delivered the opinion of the Court.
These cases involve the extent of an employer’s duty under the National Labor Relations Act to recognize a union that bases its claim to representative status solely on the possession of union authorization cards, and the steps an employer may take, particularly with regard to the scope and content of statements he may make, in legitimately resisting such card-based recognition. The specific questions facing us here are whether the duty to bargain can arise without a Board election under the Act; whether union authorization cards, if obtained from a majority of employees without misrepresentation or coercion, are reliable enough generally to provide a valid, alternate route to majority status; whether a bargaining order is an appropriate and authorized remedy where an employer rejects a card majority while at the same time committing unfair labor practices that tend to undermine the union’s majority and make a fair election an unlikely possibility; and whether certain specific statements made by an employer to his employees constituted such an election-voiding unfair labor practice and thus fell outside the protection of the First Amendment and § 8 (c) of the Act, 49 Stat. 452, as amended, 29 U. S. C. § 158 (c). For reasons given below, we answer each of these questions in the affirmative.
I.
Of the four eases before us,
three
— Gissel
Packing Co., Heck’s Inc.,
and
General Steel Products, Inc.
— were consolidated following separate decisions in the Court of Appeals for the Fourth Circuit and brought here by the National Labor Relations Board in No. 573. Food Store Employees Union, Local No. 347, the petitioning Union in
Gissel,
brought that case here in a separate petition in No. 691. All three cases present the same legal issues
Nos. 573 and 691.
In each of the cases from the Fourth Circuit, the course of action followed by the Union and the employer and the Board’s response were similar. In each case, the Union waged an organizational campaign, obtained authorization cards from a majority of employees in the appropriate bargaining unit, and then, on the basis of the cards, demanded recognition by the employer. All three employers refused to bargain on the ground that authorization cards were inherently unreliable indicators of employee desires; and they either embarked on, or continued, vigorous antiunion campaigns that gave rise to numerous unfair labor practice charges. In
Gissel,
where the employer’s campaign began almost at the outset of the Union’s organizational drive, the Union (petitioner in No. 691), did not seek an election, but instead filed three unfair labor practice charges against the employer, for refusing to bargain in violation of §8 (a) (5), for coercion and intimidation of employees in violation of §8 (a)(1), and for discharge of Union adherents in violation of § 8 (a) (3).
1
In
Heck’s
an elec
*?
tion sought by the Union was never held because of nearly identical unfair labor practice charges later filed by the Union as a result of the employer’s antiunion campaign, initiated after the Union’s recognition demand.
2
In each case, the Board’s primary response was an order to bargain directed at the employers, despite the absence of an election in
Gissel
and
Heck’s
and the employer’s victory in
General Steel.
More specifically, the Board found in each case (1) that the Union had obtained
Only in General Steel was there any objection by an employer to the validity of the cards and the manner in which they had been solicited, and the doubt raised by the evidence was resolved in the following manner. The customary approach of the Board in dealing with allegations of misrepresentation by the Union and misunderstanding by the employees of the purpose for which the cards were being solicited has been set out in Cumberland Shoe Corp., 144 N. L. R. B. 1268 (1963) and reaffirmed in Levi Strauss & Co., 172 N. L. R. B. No. 57, 68 L. R. R. M. 1338 (1968). Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i. e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election. In General Steel, the trial examiner considered the allegations of misrepresentation at length and, applying the Board’s customary analysis, rejected the claims with findings that were adopted by the Board and are reprinted in the margin. 5
On appeal, the Court of Appeals for the Fourth Circuit, in
per curiam
opinions in each of the three cases (
Thus based on the earlier decisions, the court’s reasoning in these cases was brief, as indicated by the representative holding in Heck’s:
“We have recently discussed the unreliability of the cards, in the usual case, in determining whether or not a union has attained a majority status and have concluded that an employer is justified in entertaining a good faith doubt of the union’s claims when confronted with a demand for recognition based solely upon union authorization cards. We have also noted that the National Labor Relations Act after the Taft-Hartley amendments provides for an election as the sole basis of a certification and restricts the Board to the use of secret ballots for the resolution of representation questions. This is not one of those extraordinary cases in which a bargaining order might be an appropriate remedy for pervasive violations of § 8 (a) (1). It is controlled by our recent decisions and their reasoning. . . . There was not substantial evidence to support the findings of the Board that Heck’s, Inc. had no good faith doubt of the unions’ claims of majorities.”398 F. 2d, at 338-339 .
