LOCAL 1325, RETAIL CLERKS INTERNATIONAL ASS'N v. NLRB, 6172

• Decision Date: 13 December 1963
• Docket Number: 6205.,No. 6172,6172
• Citation: 325 F.2d 293
• Parties: LOCAL 1325, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TOPPS KERRMILL, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

325 F.2d 293 (1963)

LOCAL 1325, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TOPPS KERRMILL, INC., Respondent.

Nos. 6172, 6205.

United States Court of Appeals First Circuit.

December 13, 1963.

Warren H. Pyle, Boston, Mass., with whom Grant, Angoff, Goldman & Manning, Boston, Mass., was on brief, for Local 1325, Retail Clerks International Association, AFL-CIO.

A. Brummel, Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Monoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Washington, D. C., Atty., were on brief, for National Labor Relations Board.

John E. Jay, New York City, with whom Robert H. Pick and Parker, Chapin & Flattau, New York City, were on brief, for Topps Kerrmill, Inc.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

PER CURIAM.

On these petitions for review and enforcement of a Labor Board order the only question we find worth discussing is whether an employer, who has afforded a union access to the plant and reasonable but not excessive assistance in its organizational campaign in admitted ignorance that another union was also attempting organization, has unfairly discriminated against the rival union by failing to grant that union's request for equal access made only after the first union had signed up a substantial majority of the employees.¹ The Board, apparently because the rival union had been in the course of attempting to organize the employees, held that there was discrimination when the company did not allow the second union an equal opportunity to "undo" the employees' selection.

At least in the absence of excessive assistance to a known party one cannot "discriminate" against someone not known to exist. What the Board is holding is that subsequent occurrences after an accomplished event may cause one to become a discriminator ab initio. The unsettling effect of such a rule is apparent on the facts of this case. Here we have a union, so far as the evidence shows, acting at all times without knowledge of the existence of a rival, obtaining recognition through a card check and negotiating an agreement, and then, on a charge filed eight weeks later, being ousted because after it had obtained its majority membership the employer did not allow another union that had been competing secretly to come in and compete openly....