Truck Drivers Union Local No. 413 Etc. et al., Petitioner, v. National Labor Relations Board.textile Workers Union, Petitioner, v. National Labor Relations Board, Respondents, 487 F.2d 1099 (D.C. Cir. 1973)

These consolidated appeals raise the question of the scope of an employer's duty to bargain, under Section 8(a) (5) of the National Labor Relations Act, on the basis of authorization cards obtained by the union, in light of NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969). The cases require review of two orders of the National Labor Relations Board. The factual settings are closely related. We shall set out the background in each case before considering the pertinent legal principles.¹ 

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

A. Wilder Manufacturing Co.

On the morning of October 12, 1965, representatives of the Textile Workers presented Walter Derse, secretary and general manager of Wilder, with 11 signed and two unsigned union membership cards²  and requested recognition as bargaining agent of the Company's production and maintenance employees. Of the 30 employees then on the Company's payroll, 18 were in the production and maintenance unit, which the Board found to be appropriate for purposes of collective bargaining.³  Failing to receive an immediate answer to the request, the eleven employees who had signed the authorization cards left the plant and established a picket line. They were joined the next day by the two employees whose blank cards were among the thirteen presented to Derse.⁴ 

During the evening of the next day, October 13, the Company's officers met. Walter Derse reported that there were ten or eleven employees on the picket line and as "we are about 30 (not including the officers of the Company) it appears that they do not represent a majority." The officers decided not to recognize the union.⁵  The picketing continued for at least five months thereafter. Subsequent demands for recognition were made without response from the Company.

On May 9, 1966, the Board's General Counsel filed a complaint charging Wilder with violations of Sec. 8(a) (1) and (5) of the Act.⁶  The Trial Examiner, on September 22, 1966, upheld the complaint on the Sec. 8(a) (5) and dismissed the 8(a) (1) charge.⁷  The Board, however, concluded that the 8(a) (5) charge should be dismissed since "there is no showing whatsoever that Respondent had rejected the collective-bargaining principle or engaged in any interference, restraint, or coercion of employees to undermine the Union. Nor does the record show that Respondent has engaged in any other conduct which would prevent the holding of a fair election."⁸  On petition for review to this court, we held per curiam, 137 U.S.App.D.C. 67, 420 F.2d 635 (Nov. 14, 1969), that in light of the intervening Gissel decision, supra, and possible conflicts between the "current practice" of the Board, as represented to the Supreme Court, and the decision reached, the case should be remanded for "further consideration by the Board in the first instance in light of Gissel, but without limitation."⁹ 

On August 27, 1970, 185 NLRB 175, the Board issued a Supplemental Decision and Order, after a review of the entire record, and now found that Wilder's course of conduct did constitute a violation of Sec. 8(a) (5). In reaching this result the Board declined to rest on a finding that the case presented an employer who refused to bargain and "stands upon his doubt as to the appropriateness of the unit," stating that "the Respondents' response-or lack of response-to the Union demand did not assert this as the ground of the refusal . . . ."¹⁰  Instead the Board focused on these findings: (1) There was evidence, in addition to mere cards, sufficient to communicate to the employer convincing knowledge of majority status (the independent knowledge test). (2) The evidence was insufficient to show that the employer's refusal to grant recognition was based upon genuine willingness to resolve any doubts concerning majority status through the Board's election process. On finding both these conditions met, the Board concluded that the refusal to bargain constituted a violation of 8(a) (5).¹¹  The Board then filed an application for enforcement of its supplemental order in this court on September 21, 1970. While the petition was pending, the Company moved to dismiss this petition on jurisdictional grounds, and subsequently the Board moved to have the case remanded to it for reconsideration in light of its decision in Linden Lumber, 190 NLRB No. 116, 77 LRRM 1305 which issued on June 7, 1971 and is the companion case in this litigation. Our court upheld the jurisdictional objections of the company and transferred the case to the Second Circuit,¹²  which on February 1, 1972, remanded to the Board for the requested reconsideration.¹³ 

The Board on August 21, 1972, 198 NLRB No. 123, then issued its Second Supplemental Decision and Order in Wilder which reversed the First Supplemental Decision and Order. The Board, one member dissenting, rejected the "independent knowledge" test and held that absent voluntary measures by the employer, through an attempt¹⁴  or agreement¹⁵  to determine majority status by any means other than a Board election, and in the absence of any independent unfair labor practices, the predicate could not be established for an 8(a) (5) violation.¹⁶  After over 7 years, and three Board decisions representing a series of reversals in position, the Board now seeks to limit sharply the scope of any duty to bargain on the basis of authorization cards.

