In collective bargaining negotiations with certain of its
employees under the National Labor Relations Act, as amended, an
employer, in 1953, conditioned any collective bargaining agreement
on the employees' acceptance of two clauses which they were
unwilling to accept: (1) a "ballot" clause calling for a pre-strike
secret vote of such 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 agent and substituted for it the
agent's uncertified local affiliate. The Board held that the
employer's insistence upon either of such clauses as a condition of
its executing the collective bargaining contract as to wages,
hours, and other conditions of employment amounted to a refusal to
bargain, in violation of § 8(a)(5) of the Act, as amended, and it
ordered the employer to cease and desist from such insistence.
the Board's order is sustained. Pp. 356 U. S.
(a) Read together, §§ 8(a)(5) and 8(d) 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"; that duty is limited to
those subjects, and, within that area, neither party is obligated
to yield. As to other matters, each party is free to bargain or not
to bargain, and to agree or not to agree. Pp. 356 U. S.
(b) That the employer has bargained in good faith with respect
to subjects of mandatory bargaining does not license it to refuse
to enter into a collective bargaining contract on the ground that
the contract does not include some proposal which, in turn, is not
Page 356 U. S. 343
subject of mandatory bargaining. Such refusal is, in substance,
a refusal to bargain on the subjects which are within the scope of
mandatory bargaining. P. 356 U. S.
(c) The two clauses in question were lawful, and the employer
had a right to propose them; but it could not lawfully insist upon
them as a condition to its entering a collective bargaining
contract. P. 356 U. S.
(d) The "ballot" clause here involved does not deal with "wages,
hours, and other terms and conditions of employment," and therefore
is not a subject of mandatory bargaining. Pp. 356 U. S.
(e) The "recognition" clause here involved does not deal with
"wages, hours, and other terms and conditions of employment," and
therefore is not a subject of mandatory bargaining. P. 356 U. S.
236 F.2d 898, affirmed in part, reversed in part, and
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
Page 356 U. S. 344
agent, and substituted for it the agent's uncertified local
affiliate. The Board held that the employer's insistence upon
either of such clauses amounted to a refusal to bargain, in
violation of § 8(a)(5) of the National Labor Relations Act, as
amended. [Footnote 1
] The issue
turns on whether either of these clauses comes within the scope of
mandatory collective bargaining as defined in § 8(d) of the Act.
] For the reasons
hereafter stated, we agree with the Board that neither clause comes
within that definition. Therefore, we sustain the Board's order
directing the employer to cease insisting upon either clause as a
condition precedent to accepting any collective 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,
Page 356 U. S. 345
United Automobile, Aircraft and Agricultural Implement Workers
of America" and its "Local Union No. 1239, U.A.W.-C.I.O. . . ."
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
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
The company's counterproposal also contained the "ballot"
clause, quoted in full in the margin. [Footnote 3
] In summary,
Page 356 U. S. 346
this clause provided that, as to all nonarbitrable issues (which
eventually included modification, amendment or termination of the
contract), there would be a 30-day negotiation period, after which,
before the union could strike, there would have to be a secret
ballot taken among all employees in the unit (union and nonunion)
on the company's last offer. In the event a majority of the
employees rejected the company's last offer, the company would have
an opportunity, within 72 hours, of making a new proposal and
having a vote on it prior to any strike. The unions' negotiators
announced they would not accept this clause "under any
From the time that the company first proposed these clauses, the
employees' representatives thus made it clear
Page 356 U. S. 347
that each was wholly unacceptable. The company's representatives
made it equally clear that no agreement would be entered into by it
unless the agreement contained both clauses. In view of this
impasse, there was little further discussion of the clauses,
although the parties continued to bargain as to other matters. The
company submitted a "package" proposal covering economic issues,
but made the offer contingent upon the satisfactory settlement of
"all other issues. . . ." The "package" included both of the
controversial clauses. On March 15, 1953, the unions rejected that
proposal and the membership voted to strike on March 20 unless a
settlement were reached by then. None was reached, and the unions
struck. Negotiations, nevertheless, continued. On April 21, the
unions asked the company whether the latter would withdraw its
demand for the "ballot" and "recognition" clauses if the unions
accepted all other pending requirements of the company. The company
declined, and again insisted upon acceptance of its "package,"
including both clauses. Finally, on May 5, the Local, upon the
recommendation of International, gave in and entered into an
agreement containing both controversial clauses.
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 § 8(a)(5) of the Act.
