Cox - Scope of Bargaining

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Citation: 71 Harv. L. Rev. 1401 1957
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VOLUME 71 JUNE 1958 NUMBER 8
I HARVARD LAW REVIEW
THE DUTY TO BARGAIN IN GOOD FAITH

Archibald Cox *
Recent judicialand administrativedecisions suggest that the criterion
of good-faith collective bargaining is being expanded beyond the
subjective test of willingness to negotiate an agreement toward an
objective standard of good bargainingpractice. In this article, Pro-
fessor Cox analyzes these decisions in the light of their antecedents
and calls for closer study of their policy implications before the
change is accepted.
The standard set up by the statute is not a rule of law; it is rather

a way of life. Life in all its fullness must supply the answer to
the riddle.
Mr. Justice Cardozo'
Q ECTION 8(a) (5) of the National Labor Relations Act pro-

vides that it shall be an unfair labor practice for an employer
"to refuse to bargain collectively with the representatives of his
employees." 2 In explaining this provision while the Wagner Bill
* Professor of Law, Harvard Law School. A.B., Harvard, 1934, LL.B. 1937.
'Welch v. Helvering, 290 U.S. XXI, 115 (1933).
I Section 8(5) of the original National Labor Relations Act, C.372, 49 Stat. 453
(1935), provided that it was an unfair labor practice for an employer
to refuse to bargain collectively with the representatives of his employees, sub-
ject to the provisions of Section 9 (a).
The provision was carried forward by the Taft-Hartley Act as § 8(a) (5), 61 Stat.
X41 (1947), 29 U.S.C. § x58(a)(5) (1952). The latter act also added § 8(b)
(3), 61 Stat. 141 (1947), 29 U.S.C. § i58(b)(3) (1952), which provides that it
shall be an unfair labor practice for a labor union
to refuse to bargain collectively with an employer, provided it is the repre-
sentative of his employees, subject to the provisions of Section 9(a).
The Taft-Hartley Act also added. in § 8(d), 61 Stat. 142 (1947), 29 U.S.C.
§ z58(d) (1952), a definition of collective bargaining which reads in pertinent
part:
[T]o bargain collectively is the performance of the mutual obligation of the em-
ployer 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 condi-
tions of employment, or the negotiation of an agreement, or any question
arising thereunder, and the execution of a written contract incorporating any
1401
HeinOnline -- 71 Harv. L. Rev. 1401 1957

1402 HARVARD LAW REVIEW [Vol. 71
was being debated in Congress the Chairman of the Senate Com-

mittee on Education and Labor said:
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 the 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
3
into it.
Collective-bargaining law has come a long way since 1935. A
few years ago the National Labor Relations Board ruled that "it
is settled law, that when an employer seeks to justify the refusal
of a wage increase upon an economic basis . . . good-faith bar-
gaining . . .requires that upon request the employer attempt to
substantiate its economic position by reasonable proof." I The
Board has also decided that a labor union violates its duty to bar-
gain in good faith by engaging in a slowdown, a "quickie" strike,
or a strike in breach of contract during the negotiation of a
collective-bargaining agreement.' If these decisions are sound,
the law now regulates the way in which the parties are to deal
with each other. It tells them what they may do and what they
may not do, even though each recognizes the authority of the
other and honestly seeks to reach an agreement. An employer
may negotiate on every subject which the union raises for dis-
cussion, he may be anxious to compromise in order to reach
an agreement, but if he refuses to open his financial records
for union scrutiny he may be guilty of an unfair labor prac-
tice.6 A union may be desperately seeking to negotiate a con-
tract, it may engage in full and fair discussion, but if the NLRB
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 conces-
sion ....
In this article the form "section 8(5)" is used in discussing the original Wagner Act
and cases decided prior to the Taft-Hartley amendments. "Section 8(a)(5)" is
used in discussing the present law and making general references having no his-
torical implications.
3 79 CONG. Rlc. 766o (1935) (statement of Senator Walsh).
4
Truitt Mfg. Co., iio N.L.R.B. 856 (1954), enforcement denied, 224 F.2d 869
(4th Cir. 1955), rev'd, 351 U.S. 149 (1956).
a International Union, United Mine Workers (the Boone County case), i7
N.L.R.B. 1o95 (iqs7); Textile Workers (the PersonalProducts case), io8 N.L.R.B.
743 (1954), enforced in part, set aside in part, 227 F.2d 409 (D.C. Cir. 1955),
cert. denied, 352 U.S. 864 (i956).
See pp. 1425-28 infra.

1958] GOOD-FAITH BARGAINING 1403
thinks that it has used improper economic pressure the NLRB
will rule that it has refused to bargain collectively. The law
tells the parties what subjects they must bargain about 7 and
also, perhaps, what subjects neither one may lawfully interject
into the discussions over the objection of the other. 8 In Senator
-Walsh's metaphor, the law has crossed the threshold into the
conference room and now looks over the negotiator's shoulder.
Is the next step to take a seat at the bargaining table?
In this paper I propose to review the path the law has traveled
in regulating the procedures of collective bargaining through the
imposition of a duty to bargain "in good faith." The story is
largely one of decisions transforming the simple requirements of
union recognition and bona fide negotiation into doctrines through
which the NLRB may come to condemn any conduct which
sharply departs from good bargaining practice. Problems relating
to the subject matter of collective bargaining and the principles
of majority rule are both excluded.9 My aim is not to collect
the precedents and state the current rules, but to observe a few
critical turning points which may help us to understand where
we have been and, possibly, where we are going.
I.
The duty to bargain collectively was first imposed upon em-
ployers during World War I.10 The National War Labor Board
affirmed the rights of workers to organize in trade unions and to
bargain collectively through chosen representatives.' The cor-
"E.g., Richfield Oil Corp. v. NLRB, 231 F.2d 717 (D.C. Cir.), cert. denied,
351 U.S. 909 (i956); Inland Steel Co. v. NLRB, I70 F.2d 247 (7th Cir. 1948),
cert. denied, 336 U.S. 96o ('949).
'Cf. Allis-Chalmers Mfg. Co. v. NLRB, 213 F.2d 374 (7th Cir. 1954) ; NLRB
v. Dalton Tel. Co., 187 F.2d 8ii (5th Cir.), cert. denied, 342 U.S. 824 ('95').
'For discussions of government regulation of the subject matter of collective
bargaining, see Cox & Dunlop, Regulation of Collective Bargaining by the Na-
tional Labor Relations Board, 63 HAgv. L. Rxv. 389 (ig5o); Findling & Colby,
Regulation of Collective Bargaining by the National Labor Relations Board-
Another View, 5I CoLrm. L. RFv. 170 (i951).
'OThe historical background, legislative history, and early interpretation of
§ 8(5) are fully discussed in Smith, The Evolution of the "Duty to Bargain" Con-
cept in American Law, 39 MicH. L. REv. xo65 (1941). I have relied heavily upon
Professor Smith's work in the brief summary here.
"1See 6 SEC'Vr LABOR AN. REP. lOO (i918).

relative duty was occasionally expressed in findings directing em-

ployers to meet with shop committees "to take up the differences
that still exist in an earnest endeavour to reach an agreement on all
points at issue," 12 but the extent of the obligation went undefined
and no criteria were developed for enforcement.
The Wilsonian labor policies were carried farthest in the trans-
portation industry, for the railroads were under government man-
agement. In returning them to private control, the Congress
sought to encourage the settlement of disputes first by negotiation
and, failing agreement, by decision of the Railroad Labor Board.
Section 301 of the Transportation Act of 1920 declared it to be the
"duty of all carriers and their officers, employees, and agents to
exert every reasonable effort and adopt every available means to
avoid any interruption to the operation of any carrier growing
out of any dispute . .. 1 Since the clause was hortatory, there
was no occasion to determine its exact meaning. The Railroad
Labor Board emphasized the duty but its chief concern was to
protect itself against pressure to decide issues which the parties
had not thoroughly explored. 4
Section 301 was carried forward into the Railway Labor Act
of 1926 with slight changes in phraseology:
It shall be the duty of all carriers, their officers, agents, and em-
ployees to exert every reasonable effort to make and maintain
agreements concerning rates of pay, rules, and working condi-
tions .... 15
The duty is enforceable by a private suit for an injunction, but

since the adjudicated cases involve outright refusals to bargain
they add little to the bare words of the statute."
The New Deal revived the policies of the old War Labor Board.
Section 7(a) of the National Industrial Recovery Act of 1933
declared that "employees shall have the right to organize and
bargain collectively through representatives of their own choos-
12 Amalgamated Meat Cutters v. Western Cold Storage Co., National War
Labor Board Docket No. So (I919). The statement is quoted in Smith, supra note
zo, at io69-7o.
13 C. 9i, 41 Stat. 469.
"4See, e.g., International Ass'n of Machinists, 2 R.L.B. 87, 89 (1921).
15 § 2, First, 44 Stat. 577, 45 U.S.C. § 152, First (1952).
16-E.g., Virginian Ry. v. System Federation No. 4o , Ry. Employees, 300 U.S.
515 (1937).

31g58] GOOD-FAITH BARGAINING 1405
ing ... ., 17 The view taken by the National Labor Board,
which administered this section, was that:
True collective bargaining involves more than the holding of con-
ferences and the exchange of pleasantries. . . .While the law does
not compel the parties to reach agreement, it does contemplate that
both parties will approach the negotiations with an open mind
and will make a reasonable effort to reach a common ground of
agreement.' 8
Its successor, the old National Labor Relations Board, an-
nounced "the incontestibly sound principle" that the employer
had a duty "to negotiate in good faith with his employees' repre-
sentatives; to match their proposals, if unacceptable, with counter-,
proposals; and to make every reasonable effort to reach an agree-
ment." 19
Neither Board inquired into the difficulties inherent in this
formula. How was bad faith to be proved? Could reliance upon
a refusal to make counterproposals be squared with free nego-
tiation? Did the duty to make "every reasonable effort" to reach
an agreement require an employer to refrain from taking un-
reasonable positions or oblige him to make concessions? Were
the parties under any restrictions as to the manner of their nego-
tiations? The cases which came before the Boards did not re-
quire decisions upon these questions for most of them arose as a
result of refusals to deal with a union, but there is considerable
evidence that, under the NRA, compromise was thought to be an
essential part of the statutory obligation. In the famous Houde
Engineering case,2 0 the old NLRB pointed out that the funda-
mental aim of the NRA was to restore prosperity by increasing
purchasing power. Industry was to be stabilized by exemptions
from the antitrust laws. Hours were to be reduced, wages in-
creased, and re-employment effected on the largest possible scale.
"Collective bargaining and the collective agreements resulting
therefrom would be an essential part of this process. And in the
projected stabilization of industry, based upon the principle of
fair competition, it was intended that wages, hours and working
27 C. 90, 48 Stat. 198.
i" Connecticut Coke Co., N.L.B. pt. 2, 88,89 (934).
19 Houde Engineering Corp., i N.L.R.B. (old) 35 (i934).
201 N.L.R.B. (old) 35 (934). The case is best known as the first unequivocal
declaration of the principle of majority rule which was subsequently embodied in
NLRA § 9(a), 49 Stat. 453 (i935), as amended, 29 U.S.C. § i59(a) (1952).

14o6 HARVARD LAW REVIEW [V01. 71
conditions . . . be stabilized as far as possible, and should be

reasonably uniform within each particular industry. In achieving
these objects, collective agreements would play an important, if
not indispensable, part, since the uniform requirements fixed in
the codes were never intended to do more than set a minimum." 21
In this milieu the authorities who enforced the codes would hardly
have been worried by the prospects of adopting a definition of
collective bargaining which put pressure upon employers to raise
wages and grant other concessions in a sincere effort to agree
with the union representing their employees. The announced
duty to match proposals with counterproposals may well have
been literally intended. The logical consequence would be for
the Board to scrutinize the reasonableness of an employer's posi-
tion as the measure of his good faith.
The Wagner Act was passed against this background. Its most
active advocates at the executive end of Pennsylvania Avenue
were closely associated with the old National Labor and National
Labor Relations Boards. So far as the record shows, however, no
one attributed much significance to the imposition of a duty to
bargain collectively. The bill introduced by Senator Wagner
during the Seventy-Third Congress 2 contained language similar
to section 2, First, of the Railway Labor Act, but the provision
was excised in committee, probably because it seemed doubtful
whether so vague a duty could be enforced.2 3 The bill which be-
came the Wagner Act was introduced at the Seventy-Fourth Con-
gress without a provision corresponding to section 8(5). The
subsection was added in the Senate Committee after Lloyd K.
Garrison, chairman of the old National Labor Board, had argued
that it was necessary to make the guaranty of a right of self-
organization effective. 4
Neither the witnesses who testified in committee nor the sena-
tors and representatives who took the floor paid great heed to
the section and none of them showed an appreciation of the diffi-
culties of application. A speech by Senator Wagner epitomizes
the discussion. First he categorically asserted that section 8(5)
21 1 N.L.R.B. (old) at 36-37.
22 S. 2926, 7 3 d Cong., 2d Sess. (1934).
23 See Hearings Before the Senate Committee on Education and Labor on S.
2926, 73d Cong., 2d Sess. pt. i, at 59, 6o (i934).
24 See Hearings Before the Senate Committee on Education and Labor on S.
7958, 74th Cong., ist Sess. pt. 2, at 137 (1935).

