Brief for the United States — Linden Lumber Division, Summer & Co. v. National Labor Relations Board

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INDEX

Page

- Opinions below. -_________- Tete Faeroe: pas 1

ew 2

ee 2

rn SN i 4

Statement:

A 2m Oba a bein... 5

tee 6 5

cog EES EE cease 9

B. The decision of the court of appeals_____- 11

eee Or Beit 12

Wa eb oe 15

The Board properly concluded that an

employer who has neither prejudiced the

holding of a fair election nor agreed to a

voluntary method of determining the

Union’s majority status need not bargain

with the Union until it has verified its card

or picket line showing of employee support

mea Deetd elotting.... 15

RR oR orca oa Soe EN ea 23

Citations

Cases: é

Aaron Bros. Co., 158 NLRB 1077_______- 18, 23, 27

Abinante & Nola Packing Co.,26 NLRB1288. 17

Acme-Evans Co., 24 NLRB 7], enforced,

Oa Oe Ol. oe a 17

(1)

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Cases—Continued

A. L. Gilbert Co., 110 NLRB 2067_____.___-

Amperex Electronic Corp., 109 NLRB 353___-

Artcraft Hosiery Co., 783 NLRB 333_________

Atlantic Tech. Servs. Corp., 202 NLRB No.

13, 82 LRRM 1467, enforced, 86 LRRM

Bowman Bldg. Prods. Div., 170 NLRB 312__-

Brooks v. National Labor Relations Board,

WO Bile Wea ok ee heen asdnenbuncun

Clermont’s, Inc., 1544 NLRB 1397__________-

Dayton Typographical Union No. 57 v. Na- -

tional Labor Relations Board, 326 F. 2d 634_

Department & Specialty Store Employees’

Union Local 1265 v. Brown, 284 IF’. 2d 619_ -

Economy Food Center, Inc., 142 NLRB 901,

eumoresG: Gee f. 0 408... ..

Excelsior Underwear Inc., 156 NLRB 1236___

Garment Workers’ Union vy. National Labor

Relations Board, 366 U.S. 731___.._._____-

Hammond. & Irving, Inc., 154 NLRB 1071__-

Hercules Packing Corp., 163 NLRB 264, en-

SPC, ee ©. Oe Po sk hc

Joy Silk Mills, Inc., 85 NURB 1263, enforced,

185 F. 2d 732, certiorart-denied, 341 U.S.

i 12, 16,

National iabor Relations Board v. Air Control

Prods. of St. Peterburg, Inc. 335 F. 2d 245__

National Labor Relations Board v. Erie Resistor

COPD, Ue Uk MR os sagen aeenusal on

18, 20

6

III

Cases—Continued Page

National Labor Relations Board vy. Gissel Pack-

sag Ca, RGU. GIB... ow nsec vie 9,

10, 12, 13,14, 15, 16, 18, 19, 20, 21, 23,

24, 25, 26, 27

National Labor Relations Board v. Harris-

Woodson Co., 170 F. 30 TWOo w= 2.5 occ sce 22

National Labor Relations Board v. Insurance

Agents’ Union, 361 US. 477_:.__.--..---- 26

National Labor Relations Beard v. Local 542,

Operating Engineers, 331 I. 2d 99, certiorari .

denied, 379 U.S. 889_ _-_- Ca ae oe as 25

National Labor Relations Board v. National

Seal Cote.g iti 2. MAT 8. Ak oe ew 22

National Labor Relations Board v. Remington

Rand, Inc., 94 I. 2d 862, certiorari denied,

EE ALM ILOLEL GIN CRIS PINT ESL MESS EAR NIRS a mE REN

Te 17

National Labor Relations Board v. River Togs,

De, BBS Pe ek ess Se es es ee 18

National Labor Relations Board v. Riese Mfg.

Co., 414 US. 270_-..--.-------+-------- 30

National Labor Relations Board y. Truck Driv-

oe Cais, 20 USO . 31

National Labor Relations Board v. Union Car- :

bide Corp., 440 F. 2d 54, certiorari denied, 5

UAB oc... SER ee ee 21 oa

National Labor Relations rare v. Virginia uf

Elec. & Power Co., 314 U.S. 469.-.------- 24 E

National Labor Relations Board vy. World é

Carpets of N.Y., Inc., 463 F. 2d 57___----- 22 f

Nation-W ide Plastics Co., 197 NLRB No. 136, ;

St Te PG so ee ee 22

PUI

bash & bee bey

Cases—Continued

Page

New York Tel. Co., 89 NLRB 383...._.__... 21

Pyne Moulding Corp., 110 NLRB 1700, en-

Wp; MBF PO 17

Roanoke Public Warehouse, 72 NURB 1281__- 17

Snow & Sons, 134 NLRB 709, enforced, 308

ee OE i ee 19, 22

Sullivan Elec. Co., 199 NLRB No. 97, 81

LRRM 13138, enforced, 479 F. 2d 1270___- 22

Thomas y. Collins, 323 U.S; 516... ......... 24

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

Pee Oe ee ca oa can incumanwen 17

Wm. Wood Bakery, Inc., 97 NURB 122____- 29

Constitution and statutes: :

US. Constitution, First Amendment_-______- 24

National Labor Relations Acti, as amended (61

Stat. 136, 73 Stat. 519, 29 US.G.-151, et

Woe ee ae cede 2

SN ES canes haw 23 (e

Section Gla)th)... =... kone pee 3, Mg

TO ke eu ce 8

Section 8(a)(5)____- 3, 8, 11, 13, 15, 16, 22, 23, 26, 30

Section 8(b)(7)(C)_____-__- se ae 13, 24, 25

ORR Cs ie cn cwceeus 24

Becton Ota). thes wcuekowne 2, 3, 16

eee OS) a oe 2

CRN IG HS a eae 16, 23

Section 9(c)(1)(A)___--___- envelicnneuuwee 3

CON CCL ae gs oi a cc ae 4, 28, 29

Miscellaneous:

38th Annual Report of the National Labor

23

Relations Board 13 (1973)_------- cnaceae

Miscellaneous—Continned Page

Bok, The Regulation of Campaign Tactics in

Representation Election Under the National

Labor Relations Act, 78 Harv. L. Rev.

O60 (1008) oo aa ee 20

Carney & Florsheim, The Treatment of Refusals

to Cross Picket Lines: “By-Paths and Indirect

Crookt Ways,” 55 Corn. L. Rev. 940 (1970) - 21

Christensen & Christensen, Gissel Packing and

“Good Faith Doubt”: The Gestalt of Required

Recognition of Unions under the NLRA, 37

U. Obi. ti. Bow. 413 CGR ics 18

Comment, Employer “Good Faith Doubt,’ 116

U. Pa. Lc Bev. te Cee). ck. 18

Comment, Employer Recognition of Unions on

the Basis of Authorization Cards: The “In-

dependent Knowledge” Standard, 39 U. Chi.

L. Rew. Sis Ce) a ec 21 .

Comment,. Refusal-to-Recognize Charges Under f

Section S8(a)(5) of the NLRA: Card Checks =

and Employee Free Choice, 33 U. Chi. L.

