The National Labor Relations Board found that an employer had
committed an unfair labor practice by assisting a union to defeat
the efforts of a rival union to organize the employer's workers,
but that the assisted union was not dominated by the employer. It
ordered the employer to post certain notices and to withdraw and
withhold recognition from the assisted union until it received the
Board's certification as the exclusive bargaining representative of
the employees. The assisted union was not eligible for such
certification, because it was not in compliance with § 9(f), (g),
and (h) of the National Labor Relations Act, as amended. The Court
of Appeals modified the Board's order so that the employer would be
free to recognize the assisted union not only when certified by the
Board but, alternatively, when it "shall have been freely chosen as
[their representative] by a majority of the employees after all
effects of unfair labor practices have been eliminated." It also
struck from the Board's notice requirement certain references to
the rival union.
Held:
1. In the circumstances of this case, the Board's order is not
appropriate or adapted to the situation calling for redress, and it
constitutes an abuse of the Board's discretionary power under § 10
(c). Pp.
355 U. S.
458-463.
(a) The certification requirement, in these circumstances, has
the effect of disestablishment, and thus defeats the statutory
rights of the employees, because this assisted but undominated
union can never obtain certification so long as it remains out of
compliance with §9(f), (g), and (h). Pp.
355 U. S.
460-461.
(b) The Board is not powerless to effect a remedy in this case
which would properly reconcile the objectives of eliminating
improper employer interference and preserving the employees' full
choice of a bargaining representative, since §9(f), (g), and
(h)
Page 355 U. S. 454
are not a barrier to conduct by the Board of an election not
followed by certification, or to the making of an arrangement with
another appropriate agency, state or federal, for the conduct of an
election under conditions prescribed by the Board. Pp.
355 U. S.
461-462.
(c) To dispense with a certification in the case of a
noncomplying assisted union, while requiring a certification in the
case of a complying union, would not negative the policy and intent
of § 9 (f), (g), and (h), since Congress did not make the filing
required by those subsections compulsory or a condition precedent
to the right of a noncomplying union to be recognized as the
exclusive representative of the employees. Pp.
355 U. S.
462-463.
2. The modifications of the Board's cease and desist order made
by the Court of Appeals go beyond permissible limits of judicial
review under §10(f) and cannot be sustained. Pp.
355 U. S.
463-464.
(a) The Court's alternative to Board certification dispenses
with the necessity of an election, and can be interpreted to leave
to the offending employer and the assisted union the decision when
the effect of the unfair labor practice has been eliminated and the
employees have regained their freedom of action. P.
355 U. S.
463.
(b) The Court's rewriting of the notice to be posted was
improper insofar as it deleted references to the rival union,
because no objection to the notice in this respect was ever raised
by the parties before the Board. Pp.
355 U. S.
463-464.
3. The orderly administration of the Act and due regard for the
respective functions of the Board and the reviewing courts require
that the judgment of the Court of Appeals be vacated with
instructions to remand the case to the Board for further
proceedings consistent with this opinion. P.
355 U. S.
464.
99 U.S.App.D.C. 104, 237 F.2d 585, judgment vacated with
instructions to remand the case to the Board.
Page 355 U. S. 455
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The National Labor Relations Board found that Bowman
Transportation, Inc., committed unfair labor practices by assisting
District 50, United Mine Workers, as a means of defeating the
efforts of a Teamsters Local to organize its workers. [
Footnote 1] The cease and desist order
which issued was in the standard form directing the company to
withdraw and withhold recognition from District 50 unless and until
it received the Board's certification as the exclusive
representative of the employees. 112 N.L.R.B. 387. [
Footnote 2] But the United Mine Workers is
not in compliance with § 9(f), (g), and (h), added by the
Taft-Hartley amendments to the National Labor Relations Act, 61
Stat. 143, 29 U.S.C. § 159(f), (g), (h). [
Footnote 3]
Page 355 U. S. 456
It is therefore not eligible for a Board certification, and, in
consequence, the Bowman employees may never have an opportunity to
select District 50 as their representative. The Board denied the
United Mine Workers' application to delete the requirement for a
Board certification. 113 N.L.R.B. 786. The question arises whether
the requirement for a Board certification in these circumstances
exceeds the Board's discretionary power under § 10(c), 29 U.S.C. §
160(c), to fashion remedies to dissipate the effects of an
employer's unfair labor practices in assisting a union.
