# Medo Photo Supply Corp. v. National Labor Relations Board > Supreme Court of the United States · April 10, 1944 · 321 U.S. 678 URL: https://www.frixlaw.com/law-library/cases/9419479 ## Case - **Full name:** Medo Photo Supply Corp. v. National Labor Relations Board - **Court:** Supreme Court of the United States - **Decided:** April 10, 1944 - **Citations:** 321 U.S. 678; 14 L.R.R.M. (BNA) 581; 64 S. Ct. 830; 88 L. Ed. 1007; 1944 U.S. LEXIS 1306 - **Precedential status:** Published - **Opinion:** Dissent by Rutledge - **Judges:** Stone, Rutledge, Roberts - **Cited by:** 315 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/9419479 ## How later opinions describe it (automated extraction) - explaining that employer violates § 8(a)(1) of the Act when it "ignor- [es] the union as the employees' exclusive bargaining representative, by negotiating with its employees concerning wages at a time when wage negotiations with the union were pending, and by inducing its emp… - explaining that employer violates § 8(a)(1) of the Act when it "ignor[es] the union as the employees' exclusive bargaining representative, by negotiating with its employees concerning wages at a time when wage negotiations with the union were pending, and by inducing its emplo… - holding that any individual contract entered into between the company and its individual employees would be unlawful because the NLRA makes it an unfair labor practice for an employer to bargain directly with employees over the terms and conditions of employment - stating “it is a violation of the essential principle of collective bargaining and an infringement of the [NLRA] for the employer to disregard the bargaining representative by negotiating with individual employees ... with respect to wages, hours and working conditions” - noting that it is “a violation of the essential principle of collective bargaining and an infringement of the [National Labor Relations] Act for the employer to disregard the bargaining representative by negotiating with individual employees” ## Opinion text Mr. Justice Rutledge, dissenting: I dissent. The story told by this record is not of a dominating or intermeddling employer, interfering with employees in their collective bargaining arrangements or activities. It is rather of one which sought to do no more than meet its employees’ wishes, freely formed and freely stated; and at the same time to be sure it would do nothing to violate the law governing their relations. The record is barren of any evidence of trouble or real dispute between Medo and its employees, of hostility by Medo to unions or employee organization, or of any refusal to bargain collectively as the statute requires. 1 On the contrary, it shows without contradiction that Medo regarded these things as wholly for the employees to settle among themselves; that it scrupulously sought to keep hands off; and that it was willing to bargain with them by whatever agency they might select. These attitudes were qualified only by the company’s desire to be sure that the union was entitled legally to represent the employees and to avoid being caught in a possible jurisdictional dispute between the A. F. of L. and the C. I. 0. 2 The Board has found that Medo was guilty of unfair labor practice in three respects: (1) in dealing directly with the employees, rather than through the union, on June 7 and 9; (2) in refusing to deal with the union; (3) in granting the increased wages sought by the employees. *689 On the facts, (1) and (2) come to the same thing, that before June 7 the union had acquired legal status as exclusive bargaining agent, which was effective to require Medo to deal only with it, and that this was not validly revoked then or later. The same things, are subsumed by (3), which however poses the further question whether granting the increase in itself was an unlawful interference. The questions thus presented may be pictured more accurately in the light of further facts. There is no evidence of labor trouble or employee dissatisfaction prior to May, 1941. On the contrary, for all that appears, relations were peaceful and harmonious. During that spring the A. F. of L. 3 put on a campaign to organize all photographic supply stores in New York. In May it got around to Medo. The company had about 70 employees. Of these, about 25 or 26 (including some supervisory employees) were in the shipping and receiving department, doing manual labor in the plant’s basement. The others were clerical employees and salesmen, working upstairs. Stoltman, the A. F. of L. organizer, started out in May to organize all of Medo’s employees in a single unit. Apparently he was not successful upstairs. But by May 23 he had signed up 18 of the downstairs men. He and they then decided to limit the unit to the basement, and requested the employer to negotiate. At the same time the union applied to the Board for certification. There was some short delay, owing to the absence of Medo’s president over the Memorial Day holiday. But on June 4, at the Board’s arrangement, the first conference concerning recognition was held. 4 *690 Several followed between that time and Saturday, June 7, when the employees intervened for themselves. At all times Medo showed willingness to negotiate. But it also wished to be sure, as it had both the right and the- duty to be, that the unit was appropriate and the union had a majority of the employees. 