National Labor Relations Board v. Warren Company, Inc.

PETITIONER:National Labor Relations Board
RESPONDENT:Warren Company, Inc.
LOCATION:

DOCKET NO.: 27
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

ARGUED: Oct 20, 1955
DECIDED: Dec 12, 1955

Facts of the case

Question

Audio Transcription for Oral Argument – October 20, 1955 in National Labor Relations Board v. Warren Company, Inc.

Earl Warren:

Number 27, National Labor Relations Board versus The Warren Company.

Mr. Findling.

David P. Findling:

Thank you, Your Honor.

May it please the Court.

The National Labor Relations Board has brought this case here on certiorari to review a decision of the Court of Appeals for the Firth Circuit, which dismissed the Board’s petition to adjudge the Warren Company in contempt of an enforcement decree.

The enforcement decree had been entered in the conventional enforcement proceedings in the court below under Section 10 (e) of the National Labor Relations Act, and among other things required the company to bargain collectively with Lodge 46 of the Machinists Union.

The court below had recognized in the enforcement proceedings that under the applicable substantive law and the decisions of this Court, it was obliged to enter the enforcement decree requiring bargaining with the union, despite the union’s inability to maintain its majority membership among the employees after the refusal to bargain and other unfair labor practices.

But the Court held in the contempt proceeding that the different consideration, and that’s a quotation from the Court’s opinion, the different considerations applicable to contempt as distinguished from enforcement proceedings committed it in its discretion to accept as a defense in the civil contempt proceedings, the lost of majority which it had recognized was not a defense to the entry of the enforcement decree.

We think that in taking this position, the Court exceeded the permissible limits of its legal discretion and that in the circumstances of this case, the Court was found to give effect to the enforcement decree by compelling obedience to it through the imposition of civil contempt sanction.

The facts as they are set forth in the Board’s petition to adjudge the company in contempt was substantially admitted in the company’s answer, and may I think the — fairly summarized as follows.

After the usual unfair labor practice proceedings under Section 10 of the Act, the Board found on June 30, 1949, that the company had violated Section 8 (a) (5) of the Act by refusing to bargain with the union.

Professing a doubt as to the union’s majority status when in fact it had no such doubt and at the same time, making an election to determine the employees true wishes impossible by dismissing four — by discharging four of the eight employees in the unit because they had joined the union and by engaging another acts of intimidation and coercion with respect to the employees unionization.

After the Board’s decision order issue, the company took steps to comply with the reinstatement requirements as the payment of back pay to the employees discharge.

It also post the notices required by the Board’s order.

But it did not comply with the bargaining requirements of the order.

In that respect, as the undisputed fact show the company despite repeated request by the union for bargaining conferences met with the union only once during this period.

That was on September 8, 1950 when the union submitted a contract proposal and the company took no position on it except to say that it would consider the proposed contract and let the union know whether the contract was acceptable and if the contract was not acceptable, it would submit counter proposals with respect to the provisions that were unacceptable.

This promise, the company never kept thereafter despite the union’s repeated request for a statement of its position on the contract or prepare the meetings.

Instead, on August 6, 1951, the company wrote the union that only two of the eight employees comprising the union — the unit continued to be employed in the plant, but the company therefore doubted the continued majority status of the union and that it would be glad to meet on August 16 and here I quote from the letter which is at 41 of the record, “To discuss this feature and what proof you have of the majority status.”

At about the same time on August 14, the Board instituted the enforcement proceedings in the court below to which the company responded that although there were sufficient evidence in the record upon which to face the Board’s findings and order, the order should nevertheless not be enforced because — and here again I quote, and this is at pages 1 and 2 of the record, “The order has been obeyed in all of its provisions and because of changed condition, not attributable to respondent’s conduct and the references obviously is to the turn over among the employees in the unit normal cost of business.”

The union does not now represent a majority in this small unit and respondent should not be required to bargain fairly with it.

The court below rejected that defense in the enforcement case principally on the authority of this Court’s decision in National Labor Relations Board against Mexia Textile Mills in 339 U.S.

The Court pointed out that in that case, this Court had expressly ruled that compliance with the order did not affect the Board’s right to an enforcement decree in as much as the Act contemplated that there be immediately available to the Board, and I’m reading from the Court’s opinion, “An existing Court decree to serve as a basis for contempt proceedings in the event a renewal of the unfair labor practice occurs after the enforcement order.”

