# 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%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 575 ## Text - “ be . THE SINCLAR Company, ee : Cs eae Se aint: Lasor RELATIONS, BOARD, a ee Respondent. . Amicus CURIAE BRIEF at MECHANICAL >)» SPECIALTIES COMPANY, INC. | : _ Hit, Faneee & Boren,” Se Ne ~ STANLEY E. TOBIN,” Se a ) a Pho, pce hs s ‘eae s - — c 4 - — - - ———— ~ _ - - a . oe ‘ ’ , — R ° . ‘ e bg . 5 . ; > @ ° ° ° % »& : ° . , | > . . 4 . a © : . ’ ° ° ; a 2 . “ ° : ; . ° ° : “ : ‘ : : c e: ' oe ‘ ’ . s ; ~ - . i | ; a e : ; _ e . a ¢ °° i . . ~ ; Ses « * . ; : 2 j e . _@ . , . 2 \ . ‘ . : : , . . P ‘. ° : i 7 e z SUBJECT INDEX. pe 1. are Interest of the Amicus Curiae and Preliminary State- ; : II. Argument ............-- , sedaainimvndsh A. The Utilization of piitieaitiailiads Cards, if Permitted at All, Should Be Limited to Situa- tions Where Their Validity Has — Been Established -.....-..- | B. The Court Should Establish Guidelines as to Page | When an Employer’s Good-Faith: Doubt of © Union “Majority Status Will Insulate Him From a Bargaining Order .. ee ea ae Conclusion .........--.---- - neti TABLE OF * AUTHORITIES CITED .o Cases © /* Page ‘Atlas Engine Works v v. NLRB, 68 LRRM- 2635 ...... Bauer Welding and Metal Fabricators Inc. v. NLRB, a II ssacnsinenlisialinntinclaiciinenpeiiniccinbinibieeanesiog ; Crawford Mfg. Company Inc. v.. NLRB, 386 F. 2d: 367 cert. den. 390 U.S. BO oc talcatiensicted A, Cumberland Shoe Corporation, 144 NLRB 1268 kg Be enema an DST 4, Engineers and panies Inc. v. NLRB, 376 F. 2d° eis Seen seach ncideclicnsioe splints isciatanatarh beacunettiont Hammond & Irving; Inc., 154 NLRB 1071 anaes International Ladies Garment Workers Union: v. NLRB, a . Sa ae Irving Air Chute Co. Inc., 149. NLRB 627, aff 350 F. 2d 176 ........... secant esis 2 o Levi Strauss & Co., 172 NLRB No. 57 ated McQuay-Norris Mfg. Co., 157 NLRB 1661 ee NLRB v. Dan Howard Mfg. Co., 390 F. 2d 304 .... NLRB v. Flomatic Corp., 347 F.2d 74 -..-sssccccsoossse - NLRB v. James Thompson & Co., 208 F. 2d 743 .... NLRB v. Johnnie’s Poultry Co., 344 F. 2d 617 ........ 3 NLRB v. Lake Butler Apparel eiaitids 392 F. 2d era SE ed AERC ETN, ite OIE ao eC NLRB v. River Togs, Inc., 382 F. 2d 198 aidsleinaielock NLRB v. S.E. Nichols Company, 380 F. 2d 438 ...... NLRB v. Shelby Mfg. Co., 390 F. 2d 595 .............22. NLRB v. Southland Paint Company, 304 F. 2d FM us 3 4. 4 10 . Page NLRB | +. 5.5. nals Packing Asie 386 F. 2d ee icalanacehaianadieid NLRB v. Swan Super Cleaners, 384 F, 2d 609 ....4, NLRB v. The Golub Corp., 388 F. 2d 921 ..... iabiapaeds Peoples Service Drug Stotes, Inc. v. aane, 375 F. 2d __| omen idea chcccadaascaeanmnssiiian Miscellaneous. 3 5 .3 Hearings Before the Subcommittee on Labor of the Senate Committee on Labor & Public Welfate, 89th Cong., Ist Sess. (1965), pp. 92-96 ..........-.- . Rules States, Rule /42(2) ... Statutes : National Labor Relations Act, Sec. 8(a) (1) ........ National Labor Relations Act, Sec. 8(a)(2) ........ } Textbook 65 Michigan Law Review (1967), pp. 851, 855 ........ _ National Labor Relations Act, Sec. 8(a)(5) sss. National Labor Relations Act, Sec. 9 | | Revised: Rules of the oe Court of the United - aro A RS cent OF GRP LD RGN LEE BONER LIL TLL LI AA. EBERLE SE PEN an sete rep es . - . e ° a ~ . . . - ‘ . , . . . Se aE EOE GTP es ree. - IN THE Supreme Court of the United States Cina Term,, 1968 No. (585 THE SINCLAIR COMPANY, , Petitioner, VS. : NATIONAL LABOR RELATIONS BoarpD, _ Respondent. AMICUS CURIAE BRIEF OF MECHANICAL SPECIALTIES COMPANY, INC. - I. INTEREST OF THE AMICUS CURIAE and PRELIMINARY STATEMENT. Mechanical Specialties Company, Inc., is a corpora- tion engaged in business | in the manufacture of tools, gauges, special machines, missile components and nu- clear oa and is located in the metropolitan Los Angeles Caljfornia, area. This brief is filed upon the written congent of the parties and pursuant to Rule 42(2) of-the Revised Rules of the Supreme Court: of the United States. Your amicus is the petitioner in the case of Mechanical Specialties