UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
May 19, 1960
INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, PETITIONER
NATIONAL LABOR RELATIONS BOARD, RESPONDENT. NATIONAL LABOR RELATIONS BOARD, PETITIONER,
Before BURTON,* WILBUR K. MILLER and FAHY, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT.
Texas Corporation, Respondent. 1960.CDC.66
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURTON
The General Counsel for the National Labor Relations Board filed a complaint against the Bernhard-Altmann Texas Corporation, an employer, manufacturing knitwear for interstate commerce at San Antonio, Texas. The complaint charged the employer with entering into an exclusive recognition agreement with the International Ladies' Garment Workers' Union, AFL-CIO, at a time when the union did not represent a majority of the corporation's employees in any appropriate bargaining unit. It also charged the employer with thus contributing to the support of the union in violation of § 8(a)(2), and with interfering with the free exercise of rights, guaranteed to the employees by § 7 of such Act, in violation of § 8(a)(1). In a separate complaint the General Counsel also charged that the union had violated § 8(b)(1)by entering into the above-mentioned agreement with the employer and thus restraining and coercing some of the latter's employees in the free exercise of rights guaranteed to them by § 7. After a hearing in which the cases were consolidated, the trial examiner issued an intermediate report recommending that each complaint be dismissed in its entirety. However, the Board, on exceptions filed by the General Counsel, disagreed with the trial examiner's conclusions. The Board found that the employer and the union had respectively engaged in the alleged unfair labor practices. It accordingly ordered each of them to cease and desist from such practices and to hold a representative election. One member concurred in part and dissented in part. 122 N.L.R.B. 1289, 1297. The union now asks this Court to set aside the Board's order, whereas the Board asks that its order be enforced. Except for filing its answer, the employer had not participated in these proceedings.
The facts found by the Board are supported by substantial evidence on the record considered as a whole and are conclusive here. 61 Stat. 148, 29 U.S.C.A. § 160(e). Our jurisdiction is not questioned.
Beginning in 1956, the union engaged in a campaign to organize the employer's plant. It obtained a substantial number of authorization cards signed by employees designating the union as their bargaining representative. In July 1957, a number of the employees struck in protest against a wage reduction and the union, on behalf of some of the strikers, endeavored to settle the controversy. On August 30, 1957, during these negotiations, a "memorandum of understanding" was signed by the employer and the union. In that memorandum the employer expressly recognized the union as the exclusive bargaining agent for its production and shipping employees, and the union stated that it had been designated by a majority of such production and shipping employees to act as the exclusive bargaining representative of all of such employees. There was testimony that the union maintained a running check of the number of authorization cards it held against a list of the employees believed by it to be working in the bargaining unit. When the union's Regional Director became convinced that the union had obtained cards from a majority of the workers in the unit, he so stated to the employer. The latter made no independent check of the cards and took no other steps to investigate the assertion. Likewise, there is no evidence that at the time of concluding the agreement the union attempted to obtain a definitive list of the employees within the proposed bargaining unit.
