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University of Virginia School of Law




The Supreme Court's most recent effort to distinguish nonmandatory bargaining topics, First National Maintenance Corp. v. NLRB, 19 illustrates the Court's lack of clarity in this area and vindicates Cox's and Wellington's criticisms of the Court's approach in Borg-Warner. In First National Maintenance (F.N.M.), the Court held that an employer's decision "to shut down part of its business purely for economic reasons" was outside the scope of mandatory bargaining.20 The Court could cite no evidence that Congress intended to prevent employee representatives from obtaining full effective bargaining over such decisions, nor did it articulate any general principle to justify their removal from the scope of mandatory bargaining. Instead the Court asserted its judgment that "an employer's need to operate freely" outweighs any gain to "labor-management relations" that could result from bargaining over partial closing decisions.21

The F.N.M. decision, however, need not signal the end of efforts to provide principled and relatively narrow restrictions on judicial and administrative authority to determine "appropriate" topics for collective bargaining between employers and employee representatives. The F.N.M. decision can be reconciled on its facts with a limited and economically meaningful principle that only minimally restricts the scope of mandatory bargaining. This principle would exclude from compulsory bargaining all decisions that determine what products are created and sold, in what quantities, for which markets, and at what prices. This principle, moreover, need be the only substantive limitation on legal mandatory bargaining topics. A few supplementary principles can express other appropriate restrictions framed primarily to advance the process of collective bargaining as contemplated by the Act. These principles are consistent with Supreme Court decisions concerning the scope of mandatory bargaining, as well as with many prominent Board and lower court decisions.


Reprinted in Corporate Counsel's Annual 679 (1982).

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