The trial examiner found no bad faith on either side. However, he
found that the company had made it a condition precedent to its
acceptance of any agreement that the agreement include both the
"ballot" and the "recognition" clauses. For that reason, he
recommended that the company be found guilty of a per se
unfair labor practice in violation of § 8(a)(5). He reasoned that,
because each of the controversial clauses was outside of the scope
of mandatory bargaining as defined in § 8(d) of the Act, the
Page 356 U. S. 348
insistence upon them, against the permissible opposition of the
unions, amounted to a refusal to bargain as to the mandatory
subjects of collective bargaining. The Board, with two members
dissenting, adopted the recommendations of the examiner. 113
N.L.R.B. 1288, 1298. In response to the Board's petition to enforce
its order, the Court of Appeals set aside that portion of the order
relating to the "ballot" clause, but upheld the Board's order as to
the "recognition" clause. 236 F.2d 898.
Because of the importance of the issues, and because of alleged
conflicts among the Courts of Appeals, [Footnote 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
We turn first to the relevant provisions of the statute. Section
8(a)(5) makes it an unfair labor practice for an employer "to
refuse to bargain collectively with the representatives of his
employees. . . ." [Footnote 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
Page 356 U. S. 349
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
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.
] Each would be
enforceable if agreed to by the unions. But it does not follow
that, because the company may proposed these clauses, it can
lawfully insist upon them as a condition to any agreement.
Since it is lawful it insist upon matters within the scope of
mandatory bargaining and unlawful to insist upon matters without,
the issue here is whether either the "valid" or the "recognition"
clause is a subject 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
Page 356 U. S. 350
only to the procedure to be followed by the employees among
themselves before their representative may call a strike or refuse
a final offer. It settles no term or condition of employment -- it
merely calls for an advisory vote of the employees. It is not a
partial "no-strike" clause. A "no-strike" clause prohibits the
employees from striking during the life of the contract. It
regulates the relations between the employer and the employees.
See Labor Board v. American Insurance Co., supra,
343 U. S. 408
n. 22. The "ballot" clause, on the other hand, deals only with
relations between the employees and their unions. It substantially
modifies the collective bargaining system provided for in the
statute by weakening the independence of the "representative"
chosen by the employees. It enables the employer, in effect, to
deal with its employees, rather than with their statutory
representative. Cf. Medo Photo Corp. v. Labor Board,
321 U. S. 678
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 "recognition" clause, in
conflict with the provisions of the Act
Page 356 U. S. 351
requiring an employer to bargain with the representative of his
employees, constituted an unfair labor practice. He agrees with the
views of MR. JUSTICE HARLAN regarding the "ballot" clause. The
subject matter of that clause is not so clearly outside the
reasonable range of industrial bargaining as to establish a refusal
to bargain in good faith, and is not prohibited simply because not
deemed to be within the rather vague scope of the obligatory
provisions of § 8(d).
* Together with No. 78, Wooster Division of Bor-Warner Corp.
v. National Labor Relations Bard,
also on certiorari to the
"Sec. 8. (a) It shall be an unfair labor practice for an
"* * * *"
"(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 all 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, 29 U.S.C. §§158(a)(5), 159(a).
§ 8(d) as set forth in the text of the opinion,
p. 356 U. S.
"5. RESPONSIBILITIES OF THE COMPANY AND THE UNION"
"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
"5.5 It is mutually agreed that the definition of issues
referred to in Section 5.4 will include the proposals and
counterproposals 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 the 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
"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 steps outlined in this
Article), have been completely fulfilled."
113 N.L.R.B. 1288, 1310-1311.
Labor Board v. Darlington Veneer Co.,
236 F.2d 85;
Labor Board v. Corsicana Cotton Mills,
178 F.2d 344.
Cf. Allis-Chalmers Mfg. Co. v. Labor Board,
See note 1
§§ 201(c) and 203(c) of the Act, 61 Stat. 152, 154,
29 U.S.C. §§ 171(c) and 173(c).
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
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
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
Labor Board v. Jones & Laughlin Steel Corp.,
301 U. S. 1
301 U. S. 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
343 U. S.
-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
Page 356 U. S. 352
National Labor Relations Act or suggested in this Court's prior
decisions under it.
The Court considers both the "ballot" and "recognition" clauses
to be outside the scope of the mandatory bargaining provisions of §
8(d) of the Act, which, in connection with §§8(a)(5) and 8(b)(3),
imposes an obligation on an employer and a union to ". . . confer
in good faith with respect to wages, hours, and other terms and
conditions of employment. . . ." From this conclusion it is said to
follow that, although the company was free to "propose" these
clauses and "bargain" over them, it could not "insist" on their
inclusion in the collective bargaining contract as the price of
agreement, and that such insistence was a per se
labor practice because it was tantamount to a refusal to bargain on
"mandatory" subjects. At the same time, the Court accepts the Trial
Examiner's unchallenged finding that the company had bargained in
"good faith," both with reference to these clauses and all other
subjects, and holds that the clauses are lawful in themselves, and
" . . . would be enforceable if agreed to by the unions."
