Brief for NLRB — National Labor Relations Board v. American National Insurance

Supreme Court brief1952

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SUPREME courT, U.

No. 126

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‘BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

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. ‘ : : Page

Opinions below eaae tas | 1

~ Jurisdiction |. . a Ses Nes 2

Question presented . eee ere 2

Statute tvolwid ... .... 2266.00.55 cag 2

Statement . a pales 3

lL. The Board’s findings \f fact. Poe OU Be 3

Il. The Board’s conclusios and orde 54 Metis 11

ILL. The degision below . Bakes ie R REY 13

Specification of errors to be urged cs pana: 13.

Summary of Argument asks BASSES 14.

Argument .........-..5..4-. See Oe ai eel, 19

Introduction .......... re eater OB Me hie meaes 19

I. Respondent, in violation of Section 8 (a) (5) and

(1) of the Act, refused to bargain collectively con-

cerning shift schedules and other matters compre-

hended by the prerogative clause... -. . g, 22

-A. The statutory obligation to bargain colle:

tively extends to shift sc hedules, working

rules, and other “terms and conditions of

employment” -which respondent claimed

. se the right ) determine unilaterally.......¢ 22

Si cae B. Respondent reigeed to bargain coHectively

\ : erates concerning subjects it considered

: “management® p erogatives” athe ee 26

II. Respondent, in violation of Section 8 (a) - (5) poe

(1) of the Act, refused to bargain collectively eon-

cerning matters to which the collective bargaining

obligation admittedly applied.................. 32

A. By refusing to execute any contract unless _

the restrictive prerogative clause was in-

eluded therein respondent imposed an un-+

lawful qualification upon its offer tocbar-

. gain about subjects not included “in ‘the

2 ; a esr MR Sk tess $2

. By imposing a condition precedent tog

the execution of any eontract re-~

spondent qualified its entire offer

to bargain Guduiives 6 ee 0°33

- 2. By demanding an extra-statutory

concesgion as a eondition precedent

to Wargaining respondent repu-

diated its obligation to bargain — 36

- Argument—-Continued -

B. Seetion 5 (d) does not relieve employers of

the obligation to honor bargaining rights

: conferred upon labor pes gears by the

. . ms PN ian weenie ek eMseen7. Vales e eoot 4s

| . That a party ny lawfully waive collective

bargaining righis conferred by the Act

sloes not excuse the commission Of unfair

labor practices designed to induce such a

)

; SME ed cr tin eas) Ghar: eye are

COME os vs a eee hese eer ee areas cies

oe MEDORA RE Ce Sr isi) aio! Pare erg ae ae

Lobit naninis .

Cases: : :

Alabama Marble Ch, 93 NLRB 1047. eee pice ges ae

Allied Yarns Corporation, 26 NLRB 1440.

Aluminum. .Ore Company vy. National Labor Relations

Deards 30 OO em

Page

29, 31

Amalgamated Association, ete. v. “Wisconsin Employ yment -

Relations Board, 340 U. 8S. 383.02... ............

Art Metals Construction Co. V. National Labor Relations

Board, 110 F. 24 148.............. 1] Rog ety pee 34,

Bethlehem Steel Company, Shipbuilding Division, et al.,

89 NLRB- 341, enforeement denied on. other grounds

Pe ene ey a ws

Briggs Indiana Corp., 63 NLRB 1270 INTE | erga #

-J. I. Case Company v. National Labor Relations-Board,

aE ORE Eee Se Nee eps et oe aa PPaoae e

WwW. W. Drea & Company, Ine. Vv. National Lahor Rela-

tions Board, 174 F. 2d 875.............. ea eee

Ndwards V. "California, 314 U. 8S. 160.- _

E lectric Ry. & Motor Coach sg a Vv. Wisconsin Em-

ployment Relations Roard, 340 U. 8. 383.

Eppinger & Russell, 56 NLRB 1259...

\ Franks Bros, Co. v. National Labor Re latéons Board, 321

\ U. S. 792 .... oes

\ General ‘Controls Co., 88 NLRB 1341. peeks i

\ Globe Automatic Sprinkler Co., 95 NLRB, No. 42

\ Globe Cotton. Mills v. National Labor Relations

16, 41

35, 47

‘ 108 F. Gd OF... ee eee 27, 49

The L. Hardu Compan, 44 NUKB 1013. 37

Hartsell Mills Company Vv. National Labor Relations

oard, 111 F. 2d 29) affirming; 18 N.L.R.B. 268 | 35, 39

H, J. Heimz Company.v. resi. Labor Relations Board,

31 U. 8S. 514... 34

Hill v\ Florida, 325 U.S. 538 _16, 40-41

Hughes Tool Company v. National Labor Relations

Board\ 147 F. 2d 69.

. it

Cases—Continued

“ .

Inland Steel Company v. National Labor Relations

a6 ees 17 F. ad 247, certiorari denied, 336 U.S. “96,

Page

23, 25, 31

Jeffery-DeWitt Insulator Co, v, National Labor Relations

Board, 91 F. 2d 134, certiorari denied, 302 U, 8. 731

ua Joy Silk Mills, Inc., 85 NLRB 1263, enforeed as andiied

-'185. F. 24.732, certiorari denied, 341 U, 8. 914

May Department Stores Co., 59 NLRB 976, enforced,

154 F- 2d 533, certiorari denied, 329 U.S. 725

MecQuay-Norris Manufacturing Co. Vv. National Labor -

Relations Board, 116 F, 2d 748, certiorari denied, 313 -

Uy SE Sa san pak naees Spree: ee OF

Medo Photo Supply Corp. v. National Labor Relations

Board, 321 U. S. 678....... ) |

National Labor Retations Board v. j. Aldora Mills 180 F..

> 2d 580, enforcing 79 NLRB 1

National Labor Relations Board vy. J. H. Allison é Co.,

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

44, 46

23, 25, 26, 29, 31, 5

Nationat Labor. Relations Board v. Andrew Jergens Com-

pany, 175 F. 2d 130, certiorari denied, 338 U. 8S. 827

National Lahor Relations Board v. Bachelder, 120 F. 2d

BP eet Saeed

National Labor Relations Boerd* v ye Oe 135 F. ad

959 oy

National Labor Relations Board v. Berkley Machine

Works & Foundry Co., Inc., 189 F. 2d 904

National Labor Relations Board vy. Blanton Co., 13h F,

2d 564 .-

National Labor Relations Board v. Bogs Mfg. Co, 118 F.

We ae ess °

National Labor Relations Board v. Burke Machine Tool

Co., 133 F. 2d 618.

National Labor Relations Board v. Cape C county Milling

Conépany, 140. F. 2d 54%

jutional Labor Relations Board v. Columbia Enameling

NStam ping Co., 306 U. S. 292.. :

yl Labor Relations, Board v. Corsicana Cotten

178 F. 2d 344 ; ees

National Labor Relations Board v. Crompton- Highland

Mills, Inc., 337 U.-S. 217..... aaa

National Dee Relations Board v. Dalton Telephone c 63,

43, 54

187 F. 2d 811, certiorari denied October 8, 1951, No.

145, this Term __,.. 34,

— nal Labor Relations Board v. E ‘épress Publishing

»., 111 F, 2d 588, reviewed as to scope of order, 312

US. 426 .

42, 54

Cases—-Continued *4

Page

National Labor Relations Board vy. General Motors Cor-

poration, 179 F, 2d 221.....”..

National Labor Relations Board v.

106 F. 24-713 |

National Labor Relations Board v. High lena Park Mg.

Co., 110 F, 24 632. .

National Labor Relations Board’: v.

Steel Corp., 301 U. 8.1.

Griswold Ms ‘9. Co.,

. 26, 30, 43

ata’ 30, 34, 35,

Jones & Laughlin

National, Labor Relations Board Vv. ‘uses ile Publishing |

Co., 124 F. 24875 ......... 0...

National Labor Relations Board vy.

Coy, 102 F. 2d 678, certiorari denies

National. Labor Relations Beard vy.

Telegraph Co., 304 U.S. 333... .. ;

National Labor Relations Board vy.

5000 6. BS

National. Labiw Relations BBard V;

& Co., 3393. F..20 Gt6. 2. 3.

National Labor Relations Boar

Son, Inc., 151 F. 2d 490.

Louisville Refining

d,-308 U. S. 568... . 34, 39

\Mackeu Radio é |

N ational Labor Relations Board Vs George 1 P: Pilling &-

Son Co., 119 F. 2d 32. peeciet

Nutional Labor Relations Board vy.

Co., 339 U. 8. 577

“9% % & © Wae ele wo

Suen Hee he Se ee

Pool Maniifacturing

er eee ee Tt.

National Labor Relations Board vy. Reed. f Prince Bani:

facturing Co., 118 F, 2d 874, certiorari cenied, 313

U. $:-595 ies .

ees ‘Laboy Relations Board v.

, 141 F. 2d 156.

mos -. 43, 44, 45

“Register Publishing

Wailea Labor Relations holed x v. ' Goimovees Shoe Co.., i

Fy Oe Re a ee

Natjonat’ Labor Relations Board v. Swift d Co., 127 F..

EE LS AS, cee Noe

National Labor Relations * Toda Co., tae.. 173 *,

2d 75, . ;

National Labor Reiations Board v.

Brake Co., 120 F. 2d 1L0G4

National Labor Relations Board v.,

| Westinghouse Air

aed. Vera sete ae Oe

Whittier Milly Co.,

SERS ae ee eee er ee ee ee ee ee od

alyonal Labor Relations Board v. . Winona Te rtile Mills,

Vas 160 F. 24 1... 44

Wational Licorice;Compuny Vv. National Labor. Relations

Board, 309 U, jS. 350. / #3 bk Race Meise, _ 25, 43

Oid Line Life Insurance’ Co., 96 NLRB No. 66... ..... 52,55

Order of Railfoad, Telegraphers v. at tae Kaxrpress

* Agency, Inc}, 321 U. 8, 342 , 43, 4, aT

Charles E. Reed + ‘Company, 76 NLRB” a8. Fs Aas oe

“és

Cases—Continued

: | Page |

Richfield Oil Corporation vy. National Labor Relations

- Boaré, 143 F. 2d 860. ||: ; 3 oe 53

Shell Gil Company, 77 NLRB 1306 57

Singer Mfg. Co. v. Natioral Labor Relations Board, 119.

F, 2d 131, certiorari denied, 313 U.S. 595... . 28, 49

_ Sport Specialty Shoemakers, Inc., 77 NLRB 1011 ene

Standard Generator Service Company of Missouri, Inc.,

A 1 ae) SENN Se i Piet an Mae ea Hep ee aes preiea , 85

ndard Generator Service Co. Vv. National Labor Re-

tions Board; 186 F.2d 606... 0.0.02. 0 0... 4 OO

_StA&vart Die. Casting Corp. v. National Lubor Relations" ~

rd, 114 F. 2d ae, certiorari denied, 312 U. 8.

ESR ee ee oe Ee he eee 43

Tide Water Associated Oil Company, 85 NLRB 1096. , é¢ 52

Times Publishing Company, 72 NLRB 676. 56

West Texas Utilities Company v. National Labor Rela-

tions Board, 184 F. 24 233, certioran denied, “341'U.'S.

939, ‘rehearing denied, October 8, 1951. sv a

Wilson & ‘Co. vy. National Labor Relations Board, 115 F. ;

2d-759 ... pale Ege Notre 7 ree Cena AP pee “25

- =o \ ;

. Statute: ‘ | odie x

National Labgr Relations Act, aS amended (61 Stat.

136, 29 U.S. C., vant IV, 151, et hist :

: Section 1 . . yer 38 .'

Section 7... Derive dk veW CLI c ae vt eee

. Seetion 8 (a) (1) “e re 2, 43,. 57, 59

/ Seetion 8 (a) (5) | | ae 14, 22, 36, 43, 57, 59

-_* Seetion 8 (d) 2, 14, 17, 21, 22, 23, 33, 37, ~ 47, 48, 49, 55, 59

rSection 9 (a) .°. 2, 14, < 21, 2 22, 25, 31, 36, 55, 66

oS“ UE | 4 eae : Pe LEE Pore. a

Sectif 9 {g) -. SE aoe len ae od - $7 -

oS | at ee Eee . eee 37

Miscellaneous: Mee

Cox & Dunlop, ‘Seitaicee’ of Collective Bargaining by

the Nationgl Labor Relations Board, 63 Harv. i. Rev.

889 (Jan.,/1950) ...... 23, 55

Findling & Colby, Regulation ‘ Collective Bargaining

by the National Labor Relations Board—-Another View,

51 Col. L. Rev. 170 (Feb. 1951)....... 24, 56

—H-€onf. Rep. Ne. 510, pp. 34, 35, in Z Leg. Hist. 538,

Boe Nr. 59-51

H. R. 3020, 80th Cong., Ist Sess., pp. 6- 10, in 1 Leg.

Hist. 36-40 .-..... 49

H. R. 3020, as passed, 80th’ Cong., ist Sess., dD. 9, in 1

ne A es BO, 35 a's. : ie 28

Miscellaneous—C contin

) we Page

H. Rep. No. 245, pps 19-20, 22-23, 86th Cong., Ist

in 1 Leg. Hist. 292, 310-311, 313-314. Sey 50, 56

Legislative History of the Lahor Management Relations :

Act, 1947 (Govt. Print. Off., 1948)... .. rie eae 50°

National Labor Relations Regel Thirteenth Annual Re-

port Govt. Print. Off., 1949), pp. 59, 60, 61...... 37, 48,56

National Labor Sidistions Board, Fourteenth Annual Re-

port (Govt. Print. Off., 1950), p. 71. BEY 8 Lope SPP oh 37

Natienal Labor Relations Board, Fifteenth Annual Re-

port (Govt. Print. Off., 1951), pp. 119, 121, 125... . 37, 48, 52 -

S. Rep. No. 105, on S. 1126, 80th Cong., Ist Sess., p. 24,

in 1 — Hist. 430. oy ihe ole ak aes 28

er i snes

Inthe Supreme Goust of the Wnited States.