The procedural history of Linden Lumber is shorter-there is only one Board decision-but pointed, for it is on the basis of the Board's decision in this case, issued June 7, 1971, that the decision in Wilder rests. The time elapsed since the underlying events, however, is more than six years.

On December 28, 1966, employee Martin contacted Local 413 representative Dow Norman about organizing the employees of Linden Lumber (the Company). Next day, Norman held a meeting during which 12 employees, including 2 alleged supervisors, Shafer and Marsh, signed authorization cards. In the proceeding before the Trial Examiner, "the parties stipulated that at all times material there were 10 employees" within the appropriate bargaining unit.¹⁷  On January 5, 1967, Local 413 ("the Union") sent a letter to the Company requesting recognition. On February 3, at a prehearing conference on the Local's representation petition, the Company declined the Union's request to enter into a consent election agreement. Instead the Company raised threshold questions as to the Union's showing of interest, on the basis that the union had been organized by supervisors (Marsh and Shafer).¹⁸  Based upon the Company's alleged fear of recognizing a supervisor-dominated union, the Company stated that unless it could settle the 8(a) (2) violation in the context of the petition for an election-a request refused by the hearing officer-it would refuse to recognize the union, even after a Board-conducted election.¹⁹  Immediately after this statement by the representative of the Company (Mr. Rector), the Union's representatives withdrew the representation petition.²⁰  After the withdrawal was approved, Rector told Mr. Smedstad, the Union attorney, that if the Union submitted a new petition supported by a "fresh" 30 percent showing of interest, the company would go to a consent election. By March 4, the Union had obtained 9 signatures (leaving out the two alleged supervisors, Shafer and Marsh). The Company still refused to recognize the Union "because its membership included supervisors who influenced employees," again raising the spectre of the 8(a) (2) vioation.

On February 15, the employees struck in support of the Union demand for recognition.²¹  The Union filed its charge of refusal to bargain on February 23, and the strike ended on June 1. At the end of the strike the Company refused to reinstate Marsh and another striker, Alexander. Marsh was refused reinstatement on the ground that he had quit. Alexander was refused on the strength of the Company's belief that he had provoked and participated in a violent incident related to the picketing at the plant.

On these facts, the Trial Examiner concluded that the Company violated Section 8(a) (5) by refusing to recognize the Union, that the strike was an unfair labor practice strike, and that Marsh and Alexander were unlawfully denied reinstatement in violation of Section 8(a) (3).

The Board concluded that Marsh and Alexander, as economic strikers, were wrongfully denied reinstatement in violation of Section 8(a) (3). It further determined, two members dissenting, to reject the Examiner's conclusion, and held that the Company did not violate Sec. 8(a) (5) and (1) of the Act by refusing to bargain with the Union.

The Board majority began its analysis by noting that the Sec. 8(a) (3) violation did not amount to a serious independent unfair labor practice, and that it could not make a finding that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order . . .." (Gissel, supra, 395 U.S. at 614-615, 89 S. Ct. at 1940). This conclusion is not challenged in this petition for review.

Noting that Gissel left open "whether, absent election interference, an employer who insists on an election must initiate the election by his own petition," the Board reviewed the "current practice" on this question alluded to in Gissel.²²  The Board then questioned whether the Supreme Court summary "is entirely accurate," particulary whether the Board had ever used the "independent knowledge" test as a basis for a bargaining order. It stated that Snow & Sons, 134 NLRB 709, enf'd, 308 F.2d 687 (9th Cir. 1962) did not rest only on the fact of employer knowledge, but "also upon the fact that the employer breached his agreement to permit majority status to be determined by means other than a Board election." The Board also distinguished its decision in Wilder,²³  observing " [t]here we found an 8(a) (5) violation not only because of admitted employer knowledge of majority status, but also because of the absence of any evidence that the employer was willing to resolve any lingering doubts of majority status through our election procedures." The Board then argued that the "independent knowledge" test was unworkable, and also questioned how it could determine the "willingness" to have majority status determined by an election. The Board stated, "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 re-enter the 'good faith' thicket of Joy Silk . . .."²⁴  The Board indicated that it intended to restrict the scope of Sec. 8(a) (5) to those situations in which the company and union had "voluntarily" agreed "upon [a] mutually acceptable and legally permissible means, other than a Board-conducted election, for resolving the issue of union majority status."