I958] GOOD-FAITH BARGAINING 1407
does not compel anyone to make a compact of any kind if no terms
are arrived at that are satisfactory to him. The very essence of
collective bargaining is that either party shall be free to withdraw
25
if its conditions are not met.
Then, in the next paragraph, he turned to plead for the enactment

of section 8(5) as clear congressional confirmation of the "in-
contestibly sound principle" established by the Houde Engineer-
ing case. 26 No one inquired whether an employer who was re-
quired "to match proposals, if unacceptable, with counterpro-
posals" and to demonstrate that he had made "every reasonable
effort to reach an agreement," could really be free to withdraw if
his conditions were not met. Senator Walsh's categorital assur-
27
ances have already been quoted.
By reading the testimony, the debate, and the history of the
times with a large measure of hindsight one can discern four
purposes which entered into the enactment of section 8(5).
(i) The simplest and most direct purpose was to reduce the
number of strikes for union recognition. Prior to 1935 the out-
right refusal of employers to deal with a labor union was a pro-
lific cause of industrial strife.28 The cause could be eliminated by
placing an employer under a statutory duty to acknowledge as
the legal representative of all his employees any union designated
by the majority. In arguing that the act was constitutional the
29
Government placed great stress upon this purpose.
(2) The most important purpose of the Wagner Act was to
create aggregations of economic power on the side of employees
countervailing the existing power of corporations to establish labor
standards. When the authors of the act spoke of "inequality of
bargaining power" between employee and employer, they had in
mind the famous dictum of Mr. Chief Justice Taft:
[Labor unions] were organized out of the necessities of the situa-

tion. A single employee was helpless in dealing with an employer.
He was dependent ordinarily on his daily wage for the maintenance
of himself and family. If the employer refused to pay him the
wages that he thought fair, he was nevertheless unable to leave the
25 79 CONG. REC. 7571 (935).
26
Ibid.
27 See p. 1402 supra.
2B NLRB v. Jones & Laughlin Steel Corp., 301 U.S. i, 42 (1937).
29 Brief for the Appellee, pp. 46-50, 144, Associated Press v. NLRB, 301 U.S.
103 (1937).

employ and to resist arbitrary and unfair treatment. Union was

essential to give laborers opportunity to deal on equality with
their employer. 80
The denial of recognition is an effective means of breaking up

a struggling young union too weak for a successful strike. After
the enthusiasm of organization and the high hopes of successful
negotiations, it is a devastating psychological blow to have the
employer shut the office door in the union's face. Imposing a legal
duty to recognize the union would prevent such anti-union tactics
and thereby contribute to the growth of strong labor organizations.
(3) Section 8(5) was also intended to implement the basic
philosophy of the act by imposing the duty to engage in collective
- as distinguished from individual - bargaining. The courts ex-
emplified the obligation by holding that after a representative has
been designated, it is an unfair labor practice for an employer to
negotiate wages or other terms of employment with individual
employees. 31 It is also possible that Congress meant that the
duty to deal with the group - with the collectivity - included a
more far-reaching idea usually expressed in metaphors. An em-
ployer must look upon labor as an equal partner, and "when we
have such a partnership . . . then one partner cannot do any-
thing without consulting the other partner." 32 Or to change
*the figure, the divine right of the king must yield to a constitutional
monarchy, in which a large measure of industrial democracy will
prevail. 3 Wages, hours, and conditions of employment should be
determined by mutual consent.
(4) There were also those who looked upon collective bargain-
ing as a rational process of persuasion. Collective bargaining, it
was thought, enables employers and employees to dig behind their
prejudices and exchange their views with the result that agree-
ment is reached on many points while on others it is discovered
that the area of disagreement is so narrow that compromise is
cheaper than battle. As early as 1902 an industrial commission
reported:
The chief advantage which comes from the practice of periodically
3o American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184,
209 (1921).
31 Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944); cf. J. I. Case Co.
v. NLRB, 321 U.S. 332 (1944).
2 Leiserson, The Meaning of Labor Representation, go ANNALS 22, 23 (1920).
3 Cf. CATLim, Tim LABOR PROBLEM 424 (rev. ed. X935).

determining the conditions of labor by collective bargaining directly
between employers and employees is, that thereby each side ob-
tains a better understanding of the actual state of the industry,
of the conditions which confront the other side, and of the motives
which influence it. Most strikes and lockouts would not occur if
each party understood exactly the position of the other.34
Although there is little doubt that the sponsors of the Wagner

Act hoped that the statute would accomplish all four purposes,
only the first two can be said to have been written into law. There
is no real evidence whether the sponsors intended to write the
third and fourth directly into the statute or counted upon time
and human nature to realize these objectives. Collective bargain-
ing 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.
The purpose of the original Wagner Act was to create a neces-
sary balance of economic power. The act also aimed at ideal
bargaining. It intruded at least so far as to protect unionization
from interference by employers and to compel them to recognize
the employees' representatives. Did the statute leave the further
consequences to develop without government regulation or did
it legislate some of the state of mind and habits of conduct which
make up the ideal bargaining relation?
II.
It is patently an unfair labor practice for an employer to with-
hold recognition from the union designated by the majority of
employees. Refusing to meet and treat with the union nego-
tiators 11 or attaching conditions to entering into negotiations is
4
H.R. Doc. No. 38o, 57th Cong., ist Sess. 844 (1902).
" NLRB v. United States Cold Storage Corp., 203 F.2d 924 (5th Cir.), cert.
denied, 346 U.S. 818 (1953); NLRB v. Lettie Lee, Inc., 14o F.2d 243, 248-49 (9th

14To HARVARD LAW REVIEW IVol. 71
no less obviously unfair,36 for, whatever its meaning, the duty

imposed by section 8(a) (5) is unqualified. In the early days of
the Wagner Act a considerable number of employers politely met
with the union representatives, listened to their demands and the
supporting arguments and then rejected them. Although Sena-
Cir. 1944). Meetings must be held at a place convenient to the plant. Compare NLRB
v. P. Lorillard Co., 117 F.2d 921 (6th Cir. 1941), rev'd on other grounds, 314 U.S.
512 (1942) (insistence upon bargaining in New York City for a plant in Middle-
town, Ohio, held an unfair labor practice), and Westinghouse Pac. Coast Brake
Co., 89 N.L.R.B. 145 (,950) (insistence upon bargaining in Pittsburgh for a West
Coast plant held unfair), with National Grinding Wheel Co., 75 N.L.R.B. 905
(X948) (proposal that conferences be held fourteen miles from the plant not unfair
when union objected only to the company's refusal to pay transportation costs).
" E.g., NLRB v. Hoppes Mfg. Co., 17o F.2d 962 (6th Cir. 1948) (refusal to
negotiate unless union abandoned request for higher wages); American Laundry
Mach. Co., 76 N.L.R.B. 98I (1948), enforcement granted, 174 F.2d 124 (6th Cir.
1949) (per curiam) (refusal to negotiate unless union withdrew unfair-labor-prac-
tice charge and abandoned strike). The cases dealing with the imposition of condi-
tions, especially those dealing with performance bonds, are in an unnecessary state
of confusion. Four categories of conditions should be recognized. (i) It is undis-
putably an unfair labor practice to attach any condition to entering into negotia-
tions. (2) Sometimes a negotiator states that it must be a condition of any con-
tract that the other party agree to a certain proposal; for example, that the union
post a heavy performance bond. There are decisions which reason that since there
is a duty to sign a contract if agreement is reached upon its terms, it is an unfair
labor practice to refuse to sign unless the union takes steps to guarantee perform-
ance. Dalton Tel. Co., 82 N.L.R.B. iooi (1949), enforcement granted, 187 F.2d
81i (5th Cir. 195i), cert. denied, 342 U.S. 824 (1952); Scripto Mfg. Co., 36
N.L.R.B. 411 (i94i); see jasper Blackburn Products Corp., 2i N.L.R.B. 1240,
1254-55 (2940). This is a misconception. The general understanding in collective
bargaining is that agreement on any particular point is tentative until -there is
agreement upon all the issues. To say that posting a performance bond is a condi-
tion to executing an agreement is simply a way of bargaining for this term in the
over-all agreement. It is not an unfair labor practice per se. Accord, NLRB v.
I.B.S. Mfg. Co., 21o F.2d 634 (5th Cir. 1954). But cf. Union Mfg. Co., 76 N.L.R.B.
322, 325 (1948), enforcement granted, 179 F.2d 51i (5th Cir. 1950). (3) Some de-
mands or proposals may be evidence that the party making them is seeking to pre-
vent agreement because he intends not to sign a contract upon any terms. It vio-
lates § 8(a) (5) and § 8(b) (3) to conduct sham negotiations in this state of mind.
See pp. 1422-23 infra. The weight of the inference depends upon the nature of the
demand, its timing, and other circumstances. Many anti-union employers who de-
manded performance bonds in the 193o's and 1940's were proved by other evi-
dence to be going through the motions of bargaining with a fixed determination not
to enter into a contract with a labor union. Very few employers who have accepted
collective bargaining have demanded such an undertaking. It is proper therefore to
treat a firm demand for a bond as evidence supporting a finding of bad faith.
Standard Generator-Serv. Co., 90 N.L.R.B. 79o (195o), enforcement granted, 186
F.2d 6o6 (8th Cir. 295I); Tower Hosiery Mills, Inc., 81 N.L.R.B. 658 (1949), en-
forcement granted, i8o F.2d 70, ( 4 th Cir.), cert. denied, 340 U.S. 8x (1950);
jasper Blackburn Products Corp., 21 N.L.R.B. 1240 (1940) (containing broader
dictum). (4) Making acquiescence to a proposed term of the contract a condition

tor Walsh had stated that this would satisfy section 8(5) ,3 the
NLRB and courts have always held it to be an unfair labor prac-
tice.3 "[TIhere 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." 39 Al-
though the law cannot open a man's mind, it can at least compel
him to conduct himself as if he were trying to persuade and
were willing to be persuaded. To offer the union a contract say-
ing, "Take it or leave it," is not bargaining collectively within the
meaning of the act.40
The duty to engage in discussion, listening to the union's pro-
posals and giving the grounds for any disagreement, extends to
each and every topic the union may wish to discuss, provided
that it falls within the phrase "rates of pay, wages, hours of em-
ployment, or other terms and conditions of employment." 4 1
Originally there was room for the argument that section 8(5)
required only recognition of the union and acceptance of the gen-
eral principle of collective bargaining, but the NLRB has long
undertaken, with judicial approval, to define compulsory sub-
jects of bargaining, and in 1947 the addition of section 8(d)
confirmed its interpretation. 42 In Andrew Jergens Co.43 an em-
ployer and a union had little difficulty in coming close to agree-
ment upon all the terms of a contract except union security. The
company refused to negotiate on this issue claiming that it was
barred by a War Labor Board directive. Other evidence per-
suaded the NLRB that the asserted justification was a pretense
and the respondent had a fixed determination not to grant union-
to entering into an agreement is an unfair labor practice if the proposed term would
be unlawful or inconsistent with the policy of the act. National Maritime Union
(the Texas Co. case), 78 N.L.R.B. 971 (1948), enforcement granted, 175 F.2d 686
(2d Cir. 1949), cert. denied, 338 U.S. 954 (195o).
37 79 CONG. REC. 7660 (1935).
"8See, e.g., NLRB v. Montgomery Ward & Co., 133 F.2d 676 (9th Cir. I943);
NLRB v. Westinghouse Air Brake Co., I2M F.2d 1004 (3d Cir. 194); Wilson & Co.
v. NLRB, iiS F.2d 759 (8th Cir. 1940).
9
NLRB v. George P. Pilling & Son Co., ri9 F.2d 32, 37 (3d Cir. 194).
40 See Brown & Root, Inc., 86 N.L.R.B. 520, 521 0949), enforced in part, set
aside in part sub nom. NLRB v. Ozark Dam Constructors, i9o F.2d 222 (8th Cir.
1951).
" NLRA § 9(a), 49 Stat. 453 (1935), as amended, 29 U.S.C. § 159(a) (1952).
See also NLRA § 8(d), added by 61 Stat. 142 (1947), 29 U.S.C. § 158(d) (1952).
42 See Cox & Dunlop, Regulation of Collective Bargaining by the National
Labor Relations Board, 63 HARv. L. REv. 389, 391-401 (1950).
43 76 N.L.R.B. 363 (948), enforcement granted, 175 F.2d 130 (gth Cir. 1949).

