At a time when the union represented less than a majority of the
employees, a company and a union entered into a collective
bargaining agreement containing a "union security" clause, by which
all employees were required, after a 45-day grace period, to become
and remain members of the union as a condition of employment. More
than six months later, the General Counsel of the National Labor
Relations Board filed and served on the company and the union
complaints charging that continued enforcement of the agreement
(within the preceding six months) was an unfair labor practice in
violation of the National Labor Relations Act.
Held: the complaints were barred by the six-month
statute of limitations contained in §10(b) of the Act, as amended.
Pp.
362 U. S.
411-429.
105 U.S.App.D.C. 102, 264 F.2d 575, reversed.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The question we decide in this case is whether unfair labor
practice complaints, whose charges against the petitioners were
sustained by the National Labor Relations
Page 362 U. S. 412
Board, were barred by the six-month statute of limitations
contained in § 10(b) of the National Labor Relations Act, as
amended, 61 Stat. 146, 29 U.S.C. § 160(b). That section reads in
pertinent part:
"
Provided . . . no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the
filing of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is made. . .
."
On August 10, 1954, petitioners Bryan Manufacturing Company and
the International Association of Machinists, AFL, entered into a
collective bargaining agreement for a unit of Bryan's employees.
The agreement, as later supplemented in certain respects not
material to this litigation, contained the conventional provisions,
of which two are relevant here: the "recognition" clause, by which
the Union was recognized as "the sole and exclusive bargaining
agency for all employees" in the unit, and the "union security"
clause, by which all employees were required, subject to a 45-day
grace period, to become and remain members of the Union. On August
30, 1955, a new agreement was entered into, with Bryan, the Union,
and petitioner Local Lodge No. 1424, IAM, as signatories, replacing
the old agreement and applying additionally to employees at a newly
opened plant as well as to those covered by the original
agreement.
When the original agreement was executed on August 10, 1954, the
Union did not represent a majority of the employees covered by it.
[
Footnote 1] Under §§ 7 and 8
of the Act, [
Footnote 2]
Page 362 U. S. 413
the Board has evolved the principle, not drawn in question here,
that it is an unfair labor practice for an employer and a labor
organization to enter into a collective bargaining agreement which
contains a union security clause if, at the time of original
execution, the union does not represent a majority of the employees
in the
Page 362 U. S. 414
unit. [
Footnote 3] The
maintaining of such an agreement in force is a continuing violation
of the Act, and the "majority status" of the union at any
subsequent date -- including the date of execution of any renewals
of the original agreement -- is immaterial, for it is presumed that
subsequent acquisition of a majority status is attributable to the
earlier unlawful assistance received from the original agreement.
[
Footnote 4]
In June and August, 1955, 10 months and 12 months after the
execution of the original agreement, charges were filed with the
Board and served upon the petitioners, alleging the Union's lack of
majority status at the time of execution and the consequent
illegality of the continued enforcement of the agreement.
Complaints were thereafter issued by the Board's General Counsel
against the Union and the Company. Petitioners contended before the
Board that the complaints were barred by the limitations proviso of
§ 10(b), set forth above. The Board, two members dissenting, held
that the complaints were not barred by limitations, 119 N.L.R.B.
502, and the Court of Appeals affirmed, one judge dissenting. 105
U.S.App.D.C. 102, 264 F.2d 575. We granted certiorari, 360 U.S.
916, because of the importance of the question in the proper
administration of the National Labor Relations Act. For reasons
given in this opinion,
Page 362 U. S. 415
we hold that the complaints against these petitioners are barred
by time. [
Footnote 5]
We first note the opposing contentions of the parties. The Board
starts with the premise that a collective bargaining agreement
which contains a union security clause valid on its face, but which
was entered into when the Union did not have a majority status,
gives rise to two independent unfair labor practices, one being the
execution of the agreement, the other arising from its continued
enforcement. Conceding that a complaint predicated on the
execution of the agreement here challenged was barred by
limitations, the Board contends that its complaint was nonetheless
timely, since it was "based upon" the parties' continued
enforcement, within the period of limitations, of the
union security clause. It is then said that, even though the former
was itself time-barred, the unlawful execution of the agreement was
nevertheless "relevant in determining whether conduct within the
6-month period was unlawful," 119 N.L.R.B. at 504, and that
evidence as to it was admissible because § 10(b) is a statute of
limitations, and not a rule of evidence.
On the other hand, petitioners contend that, standing alone, the
union security clause and its enforcement were wholly innocent;
that they were tainted only by virtue of the original unlawful
execution of the agreement; and that, since a complaint based upon
that unfair labor practice was barred by limitations, that event
itself could not be utilized to infuse with illegality the
otherwise legal union security clause or its enforcement. They say,
in short, that to apply in this situation the doctrine that § 10(b)
is a statute of limitations, and not a rule of evidence, is to
circumvent the purposes of the section, and
Page 362 U. S. 416
that acceptance of the Board's position would mean that the
statute of limitations would never run in a case of this kind. We
think petitioners' position represents the correct view of the
matter.
It is doubtless true that § 10(b) does not prevent all use of
evidence relating to events transpiring more than six months before
the filing and service of an unfair labor practice charge. However,
in applying rules of evidence as to the admissibility of past
events, due regard for the purposes of § 10(b) requires that two
different kinds of situations be distinguished. The first is one
where occurrences within the six-month limitations period, in and
of themselves, may constitute, as a substantive matter, unfair
labor practices. There, earlier events may be utilized to shed
light on the true character of matters occurring within the
limitations period, and, for that purpose, § 10(b) ordinarily does
not bar such evidentiary use of anterior events. [
Footnote 6] The second situation is that
where conduct
Page 362 U. S. 417
occurring within the limitations period can be charged to be an
unfair labor practice only through reliance on an earlier unfair
labor practice. There, the use of the earlier unfair labor practice
is not merely "evidentiary," since it does not simply lay bare a
putative current unfair labor practice. Rather, it serves to cloak
with illegality that which was otherwise lawful. And where a
complaint based upon that earlier event is time-barred, to permit
the event itself to be so used in effect results in reviving a
legally defunct unfair labor practice.
