1. Substantial evidence sustains a finding by the National Labor
Relations Board that a particular union was the choice of a
majority of employees, as bargaining representative of all at a
time when their employer refused to deal with it as representative
of employees who were not members of the union. P.
309 U. S.
357.
2. Employees in a plant agreed individually with the employer
not to strike or to demand a closed shop or a signed agreement with
any union, also for arbitration as to wages and hours, but that the
question of the propriety of an employee's discharge should in no
event be one for arbitration or mediation. The contracts were
procured with the aid of a committee of employees which was created
for that purpose, and dominated, by the employer, and retained
thereafter no function other than that of joining the employer in
selection of an arbitrator.
Held:
(1) That the contracts were in violation of the National Labor
Relations Act, and were appropriate subjects for the remedial
action of the Board authorized by § 10 of the Act. P.
309 U. S.
359.
(2) An order of the Board precluding the employer from taking
any benefit of the contracts and from carrying out any of their
provisions the effect of which would be to infringe rights
guaranteed by the Act was valid, although the employees who made
the contracts were not parties to the Board's proceeding. P.
309 U. S.
361.
(3) Such order does not foreclose the employees from taking any
action to secure an adjudication upon the contracts, nor prejudge
their rights in the event of such adjudication. P.
309 U. S.
365.
(4) Section 10(a) and (c) of the Act commits to the Board the
exclusive power to decide whether unfair labor practices have been
committed and, within the limits prescribed in that section, to
determine what action the employer must take to remove or avoid
their consequences. P.
309 U. S.
365.
(5) A provision of the order requiring the employer to post
notice that the contracts with individual employees (who were not
parties to the proceedings) are "void and of no effect" should be
modified so as to say in lieu that the contracts were made in
Page 309 U. S. 351
violation of the Act, and that the employer will no longer
offer, solicit, enter into, continue, enforce, or attempt lo
enforce such contracts with its employees, but this without
prejudice to the assertion by the employees of any legal rights
they may have acquired under such contracts. P.
309 U. S.
367.
(6) The Board has jurisdiction to deal with violations which,
though not set up in the charge invoking its action, § 10(b), are
continuations of violations there alleged, of the same class and
for the same object. P.
309 U. S.
367.
104 F.2d 655 affirmed with modification.
Certiorari, 308 U.S. 535, to review a judgment for the
enforcement of an order of the National Labor Relations Board.
MR. JUSTICE STONE delivered the opinion of the Court.
Apart from the sufficiency of the evidence to support an order
of the National Labor Relations Board, the questions of importance
presented for our decision are whether the Board has authority to
order an employer not to enforce contracts with its employees,
found to have been procured in violation of the National Labor
Relations Act and to contain provisions violating that act, in the
absence of the employees as parties to the proceeding, and whether
the Board has authority to make its order relating to the contracts
although the unfair labor practices found to affect the contracts
were not set up in the charge presented to the Board, on the basis
of which it issued its complaint.
On August 2, 1937, the Bakery & Confectionery Workers
International Union of America, Local Union No. 405, a labor
organization, affiliated with the American Federation
Page 309 U. S. 352
of Labor, lodged with the National Labor Relations Board an
amended charge alleging that petitioner had engaged in certain
unfair labor practices in violation of the National Labor Relations
Act. After a complaint by the Board charging petitioner with unfair
labor practices had been served October 7, 1937, and after
hearings, the Board found jurisdictional facts, which need not be
repeated, and other facts which may be shortly summarized as
follows: petitioner is engaged in business in the manufacture of
licorice products which it sells and ships in commerce, employing
at its Brooklyn, New York plant about one hundred and forty
production employees. The Board found that, early in July, 1937,
the Union began to secure signatures of petitioner's employees to
applications for membership; that, on July 14, 1937, ninety-nine of
petitioner's one hundred and forty employees had signed
applications for membership, designating the Union as the
applicant's representative for collective bargaining; that the
member had increased to one hundred and nine on July 19th or 20th.
On that date, a meeting was held between representatives of the
Union and officers of petitioner at which the Union demands were
presented. The negotiations came to nothing, and were promptly
followed by an unsuccessful effort on the part of petitioner's
representatives to circulate among the employees a petition
nominating a committee to act as their collective bargaining
representative.
