Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

The Court concedes that the voluntary observance of a hot cargo provision by an employer does not constitute a violation of § 8(b)(4)(A) of the National Labor Relations Act, 61 Stat. 136, 140, 29 U.S.C. § 158(b)(4)(A), 29 U.S.C.A. § 158(b)(4)(A). I fail to see, therefore, why enforcement of a provision in a collective bargaining agreement outlawing work in nonunion goods violates the Act.

The provision of the collective bargaining agreement in the Carpenters case is typical of those in issue here:

'Workmen shall not be required to handle non-union material.'

That provision was bargained for like every other clause in the collective agreement. It was agreed to by the employer. How important it may have been to the parties-how high or low in their scale of values-we do not know. But on these records it was the product of bargaining, not of coercion. The Court concedes that its inclusion in the contracts may not be called 'forcing or requiring' the employer to cease handling other products within the meaning of the Act. Enforcing the collective bargaining agreement-standing by its terms is not one of the coercive practices at which the Act was aimed. Enforcement of these agreements is conducive to peace. Disregard of collective agreements-the flouting of them-is disruptive. That was the philosophy of the Conway's Express decision of the Labor Board, 87 N.L.R.B. 972, affirmed sub nom. Rabouin v. National Labor Relations Board, 2 Cir., 195 F.2d 906; and I think it squares with the Act.

The present decision is capricious. The boycott is lawful if the employer agrees to abide by this collective bargaining agreement. It is unlawful if the employer reneges.

The hostile attitude of labor against patronizing or handling 'unfair' goods goes deep into our history. It is not peculiarly American, though it has found expression in various forms in our history from the refusal of Americans to buy British tea, to the refusal of Abolitionists to buy slave-made products, to the refusal of unions to work on convictmade or on other nonunion goods. Unions have adhered to the practice because of their principle of mutual aid and protection. Section 7 of the Act, 29 U.S.C.A. § 157, indeed, recognizes that principle in its guarantee that 'Employees shall have the right * *  * to engage in *  *  * concerted activities for the purpose of collective bargaining or other mutual aid or protection.' We noticed in Apex Hosiery Co. v. Leader, 310 U.S. 469, 503, 60 S.Ct. 982, 997, 84 L.Ed. 1311, that the elimination of 'competition from non-union made goods' was a legitimate labor objective.

The reason an employer may also agree to that phase of union policies, the reason he may acquiesce in the inclusion of such a clause in a particular collective agreement, may only be surmised. Perhaps he sees eye to eye with the union. Perhaps he receives important concessions in exchange for his assistance to the union.

Certain it is that where he voluntarily agrees to the 'unfair' goods clause he is not forced or coerced in the statutory sense. What Judge Clark said in Milk Drivers & Dairy Employees, etc., v. National Labor Relations Board, 2 Cir., 245 F.2d 817, 822, has not yet been answered:

'In the absence of a prior agreement, work to be done by     employees is determined unilaterally by the employer; but      where a collective agreement specifies the work to be done,      that agreement defines the normal work of the employees and a      'strike' or 'refusal' must be a refusal to do that normal      work. The employer obviously cannot impose additional work on     the employees contrary to the agreement and then charge that      their refusal to perform it constitutes an unfair practice. We see no difference in this respect between tasks exempted     by the agreement because they are offensive to health or      safety and tasks exempted because their performance is      contrary to the interests of organized labor and, in this      case, the local itself.'

We act today more like a Committee of the Congress than the Court. We strain to outlaw bargaining contracts long accepted, long used. Perhaps these particular provisions have evils in them that should be declared contrary to the public interest. They are, however, so much a part of the very fabric of collective bargaining that we should leave this policy-making to Congress and not rush in to undo what a century or more of experience has imbedded into labormanagement agreements. I have not found a word of legislative history which even intimates that these 'unfair' goods provisions of collective bargaining agreements are unlawful.