# Respondents 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%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 575 ## Text LIBRARY | FILED MAR 13 1969 “IN THE - JOHN _F.BAVIS, CLERK ‘Supreme Court of the United States : Pettis TERM, 1 1968 pasta ae No. 573 & N. ATION AL ‘LABOR RELATIONS BOARD, - Wt eee Petitioner ~ GISSEL PACKING COMPANY, INC., ET AL. 7 ; and | ee oie. ig | No. 691 - “FOOD STORE EMPLOYEES UNION, LOCAL NO. 347, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH - AMERICA, AFL-CIO, = - Petitioner | Sri sf Sy Wo: Sage GISSEL PACKING C0., INC. On Writs Of Gértorert To The United States Court _ Of Appeals For The Fourth Circuit Brief For Gissel Packing Co., Inc. — -. . Joun E. JEnKuns, Jz. ae | CO. Rosert SoHAvB 3 “Counsel for Respondent et . Gissel Packing Coi, Ino. Jawxins, SOHAUD & FENGTERMAKER ee = 500 Kelly-Hatfield Building ~ Soest, Huntington, W. Va. - » Of Counsel — "PARSON PTS. CO., HENTINGTOR, U. Va. 5 eg | - INDEX ° es ; ' Page. Statement of the Case - | . ; 1 - Summary of Argument si 3 Argument wen 5 ( I. An Employer is not Obligated to Bar- gain with the Union Solely on the Basis of Authorization Cards Allegedly — by a Majority of Employees pele ciacatg 5 II. Authorization Cards Are an Unreliable - -Indicator of an Emiployee’s Actual Pref- erence as to Representation by a La Organization dateptatarieiiatd 9 a III. The Board Failed to- Suitele its Burden of Proof that Respondent Had No Good_ ‘Faith Doubt as to the Union’s Majority Status __. — 16 (a) Alleged Section 8(a) (1): Violations 17 (b) Alleged Section 8(a) (3). Violations 20 2? (c) The Board, through its Trial Ex- -aminer, Attempted to Substantiate a Preconceived Conclusion — -. 21 co (d) There is No Basis For Failure to Hold an Election to Determine the True Desires of the Employees ae 26 Conclusion eas | | ’ 29 ee CITATIONS Cases: Aiello Dairy Farms, 110 NLRB 1365 a. B- ,* Davis Wholesale Co., 165 NLRB No. 39, 165 NLREB No. 30, 166 NLRB No. 119 ............ 2, 28 . Lane Drug Co. v. NLEB, 391 F.2d 812 (C.A. 6) 12 NLRB v. ‘Dan Biver Mills, Inc., 5th Cir, 1960, 274 F.2d 381 | \— 24 NLEBB v. Redin Fair, Ine., 6th Cir, , 1968, 399 Baa : ae a | NLEB Cia ic Corporation, 341, 2d om (Oa 2) ae ie NLRB v. H annaford Bros. ad’ 1st Cir., 1968, 261 F.2d. 638 : 24 Or _,’ NLBB +. 8. 8S. Logan Packing Company, 4th ‘Cir., 1967, 386, F.2d 562 .. ace accuere : NLEB v. Sehon Stevenson & Co., ‘4th Cir.; 1967, . 386 F.2d 551 .. soli 2, 28 Textile Workers Union v. NLRB, 2d Cir., 1967, 386 F.24.790 +... pa sindeens The Baltimore & Ohio: R. ite v. Aberdeen & Rockfish R. Co., ........ US. 5 ene Oe Ee scabies i..Jbd.2d 219 (1968) ; 26 li .- .*. Ne Se RR SRR eR nme et Rae a ee oe Umted Mine Workers of America v. Arkansas ’ Oak Flooring Company, 351 US. 62, ” 8.Ct. ‘559, 100.L.Ed. 941 (1956) .. . 5 Wareson Steel Corp. v. NLRB, 7th Cir. , 1967 , a 1): elaidaiiaisnipen .. 20 -Wasau Steel Corp., 160 | NLRB 635- 5 (1966) enforced 377 F.2d 369 (7th Cir., 1967) .......... 9 Statutes: 1) N abltinal Labor Relations Act,. as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. 88 151, et seq.): “ a ae 10, 17 Section . ee: cs 17, 24 Section 8 (a)(8) _._- 9, 16, 17, 20, 24 Section 8 (a) (5) Reais sain ngeeenne Ty 9,17, 26 Section 9 (a) _..- ae 7 / . Section 9 (@) 6, 8, 9, 15 Section 10 (c) . oe 16 National Labor Relations” Act, ‘(Wagner Act) 49 Stat. M9: 3 Section 8 (a) (5) ; 6 Section 9 (a) £. plerceriens i. Section 9 (c) 7 , i 6 - Miscellaneous: . a. . | , 98 Cong. Rec. A287 (daily ed., May 13, 1947) . 93 Cong. Ree 3954 (daily ed., April 28, 1947) 7, 8 111 Cong. Ree. 15124 | eae : 115 Cong. Ree. 591 (daily‘ed., January 21, 1969) 16 - HR. $020, 80th Cong,, Ist Sess, (1947)... 7 H.R. Conf. hus. No. 510, oma Coie, 1st Sess. » (1947) | Ss 2 \ \ S. 426, Bist Cong. Lee a Oodaimesit, Union Authorisation Cards, 7 5 Tua. re L. J. 805 (1966) - bee 1 RE Aa 6, 7 :* 13 NLEB Ann. Rep. (1948) . cones 8 Thirty-sedond APnual Report of the National . Labor +Relations Board (1968) alii 11, 23 “APL-CI 0 Guidebook for Union Organizers Ee ane RCo xcs .. 