*1 COM BRYANT CHUCKING GRINDER Petitioner, PANY, LABOR RELATIONS

NATIONAL BOARD, Respondent.

No. 30844. Docket Appeals States Court of

United

Second Circuit.

Argued Oct. 1967.

Decided Dec. dissented,

Anderson, Judge, Circuit propriety

as to the of the enforcement order. *2 Mallet-Prevost, Counsel,

cel Asst. Gen. Eveleth, Washington, and Peter Ames C., Atty., brief), respond- D. on the ent. FRIENDLY,

Before and HAYS ANDERSON, Judges. Circuit Judge: HAYS, Circuit and set Petitioner asks us to review aside an order of the National Labor finding upon Relations Board based petitioner (1) 8(a) violated Section 8(a) (5) and of the National Labor Re- Act, 158(a) (1) and lations U.S.C. § (a) (5).1 The Board seeks enforcement. deny petition We and enforce order. petitioner The Board held that violated 8(a) (1) Section of the Act threaten-

ing employees, by granting benefits discourage joining union, by coercive interrogation by encouraging em- ployees cooperate not to with the Board investigation prac- of unfair labor petitioner tices. Board held that (5) (1) violated re- Section fusing recognize bargain with the union. The union involved is the Elec- United

trical, Radio and Machine Workers of (UE) plant America Local 218. The employer at which the unfair labor practices Spring- occurred is located in field, Vermont. May

In 1962 the union undertook a organize campaign petitioner’s em- August ployees. By union had petition- authorization cards from 198 of employees. er’s unit On employer that date the union notified the McGuiness, Washington, Kenneth C. D. represented letter (Vedder, Price, Kaufman, C. Kammholz for a asked bar- McGuiness, Washington, C., & D. on the gaining meeting. replied petitioner brief), petitioner. declining to the union’s letter to meet George Driesen, Washington, stating company’s B. D. C. with union (Arnold Ordman, “very refusing recog- Counsel, policy” Gen. definite Dominick Manoli, Counsel, L. nition in the Associate Gen. Mar- absence Board certifica- (a) practice It shall be an unfair collectively (5) bargain employer— for an refuse to with, restrain, representatives or co- his to interfere subject provisions ployees, of sec- erce exercise of the guaranteed rights title. in section 157 of this title; began employer tion. The then cam- Benefits vigorous opposition paign of un- During period prior to the ion, largely by carried on letters representation an election employees. notices to the mean- In pension benefits. nounced an increase representation time the had filed a coupled in an ad The announcement was petition with the Board. *3 published in local news vertisement employees paper and in a notice sent Interrogation urging employees to vote with material employees against A number of were Board could the union. The questioned by supervisory properly promise officials as of bene hold that this 8(a) (1). their attitude The toward the union. fit was a violation Section properly Co., Board Exchange could that this in find 375 Parts terrogation 457, took coercive since 435 S.Ct. 11 L.Ed.2d 84 place atmosphere opposi Inc., (1964); D’Armigene, of active 353 NLRB v. union, NLRB, 1965). to the 332 (2d Bourne v. F.2d Cir. (2d 1964), F.2d ex Cir. planation cooperation employees Dissuading employees from questioning with Board under circum indicating legiti stances that it had no agreed that the Board We are purpose, Fields, mate Edward Inc. v. properly employer could find that the vio (2d Cir. by posting to em lated Act a notice 1963) unaccompanied by any and was as ployees stating they under were against reprisals, surance see NLRB v. obligation to assist the Board con Corporation, Lorben F.2d investigation of unfair nection with its (2d 1965). Cir. Numerous instances charges, practice did and that questioning particularly involved threat people.” not “have to talk with these ening employees connotations because employ accompanied This notice interrogated were in connection with in resist er’s assurance that it would concerning eligibility terviews for merit every Board’s efforts force avail “with increases. unjusti men,” able to free constituted an processes. fied Board’s

