Nat'l Lab. Rels. Bd. v. Pa. Greyhound Lines, Inc., 303 U.S. 261 (1938)

NATIONAL LABOR RELATIONS BOARD v. PENNSYLVANIA GREYHOUND LINES, INC., et al .

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 413. Argued February 4, 1938.—Decided February 28, 1938.

lectively through représentatives of their own choosing, is an inference of fact to be drawn by the Board from the evidence reviewed in its subsidiary findings, and when supported by evidence the Board’s finding of the fact is conclusive. P. 270.

3. The Board’s findings in this case that the employer had engaged in unfair labor practices, and that withdrawal of récognition of the employée association by the employer, accompanied by suitable publicity, would appropriately give effect to the policy of the Act, were amply supported by the evidence. P. 271.

4. To enable the Board to détermine whether the employer had violated the statute or to make an appropriate order against him, the presence of the employées’ association was not essential and it was not entitled to notice and hearing. P. 271.

5. An order of the Board such as that requiring the employer to withdraw récognition of the employées’ association, and to post notice of such action, lawful when made, does not become moot because it is obeyed or because changing circumstances may lessen the need for it. P. 271.

91 F. 2d 178, reversed.

Certiora ri , 302 U. S. 676, to review a judgment denying in part a pétition of the National Labor Relations Board for enforcement of an order.

Mr. Charles Fahy, with whom Solicitor General Reed, Assistant Solicitor General Bell, and Messrs. Robert L. Stem, Robert B. Watts, and Laurence A. Knapp were on the brief, for petitioner.

Mr. Ivan Bowen, with whom Messrs. Charles H. Young and M. H. Boutelle were on the brief, for respondents.

Mr . Justice Stone delivered the opinion of the Court.

Respondent Pennsylvania Greyhound Lines, Inc., is a corporation operating a passenger motor bus System between the Atlantic Coast and Chicago and St. Louis. Respondent Greyhound Management Company, an affiliate of the Pennsylvania Company, performs various services relating to employée personnel of the latter and its affiliated corporations. Together, respondents act as employers of those employées working at the Pittsburgh Garage of the Pennsylvania Company and together actively deal with labor relations of those employées.

Upon charges filed by Local Division No. 1063, Amalgamated Association of Street, Electric Railway and Motor Coach Employées of America, a labor organization, the Board issued its complaint, as permitted by § 1'0 (b) of the Act, charging that respondents had engaged in specified unfair labor practices affecting interstate commerce, in violation of § 8. After notice to respondents, and hearing, the Board found that they had engaged in unfair labor practices by interfering with, restraining, and coercing employées in the exercise of their rights, guaranteed by § 7, in that they had dominated and interfered with the formation and administration of a labor organization of their employées, Employées Association of the Pennsylvania Greyhound Lines, Inc., and had contributed financial and other support to it in violation of § 8 (1), (2).

Upon the Board’s pétition under § 10 (e) to enforce the order, heard April 1, 1936, the Court of Appeals for the Third Circuit gave judgment after a delay of one year and two months, during which there were three postponements and two rearguments. It struck from the order ail provisions requiring the withdrawal by respondents of récognition of the Employées Association and publication @f notice of withdrawal, and directed that in other respects the Board’s order be enforced. 91 F. (2d) 178. The court thought that the Board was without authority to order the employers to withhold récognition from the Association, without notice to it and opportunity for a hearing, and without an élection by the employées to choose a labor organization to represent them. We granted certiorari, 302 U. S. 676, the questions involved being of importance in the administration of the National Labor Relations Act.

Respondents do not assail the Board’s findings of fact as without support in the evidence, and the principal questions for decision are of law, whether in the circumstances disclosed by the findings the Board acted within the authority conferred upon it by §§ 7, 8 and 10 of the Act. Section 7 provides:

“Employées shall hâve the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through représentatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”

Section 8 déclarés:

“It shall be an unfair labor practice for an employer—

“(1) To interfère with, restrain, or coerce employées in the exercise of the rights guaranteed in section 7.

“(2) To dominate or interfère with the formation or administration of any labor organization or contribute financial or other support to it: . .