In its opinion on enforcement, the court below also pointed out that the same case settled the doctrine that the union’s allege lost and I’m reading again, “May not be urged as a defense in an enforcement proceeding.”

And so on August 7, 1952, the court below entered its decree enforcing the Board’s order including as I’ve said, the bargaining provision.

The union thereupon immediately renewed —

Felix Frankfurter:

What date?

David P. Findling:

— on certain —

Felix Frankfurter:

What was the date?

David P. Findling:

August 7, 1952, Your Honor.

David P. Findling:

The decree is at pages 3 to 7 of the record.

Felix Frankfurter:

I thought June 24.

David P. Findling:

That’s the date of the opinion, Your Honor.

The decree —

Felix Frankfurter:

Date of the judgment.

David P. Findling:

Date of the judgment, the decree was entered —

Felix Frankfurter:

A decree is a different thing with judgment?

David P. Findling:

In the Fifth Circuit, Your Honor, they’re separate document.

The union, thereupon, immediately as I’ve said renewed its request for bargaining.

But the company persisted in its refusal.

And on August 26, 1952, which was only 19 days after the decree had been entered and of the time when of course there’d been no further meetings or bargaining between the parties.

The company wrote a letter to the Board with a copy to the union in which it again took the position that it had already complied with the Board’s order that the union no longer represented a majority of the employees since only two of the original complement in the union continued to be employed in the plant and the company further took the position that while the lost of majority was not a defense in the enforcement case, it was a defense in further proceedings.

And again, the further proceeding is a quotation from the company’s letter.

Have there been any intervening circumstances between the date of the enforcement order and the (Inaudible) citation?

David P. Findling:

There are two intervening circumstances that the company realized then but they had not yet occurred.

They occurred later in November and January of 1953, Your Honor.

And if I may, I refer to those as I reach that point.

Thereafter, until January 1953, the company engaged in rather extended correspondence with both the Board’s officers and the union in which it profess the willingness to meet, but at the same time, continued to withhold forth right recognition from the union by repeatedly questioning the unions majority status among the men abandoning the plant by asking new proof of the union’s majority and by ignoring the union’s request for wage information in another data which the union had requested — which the union was asking for because it insisted that such information was necessary in order for it to bargain intelligently.

And finally, when on January 19, 1953, a meeting was finally arranged with the company and this was the only meeting after the Court decree and only the second meeting between the parties in the entire history of their relationships since the Board’s order was entered in June 1950.

The company flatly took the position that it hesitated to bargain with the union on the matter of a contract because of its doubts as to majority and that asked the union to consent to a Board election to redetermine its status as the employees agent.

The union refused to do so in substance taking the position that under the Board’s order and the course decree, the company continued to be obliged to bargain with it.

And the Board, on March 4, 1953, sustained the union in this position in effect and dismissed a petition for a new election and this is one of the circumstances Mr. Justice Harlan, the petition for a new election.

Dismissed a petition for a new election which the company had filed on January 27, 1953 and which it had supported by a letter dated November 3, 1952 and that’s the second new circumstances, the receipt of this letter from November 3, 1952 which was signed by five of the six employees then in the unit and which said in effect that the employees did not want the union to represent them and asked that the union be — be certified as their representative.

So, I say that was attached to the company’s petition to the Board for a new election which petition of the Board rejected.

Now, despite this rejection of the company’s petition, the company refused to answer still another request by the union for bargaining.

The Board write an order on that?

David P. Findling:

I beg your pardon?

The Board entered an order on —

David P. Findling:

The — the refusal was in the form of a letter to the company which appears at page 70 — 70 of the record.

This is down near the bottom of that page.

That’s a customary way of the Board to meet (Inaudible)

David P. Findling:

Yes, Your Honor.

The public hearing.

Felix Frankfurter:

70 isn’t it?

David P. Findling:

Page 70, yes, Your Honor.

That letter that starts — so the Board had considered your request for review of the original direct and refusal issue notice appearing in that case has sustained his dismissal of the petition in substance because you continued to be obliged to bargain with — with the union pursuant to the Board order and the enforcement decree.

Felix Frankfurter:

How do you accept that letter?

What — apart from what it said and imply that the view of the enforcement order outstanding, it couldn’t order (Inaudible) an election.

David P. Findling:

It — it means, Your Honor that because the company had not yet complied with the bargaining requirements of the order, thereby, reestablishing an atmosphere in which the employees were truly free to express their wishes as to organization.

