William J. Brennan, Jr.

“ Unilateral action by an employer without prior discussion with the union does amount to a refusal to negotiate about the affected conditions of employment under negotiation, and must of necessity obstruct bargaining, contrary to the congressional policy. It will often disclose an unwillingness to agree with the union. It will rarely be justified by any reason of substance. It follows that the Board may hold such unilateral action to be an unfair labor practice in violation of § 8 (a) (5) , without also finding the employer guilty of over-all subjective bad faith. ”

“ National Labor Relations Board v. Katz
Argued: March 22, 1962. --- Decided: May 21, 1962
It is a violation of the duty 'to bargain collectively' imposed by § 8 (a) (5) of the National Labor Relations Act [1] for an employer, without first consulting a union with which it is carrying on bona fide contract negotiations, to institute changes regarding matters which are subjects of mandatory bargaining under § 8 (d) and which are in fact under discussion? ”

“ The duty 'to bargain collectively' enjoined by § 8 (a) (5) is defined by § 8 (d) as the duty to 'meet * * * and confer in good faith with respect to wages, hours, and other terms and conditions of employment.' Clearly, the duty thus defined may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused even to negotiate in fact-'to meet * * * and confer'-about any of the mandatory subjects. ”