The situation before us is of this latter variety, for the
entire foundation of the unfair labor practice charged was the
Union's time-barred lack of majority status when the original
collective bargaining agreement was signed. In the absence of that
fact, enforcement of this otherwise valid union security clause was
wholly benign. [
Footnote 7]
The
Page 362 U. S. 418
Trial Examiner, whose findings were adopted by the Board,
observed:
"The General Counsel concedes that the 6-month limitation of
Section 10(b) of the Act precludes currently finding the
execution [
Footnote 8]
of the 1954 agreement to be an unfair labor practice, and also
precludes currently finding its
enforcement to be an
unfair labor practice . . . at any time prior to the . . . periods
beginning 6 months prior to the . . . charges. . . . However, this
concession in no way detracts from the crucial nature of the
earlier events, because at the core of the General Counsel's
contentions as to all of the unfair labor practices is his
fundamental position that,
because of the circumstances
prevailing when made, the original union security agreement of
1954 has never been valid or legal, since it has never met certain
overriding requirements of Section 8(a)(3) of the Act."
119 N.L.R.B. at 530. (Emphasis added, except as indicated.)
[
Footnote 9]
Page 362 U. S. 419
Where, as here, a collective bargaining agreement and its
enforcement are both perfectly lawful on the face of things, and an
unfair labor practice cannot be made out except by reliance on the
fact of the agreement's original unlawful execution, an event
which, because of limitations, cannot itself be made the subject of
an unfair labor practice complaint, we think that permitting resort
to the principle that § 10(b) is not a rule of evidence, in order
to convert what is otherwise legal into something illegal, would
vitiate the policies underlying that section. These policies are to
bar litigation over past events
"after records have been destroyed, witnesses have gone
elsewhere, and recollections of the events in question have become
dim and confused,"
H.R.Rep.No. 245, 80th Cong., 1st Sess., p. 40, [
Footnote 10] and, of course, to stabilize
existing bargaining relationships.
Our view of the matter is lent support by the attitude of the
Board itself, whose previous decisions, albeit not always with
unanimity among its members or even perhaps with perfect
consistency, have recognized that evidentiary rules as to past
events must be regarded differently in the two situations we have
already depicted.
Compare, e.g., Potlatch Forests, Inc.,
87 N.L.R.B. 1193, where evidence as to events during the barred
period was used to illuminate current conduct claimed in itself to
be
Page 362 U. S. 420
an unfair labor practice, [
Footnote 11]
with Bowen Products Corp., 113
N.L.R.B. 731, and
Greenville Cotton Oil Co., 92 N.L.R.B.
1033,
aff'd sub nom. American Federation of Grain Millers,
A.F.L. v. Labor Board, 197 F.2d 451, where the gravamen of the
unfair labor practice complained of lay in a fact or event
occurring during the barred period. [
Footnote 12]
Page 362 U. S. 421
Indeed, some Board cases have gone even further and held § 10(b)
a bar in circumstances when, although none of the material elements
of the charge in a timely complaint need necessarily be proved
through reference to the barred period -- so that utilization of
evidence from that period is ostensibly only for the purpose of
giving color to what is involved in the complaint -- yet the
evidence in fact marshalled from within the six-month period is not
substantial, and the merit of the allegations in the complaint is
shown largely by reliance on the earlier events.
See, e.g.,
News Printing Co., 116 N.L.R.B. 210, 212;
Universal Oil
Products Co., 108 N.L.R.B. 68;
Tennessee Knitting Mills,
Inc., 88 N.L.R.B. 1103. [
Footnote 13]
Page 362 U. S. 422
However, we express no view on the problem raised by such cases,
for here we need not go beyond saying that a finding of violation
which is inescapably grounded on events predating the limitations
period is directly at odds with the purposes of the § 10(b)
proviso. [
Footnote 14]
The applicability of these principles cannot be avoided here by
invoking the doctrine of continuing violation. It may be conceded
that the continued enforcement, as well as the execution, of this
collective bargaining agreement constitutes an unfair labor
practice, and that these are two logically separate violations,
independent in the sense that they can be described in discrete
terms.
Page 362 U. S. 423
Nevertheless, the vice in the enforcement of this agreement is
manifestly not independent of the legality of its execution, as
would be the case, for example, with an agreement invalid on its
face or with one validly executed, but unlawfully administered. As
the dissenting Board members in this case recognized, in dealing
with an agreement claimed to be void by reason of the union's lack
of majority status at the time of its execution,
". . . the circumstances which cause the agreement to be invalid
existed only at the point in time in the past when the agreement
was executed and are not thereafter repeated. For this reason,
therefore, the continuing invalidity of the agreement is directly
related to, and is based solely on, its initial invalidity, and has
no continuing independent basis."
119 N.L.R.B. at 516. In any real sense, then, the complaints in
this case are "based upon" the unlawful execution of the agreement,
for its enforcement, though continuing, is a continuing violation
solely by reason of circumstances existing only at the date of
execution. To justify reliance on those circumstances on the ground
that the maintenance in effect of the agreement is a continuing
violation is to support a lifting of the limitations bar by a
characterization which becomes apt only when that bar has already
been lifted. Put another way, if the § 10(b) proviso is to be given
effect, the enforcement, as distinguished from the execution, of
such an agreement as this constitutes a suable unfair labor
practice only for six months following the making of the agreement.
[
Footnote 15]
Page 362 U. S. 424
The Board's ruling is further sought to be supported on the
ground that it did not rest on a formal finding that the execution
of the 1954 agreement constituted an unfair labor practice. The
Court of Appeals, while stating that the Board could not draw "any
legal conclusion with regard to events outside the statutory
period," distinguished the decision here as resting on the
"mere
existence [of the facts surrounding the making of
the 1954 contract], rather than on ascribing legal significance to
those facts standing alone."