Siew, BEr TOO) Bok oso oa ox eee eke

Comment, Union Authorization Cards, 75

Yale L. J. SOG OWS; okie es

O6d Coe: Boe. Ge... 28

Lesnick, Establishment of Bargaining Righis

Without an NLRB Election, 65 Mich. L.

Pee BEL CA) as cna ca 18

NLRB Statements of Procedure, Section

101.18(a); 28 CFS 101 IMA). ca ss 6

O'Connor, Respecting Picket Lines: A £

LSAT EP EOS RN MELE SS EE SND ER

aaa

Mg

ne

Union

View, N.Y.U. 7th Conf. on Lab. 235 (1954) - 21

S. Rep. No. 195, 80th Cong., Ist Sess., part 1- 28

PE PRAISE

In the Supreme Gourt of the United States

OcToBER TERM, 1973

No. 73-1231

LinpEN LumBer Division, SUMMER & Co., PETITIONER

v.

NATIONAL LABOR RELATIONS Boarb, ET AL.

No. 73-1254

NATIONAL LABOR RELATIONS BoarD, PETITIONER

v.

Truck Dryers Union Locat No. 413, Anp

TEXTILE WorRKERS UNION

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIUF FOR THE NATIONAL LABOR RELATIONS BOARD

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A,

pp. 23-59)" is reported at 487 F. 2d 1099. The Board’s

'The opinion covers two cases consolidated in the court

of appeals—Zruck Drivers Union Local 413, International

Brotherhood of Teamsters, ete. y. National Labor Relations

Board, No. 71-1529 (hereafter Linden), and Jexrtile Workers

(1)

APT elt OES REE mV si

NEEDS ee tise

2

decision in Linden (Pet. App. C, pp. 54-118) is re-

ported at 190 NLRB 718. The Board’s initial decision

in Wilder (Pet. App. D, pp. 119-159) is reported at

173 NLRB 214, and the decision of the court of ap-

peals remanding for reconsideration (Pet. App. FE,

pp. 160-164) is reported at.420 F, 2d 635. The

Board’s two supplemental decisions in Wilder (Pet.

Apps. F and G, pp. 165-193) are reported at 185

NLRB 175 and 198 NLRB No. 123.

JURISDICTION

_ The judgment of the,court of appeals (Pet. App. B,

pp. 51-53) was entered on September 13, 1973, and

was amended on November 6, 1973. On December 6,

1973, and December 20, 1973, the Chief Justice ex-

tended the time of the Board and Linden, respectively,

for filing petitions for writs of certiorari to and

including Sunday, February 10, 1974. The petitions

were filed on February 11, 1974, and were granted on

April 22, 1974 (A. 53-54). The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

STATUTE INVOLVED

Sections 8(a), 9(a) and (c¢) of the National Labor

Relations Act, as amended (61 Stat. 136, 73 Stat. 519,

29 U.S.C. 158(a), 159(a) and (c)) provide in relevant

part as follows:

Union of America v. National Labor Relations Board, No. 7%4-

1794 (hereafter Wilder).

“Pet, App.” refers to the appendix to the petition for cer-

tiorari in National Labor Relations Board v. Truck Drivers

Union Local No. 413, and Tertite Workers Union, No. 73-1234,

“A.” refers to the separate appendix to the briefs.

. 3

See. 8(a) It shall be an unfair labor practice for

an employer—

(1) to interfere with, restrain, or coerce

employees in the exercise of the rights guar-

anteed in section 7;

ead

* * * * *

(5) to refuse to bargain collectively with

the representatives of his employees, subject

to the provisions of section 9(a).

* * * * *

Sec. 9(a) Representatives designated or selected for

the purposes of collective bargaining by the majority of

the employees in a unit appropriate for such purposes,

shall be the exclusive representatives of all the em-

| plovers in such unit for the purposes of collective bar-

. gaining in respect to rates of pay, wages, hours of em-

ployment, or other conditions of emptoyment: * *-*

—

* * * * * *

(c)(1) -Whenever a petition shall have been

filed, in accordance with such regulations as may

be prescribed by the Board—

(A) by an employee or group of émployees

or any indiv idual or labor organization acting

in their behalf alleging that a substantia!

number of employees (1) wish te be repre-

sented for collective bargaining and that their

employer declines to recognize their repre-

sentative as the representative defined in

section 9(a), or (11) assert that the individual

or laber organization, which has been certi-

fied or is being currently recognized by their

552-707 —74-—--2

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employer as the bargaining representative, is

no longer a representative as defined in. see-

tion 9{a) ; or

(B) by an employer, alleging. that one or

more individuals or labor organizations have

presented to him a claim to be recognized as

the representative defined in section 9(a);

the Board shall investigate such petition and if it

has reasonable cause to believe that a question of

representation affecting commerce exists shall pro-

vide for an appropriate hearing upon due notice.

Such hearing thay be conducted by an officer or

employee of theé'réxional office, who shall not make

any recommendations with respect thereto. If the

Board finds upon the record of such hearing that

such a question of representation exists, it shall

direct an election by secret ballot and shall certify

the results thereof. . es

-

QUESTION PRESENTED eo

Whether an employer violates his bargaining obli=.

gation under the National Labor Relations Act by

declining to accept a union’s authorization card or

picket line indication of employee support and insist-

ing that the union establish its representative status

ima Board election, when the employer has not engaged

in conduct that would preclude the holding of a fair

election and has not agreed to a voluntary method of

determining the union’s majority status.

\

‘

(“the Union”), shtniaod ie twelve a te

f Linden Luriber Division of Summer & Co. (Ling:

| den’’) * signed cards authorizing the Union to repre-

sent open for collective gcd (Pet. og C,

6

Ou February 3, a Board hearing officer held a pre-

hearing confereuce on the Union's representation peti-

tion. During the meeting, the Union's attorney, Smed-

stad, asked the Company's @®sultant, Rector, about

the possibility of entering into a consent election agree-

ment. Rector said that he would not enter tnto suéh

an agreement because Local 418 had been organized

-by supervisors (Marsh and Shafer, see p. 5, supra,

n.3),and it would be unlawful for Linden “to recog-

nize any union that had heen organized by supervisors”

(Pet. App. Cy p. 56; A. 35-36). The hearing officer

noted that Linden’s’ claim of supervisory influence

in the organization of Loeal 413 related to the Union's

showing of interest required to obtain a Board election

and could not be litigated at a representation hearing

(Pet. App. C, p.56; A. 36).!

