Reply Brief Petitioner — National Labor Relations Board v. Bradford Dyeing Ass'n

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3nthe Supreme Gort of he Wrted Sates

OcTOBER TERM, 1939 -

Kaien ‘LABOR oe =

Baajeoss DYEING Aesootumos paid 8. A.)

ey,

ay WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APREALS FOR THE FIRST seat il

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REPLY BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD

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.

. INDEX

—

. The T. W. O. C. was designated as their bargaining repre-

sentative by a majority of the employees... _ _-

. The asserted failure of the T. W. O. C. to display its cards

to respondent was not the ground upon which epipene

ent based its refusal to. bargain _

II]. In important particulars, the record dyes not support re-

spondent’s statement of facts concerning the alleged »

éfforts of Nelson to promote a sit-down strike... _.#-

IV. Respondent's egitentions with respect to Nelson’s dis-

charge are without mefit. —_.. a

V. The order requiring respondent ‘to bargain with the T. W.

_O. C. is valid and. should be. enforced _ = - 2%

aaa ‘CITATIONS.

Cases:

» Mallory Coal Co. v.National Bituminous Coal Commission,

99 F. (2d) 399-

National Labor Relations Board vy. Highland ‘Park Manu- .

facturing Co!, decided Mareh.11, 1940 (C. C. A. 4th)

National Labor. Relations Board v, National Motor Bearing oe

Co., 105 F. (2d) 652.

Newromb ¥. Woad; 97 U.S. 581

{ ‘nited States v. Atkinson, 297 U. 8. 157.

*.

Statute: hee °

National Labor Relations Act, July 5, 1935, C. 372, 49

‘Stat 449 (U8. C., Supp. IV, Title 24, See. 151 et seq.):

Section 9 ® .

Section JO. __. o

: 2

‘ay k992—40,-—1

owen congeemometanD as Yen evn

Fn the pepe Gour of the inte States

OCTOBER TERM, 1939

G°

No. 588’

NaTionaL Lasor RELATIONS BoaRD, PETITIONER

, ‘ “a

v.

Braprorp DyEINnG AssociaTION (U. §. A.).

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE FIRST CIRCUIT

REPLY BRIEF FOR THE NATIONAL LABOR ie

- BOARD ,

os fe

The brief filed on behalf of respondent contains

_ several assertions to which reply should be made.

I

THE T. W. 0. C. WAS DESIGN ATED AS THEIR BARGAINING

RE PRESENT ATIVE BY AM AJORITY OF THE EMPLOYEES —

E Respondent contends (Brief, pp. 34-46) that -

the T. W. O. C. had no -authority, under its rules

-and regulations (Bd. Exh. 33) and the contract be-~

tween the C. I. O. and the United Textile Workers

of America (Ba. Exh. 34) paruaint to whieh it was

- (1)

e< <

2

formed, to accept respondent's émployees as mem-

bers prior to formation of a local union.affiliated

with the T. W. O. C.) The documents referred to

plainly do net support respondent's contention.’

In any event, the argument is based upon the er-

roneous assumption. that ‘only employees who’are

members of a labor organization may designate it

as their bargaining representative. -Section 9 (a)

‘of the Act speaks not of membership in a labor

organization but of designation or selection of

a representative: and the whole purpose — of the

‘election procedtire authorized. by. Section 9 (¢) is

fo permit employees,, who may or may not .be

members of a labor organization, ta select a rep-

‘The provisionsof the Py W. O. C. rules and regulations

dealing with membership in the T. W. O. 2 is Article V,

set forth at pages 40-41 of respondent's brief. Thatearticle |

does not state that membership in a local union is prerequi-

‘site to membership in the natioiial T. W. O. C. Rebutting

any inference that stich a prerequisite was intended is the

wording of Section 6 of Article V:

“No foreman or forewoman or any other representative

of the employer, shall be eligible to membership in local

union or in the Tertile Warkers

Orqan izing Com-

mittee.” | Ttahes supphied.] -

In our main brief (pp. 34-35) we have hefelred to the un-

contradicted testimony establishing that it Was the practice

of the T. W.O. C. to admit employees to membership with,

out formation of a local union until recognition by the

employer lad been obtained. If there were inconsistency

between this practice and the T. W. O. C.’s regulations.