By § 10 (b) the Board is given authority to hear complaints of unfair labor practices upon evidence; and § 10 (c)1 directs that when the Board finds that any person has engaged in unfair labor practices it “shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action ... as will effectuate the policies of this Act. . .

Notwithstanding the mandatory form of § 10 (c), its provisions in substance leave to the Board some scope for the exercise of judgment and discrétion in determining, upon the basis of the findings, whether the case is one requiring an affirmative order, and in choosing the particular affirmative relief to be ordered. Hence, upon the challenge of the affirmative part of an order of the Board, we look to the Act itself, read in the light of its history, to ascertain its policy, and to the facts which the Board has found, to see whether they afford a basis for its judgment that the action ordered is an appropriate means of carrying out that policy.

Before enactment of the National Labor Relations Act this Court had recognized that the maintenance of a “company union,” dominated by the employer, may be a ready and effective means of obstructing self-organization of employées and their choice of their own représentatives for the purpose of collective bargaining. Section 2 (3) of the Railway Labor Act of 1926, had provided that représentatives, for the purposes of the Act, should be designated by employer and employées “without interférence, influence, or coercion exercised by either party over the self-organization or désignation of représentatives by the other.” We had held that in enforcing this provision, employer récognition of a company union might be enjoined and the union “disestablished,” as an appropriate means of preventing interférence with the rights secured to employées by the statute. Texas & N. O. R. Co. v. Brotherhood of Railway & S. S. Clerks, 281 U. S. 548, 560; see also Virginian Ry. Co. v. System Fédération No. 40, 300 U. S. 515, 542 et seq.

Congress, in enacting the National Labor Relations Act, had in mind the expérience in the administration of the Railway Labor Act, and declared that the former was “an amplification and further clarification of the principles” of the latter. Report of the House Committee on

Labor, H. R. 1147, 74th Cong., Ist Sess., p. 3. It had before it the Railway Clerks case which had emphasized the importance of union récognition in securing collective bargaining, Report of the Senate. Committee on Education and Labor, S. Rep. 573, 74th Cong., Ist Sess., p. 17, and there were then available data showing that once an employer has conferred récognition on a particular organization it has a marked advantage over any other in securing the adhérence of employées, and hence in preventing the récognition of any other.2 The National Labor Relations Act continued and amplified the policy of the Railway Labor Act by its déclaration in § 7, and by providing generally in § 8 that any interférences in the exercise of the rights guaranteed by § 7 and specifically the domination or interférence with the formation or administration of any labor organization were unfair labor practices. To secure to employées the benefits of self-organization and collective bargaining through représentatives of the employées’ own choosing, the Board was authorized by § 10 (c) to order the abandonment of unfair labor practices and to take affirmative action which would carry out the policy of the Act.

In recommending the adoption of this latter provision the Senate Committee called attention to the decree which, in the Railway Clerks case, had compelled the employer to “disestablish its company union as représentative of its employées.” Report of the Senate Committee

2 On the significance of récognition in collective bargaining see Commons and Andrews, Principles of Labor Législation (Harper & Bros., 4th ed., 1936), p. 372; Catlin, The Labor Problem (Harper & Bros., 1935), pp. 431, 522; Rufener, Principles of Economies (Houghton-Mifllin Co., 1927), p. 399; Twentieth Century Fund, Inc., Labor and the Government (1935), p. 47; Yoder, Labor Economies and Labor Problems (1933), p. 443; U. S. Department of Labor, Bureau of Labor Statistics, Characteristics of Company Unions, Bulletin No. 634, Chs. VII, XXII.

on Education and Labor, supra. The report of the House Committee on Labor on this feature of the Act, after pointing ont that collective bargaining is “a sham when the employer sits on both sides of the table by supporting a particular organization with which he deals,” declared: “The orders will of course be adapted to the need of the individual case; they may include such matters as refraining from collective bargaining with a minority group, récognition of the agency chosen by the majority for the purposes of collective bargaining, posting of appropriate bulletins, refraining from bargaining with an organization corrupted by unfair labor practices.” Report of the House Committee on Labor, supra, pp. 18, 24.

It is plain that the challenged provisions of the présent order are of a kind contemplated by Congress in the enactment of § 10 (c) and are within its terms. There remains the question whether the findings adequately support them.