On July 29th, a second meeting took place between
representatives of the Union and the president and other officers
of the company at which the petitioner declined to recognize the
Union as the bargaining representative of all the employees, and
declared that it would negotiate with the Union only as the
bargaining representative of its members. The meeting adjourned
without reaching any agreement. On August 2nd, the employees went
out on strike. The plant was closed and not reopened
Page 309 U. S. 353
until the conclusion of the strike on August 25th. August 5th
had been agreed upon for a third meeting, and, on the evening of
August 2nd, after the strike had begun, the Union representatives
wrote to petitioner stating that the Union was ready to meet with
petitioner at any time or place which it would designate "in order
to mediate the dispute and through collective bargaining arrive at
a mutually satisfactory agreement." Petitioner replied, declaring
that it believed the Union had called the strike. It cancelled the
meeting of August 5th and asserted that it would not
"set any further time for negotiations until we have a letter
from you informing us as to whether or not this strike was
instigated, ordered, or approved by your Union or officials of the
Union."
Representatives of the Union denied that it had called the
strike. The Board found that the strike was the result of
spontaneous action by the employees because of dissatisfaction with
the course of negotiations between the Union and petitioner.
On August 27th, after the plant was reopened, petitioner sent a
letter to each employee requesting him to return to work on August
30th. On the same day, petitioner's representative met with three
employees who stated that they were anxious to return to work, and
asked whether they could have their own committee and bargain with
petitioner. They were informed that, if they could obtain the
authorization of a majority of the employees, petitioner would deal
with them. Thereafter, petitioner's president, at the request of
one of the three, prepared a form of letter designating a committee
of workers as the Collective Bargaining Representatives of the
employees and revoking the authority to any other organization. The
letter was signed by the members of the committee and one hundred
and ten other employees, and returned to petitioner on September
9th.
At a meeting with the Committee on September 10th, petitioner's
president renewed proposals for a contract,
Page 309 U. S. 354
which he had made at the meetings with the Union representatives
on July 20th and July 29th, stipulating for a five percent. wage
increase, time and a half for overtime, and one week's vacation
with pay. The Committee's only request related to pay for holidays
and a reduction of the term of the contract from five to three
years, which was granted with some modification. As finally agreed
upon, the contract purports to be made between the petitioner, the
Committee, and "each and every one of the employees." [
Footnote 1] Petitioner furnished the
Committee members with mimeographed copies of the agreement,
telling them to explain it to the best of their ability to the
employees, and giving explicit instructions as to the manner in
which the individual contracts were to be executed. There was
testimony by a number of witnesses that petitioner's president
informed the employees that he would not "protect their jobs and
they would not get five percent if they did not sign the
agreement." One group of fourteen employees asked for
Page 309 U. S. 355
representation on the Committee, and were referred to
petitioner's president, who, in refusing the request, informed them
that "the Committee had been picked already. There is enough right
now on the Committee." The contract is stated to be directly
between the petitioner and the individual employee, and under it,
the Committee as such has no rights or duties. It was signed by the
Committee and one hundred and eighteen employees. The Committee
appears to have functioned only so long as it was necessary to
obtain the individual signatures on the contract. The benefits of
the contract were limited to those employees who signed. In return,
the signers relinquished the right to strike, the right to demand a
closed shop or signed agreement with any union. The contract also
contained provisions for arbitration as to rate of wages and the
number of regular hours of employment per week by an arbitrator
designated by and mutually acceptable to petitioner and the
Committee, but provided that the "question as to the propriety of
an employee's discharge is in no event to be one for arbitration or
mediation. . . ."
