Union Authorization Cards and the NLRB: A Study of Congressional Intent, Administrative Policy, and Judicial Review [Reprint 2016 ed.] 9781512817973

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LABOR RELATIONS AND PUBLIC POLICY SERIES Report No. 2

UNION AUTHORIZATION CARDS AND THE NLRB A Study of Congressional Intent, Administrative Policy, and Judicial Review by Alan Roberts McFarland and Wayne S. Bishop

Published by Industrial Research Unit, Department of Industry Wharton School of Finance and Commerce

UNIVERSITY

OF

PENNSYLVANIA

Produced and Distributed by University of Pennsylvania Press Philadelphia, Pennsylvania 19104

Copyright © 1969 by the Trustees of the

UNIVERSITY

OF

PENNSYLVANIA

Library of Congress Catalog Card Number 70-78136 Manufactured in the United States of America

FOMioni Government intervention in, or regulation of, industrial and labor relations give rise to serious and complex questions of public policy. To encourage thoughtful discussion of such issues, the Industrial Research Unit, Wharton School of Finance and Commerce, University of Pennsylvania, has inaugurated a report series dealing with significant labor relations policy matters. The first of these studies, Compulsory Arbitration and the NLRB, was published in February 1968. This, the second, deals with union authorization cards. A forthcoming one will examine bargaining unit determination by the NLRB, and others are planned. In recent years, the National Labor Relations Board has greatly expanded the use of union authorization cards as a substitute for secret ballot elections in order to ascertain whether a majority of employees in a plant or bargaining unit desire to be represented by a union. This practice has resulted in widespread comment in academic, legal, and industry circles, a not surprising result, since the utilization of authorization cards raises serious questions of employee rights and employer duties, as well as of congressional intent, of proper administrative action, and of the nature and extent of judicial review of administrative rulings. In the April 1966 issue of the Yale Law Journal, Mr. Alan Roberts McFarland, while still a student at the Yale Law School, authored a widely read note on the subject. Because of his command of the issues and facts, he was requested to expand and to update his analysis. After his admission to the Pennsylvania Bar, and while serving as Clerk to Judge Francis L. Van Dusen, United States Court of Appeals, Third Circuit, he utilized his off-hours for this purpose. Mr. McFarland is now associated with the Philadelphia law firm of Drinker, Biddle, and Reath. Because of his preoccupation with his new law practice, Mr. McFarland was unable to give the time to complete the study. Fortunately, Wayne S. Bishop agreed to accomplish this task. Mr. Bishop, who took both his undergraduate and law degrees at the University of North Carolina, served as (iii)

a trial attorney with the Appellate Court Branch of the National Labor Relations Board from 1964 to 1968. As such he represented the NLRB in each of the eleven federal circuit courts, in the United States Supreme Court, and in several federal district and state courts. He was promoted to Supervisory Attorney in the Appellate Court Branch of the Labor Board in 1967, and that same year was awarded a Federal Government Sustained Superior Performance Award for his achievements in that section. He is at present associated in the Washington office of the law firm of Vedder, Price, Kaufman, Kammholz & McGuiness. Thanks are due to the Labor Policy Association, Inc., Washington, D.C., for a grant to the Industrial Research Unit, which underwrote publication of this study; to the Yale Law Journal and Fred Rothman, Inc., for permission to use material originally published in that Journal·, to Kenneth C. McGuiness, Esq. and John E. Abodeely, Esq., for reading and commenting on the manuscript; and to Mrs. Margaret E. Doyle, Administrative Assistant to the Department of Industry, for handling numerous details. The authors, of course, accept full responsibility for the opinions expressed. Chairman Department of Industry Wharton School of Finance and Commerce University of Pennsylvania

HERBERT R . NORTHRUP,

Philadelphia January 1969

(iv)

Tibie of Contenti Page Foreword

iii

Table of Authorities Cited

vii

Chapter I.

INTRODUCTION

1

LEGISLATIVE BACKGROUND THE ISSUE DEFINED: DOES THE NLRB POLICY COMPORT WITH STATUTORY PURPOSES? The "Normal" Road to Recognition Representation Elections The Authorization Card Route

2 3 3 5 8

Chapter II. THE WAGNER ACT: SPECIFIC AUTHORIZATION FOR THE USE OF CARDS TO DETERMINE REPRESENTATION QUESTIONS..

12

Chapter III. THE STATUTORY CHANGES ARISING FROM THE TAFT-HARTLEY AMENDMENTS—CONGRESSIONAL INTENT AND EFFECT

18

THE HOUSE BILL

18

THE SENATE BILL

20

THE AMENDMENTS AS PASSED

22

CONGRESSIONAL INTENT

23

Chapter IV. THE TAFT-HARTLEY

NLRB

APPROACH

NLRB INTERPRETATION LEY

OF

AFTER

TAFT-HART-

29 29

EARLY CASES UNDER TAFT-HARTLEY ...... THE AIELLO DOCTRINE

31 34

CURRENT NLRB AUTHORIZATION POLICY..

36

The Bernel Foam rule

36

Validity of authorization cards

38

Employer good-faith doubt

42

vi

TABLE OF CONTENTS (Continued) Page

Chapter V. DOES NLRB AUTHORIZATION CARD POLICY EFFECTUATE STATUTORY PURPOSES: VIEWS OF THE COURTS

48

THE WAGNER ACT PERIOD PRECEDENTS— ADMINISTRATIVE LEGALIZATION OF AUTHORIZATION CARDS THE UTILITY OF CARDS

60

PROOF OF MAJORITY STATUS EMPLOYER GOOD-FAITH DOUBT BARGAINING ORDERS

55 59 63

Chapter VI. DOES THE NLRB AUTHORIZATION CARD POLICY EFFECTUATE STATUTORY PURPOSES? - ...

52 53

68

CARD RELIABILITY v. ELECTIONS

69

BASIC DEFECTS IN CARD PROCEDURE The method of policing card solicitation GOOD-FAITH DOUBT AND THE BARGAINING ORDER THE APPROPRIATENESS OF BARGAINING ORDERS

74 76

Chapter VII.

CONCLUSION

82 84 88

vii

fable of Authorities Cited Cases :

Page

Aaron Brothers, 158 NLRB 1077 (1966) 42,92 Aiello Dairy Farms, 110 NLRB 1365 (1954) ....30,34, 36, 52 American Cyanamid, 2 NLRB 881 (1937) 13 Armour & Co., 13 NLRB 567 (1939) 14,70 Artcraft Hosiery Company, 78 NLRB 333 (1948).. 29 Atlas Bag & Burlap Co., 1 NLRB 292 (1936) .... 13 Atlas Engine Works, Inc. v. N.L.R.B., 396 F.2d 775 (6th Cir. 1968) 66 Bannon Mills, Inc., 146 NLRB 611 (1964) 46 Bauer Welding & Metal Fabricators v. N.L.R.B., 358 F.2d 776 (8th Cir. 1966) 55, 57 Beaver Machine & Tool Co., Inc., 97 NLRB 33 (1951) 34 Benson Veneer Co. v. N.L.R.B., 398 F.2d 998 (4th Cir. 1968) 53,66 Bernel Foam Products Co., 146 NLRB 1277 ( 1964) -10, 36, 37, 53, 67, 86 Bilton Insulation Inc. V. N.L.R.B., 297 F.2d 141 (4th Cir. 1961) 48 Bishop & Maleo, Inc., 159 NLRB 1159 (1966) .... 46 Brandenburg Tel. Co., 164 NLRB No. 26 (1967).. 40 Brown Truck and Trailer Mfg. Co., Inc., 106 NLRB 999 (1953) 30 Bryant Chucking Grinder Co., 160 NLRB No. 125 (1966), enforced, 389 F.2d 565 (2d Cir. 1968), cert, denied, 382 U.S. 904 (1968) . 46, 49, 50, 56, 85, 92 Caldwell Packaging Co., 125 NLRB 495 (1959).... 34 Cameo Lingerie, Inc., 148 NLRB 535 (1964) 46 Chicago Apparatus Co., 12 NLRB 1002 (1939).... 14 Clermont's, Inc., 154 NLRB 1397 (1965) 45 Cohen Brothers Fruit Co., 166 NLRB No. 2, 65 LRRM 1486 (1967) 44 Colson Corp. V. N.L.R.B., 347 F.2d 128 (8th Cir. 1965), cert, denied, 382 U.S. 904 (1965) 66 Conren, Inc., 156 NLRB 592 (1966), enforced, 368 F.2d 173 (7th Cir. 1966), cert, denied, 386 U.S. 974 (1967) 62,81

viii

TABLE OF AUTHORITIES CITED (Continued) Page Consolidated Machine Tool Corp., 67 NLRB 737 (1946), enforced, 163 F.2d 376 (2d Cir. 1947), cert, denied, 332 U.S. 824 (1948) 15 Converters Gravure Service, Inc., 164 NLRB No. 53, 65 LRRM 1058 (1967) 43 Cooper's Inc., 107 NLRB 979 (1954) 31 Crawford Mfg. Co., Inc. v. N.L.R.B., 386 F.2d 367 (4th Cir. 1967), cert, denied, 390 U.S. 1028 (1968) 49,52,53,57,79,80 Crystal Lake Broom Works, 159 NLRB 429 (1966) 63 The Cudahy Packing Co., 13 NLRB 526 (1939) ._ 14,70 The Cuffman Lumber Co., Inc., 82 NLRB 296 (1949) 10,29 Cumberland Shoe Corporation, 144 NLRB 1268 (1963), enforced, 351 F.2d 917 (6th Cir. 1965) . 38,55,78 DaUTex Optical Co., 137 NLRB 1782 (1962) ...... 6 M. H. Davidson Company, 94 NLRB 142 (1951)34 Dayco Corp. v. N.L.R.B., 382 F.2d 577 (6th Cir. 1967), opinion amended and rehearing denied, 382 F.2d 577, 66 LRRM 2384 (1967) 58 Delaware-New Jersey Ferry Co., 1 NLRB 85 (1935) . 13 Edward Fields, Inc. V. N.L.R.B., 325 F.2d 754 (2d Cir. 1963) 59, 62, 88 Eldo-Crafte Boat Co., Inc., 166 NLRB No. 52 (1967) 46 H. W. Elson Bottling Co., 155 NLRB 714 (1965).. 87 Engineers & Fabricators v. N.L.R.B., 376 F.2d 482 (5th Cir. 1967) 55, 57 Englewood Lumber Co., 130 NLRB 394 (1961).... 31,39, 42, 55 Excelsior Underwear, Inc., 156 NLRB 1236 (1966) 76, 81 Flomatic Corp., 147 NLRB 1304 (1964), enforcement denied, 347 F.2d 74 (2d Cir. 1965)-.46, 52, 63, 67, 88, 92 Franks Bros. Co., 44 NLRB 898 (1942), enforced, 137 F.2d 989 (1st Cir. 1943), affirmed, 321 U.S. 702 (1944) 15,16,50,64,67

TABLE OF AUTHORITIES CITED (Continued)

ix Page

Furr's Inc., 157 Ν LR Β 387 (1966), enforced, 381 F.2d 562 (10th Cir. 1967), cert, denied, 389 U.S. 840 (1967) 43, 44, 46, 54, 55, 65 Galbreath Bakery, Inc., 163 NLRB No. 41, 64 LRRM 1360 (1967) 45 Gary Steel Products Corp., 144 NLRB 1160 (1963) . 41 G & A Truck Lines, Inc., 168 NLRB No. 106, 67 LRRM 1084 (1967) .... 41 The General Box Co., 82 NLRB 678 (1949) ...14,70,89 General Electric Co., 150 NLRB 192 (1964) 80 General Shoe Corp., 77 NLRB 124 (1948) 6,74 A. L. Gilbert Co., 110 NLRB 2067 (1954) 33,34 Glass Fiber Molding Co., 104 NLRB 383 (1953) .. 34 Gotham Shoe Mfg. Co., 149 NLRB 682 (1964), enforced, 359 F.2d 684 (2d Cir. 1966) ......40, 49, 79 Hammond & Irving, Inc., 154 NLRB 1071 (1965).. 45 Bernard Happach, 151 NLRB 560 (1965), enforced, 353 F.2d 629 (7th Cir. 1965) 40, 55 L. Hardy Co., 44 NLRB 1013 (1942) 14 Harvard Coated Products, 156 NLRB 162 (1965) .. 46 Joe Hearin Lumber, 66 NLRB 1276 (1946) 14 Hercules

Packing

Corp.,

163

NLRB

No.