When Rector maintained his position, the Union

withdrew the representation petition (Pet. App. C,

p. 96; A. 37). Thereafter, Rector told) Smedstad

that, if the Union submitted a new petition supported

by a “fresh’? 30 percent showing of interest, Linden

*See Section LOLAS(a) of the Board's Statements of Pro-

cedure, 29 CLELR. WOLAS(a): Nationa? Labar Relations Board

v. Vr Control Prods. of St. Petershucg, Lit. 335 F.2d 245,

B02 (CAL 5). > ;

Pro-union conduct by a supervisor during an organizational

campaign may, however, be grounds for setting aside a repre-

sentation election or provide a defense to a refusal-to-bargain

charge. Afr Control Prods. supra, 335 F.2d at 250, Here, the

trial examiner ultimately found that Marsh was not a super-

visor (Pet. App. C, p. 86), and that. while Shafer was a super-

visor, “| t}here is no evidence * * * that he solicited employees

or otherwise enlisted their suppert of the Union” (id. at LIT). «

7 ae

would enter into a consent election agreement. Smied-

stad replied that the Union already had “all the

people lined up.’ Reetor repeated that, since super

visors had solicited these people, without a fresh show-

ing of interest Wo consent clecion conld be agreed upon

and no bargaining would take splace (Pet. App. ©,

pp. 56-57 ; A. O8-39. )

The next day, February 4, Union representative

Norman met with the employees and informed them

of what had occurred at the prehearing conference,

Nine employees then signed a statement distributed

by Norman reaffirming their desire to be represented

by the Union. Both Marsh and Shafer attended the

meeting but neither signed the statement (Pet. App.

C, p. 87; A. 17-19, 49). On February 6, Norman

presented the statement, togethe? with another request

for recognition, to Linden’s general manager, who

referred the matter to Rector (Pet. App. Cy p. 97;

A. 19-20, 50). On February 8, Rector wrote to

the Union denying its renewed request for recognition

because “your membership includes supervisors * * *

who influenced and dominated employees of the pro-

posed unit.”” The letter added that the Union had the

opportunity to prove its claim before the Board, but

had withdrawn its representation petition. (Pet. App.

(yp. 57; A. 20-21, 51.) :

/ The Union filed no new petition .for an election.

Instead, on February 15, all but one of the employees

who signed the reaffirmation statement struck in sup-

_ port of the Union’s demand for recognition and pick-

eted the Company's premises (Pet. App. C, p. 97;

‘ 8

A. 23-24). On February 23, the Uion filed a refusal-

to-bargain charge witlj,the Board. The strike termi-

nated on June 1 (Pet. App. C, p. 57). .

The Board (Members Brown and Fanning dissent-

ing) held that, absent independent unfair labor prac-

tices which would preclude a fair election, an em-

ployer ‘‘should not be found guilty of a violation of

Section 8(a)(5) [of the Act] solely upon the basis of

its refusal to accept evidence of majority status other

than the results of a Board election,” and accordingly

dismissed the complaint insofar as it alleged that the

Company had unlawfully refused to bargain with the

Union (Pet. App..C, pp. 63-64).° The Board noted

that the Company had never agreed to any Voluntary

means for resolving the Union’s claim of majority

status other than a Board election (7bid.). The Board

also rejected the Union’s contention that, because the

picket line showing gave the Company “independent

knowledge”? that the Union possessed majority sup-

port and the Company made no effort to secure a

Board election to resolve any doubt it may have had,

a finding of violation of Section 8(a) (5) was warranted.

The Board concluded that consideration of these factors

would require it to reenter the “thicket” of assessment

of the employer’s * good-faith,” an inquiry “which we an-

>The Board found, however, that the Company had violated

Section S(a)(8) of the Aet by failing to reinstate two of the

strikers. But the Board further found that, since these unfair

labor practices occurred well after the start of the organizing

campaign and under circumstances which would not lead other

employees to view them as retribution for such activity, they

did not preclude the conduct of a fair election (Pet. App. C, pp.

58-59).

if

9

nounced to the Supreme Coart in [National Labor

Relations Board v.. Gissel Packing Co., 399 U.s. 575]

* * * we had ‘cirtually abandoned * * * altogether’”

(Pet. App. C, p. 68). '

2. WILDER

On October 12, 1965, representatives of the Textile

Workers Union visited the plant of the Wilder Manu-

facturing Co. (“Wilder”), a manufacturer of cooking

utensils, They presented the Company with eleven

signed and two unsigned authorization cards,’ stated

that they represented a majority of Wilder’s produc-

tion and maintenance employees, and requested rec-

ognition.’ Wilder official Walter Derse commented

that some were unsigned. Union representative Cohen

stated that two unsigned cards were included because

the eniployees involved had indicated that they wanted

to sign but the Union had not yet obtained their

signatures. Cohen again requested recognition, but

Derse replied that he had no authority to make that

decision and that it could not be made until his brother,

vice president Arthur F. Derse, Jr., returned to town

(Pet. App. D, p.120; A. 144-147, 160-162).

6 The card was en application for membership in the Union

and designated the Union as the employee's representative for

purposes of collective bargaining (Pet. App. D. p. 128, n. re

A. 187).

7 There were 30 employees at Wilder's plant. eighteen of

whom were included in the production and maintenance unit

ultimately found appropriate by the trial examiner. The ex-

aminer rejected the Company's contention that seven technical

employees also should be included in the unit (Pet. App. D,

pp. 130-140).

Paspiniss ee

iain ae ep Me

10

Shortly after Coheiu left, the eleven employees who

- had signed authorization cards left the plant and estab-

lished vw picket line® (Pet. App. D, p. 121). The next

day Cohen telephoned Walter Derse, repeated his

request: for recognition, and stated that he had = ob-

tained employee signatures on additional authorization

cards.” Derse reiterated that he could not answer the

request until after he met with the other officers later

that evening (7d. at 143-144, n. 34; A. 153-154, 165).

Wilder’s officers met during the evening of Octo-

ber 13. Walter Derse stated that only ten or eleven

employees were on strike, adding that, since there

were 30 employees at the plant, the Union could not

possibly represent a majority. The officers decided not

to recognize the Union (Pet. App. D, p. 121; A. 166-

167). When the Union’s further requests for recogni-

tion were denied, it filed unfair labor practices charges

with the Board (Pet. App. D, p. 121).

The Board (Member Fanning dissenting), relying

on its-decision in Linden,’ dismissed the complaint

‘The picketing continued for approximately five months

(Pet. App. D, p. 146).

° Two more employees signed cards that day and one of them

joined the picket line (Pet. App. D. p. 129).

Tn its initial decision in Wilder, issued prior to National

Labor Relations Board vy. Gissel Packing Co. 395 U.S. 575,

the Board dismissed the complaint on the ground that there

was no evidence that the Company's refusal to bargain had

been in bad faith (Pet. App. D, p. 122). The court of appeals

remanded the case to the Board for reconsideration in light

of (issel (Pet. App. E, pp. 160-164). In its first supplemental

decision, the Board found an unlawful refusal to bargain on

the ground that the Company knew that the Union possessed

om

11

(Pet. App. Gy pp. 178-193). It reiterated that, “ab-

sent employer unfair labor practices, the objectives

of our statute are best served: hy eneouragimg the

parties to utilize our orderly election procedures: to

establish a reHable majority-support foundation for

«4 bargaining relationship’ (id. at 182; scmphasis

c

omitted ).

