MINTON, J., dissenting.

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the Board. We stated that this Court "is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fairminded judges could find it tilting either way." Labor Board v. Pittsburgh S. S. Co., 340 U. S. 498, 503 (1951). We repeat and reaffirm this rule, noting its special applicability to cases where, as here, a statutory standard such as "good faith" can have meaning only in its application to the particular facts of a particular case.

Accepting as we do the finding of the court below that respondent bargained in good faith for the management functions clause proposed by it, we hold that respondent was not in that respect guilty of refusing to bargain collectively as required by the National Labor Relations Act. Accordingly, enforcement of paragraph 1 (a) of the Board's order was properly denied.23

Affirmed.

MR. JUSTICE MINTON, with whom MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, dissenting.

I do not see how this case is solved by telling the National Labor Relations Board that since some "management functions" clauses are valid (which the Board freely admits), respondent was not guilty of an unfair labor practice in this case. The record is replete with evidence that respondent insisted on a clause which would classify the control over certain conditions of employment as a management prerogative, and that the insistence took the form of a refusal to reach a settlement unless the Union accepted the clause.' The Court of

23 See Labor Board v. Crompton Mills, 337 U. S. 217, 226-227 (1949).

1 A member of respondent's negotiating committee stated that the committee "had given considerable thought to the character of prerogative that, in our opinion, the Company was entitled to main

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MINTON, J., dissenting.

Appeals agreed that respondent was "steadfast" in this demand. Therefore, this case is one where the employer came into the bargaining room with a demand that certain topics upon which it had a duty to bargain were to be removed from the agenda-that was the price the Union had to pay to gain a contract. There is all the difference between the hypothetical "management functions" clauses envisioned by the majority and this "management functions" clause as there is between waiver and coercion. No one suggests that an employer is guilty of an unfair labor practice when it proposes that it be given unilateral control over certain working conditions and the union accepts the proposal in return for various other benefits. But where, as here, the employer tells the union that the only way to obtain a contract as to wages is to agree not to bargain about certain other work

tain for its management, as well as considerable thought to the character of safeguard which would make the retention of such prerogatives. . . of value and worth to the Company, and invulnerable to attack. . . . [W]e orally stated to the Union that that was going to be the position of the Company .. (R. II, p. 32.)

A Union negotiator testified as follows: "Q. Now, as I understand your testimony, you have said that Company said you would have to agree ..

"A. It was the condition of a contract.

"Q. Now, how often, if it was more than once, did the Company state that or something similar to that. . . did they only say it once or did they state it more than once?

"A. I can't testify as to the number of times. I will say they said it several times.

"A. To get a contract, an agreement must be reached and must be made by the Union to include Article II-A as the Company's prerogative clause." (R. III, pp. 60–61.)

The same Company negotiator told the Union that the clause in question was the "meat of the contract" and that if the Union accepted it a contract could be obtained in "short order." (R. III, p. 60.)

MINTON, J., dissenting.

343 U.S.

ing conditions, the employer has refused to bargain about those other working conditions. There is more than a semantic difference between a proposal that the union waive certain rights and a demand that the union give up those rights as a condition precedent to enjoying other rights.2

The

I need not and do not take issue with the Court of Appeals' conclusion that there was no absence of good faith. Where there is a refusal to bargain, the Act does not require an inquiry as to whether that refusal was in good faith or bad faith. The duty to bargain about certain subjects is made absolute by the Act. majority seems to suggest that an employer could be found guilty of bad faith if it used a "management functions" clause to close off bargaining about all topics of discussion. Whether the employer closes off all bargaining or, as in this case, only a certain area of bargaining, he has refused to bargain as to whatever he has closed off, and any discussion of his good faith is pointless.

That portion of § 8 (d) of the Act which declares that an employer need not agree to a proposal or make concessions does not dispose of this case. Certainly the Board lacks power to compel concessions as to the substantive terms of labor agreements. But the Board in this case was seeking to compel the employer to bargain about subjects properly within the scope of collective

2 There is similarly a difference between a union voluntarily disbanding, and the employer insisting that it disband as a condition of granting a wage increase. Cf. McQuay-Norris Mfg. Co. v. Labor Board, 116 F. 2d 748.

3 The only exception is that an employer in good faith can challenge the majority status of the bargaining representative and request proof that it does in fact have such status. Cf. Joy Silk Mills, Inc. v. Labor Board, 87 U. S. App. D. C. 360, 369, 185 F. 2d 732, 741.

J. I. Case Co. v. Labor Board, 321 U. S. 332; H. J. Heinz Co. v. Labor Board, 311 U. S. 514, 525.

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5

MINTON, J., dissenting.

bargaining. That the employer has such a duty to bargain and that the Board is empowered to enforce the duty is clear.

An employer may not stake out an area which is a proper subject for bargaining and say, "As to this we will not bargain." To do so is a plain refusal to bargain in violation of § 8 (a) (5) of the Act. If employees' bargaining rights can be cut away so easily, they are indeed illusory. I would reverse.

5 National Licorice Co. v. Labor Board, 309 U. S. 350, 360; Inland Steel Co. v. Labor Board, 170 F. 2d 247, 252; Labor Board v. Bachelder, 120 F. 2d 574, 577.

PENNSYLVANIA WATER & POWER CO. ET AL. v. FEDERAL POWER COMMISSION ET AL.

NO. 428. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.*

Argued April 3-4, 1952.-Decided May 26, 1952.

1. Petitioner power company owns a hydroelectric plant on a navigable stream and holds a license from the Federal Power Commission under Part I of the Federal Power Act. It also sells power at wholesale in interstate commerce. The Commission found on substantial evidence that the states involved were "unable to agree" on services to be rendered and rates to be charged within the meaning of § 20 of Part I of the Act. Held:

(a) The fact that petitioner is a licensee and subject to regulation as such under Part I does not preclude its regulation under Part II as a public utility engaged in interstate commerce. Pp. 418-419.

(b) The Commission having found on substantial evidence that the states were "unable to agree" on the services to be rendered and rates to be charged, within the meaning of § 20, petitioner is also subject to regulation under Part I. P. 419.

2. Two power companies have hydroelectric plants on the Susquehanna River and a third operates steam-electric plants in Maryland. Under a contract between them, a complete integration and pooling of power producing and transmitting facilities has been achieved and power flows from Maryland into Pennsylvania and vice versa, depending upon the flow of water in the Susquehanna River. The Federal Power Commission found that the combined operations of the system are completely interstate in character, notwithstanding the fact that at some particular times transactions may involve energy never crossing a state boundary. Held: The Federal Power Commission has complete authority to regulate sales at wholesale of all of this commingled power. Pp. 419-420.

3. In private litigation, the entire contract was held unenforceable because certain of its provisions violated the federal antitrust laws and the corporation laws of Pennsylvania. Subsequently, *Together with No. 429, Pennsylvania Public Utility Commission v. Federal Power Commission, also on certiorari to the same court.