Upon the facts of this case, the discharge of certain employees
by their employer did not constitute an unfair labor practice
within the meaning of §§ 8(a)(1) and 7 of the Taft-Hartley Act;
their discharge was "for cause" within the meaning of § 10(c) of
that Act, and the action of the Labor Board in not requiring their
reinstatement is here sustained. Pp.
346 U. S.
465-478.
(a) In the circumstances of this case, in which the employer was
an operator of a radio and television station, the distribution by
the employees in question of handbills which made public a
disparaging attack upon the quality of the employer's television
broadcasts, but which had no discernible relation to a pending
labor controversy, was adequate cause for the discharge of these
employees. Pp.
346 U. S.
467-477.
(b) The fortuity of the coexistence of a labor dispute affords
these employees no substantial defense. Pp.
346 U. S.
476-477.
(c) There is no occasion to remand this cause to the Board for
further specificity of findings, for even if the employees' attack
were treated as a concerted activity within § 7 of the Act, the
means used by them in conducting the attack deprived them of the
protection of that section when read in the light and context of
the purpose of the Act. Pp.
346 U. S.
477-478.
91 U.S.App.D.C. 333, 202 F.2d 186, set aside.
Upon review of an order of the National Labor Relations Board,
94 N.L.R.B. 1507, the Court of Appeals remanded the cause to the
Board for further findings. 91 U.S.App.D.C. 333, 202 F.2d 186. This
Court granted certiorari. 345 U.S. 947.
Order of Court of
Appeals set aside, and cause remanded to that court with
instructions to dismiss, p.
346 U. S.
478.
Page 346 U. S. 465
MR. JUSTICE BURTON delivered the opinion of the Court.
The issue before us is whether the discharge of certain
employees by their employer constituted an unfair labor practice,
within the meaning of §§ 8(a)(1) and 7 of the Taft-artley Act,
[
Footnote 1] justifying their
reinstatement by the National Labor Relations Board. For the reason
that their discharge was "for cause" within the meaning of § 10(c)
of that Act, [
Footnote 2] we
sustain the Board in not requiring their reinstatement.
Page 346 U. S. 466
In 1949, the Jefferson Standard Broadcasting Company (here
called the company) was a North Carolina corporation engaged in
interstate commerce. Under a license from the Federal
Communications Commission, it operated at Charlotte, North
Carolina, a 50,000-att radio station, with call letters WBT. It
broadcast 10 to 12 hours daily by radio and television. The
television service, which it started July 14, 1949, representing an
investment of about $500,000, was the only such service in the
area. Less than 50% of the station's programs originated in
Charlotte. The others were piped in over leased wires, generally
from New York, California, or Illinois from several different
networks. Its annual gross revenue from broadcasting operations
exceeded $100,000, but its television enterprise caused it a
monthly loss of about $10,000 during the first four months of that
operation, including the period here involved. Its rates for
television advertising were geared to the number of receiving sets
in the area. Local dealers had large inventories of such sets ready
to meet anticipated demands.
The company employed 22 technicians. In December, 1948,
negotiations to settle the terms of their employment
Page 346 U. S. 467
after January 31, 1949, were begun between representatives of
the company and of the respondent Local Union No. 1229,
International Brotherhood of Electrical Workers, American
Federation of Labor (here called the union). The negotiations
reached an impasse in January, 1949, and the existing contract of
employment expired January 31. The technicians nevertheless
continued to work for the company and their collective bargaining
negotiations were resumed in July, [
Footnote 3] only to break down again July 8. The main
point of disagreement arose from the union's demand for the renewal
of a provision that all discharges from employment be subject to
arbitration and the company's counterproposal that such arbitration
be limited to the facts material to each discharge, leaving it to
the company to determine whether those facts gave adequate cause
for discharge.
July 9, 1949, the union began daily peaceful picketing of the
company's station. Placards and handbills on the picket line
charged the company with unfairness to its technicians and
emphasized the company's refusal to renew the provision for
arbitration of discharges. The placards and handbills named the
union as the representative of the WBT technicians. The employees
did not strike. They confined their respective tours of picketing
to their off-uty hours, and continued to draw full pay. There was
no violence or threat of violence, and no one has taken exception
to any of the above conduct.
But on August 24, 1949, a new procedure made its appearance.