105 U.S.App.D.C. at 108, 264 F.2d at 581 (emphasis by the
court). This distinction sacrifices the policy of the Act to
procedural formalities. If, as is not disputable, the § 10(b)
limitation was prompted by "complaint that people were being
brought to book upon stale charges,"
Labor Board v. Pennwoven,
Inc., 194 F.2d 521, 524, it is a particular use of the
pre-limitations facts or conduct at which the section is aimed, and
it can hardly be thought relevant that the proscribed
Page 362 U. S. 425
use has not been labeled as such. The applicability of the
policy of § 10(b) in the
Grain Millers case,
supra, where in the particular circumstances of that case,
and not because of anything arising from § 10(b), the challenged
acts within the limitations period could not be condemned as
unlawful without an express declaration that earlier conduct
constituted an unfair labor practice (
see note 12 ante), was not greater
than it is here, where, although there was no "finding" that
execution of the agreement constituted an unfair labor practice, it
is manifest that, were that not in fact the case, enforcement of
the agreement would carry no taint of illegality. The availability
of the repose sought to be assured by § 10(b) cannot turn on the
vagaries of any such hypertechnical distinctions, bearing no
relation to the purpose of the legislation.
It is apparently not disputed that the Board's position would
withdraw virtually all limitations protection from collective
bargaining agreements attacked on the ground asserted here. For,
once the principle on which the decision below rests is accepted,
so long as the contract -- or any renewal thereof -- is still in
effect, the six-month period does not even begin to run.
Cf.
Bowen Products Corp., supra, at 732. In
Lively Photos,
Inc., 123 N.L.R.B. 1054, the Board unhesitatingly applied the
doctrine of the case at bar to an attack upon an agreement executed
more than three and one-half years prior to the filing of the
charge. The cease and desist order entered in that case directed
the severance of a bargaining relationship which had been initiated
five years earlier. A doctrine which does such disservice to
stability of bargaining relationships could be upheld, in light of
the language and evident purpose of § 10(b), only by a convincing
showing that Congress did not intend that provision to be applied
so as to bar attacks on collective agreements with unions lacking
majority status unless brought within six months of their
execution. Far
Page 362 U. S. 426
from providing such a showing, the legislative history contains
affirmative evidence that Congress was specifically advertent to
the problem of agreements with minority unions, had previously been
at pains to protect such agreements from belated attack, and
manifested an intention, in enacting § 10(b), not to withdraw that
protection.
Four years prior to the enactment of the Taft-Hartley
amendments, of which the § 10(b) limitations proviso was one,
Congress barred the Board from proceeding, under certain conditions
not here relevant, in cases
"arising over an agreement between management and labor which
has been in existence for three months or longer without complaint
being filed."
Labor Board Appropriation Act, 1944, 57 Stat. 515. This
legislation was enacted with specific reference to agreements with
minority unions, [
Footnote
16] and was reenacted in each succeeding session through 1947.
[
Footnote 17] At the time
the Senate Committee on Labor and Public Welfare reported S. 1126
(the Senate version of the proposed legislation enacted as the
Labor Management Relations Act, 1947), a rider to the
appropriations bill for the fiscal year 1948
Page 362 U. S. 427
(H.R. 2700, 80th Cong., 1st Sess.) was pending before the Senate
Appropriations Committee, having been previously reported by the
House Appropriations Committee in language identical with that of
its predecessors. The Labor Committee's discussion of the proposed
§ 10(b) amendment is illuminating:
"The principal substantive change in this section is a provision
for a 6-month period of limitations upon the filing of charges. The
Board itself by adopting a doctrine of laches has to some extent
discouraged dilatory filing of charges, and a rider to the current
appropriations bill (
which, if this amendment was adopted,
would no longer be necessary) contains a 3-month period of
limitations with respect to certain kinds of unfair labor
practices."
S.Rep.No.105, 80th Cong. 1st Sess., p. 26. (Emphasis added.)
This language cannot be squared with an interpretation of § 10(b)
which would ascribe to Congress, in enacting for the first time a
general limitations provision, a purpose to eliminate the
then-existing all-embracing limitation specifically applicable to
agreements with minority unions. [
Footnote 18]
Page 362 U. S. 428
In sustaining the Board's position, the Court of Appeals also
relied on the public character of the right sought to be vindicated
by the Board, and the limited scope of judicial review of Board
determinations. Observing that,
"in interpreting, applying, and administering a statute of
limitations prescribed by Congress in this context [the field of
labor relations], the Board -- and the courts -- are not confronted
by precisely the same considerations as apply to statutes of
limitations affecting the private rights of two individual
litigants,"
the Court reasoned that
"[t]he Board may have thought that the interests of [employee]
self-determination outweighed otherwise important competing
considerations of burying stale disputes."
105 U.S.App.D.C. at 108-109, 264 F.2d at 581-582. We think this
analysis inadmissible here for the reason that the accommodation
between these competing factors has already been made by Congress.
It is a commonplace, but one too easily lost sight of, that labor
legislation traditionally entails the adjustment and compromise of
competing interests which in the abstract or from a purely partisan
point of view may seem irreconcilable. The "police of the Act" is
embodied in the totality of that adjustment, and not necessarily in
any single demand which may have figured, however weightily, in it.
Cf. note 7
ante. It may be asserted without fear of contradiction
that the interest in employee freedom of choice is one of those
given large recognition by the Act as amended. But neither can one
disregard the interest in "industrial peace which it is the overall
purpose of the Act to secure."
Labor Board v. Childs Co.,
195 F.2d 617, 621-622 (concurring opinion of L. Hand, J.).
Cf.
338 U. S. v.
Labor
Page 362 U. S. 429
Board, 338 U. S. 355,
338 U. S.
362-363. As expositor of the national interest,
Congress, in the judgment that a six-month limitations period did
"not seem unreasonable," H.R.Rep.No. 245, 80th Cong., 1st Sess., p.
40, barred the Board from dealing with past conduct after that
period had run, even at the expense of the vindication of statutory
rights. [
Footnote 19]
"It is not necessary for us to justify the policy of Congress.
It is enough that we find it in the statute. That policy cannot be
defeated by the Board's policy. . . ."
Colgate-Palmolive Peet Co. v. Labor Board, supra,. at
338 U. S. 363.
Cf. Southern S.S. Co. v. Labor Board, 316 U. S.
31,
316 U. S.
47.
Reversed.
[
Footnote 1]
It was so found by the Board, and petitioners have not
challenged that finding.
