Arthur F. Derse, Sr.

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc. and Textile Workers Union of America, AFL-CIO. Case 2-CA-10823 August 20, 1972 SECOND SUPPLEMENTAL DECISION AND ORDER On October 21, 1968, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding finding that Respondent had not engaged in and was not engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, and ordering that the complaint be dimsissed.1 On November 14, 1969, the Court of Appeals for the District of Columbia remanded the case to the Board for further consideration "in the first instance in the light of Gissel, but without limitation ...."2 On August 27, 1970, the National Labor Relations Board issued its Supplemental Decision and Order in the above-entitled proceeding finding that Respon- dent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act.3 On June 7, 1971, the Board issued its Decision in Linden Lumber Division, Summer & Co., 190 NLRB No. 116. Thereafter, in order to insure consistency in its decisions, the National Labor Relations Board moved the United States Court of Appeals, District of Columbia Circuit, to have the instant case remanded to it for reconsideration in light of its decision in Linden Lumber. On November 1, 1971, the United States Court of Appeals, District of Columbia, determined that it was not the proper forum for considering this case in light of the provisions of Section 10(e) of the Act and transferred the proceedings to the United States Court of Appeals for the Second Circuit.4 On February 1, 1972, the United States Court of Appeals for the Second Circuit granted the Board's motion to remand to the National Labor Relations Board for reconsideration. The Board has invited statements of position from the parties. A statement of position has been received from Respondent. The Board has duly reconsidered the matter and has concluded5 for the reasons set forth below that Respondent has not engaged in and was not engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. 1 173 NLRB 214 2 Sub none Textile Workers Union of America v N L R B, 420 F 2d 635 The court's reference to Gissel is to the Supreme Court's opinion in N LR.B v. Gissel Packing Company, Inc, 395 U S. 575 (1969) 3 185 NLRB No 76. In the Supplemental Decision in the instant case the Board found that, even in the absence of independent unfair practices, an employer is obligat- ed to bargain with a union where, as here, there is substantial evidence to demonstrate an employer's knowledge of majority status and no evidence demonstrating a willingness or desire on the part of the employer to resolve any doubt which it may have entertained through the election process. In Linden Lumber, supra, the Board stated: The facts of the present case have caused us to reassess the wisdom of attempting to divine, in retrospect, the state of employer (a) knowledge and (b) intent at the time he refuses to accede to a union demand for recognition. Unless, as in Snow & Sons [134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9) ], the employer has agreed to let its "knowl- edge" of majority status be established through a means other than a Board election, how are we to evaluate whether it "knows" or whether it "doubts" majority status? And if we are to let our decisions turn on an employer's "willingness" to have majority status determined by an election, how are we to judge "willingness" if the record is silent, as in Wilder, or doubtful, as here, as to just how "willing" the Respondent is in fact? We decline, in summary, to reenter the "good-faith" thicket of Joy Silk [Mills, Inc., 85 NLRB 1263, enfd. as modified 185 F.2d 732 (C.A.D.C.)], which we announced to the Supreme Court in [ N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969) ] we had "virtually abandoned . . . alto- gether," id., 594. These considerations led us to the conclusion that Respondent should not be found guilty of a violation of Section 8(a)(5) solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election. We repeat for emphasis our reliance here upon the additional fact that the Respondent and the Union never voluntarily agreed upon any mutual- ly acceptable and legally permissible means, other than a Board-conducted election, for resolving the issue of union majority status. By such reliance we recognize and encourage the principle of voluntarism but at the same time insure that when voluntarism fails the "perferred route" of secret ballot elections is available to those who do not find any alternative route acceptable. [Foot- note omitted.] The effect of the decision in Linden was to overrule 4 N LR B v. Wilder Mfg Co, 454 F.2d 995 (C.A.D.C). 5 Respondent's request for oral argument is hereby denied, as the record, including Respondent's brief upon remand for further consideration, adequately presents the issues and the positions of the parties. 