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National Labor Relations Board v. Newark Morning Ledger Co.

April 17, 1941


Author: Maris

On Rehearing.

Before BIGGS, MARIS, CLARK, JONES and GOODRICH, Circuit Judges.

MARIS, Circuit Judge.

After reargument before the court en banc and reconsideration of the question which this case raises as to the extent of the jurisdiction of the National Labor Relations Board, we have reached the conclusion that in our former opinion we placed too narrow a construction upon those provisions of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., which define the limits of the Board's jurisdiction to deal with unfair labor practices and upon those provisions of the act which define such practices. Section 10(a) of the act, 29 U.S.C.A. § 160 (a), sets out the Board's power with respect to unfair labor practices. It provides that "The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8 [158]) affecting commerce." This language takes us directly back to Section 8 for a description of the particular unfair labor practices with which alone, under the express limitation of Section 10(a), the Board is empowered to deal.

Section 8, 29 U.S.C.A. § 158, declares that: "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 ( [157 of this title].

"(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it * * * .

"(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 * * * .

"(4) To discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act [chapter].

"(5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) [159(a) of this title]."

As we pointed out in our former opinion the four practices last mentioned are but particular species of the generic unfair practice which is first mentioned in the section.Consequently we are directly referred to a consideration of the extent of the rights guaranteed by Section 7 for the answer to our question. Clearly it is only those unfair practices which interfere with, restrain or coerce employees in the exercise of those particular rights that may be dealt with by the Board.

Section 7, 29 U.S.C.A. § 157, provides that: "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 concerted activities, for the purpose of collective bargaining or other mutual aid or protection." In our former opinion we took the view that the sole purpose and end of the act was to pave the way for and prevent interference with the initial exercise of the right of collective bargaining which Section 7 guarantees to employees. That right having been exercised in this case and its exercise having resulted in a collective contract between the Ledger Company and its employees regulating wages, hours and working conditions, we held that the Board had no further jurisdiction to deal with the subsequent discriminatory discharge of an employee in violation of the contract.

The right of collective bargaining is, however, necessarily a continuing right. Collective agreements ordinarily, as in this case, run for definitely limited periods of time. Negotiations for their renewal must take place periodically and may commence, at least preliminarily, shortly after the signing of the preceding contract. Furthermore it may at any time become desirable or indeed necessary to bargain collectively for the modification of an existing collective agreement which has proved in practice to be in some respects unfair or unworkable or for the adjustment of complaints or alleged violations of such an agreement. Collective bargaining is thus seen to be a continuing and developing process by which, as the law now recognizes, the relationship between employer and employee is to be molded and the terms and conditions of employment progressively modified along lines which are mutually satisfactory to all concerned. It is not a detached or isolated procedure which, once reflected in a written agreement, becomes a final and permanent result. Section 7, as we have seen, guarantees to employees the right to organize and engage in concerted activities for the purpose of collective bargaining. This right must necessarily continue so long as the prospect of future bargaining remains. It will thus be seen that the act guarantees to employees the continuous right to maintain labor organizations for the purpose of collective bargaining, after the signing of a particular collective bargaining agreement as well as before.

This conclusion is in harmony with the declaration of policy contained in the act. It is stated in section 1, 29 U.S.C.A. § 151, that the denial by employers of the right of employees to organize and the refusal of employers to accept the procedure of collective bargaining cause industrial strife with resulting obstruction to interstate commerce; that protection of the right of employees to organize and to bargain collectively safeguards commerce and that the policy of the act is to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing.

Accordingly Section 7 of the act conferred upon the employees of the Ledger Company in the case before us the right to maintain their organization, the Newark Newspaper Guild, after the signing of their agreement with their employer. The Board found, upon sufficient evidence, that Miss Fahy was discharged because of her membership in and activity on behalf of the Guild, and that this discouraged membership in the Guild. We conclude that these findings establish the existence of an unfair labor practice on the part of the Ledger Company with which the Board was empowered to deal, and that its restraining order and direction to reinstate Miss Fahy with back pay were appropriate remedies. It is settled that it is a public right created by the act which was thus enforced. In Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S. Ct. 561, 84 L. Ed. 738, Mr. Chief Justice Hughes, speaking for the Supreme Court, made this quite clear. After reviewing the procedure prescribed by the act, he said (309 U.S. page 265, 60 S.C.t. page 563, 84 L. Ed. 738): "So far, it is apparent that Congress has entrusted to the Board exclusively the prosecution of the proceeding by its own compalint, the conduct of the hearing, the adjudication and the granting of appropriate relief. The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce."

Referring to the report upon the bill of the Committee on Labor of the House of Representatives (H.R. Rep. No. 972, 74th Cong. 1st Sess. p. 21) the Chief Justice said (pages 267, 268 of 309 U.S., page 564 of 60 S. Ct., 84 L. Ed. 738):

"After referring to the suitable adaptation of the Board's orders to the needs of particular cases, and especially to the power to reinstate employees with or ...

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