# Brief for NLRB — National Labor Relations Board v. American National Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0139%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for NLRB - **Published:** January 1, 1952 - **Citation:** 343 U.S. 395 ## Text OE RD Office - ~Supr ome ou Uok FT ts a » JANA? Bat GRARLES. CLYORE RROPLEY s CLERK He LIBRARY me SUPREME courT, U. No. 126 e “ Asaoas N Neto 7 ye nance Cora 34 -% ~ | ae 3 Pe ios at : z i e 3x5 Se Me ae : eat ¥a ae a a ¥ 2 ae Se v “0 x ter i ' a . € t. . * a “es ene P i i> en a i ; Re SE Sw pe tie j % Sie BAIS ahh tee” ie og ae : es oN wait cor ‘Cenribmagy To THe UNITED: STATES - es , COURT. OF: ARR BALS. FOR THE BIFTE CIRCUIT” mei Ph 3 2 x ee. ie Rey Z ¥ - ‘ ee ERS SPN NPT Bee alk ts ih eee é seit te ao iy ee, ¥ SK: TE: . * : 4 +. Pe, Ie tet. > ‘ ~e ——e > g art Re a5m8 hee a ; Oe, EE LE ee 3 ; } ere An > oes & edo a RAB BEY tap Y tae . Woo hy at Se de ‘BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD . ie } es . ‘ : : 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 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 46 51 57 59 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 o4 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 49 37 52 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, Q 44, 46 A 39 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 45 187 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 * IV ° & 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. 31 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 V 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, 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 if ff qi * ; . 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.’’* | é oe 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- f 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). > t. 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 a> 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 2 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 g a 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 ~ / ; f ‘ 4 : 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, 5 11 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 e 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) es 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. (a e 2 \ 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 ie 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 { II 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 Ky - 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 . 8 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 © ° . Satreduction - 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 10 ? . 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 ya — ® 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 * —_ ud ~ 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 ne “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 4: O4 a 2 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). 5 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). . ey eB 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 a) e ws oe e ._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. : a 1com- Se re ne eg RL Tet ae Oe Pg 29 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, e. . 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. fi 99 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 2 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). i 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 m, { mm _ 3 # ¥ : a A * 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, es e414 unless the Union complied with extra-statutory ‘~requirements imposed by the employer himself, a 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-_ » 39 George P. Pilling & Son Co., 119 F. 24.32, 38 (C, A. 3). o 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 a 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, e “ e 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 & 40 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 ” 23 41 3 Ls tee Last Fee 2. } (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) ° a& 42 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 > 7 a ‘ V) 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 § a nie bad o@ 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-- tional Lor Relations Board, 103 F. 2d 91, 94 (©. 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 3 ‘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 oe 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). - *, s The Board and thpvcourts have recognized 52 o 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: e ail RS BL Na ae anaes : ESA ak ree toe led ede DOR LEAS irae Rahm ui hielo bi ey, ee 53 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 » . 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 eg te eyes PN SRL = & ‘ ‘ Pin ee er een ae A et A BL RAL ESR GRIN I | | | ‘ 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 a 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. | : a 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 & ae z i. 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 ° * * ; * * ae 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—' @ o - (1) to interfere w ith, restrain, or eserce . employees in the exercise of the riclif guar- anteed in section 7} _* Sete eae * # _ ; a _ (5) to refuse to bargain collectively with the representatives of his employees, sub- ject to the provisions of séction 9 (a). e « 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. , A , . « £Aavesee=eresr setieriae egrire tees ane2ne aah --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0139%3A2. Public record. Not legal advice.