National Labor Relations Board v. Savair Manufacturing Company

PETITIONER:National Labor Relations Board
RESPONDENT:Savair Manufacturing Company
LOCATION:The White House

DOCKET NO.: 72-1231
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 414 US 270 (1973)
ARGUED: Nov 12, 1973
DECIDED: Dec 17, 1973

ADVOCATES:
Norton J. Come – for petitioner
Robert J. Solner – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – November 12, 1973 in National Labor Relations Board v. Savair Manufacturing Company

Warren E. Burger:

We’ll hear arguments next in number 72-1231, National Labor Relations Board against Savair Manufacturing Company.

Mr. Come, you may proceed whenever you’re ready.

Norton J. Come:

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the Sixth Circuit.

The basic question is, whether it is permissible for the National Labor Relations Board in the exercise of its broad discretion to establish the standards and safeguards for conducting a fair and free representation election to conclude that a union’s offer to waive initiation fees for all employees who signed union authorization cards before the election, should the union win the election, does not tend to interfere with the employee free choice in the election.

The facts are these.

In September of 1970, pursuant to a representation petition filed by the Mechanics Educational Society of America, the Board conducted a secret ballot election among the production and maintenance employees of the Savair Manufacturing Company.

The Union won the election by a vote of 22 to 20.

The company filed objections to the election alleging among other things that union representatives had improperly coerced certain employees by leading them to believe that if they failed or refused to sign a card requesting an election and the Union were successful, they would be fined from to $20.00 to $200.00 before they could join the Union.

These objections were investigated and set down for hearing before a Hearing Officer of the Board who found that prior to the filing of the representation petition, Bennie McKnight, an employee supporter of the union, solicited employees to sign cards applying for membership in the union, which cards were to be used to support the petition as this Court note out those that generally, the Board requires a support of 30% in cards before it will process a representation petition.

McKnight told the employees that if they did not sign a card now, they would be subject to an assessment or a fine if the Union won the election.

When the employees questioned McKnight about the union’s policy, he told them to call Alfred Smith, the Union Secretary-Treasurer whose phone number he gave them.

After the election petition was filed but before the election was held, Smith addressed the group of about 20 employees.

In response to a question about the assessment, he explained that it was the union’s policy to waive initiation fees in organizing new shops but to require a small fee to be paid by the persons joining the union after a contract had been negotiated.

In fact, the union’s constitution and by-laws provide for the local union to set the initiation fees, which in no event can exceed $10.00.

Smith added that there was no assessment or fine in our organization in regards to the situation of membership.

The only time the fine was imposed was for violation of the union’s constitution or by-laws.

The Hearing Officer concluded that what the Union did through Smith and McKnight was to inform employees that an initiation fee would be waived in the eventuality of a successful election by the union.

He further found that whatever confusion may have re-existed with respect to the terminology utilized by McKnight, the union’s policy was clarified at this initial organizational meeting at which Smith explained the union’s policy when he held a subsequent meeting shortly before the election going over the same ground.

How many were at the second meeting?

Norton J. Come:

At the first meeting, there were about 20 employees and he indicated that about the same number were at the second meeting.

The first meeting was attended by the card signers.

He explained that those were the only names and addresses that he had and that’s what the notice went out to.

There is no indication as to who in addition may have been present at the second meeting.

Following the Board’s decision in DIT-MCO that a waiver of initiation fees prior to an election, is not an improper inducement for vote for the Union regardless of whether it was contingent upon the results of the election.

The Hearing Officer concluded that the union’s waiver offer did not impair free choice in the election and recommended that the union be certified.

I should point out that DIT-MCO represents a reversal of the Board’s earlier position in Lobue in which the Board had concluded that if the waiver was tied to the outcome of the election, it was improper.

Do you have at least a copy of the cards in the record?

Norton J. Come:

There is not a copy of the cards in the record.

What we do have in the record is a testimony by the union agent.

It is not even among the — It isn’t either here?

It isn’t here in any form?

Norton J. Come:

No, it is not.

But was it an application for membership?

Norton J. Come:

Yes, it was.

It was an application for membership and that it authorize the Union to represent the employee in collective bargaining.

And did it say that if the union won, membership fees would be waived?

Norton J. Come:

No, the card did not say that.