35

(1967) 46 H & H Plastics Mfg. Co., 158 NLRB 1395 (1966) 40 H & W Construction Co., 161 NLRB 852 (1966).. 43, 45 Indiana Rayon Corp., 151 NLRB 130 (1965) .... 45 International Union, UAW V. N.L.R.B. (Aero Corporation), 363 F.2d 702 (D.C. Cir. 1966), cert, denied, 385 U.S. 973 (1966) 58,66 Int'l U. of Elee. Workers v. N.L.R.B., 352 F.2d 361 (D.C. Cir. 1965) 53 lob v. Los Angeles Brewing Co., 183 F.2d 398 (9th Cir. 1950) 51 Irving Air Chute Co., 149 NLRB 627 (1964), enforced, 350 F.2d 176 (2d Cir. 1965) ...10, 36, 64, 66 I.T.T. Semi-Conductors, Inc., 165 NLRB No. 98, 65 LRRM 1374 (1967), enforcement denied, 395 F.2d 257 (5th Cir. 1968) 41, 58, 59

X

TABLE OF AUTHORITIES CITED (Continued) Page Joy Silk Mills, Inc., 85 NLRB 1263 (1949), enforced, 185 F.2d 732 (D.C. Cir. 1950), cert. denied, 341 U.S. 914 (1951) 32,41,42,48,51 Kawneer Co., 164 NLRB No. 138, 65 LRRM 1320 (1967) 44 Kolpin Bros., 149 NLRB 1378 (1964) 36 KTRH Broadcasting Co., 113 NLRB 125 (1955) - 33,34 E. A. Laboratories, Inc., 80 NLRB 625 (1948) .... 14 Lady Esther Lingerie Corp., 10 NLRB 518 (1938) 13, 69 Lebanon Steel Foundry V. N.L.R.B., 130 F.2d 404 (D.C. Cir. 1942), cert, denied, 317 U.S. 659 (1942) ..... 13,15,50 Lenz Co., 153 NLRB 1399 (1965) 40,77 Lerner Shops, 91 NLRB 151 (1950) 31,55 Levi Strauss & Co., 172 NLRB No. 57, 68 LRRM 1338 (1968) 40,73,78 Lincoln Mfg. Co. v. N.L.R.B., 382 F.2d 411 (7th Cir. 1967) 66 Lone Drug Co. v. N.L.R.B., 391 F.2d 812 (1968).. 65 Mace Food Stores, Inc., 162 NLRB No. 153 (1967) 43,45 Marr Knitting, Inc., 90 NLRB 479 (1950) 33,34 Master Transmission Rebuilding Corp. V. N.L.R.B., 373 F.2d 402 (9th Cir. 1967) 66 McEwen Mfg. Co., 172 NLRB No. 99, 68 LRRM 1343 (1968) 91 Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678 (1944) 15,64 Montgomery Ward & Co. v. N.L.R.B., 377 F.2d 452 (6th Cir. 1967) 62 Morris & Associates, 138 NLRB 1160 (1962) 38 Nalco Chem. Co., 163 NLRB No. 19, 64 LRRM 1301 (1967) 45 The National Cash Register Co., 167 NLRB No. 153, 66 LRRM 1206 (1967) 44,46 N.L.R.B. V. A & Ρ Tea Co., 346 F.2d 936 (5th Cir. 1965) 63

TABLE OF AUTHORITIES CITED (Continued)

xi

Page N.L.R.B. V. Arkansas Grain Corporation, 392 F.2d 161 (8th Cir. 1968), reversing, 160 NLRB No. 28 . . 8, 66 N.L.R.B. V. Armco Drainage & Metal Prods., Inc., 201 F.2d 541 (7th Cir. 1953) 48 N.L.R.B, v. Armco Drainage & Metal Prods., Inc., 220 F.2d 573 (6th Cir. 1955) 33 N.L.R.B. V. Atco-Surgical Supports, 394 F.2d 659 (6th Cir. 1968) ... 54 N.L.R.B. V. Bradford Dyeing Association, 310 U.S. 318 (1940) . 15 N.L.R.B. V. Cactus Petroleum, Inc., 355 F.2d 755 (5th Cir. 1966) 60 N.L.R.B. v. Consolidated Rendering Co., 386 F.2d 699 (2d Cir. 1967) ._ ... 64 N.L.R.B. V. Dan Howard Mfg. Co., 390 F.2d 304 (7th Cir. 1968) ..... 56 N.L.R.B. V. Dan River Mills, Inc., 274 F.2d 381 (5th Cir. 1960) 60,61,62,89 N.L.R.B. V. Delight Bakery, 353 F.2d 344 (6th Cir. 1965) 52 N.L.R.B. V. Ben Duthler, 395 F.2d 29 (1968) 65 N.L.R.B. V. Epstein, 203 F.2d 482 (3d Cir. 1953).. 33, 48 N.L.R.B. v. Freeport Marble & Tile Co., 367 F.2d 371 (1st Cir. 1966), denying enforcement of 153 NLRB 810 59, 77 N.L.R.B. V. General Steel Products, 37 U.S.L.W. 3215 (U.S., Dec. 16, 1968) 49 N.L.R.B. v. Gissel Packing Co., Inc., 398 F.2d 336 (4th Cir. 1968), cert, granted, U.S. , 37 U.S.L.W. 3215 (U.S., Dec. 16, 1968) 49,53 N.L.R.B. v. Glasgow Co., 356 F.2d 476 (7th Cir. 1966) .... 58 N.L.R.B. v. Golub Corp., 388 F.2d 921 (2d Cir. 1967) 44,56,79 N.L.R.B. v. Goodyear Tire & Rubber Co., 394 F. 2d 711 (5th Cir. 1968) 54 N.L.R.B. v. Gorbea, Perez & Morrell, 300 F.2d 886 (1st Cir. 1962), on remand, 142 NLRB 475 (1963), enforcement denied, 328 F.2d 679 (1st Cir. 1964) 75

xii

TABLE OF AUTHORITIES CITED (Continued) Page N.L.R.B. V. Hamilton, 220 F.2d 492 (10th Cir. 1955) 33,48 N.L.R.B. v. Hannaford Bros. Co., 261 F.2d 638 (1st Cir. 1958) - 4 5 , 60, 62, 88 N.L.R.B. v. Heck's Inc., 398 F.2d 337 (4th Cir. 1968), cert, granted, U.S. , 37 U.S. L.W. 3215 (U.S., Dec. 16, 1968) 49, 53 N.L.R.B. V. Industrial Union, 391 U.S. 418 (1968) 25 N.L.R.B. V. Inter-City Advertising Co., 154 F.2d 244 (4th Cir. 1951) 33 N.L.R.B. V. Johnnie's Poultry Co., 344 F.2d 617 (8th Cir. 1965) 60, 70 N.L.R.B. v. Ken Rose Motors, Inc., 193 F.2d 769 (1st Cir. 1952) 33 N.L.R.B. V. Koehler, 328 F.2d 770 (7th Cir. 1964) ... . 55 N.L.R.B. V. Lake Butler Apparel Co., 392 F.2d 76 (5th Cir. 1968) 57 N.L.R.B. V. Lem Co., 396 F.2d 905 (6th Cir. 1968) 58, 59 N.L.R.B. V. Lifetime Door Co., 390 F.2d 272 (4th Cir. 1968) 54 N.L.R.B. v. Logan Packing Co., 386 F.2d 562 (4th Cir. 1967) ..... 10,23,53,54,60,61,63, 66, 74, 75, 76, 92 N.L.R.B. V. Lorrillard Co., 314 U.S. 512 (1942) 15 N.L.R.B. V. Luisi Truck Lines, 384 F.2d 842 (9th Cir. 1967) 54 N.L.R.B. v. Pembeck Oil Corp., F.2d , 69 LRRM 2811 (2d Cir. 1968) 49 N.L.R.B. V. A. G. Pollard Company, 393 F.2d 239 (1st Cir. 1968) 8 N.L.R.B. v. Preuser Scientific, Inc., 387 F.2d 143 (4th Cir. 1967) 54 N.L.R.B. V. Priced-Less Discount Foods, Inc., F.2d , 70 LRRM 2007 (6th Cir. 1968) ...... 64 N.L.R.B. V. Pyne Molding Corp., 226 F.2d 818 (2d Cir. 1955) 33, 48 N.L.R.B. v. Quality Markets, Inc., 387 F.2d 20 (3d Cir. 1967) 54, 59

TABLE OF AUTHORITIES CITED (Continued)

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Page N.L.R.B. V. Ralph Printing & Lithographing Co., 379 F.2d 687 (8th Cir. 1967) 54 N.L.R.B. V. River Togs, Inc., 382 F.2d 198 (2d Cir. 1967) 40,60,62,64,67 N.L.R.B. V. Sehon Stevenson & Co., 386 F.2d 551 (4th Cir. 1967) 24, 49, 53, 54 N.L.R.B. V. S. E. Nichols Co., 380 F.2d 438 (2d Cir. 1967) 54,56,64,75,77,79 N.L.R.B. V. Sinclair Co., 397 F.2d 157, 68 LRRM 2720 (1st Cir. 1968) 54 N.L.R.B. V. Southbridge Sheet Metal Works, 380 F.2d 851 (1st Cir. 1967) 56,66,80 N.L.R.B. V. Southland Paint Co., 394 F.2d 717 (5th Cir. 1968) 57 N.L.R.B. V. Stewart, 207 F.2d 8 (5th Cir. 1953) 33,48 N.L.R.B. V. Stow Mfg. Co., 217 F.2d 900 (2d Cir. 1954), cert, denied, 348 U.S. 964 (1955) 59 N.L.R.B. V. Swan Su-per Cleaners, Inc., 384 F.2d 609 (6th Cir. 1967) 56 N.L.R.B. V. Taitel, 261 F.2d 1 (7th Cir. 1958), cert, denied, 359 U.S. 944 (1959) 33 N.L.R.B. V. Texas Electric, F.2d (5th Cir. 1968) 40 N.L.R.B. V. James Thompson & Co., 208 F.2d 743 (2d Cir. 1953) 55, 60, 83 N.L.R.B. V. Trimfit of California, Inc., 211 F.2d 206 (9th Cir. 1954) 33, 48 N.L.R.B. V. United Mineral & Chem. Corp., 391 F.2d 828 (2d Cir. 1968) 54, 60, 64, 67 N.L.R.B. V. Frank C. Varney Co., 359 F.2d 774 (3d Cir. 1966) 66 N.L.R.B. V. Wheeling Pipe Line, Inc., 229 F.2d 391 (8th Cir. 1956) 33 N.L.R.B. V. Whitelight Prods. Div., 298 F.2d 12 (1st Cir. 1962) 48 N.L.R.B. V. Winn-Dixie Stores, Inc., 341 F.2d 750 (6th Cir. 1965) 79 New England Liquor Sales Co., Inc., 157 NLRB 153 (1966) 45

TABLE OF AUTHORITIES CITED (Continued) Page Northwest Engineering Co., 158 NLRB No. 48 (1966) 46 The Nubone Co., Inc., 62 NLRB 322 (1945) 15 Oklahoma Sheraton Corp., 156 NLRB 681 ( 1 9 6 6 ) 45 Parkside Hotel, 74 NLRB 809 (1947) 14 J. C. Penney Co., Inc. v. N.L.R.B., 384 F.2d 479 (10th Cir. 1967) 65 Peoples Serv. Drug Stores, 154 NLRB 1516 (1965), enforcement denied, 375 F.2d 551 (6th Cir. 1967) .45,62,63 Peterson Brothers, 144 NLRB 679 (1963), enforcement denied, 342 F.2d 221 (5th Cir. 1965) 40, 58 Preston Products Co., Inc., 158 NLRB 322 (1966), enforced sub nom., International Union, UAW v. N.L.R.B. (Preston Products Co.), 392 F.2d 801 (D.C. Cir. 1967), cert, denied, 392 U.S. 906 (1968) 44,49,55,80 Puerto Rico Food Products Corp., I l l NLRB 293 (1955) . . 31 Pulley v. N.L.R.B., 395 F.2d 870 (1968) 65 Rabhor Co., Inc., 1 NLRB 470 (1936) 13 Richards-Wilcox Mfg. Co., 2 NLRB 97 (1936).... 13 Roanoke Public Warehouse, 72 NLRB 1281 (1947) 14 A. Sartorius & Co., Inc., 40 NLRB 107 (1942).... 14 Scott's, Inc., 159 NLRB 1795 (1966) 63,91 John P. Serpa, 155 NLRB 99 (1965), reversed, 376 F.2d 186 (9th Cir. 1967) 43 Shelby Mfg. Co., 155 NLRB 464 (1965), enforcement denied in relevant part, 390 F.2d 595 (6th Cir. 1968) 40,59,78 S.N.C. Mfg. Co., 147 NLRB 809 (1964), enforced, 352 F.2d 361 (D.C. Cir. 1965) . 40-41, 77 Fred Snow & Sons, 134 NLRB 709 (1961), enforced, 308 F.2d 687 (9th Cir. 1962) ......10, 33, 43, 80 Southeastern Rubber Mfg. Co., Inc., 106 NLRB 989 (1953) 33 Southland Paint Co., 156 NLRB 22 (1966) 45