Threats obstruction of the Henry Siegel NLRB, 328 I. Co. v. See There was substantial evidence 1964). (2d F.2d Cir. support finding the Board’s em that the majority A of the court believes ployer employees threatened re with finding in the Board’s violation prisals. Questioning employees toas employer’s reinterviewing employees activity union in connection discus hearing testified at the Labor Board who increases, sion of merit referred above between direct cross-examina- “Interrogation” under could well have unjustified. tion was This determination carry employees been considered requires no modification of the implication with it the that those who order. favored the union would not receive supervisors, increase. One of the when Bargain Refusal employee he learned that an mem was a organizing finding ber of the union committee The Board’s on Au him, you your job?” gust 14, asked “Do like On 1962 when wrote supervisor another request bargaining, occasion a told an em ployee employees the union he could won union had a job supported by be transferred from an one substantial evidence other when work was slack but would be the record. See NLRB v. Gotham Shoe Mfg. (2d sent home. 359 F.2d 684 Delay Counsel’s signed by General authorization cards Issuing Complaint ambiguity. free from Board, and The evidence credited delayed is Counsel The General by us, accepted see NLRB v. therefore suing complaint for about 15 months Corpora Warrensburg Paper & Board clarify awaiting Board while decision 1965), (2d tion, sustaining (a)8 the rule as to Section organizers established that the union’s charges partici union has where the misrepresentations the em made no pated Mere de in an and lost. election ployees purpose of the cards as to the lay complaint is in issuance signatures. In the effect of their ground relief. sufficient denial representa record that a deed the shows urges that, company because “The correctly explained to of the union tive lapse the oc- of time between organizational the first *4 practices of the unfair currence recogni meeting by which the methods or- final and the Board’s decision no time tion and at could be attained repudi- der, and union was because the employees told the sole were the that employees subsequently to ated signing cards was se opinion, in the events recounted this NLRB v. Gotham cure election. See al- enforcement should be either denied Mfg. Co., supra; E. S. NLRB v. Shoe holding together or on the conditioned 438, Company, Nichols F.2d 380 whether a new election determine (2d employees’ the union is still the choice bargaining representative. as a support adequate There is also argument Franks Bros. has merit. em that for the Board’s conclusion Board, Relations Co. v. National Labor good ployer faith doubt did not have a 817, L.Ed. 88 321 U.S. 702 S.Ct. [64 majority Not of the union’s status. 1020]; Relations National Labor suggest employer card did the U.S. Board v. P. Lorillard 314 rejected possibility that check but it 380]; 397, L.Ed. 512 86 [62 S.Ct. acceptable such a verification would Board v. National Labor Relations by announcing “very policy” definite 563, Mills, Ina, Mexia U.S. Textile 339 representa refusing any evidence of 833, 826, 829, L.Ed. 94 568 S.Ct. [70 rights Board certifi tional other than a any delay case Inordinate 1067]. cation. Congress regrettable, has intro- but history of violations Sec Act into the duced no limitation time (1) establish is sufficient 10(b).” except NLRB v. in § deliberately destroyed Katz, 16, n. 82 S.Ct. 369 748 majority or 230(1962). the union’s and the L.Ed.2d bargain appropriate method der to is an points other examined the We have correcting Bros. default. Franks petitioner find them to made NLRB, 321 U.S. 64 S.Ct. Co. v. merit. be without (1944); L.Ed. NLRB Interna v. Order Petition denied. enforced. Workers, Union, Progressive tional Mine L.Ed.2d 84 S.Ct. (concur- FRIENDLY, Judge Circuit per (reversing curiam ring result): in the (7th 1963) directed F.2d simplicity This case not have the does long period of an election because such a my Hays. me it does for brother passed Being requir- union had time since the had asked to enforce an order ing recognition status). more than majority of a union attained its agreements membership negotiate hereby request accept and conclude labor, wages, union, to hours of and all other and authorize in the above named employment. my me, represent conditions of behalf years organizing campaign District after the five Union, Columbia United in itself serious Int’l arouse Circuit, Agricultural qualms. compounded by Automobile, Aerospace These (Preston Implement circumstances the inordinate Workers wholly Co.), Cir- Products The Sixth almost attributable cuit, thought, 380 F.2d Board —more than 15 months of it a de- which we Counsel; nar- liberate the Board’s one the General committed to rule, has disclaimed the union’s card-count row Cumberland now view; any commitment, declaring small and doubtful on such style has words of been a considerable turnover “whatever or actual employees; clearly nothing solicitation, and that now the If it is calculat- stands of a If fair election. ed to create in the mind of one solicit- only purpose we were free decide the case accord- ed a belief that good sense, election,” ance our with own notions of to obtain card unhesitatingly join my I would