On petition for enforcement of an order of National Labor Relations Board.
Before EVANS, SPARKS, and MINTON, Circuit Judges.
The National Labor Relations Board, hereinafter referred to as the Board, has filed a petition for enforcement of its order against the National Mineral Company, hereinafter referred to as the company.
The Board found the company guilty of three unfair labor practices, in violation of Sections 8(1), 8(3) and 8(5) of the National Labor Relations Act, hereinafter referred to as the Act. (49 Stat. 449, 29 U.S.C.A. § 158.) The Board ordered the company to cease and desist from interfering with, restraining and coercing its employees in the exercise of their right of self-organization guaranteed by Section 7 of the Act; to cease and desist from discouraging membership in the union (Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658) by discriminating in regard to the hire and tenure of employment; to cease and desist from refusing to bargain collectively with the union; to offer one Albert Labiak immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss he may have suffered; and to post the usual notices.
As to the unfair labor practices of interfering with, restraining and coercing its employees in violation of Section 8(1) of the Act, and discrimination in the hire and tenure of employment of Albert Labiak in violation of Section 8(3) of the Act, the company neither in its brief nor in the oral argument challenged these findings or the order of the Board relating thereto. Where the Board in its petition and brief in support thereof presents a prima facie case for enforcement of its order, which is not challenged or disputed in the company's brief or on oral argument, the company will be deemed to have admitted the validity of so much of the findings and the order relating thereto as remain undisputed and unchallenged by the company. See 4 Corpus Juris Secundum, Appeal and Error, § 1344.
Suffice it to say, we have examined the record and find there is substantial evidence to support the Board's order that the company was guilty of unfair labor practices in violation of Sections 8(1) and 8(3) of the Act. It would serve no useful purpose to encumber the record with an analysis of the evidence in support thereof, which, as we have said, was not even challenged by the company.
The company does make a challenge of the Board's finding of violation of Section 8(5) of the Act, by attacking the validity of the proceeding before the Board in a Section 9(c) proceeding,*fn1 in which the Board conducted a hearing, an investigation and an election to determine the bargaining agent of the company's employees. The Board found after the hearing and the investigation in that proceeding that an election should be held to determine the bargaining agent. An election was held, and as a result of the election, the Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658, affiliated with the Upholsterers' International Union of North America, affiliated with the American Federation of Labor, hereinafter refered to as the union, was designated as the bargaining agent for the company's eligible employees. Since this was the bargaining agent that the Board found the company had refused to bargain with, in violation of Section 8(5) of the Act, the record of the Section 9(c) proceedings was certified to this court as required by Section 9(d) of the Act.*fn2
Although it is admitted that the Board certified the union as the bargaining agent for the company's employees after a Section 9(c) proceeding, the company has refused to recognize the union or to bargain with it. The company states its refusal to bargain with the union is because there can be no question of representation under the Act or the Constitution since, it is asserted, the union did not represent the employees, and only 83 out of the 453 eligible employees voted at an election held by the Board.
The investigation and election authorized in the aid thereof under Section 9(c) of the Act are administrative proceedings. They are not adversary proceedings, and, as counsel for the company admits in his brief, "The employer is only a nominal party. The issue at the preliminary hearing in these cases arises between the employees themselves, as can be seen more clearly when two unions are seeking and claiming sole representation. The function of the Board and the employer, therefore, in these hearings is merely to develop the facts relating to the right of the single claimant to speak for all the employees. The only persons directly affected by the Board's finding that there is a majority are the employees who have not authorized the union to speak for them."
It is the agent of the employees that is being chosen, and not the agent of the employer. The employees have raised no question as to the proceedings in which their representative was selected.One would naturally expect the employer, unless prejudicially disposed towards unions, to be indifferent to the question of who is to be chosen to represent the employees. As the Circuit Court of Appeals for the Fifth Circuit said in National Labor Relations Board v. Whittier Mills Co., 111 F.2d 474-478: "The employer is, in theory at least, not much concerned, since the employees are to choose their representative unhindered. So long as the employees make no contention that they are not correctly represented, it would seem that the employer could safely continue to deal indefinitely with the designated bargaining agent. In the present case the employees have not protested at all, and the employer has raised the question belatedly."
The employer's interest and his great concern about whom the employees shall have as their representative for bargaining purposes are easily demonstrated as very unsubstantial. Suppose the stockholders of the respondent company or any corporation were holding a stockholders' meeting for the purpose of electing the bargaining representative of the stockholders, namely, the directors; and suppose fraud, forgery and sharp dealing of many kinds were used in the procurement and handling of the stockholders' proxies in such an election. Would the employer be likely to tolerate the protest of its employees, who were not stockholders, that the election was crooked and invalid? In what forum in this land of ample legal machinery could the employees be heard to challenge the election of the stockholders' representative for collective bargaining? This reverse statement of the case shows how ephemeral and unsubstantial the employer's objection is. As the Senate Committee on Education and Labor that reported the bill for passage said with reference to a Section 9(c) proceeding (Senate Report No. 573, 74th Congress, 1st Session): "An election is the mere determination of a preliminary fact, and in itself has no substantial effect upon the rights of either employers or employees."
The employer may only challenge to our attention what the record reveals in order that we may determine whether the Board followed the proceedings laid down in Section 9(c), and whether there was substantial evidence to support its action. We look to the record. There we find that the company was largely engaged in interstate commerce. The facts as to this were stipulated. On March 19, 1940, the Beauticians Supplies and Cosmetic Workers Union Local 21107, affiliated with the American Federation of Labor, filed with the Board a petition for an investigation and certification, pursuant to Section 9(c) of the Act.Prior thereto, Local 21107 had applied to the Upholsterers' International for affiliation with it. On March 25, 1940, the Upholsterers' Union issued a charter to the Chrome Furniture, Handlers and Miscellaneous Crafts Union Local No. 658, herein referred to as the union.Local 21107 then surrendered its charter, and the union claimed to succeed it and to represent the employees of the company. On April 29, 1940, the union filed a petition with the Board for an investigation and certification under Section 9(c) of the Act. On May 15, 1940 the Regional Director issued notices of a hearing and served the notices on the company, with a copy of the petition. The company appeared at the hearing represented by counsel, and participated therein.During the course of that proceeding, the company stipulated: " * * * that the union for which the cards have been signed has a sufficient interest in the matter to bring the case before the Examiner."
The Board found upon investigation and hearing that the company's employees had signed 288 cards or papers of various kinds indicating their desire to be represented by a union. The company further stipulated during the hearing that the union was the only labor organization at the time claiming to represent the employees. It seemed to be the contention of the company that the union could not claim to represent the employees who had signed up with Local 21107, which had surrendered its charter. The same International Union that Local 21107 sought affiliation with issued its charter to the union Local No. 658, and Local 21107 then surrendered its charter.These acts occurred contemporaneously. There was evidence that 288 of the company's employees out of a possible 453 were interested in some union representation. Local No. 658, which claimed to succeed Local 21107, claimed the right to represent the employees, and was the only labor union that did. There was here a showing of substantial ...