1 With the modification of the shape (see text footnote 3), the parties to the New York Port agreement also negotiated ordering procedures. These procedures specified the day and hour gangs were to be provided with work assignments. They required notice for work on (1) Sunday, by 3 p.m. on Friday, unless the gang worked on Saturday in which case notice was required by 3 p.m. on that day; (2) Monday, by 4 p.m. on Friday; and (3) Tuesday through Saturday, by 4 p.m. the previous day. Gangs needed for nightwork from Monday through Saturday were to be notified_not_later than 3 p.m. of the day to be worked, on Sunday, by 3 p.m. Friday. Provisions for work on the day following a legal holiday were similar to those for Sunday

Dependent wives:

life insurance-$375.

Monday callouts-notice was required before the day of rest. Because o the uncertainty connected with maritime scheduling, provision was made for cancellation of the job orders before specified hours on the days to be worked.

2 Also applicable to widows of pensioners, if they were entitled to widows' benefits from the pension fund, and widows and dependent children of deceased employees for the balance of the insured year, with like coverage extended for the next calendar year if deceased employee had at least 700 man-hours to his credit prior to his death.

Significant Decisions in Labor Cases*

Labor Relations

Refusal To Bargain. The U.S. Supreme Court held that an employer's unilateral change in conditions of employment which are under negotiation, without first consulting the union, may be held a violation of the Labor Management Relations Act even without a finding of subjective bad faith.

The employer in this case, during the course of collective bargaining, unilaterally announced a change in sick leave policy, granted numerous merit wage increases, and instituted a new system of automatic wage increases. He contended that these actions did not violate his obligation to bargain collectively on two grounds: first, that the unilateral changes occurred after a bargaining impasse; and second, that a finding of refusal to bargain must be predicated on a determination of subjective bad faith at the bargaining table. The National Labor Relations Board rejected both contentions. The U.S. Court of Appeals did not › question the first finding of fact; however, it reversed the NLRB's finding that the employer had not bargained in good faith.

On appeal by the NLRB, the Supreme Court found that the duty to bargain, defined in section 8(d) of the LMRA as the duty to "meet . . . and confer in good faith with respect to wages, hours, and other terms and conditions of employment,' may be violated without a general failure of subjective good faith. The Court held that there is no occasion to consider the issue of good faith if a party has refused "to negotiate in fact" on any of the mandatory subjects of section 8(d). The Court further held that the employer's unilateral change in conditions of employment under negotiation was a circumvention of the duty to negotiate which frustrated good-faith bargaining as effectively as a flat refusal.

643978-62- -5

Discussing in detail the employer's three unilateral actions, the Court concluded that the NLRB can prohibit conduct which directly obstructs the process of negotiation or which indicates a state of mind opposed to reaching an agreement. Because the employer's actions amounted to a refusal to negotiate about the affected conditions of employment and necessarily obstructed bargaining, they supported a finding of unfair labor practices regardless of the employer's subjective state.

The Court noted, however, that it did not preclude the possibility of circumstances which would excuse or justify unilateral action.

Federal-State Jurisdiction. On the same day, the Court ruled 2 that a State court's contempt conviction of an attorney who tried to test its jurisdiction over picketing was contrary to the due process requirements of the 14th Amendment. The Court based its decision on the ground that the attorney was not given a hearing at which he might have been able to establish that the State court had acted in a field exclusively reserved by Congress for the NLRB.

The petitioning attorney represented a local of the International Longshoreman's Association in a labor dispute in which the employer sought and obtained from an Ohio State court an ex parte injunction against peaceful picketing. The petitioner asked for a hearing, but none was granted. At the time the injunction was granted, a union charge against the employer alleging refusal to bargain was pending before the NLRB. The attorney advised the union that, under Ohio law, the restraining order was invalid because it had been issued without a hearing and that, in any case, the State court lacked jurisdiction in the dispute. The best way to contest the order was to continue picketing, he said, and, if the pickets were held in contempt, to appeal or to test any order of commitment by a habeas corpus proceeding. After the union followed his advice, the attorney sought a hearing on his motion to vacate

*Prepared in the U.S. Department of Labor, Office of the Solicitor. The cases covered in this article represent a selection of the significant decisions believed to be of special interest. No attempt has been made to reflect all recent judicial and administrative developments in the field of labor law or to indicate the effect of particular decisions in jurisdictions in which contrary results may be reached based upon local statutory provisions, the existence of local precedents, or a different approach by the courts to the issue presented. 1 NLRB v. Katz (U.S. Sup. Ct., May 21, 1962).