TABLE OF AUTHORITIES CITED (Continued)

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Sprouse-Reitz Co., Inc., 168 NLRB No. 56, 66 LRRM 1347 (1967) 43 J. P. Stevens & Co., 157 NLRB 869 (1966) 87 Strydel, Inc., 156 NLRB 1185 (1966) 43 Sunbeam Corporation, 99 NLRB 546 (1952) 73 Sunset Lumber Products, 113 NLRB 1172 (1955) .. 34 Sylgab Steel & Wire Corp., 162 NLRB No. 30, 64 LRRM 1028 (1966) 44 Textile Workers Union V. N.L.R.B., 386 F.2d 790 (2d Cir. 1967) 60, 63 20th Century Glove, 165 NLRB No. 122, 65 LRRM 1560 (1967) 45 Union Carbide Corp., 166 NLRB No. 39, 65 LRRM 1615 (1967) 46, 91 United Buckingham Freight Lines, 168 NLRB No. 90, 60 LRRM 1357 (1967) 43 United Mine Workers v. Arkansas Oak Flooring, 351 U.S. 62 (1956) 51, 53, 54 United Steelworkers of America (Northwest Engineering Co.) V. N.L.R.B., 376 F.2d 770 (D.C. Cir. 1967), cert, denied, 389 U.S. 932 (1967).... 65 Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951) 59 Universal Gear Service, 157 NLRB 1169 (1966), enforced, 394 F.2d 396 (6th Cir. 1968) 81 The Walmac Co., 106 NLRB 1355 (1953) 33, 34 Wausau Steel Corp., 160 NLRB 635 (1966), enforced, 377 F.2d 369 (7th Cir. 1967) . ..44, 45, 46, 47, 59, 60, 62, 65 Winn-Dixie Stores, Inc., 143 NLRB 848 (1963), enforced, 341 F.2d 750 (6th Cir. 1965), cert. denied, 382 U.S. 830 (1965) 38 Wright-Hibbard Industrial Electric Truck Co., Inc., 67 NLRB 897 (1946) 14 Miscellaneous : AFL-CIO Guidebook for Union Organizers (1961), quoted in Hearings Before The Subcommittee on Labor of The Senate on Labor and Public Welfare, 89th Cong., 1st Sess., p. 190 (1965)....

74

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TABLE OF AUTHORITIES CITED (Continued) Page Paul A. Abodeely, Compulsory Arbitration and the NLRB (Philadelphia: Industrial Research Unit, Wharton School of Finance and Commerce, University of Pennsylvania, 1968). Labor Relations and Public Policy Series, Report No. 1 (iii), 2 Address by Kenneth C. McGuiness, 21st Annual Conference on Labor of the New York University Institute of Labor Relations, May 14, 1968, 68 LRRM 85 1, 92, 93 1962 Proceedings, Section of Labor Relations Law, American Bar Association 14-17 70 Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 HARV. L. REV. 38 (1964) _ 6, 85 Comment, Employer "Good Faith Doubt", 116 U.PA. L. REV. 709 (1968) 83 Comment, Refusal-to-Recognize Charges Under Section 8(a)(5) of the NLRA: Card Checks and Employee Free Choice, 33 U. CHI. L. REV. 387 (1966) 38 Comment, Union Authorization Cards, 75 YALE L. J. 805 (1966) ...10, 17, 23, 26, 28, 44 Archibald Cox, Law and National Labor Policy. Institute of Industrial Relations Monograph Series No. 5., Los Angeles: University of California, 1960, p. 15 69 Drotning, NLRB Policy Toward Employer Objections to Election Misconduct, 16 LAB. L. J. 370 (1965) 8 Lesnick, Establishment of Bargaining Rights Without an NLRB Election, 65 MICH. L. REV. 851 (1967) 1,24,38,44,76,77,81,82,92 Robert Lewis, The NLRB Intrudes on the Right of Privacy, 17 LAB. L. J. 280-284 (1966) 81 Note, 72 YALE L. J. 1243 (1963) 6

Chapfet I INTRODUCTION More than 30 years after the passage of the National Labor Relations A c t 1 the fundamental concept of federal regulation of labor-management relations is now an accepted state of affairs, but the details of how the government shall regulate these relations remains vigorously in dispute. The Act itself has undergone major revisions on two occasions, reform legislation is constantly being urged, and a flood of litigation has engulfed the administration of the Act in all its stages. Perhaps no other part of the federal regulatory scheme has been the subject of as much controversy as has the representation provisions. Throughout the history of the Act, there has been disagreement as to both the methods and the standards by which a union's representative status is determined. The focal point of this disagreement has been the policies of the National Labor Relations Board, whose function it is to administer the statutory provisions. In recent months, the NLRB has been soundly scored by courts, professors, legislators, and commentators, as well as partisans, for its increased reliance upon the use of authorization cards solicited by union officials or adherents, rather than a secret ballot election, to determine whether a majority of employees desire union representation. 2 The avalanche of criticism, and the increasing rejection of the NLRB approach in the courts, necessarily impair the respect for the agency in this vital area. Yet, the Board has consistently adhered to its policy and has refused to accede to the many suggestions offered by its critics. 1 National Labor Relations Act (herein referred to as N L R A ) , 49 Stat. 449 (1935), as amended, 29 U.S.C. 151 (1964). 2

For collections of materials on this subject, see Lesnick, Establishment of Bargaining Rights Without an NLRB Election, 65 MICH. L. REV. 851 nn. 2-5 (1967) ; Address by Kenneth C. McGuiness, 21st Annual Conference on Labor of the New York University Institute of Labor Relations, May 14, 1968, in 68 LRRM 85 nn. 6-7.

[1]

It is the Board's current policy on the use of authorization cards to establish bargaining obligations without secret ballot elections that is the subject of this study. We drop back a step from the first report in this series, in which Mr. Paul A. Abodeely examined the details of what the law and the NLRB require management to do in bargaining with a majority representative, 3 and here analyze the law and NLRB policy in establishing the existence of a bargaining relationship. LEGISLATIVE BACKGROUND Prior to the enactment of the National Labor Relations Act (or the Wagner Act, as it is commonly called), the process of "organizing" employees consisted of a union contacting a sufficient number of employees and marshalling a sufficient degree of sentiment in order to force management to accept the union as the representative of the employees in his plant. The "force" used was a strike or other economic or physical retaliation, usually through the employer's suppliers or customers, or the threat of such action; and management's response was customarily just as forceful. Industrial history is filled with tales of the fierce conflicts that occurred. The Wagner Act represented a legislative decision that the public interest required the cessation of such unrestrained private warfare. In its place, the Act substituted the force of law for the force of power and violence when "organization" of employees was at stake.4 Thus, the Wagner Act protected the right of employees to engage in organizational activity without coercion or interference from their employer ; 6 and it required employers to bargain with unions which represented a majority of the 5

Paul A. Abodeely, Compulsory Arbitration and the NLRB (Philadelphia: Industrial Research Unit, Wharton School of Finance and Commerce, University of Pennsylvania, 1968). Labor Relations and Public Policy Series, Report No. 1. 4

NLRA, §§ 1, 7-10, 49 Stat. 449, 452-453 (1935), as amended, 29 U.S.C. § 151, 157-160 (1964). 5 NLRA, § 8(1), 49 Stat. 452 (1935), as amended, 29 U.S.C. § 158 (1964).

[2]

employees.® But it was a fundamental concept of the Act, as it has been since, that bargaining be imposed only where a majority of the employees in an appropriate unit have freely expressed their desire to be represented by a particular bargaining representative. 7 The Wagner Act left the standards for determining the existence of majority representation quite general and delegated the determination to the NLRB. The statutory language setting forth these standards was altered by the TaftHartley Amendments in 1947, and the congressional intent in making the change has fairly been in dispute since then. Some argue that Congress intended to make the secret-ballot election the sole method of determining questions of representation; others argue that Congress did not so intend, and in fact rejected such a proposal. To our knowledge, the Board has never in a published decision reconciled the competing arguments as to the congressional intent and articulated its reasons therefor. THE ISSUE DEFINED: DOES THE NLRB POLICY COMPORT WITH STATUTORY PURPOSES? Our purpose here is to examine the current policy of the NLRB to determine if its reliance upon authorization cards effectuates statutory purposes. Does the use of the authorization card procedure for determining representatives provide employees "full freedom" in the "designation of representatives of their own choosing?" 8 Before proceeding with this examination, however, a brief sketch of the two ways in which a union can win exclusive bargaining rights will set the stage for the analysis that follows. The "Normal" Road to Recognition A union's "normal" organization of a group of employees, like the "average man", is not a statement of true industrial "NLRA, §§8(5), 9(a), 49 Stat. 452-453 (1935), as 29 U.S.C. § 158-159 (1964).

amended,

'NLRA, § 9(a), 49 Stat. 453 (1935), as amended, 29 U.S.C. § 159(a) (1964). 8

NLRA, §1, 49 Stat. 449 (1935), as amended, 29 U.3.C. §151 (1964).

[3]

facts; but the stereotype must be briefly considered in order to understand fully the phenomenon of authorization cards. "Organization" is used to designate the entire process of a union's first contacting a group of employees, and of the ensuing efforts to discover, to promote, or to organize sufficient employee sentiment in favor of the union to win a representation election. Once the election is won and the results "certified", the force of law, the National Labor Relations Act, requires the employer to "recognize" the union as the exclusive "certified" representative of all his employees, not just those voting for the union, and requires the employer to bargain with the union in good faith over the terms and conditions of employment in the plant. If the employer refuses, the NLRB can issue a bargaining order, enforceable by the courts under pain of contempt. Section 9(a) of the Act provides that: 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 employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. . . . Section 9(c) then provides that: 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 employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in Section 9(a), or (ii) assert that the individual or labor organization which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in Section 9(a) ; or (B) by an employer, alleging that one or more individual or labor organizations have presented to

[4]

him a claim to be recognized as the representative defined in Section 9(a) . . . If the Board finds . . . that . . . a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. Earlier in the statute, Section 8(a) (5) defines one enumerated unfair labor practice in terms relating to Section 9 : It shall be 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 ) . Representation Elections Within this statutory outline, NLRB rules establish various procedures and requirements for conducting elections. Most of the relevant requirements relate to the secret-ballot elections prescribed by Section 9(c) of the Act. Petitions from either unions, employees, or employers will result in such secret-ballot elections if the Board's investigation reveals that "a substantial question of representation exists". By Board rule, such elections are ordered and conducted by the Board's agents when a union can demonstrate that 30 per cent of the employees which it seeks to organize desire an election. If an employer and a union agree, some of the adversary proceedings which normally precede and follow a secret-ballot election can be eliminated pursuant to the authority of Section 9 ( c ) ( 4 ) . 9 Such "consent elections" save considerable time and money for all parties. The contested election customarily takes over 100 days from petition to ballot and may generate considerable counsel fees. If, moreover, an employer resists unionization or is in doubt as to an important legal question such as, for example, the appropriate unit, whether certain employees are supervisors, or whether the NLRB has jurisdiction, the legal steps preceding an election may become quite involved. Whether an election is consented to or contested, it is preceded by several organizing steps. First the union and its 9 Labor-Management Relations Act 29 U.S.C. § 159(c) (4) (1964).

[5]

(Taft-Hartley)

§ 9(c) (4),

"organizers" must make contact with the employees and interest them in organizing. Even when union sentiment starts within the unit of employees, the invited "organizers" explain union advantages, disseminate wage and benefit information, and persuade employees that they need and want a union representative and namely that particular union or local. Discussions and persuasion take place on the job, after work, at the plant, at homes, in bars, even at church. As in any such pre-campaign period of other open elections, the "other side" is customarily active as well. Employers attempt to gather information about the union movement, plan opposition strategy for any election, and attempt to lay the foundation for winning any such election if it should be ordered. The NLRB has developed an elaborate body of rules, both formal and decisional, designed to govern secret-ballot representation elections. The announced goal of the rules is creation of "laboratory conditions" for the exercise of employee free choice.10 In pursuit of this ideal, the rules govern a myriad of items : equal access to employees to make speeches, union rights to use company property, union rights to lists of employees and their addresses, no campaign communications in the 24-hour period before the vote, no talking at the polls, and many others. A considerable body of litigation has come from the Board's efforts to police these election campaigns.11 Particularly troublesome has been the NLRB's effort to make the employee's choice free by declaring that an employer's speeches constitute "coercion" because the "expression" contains a threat of reprisal or force or promise of benefit. Thus despite the language of Section 8(c) of the Act 1 2 The expressing of any views, arguments, or opinion or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be eviGeneral Shoe Corp., 77 NLRB 124, 127 (1948); Dal-Tex Optical Co., 137 NLRB 1782 (1962) ; see generally Note, 72 YALE L.J. 1243 (1963) ; Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 HARV. L. REV. 38, 65 (1964). 10

11

See, e.g., Bok, supra n. 10.