It was a typical authorization card which, as I say, was an application for membership and it authorizes —

Was it stated at the union laws the application was void?

Norton J. Come:

No, it did not say that.

So, I suppose the application still stands for the union laws?

Norton J. Come:

Except that the union agent, Mr. Smith, testified that it was the practice of the Union not to collect any initiation fee.

Practice?

Norton J. Come:

Yes, sir.

Unless they won the election and they got a contract which is not a typical as I understand the practice of the union organization.

But I think the employee was applying for membership?

Norton J. Come:

He was applying for membership.

And he could only get his — even his dues would only be waived if the Union won?

Norton J. Come:

His initiation fee would be waived if the Union won.

However, the Union is not in a position under the Act as I hope to, as I was planning to get to.

To compel an employee to pay initiation fees until (a) it wins the election, (b) it manages to negotiate a contract with an employer and; (c) gets a contract which has a Union Security Clause and that which requires the payment of dues and fees as a condition of continued employment.

Well, can’t the Union sue, at least as a theoretical manner, for back dues in court without enforcing it through a Union Security Clause?

Norton J. Come:

I know of no such situations where they have done so merely on the basis of an authorization card of the client that we had here.

Mr. Come, if the issue here were a little different.

If the issue were that of a card majority, will the Board’s position be any different?

Norton J. Come:

The Board’s position as I understand it would not be any different.

I do think, however, that the fact that you do have an election here makes this an easier case because in terms of the employee who does not want the union and merely signs the card as a hedge.

He has a double insurance by voting “No” in the election.

Warren E. Burger:

Isn’t it possible?

Warren E. Burger:

Isn’t it conceivable that some of the 22 employees who voted against the 20 but decided to hedge by both signing a card and voting for the Union, so that if the Union won the election, they would be relieved of this fee obligation.

Isn’t that what the case is about whether this is an improper inducement?

Norton J. Come:

That is correct, Your Honor.

I think that that is the question.

I think that there’s no question that it is an inducement to sign a union card.

The question is whether it’s a type of inducement, which is likely to influence the employees’ vote in the election.

For example, there’s no question that if the Union promises to get the employees a wage increase if it wins the election, that may well be an inducement for the employees to vote for the Union in the election.

But that type of inducement the Board and the Courts have held is not the kind that would preclude a rational choice.

Now, in this area of what inducement is going to fall on which side of the line, I submit that that can often be a fine question.

Well, what I gather Mr. Come, the Board then review at least initially thought that it fell on the side of coercive side of —

Norton J. Come:

The Board felt that it fell in the coercive side not with respect to the waiver of the initiation fee.

The Board almost from the beginning has taken the position that an offer to waive initiation fees during an organizational campaign was a legitimate type of inducement and did not interfere with the employee free choice.

It serves the legitimate purpose —

But what was in Lobue?

Norton J. Come:

In Lobue, the thing that the Board felt it made it improper was that, in addition to offering to waiving the card of the Union furnished was a membership card, and at the bottom of it, it said, “The employee shall be entitled to put a paid-up initiation fee upon if the Union wins the election” with the addition of “if the union wins the election” that the Board felt tipped the scales.

Now, on reconsideration in DIT-MCO which was applied here, it was the Board’s judgment that whether you exquisitely stated that the waiver would be effective if the union wins the election or you didn’t as so state, didn’t make any realistic difference because that fact would be understood in any event.

Because the way that the thing operates, as I explained before is that the only time that the Union is in a position to force an employee to pay an initiation fee is if it wins the election, it gets a contract and the contract has a Union Security Clause in it.

So, in effect, what the Board concluded in DIT-MCO was that it was really relying upon an artificial factor in making the propriety of the waiver turn upon whether or not the Union said nothing or whether they were candid enough to add that the waiver is effective only if we win the election.

On that thesis, why doesn’t the Union waive the initiation fee for everybody and not just card signers?

Norton J. Come:

Well, I think that the reason that the union — well, some do, I might say.

But generally, the reason why they do not is that they want to speed up the election campaign and get a quick election because the longer the campaign may be dragged out, not only the more expensive may it be but the more likelihood for other factors entering into the picture.

But the waiver serves the legitimate function as the Second Circuit pointed out in the (Inaudible) case which was solely a current case, I might point out, there was no election there.