Without warning, several of its technicians
Page 346 U. S. 468
launched a vitriolic attack on the quality of the company's
television broadcasts. Five thousand handbills were printed over
the designation "WBT Technicians." These were distributed on the
picket line, on the public square two or three blocks from the
company's premises, in barbershops, restaurants, and busses. Some
were mailed to local businessmen. The handbills made no reference
to the union, to a labor controversy, or to collective bargaining.
They read:
"
I
S CHARLOTTE A SECOND-CLASS CITY?"
"You might think so from the kind of Television programs being
presented by the Jefferson Standard Broadcasting Co. over WBTV.
Have you seen one of their television programs lately? Did you know
that all the programs presented over WBTV are on film, and may be
from one day to five years old. There are no local programs
presented by WBTV. You cannot receive the local baseball games,
football games, or other local events, because WBTV does not have
the proper equipment to make these pickups. Cities like New York,
Boston, Philadelphia, Washington receive such programs nightly. Why
doesn't the Jefferson Standard Broadcasting Company purchase the
needed equipment to bring you the same type of programs enjoyed by
other leading American cities? Could it be that they consider
Charlotte a second-lass community, and only entitled to the
pictures now being presented to them?"
WBT TECHNICIANS
This attack continued until September 3, 1949, when the company
discharged ten of its technicians whom it charged with sponsoring
or distributing these handbills.
Page 346 U. S. 469
The company's letter discharging them tells its side of the
story. [
Footnote 4]
September 4, the union's picketing resumed its original tenor,
and, September 13, the union filed with the Board a charge that the
company, by discharging the above-entioned ten technicians, had
engaged in an unfair labor practice. The General Counsel for the
Board filed
Page 346 U. S. 470
a complaint based on those charges and, after hearing, a trial
examiner made detailed findings and a recommendation that all of
those discharged be reinstated with back pay. [
Footnote 5] 94 N.L.R.B. 1507, 1527. The Board
found that one of the discharged men had neither sponsored nor
distributed the "second-lass City" handbill, and ordered his
reinstatement with back pay. It then found that the other nine had
sponsored or distributed the handbill, and held that the company,
by discharging them for such conduct, had not engaged in an unfair
labor practice. The Board accordingly did not order their
reinstatement. One member dissented.
Id. at 1507
et
seq. Under § 10(f) of the Taft-artley Act, [
Footnote 6] the union petitioned the Court of
Appeals for the District of Columbia Circuit for a review of the
Board's order and for such a modification of it as would reinstate
all ten of the discharged technicians with back pay. That court
remanded the cause to the Board for further consideration and for a
finding as to the "unlawfulness" of the conduct of the employees
which had led to their discharge.
Page 346 U. S. 471
91 U.S. App.D.C. 333, 202 F.2d 186. [
Footnote 7] We granted certiorari because of the
importance of the case in the administration of the Taft-artley
Act. 345 U.S. 947.
In its essence, the issue is simple. It is whether these
employees, whose contracts of employment had expired, were
discharged "for cause." They were discharged solely because. at a
critical time in the initiation of the company's television
service, they sponsored or distributed 5,000 handbills making a
sharp, public, disparaging attack upon the quality of the company's
product and its business policies in a manner reasonably calculated
to harm the company's reputation and reduce its income. The attack
was made by them expressly as "WBT Technicians." It continued ten
days without indication of abatement. The Board found that --
"It [the handbill] occasioned widespread comment in the
community, and caused Respondent to apprehend a loss of advertising
revenue due to dissatisfaction with its television broadcasting
service."
"In short, the employees in this case deliberately undertook to
alienate their employer's customers by impugning the technical
quality of his product. As
Page 346 U. S. 472
the Trial Examiner found, they did not misrepresent, at least
willfully, the facts they cited to support their disparaging
report. And their ultimate purpose -- to extract a concession from
the employer with respect to the terms of their employment -- was
lawful. That purpose, however, was undisclosed; the employees
purported to speak as experts, in the interest of consumers and the
public at large. They did not indicate that they sought to secure
any benefit for themselves, as employees, by casting discredit upon
their employer."
94 N.L.R.B. at 1511.
The company's letter shows that it interpreted the handbill as a
demonstration of such detrimental disloyalty as to provide "cause"
for its refusal to continue in its employ the perpetrators of the
attack. We agree.