Which there is not, such an v/tra vires matter could not be

asserted by respondent as a basis for contesting the T. W.

Q: C.’s majority designat.on or its authority to represent

those employees who had de ignated it.

3 ’

resentative by ballot. If, as the Board found,’

a majority of -respondent’s employees designated

the T. W. O. C. as -their representative, the :

serted ineligibility of the employees for T. W. 0. €.

membership prior to formation of a loeal union

is wholly immaterial. There was: and is: no issue

as.to membership ; the issue here, as always, is only

as to designation” or selection of a representative.

. Respondent does not contend that the T. W..O. Co

was incapacitated, under the contract and the reg-

ulations, from representing the. employees who had

designated it. Pardgraph 2 (d) of the contract

(quoted at p. 35 of respondent’s brief) expressly

authorizes the T. W. O. C. |

To deal with employers. of textile workers

and execute agreements on an industry, em- —

ployer, or any other basis in the diseretion

of the Textile Wormers Cpeng Com-

inittee.

Respondent’s extended apace based upon the

contract and the T. W. O. C. atlas is with-_

out merit.’

-f> ?

ie)

Ss

~The Board's findings (R: 660, 662-663 y ave that “at all

times since April 4, 1987, the majority of the respondent's

employees in an appropriate unit had designated the T: W.

QO. C. as their bargaining agent™ and that “By virtue of

Section 9 (a) of the Act, Textile Workers Organizing Com-

mittee, having been designated as their representative by

a Biajority of the employees in an appropriate unit, was on

April 4, 1937, and at all times thereafter has béen, the

exclusive representative of all employees in such unit for

the purposes of collective bargaining.”

Further, this objection to the capacity of the ie A

Q. C. to represent respondent's einployees may not be urged

a

4

: a a i ©

2, At pages 47-54 of its brief, respondent con- -»

tends that the. white applic: ition ecards (Bad. Exh.

15, set forth at p. 32 of Board main-brief) did not

constitute a designation of the T. W. 0. €. Each

employee Who signed.a card of this type agreed |

to have ‘an affiliated union of the C. I. O.

act as my collective bargaining agency. re we

_have pointed out in our main brief (pp. 33-34),

the employees intended to designate the union

affiliated with.the C, I. O. having jurisdiction over

texfile workers, and that union was the T..W. 0. C.

And eyen. if. those who signed the white cards

had no spécitie ‘affiliated. union’’ in mind, never-

theless they authorized bargaining on their be Half

by such affiliated union as the C. L. O. utilized.

~The T.. W. O. €. is the inion so utilized and the

union which, pursuant to the employees’ designa-

tion, sought to bargain on their behalf.:

In addition, respondent's contention based upon

the form of ‘the cards may not now be raised. See-

tion 10 (e) ot the Act provides that

“* No objection that lias not been

urged before the Board, its: mguiber, agent

by respondent, since it was not raised before the Board.

Section 10 (e) of the Aet, infra, pp. 4 —), In its detailed Ex-.

ceptions to the Intermediate Report (R. 602-629) respond-

ent did not raise any objection based upon the contract or

the regulations; on the contrary. respondent plainly relied

exclusively upon the contention that the Federation repre-

sented a majority of the employees on and after April 9th,

and that the T. W. O. C. therefore could not have retained

its prior representation at the time of the refusal to bar-

geun (see infra, p. 7). ;

Fay a i yan WAS Ve) Nee ht en ages

EAA Ge Wud Favanr dt

-

a

‘agency, shall be icmmidaved by. the court,

sot the failure or neglect to urge such

objection ‘shall be excused because of ex-

v traordinary circumstances * * *. :

Respondent never raised its present contention

during’ the proceeding before the Board and no

extraordinary circumstances are asserted to excuse

such failure. Not only did respondent. fail to raise

the objection, but at every point in the proceeding:

where objection was necessary respondent acqui-

esced in the consideration of the white cards, and a

compiled list including both them and the member-

' ship cards, as proper proof of the allegation of the

complaint. (R. 11) that the T. W.0.C. had been des-

ignated by a majority of the employees. Thus,

the prine ipal proof adduced to establish the oe

QO. ©. majority consisted of Board Exhibit °0 (R:

534-552), a compilation of the names appearing.

upon both types of cards, introduced in lieu of the

cards themselves. Respondent's counsel examined

the cards to check ‘the accuracy, of the list, and

thereupon stipulated that the list was accurate (R.

