"Why don't you state what it is though, you know, the number and the authorization card of so and so and the W-4 purportedly from the same person." (emphasis added)
How later courts described this case
- "Why don't you state what it is though, you know, the number and the authorization card of so and so and the W-4 purportedly from the same person." (emphasis added)
- truck driver laid off after receiving speeding citations; enforcement of section 8(a
- no violation of section 8(a)(3) where previously warned employee committed repeated infractions of company rules
- "We are not, however, required to accept [the] ALJ's credibility determinations where they are not sup- ported by substantial evidence."
Written by the judges who cited it.
The opinion
K. K. HALL, Circuit Judge,
concurring in part and dissenting in part:
I concur with the majority in its conclusions regarding the firing of Ralph Meadows and the other unfair labor practice issues. However, I must dissent from the majority’s refusal to enforce the NLRB’s bargaining order.
Because of the pervasive unfair labor practices by the company, the NLRB entered a Gissell 1 bargaining order on the basis of cards authorizing representation by “the AFL-CIO and/or its appropriate affiliate.” The thorniest question in this case is whether, by signing these cards, the employees at Burlington effectively had designed the ACTWU as their bargaining agent. My brethren entirely avoid considering this issue by holding that there were not enough properly solicited cards to constitute a majority anyway. For reasons which I will outline below, I believe the cards solicited by Meadows should be counted, with the result that the union did hold a pre-election majority, and I would enforce the bargaining order.
I.
The Burlington employees signed cards stating,
“I desire to be represented by a Union which is part of the AFL-CIO and I hereby designate the AFL-CIO and/or its appropriate affiliate as my Bargaining Agent.”
According to Gissell, employees are “bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature.” 395 U.S. at 606, 89 S.Ct. at 1936. In my view, nothing said by Ralph Meadows “deliberately and clearly canceled” the explicit language of the cards.
Contrary to the majority’s characterization, Ralph Meadows’ testimony on this subject is anything but plain. He testified that when soliciting signatures, he had told his co-employees, in one way or another, that the cards were “just for percentage of representation to ask for an election” or were “merely for representation.” When asked if he had said that the cards were “only for an election,” he emphatically stated, “No, no, no, for the representation for the percentage.” Even the ALJ, who heard Meadows testify, was confused and concluded that Meadows had indicated that “the need for an election and representation were the sole [sic] purposes of the cards.” Considering the fogginess of Meadows’ explanation of what he told his co-workers, we should look to the only unambiguous statement that was made: the printed statement on the cards. Meadows maintained that he told everyone to read the cards before signing, and we have no reason to doubt that they did so. If anything is clear in this case, it is that Burlington employees signed cards which expressed their desire to be represented.
*979 II.
In Gissell, the Supreme Court held that a union may be able to gain recognition and establish a bargaining obligation if the employer’s unfair labor practices nullify an election. The Court recognized that an election is not the only method of proving majority status; rather, an employer has a duty to bargain “whenever the union representative presented ‘convincing evidence of majority support.’ ” Id. at 596, 89 S.Ct. at 1930.
The problem in this case is that the cards did not specifically name the ACTWU as the union, but rather named the “AFL-CIO and/or its appropriate affiliate.” In fact, two weeks after the cards were signed, the ACTWU was designated as the local affiliate, and not one employee revoked his card. Certainly, at that point, before the employer’s unfair labor practices began to take their toll, there was “convincing evidence of majority support.” Thus, in my view, the NLRB correctly concluded that a bargaining order was an appropriate remedy, 2 and I would enforce that decision.
. NLRB v. Gisseli Packing Co., 395 U.S. 575 , 89 S.Ct. 1918 , 23 L.Ed.2d 547 (1969).
. The Board reached this result on facts strikingly similar to those in this case in Breaker Confections, 163 NLRB 882 (1967). The Company challenges the continued validity of Breaker Confections in light of a more recent case, O & T Warehousing, 240 NLRB 386 (1979), which held that “AFL-CIO and/or its designated affiliate” could not appear on a ballot, but that the specific local must be designated prior to the election. The point in O & T was that the employees could not simply leave that decision up to the AFL-CIO.
The Company’s reliance on O & T is misplaced. For one thing, this is not the same situation as O & T where, although the NLRB nipped an election in the bud, it can fairly be assumed that a local soon was designated and another election was held; this case, on the other hand, involves a Gissell bargaining order, a remedy used in cases where the Board has determined that another election is impossible. Moreover, as there was evidence of majority support for the ACTWU only two weeks after the cards were signed, the employees in this case, unlike in O &T, were obviously not planning to leave the ultimate decision up to the AFL-CIO.