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 § 8(d) appears as foreign to the
labor field as it would be to the commercial world. To me, all of
this adds up to saying that the Act limits effective
Page 356 U. S. 353
"bargaining" to subjects within the three fields referred to in
§8(d), that is, "wages, hours, and other terms and conditions of
employment," even though the Court expressly disclaims so
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.
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 § 8(d). The phrase is
inherently vague, and, prior to this decision, has been accorded by
the Board and courts an expansive, rather than a grudging,
interpretation. Many matters which might have been thought to be
the sole concern of management are now dealt with as compulsory
bargaining topics. E.g. Labor Board v. J. H. Allison &
165 F.2d 766, 3 A.L.R.2d 990 (merit increases). And since
a "no-strike" clause is something about which an employer can
concededly bargain to the point of insistence, see Shell Oil
77 N.L.R.B. 1306, I find it difficult to understand, even
under the Court's analysis of this problem, why the "ballot" clause
should not be considered within the area of bargaining described in
§ 8(d). It affects the employer-employee relationship in much the
same way, in that it may determine the timing of strikes or even
whether a strike will occur by requiring a vote to ascertain the
employees' sentiment prior to the union's decision.
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 § 8(d) to bargain over
it, in my view, it does not follow that the company was
from insisting on its inclusion in the
collective bargaining agreement. In other words,
Page 356 U. S. 354
I think the clause was a permissible, even if not an obligatory,
subject of good faith bargaining.
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 representatives, 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 §8(d), although
this lack was remedied by early judicial interpretation which
implied from former § 8(5), 49 Stat. 453, the requirement that an
employer bargain in good faith. E.g., Labor Board v. Griswold
106 F.2d 713. But, apart from this essential check
on the bargaining process, the Board possessed no statutory
authority to regulate the substantive scope of the bargaining
process insofar as lawful demands of the parties were concerned.
Nevertheless, the Board engaged occasionally in the practice of
determining that certain contract terms urged by unions were
conditions of employment, and thereby imposing on employers an
affirmative duty to bargain as to such terms rather than insist
upon their unilateral determination, e.g., Singer Mfg.
24 N.L.R.B. 444, or, conversely, of determining that
certain clauses were not conditions of employment, and thereby
prohibiting an employer from bargaining over
Page 356 U. S. 355
them. E.g., Jasper Blackburn Products Corp.,
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 § 8(d) the particular
fields as to which it considered bargaining should be required. The
bill originally passed by the House of Representatives contained a
definition of the term "collective bargaining" which restricted the
area of compulsory negotiation to specified subjects, such as
wages, hours, discharge or seniority provisions, safety conditions,
and vacations. § 2(11), H.R. 3020, 80th Cong., 1st Sess. The House
Report on this bill, submitted by its sponsor, noted that the
suggested provision would require unions and employers to bargain
collectively as to specified topics and would limit that area ". .
. to matters of interest to the employer and to the individual man
at work." H.R.Rep. No. 245, 80th Cong., 1st Sess. 7. In explaining
the need for specifying the topics over which bargaining was
mandatory, and thereby establishing "objective standards" for the
Board to follow, the Report continues:
". . . [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."
Page 356 U. S. 356
The Senate amendment to the House bill recast these provisions
to read in substantially the form of present § 8(d). That is, the
Senate provisions contained no elaboration of compulsory bargaining
topics, but used the general phrase: "wages, hours, and other terms
and conditions of employment." In commenting on these changes, the
managers of the House Conference appended a statement to the House
Conference Report which observed:
". . . [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 Cong., 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
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
Page 356 U. S. 357
cause and maintain discipline, and to determine work schedules.
The arguments advanced by the Board in that case in support of its
conclusion that the employer had committed an unfair labor practice
through its insistence on this clause were strikingly similar to
those before us here. It was said that such a clause was "in
derogation of" statutory rights to bargain given to the employees,
and that insistence upon it was tantamount to refusal to bargain as
to all statutory subjects covered by it.
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 343 U. S. 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 to be enforced by application
of the good faith bargaining standards of Section 8(d) to the facts
of each case. . . ."
343 U.S. at 343 U. S.
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 § 8(d) which the Board is specifically
empowered to enforce, but I see no warrant for inferring from it
any power in the Board to prohibit bargaining in good faith as to
lawful matters not included in § 8(d). The Court reasons
Page 356 U. S. 358
that such conduct on the part of the employer, when carried to
the point of insistence, is in substance equivalent to a refusal to
bargain as to the statutory subjects, but I cannot understand how
this can be said over the Trial Examiner's unequivocal finding that
the employer did in fact bargain in "good faith" not only over the
disputed clauses, but also over the statutory subjects.