brother is invalid. The difference between denying inconsequential Anderson in enforcement of the and our formulation is bargaining instances, order. But I find suf- cannot most as evidenced legal grant refusing apparent agreement ficient basis for Circuit’s Sixth though enforcement, distasteful is. On the the result we reached in Nichols. hand, Dis- other court divided important objections The two most has adhered to trict Columbia Circuit enforcement of the order are *5 the Board’s rule which Cumberland arguments that the union lacked a everything makes solicitor’s turn majority1 did, valid and if it that even “only” synonym. use or a inappropriate remedy the order un peculiar der the circumstances. explain opinion The Preston does In NLRB v. S. E. Nichols 380 why misrepresentations employees that (2 1967), 441-445 Cir. we signatures require card will not suffice rejected by the rule announced the Board grant the union seat Corp., in Cumberland Shoe 144 N.L.R.B. at the table as their exclusive (1963), (6 1268 enforced 351 F.2d 917 agent disregarded should be unless 1965), Cir. that an authorization proved solicitor can to have said be “clear” on its face could be invalidated ipsissimis purpose of verbis that the sole misrepresentations purpose as to its procure only by election. As proof cards is that the solicitor had said Judge aptly O’Sullivan wrote Swan that the “sole” of the card was Cleaners, Super Inc., supra, F.2d at election; to secure an NLRB conducted modestly sophisticated “A “sign- we held that cards were invalid if agent easily with live talented union could signatures ers were induced to affix their and, leaving such out the a narrow rule causing statements them to believe ‘only’ employ lan bad words—-‘sole’ and repre- the union would not achieve — guage clearly a woman calculated to lead sentative status without an election.” laundry hold worker already to believe that Our decision has become the sub- ing ject she of an election was all that of consideration Cir- Sixth opinion up cuit, ex for.” While the Preston Super Cleaners, NLRB v. Swan 1967) ; agree Judge Hays Workers Textile 1. While I with that Gen- NLRB, 380 F.2d Union America v. eral sustained Counsel his burden of ne- gating good solely doubt, I faith do this Bryant’s position the basis of adamant only modestly sophisticated tal- 2. “A recognize it would not a union with- easily agent” more ented union could still certification, out Board and dissociate testimony pur- the “sole conform his myself from what is said as to the bear- pose” standard, conscious even ing rejection of its of a card check and true, prevarication. as While it Preston, Wright its violations of phasized Judge See testify- Togs, “employees Inc., NLRB v. River the evidence of consuming remand; contrary presses once course a time concern that a avoid standard, ju adopts proper require the Board “would us to examine relevant testimony detail, adjudge under Nichols or Swan Su dicial review substantially weigh per witness, credibility should not be of each Cleaners hardly evidence,” than under the District this could more difficult sup Moreover, meant rule avoids of Columbia rule. the Cumberland tasks; advantage scope posed simply these administrative narrows light largely inquiry used the solicitor latter vanishes whether particular appropriate Further court’s concession form of words. aware, more, simplistic in rule course Cumberland would as court “gross judges reviewing agency applicable do not revealed action the evidence “adjudge credibility intention to the union’s of each witness” misstatement as election,” “weigh respect or While ease with to an evidence.” desirable, an abso review is this can never does not articulate indeed “Cumberland justify narrowing rule, inquiry well to elimi a useful and lute but rather facts; here, nate in NLRB would relevant rule of thumb.” What founded truly problem America, v. United Steelworkers ease the administrative 1268, 1272, 2 courts for the 78 S.Ct. for the Board both long answers use its L.Ed.2d 1383 mechanical be for the Board to would neglected rule-making power speci will not “avail of this the solution fy should a union authorization card non-mechanical, complex problem what in la say and how. bor-management relations.” exten agree Judge sive discussion of in such cases evidence Anderson Super as Nichols Cleaners was and Swan of cards must be considerable number by the necessitated Board’s use of the proven misrepresentations validated for wrong standard and the courts’ desire leaves solicitors5 but this still 3. The Labor Relations Board charges would be to remember what he said to 40% 28.5% cases like the General 191. See 1966 involved N.L.R.B. when Bernel Foam Products memory more port The complex organizers to 181, Security Legislation of Ass’n paigns ranging what was ficials,” years. each of scores of reason to seem rather more investigate § year under General percentage Regional of the City filed Committee is fact and Counsel ended June suppose said to Suggested Changes somewhat concerned, is (5) allegations Counsel hearings New against employers year Office time and present “normally over was eye of unfair likely employees many has legal him York, process.” ended June less so. So far as decided, months, or, has suspect, reported *6 testimony held issues and than an to be able to recall Labor and Social Table Procedures, pointed employee 64 LRRM has risen from during Co., Inc., company of the there is no 64 LRRM in NLRB D manpower that over 35.0% organizer 30, 1964, of union out and the contain- practice involve require would fiscal here, cam- Bar Re- of- 5. The Engineers, Trial Examiner’s bidden Peck, confusion card erick, App.D.C. 314, 1 6.13, pp. ers (1961) See cluding A. mony rounding asked if I would your cards tion to form a The reason was that the thought was purpose Counsel) Davis, Q. $ “Q. signatures, procedure testimony International The general after Well, ; purpose own words the circumstances inquiry Now, in, (By Administrative 16 Admin.L.Rev. 77 what was said at produced I Local 49 v. be, Atrophied Rule-Making there would be ?