National Labor Relations Board v. Eanet

• Decision Date: 27 September 1948
• Docket Number: No. 9792.,9792.
• Citation: 179 F.2d 15
• Parties: NATIONAL LABOR RELATIONS BOARD v. EANET et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

179 F.2d 15 (1948)

NATIONAL LABOR RELATIONS BOARD v. EANET et al.

No. 9792.

United States Court of Appeals District of Columbia Circuit.

Argued June 15, 1948.

Decided September 27, 1948.

Rehearing March 28, 1949.

Decided October 31, 1949.

Mr. Robert Todd McKinlay, Attorney, National Labor Relations Board, Washington, D. C., with whom Mr. David P. Findling, Associate General Counsel, National Labor Relations Board, Miss Ruth Weyand, Acting Assistant General Counsel, National Labor Relations Board, and Mr. Ben Grodsky, Attorney, National Labor Relations Board, Washington, D. C., were on the brief, for petitioner.

Mr. William H. Collins, Washington, D. C., for respondents.

Before STEPHENS, Chief Justice, and MILLER and PRETTYMAN, Circuit Judges.

PRETTYMAN, Circuit Judge.

This is a petition of the National Labor Relations Board for the enforcement of an order issued by it against the respondents. The Board found the respondents to be engaged in unfair labor practices and to have refused to bargain with a union of employees. It ordered the respondents to cease and desist from warning their employees to refrain from membership in any labor organization; threatening to discharge such employees because of their activities on behalf of any labor organization; questioning the employees concerning their membership in and activities on behalf of any labor organization; ordering such employees "to take vote as to whether they desire to be represented by Hotel Service Workers, Local 80, A. F. of L., or any other labor organizations;" and interfering with the efforts of Hotel Service Workers, Local 80, A. F. of L., to negotiate for or represent employees. The Board also directed the respondents to post notices in a prescribed form and "Upon request, bargain collectively with Hotel Service Workers, Local 80, A. F. of L., as the exclusive representative of all its employees in the aforesaid appropriate unit, * * *."

The bargaining unit involved in this case consisted of the "bellmen, maids, elevator operators, janitors, housemen, and cleaners" employed at the respondents' hotel. There were either nine or ten¹ of these employees in the unit. The Union established that it had been designated as the collective bargaining representative by six of these employees.

The charge of unfair labor practice rested upon a statement alleged to have been made by a housekeeper to a bellboy, to the effect that if the maids under her supervision joined the Union, she would discharge them. The housekeeper made an affidavit to that effect, but on the witness stand she testified that she and the bellboy were "kidding" and that she said, "I am not going to join the union" and could not remember saying anything further. Counsel for the Board thereupon pleaded surprise and produced the affidavit given by the housekeeper to a field examiner. She then said that the affidavit was correct. The bellboy was not called as a witness. The charge of interference with employees in the exercise of their rights (violation of Section 8 (1) of the Act)² rested upon action taken by the manager of the hotel. Agents of the Union called upon him with cards purporting to show that the Union represented a majority of the employees. Some discussion was had, and the Union representatives and the manager executed an instrument called an "Agreement for Cross-Check". Pursuant to that agreement, a notice concerning the cross-check was posted. Thereafter the employees took a vote, apparently among themselves, and turned the ballots over to the manager. These ballots, according to the manager, were unanimous against representation by the Union. Thereafter there ensued a long discussion in which the respondents refused to bargain with the Union, on the ground that the Union did not represent the employees. The manager testified at the hearing that at the time the cross-check was proposed the field representative of the Board told him that the employer had a right to a cross-check; that he inquired what a cross-check was and was told that it was "a revote on it"; and that the field representative told him that after the agreement was signed, "Then you post a notice downstairs for five days, and then you take a vote." The manager said that they followed these precise instructions. He said:

"I never infoenced sic them one way or another, but I did post the notice five days, and I thought that someone was going to come in and ask what happened, but nobody showed up at the end of the five days, and I took the notice down. They made the vote among themselves, one of their representatives did, and they unanimously voted against it. I wrote in to Baltimore and told them that the vote seemed negative, that they weren't interested, and I got a letter back saying that the union had been designated as the representative to bargain."

