# National Labor Relations Board v. Insurance Agents' International Union/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Frankfurter
United States Supreme Court
361 U.S. 477
National Labor Relations Board v. Insurance Agents' International Union
Argued: Dec. 7, 8, 1959. --- Decided: Feb 23, 1960
This case presents an important issue of the scope of the National Labor Relations Board's authority under § 8(b)(3) of the National Labor Relations Act, which provides that 'It shall be an unfair labor practice for a labor organization or its agents * * * to refuse to bargain collectively with an employer, provided it is the representative of his employees * * *.' The precise question is whether the Board may find that a union, which confers with an employer with the desire of reaching agreement on contract terms, has nevertheless refused to bargain collectively, thus violating that provision, solely and simply because during the negotiations it seeks to put economic pressure on the employer to yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere with the carrying on of the employer's business.
Since 1949 the respondent Insurance Agents' International Union and the Prudential Insurance Company of America have negotiated collective bargaining agreements covering district agents employed by Prudential in 35 States and the District of Columbia. The principal duties of a Prudential district agent are to collect premiums and to solicit new business in an assigned locality known in the trade as his 'debit.' He has no fixed or regular working hours except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. He is paid commissions on collections made and on new policies written; his only fixed compensation is a weekly payment of $4.50 intended primarily to cover his expenses.
In January 1956 Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract were agreed upon on July 17, 1956. It is not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract.
However, in April 1956, Prudential filed a § 8(b)(3) charge of refusal to bargain collectively against the union. The charge was based upon actions of the union and its members outside the conference room, occurring after the old contract expired in March. The union had announced in February that if agreement on the terms of the new contract was not reached when the old contract expired, the union members would then participate in a 'Work Without a Contract' program-which meant that they would engage in certain planned, concerted on-the-job activities designed to harass the company.
A complaint of violation of § 8(b)(3) issued on the charge and hearings began before the bargaining was concluded. It was developed in the evidence that the union's harassing tactics involved activities by the member agents such as these: refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the company's reporting procedures; refusal to participate in the company's 'May Policyholders' Month Campaign'; reporting late at district offices the days the agents were scheduled to attend them, and refusing to perform customary duties at the offices, instead engaging there in 'sit-in-mornings,' 'doing what comes naturally' and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstrations there.
The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N.L.R.B. 743, had declared similar union activities to constitute a prohibited refusal to bargain; but since the Board's order in that case was set aside by the Court of Appeals for the District of Columbia Circuit, Textile Workers Union v. N.L.R.B., 97 U.S.App.D.C. 35, 227 F.2d 409, he did not consider that he was bound to follow it.
However, the Board on review adhered to its ruling in the Personal Products case, rejected the trial examiner's recommendation, and entered a cease-and-desist order, 119 N.L.R.B. 768. The Court of Appeals for the District of Columbia Circuit also adhered to its decision in the Personal Products case, and, as in that case, set aside the Board's order. 104 U.S.App.D.C. 218, 260 F.2d 736. We granted the Board's petition for certiorari to review the important question presented. 358 U.S. 944, 79 S.Ct. 352, 3 L.Ed.2d 351.
The hearing examiner found that there was nothing in the record, apart from the mentioned activities of the union during the negotiations, that could be relied upon to support an inference that the union had not fulfilled its statutory duty; in fact nothing else was relied upon by the Board's General Counsel in prosecuting the complaint. The hearing examiner's analysis of the congressional design in enacting the statutory duty to bargain led him to conclude that the Board was not authorized to find that such economically harassing activities constituted a § 8(b)(3) violation. The Board's opinion answers flatly 'We do not agree' and proceeds to say '* * * the Respondent's reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion it was duty-bound to follow. Indeed, it clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table where argument, persuasion, and the free interchange of views could take place. In such circumstances, the fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith * * *.' 119 N.L.R.B., at 769, 770-771. Thus the Board's view is that irrespective of the union's good faith in conferring with the employer at the bargaining table for the purpose and with the desire of reaching agreement on contract terms, its tactics during the course of the negotiations constituted per se a violation of § 8(b)(3). Accordingly, as is said in the Board's brief, 'The issue here * * * comes down to whether the Board is authorized under the Act to hold that such tactics, which the Act does not specifically forbid but Section 7 does not protect, support a finding of a failure to bargain in good faith as required by Section 8(b)(3).'
