State Ex Rel. Berland Shoe Stores, Inc. v. Haney , 208 Minn. 105 ( 1940 )

I concur in the result. The rule announced in Peterson v. Board of Supervisors, 199 Minn. 455, 272 N.W. 391, is unfortunate for the reasons stated in the dissent in that case. All the more important will those reasons become with the creation of new officials and tribunals whose acts are to be predicated on facts to be first found by them after hearing. That case is applicable only where a party claims to have been denied a hearing to which he is entitled.

Respondent claims the right to be heard upon the selection of the employes' bargaining representative. In my opinion it does not have such a right, and decision ought to be put on that ground. Prior to the enactment of the labor relations act, employes the same as employers enjoyed the right to organize and bargain collectively or refrain from so doing. Incident to the right to organize and bargain collectively was the selection of a bargaining representative. Such right was no different than that enjoyed by others to select their own agents without interference or dictation. Section 10 of the act guarantees that right unimpaired to employes and employers alike.

The right of each to select its bargaining representative is in the very nature of things an exclusive right. Employes are to have no voice in selecting the representative of the employer. The employer is not to interfere or dictate the selection of a representative by employes. "Fifth column" activity on either side is excluded. The right of selection of a representative belonging as it does to each disputant without interference or dictation by the other, the selection by one is a matter of no concern to the other. The employer cannot be heard to question the selection of a representative by the employes without participating in or interfering in the exercise of the employes' exclusive right of selection. Hence the employer cannot be heard on the matter. He may exercise and vindicate his own rights but not those of others. The exercise and protection of the rights of others is no concern of his. Mesaba Loan Co. v. Sher, 203 Minn. 589, 595, 282 N.W. 823. To accord the employer the rights claimed here is to nullify § 10 by judicial construction despite the express declarations of that section that the employes' right to organize and bargain collectively shall remain inviolate.

Enough appears to show that the employer seeks by the hearing to control the selection of the employes' bargaining representative. It has discharged a number of employes from its employment since the selection of a representative by employes. Its contention is that those discharged have no right to vote on the selection of a bargaining representative. If an employer can by discharging employes in this manner control the selection of the employes' bargaining representative, the right of the employes themselves to make the selection will be entirely destroyed. The act does not admit of such a construction in virtue of the provisions of § 10.

It seems to me that it is as idle as it is pointless to cite rate regulation cases like Ohio Bell Tel. Co. v. Public Utilities Comm. 301 U.S. 292, 57 S. Ct. 724, 81 L. ed. 1093. A utility company has a right to be heard on the matter of rate regulation for the simple reason that it has property rights in the utility property whose rates are affected by the regulation. But the idea that an employer has a similar proprietary right in his employes or the free exercise of rights guaranteed to them by the act is contrary to all law and common sense.

I should much prefer to say that the employer had no right to a hearing at all and that no right was denied to it.