National Labor Relations Board v. STANDARD L. & S. CO.

Decision Date11 May 1945
Docket NumberNo. 5350.,5350.
Citation149 F.2d 435
PartiesNATIONAL LABOR RELATIONS BOARD v. STANDARD LIME & STONE CO.
CourtU.S. Court of Appeals — Fourth Circuit

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Guy Farmer, Associate Gen. Counsel, National Labor Relations Board, of Washington, D. C. (Alvin J. Rockwell, Gen. Counsel, Malcolm F. Halliday, Associate Gen. Counsel, Marcel Mallet-Prevost and Margaret M. Farmer, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Lacy I. Rice, of Martinsburg, W. Va., and Harry N. Baetjer, of Baltimore, Md. (Venable, Baetjer & Howard, of Baltimore, Md., and Rice & Hannis, of Martinsburg, W. Va., on the brief), for respondent.

PARKER, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board directing the Standard Lime and Stone Company to bargain collectively with an A. F. of L. union as the bargaining representative of its employees. The company resists enforcement on the ground that the union has not been chosen as bargaining representative because (1) a majority of eligible employees did not participate in the election at which the union was chosen, (2) the election was not representative of the choice of the majority and (3) opportunity was not given, in a run-off election between two unions, to vote against representation by either.

The facts are that a United Mine Workers union petitioned the Board to make an investigation and certify a bargaining representative for the employees of the company. An A. F of L. union intervened in this proceeding and on April 13, 1943, the Board proceeded to hold an election at which the company's employees were allowed to indicate by secret ballot their choice of the U. M. W. union, the A. F. of L. union or "neither" as bargaining representative. 439 employees were eligible to vote in this election, but only 218 votes were cast. 99 of these were cast for the A. F. of L. union, 62 for the U. M. W. union and 57 for "neither". The company then asked that the petition be dismissed, but both unions asked that a run-off election be held and, on May 14, 1943, one was held between the two unions, with the "neither" choice eliminated. At the time of the run-off election, 409 employees were eligible and 166 voted, one of the ballots being void. 137 votes were cast for the A. F. of L. union and 28 for the U. M. W. union.

Both elections were fairly advertised and properly held and there is no evidence of coercion of interference on the part of the company or anyone else, and nothing to indicate that they were not fairly representative of the sentiment of the employees. The Board found that the vote was "substantial and representative" and certified the A. F. of L. union as the bargaining representative. The company's refusal to bargain with the union was found by the Board to be an unfair labor practice and the usual order was entered directing the company to bargain with it.

On the first and principal question, that presented by lack of majority participation in either of the elections, we think that the conclusive answer is found in the decision of the Supreme Court in Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789, affirming the decision of this court reported in 4 Cir., 84 F.2d 641.1 In that case both this court and the Supreme Court held that, in employees' elections under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., for the selection of bargaining representatives, the political principle of majority rule should be applied, viz., that those not participating in the election must be presumed to assent to the expressed will of the majority of those voting, so that such majority determines a choice. The Supreme Court said 300 U.S. 515, 57 S.Ct. 605: "Section 2, Fourth, of the Railway Labor Act * * * provides: `The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this Act (chapter).' Petitioner construes this section as requiring that a representative be selected by the votes of a majority of eligible voters. It is to be noted that the words of the section confer the right of determination upon a majority of those eligible to vote, but is silent as to the manner in which that right shall be exercised. Election laws providing for approval of a proposal by a specified majority of an electorate have been generally construed as requiring only the consent of the specified majority of those participating in the election. Board of Supervisors of Carroll County v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28 L.Ed. 517; Douglass v. Pike County, 101 U.S. 677, 25 L.Ed. 968; Louisville & N. R. Co. v. County Court of Davidson County, 1 Sneed, Tenn., 637, 62 Am.Dec. 424; Montgomery County Fiscal Court v. Trimble, 104 Ky. 629, 47 S. W. 773, 42 L.R.A. 738. Those who do not participate `are presumed to assent to the expressed will of the majority of those voting.' Cass County v. Johnston, 95 U.S. 360, 369, 24 L.Ed. 416, and see Carroll County v. Smith, supra. We see no reason for supposing that section 2, Fourth * * *, was intended to adopt a different rule."

