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An employer's good faith does not license the employer to refuse to enter into agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining. Such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining. This does not mean that bargaining is to be confined to the statutory subjects. It does not follow that, because the company may propose clauses, it can lawfully insist upon them as a condition to any agreement.
Late in 1952, the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO (here called International) was certified by the Board to the Wooster (Ohio) Division of the Borg-Warner Corporation (here called the company) as the elected representative of an appropriate unit of the company's employees. Shortly thereafter, International chartered Local No. 1239, UAW-CIO (here called the Local). Together the unions presented the company with a comprehensive collective-bargaining agreement. In the "recognition" clause, the unions described themselves as both the "International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and its Local Union No. 1239, U. A. W.-C. I. O. . . . ." The company submitted a counterproposal which recognized as the sole representative of the employees "Local Union 1239, affiliated with the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO)." The unions' negotiators objected because such a clause disregarded the Board's certification of International as the employees' representative. The negotiators declared that the employees would accept no agreement which excluded International as a party. The company's counterproposal also contained the "ballot" clause, quoted in full in the margin. In summary, this clause provided that, as to all nonarbitrable issues (which eventually included modification, amendment or termination of the contract), there would be a 30-day negotiation period after which, before the union could strike, there would have to be a secret ballot taken among all employees in the unit (union and nonunion) on the company's last offer. In the event a majority of the employees rejected the company's last offer, the company would have an opportunity, within 72 hours, of making a new proposal and having a vote on it prior to any strike. The unions' negotiators announced they would not accept this clause "under any conditions." From the time that the company first proposed these clauses, the employees' representatives thus made it clear that each was wholly unacceptable. The company's representatives made it equally clear that no agreement would be entered into by it unless the agreement contained both clauses. In view of this impasse, there was little further discussion of the clauses, although the parties continued to bargain as to other matters. The company submitted a "package" proposal covering economic issues but made the offer contingent upon the satisfactory settlement of "all other issues”. The "package" included both of the controversial clauses. On March 15, 1953, the unions rejected that proposal and the membership voted to strike on March 20 unless a settlement were reached by then. None was reached and the unions struck. Negotiations, nevertheless, continued. On April 21, the unions asked the company whether the latter would withdraw its demand for the "ballot" and "recognition" clauses if the unions accepted all other pending requirements of the company. The company declined and again insisted upon acceptance of its "package," including both clauses. Finally, on May 5, the Local, upon the recommendation of International, gave in and entered into an agreement containing both controversial clauses. In the meantime, International had filed charges with the Board claiming that the company, by the above conduct, was guilty of an unfair labor practice within the meaning of § 8 (a)(5) of the Act. The trial examiner found no bad faith on either side. However, he found that the company had made it a condition precedent to its acceptance of any agreement that the agreement include both the "ballot" and the "recognition" clauses. For that reason, he recommended that the company be found guilty of a per se unfair labor practice in violation of § 8 (a)(5).The Board, with two members dissenting, adopted the recommendations of the examiner. The Court of Appeals set aside the portion of the order relating to the “ballot” clause, but upheld the portion relating to the “recognition” clause.
Do the “ballot” or “recognition” clauses constitute a subject within the phrase “wages, hours, and other terms and conditions of employment” which defines mandatory bargaining?
The "ballot" clause was not within that definition. It related only to the procedure to be followed by the employees among themselves before their representative may call a strike or refuse a final offer. It settled no term or condition of employment -- it merely called for an advisory vote of the employees. It was not a partial "no-strike" clause. A "no-strike" clause prohibits the employees from striking during the life of the contract. It regulates the relations between the employer and the employees. The "ballot" clause, on the other hand, dealt only with relations between the employees and their unions. It substantially modified the collective-bargaining system provided for in the statute by weakening the independence of the "representative" chosen by the employees. It enabled the employer, in effect, to deal with its employees rather than with their statutory representative.
The "recognition" clause likewise did not come within the definition of mandatory bargaining. The statute required the company to bargain with the certified representative of its employees. It is an evasion of that duty to insist that the certified agent not be a party to the collective-bargaining contract. The Act does not prohibit the voluntary addition of a party, but that does not authorize the employer to exclude the certified representative from the contract.