UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 26, 1941
OUGHTON ET AL.
NATIONAL LABOR RELATIONS BOARD.
Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.
JONES, Circuit Judge.
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 that in the Bradford case the employer had promoted a labor organization rival to the employees' chosen representative has no material bearing on the principle involved. As we have already pointed out in connection with the Machinists case, the crucial thing is the presence of unfair labor practices by the employer regardless of what their form or character may be.
The rule of presumed continuity of representative status is but the logical consequence of the realities of the situation. It recognizes and accords due effect to the fact that, where an employer is opposed to the unionization of his employees and, by his refusal to bargain collectively, prevents the exercise of their rights under Sec. 7 of the Act, subtle and covert conduct may suit his purposes of opposition as well as, if not better, and certainly with less chance of detection, than open and direct acts of hostility. But, the legal effect of the conduct, like its intended purpose and practical result, is no different in the one instance than in the other. To hold otherwise, where unfair labor practices exist, and thus place upon a bargaining agent the burden of proving affirmatively that the defections producing the representative's loss of majority support were brought about by the employer's open and direct assault on the representative's membership, would be to advantage the employer because he violated the Act. Continental Oil Co. v. National Labor Relations Board, supra; National Labor Relations Board v. Highland PArk Mfg. Co., supra. The effect, therefore, upon the agent union's membership, of an employer's refusal to bargain collectively is at all times for the Board's consideration and appraisal. Machinists case, supra; bussmann Mfg. Co. et al. v. National Labor Relations Board, supra; National Labor Relations Board v. Somerset Shoe Co., supra.
In the instant case, there were other unfair labor practices by the employers, attending their refusal to bargain collectively, which were particularly stigmatizing to the union's standing as an employee representative. During the period when the bargaining representative's majority admittedly still continued, the employers made a wage cut and a change in the weekly hours of work not only without notifying the bargaining agent in advance of their intended action but even without informing the agent of the action when taken. Both matters were eminently proper subjects for collective bargaining. Globe Cotton Mills v. National Labor Relations Board, 5 Cir., 103 F.2d 91, 94. Yet, the employers deliberately by-passed their employees' own chosen representative for collective bargaining. This conduct, in particular, could not have been other than in impairment of the union's prestige among the petitioners' employees and, therefore, destructive of the union's membership whether or not it was so intended by the petitioners.
As was said in the Machinists case (61 S. Ct. page 88), "The existence of unfair labor practices throughout this whole period permits the inference that the employees did not have that freedom of choice which is the essence of collective bargaining." The want of freedom of choice, thus inferable, is as material to employee with-drawals of support from the designated bargaining agent as it is to employee affiliation with a different representative. The inference here serves to impugn directly the committee designation which the employees signed in ostensible partial repudiation of the bargaining agent which had been their majority choice when secret ballot was their mode of expression. Until the unfair labor practices and their effect have been completely eradicated, the freedom of choice essential to the employees' uncoerced expression of their desire for a continuance of or a change in baragining agent is not possible. Machinists case, supra. While the practices endure, no majority can be said to be uncoerced except the last majority chosen by the free and untrammeled will of the employees. It is proper, therefore, for the Board, in its effort to wipe away the effect of the unfair labor practices, to direct the employers to bargain collectively with the agent which, undeniably, had been selected by the free will of the employees although it then be asserted that the agent no longer commands a majority. Cf. National Labor Relations Board v. Somerset Shoe Co., supra; Bussmann Mfg. Co. et al. v. National Labor Relations Board, supra; M. H. Ritzwoller Co. v. National Labor Relations Board, supra; National Labor Relations Board v. Biles-Coleman Lumber Co., supra.
Of the cases where, upon review of Board orders, the courts have directed a redetermination of the bargaining agent, the ruling in the Hamilton-Brown Shoe Co. case, supra, has now been overruled by the Supreme Court in the Machinists case, supra. And, while National Labor Relations Board v. National Licorice Co., 2 Cir., 104 F.2d 655, was later reviewed by the Supreme Court (309 U.S. 350, 60 S. Ct. 569, 84 L. Ed. 799), the direction of the Circuit Court of Appeals that the bargaining agent be redetermined was then no longer involved. The Supreme Court notes (309 U.S. page 359, 60 S. Ct. page 575, 84 L. Ed. 799) that the Labor Board had "not petitioned for certiorari and does not complain of this direction". In Stewart Die Casting Corporation v. National LAbor Relations Board, 7 Cir., 114 F.2d 849, 858, the court conditioned enforcement of the Board's order upon a redetermination of the bargaining agent particularly because of the length of time which had elapsed between the hearing and the Board's order to bargain. However, it would seem, if the designation of a bargaining agent is to be considered stale, the matter would properly be for the Board to weigh along with all factors directly pertinent in the discharge of its duty to dissipate unfair labor practices. The Act prescribes no period of limitations to the continuity of a bargaining agent's majority status; and it is not easy to see how the courts may outlaw the choice of a bargaining agent freely made. After all, the selection of a representative for collective bargaining is a matter for the employees of an appropriate unit and for none other. National Labor Relations Board v. Highland Park Mfg. co., supra. Until they take action, as permitted by the Act (Sec. 9), to express a new choice, the continuity of the bargaining agent's majority must be presumed. National LAbor Relations Board v. Whittier Mills Co. et al., supra; National Labor Relations Board v. Remington Rand, Inc., supra.
