The International Union of Mine, Mill and Smelter Workers, Park City Local No. 99, an affiliate of the CIO, filed charges with the Labor Relations Board of this state (our Industrial Commission) charging the Utah Construction Company with unfair labor practices. Upon these charges and a preliminary investigation the Board issued a complaint against that company charging as follows:
"That on or about November 6, 1940, the said Respondent entered into a certain agreement purporting to control its labor relations on the Duchesne Tunnel of the Deer Creek project in the State of Utah, with International Union of Operating Engineers, Local No. 354; National Hod Carriers; Common Laborers Union, Local No. 79; and International Brotherhood of Electrical Workers, Local No. 354, all labor unions and affiliates of the American Federation of Labor, the said agreement to become effective November 12, 1940; that at the time said agreement was made and at the time it became effective the said signatory labor unions did not have, within the State of *Page 141 Utah, in their combined membership a majority of all workmen employed on the said job and did not constitute the collective bargaining unit within the meaning of the said Utah Labor Relations Act, and this fact was well known to Respondent; that the said agreement was negotiated by said Respondent in secret and in collusion with the representatives of said unions and without the knowledge and consent of the majority of the workmen employed on said job at said times; and that said purported agreement, among other things, provides for a `closed shop' and by it Respondent seeks to discriminate against a majority of the workmen employed on said job at the time it was made and became effective, and to compel them to become members of unions selected by said Respondent and not of their own choosing."
The matter was noticed for hearing and heard on February 8, 1941. The Board permitted the unions listed as affiliates in the quoted paragraphs to intervene. At the hearing all parties were present and represented by counsel. During the course of the hearing the Board member who heard the case limited the issue to that of whether or not on November 6, 1940, the union that signed the contract as bargaining agent was authorized to sign by a majority of members of the unions, affiliates of the AFL. He used such expressions as these:
"So the whole matter lies: What was the condition with reference to membership in AFL or CIO as of November 6; did either of you have a majority?
* * * "The question we must determine: Did the American Federation of Labor affiliated unions have a majority, as you allege in your Complaint, as of November 6, 1940?"
The entire hearing was conducted upon this theory. A stipulation was entered into to the effect that the Board might make its own investigation of the records of the company and the AFL unions to ascertain that fact. As suggested by the Board member hearing the case, the stipulation was as follows:
"That the representatives of the American Federation of Labor will permit a representative of the Utah Labor Relations Board to check the list [of employees] as submitted by the Utah Construction Company *Page 142 as of November 6 against the books of the unions, with the understanding that the names will not be made a matter of record so that any particular employee may be identified."
After submission of the case to the Board for decision, and on February 21, 1941, the Board submitted to the parties its proposed findings of fact which it stated would be the bases of its decisions. The parties submitted briefs upon the matter, and on March 28, 1941, the Board rendered its decision, against the company, and issued a cease and desist order restraining the company from giving effect to the contract. In the findings of fact submitted February 21, 1941, the Board limited the case to the issue annuonced at the hearing; but in the final decision of March 28, it added that it could find no evidence to the effect that a majority of the employees (regardless of union affiliation) had authorized the union to act as bargaining agent. This was an issue upon which no hearing was had; upon which no evidence was submitted, unless it can be said that the stipulation authorized it.
After final decision intervenors applied for a rehearing, which the Board denied. The matter is now before us for review.
Among the objection raised by the intervenors is this:
"2. The statute does not require that a majority of the employees be members of any union to authorize such union to act as bargaining agent."
The section of the law upon which this objection is based reads:
"(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment; provided, that any individual employee or a group of employees shall have the right at any time to present grievances to their employer." Section 10, Chap. 55, Laws of Utah 1937. *Page 143
We think the objection is well taken. The authorities clearly support the view that membership in a union is not a prerequisite to designating that union as bargaining agent. Continental OilCo. v. National Labor Relations Board, 10 Cir.,113 F.2d 473; National Labor Relations Board v. Louisville 1Refining Co., 6 Cir., 102 F.2d 678. There is nothing in the Section 8 of the Utah Labor Relations Act, which provides for self-organization and collective bargaining, which is in conflict with these decisions.
What then about the finding that a majority of the employees had not authorized the union to act as bargaining agent? Intervenors' objection to such a finding is covered by either of two of its objections, which read:
"3. The Board in obtaining access to the files and records of the AFL unions examined only part of the records and disregarded the remainder, both as to membership and authorizations signed by employees, so that in its findings and decision were erroneous and misleading."
"4. The Board had no sufficient competent evidence of any actual unfair labor practice to warrant any findings or decision or order adverse to plaintiffs."
As the parties to the proceeding, including the Board, tried the case solely upon the theory outlined above as being subject to intervenors' objection No. 2, above, it was improper for the Board to make its investigation upon any other theory without giving the intervenors an opportunity to meet 2 that theory. When intervenors entered into the stipulation to the effect that the Board might make its own investigation, they had a right to rely upon the belief that the Board would conduct that investigation pursuant to the announced issue in the case. To permit the Board to leave that issue and investigate another would be to permit the Board to deprive intervenors and the company of a hearing. Although the complaint issued in the case has allegations which might be sufficient to support the finding that the majority of the employees had not *Page 144 authorized the representation by the signatory union, no evidence was introduced upon that issue, nor was any attempt made to rely upon it. As to hearings, see Section 11(b) of the Act.
Under the circumstances there was no evidence of any unfair labor practice on the part of the company. The Board's decision is without foundation. As this decides the case we shall not discuss other alleged errors.
The decision of the Board is vacated and set aside.
MOFFAT, C.J., and LARSON, J., concur.