1412 HARVARD LAW REVIEW [Vol. 7I
security provisions or even to discuss them with the union. "Such

complete foreclosure of discussion of a proper subject of collec-
tive bargaining is a negation of the good faith bargaining required
by the statute." 44
The Andrew Jergens decision suggests a more troublesome case.
Suppose that the company's lawyer had replied to the union's
demand for a closed shop, "We have studied this problem care-
fully, and our minds are made up. You fellows know all the
arguments on both sides and so do I. Let's not waste time re-
peating them. We won't grant the closed shop or any other
form of union-security clause, and every time you start talking
about it we intend to leave the room." Would such conduct violate
section 8(a) (5)? The language of countless opinions and trial
examiners' reports is broad enough to hold it unfair,45 but the
Supreme Court has said that "the Act does not encourage a party
to engage in fruitless marathon discussions at the expense of frank
statement and support of his position." 46 On principle, refusing
to participate in the give-and-take of argument ought to be an
unfair labor practice. Participation in debate often produces
changes in a seemingly fixed position either because new facts
are brought to light or because the strengths and weaknesses of
the several arguments become apparent. Sometimes the parties
hit upon some novel compromise of an issue which has been
thrashed over and over. Much is gained even by giving each
side a better picture of the strength of the other's convictions. The
cost .is so slight that the potential gains easily justify legal com-
pulsion to engage in the discussion.
Since 1947 section 8(b)(3) has imposed the duties discussed
above upon employees' representatives. 47
III.
It was not enough for the law to compel the parties to meet
and treat without passing judgment upon the quality of the nego-
44 76 N.L.R.B. at 366.
4 See the discussion of good faith in pp. 1418-28.
46
NLRB v. American Nat'l Ins. Co., 343 U.S. 395, 404 (1952). See also NLRB
v. P. Lorillard Co., 117 F.2d 921, 924 (6th Cir. i94i), rev'd on other grounds, 314
U.S.4 7 512 (1942).
NLRA § 8(b)(3), added by 61 Stat. 14I (1947), 29 U.S.C. § 158(b)(3)
(1952). For a general discussion of this section, see Note, Union Refusal to Bargain:
Section 8(b) (3) of the National Labor Relations Act, 71 HAv. L. REv. 502 (1958).

19581 GOOD-FAITH BARGAINING 1413
tiations. The bargaining status of a union can be destroyed by
going through the motions of negotiating almost as easily as by
bluntly withholding recognition. The NLRB reports are filled
with cases in which a union won an election but lacked the eco-
nomic power to use the strike as a weapon for compelling the
employer to grant it real participation in industrial government.
As long as there are unions weak enough to be talked to death,
there will be employers who are tempted to engage in the forms
of collective bargaining without the substance.
The concept of "good faith" was brought into the law of
collective bargaining as a solution to this problem. One who
merely went through the outward motions knowing that they were
a sham could be said to lack good faith and held to violate sec-
tion 8(5) despite the formal appearances. In NLRB -.Mont-
gomery Ward & Co.,4 8 for example, seven conferences were held
between the management and the certified bargaining representa-
tives of two different units within a three-month period. The
union negotiators read and explained proposed contracts. Wards
rejected every proposal. The disagreement covered matters nor-
mally settled in routine fashion as well as more substantial issues.
For example, the unions' request for a recognition clause was re-
jected on the ground that the statute controlled the question. A
request for a promise not to discriminate against union members
met a similar objection. When the unions proposed a clause call-
ing for premium pay in the event that an employee was asked to
work more than five hours without a meal period, the company's
negotiator insisted on substituting six hours even though his su-
perior had advised him that "under normal conditions an em-
ployee should not be worked more than five consecutive hours
without a meal period." There was evidence of stalling. When
the unions asked for an immediate reply to a proposal that con-
ferences be scheduled with a higher executive, Wards' negotiator
notified his superior that after delaying 72 hours he would accept
the proposal. Whenever the unions asked whether the manage-
ment was willing to execute a written agreement, the management
replied that the question was premature because the parties had
not yet come to any agreement. Throughout the negotiations the
company refused to offer counterproposals. Once when the unions
48 133 F.2d 676 (9th Cir. 1943).

suggested that the company take the draft contracts which it had
submitted, cross out the objectionable features, and substitute
such items as it desired, the company's spokesman replied that
since the company was not seeking anything from the unions, it
was up to the unions to make the proposals. The NLRB held that
Wards had violated section 8(5) by refusing to bargain in good
faith. The Ninth Circuit enforced the resulting order, saying
that the duty to bargain in good faith is an "obligation . . . to
participate actively in the deliberations so as to indicate a present
intention to find a basis for agreement . . . " Not only must
the employer have "an open mind and a sincere desire to reach
an agreement" but "a sincere effort must be made to reach a com-
mon ground." '9
The books abound with similar statements. 0 In making them
both the NLRB and the courts were seeking primarily to advance
the policies of protecting unions and compelling recognition. In
order to distinguish the real from the sham they established a
subjective test making the employer's state of mind the decisive
factor. So much is clear. The difficult problem is to identify the
state of mind precisely. Such phrases as "present intention to
find a basis for agreement" and "sincere effort . . . to reach
common ground" suggest that willingness to compromise is an
essential ingredient of good faith. The inference becomes even
stronger when the phrases are read against the background of the
old National Labor Relations Board opinions which assert the duty
"to match their proposals, if unacceptable, with counter-propo-
sals; and to make every reasonable effort to reach an agreement." 51
A man may wish to negotiate an agreement provided that his
terms are met but be quite unwilling to compromise; or he may
be so anxious to reach an agreement that he is willing to accept
whatever terms he can get. Which state of mind -which of
49Id. at 686, quoting in part from NLRB v. Reed & Prince Mfg. Co., iiS F.2d
874, 885 (Ist Cir.), cert. denied, 313 U.S. 595 (1941).
'0 See, e.g., NLRB v. Boss Mfg. Co., iS F.2d. 187, u89 (7th Cir. 1941)
("Collective bargaining requires that the parties involved deal with each other
with an open and fair mind and sincerely endeavor to overcome obstacles or
difficulties existing between the employer and the employees ...."); Globe
Cotton Mills v. NLRB, 1o3 F.2d 91, 94 (sth Cir. 1939) ("ITihere is a duty on
both sides, though difficult of legal enforcement, to enter into discussion with an
open and fair mind, and a sincere purpose to find a basis of agreement . . .
51 Houde Engineering Corp., i N.L.R.B. (old) 35 (1934).

all the intermediate states of mind - is necessary to bargain
"in good faith"?
To put the issue concretely suppose that since i942 Ames Cot-
ton Company has recognized Textile Workers Union of America
and entered into a series of collective-bargaining agreements.
None of the agreements provided for a union shop or the arbi-
tration of unsettled grievances, but in all other respects the con-
tracts were typical of the textile industry. The last agreement
expired December 31, 1957. TWUA proposed a ten-cents-an-
hour wage increase, a union-shop clause, and an arbitration
clause. Ames Cotton rejected all three proposals, giving extensive
arguments in support of its position and offering to renew the old
agreement. The union then modified its position and asked for
a five-cents-an-hour wage increase, a maintenance-of-membership
clause, and arbitration of grievances. At the fourth conference
the union intimated that it would consider a smaller wage in-
crease, and some limits on the arbitration clause, and would be
"reasonable" about union security if the company would be
"reasonable" about the other issues. The company stood pat.
TWUA then said, "Make us some kind of a counterproposal -
any kind -to take back to the members." The company ada-
mantly refused to do any more than renew the old contract. Did
Ames Cotton bargain in good faith?
Certainly Ames Cotton would have made some kind of an
offer if it had a strong desire to reach an agreement. Withhold-
ing an arbitration clause used by nearly all the unionized textile
companies was hardly a sincere effort to reach common ground.
TWUA indicated plainly enough that any little concession by
which the union could save face would close the bargain and any
reasonable man truly anxious for agreement would have made the
offer. But this conclusion implies that an employer bargains in
good faith only when he is willing to make reasonable concessions.
Indeed many employers complained that this was just the way in
which the Board and courts were administering the Wagner Act,
and in 1947 Congress added an explicit definition of the duty to
bargain which provides that "such obligation does not compel
either party to agree to a proposal or require the making of a
concession." 2 It seems unlikely that Ames Cotton would have
been found guilty of an unfair labor practice under the Wagner
52
NLRA § 8(d), added by 6I Stat. 142 (1947), 29 U.S.C. § i58(d) (1952).

1416 HARVARD LAW REVIEW [V17oi 71
Act.5" Under the Taft--Hartley amendments its conduct would

not warrant a finding of bad faith.54
We are drawn to the conclusion, therefore, that the conven-
tional definition of good-faith bargaining as a sincere effort to
reach an agreement goes beyond the statute. It can be corrected
by expanding the formula to include the antinomy. The employer
(or union) must engage in negotiations with a sincere desire to
reach an agreement and must make an earnest effort to reach a
common ground, but it need make no concessions and may reject
any terms it deems unacceptable. One can argue that the formu-
lation is too self-contradictory to survive. Either section 8(a) (5)
must simply require union recognition and the formalities of nego-
tiation, it is said, or else it must require that plus the making of
objectively reasonable proposals.55 But I think that the ambiva-
lent statement has meaning even though it borders on paradox. It
would command the Board to reach a judgment mindful of con-
flicting desiderata- (i) legal pressure upon labor and manage-
ment to enter into joint agreements determining terms of employ-
ment, and (2) complete freedom from government pressure as to
what the terms will be. That the relative weight to be given each
branch of the antinomy depends upon fiat is both the strength
56
and weakness of the rule.
The factual difference between the Montgomery Ward case
and the Ames Cotton example suggests another and more pre-
cise formula. Wards rejected the basic principle that terms and
conditions of employment should be established by the agree-
ment between the management and the employees' representatives.
Ames Cotton accepted union participation but would not agree on
the terms of the bargain. Conceivably its stubbornness could be
called arbitrary, selfish, or against the public interest, but the
facts supposed lay no foundation for the inference that it was
seeking to avoid agreement with the union. If this is the real
S In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. z, 45 (I937), the
Court said, "The Act does not compel agreements between employers and
employees. It does not compel any agreement whatever. It does not prevent the
employer 'from refusing to make a collective contract and hiring individuals on
whatever terms' the employer 'may by unilateral action determine.'" See also
NLRB v. P. Lorillard Co., 117 F.2d 92X, 923-24 (6th Cir. i94i), rev'd on other
grounds, 314 U.S. 512 (1942).
54
NLRB v. United Clay Mines Corp., 2z9 F.2d 120 (6th Cir. 1955).
" See Smith, The Evolution of the "Duty to Bargain" Concept in American
Law, 39 MicH. L. Rav. xo65, ixo8 (i94i).
" See Fuller, Reason and Fiat in Case Laws, 59 1ARV. L. Rzv. 376 (1946).

