National Labor Rel. Bd. v. Inter-City Advertising Co.

• Citation: 154 F.2d 244
• Decision Date: 15 March 1946
• Docket Number: No. 5440.,5440.
• Parties: NATIONAL LABOR RELATIONS BOARD v. INTER-CITY ADVERTISING CO., Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

154 F.2d 244 (1946)

NATIONAL LABOR RELATIONS BOARD v. INTER-CITY ADVERTISING CO., Inc.

No. 5440.

Circuit Court of Appeals, Fourth Circuit.

March 15, 1946.

Millard Cass, Atty., N. L. R. B., of Washington, D. C. (David A. Morse, Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Ida Klaus and Reginald Parker, Attys., N. L. R. B., all of Washington, D. C., on the brief), for petitioner.

Whiteford S. Blakeney, of Charlotte, N. C. (Guthrie, Pierce & Blakeney, of Charlotte, N. C., on the brief), for respondent.

Before SOPER and DOBIE, Circuit Judges, and GILLIAM, District Judge.

SOPER, Circuit Judge.

This court has consistently upheld the National Labor Relations Board in its position that an employer must continue to bargain with the union certified by the Board to represent the majority of his employees, even after the union majority has been lost, whenever there is reason to believe that the change was caused by a refusal of the employer to bargain or by other unfair labor practices on his part. National Labor Relations Board v. Highland Park Mfg. Co., 4 Cir., 110 F.2d 632; Great Southern Trucking Co. v. National Labor Relations Board, 4 Cir., 127 F.2d 180; Id., 4 Cir., 139 F.2d 984; National Labor Relations Board v. Appalachian Electric Power Co., 4 Cir., 140 F.2d 217. In a more recent case, Franks Bros. Co. v. Labor Board, 321 U.S. 702, 704, 64 S.Ct. 817, 818, 88 L.Ed. 1020 the Supreme Court has pointed out that it is for the Board to determine how the effect of unfair labor practices can best be expunged and has stated the reason for the attitude of the Board in the following terms:

"* * * Out of its wide experience, the Board many times has expressed the view that the unlawful refusal of an employer to bargain collectively with its employees' chosen representatives disrupts the employees' morale, deters their organizational activities, and discourages their membership in unions. The Board's study of this problem has led it to conclude that, for these reasons, a requirement that union membership be kept intact during delays incident to hearings would result in permitting employers to profit from their own wrongful refusal to bargain. See, e. g., Matter of Inland Steel Co., 9 N.L.R.B. 783, 815, 816; Matter of P. Lorillard Co., 16 N.L.R.B. 684, 699-701. One of the chief responsibilities of the Board is to direct such action as will dissipate the unwholesome effects of violations of the Act. See 29 U.S.C. § 160(a) and (c), 29 U.S.C.A. § 160(a, c). And, `it is for the Board, not the courts, to determine how the effect of prior unfair labor practices may be expunged.' International Association of Machinists v. Labor Board, 311 U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50."

In the pending case we are asked to go a step further and to hold that the employer must bargain with a union which has lost its majority, where the change has not been occasioned by the refusal of the employer to bargain or by any other illegal practice on his part. The Board expressly adopted the findings and conclusion of the trial examiner who ruled that there was no evidence in the case to show "* * * that the respondent has interfered with, restrained, and coerced its employees: by discussing and settling grievances with its employees without the participation of the Union; by refusing to discuss grievances with the Union as the exclusive representative of its employees within the appropriate unit; by bargaining directly and individually with the employees on rates of pay and wages and refusing to discuss rates of pay and wages with the Union. No evidence was adduced to substantiate these allegations of the complaint. It will therefore be recommended that so much of the complaint as specifically concerns these allegations be dismissed."

The extremity of the Board's position is emphasized by the fact that the union membership has been reduced by normal and lawful changes in personnel of the employees to a single employee. Nevertheless the Board holds that although the "Union may not presently represent a majority of the employees in the unit, we find, as did the trial examiner, that in order to effectuate the policies of the Act the respondent must be ordered to bargain collectively with the Union."

