395 U.S. 575 (1969), 573, National Labor Relations Board v. Gissel Packing Co., Inc.

Docket Nº:No. 573
Citation:395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547
Party Name:National Labor Relations Board v. Gissel Packing Co., Inc.
Case Date:June 16, 1969
Court:United States Supreme Court

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395 U.S. 575 (1969)

89 S.Ct. 1918, 23 L.Ed.2d 547

National Labor Relations Board


Gissel Packing Co., Inc.

No. 573

United States Supreme Court

June 16, 1969

Argued March 26, 1969




In Nos. 573 and 691, Unions waged organizational campaigns, obtained authorization cards from a majority of employees in the appropriate bargaining units, and demanded recognition by the employers. The employers refused to bargain on the ground that the cards were inherently unreliable, and carried out vigorous anti-union campaigns. In one instance, the Union did not seek a representation election, but filed unfair labor practice charges against the employer; in a second, an election sought by the Union was not held, because of unfair labor practice charges filed by the Union as a result of the employer's anti-union campaign, and, in the third, an election petitioned by the Union and won by the employer was set aside by the National Labor Relations Board (NLRB) because of the employer's pre-election unfair labor practices. In each instance, the NLRB found that the Union had obtained valid authorization cards from a majority of the employees in the bargaining unit, and was thus entitled to represent the employees for bargaining purposes, and that the employer's refusal to bargain, in violation of § 8(a)(5) of the National Labor Relations Act, was motivated not by a "good faith" doubt of the Union's majority status, but by a desire to gain time to dissipate that status. The NLRB ordered the employers to stop their unfair labor practices, offer reinstatement and back pay to employees discriminatorily discharged, and to bargain with the Unions on request. The Court of Appeals for the Fourth Circuit upheld the NLRB's findings as to violations of §§ 8(a)(1) and (3), but declined to enforce the orders to bargain, holding that the Taft-Hartley amendments to the Act withdrew the NLRB's

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authority to order an employer to bargain under § 8(a)(5) on the basis of cards, in the absence of NLRB certification, unless the employer knows, independently of the cards, that there is, in fact, no representation dispute. The court held that the cards were so inherently unreliable that their use gave the employer an automatic, good faith claim that such a dispute existed, for which an election was necessary. In No. 585, after the Union announced to the employer that it held authorization cards from a majority of the bargaining unit, and the employer claimed it had a good faith doubt of majority status, the Union petitioned for an election. From the time the employer first learned of the Union's drive until the election, the company's president talked and wrote to the employees. The NLRB stated that the communications

reasonably tended to convey . . . 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,

and constituted a violation of § 8(a)(1). The NLRB set aside the election because the employer "interfered with the exercise of a free and untrammeled choice in the election," found that the Union had a valid card majority when it demanded recognition and that the employer declined recognition in order to gain time to dissipate that majority status in violation of § 8(a)(5). The employer was ordered to bargain on request. The Court of Appeals for the First Circuit sustained the NLRB's findings and enforced its order.


1. To obtain recognition as the exclusive bargaining representative under the Act, a union has not been required, prior to or since the Taft-Hartley amendments, to obtain certification as a winner of an NLRB election; it can establish majority status by possession of cards signed by a majority of the employees authorizing the union to represent them for bargaining purposes. Pp. 595-600.

2. Authorization cards can adequately reflect employee desires for representation, and the NLRB's rules for controlling card solicitation are adequate safeguards against union misrepresentation and coercion where the cards are clear and unambiguous on their face. Pp. 601-610.

(a) The NLRB's rule set forth in Cumberland Shoe Corp., 144 N.L.R.B. 1268, that an unambiguous authorization card will be counted unless it is proved that the employee was told that the card was to be used solely to obtain an election, should not be applied mechanically. Pp. 607-609.

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(b) An employer is not obligated to accept a card check as proof of majority status under the NLRB'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. Not every employer unfair labor practice will necessarily support a bargaining order. Pp. 609-610.

3. The issuance of a bargaining order is an appropriate remedy where an employer who has rejected a card majority has committed unfair labor practices which have made the holding of a fair election unlikely, or which have undermined a union's majority, caused an election to be set aside, and made the holding of a fair rerun election unlikely. Pp. 610-616.

(a) In fashioning a remedy, the NLRB can consider 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, and, if it 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 is slight, and that employee sentiment once expressed through cards would be better protected by a bargaining order, such order should issue. Pp. 614-615.

(b) Because the NLRB's findings in Nos. 573 and 691 were based on its former practice of phrasing its findings in terms of an employer's good or bad faith doubts of a union's majority status, these cases are remanded for proper findings. Pp. 615-616.

4. An employer's free speech right to communicate with his employees is firmly established, and cannot be infringed by a union or by the NLRB, and 8(c) merely implements the First Amendment by requiring that the expression of "any views, argument or opinion" shall not be "evidence of an unfair labor practice," so long as such expression contains "no threat of reprisal or force or promise of benefit" in violation of § 8(a)(1). Pp. 616-620.

(a) An assessment of the precise scope of employer expression must be made in the context of its labor relations setting, and an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied and protected in the Act. Pp. 617-618.

(b) An employer may communicate to his employees any of his general views on unionism and his specific views about a particular union, as long as there is no "threat of reprisal or force or promise of benefit." He may predict the precise effects he

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believes unionization will have on his company if the prediction is based on objective fact to convey his 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. Pp. 618-619.

(c) In No. 585, the NLRB correctly found that the communications were cast as threat of retaliatory action, and not as a prediction of "demonstrable economic consequences." P. 619.

No. 585, 397 F.2d 157, affirmed; Nos. 573 and 691, 398 F.2d 336, 337, and 339, reversed and remanded.

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WARREN, J., lead opinion

MR. CHIEF JUSTICE WARREN 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.


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. 691. All three cases present the same legal issues

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in similar, uncomplicated factual settings that can be briefly described together. The fourth case, No. 585 (Sinclair Company), brought here from the Court of Appeals for the First Circuit and argued separately, presents many of the same questions, and will thus be disposed of in this opinion; but, because the validity of some of the Board's factual findings are under attack on First...

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