First. The bill which became the Wagner Act included no provision specifically imposing a duty on either party to bargain collectively. Senator Wagner thought that the bill required bargaining in good faith without such a provision. However, the Senate Committee in charge of the bill concluded that it was desirable to include a provision making it an unfair labor practice for an employer to refuse to bargain collectively in order to assure that the Act would achieve its primary objective of requiring an employer to recognize a union selected by his employees as their representative. It was believed that other rights guaranteed by the Act would not be meaningful if the employer was not under obligation to confer with the union in an effort to arrive at the terms of an agreement. It was said in the Senate Report:
'But, after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives * * * and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement. Furthermore, the procedure of holding governmentally supervised elections to determine the choice of representatives of employees becomes of little worth if after the election its results are for all practical purposes ignored. Experience has proved that neither obedience to law nor respect for law is encouraged by holding forth a right unaccompanied by fulfillment. Such a course provokes constant strife, not peace.' S.Rep. No. 573, 74th Cong., 1st Sess., p. 12.
However, the nature of the duty to bargain in good faith thus imposed upon employers by § 8(5) of the original Act was not sweepingly conceived. The Chairman of the Senate Committee declared: 'When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, 'Here they are, the legal representatives of your employees.' What happens behind those doors is not inquired into, and the bill does not seek to inquire into it.'
The limitation implied by the last sentence has not been in practice maintained-practically, it could hardly have been-but the underlying purpose of the remark has remained the most basic purpose of the statutory provision. That purpose is the making effective of the duty of management to extend recognition to the union; the duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union. Decisions under this provision reflect this. For example, an employer's unilateral wage increase during the bargaining processes tends to subvert the union's position as the representative of the employees in matters of this nature, and hence has been condemned as a practice violative of this statutory provision. See National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320. And as suggested, the requirement of collective bargaining, although so premised, necessarily led beyond the door of, and into, the conference room. The first annual report of the Board declared: 'Collective bargaining is something more the mere meeting of an employer with the representatives of his employees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground. * * * The Board has repeatedly asserted that good faith on the part of the employer is an essential ingredient of collective bargaining.' This standard had early judicial approval, e.g., National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713. Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of 'take it or leave it'; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. See Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309. This was the sort of recognition that Congress, in the Wagner Act, wanted extended to labor unions; recognition as the bargaining agent of the employees in a process that looked to the ordering of the parties' industrial relationship through the formation of a contract. See Local 24, International Brotherhood of Teamsters Union v. Oliver, 358 U.S. 283, 295, 79 S.Ct. 297, 304, 3 L.Ed.2d 312.
But at the same time, Congress was generally not concerned with the substantive terms on which the parties contracted. Cf. Terminal Railroad Ass'n v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571. Obviously there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the principle that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground. And in fact criticism of the Board's application of the 'good-faith' test arose from the belief that it was forcing employers to yield to union demands if they were to avoid a successful charge of unfair labor practice. Thus, in 1947 in Congress the fear was expressed 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.R.Rep.No. 245, 80th Cong., 1st Sess., p. 19. Since the Board was not viewed by Congress as an agency which should exercise its powers to arbitrate the parties' substantive solutions of the issues in their bargaining, a check on this apprehended trend was provided by writing the good-faith test of bargaining into § 8(d) of the Act. That section defines collective bargaining as follows:
'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, but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *.'
The same problems as to whether positions taken at the bargaining table violate the good-faith test continue to arise under the Act as amended. See National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027; National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823. But 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. National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027.
Second. At the same time as it was statutorily defining the duty to bargain collectively, Congress, by adding § 8(b)(3) of the Act through the Taft-Hartley amendments, imposed that duty on labor organizations. Unions obviously are formed for the very purpose of bargaining collectively; but the legislative history makes it plain that Congress was wary of the position of some unions, and wanted to ensure that they would approach the bargaining table with the same attitude of willingness to reach an agreement as had been enjoined on management earlier. It intended to prevent employee representatives from putting forth the same 'take it or leave it' attitude that had been condemned in management. 93 Cong.Rec. 4135, 4363, 5005.
Third. It is apparent from the legislative history of the whole Act that the policy of Congress is to impose a mutual duty upon the parties to confer in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the over-all design of achieving industrial peace. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893. Discussion conducted under that standard of good faith may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take. The mainstream of cases before the Board and in the courts reviewing its orders, under the provisions fixing the duty to bargain collectively, is concerned with insuring that the parties approach the bargaining table with this attitude. But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences. See Local 24, International Brotherhood of Teamsters Union v. Oliver, supra, 358 U.S. at page 295, 79 S.Ct. at page 304.