340-341, 426). The exhibit: is ‘entitled “List of

‘ respondent’s employees who signed ‘Textile, W ork-

ers’ cards before April 10, 1937. Total 481” R.

o34). No attempt was made to distinguish be-

tween the two types of cards.‘ Identical procedure

*The list was algo copliani “List of employees who

signed CLO cards (Board Exhibits 15 and 16) on or before

zApril 10, 1937. Total 481. Sent to Boston” (R. 534). -

Since there was only one group of 481. it is apparent that

.

a

s used interchangeably throughout the hearing.

: 6 ‘ :

was followed by counsel for the purpose. of estab-

‘lishing the names and total number of employees

who had designated, the Federation (Resp. Exh.

39, R. 501-568 :-R. 425-428).

This acquiescence was consistently manifested

‘by respondent throughout: the hearing before. the

trial examiner.” In his Intermediate Report, the

the terms “CIO” and “Textile Workgfs" were tised Svnony-

mously and that the “affiliated uniok of the C. 1. O.” re-

ferred to on some of the cards was reXarded by all parties

as deseribing the T. W. 0. C. Indeed? those names were

* Respondent's counsel agreed that the T. WO. C. list did

not contain the names of any supervisory employees and

took no exception when, in the. resultant statement’ for the

record, Board counsel-described the exhibit asa list of the

members of the Textile Workers Organizing Conimnittee in

“the Bradford Dyeing Association” (@R. 344). Respondent's —

counsel, in fact, stated that no supervisors appeared on the

list, so that “none of them are members” (R. 345). Other

statements made by respondent's counsel are likewise’ con--

sistent only with an assimption that the application ecards

constituted proof of the bargaining authority at issue in the

ease. Thas, counsel asked whether a witness recalled “any

of those who signed application cards coming to you later”

and repudiating their signivg or stating that they no longer

wanted to be considered as members 2" (R104). In urging

production of the T. W. O. C. dues records, respondent's

counsel argued that: they were relevint to the question >

whether the signers “continued to be members” (R. 107)

‘and that since ‘a’ number of employees signed application

cards for both organizations” (referring to the T. W.O. C.

and the rederation), the dues records would indicate “which:

organization a particular enyployee or employees should be

considered With” (R» 109: see also R. 117-118). When Ash-

worth, vice president of she Federation, testified that signers:

of application cards of both organizations had ‘designated

eo:

7

trial examiner expressly found that both the ap- ©

plication cards and the membership cards consti-

tuted designations of the T. W. O. C. as the signers’

bargaining representative (R. 595). ‘Under the

Board’s Rules and Regulations, respondent was

required to set forth in its Exceptions to the Inter-

mediate Report all objections to findings or rulings |

by the trial examiner which it desired to urep be-

fore the Board (Rules and Regulations of the

National. Labor Relations Board, Series 1, as —

‘amended, Art II, Sees. 34, 35). Respondent’s ex-

haustive- Exceptions , did not challenge the find-

ing that the application cards constituted proper

designations; indeed, the Exceptions plainly ac-

‘cepted the application cards as.sufficient authori-

zation and procecded exclusively upon the the-

ory—the theory upon which respondent rested its

case—that. the designation of fhe Federat’on by.a

Majority prior to the refusal to bargain with the

T.:-W. 0..C. Was inconsistent with continued ma-

jority representation by the T.-W. O. C. and that

respondent’s prior recognition of. the Federation

relieved it of all obligation to bargain with -the

2 W.O. €2 Unde these circumstances, respond-°

both as their bargaining representative, respondent's counsel

neither objected to the question nor cross-examined on the

point (R. 261-262, 277-282). . The “Request for Findings”

which respondent submitted to the trial examiner contained -

no proposed finding es ing the sufficiency of the applica-

tion cards (R. 581-583). ‘

* Among other things, the Exceptions stated that “the Em-

ployees’ Federation presented fully as good’ proof as any

218992—40——2.