Company, Inc, v. NLRB, Case No. 22,538 now pending in the United States Court of Appeals for the Ninth Circuit, which was argued and submigfed on December 4, 1968. Thereafter on pp arae A ORK AIO ET ER Be pee ® January 9, 1969, the court ‘notified your amicus that its case had been resubmitted pending the decision of this court in the instant case and its companion cases NLRB v. Gissel Packing Co. and Food Store Em- ployees Local 347 v. Gissel Packing Co. Inc., docket No. 573. Because of this action and since the Ninth Cir- cuit case involving your amicus presents issues the same and closely related to those upon which this ‘Court granted certiorari in the instant case it is‘clear that the Court’s ‘decision herein will have a significant bearing on that appeal. Accordingly, the interest of your amicus will be directly and significantly affected. It is the intention of your amicus td ‘devote this brief to. the discussion of two major issues: (1) the propriety of the utilization of authorization cards to gain recognitionaJ. status and (2) the existence of an employer’s “good-faith doubt” of union\ majority status and its effect upon the Board’ S authority .to im- pose a bargaining order. = me. © ARGUMENT. A. The Utilization of Authorization Cards, if Per- _ mitted at All, Should Be Limited to Situations ' Where Their- Validity Has Clearly Been Es- tablished. The initial issue in this case is the éfficacy, if any, which is to be given to union authorization cards when a union attempts to utilize them to gain recognitional status from an employer i in.circumstances where the un- Oz ion has petitioned for, and lost, an elgttion. It is well- — recognized that authorization cards| provide an _ex- tremely unsatisfactory method for -d we jority wish for representation. The National Labor Re- lations Board itself once acknowledged that cards were “notoriously unreliable” (Sunbeam C: orporation, 99 NLRB 546, 550-551 [1952]) and“numerous courts of appeal have subsequently indicated their emphatic agree- merit." Nonetheless this amicus will abstain from argu- ment with respect-to the absolute preclusion of cards as a basis for recognition, leaving that to the ,able briefs of the parties, and will here assume that certain limited . circumstances. may warrant resort to cards rather than a: Board-conducted election. Our point.of emphasis is that the reliance upon cards in lieu of an election is so fraught with danger—to the rights of employees,.em- ployers and to labor relations ,stability—that this Court should not permit their utilization except with clearly - defined safeguards ‘which must certainly be ‘inore rigid than those presently employed by the NLRB. -This'Court must appreciate that the much more com- monly litigated issue. is not whether cards may be used, _ per se, but rather, when may they be resorted to in ‘lieu of the election referred*to in Section 9 of the . _ Act? The. principal factor in determining the propriety , 3 : 1In addition, in a mémorandum submitted to Senator Javits, former Secretary of Labor’ Wirtz admitted that, “(T]he pro- cedure for determining,a majority wish for union representation by means of cards is uniformly recognized as. less satisfactory than a secret vote in-4n election.” Hearings Before the Sub- committee on Lapor“of the Senate Committee on Labor & Public Welfare, 89th “al Ist Sess., 92-96 (1965). e following cases each involved this issue: Atlas Engiwe Work? v. NLRB, 68 LRRM 2635, certiorari C.A. 6, No. 598; Engineers and Fabricators Inc. v. NLRB, 376 F. 2d 482 (Sth Cir. 1967); NLRB v. ¥.E. Nichols Company, 380 F. 2d 438 (2d ” Cir’ 1967) ; NLRB v. The Golub Corp., 388 F. 2d 921 (2d Cir. 1967); NLRB v. S.S. Logan Packing Company, 386 F. 2d 562 (4th Cir. 1967); Crawfgrd Mfg. Company Inc. v. NLRB, 386 (This footnote is continued on the next page) ~ hi iu ” o utilizing a card to ‘establish ‘majority .status is its | validity—does it truly reflect the desire of the em- ployee who signed it? In each of the decided cases cited in the preceding footnote the Courts of Appeal | | : _ reversed a Board finding