702 Opinion of the Court. requires that an employer bargain exclusively with the particular union which represented a majority of the employees at the time of the wrongful refusal to bargain despite that union's subsequent failure to retain its majority. The Board might well think that, were it not to adopt this type of remedy, but instead order elections upon every claim that a shift in union membership had occurred during proceedings occasioned by an employer's wrongful refusal to bargain, recalcitrant employers might be able by continued opposition to union membership indefinitely to postpone performance of their statutory obligation. In the Board's view, procedural delays necessary fairly to determine charges of unfair labor practices might in this way be made the occasion for further procedural delays in connection with repeated requests for elections, thus providing employers a chance to profit from a stubborn refusal to abide by the law. That the Board was within its statutory authority in adopting the remedy which it has adopted to foreclose the probability of such frustrations of the Act seems too plain for anything but statement. See 29 U. S. C. § 160 (a) and (c). Contrary to petitioner's suggestion, this remedy, as embodied in a Board order, does not involve any injustice to employees who may wish to substitute for the particular union some other bargaining agent or arrangement. For a Board order which requires an employer to bargain with a designated union is not intended to fix a permanent bargaining relationship without regard to new situations that may develop. See Great Southern Trucking Co. v. Labor Board, 139 F. 2d 984, 987. But, as the remedy here in question recognizes, a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed. See Labor Board v. Appalachian Power Co., 140 F. 2d 217, 220–222; Labor Board v. Botany Worsted Mills, 133 F. 2d 876, 881-882. After such a rea Opinion of the Court. 321 U.S. sonable period the Board may, in a proper proceeding and upon a proper showing, take steps in recognition of changed situations which might make appropriate changed bargaining relationships. Id.; see 29 U. S. C. § 159 (c). That issuance of the order challenged by petitioner lay within the Board's discretion is settled by our holding in Labor Board v. P. Lorillard Co., 314 U. S. 512, 513. The Lorillard case, argues petitioner, is distinguishable because in that case the Court pointed to the fact that, "The Board had considered the effect of a possible shift in membership. " Id., 513. But in this case also the Board considered the change in membership, and in addition relied in part upon the Lorillard decision to support its order. We find no possible valid distinction between this and the Lorillard case. Nor is the Lorillard decision inconsistent with the earlier holding in Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240. In the latter case the Board's order to bargain with the union rested in part on its finding that the company should reinstate ninety-three discharged union members. The Board had not determined in that proceeding, nor did it argue in this Court, that the company should be compelled to bargain with the union if these ninety-three employees were denied reinstatement. After this Court, contrary to the Board's conclusion, held that these employees properly were denied reinstatement, the situation was the same as if the Board had not considered the effect of the change in union membership. Cf. Labor Board v. P. Lorillard Co., supra. Affirmed. The CHIEF JUSTICE took no part in the consideration or decision of this case. Syllabus. UNITED STATES v. BAUSCH & LOMB OPTICAL CO. ET AL. NO. 62. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK." Argued December 8, 1943.-Decided April 10, 1944. 1. The provision of the judgment dismissing, as to certain of the defendants, the complaint in a suit to restrain alleged violations of the Sherman Act is here affirmed by an equally divided Court. P. 719. 2. A distributor of a trade-marked article in interstate commerce may not limit by agreement, express or implied, the price at which or the persons to whom its purchaser may resell, except as authorized by the Miller-Tydings Act. P. 721. 