[
Footnote 2]
Section 7 (61 Stat. 140, 29 U.S.C. § 157) provides:
"Employees shall have the right to self-organization, 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)."
Section 8 (61 Stat. 140, as amended, 29 U.S.C. § 158)
provides:
"(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;"
"(2) to dominate or interfere with the formation or
administration of any labor organization or contribute financial or
other support to it: . . ."
"(3) by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization:
Provided, That
nothing in this Act, or in any other statute of the United States,
shall preclude an employer from making an agreement with a labor
organization (not established, maintained, or assisted by any
action defined in section 8(a) of this Act as an unfair labor
practice) to require as a condition of employment membership
therein on or after the thirtieth day following the beginning of
such employment or the effective date of such agreement, whichever
is the later, . . . if such labor organization is the
representative of the employees as provided in section 9(a), in the
appropriate collective bargaining unit covered by such agreement
when made; . . ."
"
* * * *"
"(b) It shall be an unfair labor practice for a labor
organization or its agents --"
"(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7: . . ."
"(2) to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3). . . ."
[
Footnote 3]
The same doctrine is applied to an agreement containing only a
"recognition" clause making a union the exclusive bargaining agent
for all employees in the unit covered by the agreement.
See
Bernhard-Altmann Texas Corp., 122 N.L.R.B. 1289;
Charles
W. Carter Co., 115 N.L.R.B. 251, 262;
International Metal
Products Co., 104 N.L.R.B. 1076;
John B. Shriver Co.,
103 N.L.R.B. 23, 38;
and see the Trial Examiner's
discussion in the present case, 119 N.L.R.B. 502, 555, n. 98. The
agreement now in question contained both a union security and a
recognition clause, but, for convenience, we shall deal with the
matter in terms of the union security clause alone.
[
Footnote 4]
See 119 N.L.R.B. at 546, 548.
[
Footnote 5]
The petition for certiorari also raised an issue as to the
propriety of the relief ordered by the Board. Because of our view
of the case, it becomes unnecessary to reach that question.
[
Footnote 6]
The most frequently cited Board expression of this principle is
that found in
Axelson Mfg. Co., 88 N.L.R.B. 761, 766:
"As I interpret the statute, however, Section 10(b) enacts a
statute of limitations, and not a rule of evidence. It forbids the
issuance of complaints and, consequently, findings of violation of
the statute in conduct not within the 6 months' period. But it does
not, as I construe it, forbid the introduction of relevant evidence
bearing on the issue as to whether a violation has occurred during
the 6 months' period. Events obscure, ambiguous, or even
meaningless when viewed in isolation may, like the component parts
of an equation, become clear, definitive, and informative when
considered in relation to other action. Conduct, like language,
takes its meaning from the circumstances in which it occurs.
Congress can scarcely have intended that the Board, in the
performance of its duty to decide the validity of conduct within
the 6 months' period, should ignore reliable, probative, and
substantial evidence as to the meaning and the nature of the
conduct. Had such been the intent, it seems reasonable to assume
that it would have been stated."
The Board, however, has developed certain limits on the
applicability of this principle.
See p.
362 U. S. 421,
post, and
note
13
[
Footnote 7]
It was the view of one member of the Board majority that a
presumption of illegality should attend the enforcement of a union
security clause, so that sufficient proof of violation results
merely from a showing that such a clause is operative, thus putting
on the parties to the agreement the burden to defend by proving
compliance with the requirements of the proviso to § 8(a)(3) of the
Act, 61 Stat. 140, as amended, 29 U.S.C. § 158(a)(3),
see
note 2 ante, including
majority status at the time of execution. 119 N.L.R.B. at 510.
While acceptance of this view would concededly support the result
reached below, it was not adopted by the Board, as the concurring
member acknowledged.
Id. at 511. We too reject it. It
rests on the mistaken judgment that the proviso to § 8(a)(3)
permits the inclusion of union security provisions "in derogation
of the rights guaranteed employees in the definitive statement of
national police contained in Section 7,"
id. at 510, and
on the principle that, exoneration of certain types of union
security clauses having been granted in a proviso, the burden of
proving the proviso's applicability rests on him asserting it. The
latter principle need not detain us; insights derived from
syntactical analysis form a hazardous basis for the explication of
major legislative enactments. As to the argument drawn from § 7, it
would be enough to note that that very provision is, in terms,
limited by the scope of the § 8(a)(3) proviso. (
See
note 2 ante.) More to
the heart of the matter, it is the entire Act, and not merely one
portion of it, which embodies "the definitive statement of national
policy." It is well known, and the legislative history of the 1947
Taft-Hartley amendments plainly shows, that § 8(a)(3) -- including
its proviso -- represented the Congressional response to the
competing demands of employee freedom of choice and union security.
Had Congress thought one or the other overriding, it would
doubtless have found words adequate to express that judgment. It
did not do so; it accommodated both interests, doubtless in a
manner unsatisfactory to the extreme partisans of each, by drawing
a line it thought reasonable. It is not for the administrators of
the Congressional mandate to approach either side of that line
grudgingly.
[
Footnote 8]
Emphasis here by the Trial Examiner.
[
Footnote 9]
These observations were accepted both by the Board and the Court
of Appeals. 119 N.L.R.B. at 503-504; 105 U.S.App.D.C. at page 106,
264 F.2d at 579.
See also Lively Photos, Inc., 123
N.L.R.B. 1054.
[
Footnote 10]
The Examiner's Report shows the pertinency of this statutory
purpose in the present case. In his analysis of the evidence, he
observed:
"It is evident that with many witnesses testifying as to
numerous different matters, it would protract this report greatly
to summarize all of the testimony, or to spell out fully the
confusion and inconsistencies therein, much of which is not too
surprising, in view of the fact that with respect to the events of
August 1954 (the events 'at the core' of the allegations of
illegality), there had been a lapse of almost 15 months before
testimony was given in November, 1955."
119 N.L.R.B. at 529.
[
Footnote 11]
In that case, in explaining his consideration of "relevant
evidence" antedating the six month period, the Trial Examiner,
whose report was confirmed by the Board, said:
"The Respondent's earlier conduct has been considered here
merely for the purpose of bringing into clearer focus the conduct
in issue. Even without such consideration, however, the allegations
of discrimination would have been found amply supported by such
undisputed record facts as bear directly upon the layoffs of [the
employees involved within the six-month period]."