}: the Board had reversed the Would signing mentioned that I was offered a card do I understand Mr. talk in the Mr. into the circumstances given illustrates as now sanctioned: signing union. ruling which had for- McGuiness, Company Broderick, sign up, sign you sfc by employee if I the authorization pocket part). cards? please they Law Treatise § plant Yale L.J. 729 mentioned; So a union elec- ^[*] if we were had that I did. your morass of Operating tell us in about the card, A. (1964) (1965) a card. enough Brod- time? Pow ^[*] testi- U.S. Yes, sur- I ; ; guage indicating majority. I am sim- Where the card was Union with ply pledge at an unable to him in his view that for Local 218 follow vote However, joint appendix election. other circumstances cast on the General many not inform were Counsel a burden that would not other- does us how cards signed handbill; August wise have existed. The 3 hand- reliance on the misleading; signing begun May bill indeed while it the end “your your pledge testimony Board of the stated written credited you Bryant,” organizer explained chief want UE Local 218 at that he had meetings immediately if this was followed lan- from outset That me or not. A. to show er those same support was lows hold an election. was said to said to sel) was to be an election or win. call who it signing A. tified hold an understanding cards? A. ick? ing? union in the the card could be used tions your understanding ing of what form a union. your understanding, derstanding? for an election. ío have an offer of Q. Sir? A. Q. Were >¡c Q. Q. Q. # t}s Q. Q. Mr. McGuiness: The Q. Q. you. I support Well, purposes My enough signed cards, can recall. Well,- Mr. And Yes. Yes, *7 you (By (By (By are for A. signing your the union. election. you enough understanding? No, your support I was asked to Broderick, Mr. ^[*] don’t would ;js was, Mr. What [sic] proof. Mr. your you, A. you best did the union and I did it. card? A. Yes, plant of cards for the union to placed there, something prior of was that we had to have Panos, words were ever McGuiness) no. I You mean recall cards if ever McGuiness) you you signed cards, signing card meant. It was that personal understand- ífc did ^[*] # without an election? I don’t know wheth- anything? Mr. then of the effect there was tell us card, understand there told sign I can in, who my believe Broderick, No, I following ques- General the card was sign ¤ it would call ^[*] that one of my Mr. it was that enough understand- the union? again establish a What was explain from the sir. A. the card don’t re- own un- you it could if to Was it Broder- A. making put would Coun- what there sic v # your Yes, tes- fel- My To it should were told that That if there are a card get A. That to was not pose? tion? A. I think the of —it must only Well, an election. don’t think I had been told that. if we had signing if I did —that was in order to I must have known what I was supporting the union. you signed anybody I tell reason that you? the card. card to call for an election. figured can that effect? know whether those words were with support Q. Q. And is it Q. Q. Trial Examiner: You don’t mean that ^[*] Trial Examiner: ^[*] signing that, sir. you, the an should explain card, my you. you Well, is all I reason So, (By I wasn’t Witness: Witness: —that in sign supporting A. is the sign the card the card that election, that card, question. the of the union or told is it is the enough ever told that the ^[*] ^[*] have been Yes, the card Mr. sign I I must have known I was I don’t know what enough. it at that time. way it to you you agreed only purpose it was not you heard about that one of the your you idea in you sir. signing your testimony Panos) pointed card; it was you, but Well, willingly, what I am Well, should get ^[*] ^[*] were the union I tried to can hold You said testimony card, towas * * * Let me getting reason I was told. I told sign an election? A. my I is that correct? mean, in, the card my explained Mr. out told don’t know. single sign we could hold ^[*] ^[*] was I must have it. You own mind is us as was said opinion get anything the card in ” only only an election an election singularly; Broderick, by signing if explain follow that only pur- you you trying that purposes sign an elec- not I that to was reason I put way signed to me mean doing sign- 3ft card, ^[*] don’t If I just you you put up it. I I 572 majority expression subject, NLRB latest in Union achieved a status which 16, 739, recognize, Katz, 736, Company fn. the v. 369 refused to 748 1107, charges. 1114, pointed L.Ed.2d Union could file We S.Ct. strong particular (1962),7

