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decided: January 6, 1964.



Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White; Goldberg took no part in the consideration or decision of this case.

Author: Douglas

[ 375 U.S. Page 262]

 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

[ 375 U.S. Page 263]

     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 App. Div. 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. The case is here on certiorari. 372 U.S. 957.

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,*fn1 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

[ 375 U.S. Page 264]

     strike. Such conduct gives the Board authority under § 10 (k) to resolve the dispute.*fn2

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),*fn3 has often given effect to private agreements to settle disputes of this character;*fn4 and that is in accord

[ 375 U.S. Page 265]

     with the purpose as stated even by the minority spokesman in Congress*fn5 -- "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 Labor Board v. Radio Engineers, 364 U.S. 573, 577.

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.

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, where a ...

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