. B. THE DECISION. OF THEE COURT Ob APPEALS

The court of appeals reversed the Board’s rulings

that, by re-auiring that the unions establish their ma-

jority stetus im an election. the employers lad not

unlawfully refused to bargain. It held that, **[w [hile

* * * oards alone, or recognitional strikes and ambig-

yous utterances of the employer, do not necessarily

provide such ‘epnvineing evidence Gf majority. sup

port? so as to require a. bargaining order, they cer-

tainly create ‘a sufficient probability of Majority sup-

port as to require an employer asserting a doubt of

majority status to resolve the possibility through a

petition for an election, ifheis te avoid both any duty te

bargain and any inquiry inte the actuality of his

doubt” (Pet. App. A, p. #7). The court vemanded the

———ae

majority support and had no “genuine willingness * * * to

resolve any, lingering doubts * * * [through] the Board's elee-

tion procedures” (Pet. App. F, pp. 169-190). After its decision

in Linden, the Board ‘ested a second suppleniental decision in

Wilder, reversing its earlier finding of an unlawful refusal

to bargain (Pet. App. G, pp- 178-193). fv

"The complaint alleged a refysal to bargain, in violation

of Section S(2)(5) of the Act, and also alleged restraint and

coercion, in Violation of Section 8(a) (1). The Board's dismissal

of the latter allegations (Pet. App. D. pp. 119, 125-128) is

not in issue here. Le

552-707—74——-3

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12

cases to the Board “to reconsider what option, consist-

ent with the statute, it wishes to follow’ Cid. at 50).°

SUMMARY OF ARGUMENT /

Under the doctrine of Joy Silke Mills, Mne., 89

NLRB 1263, enforeed, 185 BF. 2d 732 CLALD.C.), cer-

tiorart denied, 541 Uss. 914, wich the Board. fol-

lowed) for many. years, an employer could) lawfully

refuse to bargain with a union that claimed represent-

ative status on the basis of either auth®rization vards

or some other means jess reliable than a Board elee-

tien, if he had a “good faith doubt whether the union

represented a majority of the employees in an appro-

phiate unit. In National Labor Relations Board y..

Gissel Packing Co., 399 US. 575, this Court sustained

eos the good faith doubt test

In situations where the employer has committed seri-

the Board's abandomme

ous unfair labor practices that impeded the election

process. In the preset cases, the Board has also abol-

ished that test in situations where the employer has

not Miterfered with the election process.

An employer may have many valid objections to rec-

The court indicated that (Pet. App. Ap. 47, mn. 47):

Fhe Board might, in order to reduce litigation and delay

: ; ; ;

in these matters, adopt the rule that an employer must.

When presented with an authorization card majority, either

recognize the union or, within a reasonable time, petition

for, a certification election, * * * Without such ai per se

rule, * * * the Board would have to use some version of *

the “independent knowledge” test | discussed 7+ fsa. pp. 19 21]

it considers workable, in order to define those conditions

where a failure of an employer to petition for an election

would be a predicate for an S(a) (5) bargaining order.

13

a

egnizing a union on the basis of cards. An iiquiry inte

his subjective motivation for refusing recognition is not

hikely to vield a reliable answer, Similar difficulties are

encountered i attempting co ascertain whether the em-

ployer had knowledge “independently” of the cards that

would confirm the union's majority states. As the court

of appeals acknowledged, the fact that a majority ef the

employees strike and picket does not necessarily es-

tablish that they desire the union as their representa-

tive. For these reasons, the Board properly conclided

that it should no longer inquire into an employer's

good faith doubt of majority status, but sheuld adopt

a cleareut rules de. Uf he has not prejudiced the con-

duct of a fair election by unfair labor‘ practices and

has not agreed to be bound by a voluntary method of

determining the union's representative status, an em-

plover does not Violate Section S¢a)(5) of the Act

merely by insisting that the union verify its majowty

ina Board election.

The Board's position harmonizes Section 8(a) (9)

with the other provisions of the Act and effectuates

its policies. In Gissel, this Court acknowledged the

superiority of the election process and recognized that

it is the preferred method of determining majority |

status. The Board's position encourages resolution of

representation cases by this salutary means,

The issuance of bargaining erders based on card or

picket line indications of majority suppert would tend

to encourage picketing for recognition, contrary to

the congressional objective reflected in Section 8())

(7)(C) of the Act. This provision seeks to encourage

re |

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resort to the Board's clection machinery, and corres-

pondingly to limit resort to tie coercive pressures of

picketing, as the method for resolying questions of

representation, Similarly, the Board’s position encour

aves use of its election machinery to determine repre-

sentation questions.

Finally, the Board& position is conic nt with this

Conrt’s recognition in-Gissel that there was a “eate-

vory of minor or less extensive unfair labor practices,

whieh, because of their minimal impact on the election

machinery, will not support a bargaining order.” 395

Us. at 615. Tf a bargaining order based on eards is

not warranted even im some cases where the employer

has ‘committed independent unfair labor practices, It

would be anomalous to hold that an order i is nonethe-

less required where the employer has cormitted no

unfair labor practices.

Tn directing the Board to ndunt some version of the

unwerkable good faith or independent knowledge

tests, and in suggesting that it promulgate a per se

rule 1 requiring the employer to file a petition for an

election In every case in which he is confronted with a

card or picket line showing of majority, the court of

appeals impermissibly imtruded upon ‘the -Board’s

special function of applying the general provisions of:

the Aet to the complexities of industrial life.” Na-

tional Labor Relations Board v. nid Resistor Corp.

373 U.S, 221, 236. Neither the language of the Act nor

its legislative history reflects any congressional inten-

tion to impose a requirement that the employer file a

petition for an election in order to avoid violation of

1

Section 8(a) (5). Moreover, contrary to the view of the *

eourt of appeals, to require the employer to petition

for an election will not preclude litigation of signifi-

eant differences between the parties, or prevent an

employer fron: delaying resolution of the representa-

tion question, if he so desires,

‘ARGUMENT Fe

THE BOARD PROPECLY CONCLUDED THAT AN EMPLOYER |

WHO HAS NEITHER PRU DICED THE HOLDING OF A FAIR

ELECTION NOR AGREED TO’ A VOLUNSARY METHOD OF

DETERMINING THE Ul.ION’S MAJORITY STATUS NEED

NOT BARGAIN WITH THE UNION UNTIL IP HAS VERIFIED

IVS CARD OR PICKET LINE SHOWING-OF EMPLOYEE SUP-

PORT IN A BOARD- ELECTION

Tn National Labor Relations Board vy. Gissel Pack-

ing Co., 395 U.S. 575, the Court sustained the Board's

authority to require an employer to recognize and bar-

gain with a union that based its claim to representa-

* tive status solely on the possession of union authoriza-

tion cards, where the employer had engaged im

independent unfair labor practices that tended to pre-

clude the holding of a fair election. The Court found

it unnecessary to decide whether a bargaining order

based on cards or some other showing of employee

support other than certification in a Board election “is

ever appropriate in eases where there is no interfer-

ence with the election processes.’ Id. at 595; see also

id. at 601, n. 18. That question is presented here.