to no solicitor couched in terms so evidence was impose exception requires engaged misrepresentation more had large in so in that to proportion possess. I of his solicitations than boldness produce require Counsel to General reluctantly en- I thus concur his in solicitees order to avoid other- of to me an exceed- forcement what seems con- wise inference of similar reasonable ingly ill-advised order. Corporation, duct. NLRB v. See Golub 1967); 921, 924 Les 388 F.2d Judge (dissent- ANDERSON, Circuit nick, Bargaining Rights of Establishment ing) : Election, 65 Mich.L. an NLRB Without peculiar circumstances Under 851, (1967); cf. Rev. order, bargaining case, this think a I Thompson & James employees a imposing petitioner's 1953). Though there concerning representation form of two-year lag hear- between events has never substantial ing, 15 attributable months which were opportunity express preference, dis- to the deliberate decision General regards rights, employees’ 7§ Counsel, much ex- it is unclear how poli- fundamental undermines the most normal four cess over the Accordingly I dissent cies of the Act. Bryant’s prob- or five months added to enforcement, order and would from its conduct, Bryant’s proof, lems own be held. a new election Judge Hays’ depicted portion in as opinion Bryant election at The Union lost an “Dissuading headed organizing opened in its it 1959. When Board,” cooperation from sub- with May plant campaign petitioner’s in ject to criticism. immediately made known it sign Judge employees so up there is force While much election. that this time it would win the position even if Anderson’s experienced Many employees had majority, a Union had a valid Bryant previous campaigns at remedy appropriate order is not an under cul- of which had each present- the unusual circumstances here secret minated a Board-conducted believing ed, difficulty con- find From the start ballot election. trolling Supreme Court decisions drive were clear indications opinions us cited in free to both leave pattern, would follow the same hold this. Franks Bros. Co. v. general plant talk around L.Ed. S.Ct. de- an election to there would have be itself involved refusal recognition. question termine bargain seeking a union initial rec- ognition organizers on the basis of a card count. The Union and its may distinguished general part responsible While here since small get longer delay “necessary impression could not much charges fairly winning un- an election. determine the first *8 705, practices,” Union fair labor Id. at S.Ct. The Trial Examiner found that Harley (emphasis supplied), the Court’s “made it known leader had report altogether the 6. See cited in note Table G. or conditioned on nied holding to determine new election urges employees’ company that, 7. “The because of the still whether union is representative. lapse of time between occurrence of choice as practices argument Franks the unfair labor merit. and The has no ** order, final Inordi decision and and because the *. Bros. Co. v. repudiated any employees regrettable, union in nate case is but subsequently Congress no limita events in has introduced time recounted except 10(b).” opinion, into the Act in enforcement should be de- tion § contemplated he signatures that an election would the Union had a total of 198 recog- to be held in order to obtain from a work force of 337. nition,” of this and was talk August 17, Company to refused On meetings at Union in conversations strength recognize the Union on the Although employees. with individual majority, of its asserted Harley explained testified that he had representa- question of sisted that meetings ways at one of the all the tion settled a Board-conducted might gain recognition, which the Union surprise election. This no to apparently he whatever said made which, waiting for without lasting impression employees.1 on the Company’s answer, an had filed election petition For three with the Board. The Union advertised that it needed Company thereafter, months both the enough signed authorization vigorous waged campaign the Union petition election, the Board for an up- capture employees’ support at the that, by beginning August, it was coming Then, secret on ballot election. making good progress reaching cast November the votes were goal. Many sign- of the who and counted and the Union was defeated expressly ed were told at the time that 124. 