OcroBER Term, 1951

No. 126 ff

wo i 2

NATIONAL LaBor RELATIONS Boakb, PETITIONER

: ’ ¥

uv.

AMERICAN NATIONAL INSURANCE COMPANY

Bae:

QN WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH, CIRCUIT

. fi a

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

9°

OPINIONS BELOW

The opinion of the Court of Appeals, (R. I. 111-

115) ‘is reported at 187 F. 2d 307. The findings of

'The printed record before this Court consists of three

volumes; voiume one, referred to hereinafter as “R.1.,” con- |

tains the pleadings, Board decision and order and the pro- |

ceedings inj the court below; volume two (“R. il.”) contains

the portigns of the transcript of testimony and_ exhibits

reprinted hy theeCompany ys an appendix to its brief in the

court below; volume three (“R. IIT.”) eoutains the material

reprinted by the Board as an appendix to its brief in the court

below. Wherever in a serics of references a semicolon appears,

references preceding the semicolon are to the Buard’s findings,

succeeding references are to the supporting evidence. “|

. (1)

_ fact, conclusions of law, and order of the Board

ye Kk. 1. 85- 107) 3 are reported at 89 NLRB 185.

JURISDICTION

The \ jndgment of the Court of Appeals: was en-

"tered on February 23, 1951. . A petition for rehear-

we ‘ing was denied on April 2; 1951. The- petition for

writ of cértiorari was filed on June 18, 1951, and

granted on October 8, 1951. The jurisdiction of

‘this Court is invoked under 28 U. 8. C. 1254, and

Section 10 ( e) and (f) of the, National Labor Rela-

tions Act, as amended.

_ QUESTION meget

Whether an employer violatts 3 ‘Section 8 (a) (5)

and (1) of the Act by refusing to enter into any

contract with a union unless the union agrees: to /

inclugle therein a clause waiving its statutory right.

to bargain about selection, hire, promotion, demo-

‘tion, discharge, and discipline of employees, detet-’

mination of work schedules, and other terms. or. ’

conditions of employment. pr

: STATUTE INVOLVED .

The statutory provisions principally invoJved

are Sections 8 (a) (1) and (5), 8 (a), and 9 (a)

of the National Labor Relations Act, as amended

(61 Stat. 136; 29-U,.5. C., Supp. TV, 151, et seq.).

~The. pertinent prov isions are set out in the Ap-

pendix, inire, PP. 59- bi cai ; asa

; Fas TEMENT J virions

Upon the usual proceedings, under Sectien 10 of

>the Act, the Board, on April 5, 1950, issued its

decision and order against respondent (R. & 85-

107). ;

2 . 4. The Board’s Findings of Fact

_Pursuant te a representation proceeding under |

Section 9 of the Act, the Board, on September 2,

1948, certified as the exclusive bargaining repre-

sentative of re spondent’s of#e employees in an ap-

- propri:.ce bargaining unit, Office Employees Inter-

national. Union AFL, Local No. 27, herein called

the Union (R. 1.96; 22- -23); Thereafter, between

Noveinber 30, 1948, anc the time of the hearing

Wefore the Trial Examiner on J uly 26, 1949, the

parties: e} ngaged in negotiations witn Respect to a

er agreement (R. I. 85-86, 96-99; R. ITI.

3-25). At the first two meetings the. ‘Union sub-

mitted a proposed contract Covering the. principal

matters generally included in collective agree-

ments (R. 1. 97; R. LIL. 25-26, 36-37, 39-40; R. IT.

48-60, 60-63). Thereafter negotiations were re-

cessed to January 10, 1949, to give respondent tim¢

to ar the Union’s proposals (R. 1. 97; R. 1.

40-41).

At the J anuary 10 meeting, respondent, hi vine

‘given considerable: thought to the character of

pr erogative: ‘that, in ae org iy the Company was

entitled to maintain * * /as wellas * * * to

the character of safeguard which would make the

dais fa of such prerogativ e& to which we thought

* ;

re 4

the ‘Company entitled * * * invulnerable to at-

tack”? (R. II. 32), proposgd that the following.

‘management prerogative Biise” be ic ese

in the contract (R. I.'97; R. III. 42-43) :

The right to select, hire, to promote, demote,

discharge, discipline for cause, to maintain

discipline and efficiency of employees, ail to

determine schedules of ‘work is the sole prerog-

ative of the Company and the Company’s de-

cision with respect to such matters shail never

be the subject. of arbitration.

The Union objected that if it accepted this

clause it would he abdicating the bargaining

rights, secured it by the Board’s certification

(R. I. 97;-R. Ill. 48-44, Re H. 16). From this

time on, throughout the negotiations, however, re-

spondent took the position that it would enter ints

no contract which did not contain its prerogative.

clause, | |

At conferences on January 11 and 12, the Union

attempted unsuccessfully to bypass the preroga-

tive clause temporarily in order to secure agrce-

ment @n other proposed provisions (R. es &:

R. IIT: 45-46). The proposed prerogative my

as the Board found (R. I. 86, 97; R. TII. 46-47),

‘‘so pervaded the field of bargaining that all paths

of discussion appeared to be blocked by it.’’* |

2The only agreements reached related to such undisputed

matters as a recognition clause, a no-strike clause, and

a ion of physical examination of new employees (R. f.

> R. a: 50).

ae ; 5

s =

Respondent’s attorney and principal. negotiator

stated that ‘if the Union will agree to accept that

prerogative clause, I can guarantee you a contract

within an hour or two”’ (R. ILI. 47). The Union

replied that such a contract would be’ worthless:

since the clause empowered the C ompany to ehange-

ates of pay ufilaterally, to arrange work sched-

ules at any time without regard to shift diiferen-

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

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

spondent finally stated that it could not negotiate

any further until the Union agreed to the ** preroga-

tives of management,”’ ated added that under the

Taft-Hartley. Act it “did not have to recede from

any position,”’ and that therefore the negotiations

were ‘‘deadlocked.’? The Union denied that there

was a deadlock, and suggested an adjournment

(CR. T. 97; R. 11. 47-49). -

The next ednference was held on January 18,

1949 (R. 1.97; R. 111.51). Respondent continued .

te: insist on the preragative clause, suggesting that

if it administered the clause unfairly, the Union

would have recourse to the Board, (R. IL. 97-98;

R. ILL. 51-52).. Respondent expressed its willing-

ness to contract that the terms of the Fair Labor.

Standards Act and other applicable statutes

would govern the rights of employees where

pertinent, but said that 11 would not ecree to

provisions going beyond such requirements

(R. TI. 98; R. ITI. 52). At this meeting re-

ie cba

6. °

spondent submitted a set of counterproposals to

the Union (R. I. 98; R. ILL. 58-58; R. I. 64-79),

which provided, in the main, for continuayce of-°

the existing wage scale, #d leave policy, and re-

stated in greater detail the management preroga-

tives insisted upon by the Company. The new

prerogative clause read as follows (R. I. 98; R. I.

66-67): |

Noting in this agreement shall be deemed to

limit or restrict the Company in any way in

the exercise of the customary functions of

management, including the right to make such

rules not inconsistent with the terms of this

agreement relating té its operation as it shall

deem advisable, and the right to hire, sus-

_ pend, discharge er otherwise discipline an em- .

_ ployee for violation of such rules or for other

proper cause. cree :

The right to select and hire, to promote to a

better position, to discharge, demote, or dis-

“a Respondent in_ its counterproposal (R. IL. 69) rejected

the Union’s propor that “The established work week shall

consist of five (5) consecutive days [eight hours in length],

beginning at 8:00 a.v..Monday” (R. UF. 53), on the ground —

that ithe Company “wanted to maintain flexibility and wanted

the right to change those hours any time they saw fit”

(R. TH. 115). Similagisy, because respondent desired to

reserve “the right to put other employees of its-own choosing

on suth work if, in the opinion of the Company, such action

becomes necessary” (R. Il. 69), respendent fejected the

Union’s proposal that overtime work be distributed equally

to employees in the office involved (R. IT. 54). Respondent

also rejected the Union's proposals dealmg with leaves of

abseneés and layoffs (R. 11. 52,55, 68, 71), and the Union’s

“ request that it be furnished the results of tests given by

’ respondent to determine whether employees were qualified for /

“promotion on the grouad that the-administration of such tests

was “a Company ,prerogative” (R. 1. 101; R. IIf. 66-67).

fn e

Fee eG

cipline for cause,. and to maintain dis¢ipline

. and efficiency of employees and to determine

the schedules of work) is recognized by both

union and company as the proper responsibi]-

itv and prerogative of management to be held

and exercised by the company, and while it is

agreed that ‘an employee feeling hiniself to

. have been aggrteved 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 eompany under the 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.

By January 19, the Union reluctantly agreed te

accept the first paragraph of the clause, but con-

tinued to assert that inclusion ef the second para-

graph would make any agreement aneaningless

and subvert the Union's sfatus—As bargaining

representative (R. I. 98-99; R. ttt. 58-62).

Respondent, stated that’ it had a right to insist

-on the ine Sidon in a contract of any lause> it

desired, and that unless the Union agreéd to the

amended “prerogative clause” there would he

no contract (R. IIT. 99- 61). ‘of added

‘that this clause was thé “meat of| the contract”’

and that if the Union aece epted it a contract

would be signed in ‘*short order?’ (R. ! 98; R. TI.

60-61). ve aes |

On January 28, 1949, the U1 nion filed a charge

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 (R. T. 23-25, R.

Til. 62). Nevertheless, negotiations vere resumed

on February 7. 1949, and continued until the date

of the Board hearing on July 26, 1949 (R. IIT. 24,

(104). In February, 1949, the Union proposed —

that working rules’ be ‘mutually agreed to” by

the parties as ‘ta part of this contract” (R. IL..

~ 102)° Respondent refused, insisting that ie

Union accept the prerogative clause without

- modification CR, IT, 3-4). At a meeting held on

March 11, 1949, the Union requested a copy of the

Company’s rules and regulations in order,to deter--

mine more accurately the scope of unilateral action

reserved to,petitioner by the prerogative clause

(R. IIT. 94-95, 140). These rules gave the Com-

pany complete power ‘‘in its disevetion”’ to *testab-_

lish new rules and practices,’? and “atmend’’ or

‘oancel”’ existing rules and practices (R. Tf.

141-154). The regulations alsu reserved to the

Company the ‘‘exelr ive right’’ to take “whatever

action it deems advisable,” ’ including discharge, for .

fons of the rules (R. II. 154}. In addition,

under its regulations, the Company possessed the

sole right to determine whom to **pr omote or de-

mote,’’ and the ‘exclusive right to transfer, tem-

poreeHy or permanently, to any Department, em-

¢4

oe | 9

_ ployees of other Departments regardless of senior-

“ity” (R. Ift. 142- 14: 3). The Compaxy also re-

tained. the: ‘‘exe ‘lusive right to helsing oF .disap-

prove requests for leave of absence,’’ and to dis-

choosing . . . if inthe opinion of the Company,

such action becomes necessary ’ (R. ITI. 144, 149).

The Unien representatives: declared that peti-

tioner’s insistence upon retaining the right “‘to,

establish the rules, and without any: prior notice

* * * change [them] * * * without consulting

the Union: * * * was not bargaining with us”

(R. IIL. 96). Be 2 Gie

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

submitted as a tentative offer a complete set of

new counterproposals tothe Company, accepting

_respondent’s existing wage scale, and vacation and

sick leave schedule (R. I. 99; R. ‘ITI. 83- 84). Re-

spondent’s prerogative clause -was agreed to with

a prov iso that respondent exercise its prerogative

in a ‘fair and just manner” (R. I. 99; R. IIT. 97- /

98: R. 11. 108). Respondent objected to the com-

‘tribute overtime work to “employees of its. own

promise on the ground that by its terms, decisions

taken by the Company pursuant to the prerogative

clause -would still ultimately be subjected to arbi-

tration (R. I. 99; R. III.-97-98). Respondent

<epeates d its assertion that it.would never condition

its prerog rative on arbitration, and that no law

required gt to do so (R. 1. 99; R. UII. 97-98).

. | ’ ~

; . A

‘ /

2 : f >

~ / ;

f ‘

10 ?

At various times during os hentiion between

November, 1948, and May, 1949, respondent, with-

out consulting or notifying the U nion, established

new night shifts in several departments of the of-

' fice. An hourly wage of one dollar Was instituted

for workers emploved on the new shifts, incontrast

to the $85 per month starting salary for day shift

workers (R. 1. 85566; R. TIT. 119-120, 135-187).

When the Union objected to respondent’s unilat-

eral action in this regard, respondent stated that.