198 NLRB No. 123 ARTHUR F. DERSE, SR. 999 the views expressed in our Supplemental Decision in the instant case and to find that a bargaining obligation under Section 8(a)(5) may not be estab- lished solely on the basis of facts which might give rise to an inference that an employer had knowledge of majority status. As in Linden, supra, the record here is devoid of evidence that the employer either attempted, as in Nation-wide Plastics, 197 NLRB No. 136, or agreed, as in Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9), to determine majority status by any means other than a Board election. This, in the absence of any independent unfair labor practices, we conclude that Respondent did not violate Section 8(a)(5) and (1) and that the complaint should be dismissed.' Our dissenting colleague, in disagreeing with our dismissal of the complaint herein, errs in his reliance on the Supreme Court decision in N. L. R. B. v. Gissel Packing Co., 395 U.S. 576. His lengthy quotations from- the opinion in that case were taken from the Court's rationale supporting its holding that this Board may rely on authorization cards to support a bargaining order where the employer's unfair labor practices have been serious enough to make a fair election impossible. In footnote 18 of the Gissel opinion, however, the Court clearly outlined the issues it was not deciding. The following excerpts from that footnote make it clear that the issue posed here was not before the Court in that case: In dealing with the reliability of cards, we should reemphasize 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. . . . 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. Repeating what we said in Linden Lumber, we remain of the view that, absent employer unfair labor practices, the objectives of our statute are best served by encouraging the parties to utilize our orderly election procedures to establish a reliable majority- support foundation for a bargaining relationship. In such cases, it seems far better not to enter the tangled thicket of frequently unreliable evidence as to the subjective desires of employees with respect to representation. As the Court said in Gissel, we have long recognized that the election process is the "most satisfactory-indeed the preferred-method of ascer- taining whether a union has majority support." We do not ignore what the Court also recognized: that authorization cards-or other types of evidence, for that matter-are not "thereby rendered totally invalid." And where, as in Gissel, we are forced to rely on such other evidence because the employer's violations of our Act have foreclosed the effective utilization of fair election procedures, we shall do so, despite our knowledge that such means are less reliable indicators of employee choice. We are also fully aware that many bargaining relationships begin on the basis of some other voluntarily agreed-upon method of determining majority status, and we place no impediment in the way of such voluntarism. But we are dealing here with a phenomenon which continues to occur with some frequency in our society-a union determined upon an organizational effort and an impatient work force, eager to secure immediate bargaining, encoun- tering an employer who is not willing voluntarily to enter into a collective-bargaining relationship. The seemingly irresistible force has encountered the seemingly immovable object. Is it wise, in such cases, to encourage conflict, strikes, and contested litigation before this Board as a means of establishing a shaky foundation for future bargaining? We think not. We think it far better, by making clear here, as we did in Linden, that the proper course in such cases is for the union, on behalf of the employees, to invoke our election processes. In that manner, if there is indeed majority support, it will be evidenced in clear and unmistakable fashion within a matter of a few weeks. Surely that is a far better basis for the bargaining relationship than a decision in litigation which would take us nearly a year to reach and which, even then, may be subject to debate as to the soundness of its evidentiary base and to further contest in the courts. It is for these reasons that both here and in Linden we have answered the questions left open by the Supreme Court in Gissel and refused to enter a bargaining order on the basis of cards or other circumstantial evidence of majority status, where there has been no voluntary agreement on a means of resolving majority status and when the road to a free and fair election has not been impeded by unlawful employer conduct. ORDER Pursuant to Section 10(c) of the National Labor 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JOHN H. FANNING, dissenting: I dissent from my colleagues' dismissal of the complaint in this case. In our Supplemental Decision in this case,6 the Board found: In the instant case, the record demonstrates not only that 11 out of the 18 