Before LEARNED HAND, Chief Judge, SWAN and CLARK, Circuit Judges.
LEARNED HAND, Ch. J.: The Board and Oppenheim, Collins & Company have filed briefs, asking that we reverse our interpretation of the provisos to § 9(a). The gravamen of their argument is that in application our ruling will cause confusion in administration and introduce that strife between rival unions which it was one of the chief purposes of the Act to prevent. That may prove true; we were aware of the possibility, and mentioned it before; and it is indeed a circumstance not to be lightly dismissed in interpreting the statute. However, when the meaning is plain, as we think it is, the argument comes to no more than that, in granting to minorities the measure of individual representation which it did, Congress clogged, and perhaps even frustrated, the venture as a whole. And in this connection it is most important to observe that all the arguments, now so fervently propounded, the Board propounded with equal fervor to the Senate Committee when the new Act was before it,*fn1 and when the provisos were the same, ipsissimis verbis, as they eventually emerged. Obviously, Congress, for the sake of the limited minority representation which it granted, was willing to accept the chance that the Board might be right. That choice it is not for us to review.
Specifically the Board's argument is that the distinction between "grievances" and the stipulations appropriate to a collective bargain was well fixed in the law of this subject; and that it was carried over into the amended Act, which, as both parties appear to think, was written with the decision in mind of the Supreme Court in Elgin, Joliet and Eastern Railway Co. v. Burley et al.*fn2 Curiously enough, so far as concerns the actual holding in that case, it rather confirms our view than otherwise, for it denied power to the certified agent to settle the claims of individual members for violations of a collective agreement. It is true that in his opinion Rutledge, J., did distinguish "grievances" from those matters with which collective agreements deal (pp. 723, 724). However, although he mentioned among "grievances" complaints founded upon an employer's failure to observe the terms of an existing collective agreement, he also included disputes for which the agreement did not provide - "an omitted case." Indeed, had he not so enlarged the term, although the interpretation would of course have been authoritative as to the Railway Labor Act of 1934, it could not have been so as to the provisos of § 9(a), because these plainly presuppose that a "grievance" may not have been covered by the collective agreement, and indeed, that there may not be any such agreement in existence. Once it be conceded that "grievances" do cover disputes which no collective agreement has attempted to settle, it becomes to the last degree difficult to draw the line, if there be a line, between "grievances" proper, and those other disputes which are not "grievances." It was on this account that we said before that the provisos include any disputes, which no existing collective agreement has settled. If that be not true, there will emerge in every case a question perplexing, and pregnant with controversy, which will be as troublesome as any of the evils of which the Board complains. However, since it is never desirable for a court to go beyond what the decision demands; and, since all that the case at bar does demand is to decide whether the reinstatement of the employees at bar was a "grievance," we will confine our decision to that issue; and will let it be understood that we do not finally commit ourselves upon the proposition which we announced before and have just restated. Assuming then, arguendo, that in the case of every dispute there must be a piepowder determination, ad hoc, whether it involves a "grievance," we are to say whether the reinstatement at bar is a "grievance."
We cannot see how it can fail to be, unless the term is to be confined to such complaints as the oppression of foremen, the unfair distribution of the work, or other details of factory management. That it cannot be so confined follows from the fact that under the first proviso a "grievance" may be a dispute which conflicts with the collective agreement. The Board protests that the reinstatement of aggrieved employees cannot be considered as though it stood in vacuo, for it may disturb the relations of the employer with other employees, or the relations of those employees with the aggrieved employees themselves. That it true; any industrial establishment is, as it were, an elastic medium, which transmits everywhere a disturbance originating in any part. That may be a good objection to the procedure set up; but it is a reason which applies to the adjustment of any "grievance" whatever. No doubt, it was the recognition of this which caused the addition of the second proviso giving the certified agent the right to intervene whenever the proposed adjustment would be inconsistent with an existing collective agreement. If, as the Board argues, that gave an employer an opportunity to "play off" one faction against another, it also gave the certified agent an opportunity by exercising his paramount authority, backed by the formidable sanctions at his command, to insure the unimpeded performance of any collective agreement. We hold that, whatever the overall scope of the term may be, the reinstatement of these employees was a "grievance" within the first proviso.
There only remains the question whether an individual employee or a minority - a "group" - must negotiate the adjustment of their "grievance" without the help of a union which it has been their custom to use as their representative. We have little to add to what we said before. Behind the whole Act, indeed, its main presupposition, is the assumption that in industrial negotiations an individual, or a minority, does not bargain on equal terms with an employer. It is not reasonable to suppose that Congress, after giving a minority this privilege, should wish to deprive it of that means of exercising it, which for this reason is the putative condition of its effective use. But that is not all. The present Act provides for the intervention of the certified agent, and he will seldom, if ever, intervene if he is in sympathy with the minority's "grievance"; for if he is, they are likely to ask him to do the "adjusting." Hence they will ordinarily be called upon to face two opponents, each better qualified in such negotiations than they. It appears to us extremely unreasonable to impute that purpose to Congress. To match these considerations the Board invokes the fact that, while the original Act was before Congress, it struck out from the proviso, as it then was, the clause: "of their own choosing." That was done, so far as one can now tell, because it was feared that a "group" might use a "company union" as its representative. The deletion is not a safe guide in the interpretation of the amendment unless we recall the content of the original proviso. It had even been debated whether that gave employees any further privileges than to "present" their "grievances"; but if it did - and the better opinion would appear to be that it did - it was left uncertain whether the adjustment had to be consonant with any existing collective agreement. Perhaps that too was to be implied, but it was not plain. At any rate the original proviso gave the certified agent no right to appear, not only to protect the agreement if one existed, but - what is far more important - to protest that the whole issue was a covert attempt to infiltrate the influence of a "company union." No such possibility and longer exists; and we cannot believe that the deletion of the clause from the original proviso is valid evidence of the purposes which dictated the amendment. Finally, we note that, after the Elgin case, supra,*fn3 the Attorney General reached the conclusion under the Railway Labor Act of 1934,*fn4 that the minority might make use of a union as its representative.