International Union v. Wisconsin Employment Relations Board/Dissent Murphy

by Frank Murphy

United States Supreme Court

336 U.S. 245

International Union  v.  Wisconsin Employment Relations Board

 Argued: Nov. 17, 18, 1948. --- Decided: Feb 28, 1949

Mr. Justice MURPHY, with whom Mr. Justice RUTLEDGE concurs, dissenting.

To interfere with production and to enforce their bargaining demands, employees of Briggs and Stratton called twenty-seven union meetings during working hours without advance notice to the employer. Employees left their work and returned later in the day, or the following day. Wisconsin has made this concerted activity unlawful. The question is whether the State's action violates the federal guarantee contained in § 7 of the Wagner and Taft-Hartley Acts: 'Employees shall have the right to * * * engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.'

We have recognized that the phrase 'concerted activities' does not make every union activity a federal right. We have held that violence by strikers is not protected, Allen-Bradley Local No. 1111, United Electrical Radio and Machine Workers of America v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154; that a sit-down strike, National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, a mutiny, Southern S.S.C.o. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 246, and a strike in violation of a contract, National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682, must be withdrawn from the literal language of § 7.

But the Court, by its reasoning and its quotation from a Congressional report, now makes intermittent work stoppages the equivalent of mutiny, contract-breaking, and the sit-down strike. It stretches the 'objectives and means' test to include a form of pressure which is peaceful and direct. In effect, it adopts the employer's plea that it cannot plan production schedules, cannot notify its customers and suppliers, cannot determine its output with any degree of certainty and that these inconveniences withdraw this activity from § 7 of the national statutes. The majority and the Wisconsin court call the weapon objectionable, then, only because it is effective.

To impute this rationale to the Congress which enacted the Wagner Act is, in may opinion judicial legislation of an extreme form.

The Court chooses to ignore the consistent policy of the agency charged with primary responsibility in interpreting and administering § 7. The National Board has repeatedly held that work stoppages of this nature are 'partial strikes' and 'concerted activities' within the meaning of § 7. Cudahy Packing Company, 29 N.L.R.B. 837, 863; Armour & Company, 25 N.L.R.B. 989; The Good Coal Company, 12 N.L.R.B. 136, 146; American Mfg. Concern, 7 N.L.R.B. 753, 758; Harnischfeger Corporation, 9 N.L.R.B. 676, 685; Mt. Clemens Pottery Company, 46 N.L.R.B. 714, 716. In each of these six cases, the Board's interpretation of § 7 is directly contrary to that reached by the Court in the case before us. In each case the Board concluded that work stoppages or 'partial strikes' cannot be withdrawn from the language of § 7. To ignore the Board's consistent rulings in this case is a new and unique departure from the rule of deference to settled administrative interpretation. The fact that the stoppages in the Board cases were fewer in number than those at Briggs and Stratton is not, of course, a controlling difference-unless we are to say that the stoppages are not protected by § 7 because they are effective from the union's point of view.

Wisconsin's action clearly conflicts with § 7, and accordingly, I would reverse the judgment.

Notes