that a union was entitled to recognition based upon an authorization card show- sie ing where the evidence demonstrated that the cards were: obtained through misrepresentations, direct or indiréct, - to their “purpose: and therefore could not be con-~ sidered an unequivocal grant of authority from the em- | _ployees to the union. .A plethora of litigation has been caused by the Board’s appiication of .a totally unjusti-_ ) . fied and: inequitable - rule in ‘judging the validity of cards. .That rule, first articulated in the Board case . the\Board ° will accept at face value the language of “cards signed by employees as to their intention to desig- ‘nate the union as their. bargaining representative, un- less and ‘only Mess, union ‘solicitors of the cards have misrepresented. their: muepeue by asserting that the cards were to be | taining an election. \- , - While the Cuduberland rule is. not directy | before this Court: in the instant or com nion cases it must cer- F. 2d: 367 (4th Cir. 1967) cert.den..390 U.S. 1028;- (1968) ; ‘ NLRB v. Lake Butler Apparel Company, 392 F. 24:76 (5th Cir. 1968) ; NLRB v. Swan Sidper Cleaners, 384 F. 2d 609 (6th'Cir. 1967); NLRB v. Shelby | ig, Co., 390 F. 2d 595 (6th Cir. 1968); NLRB v. Dan How Cir. 1968) ; Bauer Weldirtg an 358 F. 2d 766 ¢8th Cir. 19 Company, 394 F. 2d 717 (Sth Ci . “Ninth” Circuit Court. of Appeals, . vhanieat Specialties fas v. ‘\ NLRB, No. (Bass and NLRB Vv. | No. 21,949. - etal Fabricators. Inc. y. NLRB, of Cumberland Shoe Corporation, 144 NLRB 1268 . 964), aff'd 351 F. 2d 917 (6th Cir. 1965), is that ed “only” or — for purposes of ob-, d Mfg. Co.,. 390 F. 2d 304 (7th . - NL RB v. Squthland | ‘Paint | | wilion . tainly be dealt with if the Court decides that cards may support a claim for. ‘recognition.. The Board’s “blind”: approach to:the validity of cards has been rejected by almost all courts confronted with the question. Cards ‘should not be permitted in those cases where the evi- dence is that their purpose was misrepresented. The ‘Boards rule allows a union with impunity to mislead by omission, innuendo, subtlety, inference and implica- tion. By silence the union at critical times permits em- -ployees to believe that only a union election victory © could bring about unionization. By innuendo, the un- ion may skillfully lead employees to believe that the — cards may be utilized only to obtain an election; by sub- tlety in‘ its choice of words, the same unjust result can. be brought about; by constant harping about the im- pending’ or ‘inevitable election, the deceiving -point is achieved; and by union conduct inconsistent with the language in the card, employees are led “down the prim- ¥ese path. _Even the Sixth Circuit itself/has recognized that the Cumberland rule, which it had originally affirmed, can- not be rigidly applied and has retreated from its former position. In NLRB v. Swan Super Cleaners, 384 F. 2d 609 (6th Cir. 1967), that court declared that any lan- . guage calculated to lead an employee to believe that a . holding of an election is all he had signed for is suf- ficient to invalidate all cards solicited.under such mis- representations. But to date the Board has never ex-. pressly rejected Cumberland, nor: the idea that there is no misrepresentation unless the solicitor “assures” the ~ signer that the only purpose of the card is an elec- tion. See Levi Strauss & Co., 172:-NLRB No. 57 (1968). ‘ ‘ a —h— Assuming that cards may be used, the following ap- proach, which most Courts of Appeal have already _,adopted, is one which we urge this Court to accept and promulgate: because the solicitation of authorization ‘cards by unions is tinsupervised, any representation of — a solicitor ‘misleading an employee as to the purpose of the card should be sufficient to. invalidate it if the im- ‘port of what was said or done indicates that an election is the end sought. Because of the ‘recognized dangers inherent in card golicitation any conduct which sug- gests that signing a card signifies something less or dif- ferent than a direct grant of authority