3. The evidence in this case supports the District Court's finding of a combination and conspiracy between the Soft-Lite company (a distributor of trade-marked pink-tinted ophthalmic lenses) and wholesalers to maintain resale prices through a distribution system in violation of the Sherman Act. On review of its decree, held: (a) The order of the District Court directing cancellation of Soft-Lite's arrangements with wholesalers and cessation of systematic price suggestions was justified by the findings. P. 723. Whether the conspiracy and combination was achieved by agreement or by acquiescence of the wholesalers, coupled with assistance in effectuating its purpose, is immaterial. (b) Clauses of the decree which hold null and void certain resale price maintenance contracts entered into by Soft-Lite and wholesalers subsequent to the Miller-Tydings Act, and which forbid enforcement of such contracts and the execution of any others for six months after notice of cancellation, are justified in view of the illegality of the distribution system previously existing and because the contracts in respect of a portion of the resales are not immunized by the Act. P. 724. Equity has power to eradicate the evils of a condemned scheme by prohibition of the use of admittedly valid parts of an invalid whole. *Together with No. 64, Soft-Lite Lens Co., Inc., et al. v. United States, also on appeal from the District Court of the United States for the Southern District of New York. Opinion of the Court. 321 U.S. (c) Provisions of the decree giving representatives of the Department of Justice certain broad visitatorial powers, as construed by this Court, were within the power and discretion of the District Court. P. 726. (d) A provision of the decree directing the defendants to submit, on the written request of the Department of Justice, such reports in writing "with respect to any of the matters contained in this judgment" as may be necessary to enforce it, is too indefinite for judicial enforcement and therefore inappropriate. Pp. 725, 728. (e) The Government's requests that the decree require Soft-Lite to sell its product to any person offering to pay cash therefor, and that the prohibition against Soft-Lite's systematically suggesting resale prices and its execution of resale price maintenance contracts under the Miller-Tydings Act be made permanent, are denied. P. 728. 45 F. Supp. 387, modified and affirmed. CROSS-APPEALS from a decree which, in a suit to restrain alleged violations of the Sherman Act, dismissed the complaint as to certain of the defendants and gave injunctive relief against others. Assistant Attorney General Berge, with whom Solicitor General Fahy and Mr. Charles H. Weston were on the brief, for the United States. Mr. Whitney North Seymour, with whom Mr. Richard B. Persinger was on the brief, for the Bausch & Lomb Optical Co. et al., appellees in No. 62; and Mr. Bethuel M. Webster for the Soft-Lite Lens Co. et al., appellees in No. 62 and appellants in No. 64. MR. JUSTICE REED delivered the opinion of the Court. The United States of America brought suit in the District Court for the Southern District of New York against the Bausch & Lomb Optical Company, a corporation, and the Soft-Lite Lens Company, Inc., and several of the chief officers of each, to restrain violations of the Sherman Act. Jurisdiction was conferred on the trial court by § 4 of the Act (15 U. S. C. § 4) and upon this Court by § 2 of the Act of February 11, 1903 (15 U. S. C. § 29 and Judicial Code § 238). The complaint alleged that Bausch & Lomb and SoftLite and their officers contracted, combined and conspired to restrain trade in pink tinted lenses for eyeglasses, contrary to §§ 1 and 3 of the Sherman Act.1 The allegations of the complaint were upheld by the trial court as to SoftLite and certain of its officers and dismissed as to Bausch & Lomb and its officers. United States v. Bausch & Lomb Optical Co., 45 F. Supp. 387. The findings and opinion upon which the decree is molded show that Soft-Lite is the sole distributor of pink 1 26 Stat. 209, as amended, 50 Stat. 693: "SECTION 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal: Provided, That nothing herein contained shall render illegal, contracts or agreements prescribing minimum prices for the resale of a commodity which bears, or the label or container of which bears, the trade mark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others, when contracts or agreements of that description are lawful as applied to intrastate transactions, under any statute, law, or public policy now or hereafter in effect in any State, Territory, or the District of Columbia, in which such resale is to be made, or to which the commodity is to be transported for such resale, and the making of such contracts or agreements shall not be an unfair method of competition under section 5, as amended and supplemented, of the Act entitled 'An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes,' approved September 26, 1914: Provided further, That the preceding proviso shall not make lawful any contract or agreement, providing for the establishment or maintenance of minimum resale prices on any commodity herein involved, between manufacturers, or between producers, or between wholesalers, or between brokers, or between factors, or between retailers, or between persons, firms, or corporations in competition with each other. . . ." Section 3 governs similar conduct in territories of the United States and the District of Columbia. |