5 1962 Pneniaden, SECTION OF -Lasor _ tions Law, AMERIOAN Bar. AssociATION cnspeeee 12 ere oa > -_ ‘ EIR 28S ANN OR POUR eS a on een Te a a Ee Be niet SARTRE BOT 7 IN THE Supreme Court of the United States | : OCTOBER TERM, 1968 : - No. 573 NATIONAL LABOR a BOARD, ; Petitioner v.. | | GISSEL PAOCKIN G COMPANY, ING,, ET AL. | cs and ‘ a 3 “No. 691. | -* FOOD STORE EMPLOYEES UNION, LOCAL . NO. 347, AMALGAMATED MEAT CUTTERS: AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Petitioner ‘ve can 3 _ oo £ huseuan PACKING CO., INC. On Writs OF Certiorarit To The U' nited/States Court At Of Appeals For The Fourth Circutt . Brief For Gisee aye Co,, Ine. STATEMENT OF THE CASE | On January 22, 1965, petitioner union notified Gissel Packing Company that the union represented. ‘a majority of “eligible employees”. The letter did not request bargaining, but indicated that it confirmed a prior telephone conversation of that same day in which recognition and bargaining were requested. (G. C. Exh. 2, R13, 232). The company promptly re- Fo . — . gexges. Se SRI Oe, 1 fle We te preter Lice SRN game eh Peer RHO HAS HORII SOLED ELLE ALE IA ELE LIL GSN SE MILNE EEE INL TORE AO) “ LTR OT DR ED : = sag gps gush : 3 a ri - pited to this letter sistas its refusal to recognize the union because the company felt a majority of employees were not represented. This letter men- ‘ tioried an earlier election conducted by the National Lahor Relations Board in which the union also con- tended that’ it represented a majority, but subse- quently lost the election. The letter also mentioned that the union had made no current attempt to se- -: Cure an election under fair and honest circumstances. _ (G. C. Exh. 3, R14, 233-234). On February 11, 1965, an unfair labor practice charge alleging refusal to _ bargain was filed by the union; beginning proceed- re . ings ae to the Present cause. Within the same general span of time, this same union was also involved in organization campaigns with other employers, leading to actions by the Na- _ tional Labor Relations Board so close in activity, charge, testimony and finding-as to strongly sug- gest, more than chance. The attempt at organization of Gissel Packing Company was but one minor phase of an extensive campaign aimed at several victualers in the general area. It would be beyond the scope of imagination that the employees of these scattered firths all and at the same time approached the union. _As illustrations, «see the following cases, involving this same union in the same span of time: NLRB v. S..8. Logan Packing Company, 4th Cir., 1967, 386 F.2d 562; NLRB v. Sehon Stevenson & Co.,.4th Cir., 1967, 386 F.2d 551; and the Davis Wholesale Co. cases, 165 NLRB No. 39, 165 B 40, 166 NLRB No. 119, now pe befo / United States Court of Appeals for the District a Columbia ce Circuit as Cases Nos. 21 155, 21,244, 21,787, 21 788 and 21, 789. SUMMARY OF ARGUMENT The actions of the National Labor Relations Board in accepting authorization cards as presump- © ' tive or conclusive proof of a labor organization’s majority. status, and the concomitant duty of an employer to bargain based thereon, are contrary to the intent, purpose-and language of the Taft-Hart- ley amendments to the National Labor Relations Act. | 3! Although the Board has generally recognized as theory that a good faith doubt on the part of anem- | ployer is an adequate defense to a refusal to bargain charge, in practice it has improperly based refusal to bargain findings qn unconnected findings that violations of sections 8(a)(1) and (8) of the Act negated the employer’s good faith doubt. ) This general scheme of activity has atin in the mentioned treatment of such cards as presump- tive, despite the widely known and accepted unre- liability of authorization cards in the determination _ of an employee’s actuat desire. In so doing, the employee has been caused by -- the Board to become a forgotten man and the con- cept of labor-management relations has been char- acterized for all realistic purposes by the Board as a field of battle where the only interested —— are the unions and employers. . The instant case is a clear example of the Board’s: activities and bent. There is an open and obvious predilection by the Board to foster recognition of unions without regard to the rights of employees to express their wishes. The Trial Examiner’s findings on which.the order is