In No. 585, the factual pattern was quite similar. The petitioner, a producer of mill rolls, wire, and related products at two plants in Holyoke, Massachusetts, was shut down for some three months in 1952 as the result of a strike over contract negotiations with the American Wire Weavers Protective Association, the representative of petitioner’s journeymen and apprentice wire weavers from 1933 to 1952. The Company subsequently reopened without a union contract, and its employees remained unrepresented through 1964, when the Company was acquired by an Ohio corporation, with the Company’s former president continuing as head of the Holyoke, Massachusetts, division. In July 1965, the International Brotherhood of Teamsters, Local Union No. 404, began an organizing campaign among petitioner’s Holyoke employees and by the end of the summer had obtained authorization cards from 11 of the Company’s 14 journeymen wire weavers choosing the Union as their bargaining agent. On September 20, the Union notified petitioner that it represented a majority of its wire weavers, requested that the Company bargain with it, and offered to submit the signed cards to a neutral third party for authentication. After petitioner’s president declined the Union’s request a week later, claiming, inter alia, that he had a good faith doubt of majority status because of the cards’ inherent unreliability, the Union petitioned, on November 8, for an election that was ultimately set for December 9.
When petitioner’s president first learned of the Union’s drive in July, he talked with all of his employees in an effort to dissuade them from joining a union. He particularly emphasized the results of the long 1952 strike, which he claimed “almost put our company out of busi
During the two or three weeks immediately prior to the election on December 9, the president sent the employees a pamphlet captioned: “Do you want another 13-week strike?” stating,
inter alia,
that: “We have no doubt that the Teamsters Union can again close the Wire Weaving Department and the entire plant by a strike. We have no hopes that the Teamsters Union Bosses will not call a strike. . . . The Teamsters Union is a strike happy outfit.” Similar communications followed in late November, including one stressing the Teamsters’ “hoodlum control.” Two days before the election, the Company sent out another pamphlet that was entitled: “Let’s Look at the Record,” and that purported to be an obituary of companies in the Holyoke-Springfield, Massachusetts, area that had allegedly gone out of business because of union demands, eliminating some 3,500 jobs; the first page carried a large cartoon showing the preparation of a grave for the Sinclair Company and other headstones containing the names of other plants allegedly victimized by the unions. Finally, on the day before
The Board agreed with the trial examiner that the president’s communications with his employees, when considered as a whole, “reasonably tended to convey to the employees the belief or impression that selection of the Union in the forthcoming election could lead [the Company] to close its plant, or to the transfer of the weaving production, with the resultant loss of jobs to the wire weavers.” Thus, the Board found that under the “totality of the circumstances” petitioner’s activities constituted a violation of §8 (a)(1) of the Act. The Board further agreed with the trial examiner that petitioner’s activities, because they “also interfered with the exercise of a free and untrammeled choice in the election,” and “tended to foreclose the possibility” of holding a fair election, required that the election be set aside. The Board also found that the Union had a valid card majority (the unambiguous cards, see n. 4, supra, went unchallenged) when it demanded recognition initially and that the Company declined recognition, not because of a good faith doubt as to the majority status, but, as the §8 (a)(1) violations indicated, in order to gain time to dissipate that status — in violation of § 8 (a)(5). Consequently, the Board set the election aside, entered a cease-and-desist order, and ordered the Company to bargain on request.
On appeal, the Court of Appeals for the First Circuit sustained the Board’s findings and conclusions and en
II.