The Board would not hold a new election.

In other words, the Board’s order and the enforcement decree continued to have vitality for purposes of compelling bargaining between the company and the union until there’d been a reasonable bargaining between the parties either to an impasse or a contract.

Felix Frankfurter:

What — what’s the theory on which the — here the case was decided by this — what’s the theory of (Inaudible) the affidavit filed by employee (Inaudible) particularly whereby it should deviate union.Is it that they — unfair labor practice greater — brought about that condition?

David P. Findling:

Yes, Your Honor.

I think it’s essentially the same theory as what’s announced in the opinion of the Court in the Franks Brothers case that —

Felix Frankfurter:

In other words, there’s got to be a visitation of the — of the elicit conduct of the employer, is that right?

David P. Findling:

That’s right, Your Honor.

Felix Frankfurter:

Does that — is that a matter of law that influence last after how long?

David P. Findling:

It last for a reasonable —

Felix Frankfurter:

(Inaudible)

David P. Findling:

— no, Your Honor, it last for a reasonable time and there are decisions of the Board that are cited in our brief Northwestern Photo Engraving for example in which within six months approximately, after the entry of a Court decree requiring bargaining, the Board processed a petition for a new election to determine the employees’ wishes.

Felix Frankfurter:

Why (Voice Overlap) case?

David P. Findling:

It did it in that case because it appeared that the company and the union had met, they had bargained in good faith, and although no contract resulted because they could not agree on the substantive terms of an agreement, the vitality of the decree had exhausted itself for purposes of that situation because by virtue of the bargaining, the prior refusal of bargain had been remedied.

And the situation was re-established in the plant when the employees were free to vote in an election without the influence of the company’s prior unfair labor practices.

Felix Frankfurter:

But — but sitting down and bargaining with the union, it is plainly wrong to represent the employee three years after the original unfair labor practice.

Was that — what bearing on that on the issue whether the influence has (Inaudible) or not?

Is that — is that a psychological statute and must continue in three years?

David P. Findling:

Well —

Felix Frankfurter:

What bearing does it have if they do agree?

Does that prove that the influence is (Inaudible)

David P. Findling:

Well, Your Honor, once — once the employer has refused to bargain, obviously there’s been an impact on the employees’ organizational efforts.

David P. Findling:

In the first place, and this Court has recognized that in Franks and in Mexia, the employees are discouraged in their organizational efforts when the employer refuses to deal with their representative.

Moreover, the employees —

Felix Frankfurter:

They may be — they may have — they may be disaffected from the union for reasons of their own?

David P. Findling:

Yes they may, Your Honor.

But it’s entirely conjectural what the reasons are.

What —

Felix Frankfurter:

But I don’t see it.

David P. Findling:

As — as long —

Felix Frankfurter:

I don’t see psychologically no matter it’s relevantly proved that the fact that they don’t bargain and the fact that they do bargain, establishes whether or not the employees are disaffected.

David P. Findling:

Well Your Honor, the point is that it may reasonably be — have a — it’s certainly reasonable from the Board’s experience to assume that when a union is rejected by the employer although the employees have already freely selected at that time.

One, the employees’ adherence to the union is discouraged, second, the union’s ability to maintain itself from the plant either by the adherence, the continued adherence of the old people or by the increments in membership from among new people is affected.

And unless the Board — and so it’s a matter of conjecture what the employees might have done, but for the unfair practice and the —

Felix Frankfurter:

Is this the — is this case a claimant from the outset that the employers were disaffected?

David P. Findling:

But the Board had rejected that claim in the unfair practice proceeding and the Court had approved it in the enforcement procedure.

Felix Frankfurter:

Very well.

Then — then the question is — and we have held that no matter what (Inaudible) the selection applied.

David P. Findling:

The last three selection if I may put it that way, Your Honor is the —

Felix Frankfurter:

(Inaudible)

David P. Findling:

Yes, Your Honor.

Felix Frankfurter:

And that in it of itself prove they’re claiming the request for an election.

And they think because presumably, the — the influence of the unfair labor practice is still operative, is that right?

David P. Findling:

That’s right, Your Honor.

Felix Frankfurter:

And I must read that from this letter.

David P. Findling:

Well, you must read that letter in light of the Board decisions on the same point including cases like Northwestern Photo Engraving to which I refer.

Felix Frankfurter:

There were three years (Inaudible) and is it a psychological fact or is it a reasonable fact in the injunctive relation that — when from the beginning there was a claim (Inaudible) the employers (Inaudible) that that’s the explanation for their disaffect of the union.

