274 F.2d 376
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, International Ladies' Garment Workers' Union, AFL-CIO, Northeast Department, and its Managing Agent, David Gingold, Local 111, International Ladies' Garment Workers' Union, AFL-CIO, and its Managing Agent, Sol Greene, Local 351, International Ladies' Garment Workers' Union, AFL-CIO, and its Managing Agent, Oscar Newman, Local 234, International Ladies' Garment Workers' Union, AFL-CIO, and its Managing Agent, Grace Birkel, Local 243, International Ladies' Garment Workers' Union, AFL-CIO, and its Managing Agent, Grace Birkel, and Local 109, International Ladies' Garment Workers' Union, AFL-CIO, and its Managing Agent, Harry Schindler, Respondents.
No. 12886.
United States Court of Appeals Third Circuit.
Argued January 5, 1960.
Decided February 4, 1960.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Jerome D. Fenton and Stuart Rothman, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Duane B. Beeson, Morton Namrow, Attys., N. L. R. B., Washington, D. C., for petitioner.
Morris P. Glushien, New York City (Sidney G. Handler, Harrisburg, Pa., Ruth Weyand, Washington, D. C., on the brief), for respondents.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
STALEY, Circuit Judge.


1
This petition for enforcement of an order of the National Labor Relations Board (Board)1 presents the unique question of whether a union and its agents violated Section 8(b) (3) and 8 (b) (1) (B) of the Labor Management Relations Act, 29 U.S.C.A. § 151 et seq., when they refused to meet and negotiate with a designated agent of the employers who had previously held responsible positions with the same union in the same territory.


2
The charging party in these cases, the Slate Belt Apparel Contractors' Association, Inc. (Association), is a Pennsylvania corporation which has as members approximately 100 employers who are engaged in performing certain sewing operations in the manufacture of blouses. The Association aims to improve the practices of people in the industry, to engage in collective bargaining with the union representing its employees, and also to handle negotiations with other trade associations in the industry. The International Ladies' Garment Workers' Union, AFL-CIO (ILGWU), its Northeast Department, and each of its locals which are respondents herein, are labor organizations admitting to membership employees of Association members. The Northeast Department of the ILGWU and the named locals are the collective bargaining representatives of the employees working for the Association members.


3
ILGWU had a policy, adhered to by the other respondents, of refraining from bargaining or negotiating with employers' representatives who had previously held union office. In the instant case they refused to have any dealings with Robert Mickus, the manager of the Association. Mickus had previously been employed from 1946 to 1956 by the ILGWU in various appointed posts within the Northeast Department. In January 1956 he resigned from his position with the ILGWU, and early in 1957 was employed by the Association to represent its members in dealings with manufacturers. Within six months he was appointed manager of the Association, with extensive responsibilities in the labor-management relations field. He was required to deal with the officials and agents of the respondent labor organizations concerning labor-relation matters of the Association and its member-employers. It is the refusal of the respondents to have any dealings with Mickus as the bargaining representative of the Association that is the basis for the charges in the instant case.


4
Following a hearing, the trial examiner found a violation by all the respondents except ILGWU of Section 8 (b) (3) of the Act, viz., a refusal to bargain. However, as regards the charge laid under Section 8(b) (1) (B) of the Act, viz., restraint or coercion of an employer in the choice of bargaining representative by a labor organization, the trial examiner found it had not been sustained. The Board affirmed the first recommendation in regard to Section 8(b) (3) and reversed the second, finding that "the Respondents engaged in and are engaging in restraint and coercion within the meaning of Section 8(b) (1) (B) of the Act."2


5
The general law on good-faith bargaining is quite clear. Section 8(b) (3) places upon unions the same obligation that Section 8(a) (5) of the Act places upon employers. Each party to the collective bargaining process has a right to choose its representative, and there is a correlative duty on the opposite party to negotiate with the appointed agent.


6
However, this rule is not absolute or immutable. The General Counsel for the Board conceded in his brief that the rule applies "at least in the absence of unusual mitigating circumstances," and at oral argument he acknowledged that the "rule of reason" had to be applied. This fact is borne out by the cases, for in National Labor Relations Board v. Kentucky Utilities Co., 6 Cir., 1950, 182 F.2d 810, it was held that it was not an unfair labor practice for an employer to refuse to negotiate with a union representative who had evidenced hostility to it by his past activities. The court reasoned that


7
"* * * With Braswell acting as one of the negotiators for the Union, any meeting with the negotiators would not have fulfilled the requirements of collective bargaining. His expressed hostility to the respondent and his purpose to destroy the respondent financially made any attempt at good faith collective bargaining a futility. Just as collective bargaining in form only and lacking in substance has been condemned, certainly collective bargaining in form only without good faith negotiating on the other side should not be required." (Emphasis supplied.) 182 F.2d at page 813.


