Darling and Co.

National Labor Relations Board - Board Decisions

Jul 31, 1956

116 N.L.R.B. 374 (N.L.R.B. 1956)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Upon the foregoing findings of fact , and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondents in Cases Nos. 2 -CA-4326, 4327, 4328, 4329,
4330, 4331, 4333, 4334, 4335, 4336, 4337, 4338, 4339, 4340, 4341, 4342, 4343,
and 4345 do not occur in commerce within the meaning of Section 2 (6) of the Act.
2. Local 438, International Brotherhood of Electrical Workers, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. The Respondents in cases cited in paragraph numbered 1, above, have not
engaged in unfair labor practices as alleged in the complaint within the meaning of
Section 8 (a) (1,) and (3) of the Act.
4. The Respondent Union in Case No. 2-CB- 1382 , has not engaged in unfair
labor practices as alleged in the complaint within the meaning of Section 8 (b)
(1) (A) and (2) of the Act.
[Recommendations omitted from publication.]
Darling and Company and International Chemical Workers
Union, Local No. 127, AFL-CIO. Case No.14-RM-1929. July 31,
1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John H. Rogers , hearing
officer . The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Union contends that the Employer's petition must be dis-
missed on the ground that there is no claiming labor organization
which is in compliance with the filing requirements of the Act and
qualified to appear on the ballot if an election were directed. The
facts are as follows :
In 1938, International Chemical Workers Union, Local No. 127,
AFL-CIO, herein called Local 127, was recognized by the Employer
as representative of the production employees at its East St. Louis,
Illinois, plant. Since then, Local 127 and the Employer have had suc-
cessive contracts covering these employees, the latest of which was
for a 1-year term from February 1, 1955, to January 31, 1956. About
the time this last contract was executed, International Chemical
Workers Union, AFL-CIO, herein called the International, ap-
pointed a supervisor and receiver, O. E. Kernick, for Local 127 be-
cause of an alleged defalcation of funds by its treasurer and business
agent. While it continued under the receivership of Kernick, Local
127 forestalled automatic renewal of the contract and initiated nego-
tiations with the Employer for a new agreement.' Meanwhile, Dis-
1 In the course of these negotiations , a 7-day extension to the old contract was executed.
116 NLRB No. 43.
DARLING AND COMPANY 375
trict 50, United Mine Workers, herein called District 50,2 presented
the Employer with a demand for recognition in the historical unit.
Thereafter, on January 18, 1956, the date of a scheduled conference
between the contractual parties, District 50 again claimed majority
status and informed the Employer that on the preceding evening the
membership and elected officials of Local 127 had voted to go over to
.District 50. The Employer immediately received confirmation of this
information from Local 127's elected officials, as well as a threat to
strike if the Employer continued to deal with Local 127. Thereupon,
on the same day, the Employer filed the instant petition for a deter-
mination of representatives, alleging that it had been presented with
claims for recognition by District 50 and Local 127. On January 24,
1956, Kernick was replaced as supervisor and receiver for Local 127,
by John Gratz, vice president of the International, and Gratz refused
to file a non-Communist affidavit for the office to which he was newly
appointed, as required by Section 9 (h) of the Act.
The Employer, in opposition to the Union's contention, urges that,
by the fact of its having placed Local 127 under receivership, the
International has in effect become the claiming labor organization,
and, as the International is itself in compliance, an election should be
directed under the procedure adopted by the Board in the case of
Calcasieu Paper Company, Inc., 109 NLRB 1186.
