Mid-Continent Petroleum Corp. v. NATIONAL LAB. REL. BD.

• Citation: 204 F.2d 613
• Decision Date: 22 May 1953
• Docket Number: No. 11618.,11618.
• Parties: MID-CONTINENT PETROLEUM CORP. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

204 F.2d 613 (1953)

MID-CONTINENT PETROLEUM CORP. v. NATIONAL LABOR RELATIONS BOARD.

No. 11618.

United States Court of Appeals Sixth Circuit.

May 22, 1953.

J. P. Greve and R. H. Wills, Tulsa, Okl. (R. H. Wills and J. P. Greve, Tulsa, Okl., on the brief), for petitioner.

Fannie M. Boyls, Washington, D. C. (George J. Bott, David P. Findling, A. Norman Somers, Fannie M. Boyls and Thomas F. Maher, Washington, D. C., on the brief), for respondent.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

In a consent election pursuant to the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., the truck drivers operating from petitioner's Terre Haute bulk plant, having been found to constitute an appropriate bargaining unit, selected the Teamsters Union, AFL, as their exclusive representative for collective bargaining in respect to rates of pay, wages, hours of work, and other conditions of employment. Six employees composed the unit involved. Four voted for the union representation, and two, against it. After the union's certification on March 12, 1951, as bargaining representative for the employees in the unit, petitioner entered into collective bargaining negotiations with the union. Thereafter, without any unfair labor practice by petitioner, one of the six truck drivers included in the bargaining unit quit his job for personal reasons, and on April 16, 1951, another employee was hired in his stead. Thereafter, within the next ten days, the new employee and two others in the bargaining unit, without the intervention of any unfair labor practices by the employer company, delivered to it separate letters stating, in substance, that they did not want the union or any other labor organization as their bargaining representative. Subsequently, on or about May 14, 1951, petitioner withdrew recognition from the union on the ground that it no longer represented a majority of the six employees in the unit, and since that time, has refused to recognize or bargain collectively with the union as the exclusive representative of such employees. Upon complaint being filed that petitioner was engaging in unfair labor practices in refusing to recognize and bargain with the union as the exclusive representative of the employees in question, the National Labor Relations Board found that petitioner was thereby guilty of an unfair labor practice, and entered an order directing it to cease and desist from refusing to bargain collectively and from interfering with the efforts of the union to represent the employees and to take appropriate affirmative action of collective bargaining, and to post the customary notices at its place of business. The petitioner thereupon, in accordance with Section 10(f) of the National Labor Relations Act, as amended, Title 29 U.S.C.A. § 160(f), filed a petition for review of the Board's order and asked that it be vacated and set aside.

On the issue whether an employer is required to bargain with a union agent selected by the employees as their representative, where the union thereafter loses its majority status and the employees subsequently discontinue their support of, or repudiate, the union, the various courts of appeals are in conflict. There is no doubt, of course, that where the employer's obstructive tactics, delays, and other unfair labor practices may have contributed to a loss of majority status, the employer is guilty of an unfair labor practice in not recognizing the bargaining agents selected before such unfair labor practices took place. Franks Brothers Co. v. National Labor Relations Board, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020.

In this circuit, it has been held that where the bargaining agent chosen by the employees or designated by the Board has lost its majority status without fault on the part of the employer, the latter is not obliged to bargain with such agent after it has been repudiated by the employees. In National Labor Relations Board v. Vulcan Forging Co., 6 Cir., 188 F.2d 927, where, within a week or ten days after a union bargaining agent had been chosen by employees in an election held under the supervision of the National Labor Relations Board, it appeared that nineteen out of twenty of the employees of the plant had notified the company that they severed relations with the union, and that the company was guilty of no unfair labor practices with respect to such severance of relations, we held that the company was relieved of any duty to bargain with the union and that refusal thereafter to bargain with such agent was not a violation of the Act. In its decision, the court said:

"We can not see how it can reasonably be said in this case that the employees are bound to be represented by the discredited union. The revocations were valid, and, hence, the Board did not sustain its burden of proving that respondent had refused to bargain with the union that represented the majority of the employees. * * * They are entitled by law to bargain collectively through a representative of their own choosing. To force them to bargain through a representative which they had repudiated would be depriving them of their right to bargain through the representative of their choice." 188 F.2d at pages 930, 931.

In National Labor Relations Board v. Standard Steel Spring Co., 180 F.2d 942, 946, this court also had occasion to pass upon the question of the recognition by an employer of a union as bargaining representative, where another union, which had previously been selected by the employees, had thereafter lost its majority status. In that case, it appeared that the majority of the employees of a bargaining unit had designated a certain union as their representative during a changeover of an industrial plant to new owners, and while a general building reconstruction program was under way. Upon demand by the union representative to be recognized as the collective bargaining agent, the company informed him that it favored a plantwide bargaining unit, and that it had, at the time, only a few permanent employees compared to the number that it would later employ when the plant went into production. Thereupon, the union filed a representation petition with the National Labor Relations Board requesting certification as exclusive bargaining representative. However, during the pendency of the proceeding and while the Board had under advisement the question of the appropriate unit and the determination of bargaining representative, the employees who had formerly voted for the union, by a large majority, and without interference from the employer, chose a new bargaining agent and informed the employer of that fact. In holding that the company was not guilty of any unfair labor practice in recognizing the new bargaining agent, this court said: "There can be no question, from the record, that at the time respondent company recognized the new bargaining agent, that union represented the great majority of all of respondent's employees, as well as all of the powerhouse employees. In fact, there was no evidence whatever to the contrary. The mere circumstance that there is pending an undisposed proceeding before the Board for the determination of the employees' choice of representative, based on a petition brought by one union, does not convict an employer of unfair labor practices for recognizing another union as the employees' representative on clear proof of such majority representation, submitted several months after the inception of the representation proceedings. * * * Here, the good faith of respondent company was unquestioned by the Board. It is clear that respondent was not guilty of any unfair labor practices."

Another case somewhat along the same line is National Labor Relations Board v. Hollywood-Maxwell Co., 9 Cir., 126 F.2d 815, where a representative of a union which was the bargaining agent of employees of a company was found to have been repeatedly bribed by the employer shortly after such representative had conducted and won a strike, and procured for the union the exclusive bargaining agency of such employees. When the bribery was discovered, a majority of the employees revoked the designation of the union as their bargaining agent and set up a new organization which was recognized as bargaining agent by the company. Because the union had been designated as bargaining agent, the National Labor Relations Board filed a petition to have the employer decreed guilty of an unfair labor practice in refusing to bargain with the union, and to disestablish the new employees' group as bargaining agent. The court held that the employer was not guilty of a violation of the Act in refusing to recognize the union as bargaining agent, and, in arriving at its decision, observed that Congress made it clear by the Act that the employees' right to form their unions was equal to the right to join national unions; that they also had a right, under Section 9 (a) of the National Labor Relations Act, to designate a union which they formed themselves, or a national union, as it best suited them; and that this right included the right to revoke a designation of a union as their bargaining agent. The court held that the designations of the union which had been previously given by the employees were properly revoked by them; that the union was not then or thereafter designated by a majority of the employees as their bargaining agent; and that the company did not violate any provision of the Labor Act in refusing to bargain with it.

In National Labor Relations Board v. Inter-City Advertising Co., Inc., 4 Cir., 154 F.2d 244, 247, the court held that the right of employees to organize and bargain collectively depends upon self-organization; that when a union majority had been dissipated without fault on the part of the employer, the union no longer possessed the authority to speak for the employees; and that an order of the National Labor Relations Board that...