David P. Findling:

Your Honor, I — I don’t believe it’s necessary for the Board to establish that that was the very reason.

I think it’s enough that it could say that it may be the reason.

Felix Frankfurter:

But you didn’t even say that.

David P. Findling:

Well —

Felix Frankfurter:

You said nothing.

Felix Frankfurter:

You just said that we rejected it.

David P. Findling:

Yes, but in view of the applicable Board presence on the point and so on, I would say that this letter had to be read in light of the Board’s decisions on the — on the particular subject.

And so far as the three-year delay is concerned, Your Honor, I don’t — it seems to me that every one of the cases involving bargaining which has reached this Court has involved longer delays than three years.

It’s just inherent in the situation.

And if mere delay is to be the controlling fact that the Act becomes a — a merry-go-round and the employer is permitted by his own unfair refusal of bargain to create a situation in which he escapes the statutory obligation to bargain.

Felix Frankfurter:

All right.

That’s why the order is enforced.

When it comes to contempt, we’ve got a different problem.

And then the employer said, I’ve carried out everyone in correction except the bargaining.

And this is a futile (Inaudible) because I know the independent feeling of the manager that this is not their union, some other (Inaudible)

And so, you have an election and I can well understand the Board said it is our judgment on the basis of our experience that this kind of influence last this long.

And therefore, we reject it.

What I’m saying is that you can kind of form a letter.Suppose they said we think we have no power to get an election (Inaudible)

David P. Findling:

Well I don’t know.

Of course they could — we could reach a point where the letter was — was susceptible to an erroneous construction.

I don’t believe the company had any doubt as to what the implications —

Felix Frankfurter:

Would you agree (Inaudible) in a case like this.

David P. Findling:

The Board does have power to grant the election if it believes that in these circumstances of the case of free expression of employees which it is possible.

But it’s been the Board’s position consistently sustained by this Court that until there has been some recognition in bargaining with the union in compliance with the statute, the circumstances don’t permit the pre-election ordinarily.

Felix Frankfurter:

I (Voice Overlap) fact of this thing.

This is an awfully futile performance because the company could sit down, bargain with the employee an (Inaudible) they were done in good faith sided bargaining with the employees (Inaudible) in anything what they see in the union and not to allow the election.

You then have to have an election, wouldn’t you?

David P. Findling:

Your Honor, I believe we could require the company to bargain with the — I’m assuming when, Your Honor said the union, it’s the same union but different compliment of employees.

The Board could require the employer to bargain with the union which had been selected by the employees at the last time the employees were free to express a choice as the unionization free to express a choice of the employer improper influence.

Now here, that situation was never created because the company never met the bargain with that union.

Felix Frankfurter:

I understand.

David P. Findling:

Now —

Felix Frankfurter:

Of course this kind of situation (Inaudible)

David P. Findling:

I’m sorry.

I don’t understand that, Your Honor.

David P. Findling:

I think it would.

Felix Frankfurter:

You will come before the Court involving six people?

David P. Findling:

Oh Yes, Your Honor.

The Board’s new jurisdictional standards to which I think, Your Honor is referring don’t turn on the number of employees in the plant.

It turns on the —

Felix Frankfurter:

(Inaudible)

David P. Findling:

— flow of commerce, flow of goods and so on into an outer (Inaudible) of the state.

Felix Frankfurter:

(Inaudible)

David P. Findling:

Not — not vested in number of employees, Your Honor.

Now, the Court below rejected the — dismiss the Board’s petition to judge the company in contempt on June 30, 1954.

The Court held that the union did lost its majority status even before the enforcement decree and that while such a loss was not a defense in the enforcement case as I’ve said, it was a defense in the contempt proceedings because and I’d like to quote here again from the Court’s opinion, “In such a proceeding, the Court determines for itself what order will best serve the public interest and at the same time vindicate its own decree and it will not in disregard of the plain language of the Act.”

And this is at record 82 that employees are entitled to choose their own bargaining representative and may not have one not of their own choosing force upon them issue a contempt order which has the effect of doing so.

And Your Honors, I believe that Mr. Justice Frankfurter’s questions to me and my answers to him have indicated our disagreement with the Court’s view that to require the company to bargain in the circumstances of this case would be repugnant to the Act because it would be to impose a representative on the employees not chosen by the mandate of the plant.

