INTERNATIONAL LADIES'GARMENT WKRS'. UNION v. NLRB, 15038

• Decision Date: 19 May 1960
• Docket Number: 15079.,No. 15038,15038
• Citation: 280 F.2d 616
• Parties: INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner v. BERNHARD-ALTMANN TEXAS CORPORATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

280 F.2d 616 (1960)

INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner v. BERNHARD-ALTMANN TEXAS CORPORATION, Respondent.

Nos. 15038, 15079.

United States Court of Appeals District of Columbia Circuit.

Argued December 3, 1959.

Decided May 19, 1960.

Mr. Charles J. Morris, Dallas, Tex., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of Court, with whom Messrs. Morris P. Glushien, New York City, and L. N. D. Wells, Jr., Dallas, Tex., were on the brief, for petitioner in No. 15038.

Mr. Frederick U. Reel, Atty., National Labor Relations Board, with whom Messrs. Thomas J. McDermott, Associate Gen. Counsel, National Labor Relations Board, Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, and Herman M. Levy, Atty., National Labor Relations Board, were on the brief, for respondent in No. 15038 and petitioner in No. 15079.

Mr. Wallace M. Cohen, Washington, D. C., entered an appearance for respondent in No. 15079.

Before Mr. Justice BURTON, retired,^* and WILBUR K. MILLER and FAHY, Circuit Judges.

Mr. Justice BURTON.

These cases present the question whether it was an unfair labor practice, under §§ 8(a) (1) and (2) and 8(b) (1) (A) of the National Labor Relations Act, as amended in 1947,¹ for an employer and a union to enter into a collective-bargaining agreement recognizing the union as the exclusive bargaining representative of all of the employees in the proposed bargaining unit, although the union had not been authorized to act as their collective-bargaining representative by a majority of the employees. For the reasons hereafter stated, we are of the opinion that such an agreement unlawfully restrained nonparticipating employees from their free exercise of the rights of self-organization guaranteed to them by § 7 of the Act² and also gave unlawful support to the participating union. We therefore agree with the National Labor Relations Board's decision that such conduct in the cases before us was an unfair labor practice which the Board properly ordered discontinued.

The General Counsel for the National Labor Relations Board filed a complaint against the Bernhard-Altmann Texas Corporation, an employer, manufacturing knitwear for interstate commerce at San Antonio, Texas. The complaint charged the employer with entering into an exclusive recognition agreement with the International Ladies' Garment Workers' Union, AFL-CIO, at a time when the union did not represent a majority of the corporation's employees in any appropriate bargaining unit. It also charged the employer with thus contributing to the support of the union in violation of § 8 (a) (2), and with interfering with the free exercise of rights, guaranteed to the employees by § 7 of such Act, in violation of § 8(a) (1). In a separate complaint the General Counsel also charged that the union had violated § 8(b) (1) (A) by entering into the above-mentioned agreement with the employer and thus restraining and coercing some of the latter's employees in the free exercise of rights guaranteed to them by § 7. After a hearing in which the cases were consolidated, the trial examiner issued an intermediate report recommending that each complaint be dismissed in its entirety. However, the Board, on exceptions filed by the General Counsel, disagreed with the trial examiner's conclusions. The Board found that the employer and the union had respectively engaged in the alleged unfair labor practices. It accordingly ordered each of them to cease and desist from such practices and to hold a representative election. One member concurred in part and dissented in part. 122 N.L.R.B. 1289, 1297. The union now asks this Court to set aside the Board's order, whereas the Board asks that its order be enforced. Except for filing its answer, the employer has not participated in these proceedings.

The facts found by the Board are supported by substantial evidence on the record considered as a whole and are conclusive here. 61 Stat. 148, 29 U.S. C.A. § 160(e). Our jurisdiction is not questioned.