The petitioner unions contend that the language and history of Secs. 8(a) (5) and 9(a), and subsequent court decisions, establish that an employer has a duty to bargain whenever the union representative presents "convincing evidence of majority support," that this requires an evaluation of whether "a reasonable man" would consider any particular evidence convincing, and that such convincing evidence was supplied in the instant cases by the recognitional strikes, joined by a majority of their employees. They submit that retention of an independent knowledge test is not inherently unworkable, at least when knowledge is determined on the basis of a recognitional strike.

The Board, on the other hand, has adopted a "voluntarist" view of the duty to bargain. Absent unfair labor practices or an agreement to determine majority status through means other than an election, such as a poll, the employer has no duty to recognize the union. This means, in effect, that as a matter of law, the decision to recognize a union on the basis of cards is entirely within the control of the employer; neither "bad faith" or "independent knowledge" can lay the predicate for recognition because those concepts are deemed unworkable.

While there is certainly wide latitude for Board policy in interpreting the requirements of statutory obligations, "The policy of Congress . . . cannot be defeated by the Board's policy," Machinists Local 1424, 362 U.S. 411, 429, 80 S. Ct. 822, 833, 4 L. Ed. 2d 832 (1960). We therefore begin with a brief examination of the legislative materials.

Section 9(a) provides that: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees . . . . ." Section 8(a) (5) then provides that it shall be an unfair labor practice for an employer "(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)." Gissel, aside from its specific holdings,²⁵  is important in recognizing that:²⁶ 

Since Sec. 9(a) . . . 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."

The view that an election was not the only predicate for a union claim to majority status is given added emphasis by the Conference Committee rejection of that proposal when the basic Act was under revision in 1947. The House version of Sec. 8(a) (5) would have made a refusal to bargain an unfair labor practice only if the union were already certified under Sec. 9(a). This was rejected in favor of the broader Senate version.²⁷  The language was not changed as the House proposed, even though, as Gissel points out, it had been early recognized, by interpretation of the outstanding law, that the employer had a duty to bargain whenever the union representative presented convincing evidence of majority support.

What Congress did do in 1947 was to add a provision, in Sec. 9(c) (1) (B), to give employers the right to file their own representation petitions. It provides:

Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board- . . . .

(B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in section 9(a);

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice.

These statutory provisions plainly contemplate employer duty of recognition even in the absence of election, and give a safeguard to the employer who has doubts about majority status by assuring him the right to file his own petition for an election. There is no clear cut answer, however, either in the text of the statute or the legislative history, to the question of when and in what circumstances an employer must take evidence of majority support as "convincing." That is the focal issue of these cases.

In approaching the question of a possible standard for card recognition, we must begin by recognizing that "cards are not the functional equivalent of a certification election,"²⁸  and elections have a "preferred status" as a means of determining representation.²⁹  Three reasons are primary in the Board's conclusion that cards do not have the same standing as certification election. (1) There is greater opportunity for coercion of employees by union organizers, as compared with a secret ballot.³⁰  (2) Arguably, employees may misunderstand the import of signing an authorization card, because of misreading, failure to read, or union misrepresentation.³¹  (3) When cards are used, the employer has no opportunity to speak to his employees concerning their determination to have union representation, and an employer's right to communicate to employees concerning representation is arguably guaranteed under Sec. 8(c) of the Taft-Hartley Act.³²  Out of these considerations arises an inhibition on the part of the Board to expand the mandatory scope of a duty to bargain on the basis of cards.

Prior to the present litigation, the Board implemented the policy favoring elections over cards by adopting a limited scope for a duty to bargain in the absence of election. The rule adopted by the Board has been described as the "independent knowledge" standard.³³ 

This rule developed from the case of Snow & Sons³⁴  where the employer, upon being presented with an apparent card majority, at first refused to recognize the union and insisted that it petition for an election. Subsequently, the employer agreed to submit the cards to an impartial third party, but after authentication, the employer refused recognition claiming he never considered the agreement binding. The Board held that, given the authentication, the refusal to bargain was not based on a reasonable doubt as to the union's majority. During the 1960's the Snow & Sons doctrine was applied where an employer had reneged on an agreement to have the cards authenticated by an impartial party and to be bound by such authentication.³⁵ 

We interject to note that at this time-prior to Gissel in 1969-the applicable doctrine defined an employer's right of non-recognition as applicable only in case of a "good faith doubt as to the unions' majority status." Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950); Retail Clerks Union, Local No. 1179 v. NLRB, 376 F.2d 186 (9th Cir. 1967). In Gissel, the Board announced "at oral argument that it had virtually abandoned the Joy Silk doctrine altogether."³⁶  The Court further stated the Board's position at that time (395 U.S. at 594, 89 S. Ct. at 1930):

Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple "no comment" to the union. The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, and (2) that an employer could not refuse recognition because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union's strength.

