397 U.S. 99 (1970), 230, H. K. Porter Co., Inc. v. National Labor Relations Board

Docket Nº:No. 230
Citation:397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146
Party Name:H. K. Porter Co., Inc. v. National Labor Relations Board
Case Date:March 02, 1970
Court:United States Supreme Court

Page 99

397 U.S. 99 (1970)

90 S.Ct. 821, 25 L.Ed.2d 146

H. K. Porter Co., Inc.


National Labor Relations Board

No. 230

United States Supreme Court

March 2, 1970

Argued January 15, 1970




Following protracted collective bargaining negotiations between respondent union and the petitioner revolving mainly around the union's desire to have the company "check-off" the dues owed to the union by its members, the National Labor Relations Board (NLRB) made a finding, which the Court of Appeals approved, that the company's refusal to bargain about the check-off was not made in good faith, but solely to frustrate the making of a collective bargaining agreement. Thereafter, the NLRB ordered the petitioner to grant the union a contract check-off clause. The Court of Appeals affirmed the order, concluding that § 8(d) of the National Labor Relations Act did not forbid the NLRB to compel agreement.

Held: Though the NLRB has power under the Act to require employers and employees to negotiate, it does not have the power to compel either to agree to any substantive contractual provision of a collective bargaining agreement. Pp. 102-109.

134 U.S.App.D.C. 227, 414 F.2d 1123, reversed and remanded.

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BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

After an election, respondent United Steelworkers Union was, on October 5, 1961, certified by the National Labor Relations Board as the bargaining agent for certain employees at the Danville, Virginia, plant of the petitioner H. K. Porter Co. Thereafter negotiations commenced for a collective bargaining agreement. Since that time, the controversy has see-sawed between the Board, the Court of Appeals for the District of Columbia Circuit, and this Court. This delay of over eight years is not because the case is exceedingly complex, but appears to have occurred chiefly because of the skill of the company's negotiators in taking advantage of every opportunity for delay in an act more noticeable for its generality than for its precise prescriptions. The entire lengthy dispute mainly revolves around the union's desire to have the company agree to "check-off" the dues owed to the union by its members, that is, to deduct those dues periodically from the company's wage payments to the employees. The record shows, as the Board found, that the company's objection to a check-off was not due to any general principle or policy against making deductions from employees' wages. The company does deduct charges for things like insurance, taxes, and contributions to charities, and, at some other plants, it has a check-off arrangement for union dues. The evidence

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shows, and the court below found, that the company's objection was not because of inconvenience, but solely on the ground that the company was "not going to aid and comfort the union." Efforts by the union to obtain some kind of compromise on the check-off request were all met with the same staccato response to the effect that the collection of union dues was the "union's business," and the company was not going to provide any assistance. Based on this and other evidence, the Board found, and the Court of Appeals approved the finding, that the refusal of the company to bargain about the check-off was not made in good faith, but was done solely to frustrate the making of any collective bargaining agreement. In May, 1966, the Court of Appeals upheld the Board's order requiring the company to cease and desist from refusing to bargain in good faith and directing it to engage in further collective bargaining, if requested by the union to do so, over the check-off. United Steelworkers v. NLRB, 124 U.S.App.D.C. 143, 363 F.2d 272, cert. denied, 385 U.S. 851.

In the course of that opinion, the Court of Appeals intimated that the Board conceivably might have required petitioner to agree to a check-off provision as a remedy for the prior bad faith bargaining, although the order enforced at that time did not contain any such provision. 124 U.S. App.D.C. at 146-147, and n. 16, 363 F.2d at 275-276, and n. 16. In the ensuing negotiations, the company offered to discuss alternative arrangements for collecting the union's dues, but the union insisted that the company was required to agree to the check-off proposal without modification. Because of this disagreement over the proper interpretation of the court's opinion, the union, in February, 1967, filed a motion for clarification of the 1966 opinion. The motion was denied by the court on March 22, 1967, in an

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order suggesting that contempt proceedings by the Board would be the proper avenue [90 S.Ct. 823] for testing the employer's compliance with the original order. A request for the institution of such proceedings was made by the union, and, in June, 1967, the Regional Director of the Board declined to prosecute a contempt charge, finding that the employer had "satisfactorily complied with the affirmative requirements of the Order." App. 111. The union then filed in the Court of Appeals a motion for reconsideration of the earlier motion to clarify the 1966 opinion. The court granted that motion, and issued a new opinion in which it held that, in certain circumstances a "check-off may be imposed as a remedy for bad faith bargaining." United Steelworkers v. NLRB, 128 U.S.App.D.C. 344, 347, 389 F.2d 295, 298 (1967). The case was then remanded to the Board, and, on July 3, 1968, the Board issued a supplemental order requiring the petitioner to "[g]rant to the Union a...

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