# Amicus Curiae Brief — National Labor Relations Board v. Gissel Packing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0029%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 575 ## Text 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 & Be “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 =) 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 a (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 ix 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 . - 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 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 ', _ 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: ‘ 8 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." : s Tae. *5 . able middpprehension in the minds of employees in t.to the | “purpose of the authorization cards was-generated by representa- - JS « Majority status 12 . . 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’ my . -« > » ‘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 ~— 15 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].’’ 16 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. 17 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 eo ~~ 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. I. 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 fs 19 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 21 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. | 1. 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 r 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 oe , g ad a 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) ; 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. 25 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.’ » 27 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 30 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 ‘ 31 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. . so . ‘ i an a i gS : ) 32 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 ——— . - : eB » 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 p- 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 “ 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 “ 87 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 F » . 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 » ee > a te ? P é‘ Ne er rarer eet ema tie 1 | { ; j } in commercial sales law, the doieeaiiaiaaie and resulting ee 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 2 4 : a 5 a id senewececanes 41 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 * * *, Te * ** sand © * gulag ad tates Gs dene 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 employee designations, was decided in.favor of the union. © 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- 42 '- gress considered. the signatures of employees of sufficient reliability to render legal what otherwise would be a crimi-. nal act." It is significant that in 1959 Congress increased the © 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: * © © with regard to check-off,—the amendment provides that _it’is proper to make such\.an agreement—provided that the employer has received from “each ‘employee,—a written assign- mant.©-© 9, - (1945); Novak Logging Co., 119.NLRB 1573 (1958). The © 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 a 47 \ 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 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 ae 53 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 Fourth Circuit arrogated unto. itself the right to pronounce © 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’’. 54 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. ~~ 5 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 the union loses the election, it will hold no sway over their © 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 ¥ =, | decision more as indicators than as influences. They © bp point out, like sighboards along the road, the way to ° ‘ 1, turn -in order to reach a destination which i is already © 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 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- quately safeguard the employee’s free choice in an. election. 121. After the union loses an election, employees who had there- tofore been supporting the union are at the height of their insecur- ity and thus are reluctant to. come forward with evidence of objec- tionable employer misconduct. For the same reason unions have difficulties producing evidence in support of post election charges or objections. 