for the union to act as collective bargaining agent for the employees should operate to preclude a union | from claiming a majority based upon those cards, In addition, the Board has shown a marked tendency to reject evidence of the subjective understanding of. em- *. ployees solicited as to the purpose of the ‘card, on a ‘theory akin to the parol evidence rule—that .a‘clear and unambiguous card may notebe contradicted by the con- © temporaneous beliefs of its signers. It is submitted that where the evidence casts a doubt upon.the propriety «of the method of card solicitation, the employees’ sub- sa “ae ean aio! had jective beliefs should be admissible. This is particularly necessary. to avoid injustice where, for example, em- ployees are shown to have a limited educational back- ground, are. unversed in the English language or dem- onstrate by other conduct that their intent in signing the card was contrary to its ‘ ‘plain meaning”. In sum, should this Court rule that unions may base refusal:to-bargain charges on an authorization card ma- jority, either before or.after an election, it should realize that the Board’s past policies have served to aggravate a PORN IR I BPR Nye? PPM LAE EAT PLP RNIN ome Rem ER Bet le NE ORT OTD PM IO DRS AR ty plato ret nae cet “7 . — . + ” . a - “ oonens oe rather than aid in a just solution of the over-all problem and should concurrently delineate realistic standards for determining when authorization cards may, and when they may not be, so uséd. B. The Court Should Establish Guidelines as to When an Employer’s Good-Faith Doubt of Union Majority Status Will Insulate Him _From.a Bargaining Order. The second major issue involved in the instant case is that relating to the right and duty of an employer _ hot to recognize a union on the basis of employee authorization cards either in the absence of the commis- sion of unfair labor practices by the employer or in their presence when at the same time, for one or more of a multitude of reasons, the employer may have pos- sessed a good-faith doubt as to the union’s majority in an appropriate unit. The Board’s present ad hoc pol-: icy of deciding when a good-faith doubt may properly be advanced as a defense to a Section 8(a)(5) charge has lead to ambiguous, inconsistent decisions which have produced patently incongruous and’ illogical results. The stability and predictability of labor-management rela- tions requires that this Court establish understandable and reasonable guidelines as to when a good-faith doubt may operate to preclude a bargaining order and thus clarify this important area of the labor law. A whole series of pie and court decisions establish that an employer is bound\to refuse the recognitional demand of a union if it possesses a good-faith ‘doubt of that union’s majority status. When such a good- ° 3See, as examples, Peoples Service Drug Stores, Inc. v. NLRB, ~ 375 F. 2d 551 (6th Cir. 1967) ; NLRB v. Johnnie’s Poultry Co., (This footnote is continued on the next page) . ~ ° Moe ES, EDIE AE RONEN SEL PLES SERIE TIEE L FELIAE EA MCh NET SLOT RIE ELL LI IO IID EVERIO? | faith doubt exists the employer may insist on a. Board- — conducted election, for if he risks recognition and bar- gaining with a minority union .he. will have violated Sections 8(a)(1) and 8(a)(2) of the Act. : International Ladies Garment W where Union Vv. NLRB, 366 VU. S..731 (1961). Nonetheless, the good-faith doubt defense has too _ often received untoward and cavalier treatment, as ex- emplified in this case, necessitating, it is submitted, a thoroughgoing discussion of the issue by this Court. Your amicus submits the following propositions as rea-. ' sonable and just guidelines for decision where a. union seeks a bargaining order notwithstanding that it has _ lost a Board election : one (1) Even though an employer can produce no objec- tive evidence justifying -his good-faith doubt, that is, where such defense is a mere assertion, no bargaining order ‘should issue i those cases where the employer has not engaged in conduct requiring that the election be set aside. Irving Air Chute Co. Inc:, 149 NLRB _ 627, 630 (1964), aff'd 350 F. 2d 176 (24 Cir. 1965). The reason is that, all things being equal, an election is preferable to cards as an indicator of employee choice. - Where the election is shown to have been fairly con- ducted, it should control, and the good-faith, or lack of | it, on the part of the employer becomes irrelevant, | | (2) Where an employer merely asserts a good- faith doubt, without ‘factual justification, and commits unfair” labor practices during the pre-election period, no bar-. 