87 N.L.R.B. at 1211.
See also Local 1418, International
Longshoremen's Assn., 102 N.L.R.B. 720, 729-730, relied on by
the Board, and
Labor Board v. General Shoe Corp., 192 F.2d
504;
Labor Board v. Clausen, 188 F.2d 439; and
Superior Engraving Co. v. Labor Board, 183 F.2d 783, cited
by a dissenting opinion here.
[
Footnote 12]
In
Bowen Products, an employee recalled from layoff was
discriminatorily placed at the bottom of the relevant seniority
list. He unsuccessfully attempted to obtain his proper seniority
rating, and several months later was included in an economic
reduction in force. Had his seniority originally been properly
computed, he would not have been laid off at that time. The charge
was filed and served within six months of the layoff, but more than
six months after the original determination of seniority status.
Finding that the only basis for a holding of unlawful layoff would
be a finding that that determination had been a violation of the
Act, the Board dismissed the complaint.
Greenville Cotton Oil (American Federation of Grain
Millers) dealt with an alleged discriminatory refusal to
reinstate strikers. Conceding that the respondent had engaged
permanent replacements, the strikers demanded reinstatement on the
ground that the strike had been caused or prolonged by an unfair
labor practice committed by the employer prior to the hiring of the
replacements. The acts alleged to have constituted such unfair
practices having taken place more than six months prior to the
filing and service of the charge, the Board held § 10(b) a bar to
an order of reinstatement.
[
Footnote 13]
The complaint in
News Printing Co. alleged that a
refusal to grant wage increases to certain employees had been
motivated by displeasure at their union activities. As a
substantive matter, this allegation turned on the respondent's
motive at the time of the refusal, which was within the limitations
period. However, the General Counsel was unable to produce
sufficient evidence, from within that period, to prove
discriminatory motive, and the Board refused to permit reliance on
evidence relating to acts occurring prior to the six-month period.
The contention that such earlier acts could be referred to in order
to justify the inference that the "pattern of unlawful conduct . .
. continued on into the present situation" was rejected. 116
N.L.R.B. at 211.
Compare Paramount Cap Mfg. Co., 119
N.L.R.B. 785, 786, 799, enforcement granted, 260 F.2d 109, where
the presence of substantial post-limitations evidence was held to
justify resort to evidence of earlier conduct.
The
Universal Oil Products and
Tennessee Knitting
Mills cases concerned allegations that respondent employers
had dominated or assisted labor organizations. Here again, the
material issue was as to the relationship of the respondents to the
unions involved, as of the date of the charge. Yet, in both cases,
because the evidence from within the statutory period was too
sketchy to warrant a finding of unlawful conduct, the Board refused
to permit reference to evidence from the earlier period, declining
to rely on an inference that earlier unlawful relationships
continued.
While it is true that, in
Paint, Varnish & Lacquer
Makers Union (Andrew Brown Co.), 120 N.L.R.B. 1425, the Board
found union picketing during the six-month period to have been
undertaken for the unlawful purpose of obtaining recognition,
although the only affirmative evidence of such purpose was based on
acts done prior to that period, the decision is not inconsistent,
so far as presently relevant, with the cases discussed above.
Substantial evidence of purpose from within the limitations period
was found in reliance on the inference that the earlier motive had
continued unchanged.
Id. at 1428, 1438. While the
permissibility of an inference of this nature was rejected in the
preceding cases, we need not now inquire into this seeming
disparity of treatment, for it affects the minor premise only, and
does not impair the accuracy of the proposition that, however
marshalled, acts within the limitations period must under Board
doctrine yield some substantial evidence of unlawful conduct.
[
Footnote 14]
Katz v. Labor Board, 196 F.2d 411, and
Labor Board
v. Gaynor News Co., 197 F.2d 719, relied on below and in
dissent here, arose under provisions of the Act (§ 8(a)(3), 61
Stat. 140), since repealed (65 Stat. 601), which permitted union
security agreements only with unions which possessed a Board
certificate that a union security clause had been authorized at a
special election of the employees involved. While the language, and
perhaps the approach, of these cases may be considered inconsistent
with the principles we deem governing here, the decisions, on their
facts, present no such difficulty. Proof of the nonexistence of
such a certificate, which of course was a continuing fact, plainly
did not require resort to testimony about past events; rather, the
issue was much like one arising out of an agreement illegal on its
face, the only difference being that a separate instrument was
involved.
[
Footnote 15]
We think the rule in conspiracy cases, where the statute of
limitations only begins to run upon the commission of the last
overt act in furtherance thereof, does not furnish a useful analogy
in this case. The statute in question here bars issuance of a
complaint "based upon any unfair labor practice" which occurred
more than six months prior to the filing of the charge; it does not
merely bar proceedings against an unfair labor practice which are
not commenced within six months after that unfair labor practice
has been committed.
Cf. 18 U.S.C. § 3282. Our conclusion
that the complaints giving rise to the judgment under review are of
necessity "based upon" the unfair labor practice of execution of
the agreement, and are barred by time, has drawn on this statute's
purpose and history, and we do not assert the universal
applicability of our resolution of the particular question
presented for decision. In any event, the commission of an overt
act pursuant to a conspiratorial agreement represents a renewed
affirmation of the unlawful purpose of the conspiracy. The acts
constituting enforcement of a collective bargaining agreement
cannot well be so characterized. Beyond that, one may question the
appropriateness of analogizing this situation, where proper
application of a particular statute of limitations involves taking
into account competing values, to one which involves an unlawful
agreement of a kind unreservedly condemned, and the entire undoing
of which is the undiluted purpose of the criminal law. Indeed, the
rule advanced in dissent cannot be squared with the Board's own
approach to the statute.
See the cases discussed in notes
12 and |
12 and S. 411fn13|>13,
ante.
