Radio Officers' Union of Commercial Telegraphers Union, AFL v. National Labor Relations Board/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.

No. 7-The Gaynor Case.-Eighteen years ago the language considered here became a part of what is now known as § 8(a)(3) of the Labor Act. The Court today, gives that language an entirely new interpretation. I dissent. The Section makes it an unfair labor practice for an employer 'by discrimination in regard to * *  * any term or condition of employment to encourage or discourage membership in any labor organization *  *  * .' Unquestionably payment of disparate wages to union and nonunion employees is 'discrimination' as that term is used in § 8(a)(3). But the Section does not forbid all 'discrimination.' It carefully limits the conditions under which 'discrimination' is 'unfair.' The plain and long accepted meaning of § 8(a)(3) is that it forbids an employer to discriminate only when he does so in order to 'encourage or discourage' union membership. National Labor Relations Board v. Waterman S.S.C.o., 309 U.S. 206, 219, 60 S.Ct. 493, 500, 84 L.Ed. 704. Recently, however, the Labor Board has adopted the view that the Section outlaws discrimination merely having a 'tendency to encourage * *  * ' or 'the natural and probable effect' of which would be to encourage union membership. The Court apparently now accepts this interpretation, for here there is no finding that Gaynor acted in order to encourage union membership. Indeed, the Board concedes that Gaynor had no such purpose, and this concession is fully supported by the evidence. Gaynor had no desire to make retroactive payments to any employees. It yielded to the union not because it wanted to but because it was compelled to by a collective bargaining contract.

I think the Court's new interpretation of § 8(a)(3) imputes guilt to an employer for conduct which Congress did not wish to outlaw. Behind the Labor Act was a long history of employer hostility to strong unions and affection for weak ones. Power over wages, hours and other working conditions permitted employers to help unions they liked and hurt unions they disliked. To enable workers to join or not join unions without fear of reprisal, Congress passed the Labor Act prohibiting such employer discrimination. But aside from this limitation on the employer's powers, Congress did not mean to invade his normal right to fix different wages, hours and other working conditions for different employees according to his best business judgment. Section 8(a)(3) is aptly phrased to accomplish both these purposes.

The Board has been careful in § 8(a) (3) cases to make findings that employer discrimination was motivated by hostility or favoritism toward union membership.

Even now trial examiners and the Board continue to make findings as to the employer's purpose. The courts have regularly held that § 8(a)(3) requires such findings, and have been called on to determine if they were supported by substantial evidence. I think the Section should not at this late date be held to penalize an employer for using his judgment in fixing working conditions unless he discriminates among employees in order to strengthen or weaken a union for his own advantage. For this reason, I would not sustain the Board's holding that Gaynor violated § 8(a)(3).

Nos. 5 and 6-The Radio Officers and Teamsters Cases.-In these cases the Board found that the Radio Officers and Teamsters unions had violated § 8(b)(2) of the Taft-Hartley Act which makes it an 'unfair labor practice' for a union 'to cause or attempt to cause an employer to discriminate against an employee in violation' of § 8(a)(3). The Board found on sufficient evidence that each of the two unions here 'caused' an employer to treat an employee differently from the way it treated other employees, that is, the employer was caused 'to discriminate' within the meaning of § 8(a)(3). The Board also found that this 'discrimination' had a tendency to encourage union membership. But there was no finding that either employer's discrimination occurred in order to encourage union membership. For the reasons set out in my discussion of § 8(a)(3) in the Gaynor case, I think these findings fall short of showing an employer 'violation of § 8(a)(3).' A union does not violate § 8(b)(2) by causing an employer to discriminate unless that employer discrimination is 'in violation of § 8(a)(3).' For this reason I would reverse No. 5 and affirm No. 6.