Amicus Curiae Brief — National Labor Relations Board v. Gissel Packing Co.

Supreme Court brief1969

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ees ei seer eres PAGE

‘Opinions ‘Below .........5..0....0000% pease eeveeeed,

Jurisdiction: ...:..... eee Ser eevuaes ike a

Statute Involved Beas ais CAM wate bsnghsviaeieees 2

Questions Présented Perr Tre i, - eae. A Spier 2:

Statement Ce aciied sr eaiiehen.. Ngan eeeeeeeee oy

' A. The Board’s Winding “ee Bada eas EO PE %

; Majority teeter ceeeeeeeeerecegeteetees Fe.

g B ‘The Board’s Conclusion and Order-........ 8

C. The Decision of the Court of Appeals eveeoese 10 .°

1. The 1947 Amendments .............. eee ae

2. The Alleged Unreliability of Authorization .

PRE ba PCW chibi i cas vcvese cis dubes 13 ©

Summary of Argument...:........... iebop edn bie -. ee

Argument . ao eee a” me

—-— The National Labor Relations Act, as Amended, -

_Imposes Upon an Employe ty to Recog-

nize a Union Under Section 8(a4)(5) Where the

Union Has Been Designated by a Majority of

Employees by Means Other Than an NLRB

ERR eh ir oS AR aa ee 21

A. The 1947 Amendments Did Nof Divest the

___ Board-of-Its Authority to Order an Em-

cope REED: ployer to Recognize a Union Whose Major- .

ity Status Is Based on Authorization Cards 24

B. In 1956 This Court Acknowledged an Em-

ployer’s. Obligation to, Recognize a Labor

_ Organization Designated by a Majority’

of Employees Upon. Signed Authorization

> SIR wea ses Fates eee bese ok. 30

C. Congress Made No. Cleics in Section

' 8(a) (5) or Section 9 i in 1959, but by Adding ~

Peres . — —_ ee ae ezine eumeatl ceeiibn aioe a

ot Section 8(b)(7) to the’ Act Increased’ the

Value of a Certification While Maintaining |

/ Employers’ Obligation .to Recognizé a

Union Designation by the Majority of Its

‘TL. Gomaiinn by a Majority of Employees ‘on

.-Unambiguous Authorization Cards Obtained

Without Misrepresentation or Coercion Is as

_ Unreliable an Indicator of ‘Eanployee Wishes |

Employees MPEGS secs Sscedenes te Ag

as an Election. icine Pe cee

ad ee

a ” " Unambiguous Authorization © Cards Are

Not Inherently Unreliable Reveunees ere &

“ais ca Representation Elections Are Not Neces-

. Sarily the Most Reliable Indicators - of

. ‘Employees’ Desires .................¢3.

I. A ‘Secret Ballot’’ Is No More Indica-

pate. tive of Employees’ Intent Than an

ee UC Eres

2 Elections Are Susceptible to Mistep-

. resentation and Coercion ............

IIL. The Fourth Circuit Erred i in Failing to Enforce

the Board’s Qrder to Bargain................ ;

A. The Operative Facts Require That an Or-

der to Bargain, Upon Request, Be. Assued.

' Against the Company.’..... T4s ibn Cea e eo

B. The Company’ s Defenges Are Insufficient :

to Rebut Its Duty to Reéognize the Union

1,. The Failure to File ‘an Employer Peti-

C: ‘The Good Faith of an Employer Is Not

Relevant to His Duty. to Recognize the

; Bargaining Representative Designated by

eye. ede! of His er aes evs

- CN ee a cede se ke vada seeds be4b) bs

—_

- eee : -

. ‘TABLE OF Aurnorrris. Sea oath o

Aaron Sroikers Co., 158 NERB 1077. beqbsoscovreece 79 -

_ Aluminum, Co-of An America, a Works, 56 NLRB .

a MMT van ge va Fain bia Danae tends oe Se nate ye tae es a?

; ; American Products, Ine., 34 ‘NLRB | ee choke ... 80

Ash Market and Gasoline; 130 NLEB 641. eg nseeees 78

Atlantic Refining. Co, 5} ae soo edly OD

Avon Produets, Ine, 116 NLRB 1729.....-..----+++- 59

* eas Dees Ck VEEN Hoosier |

Benson VeneerCo. Inc: v. N. L. R. B., 398 F. 2d 998 |

(4 Cir. 1968)..... fen inves oceseaegneres 12, 14, 15, 37, 68

Bernel Foam Pr ets Co. Ine:, 146 NLEB Lg Fae |

Bilton — Inc. v. N. L. R. B., 297 F. 2d 141

(8 Ole, MB) in goo cisni, iran tea cs mere ea

_- Blue Flash Express, Inc., 169 ‘NLRB 591. woe eecees 61. -

Borden Cabinet Corporation, Inc.'v. N. L. B. B., 375 F.

2d 891 (7 Cir. | 0 34°

Bourne v. N. L. B. B., 332 F. 2d 47 (2 Cir. 1964).-.... 61°

- Bradford Machine Tool Co.,'44 NERB 759......-- = .. 80

Brewer-Titchener.Corp., 19. NLRB 160......--. ee, ee

Bryant Chucking Grinder Co. v. N. L. BR. B., 389 F. 2d

_ 565 (2 Cir. 1967),.certiorari denied, cities ™ - Sinden

«88S. Ct. 2055 (1968)... 22.00. eeee eee eees 1S 5 See 24

Carlton Forge Works, 146 NLRB 750. Seubulesees wit:

Carnegie-Illinois Steel Corp. » 40 NLRB 532. as or eae 27,

. Cone Bros. Contracting Co. v. 7. N. L. R. B., 235 F. 2d 37

(5 Cir. 1956) .. 3

Fe EE Lip te pene ey ere eer eee Tey 23

‘Conren, Inc. v. N. a R. B., 368 F. 2d 173 (7 Cir. 3

oj SOY esieicns Di bles tales bats tiwedadiate ss a o

Crawford "Manufacturing Co., Ine. v.-N. L. R. B., 386

F: 2d 367 - Cir. 1967), certiorari denied, 390 U.S. .

_ 1078... pion eees Pe Pe OO ey Frere er 11, 14, 50, 67, 68

: isieiieied Shoe Corp. : 144 NLRB 1268, enforcing - 2%

351 F. 2d 917 (6 Cir. 1965)....... GE -11, 51, 67,

Dal-Tex Optical Co., Inc., 137 NLRB ere ee 59

‘Dayton Typographical Union No. 57 v. N. LL. BR. B., 326 ;

F.2d 634 (D. C. Cir. 1963). . bier es bstseasieveuns »» 3d

7 Decker, d/b/a Decker Truck Lines, 128 NLRB 858, ee

=<. enforced, 296 F. 2d 338 (8 Cir. 1961) : edb eec a ss 46

Delaware-New Jersey Ferry Co., 1 NLRB 85. So ss 27°

District. 50, United Mine Workers {Bowman Trans-

portation, Inc.] v. 'N. L. RB. B., 237 F. 2d 585 (D..C.

| I AS ee er seen: , i.

Dixie Color Printing. Corp. 4 156 NLRB 1431, enforce, a

371 F, 2d 347 (D. C. Cir. on Be OOPTEE as gan ie 78

Duplex Printing Press Co., 1 NLRB 82....... au ial: 27

' Electri¢, Auto-Lite Co., 92 NLRB 1073, svt, 196

F, 2d 500 (6 Cir. 1952), certiorari — 344 U.S. .

823, 73 8! Ct. 23 (1952).......... Sean Ss 3 43

. : Elliott-Williams Co., Inc., 143 NLRB. Sil, enforced, oe

* - Ms BRA GFA. BID shies on Ci sgh voc os oe 0's 46 ~

Englewood Lumber Company, 130 NLRB eee ae

Ferro Stamping & Mfg. Co., 93 NLRB 1459.......... 43

"Edward ° ‘Fields, Inc., 141 NLRB 1182, modified, 825

FE: ‘2d 754 at a 1968)... ghee OSteE et ser tbds ‘78

ee q

° .

tans a om.

. .

. o ;

es ie th 0 sae hee ata Pa AN aah A calle i man Me

‘ .

. ‘ -

—

_ a ; ° m4

_ Fisher Radio Corp 123 NLRB\879....:...-.--:-.60, 62

‘Florence Printing Co.:v. L. RB. B., 333 F. 24 289 a

ms Cir, 1964), enforcing 145 NLRB 141. -....-:----

Seek teeeue® fepebaceveciwsas os jae oem 9, 10, 14, 36, 45, 46

Follett Geek v.. N. L. R. B., 397 F. 2d 91 (7 Cir. 1968) 78 .

- . Géneral. Bos Company, 82 NLRB 678.....::..... 27, 29, 30

- General Shoe Corp., 77 NLRB 124, ‘enforced, 192 F.2d°

504 (6 Cir. 1951), certiorari denied, 343 Uv. S. 904,

‘

Ee rn er eer ae

"General Stéel Produets Tne. v. N. LR. B, 398 F. yy -

339 (4 Cir..1968)..... Ree oc aes ee:

_ George Groh & Sons, 141 NLBB 931, enforced, 329° F. |

, 2d-265 (10 Cir./1964)... 0.60 ceed e eee cece eg eee 46.

Gissel Packing: Co., ‘No. 9-CA-2068. ae it sac ice cuniee 3, 6,56.

| Hamilton Plastic Molding Co., 135 NLRB 37 1, rey

312 F. 2d 723- (6 Cir. 1964). - i cecne ee VTS eee 18

, Harrison Sheet Steel Co. v. N. L. R. B., 194 F. 2d 407 48

- _Heck’s Inc., 156 NLRB 760, enforcement denied, 386

F.2d 317 (4 Cir. WEBI 5 rian dope cbesstes .erre: ao

" Heck’s Inc., 172 NLRB 255, 69 LRRM-1177..,......, 79.

_ Hollywood Ceramics Co., Inc., 140 NLBB. onl... pick 59°

Hy-Plains Dressed Beef, Inc., 146 NLRB 1253. +:,..° 62...

* , International Association . of . Machinists seanha

-Corp.] v. N. L, RB: B., 311 U. 8. 72, 61 8. Ct. 83

(1940) -. 05.00 bs tea iekede nie . .-19, 83, 45, 61, 69

International Filter Co, 1 NLRB 489..... S pobeavess 80 «

International Ladies’ Garment. Workers Union [Bern-

“hard-Altmann] v.-N. L. B: B, 366 U. S. 731, 81S

Ct. 1603 (1961)......9, 20,44, 4 45120 73,7 74, 77, 8t, 82, a3

‘”

- wo é >)

isienaiiaials Union of Electrical, ete. “Workers . ;

[S. N. C. Mfg. Co.] v. N. L. RB. B,, 352 F. 2d-361-

(D. C. Cir.°1965), certiorari denied, 382 .U. 8. .902,

: 868. Ct. 235. (1965)... 6... 0b. eee PERE SE eee 67

“International Union, United Automobile ‘Workers

. [Aero Corp.],.v.-N. L. RB. B.; 363 F. 2d 702 (D. C..

Cir. 1966), certiorari denied, 385 Mi S. 973, 87 S. Ct.

510 (1966). eepe eee e meee ee teee eben eet eeesetereees 36

‘ International Union, United. Kitiiaallit “Workers

., Preston Product’ Co.] v. N. L. RB. B., 392 F. 2d

" . 801 -(D. G. Cir. 1967), . certiorari denied, 88 Si Ct..

| Peer aiacass~ssoeee |

*. "Interstate Hosts, Inc, 130 NLRB 1614......... sovecs ) Met

"* Jowa Beef Packers, Inc., 144 NLRB 615.............. AT

‘ we Irving Air Chute Co., Inc., 147.NLRB 627, enforced,

M06 W, O05 196 (8 Che, 1008). co... oo ge eied =

"Jas. H. Matthews & Co. v. N. L, R. B., 354 F. 2a 432

I I sori sp xc keesnecd ue 34, 36

Joy Silk Mills, Inc., 85 NLRB 1263, enforced, 185 F. 2d

; 732 (D. C. Cir. 1950), certiorari denied, 341 U. S.

914, 71 S. eee ay cate ds aeeees 23, 46, 79

* Kennanietal, Inc., 121 NLRB. 410. edepteccesesscsepes 60

Lebanon: Steel Foundry v. N. L. R.B., 130 F. 24404" *

(D. ©. Cir. 1942)........ RecceaStabepasregeene 31, 40,41 -

mee Strauss & Co. 172 NLRB No. 57, 68 LRRM

\ SUE cia wv tnns bee e tet eee eeeee eee ede es AO, 46, 48, 51

" Lundy Packing Co., 124. NLRB ree se eae 60

‘ _Lykes Brothers Steamship’ Co.,Inc., 2 NLRB 102.... -27

| Maritime Union [Delta Steamship Lines | ae Vv.

, N.L. RB. B., 346 F. 2d 411 (D. C. Cir. 1965) See 3)

ee Life Insurance Co., 90 N LRB 935. 400 5D

se a yee

vii

: ; Midwest Piping & Supply Co.,; Ine, 63 NLRB 1060

(1945) casasbnted chain ea ee emiane miei 46, 41, 49 .

National Furniture Mfg. Co:, Ine. 106 NLRB 1300... 59

“Nelson Mfg. Co., 138 NLEB 883, enforced, 396 F. 2d |

"89% (6 Cir, 1964).-...0seFeeeedbeeeerere eee

NLL. BR. B. v. American Manufacturing Co: of Texas,

351 F. 2d 74 (5 Cir. 1965) . ves kkaeek eh Gee eeneenes (36

N. L; B. B. v. Armco Drainage & Metal Products, Inc.,

‘920 F. 2d 573 (6 Cir. 1955).......- Rie ee ae 93

N. L: RB..B. v.: Ateo-Surgical Supports, Inc., 394 F. 2d

659: (6 Cir. 1968) Spree Eo ans paved leek aeees 24 .

N. L. BR. B..v. Big: Ben Department Store, ‘Yon, 396

F. 2d 78 (2 Cir. 1968). SRE ee rane ere - 24

NL. R. B. v. Bradford Dyeing Aeniialion, 310 U.S.

318, 60 S. _CK918 (1940)......--+- 23, 32, 33, 45, 69, 76-77

N. L: BB. v:lC. & C. Packing Co, ones A ae

(9 Cir. 1969), 70 LRRM 2245.......--.2.000000+ 24

N. L. BR. B. v. ‘Clearfield Cheese Co., Ine., 213 F.: 2d

"TO (B-Cir. 1954). .....0ceceeeeseeesereeeeneneees 23

N. L. RB. B. v. Crean, 326 F. 2d 391 (7 Cir. 1964) ...4.. 69

N. L. RB. B. v. Dahlstrom. Metallic Door Co., 112 F. 2d_ |

756 (2 Cir. 1940):.. 0.222000 ‘decaribaskeaognen 23, 73

N. L. R. B. v. Drivers, etc., feta: Union No. ad

[Curtis Bros., Inc. 1, 362 U. S. 274, 80 S. Ct.

FE co coaer casos sicascengye sic eerie 8 36, 30

> N.L. RB. B. v. Sinnnies Food Center, Ine., 333 F:3d .

elle OF Wk MIR 5 nacre esee ached te ecceeenes 69, 78

N. LR, B. v. Eliot Williams Co, 345 F. 2d 460 (7

Cir. 1965) .....-- Sie earns eas seecses 600,73

N. L. RB. B. v. Franks Brothers Co., 321 U. S. 702,64

S. Ct. 817 PRE can teae yess ence 23, 33, 45, 69, 77

'N. L. B. B. w Geigy Co, Inc., 211 F. 24553 (9 Gir.

1954), certiorari denied, 348 U. S. 821, 75 -S. Ct. 33

a 69

NLREB. v. Gissel Packing Co., Inc., 398 F. 2d. 336

(4 Cir. 1968), enforcing 1 in part, 157 NLRB 1065. .37, 68 |

"N. L. R. B, v. Goodyear Tire & Rubber Co.; 394 F. 2d

711 (5 Cir. 1968), enforcing 159 NLRB 934........ 24, 46

. “N, L. R, B. v.. Gorbea, Perez & Morell, 300 F. 2d 886

ee hans snes Jaxktncuas 67

N: L. BR. B. v. Greenfield Components — . 317 F. 2d

. Se Or eee eee Poe en 36.

: N. L. R. B.-y. Greensboro Coca Cola Bottling Co. 180

F.2d 840 (4 Cir. 1950).......... Pe re 93 45

N. L. R. B. v. Gullet Gin Co. Inc., 340 U. S. 361, 71

S. Ct. 387 (1951)...-....... EATEN a

N. L. R. B. v. Geo. Groh & Sons, 329 F. 2d. 265 (10

_. Cir, 1964), enforcing 141 NLRB 931,..............36, 46

- N.L.R.B. v. Harris-Woodson Co., 179 F. 2 720 (4

CS Oe ae eae (23

_ 'N.L-R.B. v. Hamilton, 220 F. 24.492 (10 Cir. 1955)... 23

N. L. R. B. v. Heck ’s Inc., 398 F. 2d 337. (1968) .11, 12, 37, 50.

-- N.L.B.B..v. Clinton E. Hobbs Co., 139°. 2d 249

. (1 Cir. 1942) ........ REAPS Se a CRE ey aR 23

N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79 (9

. Cir. 1953), affirmed, 346 U. S. 482, 74. S. Ct. 214

ERE Sc dna bats a hRRKAGREA ESSA SK ENaWeaditneves 69

N. L. R. B. v. Idaho Egg Producers, in, 229 F. 2d 821

I a nhc oe eiciskiipeunpice ss 69

N.L.R. B. v. Indianapolis Newspapers, Inc., 210 F. 2d

501 (7 Cir. _. Sn eae 47

N.L.B.B. v. Inter-City Advertising Co., i F. 2d 420 -

* . (4 Cir. 1951) itdiias sabe otiniwuts teteeeeeeeeeese 710

—e sasmantinatecineta ties aitebatnniine arenes tai

SLRBO vy. Ken Rose Motors Inc.,'193 F. od 769

(1 Cir. 1952).....-.--+-:- ok pas shine awit ere , .23, 69

-NLL.B.B. v. Knickerbocker Plastic Co., Inc., 218 F.2d

917 (9 Cir. 1955)..--.-. Sane kab RS ROOo Cotes ae

N. L. BR. B. v. Kobritz, 193 F. 2d 8 (1. Gir. 1951)... . 82, 69

N. L. BR. B. v. Koehler, 328 F. 2d 770 (7 Cir. 1964). 51

N. L. R. B.. v. Larry ‘Faul Oldsmobile -Co., Inc., 316

Pp. 2d 595 (7 Cir. 1963)......00----eeeeeeeeereees /36

N.L.B.B. ‘we J. C. ies Sane Tne. 180 F. 2d

"254 (G Cir, 1950)... 00.8 op ad woccenecccteeseccces a

"Wick. B. ¥. Lifetime Door < Co., 390 F. 2d 272 (4 Cir.

Wh loa ee scovceeiesta veel, 1A, -

N. L..R. B. v. S. gs. Logan Packing Co., 386 F. 2a 562

(4 Cir. 1967), modifying 152 NLRB 421.......-----

caceel wee ee 4, 11, 12, 13, 14, 15, 18, 23, 24,.25, 26, 36,37,

oer ... 45, 46, 49, 50, 52, 54, 55, 56, 57, 60, 68, 71, 75

N.L.R.B. v. P. Lorillard, 314 U. S. 512, 62 S. Ct.

WS oe ik ne 69, 79

N. L. RB. B. v. Marcus Brothers, 272 F. 2d: 253 ' Cir.

1959)... ee ere renee tes, sass bas vib hens ond 60% «23

N. L. BR. B. v. Medo Photo Supply Corp., 321 U.S. 678,

64 §. Ct. 830 (1944)....-- sence emees Kavos 19, 23, 33, 45

-NLL.R.B. v. Merrill, 388 F. 2d 514 (10 Cir. 1968)... Oh

N. L. RB. B. v. Mid-West Towel & Linen Service, Inc., is

339 F. 2d'958 (7 Cir. 1964).....--- ean ron ree 69

N.L.R.B. v. Nelson Mfg. Co., 326 F. 2d 397 (6 Cir.

1964), enforcing 138 NLEBB 833.. pees nae wenue ..36,46 .

