# Petition for Writ of Certiorari — National Labor Relations Board v. American National Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0139%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1952 - **Citation:** 343 U.S. 395 ## Text Offi¢e-Suprems : ee “COURT, 4 ‘ 2 6 = coe MD Courrl,-U. §, — a 2 LIBRARY. : Net. aa a ee oe i No. — CPCHARLES” ELMORE | aoa Onions Treat, ASF na ee m. 2 : ‘Nukonan Tats RELATIONS Board, PETYTIONEE — EO aS Ber ah American Nationat Insurance Company ° » pie es STATES’ “COURT ‘OF ‘APPEALS FOR THE PAS: Shou Be ? | & Ze ; +4 ; ¢ ‘ : : ? rf ‘ $ t 7 . * g “¢ . i, ate * ‘ ‘ / ° » ‘ SB 7 « . y.. Poms os a“ +e INDEX Page 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 . . wDe Section 8 (d) : ea Seer: & Section 9 (a> 15, 20 +} ee ‘ 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, gv % “3 ~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. — : oe | 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 9 ws e 6 oe 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 = ‘ 4 ‘ ‘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 Be ‘ . cz 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 \ | ¢ ‘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. 1 a \ 13 a not envoreing paragraph 1 (a) of the Board’ 8 order. g , . & 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 ? : | 14 - : A 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 \ \ : 17 \ \ 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 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 * + me i ae wus GOVERNMENT PRINTING OFFICE: (85T 940536 882 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0139%3A1. Public record. Not legal advice.