“its management prerogative permitted the taking

of such action without prior consultation with the -

Union (R. ULF. 424-125). Similarly, while the ne:

.gotiations were still in progress, respondent, with-

out consulting the Union, instituted a new system

of staggered lunch hours* (R. T. 85-86; R. I ii.

128-131). f : . :

After issuance of he Trial Eiaminer’ s inter-

mediate report and before the Board’s decision’

respondent and the U nion, on January 13, 1950,.

executed a contract‘ containing, among other

r differ-

things, a prerogative clause not materia

Before changing the lunch hous Tffibell, respogdent’s

representative, did ask Stafford, “the} Union’s p¥invipal

negotiator, if he personally had any objection to the proposed

change. Stafford replied that he did mot personally. care, but

that the proposal should be first discussed with the official

U nion fegotiating committee, This respondent failed to do

(R. TL. 128-131)

: © les

4 Before the Board respondent. taoved tg dismiss the r its al-

to-bargain charges on the grownd that this agreement ret\dered

the charges‘moot (R. l. 87;\63-67}. The Board denied the

metion on the ground (R. 1.87) that, even assuming that |

respondent. had finally abandoned its unlaw ful conduct, “the

r ' =n,

f ia : ed

ent from that insisted upon by respondent through-

ap o a |

out the negotiations discussed above (R. 1. 87;

68-82."

Il. The Beard’s Conclusions ‘and Order

The Board found (R. I. 85) that, by the preroga-

{ive clause, respondent ‘sought to reserve to itself

the exclusive right to determine, unilaterally sueh

terms and conditions of employment as working

ruks, work schedules, the establishment of extra

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

-of leave of absence, and the distribution of ever-

time.’’ The Board concluded (R. I. 86) that, since

diseontinuance of unfair labor practices does not render moot -

charges based thereon.” -National Labor. Relations: Board v.

Mexia Textile Mills, 339 U. 8. 563, 567; National Labor Rela

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

he Board=fund further «R. I. 87-88) 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. —

* The prerogative clause in the executed contract reais as

follows (R. 1. 69):

Functions and Prerogatives of Management

Nothing in this agreement shall be deemed to limit or’

rest tict) the Company in any way: in the exercise of the

- customafy functions of management, including the right

to make such rules not inconsistent with the terms of this

agreement relating to its operation as it shall deem

aavieahie: and the right to hire, suspend,’ dischagge, or

otherwise discipline an employee for violation of such

rules_or for other proper and just cause. }

__Thelright, to select and hige, to discharge, or discipline

for extuse, 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

responsibility and prerogative of management, to be held

and exercised by the Company in a fair and just manner,

and while it is Agreed that an employee, feelmg himself

' ee ; 2, ¢ i

the subjects covered by the prerogative clause were

. “terms and eonditions of employment,” they were

subjects of compulsory bargaining under the Act .

and, accordingly, that respondent’ s ‘‘demand for

the prerogative clause as a q nditipn to making

a contract . . [was] in derogation of the

Union’s bet gaining tights secured to jt by Section

9 (a) as the exclusive represt jatative of the Re-

spondent’ ~ employees and therefore constituted

per s¢ [al violation - . . ‘of Section 8 (a)

ip (5) and (1)? of the Act, quite apart from any.

by respondent’s refusal to execute any contralt

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

found also (R. I. 85-86) that respondent’ s action.

, in establishing new work shifts and changing the

employees’ lunth period, while negotiations were’

in progress vithout consulting or notify tig the

Union, was i violation. of ‘Section 8 (a) (5) ny

(1) of the Act In addition, the Board found CR. I.

pein that re eons hope. course of ang

_strictive preroghtive areca constituted. an unl:

fal refusal to bafain| in good faith. ath i

To remedy the violation. of the Act manifest\)

“¢ : ° \ |

to have heen aggrieved by any decision/of the C oman

& in’ respect to such matter#¥or the Union in, his belal

shall have the right to have sueh detision reviewed by\ |

top management orficials of the QGoampany. under the\ |

grievance machinery’ hereinafter pet forth, it 1s further \

agreed that the final decision of the Company made by

. Sueh top management officials shall not be further review-

able by arbitration.

pie

“ ed

Oe eet

whieh did not contain the vestrictive prerogative

clause,-the Board’s order (Par. 1 (a), R. I. 88) ©

requires respondent to cease and desist from refus-

ing to bargain collectively with the Union “by

insisting as a “condition of agreement, that the

Union agree to a provision whereby the Respondent

reserves to itself the right to take unilateral action

with: respect. to rates of pay, wages, hours of

empleyment, and other terms and: conditions of:

employment. id

Alf. The Decision Below

The court below, while sustaining the Board’s

“finding that respondent’s unilateral saction with

respect to the work shifts and lunch period violated

Section 8 (a) (5) of the Act (R. I: 86; 114), held

(R. I. 113- 114), that the Board ‘‘was wrong. in

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

sisting on the so-called prerogative clause as a

condition of agreement; failed to perform its statu-

tory obligation to bargain,” and refused to ‘enforce

~ paragraph 1 (a) ofthe Board’s order (R. T. 88,

11Y% which required respondent to cease and desist

from such conduct. ny

§PECIFICATION. OF ERRORS:TO BE URGED

The court below erred:

PIA holding that under Section 8 (a) (5) and

“ay of the Act: ‘an émployer may refuse to enter

info any contract with a union unless the union

agrees to’ include therein a clause waiving its

statutory right to bargain. about certain terms or

oo of employment. sis

. In not enforcing paragraph 1 (a) of the

eid s order.

2 —eE sant —we st

SUMMARY OF ARGUMENT

eee |

A. -Section 8(a) (5) of the Agt requires the em-_

ployer, upon request, to bargain collectively with

the representative of his employees concerning

the subjects set out in Sections 9(a) and 8(d), |

namely, ‘‘rates of pay, wages, hours of employment, —

or other conditions of employment.’’ The. courts

have uniformly recagnized that the right of the

employees and the obligation of the employer to

bargain collectively extends to each and every mat-

ter which falls within the quoted definition, and

that an employer therefore’ violates the Act when

he refuses to bargain about any one such matter,

eyen though he is willing to: bargain about all other

subjects. — | Puranas

The subjects on which respondent in this ease ~

refused to bargain—on the ground that their uni-

lateral determination was the “prerogative” of

management—ineluded wark schedules and .work-

in rules, and the promotidn, demotion, and dis- ‘

charge of employees. Each of these subje: fs, nar-

ticularly ‘* problems of work scheduiing and Shift‘

assignment’? fall within the category of “terms

and conditions of ermployment (Electric Railway

ie he ~ - 95

8 (a) (1)‘and (5) of the Act.

v Scare

| @ Motor Coach Employees, etc. v. Wisconsin Ein

ployment. Relations Board, 340 &.S. 383, 399), and

are therefore subjects of compulsory bargaining

under the Act. ;

| B. Throughout the negotiations respondent”

made it clear that under no circumstances wouid

it enter into an agreement with the Union con-

eérning those subjects -which respondent «con-

sidered ‘‘prerogatives of management.’’ Re-

spondent’s insistence that the. Union agree—as the

price of obtaining a contract on other subjects—

that fespondent was under no obligation to bargain

about the subjects enumerated in the prerogative

clause, was designed to and did **foreclose in ad-

vance any possibility’? (National LudSor relations —

Board v. Westinghouse Air Brake Co., 120 F. 2d

1004, 1006 (C: A. 3)), of fixing shift schedules,

working rulesy hinch periods, etc., through col-

lective bargaining. By this repudiation of its

obligation to bargain collectively about shift...

schedules and other matters comprehended. by the

prerogative clause, respondent violated Section

{

A. Respondent also repudiated its obligation.

io bargain collectively concerning subjects not com-

sO a by thie pirat e clause, such as regu-

lar rdtes of pay, to which the collective bargaining

obligation admittedly applies, by conditioning the

i “ .

é : ‘

execution of any contratt dealing with thase sub- | |

jects upon the union s acceptance of the ‘‘pre-

rogative’’ clause. Since the duty to bargain col-

lectively includes the obligation to execute:a con-—

tract covering substantive terms and conditions

~ whicli have: been agreed upon, an employer can no

mare lawfully condition the execution of.a contract

upon the union’s submission to an extra-statutory

condition like the prerogative clause thari he can

condition the institution or concinuation of nego- ~

tiations, upon it.

Witli, the single exception of the court. below

in the instant case, the Board and every eourt which

has considered the problem have held that an‘em-

ployer may not lawfully denfand, as a condition

precedent to performance of his own statutory

duty, that the union perform an act which the |

statute oes not require, or yield a right which

the statute bestows. This Court ha’ held that even

the states may ,not impose conditions upon the °

exercise of federally protected employee hargain-

ing rights (ill v. Florida, 325 U.S. 538, 542), or

reserve to Unilateral employer determination gs-

sues which the Natidnal Act declares to be appro-

priate for collective bargaining (Amalgamated

Association, ele. V. Wisconsin Employment Rela-

tions Board, 340 U.S. 383, 398-399). >A fortiori,

an emplover may not insist, as a condition prece-

dent to bargaining, that a union forego the exercise

of a portion of its statutory rights, or agree-te

- et at

. Sn * :

. SY

? ae ee

exempt from the area of collective. bargaining

subjects wliich the statute places within that area.

Since the union’s right to bargain about shift

_ schedules and ether ‘matters covered by the pre-

rogative’ clause is not itself a ‘‘term or condition

of employment” bat a privilege conferred upon

employees by the statute, respondent: was not en-

titled to requife the: union to ‘‘bargain”’ about its

exercise. Certainly, respondent was. not qptitled.o

to demand, as it did, that the unioh take less tlfan

a full measure of the rights which Congress gave

it, or no rights at all. The fact that respondent

’ presented its demand that the union waive a por-

tion of its bargaining rights in the form of ‘a con-

tract ciause did riot transform the illegality of

respondent’s insistence tipon that waiver into a

lawful ‘‘bargaining’’ position. ‘Rather, it empha-

sized respondent’ s insistence upon treating “at

matter guaranteed the employees as of right,’’ as,

at best, ‘‘a: bargaining matter’? (McQuay-Norris

Mfg. Co. v. National Labor Relations Board, 116

F, 2d 748, 751 (fA. 7))«

'B. The proviso te Section 8(d) of the amended

Act, which provides that performance of the obli-

gation to bargain collectively in good faith shalt

not be deemed to require either party “to agree

to a proposal’? or to make ‘*a concession,’? upon

which the court below relied, was Clearly not in- _

tended to nullify the bargaining. obligation itself

by leating compliance with its substantive require-

ments optional with either party. The proviso .

ae oe

merely. restates the rule that th€ Act does not

compel the parties to agree on/fany particular sub-

stantive terms and condition of employment, and

guards against the po ibility that mere failure.

to agree may be regard¢d as an indication of ‘bad

faith.” The Act does, however, compel bargaining.

To hold that‘a refusal “‘t6 agree” to bargain is

immunized by the proviso would mean that Con-

- gress with one hand imposed the duty to bargain

on request but with the other provided that denial

of the request should eliminate the duty.

‘C. The fact that the union could voluntarily

have waived its right to bargain about shift sched-.,

ules and other matters covered by the prerogative

clause, and that such a voluntary waiver would

have been recognized as valid, does not excuse”

respondent’s resort to illegal means to secufe the

waiver. Unless a premium is to be placed upon

commission of unfair labor Practices, a

‘*waiver”’ which results from an employers re-

-fusal to recognize the union’s right to bargain

about the particular issues in dispute, or his re

fusal to bargain on other issues in the absence of

a waiver, cannot be? deemed either voluntary or

valid. While an employer may lawfully propose _

that the union waive a portion of its bargaining

rights, and offer economic concessions that he is

‘free under the Act. to withhold as an inducement _

ty obtain the union’s assent, he may not lawfully

even compel discussion, much less compel assent

ae.

e | . \

con eo fe :

to such a proposal; either by refusirfg to recegnize

the union’s right to bargain ‘about the issue in

dispute, or by conditioning the continuation of

negotiations or the execution of a contract upon it.

_ ARGUMENT

The cpax of this case is respondent’s refusal to

-recognizé that among the subjects covered by the

clause here in issue are matters to which the statu-

“tory “eollective bargaining obligation applies.

Ese Throughout the’ -négotiations respondent took the

position that those subjects were matters of ‘‘man-

agement prerogative ;’’ that it had a right to dis-

pose of them unilaterally ; and that it wowdunder |

no circumstances enter into any substantive agree- .

_ ment with the Union about them. Respondent

- avowedly predicated its action in instituting new

shift schedules and a system of staggered lunch -

hours on the premise that such matters were the

prerogative of management (supra, pp. 9-10), and

the contract clause whie +h it drafted explicitly set -

forth respondent’s view that ‘The right [infer |

alia] to determine the schedules of f work is: # ee

the proper responsibility and prerogative of mah- «

agement to be held and exercised by the a 2

* * *»% (supra, p. 6). | :

~ Not on}y-did respondent-cling tenazisinsly to this.

restricted and, as we shall show, tafra, pp. 22-26,

erroneous view of its collective bargaining obhi-

gation, it made the Union’s acceptance of this view

. ere

the indispensable condition for the execution of any Ze

contract at all. Time and again, as the facts set

forth in the Statement, supra, pp. 4-8, show, re-

spondent insisted that it would execute no contract,,

unless the Union agreed to the ‘‘prerogatives of

management”? as embodied in the ‘‘ prerogative’

_ Clause.® ie the Board observed (R. I. 86), “Re- |

spondent’s concepts concerning its management —

prerogatives so pervaded the negotiations that

every effort by the Union to Dyp ass this issue and

proceed with other matters was met with frustra~’.

tien.’’ On the other hand, only respondent’s in-

sistence that the Union acquiesce-in its contept-of ©

_ ‘management prerogatives’? stood = path of

execution of a contract, as clearly appears from the

frank statement of respondent’s attorney. during

the negotiations that 8 the Uniorr will agree to

accept that prerogative clause, T can guarantee | you

a contract within an hour or two” (R. ITT. 47).