We believe that the Board's approach in this case-unless it can be defended, in terms of § 8(b)(3), as resting on some unique character of the union tactics involved here-must be taken as proceeding from an erroneous view of collective bargaining. It must be realized that collective bargaining, under a system where the Government does not attempt to control the results of negotiations, cannot be equated with an academic collective search for truth-or even with what might be thought to be the ideal of one. The parties-even granting the modification of views that may come from a realization of economic interdependence-still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis might find inconsistency between the command of the statute to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other. But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors-necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one's terms-exist side by side. One writer recognizes this by describing economic force as 'a prime motive power for agreements in free collective bargaining.' Doubtless one factor influences the other; there may be less need to apply economic pressure if the areas of controversy have been defined through discussion; and at the same time, negotiation positions are apt to be weak or strong in accordance with the degree of economic power the parties possess. A close student of our national labor relations laws writes: 'Collective bargaining is curiously ambivalent even today. In one aspect collective bargaining is a brute contest of economic power somewhat masked by polite manners and voluminous statistics. As the relation matures, Lilliputian bonds control the opposing concentrations of economic power; they lack legal sanctions but are nonetheless effective to contain the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion.' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1409.
For similar reasons, we think the Board's approach involves an intrusion into the substantive aspects of the bargaining process-again, unless there is some specific warrant for its condemnation of the precise tactics involved here. The scope of § 8(b)(3) and the limitations on Board power which were the design of § 8(d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. As the parties' own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S.Rep.No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union.
Fourth. The use of economic pressure, as we have indicated, is of itself not at all inconsistent with the duty of bargaining in good faith. But in three cases in recent years, the Board has assumed the power to label particular union economic weapons inconsistent with that duty. See the Personal Products case, supra, 108 N.L.R.B. 743, set aside, Textile Workers Union v. N.L.R.B., 97 U.S.A.pp.D.C. 35, 227 F.2d 409; the Boone County case, United Mine Workers, 117 N.L.R.B. 1095, set aside, International Union, United Mine Workers v. N.L.R.B., 103 U.S.App.D.C. 207, 257 F.2d 211; and the present case. The Board freely (and we think correctly) conceded here that a 'total' strike called by the union would not have subjected it to sanctions under § 8(b)(3), at least if it were called after the old contract, with its no-strike clause, had expired. Cf. United Mine Workers, supra. The Board's opinion in the instant case is not so unequivocal as this concession (and therefore perhaps more logical). But in the light of it and the principles we have enunciated, we must evaluate the claim of the Board to power, under § 8(b)(3), to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good-faith collective bargaining. We conclude its claim is without foundation.
(a) The Board contends that the distinction between a total strike and the conduct at bar is that a total strike is a concerted activity protected against employer interference by §§ 7 and 8(a)(1) of the Act, while the activity at bar is not a protected concerted activity. We may agree arguendo with the Board that this Court's decision in the Briggs-Stratton case, International Union, U.A.W., A.F. of L., Local 232 v. Wisconsin Employers Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651, establishes that the employee conduct here was not a protected concerted activity. On this assumption the employer could have discharged or taken other appropriate disciplinary action against the employees participating in these 'slow-down,' 'sit-in,' and arguably unprotected disloyal tactics. See National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627; National Labor Relations Board v. Local No. 1229, Intern. B. of Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195. But surely that a union activity is not protected against disciplinary action does not mean that it constitutes a refusal to bargain in good faith. The reason why the ordinary economic strike is not evidence of a failure to bargain in good faith is not that it constitutes a protected activity but that, as we have developed, there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining. The Board suggests that since (on the assumption we make) the union members' activities here were unprotected, and they could have been discharged, the activities should also be deemed unfair labor practices, since thus the remedy of a cease-and-desist order, milder than mass discharges of personnel and less disruptive of commerce, would be available. The argument is not persuasive. There is little logic in assuming that because Congress was willing to allow employers to use self-help against union tactics, if they were willing to face the economic consequences of its use, it also impliedly declared these tactics unlawful as a matter of federal law. Our problem remains that of construing § 8(b)(3)'s terms, and we do not see how the availability of self-help to the employer has anything to do with the matter.