based reflect that the burden of proof was not sustained by the Board’s counsel, that the burden was in fact shifted to the employer, . and that the entire hearing process was so lacking i in _ impartiality as to .render ‘valueless the minirnum re- _ quirements demanded by the Administrative Pro- cedures Act. ; oe NaS atte The union here involved was engaged i in organ- izational activities in several businesses in the area, and had attempted to organize in years past. The: . union’s predilection for overstatement was known to | respondent in fact as well as reputation, since the . game union had previously claimed majorities in sim- ilar businesses and to this same respondent; but sub- sequent élections belied the claim of majority. This affirmative basis for the employer’s doubt was given scant consideration in favor of conjecture and speculation by the trier without reasonable basis - on the record taken as a whole. The action of the United States Court of iit for the Fourth Circuit on the issues here involved was proper and should be affirmed. ? oy . ARGUMENT - | - An Employer is not Obligated to Bargain with the Union Solely on the Basis of Authorization Cards Allegedly Signed by a Majority of Employees — = It should be noted at the outset that the National Labor Relations Board and the petitioning, union - rely in large part upon a prior decision of this Court, United Mine Workers of America v. Arkansas Oak Flooring Company, 351 U. 8. 62, 76 S. Ct. 559, 100 L.Ed. 941 (1956). In that case, however. this Court stated, at Footnote 2,351U.S.68: == § =: © . Accordingly, we do not now con- © sider the questions that would have been presented if the union or the pickets had represented less than a. majority of the eli- - gible employees, or if there had been a bona fide dispute as to the existence of authoriza-_- tion from a majority of the eligible em- ployees. [Emphasis added]. It appears clear that in the insiideiciadaatitie 34 years since passage of the Wagner Act, there has been a growing tendency on the part of the National Labor Relations Board to foster recognition of un- — ions. In recent years, the Board has diverged from its previous position of generally holding elections when requested, to the present situation wherein the use of authoriaztion cards has come, by and large, to substitute for the elective process unless two ‘unions are competing for recognition. 5 zIn 1935, an employer was: first required ~ oe bargain collectively with the representatives of his employees.” National Labor Relations Act, Section 8(a) (5), 49 Stat. 452 (1935). There was a require- ment that, the representative be designated or se- lected for the purposes: of collective bargaining by a — majority of the employees, but there was no specific manner in which determination was to be made as to whether or not a majority of employees wanted such representation. The Wagner Act allowed the NLBEB to. “take a secret ballot of eniployees, or util- ize any other suitable method” to ascertain such representatives. National Labor Relations Act, Sec- tion %(¢), 49 Stat. 453. (1935). x In 1947, the Taft-Hartley Act revisions to the TY NLRA were passed. The Taft-Hartley Act,.a8 passed, did not amend Section 8(a)(5) and Section 9(a) was largely unchanged. Section 9(c), however, was — completely revised to allow, for the first time, a pe- tition by an employer when only one union was requesting representation, and to’ provide | if “a question of representation exists, it [the Board] shall direct an election by secret ballot and shall certify the results thereof.’’ Thus, the Wagner Act language . allowing other forms of determination was stricken. ~ This change is discussed in NLRB v. S. S, Logan Packing Company, 4th Cir., 1967, 386 F. 2d 562. See also Comment, Union Authorisation Cards, 75 YALE L J. 805, 820 (1966). 7 » The proponents for the determinative use of | authorization cards, as stated at _ length in 6 a i at ae 4% Sp re eRe aes OR SEL ROUTAY LEA GLE SLA IE AIG FN 0 OL OLLI ONS AGB PILI PR LOREEN ET LOGIC L6G ao —_ . . o ws08 ean — _——- - ‘ Petitioners’ briefs in this matter, attempt to rely on the fact that there was no change in Sections ~~ (5) or ga: under Taft-Hartley. . 