[
Footnote 16]
The immediate impetus to the legislation was the pendency of an
N.L.R.B. proceeding involving a closed shop agreement in effect at
the Kaiser shipbuilding yards at Portland, Oregon. The agreement,
though executed at a time when only 66 workers were employed, was
being applied to a 20,000-man work force. The debates show that the
issue of representation by minority unions was in the forefront of
legislative concern.
See 89 Cong.Rec. 6950 (remarks of
Reps. Smith and Tarver), 6953 (Rep. Tarver), 7029 (Sens. Truman and
Ball), 7031-7032 (Sen. Wagner).
[
Footnote 17]
The Labor Board Appropriation Act, 1945, 58 Stat. 568, made
several amendments in the limitations provisions, the principal of
which were designed to render the rider inapplicable to agreements
with company-dominated unions, and to provide an additional
three-month period at the commencement of any renewal of an
agreement in which a complaint could be filed.
See 9
N.L.R.B.Ann.Rep. (1944), pp. 5-6. Subsequent reenactments were
without relevant change. 59 Stat. 378, 60 Stat. 698.
[
Footnote 18]
This conclusion seems to us not vitiated by the fact that the
Senate Appropriations Committee, subsequent to the issuance of the
Labor Committee Report, amended the appropriations rider in a
manner perhaps susceptible of an interpretation which would render
it inapplicable to agreements with minority unions. S.Rep. No. 146,
80th Cong., 1st Sess., pp. 6, 13. Nor is it sufficient to attempt
to explain away the language of the Committee Report by reliance on
the fact that, while the appropriations riders immunized agreements
invalid on their face as well as those invalid for lack of majority
status,
see 8 N.L.R.B.Ann.Rep. (1943), pp. 7-8, § 10(b) is
more narrowly framed, and concededly does not protect an agreement
invalid on its face from attack six months after its execution.
Under the broad union security proviso to § 8(3) of the original
Act, 49 Stat. 452, invalidity of an agreement on its face was not a
common problem, and we should not have expected Congressional
discussion to have been primarily concerned with it. As we have
seen, however, agreements with minority unions were specifically
the focus of Congressional attention in this period, and the direct
relevance of the Committee's discussion to the history of that
problem is evident.
[
Footnote 19]
Adoption of a six-month period of limitations, criticized by
opponents of the legislation as "the shortest statute of
limitations known to the law," S.Rep.No. 105 (pt. II), 80th Cong.,
1st Sess., p. 5 (Minority Report), was resisted on the ground that
it gave "unjust assistance to employers or unions which commit
those types of practices which are easily concealed and difficult
to detect." 93 Cong.Rec. 4905 (remarks of Sen. Murray).
It need hardly be pointed out that we are not dealing with a
case of fraudulent concealment alleged to toll the statute.
See 105 U.S.App.D.C. at 110, 264 F.2d at 583 (dissenting
opinion).
MR. JUSTICE FRANKFURTER, dissenting.
While agreeing with my Brother WHITTAKER's grounds for
dissenting, I should like to add confirming considerations for his
conclusion. At a time when the union did not represent a majority
of employees, union and employer entered into a collective
bargaining agreement, containing a "union security" clause
compelling all employees to become members of the union. Under
principles accepted by the Court, this constituted an "unfair labor
practice," for it tended "to restrain or coerce employees" in the
exercise of their right "to bargain collectively through
representatives of their own choosing." Union and employer
continued to carry out the terms of
Page 362 U. S. 430
this illicit agreement. Specifically, the union purported to act
as an authorized bargaining agent, union dues were collected
through a "check-off" by the employer, and employees were compelled
to become members of the union within forty-five days. The Court's
opinion recognizes that all this constituted continuing
interference with the employees' free choice, and was therefore a
continuing unfair labor practice.
Ten months after the collective agreement was first entered
into, but while its terms continued to be actively carried out, an
unfair labor practice charge against the union and employer was
filed with the Board. Plainly, the continuing unfair labor practice
of maintaining the collective agreement illegally entered into did
occur within six months of the filing of the charge. The Court
accepts this as true. But the Court holds that a charge based upon
that continuing unfair practice is time-barred.
The applicable statute of limitations provides:
"no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge
with the Board."
The Court relies on the fact that the active carrying out of the
agreement, concededly an unfair practice occurring within six
months, is revealed as unlawful only by reason of the unlawful
character of the agreement at its inception, specifically, the fact
that the union did not represent a majority of employees at that
time. The Court concludes that the action is barred because the
inception of the unlawful agreement was outside of the statutory
period.
Such an interpretation, I respectfully submit, is not to enforce
congressional legislation, which is our task, but is to fashion
linguistic legislation and then apply it. Instead of barring only
those complaints "based upon any unfair labor practice
occurring more than six months prior to the filing of the
charge," the statute is made to read "based upon any unfair labor
practice
having had its inception
Page 362 U. S. 431
more than six months prior to the filing of the charge." Thus,
the complaint is held barred, even though an unfair practice did
occur, with due regard to the thought conveyed by that word. That
is, we have here not mere inert continuity of consequences through
antecedent action; events were brought to pass through conscious
human intervention within six months of the filing of the
charge.
I see no justification for such rewriting of what Congress
wrote. The legislative history recited by the Court makes no such
demand. Congress no doubt wanted to put stale claims to rest, and
it did so by a relatively short statute of limitations for
permitting claims to be brought to litigation. If six months are
allowed to pass by without a charge against an unfair labor
practice being filed, Congress said that is an end of the matter,
and a charge cannot be filed thereafter. But Congress did not say
that, if a charge is filed within six months of the occurrence of
an unfair practice, that cannot be halted, that cannot be proceeded
against, if such labor practice had its inception more than six
months before. On the contrary, what I deem a controlling analogy
leads me to apply the statute as I find it, and to bar complaints
only when based upon active occurrences not falling within the
six-month period. I find that analogy in the treatment of the same
kind of problem in cases where a conspiracy is entered into before
a statutory period, but is actively kept alive within that
period.
