Fulford v. Smith Cabinet Mfg. Co. , 118 Ind. App. 326 ( 1948 )

In this action, brought by the appellee company, the court below issued a temporary injunction against the appellants, about 100 in number, all of whom were picketing the company's plant, and all but two of whom were former employees of the company.

The evidence discloses that the appellee company manufactured and shipped radio cabinets from its plant in Salem, Indiana. In the spring of 1947, the two nonemployees started to organize the production workers. On August 19, 1947, a consent election was held and the union prevailed. (Local No. 309, C.I.O., United Furniture Workers of America.) Thereafter the company refused to recognize the union until it was certified as the representative of said employees and the union refused to take the necessary steps leading to certification. It is conceded that a labor dispute ensued. On September 4, 1947, the plant was struck. Mass. picketing followed. Bumper-to-bumper parking blocked ingress. Some of the pickets trespassed on company property. Many armed themselves with wooden staves belonging to the company. Others provided themselves with billy clubs. Some workers attempting to enter the plant were discouraged by threats. Several were physically detained. Local law-enforcement agencies were unable to cope with the situation. The work stoppage caused materials being processed to deteriorate and orders to be cancelled, as well as some damage to and loss of property.

The appellee company knew the results of the election and acknowledged the union's majority status. It refused to recognize the union as the employees' representative and refused to negotiate or arbitrate the question of recognition, which seems to have been the only demand made by the union.

The court heard the evidence, made findings pursuant to § 40-507, Burns' 1940 Replacement and entered a judgment which, in general, enjoins the commission of unlawful acts in connection with the picketing activities of the appellants. No complaint is made of the breadth of the order.

§ 40-508, Burns' 1940 Replacement reads as follows:

"No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration."

The substantial question presented is whether the judgment rendered was prohibited by that section for the reason that the appellee failed to comply with an obligation imposed by law, to-wit: failed to recognize the union as representative of the production employees and further failed to make every reasonable effort to settle the dispute by negotiation, mediation or voluntary arbitration.

The appellee insists it was not required to recognize the union as such representative in the absence of certification, and under the circumstances here, was not required to negotiate, mediate or arbitrate.

We think the answer is to be found in § 9 (f) (g) (h) of the Labor-Management Relations Act, 1947. (Taft-Hartley) (Public Law 101, 80th Congress). As above stated the election was held on August 19, 1947. The effective date of § 9 was August 22, 1947. The union had not been certified prior thereto and was never certified thereafter. The Act provides certain filing and affidavit requirements as a condition precedent to the acquisition by the union of any rights thereunder. Compliance entitled it to certification. It could not be certified in the absence thereof.

We think it is the plain intent of the Act that if a union is not eligible for certification it cannot compel recognition as the representative of the employees, and need not be 1. recognized as such. Any other construction would leave the unit without effective representation and would be contrary to the spirit of the Act. The company's refusal to recognize the union was therefore not a failure to comply with an obligation imposed by law.

Since the union's sole demand was for recognition as the representative of the production workers, upon which it insisted, but which the appellee was lawfully entitled to refuse, and 2. had finally refused, there was nothing to negotiate, mediate or arbitrate, for the law could not require the appellee, by the compulsory employment of those processes, and as the only possible result thereof satisfactory to the appellant, to forego a clear legal right.

It is probably true that under the National Labor Relations Act as it stood before amendment in 1947 the company would have been required to recognize the union as bargaining agent in the absence of certification. N.L.R.B. v. Dahlstrom Metallic DoorCo., 112 F.2d 756. But under that Act the union was not required to qualify itself in the manner above mentioned.

Finding no error, the judgment is affirmed.

Bowen, P.J., dissenting.

NOTE. — Reported in 77 N.E.2d 755.