Harold Hitz Burton

“ 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. ”

“ 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 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. ”

“ 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 '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. ”

“ 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. ”

“ The 'ballot' clause is not within that definition. It relates 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 National Labor Relations Board v. ”

“ 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 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. ”

“ 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, United Automobile, Aircraft and Agricultural Implement Workers of America and its Local Union No. ”