Petition by the National Labor Relations Board for enforcement of its order against the Newark Morning Ledger Company.
Before MARIS, CLARK, and GOODRICH, Circuit Judges.
The National Labor Relations Board has petitioned this court for a decree enforcing an order entered by it against the Newark Morning Ledger Company, publisher of a daily newspaper in Newark, New Jersey, known as the Newark Ledger. 21 N.L.R.B.No. 95. To this petition the Ledger Company has filed an answer together with a cross-petition praying that the order be reviewed and set aside. The order in question directs the Ledger Company (1) to cease and desist from discouraging its employees from membership in the American Newspaper Guild and its branches by discriminating in regard to hire, tenure of any term or condition of employment because of such membership or activity therein, or in any other manner from interfering with their right of collective bargaining, and (2) to reinstate Agnes Fahy, a discharged editorial employee, make her whole for her loss of pay, and post the usual notices of compliance.
Miss Fahy was discharged by the Ledger Company on September 22, 1937. At that time she was president of the Newark Newspaper Guild, a local branch of the American Newspaper Guild which is a labor organization of editorial department employees of newspapers. She had been very active in the Guild and although the Ledger Company strongly contends that her discharge was solely for reasons of economy and efficiency nevertheless we are satisfied that there is evidentiary support for the finding of the Board that the action was taken because of her membership in and activity on behalf of the Guild.
The Newark Newspaper Guild and the Ledger Unit of that organization had been established in 1933. In 1935 the Guild instituted negotiations with the Ledger Company for a contract. For a long time the Ledger Company refused to grant recognition to the Guild and exhibited in many ways its antagonism to that organization. Finally, however, the Ledger Company did engage in collective bargaining with the Guild. This resulted in the signing on August 12, 1937, of a contract between the company and the Guild acting on behalf of the editorial department employees of the Ledger. The contract, in addition to provisions as to wages, hours and working conditions, stipulated that "The Publisher shall not discharge or otherwise discriminate against any employe because of Guild membership or because of his activity in the Guild." This contract was in force at the time of Miss Fahy's discharge. The Board, one member dissenting, found that Miss Fahy's discharge operated to interfere with, restrain and coerce the Ledger Company employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157, and it ordered her reinstatement and the payment of lost salary to her in order to effectuate the policies of the Act.The question presented to us is whether the function of the Board under the act had not been fully performed when the parties bargained and reached an agreement so that they were relegated, as to breaches of the argeement, to arbitration, if provided for, or to their remedy in the courts.
The National Labor Relations Act in Section 1, 29 U.S.C.A. § 151, declares it "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." As the Supreme Court said in Republic Steel Corporation v. National Labor Relations Board, 311 U.S. 7, 61 S. Ct. 77, 79, 85 L. Ed. , the act is aimed "at encouraging the practice and procedure of collective bargaining and at protecting the exercise by workers of full freedom of association, of self-organization and of negotiating the terms and conditions of their employment or other mutual aid or protection through their freely chosen representatives." The right of employees thus to organize and bargain collectively with their employer is expressly guaranteed by Section 7 of the Act, 29 U.S.C.A. § 157. The five kinds of unfair labor practice with which alone the Board is empowered to deal are defined by Section 8, 29 U.S.C.A. § 158. The first is "To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [157 of this title]." The other four all relate to particular species of the generic unfair practice first defined and are specifically mentioned merely because of their prevalence. That Congress intended Section 8 to be so construed is, as Judge Learned Hand pointed out in Art Metals Const. Co. v. National Labor Relations Board, 2 Cir., 110 F.2d 148, clearly shown by the legislative history of the act.*fn1
It will thus be seen that it is the purpose of the act, by protecting employees from employer interference, intimidation and coercion, to open the way for collective bargaining on a basis of equality of bargaining power between employers and freely chosen representatives of employees to the end that voluntary agreements between them as to wages, hours and other conditions of employment will be reached and thus industrial strife and unrest will be reduced. The function of the Board under the act is to pave the way for the achievement of that final goal. When an employer who has been engaged in a labor dispute with his employees abandons his previous opposition to the labor organization which is their free choice, bargains with that organization on their behalf and enters into a genuine collective bargaining agreement with it, the goal of the act has been achieved and the Board has no further jurisdiction with respect to the labor dispute which has been settled by the agreement. The parties having bargained and agreed upon the terms and conditions of employment for a definite period of time, their rights and obligations are fixed for that time and all that remains is for them to carry out the terms of the contract upon which they have agreed.
If during the life of such a contract an employee is discharged because of union membership and activity in direct violation of the terms of the contract, the employer has violated a contractual right of the employee which the latter is entitled to have enforced. But this is a breach of a private right which may be redressed in the manner stipulated in the agreement or by recourse to the courts. The National Labor Relations Act contemplates no more than the protection of the public rights which it creates and defines.National Licorice Co. v. Labor Board, 309 U.S. 350, 366, 60 S. Ct. 569, 84 L. Ed. 799. The breach of a covenant against discharge may not be redressed by the Board because, while clearly a breach of contract, the discharge is not an unfair labor practice within the meaning of the National Labor Relations Act since it cannot possibly have the effect of interfering with, restraining, or coercing the employees in exercising a right of collective bargaining which has already been fully and successfully exercised by them. The Board is concerned only with those situations in which an employer and his organized employees have not yet reached agreement; it is no part of its duty to police the relations between an employer and his employee under a collective bargaining agreement. To construe the Act otherwise would be to impose upon the Board the Herculean task of supervising the day to day relations of employers and employees in that vast and ever growing segment of commerce and industry in which successful collective bargaining has well nigh eliminated industrial strife. If Congress had intended that the Board should assume such enormous additional responsibility it would certainly have expressly so provided. This, as we have seen, it did not do.
In the present case a long drawn out labor dispute between the Ledger Company and its employees finally terminated in the agreement of August 12, 1937. This agreement ran for the period of one year and was subsequently renewed in 1938 and 1939. It was in full force at the time of Miss Fahy's discharge. There was accordingly at that time no labor dispute in existence between the Ledger Company and its employees. Her discharge, while doubtless a violation of the agreement, was not an unfair labor practice which it was within the jurisdiction of the Board to restrain. Nor did the Board have jurisdiction to consider and restrain the unfair labor practices which had taken place prior to August 12, 1937, since those practices had been abandoned by the Ledger Company when it entered into negotiations with the Guild and signed the agreement with it. We accordingly concur in the view expressed by the dissenting member of the Board that the complaint in this case should not have been entertained by the Board.
A decree will be entered setting aside the order ...