4 "it should be recognized, however, that the orig- inal House version (Hartley) of the bill, as reported by the House Committee on Education and Labor, would have amended Section 8(a) (5) to read that it would be an unfair labor practice for an employer . to. refuse to bargain collectively with the repre- sentative of his employees currently recognized by | the employer or certified as such under Section 9.” ; H. R. 3020, 80th Cong., 1st Sess. 21 (1947). After . : passage of the Senate version, the usual conference committee was appointed to reconcile differences. In. that conference, the Section 8(a) (5) House amend- ment was dropped, with the later erroneous indica- | tion in the conference report that neither the House bill nor the Senate amendment had changed any . provisions of Section 8(a) (5). H. R. Conf. Rep. No. - 510, 80th — Ist Sess. 41 (1947). This erroneous presentation has a tat a The reason for union reliance on any method of gaining recognition other than through fair choice _is apparent when it is found that in fiscal year 1967, the latest for which figures are available, 7,882 elec- _tions were conducted by the Board, and four out of teri were lost by unions, Of the 7,882, 4,722, or 60%, “were won by unions, including elections where: the essential choice was between rival unions. Chart 12, Thirty-second Annual “tiga of the N ational Labor, Relations Board angle _. Doubt as to the ‘validity ef authorization cards - | has long been present. For ee then Board, °: oI A t in 57 elections where ~~ unions presented authorization ‘from over 70% of the employees, they won 43, or 75% of them; thus, ‘unions lost one in four elections. where eqmployaes oe were given a.free choice, even though their card- .. based apparent approval would indicate that a lost election would be a statistical rarity. 1962 PRocrEp- INas, SECTION oF LABOR RELATIONS ] Law; AMERIOAN | | Bir ASSOCIATION 14-17. 7 “The Fourth Circuit is not the sole. dive: to recognize the deficiencies inherent in authorization . eards.:'The Sixth Circuit, in N.L.R.B. v. Fashion . - Fatr, Inc., 6th Cir., 1968, 399 F.2d 764, quoting with approval Ahe Second Circuit, said _ As both the Courts and the Hoard: recognize, _ the use ‘of authorization cards is a ‘‘notoriously . ° ‘unreliable method of determining the ‘Majority . status of'a union.” N.L.R-B. v. Flomatic Corpo- - ration, 347 F. 2d 74 (C. A. 2). (Other citations omitted)... .. to base a recognition and bar- _ gaining order on such questionable procedures “ il in “strong medicine to be used only ‘with re- - abeatad? Lane Drug Co. Vv. N.L.R.B. 391 F. 2d 812 (C. A. 6). The Board, 3 in its brief, attempts remove ‘the plaguing quotation from: Flomatic Corporation from * consideration by indicating that the comment applies only: where two or more unions are competing for the ‘employee. This reasoning would appear to be ill- founded, for under such circumstances, there are at a De ? ok least competing organizations to chéck one another’s activities. In the single union casé, the reliability would be substantially less, for usually — as in the present case — authorization cards are sought quietly and. the first indication to management of such ac- tivity is the demand for bargaining. - There is, of course, a difference in the standards . _ applying to use of cards and the circumstances sur- . ‘rounding elections. The Fourth Circuit has recog- nized this in its landmark N.L.R.B. v. 8. S. Logan . ‘Packing Co., 386 F.2d at p. 564 et seq: . .. . It would be difficult to imagine a more — utireliable method of ascertaining the real wishes of employees than a “card check,” unless it were an employer's request for‘an - open show of hands. The one is no more re- — ee liable than the other. No thoughtful person — lias attributed reliability to such card checks. This, the Board has fully recognized. So has the AFL-CIO. [footnotes omitted] v ’ * a : ee i : A 6 The. unsupervised: solicitation of au- thorization cards by union is subject to all _ of the criticisms of open.employer polls. It is well known that many people, solicited alone and in private, will sign a petition and, ~ later, solicited alone and in private, will sign.. an opposing petition, in each instance, out of concern for the feeling of the solicitors and the difficulty of saying “No.”