production and maintenance employees had signed authorization cards, but also that all of the card signers dramatically evidenced their support for the Union by actively participating in a picket line and in a strike, and, furthermore, that an officer of the Respondent conceded in his testimony that he told his fellow officers that the Union "had 10 or 11" of the employees. Upon this record we are compelled to find that the Employer did have knowledge that a majority of his employees supported the Union. We also do not find any facts in the record which evidence a genuine willingness on the part of the Respon- dent to resolve any lingering doubts which might have remained as to majority status by resort to the Board's election procedures. My colleagues do not reverse the finding of employ- er-knowledge of majority status. Indeed they cannot for the record speaks plainly and irrefutably of such knowledge. In view of that finding, the question presented in this case resolves into the simple one of whether, in the absence of a bona fide dispute as to majority status, Respondent violated Section 8(a)(5) when it refused to bargain with representative designated by its employees. That question has been answered in the affirmative time and time again 7-most recently by this Board in the Pacific Abrasive decision8 and by the Supreme Court in the Gissel decision.9 In Gissel, the Court had before it the question of whether the bargaining obligation could be imposed on an unwilling employer where the only evidence of majority status was authorization cards. The first issue facing us [the Court stated] is whether a union can establish a bargaining obligation by means other than a Board election and whether the validity of alternate routes to 8 185 NLRB No. 76. 7 See, for example, Redmond Plastics, Inc, 176 NLRB 98, Stecher- Traung-Schmitt Corporation, Wheeler- Van Label, 172 NLRB No 186, Sands Motor Hotel, 162 NLRB 863, H & W Construction Company, 161 NLRB 852; Fleming & Sons of Colorado, Inc, 147 NLRB 1271; Greyhound Terminal, 137 NLRB 87 See also Brown Truck and Trailer Manufacturing Company, Inc, 106 NLRB 999, 1001, and cases cited 8 Pacific Abrasive Supply Co, a subsidiary of the Carborundum Company, 182 NLRB 329 Our Supplemtntal Decision in the instant case added to the finding of knowledge of majority status the gloss of a finding that the Respondent was unwilling to go to a Board election as a basis for imposing majority status, such as cards, was affected by the 1947 Taft-Hartley amendments. [395 U.S. at 595-596] Noting that these "1947 amendments weaken rather than strengthen" the argument that an election is the only route, the Court held as follows: A union is not limited to a Board election, however, for, in addition to §9, the present Act provides in §8(a)(5) . . . that "[i]t shall be an unfair labor practice for an employer . . . to refuse to bargain collectively with the representa- tives of his employees, subject to the provisions of section 9(a)." Since §9(a), in both the Wagner Act and the present Act, refers to the representative as the one "designated or selected" by a majority of the employees without specifying precisely how that representative is to be chosen, it was early recognized that an employer had a duty to bargain whenever the union representative pres- ented "convincing evidence of a majority sup- port."9 Almost from the inception of the Act, then, it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means under the unfair labor practice provision of §8(a)(5)-by showing convincing support, for instance, by a union- called strike or strike vote,10 or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes.ii We have consistently accepted this interpreta- tion of the Wagner Act and the present Act, particularly as to the use of authorization cards. [Citations omitted.] Thus, in United Mine Work- ers, supra, we noted that a "Board election is not the only method by which an employer may satisfy itself as to the union's majority status," 351 U.S., at 72 n. 8, since §9(a), "which deals expressly with employee representation says nothing as to how the employees' representative shall be chosen," 351 U.S., at 71. We therefore pointed out in that case where the union had obtained signed authorization cards from a majority of the employes, that "[i]n the absence of any bona fide dispute 12 as to the existence of the required majority of eligible employees, the a bargaining order. Subsequently, in Linden Lumber Division, Summer & Co, 190 NLRB No. 116, a majority of the Board refused to impose a bargaining obligation in circumstances not materially different from those involved in Wilder because the majority found the "willingness to go to an election" test an unsatisfactory and difficult standard to apply I dissented from the refusal to find the 8(aX5) violation for reasons substantially the same as those I rely on here The majority has not explicitly overruled the supplemental Wilder decision. Significantly, however, the majority does not overrule Pacific Abrasive, nor can it do so without indicating disagreement with the Supreme Court, as this opinion demonstrates 9 N LR.B v Gissel Packing Co, Inc, 395 U.S 575, 595-600 ARTHUR F. DERSE, SR. 1001 employer's denial of recognition of the union would have violated §8(a)(5) of the Act." 351 U.S., at 69. 