Linden Lumber Division, Summer & Co. v. National Labor Relations Board
Linden Lumber Division, Summer & Co. v. National Labor Relations Board
Opinion of the Court
delivered the opinion of the Court.
These cases present a question expressly reserved in NLRB v. Gissel Packing Co., 395 U. S. 575, 595, 601 n. 18 (1969).
In Linden respondent union obtained authorization cards from a majority of petitioner’s employees and demanded that it be recognized as the collective-bargaining representative of those employees. Linden said it doubted the union’s claimed majority status and suggested the union petition the Board for an election. The union filed such a petition with the Board but later withdrew it when Linden declined to enter a consent election agreement or abide by an election, on the ground that respondent union’s organizational campaign had been improperly assisted by company supervisors. Respondent union thereupon renewed its demand for collective bargaining; and again Linden declined, saying that the union’s claimed membership had been improperly influenced by supervisors. Thereupon respondent union struck for recognition as the bargaining representative and shortly filed a charge of unfair labor practice against Linden based on its refusal to bargain.
There is no charge that Linden engaged in an unfair labor practice
In Wilder
In Gissel we held that an employer who engages in “unfair” labor practices “ ‘likely to destroy the union’s
We recognized in Gissel that while the election process had acknowledged superiority in ascertaining whether a union has majority support, cards may “adequately reflect employee sentiment.” Id., at 603.
Generalizations are difficult; and it is urged by the unions that only the precise facts should dispose of concrete cases. As we said, however, in Gissel, the Board had largely abandoned its earlier test that the employer’s refusal to bargain was warranted, if he had a good-faith doubt that the union represented a majority. A different approach was indicated. We said:
“[A]n employer is not obligated to accept a card check as proof of majority status, under the Board’s current practice, and he is not required to justify his insistence on an election by making his own investigation of employee sentiment and showing affirmative reasons for doubting the majority status. See Aaron Brothers, 158 N. L. R. B. 1077, 1078. If he*305 does make an investigation, the Board’s recent cases indicate that reasonable polling in this regard will not always be termed violative of § 8 (a)(1) if conducted in accordance with the requirements set out in Struksnes Construction Co., 165 N. L. R. B. [1062], 65 L. R. R. M. 1385 (1967). And even if an employer’s limited interrogation is found violative of the Act, it might not be serious enough to call for a bargaining order. See Aaron Brothers, supra; Hammond & Irving, Inc., 154 N. L. R. B. 1071 (1965). As noted above, the Board has emphasized that not ‘any employer conduct found violative of Section 8 (a)(1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding,’ Aaron Brothers, supra, at 1079.” 395 U. S., at 609-610.
In the present cases the Board found that the employers “should not be found guilty of a violation of Section 8 (a) (5) solely upon the basis of [their] refusal to accept evidence of majority status other than the results of a Board election.” 190 N. L. R. B., at 721; see 198 N. L. R. B., at 998. The question whether the employers had good reasons or poor reasons was not deemed relevant to the inquiry. The Court of Appeals concluded that if the employer had doubts as to a union’s majority status, it could and should test out its doubts by petitioning for an election. It said:
“While we have indicated that cards alone, or recognitional strikes and ambiguous utterances of the employer, do not necessarily provide such ‘convincing evidence of majority support’ so as to require a bargaining order, they certainly create a sufficient probability of majority support as to require an employer asserting a doubt of majority status to resolve the possibility through a petition*306 for an election, if he is to avoid both any duty to bargain and any inquiry into the actuality of his doubt.” 159 U. S. App. D. C., at 240, 487 F. 2d, at 1111.
To take the Board’s position is not to say that authorization cards are wholly unreliable as an indication of employee support of the union. An employer concededly may have valid objections to recognizing a union on that basis. His objection to cards may, of course, mask his opposition to unions. On the other hand he may have rational, good-faith grounds for distrusting authorization cards in a given situation. He may be convinced that the fact that a majority of the employees strike and picket does not necessarily establish that they desire the particular union as their representative. Fear may indeed prevent some from crossing a picket line; or sympathy for strikers, not the desire to have the particular union in the saddle, may influence others. These factors make difficult an examination of the employer’s motive to ascertain whether it was in good faith. To enter that domain is to reject the approval by Gissel of the retreat which the Board took from its “good faith” inquiries.