In urging us to reverse the Fourth Circuit and to affirm the First Circuit, the National Labor Relations
Relying on these three assertions, the Board asks us to approve its current practice, which is briefly as follows. When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union’s request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under §9 (c)(1)(B). If, however, the employer commits independent and substantial unfair labor practices disruptive of election conditions, the Board may withhold the election or set it aside, and issue instead a bargaining order as a remedy
There is more at issue in these cases than the dispute outlined above between the Board and the four employers, however, for the Union, petitioner in No. 691, argues that we should accord a far greater role to cards in the bargaining area than the Board itself seeks in this litigation. In order to understand the differences between the Union and the Board, it is necessary to trace the evolution of the Board’s approach to authorization cards from its early practice to the position it takes on oral argument before this Court. Such an analysis requires viewing the Board’s treatment of authorization cards in three separate phases: (1) under the Joy Silk doctrine, (2) under the rules of the Aaron Brothers case, and (3) under the approach announced at oral argument before this Court.
The traditional approach utilized by the Board for many years has been known as the
Joy Silk
doctrine.
Joy Silk Mills, Inc.,
85 N. L. R. B. 1263 (1949), enforced, 87 U. S. App. D. C. 360,
The leading case codifying modifications to the
Joy Silk
doctrine was
Aaron Brothers,
158 N. L. R. B. 1077 (1966). There the Board made it clear that it had shifted the burden to the General Counsel to show bad faith and that an employer “will not be held to have violated his bargaining obligation . . . simply because he refuses to rely upon cards, rather than an election, as the method for determining the union’s majority.” 158 N. L. R. B., at 1078. Two significant consequences were emphasized. The Board noted (1) that not every unfair labor practice would automatically result in a finding of bad faith and therefore a bargaining order; the Board implied that it would find bad faith only if the unfair labor practice was serious enough to have the tendency to dissipate the union’s majority. The Board noted (2) that an employer no longer needed to come forward with reasons for rejecting a bargaining demand. The Board pointed out, however, that a bargaining order would issue if it could prove that an employer’s “course of conduct”
Although the Board’s brief before this Court generally followed the approach as set out in Aaron Brothers, supra, the Board announced at oral argument that it had virtually abandoned the Joy Silk doctrine altogether. Under the Board’s current practice, an employer’s good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple “no comment” to the union. The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, and (2) that an employer could not refuse recognition initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union’s strength.
The Union argues here that an employer’s right to insist on an election in the absence of unfair labor practices should be more circumscribed, and a union’s right to rely on cards correspondingly more expanded, than the Board would have us rule. The Union’s contention is that an employer, when confronted with a card-based bargaining demand, can insist on an election only by filing the election petition himself immediately under
Because the employers’ refusal to bargain in each of these cases was accompanied by independent unfair labor practices which tend to preclude the holding of a fair election, we need not decide whether a bargaining order is ever appropriate in cases where there is no interference with the election processes.
With the Union’s arguments aside, the points of difference between the employers and the Board will be considered in the following manner. The validity of the cards under the Act, their intrinsic reliability, and the appropriateness of a bargaining order as a response to violations of § 8 (a)(5) as well as §§ 8 (a)(1) and (3) will be discussed in the next section. The nature of an employer’s reaction to an organizational campaign, and particularly the Board’s conclusion that the employer’s statements in No. 585 contained threats of reprisal and thus constituted restraint and coercion in violation of § 8 (a)(1) and not protected speech, will be covered in the final section.
III.
A.
The first issue facing us is whether a union can establish a bargaining obligation by means other than a Board election and whether the validity of alternate routes to
We have consistently accepted this interpretation of the Wagner Act and the present Act, particularly as to the use of authorization cards. See,
e. g., NLRB
v.
Bradford Dyeing Assn.,
The employers rely finally on the addition to § 9 (c) of subparagraph (B), which allows an employer to petition for an election whenever “one or more individuals or labor organizations have presented to him a claim
15
to be recognized as the representative defined in section 9 (a).” That provision was not added, as the employers assert, to give them an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.