184 to card, of the which was of variety the standard used these cam- Objections were filed the Union and paigns, bring was to about an election. aside the results of election set they not, Some were assured that need 18,1962, on new election December and a therefore, any pay attention to what was Regional was ordered the Board’s Di- printed on the face of the card. A few Thereafter, rector. withdrew the Union they others were warned that did not petition election, its on Janu- an sign a card at that time it would cost ary 3, practice filed unfair an join extra or union if $40 $50 charges alleging pre-elec- certain told, it won the election. No one was on part petitioner tion conduct on the hand, might other the Union 8(a) re- had violated and that § recognition seek on the basis of the cards recognize August fusal the Union on alone, having first a vote.2 17 had violated § August Union distributed On 3 the Regional issue Director refused to “UE 218 handbill headed: which was (5) complaint, apparently re Organization Mak- for NLRB Election lying Dairy Farms, Aiello N.L. Progress.” handbill, Good ap R.B. which stood the then by Harley, prepared then been plicable that, by Board doctrine submit purposes authoriza- stated the two ting election, to a secret ballot election,” get first, “to an right waived its cards — assert antecedent and, second, to assure Union that bargain against refusal would have votes to win the elec- who wins election. March On It tion. concluded with an exhortation appealed the Union this decision A In Card.” “SIGN to the Board’s General Counsel in Wash days next few additional cards were soli- ington, where the rested for case then signed, by August cited and 14,1962, some fifteen months. hearing employee 1. likely give At the each was asked “half-truths” Such ployees impression cross-examination if he had been “told the “false opportunity time that the Union would use have an will events your bring register preferences card to the Union into the true in the se- plant crecy voting without an election?” to which the booth.” NLRB v. negative. invariably Nichols, answer E. S. Cf., Mfg. Co., NLRB v. Gotham Shoe *9 F.2d 684 Most had not heard of such a for use the card until hearing begun. after the argued years the full after appeal, almost five its filed At the time the 1962 election. the aware Counsel was the General challenged being in Bark- was prac- Aiello rule answer the unfair In its Corp., N.L.R.B. challenged er’s East Main charges, petitioner the tice Board, this pending and then before the authority issue of Counsel to the General ac- prompted immediate him to withhold having deliberately complaint the after present The Barker's in case. the while action for fifteen months withheld Aiello, but the not overrule decision did changed Trial law. The the Board the opinion of the was still General Counsel majority of Board and a the Examiner change, bring the he could about opinion petition- the neither were of and, view, a few he selected preju- er had suffered nor might squarely is- raise the which cases procedure dice as a result of the unusual objective the Board. His sue before Noting a se- which was followed.3 finally decision in the Board’s achieved “normally cret the best ballot election is Co., Inc., 146 Products in Berne! Foam determining not method of whether or Aiello overruled which N.L.R.B. represented the to be desire paved of the for issuance the bargaining agent,” the Board then con- petitioner complaint against 8(a) (5) (1) § of cluded that violations § years 1964, nearly two after on June during petitioner 1962 election alleged Act. violation holding precluded campaign a fair election at the time of the decision progress present case was The recognize petitioner ordered hearing, equally The deliberate. strength Union on the of the cards July 28, lasted over commenced policies order effectuate Company chal- months. Since two Act. The October Board’s order dated lenged validity many of the au- 3, 1966. the Union re- on which thorization cards 10(c) empowered bargaining rep- Under Board § to establish itself as lied action hearing necessarily take such affirmative resentative, remedial policies as the Act. will effectuate the cross-exami- examination and volved the involving In vio- great some cases of witnesses. § nation number remedy order principally lations caused But thought “may appropriate,” uniquely who, be erroneous Trial Examiner in an Corp., v. Flomatic ruling, permit refused to 1965), settled re- This witnesses. cross-examine Board has considerable discretion in Board, appeal interim sulted But exercise of its function.4 remedial adjournment study proper this im- it is free to does mean procedure two which over hundred pose remedy merely “on the basis witnesses cross- should recalled experience, regard to circum- examination, and the time consumed may application stances which make its cross-examining recalling them. oppressive particular to a situation eight Trial then Examiner took months therefore not calculated effectuate reaching her Seven-Up decision and the Board policy Act,” NLRB v. finally Bottling appeal added four more. S.Ct. This 10(c) 3. Board Member “take Jenkins dissented the Board to authorizes * * * point, saying: will such affirmative action “Delays Act,” policies character ad- of this effectuate process unfair and ministrative un- defines wide area of discretion to thus * * * duly parties. objec burdensome to remedies devise within stated Lapse Dodge g., Phelps Corp. time obscures the facts and tive. E. NLRB, (and expen- more makes them difficult 61 S.Ct. sive) to ascertain.” L.Ed. 1271 amply record this case illus- trates these observations.

