employer to bargain in order to "settle the strike." The employer refused. Thereupon, the employees abandoned the strike and offered unconditionally to return to work. The union then sought to bargain with respect to the grievances of certain employees who allegedly had been discriminatorily treated by the employer which conduct led directly to the strike. The employer again refused. In concluding that the employer had violated the act by rejecting the union's second, but not its first request to bargain, the Board stated: Under the holding in the Reed case [76 N. L. R. B. 548], we agree with the respondent that it was then [during the period of the strike] under no obligation to bargain with the Union concerning the settlement or cause of the wrongful strike. However, this does not mean that wrongful strike action by employees extinguished permanently the employer's statutory obligation to bargain, but rather that such obligation to bargain, at least with respect to the settlement or causes of the strike itself, was merely suspended during the life of the wrongful strike. In our opinion, the policies of the Act compel the conclusion that the obligation to bargain may again become operative as soon as the employees correct their wrongful action. This doctrine was also under consideration in Matter of United Elastic Corporation.62 In this case certain employees struck in protest against an alleged accumulation of unsettled grievances, and a general strike developed immediately. The contract in effect at the time contained two relevant clauses. The first clause, among other things, bound the union not to "initiate" or "authorize" any strike, and the second, in part, permitted discharge for striking and for failure to abide by the agreement. It was contended that at its inception the strike had been neither "initiated" nor "authorized" by the union. The majority interpreted the two clauses as a general prohibition against any type of strike and therefore found the strike action, although unauthorized, a breach of the agreement by the union. It also held that post-strike conduct of the union further violated its contractual obligation to "loyally or in good faith endeavor to secure a return of the strikers to work." Accordingly, the majority found that the employer's refusal to bargain for any purpose during the course of the wrongful strike, and his cancellation of the contract were not violative of the act. Member Houston, dissenting, was of the view that the contract did not proscribe unauthorized strikes and further, on the facts, that the union "was attempting in good faith to fulfill" its obligation under the contract to secure the return of the strikers. He therefore would have found that the employer's conduct was violative of section 8 (a) (5) of the act. 63 In Matter of Boeing Airplane Company, the parties entered into a "no-strike" contract on March 16, 1946, which was to continue for a 62 84 N. L. R. B., No. 87. 63 80 N. L. R. B., No. 447 reversed, 174 F. 2d 988 (C. A., D. C.). term of 1 year and "thereafter until a new agreement had been reached." The parties engaged in unsuccessful negotiations for a new contract from January 1947 to April 1948, when, because of an impasse, a strike ensued. The employer contended that the strike was violative of the 1946 "no-strike" agreement and therefore relieved him of his obligation to bargain. In rejecting this contention, the Board did not construe the duration clause of the 1946 agreement as compelling the union to forego strike action for an indeterminate period. The Board held that the 1946 agreement "bound the parties to continue observance of its terms, including the no-strike clause, for a reasonable period on and after March 16, 1947"; that, in view of the 14 months of bargaining which culminated in a deadlock on the terms of a new agreement, a reasonable period for adherence to the 1946 contract had elapsed by April 1948; and thereafter the 1946 contract was terminable at will; and that in view of a prior notice of termination by the union, the strike "terminated rather than breached, the 1946 contract." If there is a duly designated bargaining representative of the employees, an employer also violates his obligation to bargain by unilaterally changing current terms and conditions of employment without prior consultation with that representative. Examples of such unlawful unilateral action were the grant of wage increases; 65 the institution of a pension plan; " and the down-grading of employees and the introduction of changes in their work week.67 In one case,68 the Board found that the employer's failure to notify the bargaining representative of a unilateral change in working hours was "a technical error, and, in any event, was cured by the Respondent's subsequent bargaining with the Union on the issue." And, in the United Elastic case, supra, the Board held that unilateral action was sanctioned during a period when the employer's obligation to bargain was suspended by reason of wrongful strike action. It is not enough to fulfill the obligation to bargain that an employer meet and negotiate with a union. The obligation of the act requires that bargaining shall be conducted in complete good faith. Although the act does not compel agreement, it does require the parties to enter into negotiations with a sincere desire to reach and sign an agreement. Whether or not there has been compliance with this requirement in any given case depends, of course, upon the particular 14 Matter of Tower Hosiery Mills, Inc., 81 N. L. R. B., No. 120. 