16
We
In short, we hold that the 1947 amendments did not restrict an employer’s duty to bargain under § 8 (a)(5) solely to those unions whose representative status is certified after a Board election. 17
We next consider the question whether authorization cards are such inherently unreliable indicators of employee desires that, whatever the validity of other alternate routes to representative status, the cards themselves may never be used to determine a union’s majority and to support an order to bargain. In this context, the employers urge us to take the step the 1947 amendments and their legislative history indicate Congress did not take, namely, to rule out completely the use of cards in the bargaining arena. Even if we do not unhesitatingly accept the Fourth Circuit’s view in the matter, the employers argue, at the very least we should overrule the Cumberland Shoe doctrine (see supra, at 584) and establish stricter controls over the solicitation of the cards by union representatives. 18
That the cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when that process has been impeded, needs no extended discussion, for the employers’ contentions cannot withstand close examination. The employers argue that their employees cannot make an informed choice because the card drive will be over before the employer has had a chance to present his side of the unionization issues. Normally, however, the union will inform the employer of its organization drive early in order to subject the employer to the unfair labor practice provisions of the Act; the union must be able to show the employer’s awareness of the drive in order to prove that his contemporaneous conduct constituted unfair labor practices on which a bargaining order can be based if the drive is ultimately successful. See,
e. g., Hunt Oil Co.,
157 N. L. R. B. 282 (1966);
Don Swart Trucking Co.,
154 N. L. R. B. 1345 (1965). Thus, in all of the cases here but the Charleston campaign in
Heck’s
the employer, whether informed by the union or not, was aware of the union’s organizing drive almost at the outset and began its antiunion campaign at that time; and even in the
Heck’s
Charleston case, where the recognition demand came about a week after the solicitation began, the employer was able to deliver a speech before the union obtained a majority. Further, the employers argue that without a secret ballot an employee may, in
The employers’ second complaint, that the cards are too often obtained through misrepresentation and coercion, must be rejected also in view of the Board’s present rules for controlling card solicitation, which we view as adequate to the task where the cards involved state their purpose clearly and unambiguously on their face. We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses, primarily arising out of misrepresentations by union organizers as to whether the effect of signing a card was to designate the union to represent the employee for collective bargaining purposes or merely to authorize it to seek an election to determine that issue. And we would be equally blind if we did not recognize that various courts of appeals and commentators 23 have differed significantly as to the effectiveness of the Board’s Cumberland Shoe doctrine (see supra, at 584) to cure such abuses.
Thus, even where the cards are unambiguous on their face, both the Second Circuit
(NLRB
v.
S. E. Nichols Co.,
In resolving the conflict among the circuits in favor of approving the Board’s
Cumberland
rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee
We agree, however, with the Board’s own warnings in
Levi Strauss & Co.,
172 N. L. R. B. No. 57, 68 L. R. R. M. 1338, 1341, and n. 7 (1968), that in hearing testimony concerning a card challenge, trial examiners should not neglect their obligation to ensure employee free choice by
The employers argue as a final reason for rejecting the use of the cards that they are faced with a Hobson’s choice
29
under current Board rules and will almost inevitably come out the loser. They contend that if they do not make an immediate, personal investigation into possible solicitation irregularities to determine whether in fact the union represents an uncoerced majority, they will have unlawfully refused to bargain for failure to have a good faith doubt of the union’s majority; and if they do make such an investigation, their efforts at polling and interrogation will constitute an unfair labor practice in violation of §8 (a)(1) and they will again be ordered to bargain. As we have pointed out, however, an employer is not obligated to accept a card check as proof of majority status, under the Board’s current practice, and he is not required to justify his insistence on an election by making his own investigation of employee sentiment and showing affirmative reasons for doubting the majority status. See
Aaron Brothers,
158 N. L. R. B. 1077, 1078. If he does make an investigation, the Board’s recent cases indicate that reasonable polling in this regard will not always be termed violative of § 8 (a)(1) if conducted in accordance with the requirements set out in
Struksnes Construction Co.,
165 N. L. R. B. No. 102, 65 L. R. R. M. 1385 (1967). And even if an employer’s limited interrogation is found violative of the Act, it might not be serious enough to call for a bargaining order. See
Aaron Brothers, supra; Hammond & Irving, Inc.,
154 N. L. R. B. 1071
C.
Remaining before us is the propriety of a bargaining order as a remedy for a §8 (a)(5) refusal to bargain where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union’s majority and caused an election to be set aside. We have long held that the Board is not limited to a cease-and-desist order in such cases, but has the authority to issue a bargaining order without first requiring the union to show that it has been able to maintain its majority status. See
NLRB
v.
