National Labor R. Board v. Medo Photo Supply Corp.
| Decision Date | 28 April 1943 |
| Docket Number | No. 233.,233. |
| Citation | 135 F.2d 279 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. MEDO PHOTO SUPPLY CORPORATION. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert B. Watts, Ernest A. Gross, Howard Lichtenstein, Robert Todd McKinlay, and Eugene J. Davidson, all of Washington, D. C., for petitioner.
Seligsberg, Friedman & Berliner, of New York City (William E. Friedman, of New York City, of counsel), for respondent.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
Respondent, in May 1941, had 70 employees; in the latter part of that month, 18 of the 26 employees in its shipping and receiving department signed membership application cards designating a union as their collective bargaining representative. The union thereupon, on May 22, requested respondents to enter into negotiations for a contract and the next day filed a petition with the Board for certification as the exclusive bargaining representative of the employees in that department as an appropriate unit. At a conference on June 4, at the Board's Regional Office, with representatives of respondent, of the union and of the Board present, the union's representative offered to submit proof of the union's majority and to turn the application cards over to a Board representative. The respondent's representative questioned the appropriateness of the unit claimed by the union but told the union's representative that, if they could agree on the unit, respondent would consent to the union's being certified and thereupon the respondent would "automatically go into the process of bargaining." At a meeting on June 5, a representative of respondent said that if the contract proposed by the union constituted a reasonable basis for negotiations, respondent would immediately consent to a certification of the union and begin bargaining, but that meanwhile there would be no purpose in the union's procuring a certification. A conference to negotiate further was set for the succeeding Monday, June 9. Meanwhile, on the intervening Saturday, June 7, 12 of the employees in the shipping and receiving department visited respondent's general manager, and informed him that they and six other members of the union, for whom they were speaking, had no desire to belong to the union if they could obtain a wage-increase. They then presented a proposed wage-scale which was substantially the same as that which the union had demanded. In the morning of Monday, June 9, a committee of four of the employees called on the general manager who informed them that the increase had been granted substantially as requested. The committee reported back to the other employees and then advised the general manager that the employees felt that they did not need the union and "would rather stay out." Later in the same day, the negotiating committee informed the union president that they did not wish the union to represent them any longer, and a representative of the respondent then also stated to the union president that respondent could not negotiate a contract with the union as it understood that the union no longer represented the majority, but also stated that respondent would consent to a holding of an election. The employees' committee then affirmed their renunciation of the union.
The Board found that respondent had waived its objections to the unit; had recognized the union as having been freely designated by a majority of the employees as the exclusive representative of all the employees in the unit; and that respondent was therefore obligated to bargain with the union on behalf of those employees. It also found that, in acting upon the offer of the employees conditioned upon abandonment of the union, the respondent had engaged in an unfair labor practice and that it had improperly refused to bargain collectively with the union. The Board rejected the suggestion that, as some of the employees had been replaced for divers reasons since June 9, 1941, and as the union therefore no longer represented the majority of the employees within the unit, no order should be made requiring respondent to bargain with the union. On the basis of its findings, the Board entered an order requiring respondent, upon request, to bargain collectively with the union as the exclusive representative of the employees in the unit; to cease and desist from engaging in any like or related acts or conduct; and to post proper notices. The matter is here on petition of the Board to enforce its order.
1. There is substantial evidence to sustain the Board's finding that respondent had recognized the union as the representative of the employees in the department as a proper bargaining unit.
2. There can be no doubt, and respondent in effect concedes, that if it had, of its own accord, made an offer to raise wages on condition of abandonment of the union, it would have been guilty of an unfair labor practice. The question here arises in a case where it has not been proved that the employer initiated the conditional offer. It is unnecessary for us to consider whether, when employees have once selected a bargaining representative, and especially when there has been no certification by the Board or an election, a majority of the employees may then, by informal action, repudiate that representative and bargain directly with the employer. Nor need we consider whether, as an invariable rule, it is an unfair labor practice for an employer to accept an offer made by a majority of the employees to repudiate a representative theretofore selected on condition that the employer will increase wages. It is enough to hold, and we do hold, that it was within the power of the Board to find that, in this particular case, the acceptance of such an offer was an unfair labor practice. In so deciding, we have in mind the doctrine, often stated by the Supreme Court in varying terms, that administrative agencies, because they have been designated by Congress as specialists in a particular field advised by experts, are, within a very wide area, in a better position than a reviewing court to determine the appropriate applications of the statutes which they are directed to administer.1 We have in mind, too, that the Board, in a particular case, can appropriately take into account the fact that to permit an employer to accept such a conditional offer might render it possible for him to create the appearance of having received such an offer, seemingly made spontaneously by a majority of the employees, when in fact the employer secretly played a part in inducing the offer, for proof of such activity on the part of the employer might be highly difficult to obtain. Many legal rules (both statutory and judge-made) rest upon a recognition of the difficulty of...
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