# National Labor Relations Board v. Acme Air Appliance Co.

> Court of Appeals for the Second Circuit · February 3, 1941 · 117 F.2d 417

URL: https://www.frixlaw.com/law-library/cases/9637600

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD v. ACME AIR APPLIANCE CO., Inc.
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** February 3, 1941
- **Citations:** 117 F.2d 417; 7 L.R.R.M. (BNA) 356; 1941 U.S. App. LEXIS 4246
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Clark, Swan, Hand
- **Cited by:** 25 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/9637600

## Opinion text

CLARK, Circuit Judge
(dissenting in part).
I think full enforcement of the Board’s order should be had now. Overthrow of the Board’s finding that Local 1223 represents a majority of the workers cannot be based on anything of record before the Board. It really rests upon assertions— assailed by the Board — which are contained in petitioner’s brief and an “Answer" filed in this court, and which concern actions and concessions made by the parties purely as a basis for negotiations for settlement after the Board’s decision. Certainly the fact that the union’s “Application for Membership” provided that it should be “for a period of one year” is not enough to upset the well settled presumption that “the freely established majority continues until the Board has an opportunity to make its decision,” that “any other rule would make a merry-go-round of the Act.” International Ass’n, etc., v. National Labor Relations Board, 71 App.D.C. 175 , 110 F.2d 29, 33 , affirmed 311 U.S. 72 , 61 S.Ct. 83, 89 , 85 L.Ed. -; National Labor Relations Board v. Bradford Dyeing Ass’n, 310 U.S. 318, 339, 340 , 60 S.Ct. 918, 929 , 84 L.Ed. 1226 . The provision obviously represents an attempt by the union to give greater stability to its position. In appearance the provision does so, though actually a worker can still withdraw his designation at will. In any event, so far as it goes, it is a grant, not a withdrawal, of power. Here the trial examiner’s intermediate report was filed and served well within the year, and the Board’s order was some three months after the year’s close; though I doubt if these dates are important. To hold that an interparty regulation of the union designed to give it greater authority affords an excuse to the employer for evasion or at least lengthy contest of his obligations under the law seems to me decidedly anomalous.
Very rarely have we yielded to demands for modification of an order of the Board for asserted change of circumstance not before the Board; and I believe experience shows sounder practice to be against such yielding. For it invites vociferous pressure in all other cases; it leads to controversies on facts which we are not in a position to settle promptly and effectively; it puts a premium on delay and encourages violation of the law, for both these may thus operate to the union’s prejudice and at least afford ground for renewed legal battles; and, as is here demonstrated, it makes negotiations for peaceful settlement most hazardous. Judicial action should not depend on the violence of asseveration by counsel; we have enforced orders after greater lapse of time and under circumstances more appealing than are here presented. Compare, e. g., National Labor Relations Board v. Eastern Footwear Corp., 2 Cir., 112 F.2d 716 ; Art Metals Const. Co. v. National Labor Relations Board, 2 Cir., 110 F.2d 148 ; National Labor Relations Board v. Dahlstrom Metallic Door Co., 2 Cir., 112 F.2d 756 . 1 Lastly, the practice violates the basic concept of the Labor Act, for it transfers the final, and perhaps most important, exercise of discretion — that of protecting a freedom of choice once made by the workers — from the Board to the courts; it is an issue I had thought Justice‘Douglas put finally at rest for a unanimous Court in Interna *424 tional Ass’n etc., v. National Labor Relations Board, November 12, 1940, 311 U.S. 72 , 61 S.Ct. 83, 89 , 85 L.Ed. —.
In National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 359 , 60 S.Ct. 569 , 84 L.Ed. 799 , tbe Court expressly noted that tbe Board had not complained of the direction for an election; and American Mfg. Co. v. National Labor Relations Board, 309 U.S. 629 , 60 S.Ct. 612 , 84 L.Ed. 888 , rests on tbe same basis. As pointed out in tbe opinion herewith, an' application to reopen had been made to the Board in National Labor Relations Board v. Yale & Towne Mfg. Co., 2 Cir., 114 F.2d 376, 379 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9637600. Public record. Not legal advice.