NATIONAL LABOR RELATIONS BOARD v. WOOSTER DIVISION OF BORG-WARNER CORP.
No. 53
Supreme Court of the United States
Argued November 20-21, 1957.—Decided May 5, 1958
356 U.S. 342
*Tоgether with No. 78, Wooster Division of Borg-Warner Corp. v. National Labor Relations Board, also on certiorari to the same Court.
James C. Davis argued the cause for the Wooster Division of Borg-Warner Corporation. With him on the brief was Robert W. Murphy.
Harold A. Cranefield and Lowell Goerlich filed a brief for the International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (UAW-AFL-CIO), as amicus curiae.
MR. JUSTICE BURTON delivered the opinion of the Court.
In these cases an employer insisted that its collective-bargaining contract with certain of its employees include: (1) a “ballot” clause calling for a pre-strike secret vote of those employees (union and nonunion) as to the employer‘s last offer, and (2) a “recognition” clause which excluded, as a party to the contract, the International Union which had been certified by the National Labor Relations Board as the employees’ exclusive bargaining
Late in 1952, the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO (here called International) was certified by the Board to the Wooster (Ohio) Division of the Borg-Warner Corporation (here called the company) as the elected representative of an appropriate unit of the company‘s employees. Shortly thereafter, International chartered Local No. 1239, UAW-CIO (here called the Local). Together the unions presented the company with a comprehensive collective-bargaining agreement. In the “recognition” clause, the unions described themselves as both the “International Union,
The company submitted a counterproposal which recognized as the sole representative of the employees “Local Union 1239, affiliated with the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO).” The unions’ negotiators objected because such a clause disregarded the Board‘s certification of International as the employees’ representative. The negotiators declared that the employees would accept no agreement which excluded International as a party.
The company‘s counterproposal also contained the “ballot” clause, quoted in full in the margin.3 In sum-
From the time that the company first proposed these clauses, the employees’ representatives thus made it clear
In the meantime, International had filed charges with the Board claiming that the company, by the above conduct, was guilty of an unfair labor practice within the meaning of
Because of the importance of the issues and because of alleged conflicts among the Courts of Appeals,4 we granted the Board‘s petition for certiorari in No. 53, relating to the “ballot” clause, and the company‘s cross-petition in No. 78, relating to the “recognition” clause. 353 U. S. 907.
We turn first to the relevant provisions of the statute. Section 8 (a) (5) makes it an unfair labor practice for an еmployer “to refuse to bargain collectively with the representatives of his employees . . . .”5 Section 8 (d) defines collective bargaining as follows:
“(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel
either party to agree to a proposal or require the making of a concession . . . .” 61 Stat. 142, 29 U. S. C. § 158 (d) .
Read together, these provisions establish the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to “wages, hours, and other terms and conditions of employment . . . .” The duty is limited to those subjects, and within that area neither party is legally obligated to yield. Labor Board v. American Insurance Co., 343 U. S. 395. As to other matters, however, each party is free to bargain or not to bargain, and to agree or not to agree.
The company‘s good faith has met the requirements of the statute as to the subjects of mandatory bargaining. But that good faith does not license the employer to refuse to enter into agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining. We agree with the Board that such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining. This does not mean that bargaining is to be confined to the statutory subjects. Each of the two controversial clauses is lawful in itself.6 Each would be enforceable if agreed to by the unions. But it does not follow that, because the company may propose these clauses, it can lawfully insist upon them as a condition to any agreement.
Since it is lawful to insist upon matters within the scope of mandatory bargaining and unlawful to insist upon matters without, the issue here is whether either the “ballot” or the “recognition” clause is a subjeсt within the phrase “wages, hours, and other terms and conditions of employment” which defines mandatory bargaining. The “ballot” clause is not within that definition. It re-
The “recognition” clause likewise does not come within the definition of mandatory bargaining. The statute requires the company to bargain with the certified representative of its employees. It is an evasion of that duty to insist that the certified agent not be a party to the collective-bargaining contract. The Act does not prohibit the voluntary addition of a party, but that does not authorize the employer to exclude the certified representative from the contract.
