NATIONAL LABOR RELATIONS BOARD

IX. LITIGATION 235
denied for the reason that the union has not come into court with clean hands.
It is not the union, but the Board, which is asking enforcement'
AN EMPLOYER MAY NOT ENGAGE IN UNFAIR LABOR PRACTICES IN
ORDER TO AVOID THREATENED ECONOMIC LOSS AND THUS TRANS-
FER THE BURDEN TO HIS EMPLOYEES
It has been squarely decided that an employer may not violate the
act because it is thought to be to his economic benefit to do so. In
National Labor Relations Board v. Star Publishing Co., 97 F. (2d)
465 (C. C. A. 9th), the Court rejected the company's contention that
it had been justified in discriminating against certain of its employees
because a failure to do so would have disrupted its business. The
Court held :
The Act prohibits unfair labor practices in all cases. , It permits no immunity
because the employer may think that the exigencies of the moment require infraction
of the statute.
THE BOARD IS ENTITLED TO LEGAL ENFORCEMENT OF ITS ORDER
BY THE COURT NOTWITHSTANDING THE ORDER HAS BEEN COM-
PLIED WITH
The principle is clearly established that a proceeding for the enforcement
of an order of the Board does not become moot because
of compliance on the part of the employer or because of a change in
circumstances subsequent to the issuance of the order. In National
Labor Relations Board v. Pennsylvania Greyhound Lines, supra, the
Supreme Court rejected the contention of the company that the case
had become moot by reason of the fact that neither it nor the company-dominated
union involved had objected to a Board certification,
made subsequent to the issuance of the order, of another labor organ- •
ization as the exclusive bargaining agency of the company's employees.
The Court stated :
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'
AN EMPLOYER WHO HAS REFUSED TO BARGAIN WITH REPRESENTA-
TIVES SELECTED BY A MAJORITY OF HIS EMPLOYEES ON THE
GROUND THAT IT WAS UNDER NO OBLIGATION TO DO SO, CANNOT
SUBSEQUENTLY JUSTIFY HIS CONDUCT ON THE GROUND THAT HE
HAD BEEN OFFERED NO PROOF OF MAJORITY
The principle has been established that an employer who has refused
to bargain with representatives of his employees because such
representatives were "outsiders" cannot thereafter defend his refusal
"Cf. National Labor Relations Board v. Columbian Enameling & Stamping Co., supra,
where the Court in denying the Board's petition for enforcement of its order, apparently
mistook the proceeding for a suit in equity by the union and applied the "clean hands"
doctrine. The Supreme Court granted the Board's petition for certiorari in this case on
October 10, 1938, so that the correctness of the Circuit Court's decision will no doubt
receive final judicial determination.
In 'Standard Lime & Stone Co. v. National Labor Relations Board, supra, the Circuit
Court of Appeals for the Fourth Circuit ruled that the Board. in determining whether the
union represented a majority of the employees at the time of a refusal to bargain during
a strike, could not consider as employees strikers who had been subsequently convicted of
acts of violence which occurred before the refusal to bargain. The effect of employee misconduct
is now before the Supreme Court for determination in the Columbian case.
"See also National Labor Relations Board v. Remington Rand, Inc., supra, and National
Labor Relations Board V. Oregon Worsted Co., 96 F. (2d) 193 (C. C. A. 9th). In the
Oregon Worsted case, the Court had previously rejected a motion of the company for an
order requiring the Board to certify to the Court a so-called report of the company showing
compliance with the recommendation" of the trial examiner's intermediate report,
as follows:
"The motion is based on the theory that since such report states that respondent has
complied with the recommendations of the trial examiner, the case is ended and the
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