U.S. Supreme Court NLRB v. GISSEL PACKING CO., 395 U.S. 575 (1969) 395 U.S. 575

NATIONAL LABOR RELATIONS BOARD v. GISSEL PACKING CO., INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 573. Argued March 26, 1969. Decided June 16, 1969.*

[Footnote *] Together with No. 691, Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Gissel Packing Co., Inc., also on certiorari to the same court, argued March 26, 1969, and No. 585, Sinclair Co. v. National Labor Relations Board, on certiorari to the United States Court of Appeals for the First Circuit, argued March 26-27, 1969.

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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. Held:

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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 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).[Footnote 1] In Heck's an election

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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.[Footnote 2]

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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.[Footnote 3]

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valid authorization cards[Footnote 4] 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

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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.[Footnote 5]

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the election, the president made another personal appeal to his employees to reject the Union. He repeated that the Company's financial condition was precarious; that a possible strike would jeopardize the continued operation of the plant; and that age and lack of education would make re-employment difficult. The Union lost the election 7-6, and then filed both objections to the election and unfair labor practice charges which were consolidated for hearing before the trial examiner.

The Board agreed with the trial examiner that the president's communications with his employees, when considered as a whole, "reasonably tended to convey to the employees 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." Thus, the Board found that under the "totality of the circumstances" petitioner's activities constituted a violation of 8 (a) (1) of the Act. The Board further agreed with the trial examiner that petitioner's activities, because they "also interfered with the exercise of a free and untrammeled choice in the election," and "tended to foreclose the possibility" of holding a fair election, required that the election be set aside. The Board also found that the Union had a valid card majority (the unambiguous cards, see n. 4, supra, went unchallenged) when it demanded recognition initially and that the Company declined recognition, not because of a good faith doubt as to the majority status, but, as the 8 (a) (1) violations indicated, in order to gain time to dissipate that status - in violation of 8 (a) (5). Consequently, the Board set the election aside, entered a cease-and-desist order, and ordered the Company to bargain on request.

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its order in full. 397 F.2d 157. The court rejected the Company's proposition that the inherent unreliability of authorization cards entitled an employer automatically to insist on an election, noting that the representative status of a union may be shown by means other than an election; the court thus reaffirmed its stance among those circuits disavowing the Fourth Circuit's approach to authorization cards.[Footnote 6] Because of the conflict among the circuits on the card issues and because of the alleged conflict between First Amendment freedoms and the restrictions placed on employer speech by 8 (a) (1) in Sinclair, No. 585, we granted certiorari to consider both questions. 393 U.S. 997 (1968). For reasons given below, we reverse the decisions of the Court of Appeals for the Fourth Circuit and affirm the ruling of the Court of Appeals for the First Circuit. II. In urging us to reverse the Fourth Circuit and to affirm the First Circuit, the National Labor Relations

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majority status, such as cards, was affected by the 1947 Taft-Hartley amendments. The most commonly traveled[Footnote 7] route for a union to obtain recognition as the exclusive bargaining representative of an unorganized group of employees is through the Board's election and certification procedures under 9 (c) of the Act (29 U.S.C. 159 (c)); it is also, from the Board's point of view, the preferred route.[Footnote 8] A union is not limited to a Board election, however, for, in addition to 9, the present Act provides in 8 (a) (5) (29 U.S.C. 158 (a) (5)), as did the Wagner Act in 8 (5), that "[i]t shall be an unfair labor practice for an employer . . . to refuse to bargain collectively with the representatives 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 presented "convincing evidence of majority support."[Footnote 9] Almost from the inception of the Act,

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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,[Footnote 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.[Footnote 11]

We have consistently accepted this interpretation of the Wagner Act and the present Act, particularly as to the use of authorization cards. See, e. g., NLRB v. Bradford Dyeing Assn., 310 U.S. 318, 339-340 (1940); Franks Bros. Co. v. NLRB, (1944); United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62 (1956). Thus, in United Mine Workers, 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 employees, that "[i]n the absence of any bona fide dispute[Footnote 12] as to the existence of the required majority of eligible employees, the employer's denial of recognition of the union would have violated