Katz,
The employers argue that the Board has ample remedies, over and above the cease-and-desist order, to control employer misconduct. The Board can, they assert, direct the companies to mail notices to employees, to read
Before considering whether the bargaining orders were appropriately entered in these cases, we should summarize the factors that go into such a determination. Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices.
The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected
We emphasize that under the Board’s remedial power there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order. There is, the Board says, no per se rule that the commission of any unfair practice will automatically result in a § 8 (a) (5) violation and the issuance of an order to bargain. See Aaron Brothers, supra.
With these considerations in mind, we turn to an examination of the orders in these cases. In Sinclair, No. 585, the Board made a finding, left undisturbed by the First Circuit, that the employer’s threats of reprisal were so coercive that, even in the absence of a §8 (a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those threats. 34 The Board therefore did not have to make the determination called for in the intermediate situation above that the risks that a fair rerun election might not be possible were too great to disregard the desires of the employees already expressed through the cards. The employer argues, however, that its communications to its employees were protected by the First Amendment and § 8 (c) of the Act (29 U. S. C. § 158 (c)), whatever the effect of those communications on the union’s majority or the Board’s ability to ensure a fair election; it is to that contention that .we shall direct our final attention in the next section.
In the three cases in Nos. 573 and 691 from the Fourth Circuit, on the other hand, the Board did not make a
IV.
We consider finally petitioner Sinclair’s First Amendment challenge to the holding of the Board and the Court of Appeals for the First Circuit. At the outset we note that the question raised here most often arises in the context of a nascent union organizational drive, where employers must be careful in waging their anti-union campaign. As to conduct generally, the above-noted gradations of unfair labor practices, with their varying consequences, create certain hazards for employers when they seek to estimate or resist unionization efforts. But so long as the differences involve conduct easily avoided, such as discharge, surveillance, and coer
Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer’s rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by §8 (a)(1) and the proviso to § 8 (c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. Stating these obvious principles is but another way of recognizing that what is basically at stake is the establishment of a nonpermanent, limited relationship between the employer, his economically dependent employee and his union agent, not the
*?
election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk. Cf.
New York Times Co.
v.
Sullivan,
Within this framework, we must reject the Company’s challenge to the decision below and the findings of the Board on which it was based. The standards used below for evaluating the impact of an employer’s statements are not seriously questioned by petitioner and we see no need to tamper with them here. Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See
Textile Workers
v.
Darlington Mfg. Co.,
Equally valid was the finding by the court and the Board that petitioner’s statements and communications were not cast as a prediction of “demonstrable ‘economic consequences,’ ”
Petitioner argues that the line between so-called permitted predictions and proscribed threats is too vague to stand up under traditional First Amendment analysis and that the Board’s discretion to curtail free speech rights is correspondingly too uncontrolled. It is true that a reviewing court must recognize the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship, see
NLRB
v.
Virginia Electric & Power Co.,
For the foregoing reasons, we affirm the judgment of the Court of Appeals for the First Circuit in No. 585, and we reverse the judgments of the Court of Appeals for the Fourth Circuit in Nos. 573 and 691 insofar as they decline enforcement of the Board’s orders to bargain and remand those cases to that court with directions to remand to the Board for further proceedings in conformity with this opinion. r. . , , J
r. J It is so ordered.
Notes
At the outset of the Union campaign, the Company vice president informed two employees, later discharged, that if they were caught talking to Union men, “you God-damned things will go.” Subsequently, the Union presented oral and written demands for recognition, claiming possession of authorization cards from 31 *? of the 47 employees in the appropriate unit. Rejecting the bargaining demand, the Company began to interrogate employees as to their Union activities; to promise them better benefits than the Union could offer; and to warn them that if the “union got in, [the vice president] would just take his money and let the union run the place,” that the Union was not going to get in, and that it would have to “fight” the Company first. Further, when the Company learned of an impending Union meeting, it arranged, so the Board later found, to have an agent present to report the identity of the Union’s adherents. On the first day following the meeting, the vice president told the two employees referred to above that he knew they had gone to the meeting and that their work hours were henceforth reduced to half a day. Three hours later, the two employees were discharged.
