GREAT SOUTHERN T. CO. v. National L. Relations Board

Citation139 F.2d 984
Decision Date10 January 1944
Docket NumberNo. 4874.,4874.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Winthrop A. Johns and A. Norman Somers, Attys., both of Washington, D. C. (Robert B. Watts, Gen. Counsel, and Howard Lichtenstein, Asst. Gen. Counsel, both of Washington, D. C., on the brief), for National Labor Relations Board.

Whiteford S. Blakeney, of Charlotte, N. C. (Guthrie, Pierce & Blakeney, of Charlotte, N. C., on the brief), for Great Southern Trucking Co. and L. A. Raulerson.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is a petition by the National Labor Relations Board (hereinafter called the Board) for an order adjudging the Great Southern Trucking Company (hereinafter called the Company) and L. A. Raulerson, its President, in contempt of the decree of this court entered on April 13, 1942, enforcing an order of the Board. Mandate was issued on May 14, 1942, 127 F.2d 180, and on October 12, 1942, the Supreme Court denied the application of the Company for a writ of certiorari. 317 U.S. 652, 63 S.Ct. 48. Our decree has at all times remained in full force and effect and both the Company and Raulerson have had knowledge of the decree since its entry.

The Board in its petition alleges that the Company and Raulerson have disobeyed paragraphs 1(b) and 2(a) of our decree by failing and refusing to bargain collectively with The International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America, Local No. 71 (hereinafter called the Union), as the duly designated collective bargaining agent for the employees of the Company, although the Company and Raulerson have been repeatedly requested by the Union to do so. The Company and Raulerson frankly admit that they have refused to bargain with the Union as ordered. They seek to extricate themselves from the plight of their own wrongdoing, however, on the ground that the Union has lost its majority status inasmuch as after the entry of our decree, a petition was signed by a majority of the employees stating that they did not desire to be represented by the Union.

On March 3, 1943, these circumstances were presented by the Company to the Board with a request that the Board redetermine the Union's majority status. The Board denied this request apparently on the ground that the Company had at no time since the entry of our decree bargained with the Union and that the effects of the Company's unfair labor practices had therefore never been dissipated. Accordingly, the Board's Director of Field Division informed the Company that it expected full compliance with our decree, including the bargaining provision. We are thus squarely presented with the question of whether the loss of the Union's majority status, occurring after the entry of our decree but prior to the taking of remedial action by the Company as required by our decree, relieves the Company from the obligation of complying with the bargaining provisions of the decree.

We have already had occasion to consider this question in National Labor Relations Board v. Highland Park Mfg. Co., 4 Cir., 1940, 110 F.2d 632, and we there rejected the contention that an intervening loss of a majority status relieves an employer of the remedial obligation to bargain with a union with which it had previously unlawfully refused to bargain. Judge Parker there stated, 110 F.2d at page 640: "It is reasonable to assume, moreover, that any decline in union membership has been due in large measure to refusal of respondent to bargain with the union as representative of the employees in the manner contemplated by the Act of Congress; and, in such situation, an order requiring respondent to bargain as contemplated by the Act is reasonably necessary to overcome the effect of the interference with self organization resulting from the refusal to bargain. An employer should not be allowed to discredit a bargaining agent selected by an overwhelming majority of his employees by refusal to bargain with it and then take advantage of the loss of membership due to his wrongful act as an excuse for refusing to recognize it as a bargaining agent."