The Board -coneluded on the basis of its,past éxpe-

rience that, irrespective of whether he establishes a

“rood faith doubt” abont the union's majority status,

5 i aie eae ea aR CUS

id

FES ey RS ee

EMA ey

16

an employer who Jhas neither prejudiced the holding

of a fair election by unfair labor practices nor agreed

tK

jority status should not be obliged to bargain with a

~

a voluntary method of determining the union's ma-

union until it has verified its card or picket Hine indi-

‘ation of employee support in a Board election, We

show below that this conclusion constitutes a reason-

able and proper interpretation of the statute.

1. Section 8(a)(5) of the Act makes it an unfair

labor practice 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) provides, in pertinent part, that “[r]epresenta-

tives designated or selected for the purposes of collec-

tive bargaining by the majority of the employees in a

unit appropriate for such purposes, shall be the exclu-

sive representatives of all the eniployees in-sueh unit

** * Section 9(¢)(1) permits the employees, the *

union, or the employer to petition the Board for an

election by a secret ballot to determine whether any

individual or labor organization is the majority repre-

sentative of a particular group of employees.

While a Board election is not the only means by

Which a anion may establish its representative status

(Gissel, supra, 395 US. at 596-597), under the Joy ~

Sik doctrine,” which the Board followed for many

years, an employer could lawfully refuse to bargain

With a union claiming representative status on the

basis of authorization cards, or some means other

than a Board election, if le had a “good faith doubt”

" Joy Ni/h Mills. lne.. Se) NLRB 1265, enforced, ISD | Oe Pa

732 (CLALD.C.), certiorari denied, 341 ULS. 914.

ly

Whether the union represented a majerity of the em-

plovees in an appropriate unit. A good faith doubt

would ordinarily be imputed to the employer if he

insisted that the union verify its majority claim in

a Board election, «ad refrained from committing iInde-.

pendent unfair labor practices that tended to under-

mine the union.” On the other-hand, the Board would

tind a leek of good faith doubt and would enter a

hargaiiing order where the enplover had committed

such unfair labor practices, or had rejected without

any reason the union's reeegnition demand.”

The good faith doubt test was frequently eriticized,’

however, and the Board experienced cousiderable dif-

-MSee AbJinanie & Nola Puc hing {Gis 26 NLRB Ivss.. 1522

IBL3: Rorwohke Public Warehouse, 72 NURB 1281. 1282-1283:

Avterctt Hosiery Co. 78 NLRB 333, 3542 0. 2. Gi hert Co. M0

NLRB 2067, 2069-2070,

The considerations prompting this conelusion were that the

determination whether the union represents a majority of the

employees in in appropriate unit freauently presents complex

factual and legal issues: the election procedures of the Act

provide a quick and dependable means of resolving those issues

(see pp. 28-24. pa fra) and the emplover would commit an inde-

pendent violation ofthe Act if he recognized a minority union.

See Garment Workers’ Union vy. National Laber Relations

Board, 366 US. 731.

& Vational Lahor Relations Roand v. Be mington Rand. Ine...

MOR. 2d sé2. 868 (CLA. 2). certiorari denied, 304 U.S. 576;

Aeme-BKireums Co. 24 NLRB 71. 115-114, enforced, 130° F. 2d

WT (CLA. 7): Peimat of Cal. lune. WA NLRB Jo8, Tos, en-

forced. 211 F. 2d 206 (CLA. 9; Pyne Moulding Corp., 110

NLRB 1700, 1707-1708. enforced, 226 F. 2d SiS f@®A. 2):

Heonomy Food Cinti ve Tne. 142 NLRB 1, 915 O14, enforced;

B38 Blvd des (CLA T). .

“One of the criticisms was that an employer's unfair labor

practices did not necessarily show that he did not have a good

faith doubt of majority, in that “[t}he fact of employer coer-

SEERA RYT INT TOS EAR

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1s

ficudty in its practical appheation. According dy, in

Aaron Brothers Co., US NLRB 1077, the Board an-

nounced that an employer “will not be held to have

violated his bargaining obligation under the daw sim-

ply beeause he refuses to rely apen envds, rather than

an election. as the method for determining the tion's

majority.’ Jd. at loTs. The Board added that it was

the General Counsel who had to establish affirmatively

the existences of bad faith on the part of the emptover.

Id. at 1079. Thus, the ermployer no longer had te pre-

sent reasons for rejecting a bargaining demand and

he would not be deemed to have acted in bad faith

merely beeause he insisted on an election. Further-

more, the Board noted that not every unfair labor

practice would result ta oa finde of bad faith and

the issuance of a bargaining order.”

The Board stated during the , oral argument

in Gissel, that by then it *had virtually abandoned the

Joy Silk doctyine altogether.” 399 Cas. at 594. The

Court observed in Gissel (tord.) :

cion may be as consistent with a desire to prevent the acquisi-

tion of majority status as with a purpose to destroy an existing

majority.” Lesnick, Lt hlishinen:t of Bargaining Rerahts With-

outian NER Election. 6h Mich. Lo Reve S51. 855 (1967). The

test was also criticized for being unworkable, necessitating

inquiry into the employer's state of mind. See National Laho:

Relations Boad ve River Togs, Tne, 382 Fe 2d) 198, 206-208

On a

(CLA. 2): Christensen & Christensen. Gisse? Packing aud “Good

Falth Doubt’: The Gestalt of Required Recognition of Uniouws

auder the NERA BT UL Chi. Le Rev HE (1987): Comment. Av

ployer “Good Faith Doubt” W6 UL Pa. Ta Rev. 709) (1968).

soe Menninond & Treing, Lac. Lat NERB 1001: Clermouls

Tuc. Yok NLRB sot: Mercwtes Puchoog Corp. WS NERD

264. enforced, 386 F.2d 790 (CLA, 2).

19

Under the Board’s current: practice, an em-

plover’s good faith doubt is largely irrele-

vant, and the key to the issuance of a bargain-

ing order is the commission of serious unfair

labor practices that interfere with the election

processes and tend to preclude the holding of a

fair election, Thus, an-emplover can imsist that

a union go to an election, regardless of his sub-

jective motivation, so long as lie Is net guilty

of misconduct: he need give no. affirmative

reasons for rejecting a recom@uition request, and

he can demand an election with a simple “ne

comment” to the union.”*

This) principle was qualified by the “imdependent

knowledge”? exception, &e., “an employer could not

refuse to bargain if he kiew, through a persenal poll

for instance, that a majority of his employees sup-

ported the union.”? Jbid. (emphasis in original): see

Snow d& Sons, 134 NLRB 709, enforced, 308 F. 2d

eles Y 19

O87 (C.zA. 9).

In Gissel, this Court accepted the Board's aban-

donment of the good faith doubt test in situations

where the employer committed serious unfair labor

practices ‘that impeded the election process. In. the

present cases, we submit, the Board has also properly

The Court also noted that “by no longer reaniring an

employer to show affirmative reasons for insisting on an clec-

tion * * * the Board had climinated some First Amendment

“problem areas.” 395 ULS. at 617.

"In Snow, the employer, upon being presented with can

apparent card majority. agreed to submit: the cards to an

impartial third party for authentteation, but. after authenti-

cation, still refused recognition, claiming that) he never cone

sidered the agreement binding.