5 Medo further wanted to know something about the terms the union would demand, if recognized; not wishing, as it said, to “buy a pig in a poke.” All of these things were matters of discussion between Stoltman and various company representatives in the conferences held on June 4 and 5. But it was not until the latter date that Stoltman finally submitted his substantive demands to Medo through Seligsberg, its attorney. The Board’s findings, in effect, are that on June 5 Seligsberg, in this conference with Stoltman, conceded finally all questions of representation, that is, of appropriateness of the unit and the union’s majority status. Hence it concluded Medo then recognized the union as collective agent and, consequently, the only thing remaining for *691 further discussion was the terms of the collective agreement. This finding is the basis for the Board’s conclusion that Medo was guilty of unfair labor practices when it later dealt directly with the employees rather than through the union. Medo, however, says that all three •questions remained open for final action by it at the conference scheduled for Monday, June 9, but not held because the employees intervened directly in their own behalf on Saturday, June 7. 6 Seligsberg made particular statements in his conference with Stoltman on June 5 which, if disconnected from the context of the whole conversation and treated as in themselves stating the employer’s entire position, could be taken as indicating intention to close the discussion on appropriateness of the unit and the union’s majority status. These statements are the Board’s only foundation for finding that Medo at any time conceded recognition to the union with finality. In my opinion it would do violence to the facts to regard .them as sufficient to sustain these findings. The employer was entitled to a reasonable time for ascertaining the union’s status before dealing *692 with it 7 and this had not expired on June 7 or, for that matter, on June 9. 8 Prior to June 5 all questions were open. The conference then was not begun, carried through or concluded with any intention or purpose that understandings which might be reached were or could be taken to be final. Medo’s representative was doing a lawyer’s job, 9 which was to see how far he and Stoltman could agree on terms to be considered by his client as a basis for final decision. They had been successful previously in bringing other employers and employees together in more difficult disputes and the whole intent of their conference was to find a basis of possible agreement upon all matters, including representation, 10 for eonsider *693 ation by Medo for its final decision and with a view to further discussion and possible final settlement in the conference agreed upon for June 9. To tear Seligsberg’s statements out of this setting and context and make of such tentative understandings or bases of further negotiation final concessions of recognition is to draw inferences wholly unwarranted by the record. It is therefore not at all clear that on June 7 negotiations had passed beyond the stage of recognition or, consequently, that the union then was legally entitled to act as exclusive bargaining agent. But even assuming that Medo on June 5, through Seligsberg, conceded recognition, still I cannot agree that it committed any unfair labor practice, under the facts shown here, either in merely hearing what the employees had to say or, after declining to be drawn into discussion of their relations with the union, 11 in granting unconditionally their freely made and wholly uncoerced request for an increase in wages. In my view it is immaterial that this, in effect, short-circuited the union, for two reasons. One is that, under the special circumstances, the employees had the right to revoke the designation and did so by undertaking to deal for themselves; the other, which is perhaps but a different way of stating the first, is that the union itself had no right or interest sufficient to prevent them from doing so. At most the employer did nothing more than accede to the wishes of a clear majority, both in listening to their request and in granting it. There is no claim or -semblance of proof that Medo induced the men to make the *694 request. On the contrary, it is not disputed that,'when they asked for the conference on June 7, the request came unexpectedly to Medo. And when, at the start of the conference the men mentioned the union situation, Medo’s general manager, Hoppin, stated at once and flatly that he would not discuss their union affairs or relations with them, clearly implying that this was their business exclusively, not the company’s. 12 Asked whether he would discuss other matters, he answered affirmatively. The men thereupon said they wanted the increase and there is some evidence they also said unconditionally that they did not want the union. 