.N.L. RB. B. v. Overnite Transportation Co., 308 F. 2d

- 279 (4 Cir. 1962).....-.-9, 10, 14, 15, 36, 45, 71, 73, 74,76 ©

- N.L.B.B. y. Parma Water Lifter, Co.,.211 F. 2d 258

ba Cir. 1954)... weevecee de ceeeerencteeere pees 69

‘ a eanemrew i

Ba in eee ne eel oe an 9 I eR DE ee ‘#8

N.L. R. B. v. Peterson Brothers, Ine., 342 F. 2d 221°

(5 Cir. 1965) ....... Pe eer ee POPES rr oe 67

ON L. R. B. v. Pifilamon Laboratories, ie? 298 F. 2d

“176 (2 Cir. 1962), enforcing 131 NLRB 80. .10, 34, 36, 46

N.L.B.B. v v. Piqua Munising Wood Products Co., 109

F. 2d 552 (6 OR MG A ONS Khe bee kaw ae < 23

N.L. R.B. v. Preiser Scientific Inc.,- 387. F. 2d 143

(4 Cir. 1967) TRESTLE ror = te

N. L. R. B. v. Primrose. Super Market of Salem, Ine., 7

353 F. 2d 675 (1 Cir. 1965)..,........-..-.-.0 0 78

N.L.R.B. v. Quality Markets, Inc., 387 F. 2d 20 (3

A. Gir. 1967), enforcing 160 NLRB 44.:.......... 24, 34, 46

N.LR.B. v. Ralph Printing and Lithographing Co. - ee

— SD F. Ba We CO Uke. TOSI): . ok ce sc. eee... 34.—Ci«s

" N.LRB.B. v. Remington Rand Inc., 94 F. 2d 862 (2

Cir. 1938), certiorari denied, 304 U. S. 576, 58 S. Ct.

| AR RR as it ieee Se: @

N. L. BR. B, v. Schmidt Baking Co., 122 RB 2d 162: .

Cir. 1941) ..... PEPE EE ET Pe rr eT er ES eee ge - 23

N. L. R. B. v. Sehon Stevenson & Co., ins. 386 F. 2d

« 551 (4 Cir. 1967), enforcing 150 NLRB 675........

i sack ove eke ee de 4, 11,°12, 14, 15, 37, 38, 49, 52, 53, 54, 68

N. L. BR. B..v. Servette, Inc, 377 U. S. 46, 84 §. Ct. 1098. 85

N. LpRB. v. Sinclair Co., 397 F. 24 157 (1 Cir. 1968), >.

- enforcing 164 NLRB No. 49, 65 LRRM 1087... .24, 34, 46

- N.L.B.B. v. Sunshine Mining Co., 110 F. 24 780 (9

Cir, 1940) ......... cece scscecee ec cnc cee eeteceee . 28

N.GL.R.B. v. Swan Super Cleaners, Inc., 384 F.2d ;

ee ee, teen eT a Dream mer _. aoe

N.L.B.B. v. Taitel, 261 F. 2d 1 (7 Cir. 1958)...... 23,69.

‘N.L.R.B. v. Trimfit of California, Inc., 211 F. 2d 206

(9 Cir. 1954), enforcing 101 NLRB 706. -. . .10, 23, 46, 69

ponerse nn ~

N. L. R. B. v. United Mineral & Chem. Corp., 391: F. 2d

829 (2 Cir. 1968). . - eared de ecesccixtaees pews 24

N. L. R. B. v. Universal Camera dish 340 Uv. S. 474,

71 S. Ct. 456 (1951)... -- seer ec eraecreeeiecseses 47

N.L.B.B. v. Universal Gear Service Guest 394 F. 2d.

396 (6 Cir. 1968) ...2.sccecececedeccccececccceses 84 -

N. L. B.B. v. Virginia Electric & Power Co., Sie U.S.

469, 62 S. Ct. 344 (1941)....... cg eencL tacks peeks 61

- L. R. B. v. Wheeling Pipe Line Ind, 229 F. 2d 391

(8 Cir. 1956).....-- ER PE, Cee Sere eS 10, 23

N. L. R. B. v. Winn-Dixie Stores, Inc/ 341 F. 2d 750

(6 Cir. 1965), certiorari denied, 2 U. S. 830, 86

S. Ct. 69 (1965)... eee cece erefeeceereeeecceces 34, 5}

' North Virginia Steel Corp. v. |

* 168 (4 Cir. 1962).....--.../: Pi ia tie ekcicgiunaneliin 78

“Novak Logging Co., 119 NER 4573 71368). ecu 46,47

Olson Rug Co. v. ‘N. L. B., 260 F. 2d 255 (7 Cir.

1958) gp eeereeeslacyglecesennrereeereestaneee tes 59

Posty Houses, Inc., 16¢NLRBB- 1159, enforced, 384 F. od

463 (3 Cir. i967) Dad <i tn aan au rabies tit 78

Ray Brooks v. N. L. R. B., 98 NLRB 976, enforced, 204 |

- F, 2d 899 (9 Cir. 1953), affirmed, 348 U. S. 96, 75 -

8. Ct. 176 (1954) ....ceeccevcees mame g 28, 29, 30, 73, 74 -

Rabhor Co., Ine., 1 NLRB 470. ieee paws eee esines ' 27

' Retail Clerks Local 1179 [J ohn P. Serpa] v. LN. L. | a

376 F. 2d 186 (9 Cir. 1967). ....---0 eee ee -36, 73, 74, 79

Retail,. Wholesale & Department | Store Union v. Nu L.

R. B., 385 F. 2d 301.(D. C. Cir. 1967).......00. these

Roanoke Public Warehouse, 72 NLRB 1281........ 81

‘Rockwell Mfg. Co. [Kearney Div.] v. N. L. RB. B., 330 x

OF 2d iad @ Cir. '1964)...-. ye Cagakunbeacibianks ae

igs Ruby v. -aetadlial Airlines, Inc., 323 F, 2d 248 (2 Cir,

I a oats Seas (ko cokxnxSioiasaw sce 34

Sabine Vending Co., Inc., 147 NLRB 1010, enforeed,

355 F.2d 932 (5 Cir. Eee ey eee rer Are 78

- Sbicea, Inc., 30'NLRB 60 ........... Paces.

Seven-Up Bottling Co., Inc., 140 NLRB Miss... 2

Sinclair Refining Co. v. Atkinéon, 70 U. S. 95, 82 S.

WE GID foods sncncceticsiests only, es hi . 87.

"Skyline Homes, Inc. v. N. L. R. B, 323 F. d 642 (5°

| en a eee ewan kaa dhs ha ndets iespae 8

S. L. Allen & Co., Ine. 1 NLRB ...\. peices dk 80

~ Snow & Sons v. N. L. R. B., 308 F. 2d 687 (9:Cir. 1962) 36

_ Steel City Transport y: N. L. R. B., 389 F. 2d 735 (3

his youd eae ais Ons.ceue neds cust 24, 36

Strukesies Construction Co., 165 NLRB No. 102, 65 -

LRRM 1385 ..... eS 0 Be ee vanities 61, 62

Sunbeam Corp., 99 NLRB 546 (1952).....,.24, 46, 47, 48

Textile ‘Workers Union [Hercules Packing Corp.] -—

N. i. R. B., 386 F. 2d 790 (2 Cir. 1967)............

Trimfit of California, Inc., 101 NLRB 706, enforced,

211 F, 2d 206 (9 Cir. 1954) ied ek eh ee bae teu ss 43

Union Starch & Refining Co., 87 NLRB 779.......... 43

United. Aircraft Corporation v. N. L. B. B., 333 F. 2d

819 (2 Cir, 1964), certiorari denied, 380 U. S: 910,

| ne ee 78

United Mine Workers v. Arkansas Oak cies Co.,

351 U. S. 62, 76 S. Ct. 559 (1956) ..................,

Ry ene oe .--10, 16, 18, 26, 30, 31, 32, 33, 34, 40, 45, 72, 73

Universal Camera Corp. v. N..L. R. B., 340 U. §. 474,

71S, Ct. 456 (1960) 3 .0.....0cpeesereeged a ey oe 53

Weil-McLain Co., 130 NLRB 19............ secceees 62

U0 CIM .....5..5505;. lee Met Sh eee ee a

‘The National Labor Relations Act, as amended, 29

ae One ON itv siedicvceteres Porrrr tr + i

: Section 7 ......+« roti. uo ooeiine 45, 69, 80, 81

. Section 8(a)(1) ...-6,8,9, 10, 11, 14, 15, 47, 56, 7, 56, 67,68;71, 76

Section 8(a)(2) .......+.-..--+57, 20, 44, 47, 48, 72, 81, 82

Section 8(a)(3) ° ee 10, 15, 43, 64, 65, 71 -

Section'8(a) (5) : Per rer er © nn o% ccc choose ety Py eee Mee 13, 14, ©

15, 16, 17, 18 19, 90, 21, 22, 23, 24, 25, 26, 31, 38, 34, 36, 40,

44, 49,51, 53, 54, 66, 71, 72, 73, 74, 77, 78, 79, 80, 81, 82, 83

Section 8(b) (2) ees pied es FT eee pape

_/ Section. 8(b)(4)(A) ofeerreeeeeee ENE

Section 8(b)(4)(B) ...... ater eae 5

Section 8(b)(4)(C) ...:..0ceeeeeee cheap neesuay 17, 29

Section 8(b)(4)(D) ... 6... ese eee KO ne Seren 17, 29

Section 8(b)(7) ......2- +... SA: MORE .18, 33, 34, 35, 43

Section 8(c)....... agiubics PETE PU Sere 62

RE I is crea ous exodines 15, 16, 17, 25, 26, 31, 80

> lia Wit oases es. Poe 17, 25, 26, 27, 28, 37, 54,75

oy MAID cna we o's ctsa h Min cw enn penpucawes _.

"” Seetion 9(c)(1)(A) ....+-. Sitadashieeeduiealae, 18,43

Section 9(c)(1)(B) Sere ', <5, 14, 17, 19, 70,71, 75, 77, 83

Mittin HOME) 5.3.0. vesileceseccewases jicaweow .. 28

Section 9(e) ..... pibessvenetees Peer rere 18, 43 ©

Section 9f) ..... ree : SPS a ene ee dy

‘Section 9(g) chk beuein besa acuenseh PND a eeeaes 33

Section a cakat ie veveee TT apy Fy ye shoe

| gna aot aS 9 eS he 2am aes = bated

~ cnet

Section 10(c) SOT eed atic ieisioeciess ae

Section 10(e) ............ gee ee ae aber aes 1

Section 14(b) .............. tials ae

EID 9 65 o45o.ctaheon scans agekgwounneiee 18, 41, 42, 54

Section 401(6)/........ceccesccrcccccsccsececcocs 18, 42

| Congressional Material.

93 Cong. Rec. A 3232, II Legis. Hist. LMRA, 1947.... 72

93 Cong. Rec. 3954 (daily. ed. April 23, » 1987 ), i dials. :

fe .

en oss ates i ie Ponce tenods ceaes 72

93 Cong. ier 4805-4807, 4875-4884. (daily eds. er 7

and 8, 1947), II Legis. Hist. LMRA 1947....:..... 41

93 Cong. Ree. 4876 (daily ed. May 8, 1947),-11 Legis.

Mik: CN TOs is ooo ods he dinew aes ov yavds 42

93 Cong. Rec. 5146-5147 (daily ed. May’ 12, 1947), If

Legis. Hist: LMRA, 1947.......... Seen Perera \. 41, 72

93 Cong. Rec. 6664 (daily ed. June 6, 1947) (analysis «

‘by Senator Murray of Amendments of National Law"

bor Relations Act), II Legis. Hist. LMRA 1947.. 28

93. Cong. Rec. (daily ed. June 6, 1947) (remarks of

Senator Murray), II Legis. Hist. -LMRA 1947...... 28

- 105 Cong. Rec. House 16320; Legis. ‘Hist. LMRDA.. . 35

- 105 Cong. Rec. Sen. 1568: (daily ed. February 4, 1959),

IT Legis. Hist. LMRDA, 1959.......72......-2.68 - 34

105 Cong. Rec. Sen. 5961 (daily ed. April 24, 1959), |

. II: Legis, Hist. LMRDA, 1959....2......503.0005. 35

105 Cong. Ree. Sen. 5765, 5963, 5964, 5965, 5977 (daily

eds. April 21, 24, 1959), II Legis, Hist. LMEDA,

_ PHD Son sed cavaces PEK p eed hin. Chon Oe padre aeaES et 34

105 Cong. Rec. Sen. 5977 (daily ed. April 24, 1959),

II Legis. Hist. ee MS chs sates aeekamnseva 33

“ ;

— errr cP ees PT LOLS PII ILE Ke Atala Mail Biles aa es

OE tt , — <a a OF ee

105 Cong. Rec. House 13087 (daily ed. July ‘27, 1959),

II Legis. Hist. LMRDA, DSi hess k weds bhon ows 34, 44-

‘ 105 Cong. Rec. House 13092, 1387 . 14183 (daily eds.

July 27, August 5, +i. 1959), IT Legis. Hist. -LMEDA,

WDD nnccccccedciccorgeccwoarecenccciiooseceives’s

105 Cong. Kec. Sen.°5951, 15124, 16398, 16419 (daily

. eds. April 24, August 20, 21; Spptember 3, 1959), II

” Legis. Hist. LMRDA, OY AS i rer Pee

105° Cong. Rec. 16,400 (daily ed. Sentieabie 3, 1959),

II Legis. Hist. LMRDA, 1959...............2.0

Hearings-on H. R. 11725 before the Special Subcom-

_ mittee on Labor of the. House Committee on Edu-

cation and Labor (letter of George F. mickaneny),

90th Cong., 1st Sess., p. 459 (1967)........ re

Hearings before the Subcommittee on Labor, S7th

Cong. 1st Sess. on S. 256 (to Repeal Section 14(b)

of the NLRB Act) (1965).......--sseeeee eee es 36, 37

H. BR. 3020, I Legislative History of the Labor-Manage- |

ment Relations Act, 1947................++eee0e: 21,25

House Report No. 245 on. H. R. 3020, I Legis. Hist.

-LMRA, BE POeKaNU pic sGacseWavednke tins och ene 21,.25 .

S. 22, 90th Cong. ESE year’

S. 426, 91ist Cong. Ist Session..-............+.. vas

‘Ss. ‘Rep. No. 105 on S. 1126, I Legis. Hist. LMBA,

We ise oqe cbetegescetcvccsccohessswsseecesens

S. Rep. No. 187 on 8. "155, I Legis. Hist LMEDA,

Oe toe: SRN a erence A De ae

S. 1196; I Legis. Hist. LMRA, 1947..:..............

Subcommittee on NLRB of House Comfhittee on Edu- ~~

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the Administration of the LMRA by ‘the NLRB ~

SON PE HS occ vv iv cate sienriencetede ns

“AFL-CIO Guidebook for Union Organizers”......50, 51

Agabin, ‘‘Labor-Elections-Campaign Literature,” 3

A aE i oo co sion o eyw anew ened 59,62

\ 5 Am. Jur., Attorneys at Law, Sections 31, 32..... noe ae

Bok, ‘‘The Regulation of Campaign Tactics in Repre-

sentation Elections Under the National Labor Re-

_lations Act,’? 78 Harv. L. Rev. 38...........20008

RE Re ts, <j aye . +... -46; 56, 57, 58, 59, 60, 62, 64, 69

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BNA, Collective Bargaining Negotiations and Con-

SE No REDE ae ent ene ena 42

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Corbin on Contracts, Section 2i aha gee ba eee ole oe % «89

Harlow, Social Science in Public Relations (1957). 57

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(1948) re eee eee eee eee ‘67

Lesnick, H., ‘‘Eetablishment of Bargaining Rights

Without an NLRB Election”’, 65 Mich. L. R. 851. .

(pecn bekestge teens ict ansabewees 19, 46, 50, 54, 56, 79

Mechem Outlines Agency, Sections 25, 40-42.......... , 39

! MacDonald, Austin Fx American State Government

and MAiiaivation, 3 Thomas, Y. Clowell Co., New

York, 1 ee ne ne ae — 988

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NLEB, First: Annual Report 1936.............. obse Me,

NLBB, Second Annual Report 1937........ ITP T ITT 27

OQ ; y . XVii' | . ~~

: NLRB, Seventh . head Maes i... 287

a eed a

NLRB, Thirteenth. Annual Report 1948... 0.000... ue

! _ NLRB, Fourteenth Annual Report 1949............. . ae

i NLEB, Thirtieth Annual Report: 1965..:..:.5.....'. oe

NLBB, Rules & Regulations [Series 4, Section 203. 48,

_ .., effective 1946]. care ey PEE ORES PO EEE OET Perey 27

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Wigmore on Evidence, vol. 7, § 2134. SOD ASH 1 38

IN THE

‘Supteme Court of the Buiter States

OcTOBER Tena, 1968.

- No. 573,

a LABOR BELATIONS BOARD, ”

Pelstioner,

vs. -

GISSEL PACKING CoO., INC., er au. |

fee | No. 691.

FOOD STORE EMPLOYEES UNION, LOCAL NO. .347, -

AMALGAMATED MEAT CUTTERS AND

BUTCHER WORKMEN OF NORTH

AMERICA, AFL-CIO,

Petitioner,

vé,

ieieess PACKING CO., INC. ©

APPEALS FOR THE FOURTH CIRCUIT.

é . :

BRIEF FOR THE FOOD STORE EMPLOYEES UNION,

LOCAL 347, AMALGAMATED MEAT CUTTERS

' AND BUTCHER WORKMEN OF NORTH

AMERICA, AFL-CIO.

! he een amt ean ae

_ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

' OPINIONS BELOW.

‘The opinion of the Court of Appeals (A. 316-318) is re- -

ported at 398 F. 2d 336 (4 Cir. 1968): The decision and

order of the National Labor Relations Board (A. 314-315;

250-309) are reported at 157 NLRB 1065.

JURISDICTION. |

. The judgment of the Court of Appeals was entered on

June 28, 1968 (A. 316). Ori September 17, 1968, Mr. Jus-

tice Black extended the time for filing the Union’s petition

for writ of certiorari to and including October 26, 1967. On .

September 26, and October 26, 1968, the Board (No. 573)

and the Union (No. 691) respectively filed petitions. On

December 16, 1968, both petitions were granted and con-

solidated for hearing (A. 321). The jurisdiction of this

Court rests on 28 U. S. C. 1254 (1) and Section 10(e) of the 7

National Labor -Relations Act, 29 U.S.C. 160(é).

STATUTE INVOLVED.

The relevant provisions of the National Labor Relations

Act (61 Stat. 136, 73 Stat. 519, 29 U. S. C. 151, et seq.). are

set forth, in the Supplemental Appendix, supra, pp. 1-13.

“QUESTIONS PRESENTED.

‘ Whether the National Labor Relations Act, as amended,

imposes the duty to recognize a union upon an employer

only under circumstances: -(1) where the union has been

_ certified by the National Labor. Relations Board after a

Board conducted election or (2) where it can be proved that

an employer has actual knowledge (by means other than .

authorization cards) that a union represents a sateiainid of

its employees 1 in an appropriate unit.

2. Whether unambiguous authorization cards signed by :

‘a majority of employees unequivocally, designating a union

to represent them in respect to wages; hours and conditions

of-employment, are so inherently unreliable that an em-

ployer may refuse to recognize a union so designated with- ’

out violating Section 8(a)(5) of the maaan Labor Rela-

tions Act, as amended.

3. Whether the Court of Appeals erroneously construed

Section 8(a)(5) of the Ivational Labor Relations Act, as

amended, in concluding thaf, irrespective of his other un-

fair labor. practices, an employer is justified in refusing to

recognize a union that bases its claim to. representative

‘ status on the possession of unambiguous authorization

ecards signed by a majority of the employees obtained with-

out misrepresentation, coercion or taint of any kind.

STATEMENT.

A. The Board’s Finding of Fact.

‘In 1960, Gissel Packing Company, Itic., hereinafter re-

ferred to as the Company or Employer, reacted to a

‘Union organizing campaign by engaging in threats to re-

fuse to bargain with the Union, to close its plant located in

- Huntirigton, West Virginia, or greatly to curtail its opera-

tions, ¢nd to discriminate against employees who joined

the Union; the Company also implied that the employees

would be given the benefit of group insurance if they re- .

jected the Union.' In 1963, shortly after employee Mount

_ was hired, Company Vice President Charles Gissel told him

that the shop was non-union and that any employee

—_—— a

1. After a hearing, a Trial Examiner found the above actions

of the Company to be unfair labor practices violative of Section

8(a)(1) of the Act {Case No.:9-CA-2068). (Supp. A. 14-33.)

No exceptions were filed to the Trial Examiner’s Intermediate

Report (A. re :

j 4

“‘canght”’ talking to a Union reproentaive » would be dis-

charged (A. 60). ~~ =~

In September 1964, aware of the Union’s activities at two’

other Huntington plants,? Vice President Charles ‘Gissel

individually interrogated employees Frye and Mount as to.

whether they: had engaged in conversations concerning the

Union and threatened them with’ discharge if either was

_ caught talking to a casa Union agent (A. 265; 61, 93-

94).

The Union commmed its organizing efforts in January

1965,2 and between January 13 and 22, thirty-one of the

forty-four to forty-seven unit employees signed unambigu-

‘@us union cards‘ authorizing the Union to represent them

in collective bargaining. .

In J anuary, employee Adkins heard Vice President Gis-

sel tell a group of employees that ‘‘[i]f the Union got i in,

2. Unfair labor practice hearings irivolving 8. S. Logan Packing

Co., 152 NLRB 421, modified 386 F. 2d 562 (4 Cir. 1967), and

_ Sehon Sievenson & Co., Inc., 150 NLRB 675, enforced 386 F. 2d —

551 (4 Cir. 1967), had been held. in Huntington, ay eta

in the summer and September of 1964, respectively.