The union petitioned the Court of Appeals for the District of
Columbia under § 10(f), 29 U.S.C. § 160(f), which authorizes a
Court of Appeals to
"enter a decree enforcing, modifying, and enforcing as so
modified,
Page 355 U. S. 457
or setting aside in whole or in part the order of the Board. . .
."
The Court of Appeals, 99 U.S.App.D.C. 104, 237 F.2d 585, did not
delete the provisions for Board certification, but modified the
order so that the company would be free to recognize District 50
not only when certified by the Board but, alternatively, when
District 50
"shall have been freely chosen as such [representative] by a
majority of the employees after all effects of unfair labor
practices have been eliminated."
99 U.S.App.D.C. at 107, 237 F.2d at 588.
The Board's order also required the company to post for at least
60 days a notice prepared by the Board. In the notice, the company
would state to its employees that it would not discourage
membership in, or interrogate the employees concerning their
activities on behalf of, " . . . Teamsters . . . Local No. 612 or
any other labor organization . . . ," and, further, that the
company would
". . . withhold all recognition from District 50 . . . unless
and until said organization shall have been certified as such
representative by the . . . Board."
112 N.L.R.B. 387, 391. The parties raised no objection to the
notice either before the Board or by the parties in the Court of
Appeals. However, the Court of Appeals, on its own motion, struck
from the notice the references to the Teamsters Local, stating its
view that "references to that union in the Board's form of notice
are susceptible of being construed as" indicating that the Board
"prefers Teamsters." 99 U.S.App.D.C. at 108, 237 F.2d at 589. The
court also added to the paragraph in the notice stating that the
company would withhold recognition from District 50 until the union
received a Board certification the alternative
"or [until District 50] shall have been selected as such
[representative] by a majority of our employees at a time at least
60 days later than the date of this notice."
99 U.S.App.D.C. at 109, 237 F.2d at 590.
Page 355 U. S. 458
Because important questions of the administration of the Act
were raised, we granted certiorari on the Board's petition. 352
U.S. 999.
The Board's order was fashioned under § 10(c), 29 U.S.C. §
160(c), which vests remedial power in the Board to redress unfair
labor practices by
"an order requiring such person [committing the unfair labor
practice] to cease and desist from such unfair labor practice, and
to take such affirmative action . . . as will effectuate the
policies of this Act. . . ."
The Board's discretionary authority to fashion remedies to purge
unfair labor practices necessarily has a broad reach.
Labor
Board v. Link-Belt Co., 311 U. S. 584,
311 U. S. 600.
But the power is not limitless; it is contained by the requirement
that the remedy shall be "appropriate,"
Labor Board v. Bradford
Dyeing Assn., 310 U. S. 318, and
shall "be adapted to the situation which calls for redress,"
Labor Board v. Mackay Radio & Telegraph Co.,
304 U. S. 333,
304 U. S. 348.
The Board may not apply
"a remedy it has worked out on the basis of its experience,
without regard to circumstances which may make its application to a
particular situation oppressive and therefore not calculated to
effectuate a policy of the Act."
Labor Board v. Seven-Up Bottling Co., 344 U.
S. 344,
344 U. S. 349.
The Board's provision for a Board certification must therefore be
examined in the light of its appropriateness in the circumstances
of this case.