And we see no reason to think that a different rule was intended by the National Labor Relations Act. The pertinent language of that act is: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining", 29 U.S.C.A. § 159. There would seem to be no material difference between the meaning of this provision and of that contained in the Railway Labor Act. That the provision quoted from the National Labor Relations Act was intended to apply to the selection of bargaining agents by employees the political principle of majority rule, is expressly stated in the Report of the House Committee accompanying the bill, where it is said: "Section 9 (a) incorporates the majority rule principle, that representatives designated for the purpose of collective bargaining by the majority of the employees in the appropriate unit shall be the exclusive representatives of all the employees" etc. Report No. 1147 of the House Committee on Labor to accompany S.1958, June 10, 1935, 74th Cong., 1st Sess., p. 19. The majority rule principle was that which had been adopted in the Railway Labor Act.2 Its application in ordinary political elections to situations where a majority of the votes cast was less than a majority of those qualified to vote had been settled in Carroll County v. Smith, supra, and other decisions of the Supreme Court. The Virginian Railway decision gave it the same meaning when applied to industrial elections that it had when applied to ordinary political elections, and we see no reason to give it any different meaning here.

Although there is no decision of the Supreme Court holding that a majority of the votes cast in an election is sufficient for the choice of a bargaining representative under the National Labor Relations Act, this is the holding of the Labor Board and of all of the Circuit Courts of Appeals which have had occasion to pass upon the question. See N. L. R. B. v. Central Dispensary & Emergency Hospital, App.D.C., 145 F.2d 852, certiorari denied 65 S.Ct. 684; New York Handkerchief Mfg. Co. v. N. L. R. B., 7 Cir., 114 F.2d 144, 148-149, certiorari denied 311 U.S. 704, 61 S.Ct. 170, 85 L.Ed. 457; N. L. R. B. v. National Mineral Co., 7 Cir., 134 F.2d 424, 426-428, certiorari denied, 320 U.S. 753, 64 S.Ct. 58, 88 L.Ed. 448; N. L. R. B. v. Whittier Mills Co., 5 Cir., 111 F.2d 474, 477, 478; Marlin-Rockwell Corporation v. N. L. R. B., 2 Cir., 116 F. 2d 586, 588, certiorari denied 313 U.S. 594, 61 S.Ct. 1116, 85 L.Ed. 1548; Matter of Western Foundry Co., 42 N. L. R. B. 302; Matter of Spring City Foundry, 11 N. L. R. B. 1286; Matter of R. C. A. Mfg. Co. Inc., 2 N. L. R. B. 159, 173. There are no contrary decisions.

The company seeks to distinguish the Virginian Railway case and certain other of the decisions above cited on the ground that a majority of the employees participated in the elections there; but nothing in the statute furnishes the basis for such distinction. The statute requires that bargaining representatives be selected by the majority of the employees; and certainly a majority in favor of a representative cannot be scraped up by counting those who voted against him. The statute makes no provision for a quorum nor for the participation of any definite proportion of the employees in the election.3 It is, of course, the duty of the Board to see that the election is fairly advertised and held and that the results are fairly representative of the wishes of the employees; but where these conditions are met and no undue pressure is exerted, there is no reason why the ordinary political rule should not be applied, viz., that those who do not take the trouble to vote acquiesce in the choice registered by the majority of those voting.

In three of the cases cited, the New York Handkerchief Mfg. Co. case and the National Mineral Co. case from the 7th Circuit, and the Central Dispensary and Emergency Hospital case from the District of Columbia, only a minority of the qualified employees participated in the vote, and the question before us was squarely presented and carefully considered. The company points out that in the Seventh Circuit cases there was evidence of employer interference in the elections; but this was significant only on the question as to whether the Board was justified in considering the result of the elections as...

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