Castle, Kiley, and Fairchild, Circuit Judges. Kiley, C. J., (dissenting in part).
This case is before the Court upon a petition to review and set aside, and upon the cross-petition of the National Labor Relations Board to enforce an order of the Board issued against the petitioner, Conren, Inc. The Board's decision and order are reported at 156 NLRB No. 43.
The Board found that Conren violated Section 8(a)(1), (2), (3) and (5) of the National Labor Relations Act, as amended, and by its order directs Conren to cease and desist from the unfair labor practices found. Affirmatively, the order requires, among other things,*fn1 that Conren upon request bargain collectively with the Union.*fn2
One of the principal issues this proceeding presents for our determination is whether the fact that the Union's demand for recognition and the commencement of contract negotiations, which Conren ignored, was made within less than one year -- actually some nine months and sixteen days -- after a valid Board conducted representation election in which the employees of the unit involved rejected both the Union and another labor organization (Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 144) in favor of "no union" precluded the existence of any duty on the part of Conren to recognize and bargain with the Union.
From the record it appears that the Union's March 19, 1964 demand for recognition as the exclusive bargaining representative of the employee unit and for the commencement of bargaining negotiations was based on its possession on such date of authorization cards signed by 32 of the 53 employees in the unit as a result of a new organizational campaign commenced by the Union in March of 1964.
Conren contends the valid election held on June 7, 1963, only nine and one-half months previously, and which the Union lost, eliminated any duty on the part of Conren to bargain with the Union. Although Section 9(c)(3) of the Act*fn3 in its terminology expressly embraces only an "election" in placing the limitation it does on the Board's authority to direct the holding of a representation election, Conren reasons that the purpose of "furthering industrial stability" judicially recognized as one of the reasons why Congress so fixed the spacing of elections (Brooks v. NLRB, 348 U.S. 96, 103, 99 L. Ed. 125, 75 S. Ct. 176) equally affords a basis for precluding a union which has lost a representation election from acquiring within the prescribed twelve-month period a status by other means, such as the signing of authorization cards by a majority of the employees involved, which places the employer under a duty to bargain with that union. This may well be. But the language and legislative history of Section 9(c) clearly indicate that Congress was aware of the alternative methods of establishing and determining union representative status, but that it concerned itself only with limiting the frequency of Board directed and conducted elections for such purpose when it enacted Section 9(c)(3). Congress not only established the policy but it also selected the means to aid in effectuating it. Petitioner's argument is misdirected. That Congress chose one method of furthering a prime objective of its legislative purpose does not afford a basis for this Court to select and impose an additional but different means. For this Court to so extend a similar post-election proscriptive period to a union's acquisition of representative status (with concomitant creation of employer duty to bargain with the Union upon demand) by means of authorization cards would in our opinion constitute an attempt by the Court to usurp a legislative prerogative.
Conren's reliance on NLRB v. Blades Mfg. Corp., 8 Cir., 344 F.2d 998, is misplaced. That case is inapposite. There, the Court found that there had been two elections within a one-year period, that the first election was valid and that the second, therefore, was invalid. Since the union's asserted representative status was based solely on the results of the second election it was held that the company had no duty to recognize or bargain with the union. The case did not involve a union demand for recognition based on authorization cards, and the Court, therefore, had no occasion to consider the issue raised here of whether an employer is required to recognize and bargain with a union within a year following a valid election on the basis of a showing of authorization cards executed by a majority of the employees.
We have considered all of the other contentions advanced by the petitioner as justifying its refusal to recognize and bargain with the Union, and the additional contentions asserted by petitioner as demonstrating the existence of evidentiary and legal infirmities in the Board's findings and conclusions with respect to the other violations which are the subject of the Board's order. We perceive no useful purpose which would be served by extending this opinion to discuss these additional matters. From our examination of the record we are convinced that considered as a whole it contains substantial evidence, which together with reasonable inferences which may be drawn therefrom, supports the critical factual findings upon which the Board's ultimate conclusions rest, and we are of the opinion that those conclusions represent the application of correct legal criteria.
Conren's petition to set aside the Board's order is denied, and the Board's cross-petition for the enforcement of its order is granted. It is ordered that the Board's order be enforced and that a decree issue for that purpose.*fn4
KILEY, C. J., dissenting ...