In the Calcasieu case, also involving an RM petition, the claiming
incumbent consisted of 2 international unions which had been cer-
tified as joint representatives of the appropriate unit and, subsequent
to certification, had established 3 locals to represent the employees in
the unit. There, despite the fact that the locals' compliance had
lapsed prior to the hearing, the Board found that the locals' noncom-
pliance did not preclude the Board from resolving the question con-
cerning representation raised by the complying internationals, and
it directed an election placing the internationals on the ballot, with
the proviso that, if the internationals won, they would not be certified
unless the locals came into compliance by the date of the election. In
the instant case, however, the International has never been the ma-
jority representative or asserted a claim to representation in the his-
torical unit. On the contrary, Local 127 has been for many years the
recognized representative in this unit, as indicated by successive con-
tracts, and is still claiming majority status. Although the Interna-
tional has placed a supervisor and receiver over the affairs of Local
127, we are satisfied that Local 127 is not defunct and continues as a
separate entity. Indeed, it is clear that the receivership was nothing
more than an internal device designed to conserve the assets of Local
127 and to insure the latter's ability to function effectively under its
_2 District 50 was present at the hearing but did not intervene in the proceeding.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outstanding charter, as the bargaining representative of the employees
in question. We are therefore unable to agree with the Employer that
the receivership imposed by the International extinguished the life,
as well as the claim of the local and in turn vicariously made the In-
ternational the claimant, within the meaning of the Calcasieu rule.
Accordingly, we, find that Local 127, and not the International, is the
incumbent labor organization and is claiming continued representa-
tive status in the contract unit which it has historically represented.
. However, our records show that Local 127 is not at the present time
in compliance with the filing requirements of the Act and that District
50, the other claiming labor organization, has never achieved such
compliance. The issue thus posed in this case is whether the Board
is empowered to proceed to an election on the Employer's petition
which requests an investigation of the question of representation raised
by the aforementioned labor organizations, neither of which has com-
plied with the filing requirements of Section 9 (f) and (h). In
December 1947, less than 4 months after the enactment of the Taft-
Hartley amendments to the Act, the Board was faced with this very
issue in the case of Herman Loewenstein, Inc., 75 NLRB 377.
Section 9 (c) (1) (B) of the Act authorizes the Board to investigate
a petition filed by an employer alleging that "one or more individuals
or labor organizations have presented to him a claim to be recognized
as the representative defined in section 9 (a)." Thus, as the Board
stated in the Loewenstein case,' "Although it is the employer's peti-
tion in such a case that sets the Board's machinery in motion, it is an
individual's or a labor organization's initial claim for recognition that
makes it possible for the employer to invoke that machinery." It is
therefore the claiming individual or labor organization that raises the
question concerning representation, not the employer. When the em-
ployer files its petition, it is invoking the Board's machinery for the
purpose of resolving the question concerning representation raised by
the representation claim or claims of "one or more individuals or labor
organizations."
In its Loewenstein decision, the Board interpreted the provisions of
Section 9 (f) and (h) 4 as prohibiting investigations of questions con-
cerning representation raised by noncomplying labor organizations,
whether instituted by petitions filed by such labor organizations or by
employers. Our dissenting colleague has taken the view that the
Loewenstein doctrine is basically unsound and should be reversed. We
disagree with this view. We recognize now, as the Board did when it
enunciated the Loewenstein doctrine, that this construction of the pur-
3 At p. 383.
4 Section 9 (f) and ( h) each provides : ,No investigation shall be made by the Board
of any question affecting commerce concerning representation of employees , raised by a
labor organization under subsection ( c) of this section . . ." unless such labor organiza-
tion shall have complied with the filing requirements of said sections as prescribed therein.
DARLING AND COMPANY 377
port of the Act may sometimes result in depriving an employer of in-
formation which the amended Act would permit it to secure if a com-
plying labor organization were claiming representative status, and
that, in the face of conflicting policy considerations, the amended Act
and its legislative history provided no sure answer as to which should
prevail. However, we also reaffirm the Board's conclusion in that case
that the exclusion of noncomplying unions from the ballot in elections
petitioned for by an employer is more nearly consistent with the super-
vening policy of denying the imprimatur of Government to such labor
organizations. The Loewenstein doctrine has been applied in a num-
ber of cases since 1947.5 Surely, if Congress, during the years inter-
vening between Loewenstein and the present case, had viewed the
Board's interpretation of Section 9 (f) and (h) as basically unsound
and inconsistent with its intent, it could have removed any ambiguity as
to its intent by changing the language of these provisions to exclude ex-
pressly from their ambit representation petitions filed by employers.