2 In re Green (U.S. Sup. Ct., May 21, 1962).

793

the order, but it was denied. He and opposing counsel then agreed to submit four pickets for a contempt hearing. The judge held them in contempt and gave them 2 days to conform to the court's order. Since the pickets did not do so, another hearing was held. The attorney made it clear at both hearings that it was he who advised the union to test the order by risking contempt. The judge thereupon held him in contempt for disobeying and resisting a lawful order of the court. The attorney was not allowed to testify on his own behalf at the hearing, since the judge ruled that its only purpose was to sentence him. His appeal to the Ohio Supreme Court was rejected.

In presenting his case to the U.S. Supreme Court, the union attorney claimed that the collective bargaining agreement, whose no-strike clause the employer sought to have the State court enforce, was invalid as it had been signed by unauthorized agents. The unfair labor practice charge was based on the employer's alleged refusal to bargain. Consequently, he argued, these were matters preempted from the jurisdiction of the State courts by the LMRA.

On the other hand, the respondent argued that, since the dispute between the employer and the union involved only the enforcement of a "nostrike" clause in a presumably valid collective bargaining agreement, Congress left this controversy to either the Federal courts 3 or the State courts.4

Due process, the Supreme Court has held," requires that one charged with contempt of court have a reasonable opportunity to be heard and have a chance to testify and call other witnesses in his behalf in order to give a defense or an explanation.

While the Court agreed that the issue here was whether the State court had jurisdiction over this matter, it concluded that it could not determine from the record whether the dispute was exclusively within the NLRB's jurisdiction under the principle of San Diego Building Trades Council v. Garmon. That decision had held that when an activity is arguably subject to the NLRB, the States must defer to its "exclusive competence" whenever there is a danger of State interference with national policy.

6

The Court also relied on Amalgamated Association v. Wisconsin Employment Relations Board,"

8

which held that a State court cannot find one in contempt for violating an injunction which the court had no power to issue, because of Federal preemption. The majority distinguished that case and the present case from U.S. v. United Mine Workers, which the dissenting justices relied on. The majority stated that the United Mine Workers case involved no question of Federal preemption and did not apply in this case. Therefore, they reversed the State court's conviction. Justices Harlan and Clark, dissenting from the majority's reasoning but concurring in the result, argued that the Mine Workers decision had held that disobedience of an injunction issued by a court whose claim to jurisdiction is not "frivolous" may be punishable as criminal contempt, even though it is later found on appeal that the court did not have jurisdiction. They also distinguished the Wisconsin case from the present case because it did not involve an alleged breach of a labor agreement. State courts do have concurrent jurisdiction with the Federal courts to enforce collective agreements."

The dissenting members of the court observed, nonetheless, that the petitioner was convicted without a hearing and an opportunity to prove that alleged contemptuous conduct was agreed to in advance by the petitioner, opposing counsel, and the judge as the appropriate way to test the court's jurisdiction. Without such a hearing, there was a violation of the due process requirements of the 14th Amendment.

Protected Concerted Activity. A week later, the Supreme Court held 10 that the NLRB was warranted in finding that an employer had violated the LMRA when he fired seven nonunion employees for leaving their work without permission because the shop was too cold to work in. The Court, reversing a court of appeals decision, sustained the NLRB's finding that this was a protected concerted activity.

& Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957). Local 174, International Brotherhood of Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962); see Monthly Labor Review, May 1962, pp. 546–547. In re Oliver, 333 U.S. 257 (1947).

359 U.S. 236 (1959); see Monthly Labor Review, June 1959, pp. 669-670. 7 340 U.S. 383 (1950).

330 U.S. 258 (1946).

• Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); see Monthly Labor Review, April 1962, pp. 423-424; see also footnote 4.

10 NLRB v. Washing on Aluminum Co. (U.S. Sup. Ct., May 28, 1962).

The seven employees involved had arrived at their employer's plant on a very cold day in January and found the shop unheated, a recurrent condition which had been discussed with the employer and "to which the company gave little consideration." On this occasion, they discussed the matter with the foreman, who was reported to have told them if they "had any guts at all they would go home." Minutes after the starting bell rang at 7:30 a.m. the seven did leave, although a plant rule forbade leaving without permission. By 9 a.m., they had been discharged.

The NLRB found that the workers' conduct was a concerted activity to protest the company's failure to supply adequate heat and was protected by section 7 of the LMRA. The Board ruled further that the employer's discharge was an unfair labor practice under section 8(a) (1) as an interference with the employee's rights guaranteed by section 7, and ordered their reinstatement with back pay.

In refusing to enforce this order, the court of appeals found that the workers "summarily left their place of employment" without affording the company an "opportunity to avoid the work stoppage by granting a concession to a demand." Therefore, their walkout was not a protected concerted activity.