13 The Board, however, has found that they coupled the two statements conditionally, namely, that they did not want the union, if they could have the increase without it. The Board concluded that Medo’s action on June 9 in granting the increases, though less than what were requested, “constituted interference with the self-organizational rights of its employees,” on the theory that this influenced them to abandon the union. It also held that the employees’ action in approaching the company on June 7 did not “constitute an implied revocation of their designation of the Union so as to relieve the respondent of the obligation to deal solely with it,” and therefore dealing directly with them was a violation of Medo’s *695 statutory duty to the union and an unfair labor practice. The Board’s theory was, apparently, that the men, to revoke their designation, were required to communicate the revocation to the union and that the union had acquired such an interest or status no other act could terminate the agency, however inconsistent with its continued existence and exclusive character. The statute makes no provision that the agency, once created, shall continue for any specific time. It prescribes no particular method for terminating, as it makes none for creating, 14 the agency. Greater formality hardly would seem to be required in the one case than in the other. The statute purports to be drawn in favor of protecting the interests of employees, not those of unions as such. 15 True, while the agency exists it is exclusive for its appropriate purposes. But it is so only while it does exist and the question here is whether it continued in force after the employees took matters into their own hands and showed to the employer by that act that they wanted to deal for themselves, not through the union. The Board implies and the Court says the employer should have declined to discuss with them any matter which was appropriate for collective bargaining, since the union was their agent for this purpose. Therefore, it is concluded, the employer violated their rights under the statute to bargain collectively. This, although it is conceded the twelve employees spoke for 18 of the 25 or 26 *696 in the unit and it does not appear that what they did was disapproved or repudiated by the other six or seven. Merely to state this proposition should be enough to negate it. For it preserves rights of employees to bargain by representatives of their own choosing by destroying them. In all normal agency relations, except those “coupled with an interest,” 16 the principal can revoke them by exercising the agency himself. 17 He need not notify the agent. When he acts on his own behalf, he exhausts the subject matter of the agency and it comes to an end. Unless a designated union acquires, by its selection, a thraldom over the men who designate it analogous to the power acquired by one who has a “power coupled with an interest,” unbreakable and irrevocable by him who gave it, it would seem that any powers the union may acquire by virtue of the designation would end whenever those who confer them and on whose behalf they are to be exercised take them back of their own accord into their own hands and exercise them for themselves. And this should be true, whether or not previous notice is given to the union and whether or not the subject matter of the resumption may include, as one consequence of the dealing, the possible continuance of the agency. For it is the very taking back of the right to deal with their employer, not what he does in response to this, unless that creates some new pressure or influence not contemplated in the employees’ freely made proposals, that shows the intent to destroy the agency. Dealing for themselves and dealing exclusively through the agent cannot coexist. The *697 one wholly excludes the other and the real question becomes, which is to prevail, the agent’s interest and right or the principal’s, the union’s or the employees’? I do not think Congress intended, by this legislation, to create rights in unions overriding those of the employees they represent. 