In October 1957, the memorandum was followed by a formal collective-bargaining agreement. This covered many subjects appropriate for such a contract and recited that a majority of the employees in the bargaining unit had designated the union as their exclusive bargaining representative. The Board found that, on the critical date of August 30, the union had not been designated as a bargaining agent, either by the votes or by the signed cards of a majority of the employees in an appropriate bargaining unit. The union disputes the Board's finding of lack of majority status on August 30. While there were questions raised as to the status of some employees, the Board was justified in the finding that the union did not represent a majority of the employees in the designated unit on the critical date.3
The intent of the National Labor Relations Act, as amended, and especially § 7, is that the decision whether or not to be represented by a bargaining representative and also the choice of that representative shall be the uncoerced decision of a majority of the employees in an appropriate unit. Obstruction of that freedom of choice, by either the employer or the union, deprives some of the employees of this guaranteed right and is an unfair labor practice under § 8. It is difficult to conceive of a clearer restraint on the employees' right of self-organization than for their employer to enter into a collective-bargaining agreement with a minority of the employees. If upheld, that action would foreclose any other choice of a bargaining representative by a majority of the workers in the unit. It would not only impose the minority's bargaining agent upon the nonparticipating majority, it would also practically preclude the majority, during the term of the contract, from casting off the union as bargaining representative. Even if the employees might surmount the difficulties inherent in challenging the established order by presenting a petition for decertification under § 9(c),4 it is quite likely, under the Board's decisions, that the "contract-bar" rule would prevent the majority from asserting the union's lack of majority status during the two-year term of the contract. It has been held repeatedly by the Board that in a decertification proceeding, where the contract bar has been asserted, the petitioners are not permitted to show the lack of majority status of the union at the time the contract was made.5
It has been repeatedly found an unfair labor practice under § 8(a)(1) and (2) for an employer to conclude a collective-bargaining agreement with a minority union.6 In most of these cases there were aggravating factors such as the presence of a rival union or the imposition of a union security provision, but those cases do not appear to turn on the presence of these aggravating factors, nor are these factors always present. We see no material distinction from the viewpoint of the employees' § 7 organizational rights between the rival union situation, where there is interference in the choice between bargaining agents, and the instant cases, where the interference affects the choice whether to bargain through a collective representative or individually.
As early as N.L.R.B. v. Jones & Laughlin Steel Corp ., 301 U.S. 1, 44-45 (1937), it has been recognized that implicit in the duty of the employer to recognize the majority's representative of his employees as the exclusive bargaining representative is the correlative duty to deal with no agent other than that chosen by the majority.7 Also implicit is the obligation on the part of the employer to make sure that the representative does in fact represent a majority of the employees. Conversely, it is the duty of those who seek to establish themselves as exclusive bargaining agents to make sure that they have the mandate of those in whose name they speak.
Section 8(b)(1), as enacted in 1947, prohibits unions from invading the rights of employees under § 7 in a fashion comparable to the activities of employers prohibited under § 8(a)(1). That the provisions were intended to be parallel is indicated by the similarity of the language employed, and is confirmed by the legislative history of the provisions.8
Section 8(a)(1), as it appeared in the original Wagner Act as § 8(1), applied only to employer conduct. The major purpose which the sponsors of the 1947 amendments sought to achieve was to impose on unions the same restrictions as those imposed by § 8(1) on employers respecting intrusion on protected employee activity. The omission of the word "interference" from subsection (b)(1) may not be devoid of significance when considering whether labor organizations are permitted wider latitude in peacefully persuading employees to organize than is permitted employers in opposing collective bargaining. But where union activities go beyond the level of persuasion and amount to a foreclosure of the exercise of § 7 rights by the employees, we find no basis for holding that the provisions should have a different meaning when applied to a labor organization than when applied to an employer.
This Court's decision in Drivers, Chauffeurs, Helpers, Local Union No. 639 (Curtis Bros.) v. N.L.R.B ., - U.S. App. D.C. -, 274 F.2d 551, decided November 26, 1958, and the Supreme Court's affirmance of that decision, 362 U.S. 274, do not militate against enforcement of the Board's order in the instant cases.9 In the Curtis Bros . case a minority union was engaged in peaceful picketing in an effort to secure the recognition of a union which recently had been defeated in a certification election. This Court held that such picketing was not an unfair labor practice. The instant cases involve much more direct interference and restraint of § 7 rights than did the Curtis Bros . case. In the instant cases the recognition of the minority union is a fait accompli depriving the majority of the employees of their guaranteed right to choose their own representative. In the Curtis Bros . case the issue was not whether the recognition of the minority union as the exclusive bargaining representative was a violation of the statute. It was only whether the preliminary picketing seeking to gain members and recognition was a violation of § 8(b)(1).
The instant cases do not involve picketing and do not involve either the right of free expression or the right to strike which are protected by 13 of the Act.10 Teamsters Union v. Vogt, Inc ., 354 U.S. 284 (1957); Thornhill v. Alabama, 310 U.S. 88 (1940). The practices involved here, unlike recognitional and organizational picketing, are not specifically limited in the other unfair labor practice provisions of § 8.
