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The Employer's "Good Faith" Bargaining Duty--A Troublesome Test in the Taft-Hartley Act

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The Employer's Case Western Reserve Law Review Volume 17 Issue 5 Article 11 1966 The Employer's "Good Faith" Bargaining Duty--A Troublesome Test in the Taft-Hartley Act Francis A. King Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Francis A. King, The Employer's "Good Faith" Bargaining Duty--A Troublesome Test in the Taft-Hartley Act, 17 W. Rsrv. L. Rev. 1390 (1966) Available at: https://scholarlycommons.law.case.edu/caselrev/vol17/iss5/11 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 1390 WESTERN RESERVE LAW REVIEW [Vol. 17:1390 The Employer's "Good Faith" Bargaining Duty- A Troublesome Test in the Taft-Hartley Act A CHARGE FREQUENTLY LEVELED against employers in proceed- ings before the National Labor Relations Board is the refusal to bargain in good faith as required by sections 8(a) (5) and 8(d) of the Labor Management Relations Act (LMRA) of 1947.1 Since approximately one-third of all cases heard by the NLRB involve refusal-to-bargain charges,2 it is important for an employer to know what activities on his part will give rise to such a charge. This is increasingly true in light of recent decisions requiring the employer to bargain over such issues as subcontracting, plant removal, and other activities formerly thought to be exclusively within the realm of management's rights.3 The duty to bargain in good faith is imposed on both the em- ployer and the representative of his employees by section 8(d) of the LMRA.4 Sections 8(a) (5) and 8(b) (3)5 of the act make it an unfair labor practice for employers and unions to refuse to bar- gain with each other, and since section 8 (d) modifies both of these sections, it would seem at first glance that all refusal-to-bargain charges against an employer must be interpreted in light of his willingness to meet and confer in good faith about wages, hours, and conditions of employment. Taken literally, the language of section 8 (d) seems to require a finding of subjective bad faith on 1 Labor Management Relations Act (Taft-Hartley Act) § 8 (a) (5), 61 Star, 140-41 (1947), 29 U.S.C. § 158(a) (5) (1964) [hereinafter cited as L.M.R-A.]. The section reads: "(a) It shall be an unfair labor practice for an employer . (5) To refuse to bargain collectively with the representatives of his employees .... " 2 Thirtieth Annual Report of the Nat'l Labor Relations Board 180 (1965). The report lists a total of 3815 section 8(a) (5) charges for the fiscal year 1965, which represented 34.9% of all the charges filed with the Board. However, most of these were not singular § 8(a) (5) charges, but were raised in combination with one or more of the other prohibitive subsections of § 8 (a). 3 See notes 37-41 infra, and accompanying text. 4 L.M.R.A. § 8(d), 61 Stat. 140 (1947), 29 U.S.C. § 158d (1964). This section reads: For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the em- ployees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment .... 5 L.M.R.A. § 8(b) (3), 61 Star. 141 (1947), 29 U.S.C. § 158(b) (3) (1964). This section is the counterpart of section 8(a) (5) and imposes the same duties on the un- ions in respect to bargaining as exist for the employer. The section reads: "(b) It shall be an unfair labor practice for a labor organization or its agents ... (3) to refuse to bargain collectively with an employer, provided it is the representative of his em- ployees .... " 1966] GOOD FAITH BARGAINING DUTY 1391 the part of the employer to substantiate a refusal-to-bargain charge. Such has not been the case, however. Decisions by the NIRB in- terpreting section 8(a) (5) have tended to divide the wide range of employer activities which give rise to such a charge into three broad categories, two of which are forbidden under the act.' First, there are some acts which are so violative of the spirit of the LMRA that they constitute unfair labor practices without a finding of sub- jective bad faith. These are said to be per se violations. A second type of activity, less onerous than those of the previous category, may be evidence of over-all bad faith. Within this grouping, con- duct ranges from single acts which are conclusive of bad faith to acts which are accorded only slight evidentiary value in the total findings. Often, the decisions do not indicate what weight is given to the various