The union which is faced with an unwilling employer has two alternative remedies under the Board’s decision in the instant cases. It can file for an election; or it can press unfair labor practice charges against the employer under Gissel. The latter alternative promises to consume much time. In Linden the time between filing the charge and the Board’s ruling was about 4y2 years; in Wilder, about 6% years. The Board’s experience indicates that the median time in a contested case is 388;days. Gissel, 395 U. S., at 611 n. 30. On the other hand the median time between the filing of the petition for an election and the decision of the Re
The Court of Appeals concluded that since Congress in 1947 authorized employers to file their own representation petitions by enacting §9 (c)(1)(B),
“Today an employer is faced with this situation.*308 A man comes into his office and says, ‘I represent your employees. Sign this agreement, or we strike tomorrow.’ Such instances have occurred all over the United States. 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 under those circumstances, and say, T want an election. I want to know who is the bargaining agent for my employees.’ ” 93 Cong. Rec. 3838 (1947) (remarks of Senator Taft).
Our problem is not one of picking favorites but of trying to find the congressional purpose by examining the statutory and administrative interpretations that incline one way or another. Large issues ride on who takes the initiative. A common issue is, what should be the representative unit? In Wilder the employer at first took the position that the unit should be one of 30 employees. If it were 18, as the union claimed (or even 25 as the employer later argued), the union with its 13 authorization cards (assuming them to be valid) would have a majority. If the unit were 30, the union would be out of business.
Section 9 (c)(1)(B) visualizes an employer faced with a claim by individuals or unions “to be recognized as the representative defined in §9 (a).”
The Board has at least some expertise in these matters and its judgment is that an employer’s petition for an election, though permissible, is not the required course. It points out in its brief here that an employer wanting to gain delay can draw a petition to elicit protests by the union, and the thought that an employer petition would obviate litigation over the sufficiency of the union’s showing of interest is in its purview apparently not well taken. A union petition to be sure must be backed by a 30% showing of employee interest. But the sufficiency of such a showing is not litigable by the parties.
In light of the statutory scheme and the practical administrative procedural questions involved, we cannot say that the Board’s decision that the union should gó forward and ask for an election on the employer’s refusal
In sum, we sustain the Board in holding that, unless an employer has engaged in an unfair labor practice that impairs the electoral process,
Reversed.
At the conclusion of the strike Linden refused to reinstate two employees it alleged to be supervisors and therefore unprotected by the Act. The Board found that to be an unfair labor practice. Thereupon Linden reinstated the two employees and this issue was not tendered to the court below. 159 U. S. App. D. C. 228, 234, 487 F. 2d 1099, 1105 (1973).
Section 8 (a)(5) of the National Labor Relations Act provides:
“(a) 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).” 49 Stat. 453, as amended, 61 Stat. 141, 29 U. S. C. § 158 (a) (5).
See n. 4, infra.
The long series of rulings is described in the opinion of the Court of Appeals, 159 U. S. App. D. C., at 229-232, 487 F. 2d, at 1100-1103. Wilder did not petition for certiorari. No. 73-1234, which we granted, is the petition of the Board, but for convenience it is referred to herein as the Wilder case.
Thirty-seventh Annual Report of the National Labor Relations Board 13 (1972).
Section 9 (c)(1)(B) provides:
“(1) 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. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” 61 Stat. 144, 29 U. S. C. §159 (c)(1)(B).
S. Rep. No. 105, 80th Cong., 1st Sess., 10-11 (1947); 93 Cong. Rec. 3838 (1947).
Section 9 (a) provides:
“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 in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . . 49 Stat. 453, as amended, 61 Stat. 143,29 U. S. C. § 159 (a).