Beginning in 1956, the union engaged in a campaign to organize the employer's plant. It obtained a substantial number of authorization cards signed by employees designating the union as their bargaining representative. In July 1957, a number of the employees struck in protest against a wage reduction and the union, on behalf of some of the strikers, endeavored to settle the controversy. On August 30, 1957, during these negotiations, a "memorandum of understanding" was signed by the employer and the union. In that memorandum the employer expressly recognized the union as the exclusive bargaining agent for its production and shipping employees, and the union stated that it had been designated by a majority of such production and shipping employees to act as the exclusive bargaining representative of all of such employees. There was testimony that the union maintained a running check of the number of authorization cards it held against a list of the employees believed by it to be working in the bargaining unit. When the union's Regional Director became convinced that the union had obtained cards from a majority of the workers in the unit, he so stated to the employer. The latter made no independent check of the cards and took no other steps to investigate the assertion. Likewise, there is no evidence that at the time of concluding the agreement the union attempted to obtain a definitive list of the employees within the proposed bargaining unit.

In October 1957, the memorandum was followed by a formal collective-bargaining agreement. This covered many subjects appropriate for such a contract and recited that a majority of the employees in the bargaining unit had designated the union as their exclusive bargaining representative. The Board found that, on the critical date of August 30, the union had not been designated as a bargaining agent, either by the votes or by the signed cards of a majority of the employees in an appropriate bargaining unit. The union disputes the Board's finding of lack of majority status on August 30. While there were questions raised as to the status of some employees, the Board was justified in the finding that the union did not represent a majority of the employees in the designated unit on the critical date.³

The intent of the National Labor Relations Act, as amended, and especially of § 7, is that the decision whether or not to be represented by a bargaining representative and also the choice of that representative shall be the uncoerced decision of a majority of the employees in an appropriate unit. Obstruction of that freedom of choice, by either the employer or the union, deprives some of the employees of this guaranteed right and is an unfair labor practice under § 8. It is difficult to conceive of a clearer restraint on the employees' right of self-organization than for their employer to enter into a collective-bargaining agreement with a minority of the employees. If upheld, that action would foreclose any other choice of a bargaining representative by a majority of the workers in the unit. It would not only impose the minority's bargaining agent upon the nonparticipating majority, it would also practically preclude the majority, during the term of the contract, from casting off the union as bargaining representative. Even if the employees might surmount the difficulties inherent in challenging the established order by presenting a petition for decertification under § 9(c),⁴ it is quite likely, under the Board's decisions, that the "contract-bar" rule would prevent the majority from asserting the union's lack of majority status during the two-year term of the contract. It has been held repeatedly by the Board that in a decertification proceeding, where the contract bar has been asserted, the petitioners are not permitted to show the lack of majority status of the union at the time the contract was made.⁵

It has been repeatedly found an unfair labor practice under § 8(a) (1) and (2) for an employer to conclude a collective-bargaining agreement with a minority union.⁶ In most of these cases there were aggravating factors such as the presence of a rival union or the imposition of a union security provision, but those cases do not appear to turn on the presence of these aggravating factors, nor are these factors always present. We see no material distinction from the viewpoint of the employees' § 7 organizational rights between the rival union situation, where there is interference in the choice between bargaining agents, and the instant cases, where the interference affects the choice whether to bargain through a collective representative or individually.

As early as N. L. R. B. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 44-45, 57 S.Ct. 615, 81 L.Ed. 893, it has been recognized that implicit in the duty of the employer to recognize the majority's representative of his employees as the exclusive bargaining representative is the correlative duty to deal with no agent other than that chosen by the majority.⁷ Also implicit is the obligation on the part of the employer to make sure that the representative does in fact represent a majority of the employees. Conversely, it is the duty of those who seek to establish themselves as exclusive bargaining agents to make sure that they have the mandate of those in whose name they speak.

Section 8(b) (1) (A), as enacted in 1947, prohibits unions from invading the rights of employees under § 7 in a fashion comparable to the activities of employers prohibited under § 8(a) (1). That the provisions were intended to be parallel is indicated by the similarity of the language employed, and is confirmed by the legislative history of the provisions.⁸

Section 8(a) (1), as it appeared in the original Wagner Act as § 8(1), applied only to employer conduct. The...