20

ended relianée upon such subjective te-ts in situations

where the employer has refrained from interfering

with the election process.

2. An employer may have many valid objections to

recognizing a union on the basis of cards.” An inquiry

into whether an employer has declined card-based recog-

nition because he does not trust cards or because he op-

poses unions is unlikely to yield a reliable answer,* for

“{nleither the Board nor the courts can-read the minds

of men.” Joy Silk Mills, Ine. v. National Labor Rela-

tions Board, 185 F. 2d 732, 742 (CLA.D.C.), certiorari

denied, 341 U.S. 914.

*’'The employer may believe that cards “cannot accurately

reflect. an employee's wishes, either because [he] * * * has not

had a chance to present his views and thus a chance to insure

that the employee choice was an informed one, or because the

choice was the result of group pressures and not. individual

decision made in the privaey of a voting béoth™: moreover,

“cards are too often obtained through misrepresentation and

coercion * * *.° Gissel, supra, 395 U.S. at 602. See also Bok,

The Regulation of Campaign Tactics in Representation Elec-

tions Under the National Labor Relations Act, 78 Marv. L. Rev.

38, 122 (1964): Comment, Refusal-to-Recognize Charges Under

Nection 8¢a)(5) of the NERA: Card Checks and Employee

Free Choice, 33 U. Chi, Ta Reve SST. 389-392 (1966) : Comment.

Vuion Authorization Cards, 75 Yale 13. 805, 823-831 (1966) ;

Gissel, Supra, 5D U.S. at 602, n. 19. ,

21 For example, under the Joy S‘/k approach, an employer

opposed to unions could mask his true motive merely by stating

that he believes the cards are unreliable, while an employer

ewho rejected the union’s request without comment could be

found “guilty” of a refusal to bargain even though he had in

fact been motivated by a distrust of the cards.

21

Similar difficulties are encountered in attempting to

ascertain whether the emplover has knowedge “inde-

pendently’? of. the cards that would confirm the

union’s majority status. As the court of appeals rec-

ognized, for example, the fact that a majority of the

employees strike and picket does not necessarily estab-

lish that they desire the union as their representative.”

Further probing of this question would require the

Board to enter the “tangled thicket’? (Pet. App. G, -

p. 182) of subjective motivation, which, as this Court

observed in’ Gissel, involves “an endless and unre-

hable inquiry.’’ 395 U.S. at 608.°° Accordingly, as the

Board here stated (Pet. App. C, p. 63);

Unless, as in Snow & Sons [see p. 19, supra,

n. 19], the emplover has agreed to let its

“knowledge” of majority status be established

through a means other than a Board election,

how are we to evaluate whether it “knows”

or whether it ‘‘doubts’? majority status? * * *

"Refusal to cross a picket line may reflect mere fear * * *

[o]r it may reflect a respect. for what the individual supposes is

the will of the majority even though he (and in fact a major-

ity) does not wish the union to act a8 a bargaining represent-

ative” (Pet. App. A, p. 44, n. 44ySte Notional Labor Relations

Board vy. Union Carbide Corp. 440 F.2d 54, 56 (C.A. 4),

certiorart denied, 404 U.S. 826,

Seé also A. 129-131, 133-136. 140-141, 159-160, 168-169, 170-

175: O'Connor, Respecting Picket Lines: XY Union View NYU,

Tth Conf. on Lab, 255, 257-258 (4954): Carney & Florsheim, 7/.

Treatment of Refusals to Cross Picket Lines: “By-Paths and

Tudivect Crookt Ways. dD Corn. Ta. Rev. 940, 940-941 (1970) sef.

New York Tel. Co. 89 NLRB 883.

See Comment, Hmployer Recognition of Unions on the

Basis of Authorization Cards: The “Independent Knowl dge”

Standard, 39 U. Chi, Ta Rev. 814, 319-325 (1972).

Oy

—

For these reasons, the Board was warranted in con-

eluding that it should no longer inquire whether an

employer was motivated by a good faith doubt in

rejecting a union's card or picket line indication of

majority suppert,’ and in adopting, instead, the clear-

cut principle that an employer does not violate See-

tion S(a)(5) of the Act merely by insisting that the

union verify its majority ina Board election, if he has

neither prejudiced the conduct of a fair election by

unfair labor praétices nor agreed to be bound by a

voluntary method of determining the union's repre-

sentative status.”

**The court below correctly noted that the court decisions

indicating that a strike supported by a majority of the

employees in a unit undermines a good faith doubt of majority

are distinguishable. See National Labor Relations Board v.

Harvris-Woodson Co. V9 FB. 2d 720 (CLA. 4) (recognitional

strike in the context of a refusal to negotiate with a union al-

ready certified after a Board election); Mational Labor Rela-

tions Board vy. National Neal Corp. 127 F.2d T7686 (CLA. 2)

(recognitional strike accompanied by independent unfair labor

practices and anti-union animus of officers of predecessor cor-

poration who were still in control). “There is no case holding

that the statute requires the Board to use recognitional strikes

as conclusive evidence” of majority support (Pet. App. A.

p. 43). See also Vational Labor Relations Board y. World Car-

pets of N.Y... Tne.. 463 FL 2d 57, 61, nm. 4 (CLA. 2).

In order to encourage the parties to adhere to their volun-

tary agreements, the Board will continue to find a refusal to

bargain in the situation presented in Snow & Nons, supra (see

p. I. supra, ne 19). That is. if an employer agrees to have

majority status determined by a means other than a Board elec-

tion, he may not disclaim that determination, and insist on a

Board election, simply because he disagrees with the results of

that determination (Pet. App. C, pp. 64-65). Vation-Wide Plastics

Co, 197 NLRB No. 136, 81 LRRM._ 1036; Sudliran Elec. Co.,

199 NLRB No. 97, 81 LRRM 1315, enforced, 479 F. 2d 1270

(CLA, 6): Atlantic Tech, Servs. Corp. 202 NLRB No. 13, 82

LRRM H67, enforced. 86 LRRM 2tse (CLALD.C.).

bag

23

3. This position harmonizes Section 8(a)(5) with

the other provisions of the Act and effectuates its

policies. In Gissel, the Court recognized the superior-

ity of the election process: “[S]eeret elections are

generally the most satisfactory—indeed the pre-

ferred—method of ascertaining whether a union has

majority support.’? 395 U.S. at 602. The Board, too,

has consistently. maintained that its election proce-

dures provide a better means of testing majority sup-

port than does a check of authorization cards. As the

Board stated in Aaron Brothers Co., supra, 158

NLRB at 1079, n. 10, its objective has always been the

utilization of

the most reliable means available to ascertain

the true desires of employees with respect to

the selection of a collective bargaining repre-

sentative. Where an employer has engaged in

unfair labor practices, the results of a Board-

conducted election are a less reliable indication

of the true desires of employees than author-

ization cards, whereas in a situation free of

such unlawful interference the converse is true.