XS

tion cards at the time t

Ba ee

ent’ s observation (Brief, Pp. 52) that th re ‘Was no

testimony by any signer, of an applic tion card

that he iinderstood it as an authorization to the

_'T. W. O-C., is beside thé point. Respondent’ Scom- —

plete failure to questi ion the application cards, and | 7

‘Dd.

its express acquiescence in. their probative. force

as designations of the 'T. W. 0. C., rendered such

testimony superfluous ; there was nothing at issue

te which. it could be directed. Section 10, (e)

(supra,¢pp. 4-9), _embodyiig approved principles

of judicial. administration, plainly applies and re-

*. spondent cannot now contend that the application.

\earfs did net designate the T. W. O. C. as the bar-

gaining representative of the employees who signed

them. Newcomb y, Wood, 97 U. 8. 581; United

' Slates ¥. Atkinson,.297 U. 8. 157; National Labor

_ Relations Board vy. Natiayal Motor Bearing Co.,

~ 105 F. (2d) 652, 662 (C. @. A. 9th) ; Mallory Coal

Co. v. Natiorval Bituniinous Coal Commission, 99°

(2d) 399, 406 (App. D. C.). .

omental J 4 \,

offered hy the Cc. I, 0. as to see nimber of employees who,

had joined such Federation” (R. 618) and that “said ‘Textile

cers Organizing Committee had no clear or better evi:

dence than that previously furnished by the Employees’ Fed-

eration as to the number of members it represented and in

fret said Textile Workers Organizing Committee at no, time

prior to jhe hearing i in this cause submitted to respondent,

or even to its attor neys, the cards or any other concrete evi-

ization” .(R. 622). Th

likewise accepted the sificiency of the T.: W. 0. C. applica-

ey were signed. (R. 640).

‘

. dence f membership of respondent's employees i in its organ- ~

4ENveptions filed by the, Federation

et

geetions IL

’, THE ASSERTED FAILURE OF THE T. W. 0. C. TO DISPLAY

ITS CARDS TO RESPONDENT WAS NOT THE GROUND UPON.

WHICH RESPONDENT BASED ITS REFUSAL TO BARGAIN

‘Respondent contends (Brief, pp. 54-59) that it

failed to bargain with the T. W. O. C. because

Salerno would not submit the T..W. 0. C. cards to

Summersby for scrutiny. . The cul inating refusal

to bargain oceurred on April@6, 1937. In. our main -

brief. (pp.’ 37239) we referr to the uncontra-

‘dicted testimony establishing that the T. W. O. C.

made an ime at that time to.

prove its majority by submission of. the cards to an

impartial third person and-that, in any event, re-

spondent’s failure to see the cards was not the

ground’ upon which it refused to bargain. There

was one ground and only,one: respondent’ s prior

° reeognition of: :the Federation. / 8

Salerno testified that ‘at the conferenceon, April

16 Summer sby rejected his offer to submit the cards .

tod third person on the ground-that respondent-had

. already ‘granted exclusive recognition to the: Fed-

el rpHop (R. 297-298, 304, 306). Summershy tes-

_« tiled without aivilifieation that at this conference

he vould not bargain with the’T. W. O. C. be cause

‘Thad aready given sole bar gaining rights to the

B. D. A. Employees Federation, over a week pre-

hit ame (R. 457).* Tn its Exceptions to the

Reb moveMey

Peadgembonryenle yaw't Y ae een ge Misat eter hed HAHANS

* Thereafter ‘Summersby testified that Salerno had failed

\o.produce proof of the majority claimed by the T. W. O. C.

(R. 472-473). But Summersby did not testify, with respect

+ €9

Wes a.

Intermediate Report, respondent unequivocally as- .

serted that its refusal to bargain with the T. W. O.