The essence of the unfair labor practice involved in this case
is the making and maintaining of an illegal agreement between upon
and employee. Suppose that Congress, having defined such an
agreement to be an unfair labor practice, had subjected it not only
to civil remedies, but had also made it a misdemeanor. That is by
no means a fanciful supposition. The federal antitrust statutes are
a prominent instance of the use of the criminal law,
Page 362 U. S. 432
and in particular the law of conspiracy, as part of a scheme of
industrial regulation. Suppose a six-month statutory limitations
period for the criminal charge, as we now have for the civil, and
suppose the very facts of this case. Specifically, suppose it had
been charged that, during the prior six months, by maintaining
their collective agreement, entered into when the union did not
represent a majority of employees, the union and employer had
conspired to deprive employees of their rights freely to choose
bargaining representatives, and that, during those six months,
overt acts had been committed in pursuance of the unlawful
agreement.
To find a cognate statute of limitations to be a bar to such a
case would be to ignore the applicable precedents. The rules set
out by this Court for applying statutes of limitations to
conspiracy cases are clearly otherwise.
See United States v.
Kissel, 218 U. S. 601;
Hyde v. United States, 225 U. S. 347,
225 U. S.
367-370;
Brown v. Elliott, 225 U.
S. 392,
225 U. S.
400-401;
Fiswick v. United States, 329 U.
S. 211,
329 U. S. 216;
Grunewald v. United States, 353 U.
S. 391,
353 U. S.
396-397. "The statute of limitations, unless suspended,
runs from the last overt act during the existence of the
conspiracy."
Fiswick v. United States, supra, at
329 U. S. 216.
And these cases show that this principle applies even when, as
here, the overt acts within the statutory period derive their
illegal significance only when interpreted in light of an illegal
agreement which was initiated prior to the statutory period for
bringing a charge. Certainly the illegalities committed within the
six-months period in this case, to the same degree as overt acts in
pursuance of a conspiracy already formed, represent "a renewed
affirmation of the unlawful purpose," expressed in an agreement
which Congress has outlawed as an unfair labor practice. A
conspiracy is kept alive by an overt act within the period of the
statute of limitations not by reason of some dogmatic postulate
relevant to conspiracies, but as a result
Page 362 U. S. 433
of judicial reasoning in applying statutes of limitations. This
reasoning is equally applicable to the matter in hand.
I am baffled to understand why the present case should be
different from what it would be were it a prosecution for criminal
conspiracy, rather than a civil proceeding based on an agreement
giving rise to an unfair labor practice.
MR. JUSTICE WHITTAKER, with whom MR. JUSTICE FRANKFURTER joins,
dissenting.
The Court correctly recognizes (1) that it is violative of
employees' rights guaranteed by § 7, and an unfair labor practice
by an employer under § 8(a) and by a labor union under § 8(b), of
the National Labor Relations Act for an employer and a labor union
to enter into a contract providing either for the recognition by
the employer of the union as the representative of its employees or
that its employees must become and remain members of the union,
unless the union at that time, represented a majority of the
employees in the unit, (2) that "[t]he maintaining of such an
agreement in force is a continuing violation of the Act," and (3)
that the bargaining contract involved in this case not only
recognized the union as the exclusive bargaining representative of
the employees, but also required the employees to become and remain
members of the union, although the union did not then represent a
majority of the employees in the unit.
*
Despite the foregoing, the Court holds, I think, with deference,
quite inconsistently and erroneously, that § 10(b) of the Act
barred the issuance of a complaint,
Page 362 U. S. 434
upon an employee's charge filed with and served by the Board 10
months after the making of the contract, based not upon the making
of the contract, but alleging that, within and throughout the
period of six months preceding the filing and service of the
charge, the employer and the union required the employees to become
and remain members of the union, and, once in each of those six
months, caused certain sums to be deducted from the employees'
wages and paid over to the union, all without the authorization of
the employees.
The Court, noting the employer-union contention that the
contract was "tainted" only by its "unlawful execution," and that,
"since a complaint based upon
that unfair labor practice
[would be] barred" by § 10(b),
that event could not be
utilized "to
infuse with illegality the
otherwise
legal union security clause or its enforcement," adopts that
argument as presenting the "correct view." (Emphasis added.)
Surely the fact that a prosecution for the making of a "tainted"
contract is barred by limitations does not "infuse" the "tainted"
contract with
legality. Moreover, I respectfully submit
that the complaint here was not based upon the "tainted" contract,
and that its unlawful
execution was not utilized "to
infuse [the always illegal contract] with illegality." Rather, the
complaint here was based upon and limited to independent acts of
the employer and the union, committed within six months preceding
the filing and service of the charge, that deprived the employees
of rights guaranteed to them by § 7, resulting in unfair labor
practices under § 8; and the fact that prosecution for the illegal
execution of the "tainted" contract is time-barred, as an
independent wrong, may not be utilized "to infuse with"
legality the illegal "union security clause or its
enforcement."
It is important carefully to note what it is that § 10(b) bars.
It says, in relevant part, that
"
no complaint shall
Page 362 U. S. 435
issue
based upon any unfair labor practice
occurring more than six months prior to the filing of the
charge. . . ."
(Emphasis added.) The bar is, then, against the issuance of a
"complaint" that is "based upon" acts "occurring more" than six
months prior to the filing of the charge. In the plainest possible
sense, then, it does not bar the
issuance of a complaint based
upon acts occurring within six months of the filing of the
charge. The complaint that was issued here was based upon acts
occurring within six months of the filing of the charge. And the
Board rested its decision solely on those acts.
But the Court holds that, although § 10(b) is only a statute of
limitations, evidence of the illegality of the contract is
inadmissible, in the circumstances of this case, because it would
serve "to cloak with illegality that which was otherwise lawful,"
and would permit a time-barred event "to be so used [as to revive]
a legally defunct unfair labor practice." This conclusion gives
hip, rather than heed, to the conceded rule that "the maintaining
of such an agreement in force is a continuing violation of the
Act," for it makes incompetent all relevant evidence that may be
adduced to prove the "continuing violation." Moreover, such a rule
is contrary to the decisions of this Court and to every decision of
the Court of Appeals upon the point to which our attention has been
directed.
In
Federal Trade Comm'n v. Cement Institute,
333 U. S. 683,
this Court held it to be:
"well within the established judicial rule of evidence that
testimony of prior or subsequent transactions, which for some
reason are barred from forming the basis for a suit, may
nevertheless be introduced if it tends reasonably to show the
purpose and character of the particular transactions under
scrutiny.