575 287, which, representa- 290, (1953), whether wanted such 97 L.Ed. 377 my view, precisely Board tion or what not. has done here. footing This stands case on a different employer from has re- those where an objective guaran- One of the Act is to bargain duly fused a to authorized employees tee that freedom choice representative employees of the question representation. on the of union ground longer may the union no policy right That reflected in the represent majority force. of the work organize granted by Act, 7 of § validly Where a union once been has in the 1947 amendment section designated bargaining representative, as expressly right which adds the to decline it would be clear subversion organized representation. form of 9(c) procedures of decertification § design The obvious of the amendment qualify permit its bar- “permit employees distin- —as gaining obligation demanding periodic guished from boards and unions —to reconfirmation of the union’s agent,” bargaining choose their own Mills, status. NLRB v. Textile Mexia Freight Lines, NLRB Red v. Arrow 180 568, 833, Inc., 563, 94 339 U.S. 70 S.Ct. 585, (5 Cir.), 586 cert. denied 340 good (1950). Thus, L.Ed. 1067 there is 823, 57, 71 S.Ct. L.Ed. 95 605 “bargaining sense to the rule rela- “prevent forcing unwilling and to tionship rightfully must once established union,” worker into a NLRB Interna v. permitted to for a exist and function Union, A., tional Wkrs., United A. I.& A. giv- period reasonable in which can be 12, 1963). 15 en a fair Franks chance succeed.” Despite prejudice” “no ob- 702, 705, Bros. Co. 321 U.S. 64 servation, bargain- I am convinced that a 819, (1944). 817, L.Ed. 1020 S.Ct. ing order, imposed nearly years cases, These as five after well others cited there opinion,5 rejected and in Court’s involved Union was in a secret ballot desig- validly unions had which been once delays election and after numerous at- repre- employees nated- as their Counsel, tributable to the General They apposite here sentative. are Trial Board, Examiner and the will work record fails to where the show injustice portion on a substantial designate ever intended petitioner’s plant by at de- bargaining agent, as their priving right them of the of free choice changed force where the work is attribut- guaranteed under 7. While the General delays extraordinary of which able to change Counsel awaited a in the law so petitioner part Cf. no the cause. might prosecute against that he this case NLRB, supra. Franks Bros. Co. v. petitioner, composition Bryant naturally undergoing work August force was dispute no There is change. delays After eligible Bryant further hearing, appeal Board, signed ployees union authorization finally here, appeal sixty-two employ- cards. not alone establish But does long- ees who recognition Union’s entitlement employed petitioner’s er plant and the record that cards were where the shows appropriate bargaining size of the fraud, coercion, misrep- unit or obtained grown has Consequent- from Shoe resentation. v. Gotham ly Union, Mfg. order makes Co., F.2d 684 by fiat, representative unit, instance, of a For cannot be counted more employee signing than two-thirds the members of card has where say soliciting opportunity person never had an his told been Progressive Union, 5. NLRB v. P. Lorillard 314 U.S. International Mine ; (1942) America, 62 S.Ct. 86 L.Ed. Workers of 375 U.S. 84 S. Katz, NLRB v. 82 S.Ct. Ct. L.Ed.2d (1962) ; 8 L.Ed.2d 230 NLRB v. *11 organiz- signature signed only specific of the union had a behalf been after bring organizer represented ers, purpose” to had the “sole is union election, purpose get nor is a to of was an election. about a secret ballot the card finding invalidity employ- to such of limited relied on the fact that these She recognized pur- deceptive and It not told that “sole” cases. is ees had been get election, pose hall-mark to an become the of the card was devious tactics have clear, campaigns, Note, legal which, premise Au- it is now of card see a and, Cards, circuit, Yale L.J. in some thorization is not the this law of ruling instances, of life and this fact based her 823-828 she labor-management ground for au- relations calls the solicitor “had rejection purpose” thority agent speak of of the “sole test as an to invalidating Union,” a of a we the exclusive means which is also consideration card, long as the v. S. E. Nichols immaterial so NLRB have deemed 1967), engaged speaker actively a solicita- is thought Golub result which would invest tion of See NLRB v. we union cards. “merely,” “just” “sole,” F.2d. supra, Corp., such as of words n. 6 “only” eight cards, “kind talismanie or with a at least those Of twelve Corp., quality.” clearly F.2d counted.6 v. Golub and cannot be invalid weight” gave The Examiner “no Although gone so court has not testimony other fifteen some investigation far as sanction signing that ployees who told before were sign- employee’s subjective an intent get an purpose cards was card has no form where been election, primarily witness- those because misrepresentation acquisition, made made to recall who es were unable clearly it has stated that the decisive speak- representation, or whether question in these cases whether union solicitor.” an “authorized er was employees meant to make the union employees inability recall The cards, representative by signing or be vital considered to what the Examiner they actions whether understood their the com- was due details only as a call election. for a secret ballot hearing, for which mencement of the Nichols, supra, NLRB v. S. E. any responsible. In Counsel was General my view, compels In at 444. this record representa- it was sufficient event conclusion; certainly latter the Gen- solic- was someone who made was eral Counsel has not his burden According- achieved signature iting his on card. proving contrary by “substantial ly, cards should of these eleven evidence.” representations, because validated signed, they the time of made at The Examiner counted the cards election.7 Bryant an there would be twelve claimed it Davis, Well, it meant. I knew Davidson, I what These are knew the cards of election.”; meaning Hall, Gray, Sherer, Westcott, an union card was a Morris purpose Westcott: Perry. assumed, me what “He told without Examiner election.”; was, bring Morris: “Be- deciding, an the latter two should cards get elec- testimony it an cause he told me was to not be counted. en- nothing lightening: that would There was else Davidson: tion. “He the card said There out of the whatsoever. come cards for of an election stood * * * * * * purpose.”; just etc. no other etc. an election. pointed I the card him out what read to Broderick, Hol- 7. These are the cards of pay and he said now atten- not O’Hara, Delehanty, den, Yessman, Bohen, that.”; Davis: He tion to me that “told Burbank, White, Hoyt, LeMere Lynch. if I be an Examples: the card would Broderick: “I think Gray: election.”; explained signing [was] “How about it to me get so we hold can election in the if we had we would * * * just shop?”; Sherer: if I “I was asked an election. That told.”; Delehanty: sign they get “You would one so could a ma- reason * * * * * * jority sign get in; get cards to election. have to the card ease, Under circumstances mouth. Thus has been held that cards petitioner’s conclusively failure to show which were distributed along covering suggesting ten additional letter, cards were obtained with a by misrepresentation or petition coercion is would be used controlling significance.8 election, more, cannot, Where Board *12 reasonably majority challenged, support bargaining is a order under § despite the that Welding where fact evidence Bauer Metal Fabrica- & gone stale, challenge support- has that is tors, NLRB, (8 Inc. v. 358 F.2d Cir. by proof many ed as that nineteen 1966). in The letter case carried that general cards the are invalid that message remarkably similar that atmosphere campaign the time of printed August in the Union’s 3 hand- by propa- was clouded election-oriented bill, 768-769, authority id. at and the ganda, the burden should rest persuasive petitioner.9 one for by preponder- Counsel General to show an But like- additional factor here is the subjective ance of the evidence that misrepre- lihood that of the multitude representation intent to authorize union by specific sentations made so- union by was not extreme vitiated such cir- gen- licitors contributed the more Engineers cumstances. Cf. & Fabrica- tors, NLRB, understanding among Inc. v. eral existed which (5 Cir. employees not that the Union could necessary misleading rep- representative win an