67 Matter of Bergen Point Iron Works, 79 N. L. R. B. 1073. * Matter of Massey Gin and Machine Works, Inc., 78 N. L. R. B. 189. See also: Matter of Union Screw Products, 78 N. L. R. B. 1107; Matter of Bergen Point Iron Works, supra, where the employer refused to bargain with the union as to the matter on which it had unilaterally acted. facts involved. In Matter of Tower Hosiery Mills, Inc., where the employer was found to have bargained in bad faith, the Board stated: The respondent, it is true, went through many of the motions of collective bargaining. It met on numerous occasions with the union, conferred at great length regarding contract proposals, made concessions on minor issues, and discussed and adjusted several grievances. These surface indicia of bargaining, however, were nullified by the respondent's manifest determination to deprive the union of any voice in determining such major issues as wages, rates, and working conditions. Such conduct on the part of the respondent demonstrates that its participation in discussions with the union was not intended to lead to the consummation of an agreement with the union, but merely to preserve the appearance of bargaining.70 71 Other examples of conduct indicating employer bad faith during bargaining were: the introduction of new and extreme demands after 7 months of negotiations; " insistence, during the early stages of negotiations, that recognition of the union certified as representative be limited to its members only; 72 refusal to regard its own proposal as a firm offer; 73 repudiation of oral agreements reached during negotiations and the shifting of position as to matters under negotiation; refusal to submit a complete counterproposal; 75 refusal to furnish the union with information necessary for bargaining on wages; 76 insistence on final agreement on wages as a condition to bargaining on other matters; 77 insistence that the union furnish a surety bond; 78 initiation of a petition among employees to disavow the bargaining representative and the establishment of a rival organization to avoid bargaining.79 74 The following types of conduct were held not to be indicative of bad faith bargaining: filing of a representation petition after an impasse had been reached as to the inclusion of watchmen in the bargaining unit; 80 refusal, after bargaining on the issue, to grant any form of union security; 81 failure to make a written counterproposal, in the nature of a concession; 82 a proposal for indemnification by the union which was withdrawn after a counterproposal of union; 83 69 81 N. L. R. B., No. 120. 70 See also, Matter of Franklin Hosiery Mills, Inc., 83 N. L. R. B., No. 37. Cf. Matter of Alabama Marble Company, 83 N. L. R. B., No. 151, where it was held that the employer's demand for reservation of right to change wages was not "beyond the negotiation stage," and hence did not amount to bad faith. 71 Matter of Tower Hosiery Mills, Inc., supra. 72 Matter of Cookeville Shirt Company, 79 N. L. R. B. 667. 78 Matter of Hillsboro Cotton Mills, 80 N. L. R. B., No. 172. 74 Matter of Franklin Hosiery Mills, Inc., supra. 75 Matter of Vanette Hosiery Mills, 80 N. L. R. B., No. 173. 76 Matter of Dixie Manufacturing Company, Inc., 79 N. L. R. B. 645. 17 Matter of Vanette Hosiery Mills, supra. 78 Matter of Amory Garment Co., 80 N. L. R. B., No. 41; Matter of Cookeville Shirt Company, supra. 19 Matter of Superior Engraving Company, 83 N. L. R. B., No. 29. 80 Matter of Alabama Marble Company, 83 N. L. R. B., No. 151. 81 Matter of Burns Brick Company, 80 N. L. R. B., No. 85. 82 Matter of Adler Metal Products Corp., 79 N. L. R. B. 219. 83 Matter of Tower Hosiery Mills, supra. 986 85 92 87 and a refusal, because of economic pressure by a rival union, to grant a closed shop to one union, although willing to do so for other unions.84 In defining the obligation to "bargain collectively," as indicated in part above, the statute describes the subject matter of the obligation as including "wages, hours, and other terms and conditions of employment." As in the preceding year, the Board has had occasion to interpret the scope of this phrase. The Board has held that group insurance plans as well as pension programs fall within the definition of "wages,' as do "bonus payments.' "Working rules" were found to be encompassed within the meaning of "conditions of employment." 