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." § 8(d). Here, the employer concededly bargained, but
simply refused to agree until the union would accept what the Court
holds would have been a lawful contract provision. It may be that
an employer or union, by adamant insistence in good faith upon a
provision which is not a statutory subject under § 8(d), does, in
fact, require the other party to bargain over it. But this effect
is traceable to the economic power of the employer or union in the
circumstances of a given situation, and should not affect our
construction of the Act. If one thing is clear, it is that the
Board was not viewed by Congress as an agency which should exercise
its powers to aid a party to collective bargaining which was in an
economically disadvantageous position.
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 commonplace in
such agreements. [Footnote 2/1
bargaining process should be left fluid,
Page 356 U. S. 359
free from intervention of the Board leading to premature
crystalization of labor agreements into any one pattern of contract
provisions, so that these agreements can be adapted through
collective bargaining to the changing needs of our society and to
the changing concepts of the responsibilities of labor and
management. What the Court does today may impede this evolutionary
process. Under the facts of this case, an employer is precluded
from attempting to limit the likelihood of a strike. But, by the
same token, it would seem to follow that unions which bargain in
good faith would be precluded from insisting upon contract clauses
which might not be deemed statutory subjects within § 8(d).
As unqualifiedly stated in Labor Board v. American National
Insurance Co., supra,
p. 356 U. S. 357
it is through the "good faith" requirement of § 8(d) that the Board
is to enforce the bargaining provisions of § 8. A determination
that a party bargained as to statutory or nonstatutory subjects in
good or bad faith must depend upon an evaluation of the total
circumstances surrounding any given situation. I do not deny that
there may be instances where unyielding insistence on a particular
item may be a relevant consideration in the over-all picture in
determining "good faith," for the demands of a party might, in the
context of a particular industry, be so extreme as to constitute
some evidence of an unwillingness to bargain. But no such situation
is presented in this instance by the "ballot" clause. "No-strike"
clauses, and other provisions analogous to the "ballot" clause
limiting the right to strike, are hardly novel to labor agreements.
] And, in any event,
Page 356 U. S. 360
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
here, the Court recognizes, as it must, that the clause is lawful
under the Act, [Footnote 2/3
] and I
Page 356 U. S. 361
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.
where an employer, without the sanction of a labor
agreement contemplating such action, negotiated directly with its
employees in reference 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 321 U. S.
-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
321 U. S. 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.
Page 356 U. S. 362
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. .
. ." § 9(a). The Board under § 9(c) is authorized to direct a
representation election and certify its results. The employer's
duty to bargain with the representatives includes not merely the
obligation to confer in good faith, but also " . . . the execution
of a written contract incorporating any agreement reached if
requested . . . " by the employees' representatives. §8(d). I think
it hardly debatable that this language must be read to require the
company, if so requested, to sign any agreement reached with the
same representative with which it is required to bargain. By
conditioning agreement upon a change in signatory from the
certified exclusive bargaining representative, the company here in
effect violated this duty.
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.
A variety of topics have been held to be subjects over which an
employer must bargain. E.g., Inland Steel Co. v. Labor
170 F.2d 247 (pension and retirement plans); Union
76 N.L.R.B. 322 (bonuses).
It was stipulated by the parties during hearings on the charge
of unfair labor practices that collective bargaining agreements
between several unions and companies have incorporated clauses
requiring, in one form or another, secret ballots of employees
before the union is able to call a strike. The clauses varied in
defining employees to include only union members or all those
working in the unit represented by the union, and gave varying
effect to the employee vote. The clause here involved does not
purport to make the vote of the employees binding on the union.
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
The Hartley bill, as passed by the House, provided that
employees should be informed in writing of issues in dispute, and
that a secret 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 § 203(c) in Title II of the Taft-Hartley
Act, 61 Stat. 154, 29 U.S.C. § 173(c), under which the Director of
the Federal Mediation and Conciliation Service is, in certain
situations, to seek to induce the parties in dispute to agree
voluntarily to an employee vote on the employer's last offer prior
to a strike. In commenting on this change, the managers of the
House Conference stated:
"While the vote on the employer's last offer by secret ballot is
not compulsory as it was in the House bill, it is expected that
this procedure will be extensively used, and that it will have the
effect of preventing many strikes which might otherwise take
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 63. The inescapable
conclusion in view of this legislative history is that Congress,
instead of making the pre-strike ballot mandatory, intended to
leave such ballot clauses to the decision of the parties to a labor
agreement to be arrived at through the normal collective bargaining
§ 201(c) of Title II, 61 Stat. 152, 29 U.S.C.
§ 171(c). There is a further provision for a pre-strike ballot in §
209(b) of Title II, 61 Stat. 156, 29 U.S.C. § 179(b), which relates
to disputes which imperil national health or safety.