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 decision in United Mine Workers, supra, require us to disregard that case. Indeed, the 1947 amendments weaken rather than strengthen the position taken by the employers were and the Fourth Circuit below. [395 U.S. 596- 598 ] 9 N LRB v. Dahlstrom Metallic Door Co, 112 F 2d 756. 10 See, e g , Denver Auto Dealers Assn , 10 NLRB 1173 11 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 administra- tion of the Act, see N L R B v Remington Ran4 Inc, 94 F.2d 862, 868 (C.A 2d Cir. 1938), cert. denied, 304 U.S. 576(1938). 12 See n. 11, supra. I have quoted at length from this aspect of the Court's Gissel decision because it leaves no room for the majority's conclusion that a bargaining obligation under Section 8(a)(5) may not be established solely on the basis of an employer's refusal to accept evidence of majority status other than the results of a Board election unless the employer had either attempted, as in Nation-wide Plastics, 197 NLRB No. 136, or agreed, as in Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9), to determine majority status by any means other than a Board election. The Court did not say that an employer has the right to an election unless he agrees with the union to forego such an election or himself solicits evidence of employee desires by means of interrogation of or polling of employees. On the contrary the Court stated that an employer violates Section 8(a)(5) whenever it refuses to bargain with a unionnwhich;has!presented it-with"convincing evidence of majority support" such as "for instance'by a union-called strike or strike vote," or even "by posses- sion of cards signed by a majority of his employees authorizing the union to represent them for collective bargaining purposes." In the instant case, not only has the Employer examined the authorization cards pres- ented to it by the Union, not only has a majority support for the Union been demonstrated by a strike supported by a substantial majority of the employees in the unit, including all the employees whose authori- zation cards the Respondent had examined, but the Respondent acknowledges that it knew that 10 or 11 employees in the 18-man bargaining unit supported the Union's bargaining demand.10 10 In point of fact 13 employees in the unit went on strike and were observed on the picket line. 11 The majority opinion states: We do not ignore what the Court also recognized that authoriza- tion cards-or other types of evidence for that matter-are not "thereby rendered totally invalid." And where, as in Gissel, we are forced to rely From the foregoing, it can be seen that the issue is not whether Linden Lumber overruled the Supple- mental Decision and Order in this case. For even if Linden overruled the "willingness to go to an election" test of the supplemental Wilder decision, that test was a mere administrative gloss imposed on the principles of law discussed by the Court in the quoted portions of the Gissel decision. When that 'gloss is stripped away, there remains the principle of law that "in the absence of any bona fide dispute as to the existence of the required majority of eligible employees, the employer's denial of recognition of the union . . . violate[s] §8(a)(5) of the Act." "We see," the Court said, "no reason to reject this approach to the bargaining obligation now," and the majority has advanced no reasons of policy or practicality to justify asking its attorneys to go into court to argue that the principle can now be ignored. Although there may be aspects of the Court's Gissel decision that permit of differing interpretations as to the method best calculated to carry out its intent, I see no warrant for ignoring its holding on the issue before us. By the use of inexact paraphrase," the majority opinion seeks to make it appear that the Supreme iCourt, in discussing the unreliability of authorization cards, was also imputing unreliability to strike votes, strikes, and affirmative employee responses to employer interrogation as to their support of the union as evidence of majority support. Plainly, that was not the case. The Court commenced its discus- ision of the unreliability of cards with these words: "We next consider the question whether authoriza- tion 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." (Emphasis supplied.) (395 U.S. at 601) Having previously determined that presentation to the employer of "convincing evidence of majority support" imposes