In formulating remedies for unfair labor practices involving
interference by employers with their employees' freedom of choice
of a representative, the Board has always distinguished the remedy
appropriate in the case of a union
dominated by an
employer from the remedy appropriate in the case of a union
assisted but undominated by an employer. In the case of a
dominated union, the Board usually orders the complete
disestablishment of the union, so that it can never be certified by
the Board; this Court has sustained such orders.
Labor
Board v.
Page 355 U. S. 459
Pennsylvania Greyhound Lines, Inc., 303 U.
S. 261;
Labor Board v. Newport News Shipbuilding
& Dry Dock Co., 308 U. S. 241. On
the other hand, in the case of the
assisted but
undominated union, the Board has consistently directed the
employer to withhold recognition from the assisted union until the
union receives a Board certification. The basis for the distinction
is that, in the Board's judgment, the free choice by employees of
an agent capable of acting as their true representative, in the
case of a
dominated union, is improbable under any
circumstances, while the free choice of an
assisted but
undominated union, capable of acting as their true
representative, is a reasonable possibility after the effects of
the employer's unfair labor practices have been dissipated.
See
Labor Board v. Wemyss, 212 F.2d 465, 471, 472.
The reason for the Board's certification requirement is to
invoke the normal electoral processes by which a free choice of
representatives is assured. The Board's opinion in this case states
that
". . . the Board has, since its earliest days, recognized that
the policies of the Act could best be effectuated in cases
involving violations of Section 8(a)(2) by directing the offending
employers to withhold the preferred treatment afforded to the labor
organizations involved until the effect of the unfair labor
practices had been dissipated and the majority status of such
unions had been established in an atmosphere free of restraint and
coercion."
113 N.L.R.B. 786, 787. Again,
". . . in the case of an assisted but undominated labor
organization, the Board has required the offending employer to
withdraw and withhold recognition from the assisted union until it
was certified, thus enabling the Board to assure the affected
Page 355 U. S. 460
employees that their statutory right to freely choose a
bargaining representative shall be preserved by conducting an
election under conditions which will render such a choice
possible."
113 N.L.R.B. 786, 788.
It is thus clear that the most significant element of the remedy
is not the formality of certification, but an election, after a
lapse of time and under proper safeguards, by which employees, in
"the privacy and independence of the voting booth,"
Brooks v.
Labor Board, 348 U. S. 96,
348 U. S.
99-100, may freely register their choice whether or not
they desire to be represented by the assisted union.
In this case of a noncomplying union, however, requiring the
formality of Board certification in addition to an election has the
same effect as disestablishment. This is because District 50 can
never be certified by the Board so long as the United Mine Workers
remain out of compliance with § 9(f), (g), and (h). But
disestablishment has been applied by the Board and upheld by the
courts only in the case of a dominated union, where a free choice
of a truly representative union is improbable under any
circumstances, and therefore where an abridgment of the statutory
right of employees does not result. District 50 was found by the
Board to be an assisted but not a dominated union, so that a free
choice of District 50 by Bowman's employees is a reasonable
possibility. Therefore, the certification requirement here
misapplies the Board's own policy by actually defeating the
statutory rights of Bowman's employees.
The Board reasoned that, since this Court has sustained its
power under § 10(c)
"to dissipate the effect of an unfair labor practice by
completely removing a dominated union . . . , the Board manifestly
has the statutory power to impose the lesser sanction of
certification in the case of an assisted union. . . ."
113 N.L.R.B. 786, 788. Even if we grant the premise that the
Board may
Page 355 U. S. 461
remove a dominated union, it does not follow that the Board may
remove this merely assisted union. Certification under the
circumstances of this case is not the "lesser sanction," but is
substantially the same as removal. Unlike an assisted union, a
dominated union is deemed inherently incapable of ever fairly
representing its members.
Labor Board v. Pennsylvania Greyhound
Lines, Inc., supra, at
303 U. S.
270-271;
Labor Board v. Newport News Shipbuilding
& Dry Dock Co., supra, at
308 U. S.
250.
