Syllabus. NATIONAL LABOR RELATIONS BOARD v. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 126. Argued March 4, 1952.-Decided May 26, 1952. 1. Under the National Labor Relations Act, as amended, the National Labor Relations Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements. Pp. 401–404. 2. It is not per se an "unfair labor practice" under § 8 (a) (1) or (5) of the Act for an employer to bargain for the inclusion in a collective bargaining agreement of a "management functions clause" providing that the right to select, hire, promote, discharge, demote or discipline for cause and to determine the schedules of work, is a prerogative of management on which the employer's final decision shall not be subject to arbitration. Pp. 404-409. (a) The Act does not empower the Board to disrupt common collective bargaining practices by forbidding employers to bargain for flexible treatment of such matters and by requiring them to include in labor agreements provisions establishing fixed standards for work schedules or any other condition of employment. P. 408. (b) The duty to bargain collectively is to be enforced by application of the good-faith bargaining standards of § 8 (d) to the facts of each case rather than by prohibiting all employers in every industry from bargaining for management functions clauses altogether. P. 409. 3. Congress has charged the Courts of Appeal, not this Court, with the normal and primary responsibility of reviewing the conclusions of the Board and deciding whether to grant or deny enforcement of the Board's orders; and it is not for this Court to review a conflict of the evidence nor to reverse a Court of Appeals because this Court might find the record tilting one way rather than the other-especially in cases involving a statutory standard such as "good faith," which can have meaning only in its application to the facts of a particular case. Labor Board v. Pittsburgh S. S. Co., 340 U. S. 498. Pp. 409-410. Opinion of the Court. 343 U.S. 4. That a collective bargaining agreement between the union and the employer was negotiated and signed did not render this cause moot. P. 399, n. 4. 187 F.2d 307, affirmed. The Court of Appeals granted in part and denied in part enforcement of an order of the National Labor Relations Board, 89 N. L. R. B. 185, requiring an employer to bargain collectively with a union and, in effect, forbidding the employer to bargain for any "management functions clause" covering a condition of employment. 187 F. 2d 307. This Court granted certiorari. 342 U. S. 809. Affirmed, p. 410. Mozart G. Ratner argued the cause for petitioner. With him on the brief were Solicitor General Perlman, George J. Bott, David P. Findling and Marcel MalletPrevost. Louis J. Dibrell argued the cause for respondent. With him on the brief were M. L. Cook and Charles G. Dibrell, Jr. MR. CHIEF JUSTICE VINSON delivered the opinion of the Court. This case arises out of a complaint that respondent refused to bargain collectively with the representatives of its employees as required under the National Labor Relations Act, as amended.1 The Office Employees International Union, A. F. of L., Local No. 27, certified by the National Labor Relations Board as the exclusive bargaining representative of respondent's office employees, requested a meeting with respondent for the purpose of negotiating an agreement governing employment relations. At the first meetings, 1 49 Stat. 449 (1935), 29 U. S. C. § 151 et seq., as amended, 61 Stat. 136 (1947), 29 U. S. C. (Supp. IV) § 151 et seq. 395 Opinion of the Court. beginning on November 30, 1948, the Union submitted a proposed contract covering wages, hours, promotions, vacations and other provisions commonly found in collective bargaining agreements, including a clause establishing a procedure for settling grievances arising under the contract by successive appeals to management with ultimate resort to an arbitrator. On January 10, 1949, following a recess for study of the Union's contract proposals, respondent objected to the provisions calling for unlimited arbitration. To meet this objection, respondent proposed a so-called management functions clause listing matters such as promotions, discipline and work scheduling as the responsibility of management and excluding such matters from arbitration. The Union's representative took the position "as soon as [he] heard [the proposed clause]" that the Union would not agree to such a clause so long as it covered matters subject to the duty to bargain collectively under the Labor Act. Several further bargaining sessions were held without reaching agreement on the Union's proposal or respondent's counterproposal to unlimited arbitration. As a result, the management functions clause was "by-passed" for bargaining on other terms of the Union's contract proposal. On January 17, 1949, respondent stated in writing its agreement with some of the terms proposed by the Union and, where there was disagreement, respondent offered counterproposals, including a clause entitled "Functions and Prerogatives of Management" along the 2 As drafted during the bargaining session, the proposed clause read: "The right to select, hire, to promote, demote, discharge, discipline for cause, to maintain discipline and efficiency of employees, and to determine schedules of work is the sole prerogative of the Company and the Company's decision with respect to such matters shall never be the subject of arbitration." (R. I, p. 97.) Opinion of the Court. 343 U.S. lines suggested at the meeting of January 10th. The Union objected to the portion of the clause providing: "The right to select and hire, to promote to a better position, to discharge, demote or discipline for cause, and to maintain discipline and efficiency of employees and to determine the schedules of work is recognized by both union and company as the proper responsibility and prerogative of management to be held and exercised by the company, and while it is agreed that an employee feeling himself to have been aggrieved by any decision of the company in respect to such matters, or the union in his behalf, shall have the right to have such decision reviewed by top management officials of the company under the grievance machinery hereinafter set forth, it is further agreed that the final decision of the company made by such top management officials shall not be further reviewable by arbitration." At this stage of the negotiations, the National Labor Relations Board filed a complaint against respondent based on the Union's charge that respondent had refused to bargain as required by the Labor Act and was thereby guilty of interfering with the rights of its employees guaranteed by Section 7 of the Act and of unfair labor practices under Sections 8 (a) (1) and 8 (a)(5) of the Act.3 361 Stat. 136, 140-143 (1947): "SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, . "SEC. 8. (a) It shall be an unfair labor practice for an employer"(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; "(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a). "(d) For the purposes of this section, to bargain collectively is the 395 Opinion of the Court. While the proceeding was pending, negotiations between the Union and respondent continued with the management functions clause remaining an obstacle to agreement. During the negotiations, respondent established new night shifts and introduced a new system of lunch hours without consulting the Union. On May 19, 1949, a Union representative offered a second contract proposal which included a management functions clause containing much of the language found in respondent's second counterproposal, quoted above, with the vital difference that questions arising under the Union's proposed clause would be subject to arbitration as in the case of other grievances. Finally, on January 13, 1950, after the Trial Examiner had issued his report but before decision by the Board, an agreement between the Union and respondent was signed. The agreement contained a management functions clause that rendered nonarbitrable matters of discipline, work schedules and other matters covered by the clause. The subject of pro performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: "SEC. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: . . . * Respondent's suggestion that negotiation of a contract rendered the case moot has been properly rejected below. See Labor Board v. Mexia Textile Mills, 339 U. S. 563 (1950); Labor Board v. Pool Mfg. Co., 339 U. S. 577 (1950). |