Section 10(c) of the Taft-artley Act expressly provides that
"No order of the Board shall require the reinstatement of any
individual as an employee who has been suspended or discharged, or
the payment to him of any back pay, if such individual was
suspended or discharged for cause. [
Footnote 8]"
There is no more elemental cause for discharge of an employee
than disloyalty to his employer. It is equally elemental that the
Taft-artley Act seeks to strengthen, rather than to weaken, that
cooperation, continuity of service, and cordial contractual
relation between employer and employee that is born of loyalty to
their common enterprise. [
Footnote
9]
Page 346 U. S. 473
Congress, while safeguarding, in § 7, the right of employees to
engage in "concerted activities for the purpose of collective
bargaining or other mutual aid or protection," [
Footnote 10] did not weaken the underlying
contractual bonds and loyalties of employer and employee. The
conference report that led to the enactment of the law said:
"[T]he courts have firmly established the rule that, under the
existing provisions of section 7 of the National Labor Relations
Act, employees are not given any right to engage in unlawful or
other improper conduct."
"
* * * *"
". . . Furthermore, in section 10(c) of the amended act, as
proposed in the conference agreement, it is specifically provided
that no order of the Board shall require the reinstatement of any
individual or the payment to him of any back pay if such individual
was suspended or discharged for cause, and this, of course, applies
with equal force whether or not the acts constituting the cause
for
Page 346 U. S. 474
discharge were committed in connection with a concerted
activity."
H.R.Rep.No. 510, 80th Cong., 1st Sess. 38-39.
This has been clear since the early days of the Wagner Act.
[
Footnote 11] In 1937, Chief
Justice Hughes, writing for the Court, said:
"The act does not interfere with the normal exercise of the
right of the employer to select its employees or to discharge them.
The employer may not, under cover of that right, intimidate or
coerce its employees with respect to their self-rganization and
representation, and, on the other hand, the Board is not entitled
to make its authority a pretext for interference with the right of
discharge when that right is exercised for other reasons than such
intimidation and coercion."
Labor Board v. Jones & Laughlin Steel Corp.,
301 U. S. 1,
301 U. S. 45-46.
See also Labor Board v. Fansteel Metallurgical Corp.,
306 U. S. 240,
306 U. S.
252-258;
Auto Workers v. Wisconsin Board,
336 U. S. 245,
336 U. S.
260-263.
Many cases reaching their final disposition in the Courts of
Appeals furnish examples emphasizing the importance of enforcing
industrial plant discipline and of maintaining loyalty, as well as
the rights, of concerted activities. The courts have refused to
reinstate employees discharged for "cause" consisting of
insubordination, disobedience, or disloyalty. In such cases, it
often has been necessary to identify individual employees, somewhat
comparable to the nine discharged in this case, and to recognize
that their discharges were for causes which were separable from the
concerted activities of others whose acts might come within the
protection of § 7. It has been equally important to
Page 346 U. S. 475
identify employees, comparable to the tenth man in the instant
case, who participated in simultaneous concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
but who refrained from joining the others in separable acts of
insubordination, disobedience, or disloyalty. In the latter
instances, this sometimes led to a further inquiry to determine
whether their concerted activities were carried on in such a manner
as to come within the protection of § 7.
See, e.g., Hoover Co.
v. Labor Board, 191 F.2d 380;
Maryland Drydock Co. v.
Labor Board, 183 F.2d 538;
Albrecht v. Labor Board,
181 F.2d 652;
Labor Board v. Kelco Corp., 178 F.2d 578;
Joanna Cotton Mills Co. v. Labor Board, 176 F.2d 749;
Labor Board v. Reynolds Pen Co., 162 F.2d 679, 680;
Home Beneficial Life Ins. Co. v. Labor Board, 159 F.2d
280;
Labor Board v. Montgomery Ward & Co., 157 F.2d
486;
Labor Board v. Draper Corp., 145 F.2d 199;
Labor
Board v. Aintree Corp., 135 F.2d 395;
United Biscuit Co.
v. Labor Board, 128 F.2d 771;
Labor Board v. Condenser
Corp., 128 F.2d 67;
Hazel-tlas Glass Co. v. Labor
Board, 127 F.2d 109;
Conn, Ltd. v. Labor Board, 108
F.2d 390
The above cases illustrate the responsibility that falls upon
the Board to find the facts material to such decisions. The legal
principle that insubordination, disobedience, or disloyalty is
adequate cause for discharge is plain enough. The difficulty arises
in determining whether, in fact, the discharges are made because of
such a separable cause, or because of some other concerted
activities engaged in for the purpose of collective bargaining or
other mutual aid or protection which may not be adequate cause for
discharge.