18 Nor did it require a special form or mode for ending a collective agency any more than for creating it. What Congress did was to give the designated union the exclusive right to bargain collectively as long as, and only as long as, a majority of the employees of the unit consent to its doing so. When that majority vanishes by the employees’ voluntary action, whatever form this may take, and the fact is made unmistakably clear to the employer, it not only is no longer under duty to deal with the union; it comes under affirmative obligation not to do so. For otherwise it would be dealing with a representative not of the employees’ choice. There are two possibly applicable limitations. One is that the employer must not interfere to bring about the abandonment. The other is that, in large units, where there are difficult problems of ascertaining whether a majority exists at a particular time, a reasonable degree of stability in employment relations may require, to give the statute workable operation, that a majority designation be deemed to continue for a reasonable period, though changes meanwhile may take away the clearly existing majority, a question not yet finally determined. 19 The latter limitation, if it is one, can have no reasonable application to a small unit and a small employer under circumstances like those involved here. In such a situation to impose it, where the actual desires of the majority may be easily and readily ascertained at any time, would *698 be to force men into unions and into dealing with their employers through unions contrary to the employees’ own wishes. The statute has no such purpose. But it is said the other limitation applies here, that the employer shall offer no inducement and exert no influence to secure abandonment. This, too, is a salutary principle when properly applied. And it may be applied as well to a small unit and a small employer as to large ones. But again the limitation is not universally applicable. Whether it is applicable or not depends upon what the employer does. Clearly if he stimulates a proposal from the employees to abandon the union for any substantial advantage he may give, the limitation should be effective. But does he do this when, with no suggestion or intimation on his part, when rather he has shown every willingness to leave the whole matter of their organization to his employees and to deal with them in any way they, wish, they come to him, without influence, without coercion, and make a proposal wholly of their own conception and desire? It is not impossible for men to want wage increases and also to remain or become nonunion men at the same time. Nor is such a combination of desires illegal. When such a proposal is thus made, and the employer does no more than was done here, namely, accede to it, knowing he is dealing with a majority of the unit, saying in effect, “Whether or not you have a union is your own business, not mine. But whether you do or not, you get the increase you want,” then in my judgment two things have happened: (1) The employees have revoked the collective agency, as they have a right to do; and (2) the employer has been guilty of no unfair labor practice either in hearing their proposal or in acceding to it. He has done no more than comply with the wishes of the majority, freely formed and freely stated. And this it is the employer’s duty to do under the statute. If thereby the union has *699 been by-passed, it is not through the employer’s action, but rather through that of the employees. The employer’s response, so limited, is not a violation of the principle, recently stated here, 20 that individual employees cannot deal with the employer to create terms in the contract of employment inconsistent with the collective agreement. Such a situation presents no case of inconsistent individual bargaining. It involves rather one of collective bargaining, not by individuals as such, but by the majority on behalf of the unit. Finally, if more is needed, the matter should be considered in the light of Medo’s predicament when the employees made the proposal, account being taken of the alternative courses open to it. Under the Court’s ruling it was between the devil and the deep blue sea. There was no answer Medo could give which would not leave it open to a charge and a finding of unfair labor practice. The employees wanted an increase, according to the findings, with the union if they could not get one without it; without the union, if they could. The main thing in their minds was the increase, not the union. 21 In effect, according to the findings, they said so to their employer. It had to keep silent or reply. It could reply in several ways: (1) The union is your exclusive agent and we cannot deal with you while it is such; (2) we will give you the increase if you discharge the union; do that and then come back; (3) we will give you the increase and you can do as you please about the union; (4) we will not give the raise, union or no union. The Court says the company’s reply should have been (1), whereas its response actually was (3). 