William J. Brennan, Jr.

“ The scope of § 8 (b) (3) and the limitations on Board power which were the design of § 8 (d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. ”

“ Major revisions of the basic statute were enacted in 1947 and 1959. To be sure, then, Congress might be of opinion that greater stress should be put on the role of 'pure' negotiation in settling labor disputes, to the extent of eliminating more and more economic weapons from the parties' grasp, and perhaps it might start with the ones involved here; or in consideration of the alternatives, it might shrink from such an undertaking. But Congress' policy has not yet moved to this point, and with only § 8 (b) (3) to lean on, we do not see how the Board can do so on its own. ”

“ The question whether union conduct could be treated, analogously to employer conduct, as unilaterally establishing working conditions, in a manner violative of the duty to bargain collectively, might be raised for example by the case of a union, anxious to secure a reduction of the working day from eight to seven hours, which instructed its members, during the negotiation process, to quit work an hour early daily. ”

“ There is little logic in assuming that because Congress was willing to allow employers to use self-help against union tactics, if they were willing to face the economic consequences of its use, it also impliedly declared these tactics unlawful as a matter of federal law. Our problem remains that of construing § 8 (b) (3) 's terms, and we do not see how the availability of self-help to the employer has anything to do with the matter.
(b) The Board contends that because an orthodox 'total' strike is 'traditional' its use must be taken as being consistent with § 8 (b) (3) ”

“ As the relation matures, Lilliputian bonds control the opposing concentrations of economic power; they lack legal sanctions but are nonetheless effective to contain the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion.' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. ”

“ The same may be said for the Board's contention that these activities, as opposed to a 'normal' strike, are inconsistent with § 8 (b) (3) because they offer maximum pressure on the employer at minimum economic cost to the union. One may doubt whether this was so here, [26] but the matter does not turn on that. Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them. ”

“ And specifically, we do not mean to question in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. It is quite another matter, however, to say that the Board has been afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful. Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions. ”

“ In January 1956 Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract were agreed upon on July 17, 1956. [2] It is not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract. ”

“ Discussion conducted under that standard of good faith may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take. ”

“ Respondent here urges that the evidence establishes quite the opposite conclusion.↑ 'If relative power be the proper test, surely one who believed the unions to be weak would come to the opposite conclusion. Is it an abuse of 'bargaining powers' to threaten a strike at a department store two weeks before Easter instead of engaging in further discussion, postponing the strike until after Easter when the employer will feel it less severely? ”

“ The system has not reached the ideal of the philosophic notion that perfect understanding among people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. ”

“ The principal duties of a Prudential district agent are to collect premiums and to solicit new business in an assigned locality known in the trade as his 'debit.' He has no fixed or regular working hours except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. ”

“ Furthermore, the procedure of holding governmentally supervised elections to determine the choice of representatives of employees becomes of little worth if after the election its results are for all practical purposes ignored. Experience has proved that neither obedience to law nor respect for law is encouraged by holding forth a right unaccompanied by fulfillment. ”

“ Benedict Coal Corp., 6 Cir., 259 F.2d 346, 351, affirmed this day by an equally divided Court, 361 U.S. 459, 80 S.Ct. 489.↑ Said the Board: 'Consequently, whether or not an inference of bad faith is permissible where a union engages in a protected strike to enforce its demands, there is nothing unreasonable in drawing such an inference where, as here, the union's conduct is not sanctioned by the Act.' 119 N.L.R.B., at 771-772.↑ Our holding on this ground makes it unnecessary for us to pass on the other grounds for affirmance of the Court of Appeals' judgment urged by respondent. ”

“ The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N.L.R.B. 743, had declared similar union activities to constitute a prohibited refusal to bargain; but since the Board's order in that case was set aside by the Court of Appeals for the District of Columbia Circuit, Textile Workers Union v. ”