Petition for Writ of Certiorari — National Labor Relations Board v. American National Insurance

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INDEX

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Opinicns-_below———___-——. —— lexacers ; q

Jurisdiction ~. |... 7 ew Meicietty pes hea oe

Question presented * om : ive 2 cae

Statute involved — , Rae ee - 2»

Statement _.. / soe +s

Specification of errors to be urged has ; ae

_ Reasons for granting the writ ; ; 13

Ne eS er Ge Oras ree 19

Appendix . oe Ae <i Tre ees ow

CITATIONS :

Cases: ’ ;

& Bethlehem Steel Company, 89 NURB 341, enforcement -

denied, June 7, 1951 (C.A.D.C.). : ein 15

Electric Reilway & Motor Coach Employees, ete, Wis-

o consin @mployment Relations Board, 340 U. S_ 383 13, 18

Hartsell Mills Co. vy. National. pabor Pte Board,

cote by eee

HH. J. Heinz Co. v. National Labor Reletions Board, 311

te We Oc ee ee 14

Diftund Steel Cow v. Wational Labor ‘Biletions Board,

170 ¥© 2a 247, certierari denied, 336 U.S. 960... aay

‘ National Labor Relations Board v..J. H. Allison & Co.,

165 F. 2d 766, certiorari denied, 335 U. S. 814 18

MeQuay-Norris Mfg. Co. v. National Labor Relations

Board, 116 F. 2d 748, certiorari denied, 313 U. S.

- 665 | SF | ae

National Labor Relations Board v. . Mexia Textile Mills,

ee Bis, COC kG o's chs ieee en Seis ya 10

National Labor Relations . Board v. George P. Pillivig

~ & Son Co., 119 F, 2d 32 14

National Labor Reiations Board vy. Pool ‘Manufacturing

"C6., 339'U. S. 5772. 3 10

National Labor Relations Poard Wes Reed £ Prince Mfg.

Co., 118 F. 2d 874, certiorari denied, 313 U.S. 595 | 17

Rich field Oil Corp. v. National Labor Relations Board, —

143 F, 2d 860 ..°.. 18

W. W. Cross & Co, v. National Labor Relations Board,

174 F. 2d 875 ... CATS 1, Sy Ae . 19

Statutes:

National eng Relations Aet, as amended (61 Stat. 136,

20 U.S. C., Supp. TIT, 151, et seq.):

Sahin Be: ees >. . wDe

Section 8 (d) : ea Seer: &

Section 9 (a> 15, 20

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No

Inthe Supreme Gourt of the United States

Ocroser Term, 1951

‘ > No— c ;

~¢. __ NATIONAL Lapor RELATIONS BoarbD, PETITIONER

| ms

AMERICAN NATIONAL INSURANCE CoMPANY

a

PETITION FOR A WRIT OF CERTIORARI TO THE”

¢ UNITED STATES COURT OF APPEALS FOR THE

} FIFTH CIRCUIT

The Nolicitor General, on behalf of the National

Labor Relatiens Board, prays that a writ of cdf.

tiorari issue to review the degision of the Court of

Appeals for the Fifth Cireuif entered on February

d, 1951 (R. 189-193) ,* petitiosfer rehearing denied

April 2, 1951 (R. 197), in so far as it sets aside a

portion of ‘an ordeyissued by the Board against

ae National Insurance Company (R.

OPINIONS BELOW

, The opinion of the Court of Appeals (R. 89-198 ;

* References to the three separately paginated: printed

volumes which comprise the record before this Court are as

fol'ows: for the Transcript of Record in the court below, “R.”

| for the Appendix to the Board’s briéf in the court Beet

\ “B.A.”; for the sie grits to the Company’s brief ir the court

\. below, “PA”.

(i)

~~

2

is not yet reported. The findings of fact, conclu-

sions of law, and order of the Board (R, i40-i52}

are reported at 89 NLP KB, No. 19, Be |

em,

JURISDICTION

* The judgment of the Court of Appeals was en-

tered’ on. February 5 D9, 1951. Petition for rehearing

was denied on April 4 1951. The jurisdiction’ of .

this Court is invoked under 28 U. S. C. 1254, and

Section 10 (e)' and (f) of the National Labor Re-

lations Act, as amended.

QUESTION PRESENTED -

The question presented is whether the employer |

violated Section 8 (a) (5) of the Act by refusing

to enter into any contract with a union unless the

union agreed to include therein a clause waiving

its statutory right to bargain about certain terms

or conditions of Stapeoy ment.

