The opinion
GRONER, C. J.
(dissenting).
I regret I am unable to agree with the majority in this case. The affirmance of the Board’s order, as I see it, is, 1st, in effect to designate a representative of the employees, contrary to their expressed preference; 2nd, to penalize the employer for living up to a voluntary written agreement between itself and two disputing unions. The facts are fully stated in the opinion. I shall repeat only so much as I believe necessary to make clear the reasons of my dissent.
The controversy originally involved three parties, the Longshoremen’s Union, the Teamsters’ Union, and the employer. Both unions were then affiliates of the American Federation of Labor. The Longshoremen were first on the ground, and in 1936, after plant shut-downs caused by labor disputes, the employer agreed *96 with them upon a statement of policies governing labor relations. Within a few days, the Teamsters, who. claimed the right to represent the men, began to picket, and the plants were again closed. They remained closed with great loss to the companies and the communities, and six months later and after the rejection of various proposals looking to the resumption of work, a written agreement was made at the instance of a citizens’ committee, providing that the plants reopen under guaranties by both unions that the workers return to work under their then union affiliation; that the jurisdictional issue be submitted for decision to the General Convention of the American Federation of Labor, and that both unions abide the final decision. There is uncontradicted evidence that the owner of the plants expended a large sum of money to reopen and that it would not have done so except with the understanding that the agreement finally settled the dispute. After it had been signed by all parties, including the individual employees, and prior to the meeting of the Federation of Labor, the Local of the Longshoremen, to which many of the employees belonged, withdrew from the Federation and joined the Congress of Industrial Organizations and notified the employer that it represented a majority of the employees. But it gave no notice of an intention to withdraw from the truce agreement or of a purpose not to continue to be bound by its terms. Thereafter the American Federation convention decided the jurisdictional issue in favor of Teamsters, and within two weeks that union, relying upon the agreement that the decision should settle which of the unions should be recognized, insisted upon a closed shop contract. And the employer, acting in accordance with its undertaking to deal with the union certified by the Federation, signed the contract. Some of its employees who refused to join the Teamsters were then discharged. The Longshoremen’s Union, claiming that its severance from the Federation abrogated the agreement, then filed a petition with the Board claiming to represent a majority of employees and asking that it be so designated and that the contract with the Teamsters be abrogated as an unfair labor' practice. The Board, for some reason that does not appear, failed to act on the .charge of illegality in the making of the contract, but ordered an election to determine which of the two disputants had a majority of the men employed in the plants and made eligible to vote in the election only those who were on the companies’ payrolls in the week prior to the,decision of the Federation. The result was that 32 of the men voted in favor of Teamsters and 27 in favor of Longshoremen. The Board’s Regional Director, properly I think, recommended that the Teamsters be certified as exclusive bargaining agents. The Board, however, refused to certify, and some five months later issued a complaint against the employer on the original charges; and, after new hearings, entered .an order finding that the employer had violated the Act in signing the closed shop agreement and discharging some of the men, and directed the employer to withdraw its recognition of Teamsters and to reinstate- the discharged employees. The Board, it is true, did not require the employer to pay the men for the time between their discharge and the, date of the order, but declined to do so on the ground that when the contract with Teamsters was made the legal rights and obligations of the parties under the agreement were involved in doubt “and the respondent’s [employer] course of action with regard to the persons discriminated against appears to have been predicated upon an honest reliance on what it conceived to be the proper interpretation of the Truce Agreement”, as indeed it was. The Board, however, directed that the pay of the discharged men commence five days after' its decision and that the employer desist from unfair labor practices. The Teamsters appealed, and the present affirmance will require the employer to pay to each of the discharged men unearned wages for approximately a year and a half.
I understand that the purpose of the National Labor Relations Act is to insure to employees an opportunity for a free determination of the union to represent them in their relations with the employer. The certain method of ascertaining the preference is a fair and untrammeled election. Putting to one side, therefore, the question .whether in the present instance all the parties were bound by the so-called truce agreement on the jurisdictional question, as in good faith they undoubtedly were, I am nevertheless of opinion that the Board, in ordering and holding an election and then repudiating the result, has acted arbitrarily.
1. The election was ordered with the full knowledge on the part of the Board *97 that the employer, acting under the binding conditions of the truce agreement, had signed the closed shop contract with the Teamsters.
2. It was obviously its purpose to determine which of the unions represented the majority of the men.
3. There was neither charge nor evidence of coercion of the electorate on the part of the employer.
4. The persons eligible to vote were designated by the Board.
5. The election was conducted by the Board, and the employer took no part in it.
6. No one claims it was not fairly held and the result fairly determined.
7. The Board was then as fully informed of all the charges on which it subsequently acted as it was when it later repudiated its own action and set aside and annulled the election.
In the circumstances, I am wholly unable to find any justification for its course, and I am even more unable to find justification for its further action in ordering the employer not to recognize Teamsters as the bargaining representative “of any” of its employees when the only evidence in hand showed that union as the choice not only of many but of an established majority.
The case as we have it does not present the usual question of conflicting evidence. It is not one in which the Board has placed its own interpretation upon the evidence and thereby bound the courts to adopt its conclusions. It presents, as I think, rather the question whether the procedure adopted by the Board was a fair exercise of its powers under the Act. Because I am convinced that (1) in refusing to give effect to a binding agreement to which all parties' assented, (2) in holding an election and without rhyme or reason ignoring its results, and (3) in denying to Teamsters the right of representation of “any” of its members,. — the Board unlawfully exercised its powers, I think the order appealed from should be set aside and the case remanded to the Board and — solely because of the lapse of time — the Board should order a new election. For the crucial question, after all, is which of the unions now represents a majority of the men, and constraint by the Board no more than constraint by the employer should enter into the determination of that question.