National Labor Relations Bd. v. STERLING ELEC. MOTORS
| Decision Date | 15 March 1941 |
| Docket Number | No. 9209.,9209. |
| Citation | 118 F.2d 893 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. STERLING ELECTRIC MOTORS, Inc. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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, MATHEWS, and HEALY, Circuit Judges.
On June 19, 1939, the National Labor Relations Board petitioned this court to decree the enforcement of the Board's order of July 9, 1938, requiring respondent, Sterling Electric Motors Inc., to cease and desist from certain practices and to take certain affirmative action. Answering, respondent prayed that the order be set aside. We heard the case and, on January 9, 1940, entered a decree setting the order aside. 9 Cir., 109 F.2d 194.
On March 9, 1940, this decree was set aside and the Board petitioned for and was granted a rehearing. At the rehearing, respondent applied for and, on April 22, 1940, was granted leave to adduce additional evidence, to be taken by the Board. Thereafter, on May 6, 1940, prior to the taking of such additional evidence, we entered a decree setting aside the Board's order in part and, as to the remainder thereof reserving our decision. 9 Cir., 112 F.2d 63.
The Board petitioned the Supreme Court for a writ of certiorari. While that petition was pending we vacated and set aside our decree of May 6, 1940. 9 Cir., 114 F.2d 738. Thereupon the Board filed in the Supreme Court a motion for leave to file a petition for writs of mandamus and prohibition. On October 28, 1940, the motion was denied and the petition for writ of certiorari was dismissed. 311 U.S. ___, 61 S.Ct. 67, 85 L.Ed. ___, 311 U.S. ___, 61 S.Ct. 69, 85 L.Ed. ___.
On February 20, 1941, the Board filed in this court additional evidence taken before the Board pursuant to our order of April 22, 1940, new findings thereupon made by the Board, and the Board's recommendation that its order of July 9, 1938 be set aside.
Recommendation accepted and decree entered accordingly.
My brethren are of the opinion that where such an administrative body as the National Labor Relations Board, upon a further hearing on matters recommitted to it, decides there is no ground to sustain its charges of employer domination of a union or of other unfair labor practices, and asks to have set aside its own orders, including one destroying an absent union's right of collective bargaining, that is an adequate reason for a decree granting its request. I am in agreement with this, but prefer to concur on the additional ground of the lack of jurisdiction in personam over the Association for an order disestablishing it and depriving it of its right of collective bargaining.
As we have stated (9 Cir., 112 F.2d 63, 68) we cannot be blind to the tragedy of the destruction of the democracies of Western Europe nor can we now ignore the fact that we are entering a long period when, in the stress of defense of our own, our citizens will feel constrained to submit voluntarily to an emergency exercise of an administrative absolutism abhorrent in peace time. When that long period is passed, our tribunals exercising such powers will be reluctant to yield them. They will point to their exercise by the Labor Board before the emergency and to the Pennsylvania Greyhound case (National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307) as authority for their continuance.
Throughout the instant proceeding the Board has insisted that it has such absolute power to destroy a union's right of collective bargaining, though not served or appearing, and that, in cases it has brought, it has fixed such absolute power as part of our widely extending administrative law.1 Because of this, the following considerations seem pertinent to the Board's contentions.
In our decision of this week (March 11, 1941) in National Labor Relations Board v. Ferguson, 9 Cir., 118 F.2d 892,2 we have held that in a proceeding in which the Board is prosecutor, and the employer is the sole respondent, and the labor organization absent, we cannot so destroy the latter's right of collective bargaining. In that decision we rely upon the principles stated in our decisions in this proceeding, National Labor Relations Board v. Sterling Electric Motors, Inc., 9 Cir., 109 F.2d 194; Id., 9 Cir., 112 F.2d 63, 64; Id., 9 Cir., 114 F.2d 738.