reason for concluding that Ames Cotton would not be held to
have violated section 8(a)(5), perhaps the true meaning of the
statute was most precisely articulated by Judge Magruder in the
second Reed & Prince case in which he avoided a direct defini-
tion of "good faith" and instead defined its opposite, "bad faith,"
as a "desire not to reach an agreement with the union." 57
Although this formulation stops somewhat short of the language
of some opinions, it expresses, as nearly as one can tell, the
actual results of the decisions. It avoids most of the difficulties
inherent in earlier efforts to define good faith because it con-
tains no suggeption that a negotiator must put reaching an agree-
ment ahead of maintaining his position concerning substantive
terms and conditions of employment. It also solves the chief
problem to which the notion of good faith was initally directed,
for it separates the employers who are seeking to talk a union
to death from those who are merely stubborn negotiators exer-
cising their full bargaining power.
"' NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (Ist Cir.), cert. denied,
346 U.S. 887 (I953). This test appeared in some of the early opinions and
seems to be gaining acceptance. See, e.g., NLRB v. United Clay Mines Corp., 219
F.2d 120, 125 (6th Cir. i955) ("Lack of good faith may be found from . . . con-
duct clearly showing an intent not to enter into a contract of any nature.");
NLRB v. I.B.S. Mfg. Co., 210 F.2d 634, 638 (5th Cir. 1954) (A finding of lack of
good faith requires clear proof "that the respondent had no wish for an agreement
but rather a wish to the contrary, and had conducted itself so as to defeat rather
than promote agreement."); Singer Mfg. Co. v. NLRB, ri9 F.2d 131, 134 (7th
Cir.), cert. denied, 313 US. 595 (1941) ("We think the Board had full authority
to determine as a fact whether petitioner was acting in good faith or whether
its actions amounted to a mere superficial pretense at bargaining, - whether it
had actually the intent to bargain, sincerely and earnestly, - whether the negotia-
tions were captious and accompanied by an active purpose and intent to defeat
or obstruct real bargaining."); NLRB v. P. LorMard Co., 117 F.2d 92i, 924 (6th
Cir. 1941), rev'd on other grounds, 314 U.S. 512 (1942) ("[T]he record does not
show that the respondent had a fixed resolve not to enter into an agreement with
the union."); Continental Oil Co. v. NLRB, 113 F.2d 473, 481 (ioth Cir. 1940),
modified and remanded, 313 U.S. 212 (194) ("fixed resolve . . .not to come to
any accord"); Cincinnati Steel Castings Co., 86 N.L.R.B. 592, 594 (1949) (evidence
did not show an intention to avoid coming to any agreement); Tower Hosiery
Mills, Inc., 81 N.L.R.B. 658, 66o (1949), enforcement granted, x8o F.2d 70, (4 th
Cir.), cert. denied, 340 U.S. 8x (95o) ("a determination not to conclude an
agreement with the Union").
" It should be recognized that even "the desire not to reach an agreement"
test is an oversimplification because it assumes that the employer's conduct stems
from a single motive. In the hypothetical Ames Cotton case the company's
negotiators presumably thought that concessions would be harmful to the com-
pany. Nevertheless they might also have realized that as a practical matter TWUA
could not agree to renew the old agreement and they might have welcomed the

1418 HARVARD LAW REVIEW [Vol. 7-1
There are two differences between the antinomy and Judge

Magruder's more precise definition. To require proof that an
employer has an intention not to reach an agreement may im-
pose a somewhat heavier burden of proof upon the General Coun-
sel than the earlier formulation. Furthermore, to'say that sections
8(a) (5)and 8(b) (3) require the parties to have a sincere desire
for agreement and to make every reasonable effort to reach com-
mon ground suggests that the statute obliges them to follow proce-
dures increasing the prospects for a negotiated agreement, and
this implication is not eliminated by adding the qualification
that the negotiators have complete freedom to take any position
that their judgment or fancy may dictate with respect to the
substantive terms of employment. The latter difference is im-
portant when we come to consider whether sections 8(a) (5)
and 8(b) (3) authorize the regulation of collective-bargaining
procedures.
IV.
Although the employer's (or the union's) state of mind may
occasionally be revealed by declarations,"s ordinarily the proof
must come by inference from external conduct. Many kinds
of evidence have been found convincing. The weight of any item
depends upon the circumstances. Stalling the negotiations by
unexplained delays in answering correspondence and by the
unnecessary postponement of meetings indicates a desire not
to reach an agreement with the union; 1o so does sending nego-
tiators without authority to do more than argue or listen, 61 or
prospect of a strike which would break the union. There appear to be no NLRB
or judicial opinions analyzing this question of mixed motives.
" See NLRB v. Swift & Co., 127 F.2d 3o (6th Cir. 1942); Continental Oil Co.
v. NLRB, 113 F.2d 473, 481 (ioth Cir. 1940); Stanislaus Implement and Hard-
ware Co., ioi N.L.R.B. 394 (1952), enforcement granted, 226 F.2d 377 (9th
Cir. 1955).
60 See NLRB v. National Shoes, Inc., 2o8 F.2d 688 (2d Cir. I953) ; Stanislaus
Implement and Hardware Co., ioi N.L.R.B. 394 (I952), enforcement grahted,
226 F.2d 377 (9th Cir. 1955).
6 See NLRB v. A. E. Nettleton Co., 241 F.2d 13o (2d Cir. I957); NLRB v.
Nesen, 211 F.2d 559 (9th Cir. 1954); Great So. Trucking Co. v. NLRB, 127 F.2d
180 ( 4 th Cir. 1942); J. B. Cook Auto Mach. Co., 84 N.L.R.B. 688, 698 (1949),
enforcement granted, 184 F.2d 845 (6th Cir. i95o). But see Lloyd A. Fry Roofing
Co. v. NLRB, 216 F.2d 273 (9th Cir. 1954) (failure to give negotiators authority
to make binding commitment not an unfair practice per se).

repudiating the commitments made by the company's bargaining

representative after it had led the union to believe that he had
full authority to conclude an agreement. 62 The Board may be
suspicious of the negotiator who constantly shifts his position or
3
interjects new demands just as agreement seems imminent
but it seems unlikely that these last bits of evidence would be
given much weight in isolation. Insistence upon a verbatim
transcript of the negotiations has been considered evidence of
bad faith. 64 Proof that an employer engaged in interference,
coercion, or restraint during bargaining conferences colors his
conduct.65 Other illustrations could be cited. In every case, the
basic question is whether the employer acted like a man with
a mind closed against agreement with the union. The Board can
judge his subjective state of mind only by asking whether a nor-
mal employer, willing to agree with a labor union, would have
followed the same course of action.
The trickiest questions are raised by the use of evidence con-
cerning the substantive positions taken by the employer during
negotiations. For the Board to appraise the employer's bargain-
ing position with respect to some major issue as a means of ascer-
taining his good faith would involve passing judgment upofi the
reasonableness of his proposals and thus would apply pressure
to make concessions. There are too many reasons why an em-
ployer who is willing to contract with a union might wish to deny
a wage increase or maintain an open shop for the Board to draw
an inference of bad faith from the unreasonableness of his posi-
tion. The policy of allowing free negotiation upon such matters
is too strong to warrant the risk of government interference even
"2 See NLRB v. Shannon, 208 F.2d 545 (gth Cir. 1953); Gittlin Bag Co., 95
N.L.R.B. II59 (195x), enforcement granted, I96 F.2d 158 (4th Cir. 1952)
(per curiam).
63 See NLRB v. Nesen, 2x1 F.2d 559 (gth Cir. 1954) ; L. G. Everist, Inc., Xo3
N.L.R.B. 308 (1953); 3. W. Woodruff, Sr., 90 N.L.R.B. 8o8 (I95O), enforcement

granted, 193 F.2d 641 (5th Cir. 1952); Franklin Hosiery Mills, 83 N.L.R.B. 276
(I949); cf. NLRB v. Tower Hosiery Mills, Inc., 18o F.2d 701 (4th Cir.), cert.
denied, 340 U.S. 811 (1950).
" Reed & Prince Mfg. Co., 96 N.L.R.B. 850, 854 (z95i), enforcement granted,
205 F.2d 131 (ist Cir.), cert. denied, 346 U.S. 887 (953). See also Allis-Chalmers
Mfg. Co., io6 N.L.R.B. 939 (1953), enforcement denied, 213 F.2d 374 (7th
Cir. 1954).
6 See NLRB v. Lettie Lee, Inc., 14o F.2d 243 (gth Cir. 1944); NLRB v. Dixie
Motor Coach Corp., 128 F.2d 201 (sth Cir. 1942); Great So. Trucking Co. v.
NLRB, 127 F.2d i8o ( 4 th Cir. 1942).

when a weak inference might seem justified by experience. The
grounds for drawing an inference of bad faith are much stronger,
however, and the argument of policy hardly carries weight when
one is dealing with a stereotyped clause found in almost every
contract. For example, the recognition clause is a standard pro-
vision in almost every collective-bargaining agreement. No nor-
mal, well-advised employer would boggle over such a clause with-
out an ulterior motive. Wlrds' objections to a recognition clause
could be explained upon only two grounds. Its negotiators either
were highly peculiar or they were seeking to avoid contracting
with the union. Since Wards proved no peculiarity, the Board
drew the latter inference.66 In the second Reed & Prince case,6 7
the company insisted on including in the standard recognition
clause proposed by the union the words of the first proviso of
NLRA section 9(a), which reserves the right of an employer to
hear individual grievances; but when the union agreed to use
this statutory language upon condition that the second statutory
proviso, which gives the union the right to be present at any
adjustment of grievances, should also be added, the company ob-
jected. The Board said, "We cannot conceive of a good faith
basis for a refusal to incorporate a statutory obligation into a
contract in the very words of the statute.. This type of quibbling
conduct is consistent only with the conclusion that there was bad,
not good, faith bargaining." 68
Withholding agreement upon trivial matters also casts doubt
upon the employer's good faith. In several cases the Board has
placed reliance upon the company's unwillingness to allow the
union to use the company bulletin board.
We recognize that the Respondent is under no obligation to make
its bulletin boards or plant gates available to the Union for the
posting of notices. However, we also recognize that the granting
of such posting permission is a common industrial practice. Ac-
cordingly, it seems reasonable to us that the Respondent, if it was
dealing in good faith, would have offered to the Union some sort of
posting facilities. 69
66Montgomery Ward & Co., 37 N.L.R.B. 100, 121 (194), enforcement granted,
133 F.2d 676 (gth Cir. 1943).
° Reed & Prince Mfg. Co., 96 N.L.R.B. 850 (1951), enforcement granted,
2o5 F.2d 13I (ist Cir.), cert. denied, 346 U.S. 887 (1953).
6s 96 N.L.R.B. at 855.
"9 Id. at 854., Compare Montgomery Ward & Co., 90 N.L.R.B. 1244 (195o),
with Frohman Mfg. Co., 107 N.L.R.B. 1308 (1954).

ig58] GOOD-FAITH BARGAINING 1421
Such evidence is rarely used in isolation, but its persuasiveness

grows as the number of issues increases. When the employer
engages in protracted discussions on a wide variety of subjects
without agreeing to any stipulation suggested by the union, the
evidence is factually persuasive and its use does not measurably
interfere with freedom to negotiate. As Judge Magruder phrased
it:
[I]f an employer can find nothing whatever to agree to in an
ordinary current-day contract submitted to him, or in some of the
union's related minor requests, and if the employer makes not a
single serious proposal meeting the union at least part way, then
certainly the Board must be able to conclude that this is at least
some evidence of bad faith, that is, of a desire not to reach an
agreement with the union. . . . [T]he employer is obliged to make
some reasonable effort in some direction to compose his .differences
with the union, if § 8(a) (5) is to be read as imposing any sub-
70
stantial obligation at all.
This situation may arise during the negotiation of a first contract.
1
It rarely occurs upon renewal or modification.7
The same principle governs evidence of failure to make coun-
terproposals. The language of early cases, although not the actual
decisions, seemed to impose a duty to make counterproposals in
all negotiations7 2 but today it is clear that the Board may rely
upon such evidence only if it shows that with a wide field of bar-
gaining open the employer has been unwilling to make some
offer on some subject on which the parties might agree.73 Section
8(d), which was added by the Taft-Hartley amendments, may
have served as a word of caution, but it did not overrule the doc-
trine that proof of a refusal to make counterproposals is admis-
sible as evidence of bad faith. 4
7
° NLRB v. Reed & Prince Mfg. Co., 205 F.2d X31, 134-35 (ist Cir.), cert. denied,
346 U.S. 887 (1953).
" But see, e.g., J. W. Woodruff, Sr., go N.L.R.B. 8o8 (ig5o).
12 See, e.g., NLRB v. George P. Pilling & Son Co., ix9 F.2d 32, 37 (3d Cir.
194T).
11 Cases holding that failure to make a counterproposal is not evidence of
bad faith because only limited issues were under discussion include Harcourt and
Co., 98 N.L.R.B. 892 (1952); Collins Baking Co., 90 N.L.R.B. 895 (ig5o),
enforcement granted, 193 F.2d 483 (5th Cir. i951). Cases using failure to make
counterproposals as evidence of bad faith include NLRB v. Reed & Prince Mfg.,
Co., 205 F.2d 131 (Ist Cir.), cert. denied, 346 U.S. 887 (1953); NLRB v. O'Keefe &
Merritt Mfg. Co., z78 F.2d 44S (gth Cir. 1949); David L Cohen, gi N.L.R.B. 1363
(ig5o); N. Ben Weiner, 71 N.L.R.B. 888 (X946).
"The provision which became § 8(d) originally provided that the duty to