From these subsidiary findings of fact, the Board concluded that
petitioner, by refusing to bargain collectively with the Union on
July 20th and July 29th and thereafter, had engaged in unfair labor
practices within the meaning of § 8(5) of the Act; that petitioner,
by coercing and intimidating employees in the exercise of their
rights to self-organization and collective bargaining, and by
persuading and coercing its employees to refrain from becoming
members of the Union and to sign individual contracts of
employment, had engaged in an unfair labor practice within the
meaning of § 8(1) of the Act, and that, by initiating, sponsoring,
and dominating a labor organization of its employees, the
Collective Bargaining Committee, it had engaged in unfair labor
practices within the meaning of § 8(1) and (2) of the Act. The
Page 309 U. S. 356
Board's order directed petitioner to desist from dominating and
interfering with the administration of the Collective Bargaining
Committee, from recognizing the Committee as representing
petitioner's employees, from giving effect to petitioner's
contracts with the Committee and with the individual employees, and
from refusing to bargain collectively with the Union. As
affirmative relief, designed to effectuate the policy of the Act as
authorized by § 10(c), the Board ordered petitioner to bargain
collectively, on request, with the Union; to withdraw recognition
from the Committee; to inform the Committee and employees who had
contracted individually that "such contract constitutes a
violation" of the Act; that the employees are relieved from all
obligations under it; that petitioner will "no longer demand its
performance," and to post appropriate notices.
The Court of Appeals for the Second Circuit, upon petition of
the Board for enforcement of the order, directed that it be
enforced except for a modification of that part of the order which
directed that petitioner recognize and bargain with the Union. The
order of the Court of Appeals directed that this part of the
Board's order be conditioned upon a determination in an election
that the Union is still the choice as bargaining representative of
a majority of the employees. 104 F.2d 655.
Upon a petition which challenged the authority of the Board to
make so much of its order as related to the contracts with
petitioner's employees, without making the employees parties to the
proceeding, we granted certiorari October 9, 1939, because of the
importance of the question in the administration of the National
Labor Relations Act and because of an asserted misapplication of
the principles of
Labor Board v. Pennsylvania Greyhound
Lines, 303 U. S. 261, and
Consolidated Edison Co. v.
Labor Board, 305
Page 309 U. S. 357
U.S. 197. Of lesser moment are questions, also raised by the
petition, [
Footnote 2] whether
the Board's finding that the Union was still the authorized
bargaining representative of a majority of petitioner's employees,
is supported by substantial evidence and, if not, whether the
Circuit Court of Appeals properly directed the Board to conduct an
election to determine whether the Union still represents a majority
of petitioner's employees, and, finally, whether the jurisdiction
of the Board is limited to such unfair labor practices as are set
up in the charge presented to the Board so as to preclude its
determination that the creation of the Organization Committee and
petitioner's contracts with individual employees involved unfair
labor practices, since both occurred after the charge was lodged
with the Board and after its complaint was served on
petitioner.
1. The Board found that petitioner, on July 20th and 29th, 1937,
and thereafter, refused to recognize and to bargain collectively
with the representative (the Union) of a majority of its employees.
If we assume, as petitioner argues, that a majority of its
employees had freely revoked their designation of the Union as
bargaining representative and chosen in its stead the Collective
Bargaining Committee, these circumstances do not militate against
the findings of the Board that the Union represented the employees
during July and August when the petitioner refused to bargain with
it, nor do they relieve petitioner from the consequences of its
refusal to bargain, which was an unfair labor practice.
Since the Court of Appeals has confirmed the findings of the
Board, there is no occasion here to review the evidence in detail.
Cincinnati, H. & D. Ry. Co. v. Interstate
Page 309 U. S. 358
Commerce Commission, 206 U. S. 142,
206 U. S. 154;
Illinois Central R. Co. v. Interstate Commerce Commission,
206 U. S. 441,
206 U. S. 456.
It is enough, with the findings not challenged, that there is
evidence that, by July 20th one hundred and nine of petitioner's
one hundred and forty employees had signed applications for
membership in the Union, designating it as the applicant's
representative for collective bargaining, and that, on that date,
negotiation began between petitioner and the Union representatives
which was continued until August. The evidence shows that attempts
by petitioner between that date and July 20th to circulate a
petition among its employees nominating a committee to act as their
collective bargaining representative failed. A few employees
signed. Then, a number cancelled their signatures. The petition was
returned to the petitioner's superintendent, and was destroyed by
an assistant secretary of the company. There is testimony that, at
the meeting with the Union representatives on July 29th,
petitioner's president declined to recognize the Union as the
bargaining representative of all the employees, and declared that
he would negotiate with it only as the bargaining representative of
the Union members, refusing to bargain with it as the
representative of all the employees, a plain violation of the Act.