STATUTE INVOLVED

The statutory provisions principally involved . —

are Sections 8 (a) (9),8 (d), and 9 (a) of the Na-

infra, pp. 20-21. . eres

; : STATEMENT

Pursuant to a representation proteeding under

Section 9 of the Act the Board, on September 2

1945, certified the Office Emptovees fteonitions!

Union, AFL, Local No.-27, herein called the Union,

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~as the exclusive bargaining representative of re-

spondent’s office employees in an appropriate bar-

gaining unit (R. 166-167; 40-41)... Thereafter,

between November 30; 1948, and the time of the

hearing before the rial Examiner on July 26,

1949, the parties engaged in negotiations: with

respect to a collective agreement (R. 149, 167-171;

’ B.A. 23-24). At the first nteeting the Union sub-

mitted a provosed contract covering all principal

_ matters except wages, with a view toward reaching }

tentative agreement on other matters before dis-

cussing a wage scale (R. 167; B. A. 25-26, 36-37,

_P. A. 4860). No agreements’ were reactied either *

- at this meeting or-at the second megting, held on

December 15, at. which the Union proposed an in- .

‘creased wage rate schedule (R. 167; B, A. 39-40,

. A. 60-63). Thereafter negotiations were re

ceesed to January 10, 1949, to ive respondent time

to gi the ey s propogals. (R. 167; Bo A.

4()- 41).

At the 5 anuary 10 meeting, respondent Le

that’ the following -‘‘management prerogative —

clause’’ We incorperated in the contract (R. 167-"

168; B. A..42- 43) :

-_

‘The right to select, hire, to promote, démote, .

discharge, discipline for cause, to maintain

-discipline ang efficieney of employees, and to

determine se Caaeas of work. is the sole pre-

rogative of the Company andthe Company’s

decision with respect to such matters shall

never be. the subject of arbitration.

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Fhe Union objected on the ground that if it ac-

cepted this clause it would be abdicating the bar-

gaining rights secured it by the Board’s certifica-

tion (R. 168; B. A. 43-44, P. A. 16). Frem this

time on throughout the negotiations, however, —

respondent took fhé position tha’ it would. enter —

‘into no contract which did not contain its preroga-_

tive clause. .

At two further conferences on n J anuary, 11 and

12 , the Union attempted to bypass the prerogative

‘iin temporarily in order to secure agreement

on other proposed. provisions (R. 168; B. A. 45-46).

This attemp: proved unsuccessful because, as the

Board found (R. 168; B. A. 46-47), the proposed

prerogative clause, which respondent insisged must

be incorporated in any contract with the Union,

‘*so perv aded the field of bargaining that all paths

of discussion. appeared to be blocked by it.’??

Respondent’s s attorney and principal Negotiator -

stated that ‘‘if the Union will agree to accept that

prerogative clause, [ can guarantee you a contract

within An hour or two’’ (B. A. 47). The Union

replied that such a contract would be worthless

since the Clause empowerél the Company to change

rates of pay unilaterally,'‘to arrange work sched-

ules at any time withoui regard.to shift differen-

tials, and to demote and discipline ‘‘for cause”’

1The only agreements reached related to such undisputed -

matters as a recoghition clause, a po-strike clause, and elimina-

tion of physica! examination of. new employees (R. 168;

B. A. 50).

without any definition of that term (ibid. ). Re-

spondent tinally stated that it could not “hegotiate

any further until the Union agreed to the ‘‘pre-

rogative es of management, ”? and added that ‘under |

the Taft- Hartley Act it “did not have to recede

from any position,’’ and that therefore the nego-

tiations were ‘‘deadlocked.’’ The Union. denied

that there was a deadlock, and suggested an ad-

journment so that the conferees could gudy each -

other’s praposals and evolve some compromise on

the prerogative clause problem (R. 168 ; B; .A.