22 It finds the *700 latter bad because in effect it offered “inducement” to the employees to abandon the union. The trouble is that the same thing would have been true of (1) or of any of the other possible replies. Answers (2) and (4) clearly would constitute unfair labor practices, under the Court’s view, the former as offering inducement to abandon, the latter as a flat refusal to bargain through the union or otherwise. Answer (1), while purporting to say only that the employer could not deal with anyone as long as the union retained its exclusive agency, in fact would be infected with two faults. One would be the assumption that the employees could not revoke the agency and take matters back into their own hands, without giving prior notice to the union, a question involved in the issues here. But, even more plainly, by making this response the employer would open itself to the charge and to the finding that it had said, in effect: “We cannot deal with you directly while the union’s agency stands unrevoked,” and thereby had offered, by clear implication, the inducement of dealing with the employees directly, conditioned upon their discharging the union. The only other answers open to the employer were (3), the one Medo actually made, and to remain silent. Merely ignoring the employees might have been taken to mean anything, but more probably answer (4) than any other. Silence therefore afforded no escape from the trap. Nor does the Act require silence in such a situation. Consequently answer (3), which Medo gave, was the only one it could give consistently with the view that the employer should hold out no inducement to the employees to abandon the union. In effect it said simply, “We are perfectly willing you should have the increase. But whether you have it through the union or without it is entirely your own business and we will not have anything to do with this.” Any other reply would have *701 been a counter-proposal offering inducement to abandon or a rejection of all bargaining. The answer Medo gave was neither. It was merely accession to the employees’ wishes, not “inducement” or offer held out; and it was coupled with the clear indication, under the circumstances, that what the employees might do about the union was wholly their own affair and none of Medo’s. Accordingly, I think Medo gave the only possible answer consistent with the statute’s requirements and purposes and the only one which afforded no substantial basis for finding either that it was refusing to bargain collectively or that it was interfering with the employees’ rights of organization by offering inducement to get rid of the union. In my opinion the Wagner Act was not designed or intended to put an employer, whose sole purpose and conduct are to give his employees completely free rein in matters of organization and collective bargaining, on such a spot that anything he may do will be, or will form the basis for a finding that it is, an unfair labor practice. So to construe the Act not only would make it a trap for employers, but also would defeat the very purposes the statute was intended to accomplish, by fastening upon employers and employees alike union domination the latter do not want. This would be to destroy, not to safeguard, the employees’ basic right of collective bargaining by representatives of their own choosing. I would reverse the judgment with instructions to dismiss the petition for enforcement. There was no refusal to bargain with the union until June 9, 1941, after the employer and the employees had reached a full agreement. Cf. note 6 infra. Cf. note 5 infra. Acting through the American Federation of Photo Employees Union, Local 21314, of which Stoltman, chief union figure in this case, was president. The Board’s part in bringing about the conference was due solely to the union’s having applied to it for certification simultaneously with the making of its first demand upon Medo to negotiate with it, not to any refusal by Medo to negotiate concerning recognition. It felt, as Stoltman did at first, that there should be one unit in the small plant and was fearful of becoming involved in a jurisdictional dispute if the A. F. of L. should organize the unit downstairs and the C. I. 0., which was actively organizing such units, should come in and organize the clerical and sales employees working upstairs. The union clearly had a majority of the claimed unit from May 23 to June 7, since 18 of the 25 or 26 employees embraced in the unit had signed membership application cards and none had revoked his application or membership in that period. ' ' The company, however, had to take Stoltman’s word for this. It asked him for proof that his union represented a majority, but he declined to submit it, saying he would submit the cards only to a Board representative. The record does not show that Medo ever was given proof that the union had lined up its claimed and actual majority. This was one of the things which, in my opinion, the record shows was held for discussion and determination at the conference scheduled for June 9. Cf. text infra notes 6-10. It is undisputed that the employees, entirely of their own motion and without any stimulus or suggestion by Medo, on Saturday morning, June 7, sought a conference with Medo’s officials, without disclosing