12

Taft-Hartley Act, § 8 ( c ) , 29 U.S.C. § 158(c)

[6]

(1964).

dence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit; an employer's vigorous campaign tactics are not unfrequently found to violate Section 8 ( a ) (1) of the Act: 13 It shall be an unfair labor practice for an employer— . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 [the rights to organize or refrain from organizing . . . and to choose their own representative.] These N L R B determinations of unfair labor practices whether against management, or, in the rare case against a union, are also a sufficient reason to void the results of elections that have been held and to order a re-run to discover the "uncoerced" choice of the employees. In an additional large category of cases, not directly reviewable by the courts because it constitutes a mere exercise of delegated administrative discretion to order an election and not to impose any penalty for violation of law, free choice for the employees is protected by voiding election results and ordering a re-run because of speeches or election tactics which interfere with the "free choice" of the employees, but do not rise to the level of an unfair labor practice. In this second category of cases, restraints on employer free speech in particular are imposed in the name of employee freedom of choice. Under the general procedure followed, once the ballots are cast, either union or management can challenge individual votes on specific (and usually "technical") grounds and if a sufficiently large number of ballots are invalidated to affect the outcome, the election results can be disregarded and a re-run ordered. In other cases if union or management preelection misbehavior is serious enough, generally, to impugn the entire election, a re-run will be ordered, as noted above, regardless of whether the misbehavior amounts to an unfair labor practice and regardless of whether the complaining party can tie each violation or action to specific votes. 13

Taft-Hartley Act, § 8(a) (1), 29 U.S.C. § 158(a) (1) (1964).

[7]

In assessing the challenges to an election, the Board generally attributes great effect to management's economic prediction or promises, even holding that a lower echelon supervisor's statements taint the entire election result. A union's economic threats and promises on the contrary, do not generally so taint free choice—apparently on the "practical" theory that until the union has won, it lacks power to enforce any promises or threats. 14 Moreover, each act of union coercion usually overturns only the vote of the employee addressed. The presumption used for management action, that the word spreads through the plant, apparently does not operate when the union agent acts. (And of course the N L R B requires evidence of specific authority before it will consider any employee as a union "agent".) In short, the N L R B has taken its duty to conduct secret-ballot elections quite seriously and regards its zealous administrations of this part of the statute quite proudly. The General Counsel's letterhead, for instance, carries the information that " 2 5 million American Workers Voted in National Labor Relations Board Elections 1935-1967." But it can fairly be said that in the name of protecting the employee, the NLRB has gone particularly far in assisting the union seeking an election victory. A future study in this series will examine the Board's "unit definition," and its impact on union election efforts. For purposes of the present investigation, however, it is important to note the vital importance that "protection of employee free choice" assumes in the NLRB's administration of the secret ballot election—the "normal" and specifically-named statutory measure of majority representation. The Authorization Card Route Once a union wins a secret ballot election and is "certified" as the majority representative, the force of law compels the employer to bargain with the union. That is, if the em14 See generally Draining, NLRB Policy Toward Employer Objections to Election Misconduct, 16 LAB. L.J. 370 ( 1 9 6 5 ) . See also N.L.R.B. V. Arkansas Grain Corporation, 392 F.2d 161 (8th Cir. 1968), reversing 160 NLRB. No. 28, a case where employer speech was protected; and N.L.R.B. v. A.G. Pollard Company, 393 F.2d 239 (1st Cir. 1968), where the court struggled with the difficult law on union misrepresentations.

[8]

ployer refuses to bargain with the union, an unfair labor practice charge under Section 8(a) (5) can be brought, and the resulting NLRB order, directing the employer to bargain with the union upon its request can be enforced in the federal courts of appeal. The penalty for then refusing to bargain becomes contempt. The union can reach the same state of affairs, however, without winning an election or even after losing one. This technical and involved alternative route to "organization" is done by accumulating employee signatures on "authorization cards." The use of these cards is generally as follows. The organizing union distributes to its organizing agenta and to pro-union employees, small cards or even pieces of paper which somewhere have language on them that "blank" authorizes the union to represent him for the purposes of collective bargaining. The cards may have other language talking of elections to be held, or may, for example, be styled as union membership applications subject to a list of conditions spelled out in lengthy fine print. A goal of the organizer's activity then becomes not only to drum up as much pro-union feeling as possible, but also to get as many "cards" as possible with an employee's name in the blank. As a minimum, the cards will help the union show the 30 per cent interest needed for an election. More importantly, however, if signatures of over 50 per cent of the employees are obtained, the union may have obtained election victory insurance. With signatures of more than one-half the unit, a union representative then writes, phones, wires, or personally informs the employer that it represents a majority of his employees. The union representative must also explicitly ask the employer to bargain with his organization as exclusive agent of the employees involved. Generally, also, the union officiai politely offers to prove its card majority to the employer if he desires or to submit the cards to a third party for counting—often the clergyman of the employer's choice. The employer may, at that stage, voluntarily recognize the union as majority representative and begin bargaining. If the employer refuses, the union has two options. First, it may withdraw its petition for representation and file a re-

[9]

fusai to bargain charge with the NLRB. If the Board finds that the union did succeed in obtaining cards from a majority of the employees in the unit and that the employer had no "good-faith doubt" of that majority, the Board may order bargaining without an election.15 Second, the union may proceed with the election; but, if it loses the election and the employer engages in unfair labor practices during the preelection campaign, the union may still file a refusal to bargain charge.18 After a hearing on these charges, the NLRB may then determine that the employer had no good-faith doubt of the union's majority status at the time of demand, and that it then refused to bargain with the union because of its desire to gain time in which to engage in unfair labor practices designed to undermine the union's majority status. Where this determination is made, the NLRB will set the election aside and order the employees to bargain with the union.17 From this brief sketch, the basic arguments both for and against reliance on authorization cards become evident. Is the authorization card, solicited without NLRB supervision and prior to any counter-argument by the employer, a valid test of employee support for the union in comparison to a secret-ballot election conducted and supervised by the NLRB after a campaign allowing each side to present its views? 18 15

See Fred Snow & Sons, 134 NLRB 709 (1961), enforced, 308 F.2d 687 (9th Cir. 1962), where the employer's conduct at the time he receives the bargaining demand may reveal he has no actual doubt of the union's majority. An employer's unfair labor practices may also be used to show lack of such doubt. See The Cuffman Lumber Co., Inc., 82 NLRB 296, 298-299 (1949). 19

Bemel Foam Products Co., 146 NLRB 1277 (1964).

17

Id.; Irving Air Chute Co., 149 NLRB 627 (1964).

18

It is well known that authorization cards solicited directly from employees are frequently signed for reasons other than to designate the soliciting union as bargaining representative—e.g., the difficulty in saying "no" to persistent pressure, social pressure when friends are present or urge signing, getting the solicitor "off my back," threats and coercion by solicitors, misrepresentation as to the purposes of the card. See N.L.R.B. V. Logan Packing Co., 386 F.2d 562, 565-566 (4th Cir. 1967) ; Comment, Union Authorization Cards, 75 YALE L.J. 805, 823-828 (1966). For a fuller discussion of these and other deficiencies in reliance upon cards, see pp. 74-82 infra.

[10]

On the other hand, should an employer, who destroys a valid union majority through his unfair labor practices prior to a secret-ballot election, be alowed to take advantage of his own illegal acts and thereby avoid the obligation to bargain? Third, does a bargaining order under these conditions effectuate the purposes of the Act? The NLRB approach has been to seek a reconciliation of the competing arguments. A fourth question arising from this approach is whether the reconciliation achieved by the NLRB comports with the legislative intent behind the TaftHartley Act. In our view, the NLRB's reconciliation of these arguments has weighted the second argument much too heavily, has overlooked to some extent what Congress was plainly concerned about in enacting Taft-Hartley, and has developed a test which is just not workable. In the ensuing chapters, we will attempt to establish the historical development of the NLRB policy on authorization cards, question what Congress intended by its amendments incorporated into the TaftHartley Act, and describe the NLRB policy and the judicial reaction after Taft-Hartley; finally, we will criticize the NLRB's current policy and discuss changes in that policy which would be more consistent with statutory purposes and with the efficient and equitable administration of the Act.

[U J

Chspfei· II T H E WAGNER ACT: S P E C I F I C AUTHORIZATION FOR THE USE OF CARDS TO D E T E R M I N E REPRESENTATION QUESTIONS The Wagner Act, as passed in 1935, for the first time obligated an employer as a matter of law to "bargain collectively with the representatives of his employees." 1 This bargaining obligation, however, was expressly conditioned upon a representative being "designated or selected for the purposes of collective bargaining by a majority of the employees in a unit appropriate for such purposes." 2 The Act elucidated no specific standard for determining whether or not a majority of employees desired representation; rather, it authorized the NLRB to "take a secret ballot of employees, or utilize any other suitable method to ascertin (sic) such representatives." 3 The NLRB, in its early decisions under the Act, freely relied on methods other than secret-ballot elections to determine that a majority of the employees had designated a union as its bargaining representative. Authorization cards were often used for this purpose, as were union membership cards, strike rolls, testimony as to participation in a strike, 1

National Labor Relations Act, § 8 ( a ) (5), 49 Stat. 452 (1935), 29 U.S.C. § 158(a) (5) (1964) [hereinafter cited as NLRA]. 2

NLRA, § 9(a), 49 Stat. 453 (1935). (Emphasis supplied.)

3 NLRA, § 9 (c), 49 Stat. 453 (1935). That section provided in full:

Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under Section 10 or otherwise, and may take a secret ballot of employees or utilize any ether suitable method to ascertin (sic) such representatives.

[12]

acceptance of strike benefits, and authorization for checkoff of union dues. 4 The usual method of establishing majority status, other than by secret-ballot election, was by a showing of authorization cards solicited by union officials or adherents. After a majority of the employees had signed cards, the union would inform the employer of its status and demand bargaining. If the employer refused to bargain, the union would either file a petition for representation or a refusal to bargain charge with the NLRB. The NLRB would hold a hearing and determine from whatever evidence was adduced whether or not the union validly represented a majority of the employees. If it so found, the NLRB would, depending on the action sought, either certify the union or issue a bargaining order to remedy a finding of the refusal to bargain. 5 The NLRB, relying on the language of Section 9, flatly rejected the contention that there should be a secret ballot election before a bargaining order issued.® After a brief period of almost unquestioned reliance upon authorization cards as a true measure of employee sentiment, the NLRB decisions began to indicate that cards could be subject to attack for that purpose. In Lady Esther Lingerie Corp.,7 the Board noted that an authorization card was subject to discrediting evidence as to its purpose. In addition, although the Board had early utilized methods other than an election to grant certification to a union as majority representative under Sections 9 ( a ) and 9 ( c ) , 8 it, in its words, "abandoned the practice in 1939, in the interest of investing its certifications with more certainty and prestige by basing 4

See, e.g., Delaware-New Jersey Ferry Co., 1 NLRB 85 (1935) ; Atlas Bag & Burlap Co., 1 NLRB 292 (1936) ; Rabhor Co., Inc., 1 NLRB 470 (1936) ; Lebanon Steel Foundry v. N.L.R.B., 130 F.2d 404, 406-408 (D.C. Cir. 1942), and cases cited nn. 6-10 therein. 5

See, e.g., Delaware-New Jersey Ferry Co., 1 NLRB 85 (1935) ; Richards-Wilcox Mfg. Co., 2 NLRB 97 (1936). 6

Benjamin

Fainblatt,

4 NLRB 596, 600 (1937).

' 10 NLRB 518 (1938). 8

Richards-Wilcox Mfg. Co., 2 NLRB 97 (1936); American anamid, 2 NLRB 881 (1937).

