American Newspaper Publishers Association v. National Labor Relations Board/Dissent Clark

Mr. Justice CLARK, with whom The CHIEF JUSTICE joins, dissenting.

Today's decision twists the law by the tail. If the employees had received pay for staying home, conserving their energies and the publisher's material, the Court concedes, as it must, that § 8(b)(6) of the National Labor Relations Act would squarely apply. Yet in the Court's view these printers' peculiar 'services' snatch the transaction from the reach of the law. Those 'services,' no more and no less, consist of setting 'bogus' type, then proofread and reset for corrections, only to be immediately discarded and never used. Instead, this type is consigned as waste to a 'hell box' which feeds the 'melting pot'; that, in turn, oozes fresh lead then molded into 'pigs' which retravel the same Sisyphean journey. The Court thus holds that an 'anti-featherbedding' statute designed to hit wasteful labor practices in fact sanctions additional waste in futile use of labor, lead, machines, proofreading, 'hell-boxing,' etc. Anomalously, the more wasteful the practice the less effectual the statute is.

Section 8(b)(6) declares it an unfair labor practice for a labor organization or its agents 'to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed.' But 'to cause or attempt to cause' can refer equally to the ordinary give-and-take of the collective bargaining process or the unleashing of the ultimate weapons in a union's armory. Likewise, 'in the nature of an exaction' may imply that a union's pay demands must be tantamount to extortion to bring § 8(b)(6) into play; on the other hand, the phrase may merely describe payments 'for services which are not performed or not to be performed.' Again, 'services' may designate employees' conduct ranging from shadow boxing on or off the plant to productive effort deemed beneficial to the employer in his judgment alone.

The Court solves these complex interpretive problems by simply scrapping the statute. A broadside finding that 'bogus' is 'work,' making analysis of all other statutory criteria superfluous, automatically takes the case out of § 8(b)(6). And the printers' doing solely that which then must be undone passes for 'work.' An imaginative labor organization need not strain far to invent such 'work.' With that lethal definition to stifle § 8(b)(6), this Court's first decision on 'featherbedding' may well be the last.

Concededly, § 8(b)(6) was not designed to ban every make-work device ingenuity could spawn. Senator Taft, the prime exponent of the section as ultimately enacted, advised that general 'featherbedding' legislation be held an abeyance pending this Court's decision in United States v. Petrillo. Meanwhile, however, § 8(b)(6) aimed to catch practices by which unions 'accept money for people who do not work.' He considered it a 'perfectly clear' violation of the section 'for a man to say, 'You must have 10 (employees), and if you insist there is room for only 6, you must pay for the other 4 anyway." But surely this cannot imply that six must pack the plant to overflow so that 'the other 4' must stay home before § 8(b)(6) may apply. That quaint notion befogs the draftsmen's clear intent that § 8(b)(6) strike at union pay demands 'for services which (the employer) does not want, does not need, and is not even willing to accept.'

Accordingly, we would read the statute's test of 'services' as more than a hollow phrase. Recognizing the administrative difficulties in deciding how many employees are too many for a particular job, Congress perhaps spared the National Labor Relations Board from that. But the Board should certainly not need efficiency engineers to determine that printers setting 'bogus' indulge in frivolous make-work exercise. An interpretation of 'services' in § 8(b)(6) to exclude contrived and patently useless job operations not to the employer's benefit could effectuate the legislative purpose. Cf. Tennessee Coal, Iron & R. Co. v. Muscoda Local, 1944, 321 U.S. 590, 598-599, 64 S.Ct. 698, 703, 88 L.Ed. 949; Jewell Ridge Coal Corp. v. Local No. 6167, 1945, 325 U.S. 161, 165-166, 65 S.Ct. 1063, 1065-1066, 89 L.Ed. 1534; Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 691 693, 66 S.Ct. 1187, 1194-1195, 90 L.Ed. 1515. And the Labor Board should not so modestly disclaim its oft-recognized expertise which assures full qualifications for administering this task.

It may well be that union featherbedding practices reflect no more than labor's fears of unstable employment and sensitivity to displacement by technological change. But in a full-employment economy Congress may have deemed this form of union security an unjustifiable drain on the national manpower pool. In any event, that judgment was for the legislature. Under our system of separation of powers the Court ought not so blithely mangle the congressional effort.