4 , 122. Within five days of the tally of ballots, Section 102.69, " NRB, Bales and/ Regulations end Statement) ot Procedure, Series 8, reprinted in the Supplemental Appendix, infra, p. 13. 123. In representation cases the union is not usually represented by an NLEBB attorney, and rarely is represented by private counsel. . 124. See, e.g., Pollitt, “NLRB Re-run Elections: A Study’’, - 41 N. Car. L. R.2091 (1963). __ 125, International Association of Machinists v. N. L. R: B., 311 U. 8.'72, 78, 61 S. Ct. 83, 87 (1940); WV. L. R. B. v. Virginia Electric & Power Co., 314 U. S. 469, 477, 62 S. Ct. 348 (1941). __126. Struksnes Construction Co., 165 .NLRB No. 102, 65 LRRM 1385; Blue Flash Express, Inc., 109 NLRB 591; see Bourne Vv. N. L. R. B., 332 F. 2d 47, 58 (2 Cir. 1964). | Pe terre ges pa wintes a Ra a ea Ra a ce ee ee ee se a er 62 One. commentator discussed the fallibility of these — ards [Bok, 78 Harv. L. R. at 109, 108]: current standards . . . will not suffice to rule out the existence of coercion; it ts quite possible that intimida- _ tion will occur even if all, or most of the factors cut * in favor of the employer. | } * * S. « : 7 o . eee employees may be somewhat more easily intimi- dated if top management itself takes the trouble to — inquire’ into their. activities toda” | Nonetheless many elections are upheld despite evidence of employer captive audience speeches and wholesale inter- rogation on the Board’s theory that. there is no coercive impact o ‘employees if management gives. assurances against reprisal or merely expresses opinion.’*" Many employer | statements held by the Board to be pro- tected by Section 8(c) have persuasive impact on em- ployees inconsistent with free choice, e.g., economically - based statements concerning partial or complete plant shut down or expressions of opinion as to economic con- . sequences of selecting a union: strikes, loss of seniori loss of employer-employee ‘‘good will.’*° The Board in evaluating such pre-election conduct balances the em- _ ployee’s right to a ‘‘free choice’’ in a ‘‘laboratory election atmosphere’’ against the employer’s right vigorously to argue his side of the issue in accordance with considera- tions of free speech under Section 8(c). In applying this 127. Struksnes Construction Co., op. cit.; see Interstate Hosts, Inc., 130 NLRB 1614, Hy-Plains Dressed Beef, Inc., 146 NLRB 1253. 128. Wetl-McLain Coa., 130 NLRB 19; Fisher Radio Corp.:, 123 NLRB 879; Seven-Up Bottling Co., Tne, 140 NLRB 611; Carlton Forge Works, 146 NLRB 750 129. his is not intended to be an exchaeutive compilation of the” ‘plethora of conduct in which an employér ‘can engage without invalidating the subsequent election. See, e.g., Bok, 78 Harv. L. R. 38 and Agabin, 3 ALR 3d 892. we Pater mean n ee ee 2 ; majority of valid unambiguous authorization cards hin it requested recognition, the Board was compelled to find that the Employer in refusing to- -recognize the Union had vio-’ lated Section 8(a)(5) of the Act and to order it to bargain _ with the Union, upon request, to effectuate the policies of the Act. NW. L. R. B. v. Bradford Dyeing Ass’n., 801 U. S. 318, 60 §. Ct. 918 (1940) ; International Associa- ' tion of Machinists [Serrick Corp.] v. N. L. R. B., 311 U.S. 72, 82, 61 S. Ct. 83, 89 (1940); NV. L. R. B. v. Franks Bros. Co., 321 U. S. 702, 64 S, Ct. 817 (1944); N. E. R. B. v. Medo Photo Supply Corp., 321 U. 8. 678, 64 S. Ct. 830 (1944) ; N.L. R.B. v. P. Lorillard, 314 U.S. 512, 62 S. Ct. 397 (1942) ; Joy ‘Silk Mills, Inc. v. N. L. R. B., 185 F. 24 732 (D. C. Cir. 1950), certiorari denied, 341 U. S. 914, 71 S. Ct. 734 (1951); _N.L. RB. B. v. Kobritz, 193 F. 2d 8 (1 Cir. 1951); N. L. R. B.. v. Ken Rose Motors, Inc., 193 F. 2d 769 (1 Cir. 1952); N. L. R. B. v. Taitel, 261 F. 2d 1 (7 Cir. 1958); N. L. R. B. v. Mid-West Towel & Linen Service Inc., 339 F. 2d 958. (7 Cir. 1964); Nadi. R. B. v. Economy Food Center, Inc., 333 F. 2d 468 (7th‘Cir. 1964); N. L. R. B. v. Crean, 326 F. 2d * 391 (7 Cir: 1964); NW. L. R. B. y. Elliot- Wiliams Co., Inc., 345 F. 2d 460 (7 Cir.:1965), N. L. R. B. v. Howell Chevrolet Co., 204 F'. 2d 79 (9 Cir. 1953), affirmed, 346 U. S. 482, 74 S. Ct. 214 (1953); N. L. R. B. v. Trimfit of California, Inc.,; 211 F. 2d 206 (9 Cir. 1954); N..L. R. B. v. Geigy Co., Inc., 211 F. 24.553 (9 Cir. 1954), certiorari denied, 348 U. S. 821, 75 8. Ct. 33 (1954); N. L. R. B. v. Parma Water Lifter Co., 211 F. 2d 258, certiorari denied, 348 U. 8.829, 76 S. Ct. 51 (1954); N. L. R. B: v. Idaho Egg*Pro aiden. 