The Supreme Court, however, sustained the findings of the NLRB, stating that the employees were engaged in protected concerted activities, and since the discharged employees had no bargaining representative and no established grievance procedure, they were not required to make a more specific demand upon management. In disagreeing with the employer's contention that the walkout did not grow out of a "labor dispute" as defined in section 2(9) of the LMRA, the Court noted that the definition includes "any controversy concerning terms, tenure, or conditions of employment" (the Court's emphasis). The Court further noted that substantial evidence for the Board's finding showed a running dispute between the employees and the employer over the heating of the shop on cold days, which the employer appeared to have ignored up to that point. There was also evidence that the employer attempted to attend to it that morning. The

Mar-Jac Poultry Co. and Local 454, Amalgamated Meat Cutters and Buicher Workmen, 136 NLRB No. 73 (Apr. 2, 1962).

Court stated, however, that even though this fact suggests that the men acted unwisely, the reasonableness of their actions was irrelevant to whether a labor dispute exists.

The Court also stated that the plant rule forbidding employees to leave work without permission did not permit the employer to discharge them for engaging in protected concerted activities. Section 10(c) of the LMRA authorizing discharge for "cause" cannot be construed to allow such conduct by the employer. The judgment of the court of appeals was therefore reversed, with directions to enforce the entire NLRB order.

Certification Year. The NLRB overruled earlier cases and held " that the year in which an employer is required to bargain with a certified union begins on the date of an agreement settling a refusal to bargain complaint, rather than that of the original certification.

About 2 months after the union had been certified in November 1959, the employer sold its equipment and leased its property to a corporation that continued to operate the business with the same employees. A month after the sale, the union requested the corporation to bargain. Following the issuance of a complaint against the corporation for refusal to bargain, it signed a settlement agreement committing it to bargain in good faith with the union. About 3 months later, a Regional Director of the Board issued a letter of compliance. From August 1960, when the settlement agreement was signed, until February 1961, the parties held eight bargaining sessions at which they progressed toward the negotiation of an agreement. After the employer failed to show up for the February bargaining session, the union filed another unfair labor practice charge, which the Regional Director dismissed on March 29. On the same date, the employer filed the election petition which led to the present decision.

The Board noted that one of the purposes of the LMRA requirement that bars the filing of an election petition within 12 months of the last election is to protect the union from outside interference for a reasonable period of time. Ordinarily, an employer is required to bargain with a union for a year after it wins an election. However, since the employer, by refusing to bargain, had taken away part of this time, the Board ruled that the union was entitled to a full year beginning

with genuine bargaining, that is, from the date of the settlement agreement. This new rule, the Board said, will be followed in "future cases revealing similar inequities.”

Reporting and Disclosure

Union Financial Reports. The U.S. Court of Appeals for the Fifth Circuit held 12 that union members or their auditors are entitled to inspect the books and records of their union and its subsidiary corporations, under section 201 (c) of the Labor-Management Reporting and Disclosure Act. The court found that the union members' request was necessary to verify the union's 1959 financial report filed with the Secretary of Labor under section 201 (b) of the LMRDA.

The attorney whom the members retained requested the union president's permission to examine the union's books and records, alleging certain discrepancies in the reports filed. The president replied that permission would be granted whenever a member could show just cause, but that the attorney's letter requesting the inspection did not set out just cause. He therefore denied the request.

The union members then filed a suit in Federal district court under section 201(c) of the LMRDA claiming that the union's report to the Secretary under section 201 (b) of that act was fraudulent and incorrect as to the amount of money collected as initiation fees. In a supplemental complaint, they alleged that certain union officers had stolen money from initiation fees and dues, and that the secretary had been suspended pending a hearing on charges of embezzling $38,000. The members also asked to inspect the books and records of three wholly owned subsidiaries of the union: a recreational organization, a drugstore, and a funeral

home. The district court granted a motion for summary judgment ordering the union to mak all its books and records and those of its subsid iaries available to the members or their auditors for verifying the reports to the Secretary of Labor After disposing of several procedural issues, the court of appeals turned to the question of the records of the subsidiary corporations. A auditor employed by the union had disclosed that the records of these subsidiaries showed a shortage of over $45,000 in some of the accounts. The auditor admitted that the information he obtained was incomplete and he was unable to satisfy himself as to the fairness, by accepted accounting principles, of the amounts shown for merchandise inventories or investments. The court held that the "affairs of the subsidiaries were so inextricably related as to render an inspection of union books and records alone ineffectual." It held further that the plaintiffs showed just cause for inspection.

The court also rejected the union's contention that the right of inspection applied only to the members and that they might not be assisted by auditors. The court drew an analogy to the corporate stockholder who may, courts have held, be assisted by auditors, accountants, and attor neys. The court stated further that if these longshoremen are to be given the right to inspect, they must be allowed to call on the assistance of persons versed in financial records and accounting methods. Since the court held that Congress intended to create both a right and a remedy, it must give meaning to this right and grant the remedy when just cause is shown, as in this case. Finding the remedy here granted reasonable, the court affirmed the judgment of the district court.

12 Local 1419, General Longshore Workers, International Longshoremen's Association v. Smith (C.A. 5, Apr. 13, 1962).