National Labor Relations Board v. Gamble Enterprises/Dissent Jackson

Mr. Justice JACKSON, dissenting.

The economic advantages or abuses that result from 'featherbedding' admittedly are not our concern. But, I cannot escape the conclusion that the facts of this case bring it within the statute which makes 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. * *  * ' 61 Stat. 140-142, 29 U.S.C. (Supp. V) § 158(b) (6), 29 U.S.C.A. § 158(b)(6). Granting that Congress failed to reach all 'featherbedding' practices, its enactment should not be interpreted to have no practical effect beyond requiring a change in the form of an exaction.

Accepting the result in American Newspaper Publishers Association v. National Labor Relations Board, 345 U.S. 100, 73 S.Ct. 552, I think that differences in this case require a contrary result.

In both cases, the payments complained of obviously were caused by the respective unions. In both, the work performed was unwanted by the employer and its cost burdened the industry and contributed nothing to it. But here resemblance ceases. The Typographical Union is adhering to an old custom which mutual consent established and for years maintained and to which other terms of employment have long since been adjusted. In this case the union has substituted for the practice specifically condemned by the statute a new device for achieving the same result. The two cases may exemplify the same economic benefits and detriments from made work, but superfluous effort which long and voluntary usage recognized as a fair adjustment of service conditions between employer and employee in the printing industry is 'exacted' for the first time in the entertainment field in order to evade the law.

That the payments involved in this case constitute a union 'exaction' within the statute would seem hard to deny, whatever may be thought of the printers' case. As the Court says, the American Federation of Musicians has established a 'nationwide control of professional talent.' No artist or organization can perform without its approval. The respondent is in the entertainment business but can get no talent to exhibit unless it makes these payments. The 'service' tendered for the payments is not wanted or useful. What the Court speaks of as 'free and fair negotiation, to determine whether such offer shall be accepted' is actually only freedom to pay or go out of business with all its attendant losses. If that does not amount to an exaction, language has lost all integrity of meaning.

But the Court holds that so long as some exertion is performed or offered by the employees, no matter how useless or unwanted, it can never be said that there is an exaction 'for services which are not performed or not to be performed.' This language undoubtedly presents difficulties of interpretation, but I am not persuaded that it is so meaningless and empty in practice as the Court would make it. Congress surely did not enact a prohibition whose practical application would be restricted to those without sufficient imagination to invent some 'work.'

Before this Act, the union was compelling the theatre to pay for no work. When this was forbidden, it sought to accomplish the same result by compelling it to pay for useless and unwanted work. This is not continuation of an old usage that long practice has incorporated into the industry but is a new expedient devised to perpetuate a union policy in the face of its congressional condemnation. Such subterfuge should not be condoned.