The NLRB also scrutinizes the position taken by an employer

in collective bargaining to the extent necessary to determine
whether it advanced demands so obviously intolerable to the
union as to suggest a purpose to obstruct negotiations. The most
common instance is the demand that a union file a performance
bond or incorporate or take other steps necessary to subject itself
to suit. Since experience revealed that this demand was fre-
quently made by employers who were proved by other evidence to
lack good faith, but that it was seldom if ever presented by em-
ployers who genuinely accepted the principles of collective bar-
gaining, proof that a particular employer made such a demand sus-
tained an inference that he was not acting in good faith.75 The
NLRB has also relied upon evidence that an employer refused
to execute a contract unless it reduced the wages then in effect,76
curtailed vacations, 77 or established wage rates below the rates
offered to individual employees; 78 but this evidence should be
significant only when there are other indications that the pro-
posal did not represent the employer's honest judgment as to
proper compensation. Thus limited, these decisions seem cor-
rect.
Three items of evidence tending to prove want of good faith
have gradually become per se violations. 9
(i) Refusal to sign a written agreement has always been
regarded as evidence of bad faith.8" Ordinary experience teaches
us to be suspicious of anyone who is going through the motions
of negotiating a contract yet evades questions about his will-
ingness to reduce to writing any agreement that may be reached.
A businessman who enters into negotiations with another com-
mercial firm looking towards a complicated transaction but with
the reservation that he will not reduce to writing or sign any
bargain in good faith did not impose an obligation to make counterproposals.

The wording was changed after the NLRB objected that it would preclude the
Board from considering one of the most important indicia of bad faith. Hearings
Before the Senate Committee on Labor and Public Welfare on S.z126 and S.55,
8oth Cong., ist Sess. '914 (1947).
"5 See note 36 supra.
76 C & D Coal Co., 93 N.L.R.B. 799 (195).
7 NLRB v. Deena Artware, Inc., 198 F.2d 645, 648, 65o (6th Cir. 1952).
8
" Northeastern Indiana Broadcasting Co., 88 N.L.R.B. 1381 (I95O).
"At times the Board has treated other conduct, such as demanding a per-
formance bond, as if it were unfair per se. See note 36 supra.
" See, e.g., NLRB v. Highland Park Mfg. Co., iio F.2d 632, 637-38 (4th
Cir. 1940).

agreement can hardly be thought to be bargaining in good faith.
But in labor relations the writing and joint execution are vastly
more important as a symbol than as a memorial of the bargain.
They bear witness to the fact that the terms and conditions of
employment are fixed not by the employer alone, but jointly by
representatives of both the employer and the union. Refusal to
sign is a negation of the principle of collective bargaining. It is a
denial of joint participation in the culminating act of promulgating
the wages, hours, and other terms and conditions of employment.
This is the true reason, I think, for the original decisions holding
that a refusal to sign a written contract was a per se violation of
section 8(5) -a judicial doctrine incorporated into section
8(d) by the Taft-Hartley amendments. It carries the law beyond
the requirement of formal negotiations and beyond a subjective
test designed to protect the union against being talked to death
and into an effort to realize at least in part the third purpose
of the Wagner Act-a partnership of management and labor
in governing the terms and conditions of employment.
(2) Unilateral action yields to much the same analysis. When
taken during negotiations or upon subjects on which the union
wishes to bargain it weakens the union by showing the employees
that it is useless to try to negotiate. If the employer unilaterally
raises wages or makes some other concession, his conduct effec-
tively tells the employees that without collective bargaining they
can secure advantages as great as, or possibly greater than, those
the union can secure. Unilateral changes made while the em-
ployees' representative is seeking to bargain also interfere with
the normal course of negotiations by weakening the union's bar-
gaining position. Consequently, proof that an employer changed
wage rates or other terms of employment in the midst of contract
negotiations ordinarily gives rise to the inference that he had no
intention of coming to an agreement; 82 the factual inference can
be negated by showing that there was a need for immediate action
or by proving that the negotiations had reached an impasse.
However, a number of decisions, which have not been squarely
"See H. J. Heinz Co. v. NLRB, 311 U.S. 514 ('94').
82 See NLRB v. National Shoes, Inc., 208 F.2d 688 (2d Cir. 1953); NLRB v.
Barrett Co., 135 F.2d 959 (7th Cir. '943); Stanislaus Implement and Hardware
Co., ioi N.L.R.B. 394 (1952), enforcement granted, 226 F.2d 377 (9th Cir. i955) ;
J. B. Cook Auto Mach. Co., 84 N.L.R.B. 688 (i949), enforcement granted,
184 F.2d 845 (6th Cir. ig5o).

1424 HARVARD LAW REVIEW Vol. 71
overruled, seem to indicate that unilateral action is an unfair

labor practice per se. 3 As in the case of refusal to execute a
contract with a union, a distinction should be drawn between in-
quiring into the employer's state of mind in order to distinguish
the sham from the real and condemning conduct which thwarts
the policy of making terms of employment dependent upon mutual
copsent. Whether unilateral action is an unfair labor practice
per se depends upon whether the National Labor Relations Act
seeks to compel joint participation by law or leaves the joint par-
ticipation to evolve without additional legal sanctions after it has
created opposing concentrations of economic power.8 4
Few labor unions have achieved sufficient economic power to
maintain unilateral control over wages, hours, and other terms
and conditions of employment. The International Typographical
Union attempted to exercise such power in 1948 by negotiating
local contracts with a fixed determination to reach no agreement
with employers. The ultimate aim was to preserve freedom to
strike in the event that a nonunion employee was brought into
an establishment in disregard of the ITU's traditional closed-shop
policy. In a series of cases this tactic was held to violate section
8 (b) ( 3 ).3
Although unilateral action is usually an unfair labor practice
it appears to be settled law that a company may lawfully bargain
for contract provisions assigning it management functions which
it may perform during the term of the contract without consulting
the union even though the subject matter is a topic on which the
employer is required to bargain collectively. 6 It is unfair, how-
ever, for an employer to refuse to sign any contract solely because
it does not reserve to the management unilateral control over each
and every feature of wages, hours, and other conditions of em-
'3 E.g., May Dep't Stores Co. v. NLRB, 326 U.S. 376 (i945) ; General Motors
Corp., 81 N.L.R.B. 779 (1949), enjorcement granted, 379
F.2d 221 (2d Cir. 1950);
Sullivan Dry Dock & Repair Corp., 67 N.L.R.B. 627 (1946). But see NLRB v.
Bradley Washfountain Co., 192 F.2d 144 (7th Cir. I95i), 65 HARv. L. REv. 697
(1952); McDonnell Aircraft Corp., xo9 N.L.R.B. 930, 934 (1954). See generally
Bowman, An Employer's Unilateral Action-An Unfair Labor Practice?, 9
VAND. L. REV. 487 ('956).
14 See pp. 1408, 1409 supra.
" International Typographical Union, 304 N.L.R.B. 8o6 (1953); Chicago
Typographical Union, 86 N.L.R.B. 1041 (i949), enforcement granted sub nom.
American Newspaper Publishers Ass'n v. NLRB, 193 F.2d 782 (7th Cir. ig5i),
aff'd, 345 U.S. 100 (i953).
8" See NLRB v. American Nat'l Ins. Co., 343 U.S. 395 (1952).

ployment8 7 Experience shows that the reservation of specific
management functions is consistent with the kind of collective
bargaining intended by the NLRA. Experience also shows that
companies may not only honestly seek, but often actually nego-
tiate, such contracts with labor unions. On the other hand, no
employer ever sought to reserve complete unilateral control un-
less he expected the negotiations to fail; and if such a contract
were signed there would have been no joint participation in the
terms or conditions of the agreement. When less than complete
unilateral control is sought to be reserved, the practical signifi-
cance of the point at issue will tend to prove the subjective state
of mind with which the employer is conducting the negotiations,,
(3)The cases dealing with the withholding of information
have an involved history which epitomizes the basic issue con-
cerning the meaning of good faith. The earliest cage dealt with
financial data. 9 When Pioneer Pearl Button Company cut wages,
the employees tried' out the new scale for a week and then re-
quested a revision. The plant manager replied that he could make
no change but would communicate with the home office. The em-
ployees struck and during the strike they formed a union. The
company's president visited the plant but refused to meet with
the union. The plant reopened five months later but the manager
refused to enter into negotiations saying that "there is no use
trying to bargain with the company, as they would not tie them-
selves to union regulation." 10 The plant was closed again pend-
ing the president's return. Public officials persuaded him to meet
the union committee, but at the meeting he declared that the
company "would have nothing to do with the Union" and that
"there was no use of trying to attempt to get an agreement
signed . . . ... When the union objected to the wage cut,
the president answered that the reason for his refusal to raise
wages or reduce hours was the company's poor financial condi-
tion, but when the committee questioned the explanation, he de-
clined to show its books to the committee or to have them audited.
S'See Majure v. NLRB, x98 F.2d 735 (5th Cir. 1952); NLRB v. Westing-
house Air Brake Co., 12o F.2d 1004 (3d Cir. 194).
"sFor a fuller discussion of this problem see Cox & Dunlop, Regulation of
Collective Bargaining by the National Labor Relations Board, 63 HARv. L. Rnv.
389, 418-25 (195o).
8 Pioneer Pearl Button Co., r N.L.R.B. 837 (1936).
9
9 °od. at 84X.
Id.at 842.