47-49),

The next ‘conference was held op neg

1949 (R. 168; ‘B. A. 51). Respondent contmued

to insist on the prerogatv e clause, suggesting that

ee administered the clause unfairly, the Union

would have recourse to the Board, and that conse-

querfly it was unnecessary to previde for arbitra- .

tion of disputed Company decisions taken parsu-

ant to the clause (R. 168; B. A. 51-52). . Respond-

ent expressed its willingness to contract that the

“terms of the Fair Labor Standards Act and other

applicable statutes would govern the rights of em-

ployees where pertinent, but said that it would not

agree to provisions going beyond such require-

ments (R. 168; B. A.52). At this meeting respond-

ent submitted a set f counterproposals to the

Union (R. 169; B. A, ! 53-58, 'P: A. 64-79), which

‘provided, in the main, for continuance of the exist-

ing wage scale, and leave policy, and restated in

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greater detail the managemnt prerogatives .in-

sisted upon by the Company. ¢1.e new prerogative

clause read as follows (R. 168; P. A. 66-67) :

-

Nothing in this agreement shall bé deemed

to limit or restrict the company in any way in

, the exercise of the customary functions cf

management, including the right to make sich

Fules not inconsistent with the terms of this

agreement relating to its operation as it shall

deem advisable, and the right to hire, suspend,

“discharge or otherwise discipline an employee.

for violation of such rules or for other proper

cause. :

°

The right to select and hire, to promote toa

better position, to discharge, demote, or dis-

cipline for cause, and to maintain discipline

and efficiency of employees and to determine

the schedules of work is recognized by both _

union and company as the proper responsi-

bitty and prerogative: of management to be

held and exercised by the company, and while

it-is agreed that an employee feelifig himself

‘to have been agzrieved by any decision of the

company in respect to such matters, or, the

union in his behalf, shall have the right to have

such decision reviewed by top management

officials of the company under thé grievance

machinery hereinafter set forth, it is further

agreed that the final decision of the company

made by such top management officials shall

not be further reviewable by arbitration. :

The next day, January 19, the prerogative glause

again Was the principal topic of discussion. The

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‘Union reluctantly agreed to accept the first para-

graph of the clause, but continued to assert that the

inclusion of the remainder in a contract, would

make such agreement meaningless and ‘subvert the .

Unior’s status as bargaining representative (R.

169-170; B. A. 58-62). Respondent stated that it .

had a right to insist on the inclusion in a contract

of any clause it ‘desired, af—d that unless the Union

agreed to the amended ‘‘prerogative clause’’ there

would be no contract (B. A. 59). Respondent

added that this clause-was the ‘“‘meat of the con-

tract’’ and that if the Union accepted it a contract

would be signed in ‘‘short order’’ (R. 170; B. A.

60-61). . |

— Ond anuary 28, 1949, the Union filed a it

with the Board alleging, inter alia, that the Com-

pany had refused to bargain in good faith in viola-

tion of Section 8 (a) (5) of the Act (B. A. 62). —

Nevertheless, negotiations were resumed on Febru-

ary 7, 1949, with both parties maintaining their

previously expressed positions with respect to the oy

inclusion of respondent’s prerogative clause in-any,,

contract (R. 170; B. A. 63-65). With respect to

other matters, respondent took the position that

no law required it to raise wages, grant a better

sick-leave plan, or negotiate an arbitration clause

(ebtds oe

The Company-atid. Union continued to meet until

the date of the Board hearing on July 26, 1949

(B. A. 24, 104). The conferees remained in dis-

agreement, howev er, or the issue @f the > preroga-

3

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tive clause which the Company continued to insist

upon as a condition to concluding a contract. At

a meeting held on March 11, 1949, the Union-re-

quested a copy.of the Company’s rules and regula-

tions in order to determine more accurately the

probable effect of petitioner’s prerogative clause

(B. A. 94.95, 140). These rules gave the Company

- complete power ‘‘in its discretion’’ to: “establish

new rules and practices,” and ‘‘amend” or “‘ean-.

: eel’’ existing rules and practices (B. A. 141-154).

The regulations also reserved to the Company. the.

‘exclusive right’’ to take ‘‘whatever actioft- it; &..

> deems advisable,’’ inchading discharge, for viola-*

tions of the rules (B. A. 154). In addition, under

its regulations, the Company. possessed the sole

right to determine whom to ‘promote or demote,”

and the ‘‘exclusive right-to transfer, temporarily

or permanently, to any department, employees of

' other departments regardless of seniority’’ (B. A..