229 F. 2d 821 (9 Cir. 1956); see especially, Bok, ‘“‘The Regulation of Campaign Tactics in Representation Elections Under the _NLRA’’, 78 Harv. L. R. at 132-140. ght wet enters it~, Powe a PLEO PIE VEDA BEDI NK SE EMEIT EDEL OIE LA OLE EME BP LAAT OLE GL o lied : oo S. “The Company’s etennss Are Insufficient to Rebut Its | Duty to Recognize the Union. ‘1, The Failure to File’ an Employer Petition. None of the reasons for refusing to recognize the Union. professed by the Company . derogates from the foregoing conclysion. Four days after the initial request to bargain, the Company sent @ letter declining to grant the Union recognition. Inter alia, it asserted (contrary to fact). that the Union did not represent a majority of.its employees and ‘suggested that the Union file a petition with the National Labor Relations Board ‘‘to hold a fair and honest. election, giving our. employees the right te express their opinion as provided for i in Section 7 of the Act, and their choice could be made in an appropriate bargaining unit in a > fairly held election”’ (A. 284) ; ; simultaneously, however, _ the Company engaged in the course of conduct hereinabove ~ - described, to interfere with the employee’ s free choice, ren- dering impossible ‘‘a fair and honest étection”’, to hedge against the possibility that the Union might t file a petition. Significantly, the Employer did not file a petition. to as-.- certain the truth of the Union’ s claim to majority status. nor did he agree to view the authorization cards tendered by the Union (A. 288): These two facts, standing alone, prove that the Employer was. convinced that the Union repre: sented a ‘majority of his employees. = [I]f the company - ‘had any doubts [of the x union’s ma- ‘jority status] when it was approached by the union, it could. haye agreed to the private election suggested by the union or it could have itself petitioned the Board under Section 9(c) (1) (B) for a representation election. ‘Refusing. to pur- sue either course it acted at its peril” [ ‘Florente Printing Co. v. N. L. R. B., 338 F. 2d 289, 292 (4 Cir. 1964) }; accord : N. L. R. B. v. Etiot. Williams Co., 345 F. 2d 460\(7 Cir. Waitt a iy: de ees ait halal LD, NA Tags aati il eT beats Hebert, Pe ee Ted tena bere Ded ‘ . . P i er Peer Bw a ook PA wt Na OE BOREL 9 ch TR IL A DOE LOS eA Re 8 LS peels cme S - 7 e . | ee teste tp lec scr is x 1965) ; see N. L. R. B. v. Remington Rand Inc., 94 F. 2d 862, 869 (2 Cir. 1938), certiorari denied, 304.U..S. 576, 585, 58 ‘ _§, Ot. 7046 (1938)]. In-N. L. R. B. v. Overnite Transporta- tion Company, 308 F. 2d 279 (4 Cir. 1962); the Fourth Circuit said [at 283]: | " If the company * * * sincerely doubted the union’s - majority status, it could have challenged the union to substantiate its claims by checking: the union cards against the payroll or by requesting the Labor Board - to hold a representation election as is-its sight under section 9(c)(1)(B) of the Act, 29 U. S, C. A. § 159(c) _ (1)(B) (1956). But the company may not now claim that it has a right to such an election after having first attempted to defeat the union by means of conduct violative of sections 8(a)({1) and 8(a)(3). Such a rule would encourage employers to commit unfair labor practices rather than promote the fredom of employees to decide for or against a union in an atmosphere free from restraint or coercion: The Court’s pré-Legen interpretation of the effect of Section 9(c)(1)(B) upon Section 8(a)(5) is manifestly correct™, inasmuch as that section was designed to afford : an employer who doubts a union’s majority ‘status the right to have the Board determine whether the union does in. fact represent a majority of its workers.’ Section: 140. Both Florence Printing, op. cit., and Overnite Transpor- tation, op. cit. are pre-Logan cases. No observable change. in the law or Congressional intent has rendered the words of the Fourth Circuit prior to Logan less true today.” 141. It should be noted that the right to designate a bargaining representative and to be represented in collective bargaining is a © right granted to the employees. This statutory right cannot be extinguished by the naked assertion of’ an employer that a majority of his employees have not designated a union to represent them, when indeed they had. 142. Senator Taft, in respect to the employer petition, dia: “*Today an employer is faced with this situation. A man comes into his office and says, ‘I represent your employees’ * * *. The em- ployer has no way in which to determine whether this man really does represent his employees or does not. The bill gives him the ‘Tight to go to the Board under those circumstances, and say, ‘I " >. - + “s ae > , : « ~ a ores Sos rea a al cae ie adda a: » Piaget > rate ie CE 72 | 9(¢) ( 1) (B) also’ provides a means to an dentine to avoid . illegally recognizing a union which does not in fact repre-. sent 4 majority of his employees. Thus, when Congress in 1947 granted to an employer the right to file a petition for an election it accorded him safe passage between the Scylla of a violation of Section 8(a)(2) and the Charybdis of a violation: of Section 8(a)(5). when he is confronted with a request for recognition | predicated upon.a claimed au- : thorization card majority. Cf. United Mine Workers -v.