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

Mr. Justice DOUGLAS, dissenting.

I fail to see how the reproduction of advertising matter which is never used by a newspaper but which indeed is set up only to be thrown away is a service performed for the newspaper. The practice of 'setting bogus' is old and deeply engrained in trade union practice. But so are other types of 'feather-bedding.' Congress, to be sure, did not outlaw all 'feather-bedding' by the Taft-Hartley Act. That Act leaves unaffected the situation where two men are employed to do one man's work. It also, in my view, leaves unaffected the situation presented in National Labor Relations Board v. Gamble Enterprises, Inc., 345 U.S. 117, 73 S.Ct. 560.

Mr. Justice Jackson labels the services tendered in that case as 'useless and unwanted work.' Certainly it was 'unwanted' by the employer-as much unwanted as putting on two men to do one man's work. But there is no basis for saying that those services were 'useless.' They were to be performed in the theatres, providing music to the audiences. The Gamble Enterprises case is not one where the employer was forced to hire musicians who were not used. They were to be used in the theatrical program offered the public. Perhaps the entertainment would be better without them. But to conclude with Mr. Justice Jackson that it would be better would be to rush in where Congress did not want to tread. For Senator Taft reported from Conference that 'The Senate conferees, while not approving of feather-bedding practices, felt that it was impracticable to give to a board or a court the power to say that so many men are all right, and so many men are too many.' 93 Cong.Rec. 6441.

But the situation in this case is to me quite different. Here the typesetters, while setting the 'bogus,' are making no contribution whatsoever to the enterprise. Their 'work' is not only unwanted, it is indeed wholly useless. It does not add directly or indirectly to the publication of the newspaper nor to its contents. It does not even add an 'unwanted' page or paragraph. In no sense that I can conceive is it a 'service' to the employer. To be sure, the employer has agreed to pay for it. But the agreement was under compulsion. The statute does not draw the distinction Mr. Justice Jackson tenders. No matter how time-honored the practice, it should be struck down if it is not a service performed for an employer.

The outlawry of this practice under § 8(b)(6) of the Taft-Hartley Act might be so disruptive of established practices as to be against the public interest. But the place to obtain relief against the new oppression is in the Congress, not here.