Local 164, Brotherhood of Painters v. National Labor Relations Board

EDGERTON, Circuit Judge

(dissenting).

As to “wages, hours, and other terms and conditions of employment” § 8 of the Act requires the parties to bargain collectively and obligates neither party to yield. As to other matters the Act permits bargaining but is held to forbid insistence. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed.2d 823.

A bonding clause in a collective agreement is a means of enforcing the agreement. In my opinion it is a “condition of employment”.1 The “term ‘bargain collectively’ as used in the Act ‘has been considered to absorb and give statutory approval to the philosophy of bargaining as worked out in the labor movement of the United States’. [Order of Railroad] Telegraphers v. Railway Express Agency, 321 U.S. 342, 346 [64 S.Ct. 582, 88 L.Ed. 788], (1944).” National Labor Relations Board v. American National Insurance Co., 343 U.S. 395, 408, 72 S.Ct. 824, 96 L.Ed. 1027.2 Congress preferred the broad expression “wages, hours, and other terms and conditions of employment” to a House version that would have limited compulsory bargaining to wages, hours and other specified subjects. § 2(11) H.R. 3020, 80th Cong., 1st Sess., Legis.Hist. LMRA pp. 166, 313-314, 812, 867, 1541. Even that House version, which its sponsor said “limits bargaining to matters of interest to the employer and to the individual man at work”,3 included “admiriistrative and procedural *137provisions relating to the foregoing subjects”.

Courts have required bargaining about a great variety of matters that do not relate to the actual performance of work, including rentals of company houses, National Labor Relations Board v. Lehigh Portland Cement Co., 4 Cir., 205 F.2d 821; checkoff of union dues, National Labor Relations Board v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131, 136; group health and accident insurance, W. W. Cross & Co. v. National Labor Relations Board, 1 Cir., 174 F.2d 875; a profit-sharing retirement plan, National Labor Relations Board v. Black-Clawson Co., 6 Cir., 210 F.2d 523 (dictum); an employee stock purchase plan, Richfield Oil Corp. v. National Labor Relations Board, 97 U.S.App.D.C. 383, 231 F.2d 717, 58 A.L.R.2d 833; a retirement and pension plan. Inland Steel Co. v. National Labor Relations Board, 7 Cir., 170 F.2d 247, 12 A.L.R.2d 240; and union security, National Labor Relations Board v. W. T. Grant Co., 9 Cir., 199 F.2d 711, National Labor Relations Board v. Andrew Jergens Co., 9 Cir., 175 F.2d 130.4

The bonding proposal before us was petitioners’ response to what they claimed were company breaches of a previous agreement.5 **It was a “direct frontal attack” upon a vital problem. Cf. Local 24 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO v. Oliver, 358 U.S. 283, 294, 79 S.Ct. 297, 3 L.Ed.2d 312. Provisions which tend to insure performance of the agreement “materially affect” all its other provisions. Cf. National Labor Relations Board v. Lehigh Portland Cement Co., supra, 205 F.2d at page 823. “A collective bargaining agreement is an effort to erect a system of industrial self-government.” United Steelworkers of America v. Warrior & Gulf Co., 363 U.S. 574, 580, 80 S.Ct. 1347, 4 L.Ed.2d 1409.

Various proposals aimed, like the bonding clause, at enforcement of the collective agreement have long been regarded as within the mandatory bargaining requirement. An employer may insist on a no-strike clause. Lloyd A. Fry Roofing Co., 123 NLRB 647, 649; Shell Oil Co., 77 NLRB 1306; cf. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., supra, 356 U.S. at page 350, 78 S.Ct. at page 723; National Labor Relations Board v. American National Insurance Co., supra, 343 U.S. at page 408, note 22, 72 S.Ct. at page 831. It can hardly be questioned that, conversely, a union may insist on the absence of such a clause. It would be anomalous to interpret a statute intended to promote industrial peace as allowing insistence on a right to strike and yet forbidding insistence on a performance bond, which is a more peaceable means of enforcing compliance with a contract. No doubt a union may insist on a provision for arbitration. Cf. U. S. Gypsum Co., 94 NLRB 112 (order amended on other grounds, 97 NLRB 889). The bonding clause before us would apply only “in the event it is found by the Joint Trade Board hereunder” that the employer has committed a substantial breach of the agreement. It seems clear therefore that the clause, if adopted, would have been part of a system of arbitration.6