‘In sum, respondent repudiated collective bar-

gaining entirely with respect. to those matters

which it deemed to lie within its ‘‘management

prerogative’ and refused to perform its obliga-

tion to bargain on other matters, which admittedly

lay within the area of mandatory collective bar-

gaining, unless the Union acquiesced in tha

repudiation. | ee Ra RE

—

® Respondent. defended its adamance on the ground that

-under the Tait-Hartley Act it “did not have to. recede from:

any-position” and that, therefore, unless the Union acquiesced

in the condition demantled by the Company, the negotiations

were “deadlocked” (R. 1. 97; R. III. 47-49).

a : a

The court below. apparently concurred in the

Board’s finding, supra, pp. 11-12; that shift sched-

ules aud other yatters covered by respondent’s

'-“prerogative Melause are comprehended by the

statutory phrase ‘‘rates of pay, wages, hours of

employment, or other conditions of employment”?

(Section 9 (a), ef. Section 8 (d)); that the collec-

tive bargaining obligation imposed by the Act ae

tends te those matters; and that the fundamemal

position- upon which respondent. predicated its

entire course of condyet was therefore erroneous.

The court nevertheless held (R, T..113-114), that

. the employer ‘‘had a right”’ to insist that the Union

-coneur in its erroneous view and to make. its con-

currence therein ‘‘a condition of agreement.’

Accordingly, the court treated the Company’s

‘‘steadfastnes}*in insisting upon the prerogative

clause as the mere equivalent of the Union’s |

vigorous opposition to it (R. I. 114). Be

This decision, we subniit, condones adamant re-

fusal to bargain about some “terms and conditions

of empyment”’ as constituting. fulfillment of the -

z employer’s duty to bargain about all terms and ¢on-

ditions of employment. It permits employers. to

fragmentize the bargaining rights conferred upon

employees by the Act by making their enjoyment

of seme rights contingent upon their abandonment

oe gathers. To approve this coercive technique is to

rob Fhe collective bargaining obligation of its full

Ve ontent, and to impair its effectiveness as an inst rte .

7, mentality of industrial peace. Unless the Act ‘is te *

—_

4 be construed as self-defeatin~, it carinot be that

reservation to the employer of a right to ‘‘bargain”’

and to refuse concessions (Section 8 (d)}) sanctions

this device for easy invasion of employee rights

and evasion of the employer’ s corresponding obli- is

gauions.. = ene

I Respondent, in Violation. of Section 8 (a) (5) and

(1) of the Act, Refused to Bargain Collectively

Coricerning Shift Schedules > ‘and Other Matters

Comprehended by the Prerogative Cla . |

A. The statutory obligation tu bargain saaciin

extends to shift schedules, working rules, and

other “terms and conditions of employment”

which respondent claimed the right to, deter: —

« mine unilaterally’.

The subject matter of the right to bargain col-

lectively conferred upon employees by Section 7,

and of the correlative obligation imposed upon em- |

ployers by Section 8 (a) (5), is defined in Sections

9 (a) and 8 (d) of the Act. Section 9 (a) provides

that the representatives chosen by a majority of

the employ ees in an appropriate bargaining unit

‘*shall be the exclusive representatives of all the

employees in such unit for the purpeses of collective

bargaining i in. respect to rates of ‘pay, wares, hours

of . ‘mployment, or other conditions of em ploy-

ment”” (Italies added). This definition of the con-

tent of collective bargaining is specifically incorpo-

rated’ in Section 8 (a) (5), which provides That it

shall be an unfair labor practice for an employer

“Ato refuse to liar gain collectively_w ith the repre- _

_ sentatives of his employees, se hon

sions of section Sagi ie (Italies added). In addi-

‘tion, Section 8 (dy, which was added to the Act by

the 1947 amendments, defines the duty to ——

collectively to mean © “9 .

the performance of the mutual obli-

gation of the employer and the representative _

of the employees. to meet at reasonable times

and éonfer in good faith with respect to wages,

hours, and other terms and conditions of em-

ployment * * -* [Ttalies added.] .

Tee nizing that both the right and the mies at

which falls within the italicized | definitions the —

courts have uniformly held, both before and after ,

enactment of the amended Act, ‘that an employer 3

who refuses to bargain collectively on any one sub- . |

ject within the defined category thereby violates the.

Act, even though he is entirely willing to bargain ~ ,

o . 7

on se other subjects. ee /

TE g:, Inland Steel Co. v. National Labor Relations Board,

170 F. 2d 247, 250-251 (C. A. 7), certiorari denied, 336 U.'S.

960 (employee pensicn and retirement plan); W. W. Cross & -

Co. v. National Labor Relations Board, 174 F. 2d 875, 877-

878 (C. A. 1) (employee group health insurance plan);

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

F. 2d 766, 768 (C. A. 6), certiorari denied, 335 U. S. 84, and

NatiS@al Labor Relations Board v. Berkley Machine Works

& Foundry Ca, Inc., 189 F. 2d 904, 906, 907-908°(C. A. 4)

(individual merit’ wage increases); Aluminum Ore Co. v.

National Lébor Relations Board, 131 F. 2d 485, 486-487

iC, A. 7) (wages). Aithough Cox and Dunlop, Regulation

of Collegtive Bargaiging by the National Labor Relations

Board, 63 Harv. L. ev. 389° (Jan., 1950), dispute that the

~ a

O4 a

or The wihjeole: which ‘ coeacadions claimed the right

- to determine unilaterally, and therefore to refuse

to fix by agreement with the Union; indisput-

ably-fall within the statutory definitions, as the

Board fourd (R. 1. 86). Those subjects, as defined

in*the amended ‘‘prerogative”’ clause, included

supra, pp. 6-7, we tablishipent of work schedules

‘and working rufes, and the promotion, demotion

and discharge of employees, each. of which pertains :

‘to “terms” or “conditions” of employment. *In

_ Electric Railway & Motor Coach Employees,.ete. v

Wisconsin Employment Relations Board, 340 U.S.

383, 399, this Court, citing the Board’s decision in

the instant case, held that “problems of work °

scheduling and shift assignment’’. are matters on

which amployers are required by the N ational Act

to bargain collectively. And the court below, in

upholding the Board’s finding that respondent vio-

lated Section 8 (a) (9) of the Act by unilaterally

establishing new work shifts and pertinent’ wage

rates without consulting the Union (R. I. 114), ap-

parently recognized that the establishment of new

italicized phrases in Sections 9 (a) and 4 (d) define the

- subjects of collective bargaining (id., pp. 393-397), they con-

cede that “it is probably too late in the day to challenge

successfully the National Labor Relations Boagd’s present

practice of defining the scope of collective bargaining.” We

_ submit that the unanimous view of the Board and the courts

that the function of the italicized phr: is to define the

subjects of eéllective. bargaining is not pared correct but that

~it is the only view which gives meaning to their inclusion in

the statute. ‘The fallaeiés of the Cox-Dunlop position are

_. Bowes in Findling and Colby, Regulation of Collective

. Bargaining by the Nétional Labor Relations Board—. Anothet

View, 51 Col. I. Hev.. ‘170 (Feb. 1951).

shitt schedules is a subject on which an employer

quay not-lawfully: refuse to bargain.’ Indeed, in so

_ far as respondent construed its ‘“‘prerogative’”’ as:

‘authorizing unilateral establishment of wage rates

for new work shifts,” it invaded the area of ‘‘rates.

of *‘pay”’ “wages” which the statute explicitly

- places w ‘ithin he compulsory bargaining category.

- Section 9 (a) of the Act; Inland: Steel Co. v. Na-

_tional Lador Relations Based: 170° F. 2d 247, 250-

“953 (C, A, 7), certiorari denied, 336 U. S. 960; Na-

tional Labor Relations Board v:.J. H. Allison & Co.,

165 F. 2d 766 (C. A. 6), certiorari denied, 335 U. S,

po National Labor Relations Board v. Boss Wf J.

Co., 118 F. 2d 187, 188-189 (C. A. 7). .

In addition, the courts have uniformly held that

the category ‘‘terms: and conditions of employ-

ment,’’ comprehends the establishment of working “" ,

- rules, and the promotion, demotion and discharge .

of employees. National Licorice Company v. Na-

tional. Labor Relations Board, 309 U. 8. 350, 360; ?

Inland Steel Co._v. — Labor Relations

Board; 170 F. 2a 247, 252 (C. A. 7), certiorari

denied, 336° U. S. 960; National Labor Relations

Board v. Bachelder, 120 F. 2d 574, 577 (C.

ALT) 32 National Labor Relations Board v. Westing-

*See also Wilson & Co. v. National Labor Relations Board, .

115 F. 2d 759, 763 (C. A. 8}.

® Although respondent, during the ‘course of negotiations,

professed to be willing -to bargain about the wage rates

applicable to unilaterally. established work: shifts (R. IT.

324-125), in practice it ‘set new .and higher wage rates for

these shifts without consulting ure Union (R. I. 85; R. III.

119-121, 135-137). .

house Air Brake ©o., 120 F, 2d 1604, 1006 (C. A. 3).

CE. National Labor Relations . Beard v. J. H,

Allison d& Co., 165 F. 2d 766 (C. A. 6), certiorari :

denied, 339 U.S. 814; Standard Generator Service.

Com pany Vv. National Labor Relations Boards 186

F.2d 606, 607-608 (C, A. 8). .

Thus, if, as we shall show, respondent “sefused

‘to bargain collectively” with respect to work sched-

ules, working rules, and the promotion, demotion -

and discharge: of emplogees, its conduct in this re-

spect ipso facto violated Section 8 (a) ( 5) and (1).

“of the Act. fe ss

ws oe

._B: Reaoatin refused to bargain collectivel y con-

- clause, respondent's s‘‘mind,” throughout the nego-

. tiations, . remained “hermetically sealed against

‘even the thought’’” of bargaining with the Union

_ unilaterally at any time.” On

cerning the subjects it considered a management :

prerogatives”

- Actuated by the conviction that the law reserv ed

to management the right to deal unilaterally with

the subjects comprehended by the “prerogative”

about them.(R.’ I. 86-87). It refused flatly to fix

shift schedules, lunch periods, working rules, etc.,

by agreement with the Union (supra, pp. 7-8), be- oe

cause it insisted’ upon retaining a free hand to

change those terms and conditions of employment

frese subjects the

10 National Lake Relations Board. v. Grisweld Mfg. Co.,

106 F. 2d 713, 723 (C."A. 3).

he is universally recognized that the duty ‘to bargain .

; 9 ov 27 rt ‘

: ra ; sa

° ’ ‘ery - a s

gar 455.4

_ only thing respondent. offered the Union was an

: opportunity to agree that it had no right to bar- °

gain, and that respondent had_no obligation to

bargain. This kind of an “offer”? to bargain is,

in reality,-no offer at all. .Naffonal Labor- Rela-

tions ‘Board v. Berkley Machine Works & Foundry

Co., Inc., 189 F. 2d 904, 907 (CA. ‘4). |

Indeed, respondent’ S insistence on the “‘reroga-

~ tive”’ clause was admittedly calculated to, and did,

render ‘invulnerable to attack’’ respondent’s posi-

tion that under no circumstances would it contract

with the Union abou the “prerogative” clatise:

- subjects (R. IT. 32). If the Union. had accepted

' the clause there would have been no bargaining on

the subjects in -question, because the contract-~*

itself would have foreclosed cnn On: the pther

hand, if the. Union rejected “the clause, there

_ wuld certainly - *have been “no bargaining, on

these subjects because, , under respondent’s pro-

nouncement that there would in that event be no _

contract, further negotiations on any subject would

have been futile. In short, no matter what positiori _

thé Union took, respondent would not bargain.

about: the prerogative clause subjects—subjects ;

‘requires the employer, upon -request, offer to fix terme

and conditions of employment for a fagsonable period at

“some level, that presently existing, bt bast. An employer's

refusal. to 'do so—because he desires to retain a free“hand

“to change such terms and conditions unilaterally at any

time—is, therefore clearly in violation of the duty to‘bars |

a gain. National Eabor Relations Board v. Express Publish-

ing Co., 111 F. 2d 588, 589 (C.; A. 5), reviewed only as, to

scope of order, 312 U. S. 426; Globe Cotten are - National

Labor Relations Board, 103 F. 2d 91, bes (C. A. 5); National

~ ©

concerning which it was under a/ statutory duty |

to bargain.

Respondent’s insistence upon reserving to itself

the right to act unilaterally with unfettered disere-

tion in relation to the prerogative clause subjects

was not qualified by its offer, contained in the pro-

posed clause, to permit?any employee aggrieved by

management’s unilateral action in this area to ob-

tain review thereof througW'the grievance proce-

dure provided for in the proposed contract (R. I.

