gain collectively requires an employer to furnish information of the type the union needs to police an existing contract effectively or to bargain intelligently with respect to future contracts. For example, the Board has required an employer to furnish information concerning the merit-rating score of each employee and the merit increases actually granted. The employer has the duty to furnish the bargaining representative with sufficient information to enable the union "to understand and discuss the issues raised by the employer in opposition to the union's demands." The requirement of furnishing information is flexible, and "the extent and nature of such information depends upon the bargaining which takes place in any particular case." In the Southern Saddlery case, an employer insisted that he was financially unable to raise wages, but "at the same time refused to furnish the union with sufficient information which would support or justify his position." The Board held that this refusal to furnish information "erected an insurmountable barrier to successful conclusion of the bargaining" and thereby violated the statutory duty to bargain.

In the Yawman & Erbe case the court upheld the Board's finding that the employer was under the statutory duty to furnish wage data to the bargaining representatives of employees when negotiations were in progress. The Board found that the employer violated the Act by refusing to submit a list of employees indicating their salaries for the current and preceding year. This information was requested by the union upon the employer's refusal to grant wage increases and other concessions. The court rejected the employer's contention that he was under no duty to furnish the data since the union did not show its relevance. In the opinion of the court: 26

Since the employer has an affirmative statutory duty to supply relevant wage data, his refusal to do so is not justified by the union's failure initially to show the relevance of the requested information. The rule governing disclosure of data of this kind is not unlike that prevailing in discovery procedures under modern codes. Any less lenient rule in labor disputes would greatly hamper the bargaining process, for it is virtually impossible to tell in advance whether the requested data will be relevant except in those infrequent instances in which the inquiry is patently outside the bargaining issue.

Good Faith. Under the Wagner Act, it was made an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." The National Labor Relations Board inter

26 National Labor Relations Board, Sixteenth Annual Report, p. 202. See also General Controls Co., 88 N.L.R.B. 242 (1950); Allison & Co., 70 N.L.R.B. 377 (1946), enforced in National Labor Relations Board v. Allison & Co., 165 F.2d 766 (1948), certiorari denied, 335 U.S. 814 (1948); E. W. Scripps Co., 94 N.L.R.B. 55 (1951); Southern Saddlery Co., 90 N.L.R.B. 1205 (1950); and National Labor Relations Board v. Yawman & Erbe Mfg. Co., 187 F.2d 947 (1951).

preted this provision as including the requirement of bargaining in good faith, and this basically meant that there must be "a sincere purpose to find a basis of agreement." Section 8(d) of the Taft-Hartley Act substantially defined the obligation to bargain collectively to include the good-faith requirement already contained in the Board's decisions. The section provides: "For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party." It is provided, however, that "such obligation does not compel either party to agree to a proposal or require the making of a concession."

Good-faith bargaining, as determined by the National Labor Relations Board, is basically “a sincere intent to reach agreement." Intention may be judged by the conduct of the parties looked at as a whole from all the facts and circumstances of the case. Whether or not a person has entered into a discussion "with an open and fair mind and a sincere purpose to find a basis of agreement" may indeed be difficult to determine. However, if one of the parties refuses to discuss all the matters properly within the scope of collective bargaining, or refuses to offer explanation when he declines to accept a proposal, such behavior would not be evidence of a sincere intent to find a basis for ultimate agreement. Similarly, refusal to meet with the other party and the making of verbal attacks on the other party are indications of bad faith. According to one Federal court: 27 Bargaining presupposes negotiations between parties carried on in good faith. The fair dealing which the service of good faith calls for must be exhibited by the parties in their approach and attitude to the negotiations as well as in their specific treatment of the particular subjects or items for negotiation. For such purpose, there must be common willingness among the parties to discuss freely and fully their respective claims and demands and, when these are opposed, to justify them on reason. When the proffered support fails to persuade or if, for any cause, resistance to the claim remains, it is then that compromise comes into play. But, agreement by way of compromise cannot be expected unless the one rejecting a claim or demand is willing to make a counter-suggestion or proposal. And, where that is expressly invited but is refused, in such circumstances the refusal may go to support a want of good faith and, hence, a refusal to bargain.

Good-faith bargaining, as provided in the Act, does not require either party to make concessions. A positive effort, however, in trying to reach

27 National Labor Relations Board v. Pilling & Sons Co., 119 F.2d 32 (1941).

agreement is required. In the Montgomery Ward case, the employer took the position that "the duty to bargain is to do nothing or say nothing which would make agreement impossible." The court rejected this position, stating: "This is not a carrying of the burden of the duty to bargain, for, in effect, it means to do nothing or say nothing to make agreement possible. . . . To do this and nothing more is to fall far short of the statutory duty to bargain collectively, because the affirmative efforts of both parties are required-there must be, in a real sense, active cooperation." 28

Among the cases described by the National Labor Relations Board in which bad faith was found are the following:

1. The employer suddenly and unexpectedly shifted his bargaining position, demanded a much shorter contract after several months of negotiations, announced his "unwillingness to sign a contract with the union," and demanded "radical changes at the eleventh hour in the negotiations."

