National Labor Relations Board v. Gamble Enterprises/Dissent Clark

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

The CHIEF JUSTICE and I dissent on the basis of our dissenting opinion in American Newspaper Publishers Association v. Labor Board, 345 U.S. 100, 73 S.Ct. 552. We cannot perceive a tenable distinction between this and the printers' 'featherbedding' case. To the extent of that consistency, today's majority and we are in accord. True, the employees there 'work' on the keyboard of a Linotype, and here on the keys of a musical instrument. But, realistically viewed, one enterprise is as bogus as the other; both are boondoggles which the employer 'does not want, does not need, and is not even willing to accept.' The statute, moreover, does not distinguish between modern make-work gimmicks and featherbedding techniques encrusted in an industry's lore. Congress accorded no preferred position to seasoned unfair labor practices, and § 8(b)(6) does not recognize prescriptive rights in the law. Custom and tradition can no more deprive employers than employees of statutory rights. Cf. National Labor Relations Board v. Newport News Shipbuilding Co., 1939, 308 U.S. 241, 250-251, 60 S.Ct. 203, 208, 84 L.Ed. 219; Tennessee Coal, Iron & R. Co. v. Muscoda Local, 1944, 321 U.S. 590, 601-602, 64 S.Ct. 698, 704-705, 88 L.Ed. 949; Jewell Ridge Coal Corp. v. Local No. 6167, 1945, 325 U.S. 161, 167, 65 S.Ct. 1063, 1066, 89 L.Ed. 1534.