National Labor Relations Board v. Tennessee Egg Co., 11465.

• Citation: 199 F.2d 95
• Decision Date: 17 October 1952
• Docket Number: No. 11465.,11465.
• Parties: NATIONAL LABOR RELATIONS BOARD v. TENNESSEE EGG CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

199 F.2d 95 (1952)

NATIONAL LABOR RELATIONS BOARD v. TENNESSEE EGG CO.

No. 11465.

United States Court of Appeals Sixth Circuit.

October 17, 1952.

Dominick L. Manoli, Washington, D. C. (George J. Bott, David P. Findling, A. Norman Somers, Dominick L. Manoli, and Irving M. Herman, Washington, D. C., on the brief), for petitioner.

W. D. Spears, Chattanooga, Tenn. (W. D. Spears, Spears, Reynolds, Moore & Rebman, Chattanooga, Tenn., Dan M. Byrd, Jr., Atlanta, Ga., on the brief), for respondent.

Before MARTIN, McALLISTER and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

In an appropriate and customary manner, the National Labor Relations Board petitions this court for enforcement of one of its cease and desist and affirmative action orders against an employer. But the question presented is unusual: Should an employer be held to have been obligated to bargain collectively with a labor union where, at the time of acts complained of as unfair labor practices, the union had not complied with sections 159(f), (g) and (h) of the Labor Management Relations Act of 1947, section 159 (f), (g) and (h), Title 29 U.S.C.A., yet had complied with such sections at the time the complaint was filed?

The Labor Board has given, in two cases, diametrically opposite answers to this question. First, in Andrews Company, 87 N.L.R.B. 379, the Labor Board held that a company was under no obligation to bargain collectively with a labor union which at the time of the refusal to so bargain had not complied with the foregoing statutory requirements. In New Jersey Carpet Mills, Inc., 92 N.L.R.B. 604, the Board overruled its decision in the Andrews case and held that the union's noncompliance with those sections did not excuse the employer from bargaining collectively with it. In the instant case, the Trial Examiner, who filed his intermediate report before the New Jersey Carpet Mills decision had been announced by the Labor Board, followed and applied its holding in the Andrews case. The Board having reversed itself, also reversed the Trial Examiner.

It is undisputed in this case that the union did not comply with the pertinent sections of the Act until December 1, 1947, in consequence of which the Trial Examiner was impelled to the conclusion that the respondent company was under no duty to bargain with the union after the effective date of the Labor Management Relations Act, August 22, 1947. He also stated in his report that it was quite possible that the respondent's refusal to bargain with the union on September 15, 1947, and thereafter, may have affected adversely the union's majority status; but, by virtue of the holding of the Board in the Andrews case, he considered that the union had no redress against the respondent for what might otherwise have been found to constitute unfair labor practices. The Trial Examiner asserted further that the record clearly demonstrates that on and after December 1, 1947, the date on which the union complied with the sections involved, it was no longer the majority representative of the employees and therefore the respondent owed no duty to bargain with it, in consequence of which the Examiner recommended that the allegations of the complaint as to the refusal of respondent to bargain collectively should be dismissed. The Board, however, declined to carry out this recommendation.

The Trial Examiner failed also to receive the support of the Board in his recommendation that the allegations of the complaint concerning a unilateral increase in pay given the employees by the respondent company around December 15, 1947, should be dismissed because the company was not then under a duty to bargain with the union. The Board based its action on the statement that there was no evidence to rebut the presumption of the continuing majority of the union. Wherefore, the unilateral increase was found to be in violation of section 8(a) (1) of the Act.

The Board agreed with the Trial Examiner that respondent also violated the section of the Act just cited, by threatening, on December 15, 1947, in a speech by its president, Carbaugh, to discharge any employee who should go on strike in the future. As found by the Trial Examiner upon substantial evidence, the union, at the time Carbaugh made his statement, was not the majority representative of the employees. With this finding, the Board disagrees.

The Board concurred in the Trial Examiner's holding that the respondent company had not violated section 8(a) (1), or (3) of the Act by discharging discriminatorily, or refusing to reinstate or rehire any of its employees. Upon review of the entire record, we find this holding to be supported, not only by substantial evidence, but by a preponderance of all the evidence.