‘97-98; R. 1. 66-67). Since the clause itself pre-

cluded establishment. of mutually dgreed upon

standards to govern the exercise of management’s

‘diseretion, and since it also provided that ‘‘ the deci-

sion of the company”’ on grievances ‘‘shalF¥ not be

fiirther reviewable by arbitration,” it is clear that -

the offer accorded shee Union nothing more than

an ineffectual epportunity to protest mankgement’s

unilateral decision after the event. The :

patibility of such a schéme with the coilective x

gaining process envisioned hy the Act was demon-

Labor Relations Board v. Knoxville Publishing Co., 124 F.

2d 875, 882-883 (C. A. 6); Mational Labor Relations Board >

v. Suift & Co, 127 F. 2d 30, 31 (C. A. 6); Singer Mfg. Co. v.

National Labor Relations Board, 119 F. 2d 131, 136 (C. A. 7),

certiorari denied, 313 U. 8. 595, rehearing denied, 314 U. S.

705; National Labor Relations Board v. Montgomery Ward

& Co., 133 F. 2d 676, 687 (C. A. 9). This rule.avas retained

in the amended Aci—Congress rejeting an amendment which

_ would/have relieved an employer of the @uty to make a

counterproposal. H.R. 3020, as passed, 80th. Cong., Ist Sess.,-” |

p. 9-41 Leg. Hist. 166; S. Report No. 105 on S. 11267 p. 24,

1 Leg. Hist. 430. :

1com-

re ne eg

RL Tet ae Oe Pg

strated in Aluminum Ore Co. v. National Labor

Relations Bo@rd, 131 F. 2d 485, 486-487 (C. A! 7).

In that case, the employer, after extensive good

faith bargaining with respect to most of the usual

matters with which a collective agreement is con-

cerned, took the position that ‘‘it would determine

for itself what the wages and rates of pay should

be.’? The employer. then annouriced certain wage

increases and stated that ‘‘these would stand until

and unless there should be objection,’’ in which..,

event the employer ‘‘would permit any Aggrieved.

person to present his complaint either personally if

or through the union’’ (131 F. 2d, at pp. 486-487).

The court held (id., at p. 487) that the employer's

insistence ‘‘upon following [a] plan’. f . of not

bargaining but of: Bxing. increases ex parte, leav-

ing to hearings of future ‘eriev ances, ‘determination

_of whether any adjustment was ‘justified ©

was not the collective bargaining required by the

act [but was-a procedure] upon the part of the

- employer effectuating removal of bargaining con-

cerning the exact subject matter at issue. By the

employer’s act, the union was thereafter excluded

from bargaining in detérmining what the incre npses

should be.’’ So here, respondent’s prerogative

‘

clause effectuated a ‘removal of bargaining con-

cerning’? the subjects covered by the clause, and

the Union ‘‘was thereafter excluded from bargain-

ing” about thos® subjects. See also, National Labor

: Relations Board ViJ.H 2 Allison & €o., 165 F. 2d.

? ! 30 ai 2

766, 768 (C. A. 6), certiorari denied, 335 U.S. 814;

National Labor Relations Board v, Boss Mfg Co.,

118 F. 2d 187, 189 (C, A. 7). | 3

Having ‘‘foréclosed in advance any possibility

of agreement’? by refusing out of hand the

. Union’s requests to fix shift schedules, working

‘rules, lunch periods, ete., by mutual_agreement

(R..IL. 3-4, 53, 101-102; R. ITI, 47, 89-90, 96, 114-

(115), respondent clearly repudiated its statutory

‘obligation to bargain collectively about those

subjects. Westinghduse case, supra; “National.

Tabor Relations Board v. Somerset Shoe Co., 111

F’, 2d 681, 688 (C. A.1) = National Labor Relations

Board v. posta i. Pilling & Son Co., 119 F. 2d

32, 37 (CA 23); National Labor Relations Board v.

Highland Park Mfg. Co., 110 F. 2d 632, 637-638 (C.

A. 4); National Labor Relations Board v. Griswold

Mfg. Co., 106 F. 2d 713, 723 (C. A. 3). R

With the collapse of respondent’s fundamental

contention fimt the subjects. in issue were “man-

agement prerogatives’’ the sole ji stifieation ‘for

respondent’s repudiation of s“*bargaining .

- obligation disappears. For it is beyond ques-

3 .

y—

; Ss ike Relatides Board v. Westinghouse Air

Brake Co., 120 F..2d 1004, 1006 (C. A, 3). ° |

13 The Union’s repeated proposals ‘that the issues “Which

, respondent insisted upon reserving for unilateral determina-

tion he fixéd by mutual agreement in the contract, and its.

specific proposals of substantive terms of: agreement with ~

-respect to shift schedules and Junch hougs, for example, supra,

pp. 7-8, refute respondent’s sfiggestion that the Union’s real,

objection was to respondent's refusal to agree to arbitration.

ee Rag

tion that an’ employer’s refusal to bargain

on a subject to which the collective bargain-

ing obligation applies is not. excused by his

erroneous though sincere belief that, the Act does

not apply.“ Respondent’s position, in essence, was

precisely the same as that of the employer in Jnland.

Steel Co. v. National Labor Relations Board, 170 F.

2d 247 €C. . 7), certiorari denied, 336 U.S. 960,

who refnsed to bargain about employee p&nsion and

retirement matters because he «id not believe that

they were stibjects of compulsory hargaining under .

the Act. In that case once the court concluded, as

had the Board, that the émployer was mistaken in

believing that pension and retirement matters were

outside the area of ‘‘wages . . .~ or other con-

ditiong of employment”. (Section Oe. ( a)), it fol-

lowed, as both the Board and the court held, that

the employer’ s refttsat to bargain about those sub-

jects violated Section 8. (ay (5) of the Act ( 170 F.

2d, at PP. 249- oon ,

--—--

4 J. I. Case Co. v. National Labor Relations >Roard, 321

U. S. 332; Medo Photo Suppiy Corp. v. National Labor Rela-

tions Board, 321 U. 8. 678; W& W. Cross & Co.. Inc. y. National

Labor Relations Board, 174 F. 2d 875 (C. A. 1); National.

Labor Relations Board v. General Motors Corporatioz, 179

F. 2d 221.(C. A. 2); National Labor Relations Board v. J. H.

Allison & Co., 165 F. 24.766. (C.- A. 6), certiorari denied, 335

U. S. 814; Aluminum Ore Co. v. National Labor Relations

Board, 131 F. 2d 485, 486-487. (C. A. 7); National Labor Rela-

tions @oard v. Whittier Mills Co., 111 F. 2d 474, 478-479

.(C. ASB). Cf. McQuay-Norris Mfg. Co. v. National Labor *

Relations Board, 116 F. 2d 748, 751 (Co A. 7), certiorari

2 denied, 313 U. 8S. 565,

. Gg “ve

re ry

id *

Ii. Respondent, in. Violation of Section 8 (a) (5) and

“(1): of the Act, Refused to Bargain Collectively .

Concerning Matters to: Which the Collective Bargain-

‘ing. Obligation Admittedly Applied

A. By refusing to execute any contract unless the

restrictive prerogative clause was included

therein respondent imposed an unlawful

qualification upon its offer to bargain about

subjects not included in the prerogative clause

Like its refusal to bargain at all on the subjects

covered by the prerogative clausé, respondent’s

insistence that it would exenutek pithact only

on condition that it include the el lause stemmed

from regpondent’s conception that unilateral con-,

trol of the subjects in issue was ‘‘management’s

prerogative.”’?, The yalidity of its ‘“‘prerogative’*

conceptavas thie only. justification which respondent

advanced for demanding the Union’s concurrence .

therein. When respondent chose’ to make its

® to attaek’’? (R. IT,

contract unless the

Union accepted the prerogative « ause it staked the

‘‘prerogatives’’ ‘invudnera

32), by refusing to execute anx

legality of its entire response to the Union’s bar- .

gaining request upon the soundness of its “‘pre-

* .pogative” theory. For respondent thereby made it

clear that it would perform its statutory duty. to

bargain about such terms and conditions of em-

ployment as were not aféected by the prerogative

clause, only if the Unien would agree that it had

no obligation to bargain about those sub jects which °

fin, coverec by the clause. Thus, respondent of

- @

ey - ee

. a

fered only conditionally to bargain about subjects

which admittedly fell, within ‘the bargaining re-

quirement. Clearly, if the condition upon, which —

it insisted was improper, respondent’s offer failed /

,~to satisfy the statutory requirement. Rejection,

of respondent’s prerogative theory reveals that

the condition respondent demanded was not rege"

ognition-of its. legal rights but rather, condona-

_tion of its illegal ‘conduct and the sacrifice of

bargaining rights which the*statute confers upon

the Union. Under these circ ‘umstances, the im-

propriety of the condition seems beyond dispute ; :

eamentents insistence ape it as the prerequisfte

its offense.

rgached if requested hy either party,

than the obligation ‘‘to meet at reasonable tim

and confer in good faith with respect to wags,

hours, and other terms and conditions of enapl

ment’? (Section 8 (d)). Indeed, it was sett

even before. the Aet was amended to include the

on ee

34C

above quoted provision, that the execution of con-

- tracts was the goal of the statutory scheme, that

_ the written agreement was the ‘‘final step in the

bargaining process,’’ ’ and that the duty to bargain

therefore included the obligation to execute a

written contract, once agreement as to substantive ‘:

terms and conditions of employment was reached,

because without such a permanent memorial the

fruits of the bargaining itself would be Jost.’

" Since the duty to barg gqin includes the obliga-

tion to execaite a contract covering the substantive

e,e . “ee ,

terms and conditions agreed upon, it has uniformly |

been held that an employer who refuses to exe-

cute such a contract, except upon a condition on

which he has no legal right to insist, thereby vio-

lates the Act. National Labor Relations Board v.

Dalton Telephone Co., 187 F, 2d 811 (C. A. 9),

certiorari denied October 8, 1951, No. 145, this

Term ( employer’ s refusal to sign a contract unless

the union registered under state law); National

Labor Relations Board ¥% Louisville Refining Co.,.

102 F’. 2d 678, 680-681 (C., A. 6) (employer’ s refusal

to sign a contract until the union chartered a local

organization) ; National babor Relations Board v.

Toda Co., Inc., 173 F. 2d 705,-707 (C. A. 2), (em-

ployer’s refusal to enter into any contract unless:

INH. J. Heinz Co. v. National’ Labor Relations Board, 311

U.-S. 514, 528.

16 FT J. Heinz Co. v. National. Labor Relations Board, 311

u. 8. 514, 523-526;.Art Metals Construction Co. v. National nS

Labor Relations Board, 110 F. 2d 148, 150 (C. A.2); National

Labor Relations Board vy. Highland Park Mfg. Co., 110 F. 2d

632, 637-639 (C. A. 4).

ne matepbjective, and i

35 ; v

union consented not to put agreement -in writing) ;

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

tions: Board, 116 F, 24 %48, 750-751 (C. A. 7) (em-

ployer’s refusal to sign contract unless union ae-

cepted elause limiting recognition “to members

only). And it is immaterial whether sueh refusal

occurs before or after the substantive terms are

agreed upon, for if it occurs after agreement, the

refusal blocks teusummation of the statute’s- ulti-

it occurs before, it frustrates

by making agreement

_the entire bargaining process

on substantive terms futile and V

Construction Coe v. N ational Labor lations

Board, 119 F, 2é 148, 15 ra); Hartsell Mitt

Art Metais .

Co. v. National Laber Relations Board, 111 F. 2a

291, 292 (C. A. 4) ; National: Labor Relations Board

V. Highland Park Mfy. Co., 110 F. 2d 632, 639 (C.A,

4); National Labor Relations Board v. Barrett

-Co., 135 F, 2d 959, 961 (C. A. 7); National Labor

* Relations Board vy. Blanton Co., 121 F. 2d 564,

569.570: (C. A. 8);N ational Labor Relations Board

', Montgomery Ward & Co., 133 F. 2d 676, 686

‘ A? 9); Natienal. Lahor Ritalians Board vy. Req-

aster ‘Publishing Co., 141 F. 9d 156, 160 (C. A. 9).

Thus, respondent was no more entitled to insist

that the Union accept the prerogative clause as

a condition to obtaining a contract than it would

have been entitled to insist that the Union accept

it as a condition to continuing negotiations. In

the one ease as in the other, unless the Union

. acquiesked in the condition, respondent would not

perform | its statutory obligation. Hence, unless

respondent was’ ‘entitled to qualifyets. offer of per-

formance by a eondition of its own creation, its.

insistence upon the Union’s acceptance—of the =

clausé clearly violated the Act.

2. By demanding an extra-statutory concession as |

a condition precedent to bargaining respond-

» a 3° . : . Ds. .

cd, cut repudiated its obligation ta bargain

Congress fixed, in the Act: itself, the conditions

which, when fulfilled, bring the bargaining obli-

gation into play. It did not authorize the parties

upon whom it imposed that obligation to limit or

evade it by superimposing on the statutory con-

ditions additional conditions of their own.