their purpose. The request was granted and the conference held Saturday afternoon. As it opened, one of the men mentioned the “union situation.” But Medo’s general manager, Hoppin, at -once and flatly declined to discuss that, saying he would discuss anything else. The men then stated their desire for an increase in wages, and not to have the union. They specified the wages sought and Medo’s reply, granting them in part, was given the following Monday morning, June 9. On Monday afternoon there was also a conference with Stoltman, but because of the turn events had taken by the employees’ intervention it served only as the occasion for notifying him that Medo and the employees had reached agreement and therefore the company would not deal further with the union. Cf., e. g., North Electric Mfg. Co. v. Labor Board, 123 F. 2d 887 (C. C. A.); Texarkana Bus Co. v. Labor Board, 119 F. 2d 480, 484 (C. C. A.). See also Labor Board v. Union Pacific Stages, 99 F. 2d 153, 158-159 (C. C. A.). It is to be recalled that the whole period from demand by the union on Medo to negotiate to the time the employees intervened extended only from May 23 to June 7, and that the period of active negotiation began on June 4. Three days, or even a little more than two weeks, is hardly too much under the circumstances here present to allow an employer for determining whether the union meets the statute’s requirements. Seligsberg’s testimony was: “That was the purpose of the postponement. They were to bring us proof of representation. We were both to study the question of unit, and we were to study it—and when I say ‘we,’ I mean the employer, because except as to language, I wouldn’t know anything about it. They were to study it. Mr. Hop-pin and Mr. Goodfield and Mr. Niemeyer, if he were there—which I don’t remember—were to study-the proposed terms and see how they compared with the possibilities.” (Emphasis added.) Seligsberg consistently testified that he and Stoltman considered “all three questions together, proof of majority, proof of unit, and the contract.” He was a director and secretary of the company, but not a shareholder. In the conference Seligsberg renewed a previous request for proof that the union had a majority and conditioned the discussion upon the company’s being satisfied in this respect and that the unit was appropriate. Cf. note 9 supra. However, Stoltman again refused to exhibit the cards and renewed his offer only to submit them to a Board rep *693 ■resentative for comparison with Medo’s payroll. The record does not show this was ever done, although in my opinion, contrary to the Board’s findings, it does show conclusively that the parties contemplated it would be done and that the result of the comparison would be given to Medo before the negotiations should be concluded with finality of recognition. Cf. note 6 supra. Cf. note 6 supra. Hoppin’s testimony was in response to the question “What happened after they came to your office?” (on Saturday afternoon): “They came up and said that, ‘We have decided' that we don’t want to have anything to do with the union.’ I immediately stopped them, and I told them that if there was anything at all pertaining to any union activities, I did not want to listen .to them at all, but if it was anything else they had to offer, I would be willing to listen to them.” Hoppin testified he was told: “We have one .thing that we are primarily interested in. The working conditions here are excellent. We are very happy with our jobs, but we would like to get more money." Cf. Lebanon Steel Foundry v. Labor Board, 130 F. 2d 404 (App. D. C.). Whatever justiciable “interest” the union may have in continuing to act as the employees’ representative, its status as such is for the principal’s benefit, not its own, and is terminable at the former’s will. Cf. Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 237 ; Labor Board v. Sands Mfg. Co., 306 U. S. 332, 344 ; Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240, 261-262 ; Labor Board v. Remington Rand, 94 F. 2d 862, 869-870 (C. C. A.); Labor Board v. Lion Shoe Co., 97 F. 2d 448 . See, e. g., Hunt v. Rousmanier’s Administrators, 8 Wheat. 174 ; Lane Mortgage Co. v. Crenshaw, 93 Cal. App. 411 , 269 P. 672 ; Hall v. Bliss, 118 Mass. 554 ; Note (1930) 39 Yale L. J. 110. See, e. g., Ahern v. Baker, 34 Minn. 98 , 24 N. W. 341 ; Mott v. Ferguson, 92 Minn. 201 , 99 N. W. 804 ; White & Hoskins v. Benton, 121 Iowa 354 , 96 N. W. 876 ; Gilbert v. Holmes, 64 Ill. 548 . Cf.. note 15 supra. Cf. Labor Board v. Century Oxford Mfg. Corp., 140 F. 2d 541 (C.C.A.). J. 1. Case Co. v. Labor Board, 321 U. S. 332 ; Order of Railroad Telegraphers v. Railway Express Agency, 321 U. S. 342 . Cf. note 13 supra. That this is the fair meaning of Medo’s response is clear from its refusal to discuss or interfere in the employees’ union activities, cf. note 12 supra. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9419479. Public record. Not legal advice.