[13]

Cy-

them on free and secret elections conducted under the Board's auspices." 9 Thus, the NLRB recognized at that time that a secret ballot election was preferable as a measure of employee support to a count of authorization cards. It specifically so stated a few years later in Joe Hearin Lumber,10 as follows : We do not feel, however, that a card check reflecta employees' true desires with the same degree of certainty as such an [secret-ballot] election. As a result of this recognition, the NLRB began to introduce another factor into its reasoning before ordering bargaining on the basis of a card majority: it inquired into the employer's motive for refusing to recognize the union, and refused to order bargaining where it found the employer had a good faith doubt of the union's majority status. 11 Thus, in a case of a close majority of cards, the NLRB would entertain a defense of good-faith doubt wherever the employer could support that assertion by objective evidence and his other conduct did not belie the assertion. 12 More often, however, the Board would find that the employer's anti-union conduct, particularly his unfair labor practices, established that he had no good-faith doubt, but instead, that he had refused to bargain because of his desire to f r u s t r a t e the employees' efforts of self-organization and because of his positive rejection of the principles of collective bargaining. 13 In many » The General Box Co., 82 NLRB 678, 683 (1949), citing The Cudahy Packing Co., 13 NLRB 526, 531-532 (1939), and Armour & Co., 13 NLRB 567 (1939). 10

66 NLRB 1276, 1283 (1946).

"Chicago Apparatus Co., 12 NLRB 1002 (1939); A. Sartorius & Co., Inc., 40 NLRB 107 (1942) ; L. Hardy Co., 44 NLRB 1013 (1942) ; Roanoke Public Warehouse, 72 NLRB 1281 (1947). 12 A. Sartorius & Co., Inc., supra; Joe Hearin Lumber, 66 NLRB 1276 (1946) ; E. A. Laboratories, Inc., 80 NLRB 625 (1948). Direct evidence was practically unobtainable without polling or interrogating the employees about their desires, and the NLRB often found such conduct constituted illegal interference with employees and was inadequate evidence on which to base a good-faith doubt. Parkside Hotel, 74 NLRB 809, 811 (1947).

" See, e.g., Wright-Hibbard 67 NLRB 897 (1946).

Industrial

[14]

Electric

Truck Co., Inc.,

cases, the NLRB, after finding the existence of practices, concluded that "an employer cannot say that he entertains an honest doubt as to a jority status where he conducts a campaign to majority." u

unfair labor be heard to union's madestroy that

Thus, under the Wagner Act the NLRB freely relied upon authorization cards to establish a bargaining obligation without an election. In brief, the NLRB concluded that authorization cards were a "suitable method" for determining majority under Section 9(c) of the Act; it gave little indication of concern for supervising the manner of solicitation of cards ; 1 5 and it precluded an employer's defense of a good faith doubt, which would have required the holding of an election, whenever the employer engaged in unfair labor practices during the critical period. This policy was widely accepted by the courts. The courts of appeals, in affirming this policy, often remarked that "[t]he Wagner Act requires no specific form of authorization to bargain collectively . . . . An application for union membership implies authority to bargain." 18 Furthermore, the Supreme Court in several cases early in the administration of the Act affirmed the use of the cards to determine majority, and upheld bargaining orders issued after a loss of the union's majority had been occasioned by the employer's unfair labor practices.17 In the leading case of Franks Bros. Co. v. N.L.R.B.,18 the Court upheld the propriety of a bargaining order to remedy a "refusal to recognize" upon presentation of authorization " Consolidated Machine Tool Corp., 67 NLRB 737 (1946), enforced, 163 F.2d 376 (2d Cir. 1947), cert, denied, 332 U.S. 824 (1948) ; The Nubone Co., Inc., 62 NLRB 322, 326 (1945). " S e e The Nubone Co., Inc., 62 NLRB 322 (1945) ; Machine Tool Corp., supra, 67 NLRB at 739. le

Lebanon Steel Foundry v. N.L.R.B., Cir. 1942), and cases cited therein. 17

Consolidated

130 F.2d 404, 406-408 (D.C.

N.L.R.B, v. Bradford Dyeing Association, 310 U.S. 318 (1940) ; N.L.R.B. v. P. Lorrillard Co., 314 U.S. 512 (1942) ; Medo Photo Supply Corp. V. N.L.R.B., 321 U.S. 678 (1944). » 3 2 1 U.S. 702 (1944).

[15]

carda. There, 45 of 80 employees had signed cards designating the union as their bargaining representative. After the parties consented to an expedited election under NLRB auspices, the employer threatened to close the plant if the union won the election.19 Shortly before the scheduled election the union withdrew its election petition, alleging the employer's unfair labor practices had destroyed the possibility of a fair election. The Board found the union had enjoyed majority status at the time of its demand, that the employer's unfair labor practices undermined the majority status, and that a bargaining order should issue to remedy the unfair labor practices.20 The Court enforced. It affirmed the Board's finding of majority status based on cards, and rejected the employer's contention that no bargaining order should issue since 13 of the 45 card signers no longer worked for the employer.21 The Court held that as long as a majority supported the union at the time of the illegal acts, a subsequent loss of majority support could not bar issuance of a bargaining order.22 The Court reasoned : 23 The Board might well think that were it not to adopt this type of remedy, but instead order elections upon every claim that a shift in union membership had occurred during proceedings occasioned by an employer's wrongful refusal to bargain, recalcitrant employers might be able by continued opposition to union membership indefinitely to postpone performance of their statutory obligation. In the Board's view, procedural delays necessary fairly to determine charges of unfair labor practices might in this way be made the occasion for further procedural delays in connection with repeated requests for elections, thus providing employers a chance to profit from a stubborn refusal to abide by the law. That the Board was within its statutory authority in adopting the remedy which it has adopted to foreclose 19 Franks Bros. Co., 44 NLRB 898, 903-904 (1942), enforced, 137 F.2d 989, 991-992 (1st Cir. 1943), affirmed, 321 U.S. 702 (1944). 20

44 NLRB at 911-912, 917.

21

321 U.S. at 703-705.

22

321 U.S. at 705.

23

321 U.S. at 705.

[16]

t h e probability of such f r u s t r a t i o n s of the Act seems too plain f o r anything but statement. See 29 U. S. C. § 160 (a) and (c). Thus, the N L R B ' s policy under the W a g n e r Act received explicit approval f r o m the courts. The policy undoubtedly encouraged union reliance on authorization cards r a t h e r t h a n secret-ballot elections. For a variety of reasons which will be discussed later in this monograph, obtaining signatures on authorization cards has traditionally been easier for unions than the securing of votes at an election. 24 Moreover, a union can hold a signed card over a long period of time while soliciting other support, but a m a j o r i t y m u s t exist a t a given moment in order to win an election. Once an employee signs a card, he is "locked in" ; rarely can he effectively retrieve his card. F u r t h e r m o r e , employer u n f a i r labor practices may affect an election, and require the ordering of a new election. Such practices not only seldom initiate the withdrawal of a card, but also can predicate issuance of a bargaining order even if the employees who signed no longer desire representation. Accordingly, in many cases the "card r o u t e " was s a f e r for a union. It was undoubtedly this encouragement of and increased reliance upon authorization cards t h a t brought about a change in the s t a t u t o r y language in T a f t Hartley Act.

24

See Comment, Union Authorization 818-819, 829 (1966).

[17]

Cards, 75 YALE L.J. 805,

Chapter III THE STATUTORY CHANGES ARISING FROM THE TAFT-HARTLEY AMENDMENTS—CONGRESSIONAL INTENT AND EFFECT When the 80th Congress undertook to revise and to rewrite the National Labor Relations Act in 1947, a major concern of that body was the NLRB practice, as authorized under that Act, of relying upon methods other than a secretballot election to determine questions of representation. Senator Robert Taft, author of the Senate bill which eventually became the Taft-Hartley Act, described this practice as "one of the matters which created the greatest complaint in the early days, and still does . . . . " 1 Other Senators and Congressmen expressed similar views, and both houses ultimately passed measures designed to remedy this practice to some extent. A study of these measures, and the extent to which they were included in the Act, follows in the ensuing pages. THE HOUSE BILL The Hartley bill, as reported by the House Committee on Education and Labor, included a provision to amend Section 8 ( a ) (5) to read as follows: It shall be an unfair labor practice for an employer— . . . to refuse to bargain collectively with the representative of his employees currently recognized by the employer or certified as such under section 9.2 The purpose of this provision was to require employers to recognize only unions which had been certified after an NLRB election. Of course, an employer, under the amendment could still voluntarily recognize a union if he was satisfied of its majority status. As the House Committee explained in its report: 1

93 Cong. Ree. 3954 (daily ed., April 23, 1947) [2 LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947 (herein referred to as LEG. HIST.), at 1013 (1948)]. 2

H.R. 3020, 80th Cong., 1st Sess. 21 (1947) [1 LEG. HIST. 51].

[18]

. . . if an employer is satisfied that a union represents the majority and wishes to recognize it without ita being certified under section 9, he is free to do so as long as he wishes, but as long as he recognizes it, or when it has been certified, he must bargain with it. If he wishes not to recognize an uncertified union, or, having recognized it, stops doing so, the union may ask the Board to certify it under section 9.3 This provision remained intact during the House floor debates, and was included in the Hartley bill as it passed the House. 4 The Hartley bill also amended Section 9(c) in several aspects important here. First, it eliminated the language which allowed the Board to determine representative status by way of either a "secret ballot of employees or . . . any other suitable method." Second, it added a new provision which gave an employer a right to petition the NLRB for an election when a union claimed majority status; and it made an election mandatory when a question of representation was found to exist. 5 The purpose of these provisions, according to the Committee Report, was to set forth "the procedure by which employers, employees, and representatives may obtain elections in which employees may determine whether or not they wish a representative to act as their exclusive representative . . ." 8 Under the Wagner Act, the NLRB permitted an employer to petition for an election only when two or more unions demanded recognition ; the amendment eliminated the condition, and vested the employer with a right secret ballot and shall certify the results thereof." 11 3 H.R. Rep. No. 245, 80th Cong, 1st Sess. 30 (1947) [1 LEG. HIST. 321], 4

93 Cong. Ree. 3747 (daily ed., April 17, 1947) [1 LEG. HIST. 178]. 5 H.R. 3020, 80th Cong., 1st Sess. 29-30 (1947) [1 LEG. HIST. 59-60].

"H.R. Rep. No. 245, 80th Cong., 1st Sess. 35 (1947) [1 LEG. HIST. 326]. 7

H.R. Rep. No. 245, 80th Cong., 1st Sess. 35 (1917) [1 LEG. HIST. 326], [19]

A minority of the House Committee objected to the mandatory election requirement of Section 9 ( c ) , arguing that "these provisions destroy much well-settled Board doctrine looking toward the maintenance of stability in collectivebargaining relationships." 8 Despite these arguments, the provisions were retained in the Hartley bill as it passed the House.® T H E S E N A T E BILL The Senate bill, as reported by the Senate Committee on Labor and Public Welfare, did not amend the language of Section 8 ( a ) (5). 1 0 That bill did, however, provide for amendments to Section 9 ( c ) substantially in accord with the amendments to that section in the Hartley bill. It, too, eliminated the Wagner Act language allowing the Board to determine representatives by any "suitable method" ; it provided employers with a right to petition for an NLRB election when "one or more" labor organizations presented a "claim to be recognized as the representative defined in section 9 ( a ) " ; and it required that the Board, upon finding a question of representation existed, "shall direct an election by. secret ballot and shall certify the results thereof." 11 In explaining the need for this amendment, the Senate Committee 12 pointed out that the NLRB's practice discriminated against employers in not allowing them to petition for secret-ballot elections when a union demanded recognition or engaged in a strike for recognition. 13 Senator Taft, in 8 H.R. Minority Rep. No. 245, 80th Cong., 1st Sess. 85-86 (1947) [1 LEG. HIST. 376-377], 9

H.R. 3020, 80th Cong., 1st Sess. 28-29 (1947) [1 LEG. HIST. 185-186]. 10

S. 1126, 80th Cong., 1st Sess. 13 (1947) [1 LEG. HIST. 111].

11

S. 1126, 80th Cong., 1st Sess. 19-20 (1947) [1 LEG. HIST. 117-118], 12

The minority report objected only to the right to petition after a bargaining relationship had been established. S. Rep. No. 105, 80th Cong., 1st Sess., Part 2, 11 (1947) [1 LEG. HIST. 473]. 13

S. Rep. No. 105, 80th Cong., 1st Sess. 10-11 (1947) [1 LEG. HIST. 416-417].

[20]

discussing the amendment during the floor debates, argued in favor of the amendment, as follows: Today an employer is faced with this situation. A man comes into his office and says, "I represent your employees. Sign this agreement, or we strike tomorrow." Such instances have occurred all over the United States. The employer has no way in which to determine whether this man really does represent his employees or does not. The bill gives him the right to go to the Board under those circumstances, and say, "I want an election. I want to know who is the bargaining agent for my employees." Certainly I do not think anyone can question the fairness of such a proposal. 14 During the debates, other senators expressed agreement, apparently without challenge, that an employer should be allowed to petition for an election to ascertain "whether the union really represents and is the choice of the majority of his employees." 15 As Senator Ball explained, the amendment gives the employer "the right to make sure, by a democratic election, that a union really represents his employees before he negotiates a contract with it." 1B The Senate approved the amendment to Section 9(c), and the entire Senate bill passed 68 votes to 24.17 Thereafter, conferees from the Senate and House sought to reconcile differences in the bills as passed by the respective houses.