We do not think, however that the Board lacks authority to
effect a remedy in this case which would properly reconcile the
objectives of eliminating improper employer interference and
preserving the employees' full choice of a bargaining
representative. The prohibitions of § 9(f) and (h) against
investigation of representatives, the requirement of § 9(c) of
Board-conducted elections connected with such investigations, and
the prohibition of § 9(g) against certification of a noncomplying
union, are concerned not with remedial orders under § 10(c), but
with questions of representation and unfair labor practices "raised
by a labor organization." The single objective of § 9(f), (g), and
(h) was "to stop the use of the Labor Board" by noncomplying
unions.
Labor Board v. Dant, 344 U.
S. 375,
344 U. S. 385.
These subsections contain nothing compelling the Board to insist
upon a Board certification, and thus to deny the employees the
right at an election held under proper safeguards to select the
noncomplying assisted union for their representative. Nothing in
the subsections, for example, is a barrier to the conduct by the
Board of an election not followed by a certification, or to the
making of an arrangement with another appropriate agency, state or
federal, for the conduct of the election under conditions
prescribed by the Board. Clearly an election under such
circumstances will also achieve the Board's prime objective in
these cases,
viz., to
"demonstrate that . . . [the assisted union's] right to
Page 355 U. S. 462
be the exclusive representative of the employees involved has
been established in an atmosphere free of restraint and
coercion."
113 N.L.R.B. 786, 788. Indeed, in its brief, the Board impliedly
admits the irrelevance of the formality of certification to the
effectiveness of the fashioned remedy, stating that,
". . . if that view [of certification] is rejected, the Board
may perhaps devise other measures which will enable it to make
certain that the employees' choice of bargaining representative is
in fact made in an atmosphere free of restraint and coercion. . .
."
In a footnote, the Board suggests such an alternative:
". . . [T]he Board might conduct an election among the employees
and certify the union if it wins the election, provided it is in
compliance, but otherwise certify only the arithmetical results. .
. ."
The Board's opinion also states that to dispense with a
certification in the case of a noncomplying assisted union, while
requiring a certification in the case of a complying union, "would
negative the policy and intent of Section 9(f), (g), and (h) of the
Act." 113 N.L.R.B. 786, 790. But this misinterprets the scope of
those provisions.
"Subsections (f), (g), and (h) of § 9 merely describe advantages
that may be gained by compliance with their conditions. The very
specificity of the advantages to be gained and the express
provision for the loss of these advantages imply that no
consequences other than those so listed shall result from
noncompliance."
United Mine Workers of America v. Arkansas Oak Flooring
Co., 351 U. S. 62,
351 U. S. 73.
Congress did not, in § 9(f), (g), and (h), make the filing required
by those subsections compulsory or a condition precedent to the
right of a noncomplying union to be recognized as the exclusive
representative of the employees.
United Mine Workers of America
v. Arkansas Oak Flooring Co., supra. Similarly, the Board
cannot, through the requirement of a Board certification, make
noncompliance a reason for denying the employees the right to
choose the
Page 355 U. S. 463
assisted union at an election which can readily serve its
designed purpose without such certification. Finally, we do not
believe that the issuance of an order in the case of a noncomplying
assisted union different from the form of order consistently used
in cases of complying assisted unions extends "preferred treatment"
to the noncomplying union. What it does in fact is to give the
noncomplying union substantially the same treatment as a complying
union, instead of subjecting it to disabilities not intended by
Congress as a result of noncompliance. The Board's order is
therefore not appropriate or adapted to the situation calling for
redress, and constitutes an abuse of the Board's discretionary
power.
However, the modifications of the cease and desist order made by
the Court of Appeals go beyond permissible limits of judicial
review under § 10(f), and cannot be sustained. The Court's
alternative to Board certification dispenses with the necessity of
an election, and can be interpreted, as the Board argues, to leave
to the offending employer and the assisted union the decision when
the effect of the unfair labor practice has been eliminated and the
employees have regained their freedom of action. Nothing said in
the
Arkansas Flooring case, upon which the Court of
Appeals relied, justifies the Court of Appeals in going so far as
to dispense with an election under proper safeguards. This Court
has long recognized the propriety of an agency's choice of an
election as the proper means to assure dissipation of the
unwholesome effects of the employer's unlawful assistance to a
union.