The organizing drive was initiated by the employees themselves at Heck’s Charleston warehouses. The Union first demanded recognition on the basis of 13 cards from 26 employees of the Company’s three Charleston warehouses. After responding “No comment” to the Union’s repeated requests for recognition, the president assembled the employees and told them of his shock at their selection of the Union; he singled out one of the employees to ask if he had signed an authorization card. The next day the Union obtained the additional card necessary to establish a majority. That same day, the leading Union supporter (the employee who had first established contacts with the Union and had solicited a large number of the cards) was discharged, and another employee was interrogated as to his Union activities, encouraged to withdraw his authorization, and warned that a Union victory could result in reduced hours, fewer raises, and withdrawal of bonuses. A second demand for recognition was made two days later, and thereafter the president summoned two known Union supporters to his office and offered them new jobs at higher pay if they would use their influence to “break up the union.”
The same pattern was repeated a year later at the Company’s Ashland, Kentucky, store, where the Union obtained cards from 21 of the 38 employees by October 5, 1965. The next day, the
Throughout the Union’s six-month organizational campaign— both before and after its demand for recognition based on possession of cards from 120 of the 207 employees in the appropriate unit— the Company’s foremen and supervisors interrogated employees about their Union involvement; threatened them with discharge for engaging in Union activities or voting for the Union; suggested that unionization might hurt business and make new jobs more difficult to obtain; warned that strikes and other dire economic consequences would result (a supervisor informed a group of employees that if the Union came in, “a nigger would be the head of it,” and that when the Company put in 10 new machines, “the niggers would be the operators of them”); and asserted that, although the Company would have to negotiate with the Union, it could negotiate endlessly and would not have to sign anything.
The cards used in all four campaigns in Nos. 573 and 691 and in the one drive in No. 585 unambiguously authorized the Union to represent the signing employee for collective bargaining purposes; there was no reference to elections. Typical of the cards was the one used in the Charleston campaign in Heck’s, and it stated in relevant part:
“Desiring to become a member of the above Union oí the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, I hereby make application for admission to membership. I hereby authorize you, your agents or representatives to act for me as collective bargaining agent on all matters pertaining to rates of pay, hours, or any other conditions of employment.”
“Accordingly, I reject Respondent’s contention 'that if a man is told that his card will be secret, or will be shown only to the Labor Board for the purpose of obtaining election, that this is the absolute equivalent of telling him that it will be used “only” for purposes of obtaining an election.’
“With respect to the 97 employees named in the attached Appendix B Respondent in its brief contends, in substance, that their cards should be rejected because each of these employees was told
one or more
of the following: (1) that the card would be used to get an election (2) that he had the right to vote either way, even
See, e.
g., Joy Silk Mills, Inc.
v.
NLRB,
87 U. S. App. D. C. 360,
In addition to the First Circuit below, four courts of appeals have subsequently considered the Fourth Circuit’s view of the cards and specifically rejected it.
NLRB
v.
United Mineral & Chemical Corp.,
In 1967, for instance, the Board conducted 8,116 elections but issued only 157 bargaining orders based on a card majority. Levi Strauss & Co., 172 N. L. R. B. No. 57, 68 L. R. R. M. 1338, 1342, n. 9 (1968). See also Sheinkman, Recognition of Unions Through Authorization Cards, 3 Ga. L. Rev. 319 (1969). The number of card cases that year, however, represents a rather dramatic increase over previous years, from 12 such cases in 1964, 24 in 1965, and about 117 in 1966. Browne, Obligation to Bargain on Basis of Card Majority, 3 Ga. L. Rev. 334, 347 (1969).
See,
e. g., Aaron Brothers,
158 N. L. R. B. 1077 (1966); cf.,
General Shoe Corp.,
77 N. L. R. B. 124 (1948). An employer, of course, may not, even if he acts in good faith, recognize a minority union,
Garment Workers’ Union
v.
NLRB,
NLRB
v.
Dahlstrom Metallic Door Co.,
See, e. g., Denver Auto Dealers Assn., 10 N. L. R. B. 1173 (1939); Century Mills, Inc., 5 N. L. R. B. 807 (1938).