§§ 8(5), 9(a). This was followed by petitioner's refusal, on August
2nd, to negotiate with Union representatives. There was also
evidence from which the Board could have found that the
negotiations on July 20th and July 29th were not entered into by
the petitioner in good faith, and were but thinly disguised
refusals to treat with the Union representatives.
In view of the evidence already noted of the choice of the Union
as bargaining representative by a large majority of the employees
between July 14th and 20th, of the complete failure of petitioner's
efforts to disturb that representation between the 20th and the
29th, there was
Page 309 U. S. 359
substantial evidence to support the Board's conclusion that the
Union was the choice as bargaining representative of appellant's
employees during July and in August at least until the 5th, when
petitioner refused to treat with the Union.
As will presently appear, the bargaining committee and the
contracts obtained through its mediation were both the products of
unfair labor practices, and the Committee, under the Board's order,
was not entitled to recognition as the bargaining representative of
the employees. Such injury, if any, as the petitioner might have
suffered from the Board's order requiring it to recognize and
bargain with the Union, is avoided by the direction of the Court of
Appeals that this part of the order be conditioned upon a
determination by an election that the Union is still the choice of
a majority of the employees. The Board has not petitioned for
certiorari, and does not complain of this direction.
2. The petition for certiorari does not assail the findings of
the Board that petitioner's officials initiated the organization of
the Committee, and that it "sponsored and dominated the formation
of the Committee and thereafter dominated its administration and
contributed support to it." We shall not reexamine those issues
here, more than to say that the evidence discloses that the purpose
of creating the Committee was to secure the contracts, and, by the
contracts, the Committee was left without any further function to
perform except to join with the employer in choosing an arbitrator
for the arbitration of specified labor disputes.
But the petition raises the question whether the terms of the
contract, as the Court of Appeals held, violate the National Labor
Relations Act, and it challenges the authority of the Board because
of the absence of the individual employees, as parties, to make any
order respecting the contracts. The contracts, as the Board found,
were
Page 309 U. S. 360
not only procured through the mediation of a company-dominated
labor organization, but they were the means adopted to "eliminate
the Union as the collective bargaining agency of its employees." We
think it plain also that, by their terms, they imposed illegal
restraints upon the employees' rights to organize and bargain
collectively guaranteed by §§ 7 and 8 of the Act.
By the contract, each employee agreed not "to demand a closed
shop or a signed agreement by his employer with any Union." This
provision foreclosed the employee from bargaining for a closed shop
or a signed agreement with the employer, frequent subjects of
negotiation between employers and employees,
see Consolidated
Edison Company v. Labor Board, supra, 305 U. S. 236;
Labor Board v. Sands Mfg. Co., 306 U.
S. 332,
306 U. S. 342;
cf. Virginian Railway Co. v. System Federation No. 40,
300 U. S. 515,
300 U. S. 553,
300 U. S. 555,
note 7. In addition, the restriction upon the employee's right to
ask a signed agreement extending only to agreements with "any
union" is in plain conflict with the public policy of the Act to
encourage the procedure of collective bargaining,
see § 1,
since it discriminates against labor organizations by forbidding
signed contracts with labor unions while it permits them with the
individual workers.
See Consolidated Edison Co. v. Labor Board,
supra, 305 U. S.
236.
It likewise forestalls collective bargaining with respect to
discharged employees, first providing that a discharged employee
may submit to the employer facts indicating that his discharge was
unreasonable and then stipulating that the "question as to the
propriety of an employee's discharge is in no event to be one for
arbitration or mediation." The effect of this clause was to
discourage, if not forbid, any presentation of the discharged
employee's grievances to appellant through a labor organization or
his chosen representatives, or in any way except personally.
Page 309 U. S. 361
Since the contracts were the fruits of unfair labor practices,
stipulated for the renunciation by the employees of rights
guaranteed by the Act, and were a continuing means of thwarting the
policy of the Act, they were appropriate subjects for the
affirmative remedial action of the Board authorized by § 10 of the
Act.
Labor Board v. Pennsylvania Greyhound Lines, Inc.,
supra, 303 U. S. 265;
Labor Board v. Newport News Shipbuilding & Dry Dock
Co., 308 U. S. 241.
