Arthur F. Derse, Sr.

National Labor Relations Board - Board Decisions

Aug 20, 1972

198 N.L.R.B. 998 (N.L.R.B. 1972)

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.