3. All dates hereafter shall refer to the’ year 1965, unless other-

wise specified. . ;

4. .The cards read (A. 264; 241):

“

APPLICATION

Foop Store Empuoyees Union, Locau # 347 -

P. O. Box 2751 - ° Charleston, W. Va.

The undersigned “hereby authorizes this Union to represent his:

or her interest in collective bargaining concerning wages, hours —

and piney conditions. | :

eee eee sees eee eee eeeeeeeeeeeee ii cseeaeseseeeeeeeeeeeeeeeeeeeeeee

eoeeweeeeoev eee ees eee eeeeeeeeeeee

Your Telephone Number

Desde ree LeIK ’ iis ai id aaa iens bahacaat RPM AR

i OR “av - ones ——

-he’d just take his money and let the Union run the place

the way they wanted to’’ (A. 270; 134).

On January 22, Union representative Speicer wettest

Vice President Gissel that the Union represented a majority

-of employees and’ requested recognition and bargaining;

Gissel refused. ‘‘to talk about the Union’’ and_referred

Spencer to the Company’s attorneys (A..256; 12, 17-18).

The same day, Spencer confirmed his telephone request for

recognition in a letter to Gissel in which he offered to sub-

mit signed authorization cards to the Company, ‘‘so that

there will be no possible doubt as to our majority status’”’.® -

On January 26, the Company rejected the Union’s request |

in a letter which: (1) stated that the- Union had: lost an

earlier NLRB election® and that the Company did ‘‘‘not

believe that there has been any change in circumstance or ©

opinion-of our employees since that time’’; (2) alleged that

the Company was ‘“‘advised’’ that the Union’s organizing

technique involved the obtaining -of ‘signatures ~ ‘On SO- .

called authorization cards by a variety of means and rep-

resentations which are not compatible with a free exercise

of an employee’s choice’’, including information ‘‘of in-

stances of direct misrepresentation in obtaining employees’

signatures’’; (3) denied that truck drivers were ‘‘a part of |

any appropriate bargaining unit’’; and (4) invited the

_/~ Union to file for a Board election (A. 257-258; 233). At no

- time did the Company avail itself of the opportunity under

Section 9(c)(1)(B) of the Act to eur for an election

(A..288). ‘

In the early part of Tebresi’y, Vice. President Gissel (1)

interrogated one employee as to whether he had heard any- —

"5. Spencer’s letter ‘noted that truck drivers were to he included |

‘in the-requested unit (A. 257; 232).

_. 6. The election referred to was held within thirty days after

. January 27, 1961, in a unit of production and maintenance em-

ployees. “including truck drivers: [and] truck driver salesmen

,~77 oe” (eee. A. leanne

‘thing about the Union and if any Union man had been .

~~ around to Sign him up, (2) asked émployeé Moore whether ---- ..—...

employee Don Kidd was the leader of the Union, stating |

that. Kidd would be immediately discharged if Gissel dis-

covered him to be such a leader,’ (3) requested Moore to

_ report to Gissel all he could learn about the Union, includ-.

ing the names of the employees who had signed cards, (4)

asked employee Frye (a) if he knew anything about the

Union, (b) what the. Union had offered him and (c) stated’

that he-could offer Frye more than the Union could,® (5)

asked an employee if he would join in a ‘‘walk-out’’,® (6)

_ told a group of employees ‘‘[t]he hell with the Union * * * ”

I’m going to leave [the plant] and turn it over to them,’

(7) later in February said to a group of employees that he

, did not want ‘‘to hear any more about this Union stuff’’—

to ‘‘get out’’ if they could not do theirgwork and (8) to

, another employee, Gissel threatened that the Union would.

7. Much of the conduct in the instant case found by: the Board

to have violated Section 8(a)(1) is similar to the unfair labor

‘ practices committed by this Company in 1960 (NLRB Case No.

' 9-CA-2068). In that case the Board found inter alia that Herbert

Gissel unlawfully had told employees that only those who did*not

- sign Union cards would retain their jobs (Supp. A. 22-23).:

8. “In 1960 Company President Paula Gissel in a captive audi-

ence speech to all employees promised the benefit of group insur-

ance if they rejected the Union (Supp. A. 20).

9. In the earlier case, Paula ver told employees that those:

who wanted to walk out could do so, that the plant could still oper-

ate with a smaller work force ( Supp. A. 17).

- 10. During the previous union organization campaign at Gissel

in 1960, Peula Gissel told employees that rather than accept the

=. Union she would close the plant or greatly curtail its operations.

* This threat. was confirmed by Herbert: Gissel and Edward Gissel

who on separate occasions ‘told different groups of employees

that their mother (Paula) would shut down the plant and draw

social security before accepting a union (Supp. A. 17, 23, 24-25).

eee

7 : : .

_ have to “fight him first? ’, stating that it would not ‘get

' jn’? (A. 268-270; 62, 94- 96, 102-104, 111-112, 134, 141).™

Tr this: context, on February 10, Spencer by letter re-

newed the Union’s request for recognition, pointing out

that ‘‘[t]he coercion and intimidation and illegal interro-

; gation and threats which occur between the time an election

is petitioned and the actual election by the employers is -

most difficult for us to combat”’ (A. 258; 235). Spencer

again offered to deliver the signed cards to the Company for

check against payroll records to prove the Union’s majority

(A. 258; 235). Vice president Gissel answered on February

12, asserting that the Union’s ‘‘approach * * * bolsters our

opinion that you do not really honestly represent a ma-

jority of the employees.’’ No other reason for doubting

- the Union’s majority was given (A. 259; 237-238). Reply-

ing on February 16, the Union made.a-final unsuccessful

attempt to achieve recognition from the Company, again

offering the authorization-cards for inspection (A. 260;

239).

_In March and April the Company continued its anti-

| Union campaign (1) by interrogating employee Burchell as

to whether ‘employee Mount had said anything about a

Union, directing him to stay away from Mount, who would

be ‘‘bad’”’ for him (A. 268-269; 103-104), (2) by further

inquiring of Burchell as to whether employee Hysell had

induced Burchell to attend a Union meeting or sign a card

(A. 269; 104) ¢¢3) by engaging in surveillance of a Union - -

meeting (A..268, 271-274, 283-286;- 63-65, 89-90), (4) by

asking Mount, in the‘presence of Frye, whether he attended

the meeting, telling him Gissel had knowledge of such Union

~ meeting attendance (A. 275; 65, 90), and (5) by changing

11. Charles Gissel was repeating the threat made by his mother

a few years before that attempts by employees to designate a union

as their collective bargaining representative were futile gestures

because the Company would not recognize the Union even if the

employees desire it ar A. weer:

‘

the hours of work of Mount and Frye and subsequently

discharging them with’a profane reference in respect to-

what they could do with the Union (A. 276-283, 286; 67-68,

MAJORITY. —

NAS noted above, thirty-one employees in a unit of forty-

four to forty-seven employees Signed unambiguous union

‘authorization cards. No effiployee was told that the card

would be used to get an election, that a majority had al-

ready signed, that initiation fees would ‘be waived or that

-he would lose-his job if he did not sign."? Indeed, the only

statements made to employees pertinent to the cards were

that the cards would be presented by the Union to the

Employer to achieve recognition and bargaining (A. 56).

_ Moreover, there is no evidence that any of the employees

changed his mind about designating the Union to represent

him. On the contrary, there is evidence of continued ad-

herence to the Union, for the record reflects that a sub-

stantial number of employees, ‘‘perhaps all but three’’,

®ttended a Union meeting in April (A. 274; 138). 8

‘B. The Board’s Conclusion and Order.

The Board concluded that the Company interfered with,

restrained and coerced employees in violation of Section

8(a)(1) of the Act by interrogating employees about their

Union activities and the conduct of the Union, asking them «>

to learn of the. Union activities of others, threatening them —

with discharge, promising economic benefits, and creating .

the impression of and engaging in surveillance; the Board

also concluded that employees Mount and Frye were dis-

criminatorily discharged in violation of : Section 8(a) (3)

and 1), and further concluded that the Company violated

12. All of the Union’s authorization cards herein were obtained

without misrepresentation, coercion or taint of any kind.

‘

Section 8(a)(5) and (1) of the Act in respect to its re-

fusal to recognize the Union which had: been designated by

a substantial majority of employees by their execution- of

“unequivocal authorization cards in a eased iia

unit (A. 299).

The Board rejected the claim that i Company had a

good faith doubt as to the Union’s majority status” for the

reasons that (1) it ®nored thé Union’s offer-to submit for

examination and comparison with payroll signatures the

signed authorizations upon which the Union relied; (2) -it

failed to file an employer ’3 representation petition with

the NLRB; (3) its asserted reasons for refusing to recog-

nize the Union were unsubstantiated or insubstantial ;*

13. The Trial Examiner, ” Veter finding that the Company’s re-

fusal to bargain was not motivated by a good faith doubt of the "

-Union’s majority, noted that ‘there is language in Internattonal..

‘Ladies’. Garnient Workers Union [Bernhard-Altmann] Vv.

N. L. R. B., 366 U. 8. 731, 738-740, which suggests that a good faith |

doubt concerning the Union’s majority is no defense to a refusal to

if the Union in fact represented a majority.’’ (A.- 291; n.

41). ‘The Board stated that it ‘‘need not’’ rely upon the Trial

Examiner’s interpretation of the Bernhard-Altmann case, op. cit.,

in concluding that Respondent violated ‘Beetion 8(a) (5) of the Act

(A. 315, n. 2), see infra, pp. 80-83. .

14. (1) As noted above, no evidence was presented. to support

the Company’s charge that authorization cards were obtained by

misrepresentation or other means incompatible with a free exercise

_of an employee’s choice (A. 263-264, 288; 56).

(2) The Company understood that the Union’s requested unit

was the same as that found by the Board to Be appropriate in 1961.

The Board, citing Florence Printing Co. v. N. L. R. B., 333 F. 2d

289, 291 (4 Cir. 1964), held further ‘‘that ‘even if the company

entertained doubt [as to the appropriateness of the unit], if is no

defense to a refusal to bargain charge where the unit is proper’ ada

(A. 287, n. 38).

(3) The Company’s evidence that its representatives ‘decided

‘that maybe they [the Union] might not have a majority’’ because

- it lost an NLRB election four years earlier wag inconsistent with

the frequently exercised right of employees to change their minds.

_The Board further found that a similar argument had been re- .

_ jected by the Fourth Circuit in N.L. B.B. v. Overnite Transpor- ~

tation Company, 308 F. 2d 279, = (4 Cir. 1962).

—

See

(4) its course of unfair labor practice conduct both before |

and after the Union’s request for recognition constituted

(a) an ‘‘absolute refutation’’ of the Company’s good faith

claim, (b) a program to destroy the Union’s majority, and

“(c) ‘‘a positive rejection by the Company of the. principle

of collective bargaining.’’ The Board also rejected the.

contention of the Company that a Union can never establish

its majority on the basis of cards but can do so only in

a Board-conducted election.’®

The Board ordered the Company to cease wi desist from

the unfair labor practices found, to offer reinstatement with

back pay to the employees discriminatorily discharged, to -

bargain with the Union upon request, and to post appro-

priabs notices (A. 301-303, 315). Ag ake eee

©. The Decision of the Court of Appeals.

Boafd’s findings tliat the Company coerced its employees

: a Court held that substantial evidence supported the

- in the exercise of their rights in violation of Section 8(a) (1)

of the Act and discriminatorily. discharged two employees

because of their Union membership and activity in vio-

lation of Section 8(a)(3) and (1) (A. 317). The Court re-

jected me ‘Board’ 8 conclusion that me Company had re- —

‘15. In aidten a ‘vislation of Section 8(a) (5), the Board relied

_ upon this Court’s decision in United Mine Workers of America v.

Arkansas Oak Flooring Company, 351 U. 8. 62, 74-75, 76 8. Ct. 559,

566-567 (1965) ; the Fourth Circuit’s decisions in Florence. Print.

ing Co. v. N. L. R. B., 333 F. 2d 289,291, 292 (4 Cir. 1964);

N. L. R. B. v. Overnite Transportation ‘Company, 308 F. 2d 279,

283 (4 Cir. 1962) and NW. L, R. B. vy. Inter-City Advertising Co.,

190 F. 2d 420, 422 (4 Cir. 1951) ; and the following decisions in

other circuits: N. L. R. B. v. Philamon Laboratories, Inc., 298 F... ~

2d 176, 179 (2 Cir. 1962) ; NW. L. R. B. v. Wheeling Pipe Line, Inc,,

- 229 F. 2d 391, 393 (8 Cir. 1956) ; N. L. R. B. v. Trimfit of Cali-

forma, Inc., 2i1 F, =a 209 8 Cir. 1954) (A. eter ae

‘

Ss an fond rey

fused to: bargain in violation of Section 8(a)(5) and’ (1).

Inter alia, the Court said (A. 317-318) :* i a

In recent cases we have had occasion to point out thar,

- : authorization cards are:such unreliable indicatdérs of ~’

the desires of the employees that an employer con-

fronted with a demand for recognition based solely

upon them is justified in withholding recognition pend-

ing the result of a certification election? The reason-

ing élaborated in those decisions applies with, equal

force here * * *. Sy te

' 3. Crawford Mfg. Co. v. NLRB, 4 Cir., 386. F. 2d 367, cert.

denied 36 LW 3408, [390] U.S. [1028] ; NLRB v. 8. 8S. Ldgtin

Packing Co., 4 Cir., 386. F. 24 562; NLRB v. Sehon Stevenson

Co., Inc., 4 Cir., 386 F. 2d 551; NLRB v. Heck’s Inc., 4 Cir.,

[398] F. 2d [337] (decided this day). :

| 1, The 1947 Amendments. ;

‘To appreciate the full impact of. the cryptic decision of

the Fourth Circuit herein, it must be considered in the

light of the cases cited in its opinion’ and other of its

16./'The Couft made teference to the Company’s claimed doubt

of the Union’s majority ‘‘buttressed by the fact that a few years

earlier the Union had lost.a valid secret election after a similar

claim of majority status.’’ The Court made.no mention of the un-

fair labor practices of the Company which antedated the election. -

See supra pp. 3-4, ns. 7-11 (A. 317).

17. See n. 3 of quotation, above (App. 318). Particularly in-

apposite is Crawford Mfg. Co. v. N. L, R. B., 386 F: 2d 367 (4 Cir. |

1967), certiorari denied, 390 U.S. 1028 (1968). That case pre-

sented issues involving the Board’s Cumberland Shoe doctrine

[Cumberland Shoe Corp., 144 NLRB 1268, enforced, 351 F. 2d 917~ _

(6 Cir»1965)], and Bernel Foam doctrine [Berngl Foam Products,

Inc., 146 NURB 1277], neither of which is involved in the instant

Gissel - In Crawford, op. cit., the Court found that consider-

tions of the Union’s organizer—a fact not extant herein. Apparently

N.L. R. B.v, General Steel Products, Inc., etc., in No. 573, congoli-

dated herewith, contains issues relating to the Berne} Foam and

_ Cumberland Shoe rines Of the Board. Sigclair Co. v. N. L. R. B.,

in No. 585, scheduled for argument on the y as Gissel, also

. apparently involvés the Board’s Bernel Foam rule.

S." :

Tae.

. able middpprehension in the minds of employees in t.to the |

“purpose of the authorization cards was-generated by representa-

« Majority status

. .

recent decisions.** The Fourth Circuit’s doctrine was first

and most fully enunciated in NV. L. R. B. v. S. S. Logan Pack-

ing Co., 386 F. 2d 562, 568-570 (1967), where the Court held

that the elimination in the 1947 amendments of the Act

. of the phrase ‘‘any other suitable method’’ from Section .

0) withdrew from the Board the authority to order an

‘employer to bargain with a union, absent an NLBB cer-

tification, unless factually the employer has no doubt (based

upon evidence other than authorization cards) that the

_union'represents a ihajority of the employees.” The Court

said that, where the employer has no doubt ‘af the union’s

‘‘there is no question of representation to

resolve’’, but, ‘‘[a] question concerning representation

’ exists * * * ‘when, a determination of the union’s status and

‘the employer’ s doubt of it is dependent upon«a ‘choice of ..

dubious or debatable’ <inferences arising from * * * evi-

dentiary facts’’ [386 F. Yd at 569]. Hence, the Court con-

cluded that the resolution ofa. question concerning repre-

_ sentation thus defined was restricted to a secret ballot .

Board-conducted election [386 F. ‘Qdvat 562].2° Conse-

»18. Such-.additional cases include: General Steet. Products, Inc.

A. NLR. B., 398 F. 2d 339 (4 Cir. 1968) ;. Benson Venger Co. v.

N.L. R. B., 398 F. 2d 998 (4 Cir. 1968) ; cf. N. L. R. B. v. Preiser

Scienttfic, Inc., 387 F. 2d 143 (4 Cir. 1947) ; N.L.R.B. v. Lifetime.

Door Company, 390 -F. 2d 272 (4 Cir. 1968).

19. In N.L.R.B. v. Sehon Stevenson & Co., Inc., op. cit., the

Court Specifically held that the employer’s polling. ‘of employees

gave Him such actual knowledge of majority. Analyses of N. L. R. B.

v. Preiser Scientific, Inc., 387 F. 2d 143 (4 Cir. 1967) and N. L. R. B..

v. LAfetime Door Company, 890 F. 2d 272 (4 Cir. 1968) and the’

corresponding Board decisions (Preiser Scientific, Inc., 158 NLRB

- 1375 and Lifetime Door Company, 158 NLRB 13) disclose that the

Fourth Circuit sustained each refusal to bargain order of :the

Board on the Court’s ‘view of actual knowledge. of majority in.

éach case, except that, as noted infra n. 20, Infetime Door, op.

cit. does not easily fit into this mold.

20. InN. L. R. B. v. Heck’s Inc., 398 F. 2d 337 ¢4 Cir. 1968)

involved -in- No. 573, the Fourth Circuit said [at n. 3] :‘‘Eveén the ©

ti agreed with our construction of the Act.

» Becton 9(¢) of the Act, as, amended, —— the alee:

- 9

fx,

Se SLL YOO toe tec =

13. a

quently, it held that no violation of Section 8(a) (5). can

adhere to an employer who claims a doubt as to the major-

ity status of a union requesting recognition based on au-

thorization cards and employer scienter of. the union’s

‘Majority status being unprovable by means other than such

signed authorization cards. |

2. The Alleged Unreliability of Authorization Cards. _

\InWw LR Bv Sg Logan Packing Co., 386° F. 2a

.562, 565, the Court said “ [it] -would be difficult to imagine

a more unreliable method of ascertaining the real Wishes

of employees than a ‘card check’ * * *7 that ‘‘[t]he un-

reliability of the cards ** * is inherent * * * and that [386 _

F. 2d at 566]: eae : . :

An employer could not help but doubt the results of a

card check as an indication of the wishes of employees,

for there is nothing-in the process to allay it. Unless -

the employer. is extraordinarily gullible and unimagina-

tive, he will at least Suspect unreliability in the cards

and their signatures.2! |

tion by secret ballot as the sole method of resolving the dis-

cretion it formerly possefised—but rarely exercised—to utilize

It is difficult to perceive how the Court can assert Board agree-

nized by the employer, a view diametrical to that expressed by the.

Fourth Circuit in Logan, op. cit. at 568-570.

“" <

. -« >

» ‘aaa tai Oe eeD

a : rr

Fy . ‘ m é . |

= : H

’

14 eee

In Logan, op. cit. at 567, 568, the Court suggested that

| upon the receipt of a Union’s claim of majority and a re-

quest for recognition ‘‘[{t]he natural response of an em-

ployer entertaining real doubt of the Union’s claim is an

affirmative investigatory one,’’ and ‘‘(a] finding of a Sec- ©

tion 8(a)(1) violation ow®-of_such investigatory conduct

of an employer tends to confirm his-claim of good faith

doubt of the Union’s majority * * °. But in. typical cases,

subsequent unfair labor practices have a tendency to prove

only the employer’s opposition to the Union’s organiza-

claim of majority status, and an employer is entitled to doubt the

_., union’s claim as long as it is so unreliably founded.’’ N. L. R. B. v.

' Sehon Stevenson & Co., Inc., 386 F. 2d 551, 553 (4 Cir. 1967).

In N. L. R. B. v. Lifetime Door Company, 390 F. 2d 272 (4 Cir.

1968); the Court appeared to predicate its decision of a Section

8(a)(5) violation on the fact that the employer failed to state that.

_ it doubted the union’s majority status. Judge Sobeloff, speaking ~

' for the majority, reiterated the valid analysis made in N.L.R.B.

v. Overnite Transportation Co., 308 FP. 2d 279 (4 Cir. 1962) and

Florence Printing Co. v. N. L. R. B., 333 F. 2d 289, 292, (4 Cir.

