National Labor Relations Board v. Whittier Mills Co., 9423.

Citation111 F.2d 474
Decision Date11 June 1940
Docket NumberNo. 9423.,9423.
PartiesNATIONAL LABOR RELATIONS BOARD v. WHITTIER MILLS CO. et al.
CourtU.S. Court of Appeals — Fifth Circuit

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Charles Fahy, General Counsel, National Labor Relations Board, Robert B. Watts, Associate General Counsel, National Labor Relations Board, and Gerhard Van Arkel, Atty., National Labor Relations Board, all of Washington, D. C., for petitioner.

John Wesley Weekes and Chas. Murphey Candler, Jr., both of Decatur, Ga., for respondents.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

On a consolidated hearing Whittier Mills Company, Silver Lake Company, and Scottdale Mills, all more or less under the same management and represented in the transactions under scrutiny by the same bargaining agents, were ordered by the National Labor Relations Board to desist from refusing to bargain with Textile Workers Organizing Committee as the exclusive representative of the production and maintenance employees of the mills, and from interfering with or coercing the employees; and required them to bargain, and to post notices in the usual form. The Board applies to the court for a decree enforcing the order, but it alleges no disobedience of it since it was made. No answer was filed, but resistance is made by brief on three grounds: (1) That the Committee was not the lawful bargaining agency of the employees at the material dates; (2) that the one act found of cutting wages pending the negotiation without notifying and discussing it with the Committee was not a refusal to bargain; (3) that neither such act of wage cutting, nor the proven remarks of two foremen constituted interference with or coercion of the employees by the mills.

Our Rules 38 and 39 do not expressly require the filing of an answer in cases of this kind, but an answer is desirable to show that there is opposition and the grounds thereof. No point having been made touching its absence, we will not order one, but will treat the filed brief as its equivalent.

A case of disobedience ought generally to be alleged in a petition for enforcement, for an order that is obeyed needs no aid. But because compliance is not asserted by the respondents, but the validity of the order is controverted, we will assume disobedience.

1. As to the first point of attack, the record shows that on November 1, 1937, the Board, after due proceedings under Section 9 of the National Labor Relations Act, 29 U.S.C.A. § 159, and on secret ballots of the employees, certified the Textile Workers' Organizing Committee as the bargaining representative of the employees of the respondents; and that in each election a majority of the employees voted, and a slender majority of those voting voted for the Committee; but those voting for the Committee in no instance were a majority of the employees in the bargaining unit designated by the Board. The unfair labor practices found by the Board occurred in June and July, 1939, after the number of employees in each bargaining unit had decreased materially because of curtailment of operations. The contentions are that since the record concerning the certificates shows on its face that the Committee is not a "Representative designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes," (Section 9 (a) of the Act), the certificates are invalid because contrary to law; and since the memberships of the units have substantially changed in the year and a half since the certificates were made, if originally valid they no longer show the Committee to be the true representative of the employees.

The decisions in American Federation of Labor v. National Labor Board, 60 S.Ct. 300, 84 L.Ed. ___, and National Labor Relations Board v. International Brotherhood of Electrical Workers, 60 S. Ct. 306, 84 L.Ed. ___, denied jurisdiction in the Circuit Courts of Appeal to review such certificates before an order under Section 10, 29 U.S.C.A. § 160, is made against an employer. But Section 9(d) requires that the record touching the certification shall be sent to the court when enforcement or review is sought of an order under Sections 8 and 10 which is based in whole or in part upon the facts certified. This provision, though indicating the certificate is not to be reviewed before an order under Sections 8 and 10 is presented for enforcement or review, clearly means that when an order is presented the record on which the certificate was based may be looked into to determine the lawfulness of the certificate. There can be no other reason for sending up such a record. On reviewing it, we should regard the Board's determination of facts as final, as in reviewing the order based on Sections 8 and 10; and of course in matters which are discretionary, the Board's acts within the limits of law are final. Only where the law has been ignored or violated would the court nullify the certificate of a bargaining representative.

If the affirmative act of a majority of all the employees in a unit fixed by the Board is always necessary to designate a bargaining representative for the unit under the above quoted language of Section 9, the certificates in this record would be unlawful, for in each case the certificate rests on the affirmative act of less than a majority. If a representative rests his claim on separate private authorizations, he would have to obtain a majority of all to be "designated or selected" by such a mode. But the statute, Section 9 (c), expressly provides for official action by the Board, and for the "taking by it of a secret ballot" as a means of ascertaining the wish of the unit. There is no express provision as to what sort of majority shall control the result of such an election. The general rule, in the absence of a clear provision otherwise, is that voters who could have voted in a formal election but do not are considered to assent to the will of the majority of those who do vote; so that if those who do vote make up a majority of all, the will of all is expressed by the majority of those who vote. 18 Am.Jur. Elections, § 243; County of Cass v. Johnston, 95 U.S. 360, 24 L.Ed. 416; Carroll County v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28...

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