We believe that the Board, when it adopted the Loewenstein policy,
weighed carefully the arguments raised by our dissenting colleague.
We have reconsidered these arguments in the light of the history
of the doctrine's application and find in them no compelling reason
to reverse the established policy. At this late date, we are of the
opinion that Congress, and not the Board, should determine whether
or not the Loewenstein policy incorrectly reflects congressional intent
as expressed in Section 9 (f) and (h) of the amended Act, or whether
the Act should be modified to better resolve conflicting policy considera-
tions. For the foregoing reasons, we adhere to the interpretation
which the Board placed upon Section 9 (f) and (h) in the Loewenstein
case.
In view of that policy, which provides, in essence, that, under the
Act, a noncomplying union shall not be the beneficiary of any Board
investigation, we must dismiss the instant petition.6
[The Board dismissed the petition.]
MEMBER RODGERS, dissenting :
The question presented by this case is whether an RM petition, duly
filed in accordance with law, is to be dismissed, not because of any
dereliction on the part of the petitioning employer, but because of
the willful failure of the claiming unions to comply with Section 9
(h) of the Act. My colleagues of the majority have seen fit to dis-
miss the RM petition herein, solely because of the noncompliance of
5 See Staten Island Cleaners, Inc., 93 NLRB 396 ; The Federal Refractories Corporation,
100 NLRB 257; Telegraph Publishing Company, 102 NLRB 1173 ; Law Tanning Company,
109 NLRB 268. Cf. Calcasieu Paper Company, Inc., supra.
d We accordingly find it unnecessary to pass upon any of the issues raised in this pro-
ceeding, as well as Local 127's post-hearing request filed with the Board for institution of
a collateral investigation of its compliance status.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the two claiming unions, one of which has never seen fit to comply
with Section 9 (h) of the Act, the other of which has: deliberately
caused its compliance to lapse in order to avoid an election, and thereby
frustrate the purposes of the Act. In my opinion the result reached
by the majority is clearly inconsistent with the intent and purpose
of a number of the fundamental precepts of the law. Accordingly,
I am impelled to dissent.
The facts here are not in dispute. District 50, United Mine Workers
and another union, International Chemical Workers Union, Local
No. 127, AFL-CIO, herein called Local 127,- both claim to represent
the Employer's employees. District 50 has never filed the non-Com-
munist affidavits required by Section 9 (h) of the Act. Local 127
was in compliance with Section 9 (h) throughout the year 19551
Its compliance ceased on January 24, 1956, under the following cir-
cumstances.
Local 127 has been the bargaining representative of the Employ-
er's employees for the last 17 years. In November 1955, District 50
demanded recognition. In December 1955, Local 127 and the Em-
ployer began to negotiate a new bargaining- contract. On January
17,' 1956, the members of Local 127 held a meeting, and voted "not to
have the Chemical Workers represent them any further," and to desig-
nate District 50 as their bargaining representative.
On January 18, District,50 renewed its request for recognition; and
a spokesman for Local 127's bargaining committee informed the Em-
ployer that the employees would strike if the Employer persisted in
its dealings with the Chemical Workers. The Employer, thereupon,
on January 18, filed a petition with the Board seeking a determination
of representatives, and citing the conflicting claims of Local 127 and
District 50.
On January 24, 1956, the Chemical Workers removed Oliver E.
Kernick from his position as supervisor and receiver of Local 127.
He was replaced by John Gratz, International vice president, who has
refused to file a non-Communist affidavit with respect to the position
of supervisor and receiver of Local 127.8 . As a result, Local 127 has
fallen into noncompliance with Section'9 (h).
