Packard Motor Car Company v. National Labor Relations Board/Dissent Douglas
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BURTON concur, dissenting.
First. Over thirty years ago Mr. Justice Brandeis, while still a private citizen, saw the need for narrowing the gap between management and labor, for allowing labor greater participation in policy decisions, for developing an industrial system in which cooperation rather than coercion was the dominant characteristic.  In his view, these were measures of therapeutic value in dealing with problems of industrial unrest or inefficiency.
The present decision may be a step in that direction. It at least tends to obliterate the line between management and labor. It ends the sanctions of federal law to unionization at all levels of the industrial hierarchy. It tends to emphasize that the basic opposing forces in industry are not management and labor but the operating group on the one hand and the stockholder and bondholder group on the other. The industrial problem as so defined comes down to a contest over a fair division of the gross receipts of industry between these two groups. The struggle for control or power between management and labor becomes secondary to a growing unity in their common demands on ownership.
I do not believe this is an exaggerated statement of the basic policy questions which underly the present decision. For if foremen are 'employees' within the meaning of the National Labor Relations Act, so are vice-presidents, managers, assistant managers, superintendents, assistant superintendents-indeed, all who are on the payroll of the company, including the president; all who are commonly referred to as the management, with the exception of the directors. If a union of vice-presidents applied for recognition as a collective bargaining agency, I do not see how we could deny it and yet allow the present application. But once vice-presidents, managers, superintendents, foremen all are unionized, management and labor will become more of a solid phalanx than separate factions in warring camps. Indeed, the thought of some labor leaders that if those in the hierarchy above the workers are unionized, they will be more sympathetic with the claims of those below them, is a manifestation of the same idea. 
I mention these matters to indicate what tremendously important policy questions are involved in the present decision. My purpose is to suggest that if Congress, when it enacted the National Labor Relations Act, had in mind such a basic change in industrial philosophy, it would have left some clear and unmistakable trace of that purpose. But I find none.
Second. 'Employee' is defined to include 'any' employee. § 2(3), 49 Stat. 449, 450, 29 U.S.C. § 152, 29 U.S.C.A. If we stop there, foremen are included as are all employees from the president on down. But we are not warranted in stopping there. The term 'employee' must be considered in the context of the Act. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 124, 64 S.Ct. 851, 857, 88 L.Ed. 1170; Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 191, 61 S.Ct. 845, 851, 85 L.Ed. 1271, 133 A.L.R. 1217. When it is so considered it does not appear to be used in an all-embracing sense. Rather, it is used in opposition to the term 'employer'. An 'employer' is defined to include 'any person acting in the interest of an employer'. § 2(2). The term 'employer' thus includes some employees. And I find no evidence that one personnel group may be both employers and employees within the meaning of the Act. Rather, the Act on its face seems to classify the operating group of industry into two classes; what is included in one group is excluded from the other.
It is not an answer to say that the two statutory groups are not exclusive because every 'employee' while on duty-whether driving a truck or stoking a furnace or operating a lathe-is 'acting in the interest' of his employer and is then an 'employer' in the statutory sense. The Act was not declaring a policy of vicarious responsibility of industry. It was dealing solely with labor relations. It put in the employer category all those who acted for management not only in formulating but also in executing its labor policies. 
Foremost among the latter were foremen. Trade union history shows that foremen were the arms and legs of management in executing labor policies. In industrial conflicts they were allied with management. Management indeed commonly acted through them in the unfair labor practices which the Act condemns.  When we upheld the imposition of the sanctions of the Act against management, we frequently relied on the acts of foremen through whom management expressed its hostility to trade unionism. 
Third. The evil at which the Act was aimed was the failure or refusal of industry to recognize the right of workingmen to bargain collectively. In § 1 of the Act Congress noted that such an attitude on the part of industry led 'to strikes and other forms of industrial strife or unrest' so as to burden or obstruct interstate commerce. We know from the history of that decade that the frustrated efforts of workingmen, of laborers, to organize led to strikes, strife, and unrest. But we are pointed to no instances where foremen were striking; nor are we advised that managers, superintendents, or vice-presidents were doing so. 