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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 here and the Fourth Circuit below. An early version of the bill in the House would have amended 8 (5) of the Wagner Act to permit the Board to find a refusal-to-bargain violation only where an employer had failed to bargain with a union "currently recognized by the employer or certified as such [through an election] under section 9." Section 8 (a) (5) of H. R. 3020, 80th Cong., 1st Sess. (1947). The proposed change, which would have eliminated the use of cards, was rejected in Conference (H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41 (1947)), however, and we cannot make a similar change in the Act simply because, as the employers assert, Congress did not expressly approve the use of cards in rejecting the House amendment. Nor can we accept the Fourth Circuit's conclusion that the change was wrought when Congress amended 9 (c) to make election the sole basis for certification by eliminating the phrase "any other suitable method to ascertain such representatives,"[Footnote 13] under which the Board had occasionally used cards as a certification basis. A certified union has the benefit of numerous special privileges

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which are not accorded unions recognized voluntarily or under a bargaining order[Footnote 14] and which, Congress could determine, should not be dispensed unless a union has survived the crucible of a secret ballot election.

The employers rely finally on the addition to 9 (c) of subparagraph (B), which allows an employer to petition for an election whenever "one or more individuals or labor organizations have presented to him a claim[Footnote 15] to be recognized as the representative defined in section 9 (a)." That provision was not added, as the employers assert, to give them an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union's majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.[Footnote 16] We

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agree with the Board's assertion here that there is no suggestion that Congress intended 9 (c) (1) (B) to relieve any employer of his 8 (a) (5) bargaining obligation where, without good faith, he engaged in unfair labor practices disruptive of the Board's election machinery. And we agree that the policies reflected in 9 (c) (1) (B) fully support the Board's present administration of the Act (see supra, at 591-592); for an employer can insist on a secret ballot election, unless, in the words of the Board, he engages "in contemporaneous unfair labor practices likely to destroy the union's majority and seriously impede the election." Brief for Petitioner, the Board, in No. 573, p. 36.

In short, we hold that the 1947 amendments did not restrict an employer's duty to bargain under 8 (a) (5) solely to those unions whose representative status is certified after a Board election.[Footnote 17]

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B. We next consider the question whether authorization 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. In this context, the employers urge us to take the step the 1947 amendments and their legislative history indicate Congress did not take, namely, to rule out completely the use of cards in the bargaining arena. Even if we do not unhesitatingly accept the Fourth Circuit's view in the matter, the employers argue, at the very least we should overrule the Cumberland Shoe doctrine (see supra, at 584) and establish stricter controls over the solicitation of the cards by union representatives.[Footnote 18]

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The objections to the use of cards voiced by the employers and the Fourth Circuit boil down to two contentions:[Footnote 19] (1) that, as contrasted with the election procedure,[Footnote 20] the cards cannot accurately reflect an employee's wishes, either because an employer has not had a chance to present his views and thus a chance to insure that the employee choice was an informed one, or because the choice was the result of group pressures and not individual decision made in the privacy of a voting booth; and (2) that quite apart from the election comparison, the cards are too often obtained through misrepresentation and coercion which compound the cards' inherent inferiority to the election process. 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.[Footnote 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. As for misrepresentation, in any specific case of

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a card drive, succumb to group pressures or sign simply to get the union "off his back" and then be unable to change his mind as he would be free to do once inside a voting booth. But the same pressures are likely to be equally present in an election, for election cases arise most often with small bargaining units[Footnote 22] where virtually every voter's sentiments can be carefully and individually canvassed. 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 unambiguously on their face. We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses, primarily arising out of misrepresentations by union organizers as to whether the effect of signing a card was to designate the union to represent the employee for collective bargaining purposes or merely to authorize it to seek an election to determine that issue. And we would be equally blind if we did not recognize that various courts of appeals and commentators[Footnote 23] have differed significantly as to the effectiveness of the Board's Cumberland Shoe doctrine (see supra, at 584) to cure such abuses.

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We need make no decision as to the conflicting approaches used with regard to dual-purpose cards, for in each of the five organization campaigns in the four cases before us the cards used were single-purpose cards, stating clearly and unambiguously on their face that the signer designated the union as his representative. And even the view forcefully voiced by the Fourth Circuit below that unambiguous cards as well present too many opportunities for misrepresentation comes before us somewhat weakened in view of the fact that there were no allegations of irregularities in four of those five campaigns (Gissel, the two Heck's campaigns,[Footnote 24] and Sinclair). Only in General Steel did the employer challenge the cards on the basis of misrepresentations. There, the trial examiner, after hearing testimony from over 100 employees and applying the traditional Board approach (see n. 5, supra), concluded that "all of these employees not only intended, but were fully aware, that they were thereby designating the Union as their representative." Thus, the sole question before us, raised in only one of the four cases here, is whether the Cumberland Shoe doctrine is an adequate rule under the Act for assuring employee free choice.