the bargaining obligation, and having cited "a union-called strike or strike vote" as just such convincing evidence, the Court's later discussion of the claimed unreliability of authoriza- tion cards as indicators of majority support simply cannot be read as imputing unreliability to such alternative methods of demonstrating majority sup- port. Putting these arguments aside, there are neverthe- less compelling reasons for rejecting the majority's on such other evidence because the employer's violations of our Act have foreclosed the effective utilization of fair election procedures, we shall do so, despite our knowledge that such means are less reliable indicators of employee choice. [Emphasis supplied ] The italicized language is not to be found in the portion of the Gissel decision referred to 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overruling of the supplemental Wilder decision. In that case the Board held that: ... where there is substantial evidence to demonstrate Employer knowledge of majority status and no evidence demonstrating a willing- ness or desire on the part of the Employer to resolve any doubt which it may have entertained through the election process, we must conclude that the refusal to bargain constituted a violation of Section 8(a)(5) of the Act and that a bargaining order is, here, an appropriate remedy. That rule certainly placed no unreasonable burden on the "unwilling employer." It permitted the employer to refuse to recognize a union and require the union to obtain a certification. But by requiring some movement by the employer towards invocation of the election procedures, it tended to insure realization of the aim professed by the majority in this case that "if there is indeed majority support, it will be evidenced in clear and unmistakable fashion within a matter of a few weeks." For our experience in conducting elections demonstrates that where employers are willing to go to an election, the election is held more expeditiously and with far less likelihood of interference in the conduct of the election than is the case where either party has to be forced to an election. Internal staff studies of our elections disclose that objections are filed in only 6.5 percent of consent elections and 11.5 percent of stipulated elections, whereas the rate of objections to elections held pursuant to the directions of a Regional Director or the Board is over 20 percent.12 When the parties are in agreement that an election shall be held, the rate of objections is only half that of those cases where the employer must be forced to an election after hearing. But the holding in Linden Lumber and in this case permits employers who are unwilling to engage in 12 The figure for consent elections and stipulated elections combined is about 10 percent. Such elections outnumber directed elections by about 4 to I collective bargaining to oppose and obstruct the election process, to take advantage of the procedures for purposes of delay and, when finally forced to an election, to buy more time in the hopes of weakening the union's strength by engaging in unfair labor practices. Although the price for such conduct may be the eventual imposition of a bargaining order, they need not feel that even that is certain for there is a real likelihood that the remedy will be another election.13 Should that election result in a union victory, they may still refuse to bargain to test the certification in an unfair labor practice proceeding. In either event, the bargaining obligation will be imposed on them after long months, even years, of delay when the union's strength has been dissipated by attrition and discouragement. Admittedly, not all employers seek to utilize the election procedures for purposes of obstruction and delay. Indeed, almost 80 percent of our elections are conducted pursuant to consent agreements and stipulations. But our rules must be tailored to the "unwilling employers" as well as to the cooperative employer and the rule applied in this case permits employers, such as the respon- dent in Linden Lumber, not only to commit unfair labor practices, but to declare their intention to disregard any certification that might come out of an election, and still escape a bargaining order because the union did not file a petition. Such a rule encourages recalcitrance on the part of employers without any corresponding furtherance of any other policy embedded in our labor laws. It seems to me it subverts the purposes and the policies of the Act we are sworn to enforce. I therefore dissent from its application herein. For the foregoing reasons, I dissent from my colleagues' failure to reaffirm the Supplemental Decision and Order in this case and from their dismissal of the complaint. 13 See, for example, Restaurant Associates Industries, Inc, 194 NLRB No. 172, New Alaska evelopment Corp, Alaska Housing Corporation, 194 NLRB No 137.