NLRB v. Savair Mfg. Co., 414 U. S. 270, 287 n. 6 (1973) (White, J., dissenting).
We do not reach the question whether the same result obtains if the employer breaches his agreement to permit majority status to be determined by means other than a Board election. See Snow & Sons, 134 N. L. R. B. 709 (1961), enf’d, 308 F. 2d 687 (CA9 1962). In the instant cases the Board said that the employers and the unions "never voluntarily agreed upon any mutually acceptable and legally permissible means, other than a Board-conducted election, for resolving the issue of union majority status.” 190 N. L. R. B., at 721; see 198 N. L. R. B., at 998.
Dissenting Opinion
dissenting.
Under a recently adopted Board policy, an employer who does not commit independent unfair labor practices prejudicing the holding of a fair election has an absolute right to refuse to bargain with a union selected by a majority of his employees until that union petitions for and wins a Board-supervised election. I cannot agree with the Court’s conclusion that this Board policy constitutes a permissible interpretation of §§ 8 (a)(5) and 9 (a) of the Act.
Section 9 (a) expressly provides that the employees’ exclusive bargaining representative shall be the union “designated or selected” by a majority of the employees in an appropriate unit. Neither § 9 (a) nor § 8 (a)(5), which makes it an unfair labor practice for an employer to refuse to bargain with the representative of his employees, specifies how that representative is to be chosen. The-language of the Act thus seems purposefully designed to impose a duty upon an employer to bargain whenever the union representative presents convincing evidence of majority support, regardless of the method by which that support is demonstrated. And both the Board and this Court have in the past consistently interpreted §§ 8 (a) (5) and 9 (a) to mean exactly 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, or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes.” NLRB v. Gissel Packing Co., 395 U. S. 575, 597 (footnote omitted).
The 1947 amendments, however, did provide an alternative to immediate union recognition for an employer faced with a union demand to bargain on behalf of his employees. Section 9 (c)(1)(B), added to the Act in 1947, provides that an employer, alleging that one or more individuals or labor organizations have presented a claim to be recognized as the exclusive representative of his employees, may file a petition for a Board-supervised representation election.
This section, together with §§ 8 (a)(5) and 9 (a), provides clear congressional direction as to the proper approach to the situation before us. When an employer is faced with a demand for recognition by a union that has presented convincing evidence of majority support, he may elect to follow one of four alternatives. First,
The Court offers two justifications for its approval of the new Board practice which, disregarding the clear language of §§8(a)(5) and 9(a), requires an employer
First, it is suggested that to require the Board under some circumstances to find a §8 (a)(5) violation when an employer refuses to bargain with the noncertified union supported by a majority of his employees would compel the Board to re-enter the domain of subjective “good faith” inquiries. Ante, at 306. This fear is unwarranted. It is true that early in the administration of the Act it was held that an employer could lawfully 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 of the employees. See NLRB v. Gissel Packing Co., supra, at 597 n. 11; NLRB v. Remington Rand, Inc., 94 F. 2d 862, 868. But it was recognized at the same time that a union could present “convincing evidence of majority support” that “could not in good faith be ignored.” NLRB v. Dahlstrom Metallic Door Co., supra, at 757; see NLRB v. Gissel Packing Co., supra, at 596; NLRB v. Remington Rand, Inc., supra, at 868.
Within broad limits imposed by the Act itself, the Board may use its understanding of the policies and practical considerations of the Act’s administration to determine the circumstances under which an employer must take evidence of majority support as “convincing.” Cf. NLRB v. Insurance Agents, 361 U. S. 477, 499; NLRB v. Truck Drivers Union, 353 U. S. 87, 96. The Act in no way requires the Board to define “convincing evidence” in a manner that reintroduces a subjective
Even with adoption of such an objective standard for measuring “convincing evidence of majority support,” the employer’s “subjective” doubts would be adequately safeguarded by §9 (c)(1)(B)’s assurance of the right to file his own petition for an election. Despite the Board’s broad discretion in this area, however, the Act simply does not permit the Board to adopt a rule that avoids subjective inquiries by eliminating entirely all inquiries into an employer’s obligation to bargain with a noncertified union selected by a majority of his employees.