Cf. Labor Board v. Peter Cailler Kohler Swiss
Chocolates Co., 130 F.2d 503.
In the instant case, the Board found that the company's
discharge of the nine offenders resulted from their sponsoring and
distributing the "second-lass City" handbills
Page 346 U. S. 476
of August 24-September 3, issued in their name as the "WBT
Technicians." Assuming that there had been no pending labor
controversy, the conduct of the "WBT Technicians" from August 24
through September 3 unquestionably would have provided adequate
cause for their disciplinary discharge within the meaning of §
10(c). Their attack related itself to no labor practice of the
company. It made no reference to wages, hours, or working
conditions. The policies attacked were those of finance and public
relations, for which management, not technicians, must be
responsible. The attack asked for no public sympathy or support. It
was a continuing attack, initiated while off duty, upon the very
interests which the attackers were being paid to conserve and
develop. Nothing could be further from the purpose of the Act than
to require an employer to finance such activities. Nothing would
contribute less to the Act's declared purpose of promoting
industrial peace and stability. [
Footnote 12]
The fortuity of the coexistence of a labor dispute affords these
technicians no substantial defense. While they were also union men
and leaders in the labor controversy, they took pains to separate
those categories. In contrast to their claims on the picket line as
to the labor controversy, their handbill of August 24 omitted all
reference to it. The handbill diverted attention from the labor
controversy. It attacked public policies of the company which had
no discernible relation to that controversy. The only connection
between the handbill and
Page 346 U. S. 477
the labor controversy was an ultimate and undisclosed purpose or
motive on the part of some of the sponsors that, by the hoped-or
financial pressure, the attack might extract from the company some
future concession. A disclosure of that motive might have lost more
public support for the employees than it would have gained, for it
would have given the handbill more the character of coercion than
of collective bargaining. Referring to the attack, the Board said,
"In our judgment, these tactics, in the circumstances of this case,
were hardly less "indefensible" than acts of physical sabotage." 94
N.L.R.B. at 1511. In any event, the findings of the Board
effectively separate the attack from the labor controversy, and
treat it solely as one made by the company's technical experts upon
the quality of the company's product. As such, it was as adequate a
cause for the discharge of its sponsors as if the labor controversy
had not been pending. The technicians themselves so handled their
attack as thus to bring their discharge under § 10(c).
The Board stated,
"We . . . do not decide whether the disparagement of product
involved here would have justified the employer in discharging the
employees responsible for it had it been uttered in the context of
a conventional appeal for support of the union in the labor
dispute."
Id. at 1512, n. 18. This underscored the Board's
factual conclusion that the attack of August 24 was not part of an
appeal for support in the pending dispute. It was a concerted
separable attack purporting to be made in the interest of the
public rather than in that of the employees.
We find no occasion to remand this cause to the Board for
further specificity of findings. Even if the attack were to be
treated, as the Board has not treated it, as a concerted activity
wholly or partly within the scope of those mentioned in § 7, the
means used by the technicians in conducting the attack have
deprived the attackers of
Page 346 U. S. 478
the protection of that section when read in the light and
context of the purpose of the Act. [
Footnote 13]
Accordingly, the order of the Court of Appeals remanding the
cause to the National Labor Relations Board is set aside, and the
cause is remanded to the Court of Appeals with instructions to
dismiss respondent's petition to modify the order of the Board.
It is so ordered.
[
Footnote 1]
"SEC. 7. Employees shall have the right to self-rganization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in section 8(a)(3)."
"SEC. 8. (a) It shall be an unfair labor practice for an
employer --"
"(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7. . . ."
National Labor Relations Act, as amended by the Labor Management
Relations Act, 1947, 61 Stat. 140, 29 U.S.C.(Supp. V) §§ 157,
158(a)(1).