" 9 3 Cong. Ree. 3954 (daily ed., April 23, 1947) [2 LEG. HIST. 1013], 15

93 Cong. Ree. 5146 (daily ed., May 12, 1496] (remarks of Sen. Ball) ; 93 Cong. Ree. 10, 1947) [2 LEG. HIST. 983] (remarks of Ree. 5105 (daily e d . May 9, 1947) [2 LEG. marks of Sen. Murray).

1947) [2 LEG. HIST. 1911 (daily ed., March Sen. Morse) ; 93 Cong. HIST. 1452-1453] (re-

16 93 Cong. Ree. A2377 (daily ed., May 13, 1947) [2 LEG. HIST. 1523]. 17

93 Cong. Ree. 5297 (daily ed., May 13, 1947) [2 LEG. HIST. 1522], Actually, the Senate brought up the Hartley bill, as passed by the House, and substituted its terms with the Senate bill, as amended.

[21]

THE AMENDMENTS AS PASSED At conference, the amendment to Section 8(a) (5), as made in the House bill, was dropped, and the original Wagner Act language was retained. The conference report erroneously indicated that "[n] either the House bill nor the Senate amendment [had] changed the wording of the provisions" of Section 8(a) (5). 18 Beyond that, no reason was given for dropping the House version of Section 8(a) (5). As to Section 9 ( c ) , the conferees followed the provisions of the Senate amendment, which, they agreed, contained most of the provisions of the House bill.19 Both houses subsequently agreed to the conference report,20 and the bill was enacted into law over a presidential veto.21 Thus, the representation provisions of the new law were as follows: (1) the language of Section 8 ( a ) ( 5 ) remained unchanged from the Wagner Act—an employer committed an unfair labor practice if he refused "to bargain collectively with the representatives of his employees, subject to the provisions of Section 9 ( a ) ; " 2 2 (2) the language of Section 9(a) was unchanged for purposes relevant to this discussion, providing that " [r] epresentatives 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 employees in such unit . . ,;" 2 3 and (3) Section 9(c) was completely revised to read: 18

H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 41 (1947) [1 LEG. HIST. 545]. 19 H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 50 (1947) [1 LEG. HIST. 554]. 20

93 Cong. Ree. 6549 (daily ed., June 4, 1947) [1 LEG. HIST. 899-900] ; 93 Cong. Ree. 6695 (daily ed., June 6, 1947) [2 LEG. HIST. 1620-1621], 21

93 Cong. Ree. 7504 (daily ed., June 20, 1947) [1 LEG. HIST. 922-923] ; 93 Cong. Ree. 7692 (daily ed., June 23, 1947) [2 LEG. HIST. 1656]. 22 Labor-Management Relations Act (Taft-Hartley Act) (5), 29 U.S.C. § 158(a) (5) (1964).

« Taft-Hartley Act, § 9(a), 29 U.S.C. § 159(a) (1964).

[22]

§8(a)

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 employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in Section 9(a), or (ii) assert that the individual or labor organization which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in Section 9(a) ; or (B) by an employer, alleging that one or more individual 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 . . . . If the Board finds . . . that a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. 24 CONGRESSIONAL INTENT Sharp disagreement has arisen over what can be ascribed as the congressional intent behind the amendments which were finally adopted in the Taft-Hartley Act. Two basic views have developed. One view is that Congress intended to require the NLRB to hold a secret-ballot election as the sole method for determining whether a union enjoyed majority status. 25 This theory is drawn from Congress' complete revision of Section 9(c), which, first, dropped the Wagner Act language allowing the NLRB to determine representative status either by "secret ballot" or "any other suitable method," and, second, provided only for a secret24

Taft-Hartley Act, § 9(c), 29 U.S.C. § 159(c) (1964).

« Ν.L.R.B. V. Logan Packing Co., 386 F.2d 562 (4th Cir. 1967) ; Comment, Union Authorization Cards, 75 YALE L. J. 805, 820 (1966).

[23]

ballot procedure, which it made mandatory, for the determination of questions of representation. 1 ' 6 Moreover, according to this view, the provision of Section 9(c) which gave the employer the right to petition for an election after a union claimed majority status, and the legislative history supporting this right (as discussed above), suggest that that section was revised to grant an employer an absolute right to an election upon such demand. 27 The contrary view is that the Taft-Hartley Act was not meant to eliminate NLRB reliance upon authorization cards to determine union representative status. 28 That interpretation relies on the failure of Congress to adopt the provision passed by the House, which amended Section 8 ( a ) ( 5 ) to require employers to recognize only unions certified (after an election) by the NLRB; this provision of the Hartley bill, as we discussed earlier, was omitted by the conference committee which retained the language of the Wagner Act in Section 8(a) (5) while at the same time erroneously reporting that the Hartley bill contained no proposed changes to that section. 29 Further, according to that interpretation, Section 8(a) (5) specifically obligates bargaining with representatives chosen in accordance only with Section 9 (a) ; 3 0 and Section 9 ( a ) does not require an election, but specifically provides that exclusive bargaining representatives may be "designated or selected" by a majority of employees. That view recognizes that Taft-Hartley amended Section 9(c) so that a secret ballot election is necessary to obtain a NLRB certification, but it contends that, in lieu of the failure to adopt the Hartley bill provision, a certification is not a prerequisite for a bargaining obligation within Section 8 ( a ) (5). 3 1 26

See n. 24 supra, and accompanying text.

27

Supra n. 25.

28 N.L.R.B. V. Sehon Stevenson & Co., 386 F.2d 551, 555 (4th Cir. 1967) (concurring opinion of J. Sobeloff). See also Lesnick, Establishment of Bargaining Rights Without an NLRB Election, 65 MICH. L. REV. 851, 861 (1967). 29

See nn. 2t, 4, 18 and 21 supra, and accompanying text.

30

See n. 23 supra.

31

See N.L.R.B.

v. Sehon Stevenson,

557.

[24]

supra n. 28, 386 F.2d at 554-

Of course, each of t h e s e c o m p e t i n g views of congressional i n t e n t finds s u p p o r t in p e r t i n e n t legislative h i s t o r y ; u n f o r t u nately, as is so o f t e n t h e case, t h e legislative h i s t o r y is sufficiently a m b i g u o u s as to preclude complete u n a n i m i t y as t o intent. 3 2 T h e r e are, however, c e r t a i n compelling a r g u m e n t s in s u p p o r t of t h e view t h a t C o n g r e s s i n t e n d e d t h e N L R B t o rely solely on secret-ballot elections to d e t e r m i n e questioned m a j o r i t y claims. F i r s t , why, if n o t to e l i m i n a t e reliance u p o n m e t h o d s o t h e r t h a n a secret-ballot election, did C o n g r e s s rew r i t e Section 9 ( c ) , d r o p t h e W a g n e r A c t l a n g u a g e a u t h o r izing t h e N L R B to utilize a n y " s u i t a b l e m e t h o d " t o det e r m i n e r e p r e s e n t a t i v e s , a n d m a k e an election m a n d a t o r y w h e n e v e r a question of r e p r e s e n t a t i o n w a s p r e s e n t e d ? A possible r e a s o n would be t o invest N L R B certifications w i t h m o r e c e r t a i n t y a n d p r e s t i g e by r e q u i r i n g secret-ballot elections as a p r e r e q u i s i t e ; b u t t h e B o a r d h a d d o n e t h i s e i g h t y e a r s b e f o r e by a d m i n i s t r a t i v e decision, 3 3 a n d it is n o t logical t h a t Congress would h a v e f e l t t h e necessity to e n a c t legislation solely to h a v e t h e w o r d i n g of t h e A c t e n t i r e l y c o n g r u o u s w i t h established B o a r d policy. Second, t h e concern of C o n g r e s s f o r a n e m p l o y e r ' s r i g h t to o b t a i n an election w h e n f a c e d w i t h a u n i o n b a r g a i n i n g d e m a n d , and its g r a n t i n g of t h a t r i g h t , do s u g g e s t t h a t Cong r e s s intended t h i s r i g h t to be absolute. S t a t e m e n t s on t h e floor by S e n a t o r s T a f t and Ball, p r o p o n e n t s of t h e bill, so indicate. S e n a t o r T a f t f e l t t h a t an e m p l o y e r w a s entitled, by f a i r n e s s , to an election w h e n e v e r a union r e p r e s e n t a t i v e claimed m a j o r i t y s t a t u s : " T h e employer h a s no w a y in w h i c h to d e t e r m i n e w h e t h e r t h i s m a n really does r e p r e s e n t his employees or does n o t . " 34 A n d S e n a t o r Ball i n f o r m e d his fellow S e n a t o r s t h a t t h e a m e n d m e n t , l a t e r adopted, g a v e t h e employer " t h e r i g h t to m a k e sure, by a d e m o c r a t i c election, t h a t a union really r e p r e s e n t s his employees b e f o r e h e n e g o t i a t e s a c o n t r a c t w i t h it." 35 O t h e r m e m b e r s of Congress, even some 32

See, e.g., N.L.R.B, v. Industrial

33

See n. 10, Chapter II, supra.

3

·» See n. 14 supra.

35

See n. 16 supra.

[25]

Union, 391 U.S. 418 (1968).

who voted against the full bill, agreed that the employer should have this right. 36 Those who believe that Congress intended the NLRB to rely solely on secret ballot elections to determine whether a union represented the majority of employees in a unit point to the 1959 amendments to the Taft-Hartley Act,37 which were contained in the Labor-Management Reporting and Disclosure (Landrum-Griffin) Act. 38 These amendments provided for expedited secret-ballot elections to solve the thorny problem of organizational picketing.3® Congressional support of secret-ballot elections for employees is also evident in other sections of the Landrum-Griffin Act which goes to considerable length to guarantee fair and honest elections, majority rule, and protection of individual employees within the union itself. 40 Despite these compelling arguments, Congress in 1947 did not include the provision of the Hartley bill which specifically provided the result sought under this view—i.e., that there can be no refusal to bargain under Section 8(a) (5) unless the union is certified after an NLRB election. Why would Congress omit this provision from Section 8 ( a ) (5) if that were its intent in rewriting Section 9 ( c ) ? Perhaps, as has been suggested, the conferees felt that the revision of Section 9(c) obviated the need to change Section 8(a) (5). 41 It may be Section 8(a) (5) was not qualified because the drafter's main concern with this Section was related to bargaining as differentiated from recognition. 36

93 Cong. Ree. A2010-2011 (daily ed., April 24, 1947) [1 LEG. HIST. 867] (remarks of Rep. Meade). See remarks of Senators Morse and Murray (cited at n. 15 supra), who both voted against the bill. 37

See Comment, Union Authorization 835 (1966).

Cards, 75 YALE L.J. 805,

38

73 Stat. 519 (1959).

39

73 Stat. 519 (1959), 29 U.S.C. § 158(b) (7) (1964).

40

73 Stat. 519 (1959), 29 U.S.C. §§ 411-415.

41

Comment, Union Authorization n. 103 (1966).

Cards, 75 YALE L. J. 805, 820

[26]

Unfortunately, however, the conference report, or no other legislative history, so indicates or otherwise answers this question. Perhaps also the Conference Committee simply overlooked the House provision. The already noted erroneous conference report statement that the House bill did not change the wording of Section 8 ( a ) (5) supports this possibility. As a further query to this view, it is noted that Section 8 ( a ) (5) obligates employers to bargain with representatives "subject to" Section 9 ( a ) , which makes no reference to an election; as a matter of legislative clarity, if Congress had intended by Section 9 ( c ) to make certification a prerequisite to a refusal to bargain, it should have made Section 8 ( a ) (5) "subject to" Section 9 ( c ) as well, or to Section 9 in general. This query might reasonably be answered as "legislative oversight." Also, it is reasonable to argue that Section 9 ( a ) is merely definitional, to explain the basic prerequisites and scope of the representatives, and that the other provisions of Section 9 set forth the limitations and procedures in determining representatives. 4 - Again, however, the legislative history provides no clear answer. If there is doubt as to whether this view expresses Congressional intent, there are serious questions about the argument that the Act specifically authorizes reliance upon authorization cards. There is no support in the legislative history for the contention that the language of Section 9 ( a ) — i.e., representatives "designated or selected"—means that more than one procedure exists for registering employee choice. Nothing in the history either of the Wagner Act, where identical language was used, or the Taft-Hartley Act even implies that "designated" refers to employee choice registered by signing authorization cards. Another construction, equally plausible textually, is consistent with allowing elections to be the exclusive procedure: i.e., both "designated" and "selected" describe election by secret ballot, "designated" referring to the choice between a union and no union and "selected" referring to a choice between several 42

Section 9(c) by its terms refers to employee representatives as "the representative defined in Section 9(a)." Supra n. 24, and accompanying text.

