NATIONAL LABOR RELATIONS BOARD v. NATIONAL PLASTIC PRODUCTS CO.
No. 5868
United States Court of Appeals Fourth Circuit
June 1, 1949
Rehearing Denied July 5, 1949
175 F.2d 755
The Association stresses the fact that, since income taxes were first imposed in 1913 up to 1943, it has not been taxed. It claims that this amounts to an administrative ruling we must consider. In the first sixteen years of that period, that is, from 1913 to 1929, the Association‘s articles contained no provision specifically extending its services to all automotive vehicles on land, and the failure to tax in that period well may be for that reason.
There is no evidence to show that the Treasury Department was advised by the Association of the amendment of 1929, which covers service to automotive vehicles whether or not used for pleasure and recreation. In support of this is the Association‘s brief, which quotes the purposes of the 1907 articles and fails to quote the 1929 amendment covering services to commercial vehicles. We may assume that the same oversight occurred in advising the Treasury Department. This seems the more certain since the Association‘s general manager since 1913, a Mr. Watkins, and the person to inform the Treasury of the 1929 amendment, testified:
“Q. Has there ever been any change in the type of your corporation as originally organized?
“A. No.”
Nor is there evidence that the Association advised the Treasury that, prior to 1943, it had “special memberships to hotels, garages and road service stations” which, its brief admits, contributed to its income for its services to them. Certainly that income was used for a service other than exclusively for the pleasure and recreation provided in the exemption. Such use of income from non-pleasure and non-recreational services, contemplated by its constitution, is entirely different from the use of income for excepted purposes derived from property held exclusively to produce income for such excepted purposes.
The situation here is the reverse of such cases as Koon Kreek Klub v. Thomas, 5 Cir., 108 F.2d 616 and Trinidad v. Sagrada Orden, 263 U.S. 578, 44 S.Ct. 204, 68 L.Ed. 458 (1924), where the income derived from properties so held was used to serve the exempted purposes. These cases hold that it is the purpose to which the income is devoted which determines whether or not the exemption exists. Here prior to 1943 the income from all sources, including the hotels, garages and service stations, was used in part to serve their commercial purposes.
The Association is not a club exempted by
Jacob Blum, Baltimore, Md. (Jacob S. New and Sidney Blum, Baltimore, Md., on the brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
This is a petition to enforce an order of the National Labor Relations Board which directed the National Plastic Products Company to bargain with the International Chemical Workers Union and to cease and desist from interfering with its employees in their efforts at self organization. The company admits the refusal to bargain but contends that the union was not properly certified as a bargaining representative and has now lost majority status. It denies that it has been guilty of the interference found by the Board.
There is no question but that the union was certified by the Board as the bargaining agent of the company‘s employees on July 26, 1946, on a petition filed on March 29, 1946 and after an election had been held on April 18, 1946, at which a majority of the votes cast were admittedly in favor of the union. The company contends, however, that the certification was invalid (1) because the election was held in advance of a hearing on the petition, (2) because eligibility to vote was based upon the payroll of April 2, after the Board had been notified that some of the employees were to be discharged, and (3) because the Board officials who conducted the election rode out to the company‘s plant in an automobile with the union representative.
The facts with respect to these contentions are that after the petition for certification was filed with the Board, the Regional Director ordered an election in advance of the hearing, but only after he had determined that there were no issues under the National Labor Relations Act,
The company‘s representative objected to the April 2 payroll as the basis of voting but refused to name the payroll of any other date as satisfactory, and the Board selected that in accordance with its custom to use the payroll immediately preceding the direction of the election. There were 227 employees eligible to vote in the election and 206 votes were cast, of which 17 were challenged on the ground that they were cast by employees whom the company had already determined to discharge because of the completion of the project in which they were engaged. The Board sustained the right of these 17 employees to vote, however, and, when their ballots were counted, 108 votes had been cast for and 98 against the union. With their ballots excluded 95 votes had been cast for and 94 against the union, which had thus received a majority of the votes cast in any event.
When the officials of the Board who conducted the election went to the company‘s plant fifteen miles from Baltimore, they traveled to Odenton railway station on the train and rode from the station to
On these facts, it seems perfectly clear that we would not be justified in setting aside the Board‘s certification. The determination of bargaining representatives under the act is a matter that Congress has entrusted to the Board, not to the courts;1 and when, as here, a certification is called in question in connection with a petition to enforce or review an order of the Board under section 10,
There is certainly no basis for overturning the finding of the Board that the union represented a majority of the company‘s employees. Even if those who were marked for discharge were eliminated, a majority of those participating in the election had voted in favor of the union. The Board was clearly acting within its discretion, under the statute as it stood at that time, in holding the election in advance of the hearing. Art. III, sec. 3, of its regulations so provided; and the decision of the Supreme Court in Inland Empire District Council v. Millis, 325 U.S. 697, 707, 65 S.Ct. 1316, 89 L.Ed. 1877 (1945), leaves no doubt as to the propriety of the Board‘s procedure. As to the other matters complained of, it certainly was for the Board and not the courts to exercise the discretion as to when the election should be held, upon what payroll eligibility to vote should be determined and whether or not the election should be set aside for irregularities in procedure. For the courts to substitute their judgment for that of the Board in such matters would be for them to undertake an impossible task and entirely to misconceive their function under the statute.
