Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.
Upon petition for rehearing, a reargument of the instant matter before all five judges of the court in active commission was ordered pursuant to Rule 4(1) of this court. The validity of the rule, which allows for a sitting of the court en banc, was recently considered and unanimously confirmed by us in the case of Commissioner of Internal Revenue v. Textile Mills Securities Corporation, 3 Cir., 117 F.2d 62. Nothing need now be added to what was then said in such regard. It may be observed, however, that the present is but another instance of the justification for the rule. Its use removes any possibility that the majority opinion of the court, when composed as ordinarily of three judges, may conflict with the majority opinion of the court when composed of one of the same judges and the two remaining judges of the court. The majority opinion of all will be binding upon all regardless of the views of individual judges.
Coming to the subject matter of the present reargument, we are unanimous in the opinion (as were the members of the court when the case was originally heard) that the evidence fully sustains the Board's findings that the employers (petitioners here) refused to bargain collectively in violation of Sec. 8(1) and (5) of the National Labor Relations Act*fn1 and that the Board's consequent order*fn2 was appropriate to the findings.
The one question still remaining is whether, in the face of our affirmation of the Board's findings, we may, yet, condition enforcement of the Board's order upon the result of a redetermination by the Board that the designated bargaining agent continues to be the employees' majority choice. Stated otherwise, may we, upon a record which fully establishes the employers' guilt of the unfair labor practices charged, obviate or impair that portion of the Board's order which directs that the employers bargain collectively with the employees' designated agent as the exclusive bargaining representative of the petitioners' employees engaged in production in their Philadelphia plant.
The designated agent (Textile Workers Union of America (C.I.O.), formerly Textile Workers Organizing Committee) was selected as the exclusive bargaining representative of the petitioners' production employees by their secret ballot at a formal election duly held pursuant to a written agreement between the petitioners and the union. Thence followed the employers' course of unfair labor practices which the Board has found were continued down to the filing of the Board's complaint. The employers, in their answer to the complaint, not only admitted the bargaining agent's due designation but also admitted the union's majority status "for a period of time thereafter, not exceeding one year". This admission, of itself, carried the bargaining agent's majority support (despite the employers' concurrent unfair labor practices) down to within a few weeks of the filing of the complaint. And, although the employers also alleged in their answer that the bargaining agent lacked majority support of the petitioners' production employees when the complaint was filed, they offered no proof to support the allegation.
The suggestion, that this court, upon a review of the Board's order, should condition its enforcement upon a redetermination of the bargaining agent's majority support, rests upon the fact that at the hearing on the complaint a committee of five of the petitioners' employees sought leave to intervene in behalf of themselves and one hundred forty-five other employees (more than a majority) who had signed a paper designating the five committee members "as our representatives to appear before the National Labor Relations Board to represent us in the matter of the complaint filed by the Textile Workers Organizing Committee * * * ." We make no point, however, of the petitioners' failure to offer any proof of the alleged loss of the bargaining agent's majority nor of the insufficiency of the specific designation of the committee so far as any expression by the employees of a desire for change in bargaining representative is concerned. We shall treat with the matter as if the petitioners or the committee or both could have shown, that, because of defections, the union's membership at the time of the hearing represented less than a majority of the petitioners' employees. The cause of any such loss of support remains important, none the less, and the proven unfair labor practices of the employers are present to supply a legally sufficient cause.
The trial examiner denied leave to intervene to both the committee and the individual signers of the committee's designation; and the Board approved the trial examiner's action. In this, we think the Board acted properly. If the intervention was sought merely that the committee might be heard in the matter of the complaint of the unfair labor practices (which is really all the designation of the committee purported to authorize), the intervenors were unnecessary parties. The issue was properly joined between the Board and the employers, as contemplated by the Act (Sec. 10(b), by the service of the Board's complaint upon the employers to which the latter filed answer as provided for by the Act. No one else was a necessary party to the proceeding. National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., et al., 303 U.S. 261, 271, 58 S. Ct. 571, 82 L. Ed. 831, 115 A.L.R. 307; National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 362, 60 S. Ct. 569, 84 L. Ed. 799. Moreover, the right to intervene on the part of those who are not necessary parties rests, under the Act (Sec. 10(b), "In the discretion of the member, agent or agency conducting the hearing or the Board * * * ." The denial of leave to intervene could not, therefore, constitute legal error. If, however, the intervention was desired by the committee to prove what the employers had alleged but failed to support, namely, that the bargaining agent no longer represented a majority of the petitioners' employees, that matter was immaterial to a complaint proceeding (under Sec. 10) for the abatement and dissipation of unfair labor practices such as are denounced by Sec. 8. And, even if the bargaining agent's status were an issue, the Board was warranted in treating the asserted loss of the agent's majority as of no material value because of the natural influence of the unfair labor practices in the employers' domination over and coercion of their employees. In any view, therefore, the Board acted properly in denying the committee leave to intervene.