142-143). Phe Company also retained\the ‘ “exclu-

_ sive right’ to approve or disapprove requests for

leave of absence,’’ and to distribute overtime work

to ‘‘employees of its. own choosing . .. if i in the

_ opinion .of the Company, such ‘aelie becomes :

“ - necessary”’ (B. _A. 144, 149), The Union repre-

sentatives declared that these Fules, when consid-

ered in conjunction with the proposed prerogative

clause, made any collective bargaining agree-

ment covering any: of these points meaningless

(B>A..96) +

el

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‘At a meeting held on May 19, 1949, the Union

submitted a complete set of new counterproposals

to the Company, accepting respondent’s existing:

_ wage seale, and vacation and sick leave schedule,

(R. 170-171; B. A. 83-84). Respondent’s preroga- ° |

tive clause was agreed to with a proviso that re-

spondent éxercise its prerogative in.a “fair and’

just manner”’ (R. 170-171; B. A. 97-98, P. A. 108}.

Respondent rejected the compromise on the ground. -

that by its terms, decisions taken by the Company-

pursuant to the prerogative clause’ would still ulti-

mately be subjected to arbitratiow (R. 171; B. A.

. 97-98). Respondent repeated its assertion that it

- would never condition its prerogative on’arbitra-

tion, and that no law required it to (R. 170-171;

_B. A. 97- 98). pore he

_At various.times during the negotiations between

oN ovember 1948 and May 1949, r&pondent, without S

consulting or notifying the Union, established new

night shifts in sev eral departments of the office.

An hourly wage of one dollar was instituted for

workers employ ed on the new shifts, in contrast to

the $85 per month starting salary for day shift

workers (R. 149; B. A. 119-120, 135-137). When

the Union objected to respondent’s unilateral

action in this regard, respondent stated that its

‘management prerogative permitted the taking of

such action without prior consultation with the

Union (B. A. 124-125). Similaykx while the nego-

tiations were still in progress, respondent, without

a

pS nee | eee

consulting the Union, instituted a new system of

staggered lunch hours * (R. 149; B; A. 128-131).

After issuance of the Trial Examiner’s inter-—

mediate report and before the Board’s decision,

respondent and the Union executed a contract con-

taining, among, other things, a prerogative. clause

not materially’different from that insisted upon

by respondent throughout the negotiations dis-

cussed above"(R. 152; 121-143) °°

- The Board found (R. 149) ‘that, by the preroga-

tive clause, respondent “sought to reserve to itself

the exclusive right to determine unilaterally such

terms and conditions of employment as working

rules, work schedules, the establishment of extra

shifts, lay-off policy, lunch periods, the granting

of leave of absence, and the distribution .of over-—

_ time.”’ The Board concluded (R. 150) that, since.

* Before changing the lunch hour Dribell, respondent’s repre--

sentative, did ask Stafford, the Union’s prineipal negotiator,

if he personally had any objection to the propdésed change.

* Stafford replied that he did not personally care, but that the

_ proposal should be first discussed with the official Union

negotiating committee. This respondent failed to do (B. A.

128-131). Pe

- §Respondent moved the Board to dismiss the refusal-to-

bargain charges on the ground that this agreement rendered~-

the charges moot (R. 152; 113-121). The Board denied the

motion on the ground (R. 152) that, even assuming that

- respendent had finally abandoned its unlawful conduct, “the

discontinuance of yinfair labor practices does not render moot

charges based thefeon.” National Labor- Relations Board v.

Mexia Textile Mills, 339 U.S. 563, 567; National Labor Rela-

tions Board v. Pool Manufacturing Co , 339 U. 8. 577, 581-582.

The Board found further (R. 152). that effectuation of the

policies of the Act. required that respondent be directed to

cease and desist from engaging in the conduct which the Board

found to be violative of the Act.

11;

the subjects covered by the prerogative clause af-

fected ““terms and conditions of employment”’,

they wére subjects of compulsory bargaining un-

der. the Act and, accordingly, respondent’s ‘‘de-. .

mand for the prerogative clause-as a condition to

making a contract... . [was] in derogation af

the Union’s bargaining rights secured to it by See-

tion 9 (a) as the exclusive representative of the Re-

spondent’s employees and therefore constituted’

per se [a] violation . . . of Section 8 (a) .