Section 8 (a) (5) declares that it shall be an

‘air labor practice for an employer ‘‘to refuse

, to bargain llectively with the representa atives of _ Por

his employees, siibject to the provisions of. section

9 (a).’’ Section 9 (a) provides that the repre-

sentative selected by a majority of the employees

in the unit involved ‘‘shall be the exclusive repre-

sentative of all the employees” for the purpose

of collective bargaining concerning the enumerated.

matters which constitute the subjects to which the

“bargaining obligition applies (see pp. 22-23,

supra). Thus, to bring an employer’s bargaining

obligation into play a majority of the employees

must seleet a baggaining agent. In addition, since

there’ can be no ‘‘refusal’’ without a request, neal

agent so selected must: request “the employer to

ehis

{

* not bargain wit!

not_ba

- that it represents a majority in .an approyprAte bargaining

& 37 ?

hargain collectively with it. National Labor Rela-

_jtions Beard v. Columbia Enameling & Stamping —

at ‘o., 306 U.S, 292, 297, 298. Subject to the single

quatification that an employ er who, in good faith,

entertains,a genuine doubt that. the agent has

actually | heen selected by a majority of the em-

ployees in an appropriate unit may properly re-

quest proof of its representative status and refuse

to bargain until such proof has been submitted,”

onte these conditions have been fulfilled the .bar-

gai hing obligation. becomes absolute, and the em-

pldyer may not lawfully refuse to perform any of

the acts specified in Section 8 (d) as compivating

rere bargaining.” | |

"A contrary view, which would permit the em-

| pone to escape performance of his statutory duty -

Sion

17 1t has become a welsettled rule that “am employer need

union. if he entertains a

unit” (Te L. Hardy Company, 44 NLRB

if the employer acts in good faith, he mdy properly ‘ ‘request

[majority] proof befcre continuin with the” negotiations”

(Allied Yarns Corporation, 26 NLRB 1440, 1451), or even

insist upon a Board election before granting recognition to

.the union. Sport Specialty Shoemakers, Inc., 77 NIsRB 1011, -

1012-1013; Joy Silk Mills, Inc., 85 NL RB 1263, 1264, enforced

as modified, 185 F. 2d 7320(C. ‘A. D. C.), certiorari denied.

341 U. S. 984; National Labor Relations Board, Thirteenth

Annuai Report (Gov't. Print. Off., 1949), 2 =. Fourteenth

Annual Report (Gov't. Print. “Off, 1950), »° Fifteenth

Annual Report (Gov;t. Print. Off., 1951), p. Bie.

18 Tt has been heitthat non-compliance with the require-

ments contained inf Sections 9 (f), (g), and (h), dealing with

the filing of non-Communist affidavits and financial reports,

does not affect the employer's obligation to bargain, but goes

to the power of the Board to remedy violations’ of the obliga-

tion. West Teras Utilities Co. v. National Labor Relations

Board, 184 F. 2d 233 (C. A. D. C.), certivrari denied, 341

U. ‘S. 939, bate: denied, October 8, 1951.

PON

13, 1024) ; that,

e414

unless the Union complied with extra-statutory

‘~requirements imposed by the employer himself,

would substantially dissipate the bargaining obli-

gation. ‘If the employer could qualify his duty at

will, and the employegs’ right were made dependent 3

not upon their comphance-with the uniform and

’. objgctive criteria fixed by the statute, but upon

their willingness to bow to the employer’s whim,

then truly the guarantee igeSection 7 of the right

to bargain collectively would be ‘‘only a promise’

to the ear to be broken to the hope, ‘a’ teasing iliu-

sion like a munificent bequest in a pauper’s will.’’

Mr. Justice Jackson, concurring in Edwards -v.

California, 314 U. S. 160, 186. Such a view would

leave the nature and number of conditions which

the employer could lawfully exact entirely at large.

As long as he acted in good faith, the employer

could demand endless sacrifices, and yet escape

eondenfnation of his frustration of the bargaining .

process as a violation of the Act. Such a result

would hardly be compatible with the congressional

abjective: of ‘encouraging the practice and pro-

cedure of collective bargaining’’ (Act, Section 1).

Kor these reasons, with the single ex¢eption of

the decision of the court below in thg instant case,

the Board and eyery court which has ¢onsidered

the’ problem hang held that an employer may not

* lawfully demand, as a condition precedent to per-

formance of his own statutory duty, that the union

perform an act which the statute does not dequire,

or yield a right which the statute bestows. ‘‘Sec-_

George P. Pilling & Son Co., 119 F. 24.32, 38

(C, A. 3).

te eh

” Applying this principle the ‘atthe have held that an em-

his competitors (Pilling case, supra); the union's disclosure

v. Cape County Milling?Company, 140 F. 2d 543, 545. (C. A.

8); National Labor Relations Board v. Morris P. Kirk & Son,

Inc., 151 F. 2d 490, 492 (C. A. 9)); the establishment ,of a

kK local union, ( National Labor Relations Board v. Aldora Mills,

180 F. 2d 580 (C, A. 5), enforcing 79 NLRB 1, 2; National

Labor Relations Board v. Louisville Refining C ‘0., 102 F. =

678, 680-681 (C. A. 6), certiorari denied, 308 U. S. 568);

the union’s consent to an electien when ‘the employer's nee

original showing of ‘majority {National Labor Relations Board

v. Burke Machine Tool Company, 133 F. 2d 618, 620 (C. A.

6)). In Hartseli Mills Co. v, National Labor Relations Board,

“111 F. 2d 291 (C. A. 4), where the employer madé’ withdrawal

of unfair labor practice charges Which the union had filed

with the Board “a condition precedent to further negotia-

tions,” and thereby trenched. upon the union’s right to file

and prosecute unfair labor practice charges, the Board, hold-

ing that the employer had ele re both Sections & (5) and

8 (1) cf the Act, said (18 NLRB 268, 280): 4

The Act establishes a duty on the part $f an employer

to bargain with the representative of a majority of 1

PAT AN RE Ee Pat SANTI LE TUL CORE TEE LITRE A AS FALE NOLO BNE SLE EVER TAS

MERA a ENC CR Meni dey

of employment. The Act does hot at the same time

permit the employer to hedge about this duty by im-

: posing unreasonable conditions precedent. to bargaining

: collectively. A condition of the type here imposed, com-

ning a restraint on the right to bargain collectively

i with‘ an inducement to the labor organization to forego

; ' its redress for the employer’s wrongful conduct .°. . is

ee particularly repugnant of the spirit of the Act. »

Ea Ae Sel AD welt yt OEY,

“

tion 7 of the Act guarantees to the employees the

right to bargain collectively through: a representa-_

agployer may not. condition his willingness to bargain or sige 4

**contract on the unicn’s success: in organizing employees. Oe

unfair labor practices have intervened since the unions

employees concerning wages, hours,.and other cculiatons

tive of their own choosing and it is not for the .

employer to restrain or interfere with the exercise

of that right by insisting upon unwarranted con-_

| © ditions’? (National Labor Relations Board v.

of the names of its members (National Labor Relations Board >

ian

3 Eppinger & Russell, 56 NURB 1259, is precisely

-in point. In that case the employer refused to bar-

» gain with a union agent. who had been properly

designated by a majorit of the employees*unless

and until the agent eontplied with the provisions of

a Florida law which required union agents to,ob- -

. tain a state license before they could “operate” in

the state. Rejecting the employer’s contention that

the existence of the state law warranted his. action

in conditioning bargaining upon the agent’s pro-

curement of a license, the Board held that the em-

ployer had, thereby violated Section 8 (5) of: the.

National Act. In Hill v. Florida, 324 U. 8. S. 538,

542, this Court observed that the employer’ s in-

>= sistence in EF Eppinger & Russell that the agent ob-

tain a license as a condition precedent. to bargain-

ing eer ‘with the collective bargaining

process’? and that “The Board properly rejected

the employer’s contention’ * * *."’”

In the Hill case, this Court held that although

the states were ngt,in' specific terms subjected to the

youre imposed upon employers by the fed-

‘al Act, they are not empowered to impose condi-

ius upon the exercise of employee rights which

the federal Act guarantees, for such conditigfs

_~bring about ‘‘a situation inconsistent with the fed-

erally protected process of collective’ bargaining”’

Upholding the Board’s finding the Court. of Appeals com-

mented (T11 F. 2d, at p. 292): “it is clear that [the employer]

could not thus make its compliance with the act dependent

upon qysmiseal of charges that it had been guilty of violating

it ”

41 3

Ls tee Last Fee

} (325 U.S. , at 543), and cause tn forfeiture of col-

3 lective | bargaining rights”’ (id., at p. 539). A

q fortiori, private employers, to whom the statutory

i prohibitions directly apply, may not impose such

4 conditions. If “Congress did not intend to sub ject

+ the ‘full freedom’ of employees to the eroding

3 rocess of ‘varied and perhaps conflicting pro-

visions of state enactments’ ”’ (id., at p. 542), it

* — eould certainly not have intended to subject that

; freedom to the even more deadly erosion of condi-

a. tions exacted by individual employ ers:

| hs “The principle is precisely the same w when the con-

j dition or qualification imposed eithh by the state

F or by the employer affects the right to bargain

: - about a particular term or condition of employment

: as when it affects any other right euaranteed by

' the national. Act. Thus, in, Amalgamated Associa--

| ‘ tion, etc. v. Wisconsin Employment Relations

5 Board,340 U, S. 383, 298-399, this Court held that

: Wisconsin could not by law &clare that ‘the mat-

ter of assigning workers to certain shifts, ‘in-

fringe[s] upon the right of the employer to man-

age his business,’ and thereby relieve the employ-

er of the obligation imposed by the national Act to

bargain about that matter. If, as this Court held,.

Wisconsin’s attempt to reserve the matter of shift,

schedules to unilateral employer determination

brought it into ‘direct conflict’? with the national

Act, an employer’ ~ attempt to aceomplish the same.

result by making it a cont dition precedent to the

eG soi

EPPA GP EL

DRS Nt Geen e

ag sep heit ns id : ee fn we

Pi aan rita 5 coiaie ether DANS Dine ial waa Bl ear ee ye)

performance f his own statutory duty is also in

“direct conflict’? with the national Act.

_ There. i is thus no room for the distinction, which

was evidently drawn by the court ‘below, between

the condition insisted upon by the employer i in the

Dalton: ‘ Telephone ‘case, 187 F. 2d 811, $12-813

“145, this Term, and the condition inalated upon by

respondent in this case. In the Dalton ease, the

court below held that the employer had violated

Section 8 (a) (5) of the Act ‘‘by imposing as a con-

dition precedent to the execution of a contract,

which had already been‘agreed tipow’in substance,

the requirement that the ‘union - egister under a _

Georgia statute so as to make it an entity amenable e

to suit in the state courts’”’ (id., at_p. 812).: The |

court said that the Company ‘‘by insisting that the

union become an entity amenable to suit in the

state courts, left the sphere of ‘terms and ‘condi- -

tions of employment’, and conditioned his willing-

ness to sign the agreement on a matter outside the

area of compulsory bargaining” C id., at p. 812).

Apparently, the court below distinguished the in-

-- stant case on the ground that the’ eonditjon upon

which respondent insisted was within ‘‘thé sphere

of ‘terms and conditions of employment’ ”’ and was

therefore a matter within ‘‘the area of compulsory

-bargaining.’’ But such a distinction overlooks the

fact that the right of a labor organization to bar- -

gain about partic ‘ular terms and qpnditions of em-

ployment is not itself'a ‘‘term or condition of em-

4 ‘

(C. A. 5), certiorari denied October '8, 1951, No. ced, :

Pee es eS os Soe,

Nt ee

"ees See

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recognition as eX¢

| ployment,’’ but a benefit conferred by law, and that

for this reason that matter is also ‘outside the area -

of compulsory bargaiming.” ~ , . 1 *

Where, as in this case, the employer fr agmentizes |

the Union’s bargaining rights, and conditions: his

willingness to recognize one portion of those rights

on the Union’s surrender of dhe r remainder, the em-

ployer’ s interference with the exercise of bargain-

ing righis conferred upon the Union is doubly

clear, and his violation of Section& 8 (a) (1) and

(5) is doubly offensive. It is the equivalent of.

demanding, as a eondition of bargaining, that the

Union. waive its 3 utory right to recognition as Ee

* the exclusive represditative of all tlie employees in

, and agree instead to accept

gv e representative of its mem-

bers only (McQu h-Norris’ Mfg. Co. v. National’

the appropriate ¥a

: Labor Relations, Board, 116 F. 2d 748: (C. A. 7),

certiorari denied, 313 U. §..565),”" or of demand-*

ing, as‘a condition to'bargaming about other terms

aud conditions of ‘employment, that. the Union

forego its right to bargain for a closed shop or

check off of union dues {7.'¢., under the original Act

' which permitted the ctosed shop). ° » National Labor

Relations Baard v. Hens & Prince Mf q. Co., 118 F.

; it

*° See sie, National bebo: Relations Board v. ’ Constbana

Cotton Mills, 178 F, 2 344, 346-347 ((..A. 5); Stewart Die

Casting Corp. v. National Labor Relations Board, 114 F. 2d

849, 853 (C. A. 7), certiorari denied, 312 U. 8. 680; National -

Labor Relations ‘Board v. Griswold M fg. Co., 1,06 F. 2d 713,.

‘7i9 (C. A. 3); ef. National Licorice-Co. v. Nationat Labor

Relations .Board, 309 U. 8. 350-358. Re '

24 874, 883. (C. A. 1), certiorari denied, +313 U. &

595 ; National Lavor Relations Board v. Winona |

Textile Mills, Inc., ” F. 2d 201, 208-209.