Our opinions rest on the thesis that the primary purpose of the act and the primary function of the Board is the protection of the public's interest, as well as the union's, in the latter's right of collective bargaining with its employer. This is clearly established by the language of the declaration of policy with which the National Labor Relations Act opens and in its section 7, 29 U.S.C.A. §§ 151, 157.
It is a logical absurdity to say that ordering an employer not to bargain collectively with a union does not directly deprive a union of the right of bargaining with the employer. Without the contemplated nexus of employer and the employees' Association in collective bargaining there would be nothing for the Board to protect. To say that because the decree "runs against" the employer, it does not directly affect the Association which Congress sought to protect, is as complete a contradiction in itself as if the King's executioner should say, "I have cut off the condemned's head as ordered, but have not affected his body, which your Royal Highness did not order." Cf. our opinion in 112 F.2d 63, 65, for an extension of this discussion.
It is obvious Congress did not intend that the protection of the public's interest in a union's right of collective bargaining should be in a proceeding in which the Board is both prosecutor and judge and no adversary party at all appears, and where the Board contends that the union is employer dominated and hence cannot exercise that right.
It is equally obvious that the union's submission to or participating in employer dominion is an essential part of the evil sought to be prevented by § 7 and 8 of the Labor Act, 29 U.S.C.A. §§ 157, 158. No matter what discriminating benefits the employer may have given it, a union well could prove to the Board that it was independent and not dominated by the employer, and hence should not be destroyed or denied its right to bargain collectively.
A labor union may engage in and be prevented by the Labor Board from further engaging in an unfair labor practice. It should be noted that section 10(a), (b) and (c) of the Labor Relations Act, 29 U.S. C.A. § 160(a-c), empowering the board to prevent unfair labor practices does not mention the word "employer", but significantly uses the word "person."
Also it should be noted that Congress gives the Board no specific power to disestablish a union. This is the judge made law of the Pennsylvania-Greyhound case, framed there without the participancy of any union representative in establishing principles governing disestablishing procedure for the great numbers of unions then or later to be charged with submission to employer dominion. Had there been such counsel for the union sought to be destroyed (as here) by an order disestablishing it and by depriving it of its right of collective bargaining, he well could have called the Supreme Court's attention to the following considerations.
It is a matter of indifference whether a union is a person or a number of persons associated for a common purpose. A union submitting to or participating in employer dominion is a "person", within section 8(1) of the National Labor Relations Act, who thereby "interferes with" and "restrains" and, through its union power, "coerces" "employees" of the company — its members — in the exercise of their rights "to bargain collectively through representatives of their own choosing," guaranteed by section 7.
Hence a labor union accused of such submission to dominion or participating in it, is a "person" which the Board is empowered under section 10 (a) of the Act to prevent from engaging in such unfair labor practice by the procedure against "any person" so offending provided in section 10 (b) and (c) of the Act. As shown, the union is necessarily tied to and is "engaging" with the employer in the commission of the offense and hence a necessary party to the proceeding by which it is to be prevented, if actually participating or submitting, from dealing with its employer.
Similarly a labor union engages in an unfair labor practice if, when in a jurisdictional struggle with another union, it uses violence to coerce the other from becoming the employees' collective bargaining agent.3 Surely the Board has power under § 10 (a), (b) and (c) to prevent any "person" whether unionized men or employers from so coercing employees in the exercise of their right to "bargain collectively through representatives of their own choosing" as guaranteed by § 7. Where such disruption of the industry occurs both the employer and the coerced union is entitled to seek the Board's protection.
It is apparent from an elementary knowledge of the employer-union relation that the employer is not the person intended by Congress to protect the public's interest (or the union's) in the union's right to bargain with its employer. As we have pointed out (112 F.2d 63, 66) the employer, because he may not dominate the union or because a more powerful union threatens a picketing, with consequent bankruptcy to the employer, may "ride to a fall" in the Board proceeding and willingly be ordered to cease and desist from not doing that which, in any event, the statute prohibits.
In fact without any hearing at all, the employer may stipulate to orders destroying the union's right of collective...
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