1964), that the resolution of a- genuine doubt of a union’s majority

status lies in the filing by the employer of a. petition under Section

-9(c) (1) (B) .of the Act.. Judge Boreman, concurring in Lifetime

Door, op. cit., stated that ‘‘[t]here was nothing to indicate any

doubt whatever by the Company that the Union had been selected

by a majority of the employees as their representative. ”’ However,

Lifetime Door, op. cit., in accepting union majority status based on

author‘zation. cards, seems inconsistent with other Fourth Circuit

decisions beginning with Logan and thereafter. It suggests a divi-

sion within the Court itself with Judge Sobeloff adhering to the

pre-Logan construction of the Act, [he dissented in Crawford Mfg.

Co. v. N. L. R. B., 386 F. 2d 367 (4 Cir. 1967), and wrote a special

concurring opinion in N. L. R. B..v. Sehon Stevenson Co., Inc.,

386 F. 2d 551 (4 Cir. 1967)], Judge Bryan appearing to take an

ad hoc position predicated on the particular facts in each case

[voting to find a Section 8(a)(5) violation in Lifetime Door,

cit., and N. L. R. B. v. Preiser Scientific Inc., 387 F. 2d 143

‘Op.

(4 Cir. "1967 ), and against such violation in Crawford Mfg. Co. v.

N. L. R. B., op. cit., and Benson Veneer Co. v. N. L. R. B., 398

F. 2d 998 (4 Cir. 1968) } and the remaining Fourth Circuit Judges

apparently subscribing to the rationale of Judge ss a in

~—

tional efforts; they throw no light on his belief or disbelief

of the Union’s claim of majority status.’

Pasir eI

SUMMARY OF ARGUMENT.

i es é

In 1935, when the National Labor Relations Board Act °

was passed, Congress stated the policy of the United States

to be to encourage ‘‘the practice and procedure of collective

bargaining’? and to protect. ‘‘the exercise by workers of

full freedom of association, self-organization and designa-

tion of representatives of their own choosing for the pur-

poses of negotiating the terms and conditions of their em-

ployment.’’ In implementation thereof, Congress: enacted

Section 8(4) (renumbered Section 8(a)(5) in 1947), which

‘‘declares it to be an unfair labor practice for an employer

to refuse to bargain collectively with the representatives

of his employees, subject to the provisions of $9(a).°*°*

§ 9(a), which deals.expressly with employee representation,

22. The Court specifically rejected its holding in N. L. R. B. v.

Overnite Transportation Co., 308 F. 2d 279 (4 Cir. 1962) that

violations of Section 8(2)(1) or (3) subsequent to a bargaining

demand may constitute ‘‘a refutation of any good faith doubt of ©

the union’s claim of majority status.”’ Logan, op. cit: at n. 23.

In N. L. R. B. v. Sehon Stevenson & Co., Inc., op. cit., after finding

thé employer guilty of two illegal discharges, restraint and coercion

in oan of Section 8(a)(1) and (3), the Court said [386.F. 2d

at 554]: ;

If we had no more in this case than the card’ and the finding

of violation of Section 8(a) (1) and (3) the Board’s-order to

bargain would not be enforced for the reasons we state today

in Logan. :

In Benson Veneer Co, v. N.L.R.B., 398 F. 2a 998, 1000, 1002

(1968), the Fourth Circuit sustained the Board’s findings that the

employer had engaged in coercive interrogation, surveillance and

threats in violation of Section 8/a)(1) and had discriminatorily

discharged six employees in a unit of fifty-six, but held that such

illegal conduct did not ‘‘undercut the substantiality of its [the ~

employer’s] doubts [of the Union’s majority status].’’

says nothing as - how the employees’ representatives

shall be chosen * * * [and] does not make ‘it a condition.

that. the representatives * * * shall be certified by the

_ Board, or even be eligible for such certifications * * *’’.

“United Mine Workers v. Arkansas Oak Flooring Co., 351

_U.S. 62, 76 s.ict. 559, 564-575 (1956).

Although the National Labor Relations Act was subjected

to the white heat of the crucible of Congressional _re-

evaluation, #econsideration and amendment in 1947 and

1959, both the policy of the Act fostering collective bar-

gaining and the implementation thereof survived unseared

‘and unchanged and exist in the Act today in identical lan-

guage to that originally authored. by Congress in 1935.

’ Prior to 1967, this Court ‘and all courts of appeals, in-

cluding the Fourth Circuit, were in agreement that an

| employer violated Section 8(a)(5) of the Act when he

refused to recognize for purposes of collective bargaining

a union representative which had been- designated by a

majority of his employees by virtue of unambiguous, un-

tainted signed authorizatron cards. Efforts were made in

the Congress that passed the Taft-Hartley amendments

in 1947 to change this rule. ,The bill passed by the House

of Representatives sought Pt amend Section 8(a)(5) by

substituting the phrase. ‘currently recognized by the em-

ployeror cértified as such under Section 9’’ for the éxisting

phrase ‘‘sttbject to the provisions of. 9(a)”’.

The House:Report in its version of the bill made it dear

that certification following a Board-conducted election would

| be the exclusive method of achieving recognition and that

@ an employer wonld not violate Section 8(a) (5) by: refusing

to recoghize a union designated by a majority of its-em-

ployees, absent such Board certification. Congress in pass-

ing the Senate bill, which retained the language of Section

8(a)(5) as written in the Wagner Act; refused to foist

a oe

_ prior to 1947.

upon Section 8(a)(5)° the election and certification -rée-

quirements of Section 9(c) and thereby expressed its inten- .

tion to maintain the interpretation accorded Section 8(a) (5)

The Fourth Circuit has pounced upon the deletion of the

phrase ‘‘any other suitable method”? from Section 9(c) in

_ 1947 as a basis for its novel theory that Congress intended

to proscribe the Board from concluding that an employer

‘had violated ection 8(a)(5) predicated upon a refusal

to recognize a ‘designated bargaining agent where the ma-

jority proof lay in signed authorization cards. The in-

ternal design of the Act’and the legislative history of the

1947 Taft-Hartley .Amendments show unmistakably that

this deletion prohibited the National Labor Relations Board

. from issuing a Board certification based upon cards, peti-

tions, strikes, ete. (and such other methods of proof which

were acceptable’ under the Wagner Act), and _ specifically

was intended to withdraw from the Board the power to

issue certifications, based upon cross-card checks, a prac-

chice which had continued into 1947. However, since-Congress

_ rejected certification as a prerequisite to a refusal to recog-

nize violation, the elimination of the above phrase from

Section 9(c) could not affect the existing rights and obli-

gations under Section 8(a)(5) which are subject only to

the provisions of Section 9(a). | | .

Moreover, the restriction of certifications under Section

3(¢) to the Board election processes is consistent with Con-

gressional intent in 1947 to expand the significance of certi-

fications implicit in the design of Section 8(b)(4)(B), (C),

and (D) of-the Act. More specifically, the change in See:

tion 9 of the Act wrought by the 1947 amendments which

has relevance to a refusal to recognize violation is the addi-

tfon of Section ae (B) ‘wheréin ‘the ‘employer is*ac-.

corded a right. to file’a petition for an election with the

‘National Labor Relations Board where he.has a real doubt

PREG SP ern worm

" Le 7

~~ that. the union requegting recognition ‘represents a majority

- of his employees or where competing unions are claiming

such recognition, and, wherein the Board is giyen exclusive . —

authority to determine the existence of a question concern-

ing representation to be resolved by a secret election.

Despite Congréssional ‘awareness of this Court’s decision

in United Mine Workers v..Arkansas Oak Flooring Co.,

op. cit. and the uniformity of court decisions predicating

Boagd bargaining orders on authorization card. majorities

between 1947 and 1959, Congress did not amend Section

8(a) (5) or Section 9. Indeed, the enactment of Section

‘8(b) (7) in 1959 further upgraded the value of certification

by exempting a certified union from -the proscriptions

‘against organizational. and recognition picketing by unions.

.The legislative history of that Section accorded full recog-

nition-to the continued right of employees to choose their

bargaining representative by means other than an election.

The Fourth Circuit’s doctrinaire assertion that authori-

zation cards are inherently unreliable is based on a mis-

application of Board rules dealing with two-union situa-

tions and is in contravention of (1) established law which

regards signatures on documents as presumptively valid and

reliable indicia of the signer’s intent, (2) Board and judi-

cial acceptance of signatures on authorizations as im- .

pressing upon an employer the duty to recognize; and (3)

Congressional affirmance in Sections 302, 9(c)(1)(A), -

9(e), 8(b) (7) and 401(e) that signed authorizations are a

reliable and essential element of the Taft-Hartley . and

Landrum-Griffin labor laws. Analysis of.election procedure

reveals that, although elections theoretically permit expos- -

ure of employees to ‘‘both sides of the issue,’’ they also ex-:

pose employees to employer restraint, coercion, intimidation,

_- discharge — multituditfous other employer influences which

MGS PES LILI TPO ET

adversely affect the employees’ free chotee. In sum, the ©

Fourth Circuit’s decisions in the instant and all post Logan

cases are ‘‘the product of an obsession with the infirmities -

of authorization cards, and a romanticizing of the validity .

of an election. Cards have been used under the Act for

thirty years; the Supreme Court has repeatedly held ‘that

certification ’is not the only route to representative status

** * *. No amount of drumbeating should be permitted ta

overcome, without legislation, this. history.’’ Lesnick, H.,

‘‘Establishment of Bargaining Rights Without an. NLRB

Election’’, 65 Mich. L. Rev. 851, 861-862. .

| Il. | ease

Factually, Gissel presents a classic example of a respond- .

ent. who runs the gamut of unfair labor practices—from

restraint and coercion through discriminatory discharge—

and then complains that: its employees were not given a

‘‘free choice” in a Board election. But, although Section

9(c)(1)(B) of the Act grants the employer the power to

set Board election machinery in motion, the Company here

studiously avoided filing a petition. Under these circum-

- Stances, the Company’s rejection of the Union’s request to

‘recognize and bargain with it in an appropriate unit, made

~ contemporaneously with a tender of a majority of unit em-

ployees’ signed .valid unambiguous authorizations, was a

violation of Section 8(a)(5) of the Act. And, thereby the

Board’s order to bargain, upon request, is an appropriate

remedy under Section 10(c) of the Act. International -

Association>of Machinists (Serrick Corp.] v. N. L. R. B.,-

311 U. S. 72, 82, 61 S. Ct, 83, 89 (1940); N. L. R: B.'v, P.

Lorillard, 314 U.S. 512, 62 S. Ct 397 ( 1942); N. L. R. B. v.

‘Franks Bros. Co., 321 U. 8. 702, 703-706, 64 S. Ct. 817, 818-

819 (1944); N. LD. R. B. v. Medo Photo Supply Corp., 321

U. 8. 678, 687, 64 S. Ct. 830, 835 (1944).

Assuming arguendo, that the Company had a ‘‘good

™ ce Sa

faith” doubt i in wee to the Union’s majority status, its

refusal to recognize the Union as the employees’ bargain-

ing representative would be violative of Section 8(a)(5),

inasmuch as an employer ’s ‘good faith’’ doubt is not rele-

vant to his duty to recognize the designated bargaining ©

_ representative of his employees. This conclusion follows

rom decisions of the Board and the courts that an em-

ployer acts at his peril when he mistakenly, albeit in good

faith, refuses to. recognize a union where (1) he believes

the unit description to be improper, (2) the unit description

is unclear and varies from the unit found by the Board

to be appropriate, and (3) he believes the election establish.

ing’ the union’s majority is invalid.

In practical terms, the ‘‘good faith’’ test vis-a-vis a

- union’s majority status has created serious problems of

consistent administration because of the intrinsic difficulty.

’ of establishing objective and workable standards for delving

into the state of mind of an employer. No combination of

words or phrases has avoided a cacophony of discordant

conflicting and fluctuating opinions emanating from the

Board and the courts. | | :

- But this Court in International Ladies’ Garment Workers

Union [Bernhard-Altmann] v. N. L. R. B:, 366 U. 8S. 731,

738-740, 81 S: Ct. 1603, 1607-1608 (1961), held that a good _

faith belief that a union represented’ a majority of its

workers was no defense to a violation of Section 8(a) (2)

_ where the union did not in fact represent a majority. Pre-

dicating its holding on protected employee rights and ac-

knowledging the relationship between Section 8(a)(5) and

Section 8(a)(2) in this respect, the Court said that ‘“pro-

hibited conduct cannot be excused by good faith’’ and where

‘¢an employer in good faith * * * rejects a union claim, the

validity of his decision may be tested in an unfair labor —

practice proceeding,’’ citing Section 8(a)(5). In view of

the foregoing and the right of an employer to assuage any

real doubt of a union’s majority by filing an employer

LOL LO PALE AEE OPI EO AO i Oe bl ont PEELE SLI ME GIA ION is A °

- - - Z - * “ lh ae Ne a ee

pet#tion for an election, there is no basis in logic, reason,

policy or the internal construction of the Act for according

an employer the privilege of evading his statutory duty

to recognize the union of his employees’ choice, by a showing

of good faith. | oak

ARGUMENT. |

THE NATIONAL LABOR RELATIONS ACT, AS AMENDED,

IMPOSES UPON AN EMPLOYER A DUTY TO RECOGNIZE

A UNION UNDER SECTION 8(a)(5) WHERE THE UNION

HAS BEEN DESIGNATED BY A MAJORITY OF EM.

_ PLOYEES BY MEANS OTHER THAN AN NLRB ELECTION.

[T]he refusal by [some*] employers to accept the

procedure of collective bargaining lead[s] to strikes

' and other forms of industrial strife or unrest which

have the.* * * necessary effect of burfening or obstruct-

. Ing commerce * * *, [Pjrotection by law of the right

_ of employees to organize and bargain collectively safe- ©

guards commerce from injury, impairment or inter-

ruption, and promotes the free flow of commerce * * *,

It is hereby declared to be the policy of the United

States to eliminate the causes of certain substantial

_ obstructions to the free flow of commerce * * * by en-_

couraging the practice and procedure of wollective bar-

gaining and by protecting the exercise by workers of

full freedom of association; self organization and desig-

nation of representatives of their own-choosing for -

the purpose of negotiating the terms and conditions of

. their employment * * *% [emphasis supplied].

23. The word, ‘‘some’’, was added by the 1947 amendments.

24. House bill in 1947, H.R. 3020, contained no public

' policy statement with respect to the promotion of collective bar-

gaining. H.

of the Labor

is the fact, that despi

nt Relations Act, 1947, p. 33. Significant

h attempt to eliminate the above quoted

. 3020, Report No: 245, p. 3, I Legislative History -

Roe

ousued —_ AT AAO BG, Se ALAR ND Ps Fe “

Wp PY EL PLDI LP BEE POC LAI ONG LE LOL OGL hit IA MOG. i teria ie elaeeal a " ach witdteaatan | Lath ~ *T

emany alae Se ee nena aaa

, g ad

Thus spake Congress in 1935, setting forth its findings and

policies in the National Labor Relations Act, 29 U.S. C. .

§ 151. And although this Act has experienced the white

heat of the crucible of Congressional reevaluation, recon-

sideration and amendment in/1947 and.1959, the foregoing .

stated policy of Congress has’not changed.

_ Unchanged also since 1935 is the section of the Act which,

in implementation of Congress’ policy to. foster ‘union rec-

ognition and collective bargaining, rendered it an unfair

labor practice for an employer to refuse to bargain with a

union which had been designated or selected by its em-

ployees in an appropriate unit for the purposes of collective

bargaining, 29 U. S. C. § 158(a)(5)[§ 8(a)(5)]. 2 Inter- |

preting-and applying Section 8(a) (5) of the Act, the Board

early recognized that at least two obligations were imposed

by such section upon each employer, i.e., (1) a duty to rec-

msi union which has been designated or selected by ‘a

majofity of his employees in an appropriate unit, and

(2) a anty thereafter to negotiate in good faith with such

exclusive bargaining agent of his employees. The issues

'* preseated in the instant case involve only the interpretation

and application of the employer’s duty to recognize the

designated or selected, majority saciid of the em-

. ployer’s employees.

+ This Court has Ganiietentiy held that the Board is

justified 1 in finding that an employer violates Section 8(a) .

findings and policies. of the Wagner Act, Congress adopted the

Senate bill which in identical language reaffirmed the national |

policy to encourage the practice and procedure of collective bar-

gaining. Ross, Phillip, The Government as a Source of Union

Power, 134-135, Brown University Press, 1965; cf. N. L. R. B.v. |

Drivers etc., Local No: 639 [Curtis Bros. "Inc.}, 362 U. 8. 274, 289- |

290, 80 8. Ct. 706, 714-715 (1960).

*25. In 1947 -all employer unfair labor’ practices were renum-

bered by the insertion of an ‘‘(a)’’ between ‘‘Section 8’’ and the

particular number of the subsection. For consistency herein we

_ shall use the post Taft-Hartley designations throughout.

iia eh het ae ee ee Te eee 5 ‘ nee

’ ‘ Ler anes PEAS AA TY ener BE YO is a OE OD COTER ORE Mig ELE BAN ILE PY Pee eR

= eh one yet i= lai ll ss

_ (5) where he refuses to recognize for purposes of collective ©

bargaining a union representative which has been desig-

nated by a majority of his employees who have signed

unambiguous authorizations: N. L..R. B. v. Bradford Dye-

ing Ass’n, 310 U.S. 318, 60S. Ct: 918 (1940) ;<W. L. R. B.v.-

a Franks Bros, Co., 321 U. 8. 702, 64 8. Ct. 817 (1944); N.-L.

' ‘RB. B. v. Medo Photo Supply Corp., 321 U. 8. 678, 64.8. Ct.

830 (1944). Indeed, every cotrt-of appeals, including the

Fourth Cireuit, has. accepted such majority designation

based upon signed authorization cards as a valid basis for

‘imposing upon an employer the duty to recognize such union °

_ pursuant to Section 8(a)(5).% InN. L. R. B. v. 8. 8. Logan,

\Packing Co., 386 F, 2d 562 (1967), upon which the instant,

Gissel decision ‘is based, the Fourth Cen rejected the -

right of a union to obtain. recognition from ‘an employer

based upon authorization cards where the employer does

not have attual knowledge (predicated upon evidenée other —

than such cards) that the union represents a majority of its

employees. This novel notion has been specifically; rejected

_ 26. This rule was actepted by the courts before the 1947 amend-

ments to the Act: N.L.R. B..v. Clinton Hobbs Co., 132 F. 2d 249.

~ (1 Cir. 1942) ; N: L. R. B. v. Dahlstrom Metallic Door Co., 112 F. 2d

756 (2 Cir. 1940) ; W. L. R. B. v. Schmidt Baking Co., 122 F. 2d 162

(4, Cir. 1941) ; NV. L. R. B: v.' Piqua Munising Wood Products Co.,

109°F'. 2d 552 (6 Cir? 1940) ; N. L. &. B. v. Sunshine Mining Co.,

- 110 F. 2d 780 (9 Cir. 1940); see also: Continental Oil Co: v.

N. L. R. B., 113 F. 2d 473- (10 Cir. 1940), as well as between 1947

and 1959, the year.when the Landrum-Griffin amendments’ were

impressed upon the Act: Joy Silk Mills v. N.L.R.B., 185 F. 2a

732 .(D. C: Cir. 1950), certiorafi denied, 341 U.S. 914, 71S. Ct. 734

_ (1951); NV. 2. R. B. v. K. ose Motors Inc., 193 ¥. 2d 769 (1 Cir.

1952) ; N. L. R. B. v. Marcus Brothers, 272 F. 2d 253 (2 Cir. 1959); ~

N.L.R.B. v: Clearfield Cheese Co., 213 F. 2d 70 (3 Cir. 1954); ’

N. L. R. B. v.;Harris-Woodson Co., 179 F. 2d 720 (4 Cir. 1950) ;

N. L. R. B. v. Greensboro Coca Cola Bottling Co., 180 F. 2d 840, 844 - -

(4 Cir. 1950) ; N. L. R. B. v. Lewis Motor Co., Inc., 180 F. 2d 254 (5

Cir. 1950) ; N. L. R. B. v. Armco Drainage & Metal Products Inc.,

220 F. 2d 573 (6 Cir. 1955); N, L. R.B. v. Taitel, 261 F. 2d 1 (7

Cir. 1958) ; N. L. R. B. v. Wheelmg Pipe Line Inc., 229 F. 2d 391

: (8 Cir. 1956) ; N. L. R. B. v. Trimfit of California, Inc., 211 F. 2d

. 206 (9 Cir. 1954); N. L. R. B. v, Hamilton, 220 F. 2d 492 (10

Cir. 1955). : \

Oy AF

: . °

. , wet or rete —

] RE Rh rgens: iidinis " yn staan’ A Rn ae pe Rt Nn me INE AED OL LAE NE LANE DLA OE ALE ULE i eG SE ONE Oren Ty

aes 7.” pits Sake f-- a> Pa a i 2 Snake oe

by several courts of appeals,”’ flies in the face of over

thirty years. of Board and judicial interpretation® and is

patently inconsistent with the legislative history of the 1947 ; |

- and 1959 amendments to the Act.