It is that status conveyed by likely resentations word of highly election.11 It you get sought an by organ- have to have election union tures were those in.”; right. “That generally engaged misrepre- Yessman: who izers ** * purpose. Well, purpose That was the concerning sentation of they so, needed a of cards hold cards. Even record discloses that election.”; an Bohen: it “That was conduct of least three solicitors— election.”; etc., Hendee, LaFayette an etc. ex- and Gavin—was regard. tremely questionable This in this proof hearing 8. failure of This at the was is another area which the General large part due in to the fact that the in- advantage an unfair from Counsel derived delay by tentional the General Counsel long, delay. intentional beyond put power of recall of most employees Among specifically essential details about 11. the cards not con- they by the signed circumstances under which sidered the Trial Examiner were those Wright, cards. The much shorter Their of testimony Rowe Dubanevich. NLRB, reliability Franks Brothers Co. v. illustrates (1944) greater merely 64 S.Ct. 88 L.Ed. 1020 is no be- of cards prejudicial specific representation similar effect. made cause no was by an Thus identified Union solicitor. strongly suggests 9. The record reli- Bry- Wright first work at when came to placed upon repre- ance inwas fact he fifteen fellow ant was told ten to August sentation in the 3 handbill that sign he a card he’d workers that if didn’t get the cards were “to an election.” Em- department be the who one ployee Baker testified as follows: Wright: “Well, in there I came hadn’t. (By Petrie) Baker, pri- “Q. Mr. Mr. July they me in the middle told you signed or to the time that the card everybody department signed our you in 1962 were told that tire * * * you Q. so I one. Do one signing get the card was an elec- they remember what was said? A. If told; A. tion? I wasn’t that’s what I they get an elec- will have hy reading understood the union leaf- * * * was there talk Q. tion. And let.” signing cards that Union inability employees get specifi- No, of most it in? A. No. could Union cally election, to remember who had told.” Rowe: solicited their for an signatures, time, lapse pur- because of the talk “Q. Was there about precludes application pose signing Well, case the card? A. none rule, recognized Corp., get election, in NLRB v. Golub than an other have 1967), 388 F.2d requires Well, “Q. which Dubanevich: election.” what you the General Counsel call as all this talk about employees signa- witnesses all the whose about? A. To Union elec- heard appears to have The Board cards, sustained. concerning like formation guilty punish anxious to spread been so threats would word put in the saddle ployer, the union or to Irv- employees, see rapidly among the considerations, regardless other Co. v. Air Chute ignored completely the inter- has 1965), no doubt as was rights are of whose ests of signing at news that true rep- importance who are paramount but saving might time mean eventual being no one and who resented $40 $50.12 To deprived matter. all voice boilerplate refer- Nor can thus com- order and issue a lingering possible ence effects accept representa- pel petitioner’s violations of cards union on the basis may have on a render new election *13 signed by current of the less than 30% bargaining satisfactory order a alterna- grossly em- to these unfair force work Normally application the automatic tive. ployees. theory cases, Board’s these a 9(c) rewritten When § criticized,13 theory ably which has been to Congress come indicated that it supportable as a reasonable exercise regard means as the best the secret ballot certainly that not of discretion. But Act,14 effectuating policies of the here, the case where the Board’s own de- which, occasion, have found under- we lays provided ample have more than time mandatory requirement mined may prejudice originally for whatever bargain- recognition in a Board embodied emanated from the § have minor Corp., ing Flomatic order. v. sustained, violations, (1) which we have policies Those to dissolve and vanish. It defies reason clearly undermined here where say those of such were violations signed validity of a used dramatic force and the words were proven, where not § years they imperishable that after so five ago, years place five took over violations thinking still dominate present over two-thirds and where ployees, most of whom a desire never indicated time, at the so that are now unable by sign- representation Union power of choice in to exercise a in a secret vote card —let alone my view, fair In election. election. ballot remedy, contrary assump- founded on a remedy in

tion, regard imposed choice of cir- The Board’s “without 10(c) of the Act. There- application to violates cumstances which make its case oppressive,” petition for particular enforcement NLRB fore situation Bottling Co., denied and should be Seven-Up supra, order be ordered. election should cannot be at 73 S.Ct. at * * * my small- “there was a Williams heard tion. I attended work got your you approached in before the fee if er when I knew I was and then got sign election, is of course no in.” There I Union the card to have an signed many telling others signed how the card.” intending hedge, vote financial against was to make election. 12. One of the Union’s tactics at the the Union financially it attractive L.J., supra, Note, at 818- Yale 13. See sign Perry he a card. testified that 819. card had he not would not have his Yale Note finds 14. The author that “if been solicitor Goodell told history legislative revi- sign come didn’t the card Union join.” Congressional make sions a intention $40 it would cost me $50 having means of ballot the secret exclusive told Godin testified to been bargaining representative. now, signed up selecting meeting you “if Yale L.J. much later on” and wouldn’t cost so