Local 174, Teamsters, Chaukfeurs, Warehousemen & Helpers of America v. Lucas Flour Company/Dissent Black

Mr. Justice BLACK, dissenting.

The petitioner local union and the respondent company entered into a written collective bargaining agreement containing an express provision for the arbitration of disputes growing out of differences as to the proper application of the agreement in the following terms:

'Should any difference arise between the employer and the     employee, same shall be submitted to arbitration by both      parties. Failing to agree, they shall mutually appoint a     third person whose decision shall be final and binding.'

The Court now finds-out of clear air, so far as I can see that the union, without saying so in the agreement, not only agreed to arbitrate such differences, but also promised that there would be no strike while arbitration of a dispute was pending under this provision. And on the basis of its 'discovery' of this additional unwritten promise by the union, the Court upholds a judgment awarding the company substantial damages for a strike in breach of contract.

That the Court's decision actually vacates and amends the contract that the parties themselves had made and signed is shown, I think, byu the very face of that original contract. The arbitration provision covering disputes growing out of the application of the contract immediately follows another quite different arbitration provision-one covering disputes 'as to the true interpretation of this agreement' in the following terms:

'Should any difference as to the true interpretation of this     agreement arise, same shall be submitted to a Board of      Arbitration of two members, one representing the firm, and      one representing the Union. If said members cannot agree, a     third member, who must be a disinterested party shall be      selected, and the decision of the said Board of Arbitration      shall be binding. It is further agreed by both parties hereto     that during such arbitration, there shall be no suspension of      work.' (Emphasis supplied.)

In view of the fact that this latter provision contains an explicit promise by the union 'that during such arbitration, there shall be no suspension of work,' it seems to me plain that the parties to this contract, knowing how to write a provision binding a union not to strike, deliberately included a no-strike clause with regard to disputes over broad questions of contractual interpretation and deliberately excluded such a clause with regard to the essentially factual disputes arising out of the application of the contract in particular instances. And there is not a word anywhere else in this agreement which indicates that this perfectly sensible contractual framework for handling these two different kinds of disputes was not intended to operate in the precise manner dictated by the express language of the two arbitration provisions.

The defense offered for the Court's rewriting of the contract which the parties themselves made is that to allow the parties' own contract to stand 'would obviously do violence to accepted principles of traditional contract law' and 'be completely at odds with the basic policy of national labor legislation to promote the arbitral process.' I had supposed, however-though evidently the Court thinks otherwise-that the job of courts enforcing contracts was to give legal effect to what the contracting parties actually agree to do, not to what courts think they ought to do. In any case, I have been unable to find any accepted principle of contract law-traditional or otherwise-that permits courts to change completely the nature of a contract by adding new promises that the parties themselves refused to make in order that the new court-made contract might better fit into whatever social, economic, or legal policies the courts believe to be so important that they should have been taken out of the realm of voluntary contract by the legislative body and furthered by compulsory legislation.

The mere fact that the dispute which brought about this strike was subject to 'final and binding' arbitration under this contract certainly does not justify the conclusion that the union relinquished its right to strike in support of its position on that dispute. The issue here involves, not the nature of the arbitration proceeding, but the question of whether the union, by agreeing to arbitrate, has given up all other separate and distinct methods of getting its way. Surely, no one would suggest that a provision for final and binding arbitration would preclude a union from attempting to persuade an employer to forego action the union was against, even where that action was fully within the emloyer's rights under the contract. The same principle supports the right of the union to strike in such a situation for historically, and as was recognized in both the Wagner and Taft-Hartley Acts, the strike has been the unions' most important weapon of persuasion. To say that the right to strike is inconsistent with the contractual duty to arbitrate sounds like a dull echo of the argument which used to be so popular that the right to strike was inconsistent with the contractual duty to work-an argument which frequently went so far as to say that strikes are inconsistent with both the common law and the Constitution.

The additional burden placed upon the union by the Court's writing into the agreement here a promise not to strike is certainly not a matter of minor interest to this employer or to the union. The history of industrial relations in this country emphasizes the great importance to unions of the right to strike as well as an understandable desire on the part of employers to avoid such work stoppages. Both parties to collective bargaining discussions have much at stake as to whether there will be a no-strike clause in any resulting agreement. It is difficult to believe that the desire of employers to get such a promise and the desire of the union to avoid giving it are matters which are not constantly in the minds of those who negotiate these contracts. In such a setting, to hold-on the basis of no evidence whatever-that a union, without knowing it, impliedly surrendered the right to strike by virtue of 'traditional contract law' or anything else is to me just fiction. It took more than 50 years for unions to have written into federal legislation the principle that they have a right to strike. I cannot understand how anyone familiar with that history can allow that legislatively recognized right to be undercut on the basis of the attenuated implications the Court uses here.

I do not mean to suggest that an implied contractual promise cannot sometimes be found where there are facts and circumstances sufficient to warrant the conclusion that such was the intention of the parties. But there is no factual basis for such a conclusion in this case and the Court does not even claim to the contrary. The implication of a no-strike clause which the Court purports to find here-an implication completely at war with the language the parties used in making this contract as well as with the normal understanding of the negotiation process by which such contracts are made-has not been supported by so much as one scrap of evidence in this record. The implication found by the Court thus flows neither from the contract itself nor, so far as this record shows, from the intention of the parties. In my judgment, an 'implication' of that nature would better be described as a rigid rule of law that an agreement to arbitrate has precisely the same effect as an agreement not to strike-a rule of law which introduces revolutionary doctrine into the field of collective bargaining.

I agree that the Taft-Hartley Act shows a congressional purpose to treat collective bargaining contracts and agreements for arbitration in them as one important way of insuring stability in industrial production and labor relations. But the fact that we may agree, as I do, that these settlements by arbitration are desirable is no excuse whatever for imposing such 'contracts,' either to compel arbitration or to forbid striking, upon unwilling parties. That approach is certainly contrary to the industrial and labor philosophy of the Taft-Hartley Act. Whatever else may be said about that Act, it seems plain that it was enacted on the view that the best way to bring about industrial peace was through voluntary, not compelled, labor agreements. Section 301 is torn from its roots when it is held to require the sort of compulsory arbitration imposed by this decision. I would reverse this case and relegate this controversy to the forum in which it belongs-the collective bargaining table.