(b) The Board contends that because an orthodox 'total' strike is 'traditional' its use must be taken as being consistent with § 8(b)(3); but since the tactics here are not 'traditional' or 'normal,' they need not be so viewed. Further, the Board cites what it conceives to be the public's moral condemnation of the sort of employee tactics involved here. But again we cannot see how these distinctions can be made under a statute which simply enjoins a duty to bargain in good faith. Again, these are relevant arguments when the question is the scope of the concerted activities given affirmative protection by the Act. But as we have developed, the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining. On this basis, we fail to see the relevance of whether the practice in question is time-honored or whether its exercise is generally supported by public opinion. It may be that the tactics used here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it. The same may be said for the Board's contention that these activities, as opposed to a 'normal' strike, are inconsistent with § 8(b)(3) because they offer maximum pressure on the employer at minimum economic cost to the union. One may doubt whether this was so here, but the matter does not turn on that. Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them. The catalog of union and employer weapons that might thus fall under ban would be most extensive.
Fifth. These distinctions essayed by the Board here, and the lack of relationship to the statutory standard inherent in them, confirm us in our conclusion that the judgment of the Court of Appeals, setting aside the order of the Board, must be affirmed. For they make clear to us that when the Board moves in this area, with only § 8(b)(3) for support, it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly 'balanced' bargaining power, or some new distinction of justifiable and unjustifiable, proper and 'abusive' economic weapons into the collective bargaining duty imposed by the Act. The Board's assertion of power under § 8(b)(3) allows it to sit in judgment upon every economic weapon the parties to a labor contract negotiation employ, judging it on the very general standard of that section, not drafted with reference to specific forms of economic pressure. We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced.
It is one thing to say that the Board has been afforded flexibility to determine, for example, whether an employer's disciplinary action taken against specific workers is permissible or not, or whether a party's conduct at the bargaining table evidences a real desire to come into agreement. The statute in such areas clearly poses the problem to the Board for its solution. Cf. National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676. And specifically, we do not mean to question in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. It is quite another matter, however, to say that the Board has been afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful. Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions. See § 8(b)(4) of the National Labor Relations Act, as added by the Taft-Hartley Act, 61 Stat. 141, and as supplemented by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542; (29 U.S.C. § 158(b)(4)), 29 U.S.C.A. § 158(b)(4); § 8(b)(7), as added by the latter Act, 73 Stat. 544. But the activities here involved have never been specifically outlawed by Congress. To be sure, the express prohibitions of the Act are not exclusive-if there were any questions of a stratagem or device to evade the policies of the Act, the Board hardly would be powerless. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271. But it is clear to us that the Board needs a more specific charter than § 8(b)(3) before it can add to the Act's prohibitions here.
We recognize without hesitation the primary function and responsibility of the Board to resolve the conflicting interests that Congress has recognized in its labor legislation. Clearly, where the 'ultimate problem is the balancing of the conflicting legitimate interests' it must be remembered that 'The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' National Labor Relations Board v. Truck Drivers Union, supra, 353 U.S. at page 96, 77 S.Ct. at page 648. Certainly a 'statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application.' Phelps Dodge Corp. v. National Labor Relations Board, supra, 313 U.S. at page 194, 61 S.Ct. at page 852. But recognition of the appropriate sphere of the administrative power here obviously cannot exclude all judicial review of the Board's actions. On the facts of this case we need not attempt a detailed delineation of the respective functions of court and agency in this area. We think the Board's resolution of the issues here amounted not to a resolution of interests which the Act had left to it for case-by-case adjudication, but to a movement into a new area of regulation which Congress had not committed to it. Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer; but they must be sure the question has been asked. We see no indication here that Congress has put it to the Board to define through its processes what economic sanctions might be permitted negotiating parties in an 'ideal' or 'balanced' state of collective bargaining.
It is suggested here that the time has come for a reevaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation's labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. Major revisions of the basic statute were enacted in 1947 and 1959. To be sure, then, Congress might be of opinion that greater stress should be put on the role of 'pure' negotiation in settling labor disputes, to the extent of eliminating more and more economic weapons from the parties' grasp, and perhaps it might start with the ones involved here; or in consideration of the alternatives, it might shrink from such an undertaking. But Congress' policy has not yet moved to this point, and with only § 8(b)(3) to lean on, we do not see how the Board can do so on its own.
Affirmed.
Separate opinion of Mr. Justice FRANKFURTER, which Mr. Justice HARLAN and Mr. Justice WHITTAKER join.

## Notes

* ↑ As added by the Labor Management Relations Act, 1947 (the Taft-Hartley Act), 61 Stat. 141, 29 U.S.C. § 158(b)(3), 29 U.S.C.A. § 158(b)(3).
* ↑ A stenographic record of the discussions at the bargaining table was kept, and the transcription of it fills 72 volumes.