That the waiver serves the legitimate purpose of removing what might have been an artificial barrier of the union membership namely, making employees pay before the Union has not only done anything for them but before the it’s even certain that they’re going to be there when they are going to be their bargaining representative.

Now, I might say that the DIT-MCO decision of the Board was approved by the Eight Circuit, and it was also approved by the Ninth Circuit in the Turner case in which it was also applied.

The Sixth Circuit here disapproved of the DIT-MCO decision largely as we read their decision because they felt that they had been locked in by their earlier decision in Gilmore.

Well, they went beyond that Mr. Come.

The facts of this case indicates that Lobue and Gilmore, Gilmore enforced Lobue.

Norton J. Come:

Well, I —

By sound decisions.

Norton J. Come:

I agree that they did go beyond that and I’m not resting solely upon that but —

I don’t know, I have difficulty, I read your brief there, I can’t read Gilmore, and your decision there is saying they were locked in by Gilmore.

But I would say, frankly and candidly, I thought Gilmore and Lobue were rightly decided and DIT-MCO wasn’t.

Norton J. Come:

I think that they unquestionably came out with that holding.

However, in distinguishing DIT-MCO in that is the Eighth and Ninth Circuit’s opinions, they pointed out that neither of those cases was the Court called upon but overrule a controlling precedent of its own.

And then earlier, they had sort of a thought that we were urging that merely because the Board had overruled Lobue, that ultimately —

What year was Lobue?

Norton J. Come:

Lobue, I believe was in 1954.

And DIT-MCO?

Norton J. Come:

DIT-MCO was in 1967.

Thirteen years of changed membership?

Norton J. Come:

I believe so, Your Honor.

But it’s twice yes.

Norton J. Come:

Now —

You really suggest that the hook there in the offer that “if the union wins, membership will be waived” they’re just meanings.

Norton J. Come:

That is correct, Your Honor.

Although the Union must think it’s an effective device, that wouldn’t do it?

Norton J. Come:

Well, I think that they —

The point is that they wouldn’t just do this for nothing.

They think it’s effective enough to draw the attention to this and get favorable action of some employees?

Norton J. Come:

Well, I think that they believe that to waive an initiation fee is effective for the reason it’s a legitimate reason that I indicated.

To get the 30 % and get the —

Norton J. Come:

I get the 30% and there were no —

In short, some people would vote for the Union who otherwise might not vote for the Union?

That’s why they do it.

Norton J. Come:

Well, there’s some of that but there’s also a factor, a large factor of those that may be favorable to the Union but are hesitant about signing because they don’t want to incur —

I would include those who didn’t — what I’ve said.

I mean —

Norton J. Come:

However, granted that you have these complex factors.

I submit that the Board would cease an awful lot of these election cases is not unreasonable and in concluding.

What do you suggest as to stand of the judicial review with that judgment of Board?

Norton J. Come:

Whether the Board was arbitrary and capricious.

That’s the only standard?

Norton J. Come:

Yes, Your Honor, because I think that it is within the area of the Board’s discretion to establish the safeguards and standards for conducting a fair representation election.

Getting back to the point that I was making, that the likelihood that at least, this is at the Board’s judgment, which I submit is a reasonable one.

That someone who was opposed to the Union would sign a card because of the inducement that initiation fees would be waived and then vote “Yes” for the Union merely to protect that contingent benefit is remote enough for the Board to have discounted for the simple reason that the voter who must be assumed to have some element of reason and be aware of the real world.

It cannot help but recognize that a “Yes” vote would not only, it might save him the disability of having to pay initiation fee or it would ensure that he would get a bargaining representative that he doesn’t want.

And secondly, that the initiation fees are only the beginning because much more significant is a requirement of having to pay periodic dues whenever other assessments the Union might impose.

So, for those reasons, I submit that the Board could reasonably conclude that there was no improper inducement here.

Now my brother is going to seek to defend the court’s decision on the further ground here that the Regional Director did not conduct an adequate investigation of the election objections.

Mr. Come, before you get to that, was the Board switched from Lobue to its present rule accompanied by any rulemaking or notice or was it simply done by adjudication?

Norton J. Come:

It was done by adjudication, Your Honor.

Has the Board ever had a case of the employees who vote against the Union and who were then charged of the member initiation fees later who may declaim that this couldn’t be done, that this was discriminatory by the Union?