-1426 HARVARD LAW REVIEW ['Vol. 71
In holding that the company had violated section 8(s), the

Board commented upon the fact that the company, after stalling
for months, did no more negotiating than to take refuge in an
assertion of poverty which it was unwilling to verify.92 The proof
of refusal to supply relevant data probably supported the con-
clusion that the company had no intention of signing a contract
with the union upon any terms, but it seems plain that the evi-
9
dence was an unnecessary make-weight. 3
Later cases paved the way for a more stringent rule. In Alumi-
num Ore Co., 4 the collective-bargaining representative requested
the employer to grant a flat wage increase to all the employees
in the bargaining unit. The negotiations were amicable and pro-
ductive on other issues, but the employer objected to the flat in-
crease on the ground that it would be inequitable to break off
the previous practice of making individual adjustments and to
grant workers who had received a recent increase the same raise
as those who had not. After some argument the union accepted
this position. The employer then declared that it would deter-
mine what the individual rates should be, put them into effect and
consider adjustments only when an individual complained; in
this event the employee would be free to press the grievance
either individually or through his union representative. The em-
ployer also refused to furnish the union with a complete wage
history of the various employees in the bargaining unit. After
the usual proceedings the court of appeals sustained an order
finding that the company had violated section 8(a) (5).
[T]his was not the collective bargaining required by the act. It
was not the giving and taking in open discussion and negotiation
contemplated by Congress. Rather it was reversion to the procedure
92
Id. at 843.
9
In another early case, The Sherwin-Williams Co., 34 N.L.R.B. 651 (1941),
enforcement granted, 13o F.2d 255 (3d Cir. 1942), the company sought to justify
its refusal to raise wages by referring to a detailed trade-association study of the
job rates paid by other paint manufacturers in the community, but it refused
to allow the union to see the document. There was ample evidence of other
kinds to prove that the company had no intention of allowing the union to par-
ticipate in fixing terms and conditions of employment. The Board commented
that the refusal to produce the data was "inconsistent with the principle of
collective bargaining which seeks agreement as its end." 34 N.L.R.B. at 667.
The statement seems to imply that the employer's conduct in this respect was
evidence of his subjective determination. not to contract with the union upon
any terms.
"'Aluminum Ore Co. v. NLRB, 131 F.2d 485 (7th Cir. 1942).

of the past upon the part of the employer effectuating removal of
bargaining concerning the exact subject matter at issue. . . . The
method adopted by petitioner ignores this [statutory] standard of
conduct and amounted in its essence to a statement that "we shall
determine the increases and they will stand as what we are willing
to do, subject only to the right of individuals to present griev-
ances." 95
It is now settled that it is an unfair labor practice for .an em-

ployer to refuse to furnish the bargaining representative with
information concerning individual earnings, 96 job rates and classi-
fications, 97 merit increases,9 pension data,99 time-study data,100
incentive earnings, 1°1 piece rates, 1 2 and the operation of the in-
centive system. 03 Although many of the cases use the language
of bad faith, proof of the denial of the information is sufficient
standing alone to make out the violation of section 8 (a) (5).
These rulings cannot be explained either as instances of the
duty to grant bona fide recognition or as examples of the obliga-
tion to treat terms and conditions of employment generally as
matters of joint concern to both the employer and the collectivity
of employees. An employer might have recognized a union for a
decade and have an earnest desire to make and maintain collec-
tive-bargaining agreements yet be unwilling to disclose the man-
ner in which merit increases are administered. The difficulty is
overcome, however, by recognizing the accepted doctrine that
the duty to recognize the union's authority and to bargain in
good faith extends to each and every subject falling within the
statutory phrase "wages, hours and terms and conditions of em-
5
1d.
I at 487.
o See NLRB v. F. W. Woolworth Co., 352 U.S. 938 (1956) (per curiam),;
Boston Herald-Traveler Corp. v. NLRB, 223 F.2d 58 (1st Cir. '955)-, NLRB v.
Item Co., 220 F.2d 956 (5th Cir. i955); NLRB v. Whitin Mach. Works, 2,7
F.2d 593 (4th Cir. 1954).
" See Taylor Forge & Pipe Works v. NLRB, 234 F.2d 227 (7th Cir. 1956);
NLRB v. Boston Herald-Traveler Corp., 21o F.2d 134 (ist Cir. i954).
9 See NLRB v. J. H. Allison & Co., i65 F.2d 766 (6th Cir.), cert. denied,
335 U.S. 814 (1948).
O See Phelps Dodge Copper Products Corp., ioi N.L.R.B. 36o, 366 (1952).
10 See NLRB v. Otis Elevator Co., 208 F.2d 176 (2d Cir. i953).
101 See Dixie Mfg. Co., 79 N.L.R.B. 645 (1948), enforcement granted, i8o
F.2d 173 (6th Cir. 1950).

102 See Vanette Hosiery Mills, 80 N.L.R.B. i16 (948), enforcement granted,
179 F.2d 504 (5th Cir. ig5o).
'°'Dixie Mfg. Co., 79 N.L.R.B. 645 (1948), enforcement granted, i8o F.2d 173
(6th Cir. Ig5o).

1428 HARVARD LAW REVIEW [Col. 71
ployment." 0 4 In the Aluminum Ore Co. case the employer was

seeking to remove wages from the bargaining table. A union
cannot participate in the award of merit increases to individual
employees whose wage history and rates of pay the employer in-
sists upon keeping secret. Nor can there be joint discussion of
job standards or an incentive system until their method of opera-
tion is disclosed. In some of the cases the employer avowedly
challenged the bargainability-of the subject upon which informa-
tion was withheld."0 5 In others he was obviously seeking to avoid
negotiations upon the issue. 0 6 In virtually all the cases, except
those involving financial data, there could be no negotiation on
the subject, in any sense of the term, until the information was
supplied to the union. And since there was no bargaining on a
statutory subject the NLRB was not required to review the con-
duct of the negotiations. Neither the manner in which the nego-
tiations were conducted nor the employer's state of mind was in
issue. It was only confusing for the NLRB to treat the issues as
problems of good faith. The cases led directly to a new departure
in the interpretation of the duty to bargain.
V.
The new ground was broken first in the enforcement of sec-
tions 8(b) (3) and 8(d). The Textile Workers Union of America
and Personal Products Company had begun negotiating a new
collective-bargaining agreement shortly before the old contract
was to expire. Conferences were held. The parties worked out a
number of points and exchanged proposals and counterproposals;
but no agreement was reached. About three months later TWUA
began to engage in tactics calculated to disrupt the company's
business at a time when the volume of sales was high and a drop
of production would sharply curtail profits. Union officials per-
suaded employees to refuse to work overtime even though the old
contract provided premium pay for work in excess of eight hours
daily or forty hours a week and no one proposed to negotiate a
new arrangement. Employees who disregarded the ban were
threatened with physical violence and economic reprisals. TWUA
also sponsored the practice of taking two fifteen-minute rest
104 See note 2 supra.
'05 See, e.g., NLRB v. J. H. Allison & Co., 165 F.2d 766 (6th Cir.), cerl. denied,
335 U.S. 814 (1948).
108 See, e.g., Aluminum Ore Co. v. NLRB, 131 F.2d 485 (7th Cir. 1942).

periods on each shift even though the established allowances
were only ten minutes. When employees were requested to work
a special schedule, the union persuaded them to refuse. From
January through March there were deliberate slowdowns in a
number of departments, all sponsored by the union. Between
January 22 and July io there were twenty-five walkouts for the
ostensible purpose of attending union meetings. Early in Febru-
ary when the general manager referred to these disruptive prac-
tices and sought to explore the matter with a union official during
contract negotiations, the latter replied that it was not a proper
subject for discussion during a meeting to negotiate the new con-
tract and that he should telephone on some other occasion. There
was no suggestion that the union ever refused to negotiate. Upon
these facts the NLRB unanimously ruled that TWUA had refused
to bargain collectively in good faith in violation of section 8 (b) (3)
of the act.
We think it clear that such unprotected harassing tactics were
an abuse of the Union's bargaining powers - 'irreconcilable
with the Act's requirement of reasoned discussion in a background
of balanced bargaining relations upon which good-faith bargain-
ing must rest'- which impaired the process of collective bargain-
07
ing that Congress intended not only to encourage but to protect.
The Court of Appeals for the District of Columbia reversed
the NLRB order on the ground that proof of the harassing tactics
was not evidence of a lack of good faith.
There is not the slightest inconsistency between genuine desire to
come to an agreement and use of economic pressure to get the kind
of agreement one wants. . . [N]o inference of failure to bar-
gain in good faith could have been drawn from a total withholding
of services, during negotiations, in order to put economic pressure
on the employer to yield to the Union's demands. As a simple
matter of fact . . . no such inference can be drawn from a partial
08
withholding of services at that time and for that purpose.'
The NLRB has not only refused to accept the court-of-appeals
decision, 09 but it has generalized its own ruling to cover other
instances of misconduct. In International Union, United Mine
107Textile Workers (the Personal Products case), io8 N.L.R.B. 743, 746-47
(1954), enforced in part, set aside in part, 227 F.2d 409 (D.C. Cir. 9gss), cert.
denied, 352 U.S. 864 (1956).
108227 F.2d at 410.
109 See Insurance Agents' Int'l Union (the Prudential Ins. Co. case), rig
N.L.R.B. No. io3 (1957).

Workers (the Boone County case)," ° the union sponsored a

strike over a grievance cognizable under the arbitration clause
of the pertinent collective-bargaining agreement. The strike was
a breach of contract because an undertaking to arbitrate implies
a promise not to strike upon an arbitrable issue."' A strike in
breach of contract is not a concerted activity protected by sec-
tion 7. "2 The trial examiner reasoned that since the NLRB's de-
cision in the Personal Products case must rest on the hypothesis
that all unprotected activities which occur in a bargaining con-
text are union unfair labor practices, the United Mine Workers
had violated section 8(b) (3).111 The Board approved the deci-
sion. 14
It seems too plain for argument that unprotected activities in
the course of labor negotiations are insufficient, standing alone,
to prove that the union lacks a genuine desire to come to an agree-
ment. The NLRB rulings give the duty to bargain collectively
a new meaning. The term "good faith" becomes utterly inappro-
priate. The test ceases to be subjective in any true sense. One
can say that good faith implies a willingness to refrain from
abusing one's bargaining power and to engage in a "reasoned
discussion in a background of balanced bargaining relations";
and then one can infer a lack of good faith, as thus defined, from
the action which constitutes the abuse or interferes with the dis-
cussion. But this is to beat about the bush. The agency's atten-
tion is really focused on the particular items of conduct which
are alleged to fall short of accepted bargaining practices. The
shortcomings are per se violations. The NLRB has undertaken to
regulate the manner in which collective bargaining is conducted
regardless of the actor's state of mind.
Truitt Mfg. Co.,"' which applies the per se doctrine to an
employer, may help to demonstrate the accuracy of these obser-
vations. During negotiations upon the reopening of a collective-
21117 N.L.!.B. io95" (1957).
1 International Brotherhood of Teamsters v. W. L. Mead, Inc., 230 F.2d 576
(ist Cir.), cert. dismissed, 352 U.S. 802 (i956); see NLRB v. Dorsey Trailers,
Inc., 179 F.2d 589 (5th Cir. 1950).
112 See NLRB v. Dorsey Trailers, Inc., i79 F.2d 589 (5th Cir. 195o); Joseph
Dyson & Sons, 72 N.L.R.B. 445 (1947).
11a 117 N.L.R.B. at 1120-21.
4
'1 The vote was unanimous except that Member Jenkins did not participate.
115IIo N.L.R.B. 856 (I954), enforcement denied, 224 F.2d 869 ( 4 th Cir. 955),
rev'd, 351 U.S. 149 (xg96).

1958] GOOD-FAITH BARGAINING 143Y
bargaining agreement Truitt offered a two-and-a-half-cents-an-
hour increase. The union rejected the proposal in writing, and, as-
serting that the company could afford to pay a ten-cents-an-hour
general increase, it requested permission to have a certified public
accountant examine the company's financial records and deter-
mine the truth of the assertion that the company was unable to
meet the union's demand. Truitt refused on the ground that
"confidential financial information concerning the affairs of this
Company is not a matter of bargaining or discussing with the
Union." 116 Truitt then went on to argue that its average wage
was already higher than the average wage of competing com-
panies. There was further correspondence but neither side sub-
stantially changed its position. In the oral discussions the officers
referred to the company's precarious financial condition and said
that to increase wages ten cents an hour would "break the com-
pany." The union struck for five days but the company re-
mained firm and the men returned to work. Unfair-labor-prac-
tice charges were sustained by the NLRB on the ground that "it
is settled law, that when an employer seeks to justify the refusal
of a wage increase upon an economic basis . . . good-faith bar-
gaining under the Act requires that upon request the employer
attempt to substantiate its economic position by reasonable
proof." 117 The same principle had been stated in more general
terms in the Annual Report for 1952:
An employer's duty to bargain includes the obligation to furnish
the bargaining representative with sufficient information to enable
it to bargain intelligently, to understand and discuss the issues
raised by the employer in opposition to the union's demands, and
to administer a contract.118
The court of appeals declined to enforce the ensuing order

on the ground that:
To bargain in good faith does not mean that the bargainor must
substantiate by proof statements made by him in the course of the
bargaining. It means merely that he bargain with a sincere desire
to reach an agreement. There can be no question but that the
company here was bargaining in that spirit." 9
I1 io N.L.R.B. at 86o.
1 7
2 Id. at 856.
118 17 NLRB ANN. REP. 172 (1953).
119 224 F.2d at 874.

On certiorari the Supreme Court sustained the NLRB decision.