Standard Oil Co. v. United States, 221 U. S. 1,
221 U. S. 46-47;
United
States v. Reading Co., 253 U. S. 26,
253 U. S.
43-44."
333 U.S. at
333 U. S.
705.
Page 362 U. S. 436
To the same effect, but directly dealing with unfair labor
practices, are
Paramount Cap Mfg. Co. v. Labor Board, 260
F.2d 109, 112-113;
Labor Board v. Gaynor News Co., 197
F.2d 719, 722,
aff'd sub nom. Radio Officers v. Labor
Board, 347 U. S. 17;
Katz v. Labor Board, 196 F.2d 411, 415;
Labor Board v.
General Shoe Corp., 192 F.2d 504, 507;
Labor Board v.
Clausen, 188 F.2d 439, 443;
Superior Engraving Co. v.
Labor Board, 183 F.2d 783, 791.
In the
Katz case, almost identical with this one on the
point in issue, the Court specifically rejected the contention
that, inasmuch as more than six months had expired from the date of
the
execution of the tainted contract, the complaint,
based upon acts occurring within six months of the charge, was
barred by § 10(b), saying:
"While . . . the mere execution of the agreement on December 17,
1948, constituted an unfair labor practice, there is no doubt but
that the continuous enforcement of the agreement thereafter within
the six months period prior to the filing of the charge was an
unfair labor practice, and, with respect to this continued and
continuous enforcement of the illegal union shop agreement, the
prosecution of the proceeding was not barred by limitations."
196 F.2d at 415.
In the
Gaynor case, the Court, after pointing out that,
although the tainted contract had been executed more than six
months prior to the filing of the charge, and its
execution was therefore barred as an independent subject
of punishment by § 10(b), observed that enforcement of the contract
was "a continuing offense," and held that the complaint, based only
on acts occurring within six months
Page 362 U. S. 437
of the filing of the charge, was lawfully issued and "in all
respects valid." 197 F.2d at 722.
Although still recognizing that enforcement of a tainted labor
contract "is a continuing violation" of the law, the Court further
says that this is true "solely by reason of circumstances existing
only at the date of execution," and it therefore concludes that
evidence of the taint is inadmissible in a proceeding to punish
unlawful conduct occurring from enforcement of the contract within
six months of the filing of a charge. I respectfully submit it is
plain that this reasoning negates the conceded rule that
enforcement of a tainted contract is "a continuing offense." The
Court's reasoning, inconsistently, would at once both recognize,
and deny any means of proving, the "continuing offense."
Analytical curiosity provokes the query whether such an
illegal contract, openly posted in the plant but not made
effective in practice until the first day of the seventh month,
would then become so "infused" with
legality as to be
unassailable by the employees -- not because its enforcement is not
"a continuing offense," but rather because, under the Court's rule,
there can be no competent evidence of its illegality. If so, the
rule of "continuing offense" is utterly destroyed. If not, the
Court's rule that there can be no competent evidence of the
continuing violation must give way. The two theories are
diametrically opposed and self-destructive. Section 10(b) does not
at all deal with the competency or admissibility of evidence.
Surely, as the cited cases hold, any evidence which shows that
continuing enforcement of the contract is or is not an offense
under the Act is competent under the law.
But there is even a more fundamental consideration which, for
me, settles this issue beyond all controversy. While it is the
burden of the General Counsel of the Board
Page 362 U. S. 438
to prove his case, all he need do, initially at least, is to
make a
prima facie case. He may do this, in a case like
the present, simply by putting on evidence showing that the
employer and the union, within six months preceding the filing of
the charge, required the employees to become and remain members of
the union and to submit to deduction of dues from their wages
without asking them for authorization and without any election or
Board certification of the union. That evidence alone would raise
prima facie the issue: by what right was this done? That
issue would call for a defense, and the burden of producing the
defense would necessarily fall upon the employer and the union.
Surely it will not be said that anything in § 10(b), or elsewhere
in the law, makes incompetent all evidence that might be adduced by
the employer and the union to meet their burden and justify their
action. If, as I submit cannot be denied, such evidence is
competent when offered by the employer and the union, it must
likewise be competent when, if he so elects, it is offered by the
General Counsel of the Board. Here at the very least, the General
Counsel made a
prima facie case of continuing violations
of the law within the six months preceding the filing of the
charge, the employer and the union made no effort to show the
legality of their conduct in the period complained of.
The Court attributes to its rule the virtues of quieting "stale
claims" and of "stabiliz[ing] existing bargaining relationships." I
cannot agree that it would do either, for employee rights,
occurring within six months of the filing of the charge, are not
"stale claims," and deprivation of those rights which, as the Court
of Appeals said, "rankles at least once a month in the mind of [the
employees] offended," is not conducive to industrial peace, and
would not -- certainly not legally -- "stabilize existing
bargaining relationships." At all events, and however this may be,
these matters were for Congress; and the cardinal purposes
Page 362 U. S. 439
of the National Labor Relations Act, contained in § 7, were to
guarantee to employees the right to join or assist labor
organizations "of their own choosing" or to refrain from such
activities. Surely, the continuing offense of enforcing a contract,
made by an employer with a union which was not of the employees'
"own choosing," was not intended by Congress to be left without a
remedy. Congress did not intend to create and "to hold out to
[employees] an illusory right for which it was denying them a
remedy."
Graham v. Brotherhood of Locomotive Firemen,
338 U. S. 232,
338 U. S. 240.
Certainly,
"any limitation on the employees' right[s] [under] §§ 7 and 8 .
. . must be more explicit and clear than it is here in order to
restrict them at the very time they may be most needed."
Mastro Plastics Corp. v. Labor Board, 350 U.
S. 270,
350 U. S. 287.
See also Labor Board v. Lion Oil Co., 352 U.
S. 282,
352 U. S.
289.
Believing that the Board and the Court of Appeals correctly
decided this case, I would affirm the judgment.
* In fact, the undisputed testimony was that the union did not
then represent a single one of the employees, and that the employer
acceded to the union's demand for recognition and entered into the
contract simply because the union had it "over a barrel."