Norton J. Come:

Not to my knowledge.

Warren E. Burger:

Would it be reasonable to say that if an employee wanted to play it both ways, he’d sign the card, so as to hedge in that direction and then vote against the Union?

Norton J. Come:

Yes, Your Honor.

Warren E. Burger:

Well then, if you concede that then hasn’t the offer of the waiver of the initiation fee influenced the outcome, in his case?

Norton J. Come:

I don’t know that you could say that it has influence on it.

It might be carved.

Warren E. Burger:

Influenced, I was using it for time, sudden impact on the result.

If you have this unique and unusual fellow, it would be unusual to plan it this way.

And if there are enough of them and then we ended up with the majority of cards.

We wouldn’t even have an election?

Norton J. Come:

What’s that Your Honor?

If you have enough of them, you wouldn’t have an election?

There is influence which the Chief Justice speaks were sufficient so that the organizer ended up with the card majority.

We might not even have an election.

Norton J. Come:

Well, if you’re referring to the Gissel decision where the Board would give a bargaining or they’re based upon cards that the —

Then there is a possibility as I’ve said.

Norton J. Come:

Well, the Board does not ordinarily give a bargaining order based upon cards have on an employer around for a labor practices.

Gissel said — Gissel indicates that the employer wants that he can have it (Inaudible).

Norton J. Come:

That is correct, Your Honor.

Mr. Come.

Norton J. Come:

Yes, sir.

I don’t want to go in any great detail at this late point of the argument but, what substantial evidence do you find in this record just to contradict the testimony of the two witnesses who said they weren’t coerced and that this charge was characterized as a final penalty.

McKnight, the fellow who was alleged to have done the coercing was not put on the witness stand.

And that the Hearing Officer at the end of the evidence reproduced in the appendix, have stated, as I read his testimony on page 79 and 80 that he has filed an input to McKnight on and he said, “I’m not going to take the testimony of Mr. Smith” which is clear as I say, Smith was offensive.

Norton J. Come:

First of all, Your Honor, I believe that the testimony of individuals as to whether or not they were coerced or not even after the event both the Board and the Courts recognized this highly subjective and a very little provident value.

The test is whether or not the circumstances are such that you can objectively include whether it’s reasonable to believe that there was coercion or not.

And the more I submit that the circumstances here warrant that influence.

Now, with respect to the statement of the testimony of Bridgeman and Rice, who are the two that the company relies on here.

The Hearing Officer follow on that Bridgeman’s testimony was no probative value at all because of his propensity to confuse fine assessment and initiation fee.

And therefore based upon his testimony as a whole, he found no basis for believing that there had been a threat or a fine either before or after the election petition.

With respect to Rice, the Hearing Officer found and credited his statement and McKnight had mentioned the word “fine” prior to the filing of the petition but then he went on and define that Smith’s explanations at the organizational meetings which were held shortly thereafter completely clarified the Union’s position.

I just wanted to say that with regard to the failure to conduct an adequate investigation, the Court of Appeals examined that contention and found no merit to it.

Since my time is up, I have to refer the Court to our further position on that.

Warren E. Burger:

Very well, Mr. Come.

Mr. Solner.

Robert J. Solner:

Mr. Chief Justice and if the Court please.

My name is Robert Solner.

I’m the attorney representing Savair Manufacturing Company.

They’re a small manufacturing concern located in Warren, Michigan.

There are two issues in this particular case and of course the first issue which the counsel has gone through in detail in the facts and I don’t want to be redundant going over those facts.

Now, the main issue of this case and that’s why we’re here is because of this conflict among the Circuits.

This issue, as I see this issue, involves several cases that involve a little different set of facts in each one.

We talked about an authorization card in one.

In Gilmore, they said the card was immaterial.

Others they talked about what was said by the union representative as to the outcome of the election and the effect.

In our particular case, here onto this set of facts, there was an authorization card.

It’s very clear for the record at the time that the Hearing Officer had testimonies on one page there that this was an authorization card and it actually was an application to join the Union.

Why wasn’t that it put on evidence, Mr. Solner?

At the time when we were here before the Hearing Officer.

The Hearing Officer, as I recall for the record asked for someone had when no one had one with them. However, the representative of the Union, Mr. Smith said that it was a standard authorization card.