Hence, the Board was free by its order to direct that the appellant
should take no benefit from the contracts unless it was without
authority to act because the individual signers of the contracts
had not been made parties to the proceeding. It is urged that, in
the absence of the employees who signed the contract, the Board was
powerless to declare it void and of no effect as to those
employees, and that consequently it could make no order forbidding
petitioner to make use of the contracts as the means of defeating
the policy and purposes of the Act.
Consolidated Edison Co. v. Labor Board, supra, is not
decisive of this question. There, page
305 U. S. 236,
after pointing out that the Board's
"power to command affirmative action is remedial, not punitive,
and is to be exercised in aid of the Board's authority to restrain
violations and as a means of removing or avoiding the consequences
of violation where those consequences are of a kind to thwart the
purposes of the Act,"
decision was rested specifically on the ground that
"here, there is no basis for a finding that the contracts with
the Brotherhood and its locals were a consequence of the unfair
labor practices found by the Board or that these contracts in
themselves thwart any policy of the Act or that their cancellation
would in any way make the order to cease the specified practices
any more effective. "
Page 309 U. S. 362
It is elementary that it is not within the power of any tribunal
to make a binding adjudication of the rights
in personam
of parties not brought before it by due process of law.
Pennoyer v. Neff, 95 U. S. 714;
Riverside & Dan River Cotton Mills v. Menefee,
237 U. S. 189;
cf. Arizona v. California, 298 U.
S. 558,
298 U. S.
571-572. For that reason, there is no occasion to
consider now how far the contract rights, if any, of the employees
may be passed upon by the Board and their exercise restricted by
its order in proceedings to which the employees have been made
parties. As the Board's power can be effectively exercised only
upon petitioner, the employees are entitled to notice and hearing
only if the statute requires them to be made parties to the
proceeding. Consequently the only question we are called on to
decide is whether, in the circumstances of this case, the exercise
of the Board's authority is such a departure from accepted modes of
procedure as rightly to be regarded as beyond the power conferred
on the Board by § 10 of the Act.
The proceeding authorized to be taken by the Board under the
National Labor Relations Act is not for the adjudication of private
rights.
Amalgamated Utility Workers v. Consolidated Edison Co.,
ante, p.
309 U. S. 261,
H.Rept. No. 1147, 74th Cong., 1st Sess. Committee on Labor, p. 24;
cf. Federal Trade Commission v. Klesner, 280 U. S.
19. It has few of the indicia of a private litigation,
and makes no requirement for the presence in it of any private
party other than the employer charged with an unfair labor
practice. The Board acts in a public capacity to give effect to the
declared public policy of the Act to eliminate and prevent
obstructions to interstate commerce by encouraging collective
bargaining and by protecting the
"exercise by workers of full freedom of association,
self-organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions
of their employment. . . ."
§ 1.
Page 309 U. S. 363
The immediate object of the proceeding is to prevent unfair
labor practices which, as defined by §§ 7, 8, are practices tending
to thwart the declared policy of the Act. To that end, the Board is
authorized to order the employer to desist from such practices,
and, by § 10(c), it is given authority to take such affirmative
remedial action as will effectuate the policies of the Act.
Labor Board v. Pennsylvania Greyhound, supra.
In a proceeding so narrowly restricted to the protection and
enforcement of public rights, there is little scope or need for the
traditional rules governing the joinder of parties in litigation
determining private rights. Ordinarily, where the rights involved
in litigation arise upon a contract, courts refuse to adjudicate
the rights of some of the parties to the contract if the others are
not before it.
Shields v.
Barrow, 17 How. 130,
58 U. S. 140;
Carroll v. New York Life Ins. Co., 94 F.2d 333;
cf.
Waterman v. Canal-Louisiana Bank Co., 215 U. S.
33,
215 U. S. 48.
Such a judgment or decree would be futile if rendered, since the
contract rights asserted by those present in the litigation could
neither be defined, aided, nor enforced by a decree which did not
bind those not present.
But different considerations may apply even in private
litigation where the rights asserted arise independently of any
contract which an adverse party may have made with another, not a
party to the suit, even though their assertion may affect the
ability of the former to fulfill his contract. The rights asserted
in the suit and those arising upon the contract are distinct and
separate, so that the Court may, in a proper case, proceed to
judgment without joining other parties to the contract, shaping its
decree in such manner as to preserve the rights of those not before
it.