It is apparent to us that the Board was fully justified in finding that "the only evidence in the record indicates that the Union's majority status continued to the date of the complaint herein and, except for the effect of the respondents' [present petitioners'] unfair labor practices, thereafter". From that finding the Board's further conclusion reasonably followed, - "that on January 19, 1938, and at all times thereafter, the Union was and * * * is the duly designated representative of the majority of the employees in the appropriate unit for the purposes of collective bargaining". Accordingly the bargaining requirement in the Board's order was proper and should now be enforced by us without condition or other imposition.
One other matter respecting the Board's order calls for comment. the petitioners complain of the direction in the order that they post notices stating that they will cease and desist from the unfair labor practices whereof the Board found them guilty. The petitioners urge that their posting of such notices would carry with it an implied admission of guilt which they deny. While the form of the particular notice has been held valid,*fn4 certain courts have seen an impropriety in the inclusion of the cease and desist provision in the notice which the employer is required to post.*fn5 However, the matter need not give petitioners any further cause for anxiety. The Board states in its brief that in order "to avoid claims of unfair imposition such as were made by the petitioners here, the Board, after the issuance of its order herein, changed the form of notice generally required." As a consequence, the Board requests that, in accordance with its new practice, the notice provision in the order under reivew be now amended so that paragraph 2(b) thereof shall be and read as follows: "(b) Post immediately in conspicuous places in and about their plant notices to their employees, and maintain said notices for a period of at least sixty (60) consecutive days from the date of posting, stating that they will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1(a) and (b) and that they will take the affirmative action set forth in paragraph 2(a) of this Order;".
The amendment is hereby allowed; and, as so amended, the order will be enforced. A decree may be submitted accordingly.
GOODRICH, Circuit Judge (dissenting in part).
The issue between the majority and the dissent in this case is a narrow one. It has to do only with that part of the former opinion which conditioned the enforcement of the order upon redetermination by the Board of the bargaining agent. This point we do not believe to be settled by International Association of Machinists, etc., v. National Labor Relations Board, 1940, 311 U.S. 72, 61 S. Ct. 83, 85 L. Ed. . The opinion in that case devotes considerable space to the evidence that the rival union had been, at least, assisted by the employer. Where this circumstance exists or where the loss in membership of the union once having the majority has been influenced by unfair labor practices on the part of the employer there is, to us, a situation which seems quite different. Accordingly when the employees sought to intervene at the original hearing in order, inter alia, to show that they had of their own free will withdrawn from the union the Board should have permitted them to do so since the character of the Board's order against the employer was directly dependent on whether the union was still entitled to represent the employees.
There is no competent evidence that the loss in union membership was influenced by the employer's unfair labor practice. Even if the Board may make the assumption that there is a causal relationship between unfair labor practices on the part of the employer and loss in union membership when the unfair practices are contemporaneously present, certainly there is no irrebuttable legal presumption of cause and effect. We do not see how the testimony of those who perhaps would testify to the contrary may fairly be rejected.
The majority opinion gives to a unit once selected the power to be the exclusive bargaining agency for an indefinite time regardless of whether at the time of the hearing this unit may represent only a very small minority of the employees. If the dissipation has come about by unfair labor practice on the part of the employer it may well be that the policy of the act requires election to be treated as conclusive until those practices are purged. but where there is no evidence of the sort, and evidence to the contrary is rejected, it seems to us a very important difference exists. The majority opinion points out that the employees may under § 9 express a new choice. But the very enforcement of an order directing collective bargaining with one agent necessarily gives to that agent that possession which always has been regarded as nine points of the law. Such possession is just as valuable in collective bargaining as it is in the retention of tangible property. It seems to us that to award it to an admitted minority against what is claimed to be an uncoerced majority is a turning awary from those realities which the majority opinion purports to consider.
MARIS, Circuit Judge, concurs in this dissent.