(5) and (1)”’ of the Act, quite apart from any

question of respondent’s good faith. The Board,’

found also (R. 149-150) that respondent ‘gactionin —

_ establishing new work shifts and changing the em- -

ployees’ lunch period, while negotiations were in

progress without consulting or notifying the Union,

was in violation of Section 8 (a) (5) and (1) of

the Act. In addition, the Board found (R. 150-152)

that respondent's whole course wf dealing with ‘the

‘Union, including its.refusal to enter into any con-

tract unless the Union agreed to the restrictive

prerogative clause, constituted an unlawful refusal

to bargain in, good faith.‘ o |

To remedy the violation of the Act manifested by

respondent’s refusal to execute any contract which

did not contain the restrictive prerogative clause,

4 The Board also found (R. 153, 161-163) that #espondent

had violated Section 8 (a) (1) of the Act by intevrogating

employees concerning their union. activities and threatening

economic retaliation against them for such activities. This

finding was sustained by the ot below. (R. 189-190, 193),

and no issue with respect thereto"is presented.

1 a

the Board’s order (Par. 1 (a), R. 153)(-required

respondent to cease and desist from refusing to

bargain collectively with the Union ‘‘by insisting

as a condition of agreement, that the said Union

agree to a provision whereby the Respon@ent re-

serves to itself the right to take unilateral action

with respect to rates of pay, wages, hours of em- ~

ployment, and other terms and conditions of em-

ployment.” ee Fe |

. The court below, while sustaining i

Section 8 (a) (5) of the Act (R. 153, 1614163, 192),°

held (R. 191-192), that the Board “‘was wrong in

its . . . conclusion that the Respondént, by in-

ioe on the so-called prerogative clase. as a

ition of agreement, failed to perform its statu-

tery obligation to bargain,”’ and refused to enforce

paragraph 1 (a) of the Board’s order (R. 153)

which required respondent to cease and desist

from such conduct. -

SPECIFICATION OF ERRORS TO BE JRGED

The court below erred :*

1. In holding that under Sectign : (a) (0) of the

Act an employer may refuse to’ enter into any con-

tract with a union unless the union agrees to in-

clude therein a clause’ waiving its statutory right .

to bargain about certain terms or conditions of .

employment. ; -

> No review of this holding has been sought.

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a not envoreing paragraph 1 (a) of the

Board’ 8 order. g

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REASONS FOR GRA G THE WRIT

1. The decision below permits employers in effect

to refuse to bargain about certain terms and con-

ditions of employmefit as to which, under Section. -

5 (a) (9) of the Act, the employer owes an qbliga-

tion to bargain. There is no question but that

work schedules, and other matters covered by the

Company’s ‘‘prerogative’’ clause, are within the

area of compulsory collective bargaining as defined

by Section 8(a) (5) and 8 (d). In‘Electrie Rail-

way & Motor Coach Employees, etc. ¥. Wisconsin

Employment Relations Board, 340 U. 8. 383, 399,

this Court, citing the Be nard’s decision in the in-

stant ease, held that * ‘problems of work scheduling

and shift assigyment’”’ are matters on which em-

ployers are required by the National Act to bargain

collectively. And the court below, in holding that

' the employer violated Section 8 fa) (9) by uni-

laterally establishing new work shifts without

consulting the Unien, apparently recognized that

an employer may not, consistently with the Na-

tional Act, refuse to bargain colleciively on this

subject. ;

From the outset of ‘negotiations the Company,

“insisting that these matters fell within the’ area of

‘‘management. prerogative’? rather than the area

of collegtive bargaining, repudiated its obligation

to bargain collectively with respect to them. . The

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Company refused to submit the subject of work.

schedules, among other conditions of employment,

to the process of cgetanl wo sear it refused in ©

advance even to considet_negotiating with the

Union as to what the work schedules should be. —

The Company aggravated its refusal to treat

shift schedules, ete., as a bargaining issue by con-

dittsxing the execution of any contract upon the

-Union’s acquiescence in the Company’s position

that there should be no bargaining as to these sub-

jects. This conduct compounded, rather than, as

the court below apparently believed, minimized the

illegality of the Company’s stand. The statutory

obligation to bargain with the exclusive represerta-

tive in good faith and to embody terms and condi-

tions which are agreed upon in a contract (H. J.

Heinz. Co. v. National Labor Relations Board,

311 U. 8S. 514), is unconditional and may: not be

evaded by the imposition of private conditions.

The ‘‘Act guarantees to the employees the right to

bargain collectively * * * and it is not for the

employer to restrain or interfere with the exercise

of that right by insisting upon unwarranted condi-

tions.’’ National Labor Relat ions Board v. George

P, Pilling & Son Co., 119 F. 2d 32, 38 (C, A. 3).