General Investment Co. v. Lake Shore Ry., 260 U.
S. 261,
260 U. S.
285-286;
American Brake Shoe & Foundry Co. v.
Interborough Rapid Transit Co., 10 F.
Supp. 512,
Page 309 U. S. 364
515,
aff'd, 76 F.2d 1002;
Fidelity & Deposit
Co. v. Montana, 92 F.2d 693, 698;
Brogdex Co. v. Food
Machinery Co., 92 F.2d 787, 789;
Commercial Casualty
Insurance Co. v.Lawhead, 62 F.2d 928, 931, 932;
cf.
Hamilton v. Savannah, F. & W. Ry. Co., 49 F. 412;
Howe
v. Howe & Owen Ball Bearing Co., 154 F. 820, 828;
Alcazar Amusement Co. v. Mudd & Colley Amusement Co.,
204 Ala. 509, 86 So. 209;
E. L. Husting Co. v. Coca-Cola
Co., 194 Wis. 311, 216 N.W. 833;
Nokol Co. v. Becker,
318 Mo. 292, 300 S.W. 1108.
Here, the right asserted by the Board is not one arising upon or
derived from the contracts between petitioner and its employees.
The Board asserts a public right vested in it as a public body,
charged in the public interest with the duty of preventing unfair
labor practices. The public right and the duty extend not only to
the prevention of unfair labor practices by the employer in the
future, but to the prevention of his enjoyment of any advantage
which he has gained by violation of the Act, whether it be a
company union or an unlawful contract with employees, as the means
of defeating the statutory policy and purpose. Obviously employers
cannot set at naught the National Labor Relations Act by inducing
their workmen to agree not to demand performance of the duties
which it imposes or by insisting, more than in a private
litigation, that the employer's obedience to the Act cannot be
compelled in the absence of the workers who have thus renounced
their rights.
The Board's order runs only against petitioner. It directs that
it shall cease recognizing the Committee as the representative of
any of the employees for the purpose of dealing with petitioner
concerning grievances, labor disputes, wages, rates of pay, hours
of employment or conditions of work; that it shall not "give
effect" to the contracts with its employees; that it notify
each
Page 309 U. S. 365
employee that the contract violates the Act and that
petitioner
"is therefore obliged to discontinue such contract as a term or
condition of employment, and the employees are released from its
obligations and the respondent [petitioner here] will no longer
demand its performance,"
and that it "will no longer offer, solicit, enter into,
continue, enforce or attempt to enforce such contracts with its
employees."
The effect of the Board's order, as we construe it, is to
preclude the petitioner from taking any benefit of the contracts
which were procured through violation of the Act and which are
themselves continuing means of violating it, and from carrying out
any of the contract provisions, the effect of which would be to
infringe the rights guaranteed by the National Labor Relations Act.
It does not foreclose the employees from taking any action to
secure an adjudication upon the contracts, nor prejudge their
rights in the event of such adjudication. We do not now consider
their nature and extent. It is sufficient to say here that it will
not be open to any tribunal to compel the employer to perform the
acts, which, even though he has bound himself by contract to do
them, would violate the Board's order or be inconsistent with any
part of it. Section 10(a) and (c) of the Act commits to the Board
the exclusive power to decide whether unfair labor practices have
been committed and to determine the action the employer must take
to remove or avoid the consequences of his unfair labor
practice.
In these respects, the order does not go beyond those in suits
brought by the United States to restrain violations of the Sherman
Act, where the injunction was broad enough to prevent the offender
from carrying out contracts with persons not parties to the suits.
United Shoe Machinery Co. v. United States, 258 U.
S. 451,
258 U. S. 456;
Paramount Famous Corp. v. United States, 282 U. S.
30;
Page 309 U. S. 366
Interstate Circuit, Inc. v. United States, 306 U.
S. 208,
306 U. S. 220.
Similarly, in proceedings before the Federal Trade Commission, the
order restraining unfair methods of competition may preclude the
performance of outstanding contracts by the offender. Such orders
have never been challenged because the holders of the contracts
were not made parties.