C. was based upon its prior recognition of the As- |

-séciation ; nowhere did respondent contend that the -

T. W..O. C.’s failure to submit its cards to Sum-

mersby on April 16 was a ground for the re-

fusal.’ I is plain that the latter contention is an

to the April 16 conference, either that he had-asked to. see

_ the cards or that-Salerno’s asserted failure to produce proof

had anything to do with respondent’s refusal at that time

to recognize the T. W. O. C. It should be further noted

that Summersby also testified that on April 13 Bernard, .

the federal conciliator, suggested that an election be held

to resolve the disputed. question of representation. Sum-

mersby rejected this proposal on the ground that “they have

already established a local union and-I have given them-sole

bargaining privileges, and I do not see that I have any legal

riglits where I can change my position and-consent to your

conducting a vote thege” (R. 456). Yet respondent insists

that Summersby’s ‘refusal to bargain with the T. W. O. C.,

: occurring only’3 days later, was motivated principally of

exclusively by Summersby’s doubts that the T. W. O. C. rep-

resented, a majority and by Salerno’s failure to resolve. those

“doubts by subjecting the cards to Summersby’sgcrutiny.

* The .Exceptions attributé the refusal ‘to the fact that

Summersby could not recognize the T, W.'-O..C. “without

violating his recognition of the Employees’ Federation and

-his obligation to deal with it exclusively .. .” (R. 615). Re-

-spondent claimed that Summersby did not refuse to bar-

and that in accordance with such recognition it must deal

only with such other union as the exclusive representative of

its employees . . .” (R. 622). Respondent claimed that the

| ae vy Q

afterthought which in faet had nothing to do with

respondent's refusal to bargain. ‘Since the T. W.

0.0. did represent a majority and there was valid

request for bargaining, vespondent may not now

rely. upon asserted doubts as to majority which

were .not the reason’ for the refusal. See cases

cited at page-38 of Board main brief.

III

* IN IMPORTANT RARTICULARS, THE RECORD DOES NOT SUI’.

_ PORT’ RESPONDENT'S STATEMENT OF FACTS CONCERNING |

* THE * ULEGED EFFORTS OF NELSON TO PROMOTE A SIT-

. DOWN STRIKE ~

We stated in our main brief (pp. 71-72, 27-28)

‘that.there is no evidence whatsoever connecting

‘Rhodes, the employée who urged his co-workers to

“sit down,’’ with the T. W. O. C.. or with the al-

leged efforts of Nelson to promote a_ sit-down

strike. We further pointed out (pp. 70-71), that .

the evidence adduced with respect to Nelson's ef-

forts did not implicate Schofield, the other dis-

criminatorily discharged employee, at all. Re-

spondent nevertheless asserts, without reference to

any supporting evidence, that Schofield as well as

Nelson attempted to promote ar sit-down strike

(pp. 80, 84, (86, 87, 89, 90) and that ‘tliese efforts

* trial examiner's finding of an unkiwful-refusal to’ bargain

Was “erroneous for the reasons stafed in- exception 49. . 2”

(R. 628). Exe eption 49 did not allude to the T. W. O. C. 's

a to submit its card’ to’ Summersby, but stated that

“respondent would not bargain with the T. W. O. C. for'the

reason that it hid already-granted exclusive kecognition to

“the Feéderition (R. 621. —§22).

haces e

; were ‘made ‘an. conjunction “with. Rhodes acting

inside the plant”’ (pp. 84, 80, 89) and at the s Same

time as his.efforts (pp. 80, 89). Utterly witho it

proof-of any connection between Rhodes and the

T.-W. G. C. or the C. I. O., it characterizes ——

‘actions as an ‘attempt to stage a C. I. O. sit-down”

