Bargaining

“ 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. ”

“ 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 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. ”

“ The question whether the employer may discharge one group of workers and substitute another for them is closely analogous to many other situations within the traditional framework of collective bargaining. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 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." ”

“ The majority seems to suggest that an employer could be found guilty of bad faith if it used a 'management functions' clause to close off bargaining about all topics of discussion. Whether the employer closes off all bargaining or, as in this case, only a certain area of bargaining, he has refused to bargain as to whatever he has closed off, and any discussion of his good faith is pointless. ”

“ 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. ”

“ 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 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. ”

“ One of the most experienced students of labor law has warned against the dangers of such an approach:
'The ease with which one can show that collective bargaining agreements have characteristics which preclude the application of some of the familiar principles of contracts and agency creates the danger that those who are knowledgeable about collective bargaining will demand that we discard all the precepts of contract law and create a new law of collective bargaining agreements. ”

“ Since collective bargaining inevitably involves and requires discussion of the impact of the wage agreement reached with a particular employer or group of employers upon competing employers, the effect of the Court's decision will be to bar a basic element of collective bargaining from the conference room. ”

“ The workingmen found out, a good while ago, that the only possible way of preserving and enforcing their right of contract in the sale of their labor was by uniting together and insisting on collective bargaining with their employers. ”

“ 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. ”

“ 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. ”

“ 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? ”

“ There have been many cases in which unions have threatened men or their wives. They have called on them on the telephone and insisted that they sign bargaining cards. They have said to them, 'Sooner or later we are going to organize this plant with a closed shop, and you will be out.' * * *.' 93 Cong.Rec. ”

“ It is obvious that any labor organization, even when serving as an exclusive bargaining representative, can negotiate, speak, and act only through individuals. All collective bargaining is conducted by individuals who represent labor and management. Many limitations or prohibitions upon labor organization action can be effective only if there are corresponding limitations or prohibitions on the individuals who act for the labor organization. ”

“ A collective bargaining agreement must provide procedures "for the settlement of grievances," § 7121 (a) (1) , which are defined as "complaint [s] . . . concerning . . . any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment," § 7103 (a) (9) (C) (ii) ; and the agreement must "provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration" which may be invoked by either party. ”

“ 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. ”

“ 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? ”

“ What has been said indicates clearly that its provisions are aimed at the settlement of industrial disputes by the promotion of collective bargaining between employers and the authorized representative of their employees, and by mediation and arbitration when such bargaining does not result in agreement. ”

“ The 'carrier would be free * * * to bargain with each employee for whatever terms its economic power, pitted against his own, might induce him to accept." 'We earnestly urge upon the Court * * * that the collective bargaining process has always been viewed by the participants thereto as including the settlement of grievances and, more particularly, that employers and unions have always considered that they had the power to dispose of grievances on a large scale. ”

“ 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. ”

“ 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. ”

“ While the negotiations of petitioner with the employees resulted in a wage increase and their abandonment of the union, the negotiations were carried on by certain of the employees purporting to act in behalf of and to represent a majority. Nothing appears which would suggest, as the concurring judge thought, that any of the employees during or as a result of the negotiations had by agreement or otherwise foreclosed themselves from continuing such bargaining through the same or any other representatives whom they might choose. ”

“ We believe in the effort of employer and employees to sit down around a table and, meeting thus, face to face, and having a better understanding of each other's position in regard to conditions of labor, to hours, standards, etc., and after reaching an amicable understanding to enter into an agreement for collective bargaining that is to cover wages, hours of labor, conditions of employment, etc. ”

“ For, whereas the theory assumes the parties to be equal in their power to determine the terms of the contract, it is a matter of common knowledge that employers and labourers occupy unequal bargaining positions. ”

“ 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. ”

“ Hence effective collective bargaining has been generally conceded to include the right of the representatives of the unit to be consulted and to bargain about the exceptional as well as the routine rates, rules, and working conditions. Collective bargains need not and do not always settle or embrace every exception. ”

“ The institution of negotiations for collective bargaining does not change the authority of the carrier. The prohibitions of section 6 against change of wages or conditions pending bargaining and those of section 2, Seventh, are aimed at preventing changes in conditions previously fixed by collective bargaining agreements. ”

“ 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. ”

“ Mediaeval regulation acted not only in restriction of free competition in the labour market to the pecuniary loss of the employers, but also in restriction of free contract to the loss of the employees, who could only obtain the best terms for their labour by collective instead of individual bargaining. ”

“ Modern opinion has found it necessary greatly to refine upon these broad generalisations of the truth, and the first clear division that we make to-day in questions of wages, is that between a healthy and unhealthy condition of bargaining. ”

“ A description of the statement is found in Brief for Respondent, p. 2 (No. 19, O.T.1965) .↑ Suits to enforce collective bargaining agreements have been held to arise under 29 U.S.C. § 185 (a) (1964 ed.) ”

“ Disputes continually arise between employers and employees; strikes have occurred without number, many of them attended by violence, the destruction of property and lamentable loss of life. Arbitration is the best and most sensible cure for the grave peril which at times has seemed to threaten the safety of our institutions, and when the employer and those dependent upon him for the support of themselves and families meet in a friendly spirit and discuss their differences, they are certain to reach an amicable agreement. ”

“ The term 'labor dispute' includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee. ”