NATIONAL LABOR RELATIONS BOARD

90 THIRD ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARD
The only labor organization to whom the proviso can apply is one
not established, maintained, or assisted by , any action defined in the
act as an unfair labor practice. Accordingly, in an early case, the
Board found the respondent's refusal to reinstate 96 employees, in
reliance upon a closed-shop agreement,- violative of section 8 (3)
because the labor organization had been established by acts defined
in section 8 (2) as unfair labor practices. 22 The Board said : "The
tainted origin of the Association thus prevents the respondent from
using its agreement with the Association as a shield behind which it
may operate in a manner forbidden by the Act." 23 The Board has
consistently applied this view without regard to the affiliation of the
union favored by the employer and without regaid to the affiliation
of the union disfavored by the employer. 24 In Matter of National
Electric Products Corporation, 25 the Board found that the agreement
did not come within the proviso because the labor organization
involved had been assisted by acts defined in section 8 (1) as unfair
labor practices.26
The labor organization also must be the representative of the employees
as provided in section 9 (a) of the act in the appropriate collective
bargaining unit. Accordingly, the Board has overruled the
defense when based on an agreement with a union not designated as
collective bargaining representative by a majority of the employees
in the appropriate bargaining unit at the time the agreement was
made.2T
C. COLLECTIVE BARGAINING
1. REFUSAL TO NEGOTIATE
Many of the cases in which the Board has found that the employer
did not discharge its obligation under section 8 (5) of the act have
revealed simply a refusal by the employer to enter into negotiations
with the representatives of its employees. Thus, the Board has frequently
found that an employer had committed an unfair labor practice
in instances where it expressly refused to negotiate or to meet
2=2 The Board held that the proviso would not apply, although the acts of employer assistance
and support occurred prior to the effective date of the Act. Otherwise, said the Board
"An employer could perpetuate an organization of his creation prior to July 5, 1935, by
entering into a closed-shop agreement with it after July 5, 1935, thus enabling it to thrive
on the support afforded by the agreement and permitting it to dispense with the constant
assistance obtained from company domination and support which would otherwise be
necessary."
23 Matter of Clinton Cotton Mills and Local No. 2182, United Textile Workers of America,
1 N. L. R. B. 97.
24 For example, Matter of The Grace Company and United Garment Workers' Local 47,
7 N. L. R. B. 766; Matter of Highway Trailer Company and United Automobile Workers
of America, Local No. 105 and Local No. 136, 3 N. L. R. B. 591. enforced in National Labor
Relations Board v. Highway Trailer Company, 95 F. (2d) 1012 (C. C. A. 7th, 1938).
Matter of -Hill Bus Co., Inc., and Brotherhood of Railway Trainmen, etc. • 2 N. L. R. B. 781.
25 Matter of National Electric l'roducts Corporation and United Electrical and Radio
Workers of America. Local No. 609. 3 N. L. R. B. 475.
26 Also, Matter of Jacob A. Hunkele, etc., and Local No. 40, United Laundry Workers' Union,
7 N. L. R. B. 1276; Matter of Afiesouri-Arkansas Coach Lines, Inc., and the Brotherhood
of Railway Troinown. 7 N. L. R. B. 186 : Matter of Zenite Metal Corporation and United
Automobile Workers of America Local 442, 5 N. L. R. B. 509; Matter of National Motor
Bearing Company and International Union. United Automobile Workers of America, Local
No. 76, 5 N. L. R. B. 409; Matter of Lenox Shoe Company, Inc., and United Shoe Workers
of America, etc., 4 N. L. R. B. 372.
27 Ibid.