We shall now discuss what we consider to be the sole and crucial question to be answered.

Subsections (f), (g) and (h) of section 159, Title 29 U.S.C.A., forbid investigation by the Board in any matter where there has been a failure by the complaining union to file its constitution, by-laws, and required reports and affidavits showing that its officers are free from communistic party affiliation or belief. The vital subsection of the three, with which the Board most concerned itself in the Andrews case, 87 N.L.R.B. 379, 380, 383, supra, is subsection (h), which is quoted in a marginal footnote.¹

In the Andrews case, the majority membership of the National Labor Relations Board called attention to the fact that, by section 9(h), 29 U.S.C.A. § 159(h), Congress hoped to purge Communists from the labor movement; that, unlike the Wagner Act which gave unqualified protection to labor organizations, the amended Act prescribed certain standards considered necessary to the public interest, peace and welfare. The assertion of their dissenting colleagues that the required standard should be met only when it became necessary for a labor organization to resort to the Labor Board was asserted to be, in the opinion of the majority, a perversion of the legislative intent. It was said that, while the legislative history of the Act was not dispositive of the legislative intent, judicial notice could be taken that Communism and other undemocratic doctrines and practices constitute an inherent threat to the labor movement in this country. One of its previous decisions was cited to the effect that an employer was not obligated to bargain with a non-complying union. Consistency was said to demand the same result in the Andrews case. Should it be found that the respondent had violated the Act when the union was not in compliance with it, it was thought that the result would not effectuate the purposes of the Act and would constitute a utilization of the processes of the Board to give an aura of respectability to all non-complying unions. It was pointed out that, while under the Wagner Act the remedy afforded was unlimited, under the amended Act the remedy is limited by the filing provisions; and that the Board was dealing with a statute which created an obligation and, at the same time, a remedy, with the resultant that a limitation on the remedy should be treated as a limitation on the right itself. This was derived from the fact that the Act creates statutory rights unknown to the common law.

The majority of the Board held that the union's subsequent compliance failed to cure the effect of its non-compliance existing at the time it requested the employer to bargain with it as exclusive representative of the employees. It was stated that the Act does not declare, nor may it be implied, that the Labor Board should give retroactive effect to compliance by the union with the filing requirements. An interpretation to such effect would, in the opinion of the majority of the Board, have permitted the circumvention of the provision of the Act, inasmuch as a non-complying labor organization could compel recognition by a mere threat of subsequent compliance and the filing of a charge. It was emphasized that this would give a non-complying union the exact remedy which Congress specifically denied. It was emphasized that the fundamental purpose of the Act being the encouragement and protection of the practice and procedure of collective bargaining, labor organizations failing to meet the required filing requirements thereby remove themselves from the protection of the Act. It was not believed that Congress intended that the Board should extend retroactive protection to labor organizations which had thwarted an established public policy.

As has been previously stated, the Labor Board did not stick to its well reasoned opinion in the Andrews case; for, in the New Jersey Carpet Mills case, 92 N.L.R.B. 604, a diametrically opposite conclusion was reached. There, the Board asserted that, in enacting the statutory filing requirements, Congress did not condition the obligation of an employer to bargain with a union representing the majority of its employees upon compliance with those requirements, but only imposed certain specific limitations upon the use by the union of the Board's processes, as long as the union failed to comply. The Labor Board concluded that, when the union had perfected compliance with the statutory requirements, it could invoke the machinery of the Act for redress of an employer's prior refusal to bargain with it, at least when the employer had not assigned as a reason for its refusal the status of the union in not having complied. The Andrews case was expressly overruled.

The Court of Appeals for the District of Columbia (one judge dissenting) disagreed with the decision of the Board in the Andrews case, supra, but the Court of Appeals for the Eighth Circuit approved it. In West Texas Utilities Co. v. National Labor R. Bd., 87 U.S.App.D.C. 179, 184 F.2d 233, 239, the District of Columbia Court said: "The failure of union officers to comply with 9(h) does not in any way relieve an employer of the paramount obligation to bargain collectively in good faith. The...