TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

170 Twenty-sixth Annual Report of the National Labor Relations Board
ing of a new election is precluded by the Board's "contract-bar" rule a°
"falls within the rationale" of Brooks v N L I B, 348 1.1 S. 96 81
b. Unilateral Action by Employer During Collective-Bargaining
Negotiations
As the Boaid construes section 8(a) (5), its affirmative command to
bargain collectively with respect to rates of pay and other conditions
of employment necessarily means that the employer must not act
"unilaterally" by changing the status quo with respect to such matters
Viewing such unilateral action as the equivalent of a categorical
"refusal" to bargain about the particular subject matter involved, the
Board considers it immaterial that the employer may not have been
unwilling to negotiate a general agreement with the employees' representative
or otherwise may not have been demonstrably acting in bad
faith However, the Second Cucuit, the chief judge dissenting,
rejected this rule in upsetting the Board's finding of a section 8(a) (5)
violation in the Katz case 32 During the course of long-drawn-out
contract negotiations with a recently certified union, the employer here
made certain changes in the employees' existing wages and working
conditions, without giving the union advance notice oi an oppoitunity
to bargain about the matter While stating that these unilateral actions,
if "tested within the framework of the entire bargaining situation,"
might have justified an inference that the employer was "no
longer bargaining in good faith," the court noted that the Board had
expressly declined to draw this inference, and held that an unlawful
refusal to bargain was not made out in the absence of such a "definite
determination of the mental attitude of the employer" 83
c. Employer's Refusal To Furnish Information
(1) Costs of Noncontributory Group Insurance Program
In preparation for, and during the course of, negotiating a new contract,
the union in the Sylvania case " requested the employer to furnish
it with an itemized statement of the costs incurred by the
93 See pp .39-52, above
31 11on ever, the court conditioned enforcement of the Board's order requiring the
employer to bargain with the incumbent union, upon the Board's holding an election to
determine vihich union the emplo3ees now actually preferred Similar modification of
bargaining orders issued by the Board were adopted by the Seventh Circuit in Perry Coal
Co v NLRB, 284 F 2d 010, certiorari denied 866 U S 949, and by the Second Circuit
in NLRB Supertot Fireproof Door d Sash Co. Inc , 289 F 2d 713, and NLRB v
Adhesive P, °duets Corp, 281 F 2d 89
13 NLRB v Benne Katz et al d/b/a Williamsburg Steel Products 0o, 289 F 2d 700
The majority of the court acknowledged that its decision in this case is in conflict
with the rulings of several other circuits The Board has petitioned for Supreme Court
review to resolve the conflict Certiorari was granted on Oct 9, 1961
a4 Sylvania Mears° Products, Inc v NLRB, 201 F 2d 128