As noted above (p. 16, supra) Section 9(¢) (1) of

the Act permits either the union or the employer to

petition for an election, and, where no interference

has occurred, an election can be held expeditiously.”

The Board’s present position encourages the resolu-

tion of representation questions by this” salutary

26 In contested representation cases, the median time between

the filing of the petition and the decision of the regional direc-

tor directing an election is about 45 days. Thirty-Eighth Annual

Report of the National Labor Relations Board V3 (AI).

,

LMS AEM ONES RAINE SINS ARN a

pany.

24

means.” On the other hand, where a fair election could

be held, issuance of bargaining orders based on a eard

or picket line indication of majority support is likely

to delay resolution of the representation questien for

a considerable period of time. Unfair labor practice

proceedings, particularly where the validity of each

ecard is contested, are generally far more protracted

than representation proceedings.” |

Moreover, the issuance of such bargaining orders

would tend toe encourage picketing for recognition,

contrary to the congressional objective reflected in

the restriction of such picketing im Section 8(b) (7)

= An election provides an opportunity for the employer to

exercise his protected right (under Section S(¢} ef the Act, 29

Us.C. 158(c), and the First Amendment) to influence the vote

of his employees through non-coercive speech. See Gisse/. supris

395 TLs. at 616-619; Thomas v. Collins, 323 U.S. 516. 587-538;

Vational Labor Relations Board v. Virginia Elec. & Power Co.

B14 US. 469; Pet. App. A. p. 8% n. 82. "[A]n employee who

has had an effective opportunity to hear the arguments con-

cerning representation is in a better position to make a more

fully informed and reasonable choice.” Lrce/sior Underncear Lie.

156 NLRB 1236, 1240. Moreover, “an election is a solemn * * *

occasion, conducted under safeguards to voluntary choice

* * *) A petition or a public meeting—in which those voting fer

and against unionism are disclosed to management, and in

which the influences of mass psychology are present—is net

comparable to the privacy and independence of the voting

booth.” Brooks v. National Labor Relations Board, 348 Us. 96.

99-100,

** The Board's records show that in fiseal 1973 the median

time between the filing of an unfair labor practice charge and

a Board decision in a contested case was 356 days, Cf. Gésxe/,

supra, 39 US. at G11 n. 30. In Z/aden, the time .between the

tiling of the charge and the Board’s decision was about. four

and one-half years (AL 1-2). and in Wider it was about six

and one-half vears (.AL55-56).

95

(C), 29 U.S.C. 158(b) (7) (C). This section efiectuates

the federal policy of ensuring employees free choice

in the selection or rejection of a bargaining repre-

sentative (see National Labor Relations Board vy.

Loeal 542, Operating Engineers, 331 FB. 2d 99, 107

(CLA. 3), certiorari denied, 879 US. 889) by encour-

aging prompt use of the Board’s election machinery,

and, consequently, limiting resort to the coercive pres-

sures of picketing, as the method for resolying questions

of representation, See Department & Specialty Stove

Employees’ Union, Local 1265 vy, Brown, 284 Kf. 2d O19,

626 (CLA. 9), certiorari denied, 366 U.S, 934: Dayton

Typographical Union No, a7 Vv. National Labor Re-

lations Board, 326 F. 2d 634, 646 (C.AD.C.). The

Board's position in the instant cases similarly en-

courages use of the Board's election machinery to de-

termine representi ition quesfions, and seeks to avoid

the need to determine them in the context of ongoing

29

industrial strife.

2° Contrary to the Unions’ contention (Br. in Opp. pp. 4-1).

the Board's position does not ignore Congress’ rejection, in

1947. of an amendment that would have permitted “the Board

to find a refusal-to-bargain violation only where an employer

had failed to bargain with a union ‘currently recognized by

the employer or certified as suc ‘h [through an election] under

section 9. Gissel, supra, 895 U.S. at 598. Where the employer

has engaged in conduct which precludes the holding of a fair

election or where he reneges on an agreement to have the

union’s status determined by another method (p. 22. supre.

n. 25). the Board will find a bargaining obligation based on

a showing of majority status other than through a Board

election.

Indeed. the Unions concede (Br. in Opp.. pp. ie 3) that

Congress did not answer the question whether employers have a

duty to recognize a union which presents “authorization cards

SARTRE LSE R PARC LRH OS Fe ee Se Rat in it ihe ead bah

26

4. In Gissel, while sustaining the Board’s authority

to issue a bargaining order where the union had shown

Majority status through cards and the employer had

engaged in independent unfair laber vractices which

precluded a fair election, the Court recognized that

there was a “eategory of minor or less extensive un-

fair labor practices, which, because of their minimal

Impact on the election machinery, will not sustain a

hargaining order.” 395 U.S. at 615. If a bargaining

order based on cards is not warranted even in some

cases Where the employer has committed independent

unfair labor practices, it would be anomalous to hold

that one is nonetheless required where the employer

has committed no unfair labor practices.’ The Board’s

present interpretation of Section 8(a)(5) avoids this

anomaty.'

backed by reeognitional strikes by the card signers,” and they add

that this “question is intensely practical and has not been dealt

with in terms by Congress” (/d. at 8-9). Accordingly, the area is

one “{wlhere Congress has in the statute given the Board a

question to answer, fand] the courts wil! give respect to that

answer * * *." National Labor Relations Board vy. Insurance

Aagents’ Union, 361 U.S. 477, 499.

° Indeed, in Linden, the employer committed an independent

unfair labor practice which the Board found was insufficient to

warrant 2 bargaining order under the Gisse/ standards (p. 8.

supra, n.d). Yet. under the decision of the court of appeals, a

bargaining order might nonetheless be required.

“Tt is also consistent with the Court’s answer in @/ss-7 to the

emplovers” contention that predicating a bargaining order on

eards gives them a Hobson's choice. The employers contended

that. “if they do not make an immediate, personal investigation

into possible solicitation irregularities * * *, they will have un-

lawfully refused to bargain for failure to have a good faith

doubt of the union’s majority: and if they do make such an

investigation, their efforts at polling and interrogation will con-

woe

27

5. The court of appeals recognized that “[i]t is cer-

tainly permissible for the Board to avoid encouraging

recognitional striking and picketing by refusing to

regard them as an independent and conclusive method

of demonstrating a majority * * *” (Pet. App. A, p.

44), and that, because of the “difficulties in determin-

ing the state of past employer knowledge * * *” (id.

at 45), it is ‘teonceivable that a restriction of ‘inde-

pendent knowledge’ to an agreement to abide by an

authentication would be acceptable * * *” (id. at 47).

