114 F.2d 738 (9th Cir. 1940), 9209, N.L.R.B. v. Sterling Electric Motors, Inc.
|Citation:||114 F.2d 738|
|Party Name:||NATIONAL LABOR RELATIONS BOARD v. STERLING ELECTRIC MOTORS, Inc.|
|Case Date:||September 13, 1940|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Appeal Dismissed Oct. 28, 1940.
See 61 S.Ct. 69, 85 L.Ed.-- .
HEALY, Circuit Judge, dissenting.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Asst. Gen. Counsel, National Labor Relations Board, all of Washington, D.C., for petitioner.
Hardy & Horwin, Leonard Horwin, and Jack W. Hardy, all of Los Angeles, Cal., for respondent.
Before DENMAN, MATTHEWS and HEALY, Circuit Judges.
DENMAN, Circuit Judge.
This opinion and the foregoing accompanying order arise from the declination of the National Labor Relations Board, for a period of many months, to act under Sec. 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(c), on our commitment to it to take further testimony on a charge against respondent of fraudulent deceit constituting an unfair labor practice. From facts later narrated, the delay appears to be purposed to facilitate the Board in pressing what is, in effect, an ex parte certiorari proceeding in the Supreme Court to deprive the Sterling Electric Motors Company's Employees' Association of its right of collective bargaining with respondent, to which we have held the Association is entitled.
The Association had been chosen the bargaining agent of respondent's employees by a majority of the respondent's employees and all three of the participating judges agreed that the Association had been organized without employer aid or interference and that a board's order disestablishing it was not warranted by the evidence. Cf. National Labor Relations Board v. Sterling Electric Motors, Inc., 9 Cir., 109 F.2d 194, 210. The court therefore declined to enforce the Board's orders to respondent to cease and desist: '(b) From recognizing Sterling Electric Motors, Inc., Employees Association as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment.', and to take affirmative action: '(a) Withdraw all recognition from the Sterling Electric Motors, Inc., Employees Association as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said Association as such representative.'
Subsequently we set aside the order we had made declining enforcement of the above and other orders of the Board. On a reargument, granted on the petition of the Board, the court construed the intent of Congress in creating the duty of the Board in 'protecting' all unions' rights of collective bargaining. 1 It held that the two orders forbidding the employer to
bargain collectively with the Association deprived the Association of that protected right, the sole function of the Association. We declined to decree the enforcement of the order because the Association was not a party to the proceeding. The Court held the Board, so required by Section 1 of the Act to protect the Association's right of collective bargaining, had violated a civil liberty of the union, in failing to give it notice and an opportunity to be heard in a 'protecting' proceeding in which it was sought to deprive the Association of that right. National Labor Relations Board v. Sterling Electric Motors, 9 Cir., 109 F.2d 63, 65 et seq., Id., 9 Cir., 109 F.2d 194, 196 to 204. The reasons for making this order without waiting for the determination of another issue in the case are later stated
The Board also sought our enforcing decree on orders concerning solely the respondent employer. These orders by the Board to the respondent are to:
'1. Cease and desist:
'(a) From dominating or interfering with the administration of Sterling Electric Motors, Inc., Employees Association or with the formation or administration of any other labor organization of its employees, and from contributing support to said organization or to any other labor organization of its employees;'
'(c) From in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.'
We are in agreement with Judge Healy's statement (109 F.2d 212) that these cease and desist orders (a) and (c) are 'calculated to protect the employees, not to overthrow their Association; hence the presence of the latter is in no view a prerequisite to its enforcement.'
The crucial finding of fact on which these latter cease and desist orders are based in that a bulletin of respondent...
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