[ (0, A, 8)? =. ‘ : ae

:, Such interference with rights guaranteed em- '

ployees by thé Act cannot be justified on the theory, . .° .

which was apparently adopted by the courft below §

(It. [.-114), that the ployer has a right te insist

that the union ‘‘bargain’’ about the exercise of

those rights. Recognition of the union’s right to

bargain about every subject Within the area of

‘terms and conditions of employment,”’ like recog-

nition of its right to act as bargaining agent for

all employees in the unit, ‘‘is not a bargaining mat-

ter”’ (M eQuay-Norris: case, supra, 116 F.2d, at p.

9 751), but an obligation imposed upon the employer

_+ by law. ‘ Consequently, the employer cannot make

his willingness to éxtend such recognition ‘the

subject ofa long and extended bargaining proc-~

ess’? and. an employec’ who does so is ‘in defauit

of [his] statutory’ obligation’? (ibid.). A contrary

view, as the court observed in the MeQua y-N orris«

case, abid., “would confer upon the employer the

s Bee eo,

2i The Reed & Prince case, supra, is particularly pertinent

- jin that there, as here, the employer’s condition was that any

contract ultimately executed rust’ contain a clause providing

for the union’s surrender of the particular bargaining right in

dispute (118 F: 2d, af p. 883). In the Winona case, supra,

the court held that the employer's position, in which he “flatly

refused to bargain on any major point until the elesed shop

demand was dropped,” placed the union “at a great. disad'van-

tage at the conference table” and:was untenable, because the

employer “had.a duty to bargain. in good faith on the issue

of a ¢lesed shop as well aS on other issues.” 160 F. 2d, at

p. 208. . *s

> > 7 a ‘

option of bargaining concerning a matter-guar-

anteed the employees as-of fight: * P30

Moreover, respondent was not ‘‘bargaining,”’ in,

“tan y sense, for a waiver of the anion’s right to nego-

tiate and to participate in determining shift sched-

ules and the other miatters covered by the preroga-

tive clause. What respondent offered the U nion’

in exchange for-‘surrender of its right to bargain

about those matters was nothingarore-than per-

formance of respondent’s own statutory duty to

bargain about other matters—something which,

‘under no ciftumstances, did it have any right to

withhold., Respondent left the Unign wif Hob-

-son’s choice—to take less than.a full. measure Of

the rights which Congress gave it, or no rights at

all. “To describe the employer’s “steadfastness”

in this position as “bargaining” (R. IL. 114), is to.

confuse extortion with trade.

. Certainly, respondent’s additional demand- that

the Union acknowledge respondent’s repudiation

of its r@it to bargain about shift schedules and

other matters by. agreeing to incorporate tie

‘prerogative’? clause as.a part of any collective

bargaining céntract did not transform respondent's s

illegal insistenee upon the Union’s surrender of

’ that right into a lawful “bargaining” _position. Of.

National Labor Relations’ Board v. Reed.& Prince

‘Mfg. Co., 118 F. 2.874, 883 (C. A. 1), certiorari

denied, 313 U.S. 595, discussed in note 21, supra.

Indeed, respondent’s formulation of itsqposition

‘in contractual terms merely emphasized its insist-

46 ~ | Ec.

“ence upon treating ‘‘a matter guaranteed the em-

ployee as of right’’ as, at best, ‘‘a bargaining mat-:

ter,’ McQiuay-Novris case, Supra. .

Since respondent was, not entitled initially to

take the position that it would not bargain about -

shift schedules and other matters covered by the

prerogative clause, or to buttress that position by

refusing to bargain about all other matters unless

the Union f-knowledged its misgoneeived *‘ prero-

gatives,’’ respondent’s cal os we shal] now -

‘show, is not aided by the provision in Section 8 (d)

of the Act that performance of the collective bar-

gaining obligation “does not compel either party

to agree to a proposal or require the making of a

concession.” For the same reason, as we demon-

strate below, pp. 51-57, in fra, the fact that th& >

Union could lawfully waive its right to bargain

about shift schedules, or other matters within the

statutory collective bazgaining sphére, provides no

exculpation for the ‘illegal. means - used) by re-

spondent to exact the w aiver, ,

B: Section 8 (d) does not relieve employers of the

obligation to honor bargaining rights conferred

upon labor organizations by the Act

The distinction, overlooked by the court below,

between substantive terms and conditions of em-

ployment, whieh are left to be determined through

_ the collective bargaining» process sby the parties,

and the right and duty to engage in collective bar-

gaining about those terms and conditions of’ em-

rere

\ Se ; a OES ? ;

ployment, which are fixed by the statute. was firmly

_ established-long before Congress, in amending the

_ Act, added the definition of ‘collective hargaining”’

ae contained ‘in Section 8° (d). For example, in Art

Metals Construction Co. v. National Labor Rela-

tions Board, 110 F. 2d 148 (C. A. 2}, the court re-

pudiated the empléyer’s contention that because the

Act left him free to disagree With the representa-

five of his employees as to what wages and hours

- should ‘be, -it likewise left him free to refuse to

- perform his statutory obigation te. reduce any

_agseement reac hed to-writing. Speaking through

Judge Learned Hand, the court said, F.. 2d,

at p. 150;

e :

The freedom: need t to the employer is free-

dom to.refuse <oncessions ‘in working condr-

tions to his employees, and to exact concessions

froth them; it is not the freedom, once they

have in Taiet agreed upon these conditions, to

compromise the value of the whole proceeding,

and probably make it nugatory.

~ Acedrd: National Labor Relations Board v. High-

land Park Mfg. Co., 110 F. 2d 632, 639 (C._A, 4).

Manifestly, this Court’s statement: in National

- Labor Relations Board v. Jones & Laughlin Steel

—Corp., 301 U.S. 1, 45, that the ‘Act does not com:

pel agreements between employers.and employees.

_* * * The theory of the Act is that free oppor-

tunity for negotiatioy * * * may bring about

the adjustments and agreements,” had reference,

only to ‘adjustments and agreements which the Act |

peer 2

48 ae

in itself does not attempt to compel,’’ not to the

adjustinent which Congress itself made in impos-

ing upon employers the duty to recognize and bar-

gain collectively with representatives selected by.

their employees. oon Ca a

Congress incorporated that distinction in Section

8% (d). The section restates the obligations compre-

hended by the duty to bargain coJlectively as in-

eluding, inter alia, the obligation to negotiate *‘in

good faith with respect to wages, hours, and other

terms and conditions of employment” and to ex-

ecute “fa written contract incorporating any agree-

ment reached if requested’ by either’ party.”’.

Clearly, the proviso’s assurance that neither party

is compelled “to agree to a proposal’’ or to make

‘‘4 concession,’ was not intended to nullify the

entire bargaining obligation by leaving compliance -

with the requirements of the Act optional with —

either party. It cannot be that Congress in one |

breath imposed the duty to bargain upon request

about ‘wages, hours, and other terms and eondi-

ons of employment”’ and in the next breath pro-

vided that denial of the, poe should eliminate

the duty.

As the Board observed (R. I. 87), the proxjso,

like the restatément to which it is attached, ‘‘sub-

stantially codifies the bargai ing standards devel-

oped under the Wagner Act.’ oe the proviso is

228¢e also, National Labor Relations Board, ‘Thirteenth

Annual Report (Gov’t. Print. Off., 1949), p. 59; Fifteenth

Annual Report (grt. Print. Off., 1951), p. ay

a nie

bad

49 :

directed to the concept’ of bargaining “in good

faith,’? and emphasizes that while that obligation

requifes that parties ‘‘enter into discussion with an-;

open and fair mind, and a sincere'purpose to find /

a basis of agreement touching wages and hours and -

conditions of labor’? (Globe Cotton Mills v. -Na--

A, 5)), and continue such discus ssion until an azree-

ment impasse on these matters i is reached, it' does

otabeline that the parties make substantive. con-

cessions on the economic qutstions Which are the

subjects of their negotiations. National Labor

Relations Board v. Crompton-Highland Mills,

Ine., 337 U.S. 217, 22 5 3 Jeffery-DeWirtt Insulator

Co. v2 National Labor Relations Board, 91 F. 2d

134, 139-140 (C. A. 4), certidrari denied, 802 ULS.

731; National Labor Pelations ‘Board y. Andrew

Jergens “Co., 175 F. 2d 130 (C.A. 9), certiorari

denied, 238 U. 8. 827; Singer Mfg. Coa v. National’

Labor Relations Board, 119 F. 2d 134, 137 (C. A.

7), certiorari denied, 313 U. 8.595. V **

The legislative history of Section 8(d) shows

that incorporation of the proviso-in the amended

Act was impeiled by dissatisfaction with what Con-

gress believed was the Board’s practice in some

‘ases of regarding an employer’s failure or refusal

‘to make ec onomie concessions in the course of ne-

gotiations as an indication of bad faith. The re-

port on the House bill (H.R. 3020, 3 as reported 30th

2 ie '

Cong., Ist Sess., pp: 6-10, in 1 Leg. Hist. 36-40) ,”*

supported the inclusion theremh of an. objective

definition of collective bargaining on the ground

that in ‘‘determining whether or not employers had

bargained in good faith,’’ the Board had Set ‘itself

up as the judge of what concessions an employ er

-must make and of the proposals and counterpro-

posals that he may or may not make’’ (H: Rep. No.

245, pp."19-20 in 1 Leg. Hist. 810-311). The eee

states (id., at p. 50, in 1 Leg. Hist. 311) that ‘‘i

view of the Board’s-rulings on the duty to bar gain

50. eee eae: a

‘the committee has deemed it wise to define collec-

' & tive bargaining to mean what the Supreme Court.

in the Jones & Laughlin case, supra, says it means.”

Aitalies in original). The Conference Report noted,

that ‘‘the Senate Améndment, while it did not pre-

scribe a purely objective test of what constituted

collective bargaining, as did the House bill, had to

a very substantial extent the same effect. as the

~Heuse bill i in this regard, since it rejected, as a fac-

tor in determining good faith, the test of making a

—-eoncession and thus prevented tae Board from de-

termining the merits of the positions of the

‘

parties.”’ (H. Conf. Rep. No. 510, p. 34 in 1 Leg.

Hist. 538). The Report concluded that the ‘‘con-

/ference agreement, like the Senate amendment,

“does not contain a definition as such of ‘collective

bargaining,’ but does, in section 8 (d) of the

22H: Rep. No. 245, 80th -Cong., Ist Sess, 4 tae Hist. 292. |

“Teg. Hist.” refers to the two volume edition entitled Legisla-

tive History of the Labor Management Relations Act, sid

(Gov't. Print. Off., 1948).

Net NE ok BS eR

tion of ‘‘good faith?’

amended Labor: 4s oil ernie ana similar to

those of the Senate amendment .*. .°’ (id., at ne 39, 9

in 1 Leg.. Hist. 539). cee

Since the right to refuse to agree to a proposal

or te make a concession relates only to substantive

issues involving terms and conditions of employ-

ment, and is pertinent only to the question whether |

a party who has engaged in negotiations looking

to the resolution of such ‘issues by mutual agree-

ment has bargained ‘in goed faith,’’ the proviso is | .

‘manifestly irrelevant to-a case such ap this where

the employer refused totally to negotiate concern-

ing the establishment of certain substantive terms

and conditions of employment ' by mutual agree-

ment, and offered only conditionally to bargain

- about others, and swhere. his repudiation of the bar-

gaining obligation was found by the Board ‘‘ per

se’”to violate the Act, without regard to any fues-

gaining rights conferred by the tet does not

excuse the commission of unfair labor prac-

tices design€d to induce such a wai ver

It goes almost W ithout saying that the mere fac t.

that the ‘“‘prerogative’’ clause upon’which respond-

ent insisted could have been incorporated in the col-

lective Wargaining contraet by lawful means pro-

vides no exculpation for respondent’s use of unfair

labor’ practices to induce its aeceptance by the

Union. > The Board and thpvcourts have recognized

that a,duly designated, bargaining asent Beane not .

lack capacity to waive various rights conferred hy

‘the Act,* and, where such a w aiyer has not resulted

. from the commission of unfair labor practices, the

waiver has been upheld. The right to bargain

_about one or more subjects ‘in the area of ‘‘terms

and conditions of employment’’ is one of the rights

Within the capacity of a union to waive ; the waiver

amay take the form of a temposary cession to the em-

ployer

jects in

power to th

lective bargaifis 4

or embrace every eX

[between the bargaining

Lituations are reserved for individual contracting,

either completely or within prescribed limits.”’

of power to deal unilaterally with the sub-

issue, or an agreement reserving .such

mployer:for a definite time. ‘‘Col-

tion. It may be agreed

Boe, €.9., Bethlehem Steel Cempany, Shipt

sion, et al., 89 NLRB 341, 345-346, enforeementdenied on

other grounds, 191 F. 2d 340 ¢C.A. D.C.) (union’s rig

under

Section 9 (a) ‘to attend the adjustment of grievances by fae

men); May Departmené Stores Co., 59 NL RB 976, 981, n. 17

enforced, -154 F. 2d 533, 536 (C. A. 8), certiorari denied, 329

U_S..725 (right to solicit memberships) ; Briggs Indiana Corps

63 NLRB 1270, 1272-1273 fright to represent certain units

of employees); General Controls Co., 88 NLRB 1341, 1342

fright to bargain about individual merit wage increases) ;

Globe Automatic Sprinkler Co., ‘95 NLRB, No. 42 (union’s

right to select negotiators who are not employees of the em-

ployer). Cf. Alabama Marble Co., 83. NLRB 1047, 1049 °

(union’s right to bargaih with respect to certai hours and

wages) Old Line Life-Insurance Co., 96\NLRB No. 66, de-

d September 27, 1951, 28 LRRM 1939, 1541 (union’s.

ict it to bargain w ith respect to promotions). The Board not

only requires that the waiver be entirely voluntary, but that

there be a “clear and unmistakable showing of a waiver of

such rights” Tide W ater Associated Oil Co.., "85 NLRB 10696,

1098; The Board’s Fifteenth Annual Report (Gov't. Print.