I’ve never seen —

I don’t know what a standard authorization card is?

Robert J. Solner:

I haven’t seen one, so I didn’t know myself but they explained what it said.

And it said something to the effect that “I authorize the MESA to act as my representative to bargain with” and there was a blank space and they fill in the company name and “That I hereto abide by and make application to join the Union.”

And in the testimony of Mr. Smith, he made it very clear because I cross-examined him on this to whether this man could join the Union before the election.

Because they were getting these cards signed up and we’re not talking about pre-petition for the petition was filed for the election.

These were cards that were signed after the petition and an election have been scheduled.

They were getting cards signed?

I asked him if he had a card signed if he could join, this man could join the union.

He made it very clear that there was merely an application until such time as they have a contract.

They could not belong to the union.

And once there they could not belong with the union.

He said, the only ones that he allowed to belong with the Union were they withdraw a card from a shop where they have had a contract or at the representatives of the union who were members, who were dues paying but they were actually business agents in that sort.

But the card itself was merely an application to join the union and it was this authorization card.

But what if the Union never act on that application?

Robert J. Solner:

Well, I assume as soon as they would negotiate a contract, then at that point, they would then say that all these people who signed cards don’t pay any initiation fee.

They become members and of course, they close shop and they’ll say that you have the check up system in the shop for the other employees to withhold of their initiation fee and their dues.

And those who have signed the card will get a waiver.

Of course, I am not in disagreement in the Respondent with the right of the Board of course to have a blanket waiver of initiation fees.

They don’t themselves in a fear with the choice.

The Union was to waive for all, it’s equal to all, and all participates the same way.

I agree with the Board’s position in that regard.

However, in this particular case, this was where they obtained the card on economic inducement and based it on the outcome of the election.

For those people that signed the card and I’d say that’s a moral commitment that that person is asked to make based on an economic inducement.

In other words, he has him sign the application, the union representative and say now, “Okay, you made a commitment to have these union representatives.”

The side of this card is definitely, I think, material to the union’s position of wanting this commitment because it leaves the employee absolutely no alternative.

He cannot afford not to sign the card because if he doesn’t sign the card and the Union is elected then he is penalized.

Secondly, if he doesn’t show an interest for the Union when he is asked to sign a card, then he may feel or after the union later when they get in and say, “This man didn’t have the interest.”

Robert J. Solner:

And there’s a great deal of pressure put on these fellows between the time that the election was scheduled and that final date when that election was held to sign those cards because several of them signed it right at the last day just as a hedge.

Mr. Solner, do you agree with Mr. Come as to the standard of judicial review of the Board’s determination that this falls outside the line inclusion?

Robert J. Solner:

No, I do not agree.

What’s your view of the standard of judicial review?

Robert J. Solner:

Well, I think that they’ll have conditions have to be equal for both parties.

In other words, they have to be equal for the employer or the union.

But they have to be clear of a free choice.

That must be an argument then that coercion nevertheless always exists?

Unless everyone, all the employees have the same?

Robert J. Solner:

That’s correct.

That’s what I’m —

As a matter of law, then again.

Robert J. Solner:

That’s my position would be.

That it have to be a matter of law.

That it should be free, they should have — that all parties should be equal in that treatment.

And that there’s no difference if the — I cannot picture an employer being able to be put in a position of saying, we want to show you our strength so we’ll ask a man to come off the line, come in and sign a petition to say that we don’t want the Union. (Voice overlap)

That employee would never exercise it.

Would you say that any other constructs of the Act is wholly foreclosed by its language and legislative history?

Do you think there’s no room for having a different view of what coercion is?

Robert J. Solner:

Oh, no!

Certainly, they have, the Board has the right.

I’m not disagreeing with the law.

Let’s assume that there is a room for two views, two constructions of the Act under its language and legislative history.

Let’s assume that there are two views and the other Board having held one view for 13 years, decide it wants to hold the other view, the other reasonable view.

What are we suppose to do about that?

Say that it’s unreasonable but we have just — by definition it says it might be reasonable?

Robert J. Solner:

Well, If the Board is charged with the duty to conduct an election under conditions which give employees the freedom of choice and if the Board is setting those standards does that, then I assume that the Court can interfere.