activities under scrutiny. A third type of conduct consisting of economic pressure and harassing tactics is perfectly consistent with the duty to bargain, and cannot be considered as evidence of bad faith in any refusal-to-bargain charge. The purpose of this Note is to categorize and discuss various activities of employers within this tripartite framework, presuppos- ing that the employer and the union have already entered into a pattern of contract negotiations.7 An attempt will also be made to indicate what weight the decisions have accorded to each type of conduct within the evidentiary category. I. PER SE VIOLATIONS Per se violations of section 8 (a) (5) do not require a finding of subjective bad faith on the part of the employer. The single, con- trolling difference between these violations and other employer activities is that they are considered so inconsistent with the duty to bargain that one act alone will sustain a refusal-to-bargain charge under section 8(a) (5), regardless of the employer's good faith 6 This impression is the author's own and results from an extensive study of NLRB and federal court decisions interpreting 5 8(a) (5) of the Taft-Hartley Act since its inception in 1947. Generalization is difficult, however, because of the indistinct bound- ary lines separating these categories and also because of the multiple-violation charges which unions traditionally levy. The latter practice makes it nearly impossible to de- termine what weight the NLRB trial examiners attribute to each activity in the over-all findings. 7 Refusals to bargain prior to the institution of negotiations comprise a significant portion of the section 8 (a) (5) charges which the NLRB hears. These refusals are gen- erally based on the lack of some prerequisite to managements duty to bargain with the union, and are beyond the scope of this Note. Examples are refusals to bargain on the grounds that the union does not in fact represent a majority of the workers, or that there existed an irregularity, such as union coercion of voters, in the election itself. 1392 WESTERN RESERVE LAW REVIEW [Vol. 17: 1390 belief that his actions are justified. Among the prohibited activi- ties in this category are unilateral changes in mandatory bargaining subjects, refusals to supply financial data, refusals to discuss manda- tory bargaining subjects, and several other miscellaneous actions. A. Unilateral Changes in Mandatory Bargaining Subjects Prior to 1962, the NLRB had consistently held that unilateral changes by the employer in conditions about which the parties were obligated to bargain was strong evidence of the employer's bad faith.' In Williamsburg Steel Prods. Co.,9 the NLRB extended this holding by finding that an employer who institutes wage increases during bona fide contract negotiations without consulting the union violates section 8(a)(5) regardless of his good faith in making the change. The Supreme Court upheld the Board in NLRB v.Katz, 0 finding that all three of the employer's changes - reducing the number of sick leave days per year, increasing wages, and instituting merit increases to twenty employees out of fifty in the unit - were mandatory subjects of collective bargaining, which the employer was required to discuss with the union. Any action withdrawing one of these subjects from discussion was in effect a refusal to bar- gain, and the Board could hold such unilateral action to be a violation of section 8(a) (5 ) without also finding the employer guilty of over-all bad faith." However, the Court did not relegate -all unilateral changes made by the employer to the per se category. Instead, the Court stated that while there did exist "the possibility that there might be circumstances which the Board could or should accept as excusing or justifying unilateral action, no such case is presented here ... ."12 In light of this statement, pre-Katz Board rulings and court decisions which permitted isolated wage and merit increases during bargaining so long as they did not represent a pat- tern, may still be valid.'3 Since the Supreme Court in Katz specifically found that the par- 8 See, e.g., Crompton-Highland Mills, Inc., 70 N.L.R.B. 206 (1946), enforcement denied, 167 F.2d 662 (5th Cir. 1948), rev'd, 337 U.S. 217 (1949). 9 126 N.L.R.B. 288 (1960), enforcement denied, NLRB v. Katz, 289 F.2d 700 (2d Cir. 1961), rev'd, 369 U.S. 736 (1962). 10 369 U.S. 736 (1962). 11ibid. See also NLRB v.
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