# National Labor Relations Board v. Inter-City Advertising Co. > Court of Appeals for the Fourth Circuit · March 15, 1946 · 154 F.2d 244 URL: https://www.frixlaw.com/law-library/cases/9637264 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD v. INTER-CITY ADVERTISING CO., Inc. - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** March 15, 1946 - **Citations:** 154 F.2d 244; 17 L.R.R.M. (BNA) 916; 1946 U.S. App. LEXIS 2984 - **Precedential status:** Published - **Opinion:** Dissent by Dobie - **Judges:** Soper and Dobie, Circuit Judges, and Gilliam, District Judge - **Cited by:** 9 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/9637264 ## Opinion text DOBIE, Circuit Judge (dissenting). I regret that I feel compelled to dissent from the majority and to state briefly the reasons which prompt this dissent. The respondent argues that, even if the Board’s certification be valid and some punishment or disciplinary corrective must be visited upon respondent, the Board should not compel respondent to bargain collectively with the Union which clearly does not represent a majority of the present members of the unit. That, we are told, is penalizing Peter for the transgressions of Paul; it requires respondent (so it claims) to repeat its offense by compel *248 ling respondent, against the clearly expressed will of the majority of those now constituting the. unit, to deal with the minority group, thereby thwarting the primary purpose of the Act which is to effectuate the free and untrammelled choice by employees whether or not they will be represented in collective bargaining by a particular group. Hamilton-Brown Shoe Co. v. National Labor Relations Board, 8 Cir., 104 F.2d 49, 55 . Again respondent urges that the instant case bears a striking and important difference from Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702 , 64 S.Ct. 817 , 88 L.Ed. 1020 ; National Labor Relations Board v. Appalachian Electric Co., 4 Cir., 140 F.2d 217 ; Great Southern Trucking Co. v. National Labor Relations Board, 4 Cir., 139 F.2d 984 . In these cases it was pointed out that there was proper room for the presumption that the present opposition of the employees to the Union, and the probable or possible loss of Union majority, was due, to an appreciable extent at least, to the past unfair labor practices of the employer. In our case, the positive testimony of all the employees opposed to the Union is unequivocally clear and absolutely negatives any such presumption. Further, this testimony was not rebutted, it was not shaken on cross-examination, and the Board did not attack the credibility of the witnesses so testifying. The point is interesting and not altogether free of doubt. A bit of analysis and recapitulation would seem helpful. When respondent first refused to comply with the Board’s order, its refusal was based solely on a single defense which we have held to be untenable— that the Board’s designation of the appropriate bargaining unit'was arbitrary and invalid. At this stage of the game, had the case ended here, clearly the Board was entitled to the enforcement of its order. Then, what happens? Respondent puts into effect, unilaterally and utterly without consultation with the designated Union, several changes in the working conditions of the employees within the certified unit, whereby the Union majority was lost. Does this strengthen the position of respondent? I hardly think so, whether this further defiance of the Board’s order be regarded as in itself a substantive unfair labor practice, an operative fact, or whether it be deemed a mere evidential fact tending to prove more clearly the refusal of respondent to bargain collectively. See, May Department Stores Co. v. National Labor Relations Board, 66 S.Ct. 203 ; Medo Photo Supply Corporation v. National Labor Relations Board, 321 U.S. 678 , 64 S.Ct. 830 , 88 L.Ed. 1007 ; Great Southern Trucking Co. v. National Labor Relations Board, 4 Cir., 127 F.2d 180, 186 , certiorari denied 317 U.S. 652 , 63 S.Ct. 48 , 87 L.Ed. 524 . The form of the Board’s order here adopts the rather standard form of relief upon a finding of unjustified refusal of the employer to bargain collectively. National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 432 , 61 S.Ct. 693 , 85 L.Ed. 930 . Some measure of discretion must be permitted to the Board in determining which type of order will best effectuate the policies of the Act. Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702 , 64 S.Ct. 817 , 88 L.Ed. 1020 ; National Labor Relations Board, v. P. Lorillard Co., 314 U.S. 512 , 62 S.Ct. 397 , 86 L.Ed. 380 ; Great Southern Trucking Co. v. National Labor Relations Board, 4 Cir., 139 F.2d 984 , certiorari denied 322 U.S. 729 , 64 S.Ct. 944 , 88 L.Ed. 1564 . And this principle has been applied even when the unlawful refusal to bargain has not caused the loss of the union majority. See cases cited just above and see, also, National Labor Relations Board v. Porcelain Steels, 6 Cir., 138 F.2d 840 ; National Labor Relations Board v. Brown Paper Mill Co., 5 Cir., 108 F.2d 867, 872 , certiorari denied 310 U.S. 651 , 60 S.Ct. 1104 , 84 L.Ed. 1416 . Then, too, the Courts have insisted that a shift in union preference should not be permitted to defeat the validity of a certification by the Board until the lapse of a reasonable time during which the duly certified agent is allowed to represent those employees included within the certified unit. As was said by Mr. Justice Black in Franks Bros. Co. v. National Labor Relations Board, 321 U. S. 702, 705 , 64 S.Ct. 817, 819 , 88 L.Ed. 1020 : “But, as the remedy here in question recognizes, a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.” See, also, Motor Valve & Mfg. Co. v. National Labor Relations Board, 6 Cir., 149 F.2d 247 ; National Labor Relations Board v. Century Oxford Mfg. Co., 2 Cir., 140 F.2d 541 , certiorari denied 323 U.S. 714 , 65 S.Ct. 40 . This principle gains added *249 strength when, as here, the opposition to the union is expressed after the employer’s wrongful refusal to bargain ' collectively with the certified unit. Nor is the principle entirely based on the argument ab inconvenienti; for, in the very small group involved in the instant case, the time, expense and inconvenience of frequent elections would be of no great consequence. In the light of all this, I think the petition of the Board for the enforcement of its order against the respondent should be granted, even though the final result may seem somewhat anomalous or unusual. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9637264. Public record. Not legal advice.