The condition here exacted by the Company for

performance of its statutory duty to bargain ¢ol-

lectively was the sacrifice by the Union of its statu-

tory right to bargain about shift schedules. If the

decision below stands, employers. may unilaterally

narrow the area of terms.and conditions on which’

o ~35 i.

bargaining is required under the Act by refusing,

as the Company did in this case, to execute any con- ,

tract unless the employer is released from his statu-

tory obligation to bargain on one or more subjects.

To sanction this technique is to compe! employees

‘to surrender one portion of their statutory rights

as the price of enjoying another portion.’ By this

« device the bargaining obligation is robbed pro taxio

of its effectiveness as an instrumentality of indus- .

trial peace, and the rights which Congress con-

ferred upon employees are whittled away.

The court below evidently believed that the em-

pByer’s conduct in the instant case was warranted

-by the principle, embodied in Section 8 (d), that

the obligation to bargain collectively ‘‘does not

compel either party to agree to a proposal or re-

quire the making of a concession.’’? In the Board’s

® Cf. Bethlehem Steel Company, 89 NLRB 341, enforcement

denied on other grounds, June 7, 1951 (C.A. D.C.), where the —

employer conditioned the making of any contract upon the

union’s agreement to a provision restricting its absolute right,

under the second proviso to Section 9 (a) of the A&TT an

opportunity to be present at the adjustment of grievances.

See also, the cases cited, infra, pp. 17-18, dealing with the

problem of employer insistence that a union waive the exercise

of various rights unconditionally guaranteed by the Act.

7 Section 8(d) provides: Py

(d) For the. purposes of this section, to bargain col-

~ lectively is the performance of the mutual obligation of

the employer and the representative of the empleyees- to

meet at reasonable times and confer in good faith with

respect to wages, hours, and other terms and conditions of

employment, or the negotiation of an agreement, or any

question arising thereunder, and the execution of a written

- contract incorporating any agreement reached if requested

by either party, but such obligation does not compel either

party to agree to a proposal or require the making of a

concession * -* *.

Seu.

view, the proposals and concessions thus referred

to relate only to substantive teyms and conditions

of employment which are governed not by the terms

of the statute but by agreement of the parties. The

Act does not compel agreement on any particular

wage demand or require the employer to agree to

any particular shift schedule. But the freedom to

disagree on substantive economic issues does riot

comprehend freedom to repudiate the obligation,

which the statute does impose, to bargain collec-

tively upon request about shift schedules and other

conditions of employment, no less than wages. It

cannot be that Congress in ‘one breath imposed the

duty to bargain upon request and in the next

breath provided that denial of the request should

eliminate the duty.

ae Board’s view does not imply, of course, that

a labor organization may not lawfully agree for the

duration of a contract to waive its right to bargain

concerning particular subjects in the area of wages,

hours, and working conditions. Nor does it M@Ban

that an employer may not lawfully request the

union to agree to such a provision, and offer con-

cessions in the form of improved substantive terms

in érder to obtain the union’s consent to such a

waiver. It does tnean, however, that if the union

rejects the empleyer’s offer and continues to re-

qfest bargaining on these as well as all other sub-

jects, the employer may not refuse to attempt to

reach agreement about them. And it also means

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\ \ that the employer mzy not eiter performance of his

\statutory iwi ge to bargain collectively as the

‘concession”’ ’ for the union’s acquiescence in his

proposal.

\2. The decision below conflicts, in principle, with

devisions of the Courts of Appeals for the First;

Fourth, Seventh and Ninth Circuits, which. hold

that an employer may not exact surrender of rights

which the statute unconditionally guarantees ‘em-

ployees as the price of bargaining for a contract.

In McQuay-Norris Mfg. Co. v. National Laborg

Relations Board, 116 F. 2d 748, certiorari denied,

313 :U- 8. 565, the Seventh Circuit held th at the

employer could not properly compel the union to

bargain concerning the matter of exclusive recog-

nition, that ‘‘the recognition required. by [See-

tion] 9 (a) is not a bargaining matter,’’ and that

& ex contrary view ‘“‘would confer upon the employer

the option of* bargaining concerning a matter

guaranteed the employee as of right . ...”?. Cd.,

at p. 751). In Hartsell Mills Co. v. National Labor

Relations Board, 111 F.Qd 291, the Fourth Circuit

held that the employer could not properly make the

union’s surrender of its right to file unfair labor |

practice charges with the Board, under Section

10 .(b) of .the Act, ‘‘a condition precedent: to

further neetions with respect to a contract

2)

(id., at p. In National Labor Relations

Board v. Reed & Prince Mfg. Co., 118 F. 2d 874,

883, certiorari denidd, 313 U. 8. 595, the First Cir-

18

cuit: held that the employer could not, properly

condition the execution of any contract upon the

union’s agreement to a clause which effected a

surrender of its right to bargain in the future for

a closed-shop and check-off. And, in Richfield Oil

Corp. x. National Labor Relations Board, 143 F.