[27]

unions. 43 Moreover, since the bill passed by t h e House specifically eliminated reliance on methods other than secret ballot and still retained the "designated or selected" language of Section 9 ( a ) , t h a t body surely did not read t h a t language as authorizing reliance upon authorization cards. More than likely t h a t language was maintained so t h a t the Act would not ignore the possibility of an employer voluntarily recognizing and bargaining with a union which represented the m a j o r i t y of his employees. If recognition had to t u r n only on certified election results, the statute would preclude such a voluntarily achieved potential. The f e r v o r of the floor arguments in f a v o r of the employer's r i g h t to an election, the lack of dissent f o r g r a n t i n g this right, and the dropping of the Wagner Act language authorizing "any other suitable method" of determining representatives, all weigh heavily against the acceptance of the view t h a t Congress meant specifically to confirm continued reliance upon authorization cards. Nevertheless, as the next chapter makes clear, this is w h a t occurred.

" See Comment, Union Authorization 820-821 (1966).

[28]

Cards, 75 YALE L. J. 805,

Chapter /If THE NLRB APPROACH AFTER TAFT-HARTLEY NLRB decisions after the Taft-Hartley Act quickly established that the Board did not construe that Act as requiring it to alter its reliance on authorization cards to determine majority status. Some early decisions applied the pre-TaftHartley policy without mentioning any statutory change. 1 In fact, there have been very few instances in which the NLRB has specifically discussed Congress' intent in altering Section 9 and retaining the language of Section 8 ( a ) ( 5 ) . 2 NLRB INTERPRETATION OF TAFT-HARTLEY In Cuffman Lumber Co., Inc.,3 the NLRB first indicated that it did not construe Taft-Hartley as requiring an election and certification as a prerequisite to a bargaining order. The NLRB there found that the union had obtained authorization cards from a majority of the employees and that the employer had no good-faith doubt of the union's majority status. In rejecting the employer's contention that Section 9(c) (1) placed no obligation upon it to bargain without an election and Board certification, the Board held : * . . . [T]his section of the Act is applicable only prospectively and to representation cases and does not retroactively limit or qualify the duty of an employer to bargain under Section 8(a) (5) of the Act . . . . In the 1

E.g., E. A. Laboratories, Inc., 80 NLRB 625 (1948) ; Hosiery Company, 78 NLRB 333 (1948). 2

Artcraft

In its 1948 Annual Report, the NLRB did note as follows: "Section 9(c) of the Act, as amended, prescribes the election by secret ballot as the sole method of resolving a question concerning representation, and leaves the Board without the discretion it formerly possessed—but rarely exercised—to utilize other 'suitable means' of ascertaining representatives." 13 NLRB Ann. Rep. 32 (1948). 3

82 NLRB 296, 299 (1949).

* Id.

[29]

circumstances, therefore, we reject the respondent's contention that it had no obligation to bargain without an election and certification by the Board. Thus, implicit in the Board's decision, is the view that Section 9(c) (1) is applicable only where what it terms a "true" question of representation exists; where an employer cannot be said to have had a good-faith doubt of the union's majority status, then, according to the Board, no question of representation exists, Section 9(c) is therefore inapplicable, and Section 8(a) (5) is the governing statutory provision.8 We shall analyze this approach in detail in later chapters. A few years later, the NLRB made more explicit the manner in which it interpreted the congressional intent. In Brown Truck and Trailer Mfg. Co., Inc.,6 it said, "In the 18 years that this Board has administered the Act, it has consistently—and with judicial approval and legislative acquiescence—held that a union's majority status can properly be determined by membership or authorization cards." 7 The Board explained what it meant by "legislative acquiescence" in a footnote, as follows : 8 As initially proposed, the House would have limited an employer's obligation to bargain to those cases wherein the employees' representative had previously been certified by the Board or had been voluntarily recognized by the employer [citation omitted]. However, the Act, as passed, clearly rejected this initial proposal and left unchanged the obligation to bargain imposed by the Wagner Act as interpreted by the courts [citation omitted]. From these decisions it is plainly apparent that the NLRB, after only a surface analysis of the legislative history, adopted one of the competing views of the legislative intent discussed in the preceding chapter. It has continued to adhere to that view without fuller or more careful articulation ever since. » Cf. Aieüo Dairy Farms, 110 NLRB 1365, 1368 (1954). •106 NLRB 999 (1953). 7

Id. at 1001 (footnotes omitted).

8

Id. at 1001 n. 4.

[30]

We turn now to a consideration of the application of the NLRB policy as it has developed into the present state of Board law. EARLY CASES UNDER TAFT-HARTLEY Although NLRB decisions immediately after Taft-Hartley reflected no change in the basic approach to the authorization card issue, they reflected the development and articulation of the tests to be used in determining whether a bargaining order would issue in card cases. Two prerequisites to a bargaining order were established. The first prerequisite was that the union's majority status be established or evidenced to have existed. The NLRB would not issue a bargaining order if the evidence established that the union never actually possessed a majority of cards, or if it were shown that a majority was achieved by coercive means. 9 In applying this standard, the NLRB was not hesitant to scrutinize card solicitations where coercion was raised. Thus, where two cards determinative of a majority were solicited by informing the employees they would be "one of the first to get out" if they did not then sign cards, the NLRB found no majority existed. 10 And where a solicitor told employees that the cards were necessary in order to get an election but did not tell them that by signing the card they were authorizing the union to represent them, the NLRB found that it could not "reasonably be said that the employees by their act of signing authorizations thereby clearly manifested an intention to designate a union as a bargaining representative." 11 Furthermore, where coercion was found to exist, the NLRB sought to consider the likely effect of such coercion on the employees, not just the mathematical count resulting from excluding only those cards obtained directly by coercion.12 9

Lerner Shops, 91 NLRB 151 (1950).

10

Lerner Shops, 91 NLRB 151 (1950). See also Cooper's Inc., 107 NLRB 979 (1954). 11

Englewood Lumber Co., 130 NLRB 394 (1961).

" Puerto Rico Food Products Corp., I l l NLRB 293 (1955).

[31]

T h e second prerequisite to a bargaining order based on cards w a s that the employer be s h o w n to h a v e no good-faith doubt of the union's m a j o r i t y status. Although Franks Bros. and other pre-Taft-Hartley decisions had relied upon t h e employer's misconduct in issuing b a r g a i n i n g orders, it w a s not until after T a f t - H a r t l e y t h a t t h e t e s t w a s clearly enunciated in t e r m s of the doctrine of good-faith standards. In the leading case, Joy Silk Mills, Inc. v. N.L.R.B.,13 the District of Columbia Circuit set f o r t h t h e t e s t of good f a i t h w h i c h applied to a refusal to bargain upon presentation of cards. There t h e union presented the employer w i t h 38 signed cards f r o m a unit of 52 employees. The employer r e f u s e d to recognize the union and also r e f u s e d to allow a neutral third party to check t h e employee signatures. A n election w a s scheduled; a f t e r the employer campaigned a g a i n s t t h e union by i n t e r r o g a t i n g employees and p r o m i s i n g benefits in violation of Section 8 ( a ) ( 1 ) of t h e Act, t h e union lost the election 32 to 16. 14 Thereafter, t h e union filed u n f a i r labor practice charges, which the Board upheld. It f o u n d that t h e employer had violated Section 8 ( a ) (1) by e n g a g i n g in t h e above conduct and that such conduct had destroyed the validity of the election. It further found that t h e employer's illegal conduct and his refusal to participate in a card check established that he had no good-faith doubt of the union's m a j o r i t y s t a t u s ; accordingly, it f o u n d a refusal to bargain in violation of Section 8 ( a ) ( 5 ) . 1 5 In affirming, the court of appeals stated that an employer m a y r e f u s e recognition of a union w h e n motivated by a good f a i t h doubt as to that union's majority s t a t u s [citation o m i t t e d ] . When, however, such refusal is due to a desire to g a i n t i m e and to t a k e action to dissipate the union's majority, the refusal is no longer justifiable and constitutes a violation of the duty to bargain s e t f o r t h in Section 8 ( a ) ( 5 ) of t h e A c t [citations omitted] . 1β » 185 F.2d 732 (D.C. Cir. 1950), cert, denied, 341 U.S. 914 (1951). " Joy Silk Mills, Inc., 85 NLRB 1263, 1270, 1288 (1949). 15

Id. at 1288.

" 185 F.2d at 741.

[32]

Thus, the Joy Silk test focused on the employer's motivation at the time of his initial refusal to b a r g a i n : if the evidence established that his refusal to recognize the union was because of a good-faith doubt of its majority, he was not obligated to bargain; if it established his bad faith, he was obligated to bargain with the union representing a majority of the employees. Under this test, the employer's bad faith came to be established in either of two ways: (1) by showing that at the time the union presented its cards he could have had no good-faith doubts about its majority status (e.g., card check by an impartial third party), 1 7 or (2) by showing he "deliberately engaged in unfair labor practices in order to dissipate the union's majority and made the holding of a fair election impossible." l s This application of the Joy Silk rule met with strong approval in the courts, as every circuit quickly adopted the test.1'·' The early adoption of the Joy Silk rule was perhaps attributable to the NLRB's discriminating application of that rule. The NLRB in numerous cases rejected the contention t h a t the commission of unfair labor practices by an employer "automatically precluded" the existence of a good-faith doubt. 20 Instead, the NLRB looked at all the particular circumstances in the case to determine the employer's motive, and placed on the General Counsel the burden of proving 17

Snow

& Sons,

134 NLRB 709 (1961), enforced,

308 F.2d 687

(9th Cir. 1962). 18

Southeastern

Rubber

Mfg. Co., Inc., 106 NLRB 989 (1953).

19

N.L.R.B. V. Ken Rose Motors, Inc., 193 F.2d 769 ( 1 s t C i r . 1952) ; N.L.R.B. v. Pyne Molding Corp., 226 F.2d 818 (2d Cir. 1955) ; N.L.R.B. v. Epstein, 203 F.2d 482 (3d Cir. 1953) ; N.L.R.B. V. Inter-City Advertising Co., 154 F.2d 244 (4th C i r . 1951) ; N.L.R.B. V. Stewart, 207 F.2d 8 (5th Cir. 1953) ; N.L.R.B. V. Armco Drainage & Metal Prods., Inc., 220 F.2d 573 ( 6 t h Cir. 1955) ; N.L.R.B. V . Taitel, 261 F.2d 1 (7th Cir. 1958), cert, denied, 359 U.S. 944 (1959) ; N.L.R.B. V. Wheeling Pipe Line, Inc., 229 F.2d 391 (8th C i r . 1956) ; N.L.R.B. V. Trimfit of California, Inc., 211 F.2d 206 ( 9 t h C i r . 1954) ; N.L.R.B. V. Hamilton, 220 F.2d 492 ( 1 0 t h C i r .

1955). 20 E.g., Knitting,

KTRH Broadcasting Co., 113 NLRB 125 (1955); Mart Inc., 90 NLRB 479 (1950) ; The Walmac C'., 106 NLRB 1355 (1953) ; A. L. Gilbert Co., 110 NLRB 2067 (1954).