-— Arkansas Oak Flooring Co., 351 U. 8S. 62, 72, n..8, 76 S. Ct. 559, 565, n. 8 (1956) with International Ladies’. Garment Workers [Berthard-Altmann] v. N. L. R. B., 366 U. S. 731, . _ 738-740, 81 S. Ct. 1603, 1607-1608 (1961). It thereby granted ‘an’ expeditious election option™® to the. employer who - want an election. I want-to know who is the bargaining agent for " my _employees. >’? 93 Cong. Rec. 3954 (daily ed. April 23, 1947), -II Legis. Hist. LMRA, 1947, p. 1013. Another strong proponent of ‘the Taft-Hartley Act, Senater Ball, in reference to Section 9(c)(1)(B), said: ‘‘One such right (given to employers] is the right to petition the National Labor Relations Board for an elec- tion to determine the bargaining. representative of an employer ’s workers, whenever one or more unions present to the employer a demand for recognition as representing the employees a ° a 7 . _ (4) (4 ) to engage in, or to induce or encourage [the employees of any employer] any individual employed . 3 a ‘by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a [con- certed] refusal in the course of. [their] his employment to use, manufacture, process, transport, or otherwise \ handle or work on any goods, articles, materials, or commodities or to perform any services [,]; or (M1 1) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— (A) forcing or requiring any ‘employer or self- employed person to join any labor or employer or- ganization [or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ;] or to enter - into any agreement which is prohibited by section + 8(e); : | -(B) foreing or requiring any [any employer or other] person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufac- ~, _. turer, or to cease doing business ‘with any other person, or forcing or requiring any other employer - to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the rep- ., " resentative of such employees under the provisions —_ of section 9 [;]: Provided, That nothing con- tained in this clause (B) shall be construed to . make unlawful, where not otherwise unlawful, any A primary strike or primary picketing ; | (C) forcing or requiring any employer to recog- - nize or bargain with a particular labor offaniza- tion as the representative of his employees if e “ ‘ - . ‘ ee. . ' another labor organization has been certified as . the representative of such employees under the provisions of section 9; (D) forcing or requiring an¥ ‘asians 2 to as- _ sign particular.work to employees in a particular. -. labor organization or in a particular trade, craft, or class rather than to employees in another labor - organization or in another trade, craft, or class, _ unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees per- forming sueh work: \ : Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any per- son to enter upon the premises of any employer (other ’ than his own employer), if the employees of such employer. are engaged in a strike ratified or approved by a represen- | tative of such employees whom such employer is required to recognize under this Act: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, 4 other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor 4 organization, that a product or products are produced by ; an employer with whom the labor organization has a pri- mary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the pri- mary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to per- form any services, at the establishment . the — engaged im such distribution: ® . * e a * ( 7) to picket or cause to be picketed, or threaten to picket or.cause to be picketed, any employer where an ° ee Be es ns mie al object thereof is forcing or requiring an employer to recogmze or bargain with a labor organization as the representative of his employees, or forcing or requir- ing the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization 4s cur- rently certified as the representative of such [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0029%3A12. Public record. Not legal advice.