The right of an employer lawfully to refuse to bargain if he had a good faith doubt as to the Union’s majority status, even if in fact the Union did represent a majority, was recognized early in the administration of the Act, see
NLRB
v.
Remington Rand, Inc.,
See n. 11, supra.
Section 9 (c) of the Wagner Act had provided:
“Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify . . . the name or names of the representatives that have been designated or selected. In any such investigation, the Board . . . may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.”
E. g.,
protection against the filing of new election petitions by rival unions or employees seeking decertification for 12 months (§9 (c)(3)), protection for a reasonable period, usually one year, against any disruption of the bargaining relationship because of claims that the union no longer represents a majority (see
Brooks
v.
NLRB,
Under the Wagner Act, which did not prescribe who would file election petitions, the Board had ruled that an employer could seek an election only when two unions presented conflicting bargaining requests on the ground that if he were given the same election petition rights as the union, he could interrupt union drives by demanding an election before the union had obtained majority status. The 1947 amendments resolved the difficulty by providing that an employer could seek an election only after he had been requested to bargain. See H. R. Rep. No. 245, 80th Cong., 1st Sess., 35 (1947).
The Senate report stated that the “present Board rules . . . discriminate against employers who have reasonable grounds for
“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.’. . . 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 . . . and say, ‘I want an election. I want to know who is the bargaining agent for my employees.’” 93 Cong. Rec. 3838 (1947).
As aptly stated in Lesniek, Establishment of Bargaining Rights Without an NLRB Election, 65 Mich. L. Rev. 851, 861-862 (1967):
“Cards have been used under the act for thirty years; [this] Court has repeatedly held that certification is not the only route to representative status; and the 1947 attempt in the House-passed Hartley Bill to amend section 8 (a) (5) . . . was rejected by the conference committee that produced the Taft-Hartley Act. No amount of drum-beating should be permitted to overcome, without legislation, this history.”
In dealing with the reliability of cards, we should re-emphasize what issues we are not confronting. As pointed out above, we are not here faced with a situation where an employer, with “good” or “bad” subjective motivation, has rejected a card-based bargaining request without good reason and has insisted that the Union go to an election while at the same time refraining from committing unfair labor practices that would tend to disturb the “laboratory conditions” of that election. We thus need not decide whether, absent election interference by an employer’s unfair labor practices, he may obtain an election only if he petitions for one himself; whether, if he does not, he must bargain with a card majority if the Union chooses not to seek an election; and whether, in the latter situation, he is bound by the Board’s ultimate determination of the card results regardless of his earlier good faith doubts, or whether he can still insist on a Union-sought election if he makes an affirmative showing of his positive reasons for believing there is a representation dispute. In short, a union’s right to rely on cards as a freely interchangeable substitute for elections where there has been no election interference is not put in issue here; we need only decide whether the cards are reliable enough to support a bargaining order where a fair election probably could not have been held, or where an election that was held was in fact set aside.
The Board’s reliance on authorization cards has provoked considerable scholarly controversy. Compare criticism of Board policy, particularly its treatment of ambiguous, dual-purpose cards, in Browne, supra, n. 7, and Comment, Union Authorization Cards, 75 Yale L. J. 805 (1966), with defense of Board practice in Lesnick, supra, n. 17; Welles, The Obligation to Bargain on the Basis of a Card Majority, 3 Ga. L. Rev. 349 (1969); and Comment, Union Authorization Cards: A Reliable Basis for an NLRB Order To Bargain?, 47 Texas L. Rev. 87 (1968).
For a comparison of the card procedure and the election process, see discussion in
NLRB
v.
Logan Packing Co.,
See nn. 7-8, supra.
See Comment, Union Authorization Cards: A Reliable Basis for an NLRB Order To Bargain?, supra, at 94 and n. 32.
See n. 19, supra.
In the Charleston campaign in Heck’s, the employees handled the card drive themselves from beginning to end, contacting the union, obtaining the blank authorization cards, and soliciting their fellow employees on that basis; no union agents were involved in the card signing.
See 1969 CCH Guidebook to Labor Relations ¶ 402.4.