Local 127 openly admits that Kernick's replacement as Local 127's
supervisor and receiver, and Gratz' refusal to file a non-Communist
affidavit, I were intended to cause Local, 127 to lapse into noncom-
.Y
On March 31, 1955, and again on September 19, 1955, the Regional Director notified
Local 127 that it was in compliance with the filing requirements of the Act . The Regional
Director 's action was in part predicated on a certificate signed by the supervisor' and
receiver of Local 127 , Oliver E. Bernick, reciting that all Local 127's other offices
were vacant.
s Gratz holds , or has held, supervisory positions in six other Chemical Workers locals.
He has filed non-Communist affidavits with respect to these positions . On August 10, 1955,
Gratz filed a non-Communist affidavit with respect to his position as International vice
president.
DARLING AND COMPANY 379
pliance and to prevent an election in this proceeding. In a brief
filed with the Board, Local 127 states : "As of January 24, 1956, the
Chemical Workers Union's compliance lapsed due to change in Re-
ceivers and Supervisors. Such lapse in compliance by the Chemical
Workers Union was intended to prevent the Board from asserting
jurisdiction in the instant case. . . ." [Emphasis supplied.]
My colleagues rest their decision to dismiss the Employer's peti-
tion herein on the Loewenstein 9 and Federal Refractories 10 cases.
These Board cases stand for the proposition that an employer's peti-
tion will be dismissed, even though a demand for recognition has
been by a noncomplying union, and even though such noncomplying
union may be striking, or threatening to strike, to compel that em-
ployer to recognize it as an exclusive bargaining representative of
the employer's employees. The reasoning underlying this proposition
is set forth in the Loewenstein case. I believe that the Loewenstein
decision, like the decision herein, is basically unsound and should be
reversed. I base this conclusion on the following reasons :
In the first place, neither the words of Section 9 (h) of the Act,
nor their legislative history, gave reason for the Loewenstein decision.
On the contrary, it appears that the Loewenstein doctrine is a mis-
application of the statutory language and the legislative purpose.
The words of Section 9 (h) 11 do not refer to employer petitions.
They merely prohibit the investigation of questions concerning rep-
resentation "raised by a labor organization under subsection (c) of
this section,"-words which, in their context,12 have application, it
9 Herman Loewenstein , Inc., 75 NLRB 377.
10 The Federal Refractories Corporation, 100 NLRB 257.
11 As enacted, and as it appeared when the Loewenstein case was decided, Section 9 (h)
provided in pertinent part : "No investigation shall be made by the Board of any question
affecting commerce concerning the representation of employees, raised by a labor organiza-
tion under subsection (c) of this section, no petition under section 9 (e) (1) shall be
entertained , and no complaint shall be issued pursuant to a charge made by a labor
organization under subsection ( b) of section 10, unless there is on file with the Board
an affidavit executed . .. by each officer of such labor organization . . . that he is not a
member of the Communist Party.. . .
The language "no petition under section 9 (e) (1) shall be entertained" has since been
eliminated from Section 9 (h). Section 9 (e) (1) referred to union petitions for authority
to execute union-security agreements.
Because Section 9 ( h) spoke "in terms of questions raised, rather than petitions.12
filed , by labor organizations ," the Board concluded that "the statutory language supports"
an application of Section 9 (h) to proceedings instituted by petitions filed by employers.
In thus construing the "statutory language" the Board overlooked the context in which
the phrase "raised by a labor organization under subsection (c) of this section " appeared.
These words in the first clause of Section 9 (h) were followed directly by the language:
"no petition under section 9 (e) (1) shall be entertained, and no complaint shall be issued
pursuant to a charge made by a labor organization under subsection (b) of section 10."
The language of these latter clauses clearly refers to procedural steps taken by labor
organizations under the Act-that is, the filing with the Board of a union-security authori-
zation petition, or a charge ; and the direct conjunction of these clauses with the words
"raised by a labor organization under subsection ( c) of this section," demonstrates that
these latter words also refer to a procedural step taken by a labor organization under
the Act-that is, the filing of a representation petition. In its context , therefore, I do
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seems to -me, only to representation petitions filed by labor, organiza-
tions.