(p. 81).. These assertions in the brief are entirely

Ww ithout support in the reéord.’ Agree

IV

-

7

RESPONDENT'S CONTENTIONS WITH RESPECT TO NELSON'S

DISCHARGE ARE WITHOUT MERIT

Respondent contends (Brief, p. 83) that tlte

Board is in error in stating (main brief, pp. 62-

* Respondent (Brief, ‘p. 89, note) takes issue with our

stiitement (Board main brief, pp. 74475, note 47) that-the

alleged threats by Nelson to blow up the railway spur, now

relied) upon by respondent asa ground for denying rein-

statement to- him, were not raised before the Board. Re-

spondent’s Exceptions, quoted only in part in’ respondent's

brief, opposed the reinstatement of both Schofield. and Nel-

son because those employees “have been working for the

C. 1. O. doing organizing work and fulfilling’ the duties of

- officers of a local unit of the C. £2 O. and agting in a manner

cirectly hostile -to the interests of: respondent, including an

attempt to cause a-sit-down strike and otherwise to cause

respondent's employees to become dissatistied and to catise

unrest and disturbance of the business activity of respond-

ent...” (R. 625), This is surely an obscure medium for

raising the threats now deemed so important by respond-

ent. We Submit that Section, 10 ‘(e) (supra, pp. 4-5) may

not be avoided-by vague coverall objections sufficiently am-"

-biguous to cover a variety of, possible contentions lurking i in

the record,

-

“ EOL OT ET LR I CLR ORI ee toy sein

63) that the principal ground to be considered in—

connection with Nelson’s discharge is his asserted

lateness in starting work on April 3. It is said

_ that there were other re: isons for Summersby’s_

action; Nelsair’s ‘‘irresponsibility”’ (np. 74); the

fact that he eftered the plant without permission |

~ on April 1 (ibid:) ; the assertion that he ‘‘interfered

with the work of other employees” (?bid.) ; the as-

sertion that he rudely interjectec. himself into a

conversation between Summersby and Schofield on

April 2 (p. 75) ; and, finally, the a: ssertion that Nel-

son entered Summersby’s office without knocking

on the same day (pp. 75-76). oe

The short answer is that respondent, in relying

upon these various grounds, con:pletely ignores the

significant circumstance that after Summersby was

well aware. of whatever basis ia fact they had, he

still continued:--his efforts to have Nelson turn his

organizing efforts fyom the T. W. O. C. to an ‘‘in-

side’’ unien (Board main brief, pp. 61-62, 65-66).

The list of ‘reasons why Nelson should be elimi- -

nated led to no action by respondent so long as. Nel- .

son was considering Summersby’s proposal: but °

when, on April 3, Nelson failed to respond to,

Summersby’s wishes, he was discharged. Respond-

ent’s argument that the discharge was not discrim-

inatory not only disregards this highly significant ,

séquence of events but also ignores the other ample

. evidence upon which the Board’s findings are

V4

hased, including that of Dudley, respondent’s: fore-

_ man (Board main brief, pp. 63-65).’"

ee

THE ORDER REQU IRING RE SPONDENT TO BARGAIN WITH

THE T. W.0. CUTS VALAD AND SHOULD BE ENFORCED

There should be added _ ta, the cases cited in the

Board’s main brief (pp. 47-60) in support.of our

position that the bargaining order should be @n-

forced without reference to asserted changes in

representation occurring after the refusal to bar-.

gain, the decision of the Circuit Court of Appeals

for the Fourth-Cireuit in National Labor Relations

Board vy. Highland Park Manufacturing Co., de-

cided Mareh 11, 1940, after our main brief her ein : -

was filed. In the Highland Park case the em-

ployer asserted before the court that the union's’

majority had* been dissipated afier thé refusal to

' Respondent also relies (p..80) -upon Nelson's asserted

threats to blow up the railway’ tracks and his alleges at-

tempts to incite a sit-down strike in justification for the

discharge. Respondent admits that all of these acts, if they

occurred af al took place on April 8, five days after’ Nelson's

- ° = @.e .

dismissal. Further, they were not mentioned by Summersby

in his conferences with Salernovat which he refused to take

Nelson back (see, note 40, p. 62, Board main brief). Re

Was “for inefficiency. insubordination and detiance’ ~(R. 609,

G11-6L: 2), and that “Schofield and Nelson. were eliminated

“for violation of reasonable‘rules for conduct of the work of

respondent and because their conduct detracted from the

efficienéy and smooth running of the business of respondent

and tended to cause delay and interruptian in respondent's

busim@ss” (R. 621). :