Criminal sanctions are imposed by § 302 (29 U. S. C. § 186) which makes it unlawful for an employer to pay to and for a union representative to receive “any money or other thing of value.” Section 302 (c) (4) (29 U. S. C. § 186 (c) (4)) exempts payments by employers to union representatives of union dues, however, where an employee has executed a “written assignment” of the dues, 2. e., a check-off authorization. Signatures are also relied on in §9 (c)(1) (A) (29 U. S. C. § 159 (c) (1) (A)), which provides for Board processing of representation and decertification petitions when each is supported by a “substantial number of employees” (the basis for the 30% signature requirement, see n. 25, supra), and in § 9 (e) which specifically provides for 30% of the signatures in the bargaining unit to empower the Board to hold a union shop de-authorization election.
In explaining and reaffirming the Cumberland Shoe doctrine in the context of unambiguous cards, the Board stated:
“Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation. A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they will use such cards only for an election and subsequently seek to use them for a different purpose . . . .”
The Board stated further in a footnote:
“The foregoing does not of course imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the ‘sole’ or ‘only’ purpose of the cards is to obtain an election. The Board has never suggested such a mechanistic application of the foregoing principles, as some have contended. The Board looks to substance rather than to form. It is not the use or nonuse of certain key or ‘magic’ words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election.” 172 N. L. R. B. No. 57, 68 L. R. R. M. 1338, 1341-1342, and n. 7.
See Sheinkman, supra, n. 7, at 332-333.
See Judge Brown’s “Scylla and Charybdis” analogy in
NLRB
v.
Dan River Mills,
The Board indicates here that its records show that in the period between January and June 1968, the median time between the filing of an unfair labor practice charge and a Board decision in a contested case was 388 days. But the employer can do more than just put off his bargaining obligation by seeking to slow down the Board’s administrative processes. He can also affect the outcome of a rerun election by delaying tactics, for figures show that the longer the time between a tainted election and a rerun, the less are the union’s chances of reversing the outcome of the first election. See n. 31, infra.
A study of 20,153 elections held between 1960 and 1962 shows that in the 267 cases where rerun elections were held over 30% were won by the party who caused the election to be set aside. See Pollitt, NLRB Re-Run Elections: A Study, 41 N. C. L. Rev. 209, 212 (1963). The study shows further that certain unfair labor practices are more effective to destroy election conditions for a longer period of time than others. For instance, in cases involving threats to close or transfer plant operations, the union won the rerun only 29% of the time, while threats to eliminate benefits or refuse to deal with the union if elected seemed less irremediable with the union winning the rerun 75% of the time. Id., at 215-216. Finally, time appears to be a factor. The figures suggest that if a rerun is held too soon after the election before the effects of the unfair labor practices have worn off, or too long after the election when interest in the union may have waned, the chances for a changed result occurring are not as good as they are if the rerun is held sometime in between those periods. Thus, the study showed that if the rerun is held within 30 days of the election or over nine months after, the chances that a different result will occur are only one in five; when the rerun is held within 30-60 days after the election, the chances for a changed result are two in five. Id., at 221.
The employers argue that the Fourth Circuit correctly observed that, “in the great majority of cases, a cease and desist order with the posting of appropriate notices will eliminate any undue influences upon employees voting in the security of anonymity.”
NLRB
v.
Logan Packing Co.,
It has been pointed out that employee rights are affected whether or not a bargaining order is entered, for those who desire representation may not be protected by an inadequate rerun election, and those who oppose collective bargaining may be prejudiced by a bargaining order if in fact the union would have lost an election absent employer coercion. See Lesnick,
supra,
n. 17, at 862. Any
Under the doctrine of Bernel Foam Products Co., 146 N. L. R. B. 1277 (1964), there is nothing inconsistent in the Union’s filing an election petition and thereby agreeing that a question of representation exists, and then filing a refusal-to-bargain charge after the election is lost because of the employer’s unfair labor practices.
See Bok, supra, n. 33, at 77; n. 31, supra.
See,
e. g., Kolmar Laboratories, Inc.,
159 N. L. R. B. 805, 807-810, and cases (relied on by the trial examiner here) cited at 809, n. 3, enforced,