2. The employer failed “to invest sufficient authority in the employer's negotiator," insisted "that the union's parent federation be made a signatory to the contract," conditioned “a proposed wage increase upon the union's withdrawal of unfair practice charges," and insisted "on the inclusion in the contract of a provision for a performance bond by the union."

3. The employer's "chief negotiator showed considerable personal pique as the result of a prior dispute with the union," in which the employer completely reversed his position on certain issues several times during the negotiations, and at its final meetings "just before the expiration of the old contract introduced new issues despite the parties' agreement on these matters in past contracts, and raised certain objections for the first time.”

4. The employer, despite the alleged doubt, failed to file his own petition for a Board election, “although fully aware of the availability of such procedure."

5. The employer, in a letter to a state commission, “showed knowledge that all his employees had joined the union and had gone out on strike.” 6. The employer "in the midst of negotiations on renewal of a contract with a representative of long standing abruptly, and without explanation, questioned the union's majority status," concerning which the Board held that "the employer's good faith becomes suspect."

29

28 National Labor Relations Board v. Montgomery Ward and Co., 133 F.2d 676 (1943).

29 National Labor Relations Board, Sixteenth Annual Report, pp. 190, 203–205. See also Toolcraft Corp., 92 N.L.R.B. 655 (1951); Heider Manufacturing Co., 91 N.L.R.B. 1185 (1950); Southwestern Wholesale Grocery Co., 92 N.L.R.B. 1485 (1951); and New Jersey Carpet Mills, Inc., 92 N.L.R.B. 604 (1951).

CHAPTER 25

The Collective-bargaining Agreement

After all the forces applied by employer against employees, by employees upon employer, and by the government against both, and after all the economic, political, social, and legal forces of the community have had their play, a balancing or equilibrium of forces is reached. Normally this equilibrium of forces finds expression in what is called the collective-bargaining agreement. The process of adjusting and accommodating the forces involved may be regarded as an aspect of "collective bargaining," whereas the net product of this process may be named the "collectivebargaining agreement."

Nature of the Collective-bargaining Agreement. It is important to bear in mind that the agreement reached at any particular moment of historical time reflects the resultant of those historical forces which were involved and that as the forces become changed for various reasons, a modification of the collective-bargaining agreement may be required to achieve the stability or point of equilibrium required by such changes. The collective-bargaining agreement, when realistically viewed, may be thought of as an anchored raft in a river of many currents, providing safety and stability for the raft's occupants, but requiring necessary accommodations to these currents if it is not to be swept away unexpectedly. Flexibility and adaptation to the forces involved are reflected in the collective-bargaining agreement through the collective-bargaining process.

Considered as a Contract. The collective-bargaining agreement generally is regarded as a contract, especially in view of Section 301 of the Taft-Hartley Act, which provides that "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." The Act also states:

Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. . . . For the purposes of this section, in determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.

Considered as a Treaty. Although the collective-bargaining agreement may be viewed as a contract, this has not always been the case. As late as 1933, one court stated that "an agreement upon wages and working conditions between the managers of an industry and its employees, whether made in an atmosphere of peace or under the stress of strike or lockout resembles in many ways a treaty." 1

Considered as Trade Usage. A more common point of view was that the agreement was not a contract as such, but instead was merely a usage in the trade or industry, and that it was in regard to such usage that the individual made his contract of employment. Under this usage theory, the bargaining agreement was not enforceable, since the only contracts which were enforceable were those of the individual hiring contracts; and so the union or the employer were left without the power in themselves to enforce the collective-bargaining agreement against each other. Agency Theory. Another theory of the bargaining agreement, which still denied its effectiveness as a contract between the union and the employer, was that the union acted solely as an agent for the individual employees in making the agreement. Such a contract was effective only between each individual employee and his employer.

Beneficiary Theory. Still another theory was that a valid contract can exist between the employer and the union. The union is regarded as a legal entity, and this contract confers benefits upon "third persons”-the employees-who are beneficiaries but who do not assume obligations since they are not themselves parties to the contract.2

Marketing Theory. In addition to viewing the collective-bargaining agreement as a form of contract, one may consider it from a functional viewpoint. Accordingly, various theories of the collective-bargaining process may offer some insight into the nature of the collective-bargaining

1 Yazoo & M. V. Ry. v. Webb, 64 F.2d 902 (1933).

2 See Nona B. Fumerton, "The Collective Bargaining Agreement and Its Legal Effects," 17 Washington Law Review 181 (1942).