* ↑ The hearings on the unfair labor practice charge were recessed in July to allow the parties to concentrate on the effort to negotiate the settlement which was arrived at in the new contract of July 17, 1956.
* ↑ Examining the matter de novo without the Personal Products decision of the Board as precedent, the examiner called repeatedly upon the Board's General Counsel for some evidence of failure to bargain in good faith, besides the harassing tactics themselves. When such evidence was not forthcoming, he commented, 'It may well be that the Board will be able to 'objectively evaluate' the 'impact' of activities upon 'collective-bargaining negotiations' from the mere 'nature of the activities,' but the Trial Examiner is reluctant even to attempt this feat of mental pole vaulting with only presumption as a pole.' 119 N.L.R.B., at 781-782.
* ↑ The Board observed that the union's continued participation in negotiations and desire to reach an agreement only indicated that it 'was prepared to go through the motions of bargaining while relying upon a compaign of harassing tactics to disrupt the Company's business to achieve acceptance of its contractual demands.' 119 N.L.R.B., at 771. The only apparent basis for the conclusion that the union was only going through the 'motions' of bargaining is the Board's own postulate that the tactics in question were inconsistent with the statutorily required norm of collective bargaining, and the Board's opinion, and its context, reveal that this was all that it meant. This per se rule amounted to the 'pole vaulting' that the examiner said he was 'reluctant even to attempt.' See note 4, supra.
* ↑ We will assume without deciding that the activities in question here were not 'protected' under § 7 of the Act. See 361 U.S. 492, 80 S.Ct. 429, and note 22, infra.
* ↑ See Hearings before the Senate Committee on Education and Labor on S.1958, 74th Cong., 1st Sess., p. 43: 'Therefore, while the bill does not state specifically the duty of an employer to recognize and bargain collectively with the representatives of his employees, because of the difficulty of setting forth this matter precisely in statutory language, such a duty is clearly implicit in the bill.'
* ↑ 49 Stat. 453. The corresponding provision in the current form of the Act is § 8(a)(5), 61 Stat. 141, 29 U.S.C. § 158(a)(5), 29 U.S.C.A. § 158(a)(5).
* ↑ Senator Walsh, at 79 Cong.Rec. 7660.
* ↑ 1 N.L.R.B.Ann.Rep., pp. 85-86.
* ↑ This Court related the history in National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027.
* ↑ 61 Stat. 142, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d).
* ↑ Senator Ellender was most explicit on the matter at 93 Cong.Rec. 4135.
* ↑ G. W. Taylor, Government Regulation of Industrial Relations, p. 18.
* ↑ The facts in Personal Products did, in the Board's view, present the case of a union which was using economic pressure against an employer in a bargaining situation without identifying what its bargaining demands were-a matter which can be viewed quite differently in terms of a § 8(b)(3) violation from the present case. See note 13, supra. The Board's decision in Personal Products may have turned on this to some extent, see 108 N.L.R.B., at 746; but its decision in the instant case seems to view Personal Products as turning on the same point as does the present case.
* ↑ This Court granted certiorari, 350 U.S. 1004, 76 S.Ct. 650, 100 L.Ed. 867, on the Board's petition, to review that judgment; but in the light of intervening circumstances which at least indicated that the litigation had become less meaningful to the parties, cf. The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723, the order granting certiorari was vacated and certiorari was denied. 352 U.S. 864, 77 S.Ct. 90, 1 L.Ed.2d 73.
* ↑ The court there displayed a want of sympathy to the Board's theory that a strike in breach of contract violated § 8(b)(3), see 103 U.S.App.D.D., at pages 210-211, 257 F.2d at pages 214-215. Cf. Feinsinger, The National Labor Relations Act and Collective Bargaining, 57 Mich.L.Rev. 806-807. However, the court turned its decision on its ruling, contra the Board, that there was no breach of the contract involved. On this point, contra is United Mine Workers v. Benedict Coal Corp., 6 Cir., 259 F.2d 346, 351, affirmed this day by an equally divided Court, 361 U.S. 459, 80 S.Ct. 489.
* ↑ Said the Board: 'Consequently, whether or not an inference of bad faith is permissible where a union engages in a protected strike to enforce its demands, there is nothing unreasonable in drawing such an inference where, as here, the union's conduct is not sanctioned by the Act.' 119 N.L.R.B., at 771-772.
* ↑ Our holding on this ground makes it unnecessary for us to pass on the other grounds for affirmance of the Court of Appeals' judgment urged by respondent. These we take to include the argument that the Board's order violated the standards of § 8(c) of the Act, 61 Stat. 142, 29 U.S.C. § 158(c), 29 U.S.C.A. § 158(c), and the points touched upon in notes 22 and 23, infra.