The second ground upon which the Court justifies its approval of the Board’s new practice is that it serves to remove from the employer the burden of obtaining a Board-supervised election. Ante, at 307. Although I agree with the Court that it would be improper to impose such an obligation on an employer, the Board’s
The only employer obligation relevant to this case, apart from the requirement that the employer not commit independent unfair labor practices that would prejudice the holding of a fair election, is the one imposed by §§ 8 (a)(5) and 9 (a) of the Act: an employer has a duty to bargain collectively with the representative designated or selected by his employees. When an employer is confronted with “convincing evidence of majority support,” he has the option of petitioning for an election or consenting to an expedited union-petitioned election. As the Court explains, §9 (c)(1)(B) does not require the employer to exercise this option. If he does not, however, and if he does not voluntarily recognize the union, he must take the risk that his conduct will be found by the Board to constitute a violation of his § 8 (a)(5) duty to bargain. In short, petitioning for an election is not an employer obligation; it is a device created by Congress for the employer’s self-protection, much as Congress gave unions the right to petition for elections to establish their majority status but deliberately chose not to require a union to seek an election before it could impose a bargaining obligation on an unwilling employer. NLRB v. Gissel Packing Co., supra, at 598-599.
Section 9 (a) of the Act, 49 Stat. 453, as amended, 61 Stat. 143, 29 U. S. C. § 159 (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
For example, in Mine Workers v. Arkansas Flooring Co., 351 U. S. 62, 69, the Court stated that where the union had obtained signed authorization cards from a majority of the employees, denial of recognition of the union by the employer would have violated § 8 (a) (5) in the absence of any bona fide dispute as to the existence of the required majority of eligible employees.
If despite its convincing evidence of majority support the union in fact has not attained majority status, a grant of exclusive recognition to the minority union by the employer would constitute unlawful support in violation of §§ 8 (a)(1) and 8(a)(2) of the Act. Garment Workers v. NLRB, 366 U. S. 731, 737-738. This result, however, imposes no real hardship on the employer or the union since it merely requires that recognition be withheld until a Board-conducted election results in majority selection of a representative. Id., at 739. In addition, an employer concerned about the possibility of recognizing a minority union may always petition for an election pursuant to § 9 (c)(1)(B) prior to recognition.
The Board, of course, continues to permit an employer voluntarily to recognize a noncertified union supported by a majority of his employees. But under the Board rule approved by the Court, an employer has no obligation to do so under the Act.
1 do not attempt to indicate how the Board should specify standards as to what may constitute “convincing evidence.” In view of its experience and expertise, the Board is better qualified than we are to undertake the specifics of this task. I do suggest that the support of a bare majority of employees, whether demonstrated by authorization cards, a strike, or a strike vote, would not necessarily constitute convincing evidence. Given the possibility of undue peer pressure or even coercion in personal card solicitation or nonsecret strike votes, a higher level of objective dependability might be obtained by requiring a greater show of support than a bare majority.
Although the Court reiterates the generally acknowledged view that elections are the preferred method for determining whether a union has majority support, it suggests that an election held as a result of an employer petition or an expedited election to which the employer has consented is somehow less desirable than a union-requested election. Ante, at 309. No such distinction is possible. The advantages of a secret election to determine the true desires of employees with respect to the selection of a collective-bargaining representative, ensuring a choice that is free from the influences of mass psychology, see Brooks v. NLRB, 348 U. S. 96, 100, are entirely unrelated to whether the union or the employer has initiated the election proceedings.
Reference
- Full Case Name
- LINDEN LUMBER DIVISION, SUMMER & CO. v. NATIONAL LABOR RELATIONS BOARD Et Al.
- Cited By
- 87 cases
- Status
- Published