And so I want to address myself in the few minutes I have to the second position that the Court of Appeals took.

That is that in the — in the contempt case, it had a — an unlimited discretion to determine for itself whether or not the loss of majority should be accepted as a defense.

Of course, we think the Court was wrong in that and the principle case on the point is of course the Union Tool against Wilson in 259 U.S.

In that case, this Court pointed out that even in civil contempt proceedings; the power of a Court is not the discretion of the Court, is not so unlimited that it can refuse to apply well settled principles of law to — a conceded state of facts.

And this — this Court later pointed out in the Penfield cases — in the Penfield case and Jacksonville Paper as cited in our brief that the grant or withholding of remedial relief in civil contempt is not wholly discretionary with the judge but must be measured by the private or public rights that the law under decree seek to protect.

Now here, the statute from which the Court of Appeals derived its enforcement powers in the first place was designed to prevent in remedy unfair labor practices.

And the machinery which Congress has set up to achieve that purpose contemplated coordinated action of dual responsibility on the part of the Court as well as the Board.

The Court’s responsibility under the statute was to apply its injunctive and contempt powers, the only sanctions that the statute imposes to compel obedience to proper Board orders which have been enforced.

But the — the Court’s discretion therefore we say was governed by those standards and by this legislative purpose and policy and by this responsibility which Congress had imposed other the Act.

Felix Frankfurter:

Your plain remedy is to the (Inaudible) disobedience of the Board from the Court’s order, isn’t that true?

David P. Findling:

I would leave out the word up to it, Your Honor.

Although, we did contempt there was a criminal violation but that’s not here.

Felix Frankfurter:

I’m not clear about that but was it accurate and if it, what are they?

David P. Findling:

I believe myself that it was, Your Honor.

But that’s not the question here.

The question here is whether civil contempt sanctions —

Felix Frankfurter:

I — I want to know why the —

David P. Findling:

— had to be applied.

Felix Frankfurter:

— why the real proceeding — the real proceeding claim to be by similar proceeding against the individual order.

That’s why the corporation assistance done by competing.

David P. Findling:

We — we joined allegations in criminal contempt.

Felix Frankfurter:

Do you think this is about the (Inaudible) enforcement and what —

David P. Findling:

I said — we brought criminal proceedings as well.

We asked the Court to initiate them, the Court refused and we didn’t bring that aspect of the case here.

Felix Frankfurter:

You would have to initiate not the the Court.

David P. Findling:

Well we — in our petition, we alleged a willful disobedience (Voice Overlap) —

Felix Frankfurter:

Why is it (Voice Overlap) —

David P. Findling:

Well, Your Honor I —

Felix Frankfurter:

In refusal — if you’re right of the distant refusal to sit down and do what you’re told to can’t be — on which it presents —

David P. Findling:

Well Your Honor, if it’s willful, we’ve got an a fortiori case as to civil, I would say.

Felix Frankfurter:

I’m asking you whether (Inaudible)

David P. Findling:

As I say in my own view, the view of the Board was that this was a willful disregard.

That’s why we brought criminal contempt proceedings as well as civil.

The Court saw fit to dismiss the criminal as well as the civil of course.

We didn’t take the criminal case here because for one thing that different questions approved involved different burden.

And we’re interested primarily in enforcement of the statute, not in the — not in the imposition of applying some penalties for prior misconduct.

It’s one way of getting obedience, of course.

Felix Frankfurter:

Do you think it’s the most effective way of getting to (Inaudible) —

David P. Findling:

I can — I can only repeat what I said there, Your Honor that we tried it.

Felix Frankfurter:

— if you have a right to appeal from — to dismiss (Inaudible)

David P. Findling:

My — my guess is although I haven’t exhausted the cases on that we would have had — we had such a right.

The International Longshoremen’s cases here involving criminal on our petition which the Court has enacted on involving criminal — criminal contempt case.

Felix Frankfurter:

Can’t be — can’t be not willful because (Inaudible)

David P. Findling:

Well, except that I don’t believe we have to prove that it’s willful.

It’s enough that there was a decree.

It was not obeyed for company’s motives state of mind when it failed to comply is irrelevant.

We’re entitled in civil contempt to have the decree obeyed by the imposition of civil contempt sanction.

David P. Findling:

And whether it’s also criminal, I think it’s not relevant.

Felix Frankfurter:

It is the policy of the Court, no matter what showing is made and in fact it turned over in the — in the labor board or an internal (Inaudible) within the union, I don’t know any union with rivalry or what.