[
Footnote 2]
"SEC. 10. . . ."
"
* * * *"
"(c) . . . If, upon the preponderance of the testimony taken,
the Board shall be of the opinion that any person named in the
complaint has engaged in or is engaging in any such unfair labor
practice, then the Board shall state its findings of fact and shall
issue and cause to be served on such person an order requiring such
person to cease and desist from such unfair labor practice, and to
take such affirmative action including reinstatement of employees
with or without back pay, as will effectuate the policies of this
Act:
Provided, That where an order directs reinstatement
of an employee, back pay may be required of the employer or labor
organization, as the case may be, responsible for the
discrimination suffered by him. . . . If, upon the preponderance of
the testimony taken, the Board shall not be of the opinion that the
person named in the complaint has engaged in or is engaging in any
such unfair labor practice, then the Board shall state its findings
of fact, and shall issue an order dismissing the said complaint.
No order of the Board shall require the reinstatement of any
individual as an employee who has been suspended or discharged, or
the payment to him of any back pay if such individual was suspended
or discharged for cause. . . ."
(Emphasis supplied in last sentence.) 61 Stat. 146, 147, 29
U.S.C. (Supp. V) § 160(c).
[
Footnote 3]
Pursuant to proceedings begun in October, 1948, and to an
election in May, 1949, under the supervision of the Board, the
union (by a vote of 12 to 2 of the 14 technicians participating)
was chosen as the exclusive collective bargaining representative of
the company's technicians. May 9, 1949, the union was so certified
by the Board. 94 N.L.R.B. 1507, 1529.
[
Footnote 4]
"Dear Mr. ___,"
"When you and some of our other technicians commenced early in
July to picket against this Company, we felt that your action was
very ill considered. We were paying you a salary of ___ per week,
to say nothing of other benefits which you receive as an employee
of our Company, such as time-nd--alf pay for all work beyond eight
hours in any one day, three weeks vacation each year with full pay,
unlimited sick leave with full pay, liberal life insurance and
hospitalization for you and your family, and retirement and pension
benefits unexcelled anywhere. Yet, when we were unable to agree
upon the terms of a contract with your Union, you began to denounce
us publicly as 'unfair.'"
"And ever since early July, while you have been walking up and
down the street with placards and literature attacking us, you have
continued to hold your job and receive your pay and all the other
benefits referred to above."
"Even when you began to put out propaganda which contained many
untruths about our Company and great deal of personal abuse and
slander, we still continued to treat you exactly as before. For it
has been our understanding that, under our labor laws, you have a
very great latitude in trying to make the public believe that your
employer is unfair to you."
"Now, however, you have turned from trying to persuade the
public that we are unfair to you, and are trying to persuade the
public that we give inferior service to them. While we are
struggling to expand into and develop a new field, and,
incidentally, losing large sums of money in the process, you are
busy trying to turn customers and the public against us in every
possible way, even handing out leaflets on the public streets
advertising that our operations are'second-lass,' and endeavoring
in various ways to hamper and totally destroy our business.
Certainly we are not required by law or common sense to keep you in
our employment and pay you a substantial salary while you thus do
your best to tear down and bankrupt our business."
"You are hereby discharged from our employment. Although there
is nothing requiring us to do so, and the circumstances certainly
do not call for our doing so, we are enclosing a check payable to
your order for two weeks' advance or severance pay."
Very truly yours,
Jefferson Standard Broadcasting Company
By: CHARLES H. CRUTCHFIELD
Vice President
"Enclosure"
[
Footnote 5]
Allegations based on the same facts and charging violations of §
8(a)(3) and (5) of the Taft-artley Act do not require discussion
here.
[
Footnote 6]
61 Stat. 148-149, 29 U.S.C. (Supp. V) § 160(f).
[
Footnote 7]
The Court of Appeals said:
"Protection under § 7 of the Act . . . is withdrawn only from
those concerted activities which contravene either (a) specific
provisions or basic policies of the Act or of related federal
statutes, or (b) specific rules of other federal or local law that
is not incompatible with the Board's governing statute. . . ."
"
* * * *"
"We think the Board failed to make the finding essential to its
conclusion that the concerted activity was unprotected. Sound
practice in judicial review of administrative orders precludes this
court from determining 'unlawfulness' without a prior consideration
and finding by the Board."