344 F. 2d 617 (8th Cir. 1965); Hammond & Irving, Inc., 154 NLRB 1071 (1965) ; — Mfg. Co., 157. NLRB 1661 (1966). ; - Fa : gaining order should issue unless there is substantial evidence and a finding that such conduct caused th» loss of the-union’s majority. Undoubtedly, if there is no proven causal connection’ between the unfair labor practices and the union’s elec- | tion loss, then the election has truly reflected employee _ sentiment, employer conduct notwithstanding, and the results should be upheld. (3) Where the employer’s defense of good faith is not accepted and he is found to have committed unfair ‘labor. practices during the critical period prior to the. election which caused a loss of union majority a bar- gaining order should still not issue unless it is proven and found that the nature of the employer’s conduct was so inimical to free employee choice as to permit the authorization card procedures to govern choice of ‘the union rather than a ‘second election. NLRB v. - Flomatic Corp., 347 F. 2d 74, 78-79 (2d Cir. 1965). - On the contrary, where the employer conduct proven is, on its face, or under the evidence, sufficiently minimal so that its effects can be dispelled prior to a ‘re-run election, then such election should be ordered, for again, elections are preferable to authorization cards. The in- stant case should be reversed upon this ground alone. (4) Where the employer has. not merely ‘ ‘asserted” a good- faith doubt, but has produced independent evi- dence substantiating that doubt, his defense may not be overcome by a finding of the commission of employer — 4The Board has stated in McQuay-Norris Mfg. Co., 157 NLRB 1661, 1665 (1966), “It must at least appear that the unfair labor Practices were committed in an effort to dissipate the union’s major- ity, and that the unfair labor practices were in fact respon-— sible for the loss of the union’s majority.” ; _ we unfair labor practices in the period before the election, ‘ no matter how numerous or how aggravated they may — - be. The courts and commentators have emphasized that there is no logic in the view that a good-faith doubt is negated by, an employer’s desire to thwart union-, ization by proper or- even improper means. NLRB v, River Togs, Inc., 382 F. 2d 198 (2d Cir. 1967). NLRB ~ v. James Theipedn & Co., 208 F. ‘2d 743 (2d Cir. ~ 1953). Such efforts are “as consistent with ‘a desire to © prevent the acquisition of majority status as with a purpose to. destroy.an existing majority. wi Lesnick, “Es- tablishment of Bargaining Rights Without an NLRB Election,” 65 Mich. L. Rev. 851, 855 (1967). * ; Therefore, there i is no warrant for a bargaining order. (except to penalize the employer, an aim totally foreign _ to the purposes of the ~Act), unless the Gerteral Counsel of. the Board succeeds: in tefuting the ‘employer’s~evi-. dence of good-faith doubt by other evidence apart from that of unfair labor practices. It must’ always be re- membered that it is emiployees’ rights we are expound- ing. | oF Se III. CONCLUSION. Should this Court decide that circumstances exist which may warrant giving a preference to authorization - cards over a Board-conducted election as an indicator of employee choice, in that event your amicus submits that the limitations thereon ee in this brief be adopted. . : Respectfully submpitted, HILi, FARRER & BURRILL, . ‘ STANLEY E. ToBINe Kyte D. Brown, po Attorneys for Amicus C: uriae. 2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0029%3A14. Public record. Not legal advice.