Bargaining power

“ The object of the National Labor Relations Act was to bring about agreements by collective bargaining, not to add fuel to the fire by encouraging libel suits with their inevitable irritations and disputeprolonging tendencies. Yet it is difficult to conceive of an element more certain to create irritations guaranteed to prevent fruitful collective bargaining discussions than the threat or presence of a large monetary judgment gained in a libel suit generating anger and a desire for vengeance on the part of one or the other of the bargaining parties. ”

“ Today's decision, while giving the worker an ephemeral right to sue his union for breach of its duty of fair representation, creates insurmountable obstacles to block his far more valuable right to sue his employer for breach of the collective bargaining agreement. ”

“ Individual claims lie at the heart of the grievance and arbitration machinery, are to a large degree inevitably intertwined with union interests and many times precipitate grave questions concerning the interpretation and enforceability of the collective bargaining contract on which they are based. ”

“ We relegated the courts to their narrow field, leaving arbitration to the new expertise. [5]
An arbiter is not of course free 'to dispense his own brand of industrial justice' but is admonished 'to reach a fair solution of a problem' within the letter and spirit of the collective bargaining agreement. ”

“ This is so because by the employer's intelligent exercise of such a choice under the impact of a concrete situation when judgment is most responsible, and not merely at the time a collective bargaining agreement is drawn up covering a multitude of subjects, often in a general and abstract manner, Congress may rightly be assumed to have hoped that the scope of industrial conflict and the economic effects of the primary dispute might be effectively limited. ”

“ The occasion is so appropriate for collective bargaining that it is difficult to infer an intent to cut off the opportunity for bargaining and yet be consistent with the purposes of the National Labor Relations Act. ”

“ Such joint councils are among the most satisfactory instruments yet devised for the conduct of collective bargaining. But will collective bargaining keep such an interdependent industrial society as our own at work peacefully? Can the philosophy of compromise be developed to that extent? ”

“ To permit individual employers to refuse to bargain collectively until some or all of their competitors had done so clearly would lead to frustration of the fundamental purpose of the Act to encourage the practice of collective bargaining.' 37 N.L.R.B., at 341. ”

“ It is rather strange for this Court to import its novel ideas on libel suits into the area of labor controversies where the effect is bound to abridge the freedom of the parties to discuss their disputes and to settle them through peaceful negotiations. It is strange because one of the hopes of those responsible for modern collective bargaining was that peaceful settlements among the parties working by themselves under the aegis of federal law would be substituted for the old-time labor feuds too frequently accompanied by bitter strife and wasteful, dangerous conflicts verging on private war. ”

“ One of our difficulties in avoiding labor strife arises from a lack of order in the collective bargaining process. The parties often do not have a dear understanding of their responsibility for settling disputes through their own negotiations. We constantly see instances where labor or management resorts to economic force without exhausting the possibilities for agreement through the bargaining process. ”

“ Unlawful violence, whether to person or livelihood, to secure acceptance of an offer, is as much a withdrawal of included statutory subjects from bargaining as the 'take it or leave it' attitude which the statute clearly condemns. ”

“ Is it unfair for an employer to stall negotiations through a busy season or while he is building up inventory so that he can stand a strike better than the workers?' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1440-1441.↑ There is a suggestion in the Board's opinion that it regarded the union tactics as a unilateral setting of the terms and conditions of employment and hence also on this basis violative of § 8 (b) (3) , just as an employer's unilateral setting of employment terms during collective bargaining may amount to a breach of its duty to bargain collectively. ”

“ Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. ”

“ Rather, the union in fact submitted to the arbitration procedure established by the collective bargaining agreement but, if the allegations are believed, totally frustrated the process by refusing to abide by the arbitrator's decision. Such a 'heads I win, tails you lose,' attitude plays fast and loose with the desire of Congress to encourage the peaceful and orderly settlement of labor disputes. ”

“ But do you always give him work when he wants it? Do you pay him what he asks, or do you not fix the rate of wage? You must realize the fact that collective bargaining has superseded dealing with the individual. ”

“ The collective-bargaining agreements between the parties provide for voluntary grievance procedures and reserve the parties' respective rights to resort to economic weapons when the procedures fail to resolve a dispute. The collective-bargaining agreements are silent as to judicial remedies. ”

“ We further expressed concern that in collective-bargaining arbitration "the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit." ”

“ Arbitration by a court, which must make a decision but cannot enforce it—by a court which confirms the workmen's tenure of place while action is pending and declares it forfeited if the men reject its decree,—such arbitration would secure a closer [Pg 502] conformity to the normal standard of wages than any other action. It would establish rates which give the workmen the benefit of every legitimate advantage from collective bargaining. ”

“ Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of 'take it or leave it'; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. ”

“ To be sure, the agreement provides that 'matters which are strictly a function of management shall not be subject to arbitration.' But it goes on to say that if 'differences' arise or if 'any local trouble of any kind' arises, the grievance procedure shall be applicable.
Collective bargaining agreements regulate or restrict the exercise of management functions; they do not oust management from the performance of them. Management hires and fires, pays and promotes, supervises and plans. ”

“ President, the minority views picture a dark future for a party who wishes to enforce an agreement with a labor union. Actually the picture given is quite misleading. For instance, it says that an employer or even the Government has no Federal right of action to enforce a collective bargaining agreement. ”

“ There could be no more obvious way of interfering with these rights of employees than by grants of wage increases upon the understanding that they would leave the union in return. The action of employees with respect to the choice of their bargaining agents may be induced by favors bestowed by the employer as well as by his threats or domination. ”

“ It should also be noted that whatever may be a union's ad hoc benefit in a particular case, the meaning of collective bargaining for labor does not remotely derive from reliance on the sanction of litigation in the courts. ”

“ Collective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract. ”

“ It accepts collective bargaining, but sets no time limits to its agreements and holds no contract sacred—in fact, it abhors the contract with a master—and stands ready to disregard all contracts when an observance of the same would force it into the attitude of a strike breaker, or compel it to give countenance to organized scabbery. ”

“ When one runs down the detailed list of national and international problems on which the AFL-CIO speaks, it seems rather naive for a court to conclude-as did the trial court-that the union expenditures were 'not reasonably necessary to collective bargaining or to maintaining the existence and position of said union defendants as effective bargaining agents.' The notion that economic and political concerns are separable is pre-Victorian. ”

“ 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? ”

“ There is no reason for jettisoning principles of fairness and justice that are as relevant to the law's attitude in the enforcement of collective bargaining agreements as they are to contracts dealing with other affairs, even giving due regard to the circumstances of industrial life and to the libretto that this furnishes in construing collective bargaining agreements. ”

“ When the risks become very dangerous, reasonable men do not fight except on grave provocation or for some essential purpose. Such would be the result in any industry, both the employers and laborers of which were completely organized. Collective bargaining would, under such circumstances, assume a serious character; and no open fight would ensue except under exceptional conditions and in the event of grave and essential differences of opinion. Moreover, the state could make them still less likely to happen by a policy of discreet supervision. ”

“ But as yet, not all of us have learned what it means to bargain freely and fairly. Nor have all of us learned to carry the mutual responsibilities that accompany the right to bargain. There have been abuses and harmful practices which limit the effectiveness of our system of collective bargaining. Furthermore, we have lacked sufficient governmental machinery to aid labor and management in resolving their differences.
Certain labor-management problems need attention at once and certain others, by reason of their complexity, need exhaustive investigation and study. ”

“ But in determining the state of mind of a party to collective bargaining negotiations the Board does not deal in terms of abstract 'economic pressure.' It must proceed in terms of specific conduct which it weighs as a more or less reliable manifestation of the state of mind with which bargaining is conducted. No conduct in the complex context of bargaining for a labor agreement can profitably be reduced to such an abstraction as 'economic pressure.' An exertion of 'economic pressure' may at the same time be part of a concerted effort to evade or disrupt a normal course of negotiations. ”

“ 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. ”

“ The principle that 'a bargaining relationship once rightly established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,' is well-established. [11] Equally clear is the proposition that the granting of a unilateral wage increase or other concession by an employer to his employees while the designated union is attempting to bargain concerning the same subject matter, constitutes a violation of the employer's duty to bargain with the union. ”

“ No time is a good time needlessly to sap the principle of collective bargaining or to disturb harmonious and fruitful relations between employers and employees brought about by collective bargaining. The judgment of Congress upon another doctrinaire construction by this Court of the Fair Labor Standards Act ought to admonish against an application of that Act in disregard of industrial realities. ”

“ Collective bargaining problems have not ended as a matter of course in Labor Board or court proceedings, or in governmental seizure or other intervention. While the negotiations have not always been easy and many difficult issues have arisen, the procedure for solving them has gone from the earlier jungle-type economic warfare to the reasoned and rational process of the conference table. ”

“ A legal cause of action in the federal courts, which involves the point, may be slow in developing. Meanwhile, collective bargaining of the kind alleged to be permitted or secured by the National Labor Relations Act may be disastrously affected. ”

“ In a survey of the forces making for self-government in industry, the Conference considered that definite encouragement must be given to the principles of collective bargaining, of conciliation, of arbitration, but that such forces could not develop in an atmosphere of legal repression. ”