91 U.S. App.D.C. at 335, 336, 202 F.2d at 188, 189.
[
Footnote 8]
See note 2
supra.
[
Footnote 9]
The Act's declaration of the policy says:
"SECTION 1. . . ."
"
* * * *"
"(b) Industrial strife which interferes with the normal flow of
commerce and with the full production of articles and commodities
for commerce can be avoided or substantially minimized if
employers, employees, and labor organizations each recognize under
law one another's legitimate rights in their relations with each
other, and, above all, recognize under law that neither party has
any right in its relations with any other to engage in acts or
practices which jeopardize the public health, safety, or
interest."
"It is the purpose and policy of this Act, in order to promote
the full flow of commerce, to prescribe the legitimate rights of
both employees and employees in their relations affecting commerce,
to provide orderly and peaceful procedures for preventing the
interference by either with the legitimate rights of the other, to
protect the rights of individual employees in their relations with
labor organizations whose activities affect commerce, to define and
proscribe practices on the part of labor and management which
affect commerce and are inimical to the general welfare, and to
protect the rights of the public in connection with labor disputes
affecting commerce."
61 Stat. 136, 29 U.S.C. (Supp. V) § 141(b).
[
Footnote 10]
See note 1
supra.
[
Footnote 11]
National Labor Relations Act of July 5, 1935, 49 Stat. 449, 29
U.S.C. § 151
et seq.
[
Footnote 12]
". . . An employee cannot work and strike at the same time. He
cannot continue in his employment and openly or secretly refuse to
do his work. He cannot collect wages for his employment and, at the
same time, engage in activities to injure or destroy his employer's
business."
Hoover Co. v. Labor Board, 191 F.2d 380, 389,
and
see Labor Board v. Montgomery Ward & Co., 157 F.2d 486,
496;
United Biscuit Co. of America v. Labor Board, 128
F.2d 771.
[
Footnote 13]
See Labor Board v. Rockaway News Supply Co.,
345 U. S. 71
(discharge for violation of an obligation to make deliveries, even
though crossing a picket line, sustained);
Auto Workers v.
Wisconsin Board, 336 U. S. 245,
336 U. S.
255-263 (arbitrary unannounced interruptions of work not
protected by § 7);
Southern S.S. Co. v. Labor Board,
316 U. S. 31
(discharge of seamen for disobedience on shipboard while away from
home port sustained);
Allen-radley Local v. Wisconsin
Board, 315 U. S. 740
(mass picketing unprotected);
Hotel and Restaurant Employees'
Local v. Wisconsin Board, 315 U. S. 437
(violence, while picketing, unprotected);
Labor Board v. Sands
Manufacturing Co., 306 U. S. 332
(discharge for repudiation of employee's agreement sustained);
Labor Board v. Fansteel Metallurgical Corp., 306 U.
S. 240 (discharge for tortious conduct, violence, or
sit-own strike sustained);
and see Associated Press v. Labor
Board, 301 U. S. 103,
301 U. S. 132;
Labor Board v. Jones & Laughlin Steel Corp.,
301 U. S. 1,
301 U. S. 45-46.
See also Cox, The Right to Engage in Concerted Activities,
26 Ind.L.J. 319 (1951); Recent Cases, 66 Harv.L.Rev. 1321
(1953).
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BLACK and MR. JUSTICE
DOUGLAS join, dissenting.
The issue before us is not whether this Court would have
sustained the Board's order in this case had we been charged by
Congress, as we could not have been, "with the normal and primary
responsibility for granting or denying enforcement of Labor Board
orders."
Labor Board v. Pittsburgh S.S. Co., 340 U.
S. 498,
340 U. S. 502.
The issue is whether we should reverse the Court of Appeals, which
is so charged, because that court withheld immediate decision on
the Board's order, and asked the Board for further light. That
court found that the Board employed
Page 346 U. S. 479
an improper standard as the basis for its decision. The Board
judged the conduct in controversy by finding it "indefensible." The
Court of Appeals held that, by "giving "indefensible" a vague
content different from
unlawful,' the Board misconceived the
scope of the established rule." 91 U.S. App.D.C. 333, 202 F.2d 186,
188. Within "unlawful," that court included activities which
"contravene . . . basis policies of the Act." The Court of Appeals
remanded the case for the Board's judgment whether the conduct of
the employees was protected by § 7 under what it deemed "the
established rule."