An employer need not bargain with an uncertified representative if he has grounds in good faith for doubting the union's majority status,11 but he is under a duty to bargain if he has adequate grounds for believing that the union does represent a majority.12 It is difficult to establish ground for believing or disbelieving the existence of a majority status for a union in the face of a failure to take any steps to determine that status.13
The central consideration here is not merely whether the employer or the union entertained a bona fide belief that the union had majority support, but whether that belief was arrived at through an adequate effort to determine the true facts of the situation.
Questions may arise as to the membership of particular employees in the bargaining unit or the validity of the union authorizations. In most of these situations clear and convincing proof of the employees' status will be readily available to the parties in the form of personnel records and other direct proof of employment status. If informal methods are not available, or they do not prove dispositive, § 9(c) provides a formal method for an authoritative Board determination of majority representative status.
Organizational efforts will not generally turn on such thin majorities as to require a complex computation of majority status. In such a case, simple procedures are available to demonstrate majority status. It is only when the question is close that more is required. If the parties' determination of majority status is questionable, the burden is on the General Counsel to establish the alleged unfair practice and lack of majority status.
The net effect of the Board's policy is to require that labor organizations and employers refrain from recognizing by agreement a sole bargaining representative until such time as they have adequately established that such agent represents a majority of the employees in the bargaining unit. Allowing the union or the employer to do otherwise would permit them, by agreement, to undermine the employees' rights under § 7.
Accordingly, the union's petition to set aside the order is denied and the Board's order shall be enforced in full.
FAHY, C.J. dissenting: The doubts which surrounded the problem presented by this case have been resolved, as it seems to me, by the necessary implications of the recent decisions of the Supreme Court in N.L.R.B. v. Drivers, Chauffeurs, Helpers, Local No. 639, 362 U.S. 274, referred to as the Curtis case, and United Rubber Workers v. N.L.R.B ., 362 U.S. 329. The Court held in these cases that peaceful picketing, or a peaceful strike, by a union which did not represent a majority of the employees, to obtain immediate recognition as the exclusive bargaining agent in Curtis, or to obtain a contract in United Rubber Workers, was not an unfair labor practice under section 8(b)(1)of the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C. §§ 141-66 (1958). The subject was exhaustively considered in Curtis . In the absence of an objective explicitly condemned by the Act, such as appears in section 8(b)(4), peaceful economic measures were held not to constitute such restraint or coercion of employees in the exercise of their rights guaranteed by section 7 as to constitute unfair labor practices within the meaning of section 8(b) (1). From this it seems to me to follow that the obtaining of such recognition by peaceful economic measures, unaccompanied by any unlawful contractual provision, is not an unfair labor practice on the part of the union under section 8(b)(1). Insofar, therefore, as the Board order rests upon recognition thus accorded I think it is not supported.
I believe it also follows that the employer on his part does not violate section 8(a)(1) or section 8(a)(2) by according such recognition or entering into such an agreement. There was no rival union competing for recognition. Moreover, the employer was not interfering with the freedom of the employees by conferring exclusive recognition in furtherance of the employer's own preference for or desire to assist one union over another. Nor was the contract one for a union shop, see Local Lodge No. 1424 v. N.L.R.B ., 362 U.S. 411, (28 U.S.L. Week 4274, April 26, 1960), or claimed to be unlawful except that it accorded exclusive recognition to the union. *fn1 The strike was a peaceful one by the only union seeking recognition and bargaining status. The union lawfully obtained the settlement. It would frustrate the union's right so to do were it to be held that the employer, in agreeing to such a settlement, engaged on its part in an unfair labor practice which invalidated the settlement reached. Moreover, it seems to me that the contrary position requires an employer to suffer the consequences of a lawful strike without being able lawfully to bring it to an agreed end unless and until the union gains the adherence of a majority of the employees.
My position does not mean that the recognition in the form given is protected should a majority of the employees at any time repudiate the union or choose another bargaining agent. On the contrary, any existing "contract bar" policy or regulation of the Board is I think inapplicable to such a contract with a minority union, though made in such circumstances as are presented by this case.
I would set aside the order of the Board.
APPELLATE PANEL: FOOTNOTES
* Sitting by designation pursuant to 28 U.S.C. § 294(a).