Is it the rule of the Board never to grant or a petition for an election when there is disobedience (Inaudible) on the claim that the union is really (Inaudible), is that the policy of the Board?

David P. Findling:

I — I believe that except in extraordinary circumstances, perhaps the kind of circumstances to which Your Honor himself referred in the Brooks case as exceptions to the normal rule prior to the amendments to the Act that the Board would not hold a new election.

I think it’s fair to say that certainly a — the mere change in personnel in a plant in the normal course of business would not warrant holding a new election, because as I’ve said, the experience shows that the refusal to bargain has had an impact on the employees.

And if the union had been accepted in the plant in the first place, it’s fair to assume that it would have had a chance to get adherence from the new man and so on.

It’s a conjectural situation.

Felix Frankfurter:

No, it has nothing to do with that problem.

David P. Findling:

I would say the time would never be effective.

But certainly not the time involved in this case.

In this case, with the 19 days of the decree, the company was asking the union to reestablish its position among demand in the plant.

Earl Warren:

Thank you, Mr. Findling.

Mr. Weekes.

John Wesley Weekes:

May it please the Court.

The opinion of the Fifth Circuit is the most forceful and the most persuasive argument that could be made on behalf of the respondent in this case.

The lower court points out that different considerations apply in an enforcement proceeding and in a contempt proceeding.

In an enforcement proceeding, the Board is entitled to a decree despite prior performance that in a contempt proceeding, the Court points out that it is the judge and the judge alone of the facts and the judge of what will best vindicate its own decree and serve the public policy.

It points out that it is the judge of the respondent’s acts and attitude.

And of conditions arising after the enforcement decree between that and the petition for contempt that in the case at bar, conditions had changed between the enforcement decree and the petition to contempt that through no fault of the employer, and so the Court found.

There had been a depletion in the ranks of the union adherence that five of the six employees involved had notified the employer that they no longer wish to be represented by a union that this was voluntary, not instigated by their — by the employer in any way.

Then the employer —

How did the Court make that finding?

Was there a hearing before it?

John Wesley Weekes:

Was there a hearing before the Court?

Yes.

Or was it just on the — on the record that’s presented?

John Wesley Weekes:

No, sir.

There’s a hearing before the Court on the contempt issue.

On the Court of Appeals.

John Wesley Weekes:

Yes.

John Wesley Weekes:

This Circuit had a hearing.

The witnesses came and testified?

John Wesley Weekes:

No, on the record.

The record was —

Allegation —

John Wesley Weekes:

That’s right, and by affidavits and —

No — No dispute about it.

John Wesley Weekes:

No, sir.

The employer petitioned the Board to conduct an election to determine fairly the wishes of the employees.

They had requested time and again of the union, the opportunity for an election to determine through secret ballot what the wishes of the employees were.

This request made to the National Labor Relations Board for an election to determine by secret ballot.

The majority status was flatly denied by the Board.

Now these were the facts as found by the Court, the judge of the facts in a contempt proceeding.

And the Fifth Circuit said, “It would not hold the respondent in contempt where it appear that the Board, by refusing to lend its assistance to a decertification election is responsible for the situation as now exist.

In the opinion of the Court, a contempt adjudication would result in a violation of the Act and of the public policy for which it stands.

Now, the Legislative History of Act of 1947 which certainly confirmed the belief that the Act and the amendments were passed not for the protection of the employer, not for the protection of the union but for the benefit of the employee and him alone.

His right to participate in union activities or to refrain from such participation was to be safeguarded at all times.

And even before the 1947 Act, the Courts frequently decreed enforcement condition upon an election to be held by the Board to determine the majority staffs in view of change conditions.

As early as in 1938 with the Second Circuit in the Remington (Inaudible) case said that in granting enforcement — in granting enforcement that it conditions change or had changed, the employer should challenge the power of the union and must invoke an inquiry of the Board if it did not bargain with the union.

And the Court speaking through Judge Learned Hand said, “If it does so, that is invoke the inquiry, we shall treat that to refusal that is to bargain as a contempt until after the Labor Board has certified the results.

And other courts granted similar relief where there was a good — there was good course to believe that the union no longer represented the majority.

Earl Warren:

Mr. Weekes, did the company ever bargain with the employees therein?

John Wesley Weekes:

The company furnished wage information —

Earl Warren:

No, that isn’t the question.

