December 1960, and January 1961, but has refused to remit or account for these dues to the plaintiff. Instead, defendant has insisted upon retention of these dues, in escrow, over plaintiff's protest, although no adverse claim thereto has ever been asserted.
12. On January 26, 1961, nine of the twelve challenges to the ballots of the Board certification election of September 29, were overruled and a new tally of ballots was taken. This tally established that the rival union, WSEA, had obtained a majority; and, on February 1, 1961, the Board certified WSEA as the exclusive bargaining agent for the bargaining unit.
13. No claim to the checked off dues still in defendant's possession has been asserted by WSEA or by any individual employee from whose salary the dues were deducted.
14. The net amount of the checked off dues, after deduction because of withdrawing members who had cancelled their dues authorizations, and other deductions for certain expenses in connection with the grievance procedure, in accordance with the agreement, was $ 7,924.00.
On the question of jurisdiction, we need only to refer to the recent opinion of the Court of Appeals of this Circuit in Roadway Express, Inc. v. General Teamsters, Chauffeurs and Helpers Union, Local 249 (3rd Cir.) 330 F.2d 859 at p. 861:
'The complaint properly averred a cause of action under § 301 of the Act. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241 (82 S. Ct. 1318, 8 L. Ed. 2d 462), (1962). Hence the District Court had jurisdiction over the claim. Whether such averments have merit or not is immaterial on the question of jurisdiction since that is determined from the face of the complaint. Hall v. Sperry Gyroscope Co., etc., 183 F.Supp. 891 (D.C.N.Y.1960).'
Upon the merits, the enforceability of the contract hinges upon plaintiff's representative status. It is our considered judgment that plaintiff was the exclusive bargaining representative while its certification was in force, i.e., until February 1, 1961.
While some confusion and conflict appears among the cases, we take it to be the general rule that once a union has been duly certified by the Board as the collective bargaining agent for an employee unit, that status is presumed to continue unless and until the certification of such union is terminated by action of the Board. Brooks v. Labor Board, 348 U.S. 96, 75 S. Ct. 176, 99 L. Ed. 125 (1954); Parks v. Atlantic Printing Pressmen & Assistants Union, 243 F.2d 284 (5th Cir. 1957); Lewis Food Co. v. Los Angeles Meat & Provision Drivers, 159 F.Supp. 763 (S.D.Calif.1958).
For present purposes, we think the applicable rule is that so well stated in National Labor Relations Bd. v. Sanson Hosiery Mills, 195 F.2d 350 (5th Cir. 1952), at p. 352:
'Although certification of a bargaining representative by the Board is not intended to create a permanent relationship without regard to new situations that may develop, there must be a reasonable measure of stability to the relationship so established, as it is one of the objectives of the Act to stabilize as well as improve industrial relations. Such a certification, when lawfully made, must be respected by the employer until changed conditions are reflected by a later ruling by the Board altering or setting aside the certification. This is true, even though the bargaining agent so designated has lost its majority representation of the employees by reason of the subsequent defection of some of those originally voting for it as their representative. The existing certification must nevertheless be honored until lawfully rescinded.'
'Nor can the employer decide for itself whether the Union has lost its bargaining status, and deciding that it has, refuse to deal with it further. Whether or not the Union has lost that status is for the Board to determine upon orderly statutory procedure. N.L.R.B. v. Prudential, 6 Cir., 154 F.2d 385, headnote 10. Meanwhile, it is the duty of the employer to deal with the duly certified Union.'
The Court of Appeals for our Circuit has, more than once, applied the same principle. See, e.g., National Labor Relations Board v. Swift & Co., 162 F.2d 575 (3rd Cir. 1947), at p. 582:
'The rule that a Board's certification cannot be disregarded by an employer and that the certification is valid until declared invalid or replaced by the Board, is well-settled: National Labor Relations Board v. May Department Stores Company, 8 Cir., 146 F.2d 66, 70 and the cases cited therein, (affirmed with modifications 326 U.S. 376, 66 S. Ct. 203, 90 L. Ed. 145).'
Reason and experience commend that rule as consonant with the underlying purpose of the statute, which is 'industrial peace'. Brooks v. Labor Board, 348 U.S. 96, 103, 75 S. Ct. 176, 99 L. Ed. 125 (1954). We agree with plaintiff that, in the present circumstances, any other rule 'would necessitate an unfortunate hiatus during which the employees in effect would be deprived of any collective bargaining representation during such period of time (here extending from September 29, 1960, to February 1, 1961) during which a pending election remained unresolved.'
It follows that, under Section XX of the agreement, the contract was automatically renewed, and plaintiff's rights thereunder continued, until the Board's certification of WSEA, on February 1, 1961.
We have carefully considered defendant's able and comprehensive brief, and the numerous authorities therein cited, and find it appropriate to make but one comment thereon. Defendant calls our attention to N.L.R.B. v. Small Tube Products, Inc., 319 F.2d 561 (3rd Cir. 1963), wherein the Court stated at p. 563:
'There can be no doubt since the Supreme Court's decision in Brooks v. N.L.R.B., 348 U.S. 96, 75 S. Ct. 176, 99 L. Ed. 125, that when the Board certifies a Union as majority representative, its status is immune from challenge for one year and after that period an employer may refuse to bargain with the Union if it has 'fair doubts' as to the Union's continuing majority.'
In the Brooks case, the Supreme Court, 348 U.S. at p. 104, 75 S. Ct. at p. 182, stated with respect to this rule that, 'This, too, is a matter appropriately determined by the Board's administrative authority.' We think this rule has no application here. The question before us involves more than a mere refusal to bargain. The rule, which has been applied many times, is undoubtedly valid in the appropriate factual context. However, abstract general principles do not decide concrete cases. As stated in United States v. E. I. Du Pont & Co., 366 U.S. 316, at p. 357, 81 S. Ct. 1243, at p. 1266, 6 L. Ed. 2d 318 (1961):
'Any apparently applicable policy or rule, abstractly stated, must be related to the specific circumstances of a particular case in which it is invoked and applied. Care must be taken to consider phrases used in relation to the particular facts of the cases relied on.'
CONCLUSIONS OF LAW
1. The Court has jurisdiction of the parties and of the subject matter.
2. For purposes of collections of dues, the plaintiff's status as exclusive bargaining representative for the bargaining unit of defendant's salaried workers remained in full force and effect until the certification of the rival Union, WSEA, on February 1, 1961, and the collective bargaining agreement of November 1950, remained in full force and effect until the certification of the rival Union, WSEA, on February 1, 1961.
3. Defendant's refusal to remit or account to the plaintiff for union dues checked off, pursuant to authorization, for the months of November and December 1960, and January 1961, was a breach of the agreement.
4. Plaintiff is entitled to judgment against defendant in the sum of $ 7,924.00, with interest from January 25, 1961.
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