Evening star., 1948-04-18
pNLRB Requires Employers
To Burguin on Retirement
Ruling Poses Supervisory Problems
Best Solved by Legislation
By Gerard d. Reilly

Nv ~s - A>s AtSmy
somewhat ironical footnote to the settle
ment, or, to be more accurate, the temporary
truce, arrived at between the soft coal oper-
ators and the United Mine Workers over
the pension fund dispute in the coal mines was
Al decision by the National Labor Relations
Board last week holding for the first time in
the 13-year history of the act that employers
were under legal duty to bargain with unions
In respect to retirement and employe welfare
plans.
While 1t is difficult to underestimate the
long-range significance of this decision. the
result was not wholly unexpected The And-
ings Of the trial examiner in a case originating
on charges filed by the United Steel Workers,
CIO, against the Inland Steel Co. were made
in favor OF the union more than a year ago.
His findings created considerable controversy
In industrial relations circles at that time
When the company announced its intention
to appeal to the full board, amendments to the
Wagner Act were being considered by the
Senate and House Labor Committees Critics
of the trial examiners recommendations were
successful in persuading the House committee
to report out as one Of the provisions in the
original Hartley bill language which excluded
demands for pension and security plans from
the scope of legitimate concerted activity.
The Taft bill which passed the Senate shortly
thereafter contained no corresponding prohibi-
ton In conference the Senate refused to
accept the House proposal. Consequently, the
final version of what became the Taft-Hartley
Act contained no reference to the matter This
bit of legislative history is treated by the
ma jority as evidence of congressional approval
of the conclusion reached by the trial examiner.
Closer analysis of the legislation, however.
indicates that this Interpretation of congress
sional feeling was exaggerated. What the
House bill attempted to do was not merely to
free employers from any compusion to bar
gain about welfare funds. Its authors went
much further They sought to make it illegal
for unions to engage in any concerted economic
pressure to get employers to make such con-
cessions. The net effect of the action Of the
conferees therefore was merely to leave the law
as it existed under the Wagner Act
**
The guiding principle to be applied, however.
was a matter about which congressional
opinion was divided. Although the board had
never passed upon the question, there is a
dictum in the j. l. Case opinion of Mr.. Justice
Jackson in which, speaking for the majority
of the Supreme Court, he described group
insurance, disqualification and medical plans
as mot necessarily included within the statu-
tory scope Of collective bargaining" His
comment was not necessary to the real question
with which the court was confronted in that
case and consequently was not controlling. Yet
his views have been so widely quoted in
Congress and elsewhere that it was curious
that the interesting dissenting opinion OF
Copeland Gray, the only board member who
disagreed with the majority, makes no mention
of the matter as possible clue to the Supreme
Courts attitude.
Mr. Gray addressed some cogent arguments
to the practically of the situation:
THAT neither employers nor unions have
regarded retirement programs as compulsory
subject for collective bargaining generally, is
readily understandable from the complexities
and confusions which would inevitably result
from such a step. Let us assume the case OF
an employer who has contracts with five differ
ent unions covering different units OF en-
ployes in the plant The representatives of the
five unions will be vying to outdo each other
in the liberality Of any retirement program
under consideration. Add to this the lack.
common to most people, of the specialized and
technical knowledge Of the actuarial require
ments for sound retirement programs. Such
conditions could only create chaos in the
bargaining process. Or, take for example, the
employer who has already established sound
retirement program pursuant to collective bar
gaining with union. At the end of the
contract year he may be faced with a demand
by the same or different bargaining agent to
change the entire program, thereby completely
upsetting the actuarial basis upon which the
program had been planned. Demands for
changes could continue at the end of each
contract term No business can function soundly
hocic y,,t1Ioc i11Icfr oNtu
impractical and infeasibe it is to require
collective bargaining concerning retirement
programs as matter Of law.
"In my view, the right of the employer to
fix the age at which he may end the active
employment of his employees is just as much
a prerogative OF management as Is his right to
fix the age above the legal minimum at which
he will hire people to work for him. Conced-
edly, the establishment Of retirement program
is a constructive step which may produce many
benefits for the employees and the employer
by the way Of reduced turnover, improved en-
ploye morale and employer satisfaction that his
superannuated employees will acquire some
benefits But our concern here Is not to de-
termine whether such objectives are desirable.
If an employer on his own initiative or pur-
suant to peaceful persuasion by union. desires
to bargain with the union concerning the
establishment of retirement program, there Is
nothing to prevent him from doing So"
Despite the administrative complexities in
herent in the problem, however, 1t must be
recognized that labor organizations should be
concerned with security Of their members
against the hazards Of old age, industrial acci-
dents and disease This does not necessarily
mean that they are equipped to administer
welfare plans Even with the best Of intentions,
they do not have the personnel or experience
to handle the vast amounts of money which
accrue to funds established by industry-wide
bargaining
The Social Security Board, or even private
insurance companies which are subject to State