- Similarly there is nothing in the Act's legislative history warrant-
ing Section 9 (h)'s application to employer. petitions. Indeed, the
Board referred to none 13 On the contrary, insofar as the congres-
sional intent is shown by the legislative history, it appears that Sec-,
tion 9 (h) was intended to apply only in those instances when a labor
organization invoked the Board's processes by filing either a peti-
tion or a charge.14
In the second place, the Loewenstein decision, by impairing a statu-
tory right given employers, contravenes the intent and purpose of
Section 9 (c) (1) (b).15 Senator Taft said with respect to the power
by Section 9 (c) (1) (B) to employers to petition the Board for elec-
tions : 16
not think it material that the first clause of Section 9 (h) speaks "of questions raised
rather than petitions filed," and the emphasis that the Board placed on this fact seems
tome to be unwarranted.
'According to the Board in the Loewenstein case, by the words "raised by a labor
organization" in Section 9 (h), Congress "intended to draw" a distinctipn "between a
claim for recognition made by a union and a similar claim made by an individual of
individuals, not between a union petition and an employer petition filed with the Board "
Only in this context did the Board refer to the congressional "intent" in the Loewenstein
case. Moreover, the Board cited no legislative authority to support this interpretation
of the congressional "intent." Indeed, as stated in the text, none could have been cited.
14 Describing to the House the bill that was recommended by the Committee of Confer-
ence, and'which was ultimately enacted, Representative Hartley said: "The bill further
prohibits labor organizations from invoking the processes of the act unless all of the
officers file affidavits with the board that they are not members of the Communist Party
or other subversive organization." [Emphasis supplied ] 93 Cong Rec 6540, 8th Cong.,
1st Sess. (1947). Senator Taft described Section 9 (h) as making the filing of non-
CgRmpunist affidavits by union officers "a condition precedent to the use of the processes
of the Board" [Emphasis supplied.] Id. at 7002. And'Senator Murray also appears to
have,understood that Section 9 (ii) was concerned only with the processing of any "repre-
sentation case, union security election, or unfair labor practice case initiated by a labor
organization." [Emphasis supplied.] Id. at 664.
The prohibitory language of Section 9 (h) Is exactly the same as the prohibitory language
of Section 9 (f), after which it was presumably modeled by the Committee of Conference.
See H. R. 3020, as passed by the Senate, 80th Cong., 1st Sess. (1947). With respect to
Section 9 (f), the House managers said : "The conference agreement (Sec. 9 (f) and (g) )
adopts the provision of the Senate amendment with three changes therein. First, the filing
of the information and reports is made a condition of eligibility for filing petitions for
representation. . . [Emphasis supplied.] H. Conf. Rep. No. 510, p. 51, 80th Cong., 1st
Sess. (1947).
Section 9 provides in pertinent part :
(c) (1) Whenever a petition shall have been filed, in accordance with such regula-
tions as may be prescribed by the Board-
O t 0 i • i A
(B) by an employer, alleging that one or more individuals or labor organizations
have presented to him a claim to be recognized as the representative defined in
section 9 (a) ;
the Board shall investigate such petition and if it has reasonable cause to believe that
a question of representation affecting commerce exists shall provide for an appropriate
hearing upon due notice. Such hearing may be conducted by an officer or employee
of the regional office, who shall not make any recommendations with respect thereto.
If the Board finds upon the record of such hearing that such a question'of representa-
tion exists, it shall direct an election by secret ballot and shall certify the results
-thereof.
16 93 Cong Rec. 3954, 80th Cong., 1st Sess. (1947).
DARLING AND COMPANY 381
An election under present law may be sought only by a,
union...