E.g. Butterick Co. v. Federal Trade
Commission, 4 F.2d 910;
Q.R.S. Music Co. v. Federal Trade
Commission, 12 F.2d 730;
J. W. Kobi Co. v. Federal Trade
Commission, 23 F.2d 41.
Cf. Federal Trade Commission v.
Beech Nut Co., 257 U. S. 441. In
Virginian Railway Co. v. System Federation No. 40, supra,
300 U. S.
539-540;
System Federation No. 40 v. Virginian R.
Co., 11 F. Supp.
621, 623, the effect of the decree was to order the employer to
deal exclusively with the Federation although the employer had a
contract with an association not a party to the suit, found to be a
dominated labor organization. In every case, the third persons were
left free to assert such legal rights as they might have acquired
under their contracts. But in all, the public right was vindicated
by restraining the unlawful actions of the defendant even though
the restraint prevented his performance of the contracts.
As the National Labor Relations Act contemplates no more than
the protection of the public rights which it creates and defines,
and as the Board's order is directed solely to the employer, and is
ineffective to determine any private rights of the employees and
leaves them free to assert such legal rights as they may have
acquired under their contracts in any appropriate tribunal, we
think they are not indispensable parties for purposes of the
Board's order, and the statute does not require their presence as
parties to the present proceeding, and there was no abuse of the
Board's discretion in its failure to make them parties. [
Footnote 3] It is unnecessary to
consider now to what extent
Page 309 U. S. 367
or by what procedure it would be necessary to make the employees
parties to a proceeding pending before the Board in the event that
it undertook to make an order directed to the employees foreclosing
any asserted rights under their contracts in order to effectuate
the policies of the Act.
Compare the procedure used in
New England Divisions Case, 261 U.
S. 184,
261 U. S.
197.
The Board's order to post notices requires the notice to
announce that the contracts with the employees are "void and of no
effect." In order that the notice may more accurately represent the
affirmative action of the Board and that misinterpretation of its
action may be avoided, the order appealed from should be so
modified as to omit the quoted words and direct that clause (3) of
the Board's order, numbered 2(d) specifying the contents of the
notice, read as follows:
"(3) That the individual contracts of employment entered into
between the respondent and some of its employees were made by the
respondent in violation of the National Labor Relations Act, and
that the respondent will no longer offer, solicit, enter into,
continue, enforce, or attempt to enforce such contracts with its
employees; but this is without prejudice to the assertion by the
employees of any legal rights they may have acquired under such
contracts."
3. The amended charge, which initiated the present proceeding
pursuant to § 10(b) of the Act, was lodged
Page 309 U. S. 368
with the Board by the Union on August 2, 1937, before petitioner
had succeeded in organizing the Committee and in securing the
signatures of its employees to the contracts, but after
petitioner's unsuccessful attempt in July to deal with its
employees independently of the Union. The charge, in addition to
other unfair labor practices not now material, alleged that
petitioner had
"coerced and attempted to coerce its employees into signing
individual contracts with the said company; in that the said
company has called meetings of its employees and has compelled said
employees to attend said meetings, and has attempted to compel said
employees to form committees, not of their own choosing, to bargain
collectively with the said company; . . ."
The complaint elaborated the charge with particularity, setting
forth that petitioner had formed and initiated a labor organization
of its employees, dominated and interfered with the administration
of that organization, and had continued to do so down to the date
of the complaint, October 2, 1937; that petitioner "has made
signing of individual contracts a condition of employment;" and
that, by these and other acts, petitioner "is interfering with,
restraining, and coercing its employees in exercise of the rights
guaranteed by § 7 of the Act."
Petitioner contends that the charge is a jurisdictional
prerequisite to the complaint and subsequent proceedings, and that
they are restricted to the specific unfair labor practices alleged
in the charge.
See Labor Board v. Hopwood Retinning Co.,
98 F.2d 97. It argues that, in the proceedings before the Board,
there was a fatal departure from the charge insofar as the Board's
finding and order are concerned with the subsequent organization of
the Committee and the signing of the employees' contracts. The
argument is addressed only to want of power in the Board, and
raises no question of unfairness to petitioner in the preparation
and prosecution of his case.
