Linden Lumber Division, Summer Co v. National Labor Relations Board National Labor Relations Board v. Truck Drivers Union Local 8212 1231 73 8212 1234

Decision Date23 December 1974
Docket NumberNo. 413,Nos. 73,413,s. 73
Citation95 S.Ct. 429,419 U.S. 301,42 L.Ed.2d 465
CourtU.S. Supreme Court

An employer who has not engaged in an unfair labor practice impairing the electoral process does not commit a violation of § 8(a)(5) of the National Labor Relations Act simply because he refuses to accept evidence of the union's majority status other than the results of a Board election. At least in the absence of any agreement to permit majority status to be determined by means other than a Board election, a union that is refused recognition despite authorization cards or other such evidence purporting to show that it represents a majority of the employees has the burden of taking the next step and invoking the Board's election procedure. Pp. 303—310.

159 U.S.App.D.C. 228, 487 F.2d 1099, reversed.

Norton J. Come, Washington, D.C., for the NLRB.

Lawrence M. Cohen, Chicago, Ill., for Linden Lumber Division, Summer & Co. Laurence Gold, Washington, D.C., for respondent Unions.

Mr. Justice DOUGLAS delivered the opinion of the Court.

These cases present a question expressly reserved in NLRB v. Gissel Packing Co., 395 U.S. 575, 595, 601 n. 18, 89 S.Ct. 1918, 1930, 1933, 23 L.Ed.2d 547 (1969).

In Linden respondent union obtained authorization cards from a majority of petitioner's employees and demanded that it be recognized as the collective-bargaining representative of those employees. Linden said it doubted the union's claimed majority status and suggested the union petition the Board for an election. The union filed such a petition with the Board but later withdrew it when Linden declined to enter a consent election agreement or abide by an election, on the ground that respondent union's organizational camaign had been improperly assisted by company supervisors. Respondent union thereupon renewed its demand for collective bargaining; and again Linden declined, saying that the union's claimed membership had been improperly influenced by supervisors. Thereupon respondent union struck for recognition as the bargaining representative and shortly filed a charge of unfair labor practice against Linden based on its refusal to bargain.

There is no charge that Linden engaged in an unfair labor practice1 apart from its refusal to bargain. The Board held that Lineden should not be guilty of an unfair labor practice2 solely on the basis 'of its refusal to accept evidence of majority status other than the results of a Board election.' 190 N.L.R.B. 718, 721 (1971).

In Wilder3 there apparently were 30 employees in the plant, and the union with 11 signed and two unsigned authorization cards requested recognition as the bargaining agent for the company's production and maintenance employees. Of the 30 employees 18 were in the production and maintenance unit which the Board found to be appropriate for collective bargaining. No answer was given by the employer, Wilder, and recognitional picketing began. The request was renewed when the two unsigned cards were signed, but Wilder denied recognition. Thereupon the union filed unfair labor practice charges against Wilder. A series of Board decisions and judicial decisions, not necessary to recapitalate here, consumed about seven years until the present decision by the Court of Appeals.4 The Board made the same ruling as respects Wilder as it did in Linden's case. See 198 N.L.R.B. No. 123 (1972). On petitions for review the Court of Appeals reversed. 159 U.S.App.D.C. 228, 487 F.2d 1099 (1973). We reverse the Court of Appeals.

In Gissel we held that an employer who engages in 'unfair' labor practices "likely to destroy the union's majority and seriously impede the election" may not insist that before it bargains the union get a secret ballot election. 395 U.S., at 600, 89 S.Ct., at 1933. There were no such unfair labor practices here, nor had the employer in either case agreed to a voluntary settlement of the dispute and then reneged. As noted, we reserved in Gissel the questions '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.' Id., at 601 n. 18, 89 S.Ct., at 1933.

We recognized in Gissel that while the election process had acknowledged superiority in ascertaining whether a union has majority support, cards may 'adequately reflect employee sentiment.' Id., at 603, 89 S.Ct., at 1933.

Generalizations are difficult; and it is urged by the unions that only the precise facts should dispose of concrete cases. As we said, however, in Gissel, the Board had largely abandoned its earlier test that the employer's refusal to bargain was warranted, if he had a goodfaith doubt that the union represented a majority. A different approach was indicated. We said:

'(A)n 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. (1062), 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 (1965). As noted above, the Board has emphasized that not 'any employer conduct found violative of Section 8(a)(1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding,' Aaron Brothers, supra, at 1079.' 295 U.S., at 609 610, 89 S.Ct., at 1937—1938.

In the present cases the Board found that the employers 'should not be found guilty of a violation of Section 8(a)(5) solely upon the basis of (their) refusal to accept evidence of majority status other than the results of a Board election.' 190 N.L.R.B., at 721; see 198 N.L.R.B., at 998. The question whether the employers had good reasons or poor reasons was not deemed relevant to the inquiry. The Court of Appeals concluded that if the employer had doubts as to a union's majority status, it could and should test out its doubts by petitioning for an election. It said:

'While we have indicated that cards alone, or recognitional strikes and ambiguous utterances of the employer, do not necessarily provide such 'convincing evidence of majority support' so as to require a bargaining order, they certainly create a sufficient probability of majority support as to require an employer asserting a doubt of majority status to resolve the possibility through a petition for an election, if he is to avoid both any duty to bargain and any inquiry into the actuality of his doubt.' 159 U.S.App.D.C., at 240, 487 F.2d, at 1111.

To take the Board's position is not to say that authorization cards are wholly unreliable as an indication of employee support of the union. An employer concededly may have valid objections to recognizing a union on that basis. His objection to cards may, of course, mask his opposition to unions. On the other hand he may have rational, good-faith grounds for distrusting authorization cards in a given situation. He may be convinced that the fact that a majority of the employees strike and picket does not necessarily establish that they desire the particular union as their representative. Fear may indeed prevent some from crossing a picket line; or sympathy for strikers, not the desire to have the particular union in the saddle, may influence others. These factors make difficult an examination of the employer's motive to ascertain whether it was in good faith. To enter that domain is to reject the approval by Gissel of the retreat whih the Board took from its 'good faith' inquiries.

The union which is faced with an unwilling employer has two alternative remedies under the Board's decision in the instant cases. It can file for an election; or it can press unfair labor practice charges against the employer under Gissel. The later alternative promises to consume much time. In Linden the time between filing the charge and the Board's ruling was about 4 1/2 years; in Wilder, about 6 1/2 years. The Board's experience indicates that the median time in a contested case is 388 days. Gissel, 395 U.S., at 611 n. 30, 89 S.Ct., at 1938. On the other hand the median time between the filing of the petition for an election and the decision of the Re- gional Director is about 4k days.5 In terms of getting on with the problems of inaugurating regimes of industrial peace, the policy of encouraging secret elections under the Act is favored. The question remains—should the burden be on the union to ask for an election or should it be the responsibility of the employer?

The Court of Appeals concluded that since Congress in 1947 authorized employers to file their own representation petitions by enacting § 9(c)(1)(B), 6 the burden was on them. But the history of that provision indicates it was aimed at eliminating the discrimination against employers which had previously existed under the Board's prior...

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