. This inclina- tion te be agreeable is greatly aggravated in the context of a union organizational cam-. paign when the opinion of fellow-employees | e aie , 13 . et are cin ten tins ta ann et inten aatrtaaantt Oe artenn atte et et Me ENE SE LE OE IL SS ROE Le ee ee EIS ED Ee ne Lad us =: and of ‘potential ‘poviedtal union organ- _izers may — sgl in the balanice. — re eer -.8 * . Without adequate supervision, solici- _ tors of authorization cards may resort to 4 wide variety of other threats. Discrimina- . tion in the exaction of initiation fees is fre- quently encountered, and, particularly where untrained fellow-employees are ‘ as solicitors, use of threats of discrimination | against non-signers in the compilation of. _ seniority rosters and other conditions of em- ; ployment may be a strong temptation. 7 ‘The unreliability of the cards is not de- Son ‘pendent upon the possible use of misrepre- _ Sentations and threats, however. It is inher- ent,-as we have noted, in the absence of se- © ~. .erecy and in the natu; ral inclination of most people to avoid stands which appear to be — _ -nonconformist and antagonistic to friends and fellow employees. It is enhanced by the. ‘ fact that ‘usually, as they were here, the. cards are obtained before the employees are _ exposed to any counter argument and with- . out an opportunity for. reflection or recan- tation. Most employees having second thoughts about the matter and regretting having signed the card would do nothing . about it;in-most situations, only one of rare strength of character would succeed in hav- ing his card returned or destroyed. Cards - are collected over a period of time, however, and there is no assurance that an early 7 er is still of the same mind on the cru- | date when the union delivers ite bargain- rm demand. 7 14 ’ ee + ° | For such reasons, a card check ia not a reliable indication of the employees’ wishes.- | _ [footnotes omitted é The unreliability of Sutiaebiabicn cards. has been recognied by the AFL-CIO in the oft-quoted remark from the AFL-CIO Guidebook for Union ee xpath that: / / NLRB pledge pare are 6 at ae a signi- fying of intention ata given moment. Some- -. - times they are signed to “get the union off : ~—— Cf. ee union’s brief at p ° j ~~ - Counsel for the’ petitioner union has inched a as : a part of its. sipplemental appendix, p.' 41, Senate. . Bill 426 as introduced by Senator Fannin in the cur- rent 91st Congress. Senator Fannin’s comments on two occasions indicate his thought that Section 9(c) of the Act is being ignored by the Board in its at- tempts: to_justify-authorization card ‘recognition. In - 1965, Senator Fannin introduced S. 2226, with the _ following remarks at 111 Cong. Ree. 15124 (1965) “Reliance on 1 card checks instead of Se eret ballot elections by the National Labor : —— Board is increasing. If it is not’ slowéd pealed . The Board’s recent thinking ~ seemis to be that authorization cards are a true and valid indication of employee de--~ | sires. This is hot 80.” wn, Section 9—election machinery / ; —and 8(c)—free speech—may as wellbere- “ ° In ee the current S. 426, Senator Pas "sed ee FP canara en cts were pms tesa gum De EP et GN MI Te AON Les I CRAG TLE LES OLE LEE BIEL S LALA LAL EL LLL ELLIE, LIES ee POS SE IO ln aeaibon th deme: Giat: be Sea eating trom. sym _ pathy for employers, but to safeguard the laborer inf 115 Cong. Rec. 591 (daily ed., January 21,1969) : i “These bills are the same as those intro- duced by me in the 90th Congress... Asec- - ond bill would amend the National Labor Relations Act.so as to require a Board-Con- ducted -election in all representation cases. Thus the bill would prevent voluntary. recog- nition of a union by an employer, a practice _ which has led to many ab Lhave always - believed that it is the ight of the worker, | and not his boss or a few union advocates, _ to cast his ballot secretly for or against un- .. Jon representation. +3 a ‘The Board Failed to Sustain its Burden of Proof _ that Respondent Had No Good Faith Doubt as to the Union’s Majority Status ar The Board has the burden of proof in any pro- ceeding and, as set forth