[33]

bad faith. 2 1 In making its determination of motive, the N L R B gave consideration to factors such as the employer's willingness to proceed to an expedited election, 22 the existence of no unfair labor practices a f t e r the bargaining demand, 2 3 the employer's disavowal of misconduct engaged in by a minor supervisor, 24 the character of and likely effect of the u n f a i r labor practices committed, 25 and an employer's information or previous experience.2® In consistently weighing such factors and fully explicating the reasons for its conclusions thereon, the NLRB succeeded in presenting what appeared to be a reasoned and discriminating Joy Silk policy before the courts. The Aiello Doctrine In 1954, the NLRB made a policy change which reduced significantly the number of authorization card cases brought before it. In Aiello Dairy Farms27 the NLRB put an end to its prior practice of allowing a union to seek representative status first through the NLRB election procedure and then, if it lost, through the unfair labor practice procedure based on authorization cards solicited prior to the election. In rejecting its prior policy, the Board reasoned: . . . although either a representation proceeding or an u n f a i r labor practice proceeding alone might be, in the 21 See The Walmac Co., 106 NLRB 1355 (1953) ; Sunset Lumber Products, 113 NLRB 1172 (1955). 22

Marr Knitting, Inc., 90 NLRB 479 (1950) ; Glass Fiber Molding Co., 104 NLRB 383 (1953) ; A. L. Gilbert Co., 110 NLRB 2067 (1954). 23

Sunset Lumber Products, 113 NLRB 1172 (1955) ; Marr Knitting, Inc., 90 NLRB 479 (1950). "Marr Knitting, Inc., 90 NLRB 479 (1950); KTRH Broadeasting Co., 113 NLRB 125 (1955) ; Caldwell Packaging Co., 125 NLRB 495 (1959). 25

Beaver Machine & Tool Co., Inc., 97 NLRB 33 (1951) ; A. L. Gilbert Co., 110 NLRB 2067 (1954). 24 See The Walmac Co., 106 NLRB 1355 (1953), and cases cited n. 25 supra. 27

110 NLRB 1365 (1954), overruling M. H. Davidson Company, 94 NLRB 142 (1951).

[34]

lignt of the particular circumstances, the procedure appropriate for establishment of the union's status, both cannot at once be appropriate because they are based on fundamentally different premises. Thus, for the Board to proceed upon a representation petition requires the Board to find that a question of representation exists to be resolved by an election. On the other hand a charge of unlawful refusal to bargain under Section 8 ( a ) ( 5 ) of the Act must allege in effect that there is not a question of representation and that the union involved is in fact the exclusive representative with whom the employer is legally required to bargain. The bases of the two proceedings are thus mutually inconsistent. 2 8 Moreover, the N L R B found that sound administrative practice supported its new policy, for repetitive proceedings consumed much of the Board's energy and time as well as public funds. In sum, the Board found that no reason existed for permitting a labor organization after it had resorted to a representation election with knowledge of the employer's unfair labor practices then to revert to a proceeding under Section 8 ( a ) (5) based on the same unfair labor practices. 2 ® Of course, the Aiello rule did not eliminate authorization card cases. It forced the union to a choice of proceedings : if the union filed an 8 ( a ) (5) charge under the Joy Silk rule, the Board would withhold the election proceeding and determine the merits of the 8 ( a ) (5) allegation; if the union proceeded with an election, it was then barred from seeking a bargaining order under the Joy Silk rule. However, since the election procedure was far less expensive and much quicker than the unfair labor practice procedure, and provided the benefits of certification if the union won, the tendency was for unions to elect to proceed through the election procedure. Accordingly, the Aiello rule resulted in limiting significantly the number of card cases brought before the N L R B and the courts.

28

Id. at 1368.

» Id. at 1368-1369.

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CURRENT NLRB AUTHORIZATION POLICY In recent years, significant changes have been made by the NLRB in its authorization card policy.30 Some of these changes were occasioned by direct policy rulings, others by the more subtle approach of shifting the emphasis given to various factors weighed in determining the employer's motive. The changes by both methods, however, have resulted in an increase in the number of authorization card cases before the NLRB and have generally facilitated a union's obtaining of a bargaining order based on cards. In discussing these changes below, we will show how they have shaped and developed the current status of Board law. The Bernel Foam rule. Undoubtedly the most important policy change occurred in the 1964 decision in Bernel Foam Products Co., Inc.,31 where the Board overruled Aiello Dairy Farms.*- In Bernel Foam the Board reverted to its prior policy of allowing a union, after it had lost an election, to file an unfair labor practice charge seeking a bargaining order where it possessed a majority of authorization cards prior to the election and the election was set aside because of the employer's unfair labor practices. 33 The Board's rationale in rejecting the decade-old Aiello rule was primarily that the rule allowed an employer to benefit from his own pre-election misconduct. The Board said : There is absolutely no basis for holding the participating union alone bound by an election which has been declared a nullity. Either the election is not a nullity or the union is not bound thereby. To hold, as our dissenting colleague would, that by participating initially 30 These changes have occurred since 1961, when the membership of the NLRB changed under the Kennedy administration. 31

146 NLRB 1277 (1964).

32

110 NLRB 1365 (1954). See discussion accompanying n. 27 supra. 33

The NLRB affirmed in subsequent decisions that the Bernel Foam rule would not apply unless the employer's conduct was found to have interfered with the election and the election was validly set aside. Irving Air Chute Co., 149 NLRB 627, 629-630 (1964) ; Kolpin Bros., 149 NLRB 1378, 1379-1380 (1964).

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in an ultimately void election the union irrevocably committed itself to the representation proceeding and, therefore, may seek a remedy only in another election, overlooks the f a c t t h a t an election is not a remedy either in statutory concept or in reality. On t h e contrary, experience has demonstrated t h a t a vast m a j o r i t y of the r e r u n elections' results f a v o r the p a r t y which interfered with the original election. This clearly demonstrates the lingering effect of unacceptable electioneering conduct. Thus, in a m a j o r i t y of the cases another election can hardly be said to be an adequate remedy f o r the employer's unlawful refusal to recognize the employees' designated m a j o r i t y representative which was followed by conduct which interfered with the employees' freedom of choice. To ignore such conduct, as the Aiello doctrine of option and waiver does, is incompatible with the statutory mandate. Indeed, it lends the Board's procedures as a tool to t h w a r t the s t a t u t o r y rights of the m a j o r i t y of t h e employees involved and subverts the very purpose of the Act. It is to be hoped t h a t an approach which denies an employer any benefit f r o m its unlawful refusal to bargain will remove the motive f o r demanding unnecessary elections and diminish efforts to undermine the will of the employees by i n t e r f e r i n g with their freedom of choice. 34 Of course, Β em el Foam increased the number of card cases brought before the NLRB. Unions naturally solicited as many cards as possible d u r i n g the pre-election period so that, if the election were lost, they might be used to estab34

Bernel Foam, supra, 146 N L R B at 1281. In addition, the Board rejected the reasons relied upon in Aiello (p. 34 supra). The Board found no inconsistency in allowing· a union to proceed with both an election and an u n f a i r labor practice charge if the employer's misconduct had rendered a f r e e election impossible since both had the same goals and were not "grounded in contradictory assertions of fact." 146 N L R B at 1280-1281. Rather, Aiello forced a Hobson's choice on the union: it was required to make an irrevocable choice of whether to proceed with an election which was quick and inexpensive, but which w a s tarnished by the employer's unfair labor practices, or whether to proceed with a lengthy and expensive unfair labor practice proceeding. Id. Finally, the Board concluded that "considerations of economy" voiced in Aiello "must be subordinated to the overriding policies of the Act." Id. at 1281.

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lish majority status necessary for a bargaining order. 39 Where the union possessed a physical majority of cards, no matter how they were solicited, it had nothing to lose by seeking a bargaining order a f t e r an election loss. As a result, Bernel Foam caused the NLRB to entertain a "strikingly increasing number of cases" involving bargaining orders supported by cards. 36 Validity

of authorization

cards.

In general, t h e N L R B h a s

always held that any union card which clearly authorized the union to act as the signer's representative was valid for determining majority status, outside of coercion or misrepresentation in the solicitation of the card. 37 Thus, the wording on the card is of primary importance in determining the validity of the card, but oral representations of the solicitor are likewise important in determining whether the intent of the signer was in reality to authorize the union to represent him as bargaining agent. In recent years, the NLRB decisions have emphasized the language of the card while making the standards for establishing misrepresentation more rigid. The net effect has been to give more credence and more weight to the card and to bind employees to the card commitment by giving less weight to possible offsetting factors. In t h e l a n d m a r k decision of Cumberland

Shoe

Corpora·

tionissued a few months before Bernel Foam, the NLRB changed the standard by which it would determine misrepresentation as to the purpose of the card. It held that where a card plainly authorized the soliciting union to represent 35

Perhaps the increasing number of cases of misrepresentation in card solicitation is a result of this practice. 3e Lesnick, Establishment of Bargaining Rights Without An NLRB Election, 65 MICH. L. REV. 851 (1967), and statistics cited at n. 1. For corroborating statistics, see Comment, Refusal-toRecognize Charges Under Section 8(a)(5) of the NLRA: Card Checks and Employee Free Choice, 33 U. CHI. L. REV. 387, 388 nn. 7-11 (1966). 37 Winn-Dixie Stores, Inc., 143 NLRB 848 (1963), enforced, 341 F.2d 750 (6th Cir. 1965), cert, denied, 382 U.S. 830 (1965) ; Morris & Associates, 138 NLRB 1160 (1962). 38 144 NLRB 1268, 1269 (1963), enforced, 351 F.2d 917 (6th Cir. 1965).

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the signer, it would find that the solicitor did not misrepresent the purposes of the card by soliciting it under the representation that "the purpose" of the card was to get an election; it held it would find misrepresentation only where the solicitor represented that the "only purpose" of the card was to secure an election.39 This ruling was proper, according to the NLRB, because . . . the cards, on their face, explicitly authorized the Union only to act as bargaining agent of the employees, and, . . . the failure of the Union's solicitors to affirmatively restate this authorization does not indicate that it was abandoned or ignored. Thus, there is no evidence here to negative the overt action of the employees in signing cards designating the Union as their bargaining agent, and the instant situation is not one in which the Union has beguiled employees into signing union cards.40 In so ruling, the NLRB, for actual purposes, overruled its decision in Englewood Lumber Company.*1 The NLRB attempted to distinguish that case on the ground that there "the solicitor explained to almost all the employees that the cards were only for the purpose of securing a Board elec39

1 44 NLRB at 1269. Actually, the NLRB decision indicated that the cards were solicited by the representation that "a purpose" was to secure a Board election (Ibid., emphasis supplied), but examination of the Trial Examiner's Decision shows that the solicitor represented that "the purpose" was to secure an election. 144 NLRB at 1277-1278 (emphasis supplied). 10 144 NLRB at 1269. The card used stated as follows (144 NLRB at 1277) :

I, an employee of the , hereby authorize the Boot and Shoe Workers Union, AFL-CIO, through its duly accredited representatives, to act for me as a collective bargaining agency in all matters which pertain to rates of pay, wages, hours and all other conditions of employment, including the signing of an agreement with my employer in conformity with the National Labor Relations Law and/or State Labor Relations Law. Name Address Operation 41

....

. ..... Date

130 NLRB 394 (1961), discussed at p. 31

[39]

supra.

tion." 4 2 However, this characterization of the oral representation of the solicitor in Englewood does not square with the representation as reported in the decision of the Board and its Trial Examiner in that case; in fact, the representations of the solicitors in Englewood and Cumberland were practically identical.43 In subsequent decisions, the NLRB has consistently relied upon the Cumberland rule.44 It has applied the rule even where the signers could not read, 45 and where they could not read or speak English.40 It has, in addition, expanded the rule beyond Cumberland, where the card plainly and simply authorized the union to represent the signer, and now applies the rule practically without regard to the content of the card, as long as the card does retain an authorization purpose. Thus, where a card indicates on its face that it may be used for dual purposes (i.e., for authorization for representation or for petitioning for an election), the NLRB allows its use to determine majority status even though the solicitor represented that the purpose of the card was to obtain an election.47 It has also applied the rule where the language on the card seemed designed to mislead. In S.N.C. 42

1 4 4 NLRB at 1269 n. 3.

Compare 130 NLRB at 408 with 144 NLRB at 1278 n. 10. In this light, it is relevant to note the view of Board Member Brown, expressed in a footnote in Cumberland, that the "best evidence of employee intent" is the signature on the cards. He "believes it unnecessary and inappropriate to consider any representations the Union's solicitors may have made or what the employees have been told." 144 NLRB at 1269 n. 6. 43

44 See, e.g., Gotham Shoe Mfg. Co., 149 NLRB 682 (1964), enforced, 359 F.2d 684 (2nd Cir. 1966) ; Bernard Happach, 151 NLRB 560 (1965), enforced, 353 F.2d 629 (7th Cir. 1965) ; H & Ή Plastics Mfg. Co., 158 NLRB 1395 (1966) ; Brandenburg Tel. Co., 164 NLRB No. 26 (1967) ; Levi Straziss & Co., 172 NLRB No. 57 (1968).

N.L.R.B, 48

v. Texas Electric,

See, N.L.R.B.

398 F.2d 722 (5th Cir. 1968).

V. River Togs, Inc., 382 F.2d 198 (2d Cir. 1967).

47 Lenz Co., 153 NLRB 1399 ( 1 9 6 5 ) ; S.N.C. Mfg. Co., Inc., 147 NLRB 809 (1964). enforced, 352 F.2d 361 (D.C. Cir. 1 9 6 5 ) ; Peterson Brothers, 144 NLRB 679 (1963), enforcement denied, 342 F.2d 221 (5th Cir. 1965) ; Shelby Mfg. Co., 155 NLRB 464 (1965).

[40]

Mfg. Co.,48 the Board applied the "only purpose" test where the card stated at the top—in the only use of bold type or all capitals on the card—"I W A N T AN N L R B E L E C T I O N NOW."