The Board’s subsidiary findings of fact fully sustain its conclusion that respondents had engaged in unfair labor practices, by active participation in the organization and administration of the Employées Association, which they dominated throughout its history, and to whose financial support they had contributed; and that they had interfered with, restrained and coerced their employées in the exercise of the rights confirmed by § 7 to form for themselves a labor organization and to bargain collectively through représentatives of their own choosing.

The by-laws and régulations provided that ail motorbus operators, maintenance men and clérical employées, after three months service, automatically became members of the Association, and that only employées were eligible to act as employée représentatives. No provisions were made for meetings of members, nor was a procedure established whereby employées might instruct their représentatives, or whereby those représentatives might disseminate information or reports. Grievances were to be taken up with régional committees with final review by a Joint Reviewing Committee made up of an equal number of régional chairmen and of management représentatives, but review in those cases could not be secured unless there was a joint submission of the controversy by employée and management représentatives.

Change of the by-laws without employer consent was precluded by a provision that amendment should be only on a two-thirds vote of the Joint Reviewing Committee, composed of equal numbers of employer and employée représentatives. Employées paid no dues, ail the Association expenses being borne by the management.

Although the Association was in terms created as a bargaining agency for the purpose of “providing adéquate représentation” for respondents’ employées by “securing for them satisfactory adjustment of ail controversial matters,” it has functioned only to settle individual grievances. On the one recorded occasion when the employées sought a wage increase, the company représentatives prevented its considération by refusing to join in the submission to the Joint Reviewing Committee.

Section 10 (e) déclarés that the Board’s findings of fact “if supported by evidence, shall be conclusive.” Whether the continued récognition of the Employées Association by respondents would in itself be a continuing obstacle to the exercise of the employées’ right of self-organization and to bargain collectively through représentatives of their own choosing, is an inference of fàct to be drawn by the Board from the evidence reviewed in its subsidiary findings. See Swayne & Hoyt N. United States, 300 U. S. 297.

We may assume that .there are situations in which the Board would not be warranted in concluding that there was any occasion for withdrawal of employer récognition of an existing union before an élection by employées under § 9 (c), even though it had ordered the employer to cease unfair labor practices. But here respondents, by unfair labor practices, hâve succeeded in establishing a company-union so organized that it is incapable of functioning as a bargaining représentative of employées. With no procedure for meetings of members or for instructing employée représentatives, and with no power to bring grievances before the Joint Reviewing Committee without employer consent, the Association could not without amendment of its by-laws be used as a means of the collective bargaining contemplated by § 7 ; and amendment could not be had without the employer’s approval.

In view of ali the circumstances the Board could hâve thought that continued récognition of the Association would serve as a means of thwarting the policy of collective bargaining by enabling the employer to induce adhérence of employées to the Association in the mistaken belief that it was truly représentative and afforded an agency for collective bargaining, and thus to prevent self-organization. The inferences to be drawn were for the Board and not the courts. Swayne & Hoyt N. United States, supra. There was ample basis for its conclusion that withdrawal of récognition of the Association by respondents, accompanied by suitable publicity, was an appropriate way to give effect to the policy of the Act.

As the order did not run against the Association it is not entitled to notice and hearing. Its presence was not necessary in order to enable the Board to détermine whether respondents had violated the statute or to make an appropriate order against them. See General Investment Co. v. Lake Shore & M. S. Ry. Co., 260 U. S. 261, 285-286.

Respondents suggest that the case has become moot by reason of the fact that since the Board made its order it has certified the Brotherhood of Railroad Trainmen as représentative of the motorbus drivers of the Pennsylvania company for purposes of collective bargaining and that in a pending proceeding under § 9 (c) for the certification of a représentative of the other Pittsburgh employées, to which the Employées’ Association is not a party, the Pennsylvania company and Local Division No. 1063, who are parties, hâve made no objection to the proposed certification. But an order of the character made by the Board, lawful when made, does not become moot because it is obeyed or because changing circumstances indicate that the need for it may be less than when made.

Counsel for Parties. 303 U. S.

We hâve considered but find it unnecessary to comment upon other objections to the order, of less moment.

Mr . Justi ce Cardozo and Mr . Justice Reed took no part in the considération or decision of this case.