State Ex Rel. Berland Shoe Stores, Inc. v. Haney

Stone, Justice. On certiorari, the district court vacated the certification, made by. Mr. Haney, as labor conciliator of the department of labor and industries, of a bargaining agent for employes. He appeals. The case is the first to come to us under the Minnesota Labor Relations Act, L. 1939, c. 440, 3 Mason Minn. St. 1940 Supp. §§ 4254-21 to 4254-40. Thereby was established a “division of conciliation” in the department of labor and industries. It was put under control of the labor conciliator. The only portion of the act with which we are now concerned is § 16, having to do with the selection, with or without intervention of the conciliator, of representatives by employes for collective bargaining. Its declaration, now important, is that: “Representatives designated or selected for the purpose of collective bargaining by the majority of the employes in a unit appropriate for such purposes shall be the exclusive representatives of all the employes in such unit for the purposes of collective bargaining * * *” There is a proviso that any individual or group shall have the right to present grievances to their employer in person or through representatives of their own choosing. The section proceeds to authorize the conciliator, upon request of any of the parties, to investigate any controversy concerning representation and “certify to the parties in writing the name or names of the representatives that have been designated or *107 selected.” It is provided also that “in any such investigation, the labor conciliator may provide for an appropriate hearing.” Respondent has a retail shoe store in St. Paul. We infer that it was an “open shop” when, on September 27,1939, Retail Clerics Union, Local No. 2 (hereinafter mentioned as “the local”) demanded that respondent enter into a contract covering hours of labor, rates of pay, and conditions of employment. The demand amounted to an ultimatum. A form of the contract desired was submitted to the store manager, and, forthwith, the local, in writing, requested the assistance of the labor conciliator. During the afternoon of October 3, on his invitation, the parties met with the conciliator, the local being represented by Mr. Brennan, and respondent by its northwest supervisor, Mr. Spivak. Mr. Brennan, for the local, accused respondent of improper anti-union activities, going on to say that “at this time the union represented a majority of the employes, and they were demanding that a contract be negotiated and signed.” On his part, Mr. Spivak not only denied the charge of “coercion on the employes,” but also “challenged the right of the union to majority representation.” Thereupon the conciliator suggested that the local “submit a list of authorization cards and that the company [respondent] submit a list of the employes.” He went on to say that, “after comparing the two, he would certify the result.” The record of that meeting proceeds thus: “Mr. Spivak was to ask for permission from his home office at St. Louis to negotiate this contract and, upon receiving it, felt that if the union represented the employes, they could proceed with the negotiations.” The record of the meeting concludes with the statement that “the company is to furnish us with a list of their employes, and the union is to submit the list of authorization cards, and we are to meet again jointly Friday at 2 p. m.” At the adjourned meeting Mr. Spivak was again present for respondent, and Mr. Brennan and three others for the local. That is, both parties to the controversy were present by designated representatives. Those of the local succeeded in having *108 certain names stricken from the company’s list of employes, because of casual employment or supervisory capacity. Mr. Spivak apparently did not question the genuineness of any of the authorization cards. The discussion concluded: “The Conciliator announced that the union had a majority and was entitled to certification as the exclusive representative of the employes” and “that he would confirm this announcement in writing to the parties concerned.” Promptly thereafter the conciliator formally and in writing did certify the local as bargaining agent for the employes in respondent’s store. With the negotiations which followed, we are not concerned. Apparently they failed and a strike resulted. Most of the argument has to do with the construction of the statute [§ 16(b)] from the standpoint of due process. For respondent it is argued that, in order to pass the constitutional test, the law must be construed as requiring a hearing, with notice, as condition precedent to the certification of a bargaining agent. It is summed up in this characteristically compact sentence of the learned trial judge: “It will not do to say that the employer has no interest in the determination of the bargaining agents with whom he is required to negotiate.” Of course it was not thereby meant to suggest that the employer may participate in or interfere with the action of his employes in selecting a bargaining agent. Rather and only the thought was that the employer is entitled to a hearing preceding such certification. . Assuming the soundness of such argument for respondent, so far as it presents the law, we are yet constrained to say that it has no application to the facts. It seems to us quite plain that the conciliator was so well advised that he afforded respondent a full and fair hearing, which was as comprehensive on the question of representation as respondent at the time seemed to desire. Our references to the record show the extent to which respondent participated. Mr. Spivak made the issue very clear in his chai- *109 lenge of the right of the local to represent the employes. Each side submitted its lists. They were examined and to some extent challenged. Neither, apparently, wanted to submit more by way of evidence or argument. The issue so submitted to the conciliator was decided by his certification of the right of the union to representation. There was here no decision “upon the strength of information secretly collected and never yet disclosed.” There was no “curt refusal” to disclose the factual ground of decision, nor concealment of the “underlying proofs” such as were fatal to the rate order in Ohio Bell Tel. Co. v. Public Utilities Comm. 301 U. S. 292, 300, 57 S. Ct. 724, 81 L. ed. 1093. In such a case, where the party having the right to notice and hearing is accorded a full and fair hearing, in which he participates without objection, it is thereafter too late for him to attack the whole proceeding and its result, otherwise unchallenged, upon the ground that he was entitled to notice. There is a waiver of notice under the rule of such cases as Peterson v. Board of Supervisors, 199 Minn. 455, 272 N. W. 391. Possibly it would be better to say that where, without notice, the adversary parties have joined in the hearing without objection, the requirement of notice has simply become inoperative. Its subject matter has disappeared and its sole purpose accomplished because the parties have made general submission to jurisdiction. If a party “actually appears in the proceeding, the notice becomes unimportant.” 12 Am. Jur., Constitutional Law, § 606. Because, therefore, preceding the conciliator’s certification of the local’s right to employe representation, there was a full hearing, participated in by respondent without'objection, we think it was error to vacate the certification. In consequence, the order under review must be reversed. So ordered.