Subsequent to Gissel, two Board decisions expanded on the Snow rationale. In Pacific Abrasive,³⁷  presentation of the card majority was accompanied by the employer's verification of the signature on the cards, an acknowledgement of authenticity, conversations with employees who indicated union support, and a strike in support of recognition by a majority of the unit. The Board was thus relying on conduct of the employer or employees, in drawing the inference that the employer must have known that the union had a majority.³⁸  Pacific Abrasive was followed by the second decision in the instant case, Wilder, where the Board established "independent knowledge" on the basis of evidence in addition to mere cards, sufficient to communicate to the employer "convincing" knowledge of majority status.³⁹  In the Board opinions now before us for review, the Board has retreated to the facts of Snow & Sons, the fact of an agreement to be bound by an independent authentication, as offering the only valid basis for an employer duty to bargain on the basis of "independent knowledge." Thus, " [u]nless, as in Snow & Sons, the employer has agreed to let its 'knowledge' of majority status be established through a means other than a Board election" (JA at 53-54) the facts will not justify an 8(a) (5) bargaining order.

It is important to understand, however, that it was represented to the Supreme Court in Gissel that the facts of Snow & Son laid the predicate for a finding of independent knowledge, not that a finding of "independent knowledge" was restricted to such facts.⁴⁰  The Board in its decision questions whether the Supreme Court accurately summarized its position.⁴¹  This is not just a matter of historical detail; inherent in the two positions is a difference which goes to the heart of the Congressional policy established by the statute.

The abandonment of Wilder II means that even if an employer acts in total disregard of "convincing evidence of majority status," he has no duty to recognize a union. That duty can only be triggered by his own permission, in allowing an impartial party to assess union strength.

There were a number of indices in both Wilder and Linden Lumber, which could have laid the predicate for "convincing evidence of majority status"; in Wilder, there was a strike in support of the cards, and an admission of Respondent that the Union had "10 or 11" of his employees; in Linden Lumber, there was a recognitional strike, and a renege on the employer's agreement to abide by an election outcome after a "fresh" showing of a thirty percent support. The Union argues that these facts necessarily lay the foundation for a bargaining order.

Recognitional Strikes Not Necessarily Predicate for 8(a) (5)

Bargaining Order

As to recognitional strikes in support of a card majority, we do not think prior cases establish this a conclusive showing of "convincing evidence." Petitioners place primary reliance on United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 76 S. Ct. 559, 100 L. Ed. 941 (1956), but that case merely established that a state court could not enjoin a recognitional strike where there was a card majority, solely because the union had failed to take necessary steps toward securing a Board election. The issue as to whether a recognitional strike laid the foundation for an 8(a) (5) charge was not before the court.⁴²  While there are circuit court decisions indicating that a strike supported by a unit majority undermines a good faith claim of doubt as to majority status, these cases are distinguishable.⁴³  There is no case holding that the statute requires the Board to use recognitional strikes as conclusive evidence, and it is that position for which the union contends.

Even assuming some test such as "independent knowledge" is required by the statute, that does not mean the Board must attach conclusive weight to recognitional strikes. As the Court described the role of the Labor Board in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 800, 65 S. Ct. 982, 986, 89 L. Ed. 1372 (1945), "One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration." It is certainly permissible for the Board to avoid encouraging recognitional striking and picketing by refusing to regard them as an independent and conclusive method of demonstrating a majority, particularly since workers might well honor a picket line without necessarily supporting the union.⁴⁴ 

Other Evidence of Majority Support

Aside from the fact that in Linden Lumber the employer refused to acknowledge the "fresh" showing of majority support-which we deal with below in a different context-the only other indication of majority support was the admission of the employer in Wilder to other officers of the Company, that the Union "had 10 or 11 of his employees." While the Second Supplemental Decision of the Board did not comment directly on this evidentiary point, relied upon in its First Supplemental Decision, disregard of this evidence was apparently related to the Board's rejection of "the wisdom of attempting to divine, in retrospect the state of employer (a) knowledge, depicting this as re-entry into the "good faith thicket." We assume the "10 or 11" statement was made by the employer, for the Board seemingly does not contest this prior Board finding. While it may be that there would be difficulties in determining the state of past employer knowledge, in this case and in others, we cannot accept the view that this requires a union petition for an election as the only means for obtaining recognition. We turn, at this juncture, to another predicate for issuing a bargaining order, related to "independent knowledge" and its "good faith" predecessor: the failure of the company to evidence its own "good faith doubt" by itself petitioning for an election.