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a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elections have been, after all, and will continue to be, held in the vast majority of cases; the union will still have to have the signatures of 30%[Footnote 25] of the employees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. In addition to approving the use of cards, of course, Congress has expressly authorized reliance on employee signatures alone in other areas of labor relations, even where criminal sanctions hang in the balance,[Footnote 26] and we should not act hastily in disregarding congressional judgments that employees can be counted on to take responsibility for their acts.

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a too easy mechanical application of the Cumberland rule.[Footnote 27] We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of 8 (a) (1).[Footnote 28] 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

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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 employers argue as a final reason for rejecting the use of the cards that they are faced with a Hobson's choice[Footnote 29] under current Board rules and will almost inevitably come out the loser. They contend that if they do not make an immediate, personal investigation into possible solicitation irregularities to determine whether in fact the union represents an uncoerced majority, they will have unlawfully refused to bargain for failure to have a good faith doubt of the union's majority; and if they do make such an investigation, their efforts at polling and interrogation will constitute an unfair labor practice in violation of 8 (a) (1) and they will again be ordered to bargain. As we have pointed out, however, an 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. No. 102, 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

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(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. C. Remaining before us is the propriety of a bargaining order as a remedy for a 8 (a) (5) refusal to bargain where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority and caused an election to be set aside. We have long held that the Board is not limited to a cease-and-desist order in such cases, but has the authority to issue a bargaining order without first requiring the union to show that it has been able to maintain its majority status. See NLRB v. Katz, 369 U.S. 736, 748, n. 16 (1962); NLRB v. P. Lorillard Co., (1942). And we have held that the Board has the same authority even where it is clear that the union, which once had possession of cards from a majority of the employees, represents only a minority when the bargaining order is entered. Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944). We see no reason now to withdraw this authority from the Board. If the Board could enter only a cease-and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him "to profit from [his] own wrongful refusal to bargain," Franks Bros., supra, at 704, while at the same time severely curtailing the employees' right freely to determine whether they desire a representative. The employer could continue to delay or disrupt the election processes and put off indefinitely his obligation

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to bargain;[Footnote 30] and any election held under these circumstances would not be likely to demonstrate the employees' true, undistorted desires.[Footnote 31]

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notices to employees during plant time and to give the union access to employees during working time at the plant, or it can seek a court injunctive order under 10 (j) (29 U.S.C. 160 (j)) as a last resort. In view of the Board's power, they conclude, the bargaining order is an unnecessarily harsh remedy that needlessly prejudices employees' 7 rights solely for the purpose of punishing or restraining an employer. Such an argument ignores that a bargaining order is designed as much to remedy past election damage[Footnote 32] as it is to deter future misconduct. If an employer has succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election, he may see no need to violate a cease-and-desist order by further unlawful activity. The damage will have been done, and perhaps the only fair way to effectuate employee rights is to re-establish the conditions as they existed before the employer's unlawful campaign.[Footnote 33]

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by a bargaining order, then such an order should issue (see n. 32, supra).

We emphasize that under the Board's remedial power there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order. There is, the Board says, no per se rule that the commission of any unfair practice will automatically result in a 8 (a) (5) violation and the issuance of an order to bargain. See Aaron Brothers, supra.

With these considerations in mind, we turn to an examination of the orders in these cases. In Sinclair, No. 585, the Board made a finding, left undisturbed by the First Circuit, that the employer's threats of reprisal were so coercive that, even in the absence of a 8 (a) (5) violation, a bargaining order would have been necessary to repair the unlawful effect of those threats.[Footnote 34] The Board therefore did not have to make the determination called for in the intermediate situation above that the risks that a fair rerun election might not be possible were too great to disregard the desires of the employees already expressed through the cards. The employer argues, however, that its communications to its employees were protected by the First Amendment and 8 (c) of the Act (29 U.S.C. 158 (c)), whatever the effect of those communications on the union's majority or the Board's ability to ensure a fair election; it is to that contention that we shall direct our final attention in the next section.

