Before FRIENDLY, KAUFMAN and HAYS, Circuit Judges.
HAYS, C.J.: The petitioners, an employers' association and certain individual employers, seek review of orders entered against them by the National Labor Relations Board and based upon that Board's finding of violations of the National Labor Relations Act, 29 U.S.C. § 151 et seq . (1958). We hold that the orders must be set aside.
For a number of years the employers have had collective bargaining agreements with Deck Scow Captains Local 335, United Marine Division, National Maritime Union, AFL-CIO, as representatives of their employees working on scows.*fn1 The most recent of these agreements was executed in 1959 for a period to end on March 31, 1961.
At a membership meeting of Local 335 held on May 15, 1960, a motion was adopted providing for a special meeting to be held on May 29, 1960 for the purpose of discussing the disaffiliation of Local 335 from the United Marine Division of the National Maritime Union.
At the meeting which was held on May 29 "about" 130 of those in attendance voted for disaffiliation and "about" 14 against. The Local had at that time approximately 750 members.
In the meantime on May 20 the United Marine Division designated a "temporary administrator" of the affairs of Local 335 and wrote to the employers advising them to deal with the administrator on all matters concerning the collective agreement. This same advice was repeated in response to a telephone call from an employer representative on May 27 or shortly thereafter. In fact at all times since these dates representatives claiming to act for Local 335, United Marine Division, have continued to demand that the employers observe the terms of the collective agreement. The employers, on their side, have acceded to these demands and have recognized and dealt with that Local.
After the disaffiliation vote of May 29, representatives claiming to act for "Local 335, Independent" also wrote to the employers informing them of the action which had been taken and from time to time thereafter demanded that the employers deal with that Local. The employers refused to do so and continued to bargain with Local 335, United Marine Division.
It is the employers' refusal to deal with Local 335, Independent, which is the gravamen of the Board's complaint. (Section 8 (a)(5), 29 U.S.C. § 158(a)(5).) The other charges which the Board sustained, and the resulting orders, are all based upon the charge of refusal to bargain. Since if that charge falls the rest must follow, we shall deal only with the charge of refusal to bargain.
The employees involved were represented by Local 335, United Marine Division, prior to May, 1960 and the employers were required by the Act to bargain with that Local as the representative of their employees. The only means provided by the Act for effecting a change of representatives is through a Board-conducted election by secret ballot. Section 9(e), 29 U.S.C. § 159(e). It is apparently assumed by the Board, and we accept the assumption, that in the absence of such an election the employer was required to continue to bargain with the representatives "currently recognized." (Section 9(c)(1)(A), 29 U.S.C. § 159(c)(1)(A).)
The Board concedes the correctness of these propositions but seeks to escape their consequences by holding that Local 335, Independent, was a continuation of Local 335, United Marine Division, and that therefore no change in bargaining representatives took place. The decision thus turns entirely upon the correctness of the finding that Local 335, Independent, is, under a new name, the same organization as Local 335, United Marine Division.
Unless it is established that Local 335, Independent, is the same organization as Local 335, United Marine Division, the employers would be required by the Board's familiar contract bar doctrine*fn2 to continue to deal with Local 335, United Marine Division, during the period of the contracts with that organization.*fn3 Far from being required to recognize and bargain with Local 335, Independent, the employers would commit an unfair labor practice if they did so while the contracts with Local 335, United Marine Division, were still in force. And this would be true even if there was evidence which clearly established that Local 335, United Marine Division, had been repudiated by a majority of the employees and that a majority wished to be represented by Local 335, Independent.*fn4 Thus the issue in the present case is not whether a majority of the employees wished to have Local 335, Independent, rather than Local 335, United Marine Division, as their representative. Even if the evidence could be said to establish that they did, the employers would still have been required to bargain with Local 335, United Marine Division.
It is true that the Board claims that the application or waiver of the contract bar rule is a matter of discretion for the Board to determine and that it "may be applied or waived as the facts in a given case may require in the interests of effectuating the policies of the Act"*fn5 and that this position has been approved by the courts.*fn6 In the present case the Board did not purport to waive the contract bar rule, nor is there any indication that such a waiver would effectuate the policies of the Act. Moreover, the accepted significance of waiver of the contract bar rule is that an election will be held for the purpose of choosing between the old and a new representative, not that the employer will be guilty of an unfair labor practice for refusing to bargain with a new organization claiming the right to represent.*fn7 In fact it would be entirely arbitrary and unreasonable for the Board, waiving the contract bar rule for the purposes of this case, to hold the employers guilty of an unfair labor practice for bargaining with the union with which they had contracts and with which, therefore, they had every reason to believe that they were required to bargain.
But if, in spite of these considerations, it could be held that the Board exercised its discretion to waive the contract bar rule, the Board would still not be justified, absent an election, in finding the employers guilty of refusing to bargain with a new representative unless that finding was based upon evidence that the employers did not have a "good faith doubt" that the new organization represented a majority of the employees. N.L.R.B. v. Philamon Labs ., 298 F.2d 176, 179 (2d Cir. 1962); N.L.R.B. v. Jackson Press, Inc ., 201 F.2d 541, 544 (7th Cir. 1953). In the present case, not only did Local 335, Independent, fail to present any adequate evidence of majority representation, but there is no finding as to good faith since the Trial Examiner, whose findings, conclusions and recommendations were adopted by the Board, refused to pass upon that issue, stating that the employers' "motives or good faith are not material."
Thus it is clear that support for the Board's conclusion, if it has any basis in law, must rest solely and entirely on the finding that Local 335, Independent, was a continuation under a new name of Local 335, United Marine Division, and not a ...