Mr. Justice Black, who spoke for the Court, evaded every issue.
We agree with the Board that a refusal to substantiate a claim of
inability to pay increased wages may support a finding of a failure
to bargain in good faith .... We do not hold, however, that in
every case in which economic inability is raised as an argument
against increased wages it automatically follows that the em-
ployees are entitled to substantiating evidence. Each case must
120
turn on its own particular facts.
The opinion is highly unsatisfactory for two reasons. First,
the NLRB had made no factual finding of bad faith. Its opinion
referred to a settled rule of law. Its brief pitched the case upon
the ground that there was a legal duty to supply information rele-
vant to the bargaining issues. "Experience demonstrates . . .
that production of such data furthers industrial peace and good
faith negotiations, thereby accomplishing the primary purpose of
the Act." 121 Neither the brief nor the opinion cited "particular
facts" which made the refusal of information indicative of bad
faith in the Truitt case. In the only subsequent case involving
this problem the NLRB applied the Truitt ruling upon the ground
that the "particular facts" were the same as in the Truitt case,
i.e. the employer had pleaded financial inability to grant a wage
22
increase and then refused to furnish any relevant information.
Second, mere proof that a company withheld financial data
necessary to examine the plea of poverty does not support a
finding that the negotiators lacked subjective good faith. Both
management and union negotiators would be shocked to have the
NLRB enforce Mr. Justice Black's statement that "good-faith
bargaining necessarily requires that claims made by either bar-
gainer should be honest claims," ' 23 but even if this is good law,
withholding the information neither shows that the company's
assertions were dishonest nor indicates that it was seeking to evade
agreement with the union. The management might have had
either motive. It also might have been actuated by fear of im-
pairing the company's credit rating if the full extent of its financial
embarrassment became known. It might have been reluctant to
120351 U.S. at 153.
Brief for Appellant, p. 9, NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
12'
22B. L. Montague Co., 1i6 NJL.R.B. 554 (1956).
123351 U.S. at 152.

open the way to a long argument over balance sheets and income
statements with union representatives who lacked financial ex-
perience. It might have been afraid that the information would
leak to competitors. It might have had a strong emotional preju-
dice for secrecy. With so many explanations available a finding
on motivation would be sheer speculation. The Pioneer Pearl
Button case cited by Justice Black does not remotely suggest that
such proof standing alone would be enough to support a finding
124
of bad faith.
Much more could have been said in support of the NLRB
ruling if the Court had been willing to face the issue candidly.
The earlier strains of thought developing the duty to bargain
collectively point toward requiring financial data but each stops
somewhat short of the conclusion.
The duty to bargain - to meet and treat - was imposed in
the hope that negotiations would lead to the kind of rational ex-
change of facts and arguments which increases mutual under-
standing and then results in agreement. 2 It is a natural step for-
ward to regulate the character of the negotiations so as to in-
crease the probability of rational discussion - but it is also a
step carrying many implications.
The familiar statement that good faith requires "an open mind
and sincere desire to reach an agreement" may easily be taken
to imply a duty to be willing to conduct the bargaining in such
a way as to increase the likelihood of negotiating a contract with-
out resort to economic power. But since the purpose of the test
was different, this interpretation would pour new meaning into
the words. 2 6
The transition from the PioneerPearlButton case to the Truitt
decision has analogies throughout legal history. Activities which
originally were regarded as some evidence of a fact carrying legal
consequences - in this case bad faith in a truly subjective sense
- often come to be sufficient proof standing alone, thus giving
rise to new rules of conduct. The process had taken place, albeit
for stronger reasons, in dealing with a refusal to sign a written
contract, unilateral action, and withholding wage data.' 27 But
'24 See pp. 1425-26 supra.

125 See pp. 1408-09 supra.
2
' ' See p. 1414 supra.
" See pp. 1422-28 supra.

1434 HARVARD LAW REVIEW [Vol. 7,
although this is a way in which law grows, use of the technique
ought to depend upon a conscious examination of the underlying
questions of policy.
The Truitt case was distinguishable from most of the prece-
dents upholding the union's right to various kinds of data per-
taining to wages and workloads. In those cases there could be
no bargaining upon the particular issue unless the information
were furnished. The most plausible explanation of the employer's
conduct - sometimes the only conceivable explanation - was
that he was seeking to exclude the collectivity of employees from
effective participation in determining the matter in question. An
unsupported plea of poverty does not stymie wage negotiations.
The union may contend that the company's financial condition is
irrelevant, as unions often argue. The discussion may cover com-
parison with wage rates paid for similar jobs or by similar com-
panies, the trend in wage rates both nationally and locally, changes
in productivity, and the rise or decline in the cost of living. 2 ,
But despite the narrow ground available the wage-data cases
could be, and sometimes were, said to rest upon the broader
proposition that both parties to labor negotiations have an obliga-
tion to furnish information necessary to intelligent discussions in
which there is a willingness to let the ultimate decision turn upon
fair consideration of the facts and arguments.
This is the ideal collective bargaining towards which the
National Labor Relations Act was directed. Accurate financial
data is essential to mature collective bargaining. Labor organ-
izations maintain research staffs to obtain and evaluate financial
information in order that they may plan intelligently and adjust
their demands to realities. Unions may make excessive demands
based upon rumor or emotion which are wholly out of line with
the facts merely because they lack access to accurate data. Under
such circumstances there is little opportunity for the union to
weigh the wisdom or justice of resorting to a strike and still less
chance to calm its more aggressive members. One of the prin-
cipal purposes of collective bargaining has been to fill these needs.
Congress regarded collective bargaining as an instrument for
achieving industrial peace because "each side obtains a better
understanding of the actual state of the industry, of the condi-
"I See Dunlop, The Economics' of Wage-Dispute Settlement, 12 LAW &
CONTEMP. PROB. 281 (1947).

tions which confront the other side, and of the motives which in-
fluence it. Most strikes and lockouts would not occur if each
29
party understood exactly the position of the other."
But should the statute be read to impose an obligation to con-
form to good bargaining practice, which necessarily means any
practice which the NLRB or courts deem requisite in the light
of such standards as they can derive from the writings of "ex-
perts" or the conduct of experienced negotiators? Or is it wiser
to require only bona fide recognition coupled with some kind of
discussion looking toward an agreement, thus leaving bargaining
practices to voluntary improvement as the relationship between
a company and union matures?
The NLRB decisions apparently launch it upon the former
course for the Personal Products and the Boone County cases
go far beyond the Truitt decision. It is too soon to conclude that
the Supreme Court is committed. The disingenuousness of the
Truitt opinion may have been designed to leave open an avenue
of retreat. Perhaps the problems are most tractable to case-by-
case decision, but even in this process some heed should be given
to the implications for long-range public labor policy. The fol-
lowing questions seem pertinent.
(i) Are standards available by which to judge the fairness or
unfairness of the course of conduct which a company or union
follows in attempting to negotiate an agreement? Such phrases
as "abuse of bargaining powers" and "balanced bargaining rela-
tions" have no settled meaning. Some years ago the Slichter Com-
mission, a tripartite body appointed by the governor of Massa-
chusetts, suggested a code of conduct for company and union
negotiators designed to improve collective bargaining. The Com-
mission commented that "the process of negotiation is impaired"
whenever a corporation lays down a nationwide policy which ties
the hands of its negotiators. 130 Is laying down such policies a
violation of section 8(a) (5)? The report also urged unions to
avoid taking strike votes before an impasse had been reached.
"A strike vote in advance of hearing the arguments of the other
side is inconsistent with an attempt to settle differences on the
basis of an appeal to what is fair."'' Does section 8(b)(3)
129 H.R. Doc. No. 380, 57th Cong., ist Sess. 844 (1902).
130 Report to the Governor of Massachusetts on Labor-Management Relations,
i IND. & LAB. REL. REV. IIO, III (X947).
31
1 Id. at 112.

forbid unions to take strike votes before negotiation is exhausted?

Another suggestion was that the parties should avoid taking
firm public positions in advance of negotiations. 3 ' For the union
to state that it will not settle for less than a ten-per cent wage
increase or for the employer to announce that it will never con-
cede a union shop makes agreement more difficult because loss
of face is entailed in any subsequent concessions. The technique
most conducive to reaching some agreement often excludes tactics
most conducive to getting agreement on one's own terms. At least
one labor organization bitterly criticized this portion of the Slich-
ter report on the ground that a strike cannot be won without the
widespread community support created by strong publicity. To
reverse the case, suppose the American Cotton Company operated
a New Hampshire textile mill where the Textile Workers Union
of America was the bargaining representative. American also had
four unorganized mills in the deep South. On December i, TWUA
presented contract proposals including a demand for a fifteen-per
cent wage increase. At the collective-bargaining conferences
American listened to TWUA's explanation of its proposals, heard
its arguments, asked a number of questions, and then requested
an adjournment until December 5 to prepare a reply. On Decem-
ber 4, American inserted a full-page advertisement in all the local
newspapers criticizing TWUA's wage demand, stating that it
would close its New Hampshire mill before granting the exhorbi-
tant wage increases requested by TWUA, and announcing that
on December 2 it had granted a five-per cent wage increase in the
four southern mills which it would put into effect at the New
Hampshire mill as soon as TWUA's agreement could be secured.
Has American failed to bargain in good faith? One could infer
from the newspaper announcement that American was doing
everything possible to build up sentiment against the demand for
a larger wage increase. The prospects for a negotiated agreement
based upon the exchange of facts and arguments were substan-
tially reduced. On the other hand, such advertisements are rather
33
common incidents of collective bargaining.1
Perhaps we should not be too much troubled by vague phrases
132 d at xii.
133 It was held in General Elec. Co. v. Gojack, 68 F. Supp. 686 (N.D. Ind. 1946),
that an employer who engaged in a similar maneuver failed to qualify for an
injunction against violence under § 8 of the Norris-LaGuardia Act because he had
not made every reasonable effort to settle the dispute.

and unanswered questions. As Justice Cardozo reminds us in the
quotation which prefaces this paper, the standard need not be
found in dictionary definitions. Both common and administrative
law have long used vague phrases to police the conduct of lag-
gards who fall behind the standards developed by the relevant
portion of the community. The critical question in our inquiry
is whether labor and management circles have developed a suffi-
cient consensus of opinion about collective-bargaining practices
for the law to recognize the laggards. If so, the meaning of "good
bargaining practice," of "mature collective bargaining" or, if
you will, of "bargaining in good faith" can be found in the ways
by which management and labor negotiate contracts that enable
them to work and live together.
From this standpoint the Truitt, PersonalProducts, and Boone
County cases may be acceptable. Employers accustomed to labor
negotiations seldom balk at giving the modicum of financial in-
formation required by the NLRB. The slowdown and quickie
strike seem morally indefensible to an outsider; perhaps the in-
frequent use of such tactics is evidence that employees share this
feeling. No one defends an unprovoked strike in breach of con-
tract.
But it is not enough for the NLRB to express its own moral
judgment or even community sentiment. To say "there ought
to be a law against it" does not demonstrate the propriety of
the NLRB's imposing the prohibition. Even in 1947 Congress
was sensitive to the difficulties inherent in efforts to regulate
labor's resort to economic weapons. Proposed restrictions upon
freedom to strike and picket were sharply debated both in com-
mittee and on the floor. Those which were approved were written
in section 8(b) (4) in fairly specific language. 1 34 Neither slow-
downs nor strikes in breach of contract were prohibited. Section
13 provides that nothing in the act, "except as specifically pro-
vided for herein," shall be construed to diminish "the right to
strike." 135 Section 5o of the Labor Management Relations Act,
which includes the amended NLRA, defines "strike" to include
"any concerted slow-down or other concerted interruption of
operations by employees." "I The Board simply disregarded the
"' 61 Stat. 141 (I947), 29 U.S.C. § i58(b) (4) (1952).