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election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk. Cf. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Within this framework, we must reject the Company's challenge to the decision below and the findings of the Board on which it was based. The standards used below for evaluating the impact of an employer's statements are not seriously questioned by petitioner and we see no need to tamper with them here. 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. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's 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. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). 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 coercion, and as such without the protection of the First Amendment. We therefore agree with the court below that "[c]onveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality

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of closing is capable of proof." 397 F.2d 157, 160. As stated elsewhere, an employer is free only to tell "what he reasonably believes will be the likely economic consequences of unionization that are outside his control," and not "threats of economic reprisal to be taken solely on his own volition." NLRB v. River Togs, Inc., 382 F.2d 198, 202 (C. A. 2d Cir. 1967).

Equally valid was the finding by the court and the Board that petitioner's statements and communications were not cast as a prediction of "demonstrable `economic consequences,'" 397 F.2d, at 160, but rather as a threat of retaliatory action. The Board found that petitioner's speeches, pamphlets, leaflets, and letters conveyed the following message: that the company was in a precarious financial condition; that the "strike-happy" union would in all likelihood have to obtain its potentially unreasonable demands by striking, the probable result of which would be a plant shutdown, as the past history of labor relations in the area indicated; and that the employees in such a case would have great difficulty finding employment elsewhere. In carrying out its duty to focus on the question: "[W]hat did the speaker intend and the listener understand?" (A. Cox, Law and the National Labor Policy 44 (1960)), the Board could reasonably conclude that the intended and understood import of that message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of the economic realities. In this connection, we need go no further than to point out (1) that petitioner had no support for its basic assumption that the union, which had not yet even presented any demands, would have to strike to be heard, and that it admitted at the hearing that it had no basis for attributing other plant closings in the area to unionism; and (2) that the Board has often found that employees, who are particularly sensitive to rumors

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of plant closings,[Footnote 35] take such hints as coercive threats rather than honest forecasts.[Footnote 36]

Petitioner argues that the line between so-called permitted predictions and proscribed threats is too vague to stand up under traditional First Amendment analysis and that the Board's discretion to curtail free speech rights is correspondingly too uncontrolled. It is true that a reviewing court must recognize the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship, see NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 479 (1941). But an employer, who has control over that relationship and therefore knows it best, cannot be heard to complain that he is without an adequate guide for his behavior. He can easily make his views known without engaging in "`brinkmanship'" when it becomes all too easy to "overstep and tumble [over] the brink," Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (C. A. 7th Cir. 1967). At the least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees.

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of the 47 employees in the appropriate unit. Rejecting the bargaining demand, the Company began to interrogate employees as to their Union activities; to promise them better benefits than the Union could offer; and to warn them that if the "union got in, [the vice president] would just take his money and let the union run the place," that the Union was not going to get in, and that it would have to "fight" the Company first. Further, when the Company learned of an impending Union meeting, it arranged, so the Board later found, to have an agent present to report the identity of the Union's adherents. On the first day following the meeting, the vice president told the two employees referred to above that he knew they had gone to the meeting and that their work hours were henceforth reduced to half a day. Three hours later, the two employees were discharged.

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believing that labor organizations claiming to represent their employees are really not the choice of the majority." S. Rep. No. 105, 80th Cong., 1st Sess., 10 (1947). Senator Taft stated during the debates:

"Today an employer is faced with this situation. A man comes into his office and says, `I represent your employees. Sign this agreement, or we strike tomorrow.'. . . The employer has no way in which to determine whether this man really does represent his employees or does not. The bill gives him the right to go to the Board . . . and say, `I want an election. I want to know who is the bargaining agent for my employees.'" 93 Cong. Rec. 3838 (1947).

Footnote 17 As aptly stated in Lesnick, Establishment of Bargaining Rights Without an NLRB Election, 65 Mich. L. Rev. 851, 861-862 (1967):

"Cards have been used under the act for thirty years; [this] Court has repeatedly held that certification is not the only route to representative status; and the 1947 attempt in the House-passed Hartley Bill to amend section 8 (a) (5) . . . was rejected by the conference committee that produced the Taft-Hartley Act. No amount of drum-beating should be permitted to overcome, without legislation, this history."

Footnote 18 In dealing with the reliability of cards, we should re-emphasize 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. We thus need not decide 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. 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.