Indeed, the problems of those in the supervisory categories of management did not seem to have been in the consciousness of Congress. Section 1 of the Act refers to 'wage rates', 'wage earners', 'workers'. There is no phrase in the entire Act which is descriptive of those doing supervisory work. Section 2(3) exempts from laborer'. But if 'employee' includes a the term 'employee' any 'agricultural foreman, it would be most strange to find Congress exempting 'agricultural laborers', but not 'agricultural foremen'. The inference is strong that since it exempted only agricultural 'laborers', it had no idea that agricultural 'foremen' were under the Act.
If foremen were to be included as employees under the Act, special problems would be raised-important problems relating to the unit in which the foremen might be represented. Foremen are also under the Act as employers. That dual status creates serious problems. An act of a foreman, if attributed to the management, constitutes an unfair labor practice; the same act may be part of the foreman's activity as an employee. In that event the employer can only interfere at his peril.  The complications of dealing with the problems of supervisory employees strongly suggest that if Congress had planned to include them in its project, it would have made some special provision for them. But we find no trace of a suggestion that when Congress came to consider the units appropriate for collective bargaining,  it was aware that groups of employees might have conflicting loyalties. Yet that would have been one of the most important and conspicuous problems if foremen were to be included. The failure of Congress to formulate a policy respecting the peculiar and special problems of foremen suggests an absence of purpose to bring them under the Act. And the notion is hard to resist that the very absence of a declaration by Congress of its policy respecting foremen is the reason the Board has been so much at large in the treatment of the problem under the Act. See the cases collected in note 3 of the opinion of the Court.
Fourth. When we turn from the Act to the legislative history, we find no trace of Congressional concern with the problems of supervisory personnel. The reports and debates are barren of any reference to them, though they are replete with references to the function of the legislation in protecting the interests of 'laborers' and 'workers'. 
Fifth. When we turn to other rel ted legislation, we find that when Congress desired to include managerial officials or supervisory personnel in the category of employees, it did so expressly. The Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C. § 151, 45 U.S.C.A. § 151, defines 'employee' to include 'subordinate official'. The Merchant Marine Act of 1936, 52 Stat. 953, 46 U.S.C. § 1101 et seq., 46 U.S.C.A. § 1101 et seq., which deals with maritime labor relations as a supplement to the National Labor Relations Act (see 46 U.S.C. § 1252, 46 U.S.C.A. § 1252) defines 'employee' to include 'subordinate official'. 46 U.S.C. § 1253(c), 46 U.S.C.A. § 1253(c). And the Social Security Act, 49 Stat. 620, 647, 42 U.S.C. § 1301, 42 U.S.C.A. § 1301, includes an officer of a corporation in the term employee.  The failure of Congress to do the same when it wrote the National Labor Relations Act has some significance, especially where the legislative history is utterly devoid of any indication that Congress was concerned with the collective bargaining problems of supervisory employees.
Sixth. The truth of the matter is, I think, that when Congress passed the National Labor Relations Act in 1935, it was legislating against the activities of foremen, not on their behalf. Congress was intent on protecting the right of free association-the right to bargain collectively-by the great mass of workers, not by those who were in authority over them and enforcing oppressive industrial policies. Foremen were instrumentalities of those industrial policies. They blocked the wage earners' path to fair collective bargaining. To say twelve years later that foremen were treated as the victims of that anti-labor policy seems to me a distortion of history.
If we were to decide this case on the basis of policy, much could be said to support the majority view.  But I am convinced that Congress never faced those policy issues when it enacted this legislation. I am sure that those problems were not in the consciousness of Congress. A decision of these policy matters cuts deep into our industrial life. It has profound implications throughout our economy. It involves a fundamental change in much of the thinking of the nation on our industrial problems. The question is so important that I cannot believe Congress legislated unwittingly on it. Since what Congress wrote is consistent with a restriction of the Act to workingmen and laborers, I would leave its extension over supervisory employees to Congress.
I have used the terms foremen and supervisory employees synonymously. But it is not the label which is important; it is whether the employees in question represent or act for management on labor policy matters. Thus one might be a supervisory employee without representing management in those respects. And those who are called foremen may perform duties not substantially different from those of skilled laborers.
What I have said does not mean that foremen have no right to organize for collective bargaining. The general law recognizes their right to do so. See American Steel Foundries v. Tri-City Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189, 27 A.L.R. 360; Texas & N O.R. Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548, 570, 50 S.Ct. 427, 433, 74 L.Ed. 1034. And some States have placed administrative machinery and sanctions behind that right.  But as I read the federal Act, Congress has not yet done so.