*138The Supreme Court has held that the phrase “terms and conditions of employment” is not so broad as to cover clauses which did not recognize a certified bargaining agent and required a secret prestrike ballot. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., supra. But the Court’s ' reasons for holding that such clauses were not “terms and conditions of employment” do not touch the many cases construing the phrase broadly, and they do not apply to the bonding clause in suit.7 This bonding clause would enforce compliance with the agreement by providing a private remedy in case of breach, but would not conflict with the statutory scheme reflected in § 301 of the Act,8 which permits suit in a federal court for violation of an agreement. The Supreme Court has upheld enforcement, in suits under § 301, of an agreement to arbitrate, Textile Workers of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432; United Steelworkers of America v. Warrior & Gulf Co., supra; and of an arbitrator’s award of damages, United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed. 2d 1424. The Court clearly finds no conflict between the remedy in § 301 of the Act and remedies which the parties create in the collective agreement.

Proposals that cannot be insisted upon are the less likely to be adopted.9 To exclude bonding provisions from the scope of § 8(d) goes a long way toward excluding them from collective agreements. In 1947, when Congress adopted § 8(d), it expressed the fear that the Board had “gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make.” H.Rep. No. 245, 80th Cong., 1st Sess. 19 (1947); National Labor Relations Board v. American National Insurance Co., 343 U.S. at page 404, 72 S. Ct. at page 829. After Borg-Warner, and only last year, the Supreme Court said; “ * * * it remains clear that § 8(d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements * * *. Congress intended that the parties .should have wide latitude in their negotiations, unrestricted by any governmental powers to regulate the substantive solution of their differences. * * * Our labor policy is not presently erected on a foundation of government control of the results of negotiations.” National Labor Relations Board v. Insurance Agents, 1960, 361 U.S. 477, 487, 488, 490, 80 S.Ct. 419, 4 L.Ed.2d 454. Section 8(d) provides that the obligation to bargain “does not compel either party to agree to a proposal or require the making of a concession.” It is “clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.” National Labor Relations Board v. American National Insurance Co., supra, 343 U.S. at page 404, 72 S.Ct. at page 829.

*139These considerations require a broad interpretation of the “terms and conditions of employment” concerning which bargaining is required and insistence is permitted. I would set aside the Board’s order.

. The court suggests it cannot be a “condition of employment” because it is “a condition which must be met before work is even undertaken * * * a condition precedent to employment”. That the strikers would not work without the clause, which they were under no obligation to do if the clause is a “condition of employment”, does not show it is not a condition of employment. The record does not show when the bond was to be posted. I think it does not matter.

. Some agreements in this industry have contained bonding provisions.

. H.Rep. No. 245, 80th Cong., 1st Sess., Legis.Hist. LMRA p. 298.

. National Labor Relations Board v. Dalton Tel. Co., 5 Cir., 187 F.2d 811, on which the court relies, held that requiring a union to register with a Georgia court so as to subject itself to suit under Georgia law was “outside the area of compulsory bargaining”, but the Fifth Circuit reached that conclusion for a reason that has no application in the present case, namely: “The Supreme Court has held that the bargaining rights created by the National Labor Relations Act may not be conditioned upon complianee with state registration laws. Hill v. Florida, 325 U.S. 538 [65 S.Ct. 1373, 89 L.Ed. 1782] * * 187 F.2d at page 812.

. In a supplemental prehearing-conference stipulation petitioners say they insisted upon the bond because the company had “violated working rules and practices * * * with which the company had agreed to conform.” The company says there had been no violations.

. The contract terms to which the parties agreed, in the pending contract or *138in previous contracts, are not in the present record.

. The Court said the pre-strike ballot clause “deals only with the relations between employees and their unions”, “substantially modifies the collective-bargaining system provided for in the statute by weakening the independence of the ‘representative’ chosen by the employees”, and “enables the employer, in effect, to deal with its employees rather than with their statutory representative.” The Court said the recognition clause was “an evasion” of the statutory duty “to bargain with the certified representative”. 356 U.S. 342, 350, 78 S.Ct. 718, 723.

. 29 U.S.C. § 185, 61 Stat. 156, 29 U.S. C.A. § 185.

. Cf. dissenting opinion of Mr. Justice Harlan in National Labor Relations Board v. Wooster Division of Borg-Warner Corp., supra, 356 U.S. at pages 352-353, 78 S.Ct. at pages 724-725.