Accordingly, the judgment of the Court of Appeals in No. 53 is reversed and the cause remanded for disposition consistent with this opinion. In No. 78, the judgment is affirmed.
No. 53—Reversed and remanded.
No. 78—Affirmed.
MR. JUSTICE FRANKFURTER joins this opinion insofar as it holds that insistence by the company on the “recog-
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER join, concurring in part and dissenting in part.
I agree that the company‘s insistence on the “recognition” clause constituted an unfair labor practice, but reach that conclusion by a different route from that taken by the Court. However, in light of the finding below that the company bargained in “good faith,” I dissent from the view that its insistence on the “ballot” clause can support the charge of an unfair labor practice.
Over twenty years ago this Court said in its first decision under the Wagner Act: “The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel.” Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45. (Italics added.) Today‘s decision proceeds on assumptions which I deem incompatible with this basic philosophy of the original labor Act, which has retained its vitality under the amendments effected by the Taft-Hartley Act. See Labor Board v. American National Insurance Co., 343 U. S. 395, 401-404. I fear that the decision may open the door to an intrusion by the Board into the substantive aspects of the bargaining process which goes beyond anything contemplated by the
The Court considers both the “ballot” and “recognition” clauses to be outside the scope of the mandatory bargaining provisions of
Preliminarily, I must state that I am unable to grasp a concept of “bargaining” which enables one to “propose” a particular point, but not to “insist” on it as a condition to agreement. The right to bargain becomes illusory if one is not free to press a proposal in good faith to the point of insistence. Surely adoption of so inherently vague and fluid a standard is apt to inhibit the entire bargaining process because of a party‘s fear that strenuous argument might shade into forbidden insistence and thereby produce a charge of an unfair labor practice. This watered-down notion of “bargaining” which the Court imports into the Act with reference to matters not within the scope of
I shall discuss my difficulties with the Court‘s opinion in terms of the “ballot” clause. The “recognition” clause is subject in my view to different considerations.
I.
At the start, I question the Court‘s conclusion that the “ballot” clause does not come within the “other terms and conditions of employment” provision of
Nonetheless I shall accept the Court‘s holding that this clause is not a condition of employment, for even though the union would accordingly not be obliged under
The legislative history behind the Wagner and Taft-Hartley Acts persuasively indicates that the Board was never intended to have power to prevent good faith bargaining as to any subject not violative of the provisions or policies of those Acts. As a leading proponent for the Wagner Act explained:
“When the employees have chosen their organization, when they have selected their reрresentatives, all the bill proposes to do is to escort them to the door of their employer and say, ‘Here they are, the legal representatives of your employees.’ What happens behind those doors is not inquired into, and the bill does not seek to inquire into it.” 79 Cong. Rec. 7660.
The Wagner Act did not contain the “good faith” qualification now written into the bargaining requirements of
These early intrusions of the Board into the substantive aspects of the bargaining process became a matter of concern to Congress, and in the 1947 Taft-Hartley amendments to the Wagner Act, Congress took steps to curtail them by writing into
“. . . [T]he present Board has gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make. . . . [Discussion of Board cases.]
“These cases show that unless Congress writes into the law guides for the Board to follow, the Board may attempt to carry this process still further and seek to control more and more the terms of collective-bargaining agreements.” Id., at 19-20.
“. . . [T]he Senate amendment, while it did not prescribe 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 House bill in this regard, since it rejected, as a factor in determining good faith, the test of making a concession and thus prevented the Board from determining the merits of the positions of the parties.” H. R. Conf. Rep. No. 510, 80th Cоng., 1st Sess. 34.
