INTERNATIONAL BROTHERHOOD, ETC. v. NATIONAL LR BD.
| Decision Date | 28 June 1939 |
| Docket Number | No. 8267.,8267. |
| Citation | 105 F.2d 598 |
| Parties | INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Isaac L. Straus, of Baltimore, Md., and John H. Clippinger, of Cincinnati, Ohio (Taft, Stettinius & Hollister, of Cincinnati, Ohio, and Isaac Lobe Straus and Sigmund Levin, both of Baltimore, Md., on the brief), for petitioners.
Philip G. Phillips, of Cincinnati, Ohio, (Charles Fahy and Robert B. Watts, both of Washington, D. C., and Philip G. Phillips, of Cincinnati, Ohio, on the brief), for respondent.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
International Brotherhood of Electrical Workers and International Brotherhood of Electrical Workers, Local Union 876, filed their petition in this court to review and set aside a Supplemental Decision and Second Direction of Election issued by The National Labor Relations Board. The Board moved to dismiss the petition upon the ground that this court has no jurisdiction to entertain it. A transcript of the proceedings before the Board sufficient for present purposes has been filed.
Petitioners aver that Local Union 876 is an organization of wage workers and a constituent of I. B. E. W. and that both organizations are affiliated with the American Federation of Labor; that Local Union 876 is composed of wage workers in the employ of Consumers Power Company, a public utility corporation.
On February 2, 1938, I. B. E. W. filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the Company and requesting an investigation and certification of representatives for collective bargaining.
Pursuant to Sec. 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159 (c), the Board directed an investigation and authorized a hearing which was participated in by petitioners and the Utilities Workers Organizing Committee, another labor organization composed of employees of the Company and affiliated with the Congress for Industrial Organization. Both these organizations claimed to represent the employees of the Company.
The Board found that a question affecting commerce had arisen concerning the representation of the Company's employees and directed that an election by secret ballot be conducted under the supervision of the Regional Director to determine whether the employees desired to be represented by the I. B. E. W. or by the U. W. O. C. or by neither. The Regional Director conducted the election and reported to the Board the result as follows:
Total Number of Employees Eligible 2,977
Total Number of Ballots Cast...... 2,806
Total Number of Votes for I. B. E
W. ............................. 1,072
Total Number of Votes for U. W. O
C. ............................. 1,164
Total Number of Votes for Neither. 506
Total Number of Challenged Ballots 52
Total Number of Blank Ballots..... 1
Total Number of Void Ballots...... 11
The result indicated that a majority of the voters desired to bargain collectively but that neither organization had received a majority of the votes cast. Thereupon, over the protest and objection of petitioners, the Board promulgated what is styled a "Supplemental Decision and Second Direction of Election." The Board directed "that as a part of the investigation authorized by the Board to determine representatives for the purposes of collective bargaining with Consumers Power Company * * * an election by secret ballot shall be conducted * * * among all the employees of the Company, excluding * * * to determine whether or not they desire to be represented by Utility Workers Organizing Committee for the purposes of collective bargaining."
It is this "Second Direction of Election" which petitioners seek to have reviewed and set aside. We are not concerned here with unfair labor practices as between employer and employee set out in Sec. 10 of the Act, 29 U.S.C.A. § 160. We are dealing with the procedure for the designation of representatives of employees for purposes of collective bargaining, described in Sec. 9, a concededly different matter. It is the policy of the United States, set forth in the third paragraph of Sec. 1 of the Act, 29 U.S.C.A. § 151 to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self organization and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment, or other mutual aid or protection. In National Labor Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, at page 265, 58 S.Ct. 571, 574, 82 L.Ed. 831, 115 A.L.R. 307, the court said:
Section 7 of the Act guarantees to employees the right to bargain collectively through representatives of their own choosing and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection. Associated Press v. Labor Board, 301 U.S. 103, 123, 57 S.Ct. 650, 81 L.Ed. 953; National Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. It was said in the Jones & Laughlin case that this is a fundamental right. See also Texas & N. O. R. Co. v. Brotherhood of Railway & S. S. Clerks, 281 U.S. 548, 571, 50 S.Ct. 427, 74 L.Ed. 1034.
Having made the guaranty, it was necessary that the Congress should adopt a procedure for the selection of such representatives. To this end, Sec. 9(a) provides that 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, etc. There is thus provided the simple American principle of majority rule. Virginian Ry. Co. v. System Federation No. 40, etc., 4 Cir., 84 F.2d 641, 652.
By Sec. 9(c) it is...
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