B. Failure of Employer to Petition for Election as Pertinent

to "Good Faith"

In Gissel, the Court reviewed the legislative history of Sec. 9(c) (B) of the 1947 Taft-Hartley Amendments. The Supreme Court stated, 395 U.S. at 599, 89 S. Ct. at 1932:

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 omitted].

In footnote 16, the Supreme Court noted that the Senate Report clearly indicates that the right to petition for an election was a way in which the employer could remove his doubt.⁴⁵  Neither Wilder nor Linden indicated that it wishes to have a doubt resolved by petitioning for an election. In the First Supplemental Decision in Wilder, two reasons were given for finding a violation of the duty to bargain. Besides holding that the employer had "independent knowledge" of the union's majority statute, the Board found that there was "insufficient evidence that the employer's refusal to grant recognition was based upon genuine willingness to resolve any doubts concerning majority status through the Board's election process," noting that "the Employer did not itself file an election petition or urge or even suggest to the employees or the Union the use of such procedures."

In Linden, of course the union did file a petition for an election simultaneous with its demand for recognition. The employer, however, after refusing to recognize on the basis of cards, indicated that he would not recognize the union even if it were victorious in an election. This led the Union to withdraw their petition and go straight to the 8(a) (5) proceeding, which was inevitable, in any event, at the end of the election process.

Of course, in Linden, the Board indicated that this fact would play no part in its decision since it was reassessing "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." The Board went on to state ". . . 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."

Whatever the merit of abandoning the "independent knowledge" doctrine because of the difficulty of reaching judgments required as to state of mind, the same cannot be said as to "willingness to have majority status determined by an election." One simple act, a petition by the employer for an election,⁴⁶  could evidence such "willingness." Indeed it was the premise of the Taft-Hartley Amendment to Sec. 9(c) (B) that employers could "test out their doubts as to a union's majority status" by petitioning for an election. In ignoring that opportunity, the Board ignores the very intent behind the statutory provision.

It is our view that the Board order cannot be enforced where both tests have been abandoned. It is conceivable that a restriction of "independent knowledge" to an agreement to abide by an authentication would be acceptable, if the employer was required to evidence his good faith doubt as to majority status, by petitioning for an election. The Board, on the other hand, is willing to resolve every assertion of doubt in the employer's favor, without permitting any "test" of those doubts. The union, of course, argues that an employer would violate Sec. 8(a) (5) by petitioning for an election without entertaining actual doubt. This is, however, an issue we need not reach.

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.⁴⁷ 

When an employer petitions for or consents to election, the election process is expedited.⁴⁸  If he declines to exercise this option, he must take the risk that his conduct as a whole, in the context of "convincing evidence of majority support," may be taken as a refusal to bargain.

As is only too often the case in litigation trenching on deep feelings, each of the parties focused on its extreme position-the unions, on their claim to an 8(a) (5) order based on an "independent knowledge" test retained in full flower; the Board and the companies, on their claim that an 8(a) (5) obligation can flower only in case of employer consent to authentication. And so the position set forth in this opinion was not advanced by the parties. It was presented by the court during the course of argument, and counsel had an opportunity to develop whatever objections were seen. If objections had subsequently been visualized, leave to file a post-argument memorandum could have been sought, and properly so. Hearing no such objection, and seeing none ourselves on further reflection⁴⁹ , we conclude the principle herein set forth is sound.IV. CONCLUSION

We hold that if "independent knowledge" is to be restricted, some alternative must be put in its place to prevent an employer's deliberate flouting and disregard of union cards without rhyme or reason. The complete lack of such an alternative would not be consistent with the Act. If no "independent knowledge" or "good faith" test is to be used by the Board, the employer must be put to some other kind of test to evidence good faith. Compare Food Store Employees Union v. NLRB, 155 U.S.App.D.C. 101, 476 F.2d 546, 554 (1973). The alternative such as employer petition for election retains primary emphasis on the election process, and its preferred status. The position adopted by the Board is inconsistent with the Act and its orders must be reversed. We remand to the Board to reconsider what option, consistent with the statute, it wishes to follow.

Reversed and remanded.