As I understand the record, the union was not at the time of the alleged unfair labor practice the representative of the employees. After the election of 1938 when the national labor board decided that the union was the representative, there was a drop in membership in the union from one hundred thirteen to five or six which was clearly not attributable to any acts of the employer. This, as I understand it, is without dispute and consequently the union could not be the representative of a majority of the employees. This fact together with the lapse of a long period of time must constitute an abandonment of the representative relation. In this case the national board has had no occasion to consider the present status of the union, and I see no reason why in deciding a matter properly within the province of state regulation the state authority cannot decide as a matter of fact that the union is no longer the bargaining agent of the employees. This is not a case like National Labor RelationsBoard v. P. Lorillard Co. 314 U.S. 512, 62 Sup. Ct. 397,86 L. Ed. 380, where the national board had acted and the court sought to substitute its discretion for that of the board.
If what I have said is true, then there was no labor dispute and the resort by Local 471 to the practice engaged in was unwarranted. *Page 312