Mr. Justice FRANKFURTER agrees with this opinion except the part marked 'First' as to which he expresses no view.
^1 'The greater productivity of labor must not only be attainable, but attainable under conditions consistent with the conservation of health, the enjoyment of work, and the development of the individual. The facts in this regard have not been adequately established. In the task of ascertaining whether proposed conditions of work do conform to these requirements, the laborer should take part. He is indeed a necessary witness. Likewise in the task of determining whether in the distribution of the gain in productivity justice is being done to the worker, the participation of representatives of labor is indispensable for the inquiry which involves essentially the exercise of judgment.' Brandeis, Business-A Profession, pp. 52-53.
^2 The Foreman Abdicates, XXXII Fortune, No. 3, p. 150, 152; Levenstein, Labor Today and Tomorrow (1946) ch. VII.
^3 Daykin, The Status of Supervisory Employees under the National Labor Relations Act, 29 Iowa L.Rev. 297; Rosenfarb, The National Labor Policy (1940) pp. 54-56, 116-120; Twentieth Century Fund, How Collective Bargaining Works (1942) pp. 512-514, 547, 557 558, 628, 780.
^4 See cases collected in Daykin, op. cit. supra, note 3, pp. 298-299.
^5 International Association of Machinists, Tool and Die Makers v. National Labor Relations Board, 311 U.S. 72, 79, 80, 61 S.Ct. 83, 88, 85 L.Ed. 50; H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 520, 521, 61 S.Ct. 320, 323, 85 L.Ed. 309.
^6 It is true that for many years some unions included supervisory employees, Beatrice and Sydney Webb, Industrial Democracy (1902) p. 546, fn. 2; Union Membership and Collective Bargaining by Foremen, U.S. Department of Labor Bull. No. 7 5 (1943); Report of Panel of War Labor Board in Disputes Involving Supervisors (1945) IX; Twentieth Century Fund, op. cit. supra, note 3, pp. 67, 216; Northrup, Unionization of Foremen, 21 Harv.Bus.Rev. 496. But organization of foremen on a broad scale is a development of the last few years. Daykin, op. cit. supra, note 3, p. 314; Rosenfarb, Foremen on the March, 7 Fed.Bar.J. 168; Note, 59 Harv.L.Rev. 606, 607; Comment, 55 Yale L.J. 754, 756; Foremen's Unions, IX Advanced Management Quarterly J. 110.
^8 Section 9(b) of the Act provides: 'The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies * * * of this act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.'
^9 See H. Rep. No. 969, 74th Cong., 1st Sess.; H. Rep. No. 972, 74th Cong., 1st Sess.; H. Rep. No. 1147, 74th Cong., 1st Sess.; S. Rep. No. 573, 74th Cong., 1st Sess., pp. 6-7; Hearings, Senate Comm. on Educ. and Labor on S. 2926, 73d Cong., 2d Sess.; Hearings, House Comm. on Labor on H.R. 6288, 74th Cong., 1st Sess.; Hearings, Senate Comm. on Educ. and Labor on S. 1958, 74th Cong., 1st Sess.; 79 Cong.Rec. 2371, 7365, 7648, 7668, 8537, 9676, 9713, 9736, 10720.
^10 Cf. Federal Employers Liability Act, 35 Stat. 65, as amended, 45 U.S.C. § 51, 45 U.S.C.A. § 51, under which the term 'any employee of a carrier' has been applied to foremen. Owens v. Union Pac. R. Co., 319 U.S. 715, 63 S.Ct. 1271, 87 L.Ed. 1683; Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598.
^11 Daykin, op. cit. supra, note 3, p. 313; Rosenfarb, op. cit. supra, note 6; Gartenbaus, The Foreman goes Union, 113 New Republic 563: Comment 55 Yale L.J. 754; Hearings, House Comm. on Military Affairs on Bills relating to the Full Utilization of Manpower, 78th Cong., 1st Sess., p. 299; Northrup, The Foreman's Association of America, 23 Harv.Bus.Rev. 187; cf. American Management Association, Relation Between Management and Foremen in American Industry (1944); Id. The Foreman in Labor Relations (1944); Id. Should Management be Unionized? (1945).
^12 The state laws are discussed in Northrup, The Foreman's Association of America, 23 Harv.Bus.Rev. 187, 199-200.