On this central issue -- whether the Court of Appeals rightly or
wrongly found that the Board applied an improper criterion -- this
Court is silent. It does not support the Board in using
"indefensible" as the legal litmus, nor does it reject the Court of
Appeals' rejection of that test. This Court presumably does not
disagree with the assumption of the Court of Appeals that conduct
may be "indefensible" in the colloquial meaning of that loose
adjective and yet be within the protection of § 7.
Instead, the Court, relying on § 10(c), which permits discharges
"for cause," points to the "disloyalty" of the employees and finds
sufficient "cause" regardless of whether the handbill was a
"concerted activity" within § 7. Section 10(c) does not speak of
discharge "for disloyalty." If Congress had so written that
section, it would have overturned much of the law that had been
developed by the Board and the courts in the twelve years preceding
the Taft-artley Act. The legislative history makes clear that
Congress had no such purpose, but was rather expressing approval of
the construction of "concerted activities" adopted by the Board and
the courts. [
Footnote 2/1] Many of
the legally recognized tactics and weapons of
Page 346 U. S. 480
labor would readily be condemned for "disloyalty" were they
employed between man and man in friendly personal relations. In
this connection, it is significant that the ground now taken by the
Court, insofar as it is derived from the provision of § 10(c)
relating to discharge "for cause," was not invoked by the Board in
justification of its order.
To suggest that all actions which, in the absence of a labor
controversy, might be "cause" -- or, to use the words commonly
found in labor agreements, "just cause" -- for discharge should be
unprotected, even when such actions were undertaken as "concerted
activities for the purpose of collective bargaining," is to
misconstrue legislation designed to put labor on a fair footing
with management. Furthermore, it would disregard the rough and
tumble of strikes, in the course of which loose and even reckless
language is properly discounted.
"Concerted activities" by employees and dismissal "for cause" by
employers are not dissociated legal criteria under the Act. They
are like the two halves of a pair of shears. Of course, as the
Conference Report on the Taft-artley Act said, men on strike may be
guilty of conduct "in connection with a concerted activity" which
properly constitutes "cause" for dismissal, and bars reinstatement.
[
Footnote 2/2] But § 10(c) does not
obviate the necessity for a determination whether the distribution
of the handbill here was a legitimate tool in a labor dispute, or
was so "improper," as the Conference Report put it, as to be denied
the protection of § 7 and to constitute a discharge "for cause." It
is for the Board, in the first instance, to make these evaluations,
and a court of appeals does not travel beyond its proper bounds in
asking the Board for greater explicitness in light of the correct
legal standards for judgment.
Page 346 U. S. 481
The Board and the courts of appeals will hardly find guidance
for future cases from this Court's reversal of the Court of
Appeals, beyond that which the specific facts of this case may
afford. More than that, to float such imprecise notions as
"discipline" and "loyalty" in the context of labor controversies,
as the basis of the right to discharge is to open the door wide to
individual judgment by Board members and judges. One may anticipate
that the Court's opinion will needlessly stimulate litigation.
Section 7, of course, only protects "concerted activities" in
the course of promoting legitimate interests of labor. But to treat
the offensive handbills here as though they were circulated by the
technicians as interloping outsiders to the sustained dispute
between them and their employer is a very unreal way of looking at
the circumstances of a labor controversy. Certainly there is
nothing in the language of the Act or in the legislative history to
indicate that only conventional placards and handbills, headed by a
trite phrase such as "Unfair To Labor," are protected. In any
event, on a remand, the Board could properly be asked to leave no
doubt whether the technicians, in distributing the handbills, were,
so far as the public could tell, on a frolic of their own, or
whether this tactic, however unorthodox, was no more unlawful than
other union behavior previously found to be entitled to
protection.
It follows that the Court of Appeals should not be reversed.
[
Footnote 2/1]
H.R.Rep.No.245, 80th Cong., 1st Sess. 27-28; H.R.Rep.No.510,
80th Cong., 1st Sess. 38-39.
[
Footnote 2/2]
H.R.Rep. No.510, 80th Cong., 1st Sess. 39.