A. The 1947 Amendments Did Not Divest the Board of Its |

- Authority to Order an Employer to Recognize a Union

Whose Majority: Status Is Based.on Authorization ‘

Cards. = . ¥ ;

In considering the amendments to the Wagner Act ‘in

1947; the House passed a bill which sought.to.amend Section _

8(a)(5) to read as. follows: “To ‘refuse to bargain collec-

27. The First, Fifth and Sixth Circuits ‘appear to have repudi- _

ated the Logan rationale [N. L. R. B. v. Sinclair Co., 397 F. 2d 157,

161-162 (1 Cir. 1968); N. L. R. B. v. Goodyear Tire & Rubber Co.,

» 394 F. 2d 711, 712- 713 (5 Cir. 1968); N. L. R. B. v. Atco- Surgical

Supports, 394 F. 2d 659, 660 (6 Cir. 1968)]; the Second Circuit

has. spurned it [N.L. R: B. v. United Mineral & Chem. Corp., 391

. Fy 2d 829, 836 (2 Cir. 1968) ;-N.L.R.B. v. Big Ben Department

“ Store, inc., 396 ‘F.2d 78, 82 (2 Cir. 1968); Bryant Chucking

Grinder Co. v. N. . B. 389 F. 2d 565, 568 (2 Cir. 1967), —

certiorari denied, .....°. U. 8. ......: :, 88 S. Ct. 2055 (1968) ]; and the

Third, Ninth, ‘Tenth, a District. of Columbia Circuits, without

; reference to Logan or the Fourth Circuit, have failed to follow or

Or it. Steel City Transport v. N. L. R. B., 389 F. 2d 735

i 1968), NW. BB. B. ¥:.C. & C. Packing ae iter

snanah (9 Cir. 1969), 70 LRRM 2245; N.L. R. B. v. Merrill,

at 558. .: 2a 514, 519 (10. Cir: 1968) ; International Union, United

Auto Workers [Preston Products] v. N. L. R. B., 392 F. 2d 801

(D.C. Cir.: 1967), certiorari denied, 88 S. Ct. 2058 (1968) ; see

also N. L. R.B. v. Quality Markets, Inc., 387 F..2d 20, 23 (3 Cir.

1967), where the Court, quoting Board language i in Sunbeam Corp,,

- 99 NLRB 546, 550-551, out of context (see infra, pp. 46-49, n. 86),

aceépted the ‘principle, often enunciated by the Board, that’ an

’ employer’s rejection of a union’s demand for recognition sup-

_ported by authorization cards signed by a majority of unit em-

ployees i is violative of Section 8(a)(5),:unless the employer -‘‘has

a ‘good faith’ doubt-that the union actually commands’ the pur-

ported majority.’’ In finding such a violation based pon an

authorization eard majority the Court, in substance, h that

‘such cards are not inherently ‘unreliable as interpreted by the

Fourth Circuit in Gissel and Logan.

28. See supra, p. 23 and n. 26, 27; see. infra, pp. 30-33, 68-69.

tively with the representative of his employees currently

‘-recognized by the employer or certified as such under Sec-

tion 9’’, thus substituting the phrase ‘‘currently recognized

by the employer or certified as such under Section 9’ for

the language ‘‘subject to the provisions of Section 9(a).’?

H.R. 3020, p. 21, F Legislative History of the. Labor-

Management Relations Act, 1947, p. 178.”

The House Report in its version of the bill made it clear

that-certification under Section 9 would be the exclusive

method of achieving recognition and that an employer

- would not violate Section 8(a) (5) by. refusing to, recognize

a union designated by a majority of its employees, absent

a Board certification. House Report No. 245 on H. R. 3020,

p. 30, I Legis. Hist. LMRA, 1947, p. 321. Indeed, the House

bill intended to grant an employer the option of deciding .

whether or not to recognize an uncertified union which had

been designated by a majority of his employees. Ibid. ‘‘If

he wishes ‘not to recognize an ‘uneertified union, or having

recognized*it stops doing so, the union may ask the Board

to certify itunder $9." Ibid. | 4 |

If the Congress had adopted ‘the House bill in this con-

text, the Fourth Circuit’s interpretation of Section 9(c)

"vis-a-vis Section 8(a)(5) undoubtedly would have been jus-

tified. But the Congress rejected the House bill in this

respect and accepted the Senate-version instead. Since the

Senate bill retained the language of Section 8(a)(5) as

written in the Wagner Act [S. 1126, p. 13, I Legis. Hist.

- 29. Hereafter, the Legislative History of the Labor-Management

_ Relations Act 1047 will be abbreviated: ‘‘Legis. Hist. LMRA, °

1947’’ ‘and the Legislative History of the Labor-Management Re-

porting and Disclosure Act, 1959 will. be abbreviated: ‘‘Legis.

Hist. LMRDA, 1959.”’ | , ;

30. The Fourth Circuit in Logan relied upon the Taft-Hartley

amendments to Section 9(¢) to conclude that the Board could not

determine that a labor organization represented a majority of

employees in a unit without the benefit cf a Board-conducted. secret

ballot election, 386 F. 2d at 368-370; see supra, pp. 12-13. ‘

: 26

. LMRA, 1947, p. 511], Congress rendered the refusal to

is bargain ‘“subject to the provisions of Section 9(a)’’ and

refused to foist upon Section 8(a)(5) the certification re-

‘quirements: of Section 9(c). Cf. N.L.R. 'B: v. Drivers,

_etc., Local Union No. 639 (Curtis Bros. Inc.], 362 U.S. 274,

_ 289-290, 80 S. Ct. 706, 714-715 (1960) ; see also, Sutherland,

Statutory Construction, 3d ed., 1943, Vol. 2, § 5015.

In Logan, the Fourth Circuit postulates that the 1947

deletion of the phrase, ‘‘any other suitable method,’’ from

Section 9(c) divested the Board of its authority to order an

employer to bargain with a union where it had rejected the

— union’s majority claim based upon authorization cards.

_ While it is clear that such amendment rendered Board-

conducted elections the exclusive road to certification, it is

equally clear. that the design of the 1947 amendments up-

praded the.value of a Board’ certification vis-a-vis recogni-

tion based upon majority designation,, though, as noted

above, not rejecting the lattere The Wagner Act history of |

certifications is instructive in this regard.*”

For a few years after the passage of the Wagner Act, the

Board issued, without an election, certifications based upon

-. . eards, petitions} strike participation, statements signed by

a majority of employees, membership cards, membership —__

' . applications, affidavits of membership signed by a majority

of employees, stipulations of majority signed by the union

31. See United Mine "Workers. v. Arkansas Oak Flooring Co.,

351 U. S. 62, 71-73, n. 8, 76 S. Ct. 559, 564-565, n. 8 (1956).

32. Section 9(c) under the Wagner Act provided that whenever -

a question concerning representation arose, the Board could inves-

tigate such controversy and certify a union representative after ‘‘a

secret ballot of employees, or. utilize any other suitable. method to

ascertain such representatives.’

and the employer, and various other methods of proof.**

However, by 1939, the Board had abandoned the use of any

basis for certification other than (1) election, (2) stipula-

‘tion on the record by both parties to representation hear-

ings, or (3) consent cross checks of authorizations against

company records. See General Box Company, 82 NLRB

678, 683 and n..17; NLRB, Seventh, Annual Report, 1942,

p. 58. So although the Wagner Act gave the Board wide dis-

cretion in determining ‘bases for. certification, the Board

gradually developed the policy of “investing its certifica:

_ tions with more certainty and prestige by basing them on

free and secret elections conducted under the Board’s

auspices’? [emphasis. added].. General Box. Company, 82

NLRB at 683. Significantly, where possible, to ‘expedite

certification proceedings by obviating the necessity for an.

‘election, the Board continued to rely upon consent cross -

checks of union cards against company payrolls as a basis

for issuing certificates Of majority status. Carnegie-Illinots

Steel Corp., 40 NLRB 532; Aluminum Co. of America, Chi-

‘cago Works, 56 NLRB 216; see General Box Company,

82 NLEB at n. 17. Thus, the deletion of the phrase ‘‘or

utilize any other suitable method’’ from Section 9(c) with-

drew from the Board its authority to issue certifications

based.upon cross checks. That such was the intent of Con-

gress was made plain by Senator Murray’s concern over the

33. See, e.g.: Delaware.New Jersey Ferry .Co., 1 NLRB 85

(membership cards) ; Atlantic Refining Co., 1 NLRB 359 (peti-

tion) ; Rabhor Co., Inc., 1 NURB 470 (strike participation) ; Lykes

Brothers Steamship. Co., Inc., 2 NURB 102 (sworn testimony) ;

Duplex Printing Press Co., 1 NLRB: 82 (stipulation between

parties) ; see also, NURB, First Annual Report 1936, pp. 103-104; -

NLRB, Second Annual Report 1937; pp. 108-109.

34. The Board’s Rules & Regulations [Series 4, § 203.48, effec-.

tive 1946] provided that with the approval ef the NLRB Regional

Director, the parties to a representation proceeding could enter into

(1).a consent election or (2) a consent card check, either procedure

held under the Board’s direction and supervision. Thereafter, the

Regional Director would issue a certification (if the union’s ma-

jority status was confirmed) or a report of the results of the

election or cross-check (if no certification issued). |

- 4 :

on ptee. EMCI IVR BR PI INR VTL RN ERC G AA ATE AS

PRE Vi 4 eg momen

38 of

imposition of a ban upon such ‘useful ‘and appropriate

devices’”*® to accelerate resolution of Section 9 cases:**

The effect of the provision of Section 9(c)(4)*" read’.

_ ‘together with the provisions of Section 9(¢)(1) would

be to prohibit the Board from determining an issue

concerning representation by means of a consent card

check. This. procedure is utilized only where the parties

consent and consists of a check of the union’s member-

ship cards against thé names appearing on the em-

ployer’s pay.roll. Consent card checks make possible

a quick determination of whether the employees desire

a bargaining representative; they obviate the necessity

for a formal proceeding in cases in which there are no

issues of fact, thus allowing the Board more time to

devote to litigated matters, and they have resulted in

'« substanfial saving in both personnel and money.

Manifestly, the deletion of the Section 9(c) language ‘or .

utilize any other suitable method’’, requires a Board;

conducted eleetion as a condition precedent to the issua oe

of a certification, but, as noted above; Congress rejeqged

certification as a prerequisite to a refusal to bargain viola-

tion. See Ray Brooks v..N. L. R. B., 348 U. S. 96, 101, 75

S. Ct. 176, 180 (1954). Having tightened the restrictions on

procedures for achieving certification, in enacting the -Taft-

‘Hartley amendments, Congress accorded a more important

role to certification as compared to that which existed under

the Wagner Act.**. Thus, after the Taft-Hartley amend-

35. 93 Cong. Rec. 6656 (daily ed. June 6, 1947) (remarks of

Senator Murray), II Legis. Hist. LMRA 1947, p. 1567... _

36. 93 Cong. Rec. 6664 (daily ed. June 6, 1947) (analysis by

Senator Murray of Amendments of National Labor Relations Act),

II Legis. Hist. LMRA 1947, p. 1582. - eo...

_‘ 87. In view of the deletion of the phrase ‘‘or utilize any other’ |

suitable method’’, from § 9(c), Senator Murray was criticizmg Con-

gress’ inclusion of § 9(c)(4) which as an exception to § 9(c) per-

mitted waiver of hearing in consent election cases without “provi-

sion for the waiver of election in consent cross-check cases. See

supra, n. 34. :

38. There were few, if any, advantages of certification over

-recognition in the Wagner Act. - i$ ‘

ments, advantages were given to certified.unions over unions

recognized by the, employer without the benefit of a Board

' certification: - ren ct

1) A certified. union is, protected from concerted action

engaged in seeking its overthrow by another raiding union;*

2) .Only a certified union can ‘lawfully induce the ém-

ployees’ of some ‘other employer’ to engage in a strike

** * for the purpose of compelling the primary employer

to Fecognize it’’;*°

3) A Board certification grants a right to a union to

engage in concerted action in support of a jurisdictional

dispute; Be ;

-4) The legality of certain concerted activities sponsored

by one union to assist another union in gaining recognition

has been held by the Board to turn upon whether the latter .

union had been certified.? — | 7

In addition, the Board’s long-standing ‘‘one-year rule’?

granting a certified union a right to recognition for'a rea-

sonable period of ime, Moma one year from the date. of

certification® ‘‘endows’a certified union’s status with: a

_ Measure of security and permanence not enjoyed by a union »

- 39. §8(b)(4)(C).

40. §8(b)(4)(B); General Box Company, 82 NLRB 678, 680.

41. § 8(b) (4) (D), ibid., at 681. If should be noted that the

same right is accorded a union where the Board has issued a refusal:

to bargain order, but not to a union which is voluntarily~ recog-

nized. Without question, in jurisdictional cases a certification

_ grants earlier protection than a Board unfair labor practice order.

_A2. General Box Company, op. cit.

43. Ray Brooks, 98 NLRB 976, enforced, 204 F.,2d.899 (9 Cir.

1953), affirmed, 348 U. S. 96, 75 S. Ct. 176 (1954). -

‘ '

. - . a Pht an) APMED IEE TO AIAN: LLIN TELL OT MG 2 RP ABE HE ORLA LLL OPP I LE TE IE IGE

wien majority standing and right to sevegniion is sali

lished otherwise * * *’™*

In view of the foregoing, the conclusion is inescapable

that Congress in its 1947 amendments rendered Board certi-

fications: more’ ‘meaningful and severely limited the avenues

open to certification, but also determined to leave unchanged

_ the duties and obligations of employers to recognize the

representative designated by their ‘employees by means

c. other than an election. Ray Brooks v. N. L. R. B., op. cit.;

United: Mine Workers v. Arkansas Oak Flooring Co., 351

U.S. 62, 76 S.Ct. 559 (1956); cf. N. L..R. B. v. Drivers, etc.,

Local Union No. 639 (Curtis Bros. i ~ cit.

B. 1956 This Court Acknojjledged an Siiinienn' 's Obli-

tion to Recognize a Labor Organization Designated

by a Majority of a Upon: Gigned Authoriza.

- tion Cards.

~“

In United Mine Workers v. Arkansas Oak Flooring Co.," |

" 351 U. S, 62; 76 S. Ct. 559 (1956), this Court said that »

‘*{a] Board election is not the only method by which an .

employer may satisfy itself as to the union’s majority

44. General Boz, op. cit., at 681. A union recognized by proof

- of majority is mbject | to a rival union petition and a petition for

decertification prior to the conclusion of bargaining which will pre-

verit a lawful employer from executing a contraet with the recog-

nized anion.- Not so with a certified union. General Boz, op. saad

at- 681-682. °

45. .The basic issue in Arkenite Oak. Flooring, op. cit., centered

upon the rights of a labor organization which had failed to comply

with Section 9(f), (g) and.(h) of the Act and involved the problem |

-. of federal preemption. There it was held that a state court may

not enjoin picketing by a union designated by a majority of eligible

quired under Section 9(f), and:(h) of the Act. .It should be

’ bent that this decision was specifically cited with approval on the

floor of the Senate during the debates which led*to the Landrum-

Griffin amendments. 105 Cong. Rec. 16,400 (daily ed. ‘comme’

3, 1959), II ae. * Hist. as 1959, p. 1429, |

)

OR eee ee PLR IE SOE LCT TE IEP EE De LE ORIOLE A OY OTe a fin Ba AP ie

‘employees, the object of which was to obtain the employer’s recog-- -

nition, where the union had not filed affidavits and data then re-

SO aa el

a MOO me BAIA TAY Oe ete Ow a we

‘

beget x U. S. at n. 8, 76 S. Ct. at n. 8], that\‘[i]n

' the absefice of any bona fide dispute as to the existened of

the required majority of eligible employees, the employer’s _

‘.denial of recognition of the union would have violated

§ 8(a)(5) of the Act’? [351 U. S. at 69, 76 8. Ct. at 564]

and that [351 U. S. at 71-72, 76 S.Ct. at 564-565]: *

Section 8(a) (5) declares it to be an unfair labor prac-

tice for an employer ‘‘to refuse to bargain collectively

with the representatives of his employees, subject to

the provisions of section 9(a).”? * * * Section 9(a),

[n. 7 omitted] which deals expressly with employee

representation, says nothing as to how the employees’

. Yepresentative shall be. chosen. See Lebanon Steel

Foundry v. National Labor Relations Board, 76 U. S.

App. D. C. 100, 103, 130 F. 2d 404, 407.4 It does not

. make it a condition that the representative * * * shall

be certified by the Board, or even be eligible for such

certification.

Significantly, the cases cited by this Court as examples of

methods other than a Board election ‘‘by which an employer

may satisfy himself as to the union’s majority status’’ are

cases in which the employers were found guilty of violating

‘Section 8(a)(5) for refusing to recognize as the bargain-

ing agents of their employees, union which had been desig-

nated by authorization card majorities or signatures of a

46. The interesting discussion in Lebanon Steel, op: cit. should

‘not be overlooked: ‘‘The Wagner Act requires no specific form of

authority to bargain collectively. * * * An application for union

membership implies authority to bargain [citations omitted]. Like-

wise with. registration cards [citation omitted], notwithstanding

the signers have not paid dues or initiation fees or been admitted

to membership. * * * Not form, but intent, is the essential thing.

The intent required,is merefy that the union or other organization

or person act as ith employees’ representative in collective bar-

gaining.’’ Partic attention should be paid, to the Court’s

analysis of the sufficiency of voluntarily executed dues check-off

cards as to grants of authority to the union to bargain for the’

employees. Ibid. at 408; see infra, pp. 37-44.

. ‘

i an a i gS

: )

miidiity of employees on —— {351 U. S. at n. 8, |

768. Ct.atn.8).

Thus, in the cited Bradford. ‘Dyeing case*® this Court

characterized the union which had been designated by a

majority of employees’ signed cards® as ‘‘the bargaining

representative selected by the untrammelled will of the

‘majority’’ [310 U. S. at 339, 60 S. @t. at 929] and sustained

the Board’s order to bargain with such bargaining repre- —

sentative. National Labor Relations Board v. Knicker-

bocker Plastic Co., 218 F. 2d 917, 921-922 (9 Car. 1955), cited

by this Court in ‘Arkansas Oak Flooring/op. cit., also. in-

volved a refusal to recognize violation predicated upon

cards signed by a majority of employees designating the

union as bargaining representative. So, too, did other ©

cited cases: N. L. R. B. v. Parma Water Lifter Co., 211 F.

2d 258, 260-261 (9 Cir. 1954) ;° N. L. R. B. v. Kobritz, 193 *

_ F. 2d 8, 12, 14 (1 Cir.. 1951).

me 47. No distinction in ‘principle exists between signatures of a

majority of employees on authorization cards and such signatures

on a@ single petition. 4f anything, the former constitutes a freer

expression of employees’ choice since it would appear to be less

affected by earlier signings.

Ye N.L.R.B. v. es Dyes Ass” n, 310 U.S. $18, 6c

Ct. 818 (1940).

9: The Board found that on the. critical date the nen

1ion had 465 or 467 signed cards out of a total unit of less than

80 employees. See Bradford Dyemg Ass’n, 4 NLRB 605, 615;

see also, 310 U.S. ‘at 339, 60 S. Ct. at 929:

50: In the Parma Water case, op. cit., there was ~~ an informal

vote at an employee’s home.

51. Interestingly, N.L.R. B. v. Indianapolis Simisepere, Inc.,

210 F. 2d 501, 503-504 (7 Cir. 1954) was cited—a case involving a

claimed violation of Section 8(a)(2) of the Act where the employer

recognized and signed a contract with a new association designated

by @ majority of employees’ signatures on a petition in the face of

a ‘representation claim of an incumbent union which had reached

an impasse in collective’ bargaining. Cf. Indianapolis Newspapers,

_Ine., 103 NURB 1750 (7 Cir. 1953). The Seventh Circuit said [at.

504]: ‘“What respondent has done is merely to ‘accept petitions

_ 83 i

Thus, although United Mine Workers v. Arkansas Oak

Flooring Co., op. cit., did not specifically involve a refusal

to recognize violation under Section 8(a) (5), it is clear that .

this. Court determined that the 1947 amendments did not

render necessary any judicial alteration’ in the existing

decisional law. Inexorably, it brushed aside the arguments

predicated on the 9(f), (g) and (h) of the Taft-Hartley

amendments unequivocally to restate the law that Section

8(a)(5) imposes an obligation on an employer to recog-

nize and bargain with the representative of the employees’

choosing, whether or not such representative is certified

by the Board or designated by a majority of employees on

signed cards or petitions. See also, NV. L.-R. B. v. Bradford

Dyeing Ass’n, 310 U. S. 318, 60 S. Ct. 918 (1940); Inter-

_ national ‘Association of Machinists [Serrick Corp.) v.