See Texas & New Orleans R. Co. v. Brotherhood of
Railway & S.S. Clerks, 281 U. S. 548. The
Board's discretion here was exceeded only in the inflexibility of
the requirement for a Board certification notwithstanding its
inappropriateness in the circumstances of this case.
The rewriting of the notice to be posted was improper insofar as
it deleted reference to the Teamsters Union,
Page 355 U. S. 464
because no objection to the notice in this respect was ever
raised by the parties before the Board.
Labor Board v. Seven-Up
Bottling Co., 344 U. S. 344,
344 U. S. 350;
Labor Board v. Cheney California Lumber Co., 327 U.
S. 385,
327 U. S.
388-389;
cf. Federal Power Comm'n v. Colorado
Interstate Gas Co., 348 U. S. 492,
348 U. S. 497.
Section 10(e) of the Act provides:
"No objection that has not been urged before the Board, its
member, agent, or agency, shall be considered by the [Court of
Appeals] unless the failure or neglect to urge such objection shall
be excused because of extraordinary circumstances."
No extraordinary circumstances were shown here.
The orderly administration of the Act and due regard for the
respective functions of the Board and reviewing court require that
we vacate the judgment of the Court of Appeals with instructions to
remand the case to the Board for further proceedings consistent
with this opinion.
It is so ordered.
[
Footnote 1]
The Teamsters Local was International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, Local No.
612. The Board concurred in the Trial Examiner's findings that,
when the Teamsters Local was picketing the premises, the company
rendered illegal support and assistance to District 50 by
negotiating the details of a contract with officials of that union
before a single employee had actually authorized it as a
representative, by showing the draft contract to the drivers at a
meeting convened by and presided over by the company president, who
assured them that, if necessary, he would advance the money for
dues, after which, and within less than three hours, the drivers
signed District 50 authorization cards, established a local which
held its first meeting at the president's suggestion, on company
premises, and concluded a contract with the company.
[
Footnote 2]
This remedy was apparently first adopted in
Lenox Shoe
Co., 4 N.L.R.B. 372, 388, decided December 3, 1937.
[
Footnote 3]
Subsection (f) provides that no investigation shall be made by
the Board concerning the representation of employees raised by a
labor organization, and no complaint of unfair labor practices
shall be issued pursuant to a charge made by a labor organization,
unless the organization and any national or international labor
organization of which it is an affiliate or constituent shall have
filed with the Secretary of Labor copies of the union's
constitution and bylaws and a report showing, among other things,
the names of officers and agents whose aggregate compensation and
allowance for the preceding year exceeded $5,000, the amounts paid
to each, the manner in which such officers and agents were
selected, the amount of initiation fees and dues charged to union
members, the union's procedures followed with respect to
qualification for membership, election as officers and stewards,
etc. The subsection also requires the filing with the Secretary of
a report showing union receipts, disbursements, and assets and
liabilities. Subsection (g) requires, among other things, the
filing annually with the Secretary of reports bringing up to date
the information required to be supplied under subsection (f).
Subsection (h) provides that no investigation of a question of
representation raised by a labor organization shall be made, and no
complaint of unfair labor practices pursuant to a charge made by a
labor organization shall issue, unless there is on file with the
Board an affidavit executed within the preceding year by each
officer of the organization and the officers of any national or
international labor organization of which it is an affiliate or
constituent that he is not a member of the Communist Party or
affiliated with such party, and that he does not believe in, and is
not a member or supporter of, any organization that believes in or
teaches the overthrow of the United States Government by force or
by illegal or unconstitutional methods.