificates they already have from the Board; and the employer might do the same.

Thus in Kennametal, Inc., 132 N.L.R.B. 194, a union was certified to represent 'production and maintenance employees' excluding, among others, 'technical' and 'laboratory' employees. It filed a motion for clarification of its certificates, contending that certain employees in the laboratory were 'an accretion to the existing certified production and maintenance unit and are not embraced in the classification of laboratory employees excluded from the established unit.' Id., at 196—197. The employer contended that the laboratory operation in question was still in the research and development stage. The Board found that some of the employees in question were performing production rather than experimental laboratory work and constituted an accretion to the existing unit; and it clarified the certification by specifically including those employees in the production and maintenance unit. What a union can do, an employer can do, as evidenced by numerous Board decisions. See Western Cartridge Co., 134 N.L.R.B. 67; Blaw-Knox Co., 135 N.L.R.B. 862; Lumber & Millwork Industry Labor Committee, 136 N.L.R.B. 1083.

If this is truly a representation case, either IUE or Westinghouse can move to have the certificate clarified. But the existence of a remedy before the Board for an unfair labor practice does not bar individual employees from seeking damages for breach of a collective bargaining agreement in a state court, as we held in Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246. We think the same policy considerations are applicable here; and that a suit either in the federal courts, as provided by § 301(a) of the Labor Management Relations Act of 1947 (61 Stat. 156, 29 U.S.C. § 185(a); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972), or before such state tribunals as are authorized to act (Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483; Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593) is proper, even though an alternative remedy before the Board is available, which, if invoked by the employer, will protect him.

The policy considerations behind Smith v. Evening News Assn., supra, are highlighted here by reason of the blurred line that often exists between work assignment disputes and controversies over which of two or more unions is the appropriate bargaining unit. It may be claimed that A and B, to whom work is assigned as 'technical' employees, are in fact 'production and maintenance' employees; and if that charge is made and sustained the Board, under the decisions already noted, clarifies the certificate. But IUE may claim that when the work was assigned to A and B, the collective agreement was violated because 'production and maintenance' employees, not 'technical' employees, were entitled to it. As noted, the Board clarifies certificates where a certified union seeks to represent additional employees; but it will not en ertain a motion to clarify a certificate where the union merely seeks additional work for employees already within its unit. See General Aniline & Film Corp., 89 N.L.R.B. 467; ...