What I’m saying under these facts however, is that they didn’t give them that.

But don’t we have to say that that there’s no other view — no other tenable view of the act, construction of the Act before we can disagree with the Board here?

Is that the standard or not?

Robert J. Solner:

I think so.

Yes.

You have to interpret the Act to say that this Act gives a certain obligation on that Board.

And if that Board doesn’t follow the Act and isn’t following the Act, then it’s a matter of law that they’re not following the Act.

Warren E. Burger:

Well, if a reviewing court and the judges of the reviewing court reach the conclusion that it was contrary to ordinary human experience to say that this conduct on the part of the Union did not influence the result then it would be, it would follow; it was an arbitrary action and could be reversed.

Robert J. Solner:

That’s correct.

Warren E. Burger:

The fact that they once have one view and now took another doesn’t make both views permissible, does it?

Robert J. Solner:

Under the facts and circumstances of the cases in which they reversed themselves, I’m inclined to think it could.

It could because they do say in effect that one is a card and doesn’t affect the card once that it does.

I think you have to take a general principle and tie the two together to the case to understand which way they’re going.

I don’t think that Lobue and DIT-MCO have completely reversed each other.

I don’t.

I think that if you study the facts of each case, they’re different enough that I think the Board in dictum they said in effect they are reversing it themselves.

But I don’t think they were really doing it for that reason.

I think it was based on the facts of the two separate cases.

But I think you’re in a position — this Court is in a position where it have to determine if they’re going to set a full principle of what can be done or what cannot be done by the Union in regard to an election.

They have to set down whether the Board is acting arbitrarily.

They have to make that decision.

And I see that there is as certain commitment that means something would having to sign that card that the NLRB wants to ignore that and say, “Well, a man can sign a card and yet he can vote against the union and the signing of the card means nothing.”

I think the fact that he is coerced into signing that card is some kind of a moral principle or he may not want to abide by but he has to, to protect himself and it may be against his own brain or against his integrity.

And I see that’s not giving him a free choice and the full freedom in the right of having an election.

Secondly, there’s a good question as to whether or not the obtaining of this card isn’t a violation of the National Labor Relations Act, is an unfair labor practice in itself.

Under Section 158 of the National Labor Relations Act provides there, “The expressing of any views, arguments or opinions, or the dissemination thereof whether in written, printed, or graphic or visual form, shall not constitute of the evidence of an unfair labor practice under any of the provisions of this subchapter, if such expressions contains no threat of reprisal or force or promise of a benefit.”

Well, he is asked to sign something here and he certainly is either under the threat of reprisal in my set of facts because he was told the threatening of the fine, or he was given some kind of a benefit.

And if it’s an unfair labor practice then it certainly doesn’t give the man the freedom of choice and I think for that reason that there’s another reason that this is an arbitrary decision on the Board in coming to the conclusion that they did.

Now, there’s a second issue in my case that’s a secondary issue.

However, it’s one that I’m very concerned with because I was involved in it and I think the Regional Director has a certain obligation to investigate and make sure that this election is held and that this election is held under the conditions that there is freedom of choice.

We filed objections to the election for objections and at the hearing, there was no evidence produced as to objections number three as to certain promises were given to the employee.

There was a letter received by the District Director of the NLRB from an employee in which he said that he alleged a certain conduct that have been set forth was not necessarily be grounds for setting the election sides, as the buying of this or the union’s promises of what it would accomplish if it were to be selected as the bargaining agent.

They replied to that letter and said in effect that there is — Mr. Ridley was not a party of the proceedings and his objections were not timely filed, and that what was in there appeared to be extraneous to the objections filed to the company.

Robert J. Solner:

Well, I think that there are two things that they violated there.

One, I don’t think they can hide it behind the technical requirement that the party be the Company or the Union to file objections.

I think that once they have had a letter like that, that alludes directly to the objections that they should bring that person in or at least allow him or tell him or notify him that he can appear at that hearing.

I think there’s a second obligation, on their part, to notify the Company or the Union of this objection.

And that they — of this employees — so they can investigate it at that point to determine whether in fact, there was some conduct that went on that should be investigated to make sure that there was a fair and an impartial election.

And since there was no investigation, they did not allow this man to appear in effect by not telling that he had a chance to appear that they cannot certify this Union as the bargainer.

I thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.