in Section 10(c) of the Act, taken the Board shall be of the opinion that any per- son named in the complaint:has engaged in or is en- gaging in any such unfair labor practice, . ..,”’ ~~. Board may issue an order or take affirmaive action. . In actual practice, the Board assumes a good ~ faith doubt is not present when bargaining based on authorization cards is requested. The Board’s po- - gition is that a violation of Sections 8(a) (1) or (3) If updén the preponderance of ‘the testimony - ———_ nt. DE be a Lat of the act also negates good faith -under Section | 868) (6). . ‘ Determination of the charges originally filed in ‘this cause rested initially with a trial examiher, whose findings were adopted by the Board. Respond- - ent believes that discussion of the findings of viola- _ tions of. Sections.8(a) (1) and 8(a) (3) is relevant here since the finding as to the 8(a) (5) violation is based principally on the other findings. 2 (a), Alleged Section 8(a) (1) Violations Section 8(a) (1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees i in the exercise of the rights guaranteed i in Section 7’. Section 7 pertajns to the rights of employees to engage in-or: refuse to ; engage in labor union activities. The trial examiner found that some ine acts violated Section 8(a) (1) of the Act. (R pp. 284-286). Of these, nine of the specific incidents are alleged statements made by Charles Gissel. Of the remaining two, one is a statement made by Herbert Gissel and, _\_: the other is-the-presence of Terry Lewis, a member ~ of the Gissel family, at a hotel where the labor union had called a meeting. In general, respondent aisha it would serve no : useful purpose to discuss in detail the testimony res lating to the statements allegedly made by Charles - Gissel and Herbert Gissel. In the usual Board man- 17 . . ot. ~ a PELLICLE AEE ALEM IIA EYEE PAIN SLE AD EY PT hy " ner, it is carged that certain isolated. statements were made over a period of several months: time, without Mentifving them in the original complaint. ‘In the p t. case each of the alleged statements . were effectually denied by the Gissels.. The trial examiner nevertheless uniformly credited the testi- mony of board witnesses and discredited testimony. of Company witnesses. This uniform crediting shee Ce _be discussed, below, in more deta.” eae ss ‘Tt should be noted, however, that this Colapany ‘ be ni had been involved in labor r proceedings with the same — Union some _ or to the present’ campaign, and had been specifically aware of the minimal state- _ments required for the Board to allege 8(a) (1) viola- _ tions. It-would be contrary to reason that Company re who worked side by side with employees ‘inake the ee statements with this a edge xX ” There is, however, one incidént: which should be discussed. This is that designated as No. 9(R 286), a relating to the presence of Terry Lewis at the hotel ~-on April 17. Terry’ Lewis is the nephew of Alfreda , Closterman, a company official. His mother is a . member of the Gissel family. It is not denied that he was present at.a hotel where a union meeting was to be held. He was a part-time employee of Gissel — ‘Packing Co., but primarily a high school student, and had seen a notice addressed to all employees. He - went into a telephone booth, called his girl friend, and his aunt. The trial examirfer, in an obvious at- “ “. ‘tempt to justify her conclusions, relied heavily upon the mere presence of Terry. Lewis at the -meeting ee o in finding ultimate violations. (R 294) Her. state- - so important as to be well‘nigh conclusive: Terry Lewis, as a part-time employee, not supervisor. or official, was within the bargaining unit and would _ have been entitled to vote if an election were held. " (See R305, twelfth name). He had a right to be present at the meeting, and was within the definition’ of ‘‘all employees’ in the posted notice of the ati ) ing. (R tas text. Indeed, as shown above, in many instances she relied upon alleged facts and convictions which were non-existent. . Respondent further . believes that the Siti and conclusions made as a result thereof by the trial ‘examiner were so biased and prejudiced as to render’ impartiality wholly absent, despite the