We recognize the duty of the court to support the Board in conflict with a recalcitrant employer; but it does not seem proper to us to go to the length requested in this case. The fundamental purpose of the statute is to protect employees in their right to organize and to bargain collectively. This right depends upon self organization and it is expressly provided that it shall be exercised through representatives selected by the majority of the employees in a unit appropriate for the purpose. See, §§ 1, 7 and 9(a) of the statute, 29 U.S.C.A. §§ 151, 157 and 159(a). It follows that when a union majority has been dissipated without fault on the part of the employer the union no longer possesses the authority to speak for the employees and an order of the Board that requires the employer to bargain with the union cannot be enforced. The order of the Board now under consideration cannot be approved off the ground stated in its opinion, that the order is necessary to effectuate the policy of the Act, for it is clear that the order will defeat the prime purpose of the statute to lodge the bargaining power of the workers in the hands of their chosen representatives. This end cannot be subordinated merely to uphold the power and prestige of the Board.

The unusual situation which confronts us in this case grew out of an order of the Board of May 12, 1944, whereby it certified that the International Brotherhood of Electrical Workers, Local Union No. 1229, had been selected as bargaining representative by a majority of all the technicians employed at the transmitter of Inter-City Advertising Company, Inc., operator of a radio station at Charlotte, N. C. Excluded from the bargaining unit were the employees at the Company's studio, the chief engineer and all other supervisory employees with power to hire and fire. The employer had resisted the classification of its transmitter technicians in a separate unit, claiming that they should be joined in a single unit with the employees at the studio. This claim was denied and the employer, pointing out that it had no other means under the law to test the reasonableness of the classification, notified the Board on May 15, 1944, that it did not acquiesce in the Board's definition of the bargaining unit. On July 19, 1944, after a request for a conference for the purpose of negotiating an agreement had been made by a union representative, the employer notified the Union that because of the designation of the bargaining unit the Company respectfully declined the request.

Thereupon the Union filed with the Board a charge that the employer had engaged in an unfair labor practice in refusing to bargain with the representatives of the Union; and the Board filed a formal complaint embodying this charge. The complaint also charged that the employer had interfered with and coerced the employees in the exercise of their rights in various other respects, but as shown by the excerpt from the examiner's findings quoted above, no evidence in support of the additional charges was offered and they were dismissed by the Board. The refusal of the Company to bargain, promptly announced by the employer in order to test the reasonableness of the classification of the transmitter technicians in a separate unit, was the employer's sole offense.

We agree with the Board that there was evidence to support the reasonableness of the classification. Transmitter technicians must be licensed by the Federal Communications Commission. Their work requires greater technical skill and training than that possessed by studio control room operators and the two groups work at a distance from one another, the studio being located in the center of the city and the transmitter station seven miles away in the country. These differences furnish substantial basis for the exercise of the power vested in the Board to determine what form of bargaining unit will best serve the policies of the Act. May Dept. Stores Co. v. National Labor Relations Board, 66 S. Ct. 203, decided December 10, 1945; National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170; Pittsburg Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; National Labor Relations Board v. National Broadcasting Co., 2 Cir., 150 F.2d 895.

The finding of the Board that the employer committed an unfair labor practice by refusing to bargain with the Union in July, 1944, was therefore justified; but it is still necessary to examine the facts in order to determine whether the order of the Board issued on May 23, 1945, requiring the employer to bargain with the Union can be sustained in view of the changes in the situation which occurred subsequent to the refusal to bargain in July, 1944. These changes are shown by the following recital of the facts: At the time of the election there were only four employees at the transmitter station of whom three voted for and one against the Union. A change in the employees took place as the result of the decision of a new general manager placed in charge of the radio station on July 1, 1944, who rearranged the working hours of the transmitter operators and directed the chief engineer to take over the early morning shift. This made it necessary to discharge one transmitter operator and the choice was fairly made by selecting a part time employee who had a full time job with another company and could not take on the hours required of him in the new arrangement. Accordingly he was released about July 19, 1944.

Another change took place on or about September 23, 1944, when an operator was transferred from the transmitter station to the control room where, as the trial examiner...