Footnote 19 The Board's reliance on authorization cards has provoked considerable scholarly controversy. Compare criticism of Board policy, particularly its treatment of ambiguous, dual-purpose cards, in Browne, supra, n. 7, and Comment, Union Authorization Cards, 75 Yale L. J. 805 (1966), with defense of Board practice in Lesnick, supra, n. 17; Welles, The Obligation to Bargain on the Basis of a Card Majority, 3 Ga. L. Rev. 349 (1969); and Comment, Union Authorization Cards: A Reliable Basis for an NLRB Order To Bargain?, 47 Texas L. Rev. 87 (1968).

Footnote 20 For a comparison of the card procedure and the election process, see discussion in NLRB v. Logan Packing Co., 386 F.2d 562, 564-566 (C. A. 4th Cir. 1967).

Footnote 21 See nn. 7-8, supra.

Footnote 22 See Comment, Union Authorization Cards: A Reliable Basis for an NLRB Order To Bargain?, supra, at 94 and n. 32.

Footnote 23 See n. 19, supra.

Footnote 24 In the Charleston campaign in Heck's, the employees handled the card drive themselves from beginning to end, contacting the union, obtaining the blank authorization cards, and soliciting their fellow employees on that basis; no union agents were involved in the card signing.

Footnote 25 See 1969 CCH Guidebook to Labor Relations  402.4.

Footnote 26 Criminal sanctions are imposed by 302 (29 U.S.C. 186) which makes it unlawful for an employer to pay to and for a union representative to receive "any money or other thing of value." Section 302 (c) (4) (29 U.S.C. 186 (c) (4)) exempts payments by employers to union representatives of union dues, however, where an employee has executed a "written assignment" of the dues, i. e., a check-off authorization. Signatures are also relied on in 9 (c) (1) (A) (29 U.S.C. 159 (c) (1) (A)), which provides for Board processing of representation and decertification petitions when each is supported by a "substantial number of employees" (the basis for the 30% signature requirement, see n. 25, supra), and in 9 (e) which specifically provides for 30% of the signatures in the bargaining unit to empower the Board to hold a union shop de-authorization election.

Footnote 27 In explaining and reaffirming the Cumberland Shoe doctrine in the context of unambiguous cards, the Board stated:

"Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation. A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they will use such cards only for an election and subsequently seek to use them for a different purpose . . . ."

The Board stated further in a footnote:

"The foregoing does not of course imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the `sole' or `only' purpose of the cards is to obtain an election. The Board has never suggested such a mechanistic application of the foregoing principles, as some have contended. The Board looks to substance rather than to form. It is not the use or nonuse of certain key or `magic' words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election." 172 N. L. R. B. No. 57, 68 L. R. R. M. 1338, 1341-1342, and n. 7.

Footnote 28 See Sheinkman, supra, n. 7, at 332-333.

Footnote 29 See Judge Brown's "Scylla and Charybdis" analogy in NLRB v. Dan River Mills, 274 F.2d 381, 388 (C. A. 5th Cir. 1960).

Footnote 30 The Board indicates here that its records show that in the period between January and June 1968, the median time between the filing of an unfair labor practice charge and a Board decision in a contested case was 388 days. 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. See n. 31, infra.

Footnote 31 A study of 20,153 elections held between 1960 and 1962 shows that in the 267 cases where rerun elections were held over 30% were won by the party who caused the election to be set aside. See Pollitt, NLRB Re-Run Elections: A Study, 41 N.C. L. Rev. 209, 212 (1963). The study shows further that certain unfair labor practices are more effective to destroy election conditions for a longer period of time than others. For instance, in cases involving threats to close or transfer plant operations, the union won the rerun only 29% of the time, while threats to eliminate benefits or refuse to deal with the union if elected seemed less irremediable with the union winning the rerun 75% of the time. Id., at 215-216. Finally, time appears to be a factor. 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 sometime in between those periods. Thus, the study showed that if the rerun is held within 30 days of the election or over nine months after, the chances that a different result will occur are only one in five; when the rerun is held within 30-60 days after the election, the chances for a changed result are two in five. Id., at 221.

Footnote 32 The employers argue that the Fourth Circuit correctly observed that, "in the great majority of cases, a cease and desist order with the posting of appropriate notices will eliminate any undue influences upon employees voting in the security of anonymity." NLRB v. Logan Packing Co., 386 F.2d, at 570. It is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of 10 (c) of the Act (29 U.S.C. 160 (c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts. See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). "[I]t is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency." Consolo v. FMC, 383 U.S. 607, 621 (1966).

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