Off. 1951), p. 121. ;

ed not and do-not always-settle_

arties] that particular.

ildirg “‘Divi-®

rh:

ail RS BL Na ae

anaes

ESA ak ree toe led ede DOR LEAS irae Rahm ui hielo bi

ey, ee

Order of Railroad Telegraphers v. Railway Ex-

press ‘Agency, Inc., 321 U. 8: 342, 347. :

But unless a premium is‘to be placed #pon the

commission of unfair lebor practices, a ‘‘waiver’’

which results from an employer’ s refusal to recog-

nize the Unien’s right to bargain about the issues

in dispute, or his refusal to harg rain on other is-

sues in the absence of a waiver, cannot be deemed

either voluntary or valid. In point here is Rich-

field Oil Corp. v.N ational. Labor Relations Board,

143 F. 2d 860 (C. A.9). There the court held that

merchant sailors wert entitled to have the assist-

ance of their Tniouw “shore delegates’’ in settlinft

grievances with the: employer, and that the dele-

gates’ access to ships in port was a ‘‘necessary inci-

dent of the sailors’ right of-collective bargaining.”’

During a perivd while negotiations for a new con-

tract were under way the employ r had refused to

_ issue the customary ship passes tofthe delegates and

defended his action ‘‘on .the ground that [the

sailors’ right t@ have. the delegates aboard] is one

which they may bargain away and therefore one’

which the employer may withhold from the sailors

during the period of their collective bargaining for

anew contract . . .’’ Rejecting this defense, the

court said ‘Assuming, but not deciding, that the

sailors may bargain away the right of access of

their shore “delegates, in the absence of such an

agreement the right exists and is enforcible. The

owner cannot deny its exercise for the purpose of

making a better bargain as to some other provision

) a t

2 o4

of the contract’’ (143. F, 2d, at Pe: 861-862). In

many of the cases discussed in. subsection ‘‘A’’

above, pp. 34-35, 38-45, supra, the waiver upon

which the employer insisted -was one which the

Union was empowered to rant. In this sense, the

waiver was something ‘‘about which the parties

thay. bargain or ‘negotiate, but. which cannot be in-

sisted upon as a condition precedent to the making

of a contract.’ National Labor Relations Board

v. Dalton Telephone Co., 187 F. 2d 811, 812 (C. A.

Dd), certiorari denied, October. 8, 1951, No.445, this

Term. .

ae bia an empleyer can no more lawfully refuse

to submit any issue in the area of terms and con-

ditions.af employment to the bargaining process’in

‘order to secuye a@ waiver of the Union’s right to |

\s bargain about that subject than he can, lawfully

bargain with individuals or take unilateral action

concerning it, or refuse to bargain altogether to

ache the same end. Order of Railroad Teleg-.

raphers case, stra; National Labor Relations

Board vy. J. Hf, Allison & Co., 165 F. 2d 766, 768,

(C. A. 6), certiorari denied, 335 U.S. 814; National

Labor Relations Board v. Todd Co., Inc., 173 F. 2d

705, 707 (C. A. 2); Hughes Tool Co. v. National-

Labor Reiations Board, 147 F. 2d 69, 73 (C. A-5) ;

National Labor Relations Board v. Corsicana Cot-

ion Mills, 178 F. 2d 344, 347 (C. A. 5). The same

reasons Which: prevent an emplover from relying

upon conditions ‘which could otherwise redound to

his advantage, where the conditions have resulted

bys) | ae

from bis commission of: unfair labor practices—

o¢.g.,a union’s less of majority status (Franks Bros.

Co. v. National Labor Relations Board, 321 U. S.

702; or a strike which affords opportunity to secure

permanent replacements ‘(National Labor Rela-

tiors Board v. Mackay Radio & Telegraph Co.,

404 U.S. 333)—prevent according. validty to a

waiver induced by such unfair labor practices.

_ Jt follows, that while an employer may lawfully

in the course of negotiations propose that the union

Waive a portion of its bargaining rights,” and offer

| economic concessions which he is free under the Act

to withhold as an inducement to obtafn the Union’s

assent, he may not lawfully even compel discussion,

much less compel assent to such a proposal, either

by refysing to recognize the Union’s right to bar-

gain about the issues in dispute, or by conditioning °

he continuation of negotiations or the execution

of a contract upon it.” In other words, it is the

fd ai de TON SRA RETEST Mey Fg Fee OT RRS Arey: eit cee < 55 : -

coe ih tale aR Sf ia ne Rag I ON Ps: Sd hess aed a RAY PMC grer yo tg cee Peo een Liles ag Oh Pie etek oe 2h Rt oe roe reas »

ASE ea GLa aes aE sonia sities UA eee Cae oe eg Beg Se aa OD mgr

x Verge! ae eee: as, <a 3 % - vsegR,

PSN VER a EE as ory ete rata §- giv ie Ren, ay wey

Tee tN SEC Phe RS fk Rh cing ali anneal esha RAR asa

25 See, e.g., Alabama Marble Co., 83 NLRB: 1047, 1049-/

1050 (hours and wages}; Old Line Life Insurance Co., 96 —

NLRB, No. 66, 28 LRRM 1539, 1541 (promotions) ; Standard

Generator Service Company of Missouri, Inc., 909 NLRB 790,

791 (revision of wage rates). a 3 |

2¢‘Cox and Dunlop, op. cit. supra, note 7, netwithstanding

. the Board’s holdings which sustain the validity of voluntary

waivers of the right to bargain about various terms and condi-

of such agreements the Board should: construe the Act as

requiring only that the employer negotiate in good faith on.

major issues of wagés and hours, thereb¥ leaving the employer

free—as a matter of gee refuse to bargain about such

terms and conditions\ of employment «as pensions, shift

schedules, ete. Apart from the fact that the terms; of Sec-

tion 9 fa) and 8 (d) leave no room for such splitting of the

content of the bargaining obligation, the approach which these

authors suggest would abandon to economic warfare issues

which Congrese removed from that area by substituting

Pee

os © 56 Pe re

Union which has the option of bargaining about -

waiver of its right to a voice in the deterf#ination

of matters within the compulsory’ bargaining

sphere, just as it is the émployer who has the

option of bargaining about waiver of. his right

unilaterally to determine matters outside. that,

sphere.” Therefore, when a union rejects the

employer’s suggestion or-inducement to waive bay-

gaining on a particular subje to which the bar- .

gaining obligation applies, ‘the employér must

bargain. Otherwise he is in the same position

as if he had refused to bargain about the subject

rule of law. The fact that the construction of the Act adopted

by the Board and the courts leaves ample room for the result

*- which the authors deem-so desirable demonstrates that no

such distortion of the Act as they sumgest is necessary to

accomplish it. See Findling and Colby, op. cit. supra, n. 7.

*7 Thus, although a union may pot require an émployer to |

bargain concerning the conditions under which replacements —

~ for economic strikers are tode hired: (Times Publishing Com-

pany, 72 NLRB 676, 684), ‘or concerning the reinstatement of

«employees on strike in violation of a no-strike clause in the

union’s contract (Charles E. Reed & Co., 76 NLRB 548, 549-

550;. National Labor Relations.Board Thirteenth - Annual

Report (Gov't. Prin, Off., 1949), p. 61), the employer may

agree to bargain aout, matters such as these. The Committee

Report on the House bill (H. Rep. No. 245, on NM. R. 30290,

80th Cong., Ist Sess., pp. 22-23, in 1 Leg. Hist. 292, 13-314),

in discussing the “scope of bargaining,” recognized the limita-

‘tions upon the subject matter of compulsory bargaining: “Just -

as the employer has ne right to bargain about whe the union’s

officers and representatives will be, what dues‘and assessments

it shall impose, how it shall spend its money or otherwise

conduct. its internal affairs so long as they do not affect the

employer's operations, so the union has no right to bargain

with the employer about who his agents will be, what priges

he will charge, what his profits shall be, or how he ‘shall

manage his business, so long as he does not violate the union’s

contract with him or ignore his obligations under_the Labor

Act.” ;

>»

. bad

tie SE A ER ESE GRAIL St RSS AR ad SSA LB WR a ie SL A cy Oly SING al aati iscsi pian paisa

» : i 4 “x

eat cepa ap

te eyes PN SRL

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in question at the outset of negotiations, without

suggesting a waiver -by the Union.* eae

Effectuation ofthe poticies. of the Act requires

: this resulty» The theory of the Aet is that indus- -

trial peace “will be pronioted if all the issues to

which the bargaining obligation applies are re-

solved by mutual agreement between the ‘employer

and the bargaining agent of the eraployees. On.

this theory, an employdr’s refusal to submit such

issues to the bargaining process is clearly pro-

ductive of dissatisfaction and strife. Order of —

Railroad Telegraphers, ease, supra. The. objec-

tives of the Act are satisfied only where-the issues

-are resolved by mutual agreement or areeft to

- individual bargaining by voluntary agreement of

the’ Arte oa

CONCLUSION ;

For the reasons stated, it is respectfully | sub-

mitted, that the judgment of the cours below should

be, reversed,’ insofar as it holds that respondent

did not ¥iolate Section 8 (a) (5) and (1 of the

“8 The Board’s holding in Shell Oil Company, 77 NLRB

1306, that an employer who had reached agreement with the

"union on all substantive terms of a contract’ did not unlaw- - |

fully refuse to. bargain by insisting on the inclusion of a

no-strike clause therein is not inconsistent with the pattern of

+ holdings des¢ribed above... As the Board explained in Bethle-

341, 34 Since the statutory purpose to’ substitute the

‘Practice nd procedure of collective bargaining for industtial

ife was aehieved by the parties’ agreement on all the sub-

” ntive-terms and conditions of employment, it was by the

same token: consonant with this salutary objective for the

“companies to demand, as part of the bargain, that the union

refrain from striking and respecting pickéet lines for the |

duration of the contract.” ..

= > YP a 2

hem sp. 8: "Since Shipbuilding Division, et al., 89 NLRB

Act when it conditioned the execution of any .

contract with the Union upon the inclusion of the

restricfive prerogative clause therein, and insofar

as it denied enforcement of paragraph 1 (a) of

the Board’ s order. | :

Pup B, Permay,

Ss, Solicitor General.

Grorce J. Bort, t/

General Counsel,

Davin, LP, FINDLENG,

Ppa iate General Counsel, -

Mozart G, Ratner,

Assistant General Counsel,

. MARCEL Mat.et-Prevost,

Attorhey, | RE F

National Labor Relations-Board.

JANUARY, 1952. - pon acs

Se ere en

PELE REPS Eek a eee ee

Nae

PED PETIA NURS Ne ES

Eby ba

oe oe pe ed ee Feet le fa A Oe ee El ts we ee

PAA aie SA yok oA EAS oA Se 4

Supp IV, 151, ek-seq.), are as Bellies

59 ,

APPENDIX

Sa °

* * ; * *

Sec. 7. Employees shall have the rjght to

self-organization, to form, join, or assift labor

organizations, to bargain collectively Jhrough

represevtatives of their own choosifig, and

io engage in other concerted activities for the

purpose of collective bargaining or Mther mu-

tual aid or protectjon, and shall also have the

right to refrain from any or all of such activi-

ties except to the extent that such right may

be affected by an agreement requiring mem-

bership in a labor organization as.a condition

of employment as authorized in section 8 (a)

(3).

Sec. 8..(a) It shall be an unfair labor prac-

tice for an employer—'

- (1) to interfere w ith, restrain, or eserce .

employees in the exercise of the riclif guar-

anteed in section 7}

_* Sete eae * # _ ;

_ (5) to refuse to bargain collectively with

the representatives of his employees, sub-

ject to the provisions of séction 9 (a).

« aa * *% *

(d) For the purposes of this section, to

bargain collectively is thie performance of the

mutual obligation of the employer and the

cession

66 é; a

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 nego-

tiation of an agreement, or any question aris-

ing chereundér, and the execution of a written

contract incorporating any agreement reached

if requested by either party, but such obliga-

tion does not compel either party to agree to

a proposal er require the making of a con-

* * *

* * i * *%

Sec. 9. (a) Representatives designated or

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 Ange tide collective bar-

gaining in respect to rates of pay, wages, hours

of employment, or other conditions of employ-

ment: Provided, That any individual employee

a Laan bas employees shall have the right

xt any ti to present | grievances to ther

employer ae to have sach ad-)

justed, without the> iutery enyyon of the bar-

gaining representative, as log as the adjust-

ment is not inconsistent -wfth the terms of a’

collective- bargaining contract or agreement

then in effect: Provided further, That the bar-

gaining represe tative has been given oppor-

tunity to be present at such adjustment. ,

. « £Aavesee=eresr setieriae egrire tees ane2ne aah

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