statutory duty of :the trial examiner. Particularly as to the © 8(a)(1) and 8(a) (3) violations, respondent submits that the trial. examiner’s partiality is so clear that a mockery of judicial process has been made, The Board’s finding i “contrary to. the state-. ment of ;the Board, itself; at page 98, Commerce ~ Clearing. House reprod. tidh of the Thirty-second . Annual Report, supra: / ‘The Board has long held that an em- ployer may refuse to recognize and bargain with a union upon its demand for initial rec- | ognition and may insist upon proof of the union’s majority status through election procedures unless the refusal is not based upon a good-faith doubt of. the union’s ma- jority. It is equally clear that.in a case in- volving such a refusal, the General Counsel has the burden of proving the employer's lack of good faith. The cases decided by the . Board during the report yéar inelude a num- ber requiring determination of whether the requisite lack of good faith doubt had been _ ggtablished.-In one Such case, the Board ex- | : cana that: ~ a . the. .2 bi en-of-proof rule is de- . ‘ signed to ass , in implementation of __—. _ Board policy, that an employer who in good faith withholds ‘recognition be- . cause of a doubt of majority, though his — . + . doubt is founded on nv more than a dis- - . trust of cards, may have an election to ~~ resolve that doubt, fe will not be sub- ject to an 8(a) (5) violation simply ‘be- © cause he is unable to substantiate a rea- sonable basis for his doubt. But . . . the _ rule...is only an evidentiary one. which S| be read as dovetailing with, rather - than altering, the long-settled substan- tive principle that an employer may not in the absence of a good-faith doubt re- fuse to recognize a maj ity union. (Citations omitted). The Courts have almost uniformly questioned . the validity of the Board’s reliance on Section ~ 8(a)(1) and (3) violations to substantiate violations of Section 8(a) (95). See, ¢.g., N.L.R.B. v. Hanna- ford Bros. Co., 1st Cir., 1958, 261 F.: 2d 638, 641; Textile Workers Union v. N.ER.B., 2d Cir., 1967, 386 F.-2d 790; N.L.R:B. v. Dan River Mills, Inc., 5th Cir.; 1960, 974 FS 21381; N.L.R.B. v. 8S. 8. Logan : Packing Co., 4th Cir., 1967, 386 F.2d 567,568; Ware- — ‘son Steel Corp. v. N. LR.B., 7th Cir., 1967, 377 F. 2d - 369, 372. The situation here hiatined is almost identical with that’ in S. S. Logan Packing Co., supra. The . Fourth Circuit there said: An employer could not help but doubt the _ results of a card check as an — tion of —. : % the _r of pees bey for sisi is nothing © in the. process. to allay it.Unless the em- ~ ploy r is \extraordinarily goo and_un- a! ative, he will at least’ unreli- | abili in the cards and their si gnatures. If igiigiaieee: ~he-had no honest doubt of the union’s claim mip . of support by a majority of the employees, _it will be because of other evidence known to him, not because of the card check . . Here, of course, there was some prior his- / tory to add to the employer’s doubt of the union’s claim. Four years earlier, the union had claimed to represent a majority of the employees, but, thereupon, lost @ consent — election, the validity of which is unchal- lenged. The proffer of a card check gave the employer .no reason to attribute peste credence to the claim of majority repre- sentation than to the similar claim which the employees refuted in the secret consent election four years earlier, This quotation could be. used intact in the i in- stant case. _ - Here, too, the same union was involved. Here, too, the union had previously claimed « a majority. | oi too, ‘the union’s claim to majority was proven false in the subsequent election. The trial examiner in this case, unlike the Court in Logan, failed to give this direct, affirmative and — factual evidence any weight in her subjective de- termination of the employer’s good faith in its doubt. 25 . - The entire subject of substitution of admin-* — . istrative decisison for judicial process has long been scrutinized and frequently criticized. Recently, an or- der of the Interstate Commerce Commission was set | aside by this Court in The Baltimore & Ohio R. Co. ° v. Aberdeen & Rockfish R. Co.,. ........U.S......... “