Greenwood, Richard Glen

English

Marquette University Law School

Marquette Law ReviewVolume 41Issue 2 Fall 1957 Article 8Duty of Union to Bargain in Good FaithRichard Glen GreenwoodFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationRichard Glen Greenwood, Duty of Union to Bargain in Good Faith, 41 Marq. L. Rev. 200 (1957).Available at: http://scholarship.law.marquette.edu/mulr/vol41/iss2/8RECENT DECISIONSDuty of Union to Bargain in Good Faith-The Court of Ap-peals of Columbia, faced with a factual situation which found aunion engaging in harassing tactics involving refusal to workovertime, extended rest periods, slowdowns, and unannouncedwalkouts while bargaining with an employer, concluded that noth-ing in the LMRA outlawed such union conduct. The Court alsofound that such conduct did not constitute a failure to bargainin good faith.'Since the specific activities in which the union was engagingwere not prescribed in the LMRA, the Court said that it had nojurisdiction. In answer to the contention that Sec. 8(b)(3)2 and8(d)3 applied in this situation the Court rejoined that:"There is not the slightest inconsistency between genuinedesire to come to an agreement and use of economic pressureto get the kind of agreement one wants. . . . As the Boardintimated, the Union might have called a strike; no inferenceof failure to bargain in good faith could have been drawnfrom a total withholding of services during negotiations, inorder to put economic pressure on the employer to yieldto the Union's demands. As a simple matter of fact, it isequally clear that no such inference can be drawn from apartial withholding of services at that time for that pur-pose." 4A vigorous dissent, directed at the majority's attitude on goodfaith bargaining was written by Judge Danaher."The Board here has not asserted that the 'tactics'constitute a violation of federal law. It has said that suchconduct taken into account with all other factors 'on theentire record' justified a finding of failure to bargain in goodfaith. Surely it is within the competence and one of thefunctions of the Board to inquire into and to decide prob-lems arising from Section 8(d)5 of the act."It appears that the dissenter's viewpoint was correct in theinstant case. It seems from a study of legislative history andthe wording of Sec. 8(d) that the duty of the union to bargain isequivalent to that of the employer. 6 Although there are not many1Textile Workers Union, CIO v. N.L.R.B., 227 F.2d 409 (D.C. Cir. 1955).This decision again become current by virtue of the U.S. Supreme Court'sdenial of certiorari in N.L.R.B. v. Textile Workers Union of America, CIO,77 S. Ct. 90 (1956).2 Labor-Management Relations Act, 1947, 61 Stat. L. 141 (1947), 29 U.S.C.§158(b)(3) (1952).Labor-Management Relations Act, 1947, 61 Stat. L. 142 (1947), 29 U.S.C.§158(d) (1952).4 227 F.2d at 410.s Id. at 412.G See The Duty of a Labor Union to Barqain Collectively in Good Faith-AnUnresolved Problem, 25 FORD L. REV. 319, at 324 (1956).RECENT DECISIONScases spelling out the union's responsibility to bargain, the basicphilosophy enunciated in discussion of the duty of employers seemsapplicable.The Seventh Circuit stressed as a yardstick for good faith col-lective bargaining a totality of conduct test which requires thatall facts be closely scrutinized. 7 The Truitt case" restated this point.In this case the Court held that the employer was required toproduce information about its financial status when inability to payincreased wages was an issue. Here the Court stated:"We do not hold, however, that in every case in whicheconomic inability is raised as an argument against increasedwages it automatically follows that the employees are en-titled to substantiating evidence. Each case must turn uponits particular facts. The inquiry must always be whether ornot under the circumstances of the particular case the sta-tutory obligation to bargain in good faith has been met."0Applying a totality of conduct test to Textile Workers0 itappears that the action taken by the union in engaging in deliber-ate acts of harassment is not in harmony with any ordinary con-cept of good faith bargaining. Although pretending to bargain,as a practical matter the union has actually withdrawn itself fromthe bargaining table because it is no longer properly. using per-suasive reasoning but is attempting to force the issue throughvarious physical pressures. Surely these are not the tactics whichare employed by a good faith bargainer. True there may be theappearance that the union is presenting logical argument, butbecause of its harassing acts it would seem as a realistic matterthat the presentation of the union would make no impression onthe employer.This thinking is supported by the view of Edward Peters,Conciliator of California State Conciliation as outlined in hisrecent publication." In the chapter discussing the element ofgood faith collective bargaining he proposes:"Standards of fair play cannot be based on conflictingsocial outlooks and philosophies. The one basic criterion ofgood faith, recognized and accepted by the parties, is con-tained in the iron rule: Preserve the sanctity of your linesof communication.'2There is no realistic communication when one party at the7Singer Mfg. Co. v. N.L.R.B., 119 F. 2d 131 (7th Cir. 1941), cert. denied,313 U.S. 595 (1941).s N.L.R.B. v. Truit Mfg. Co., 224 F.2d 869, reversed 76 S. Ct. 753 (1956).076 S.Ct. at 756 (4th Cir. 1955).10 See note 1 supra."1 See Edward Peters, Strategy and Tactics in Labor Negotiations (1955).1Id. at 222.19571MARQUETTE LAW REVIEWbargaining table treats the other unfairly. The same thought hasbeen expressed in a similar manner by Robert D. Leiter in theLabor Law Journal1 3 where he observed:"The N.L.R.B. has held that if a union is engaged in anactivity which is not consistent with the act, it does not meetthe test of bargaining in good faith; such bargaining requiresreasoned decisions and balanced relations. It noted that goodfaith at the bargaining table is generally a relative matterand that the lack of good faith in one party may remove thepossibility of negotiation and preclude the existence of asituation in which the other parties good faith can be tested."The majority of course, see no distinction between the factshere involved and those that exist when a strike is in progress.The distinction, however, appears to be this. Since many strikesare valid, economic expediency requires that the parties bargainin an effort to resolve differences. Under the circumstances hereinvolved, economic expediency does not control and since the unionhas moved itself outside the periphery of good faith bargaining,the employer can take the position that he will not continue tobargain until the union stops its harassing tactics or goes out ona true strike. No valid strike was employed by the union in theTextile Workers case.14 It is submitted, that recognizing the afore-mentioned difference between harassing tactics and a valid strike,such union conduct should have been enjoined as bad faith col-lective bargaining.RICHARD GLEN GREENWOODReal Estate Broker: Entitlement to Commission After BuyerDefaults Purchase Contract-Defendants gave plaintiff a standardbroker's listing on their property for $15,900. Three days later,plaintiff secured an unconditional offer of $15,000 from prospectivebuyers, which the defendant-sellers accepted, agreeing to close thetransaction in three months. When the parties met for the closing,buyers were informed of a judgment docketed against one of thedefendants in the amount of $700. Plaintiff's attorney suggestedan escrow arrangement to cover this amount. The purchasers re-fused to close under such circumstances and promptly departed.Plaintiff, unable to induce the parties to close subsequently, de-manded its commission from the defendants, who refused. Plain-tiff brought action on its listing agreement in the Civil Court ofMilwaukee County. From a judgment for the defendant, plaintiffappealed to the Circuit Court. From an order of the Circuit Court13See Leiter, The Meaning of Collective Bargaining 6 LAB. L. J. 835 (Dec.1955).14 See note 1 supra.[Vol. 41

Duty of Union to Bargain in Good Faith

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Duty of Union to Bargain in Good Faith

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