John Wesley Weekes:

And they bargain in conference.

They met in two occasions.

They discussed a proposed contract.

They did furnish wage information.

Now, we did not bargain or attempt to bargain to a conclusion because of the ever present thought that the union did not represent a majority.

Earl Warren:

What action did — did the company take after the Board ordered them to bargain and after the District Court in terms (Voice Overlap) —

John Wesley Weekes:

The Circuit Court.

Earl Warren:

The Circuit Court confirms the order.

What — what action did they take then toward compliance?

John Wesley Weekes:

After the Board’s order, it consisted of several parts.

It consisted of reinstatement of employees.

We did that.

There were four, I believe, four discharged employees all laid off as the record showed but the Board found that they had been discriminatorily laid off.

They were reinstated.

Their back wages were paid.

The Board notified the respondent to post notices to cease and desist from saving practices.

These notices were posted.

They — they met with the union again —

Earl Warren:

For what purpose?

John Wesley Weekes:

But the — for bargaining but expressing the doubt throughout of the majority’s status of the union.

The company felt it knew its employees, that there had been a turnover and that only two of the original compliment were left.

They felt that they’d knew the — the wishes of the employees that they didn’t want — it’s not in the record as to whether or not they were told, I can not say.

But anyway, the company was feeling the whole time that this union did not represent a majority.

Earl Warren:

So, what is your answer?

Did they — did they bargain or didn’t they bargain after the — after the order of the Court?

John Wesley Weekes:

After the order of the Court, they only met one time and I would not say that that was serious bargaining, if Your Honor pleases, yes.

It was confronted at all the times with the doubt as a majority status.And in the interval was this petition presented to the man written form by the employees stating that they didn’t want any union representing them for bargaining purposes.

Now, under the old proceedings and before the Act of 1947, the Board would not yield in its decisions and repeatedly refused to grant elections in such instances of changed conditions.

But the Congress took note of the situation under the practice and enlarged the right of petition in representation cases in the reply of the Board to hold election.

Speaking of the past practices of the Board, the Senate Labor Committee said, “Despite the absence of discriminatory language in the Act, the Board refused to entertain petitions filed by employees who wished to demonstrate that the current or a certain bargaining representative is not the choice of the majority.

The Committee bill would make it necessary for the Board to entertain petitions from the employees irrespective of the kind of the reliefs sought.

So to correct the abuses, Congress abducted the provisions of Section 9 (c) in the 1947 Act, enlarging the right of petition on the part of the employee and employer.

And it was a conference committee that reported significant changes in operations may require a redetermination of the bargaining representation.

Similarly, a substantial expansion or diminution of the working force might require special treatment.

The Conference Committee, the Senate Labor Committee, the House Labor Committee clearly expressed the mandate that an election must be held upon a petition except when and only one instance where an election had been held in the previous 12 months.

And no election has ever been held in this employer’s plant.

John Wesley Weekes:

Congress fully guaranteed that no union would be thrust on the employees by adding in the 1947 Act to Section 7 that employees might refrain from participation.

Employee shall have the right to refrain from any and all of such activities.Congress was positive in its purpose to protect the employee and give expression to his will.

Now, the facts presented relied upon by the Board or the — in cases relied upon the — by the Board are clearly distinguishable from the facts in the case at bar.

In the Brooks case which Mr. Findling has mentioned, there has been an election in which the union won eight to five.

One week later, there was a change in heart on the part of the employees.

There had been an election.

There was no election in the case at bar.

In the Brooks case, there was no petition for decertification.

In this case, there was.

In the Brooks case, this Court pointed out the employees or employer should submit the grievance to the Board and petition for relief.

This we did.

And in the great (Inaudible) case which it cites that is under an old statute and did not contain the provisions of Section 7 and 9 (c) (1) and therefore we contend it’s inapplicable.

And we say that it may be assumed that this practice of the old Board under the old Act was under review by the Congress in the writing of the 1947 Act and was the practice at which it was striking.

Now, we contend that our course of conduct had been repeatedly approved in the Fifth Circuit and in other courts as we have cited in our brief.

The lower Court did not abuse its discretion in dismissing the contempt petition.

It said, “Under these circumstances, we think that the Court, instead of vindicating would (Inaudible) itself and its own decree and do violence to the Act if it ordered the employer to force upon its employees as bargaining agent, a union, not (Inaudible) merely because some six years before, the Board had ordered the employer to recognize it as bargaining agent for its then employees.