2d 860, the Ninth @ircuit held that the’ right of

2 merchant sailors ‘to have the assistance of their

union ‘‘shore delegates’’ in settling grievances

with the mr ap tag “necessary incident of

the sailors’ right of collective bargaining,’’: thate¥

in the absence of a wajver ‘the right: eile and

the employer, during contract negotiateons, **can-

not deny its exercise for the purpose of making a:

better bargain as to some other provision of the

contract’? (id., at pp. 861-862).

3. The decision below raises questions of obvious

large importapee in the administration of the

National Labor Relatiens Act and the effectuation

of the rights of collective bargaining secured by

the Act. To permit an employer to insist, as an

absolute prerequisite to the consummation of -an

agreement, that the union abandon its statutory

right to bargain collectively on fundamental

matters affecting wages, hours, and working con-

ditions is to emaseulate the holdings that these Are

not subjects of ‘‘management prerogative’’ but mat-

ters on which the employer owes a statutory obliga-

tion to bargain.” The techwfque here employed,

SE. G. Electric Roftway case, supra, 340 U\S., at p. 399;

National Labor Relations Board v. J. H. Allison & Co., 165

a oes

19

and sustained by the court below, places in the path

of bona fide collective bargaining a road<block no

less impassable than an absolute refusal to bargain

at all.

4

CONCLUSION

_: Phe i issue presented is of substantial importance

in administ¥ation of the Act, and the decision

‘below conflicts in principle with the decisions of

other Courts of Appeals. It is respectfully sub-

mitted that this -petition for a writ of certiorari

should he granted.

. Pup .B. PERLMAN,

Soliciter General>

GrorcE J. Bort,

General Counsel,

- National Labor Relations Board.

JUNE 1951.

4

oe

F.2d 766, 768-(C. 6), certiorari denied, 335 U. S. 814; Inland °

Steel Co. National: Labor Relations Board, 170 F. 2d 247,

251-253 ig A. 7), certiorari denied, 336 U.S. 960; W. W. Cross

& Co. v. National Labor Relations Board, 174 F. 2d 875

(C.A. 1).

. 3 @

APPENDIX

The pertinent provisions of the National Labor

Relations Act, as amended (61 Stat. 136, 29

WS. C., Supp. IIT, 141, et seq.), are as follows:

ts * Ci) * * +

Sec. 8. (a) It. shall hé’ an unfair labor |

prac tice for an employer— e

ee & * * *

(5) to refuse to bargain collectively with

the representatives of his employees, subject

to the provisions of section 9 (a).

sd * * 98 * *

(d).For-the purposes of this section, to

bargain collectively is the performance of the

mutual obligation of the employer and the

representative of the employees to meet at

reasonable times and confer in good faith with

respect to wages, hours, and other terms and

conditions of employment, or the negotiation

of an ‘agreement, or any question arising

thereunder, and the. execution of a weitten

contract incorporating any agreement reached

if requested by either party, but such obliga-

tion does not compel either party to agree to a

proposal or require the making of a conces-

gion * * *.

* ; * * * * °

Src. 9. (a) Representatives designated, 01

selected for the purposes of collective bargain-

ing by the majority of the employees in a unit |

appropriate for such purposes, shall be the

exclusive representatives of all the employees

in such unit for the purposes of collective bar-

s .

ete 5

gaining in respect to rates of pay, wages, hours

of employment, or other conditions of employ-

ment: Provided, That any individudl em-

ployee or a group of employees shall have the .

right at any time to present grievances to their

employer and to have such grievances

adjusted, without the intervention of the bar-

gaining representative, as long as the adjust- --

ment is not inconsistent with the terms of a

collective-bargaining contract or agreement

then in effect: Provided further, That the

bargaining representative has been given gp-

portunity to be present at such adjustment:.\

* eo. , ee * +

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