In International Association of Machinists, Tool & Die Makers Lodge No. 35 v. National Labor Relations Board, 311 U.S. 72, 61 S. Ct. 83, 86, 85 L. Ed. , certiorari was there granted, partly, as the Supreme Court expressly notes, "because of an asserted conflict between the decision below" in that case and the case of Hamilton-Brown Shoe Co. v. National Labor Relations Board, 8 Cir., 104 F.2d 49, with respect to "whether the Board had authority to require the employer to bargain with that [particular] industrial unit, despite a claim submitted to the Board by the craft unit before the order issued that the latter then had been designated by a majority of all the employees." Also, 311 U.S. 72, 61 S. Ct. at page 89, 85 L. Ed. , it is stated that "Petitioner challenges the order directing the employer to bargain exclusively with U.A.W., on the ground that prior to the issuance of the order petitioner to the issuance of the order petitioner had obtained an overwhelming majority notified the Board. * * * [Petitioner] contends that the Board on receipt of the notification should have ordered an election or at least have made an investigation." Answering both the challenge and the contention, Mr. Justice Douglas, speaking for the Supreme Court, said at page 89 of 61 S. Ct., - "We agree with the court below that the Board in failing to act on this request did not commit error. This was not a certification proceeding under § 9(c); it was an unfair labor practice proceeding under § 10. Where as a result of unfair labor practices a union cannot be said to represent an uncoerced majority, the Board has the power to take appropriate steps to the end that the effect of those practices will be dissipated. That necessarily involves an exercise of discretion on the part of the Board - discretion involving an expert judgment as to ways and means of protecting the freedom of choice guaranteed to the employees by the Act. It is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged."
Here, likewise, the Board's order was entered in a proceeding instituted under Sec. 10 for the abatement and correction of unfair labor practices as defined in Sec. 8. The order, itself, and the fact that the Board treated as currently immaterial the alleged loss of the bargaining agent's majority support indicate that it was the Board's view that the way to dissipate the unfair labor practices and to provide against their recurrence was to require the petitioners to cease and desist from the unfair practices and thenceforth to bargain collectively with the already accredited bargaining agent. That is precisely what the Board ordered. Its action constituted an exercise of its discretion under the Act. With that discretion, a court may not properly interfere, the Board having acted within the authority conferred by the Act (Sec. 10) which empowers the Board "to prevent any person from engaging in any unfair labor practice (listed in section 8 ) affecting commerce." And, that power is "exclusive."
We can perceive no material distinction between the present and the MAchinists case. The fact that there was employer assistance to the bargaining agent's rival in the Machinists case was but evidence of the employer's unfair labor practices. The thing of importance is the effect of such practices upon the employees' freedom of choice and not the particular forms by which the unfair practices are evidenced. Nor is it important that the offer to prove the bargaining agent's loss of majority support was not made in the Machinists case until after the hearing before the Board had been concluded, while here the offer was made at the hearing. The Board had not entered its order in the machinists case when the offer was made. Proof could still have been produced and received if the Board was under any legal compulsion to receive it. But, obviously, no such duty rested upon the Board. The Supreme Court said (61 S. Ct. page 90) "the failure of the Board to recognize petitioner's notice of change was wholly proper." And, the same is equally true here.
The Machinists case points out the immateriality of an asserted loss of a bargaining agent's majority to the issue raised by a complaint based upon the employer's unfair labor practices, except, of course, in so far as the Board in its uncontrolled discretion may deem the agent's status worthy of investigation and consequent action. And, where the Board passes over the agent's support as being presently of no moment, the Act, as observed in the Machinists case, provides other procedure for the resolution of the independent problem. As there said at page 90 of 61 S. Ct., "Sec. 9 of the Act provides adequate machinery for determining in certification proceedings questions of representation after unfair labor practices have been removed as obstacles to the employees' full freedom of choice."
But, aside from the immateriality of an inquiry into a bargaining agent's status, except as already noted, where the agent's majority support has been assailed in a complaint proceeding for the dissipation of unfair labor practices, Courts of Appeals generally have affirmed findings made by the Board upon the presumed continuity of the bargaining agent's majority support, there being unfair labor practices by the employer contemporaneously present. M. H. Ritzwoller Co. v. National Labor Relations Board, 7 Cir., 114 F.2d 432, 437, 438; Continental Oil Co. v. National Labor Relations Board, 10 Cir., 113 F.2d 473, 481; National Labor Relations Board v. Somerset Shoe Co., 1 Cir., 111 F.2d 681, 690, 691; Bussmann Mfg. Co. et al. v. National Labor Relations Board, 8 Cir., 111 F.2d 783, 788; International Ass'n of Machinists, Tool and Die Makers Lodge No. 35 v. National Labor Relations Board, 71 App.D.C. 175, 110 F.2d 29, 33; National LAbor Relations Board v. Highland Park Mfg. Co., 4 Cir., 110 F.2d 632, 640.*fn3 In National Labor Relations Board v. Bradford Dyeing Association (U.S.A.) et al., 310 U.S. 318, 340, 60 S. Ct. 918, 929, 84 L. Ed. 1226, Mr. Justice Black, speaking for the Supreme Court, expressly approved the Board's conclusion in that case that "The unfair labor practices of the respondent [employer] cannot operate to change the bargaining representative previously selected by the untrammelled will of the majority." The fact ...