# National Labor Relations Board v. Germain Seed & Plant Co. > Court of Appeals for the Ninth Circuit · February 8, 1943 · 134 F.2d 94 URL: https://www.frixlaw.com/law-library/cases/6886345 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD v. GERMAIN SEED & PLANT CO. - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** February 8, 1943 - **Citations:** 134 F.2d 94; 12 L.R.R.M. (BNA) 531; 1943 U.S. App. LEXIS 3495 - **Precedential status:** Published - **Opinion:** Concurring in part by Denman - **Judges:** Denman, Mathews, Stephens - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6886345 ## Opinion text DENMAN, Circuit Judge (dissenting in part). In refusing to decree the Board’s order to disestablish the Consolidated Seedsmen’s Union, Inc., as follows: * * * “(a) Withdraw all recognition from Consolidated Seedsmen’s Union, Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, hours of employment, or other conditions of work and completely disestablish Consolidated Seedsmen's Union, Inc., as such representative(Emphasis supplied.) this case seems in square conflict with the decisions of the Supreme Court in H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 522 , 61 S.Ct. 320 , 85 L.Ed. 309 , and National Labor Relations Board v. Link-Belt Co. 311 U.S. 584, 600 , 61 S.Ct. 358 , 85 L.Ed. 368 , considered infra. These cases were cited by the Board. They are not even considered on the question of disestablishment much less distinguished in the majority opinion. I dissent from the holding that the National Labor Relations Board is powerless to disestablish a union for which an employer has initiated among its employees the movement for its corporate organization; has furnished the organizing committee which becomes its initial corporate membership and its board of directors; has supplied the lawyer who drafted its corporate documents; has its by-laws so drawn that its directors have the function of collective bargaining for its members; has prepared a membership card creating the board of directors the bargaining agent of its members; lias procured the signatures to the cards of a large portion, if not a majority of its employees; and where the employer continues to exercise its dominion over its corporate creation. That is to say, an employer may create and dominate a union among its employees, which certainly gravely hampers, if it does not prevent, the organization of the independent type of union for whose protection Congress enacted the National Labor Relations legislation, and yet the Board cannot “effectuate the policies” of the Act by exercising the power given it by § 10(c) to order the union’s disestablishment. If this doctrine prevail, we may expect throughout the United States those employers who are recalcitrant to the National Labor Relations Act so to occupy the field of labor organization of their employees by such employer-dominated unions, thereby hamstringing the free labor organization which the Act guarantees. The majority’s reasoning seems to be that, because the employer’s lawyer so drafted the union’s by-laws and the union’s membership cards that the corporation’s board of directors became the employee’s bargaining agent, — that is the employer bargains with itself, — the corporate entity not being so designated cannot be disestablished. It seems unreasonable to assume that Congress intended the Board’s power to disestablish employer-dominated unions should be frustrated by such sinuous technicalities as those contrived by the employer’s attorney in this case. Among at least five Supreme Court decisions which seem clearly to the contrary are: “ * * * We cannot assume that the employees will be free from improper restraints and will have the complete freedom of choice which the Act contemplates where the effect of the unfair labor practice [of dominating a union] is not completely dissipated [by disestablishment]. The Board not the courts determines under this statutory scheme how the effect of unfair labor practices may be expunged. National Labor Relations Board v. Pennsylvania Greyhound Lines, supra [ 303 U.S. 261 , 58 S.Ct. 571 , 82 L.Ed. 831 , 115 A.L.R. 307 ]; National Labor Relations Board v. Bradford Dyeing Ass’n, 310 U.S. 318 , 60 S.Ct. 918 , 84 L.Ed. 1226 ; International Association of Machinists v. National Labor Relations Board, supra [ 311 U.S. 72 , 61 S. Ct. 83 , 85 L.Ed. 50 ].” National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 600 , 61 S.Ct. 358, 366 , 85 L.Ed. 368 . “ * * * Disestablishment is a remedial measure under § 10(c) * * * to be employed by the Board in its discretion to remove the obstacle to the employees’ right *101 of self-organization resulting from the continued or renewed recognition of a union whose organization has been influenced by unfair labor practices. Whether this recognition is such an obstacle is an inference of fact to be drawn by the Board from all the circumstances attending those practices. National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261 , 58 S.Ct. 571 , 82 L.Ed. 831 , 115 A.L.R. 307 ; National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 250 , 60 S.Ct. 203, 208 , 84 L.Ed. 219 .” H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 522 , 61 S.Ct. 320, 323 , 85 L.Ed. 309 . Nor am I able to follow the reasoning of Judge Stephens’ concurrence which is, in effect, that the Board having found the employer’s union of the character above described, we should deny enforcement of the Board’s order for its disestablishment and require the Board to disestablish again if the Board is really serious about it. And this of an Act which in its § 10 (i) seeks the speedy elimination of unfair labor practices ! --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6886345. Public record. Not legal advice.