The foregoing history evinces a clear congressional purpose to assure the parties to a proposed collective bargaining agreement the greatest degree of freedom in their negotiations, and to require the Board to remain as aloof as possible from regulation of the bargaining process in its substantive aspects.
The decision of this Court in 1952 in Labor Board v. American National Insurance Co., supra, was fully in accord with this legislative background in holding that the Board lacked power to order an employer to cease bargaining over a particular clause because such bargaining under the Board‘s view, entirely apart from a showing of bad faith, constituted per se an unfair labor practice. There an employer insisted during negotiations upon the union‘s acceptance of a “management functions” clause which would vest exclusively in management during the period of the collective bargaining agreement the right to select, hire, and promote employees, to discharge for
But this Court, in reversing the Board, emphasized that flexibility was an essential characteristic of the process of collective bargaining, and that whether the topics contained in the disputed clause should be allocated exclusively to management or decided jointly by management and union “. . . is an issue for determination across the bargaining table, not by the Board.” 343 U. S., at 409. It is true that the disputed clause related to matters which concededly were “terms and conditions of employment,” but the broad rationale of the Court‘s opinion undercuts an attempt to distinguish the case on any such ground. “Congress provided expressly that the Board should not pass upon the desirability of the substantive terms of labor agreements. . . . The duty to bargain collectively is tо be enforced by application of the good faith bargaining standards of Section 8 (d) to the facts of each case . . . .” 343 U. S., at 408-409.
I therefore cannot escape the view that today‘s decision is deeply inconsistent with legislative intention and this Court‘s precedents. The Act sought to compel management and labor to meet and bargain in good faith as to certain topics. This is the affirmative requirement of
It must not be forgotten that the Act requires bargaining, not agreement, for the obligation to bargain “. . . does not compel either party to agree to a proposal or require the making of a concession.”
The most cursory view of decisions of the Board and the circuit courts under the National Labor Relations Act reveals the unsettled and evolving character of collective bargaining agreements. Provisions which two decades ago might have been thought to be the exclusive concern of labor or management are today commonрlace in such agreements.1 The bargaining process should be left fluid,
As unqualifiedly stated in Labor Board v. American National Insurance Co., supra, p. 357, it is through the “good faith” requirement of
uncontested finding of “good faith” by the Trial Examiner forecloses that issue here.
Of course an employer or union cannot insist upon a clause which would be illegal under the Act‘s provisions, Labor Board v. National Maritime Union, 175 F. 2d 686, or conduct itself so as to contravene specific requirements of the Act. Medo Photo Supply Corp. v. Labor Board, 321 U. S. 678. But here the Court recognizes, as it must, that the clause is lawful under the Act,3 and I think it
clear that the company‘s insistence upon it violated no statutory duty to which it was subject. The fact that the employer here did bargain with the union over the inclusion of the “ballot” clause in the proposed agreement distinguishes this case from the situation involved in the Medo Photo Supply Corp. case, supra, where an employer, without the sanction of a labor agreement contemplating such action, negotiated directly with its employees in referenсe to wages. This Court upheld the finding of an unfair labor practice, observing that the Act “. . . makes it the duty of the employer to bargain collectively with the chosen representatives of his employees. The obligation being exclusive . . . , it exacts ‘the negative duty to treat with no other.‘” 321 U. S., at 683-684. (Italics added.) Bargaining directly with employees “. . . would be subversive of the mode of collective bargaining which the statute has ordained . . . .” 321 U. S., at 684. The important consideration is that the Act does not purport to define the terms of an agreement but simply secures the representative status of the union for purposes of bargaining. The controlling distinction from Medo Photo is that the employer here has not sought to bargain with anyone else over the terms of the agreement being negotiated.
The company‘s insistence on the “recognition” clause, which had the effect of excluding the International Union as a party signatory to agreement and making Local 1239 the sole contracting party on the union side, presents a different problem. In my opinion the company‘s action in this regard did constitute an unfair labor practice since it contravened specific requirements of the Act.