Today an employer is faced with this situation. A man comes
into his office and says, "I represent your employees. Sign this
agreement, or we strike tomorrow." Such instances have occurred
all over the United States. The employer has no way in which to
determine whether this man really does represent his employees
or does not. The bill gives him the right to go to the Board
under those circumstances, and say, "I want an election. I want.
to know who is the bargaining agent for my employees." Cer-
tainly I do not think anyone can question the fairness of such a
proposal. [Emphasis supplied.]
The minority of the Senate Committee on Labor and Public Welfare
said about this matter :17
We concur with the grant of the right of employers' petition in
Section (c) (1) (B).... [Emphasis supplied.]
These, and other," congressional pronouncements make it clear
that the power granted an employer to file a representation petition is
a "right" under the Act-the counterpart of the union's "right" to
petition-and that this "right" entitles him to an election upon his
petition whenever a claim for recognition has been made. There is
nothing, moreover, in the language of the Act, or in its legislative
history, to show that this "right" is qualified in any manner by the
failure of a labor organization to comply with Section 9 (h). Dis-
regarding these facts, however, the Loewenstein decision, converted
the unqualified "right" of an employer into a conditional "right," or
license, subject to the control of labor organizations that do not com-
ply with Section 9 (h) -a situation that is clearly illustrated by the
facts of this case. The Loewenstein decision has thus served in large
part to nullify Section 9 (c) (1) (B). In the same manner, the Loe-
wenstein rule, by subjecting employer "rights" to union control, is in-
consonant with the stated purpose of the Act, as set forth in Section
1 (b) : " . . . to prescribe legitimate rights of both employers and em-
ployees . . . [and] to provide orderly and peaceful procedures f &r
preventing the interference by either with legitimate rights of the
other . . ; and is also inconsonant with another basic tenet of the-
Act, namely, to guarantee the free and untrammeled choice of a bar-,
gaining representative to the employees involved. [Emphasis sup-
plied.]
17 Sen. Minority Rep. No. 15, Pt. 2, p. 41, 80th Cong., 1st Sess. ( 1947).
us Senator Ellender said about the legislation giving employers the power to petition :
[It] gives employers and individual employees the same right of petition which
unions have heretofore enjoyed." 93 Cong. Rec. 4266 . In addition , with reference to the
employer's "right" to petition, see Sen. Rep. No. 105, pp. 10-11 ; 25, 80th Cong., 1st Bess.
(1947 ) and statements by Senators Ball and Morse, and by Representative Meade, 93
Cong. Rec. 5146, A2377, 1911, A2010.
382 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
In the third place, the Loewenstein decision reached a result that
is inconsistent with the Board practice in decertification cases. The
Board 'in the Loewenstein case stated that a victory at the polls, even
-without later formal certification, would confer certain • "moral and
practical advantages"' on a noncomplying union-a result, which it
was thought desirable to avert. Certainly whatever these "moral
and practical advantages" are, they are equally applicable to an elec-
tion brought on by the filing of a decertification petition. Neverthe-
less, some 2 months after the Loewenstein case was decided, the Board,
in the Harris-Foundry case,"' adopted its present decertification rule,
and ignoring those "advantages," directed an election in a decertifica-
tion case where the union involved had not complied with the filing re-
quirements of the Act. Explaining its decision in the Harris Found-
ry case, the Board said (76 NLRB 118,120) :
To hold otherwise would confer upon noncomplying unions the
power to immunize themselves against decertification proceed-
ings by their very refusal to comply with the registration and
filing requirements of the amended Act.