It would appear from the decided cases that if the housekeeper made the threat of discharge, and if the manager ordered and took the poll of the employees in the manner described by the Board, respondents would have been guilty of violation of the Act. Thus, the case on the merits would depend upon the sufficiency of the evidence to support the findings. But we think that this particular case requires other disposition.

We think that the dates involved in this proceeding are important to the disposition of the case. The controversy between the Union and the respondents occurred in April, 1946, which was more than two years ago. The hearing was had August 6, 8 and 9, 1946. The trial examiner issued his intermediate report, which contained his findings of fact and recommendations, on October 18, 1946. The Board issued its decision and order, approving the trial examiner's report, on July 31, 1947, which was nine months later. It filed its petition in this court, for enforcement of its order, on March 10, 1948.³

In sum total, therefore, we have a case which involves a controversy as to whether six out of nine or ten employees of a small hotel wished more than two years ago to be represented by a designated union. No election has ever been held. It is common knowledge that the personnel, such as bellboys, elevator operators, maids and janitors, of small hotels constantly changes. The Board asks us not only to require these respondents to refrain from interfering with their employee's joining this one named Local 80 but also to require them to bargain collectively with that named Local 80. The latter requirement is unqualified and unlimited as to time.

An enforcement order of this court is a serious exercise of judicial power and, once such an order is issued, we intend it to be observed, literally and without equivocation. We feel that we must take a realistic view of the present case. There would be nothing realistic, in our view, in directing these respondents to bargain collectively with a named union on the basis of a showing that more than two years ago the union had been selected by six out of nine or ten bellboys, maids and a houseman in this small hotel. We, therefore, decline to issue the enforcement order.

If it be that the conditions found to have existed in April, 1946, continue to exist, the Board can easily bring its information up to date. If the employees wish to organize, or if the Union claims to represent a majority, an election ought to be requested.

Upon the foregoing conditions, the petition of the Board is

Denied.

STEPHENS, Chief Justice.

I think there is evidence to support the finding of the Board that the respondents' housekeeper threatened discharge of employees if they joined a union and evidence to support the finding that respondents' manager took a poll of the employees to determine whether or not they desired to be represented by Local 80, A. F. of L. I think also that the authorities support the conclusion of the Board that such acts constitute violations of Section 8 (1) of the National Labor Relations Act. In my view, therefore, a decree should be issued enforcing the Board's cease and desist order to the extent that it forbids such practices. But I agree with the conclusion of the majority that the court should not on the present record issue a decree enforcing that portion of the Board's order which requires the respondents to bargain collectively with Local 80, A. F. of L.

On Rehearing.

Before STEPHENS, Chief Judge, and WILBUR K. MILLER and PRETTYMAN, Circuit Judges.

PRETTYMAN, Circuit Judge.

The Board argues that our decision in this matter rested upon the possibility or probability that the Union had lost its majority of respondents' employees between the time of the dispute and the time of submission to the court. Our decision was not upon that basis. We did not know and did not assume or speculate that the Union had lost its majority. To correct the misapprehension, we state again our opinion and decision.

Before we do that, however, we note the rule which the Board itself says is applicable to the hotel industry. The latest announcement by the Board on this subject is In the Matter of White Sulphur Springs Company, Case No. 9-RC-392, decided September 19, 1949. The hotel there involved was a nationally known resort hotel owned and operated by the Chesapeake & Ohio Railroad, having, as is commonly known, a large number of employees and making large purchases in interstate commerce. In that decision and order, the Board said:

"The Employer contends that it is not engaged in commerce within the meaning of the Act. Although the Employer's operations are not wholly unrelated to commerce, it appears that a cessation of this Employer's operations would have such a remote and indirect effect on commerce that to assert jurisdiction here would not effectuate the policies of the Act.

"To assert jurisdiction here would be to reverse Board precedent untouched since the original Wagner Act was enacted 14 years ago 29 U.S.C.A. § 151 et seq.. We can find no adequate reason to depart from a practice adhered to...