361 U.S. 477 (1960), 15, National Labor Relations Board v. Insurance Agents'

Docket Nº:No. 15
Citation:361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454
Party Name:National Labor Relations Board v. Insurance Agents'
Case Date:February 23, 1960
Court:United States Supreme Court

Page 477

361 U.S. 477 (1960)

80 S.Ct. 419, 4 L.Ed.2d 454

National Labor Relations Board


Insurance Agents'

No. 15

United States Supreme Court

Feb. 23, 1960

International Union, AFL-CIO

Argued December 7-8, 1959




On a complaint before the National Labor Relations Board charging that a union had refused to bargain in good faith with an employer in violation of § 8(b)(3) of the National Labor Relations Act, as amended, it appeared that the union had conferred with the employer at the bargaining table for the purpose and with the desire of reaching an agreement on contract terms, but that, during the negotiations, it had sponsored concerted on-the-job activities by its members of a harassing nature designed to interfere with the conduct of the employer's business, for the avowed purpose of putting economic pressure on the employer to accede to the union's bargaining demands.

Held: Such tactics would not support a finding by the Board that the union had failed to bargain in good faith as required by § 8(b)(3). Pp. 478-500.

(1) The basic premise of the duty of collective bargaining required in the Act is that it is a process in which the parties deal with each other in a serious, good-faith desire to reach agreement and to enter into a contract ordering their industrial relationship. Congress did not intend that the Board control the substantive terms of collective bargaining contracts through the administration of this requirement, and it added § 8(d) in the Taft-Hartley Act to make the proper construction of the duty clear. Pp. 483-487.

(2) By adding § 8(b)(3) to the Act through the Taft-Hartley amendments, Congress intended to require of unions the same standard of good faith in collective bargaining that it had already required of employers. P. 487.

(3) Section 8(b)(3) does not authorize the Board to infer a lack of good faith in bargaining on the part of a union solely because the union resorts to tactics designed to exert economic pressure during the negotiations. Pp. 488-490.

(4) The use of economic pressure is not inconsistent with the duty of bargaining in good faith, and the Board is not empowered under § 8(b)(3) to distinguish among various union economic

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weapons and to brand those here involved inconsistent with good faith collective bargaining. Pp. 490-496.

(a) A different conclusion is not required on the theory that a total strike is a concerted activity protected against employer interference by §§ 7 and 8(a)(1) of the Act, whereas the activity here involved is not a protected concerted activity. Even if an activity is not protected against disciplinary action, that does not necessarily mean that it amounts to a refusal to bargain in good faith. Pp. 492-495.

(b) A different conclusion is not required on the theory that, because an orthodox "total" strike is "traditional," its use must be taken as being consistent with § 8(b)(3); whereas the tactics here involved are not "traditional" or "normal," and therefore need not be so viewed. Pp. 495-496.

(5) To construe § 8(b)(3) as authorizing the Board to act as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands would inject the Board into the substantive aspects of the bargaining process to an extent that Congress did not intend and has not authorized. Pp. 496-500.

104 U.S.App.D.C. 218, 260 F.2d 736, affirmed.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case presents an important issue of the scope of the National Labor Relations Board's authority under § 8(b)(3) of the National Labor Relations Act,1 which

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provides that

It shall be an unfair labor practice for a labor organization or its agents . . . to refuse to bargain collectively with an employer, provided it is the representative of his employees. . . .

The precise question is whether the Board may find that a union, which confers with an employer with the desire of reaching agreement on contract terms, has nevertheless refused to bargain collectively, thus violating that provision, solely and simply because, during the negotiations, it seeks to put [80 S.Ct. 422] economic pressure on the employer to yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere with the carrying on of the employer's business.

Since 1949, the respondent Insurance Agents' International Union and the Prudential Insurance Company of America have negotiated collective bargaining agreements covering district agents employed by Prudential in 35 States and the District of Columbia. The principal duties of a Prudential district agent are to collect premiums and to solicit new business in an assigned locality known in the trade as his "debit." He has no fixed or regular working hours, except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. He is paid commissions on collections made and on new policies written; his only fixed compensation is a weekly payment of $4.50 intended primarily to cover his expenses.

In January, 1956, Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract were agreed upon on July 17, 1956.2 It is

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not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract.

However, in April, 1956, Prudential filed a § 8(b)(3) charge of refusal to bargain collectively against the union. The charge was based upon actions of the union and its members outside the conference room, occurring after the old contract expired in March. The union had announced in February that if agreement on the terms of the new contract was not reached when the old contract expired, the union members would then participate in a "Work Without a Contract" program -- which meant that they would engage in certain planned, concerted on-the-job activities designed to harass the company.

A complaint of violation of § 8(b)(3) issued on the charge and hearings began before the bargaining was concluded.3 It was developed in the evidence that the union's harassing tactics involved activities by the member agents such as these: refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the company's reporting procedures; refusal to participate in the company's "May Policyholders' Month Campaign"; reporting late at district offices the days the agents were scheduled to attend them, and refusing to perform customary duties at the offices, instead engaging there in "sit-in-mornings," "doing what comes naturally," and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as

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directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstrations there.

The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N.L.R.B. 743, had declared similar union activities to constitute a [80 S.Ct. 423] prohibited refusal to bargain; but, since the Board's order in that case was set aside by the Court of Appeals for the District of Columbia Circuit, Textile Workers Union v. N.L.R.B., 97 U.S.App.D.C. 35, 227 F.2d 409, he did not consider that he was bound to follow it.

However, the Board on review adhered to its ruling in the Personal Products case, rejected the trial examiner's recommendation, and entered a "cease and desist" order, 119 N.L.R.B. 768. The Court of Appeals for the District of Columbia Circuit also adhered to its decision in the Personal Products case, and, as in that case, set aside the Board's order. 104 U.S.App.D.C. 218, 260 F.2d 736. We granted the Board's petition for certiorari to review the important question presented. 3 58 U.S. 944.

The hearing examiner found that there was nothing in the record, apart from the mentioned activities of the union during the negotiations, that could be relied upon to support an inference that the union had not fulfilled its statutory duty; in fact, nothing else was relied upon by the Board's General Counsel in prosecuting the complaint.4 The hearing examiner's analysis of the congressional

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design in enacting the statutory duty to bargain led him to conclude that the Board was not authorized to find that such economically harassing activities constituted a § 8(b)(3) violation. The Board's opinion answers flatly "We do not agree," and proceeds to say

. . . the Respondent's reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion it was duty-bound to follow. Indeed, it clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table where argument, persuasion, and the free interchange of views could...

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