The company next contends that it is justified in refusing to bargain with the union because of the lapse of time since
“The company says that there has been a great change in the personnel of its employees since the order was entered and that there is no certainty that the union now represents a majority. The answer to this, however, is that the company has never complied with the order to bargain and any loss of majority may be attributed to that fact. We dealt fully with the question thus presented in Great Southern Trucking Co. v. N. L. R. B., 4 Cir., 139 F.2d 984; N. L. R. B. v. Appalachian Electric Power Co., 4 Cir., 140 F.2d 217; and N. L. R. B. v. Highland Park Mfg. Co., 4 Cir., 110 F.2d 632, 640. In the case last cited, where the question arose upon a motion to remand the case to the Board for further findings because of lapse of time and alleged loss of majority, we said:
“‘Respondent is not faced with conflicting claims as to representation, but raises the question as to the authority of the union to represent its employees as a means of escaping any obligation to bargain at all. In such case it is reasonable to presume that the authority of the bargaining agent continues until the contrary be shown. See National Labor Relations Board v. Remington-Rand, 2 Cir., 94 F.2d 862, 870; National Labor Relations Board v. Biles-Coleman Lumber Co., 9 Cir., 96 F.2d 197, 198; National Labor Relations Board v. Louisville Refining Co., 6 Cir., 102 F.2d 678.‘”
We dealt with the same question in N. L. R. B. v. Harris-Woodson Co., 4 Cir., 162 F.2d 97, 99, where we said: “It was for the Board, not the company, to determine the bargaining agent and to decide when another election was necessary for that purpose. The presumption is that the majority status of a designated bargaining agent continues until the contrary is shown and, even if there has been a loss of majority, the order to bargain may be an appropriate means of removing the effects of the unfair labor practice of refusal to bargain which has resulted in such loss.”
In the case last cited we quoted the following from the opinion of the Supreme Court in N. L. R. B. v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380 (1942), which is determinative of the question here, viz.: “On the Board‘s petition for enforcement the court below sustained the Board‘s finding, but expressing the belief that because of lapse of time and changed conditions the Local might no longer represent the majority of employees, modified the Board‘s order so as to require it to conduct an election to determine whether the Local had lost its majority due to a shift of employees to a rival independent association. The Board had considered the effect of a possible shift in membership, alleged to have occurred subsequent to Lorillard‘s unfair labor practice. But it had reached the conclusion that in order to effectuate the policies of the Act, Lorillard must remedy the effect of its prior unlawful refusal to bargain by bargaining with the union shown to have had a majority on the date of Lorillard‘s refusal to bargain. This was for the Board to determine, and the court below was in error in modifying the Board‘s order in this respect.”
See also Franks Bros. Co. v. N. L. R. B., 321 U.S. 702, 704-706, 64 S.Ct. 817, 88 L.Ed. 1020 (1944).
The case here is not one where the employer has complied with the order of the Board to bargain and later desisted because of belief that the majority status of the union no longer existed. Nor is it one where, after having complied with the order, the employer is faced by con-
The company‘s final contention is that relief should be denied because of delay by the Board in seeking relief and pressing its complaint to hearing; but the contention here is completely answered by what we had to say in our recent decisions in N. L. R. B. v. Norfolk Shipbuilding and Drydock Co., supra, 4 Cir., 172 F.2d 813, and N. L. R. B. v. Emery, 4 Cir., 173 F.2d 349. The delay here was not as great as in those cases, and while, as there pointed out, the injunctive power of the court should not be exercised where there has been such delay that the Board‘s order will not do justice, there is nothing in the record here to indicate that justice will not be done in requiring the company to comply with the order to bargain, which it should have complied with when entered. The situation is fully covered by the cases from which we have quoted at length above.
Little need be said as to that portion of the case relating to interference with employees in the exercise of their right of organization. The Board found that the company‘s chief engineer had interrogated two employees as to their union membership before agreeing to employ them and that its night superintendent had interrogated a woman employee as to her brother‘s union affiliation and as to her own attendance at union meetings. Upon these incidents the Board based a finding that the employer had interfered with the employees in the exercise of their right of organization. It found, also, that the president of the company in an address to the employees on the day preceding the election had stated that it would have given the employees a raise in wages but for the fact that it could not do so under the law while an organizational campaign was in progress. While we attach no importance to the speech of the president and do not think that it can properly be construed as either a threat or an inducement, the questioning of employees as to union membership is sufficient to sustain the provision of the order directed against interference. N. L. R. B. v. Harris-Woodson Co., supra, 4 Cir., 162 F.2d 97, 100; N.L.R.B. v. Norfolk Southern Bus Corporation, 4 Cir., 159 F.2d 516, 518, and cases there cited.
For the reasons stated, the order of the Board will be enforced.
Order enforced.
On Petition for Rehearing.
PER CURIAM.
A petition is filed asking that this case be reheard in the light of the recent decision of the Supreme Court in N. L. R. B. v. Pittsburgh Steamship Co., 69 S.Ct. 1283 (1949). There is no occasion for such rehearing. So far as the scope of review is concerned, this court has considered itself bound by the provisions of the Administrative Procedure Act,
Denied.