23561 Stat. 151 (i947), 29 U.S.C. § x63 (1952).
13 61 Stat. 161 (1947), 29 U.S.C. § 142 (1952).

1438 HARVARD LAW REVIEW [Vol.-7I
implications of these provisions in reading a moral judgment into

the amorphous duty to bargain collectively.
The Boone County case illustrates still another danger. The
legal system includes a diversity of tribunals each with prescribed
functions. The NLRB has not been assigned the task of policing
all unlawful conduct which occurs in the context of a bargaining
relation. The Senate bill which emerged from conference as the
Taft-Hartley Act would have made it an unfair labor practice
"to violate the terms of a collective bargaining agreement or the
terms of an agreement to submit a labor dispute to arbitra-
tion . . . ..13 This provision was deleted by the conference
committee on the ground that the enforcement of labor con-
tracts should be left to the courts. 8 Since there is nothing in
the Boone County case distinguishing the UMW's resort to a
strike instead of arbitration from any other strike which violates
a promise to arbitrate, the decision makes a union unfair labor
practice out of condtict which the Congress decided should not
be policed by the NLRB. Moreover, since an employer's re-
fusal to join in the arbitration of an arbitrable grievance would
seem to be just as much an abuse of bargaining power as the
union's strike,139 the arbitration clause could be enforced against
him as a violation of section 8(a) (5). All the litigation over
judicial enforcement of such clauses hias been unnecessary folly.
Nor is this all. There are indications that the state and federal
courts may be required to decline jurisdiction over suits for
breach of contract when the defendant's conduct was also an
unfair labor practice. 40 If the doctrine is sound, the Boone
County case would not only give the NLRB power which Con-
gress intended to deny to the Board, it would also oust the courts
of jurisdiction over cases which Congress intended them to hear.
(2) Can the NLRB effectively regulate the actual conduct of
collective negotiations? The decisions. imposing an obligation to
bargain in good faith have often been criticized on the ground
137I LEGisLATivE HISTORY OF THE LABOR MANAGEMNT RELATIONS ACT 239
(1948).
13
H.R. REP. No. sio, 8oth Cong., ist Sess. 41-42 (1947); 1 LEGIsLATnE
HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT 545-46 (1948).

139 When an employer refuses either to adjust a grievance or to submit the
issue to arbitration it is simply using its economic power to give effect to its will.
14" See, e.g., United Ass'n of Journeymen and Apprentices of the Plumbing In-
dustry v. Marchese, Si Ariz. 162, 302 P.2d 930 (1956). Such decisions seem highly
questionable.

that since it is futile to legislate a state of mind, the duty is easily
evaded. There are undoubtedly labor-relations advisers who have
made good the promise to talk a union to death without either
signing a contract or involving the employer in unfair-labor-prac-
tice proceedings; but section 8(a) (5) seems on the whole to have
been remarkably effective. The law can influence men's attitudes,
up to a point, by declaring a higher standard of conduct than the
legal machinery can enforce. A good many companies would have
done no more if listening politely had satisfied their legal obli-
gations. Many empty discussions were gradually and uncon-
sciously transformed into a bona fide exchange of ideas leading to
mutual persuasion; for this is a field in which there is much wis-
dom in the saying of Elie Hal~vy that "many a man has become a
good man as a result of a life of hypocrisy." ' Perhaps con-
tinued NLRB decisions defining good bargaining practices and
outlawing abuses would exert a similar influence.
When an employer is alleged to have denied a union bona fide
recognition, something may be gained by review of the negotia-
tions. If an unfair labor practice caused a strike which failed, the
NLRB can order the company to reinstate the strikers in their
142
former positions and to discharge replacements if necessary.
The company will be ordered to bargain with the union even
though it has lost its majority support with the passage of
events.' 43 The weak union thus gains a new lease on life.
It is doubtful whether much is gained by retrospective review of
the negotiations, however, when the parties have actually bar-
gained together. Usually they will have signed some kind of an
agreement. The union signs despite the employer's unfairness be-
cause almost any contract is preferable to a hiatus in which the
union can offer its members nothing except the hope of winning
an unfair-labor-practice case. The employer who is victimized
by an unfair labor practice will ordinarily sign because he has no
practicable alternative. If the contract is too one-sided, the loser
may file unfair-labor-practice charges. A year or two later the
NLRB may determine that section 8(a) (5) or 8(b) (3) was vio-
lated. After another twelve months more or less, the courts may
41 Quoted in Brogan, Unnoticed Changes in America, Harper's Magazine,

Feb. 1957, Pp. 27, 32.
142 Remington Rand, Inc., 2 N.L.R.B. 626, 737 (X937), enforced in part, set
aside in part, 94 F.2d 862 (2d Cir. 1938).
14' Franks Bros. Co. v. NLRB, 321 U.S. 702 (x944).

enforce the NLRB decision. Will the decision accomplish any-

thing at this late date? During the interval the parties will have
had to go about their business. Conditions change. Relationships
develop. I wonder whether the bargains struck despite "miscon-
duct" in the course of the negotiations are not likely to be more
viable than any formal legal document addressed to a situation
which is two or three years outdated.
There is also danger that the regulation of collective-bargaining
procedures may cause negotiators to bargain with a view toward
making the strongest record for NLRB scrutiny. The report of
the Truitt negotiations bears ample evidence of the jockeying of
lawyers. 144 Hammering out a labor agreement requires all the
negotiators' skill and attention. To divert them from the main
task by putting a value on building up or defeating an unfair-
labor-practice case diminishes the likelihood that the negotiations
will be successful.
(3) Would NLRB regulation of the conduct of collective-bar-
gaining negotiations affect the relative bargainingpower of main-
agement and labor? For the government to tell the parties how
they must conduct themselves in collective-bargaining negotia-
tions would seem to lead inevitably to weighting the scales in favor
of one side or the other, for tactical maneuvers influence the proc-
esses of persuasion especially where economic power is a primary
factor. The language of NLRB opinions reveals the risk. Slow-
downs and strikes in breach of contract violate section 8(b) (3)
because they involve abuse of "bargaining powers." 145 Possibly
the phrase is only an unhappy choice of words, but the emphasis
which the author put upon "powers" suggests a deliberate judg-
ment that unions ought not to have such weapons because they
are already in a strong bargaining position. 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 "bar-
gaining 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 is unfair for an employer to stall nego-
.. Truitt Mfg. Co., iio N.L.R.B. 856, 860-67 ('954), enforcement denied,
224 F.2d 869 (4th Cir. 1955), rev'd, 351 U.S. 149 (1956).
...Textile Workers (the PersonalProducts case), xo8 N.L.R.B. 743, 747 ('954),
enforced in part, set aside in part, 227 F.zd 409 (D.C. Cir. 1955), cert. denied, 352
U.S. 864 (1956).

tiations through a busy season or while he is building up inven-
tory so that he can stand a strike better than the workers? The
NLRA sought to increase the bargaining power of employees by
substituting collective bargaining for individual bargaining. Many
sponsors of the Taft-Hartley amendments supposed that they
were redressing the balance by outlawing specified union tactics.
These are intelligible legislative policies but surely a quasi-judi-
cial agency ought not to engage in an effort to readjust the bal-
ance under the guise of statutory interpretation.
(4) Would NLRB regulation of the conduct of negotiations
be a step toward regulation of the substantive provisions of col-
lective bargaining? The effort to regulate the manner in which
collective-bargaining negotiations are conducted can easily in-
fluence the substantive issues. The NLRB rule that an employer
must produce evidence of his financial condition whenever he
pleads financial inability to raise wages exemplifies the duty "to
furnish the bargaining representative with sufficient information
to enable it to bargain intelligently." '4 The NLRB has not re-
quired the submission of financial data unless the employer
pleads poverty, presumably because its relevance depends upon
the plea. 147 But we may wonder whether the distinction can be
maintained. If the employer pleads that it cannot raise wages
and also set aside sufficient working capital, its financial condi-
tion becomes relevant. 148 Again the company's assertion would
make the information material. Logic would seem to require a
similar result if the management asserts only that it cannot
raise wages and pay high dividends. Suppose now that the union
alleges that profits are so high that wages should be increased,
and then demands an opportunity to examine the corporate
books so that the parties can discuss the issue intelligently. If the
company admits that profits are a factor in wage determination,
then surely the books are relevant and theory would require their
production. If the company denies that profits are a factor, the
17 NLRB ANN..
146 172 (1953). The General Counsel quite inconsistently
holds, however, that financial records may be withheld from the union if an inde-
pendent accountant is allowed to see them in order to verify the claim of poverty.
Administrative Decision of the General Counsel, Case 516, CCH LAB. L. REP.
12077 (1952).
147 See Pine Industrial Relations Comm., Inc., 40 L.R.R.M. 1315 (NLRB z957).
14
The General Counsel thus far appears to hold the view that the union
is not entitled to the data under these circumstances. Cf. Administrative Decision
of the General Counsel, Case No. 951, CCH LAB. L. REP. ff 52027 (1954).

1442 HARVARD LAW REVIEW [Vol 71
relevancy of the books no longer stands confessed. But should

the NLRB allow an employer to fob off the union with his asser-
tion that profits are irrelevant? Should it not decide the issue of
relevancy so that it can say whether refusal to produce the books
was an unfair labor practice? The decision would have tremen-
dous impact upon wage negotiations. Whichever view the NLRB
took would probably influence the substance of wage bargains,
for today's negotiations do not turn upon the ascertainment of
objective facts but upon the evaluation of the data.
One further illustration may be helpful. It is an unfair labor
practice for a union to strike in order to compel the employer
to yield on an arbitrable grievance. We are told that such con-
duct is an abuse of bargaining power rather than reliance upon
the orderly processes of collective bargaining which the NLRA
was intended to encourage. 149 It is not hard to imagine the very
same words being stretched to cover an adamant refusal to put
an arbitration clause into a collective-bargaining agreement.
Would it not be an effort to preserve the right to rely upon sheer
power in lieu of the orderly procedures of arbitration? Ninety-
five per cent of all collective-bargaining agreements contain ar-
bitration clauses. Men experienced in industrial relations, whether
they be management or union representatives or disinterested ob-
servers, uniformly favor this method of resolving disputes which
arise in the administration of a collective-bargaining agreement.
Indeed the refusal to agree to arbitrate grievances is more widely
condemned by intelligent opinion than the failure to produce
financial data.
I do not mean to predict that this will be the course of decision.
The logic is by no means inevitable. But a Board which thought
it wise to take an active part in shaping collective bargaining
might find it an easy course to follow without straining the
precedents to any greater degree than the development of cur-
rent NLRB concepts of good faith has strained earlier decisions.
The critical decision may have to be made before we move into
government regulation of the processes of collective bargaining
rather than after that development is accomplished.
149 See pp. 1429-30 SUfla.

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I HARVARD LAW REVIEW

THE DUTY TO BARGAIN IN GOOD FAITH

The standard set up by the statute is not a rule of law; it is rather

Q ECTION 8(a) (5) of the National Labor Relations Act pro-

HeinOnline -- 71 Harv. L. Rev. 1401 1957

was being debated in Congress the Chairman of the Senate Com-

HeinOnline -- 71 Harv. L. Rev. 1402 1957

HeinOnline -- 71 Harv. L. Rev. 1403 1957

relative duty was occasionally expressed in findings directing em-

The duty is enforceable by a private suit for an injunction, but

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HeinOnline -- 71 Harv. L. Rev. 1405 1957

conditions . . . be stabilized as far as possible, and should be

HeinOnline -- 71 Harv. L. Rev. 1406 1957

Then, in the next paragraph, he turned to plead for the enactment

[Labor unions] were organized out of the necessities of the situa-

HeinOnline -- 71 Harv. L. Rev. 1407 1957

employ and to resist arbitrary and unfair treatment. Union was

The denial of recognition is an effective means of breaking up

3 Cf. CATLim, Tim LABOR PROBLEM 424 (rev. ed. X935).

HeinOnline -- 71 Harv. L. Rev. 1408 1957

Although there is little doubt that the sponsors of the Wagner

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no less obviously unfair,36 for, whatever its meaning, the duty

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HeinOnline -- 71 Harv. L. Rev. 1411 1957

security provisions or even to discuss them with the union. "Such

HeinOnline -- 71 Harv. L. Rev. 1412 1957

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Act.5" Under the Taft--Hartley amendments its conduct would

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There are two differences between the antinomy and Judge

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repudiating the commitments made by the company's bargaining

N.L.R.B. 308 (1953); 3. W. Woodruff, Sr., 90 N.L.R.B. 8o8 (I95O), enforcement

HeinOnline -- 71 Harv. L. Rev. 1419 1957

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Such evidence is rarely used in isolation, but its persuasiveness

HeinOnline -- 71 Harv. L. Rev. 1421 1957

The NLRB also scrutinizes the position taken by an employer

bargain in good faith did not impose an obligation to make counterproposals.

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overruled, seem to indicate that unilateral action is an unfair

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In holding that the company had violated section 8(s), the

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It is now settled that it is an unfair labor practice for .an em-

F.2d 173 (6th Cir. 1950).

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ployment." 0 4 In the Aluminum Ore Co. case the employer was

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HeinOnline -- 71 Harv. L. Rev. 1429 1957