-spondent’s Exceptions to the Intermediate Report stated’ ”

_ merely that Summersby's punishment of Nelson on April 3

a

%

: 1d

bargain and applied for leave to adduce additional

evidence in support of this claim. The c@urt de-

‘nied the application and entered a.decree enforcing

the bargaining order. ‘Phe ‘pertinent position of

the court's opinion, . delivered by Judge ‘Parker,

tends a as folk OWS: oes ik

We do not think that the- ere to re-

mand the eause to the Board for the taking °

Jof additional testimony should be allowed.

Respondent is uot faced with conflicting

claims as to representation, but raises the.

question as to thé authority of the union to

represent its employees asa means of es-

caping any obligation to bargain at all. In

such case it is reasonable to presume that

_ the authority of the bargaining agent .con-.

tinues until the contrary be shown. See

NLL. R. B.v. Reminaton-Rand, 2 Cir. 94 F.

2d. 862, 870; N. .L. R. B. v. Biles-Coleman

Lumber Co., 9 Cir. 96 F. 2d 197, 198; N. L.

R. B. v. Louisville Refining Co., 6 Cir.

102 F. 2d 678. And we think that no suffi-

cient showing is made to overeome this

“presumption. There are filed ten blanket

affidavits in general form by employees of

respondent, who are not shown t@fhave any

particular knowledge of the matters to

which they testify, and. whose affidavits

amount. to little more than expressions of .

opinion of little or no value. This is all

except an affidavit by a former. president of

the union, which fails to set forth any defi-

nite information as to the: present mé¢mber- _

ship of the union, and thus discounts the .

16

«

whole effort to establish —_ of major ity

representation. —

“Itis. reasonable to assume, moreover, that

any decline in union membership, has _been- =

_—-dueinarge measure to refusal of respond-

ent to bargain with the union as representa-

tive of the employ ees in the manner conten

plated by the Aet of Congress; and, in such

situation, an order requiring respondent to

bargain as contemplated by the Act is rea-

~ sonably necessary to overcome the effect of.

the interference with-seH- organization re-

‘sulting from the refusal to bargain. An em-

_ ployer should not be alloWed to diseredit a

bargaining agent selected by an overwhelm-

ing majority of his employees: by refusal te |

bargain with it and then take advantage of

the loss of membership due to his wrongful

act as.an excuse far refusing to recognize it

as a bargaining agent. It must-be remem-

bered that the union represents the employ-

ees, not the eniployer; and, if a majority of

the employees are not satisfied to be repre-

sented by it, they can apply to the Board for -

relief. It is significant that, while the affi-

davits filed before us state that a ma fority of

the employees are not members of the union

aid that for some time it has not been the

designated or- selected representative of the

majority, there is nothing in thern to the ef-

fect that the employees are not willing. to

have it bargain for them. If respondent's.

refusal to bargain had been due to bona fide

belief at the time that the union did net rep-

_

%)

_ CHARLES F any,

‘

‘

17 fe eet fy ;

resent a majority, a different situation.

would, of course, be presented; but it is ad-

- mitted that-wt that time ‘the union répre-

sented between 80 and 85 percent of the

~ employees, Under such circumstances, we*

feel that we.should decide tbe case on the

record certified by the Board (N. L. R. B. v.

Newport News Shipbuilding & Dry Dock

Co., — U. 8S. — 60 S. Ct. 203, 208). and

‘leave any question of representation which

may have arisen out of changed conditions,

since the record was made to be dealt with

by the Board under the ‘provisions of the °

Act.

Respectfully submitted. Pr se

at Francis BIpDLe, ©

ee Solicitor General.

General Counsel,

Rosert B. Warts, .

Associate General C ounsel, oo

, LAURENCE A. Knapp,

Assistant General’-Counsel, yy

\ Me ORTIMER B. Wotr,

\

mse 95 Ys -.

| " National Labor Relations Board.

‘

Marcu 1940.

. S GOVERNMENT PRINTING OFFICE. 1940