N. L. R, B., 311 U. 8. 72, 81-82, 61 S. Ct. 83, 89-90 (1940) ;

N. L. R. B. v. Franks Bros. Co., 321 U. 8. 702, 64S. Ct. 817 .

(1944); NV. L. R. B. v. Medo Photo Supply. Corp.; 321 U. 8.

678, 64 S. Ct. 830 (1944). et

C. Congress Made No Change in Section 8(a) (5) or Sec-

tion 9 in 1959, But by Adding Section 8(b) (7) to‘the

, Act Increased ti. Value of a Certification While. Main-

taining an Employer’s Obligation to Recognize a Union

Designated by a Majority of Its Employees.

_ Despite Congressional awareness of this Cdurt ’s decision.

in United Mine Workers v: Arkansas Oak Flooring Co., op.

cit.” and the uniformity of decisions predicating Board

campaign. The record discloses Mo reason why the authenticity of

tenderéd by one of the competitors as proof of the success of its _

this claim of majority status should have been subject to any doubt. .

Respondent’s recognition of the Association was a legitimate, if not

. the mandatory, course of action. * * *’’, -

52: 105 Cong. Rec. Sen. (daily ed, 16,400 September 3, 1959),

FH Legis. Hist. LMRDA 1959, p. 1429 (2). :

; : . ee Re -

POO ep igre po ne ane ae eG ~~ stain lentils asi spread mtigahpetlliled eee ed “se

oie - — ~ = - - - ee ——— . -

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» bargaining orders on authorization card majorities be-

_ tween 1947 and 1959," Congress did not attempt in 1959°

to amend Section 8(a)(5) or Section 9 to proscribe such

° action. See N. L. R. B. v. Gullet Gin Co., 340 U. S. 361,

365-366, 71 S. Ct. 337, 340-341 ( 1951). However, the enact-

ment of Section 8(b) (7) 1959 and the legislativ#history

of that section demonstrates Congress’ cognizance of the

. obligation of an employer to recognize a collective bar-

- gaining agent which has been designated by a majority of |

employees by such means as signed ‘authorization cards™

“53. See supra n. 26.. Courts of Appeals frequently have +2

this Court’s decision in Arkansas Oak Flooring, op. cit.,

port of their decisions to enforce, NLRB bargaining aa

based on union authorization cards: District 50, U. M. W. [Bow-

man Transportation, Inc.| v. N. L. R. B., 237 F. Dd 585 (D. C. Cir.

1956) ; N. L. R. B. v. Sinclair Co., 397 F. 2d 157 (1 Cir. 1968) ; NLL.

R. B. v. Philamon Laboratories, Inc., 298 F. 2d 176, 179 (2 Cir.

' 1962); N. L. R. B. v. Quality Markets "Inc., 387 F. 2d 20, 23 (8 Cir.

1967) ; Bilton Insulation Inc. v. N. L. R. B., 297 F. od 141, 144 .

(4 Cir. 1961) ; Skyline Homes Inc.’v. N. L. R. B., 323 F. 2d 642,

647 (5 Cir. 1963) ; N. L. R. B. v. Universal Gear Service Corp.,

394 F. 2d 396, 398 16 Cir. 1968) ; N. L. R. B. v. Winn-Dizie Stores,

; Inc., 341 F. 24 750, 755 (6 Cir. 1965) ; Borden Cabinet Corp.

. v. N. L. R. B., 375 F. 2d 891, 893. (7 Cir. 1967) ; Jas. H. Matthews

& Co. v.N.L. R.B., 354 F. 2d 432, 436 (8 Cir. 1965); N.L.-R. B.: -

* vy. Ralph Printing & Lithographing Co., 379 F. 2d 687, 693 (8 Cir.

1967) ; See also: Ruby v. American Airlin Inc., 323 F. 24 248,

254 (2 Cir. 1963). ot

54. See 105 Cong. Ree. Sen. 5765, 5963, 5964,°5965, 5977 (daily -

eds. April 21, 24, 1959), II Legis. Hist. LMRDA 1959, pp. 1080(3),

1186(2)- (3), 1187(1), 1188(1), 1188(2),; 1200(3) ; 105 Cong. Rec.

House 13092, 13877, 14183 (daily ed. July 27, August 5, 11, 1959),

II is. Hist. LMRDA 1959, pp. 1523 (2), 1541(2), 1556(2) ; ;

SenAtor Cooper stated that when a majority of employees atihered

to a union by means other than an election, ‘‘[u]nder the Taft

Hartley Act they [sic., the union] have a right to be recognized.’’

105 Cong. Rec. Sen. 5997 (daily ed. April 24, 1959), II Legis. Hist.

; Ze 1959, p. 1200(3). Senator Dirksen said that “< {uJnder

the present law”? an employer who has recognized a majority union

representative, without certification may-be picketed by another

union. ‘‘This is an unfair situation because er: the law the

employer must reeognize and bargain with th union having

majority status, whether or not it is certified.’’ |105 Cong. Rec.

Sen. 1568 (daily ed. February 4, 1959), II Legis. Hist. LaamEA,

1959, P. 994, 9

Dat ee eee, te er oe Sa

and shows the legislative intent to increase the value of a

certification” (Supp. A. 4-6). Hence, while Section 8

(b)(7) was designed generally to proscribe ‘‘blackmail’’,

organizational and recognition picketing by unions, in clear ©

language a.‘‘labor organization [that] is currently certified .

as the representative of such employees” is exempted from

its operation. Section 8(b)(7) (Supp. A. 4-6), Dayton

Typographical Union No. 57 v. N. L. R. B., 326. F. 2d 634,

636 (D. C. Cir. 1963). The Court of Appeals for, the Dis-

trict of Columbia has ‘said that the legislative history of

. Section 8(b)(7) ‘‘reflects a conscious and intentional ac-

‘ceptance by the Senate Conferees—and by ongress—of

the House-sponsored requirement for current certification

of a union, and conscious and intentional abandonment by

the Senate. Conferees—and by Congress—of the Senate-

‘ sponsored provision which would ‘have exempted unions

having majority status, even though not certified, from the ‘

ban of picketing imposed by Section 8(b)(7).”’ Dayton

| Typographical Union No. 57 v. N. L. R. B. op cit. at 638."

Thus, in 1959 an additional benefit of certificatior’ was . -

of certification inherent in Section 8(b)(4)*" (see supyd, #

added to the one year certification rule and the ie a

pp. 28-30), while full recognition was accorded to the ri ht

- of employees: to choose their bargaining representative jby

means other ¢han an election. In-the face of this-continu-

, ing history, it is no wonder that every court of appeals .

_has followed the weH-established rule of accepting desigg ©

55. 105-Cong. Ree. Sen. 5961 (daily ed. April 24, me 1d _

Legis. Hist. LMRDA p. "1184(2); 105 Cong. Rec. House 163 ,

Legis. Hist. LMRDA p. 1263 (1). ' aes

56. For an analysis of relevant legislative history, see Dayton

Typographical Union No. 52 Vv. N. L. R. B., op. cit.

57. It should be noted that the advantages of certification under

Section 8(b) (4) were expanded in 1959 when the loopholes therein .

were closed. See: N. L. R. B. v. Servette, Inc., 377 U.S. 46, 51,

_ 84 8. Ct. 1098, 1102 (1964); Maritime Union [Delta Steamship °

Lines Inc.] v. N. L. R. B., 346 F. 2d 411 at n. 8 (D. C: Cir. 1965).

Wo,

Sta pe om

~ #-

See ane 36

o: -

nation by a majority of anit: employggs bated upon sdeiae

authorization cards as a valid basis-for imposing upon an

. employer the duty to Tecognize such uni — to

Section. 8(a) (5).%

‘Surprising, however, i is the iielien: a the Fourth Cir-

cuit of established ‘precedent i in the instant cases, particu-

larly in view of its acute awareness of unsuccessful legis-

lative attempts to change an employer’s obligation to

recognize a. majority union under Section 8(a)(5).™ “The :

most recent bill. submitted ‘to- Congress ‘(91st Cong. Ist

Session, §.. 426) would amend Section 8 (a). to provide

**[t)} hat: Sich bargaining representatives shall have been

. certified-by the Board as the result of an election conducted

in accordance with subsection (c)’’ and to divest from the

‘58. N.L. R. B. v. Greenfield Components Corp., 317 F. 2d 85 (1

. Gir.-1963) ; NV. L. R. B. ¥. Philamow Laboratories, Inc., 298 F. 2d 176

-> (2 Cir. 1962) ; Steel City Transport.v. N,.L. R. B., 389 F. 2d 735

(3 Cir. 1968) ; Florence Printing Co. v. N. L. R. B, 3833 F. 2d 289

(4 Gir. 1964); N. L. Fs B. v. Overnite Transportation, 308: F.. 2d

279 (4 Cir. 1962) ; N. L. R. B. vy. American Manufacturing Co. -

| of Texas, 351 'F. 2d 74 (5 Cir. 1965) ; N. L. R.-B. v. Nelson Mfg:

Co., 326 F. 2d 397 (6 Cir. 1964); N.L.R.B. v..Larry Faul Olds-

‘mobile Co., 316 F. 2d 595 (7 Cir. 1963) ; Jas. H. Matthews & Co.

v. N.L.R. B., 354 F. 2d 482 (8 Cir. 1965) ; Retail Clerks Local |

1179 [John P. “Serpa] v. N. L..R. B., 376 F. 2d 186 (9. Cir.. 1967) ;

Snow & Sons-v. N. L. R. B., 308 F. 2a 687 (9 Cir. 1962) ;.N. L. R.

B. v. George Groh & Sons, 329 F. 2d 265. (10 Cir. 1964) ; Inter-

national Union of United Automobile Workers [Avro Corp.} v.

N. L. R. B., 363 F. 2d 702 (D. C. Cir. 1966); International. Union

of United Automobile Workers [Preston Products Co.] v. N..L..

. BR. B., 392 F. 2d 801 (D. C. Cir. Br eertiorari denied, 88 S. Ct.

2058 "(19% _. paeaaee - 6

59. Th Court in ¥. L. B. B. v: 8. 8. Logon Packing Co: 386

F. 2d: at n. 9 (4 Cir. 1967) quoted from the Hearings before the

Subcommittee on Labor, 87th Cong. Ist Sess. on S. 256 to Repeal

- Section 14¢b)-of the National: Labor Relations Act (1965). A prime

eonsideration~jn those hearitigs was the possibility of ss

- ‘the so-called card check system of compelling union recognition’’

‘Senator Javits, Senate Labor Subcommittee Hearings, op.. cit., p. x

5, inter alia, see tbid: pp. 16, 19-25, 180-189. ‘Thus, the Fourth

Circuit must hav: been aware "that as recently as.June, 1965, Con-

gress acknowledged and declined to amend the law requiring an

employer to recognize and bargain with a union — its ee

status on —* authorization cards.

> ties m a .

A PAM I Bee Bhi le AR A REP NO a ea

a5 RO Kd

DRI Mh he E POLLS SIA APR 8S Cori Ea la Ae om

wl .

DESIGNATION BY A MAJORITY OF EMPLOYEES ON -

- ‘eases, the Fourth Circuit has: asserted: its belief that —

authorization cards signed by employees are inherently

has been referred to the Committee on Labor and Public Welfare. |

- A copy of this bill is reprinted in, the Supplemental Appendix, .-

we “

Board the authority to issue a bargaining order where the

union has not been certified pursuant to a Section 9 (c)

election.” This bill is identical to S. 22, submitted by Sena

tor Fannin in January. 1967, in respect to which the 90th

Congress took no action. The fact that the right to obtain

‘majority representation by. means other than a. Bodrd-

~ conducted election'and the ‘‘concomitant * * * duty to bar-

‘gain with the Union’™' so designated has weathered parti-

‘san efforts at emasculation and has survived unrevised

through a holocaust of. amendments over a thirty-three year

period proves the viability of the basic statutory scheme.

Cf. Sinclair Refining Co, v, Atkinson; 70 U. S. 195, 203- 204,

n. 16, 82 S. Ct. 1328, 1333; n, 16 —

: te

UNAMBIGUOUS AUTHORIZATION CARDS OBTAINED |

WITHOUT MISREPRESENTATION OR COERCION IS AS

RELIABLE AN INDICATOR OF EMPLOYEE WISHES AS

AN ELECTION. |

_ A. Unambiguous Aethieetintiie Cords Axe Not

Inherently Unreliable. |

In the instant. cases,. Logan Packing ‘and stan recent

60. . This bill submitted by. Senator Fannin in January 1969

” oo for the convenience of the Court.

_Conren, Inc. v. N. L. R. B., 368 F. 2d 173 (7 Cir. 1966).

. N. L: R. B. v. Logan Packing Co., 386-F. 24 562 (1967) ;

. R. B. v. Sehon Stevenson & Co., Inc., 386 F. 2d 551 (1967) ;

. R. B. v. Gissel Packing Co., 398 F. 24 336 (1968) ; N. L. R. B.

’s, 398 F. 2d 337 (1968) ; General Steel Products v. N. L.

8 F. 2d 339 (1968) ; Beyson Veneer Co. v..N. L. R. B.,

2d 998 (4 Cir. 1968). | picety eee

» . 38 ; : ®

‘unreliable and should not be ‘“‘accepted ‘as proof of the

. wunion’s claim of ‘majority status’’.* This assertion is con-

_: trary to, the ‘everwhelming weight of common law. which’

historically has extended legal recognition and contractual

sanctity to an individual’s signature.

Modern society has vastly. expanded the utilization of.

signatures as legally valid and reliable indicia of the —

signer’s intent. The following are but a few of the myriads —

'.of uses recognized as legally binding, without question or.

‘further proof’ of intent, to which signatures are put: leases,

bank. checks and drafts, petitions, charge account sales, ~

options, releases, applications, pawers of ‘attorney, loans,

- notes, wills, ‘and contracts of every use and variety.“ Re-

liance on signatures as presumptively valid has become

increasingly commonplace. Petitions are utilized to pro-

mote the passage of legislation. Pleadings ip court invoke —

. judicial processes on the strength of signatures. Garnish- .

ment suits based on signatures of confession of judgment

notes empower employers to deduct monies from the wages |

of employees without their approval.” On occasion, the

most recent in the 1968 presidential campaign,’ signatures

of a certain percentage of the voters on petitions obviates"

the necessity of a candidate’s participation in election

primaries in. order to be nominated for. office.” Likewise,

63. N.L. R. B..v. Sehon Stevenson & Co., 386 F. 2d at 553.

64. See Wigmoré on Evidence, Vol. 7, § 2134.

65. .On October 14,.1966, Time Magazine reported (at p. 39):

that in the November 1966 elections 346 statewide propositions —

would appear on ballots in 46 states—many of them placed _

on the strength of signatures on petitions. ;

o.- See e.g. Sniith-Hurd Illinois Annotated Statutes, Chapter

57.

67. Reference is to the candidacy of George Wallace for the

Office of President ofthe United States. Wallace achieved a place

on the November 1968 ballot in many states on the sole «strength

_ of signatures on petitions. See MacDonald Austin F., American

_ State Government and Administration, Thomas Y. Crowell Co.,

_ New York, 1955, pp. 166-198.

—

AO Nin eae ICY (Hee ee

seed aaron

Sates ea eased Anata bisllid:. 00 abi: aha

> a

te ? P

é‘ Ne er rarer eet ema tie

{

;

}

in commercial sales law, the doieeaiiaiaaie and resulting

legal. obligations of unambiguous: contracts depend upon .

the intention to authenticate the document—an intention

_ presumed from the affixation of. signatures.™

The ‘reliability and presumptive validity. of signatures

recognized in commercial law applies with equal force to —

- labor law. Union authorization cards are unilateral con-

tracts wherein the employee offers to delegate authority to

the union if the union agrees to represent such employee in

bargaining with the employer. When the union takes the

initial step to bargaining of gaining recognition on the

basis of such*‘authorization cards, they are binding con-

tracts. ‘See Corbin on Contracts, g°21. Similarly, agency >

law considers written: authorizations creating the agency .

relationship as documents,’ of ‘the highest solemnity,

' binding as long as they express the clear. intent to delegate

; the power to act on-behalf of the principal: See Mechem

7 Outlines Agency, Sections 25, 40-42. Contingency fee

and/c or retainer agreements authorizing the lawyer to rep-_

resent the client are binding contracts on the strength of

_ the client’s signature (5 Am. Jur., Attorneys at Law, §$ 31,

32). Similar contracts are recognized and enforced by

courts without questionitig the intent behind such agree-

‘ments; indeed the parole evidence rule prevents the courts

from looking beyond the terms of a written agreement,

‘clear on its face, to determine the intent of the parties.

There is no basis in’ principle nor logical‘ reason for re-

_ fusing to ‘accord such lawful contracts in the labor arena

the sanctity which their counterparts i in‘every other phase

of the law enjoy.”

68. It should be noted that the Uniform - Conninnetal Code

Article on Sales Law. does not even require the formality of a

signature—initials, rubber stamps or even a thumbprint will |

suffice. Section 1-201 and Comment 39 thereto.~- |

69. See cases cited infra, pp. 40-42, ns. 77,79.

;

As noted above, since 1935. the Board and. the Bonen’ oak

have accepted the: signatures of employees on’ ‘authoriza-

tion cards, mer@bership applications, petitions, etc. as proof

of. majority status impressing a duty on employers to

' recognize the union so designated.” Indeed, in recognition

‘ of the purposes of the Act, to foster the freedom to or-

ganize and the right.to collective bargaining of. employees

a majority of whom choose a\union to represent them, the

law has properly relaxed the requirements of the formality

of an employee’s signed authorization”! “Thus, in Eebanon

Steel Foundry v. N. L..R. B. , 130 F. 2d 404y 407-408 (D. C.

Cir. 1942), the Court of Appeals sensibly analyzed the

validity’ of signed cards as indicia of employee’s desires :

| The Wagner Act requires no specific form of authority

*. to bargain collectively. It is not a statute of frauds

or an act prescribing the formalities of conveyancing.

_ No seal or writing is required by its terms. Nor is any

: special formula or form of words. Authority may be

given by action as well as words. An application for

_ union membership implies authority to bargain [cita- .

' tions omitted] * * *. Not form, but intent, is the essen-

tial thing. The intent —required—is—merely—that—the—

union or other organization or person act as the em-

_ ployees’ representative in collective bargaining * * *. -

70. It should be noted that i in the instant cases, Gissel, Heck’é 3

_and General Steel, the cards are unambiguous, uneqnivocal ‘authori-

zations to represent the undersigned employees in respect to wages,

hours and other conditions of employment.

71. The Board has. pointed to the acceptance of cathivbaition |

ecards “‘(a) by agreement by the parties volun

intarily through-

hannels,-(b) by the American Arbitration Association,

and (c) ny a majority of the State labor relation agencies”’ as

support for its refusal to hold such authorizations inherently un-

reliable. Levi Strauss & Co., i NLRB No. 57, n. 10, 68 LRRM

1338, n. 10 (1968).

* 72. Cited by this. Court in “United. Mine-Workers'v. Arkansas -

: Oak Flooring Co., 35t U. S. 62, 76 8. Ct. 557 (1956).

- 73. As discussed supra, the language of Section 8(5) of the

Wagner Act remains pnaltered by the 1947 and 1959 amendments..

—

Ladies deel

navthe ennancansheniion Series wendy Wate earnions »

. aah

id senewececanes

It is only necessary that - [intént] be manifested in

some manner capable of pr fe-°, The. agreements

' or authorizations: are. laborers’ not scriveners’ ex- —

pressions of intention. They are expected to be made.

in the workingman’s manner not in that of manage-

: . ment as it conducts corporate affairs, with a lawyer at

* its side * * *,

a presumption of membership or intention to become

a member * * * or authoriz[ation] to the union to

bargain collectively.for the signer. * * * If evidence

can overcome this, it must be nee indeed,

The cards involved in Lebanon Steel, op. cit., were check-

off cards, and, as indicated in the above quotation, the issue

in that case, whether such cards should be‘ construed: as

Significantly, the validity of employeed’ signatures on -

such authorizations was considered. by Congress in enacting

the 1947 Taft-Hartley amendments.

Congress was entonliy. concerned iu: the effects of

__ payoffs to-union representatives on the scheme of obtaining

industrial peace through collective bargaining, 8. Rep. No.

105 on S. 1126, I Legis. Hist. LMRA 1947, p. 458;.93 Cong.

_ Rec, 4805-4807, 4875-4884 (daily eds.\May 7 and 8, 1947), -

‘II Legis. Hist. LMRA 1947, pp. 1304-1323; 93 Cong. Ree.

5147 (daily ed.’ May 12, 1947), II Legis. Hist. LMRA 1947,

p. 1498. In Section 302 it declared it unlawful for an em-

__ ployer. to pay-to-and for a union representative to receive

from an employer ‘any money or other thing of value’’

. and imposed upon violators criminal sanctions of ‘‘a fine

of not more than $10,000.00 or * * * imprieonment of not.

more than one year, or both.’’ However, it exempted from

‘ such . prohibitions. the payments by employers to union

representatives of union dues only where an employee had

executed a ‘‘written assignment’’—a check-off authoriza-

tion. Section 302(c) (4) (Supp. A. 10-12). Manifestly, Con-

'- gress considered. the signatures of employees of sufficient

reliability to render legal what otherwise would be a crimi-.

restrictions on paymen s to employee representatives, but -

left untouched the proviso permitting check-offs based.on .

an employee’s written authorization. Section 302 (Supp.”

