National Labor Relations Board v. Gissel Packing Co Food Store Employees Union, Local No 347, Amalgamated NLRB v. Gissel Packing Co.

• Decision Date: 16 June 1969
• Docket Number: 691,585,Nos. 573,s. 573
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GISSEL PACKING CO., Inc., et al. FOOD STORE EMPLOYEES UNION, LOCAL NO. 347, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL—CIO, Petitioner, v. GISSEL PACKING CO., Inc. The SINCLAIR COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Supreme Court

395 U.S. 575

89 S.Ct. 1918

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v GISSEL PACKING CO., Inc., et al.

FOOD STORE EMPLOYEES UNION, LOCAL NO. 347,

AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH

AMERICA, AFL—CIO, Petitioner,

v. GISSEL PACKING CO., Inc.

The SINCLAIR COMPANY, Petitioner,

v. NATIONAL LABOR RELATIONS BOARD.

Nos. 573, 691, 585.

Argued March 26 and 27, 1969.

Decided June 16, 1969.

Rehearing Denied Oct. 13, 1969.

See 90 S.Ct. 35.

[Syllabus from pages 575-578 intentionally omitted] Dominick L. Manoli, Washington, D.C., for N.L.R.B., petitioner.

Albert Gore, Chicago, Ill., for Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL—CIO.

John E. Jenkins, Jr., Huntington, W. Va., for Gissel Packing Co., Inc.

Lewis P. Hamlin, Jr., Salisbury, N.C., for General Steel Products, Inc., and another.

Frederick F. Holroyd, Charleston, W. Va., for Hecks, Inc.

Edward J. Simerka, Cleveland, Ohio, for the Sinclair Co.

Lawrence G. Wallace, Washington, D.C., for N.L.R.B., respondent.

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 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 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 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 Amendment grounds, detailed attention must be paid to the factual setting of that case.

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

And in General Steel, an election petitioned for by the Union and won by the employer was set aside by the Board because of the unfair labor practices committed by the employer in the pre-election period.³

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 valid authorization cards⁴ from a majority of the employees in the bargaining unit and was thus entitled to represent the employees for collective bargaining purposes; and (2) that the employer's refusal to bargain with the Union in violation of § 8(a)(5) 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 Board based its conclusion as to the lack of good faith doubt on the fact that the employers had committed substantial unfair labor practices during their antiunion campaign efforts to resist recognition. Thus, the Board found that all three employers had engaged in restraint and coercion of employees in violation of § 8(a)(1)—in Gissel, for coercively interrogating employees about Union activities, threatening them with discharge, and promising them benefits; in Heck's, for coercively interrogating employees, threatening reprisals, creating the appearance of surveillance, and offering benefits for opposing the Union; and in General Steel, for coercive interrogation and threats of reprisals, including discharge. In addition, the Board found that the employers in Gissel and Heck's had wrongfully discharged employees for engaging in Union activities in violation of § 8(a)(3). And, because the employers had rejected the card-based bargaining demand in bad faith, the Board found that all three had refused to recognize the Unions in violation of § 8(a)(5).

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

* * *

'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 though he signed the card (3) that the card would be kept secret and not shown to anybody except to the Board in order to get an election. For reasons heretofore explicated, I conclude that these statements, singly or jointly, do not foreclose use of the cards for the purpose designated on their face.'

Consequently, the Board ordered the companies to cease and desist from their unfair labor practices, to offer reinstatement and back pay to the employees who had been discriminatorily discharged, to bargain with the Unions on request, and to post the appropriate notices.

On appeal, the Court of Appeals for the Fourth Circuit, in per curiam opinions in each of the three cases (398 F.2d 336, 337, 339), sustained the Board's findings as to the §§ 8(a)(1) and (3) violations, but rejected the Board's findings that the employers' refusal to bargain violated § 8(a)(5) and declined to enforce those portions of the Board's orders directing the respondent companies to bargain in good faith. The court based its § 8(a)(5) rulings on its 1967 decisions raising the same fundamental issues, Crawford Mfg. Co. v. NLRB, 386 F.2d 367, cert. denied, 390 U.S. 1028, 88 S.Ct. 1408, 20 L.Ed.2d 286 (1968); NLRB v. S. S. Logan Packing Co., 386 F.2d 562; NLRB v. Sehon Stevenson & Co., Inc., 386 F.2d 551. The court in those cases held that the 1947 Taft-Hartley amendments to the Act, which permitted the Board to resolve representation disputes by certification under § 9(c) only by secret ballot election, withdrew from the Board the 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 themselves were so inherently unreliable that their use gave an employer virtually an automatic, good...