8
Likewise, the Board itself has recognized in Bausch & Lomb Optical Co., 108 N.L. R.B. 1555 (1954), that there are occasions when the rights granted by Section 8(a) (5) and (1), although seemingly absolute, are subject to limitation. The Board considered there the limitations placed upon the right of employees to choose their representative and cited a number of its own opinions limiting that right. The employer was found not to have committed an unfair labor practice when it refused to negotiate with a union conducting a competitive business. The trial examiner had subscribed to the view that there was no evidence of unfair advantage being taken by the union in the negotiations prior to their disruption. Despite this, the Board concluded that the very existence of the dual relationship on the part of the union "created a situation which would drastically change the climate at the bargaining table from one where there would be reasoned discussion in a background of balanced bargaining relations upon which good-faith bargaining must rest to one in which, at best, intensified distrust of the Union's motives would be engendered." (Emphasis supplied.) 108 N.L. R.B. at page 1561. Accordingly, the Board held that as long as the Union retained its dual status of bargaining agent and business competitor the employer's normal duty to bargain was suspended.


9
The instant case presents an analogous problem. The respondents contend that Mickus, during his lengthy tenure as an employee of the ILGWU, held highly confidential positions. The General Counsel asserts that this is a question of fact that the trial examiner and the Board found to be without merit and mere pretext. That finding is bottomed upon the conclusionary answers of Mickus3 which amount to no more than a bald denial. However, his testimony on cross-examination belies the conclusionary answers. Some of the following facts were testified to by Mickus on cross-examination, and others were testified to by witnesses for the respondents and stand uncontradicted: For ten years Mickus served as an appointive official of the ILGWU in the very area where some employers who are members of the Association have their plants. Initially, he was employed as an organizer but later he became business agent for Local 111, which serves the territory in and about Allentown, Pennsylvania, and is the representative of the employees of some Association members. Mickus was next made assistant to Sol Greene who was "second in command" in the Northeast Department of the ILGWU (covering all the states in the northeast portion of the United States), the top official of the ILGWU in the state of Pennsylvania with the title of Director of Organization, and the manager of the Allentown District Council. This District Council was composed of ILGWU locals in the Allentown, Reading and Pottsville areas. During the absence of his superior, Mickus took over all of Greene's duties, including his duties with respect to employees of members of the Association. In general, Mickus was in the chain of command between the top officials of the ILGWU and the business agents of the locals who dealt with the members of the Association. Although there is a conflict in the testimony as to how many bargaining conferences and negotiation sessions he attended, Mickus himself testified to having attended a conference in Easton, Pennsylvania, in which there was a consideration of "whether there was going to be a strike with the Slate Belt Contractors." Mickus held the position of assistant to Sol Greene for a number of years and it was from that position that he resigned.


10
Under these circumstances the conclusion of the trial examiner, later adopted by the Board, that the reason given for the refusal to deal with Mickus was a pretext, is without basis in the record and must be disregarded. Upon the facts outlined above it is clear to us that Mickus held a highly confidential position in not only the same field, i. e., labor-management relations, but represented the union with whom he is now employed to negotiate. The Association now employs Mickus to perform the same functions for it as he performed for the union previously. In addition, the undisputed testimony is that the then manager of the Association told Greene that Mickus had been employed because of his years of familiarity from the inside of the union with its strategy, thinking, working, and operations. The announcement was made tauntingly and laughingly, in a manner indicating that he believed that the Association had "put one over on the union" and had "the union on the spot." This makes it abundantly clear that any collective bargaining done with Mickus would be "in form only without good faith negotiating on the other side." National Labor Relations Board v. Kentucky Utilities Co., 182 F. 2d at page 813. As the Board itself said in Bausch & Lomb Optical Co., 108 N.L. R.B. at page 1561, it would result in bargaining in which, "at best, intensified distrust of the Union's [Association's] motives would be engendered."


11
We conclude that the Association clearly displayed an absence of fair dealing, Phelps Dodge Copper Products Corp., 101 N.L.R.B. 360 (1952), in selecting and insisting upon Mickus as its bargaining representative, and thus that its offer to bargain was not made in good faith.


12
The petition for enforcement will be denied.


13
Judge McLAUGHLIN notes his concurrence in the result.



Notes:


1
 The Board's decision and order are reported at 122 N.L.R.B. No. 166


2
 Subsequent to the proceedings in the National Labor Relations Board, the Board filed its petition for enforcement in this court and at the same time applied to this court under Section 10(e) of the Labor Management Relations Act for an order restraining the strike which was then in progress. We refused to enjoin the strike, but on April 10, 1959, did issue an orderpendente lite requiring compliance with the Board's order insofar as it directed bargaining with the Association through Robert Mickus or its other chosen representative. This action, of course, does not preclude consideration on the merits at this time.


3
 On direct examination Mickus, after identifying himself, was asked only two questions:
"Q. You have heard testimony here about your employment with the union. During your service with the union, did you ever service any of the Slate Belt blouse shops? A. No, I did not.
"Q. While you were a member of the union, did you have access to any confidential information? A. No, I did not."