_ A. 10-12); S. Rép: No. 187 on 8. 155, p. 13, I Legis. Hist.

LMRDA 1959, p. 409.. And so, as of 1966, signatures of an

estimated 16 million American workers”™ granted the right

to employers, on the mere strength of such signatures, with.

out ary independent proof of employee intent or or governi--

. mental certification, to deduct moneys from their wages

and to make such | payments: union’ ‘representatives.

_ The vali of” an employee’s

‘authorization was énhanced inf t

* tion 401(e) (Supp. A. 12-13). I Section 401(e) Congress

provided that an.employee member of a union could not. be

deprived of his right.to vote or his eligibility for candidacy

fo union office by reason of ‘‘alleged delay ot default in the

ignature upon a ‘check-off .

74. Senator Taft, onglalilons the new provision said:

_it’is proper to make such\.an agreement—provided that the

employer has received from “each ‘employee,—a written assign-

So far as the siesthiaeniy shows, that is the usual form ‘of

‘check-off. Under. it the, employee -himself signs a slip: or

assignment authorizing the check-off * * *. That, I think is

substantially in accord with nine-tenths of all-check-off agree-

ments and simply prohibits a check-off made without any

98 Cong. Ree. 4876 (daily ed. May 8, 1947), II Legis. Hist. LMRA,

1947, p. 1311.

75. The Bureau of Labor ‘Statistics in Chicago has informed

the undersigned that’ as of 1966 there were 19,124,865 workers in

the United States covered by union contracts. The Bureau of

_,Nationa) Affairs. reports that check-off of union dues is provided

- in 83 .per cent of labor contracts (BNA, Collective Bargaining

. Negotiations and Contracts, Section 87.3). The cited figure results

_ from extrapolating these two statistics; no exact information « on

the number of employees on dues dheck-off i 18 available.

1959 amendments. Sec- .. *

die oe a 2 er Sar. ele omer ethene -

4 ; ae hat ~ 7.

ce i ee Se Oe ee Le pe " ia i ‘4 ~ na ’ mM

' payment of dues”’, if he had Sauaeent a ‘voluntary check-off

_ authorization. _

Moreover, the signing of a check-off authorization | has

granted an employee protection ge sage under Sec-

tion 8(a)(3) and Section 8(b) (2) the Act. Where an

employer and a union have-signed a union shop agreement ~.

consistent with h the proviso to Section 8(a) (3), an employee

is ins insulated from discharge and from an attempt by the.

_-thion ‘to cause his discharge if he has executed a check- -

‘off authorization, even where the employer has failed to

- remit his dues to the union. Union Starch & Refining Co., 87

. NLRB 779; Electric. Auto-Lite Co., 92 NLRB 1073, af-

firmed, 196 F. 2d 500 (6 Cir. 1952), certiorari denied, 344

U. §. 823 (1952); Ferro Stamping & Mfg. Co., 93 NLRB

1459. Thus the design of the Act affords additional signi-

ficance to the rights arising from the affixation of an em-

ployee’s signature. eA

_ Lending further cred ce to: ~ logiaialive déaiera which

4 ansegte signed authorizations not only as a reliable but an

essential element of the labor law are Section 9(c)(1) (AY

‘and Section 9({e). Settion 9(c)(1)(A) permits a represen-

‘ tation petition and a decertification petition to be processed

‘when each is supported by a ‘‘substantial number of em- -

ployees. ’? Congress ‘in adopting such language’ accepted —

the Board’s prior practice of insisting upon signatures of

30. per cent of the unit: employees on anthorizations or

' ‘petitions. Section 9(e) specifically provides for 30 per cent

of the signatures ef employees i in the bargaining unit to

empower the Board to hold a union shop deauthorization

election. Since1947 when Sections 9(c)(1)(A) and -9(e)

‘were passed, the Board has relied on authorizations signed.

by, employees to hold such, elections. Although some legis-. ~

lative criticism of such reliance. was voiced in 1959, con-

| gressional debate on Section. 8(b) (7) demonstrates un-

: mistakably that Congress rejected such ae accepted

. for a

me: Lt 5

the reliability of authorization cards—and, indeed, relied

upon their use to achieve ‘lawful recognition’’ as an in-

tegral part of the design of the Act. 105 Cong. Rec. Sen.

5951, 15121, 16398, 16419 (daily eds. April 24, August 20,

* 21, September 3, 1959), II Legis. Atist. LMRDA, - 1959, |

pp. 1174 (3), 1361 (1), 1427 (3), 1437 (3); 105 Cong.

House 13087 (daily ed. July 27, ihn I wroxsith Hyt

LMREDA, 1959, p. 1518. 7

In another context, this Court has accepted the reliability

of authorization ’ cards and the right of an employer to

recognize a union predicated upon a majority of employees’

signatures thereon. In ‘International Ladies’ Garment

Workers Union [Bernhard-Altmann] v .N. L. R. B., 366

. US. 731, 81 S. Ct. 1603 (1961), the. primary issue involved .

- was the recognition by the employer of a union which had

not been designated by a majority of the employees. There, —

. the Court said [366 U.S. at 739-740, 81 S. Ct. at 1608]:

If an employer takes reasonable steps to verify union

claims, themselves advanced only after careful esti-

mate * * * he can readily ascertain their validity and

obviate a Board election. We fail to see any onerous

burden involved in requiring. responsible negotiators

to .be careful, by cross-checking, for example, well-

analyzed employer ‘records with union listings or

authorization cards. Individual and collective employee

rights may not be trampled upon merely because’ it is

inconvenient to avoid doing so. [Emphasis supplied.]

There is no Gistinction in principle between the obliga-

tions of an employer under Section 8 (a) (2) to cross-

check authorization cards and the obligation imposed upon |

him in this respect’ under Section 8(a)(5).”* Indeed, to

hold that an employer has a right to recognize’ a union’s

majority status by virtue of authorization cards to avoid a -

Board election where the employer prefers such union, and _

16. See International Ladies’ Garment. Workers Union [Bern- .

| hard-Altmann}-v. N. L. B. B., op. cit.

a ow a

ta oye st ee

—

- to reject the obligations to ionicaiee @ union which tenders

a majority of valid, unambiguous authorization cards where

the employer abhors the particular union, is to deny the .

_ employees the right to select the/ bargaining agent of their

own choosing’ guaranteed in Section 7 of the Act. Certainly

the reliability of authorization cards is not predicated upon

an employer’s animus or favorable inclinations toward

' unionism generally or an identifiable union in particular.

‘In view of the Jong-standing acceptance of authorization .

cards:by this Court, all courts of appeals (including the

Fourth Circuit)” and the. Board, in light of the scheme of

the Act according written authorizations a special signifi- .

- cance and in view of the legislative history supporting the

+ reliability of such authorizations, the Fourth oe ’s deci-

sion in the instant case should be reversed. an

. Moreover, the very reasons ascribed by the Fourth Cir-

cuit for its conclusion that. authorization cards aré in-

to au employer ipso facto creates a doubt as to the union’s

majority designation, reveal the insufficiency of its basis

for digressing from the foregoing’ long line of. cases and

well established legal principle. First, the Court said: “‘No

thoughtful person has attributed reliability to such card

checks.’ This ipse dixit statement constitutes an indict-

‘ment of this Court,” the various courts of appeals,” the —

_ TT. See, eg , Florence Printing Co. v. N. L: R. B., 333 F.2d

. 289 (4 Cir. 1964) ; N. L. R. B. v. Overnite Tromsportation, 308 F.~

2d 279 (4 Cir. 1962) ; ; N.L. R. B. v. Greensboro Coca Cola Te

Co., 180 F. ‘2d 840 (4 Cir. 1950).

78. Logan, 386 F. 2d at 565.

79. United Mine Workers v.-Arkansas Oak. Flooring Co., 351

U. 8. 62; 76 8S. Ct. 559 (1956); International Ladies’

Workers Union [Bernhard Altmone} ‘v. N. L. R. B., 366 U. 8. 731,

81 8. Ct. 1603 (1961); NW. L. R. B. v.. Bradford Dyeing ‘Askocia-

tiod, 310 U. 8. 318, 60 8. Ct. 918 (1940) ; International Association

of Machinists [Serrick Corp.] v. N. L. R. B., 311 U. 8. 72, 61'S. Ct.

- 83 (1940) ; N.L. R. B. v. Franks Brothers Co., 321 U. 8. 702, 64 .

S. Ct. 817. (1944) ; W. L. R. B..v. Medo Photo "Supply Corp., 321 ,

U. 8. 678, 64 8. Ct. 830 (1944).

80. See supra, ns: 26, 27, 53, 58.” ae ee.

-&Y

Board," members of Congress," the academic community*

sand untold thousands of representatives’ of labor and -

_ “management who have. engaged in voluntary recognition

and collective bargaining.” We ii ee care

Second, the Court stated that the Board ‘‘fully recog-

nized”? the unreliability of authorization cards as a method

of desigtiating the employees’ collective bargaining repre-

sentative, citing Sunbeam Corp., 99. NLRB. 546, 550-551

(1952); Midwest Piping & Supply Co., 63 NLRB 1060

81. Joy Silk Mails, 85-NURB 1263, enforced, 185 F. 2d 732

(D. C. Cir. 1950), cert. denied, 341 U. S. 914; Preston Products

Co., Iric:., 158 NLURB* 322, enforced, 392 F. 2d 801 (BD. C. Cir.

1967), cert. denied, 392 U.S. 906; Sinclair Co., 164 NLRB No.

A9, 65 LRRM- 1087,°enforced, 937 F. 2d 157’ (1 Cir. 1968) ; Phila-

mon Laboratories Inc., 131: NLRB 80, enforced, 298 F. 2d 176

‘(2 Cir. 1961); Quality Markets,.Inc., 160 NLRB 44, enforced,

387. F. 2d 20 (3 Cir: 1967); Florence Printing Co., 145 NLRB

141, enforced, 333 F. 2d 289 (4 Cir. 1964); Goodyear Tire &

Rubber Co. 159 NLRB 834, enforced, 394 F. 2d 711 (5 Cir.~

1968); Nelson Mfg. Co., 138 NURB 833, enforced, 326 F. 2d 397

(6 Cir. 1964) ; Elliott Williams Co., Inc., 143 NLRB 811, enforced, —

345 F. 2d 460 (7 Cir. 1965) ; Decker, d/b/a Decker Truck Lines,

128 .NLRB 858, enforced, 296 F. 2d 338 (8 Cir. 1961) ; Trimfit

‘of California; 101 NLRB 706, enforced, 211 F. 2d 206 (9 Cir. |

1954) ; George Grok & Sons, 141 NLRB,931, ‘enforced, 329 F.2d

265 (10 Cir. 1964). mee :

- 82.+ See supra, pp. 24-30, 33-37. eye ays!

83. E.g., Professor Bok whose article, ‘“‘The Regulation of »

Campaign Tactics in Representation Elections Under The National °

Labor Relations Act,’’ 78 Harv. L. Rev: 38, is liberally cited in the

Logan decision, 386 F. 2d at ns. 35, 36, 37, appears to be one who

attributes reliability to authorization cards. See tbid., at p. 133.

Professor Lesnick‘would appear to come within the Fourth Cir-

euit’s ‘‘No thoughtful person’’ characterization. See Lesnick, H., _

‘Establishment of Bargaining Rights Without an NLRB Election,’’

65 Mich. L. R. 851, 861, 868, n. 63. See also, Parker, ‘‘Labor:

Authorization Cards and the National Labor Relations Board,’’ 13

‘How. L. J. 171, 180. " Me

84. See NLRB, Thirtieth Annual Report, 1965; p. 2; Levi-

Strauss & Co., 172 NLRB No. 57, 68 LRRM 1342 at n. 10.

85. ND. RB. B.v. 8. 8. Logan Packing Co., 386 F. 2d 562, 565,

n. 8 (4 Cir. 1967). = | |

* ‘

Sly tee tee find at vol

“4

Court made no mention-of the. fact that each of those cases |

one of two competing unions was seeking recognition of

- the employer—a situation where dangers of violations of

~~ involved the effect to be given to authorization cards where

Section 8( a) (2) are manifest.* The difference between a .

one and two union situation vis-a-vis the value of authori-

5 oF . j : y. aid

; zation ‘cards 18 apparent. In a two-union campaign em-

ployees desiring collective bargaining representation may <

sign cards for the first union and then, when given a choice

‘of unions, may thereafter sign cards for a second preferred

_ union. Also in a‘two-union campaign, under existing Board

rules, it is generally known that Tecognition will. not be

sought and that an election will be held.*’ Cards signed

under these circumstances do.not have the same value usin

the instant case where the employees were told that the —

ecards would be used to seek, recoguition. It is therefore a

mistake to suggest that, because the Board does not rely

on cards in cases where two competing unions have obtained

signed authorizations, such cards are unreliable in the.

instant case where only one union organized the-employees.

Cf. N. L. R. B. v. Indianapolis Newspapers, Inc., 210 F. 2d

501. (7 Cir. 1954). RAGE tera, RT he

‘86. In two of the cases cited, i.e., Sunbeam, op. cit. and Novak

Logging Co., op. cit., the Board found that the employer had

illegally assisted one of the two competing unions in violation of

Section 8(a)(2). In Midwest Piping & Supply Co., 63 NLRB

1060, 1069-1071, 1075-1078, the Board held that the employer.

assisted a union in violation of Section 8(a) (1), inter alia, by enter-

ing into a union shop agreement with it at a time when the emplorer

was apprised of another union’s conflicting claim of represents —

‘. and in the face of.a representation proceeding then current. »-

fore the Board. Clearly, the Board in its experience and exp <tise ~

is justified in differentiating’ between the use of authorization cards

in (1) two-union situations and (2) situations where only one

union is involved. N. L. R. B. v. Universal.Camera Corp., 340

U.S. 373, 71 8. Ct. 456 (1951). pecae:

_ 87. See Midwest Piping & Supply Co., op. cit.; Iowa Beef

Packers, 144 NLRB 615; Novak Logging Co.,.119.NLRB 1573.

. PERF PE, (aaa ia dite

ORI SP RENEE alain ee sete a ee Ait eb Seb = _——

The Board clearly restated its position in the recent case ;

of Levi Strauss & Co., 172 NLRB No. 57, where it said

68. LERM at 1342, n. 10]: ,

"Several commentators and courts recently have im-

. properly attributed to the. Board the suggestion that

authorization cards are not reliable as an expression

of: the desire of employees to be represented for pur-

poses of tollective bargaining, citing Sunbeam Corpo-

ration, 99 NLRB 546." ~

In Sunbeam Corporation, the Board said that ‘au-

_ - thorization cards are a notoriously unreliable method

' of determining majority status of a union as a basis

for making a contract where competing unions are

soliciting: cards, because of the duplications which then

occur.’? [Emphasis supplied.] -Suwbeam Corporation, |

99 NLRB 546, 550-551. On several recent occasions,

. the phrase “notoriously unreliable’’ hasbeen excised

' .from its limited context of a two-union situation and

attributed to the Board as indicative of its attitude

towards authorization cards in one-union situations.

When so used, the phrase is inaccurate. The full im-

_ port of the phrase becomes clear when it is read in its

“ limited and intended context, as follows:

‘What is the law with respect to the rights and

obligations of an employer whose employees are

simultaneously being organized by two or more

labor organizations, the condition which confronted

Sunbeam.in August 1950? [sic.] The doctrine has

. long obta:ned without question that the employer

must be strictly neutral—he cannot zive any form

of support to one of the rival unions; if he does

he violates Section 8(a)(2) of the Act. As the

Court of Appeals for the Seventh Circuit stated

in Harrison Sheet Steel Co. v, N. L. R. B., 194 F.

_ 2d 407, ‘He must maintain a strictly neutral atti- —

tude. "Especially is this so where the adherence

of the employees is being sought by rival labor

organizations.’ That the. making of a contract

with a union is the most potent kind of support

imaginable cannot be doubted. This Board has

saci

. wy,

- also long recognized that nae ae Be gr cards are

.a@ notoriously unreliable ‘method of determining

majority status ef a union.as a. basis for making

a contract where competing unions-are soliciting

cards, because of the duplications which then occur.

Thus as the Board said in Midwest Piping and.

Supply Company: me |

‘. .. it is well known that membership cards

obtained during the heat of rival organizing

carapaigns like those of the respondent’s plants

do not necessarily reflect the ultimate choice

of a F estes representative; indeed, the

ex of dual’ membership among the em-

aa during periods of intense organizing

activity is an important unknown factor af-

- fecting a determination of majority status,

which can best be resolved by a secret ballot

, among the employees.’ ’’ ; | eas

The utilization of authorization cards to. ascertain

majority status not only by ye ti sae but also (a)

by agreement of the parties~voluntarily through un-

official channels, (b) by the American Arbitration As-

.Sociation, and (c) by a majority of the State labor

relations agencies is a sufficiently common, well-éstab-

_ lished and well-known practice to cast serious doubt

on the sweeping denunciations of such proof.

In view of the foregoing, there can be ~o doubt that the

Court erred when it. suggested that the Board ‘‘fully recog-

nized’’. the unreliability of cards, | @ ke,

‘In addition, the Fourth Circuit s decision that authoriza-

tion cards are inherently unreliable® is predicated upon

88. In Logan, op. cit., the Court had a basis. for rejecting the

authorization cards because of evidence of coercion. See concurring

opinion: NV. L. R. B. v. Sehon Stevenson & Co., 386 F.2d 551, 556

(4 Cir. 1967). In NW. L. R. B. v. Preiser Scientific Inc., 38% F. 2d

143, the possibility that the Fourth Circuit might limit its Logan

doctrine ‘to situations invelving authorization cards impressed with

coercion or misrepresentation loomed large, when it sustained the

Board.’s Section 8(a) (5) order, stating at p. 144: ‘‘Particularly, the

cards did not have the infirmities we found to’ render them unre--

“s

. 50

~_ guch authority as the “AFL-CIO Guidebook for Union Or-

ganizers’’,® a 1962 speech by Board Chairman McCullock”

(sic.) in whieh he set forth ‘‘data indicating some relation- —

_ ship”? between the number of cards signed by employees

and the number of Board elections: won. by. unions, a law

student’s conjecture on union authorization cards” and its

own speculation as to what conceivably might occur in the ‘

solicitation of authorization cards. ;

Vis-a-vis the “AFL-CIO. Guidebook for Misi Or-

ganizers,’”™ it should be noted that a manual written for.

liable under the principles we stated, and now reaffirm, i in Crawford .

Manufacturing Co., Inc v. N. L. R. B. (No. 11,040, 4 Cir. decided

Oct. 27, 1967); N. L. R. B. v. 8. 8. Logan Packing Company (No. * :

10,355, 4.Cir., decided Oct. 27, 1967).’’ However, in the instant

case and N. 4 R. B. v. Heck’s, Inc., 398 F. 2d 337 (4 Cir. 1968), :

where there is no serious claim of misconduct in respect to the sign-

ing of any cards, it is clear that the Fourth Circuit erroneously has

fashioned a rule of law to reject authorization cards as an indicator

of employees’ union desires, irrespective of the absence of ‘mis-

representation, coercion or taint of any kind.