Section 8 (a) (5) makes it an unfair labor practice for an employer not to bargain collectively “with the representatives of his employees.” Such representatives are those who have been chosen by a majority of the employees of the appropriate unit, and they constitute “. . . the exclusive representatives of all the employees in such unit for the purposes of collective bargaining . . . .”
I would affirm the judgment of the Court of Appeals in both cases and require the Board to modify its cease and desist order so as to allow the company to bargain over the “ballot” clause.
Notes
“(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a).
“SEC. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of аll the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . . .” 61 Stat. 140, 141, 143,
“5.4 It is agreed by both the Company and the Union that it is their mutual intent to provide peaceful means for the settlement of all disputes that may arise between them. To assist both parties to carry out this intent in good faith, it is agreed that it is essential that three basic steps be taken with respect to each dispute, in order to permit the greatest opportunity for satisfactory settlement: such steps shall include (1) a clear definition of the issue or issues, officially made known to all employees in the bargaining unit; (2) a reasonable period of good faith bargaining on the issues as defined, after such issues have been made known to all employees in the bargaining unit; and (3) an opportunity for all employees in the bargaining unit to vote, by secret, impartially supervised, written ballot, on whether to accept or reject the Company‘s last offer, and on any subsequent offers made.
“5.5 It is mutually agreed that the definition of issues referred to in Section 5.4 will include the proposals and counter-proposals of each party; that the reasonable period of good faith bargaining referred to in Section 5.4 shall be at least 30 days, with full discussion of the issue taking place during that period; and that the secret written ballot referred to in Section 5.4 shall be supervised by a representative of the United States Mediation and Conciliation Service, or by some other party mutually agreed upon by the Company and the Union. The Company and the Union further agree that such a ballot shall be taken on Company premises, at reasonable and convenient times, and with proper safeguards, similar to those observed in NLRB elections, being taken to insure freedom of choice and a fair election.
“5.6 It is further mutually agreed that if a majority of employees in the bargaining unit reject the Company‘s last offer, and the Company makes a subsequent offer within 72 hours from the time the results of the election are known, another secret, impartially supervised written ballot will be taken within the following 72 hours.
“5.7 It is further mutually agreed that thе question of whether or not this Agreement is to be terminated is one of the issues subject to vote by such a secret, impartially supervised, written ballot.
“5.8 It is further mutually agreed that during the life of this Agreement the Company will not engage in any form of lockout, and the Union will not cause or permit the members of the bargaining unit to take part in any sit-down, stay-in, or slow-down, or any curtailment of work or restriction of production or interference with production, or take part in any strike or stoppage of any kind, or picket the plant, on any matter subject to arbitration, and not in any other matter, until all the bargaining procedure outlined in this Agreement, (including the Grievance Procedure, where applicable, and in all cases the three steрs outlined in this Article), have been completely fulfilled.” 113 N. L. R. B. 1288, 1310–1311. I find no merit in the union‘s position that the “ballot” clause is unlawful under the Act since in derogation of the representative status of the union. The statute and its legislative background undermine any such argument, for the Taft-Hartley Act incorporates in two sections provisions for a pre-strike ballot of employees and earlier drafts of the Act would have made an employee ballot mandatory as a condition precedent to all strikes.
The Hartley bill, as passed by the House, provided that employees should be informed in writing of issues in dispute and that a sеcret ballot of employees should be held on the employer‘s last offer of settlement and on the question of a strike. Only if the employees rejected the last offer and voted to strike could the union authorize a strike. § 2 (11), H. R. 3020, 80th Cong., 1st Sess. The Report on the bill states that “. . . at least the more irresponsible strikes . . . will be greatly reduced by requiring strike votes after each side has had an opportunity to state its position and to urge its fairness upon those called upon to do the striking.” H. R. Rep. No. 245, 80th Cong., 1st Sess. 22.
These mandatory provisions were later discarded, and in their place Congress enacted