Page 309 U. S. 369
It is unnecessary for us to consider now how far the statutory
requirement of a charge as a condition precedent to a complaint
excludes from the subsequent proceedings matters existing when the
charge was filed, but not included in it. Whatever restrictions the
requirements of a charge may be though to place upon subsequent
proceedings by the Board, we can find no warrant in the language or
purposes of the Act for saying that it precludes the Board from
dealing adequately with unfair labor practices which are related to
those alleged in the charge and which grow out of them while the
proceeding is pending before the Board. The violations alleged in
the complaint and found by the Board were but a prolongation of the
attempt to form the company union and to secure the contracts
alleged in the charge. All are of the same class of violations as
those set up in the charge, and were continuations of them in
pursuance of the same objects. The Board's jurisdiction having been
invoked to deal with the first steps, it had authority to deal with
those which followed as a consequence of those already taken. We
think the Court below correctly held that "the Board was within its
powers in treating the whole sequence as one."
We find it unnecessary to discuss other points raised by the
petitioner. We have considered them, and find them without
merit.
The order below will be modified as directed by this opinion and
as so modified it will be affirmed.
Affirmed.
MR. JUSTICE MURPHY took no part in the consideration or decision
of this case.
[
Footnote 1]
An officer of petitioner admitted that he had consulted with the
Brooklyn Chamber of Commerce in forming the contracts. The
contracts involved here follow the "Balleisen formula," said to be
devised by L. L. Balleisen, Industrial Secretary of the Chamber.
The contract
"executed between the company and each workman individually, and
not as a collective agreement with representatives of the
employees, as provided by the act,"
Labor Board v. Hopwood Retinning Co., 98 F.2d 97, 100,
has been held to violate the Act in
Labor Board v. Hopwood
Retinning Co., supra; Labor Board v. American Mfg. Co., 106
F.2d 61, 66;
Matter of Atlas Bag & Burlap Co., 1
N.L.R.B. 292;
Matter of Cating Rope Works, Inc., 4
N.L.R.B. 1100;
Matter of Metropolitan Engineering Co., 4
N.L.R.B. 542;
Matter of David E. Kennedy, Inc., 6 N.L.R.B.
699;
Matter of Art Crayon, Inc., 7 N.L.R.B. 102;
Matter of Eastern Footwear Corp., 8 N.L.R.B. 1245;
Matter of American Numbering Machine Co., 10 N.L.R.B. 536;
Matter of Centre Brass Works, Inc., 10 N.L.R.B. 1060;
Matter of Fanny Farmer Candy Shops, Inc., 10 N.L.R.B. 288;
Matter of National Meter Co., 11 N.L.R.B. 320.
[
Footnote 2]
Petitioner's brief assails the Board's order on numerous grounds
not set up in his petition for certiorari. We limit our review to
the questions specifically raised in the petition. Rule 38.
See
General Talking Pictures Corp. v. Western Electric Co.,
304 U. S. 175,
304 U. S.
177-178.
[
Footnote 3]
Orders of the Board have been upheld which direct the employer
to cease giving effect to such contracts, although no notice was
given to the company-dominated labor organizations or the
employees.
Labor Board v. Hopwood Retinning Co., 98 F.2d
97, 99, 100;
Labor Board v. Eagle Mfg. Co., 99 F.2d 930;
Labor Board v. Ronni Parfum, Inc., 104 F.2d 1017;
Labor Board v. Stackpole Carbon Co., 105 F.2d 167, 169;
Titan Metal Mfg. Co. v. Labor Board, 106 F.2d 254.
Contra: Labor Board v. Cowell Portland Cement Co., 108
F.2d 198;
Labor Board v. Sterling Electric Motors, Inc.,
109 F.2d 194, 5 Labor Relations Reporter 600.
MR. JUSTICE DOUGLAS.
MR. JUSTICE BLACK and I see no reason or occasion for the
modification of the order. For, as stated in the
Page 309 U. S. 370
opinion of the Court, the Board has not undertaken to pass on
the rights of the employees under those contracts. Nor has any
employee urged, here or below, that the order affects his
contractual rights or casts a cloud on them. Whether the employees
would be indispensable parties to the proceeding should the Board
in order to effectuate the policies of the Act undertake to nullify
their rights is a question on which we want to reserve decision
until the Board passes on it and until it is put in issue by
persons who have a standing to raise it.