‘89. N. DL. R. B. v. 8. 8. ee oe 386 F. 2d at 565,

nh. 9. © . oh

90. | Ibid. p. 565. -

‘ 91. | Comment, ‘‘Union Authorization Cards,’’ 75 Yale L. J. 805

(1966). Professor Lesnick characterized this. Comment as ‘‘a

diatribe against reliance on ‘authorization cards.’’. Lesnick, H..,

“‘Establishment of Bargaining — ee an NLRB Elec-

_ tion,’’ 65 Mich. L. Rev. 851. °

92. The Fourth Circuit relied upon a nina of an excerpted

passage of the AFL-CIO ‘‘Guidebopk for Union Organizers’’

quoted in Hearings*before the Subcommittee on Labor, etc. 89th

‘Cong. 1st Session on S. 256 to Repeal Section 14(b), p:. 190, which

in turn contains a quotation from the U. S. News & World Report,

March » 15, 1965, including what appears to be an article by an

employer ‘labor ‘attorney. Because of the difficulty in obtaining

.a copy of such ‘‘Guidebook,’’ we have reproduced in the Supple-

mental Appendix, attached hereto, for the Court’s convenience ~

(Supp. A. 39) in toto the passage concerning ‘‘NLURB PLEDGE

. Carps’’.referred to in such Hearings. - We invite the Court to

compare the reproduced portion of the’ “*Guidebook’’ with the

statement: ‘‘The term ‘NLRB Pledge Cards is obviously a mis-

nomer’’’, contained in the Hearings before the Subcommittee

_ on Labor, ete., op. cit., p. 190.

ana

ET 9 BEE EEE aS OF. +h RE

]

51 } mS

internal union purposes would appear to constitute less”

than overwhelming legal authority. Nevertheless,.a ‘brief

comment in respect to its'*misuse may be. justified. —

"Manifestly, eards solicited for an election only do not, .

and inherertly could not, elicit the degree of commitment.

whigh motivates a worker to sign a card which he knows

_(or as to which he is advised, as in the instant case) will

be construed -as his “‘ official’’ designation of the union as

his bargaining representative. Thus, an employee who

would not sign an unambiguous authorization card to be

used in a card check, may well sign a card for an election,

‘knowing that in the election booth his anti-union vote will

be one that ‘‘counts.’’ It is for this precise reason that -

experienced and knowledgeable‘organizers will be wary of

NLRB pledge cards signed by those who would ‘‘get the

‘union off [their] backfs]’’ in an election campaign. The

caveat in the AFL-CIO manual is based on ‘experience, and

is intended to alert the younger organizers in the field ‘to -

refrain from relying on inadequate assurances of allegiance

in election campaigns. . Critics of the card check procedure, |

seizing on this AFL-CIO caveat, conveniently conceal the

fact that the entire section of the manual out of which this

93. Compare the type of instructions passed ‘on to organizers in ° |

the signing of authorization cards where the object, as in the. .

instant oase, is to seek recognition: Schlossberg, Stephen - L.,

Organizing and the Law, BNA, ‘1947, p. 49. 7 tat

94. All’authorities agree that cards signed for an election only

(as distinguished from authorization cards) cannot be used to

support a refusal to recognize charge under Section 8(a) (5).

Englewood Lumber Company, 130 NLRB 394; N. L. R: B. v.

Koehler, 328 F, 2d 770 (7 Cir. 1964) ; see NW. L. R. B. v: Cumberland -

Shoe Corr, 351 F. 2d 917; N. L. R. B. v. Winn-Dizte Stores, Inc.,

. 341 F. 2d 750 (6 Cir. 1965), certiorari denied, 382 U. S. 380, 86

S. Ct. 69 (1965); N. L. R. B. v.. Swan Super Cleaners, Inc., 384

_ F. 2d 609 (6 Cir. 1967). See Levi Strauss & Co., 172 NLRB No.

57, 68 LRRM 1338.

‘

_ “semantic plum’’ has been plucked is a dissertation on -

' pitfalls in an election campaign only.”

—_—

i peer sant i oe asa AA i nnn

«52

In addition, Chsirsiaa’ McCulloch’s speech referred to

in the Fourth Circuit’s Logan decision does not require the

conclusion that authorization cards are ‘‘seriously unreli-

ablé’”’. Indeed, as Judge Sobeloff in his concurring opinion

in N. L. R. B. v. Sehon Stevenson & Co., Inc., 386 F. 2d

551, 554-555 (4 Cir. 1967), noted: ‘‘the only statistical

study of card8, upon which the Logan opinion relies heavily,

concludes : ‘ —— cards do have validity’.’’

No mathematical analysis can be relevant to the reliability

of authorization cards. Experiences are all too ar

that Board election campaigns invite employer unfair labor

practices, General Shoe interferences with fair election pro- -

cedures [General Shoe Corp., 77 NLRB 124, enforced; 192

F. 2d 504 (6 Cir. 1951), ‘certiorari denied, 343 U. S. 904,

728. Ct. 635 {1952)], long delays which chill the fervor of .

union adherents and multitudious other factors which

adversely affect the free choice of employees. Nor do the

. number of unfair labor practice charges or. the number of

objections to elections adequately illustrate the ‘scope of

employer interferences with such employee free choice.

_ Frequently unions fail to file such charges or objections

' because of futility arising from the“inadequacy of Board

‘. remedies, the unlikelihood of success in re-run elections

(see e.g., Pollitt, NLRB Re-run Elections: A Study, 41 .

N. Car. L. Rev. 2091 (1963) ), Board administrative prob-

| lems, cost, internal union problems, further loss of prestige,

_ Chairman McCulloch’s figures in the speech cited by the

Court came from an unpublished field survey by Professor

‘Ross of the University of Pittsburgh. Ross’ study was

‘based on a small® sampling of cases ina geographically

95. See infra, pp. 55-66.

96. The study concerned only 214 diaiisiee held during 1960.

ee en

limited area®’ involving no qualitative analysis of its

results. Yet such value as can be attributed to the Ross —

study shows that there is a positive relationship between

the number of authorization cards and the likelihood of :

‘ guecess in elections, in-spite of the dangers of delay, inter-

ference, etc., involved in the ‘NLRB representation and

-election process. See infra, pp. 55-66. As Judge Sobeloff

said [concurring in er Stevenson, 386 vie 2d at ‘sick

; employer was rete with tortion cards from

- nearly 70%_*-*-* of the employers in the unit. The

statistics \relied upon in Logan to designate cards point

out that when 70% of the employees have signed up,

‘* three ont of four times the union will be successful in

the subsequent election. In addition, in this case there .

was‘no allegation of any ambiguity in the cards or any

misrepresentation or threat or any pf the other abuses

_ /80 painstakingly catalogued i in Logan.”

‘Heedless to Judge Sobeloff’s persuasive sieaeiiite? ‘the

a sweeping rule of law, not limited to the facts of the case

-before it, that authorization cards cannot sustain Section

> 8(a) (5) violations. Under the statutory: scheme, however, .

- it is the Board ‘‘whose findings within [the] field [of labor

law] carry the authority 6f an.expertness which courts do

not. possess and therefore must respect * * *’’, and which

is commissioned with the formulation of judgments on the

basis of its ‘‘experience in dealing with a specialized field

of knowledge’’, Universal Camera Corp. v. N. LD. R. B., 340 .

U. S. 474, 488, 71 S. Ct. 456 (1951). ‘Thus, since Congress —

97. The jurisdiction of the Atlanta Regional Office is all of.

Georgia, eastern Tennessee and northern Alabama.

98: Sée McCulloch, Frank W., ‘‘A Tale of Two Cities: Or Law

in Action’’, ABA Section on Labor Relations aii Report of

Proceedings, 1962, pp. 14-20. ’

99. The force of Judge Sobeloff’s words fit thie instant Gissel

case ‘‘like a glove’’.

has entrusted the Board with such findings and since with

' its full. experience in respect .to authorization cards and

petitions under Sections 9(c) and 8(a) (5) [and occasionally

Section 302], both before and after Chairman McCulloch’s

1962 speech, it has uniformly held that unambiguous au-

thorization cards are reliable indicators of employees’

wishes in one-union cases, absent fraud, coercion, misrepre-

sentation or other taint. Neither the meager experience, the

legal forensics nor the delusive conjecture and speculation

of note writers or courts should be permitted to set aside —

the Board’s conclusion. In sum, the Fourth Circuit’s view “ -

seems ‘‘to be the product of an obsession with the infirmities

of authorization cards, and a romanticizing of the validity

of an election. Cards have been used under the act for

&-thirty years; the Supreme Court has repeatedly held that

certification is not the /only route to representative status

***. No amount of drumbeating should be permitted to

overcome, without legislation, this history.” eye ae

ra ~ ™%

100. ‘‘The proper solution of the eaiiaen arising from the

possible abuse of this long-established procedure lies in a case-by-

case analysis of the use made of the cards and not in their outright

‘repudiation. Evaluation of.the reliability of authorization cards

should be made in two distinct contexts. One is where there is no

election and no employer unfair labor practice other than a refusal

to —— the other is where there has been an election which is

vitiated by an employer violation.

. ““The first category, illustrated by the instant case, is where the

union submits to the employer ecards from a majority of employees

and demands recognition and collective bargaining. The majority

opinion here and the Logan opinion indicate that on these facts

alone the employer would be justified in refusing to bargain, basing

a claim of doubt on the asserted inherent unreliability of cards.

This smacks of policy-making by stereotype.’’ Judge Sobeloff

(corfeurring), N. L. R. B. v. Sehon Stevenson Co., aed F. 2d 551,

555 (4 Cir. 1967).

101.. Lesnick, Howard, «Establishment of Bargaining Rights

Without an NLRB Election,”’ 65 Mich. L. Rev. 851, 861-862.

B. Representation Elections Are Not Necessarily the Most

| Reliable Indicators of Employees’ Desires. _ dé

; In Logan, the Fourth, Circuit espouséd its view, correla- |

tive with its holding on the inherent unreliability of cards,

that a representation election under the auspices of the

NLRB is the sole method reliably to determine employees’

wishes. ‘However, careful analysis of and familiarity with

‘the election processes “and the human variables incident

thereto belie the validity of the Fourth Circuit’s belief.

"4. A “Beeret Ballot’ Is No More Indicative of Employees’

Intent Than an Authorization Card. :

The Logan court noted that cards are unreliable, inter

alia, because they are ‘‘obtained before the employees are

exposed to any counter-argument and ‘without an oppor-

tunity for reflection or recantation” [386 F. 2d at 566].

This conclusion overlooks the realities of the employer-

« employee relationship, for whereas the employee is exposed

to the union’s arguments only during an organizing cam-

paign, hé is subjected to daily exposure of the employer’s

views.’ From the day he is hired the employee is indoc-

trinated with managerient’s views of unionization, labor

economics ‘and employer prerogative. Thus, numerous” —

studies have demonstrated that long prior to the advent —

102. Concommitantly, the union organizer is at an additional

fe handicap because ‘‘he must develop a personal relationship of trust

over a short period while the management has had a rather ex-.

tended period in which the workers get to know him.’’ Butler, |

Donald T., ‘‘Factors Affecting Trade Union Organizing Of Manu-

facturing Firms’’, p. 131, unpublished doctoral thesis, University

of Wisconsin, 1959. : \

103. E.g., in the instant case, shortly after his. hike and more.

than a year before the Union’s organizational campaign com-

menced, employee Mount was told by Vice President Gissel that

the shop was non-union and any employee would %e discharged

if ~~ ion” learned that he even talked to a Union representa-

tive “ag sa ;

- 32

56 .

_of a union 6rganizational campaign, many employers have

imbued. employees with an ‘‘elemental fear of reprisal’’

_ bufficient to forestall any union activity. Moreover, it,

should be noted that, employees are acutely aware that if

economic lives, whereas, if the union wins the employer

still maintains his economic life-and-death power over his |

"employees. |

Nonetheless, the Fourth Circuit asserts that ‘‘exposure

of each employee to both sides of the issue”’ renders the

employee’s choice ‘‘when ‘the ballot is cast—as reasoned |

‘and rational as possible’, V7. L..R. B. v. Logan Packing Co.,:

386 F. 2d at n. 16. However, even full exposure to both

the union’s and management’s propaganda may be totally ~

irrelevant to the employee’s decision to designate a union

whether by authorization cards or-an election. A study

of why workers join unions concludes :!™

104. See Bok, ‘‘The Regulation of Campaign Tactics in Repre-

sentation | Elections Under the National Labor Relations Act’’,

78 Harv. lL. Rev. 38, 125, and authorities cited therein at -n. 238.

See also, Butler, op. cit. at 136. Case studies conducted by Salle

_ revealed that employer threats remained foremost in employees’

memories, whereas recollections of other campaign propaganda

faded withthe passage of time:

The workers interviewed made no mention of any economic

activities on the part of the organizer though they fairly well

agreed that the management was set on keeping the union

out and two remembered that he said that he-would close the

plant if the union came in.

In the instant Gissel case the evidence disclosed interference, re-

straint and coercion practiced in respect to employees more than —

three months prior to the a ees of the Union’s organizing

campaign. See supra, p oreover, Gissel’s antiunion atti-

tude had been instilled in many of the s4me employees in 1960 .

‘when the company was found to have violated sections 8(a) (1)

and -(3). See Gissel Packing Co., NLRB case No. 9-CA-2068

(Supp. A14-33).

105: op. cit. at n. 64

106. Seidman, London & Karsh, Why Workers Join: Unions, .

Annals, Meech 1961, pp. 75, 84, cited by Bok, 78 Harv. L. R. at 50.:

P 7 f

. . =} . P +

° .

r ° , ‘ -

57 / ee

‘ . 4 4

O th, . >

| ” Often the decision to join a union is not based on log-

ical reasoning in which self-interest figures to a large

degree, but upon cede reaction to the pres-

a ) sures of ‘the moment. | —.

_( Other studies indicate that the dockside to vote for the

“yiiion is made before the election, procedure is invoked and~

thus. pre-election propaganda, whether one- or both-sided,

. may have little influerice on the voter :!

After extensive empirical research, various voting

analysts have come to suspect that even if ‘election

propaganda | is read, it will largely serve to provide

- rationaljzations for decisions already reached on other -

: - grounds * * *, As some have observed: ‘‘ Arguments

ae (read or heard by the voters) enter¢be final stage of ¥

bp point out, like sighboards along the road, the way to ° ‘

Boiron. determined. 2 tion

| Further, Bok suggests that ules “as reasoned and ratior‘al

| as possible’ may not result in expression of majority

will because few voters are able to appraise evidence suf-

ficiently systematically and rationally in the increasingly °

complex arena of labor relations and because often the

7 adverse arguments of labor and management will not yield

to logical analysis.” Accordingly, there is reason to doubt

107. Bok, 78-Harv. L. R. at 88-89, citing Harlow, Social ‘Science

; . ‘tm Public Relations, 71 (1957) ; Lazarfeld, Berelson & ‘Gaudet,

, The People’s Choiew, p. 83 (1948). . 7

108. Logon, 386 F. 2d at n. 16.

109. Bok states [78 Harv. L. R. at n. 34]: ‘‘The most con-

scientious voter may be unable to decide on logical grounds whether .

_ the indeterminate possibility of a five cent increase, an expanded

health insurance program, and a grievance procedure outweighs

the indeterminate chance of a strike or a relocation of the enter-

prise. Moreover, legal rules will have no meaningful effect unless

the questionable campaign tactics are truly capable of affecting

the decisions of enough conscientious voters to affect the outcome

of the election. And even if these conditions are satisfied, the

ee ee ee ee ee ere ee

. ag Ployee’s vote to the extent that no ‘‘free and fair election’’ is ever

snot Dans

read

that a ballot cast in an NLRB election is, as asserted by the -

Fourth Circuit, the result of a free choice, ‘‘as reasoned

_ andvrational as possible.’”°

Moreover, the instability of NLRB. election rules and

procedures may render expression of free choice an im-

possibility. The ‘‘law concerning representation elections

has had.a turbulent history.’ NLRB election policies

. change frequently, most markedly with every new Board

and thus what may constitute a valid election under the

Board’s rules on one occasion may be held invalid there-

closely to: the values and preferences of the rational voters. If -

_ ‘these voters represent a small minority—as most ‘empirical studies

would have us believe—the law may still fail to bring’ about an

election result that will correspond to the values and — of

- the majority. -

110. It is clear that the employer ‘engages in much sili

which, although of seeming little moment. to reviewing tribunals,

nonetheless just as seriously interferes with the free choicé of em-

ployees as do unfair labor practices or other conduct. sufficient

to set aside an election (see General Shoe Corp., 77 NURB 124).

For example, during a union campaign, when .a supervisor has

prior thereto said, ‘‘Hello,’’ to the.employees and ceases such prac-

tice, this affects employees’ votes. When the supesvisor, during the

election campaign, stands at an ‘employee’ s station for a number

of minutes or even seconds when it was not his practice to do so

theretofore, this affects the employee’s ‘‘free choice.’’ In such

<innumerable ways of daily contact the employees are affected in

-their so-called ‘‘free choice’? and, accordingly, because of the

superior position of the employer his daily and even minute by

minute contact with the employees can and does affect the em-

truly possible. It is therefore a rebuttable homily when it is said

that an election is a more reliable indicator of employees’ wishes

than unambiguous authorization cares. See supra, pp. 37-54; 7,

pp. 59-66..

111. Bok, 78 Harv. L. R. at 39 and n. 3:

career’, been born in a period, laid to rest in another only to be

resurrected, like the Phoenix, garbed in slightly different

phurhage ee .

a * * * 2

The ‘egal doctrine relating to election campaigning, under the

N1 RA \has traditionally been aepeeeed to as a _ example

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_after.'? In essence then, the employee’s right. to have his

vote in a valid election certified depends on the viscissi-

tudes of the Board’s constantly shifting policies.“* And.

thus frequently the election.procedure fraught with its in-

herent uncertainties fails to afford adequate protection to

. the vote and fails to result i ‘in a the expression of employees’

true “intent. ‘ons

2. Elections Are Susoggtible to Misrepresentation and Coercion.

‘Although the Board supposedly conducts its elections

only in so-called ‘‘laboratory conditions’’, ‘‘1™. seasoned . ~

observer considers [this objective] realistic.’’ ‘‘[E]lection

campaigns are characterized by ‘prattle rather than pre-

cision’ [citing Olson Rug Co. v. N. L. R. B., 260 F. 2d 255 (7

‘Cir.. 1958)]. and exaggerations, name calling, inaecuracies,

* and, to some extent, deliberate falsehoods [which] are

sometimes permitted as usual electioneering devices and

campaign tactics.’’"®

In addition, much objectionable conduct which interferes

with the empicyee’s ‘‘free choice’’ is held by the Board to

be insufficient to invalidate an election. For instance, in-

advertent misstatement, which under Board law will not

void an election,* deprives the employee of a free choice

just as effectively as a fraudulent misrepresentation. Also,

misinformation disseminated more than 24 hours before -

"712. See generally, Bok, ‘78 Harv. L. R. 38-45.

113. For example, employer statements to employees emphasiz-

* ing the futility of selecting the union: Metropolitan Life Insurance

Co., 90 NLRB 935 (elections set aside) ; National Furniture Mfg.

Co., Inc., 106 NURB 1300 (election not: set aside) ; Dal-Tex Optical

Co., Inc. 137 NLRB 1782. (election set aside).

114. Bok, 78 Harv. L. R. at 45.

115. Agabin, “‘Labor-Elections-Campaign Literature, ” 3 ALR

3d 889, 894. .

116. Barber Colman Co., 116 NLRB 24, Avon Products, Inc.,

116 NLRB 1729 ; see Hollywood Cerdmics Co., Inc., 140 NLRB

221, 224.

an election may impair the employee’s freedom of choice

regardless of whether there is ample time for the em-

ployees to verify it or for the union to rebut it (the Board’s

tests for validity)."7 Information concerning the misrep- |

resentation may not be communicated to the union in suf-

ficient time for rebuttal. Employees may not have time or

may be reluctant to question the union, or the union may

not have sufficient access to the employees, especially close

to the date of the election, whereas the employer has almost

unlimited access.

_ Employer speeches and interrogation, even if held lawful

by the Board, cannot help but have a — im-

* pact on employees.

While the Fourth Circuit imports great weight to the

opportunity afforded by the election process, for employees -

to hear ‘‘both sides of the issue,’ misrepresentation, in- -

117. Kennametal, Inc., 121 NURB’410; Fisher Radio Corp.,

123 NLRB 879; Lundy Packing Co.; 124 ape 905.

(118. See Bok, 78 Harv. L. i at 96-103.

119. .See Butler, ‘‘Factors Affecting Trade Union Thesintidsine

of Manufacturing Firms’’, unpublished doctoral thesis, University

of Wisconsin, 1959. Butler analyzed the effect on employees of

the law regulating election campaigns as follows [at 122]: “‘One

of the most common statements was from the older organizers who

spoke of the effect of the Taft-Hartley Act in giving management

'.the right to.propagandize their workers. A few of the people in

management who had been faced with union organizing campaigns

before the campaign with which the interview was concerned, spoke

of the problems under the Wagner Act when a manager could do

nothing to give the workers his side of the story. This change in

the law and in its interpretation: by the National Labor Relations

plant organized.’’!?

12 From the weiter haan it is observable that the workers

- remember and sometimes act upon a statement which is clearly

the economic coercion which is forbidden by the Taft-Hartley Act.

_ The legalistic interpretation which relies on semantics allows the

intent of the law to be circumvented while the letter of the law is

adhered to.

; - 120.. Logan, 386 F. 2d at n. 16.

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Board has probably aided the firm which does ‘not want to have its _

* 61 ;

timidation and a myriad of other influences too often render

such opportunity more destructive than protective. of em-—

ployee rights. oae Gee ees oa ,

_Procedurally, many valid objections to conduct affecting

the results of an election are never raised because they come

to the union’s attention, if at all,’ after the short period

for filing objections has run.!22 Also, many unions fail to .

file objections because of the expense of litigation,’*> the

unlikelihood of success in re-run elections,’ the potential

long administrative delay and the possibility that even if

the union gains ‘certification in a re-run election, the em-

“s ployer may refuse to bargain to challenge the certification

through a lengthy Board and Court unfair labor practice

proceeding. An employer need not articulate his anti-

union attitudes to ‘‘men who know the consequences of.

incurring [their] employer’s strong displeasure?” —

‘knowledge gleaned from daily exposure to management’s

influence. Even the standards set by the Board to protect

employees from coercive interrogation’* may not ade-

quat

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