88 Accordingly, the Board held that employers must bargain with the representative of their employees as to such matters. The definition of the obligation to "bargain collectively" in section 8 (d) also provides, in part, "that where there is in effect a collective bargaining contract," no party to "such contract shall terminate or modify such contract, unless the party desiring" the change shall follow a prescribed procedure which stipulates (1) written notice of such desire 60 days prior "to the time it is proposed to make such" change effective; (2) an offer to negotiate in respect of the proposal; (3) notice to the Federal Mediation and Conciliation Service and appropriate State agencies "within 30 days after such notice," if the dispute continues at that time; and, (4) maintenance of the status quo for the 60 days, or for the term of the contract, whichever occurs later. Employees "who engage in a strike" during the notice and waiting periods lose their status as "employees" unless subsequently reemployed. In Matter of Boeing Airplane Company, the Board had to determine whether these provisions were applicable to "an interim agreement in existence on August 22, 1947 [the effective date of the section], but based on a contract which on that date had already been opened for negotiations leading to termination." The Board concluded that "inasmuch as the 1946 contract was opened on January 29, 1947, for negotiations leading to termination," the parties were already "engaged in the very contract negotiations that" the section was "designed to encourage," and that "no useful purpose would be served by requiring compliance with the notice and waiting provisions.' It further held that only contracts "opened on or after August 22, 1947," fall within the purview of the section. The Board concluded that to Matter of Association of Motion Picture Producers, Inc., 79 N. L. R. B. 466. See Thirteenth Annual Report, p. 62. "Matter of General Motors Corporation, 81 N. L. R. B., No. 126; Matter of Allied Mills, Inc., 82 N. L. R. B., No. 99. 87 Matter of Tower Hosiery Mills, Inc., supra. 8 Ibid. 89 80 N. L. R. B. 447, supra. hold otherwise would give the section a "retroactive" application contrary to the statutory scheme, which is "prospective" in effect. Accordingly, the Board found that employees who struck in April 1948, either had given the requisite notice or were not required to do so and, hence, had not lost their status as employees. The employers' refusal to bargain with their representative was held to be unlawful. A further limitation on the duty to bargain provides that the statutory definition "shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract." [Italics supplied.] In Matter of Allied Mills, Inc.,0 the Board held that this limitation is applicable only to subject matter covered by the contract, and that as to matters not so covered, in the absence of an effective waiver, the continuing duty to bargain is unaffected. It thus held the employer under a duty to bargain in respect of "pension programs" during the term of a contract, even though the issue had been discussed during negotiations. In this case the union had not waived its right to raise the issue, but had expressly reserved its right to do so by verbal notice to the employer during contract negotiations. In cases in which a refusal to bargain collectively was found, the Board, as in the past, has ordered the respondent to cease and desist from its refusal to bargain and has required the respondent to bargain, upon request, with the majority representative.91 Where, after an employer's illegal refusal to bargain and when as a result of his unfair labor practice, there has been a defection in the union's ranks affecting its status, the Board nevertheless has issued its customary bargaining order. The reason for such remedial action is restated in Matter of Lancaster Foundry Corporation: 92 Employees join unions primarily in order to secure the benefits of collective bargaining. When an employer refuses to bargain with a union, especially when the refusal is protracted, employee support usually withers and dies. Old employees lose interest and resign, new employees refuse to join. The effect of an unremedied refusal to bargain with a union, standing alone, is therefore to discredit the union in the eyes of old and new employees, to drive them to a second choice, or to persuade them to abandon collective bargaining altogether. And when, as here, the refusal to bargain is accompanied by a discriminatory discharge, the effect of the refusal upon employees is compounded. It may be that some of the union's loss of support is accounted for by factors which have nothing to do with the unlawful refusal to bargain. But any attempt to disentangle these 90 82 N. L. R. B., No. 99. 01 In Matter of American District Telegraph Company, 84 N. L. R. B., No. 24, where a unit, including guards, which was appropriate at the time of the refusal to bargain was subsequently rendered inappropriate by the 1947 amendment of the act, the Board issued no remedial order, as the union's original majority might have been substantially affected by the exclusion of guards from the unit by operation of the amendments. 92 82 N. L. R. B., No. 145. |