Thus in. the Harris Foundry case, the Board not only.reached it result
inconsistent with the Loewenstein result, but, in view of the quoted
language, it also demonstrated a prescience which unfortunately ap-
peared to have been lacking when Loewenstein was decided. For the
Loewenstein decision has enabled labor organizations to "immunize"
themselves against employer-requested elections-a result which, it
seems to me, is no more desirable than the thwarting of decertification
petitions. Certainly, the facts of this case, particularly Local 127's
deliberate actions, show how noncompliance can be utilized to obtain
this "immunization." 20
Finally, the Loewenstein decision has bestowed upon noncomplying
unions benefits certainly not intended by the Congress, and has
brought serious competitive disadvantages to those labor organiza-
tions that have complied with Section 9 (h) in order to facilitate the
orderly procedures and practices established by the Act. For ex-,
ample, a complying union is ordinarily carried to an election-upon an
employer's petition, and if it loses it is denied another election for
at least a year. Similarly, where an employer's petition is dismissed
because of a union's disclaimer of interest in the employees involved,
the Board will not entertain the union's representation petition until
6 months have elapsed, and will, if the union presses its claim within
that period, consider the reinstatement of the employer's petition?'
iD Harris Foundry it Machine Company, 76 NLRB 118
2° Sep Calcasieu Paper Company, Inc, 109 NLRB 1186, where the Board, in a case in-
volving an employer petition placed an international union on the ballot, although the
locals ,involved were not in compliance This case ns • in effect inconsistent 'with the
Lpgicenstein case. The Board in the, Calcasieu case was concerned lest the congressional
purpose be frustrated by,encouraging noncompliance.
21 Campos Dairy Products Limited, 107 NLRB 715
DARLING AND COMPANY 383
On .the other hand, a noncomplying union is permitted under the
Loewenstein doctrine to press its claim and, at the same time, avoid
the effects of these rules. Thus, a minority union, by deliberately
placing itself in a noncompliance status, need neither disclaim its
interest nor have its position revealed by an election. '
This anomalous situation tends, in my opinion, to encourage strikes,
picketing, harassment, and other disruptive practices, most of which
run counter to the basic purposes of the Act, and many of which might
well be eliminated 22 were the Board to overrule the Loewenstein
case and give proper recognition to the employer's right of petition,
and extend its election procedures to resolve these situations as they
arise.
My three colleagues who here affirm the Loewenstein doctrine point
out, in justification, that the Loewenstein decision was first announced
in 1947, that the Board has applied the doctrine in a number of cases
since that time, and that in the intervening years the Congress has
not overruled the decision by changing the Act's language. Such
congressional silence, say my colleagues, shows that the Loewenstein
interpretation of the Act is not unsound and that the Congress has
tacitly approved it. This argument, I submit, is basically unsound
and specious. If all administrative determinations are to be con-
sidered as sound in the absence of specific congressional disapproval,
then the doctrine of judicial review would have little,, or no, meaning,
and might just as well be discontinued. An obvious refutation of
my colleagues' argument is close at hand, however. One need only
turn to the legislative history of the Taft-Hartley Act to see that the
inaction of Congress in the years 1935-1947 certainly did not mean
that the Congress thereby approved each and every Board interpre-
tation of the earlier Wagner Act 23
For the reasons indicated, I would implement the declared purpose
of the Act "to provide orderly and peaceful procedures" by reversing
the Loewenstein and Federal Refractories decisions, and by directing
an election in this case. I would place both District 50 and Local
127 on the ballot. Regardless, however, of the outcome of such an
election, I would have the Board certify only its arithmetical results.
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
22 If a claiming , minority , union is forced by an election to reveal its minority status,
a strike situation may well be avoided. For aside from the possible consequences of such
a strike to the union itself , a recognition strike in such circumstances by a minority union
would , in my opinion , have an unlawful purpose as its end-namely, the commission of an
unfair labor practice by the employer in recognizing a minority union-and employees who
engaged therein would forfeit the Act's protection. See The Hoover Company v. N. L. R. B.,
191 F. 2d 380, 385, 386 (C. A. 6) ; Thompson Products, Inc., 72 NLRB 886; The American
News Company, Inc., 55 NLRB 1302. Cf. Brookville Glove Company, 114 NLRB 213.
28 For example, see H. Rep. No. 245, p. 18, 80th Cong., 1st Sess. (1947), showing con-
gressional disapproval of the Board's interpretation of the term "employee" to include
independent contractors.