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National Labor Relations Board v. Corporation.


June 13, 1947


Author: Evans

Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

National Labor Relations Board, petitioner herein, seeks enforcement of its order directing respondent, Gatke Corporation, to cease and desist from refusing to bargain with the Union and coercing the employees in the exercise of their right to self-organization.

The Union, the United Construction Workers*fn1 had been "certified" July 21, 1944, by the Board, as the bargaining agent for the Company's employees. Conferences were held between the Union's agents and the Company and its attorney, with the result that several issues*fn2 were settled, and several were not settled.*fn3 The Company refused on December 6, 1944 to sign a "partial" contract covering the agreed subjects.

The dispute was then carried to the War Labor Board early in 1945; the Regional Panel thereof issued its directive October 11, 1945, and on appeal taken by the Company the National War Labor Board issued its directive, December 11, 1945.

The Company chose not to honor the Directive, since "it had no 'legal' effect."

The Union filed with the Company on October 25, 1945, a list of its members pursuant to the Directive Order, which list of employees disclosed to the Company that the Union no longer represented a majority of the employees.

The Company thereupon, on january 22, 1946, wrote the Union the following letter, which is one of the bases of the charge of refusal to bargain:

"January 22, 1946.

"Dear Mr. Barnhart: -

"I have discussed the subject matter of your letter of January 7, 1946 with Mr. Gatke.

"The Company believes that the Directive Order of the National War Labor Board is wrong. I have advised Mr. Gatke that War Labor Board Directive Orders are only recommendations, and that the Courts have so held. I have also advised him that the reasons advanced by the War Labor Board for recommending maintenance of membership, - namely to compensate unions for their no strike pledge, are now non-existent.

"The Company also considers that the provision of the Directive Order relating to the payment of retroactive wages is unreasonable.

"The Company is consequently unwilling to follow the recommendations of the National War Labor Board.

"I have been advised by the office of the Regional Director of the National Labor Relations Board at Indianapolis that you have amended the charge heretofore filed by you against the Company to include an allegation that the Company has refused to bargain collectively with the United Construction Workers.

"The Company is convinced that the United Construction Workers do not represent a majority of its employees. The list of employees which you submitted to the Company for the check-off of dues, following the War Labor Board's Directive Order contained the names of only a small minority of the Company's employees. A number of the employees whose names were on that list have since notified the Company that they were not members of the Union and did not desire to be represented by it.

"I have advised Mr. Gatke that the National Labor Relations Board should be informed of these facts. Consequently, we plan to submit this information to the Regional Board.

"Yours very truly,

"John Harrington."

A reading of the evidence before the Labor Board trial examiner convinces us that an anti-union attitude, on the part of respondent, and particularly against the United Construction Workers, existed. This hostility was manifested by speeches of Mr. Gatke, by conversations and by the utterances of respondent's foremen and its plant manager.*fn4

The Gatke Corporation, an Illinois company, manufactures at its Indiana plant, inter alia, asbestos friction products, brake linings, etc. It does about a hundred thousand dollar business a year.

The Examiner made findings which the Board approved and adopted, which, among other things found

"* * * that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the intermediate Report attached hereto. * * *

"The Trial Examiner found that the respondent violated Section 8(1) of the Act by various acts and statements of its officers and supervisory employees, as set forth in the Intermediate Report. We find that these acts and statements, when considered in their entirety, disclose a coercive course of conduct by the respondent which interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. * * *

"The Trial Examiner further found that the respondent violated Section 8(5) of the Act by its refusal to sign a contract with the Union on December 6, 1944, and at all times thereafter, including its refusal, on January 22, 1946, to recognize the Union as collective bargaining representative of its employees in an appropriate unit.* * *

In January 1946, the respondent notified the Union for the first time that the respondent believed that the Union no longer represented a majority of its employees, and since that time the respondent has refused to deal with the Union as the bargaining representative of its employees. We agree with the Trial Examiner's finding that the respondent thereby refused to bargain with the Union within the meaning of Section 8(5) of the Act. * * *

"As found by the Trial Examiner, we believe that the situation here is one in which the principles laid down in the Allis Chalmers case should be applied. Although a considerable period has elapsed since its certification, the Union, while exercising due diligence, has been unable to secure for the employees in the unit that it represents the full benefits of collective bargaining, because of a resort to the orderly procedures of the War Labor Board.

"Nor are we satisfied that the list of union members in good standing submitted to the respondent by the Union in October 1945, pursuant to the Regional War Labor Board's Order, served to rebut the presumption of the continued existence of the Union's majority status, as the respondent contends. There is a real difference between the designation of a labor organization as collective bargaining representative and membership therein. They are not synonymous. The Act guarantees to employees the right to bargain collectively through representatives of their own choosing, and Board-conducted elections afford them a means of expressing their choice. In no case is membership a requirement."

"Under these circumstances we believe, and find that on and after January 22, 1946, the certification of the Union continued to bind the respondent to recognize and deal with the Union as the collective bargaining representative of the respondent's employees in the appropriate unit."

It is the Board's contention that the Company should have recognized the Union as the bargaining agent despite the fact that more than a year had elapsed since its certification (a year being the customary period of effectiveness of a certification) and despite the fact the Union evidently no longer represented a majority of the employees. It predicated its conclusion on the Company's disinclination throughout the period to bargain effectively; on the basis that the company was anti-union; and that a great part of the interval since certification, passed in the proceedings before the War Labor Board. Since public policy requires that the War Labor Board proceedings be honored, their duration and consequent delay, should not be used to defeat an accrued bargaining right.

We are convinced that the Board's order is not an arbitrary one, in view of the peculiar facts of the instant case, which reveal a decided management hostility to the certified union which sought persistently - yet politely and amicably - to effect a bargaining agreement with the Company. The only conclusion deducible from the testimony, including the documentary exhibits, is that the Company was stalling off recognition of the Union, and a written contract, in the hope that such tactics would cause the certified Union to lose face and faith with its constituents.

We state, however, that this conclusion is not meant to lend sanction to certified bargaining representative's authority for indefinite periods after their certification and especially where it satisfactorily appears they no longer represent the majority of the persons in the bargaining unit. Nothing said in this opinion should be construed as giving sanction of the Board's action, where more than a year has passed since the Board issued its certification or where it appears that the union which received the certification no longer represents the majority of the employees. The facts in each case must determine the date when the effect of the certification expires. The same is true as to the effect of a reduction in the number of employees to a point where the union no longer represents a majority.

The unavoidable conclusion which we draw from the record before us necessitates the granting of an order of enforcement. The Board had jurisdiction of the controversy. Its findings have support in the evidence. Upon the facts disclosed the certification was not terminated by the reduction in membership in the union to a point below a majority.

The petition for an order of enforcement is granted.

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