Earl Warren

“ There is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition. ”

“ 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. ”

“ 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. ”

“ 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 s 9 (c) (1) (B) and not by insisting that the Union file the election petition, whereby the election can be subjected to considerable delay. If the employer does not himself petition for an election, the Union argues, he must recognize the Union regardless of his good or bad faith and regardless of his other unfair labor practices, and should be ordered to bargain if the cards were in fact validly obtained. ”

“ Neither contention is persuasive, and each proves too much. The Board itself has recognized, and continues to do so here, that secret elections are generally the most satisfactory-indeed the preferred-method of ascertaining whether a union has majority support. [21] The acknowledged superiority of the election process, however, does not mean that cards are thereby rendered totally invalid, for where an employer engages in conduct disruptive of the election process, cards may be the most effective-perhaps the only-way of assuring employee choice. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coersion, and as such without the protection of the First Amendment. ”

“ 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 majority status, such as cards, was affected by the 1947 Taft-Hartley amendments. ”

“ We therefore reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry. We nevertheless feel that the trial examiner's findings in General Steel (see n. 5, supra) represent the limits of the Cumberland rule's application. We emphasize that the Board should be careful to guard against an approach any more rigid than that in General Steel. And we reiterate that nothing we say here indicates our approval of the Cumberland Shoe rule when applied to ambiguous, dual-purpose cards. ”

“ The Board argues (1) that unions have never been limited under § 9 (c) of either the Wagner Act or the 1947 amendments to certified elections as the sole route to attaining representative status. Unions may, the Board contends, impose a duty to bargain on the employer under § 8 (a) (5) by reliance on other evidence of majority employee support, such as authorization cards. Contrary to the Fourth Circuit's holding, the Board asserts, the 1947 amendments did not eliminate the alternative routes to majority status. ”

“ And no voter, of course, can change his mind after casting a ballot in an election even though he may think better of his choice shortly thereafter.
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 unambigously on their face. ”

“ Any effect will be minimal at best, however, for there 'is every reason for the union to negotiate a contract that will satisfy the majority, for the union will surely realize that it must win the support of the emply ees, in the face of a hostile employer, in order to survive the threat of a decertification election after a year has passed.' Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. ”

“ 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. ”

“ Typical of the cards was the one used in the Charleston campaign in Heck's, and it stated in relevant part:↑ '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.'↑ See, e.g., Joy Silk Mills, Inc. ”

“ But so long as the differences involve conduct easily avoided, such as discharge, surveillance, and coercive interrogation, we do not think that employers can complain that the distinctions are unreasonably difficult to follow. ”

“ 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 somei me in between those periods. ”

“ Of the four cases 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. ”

“ We see no reason to reject this approach to bargaining obligations now, and we find unpersuasive the Fourth Circuit's view that the 1947 Taft-Hartley amendments, enacted some nine years before our decs ion in United Mine Workers, supra, require us to disregard that case. ”

“ 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, International Ladies' Garment Workers' Union v. ”

“ 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 seto ut in Struksnes Construction Co., 165 N.L.R.B. No. ”