* ↑ 'Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *.' 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. § 157, 29 U.S.C.A. § 157.
* ↑ 'It shall be an unfair labor practice for an employer-(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 * * *.' 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. § 158(a) (1), 29 U.S.C.A. § 158(a)(1).
* ↑ Respondent cites a number of specific circumstances in the activities here that might distinguish them from the Briggs-Stratton case as to protection under § 7. We do not pass on the matter.
* ↑ Briggs-Stratton held, among other things, that employee conduct quite similar to the conduct at bar was neither protected by § 7 of the Act nor prohibited (made an unfair labor practice) by § 8. The respondent urges that the holding there that the conduct was not prohibited by § 8 in and of itself requires an affirmance of the judgment here, since in this case the Board's order found a violation of § 8. In fact the Board's General Counsel on oral argument made the concession that Briggs-Stratton would have to be overruled for the Board to prevail here.
* ↑ The Board quotes, in support of this, general language from a decision of this Court, Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 346, 64 S.Ct. 582, 585, 88 L.Ed. 788, dealing with a wholly different matter-the scope of subjects appropriate for collective bargaining.
* ↑ 'To say 'there ought to be a law against it' does not demonstrate the propriety of the NLRB's imposing the prohibition.' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1437.
* ↑ Though it is much urged in the Board's brief here as a general proposition, the Board's opinion (following its per se approach) contains no discussion of this point at all insofar as the facts of the case were concerned; it did not discuss the economic effect of the activities on the agents themselves and expressly declined to pass on their effect on the employer. 119 N.L.R.B., at 771. Respondent here urges that the evidence establishes quite the opposite conclusion.
* ↑ 'If relative power be the proper test, surely one who believed the unions to be weak would come to the opposite conclusion. Is it an abuse of 'bargaining powers' to threaten a strike at a department store two weeks before Easter instead of engaging in further discussion, postponing the strike until after Easter when the employer will feel it less severely? Is it unfair for an employer to stall negotiations through a busy season or while he is building up inventory so that he can stand a strike better than the workers?' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1440-1441.
* ↑ There is a suggestion in the Board's opinion that it regarded the union tactics as a unilateral setting of the terms and conditions of employment and hence also on this basis violative of § 8(b)(3), just as an employer's unilateral setting of employment terms during collective bargaining may amount to a breach of its duty to bargain collectively. National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320. See 119 N.L.R.B., at 772. Prudential, as amicus curiae here, renews this point though the Board does not make it here. It seems baseless to us. There was no indication that the practices that the union was engaging in were designed to be permanent conditions of work. They were rather means to another end. The question whether union conduct could be treated, analogously to employer conduct, as unilaterally establishing working conditions, in a manner violative of the duty to bargain collectively, might be raised for example by the case of a union, anxious to secure a reduction of the working day from eight to seven hours, which instructed its members, during the negotiation process, to quit work an hour early daily. Cf. Note, 71 Harv.L.Rev. 502, 509. But this situation is not presented here, and we leave the question open.
* ↑ The Board's opinion interprets the National Labor Relations Act to require, in this particular, 'a background of balanced bargaining relations.' 119 N.L.R.B., at 772.
* ↑ The Board in Personal Products condemned the union's tactics as an 'abuse of the Union's bargaining powers.' 108 N.L.R.B., at 746.
* ↑ It might be noted that the House bill, when the Taft-Hartley Act was in the legislative process, contained a list of 'unlawful concerted activities' one of which would quite likely have reached some of the union conduct here, but the provision never became law. H.R. 3020, 80th Cong., 1st Sess., § 12.
* ↑ After we granted certiorari, we postponed to the consideration of the case on the merits a motion by the Board to join as a party a here Insurance Workers International Union, AFL CIO, the style of a new union formed by merger of respondent and another union after the decision of this case in the Court of Appeals, and a contingent motion by respondent that it be deleted as a party. 361 U.S. 872, 80 S.Ct. 137, 4 L.Ed.2d 112. In the light of our ruling on the merits, there is little point in determining here and now what the legal status of the predecessor and successor union is, and if the issue ever becomes important, we think that the matter is best decided then. For what it is worth, we shall treat both as parties before us in this proceeding. The Board's motion is granted and respondent's is denied. See National Labor Relations Board v. Lion Oil Co., 352 U.S. 282, 77 S.Ct. 330, 1 L.Ed.2d 331.
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