Moreover, in a subsequent order dated March 11, 1941, we adjudged the Highland Park Company in contempt when it attempted to urge this same argument as a defense for its failure to obey our decree. And a wealth of judicial utterance in the form of decisions and dicta by the Supreme Court and each of the Circuit Courts of Appeals sustains our position in this respect. N.L.R.B. v. P. Lorillard Co., 1942, 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380; International Ass'n of Machinists v. N.L. R.B., 1940, 311 U.S. 72, 61 S.Ct. 83, 85 L. Ed. 50; N.L.R.B. v. Bradford Dyeing Ass'n, 1940, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; cf. N.L.R.B. v. Clinton E. Hobbs Co., 1 Cir., 1942, 132 F.2d 249; N. L.R.B. v. Medo Photo Supply Corp., 2 Cir., 1943, 135 F.2d 279; Oughton v. N.L.R.B., 3 Cir., 1941, 118 F.2d 486; N.L.R.B. v. Whittier Mills Co., 5 Cir., 1940, 111 F.2d 474; N.L.R.B. v. Burke Machine Tool Co., 6 Cir., 1943, 133 F.2d 618; N.L.R.B. v. Chicago Apparatus Co., 7 Cir., 1940, 116 F.2d 753; Bussmann Mfg. Co. v. N.L.R.B., 8 Cir., 1940, 111 F.2d 783; N.L.R.B. v. Biles Coleman Lumber Co., 9 Cir., 1938, 96 F.2d 197; Continental Oil Co. v. N.L. R.B., 10 Cir., 1940, 113 F.2d 473; N.L.R.B. v. Porcelain Steels, 6 Cir., 138 F.2d 840, decided Nov. 30, 1943.

While it is true that the loss of majority in the instant case occurred, not among the employees composing the original working force of the Company, but rather among the changed personnel composed largely of new employees who replaced the discharged employees, the principle that the union is entitled to a reasonable presumption of the continuity of its majority status and an employer may not profit by its own wrongdoing is nonetheless applicable.

The failure of the Company to take the curative action dictated by us necessarily must have had a telling impact on the new employees. Indeed, had the Company acted lawfully and obeyed the command of our decree by recognizing and bargaining with the Union, the Union probably would have recruited in its ranks a proportionate share of adherents from the new employees. As was stated in N.L.R.B. v. Franks Bros. Co., 1 Cir., 1943, 137 F.2d 989, 994: "It appears in the case before us that the loss of a majority was due to a voluntary quitting on the part of certain employees of respondent. * * * The respondent's dilatory tactics, its refusal to recognize the union as a bargaining representative, and its campaign against the union deprived it of the opportunity of strengthening its organization. It demonstrated the union's inability to reach an agreement with the employer with the result that as time went on the enthusiasm of its members waned and it made it more difficult for the union to capture the allegiance of other employees, either old employees who had previously not joined, or new employees who came on after the unfair labor practices were committed. The Board might reasonably conclude that had the union been recognized and installed as bargaining representative of the employees, as the law required, it probably would have retained its majority status by accessions from these sources, despite its loss of members resulting from normal labor turnover. In other words, the Board has taken the position that in a proceeding of this nature involving a violation of Section 8(5), it is imperative in order to effectuate the purposes of the Act, that an employer gain no advantage from his dilatory tactics in refusing to bargain collectively with a majority union. The fact that it may be shown that by lapse of time the union had been unable to retain its majority is not a sufficient basis for refusing to order affirmatively that the respondent bargain with the union." (Emphasis supplied.)

Inasmuch as the Company's own unlawful conduct created an atmosphere which made normal union growth and allegiance difficult, it will not now be permitted to urge its labor turnover and ensuing loss of union majority status as the basis for avoiding compliance with the remedial bargaining provision of our decree. This is particularly true in the instant case where the Company had a black record of active and insidious anti-union conduct since 1938. In our decision enforcing the Board's order (127 F.2d 180) we outlined the obstructive and Fabian tactics of the Company which rendered abortive the statutory rights of its employees to collective bargaining by representatives of their own free choice. Apparently the Company's unlawful labor practices have continued unabated since then. Under these circumstances it can hardly be said that this latest petition of a majority of the employees disavowing the Union is a true expression of their unhampered will. On the contrary, it rather indicates that at long last, after five years, the Company has been able successfully to thwart the employees' attempt to bargain collectively through the representatives of their own untrammelled choice.

Accordingly, to accept on its face value the Company's contention that "it is clear and definite that the Union here in question does...

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