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Superior Engraving Co. v. National Labor Relations Board


August 31, 1950


Author: Lindley

Before DUFFY, LINDLEY and SWAIN, Circuit Judges.


The second paragraph on page 11 of the opinion is modified to read as follows: "It is contended that the socalled Allis-Chalmers doctrine should not be applied in this case because the Union did not, so petitioner says, bargain in good faith but resorted to coercive measures of self-help which freed petitioner of its duty to bargain further with it. But the findings of the Board, supported by substantial evidence on the record considered as a whole, are to the effect that the Union did not order a withdrawal of its members from petitioner's employ, and that it was not responsible for the alleged slow-down and refusal to work overtime. Thus, there remains only the letter written by the Union's president to petitioner's competitors, listing certain accounts of petitioner which 'might be solicited' and the names of two of petitioner's salesmen who 'should be encouraged to join with one of our union plants.' The fact is, however, that petitioner, though now urging that the Union's circulation of the letter relieved it of its duty to bargain with the Union, did not so regard it at the time the act occurred, for it continued to deal with the Union as the exclusive bargaining representative of its employees in the subsequent meetings with the Conciliation Commissioner and in the submission of the contract dispute to the War Labor Board. Moreover, there is no evidence indicating that the Union, in certifying the dispute to the War Labor Board, was not acting in good faith, or that, while the case was pending before that body, it employed any selfhelp measures, while on the other hand, there is abundant evidence that petitioner, in the same period, sought to replace the Union as the representative of its employees. Consequently, we conclude that petitioner's contention must be rejected."

Petitioner has persistently contended that an employer cannot be guilty of a refusal to bargain if the Union is not itself bargaining in good faith. This is correct, but here we have no evidence that the Union, in submitting the dispute to the War Labor Board, was not acting in good faith. The cases relied on by petitioner (NLRB v. Express Publishing Co., 128 F.2d 690; Matter of Times Publishing Co., 72 NLRB 676) do not hold that a Union's resort to self-help is conclusive evidence of a lack of good faith. Thus we think it could not properly be held that peaceful picketing, if carried on by a Union during a labor dispute, would relieve the employer of its duty to bargain with the Union. Nor do the cases cited persuade us that the Union's circulation of a letter to petitioner's competitors in December, 1943, constituted proof that it was not acting in good faith in certifying the dispute to the War Labor Board three months later, in March, 1944. Consequently, we conclude that the rejection of petitioner's contention that it was under no obligation to bargain with the Union was correct.

Petitioner strongly urges that the ex parte statements of individual employees as to why they left the employment was not hearsay and should have been admitted. We think, however, that our conclusion in this respect is correct. The Act, Section 10(b), provides that the proceedings before the Board, so far as practicable, should be conducted "in accord with the rules of evidence applicable to the district courts of the United States." The rule excluding hearsay is a basic rather than a technical rule. The reason for the rule is that the unsworn statement of a person not called as a witness or subjected to the test of cross-examination is not recognized as having sufficient probative effect to raise an inference that the fact is as stated. 31 C.J.S. 924. Our conclusion that the excluded statements constituted hearsay is, we think fortified by Buckeye Powder Co. v. DuPont Powder Co., 248 U.S. 55; Bracken, et al. v. Cato, et al., 54 F.2d 457 (CA-5); Globe Indemnity Co. v. McAvoy Co., 41 F.2d 122 (CA-7), certiorari denied 282 U.S. 884. A labor union is an association constituting an entity suable in the Federal courts. United Mine Workers of America, et al. v. Coronado Coal Company, et al., 259 U.S. 344 at 381. The Supreme Court said in United States v. White, 322 U.S. 694 at 701 and 702 that "The Union's existence in fact, and for some purposes in law, is as perpetual as that of any corporation, not being dependent upon the life of any member. It normally operates under its own constitution, rules and by-laws which, in controversies between member and union, are often enforced by the courts. * * * The actions of one individual member no more bind the union than they bind another individual member unless there is proof that the union authorized or ratified the acts in question." It follows that the entity of the association is as much separate and apart from the individual members as that of a corporation is from its stockholders. Thus, in the absence of authority conferred, a single member has no power to bind the association by his declarations or statements. 7 C.J.S. 51, 52, 71 and 72; Spotswood v Morris, 85 P. 1094, 12 Idaho 360, 6 L.R.A.(N.S.) 665 - 5 C.J. p. 1361, note 83; Sizer v. Daniels, 66 Barb. (N.Y.) 426; Edgerly v. Gardner, 1 N.W. 1004, 9 Neb. 130; Kuteman v. Lacy, 144 S.W. 1184. It follows, therefore, that the statements of individual members are not the statements of the association and, so far as that entity is concerned, are within clearly announced rules purely hearsay.

The petition for rehearing is denied.


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