# National Labor Relations Board v. J. H. Allison & Co.

> Court of Appeals for the Sixth Circuit · January 26, 1948 · 165 F.2d 766

URL: https://www.frixlaw.com/law-library/cases/9641373

## Case

- **Full name:** National Labor Relations Board v. J. H. Allison & Co.
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 26, 1948
- **Citations:** 165 F.2d 766; 3 A.L.R. 2d 990; 21 L.R.R.M. (BNA) 2238; 1948 U.S. App. LEXIS 2970
- **Precedential status:** Published
- **Opinion:** Dissent by Simons
- **Judges:** Simons, Allen, Martin
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641373

## Opinion text

SIMONS, Circuit Judge
(dissenting).
I regret that I am unable to concur in the views of my colleagues. Undoubtedly, an employer may not unilaterally bargain with respect to wages. J. I. Case Co. v. N. L. R. B., 321 U.S. 332 , 64 S.Ct. 576 , 88 L.Ed. 762 ; Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342 , 64 S.Ct. 582 , 88 L.Ed. 788 ; Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678 , 64 S.Ct. 830 , 88 L.Ed. 1007 ; May Department Stores Co. v. N. L. R. B., 326 U.S. 376 , 66 S.Ct. 203 , 90 L.Ed. 145 . These decisions do not, however, reach the point whether merit increases are so closely identified with rates of pay that they should be considered within the meaning of that phrase as used in the Act. So much the opinion of the majority appears to concede. Merit increases as such are neither the result of negotiation nor contract. They differ from bonuses in that they are not applied generally to all employees, and so whether governed by contract or not are anticipated by employees as wages. Singer Manufacturing Co. v. N. L. R. B., 7 Cir., 119 F.2d 131 , and the importance of such distinction was recognized by the National Labor Relations Board in Libby, McNeil & Libby, 65 N. L. R. B. 873, where it was held that the inauguration of an incentive plan by an employer is not per se an unfair labor practice unless there is proof that the increases were part of a plan to undermine the Union. In the instant case, there is no finding that the merit increases were in pursuance of such plan, no finding that they did, in fact, undermine the Union, no evidence to sustain such findings if they had been made, and the history of labor-management relations in the respondent’s plant repels any inference that its merit increases had either such purpose or effect. Moreover, in an era when emphasis is laid upon production and ever more production as a check to inflationary processes, if not indeed as a cure for all other economic ills, it is difficult to accept the concept that gratuitous increases based upon zeal and ability and not in conflict with a collective bargaining agreement freely arrived at is an unfair labor practice. Nothing in the Act either expressly or by fair implication precludes recognition of individual merit.
Even upon the assumption that merit increases are properly the subject of collective bargaining, those involved do not constitute an unfair labor practice by refusal to bargain. The law compels bargaining. It does not and may not compel agreement. In the present case, the Union sought to bargain upon the subject of merit increases, but abandoned its demand and freely entered upon an agreement still in effect when the order was made which contained no reference to merit increases or maximum compensation. The Union should, as the employer must, stand by its bargain. The Allison Company was not guilty of an unfair labor practice and enforcement should be denied to the Board’s order.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641373. Public record. Not legal advice.