The court concluded, however, that the Board could

not so restrict the ‘tindependent knowledge” test with-

out substituting the requirement that the employer

“evidence his good faith doubt as to majority status

* * * by petitioning for an election” (id. at 47) or by

voicing ‘‘consent to abide by an election ordered on

union petition” (id. at 46, n. 46). The court’s reasons

for this conclusion do not withstand analysis,

stitute an unfair labor practice in violation of § 8(a) (1) and

they will again be ordered to bargain.” 395 U.S. at 609. The

Court responded: “As we have pointed out, however, an em-

ployer is not obligated to accept. a card check as proof of ma-

jority status, under the Board's current practice, and he ig not

required to justify his insistence on an election by making his

own ‘investigation of employee sentiment and showing affirina-

tive reasons for doubting the majority status [citing Aaron

Brothers Co., supral* **. [bid. See also fd. at 600, "(We agree

that the policies reflected in $9(c) (1) (B) [pp. 3-4. supra] fully

support the Board’s present administration of the Act * * *: for

an employer can insist on a secret ballot election, unless. in the

words of the Board, he engages ‘in contemporaneous unfair labor

practices likely to destroy the union’s majority and seriously

impede the election.” ~

manearesrs sinner att §

ATMS

é. 28

¥

Kirst, noting that Congress in 1947 authorized

employers to file their own representation petitions

(Section 9(¢)(1)(B), pp. 3-4, 16, supra), the court

inferred that the premise of this provision was that

“employers could ‘test out their doubts as to a union's

majority status’ by petitioning for an election” (Pet.

App. A, p. 47). ‘The legislative history of Section

9(¢)(1)(B) shows, however, that this provision was

intended merel:: to eliminate the “discrimination”’

against employers which had existed under the prior

Board rules, which permitted a union to petition for

an election even though it alone was seeking recog-

nition but permitted an employer to do so only when

confronted with claims by two or more unions.”

There is no indication that this provision was intended

to go further and require an employer who had doubts

as to a union’s majority status to petition for an elec-

tion, in order to avoid a refusal-to-bargain finding.

Second, the court asserted that, “[w]hen an em-

ployer petitions for or consents to [an] election, the

election process is expedited’? (Pet. App. A, p. 48),

since the employer “would be required to define the

appropriate unit and therefore would not be entitled,

as an objecting party, to request a hearing’ or to

“object to a sufficient (80%) showing of majority

support”? (Pet. App. A, p. 48, n. 48). But, as there

may be more than one appropriate unit for bargaming

purposes, the employer and the union may have legiti-

mate differences of ‘opinion over the unit in which

an election should be held.

ee ©

* See S. Rep. No. 105, 80th Cong., Ist Sess., Part 1, pp. 10-11 5.93

Cong. Ree: 3838,

29

For example, the union may have requested recog-

nition in a small unit, whereas the employer may

prefer a larger, but still appropriate, unit. Should the

employer be forced to file a petition, he would doubt-

less pick the larger unit. It-is unlikely that the union

would accept that unit, in which case, the employer's

petition would be dismissed.” Accordingly, the union,

if it desired an election in the smaller unit, would

still have to file its own petition, and the employer

would remain free to contest the appropriateness of

the unit sought by the union. Moreover, even if the

disparity between the units sought by the employer

and the union was not sufficient to require dismissal

of the employer petition, the time saving envisioned

by the court of appeals would occur only if the union

were willing to resolve in the employer's favor all

questions concerning whether or not particular indi-

viduals or jobs fell within the unit.”

“Section 9(¢)(1)(B) of the Act states that an employer

petition must allege that “one or more individuals or labor

organizations have presented to him a claim to be recognized

as the representative defined in’ section 9(a)." Since the

“question of representation © * * is raised only by an affirmative

claim of a Jabor organization that it represents a majority

of emplovees ino an appropriate unit.” the Board will dismiss

the employer's petition if there is a significant diserepaney

between the unit set forth therein and the unit for which the

union has requested recognition, Amperca Llectronic Corp.

lOO NLRB S55. 354, Necord, Win. Wood Bakery. Tne. 07 NLRB

22: Bowman Bldg. Prods. Ditw VO NURB: Aerojet-General

Corp. A NLRB TOA,

“For example, in W//der, the employer contended that seven

technical employees should be included in the unit) (p. 9,

supra, n. 7). It is unlikely that the Union, without a contest,

would) have accepted those seven employees, for they could

have spelled the difference between victory and defeat.

>

ee

Sa a a

NES as

are

BP eisthkinrerGaccns

30

Thus, contrary to the view of the court of appeals,

to require the employer to petition for a Board elee-

tion would not preclude litigation of significant difer-

ences between the parties, nor prevent an employer

who sought to delay resolution of the representation

question from drawing his petition so as to elicit ob-

jections from the union.” Moreover, if Congress had

intended to impose the requirement that the employer

must file a petition for an election in order to avoid

violation of Section 8(a)(5), it seems reasonable to

suppose that it would have said so. Neither the lan-

guage of the Act nor its history reflects any such

intention. |

‘In sum, the Board properly concluded that an

employer who, like Linden and Wilder here, has not

impeded the conduct of a fair election and has not

agree? to a voluntary method of resolving the union’s

majority status does not violate Section 8(a)(5) of

the Act merely by insisting that the union verify its

majority in a Board electioti. The Board’s position

‘‘encourage[s] the principle of voluntarism but at the

same time insure[s] that when voluntarism fails the

‘preferred route’ of secret ballot elections is available

* The court erred in suggesting that an employer petition

would obviate litigation over the sufliciency of the union's show-

ing of interest. While a union petition, unlike an employer peti-

tion, must be backed by a 30 percent showing of employee inter-

est (p. 6. supra, n. 4). the sufficiency of such a showing is not

litigable by the parties. National Labor Relations Board vy.

Savair Mfg. Co., 414 U.S. 270, 287, n. 6 (White, J., dissenting).

~ 31

to those who do not find any alternative route accept-

able” (Pet. App. C, p. 64). The Board is entrusted

with primary responsibility for balancing the conflict-

ing rights and obligations of the parties under the

statute,” and the aecommodation it taade here is rea-

sonable. In directing the Board either te adopt a per

se rule requiriig the employer to file a petition for an

election in every case in which he is confronted with a

card or picket line showing of majority, or to apply

some version ef the concededly unworkable good faith

or independent knowledge tests (p. 12, supra, n. 12),

the court of appeals impermissibly intruded upon **the

Board’s special function of applying the general pro-~

visions of the Act to the complexities of industrial

life.”’ National Labor Relations Board v. Erie Resistor

Corp., 373 "JS, 221, 236.

*°“The fun-tion of striking that balance to effectuate national

labor policy is often a difficult and delicate responsibility,

which the Congress committed primarily to the National Labor

Relations Board, subject to limited judicial review.” National

Labor Relations Board vy. Truck Drivers Union, 353 US. 87, 96.

32

CONCLUSION

The judgment of the court of appeals should be

reversed and the cases should be remanded to that

court with directions to affirm the Board’s orders dis-

missing the refusal to bargain allegations of the

complaints.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Perer G. NASH,

General Counsel,

JOHN S. IrvING,

Deputy General Counsel,

Patrick Harbin,

Associate General Counsel,

Norton J. Come,

Deputy Associate General Counsel,

Prrer M. BERNSTEIN,

Attorney,

National Labor Relations Board.

Jcuny 1974.

US, GOVERNMENT PRINTING OFFICE 1976

ree Vk SEM NARS. Dai Wa TESS a RRR Ya RE ART TONE Cia Minch a ame

:

*