Opinion
No. 22596.
Argued October 24, 1969.
Decided November 14, 1969.
Mr. Laurence Gold, Washington, D.C., for petitioner. Miss Patricia Eames, General Counsel, Textile Workers Union of America, New York City, Messrs. J. Albert Woll and Thomas E. Harris, Washington, D.C., were on the brief for petitioner.
Mr. Frank H. Itkin, Attorney, National Labor Relations Board, of the bar of the Supreme Court of New Jersey, pro hac vice, by special leave of court, for respondent. Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Michael F. Rosenblum, Attorney, National Labor Relations Board, were on the brief for respondent.
Before FAHY, Senior Circuit Judge, and McGOWAN and MacKINNON, Circuit Judges.
In this proceeding brought by a union to review an order of the National Labor Relations Board dismissing a Section 8(a)(5) complaint, counsel for both the petitioner and the Board filed supplemental briefs after the Supreme Court decided NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). This was because the case, involving as it does the refusal of the employer to recognize the union on the basis of authorization cards, fell within the general ambit of Gissel. Counsel for the Board now argues that, although here, unlike Gissel, the employer engaged in no independent unfair labor practices, there are expressions by the Court in Gissel which indicate approval of the course followed by the Board. The union, contrarily, stresses the differing circumstances of Gissel, and urges us to approve a method of handling pressed upon the Supreme Court in Gissel but not dealt with definitively by it.
In declining to consider the particular argument urged by the union in Gissel, the Court characterized that argument as follows:
The union argues here that an employer's right to insist on an election in the absence of unfair labor practices should be more circumscribed, and a union's right to rely on cards correspondingly more expanded, than the Board would have us rule. The union's contention is that an employer, when confronted with a card-based bargaining demand, can insist on an election only by filing the election petition himself immediately under § 9(c)(1)(B) and not by insisting that the union file the election petition, whereby the election can be subjected to considerable delay. If the employer does not himself petition for an election, the union argues, he must recognize the union regardless of his good or bad faith and regardless of his other unfair labor practices, and should be ordered to bargain if the cards were in fact validly obtained. And if this Court should continue to utilize the good faith doubt rule, the union contends that at the least we should put the burden on the employer to make an affirmative showing of his reasons for entertaining such doubt. 395 U.S. at 594, 89 S.Ct. at 1930.
At oral argument before this court, the union also argues that the employer should show evidence of doubt based upon an objective standard of reasonableness, rather than the subjective standard of good faith.
We think the matter of sufficient importance to warrant further consideration by the Board in the first instance in the light of Gissel, but without limitation; and we remand the case for that purpose. In doing so, we note particularly that the defense advanced by the employer at the unfair labor practice hearing was that it did not think the cards presented to it represented a majority of the appropriate unit, as the employer conceived that unit to be. In Gissel, the Supreme Court (at p. 594, 89 S.Ct. at p. 1930) said the Board had represented at oral argument that the Board's "current practice" was to view "an employer's good faith doubt [as] largely irrelevant," although "an employer could not refuse recognition initially because of questions as to the appropriateness of the unit * * *." In view of this representation, there would appear to be some question as to whether the employer's conduct here allowed it, under the Board's "current practice," to escape a violation by remaining passive. Thus it would appear useful for the Board to look at this case again not only in the light of what the Court decided in Gissel but also by reference to what the Court said it understood the Board's practice to be in situations not involving independent unfair labor practices but where the employer stands upon a doubt as to the appropriateness of the unit.
The passage in its entirety is as follows:
Although the Board's brief before this Court generally followed the approach as set out in Aaron Brothers, 158 N.L.R.B. 1077, supra, the Board announced at oral argument that it had virtually abandoned the Joy Silk Mills, Inc. v. N.L.R.B., 87 U.S.App.D.C. 360, 185 F.2d 732 doctrine altogether. Under the Board's current practice, an employer's good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. 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 initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union's strength.
An order of remand will issue.
I concur in the remand for further consideration by the Board of its own current practice as understood by the Supreme Curt in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), but without limitation. I point out, however, what seems to me the narrow scope of the Gissel decision in relation to this case. The Supreme Court ruled that an employer's duty to bargain under Section 8(a)(5) is not restricted solely to those unions which have been certified after a Board election. The Court also rejected the view that Union authorization cards are inherently unreliable. The facts in the record before us make both of these rulings applicable to the present case; but the Supreme Court also pointed out that it was not deciding whether a refusal to bargain absent an unfair labor practice other than a violation of Section 8(a)(5) constitutes a violation of that section. I accordingly do not give weight to the Board's present contention that because the Court described current practices of the Board it impliedly approved them. On the other hand I do not think the Court's decision covers the Union's position in the present case, aside from the specific holdings noted above.
In footnote 18, Gissel at 601, 89 S.Ct. at 1933, the Court warned that,
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 * * *.
Our Per Curiam suggests that the Supreme Court's understanding of current Board practice is that it prohibits an employer from refusing to grant union recognition on the ground that there is no appropriate unit, thus raising the question whether under that practice the employer's conduct in our case would be proper. That the Board's current practice is as our Per Curiam suggests the Supreme Court understood it to be is not entirely clear to me.
Putting aside now the reference in the Supreme Court's opinion to the practice of the Board as stated in its oral argument in Gissel, it is significant that the standard the Board urges in support of its decision favorable to the employer in the present case is one of "bad faith" on the employer's part. In this connection the Board urges that if the employer does not commit other unfair labor practices it can refuse to bargain with impunity so long as it has no independent knowledge of the Union's representative status. The present record reveals that the Union representatives had authorization cards free of suspicion from a majority in a unit recognized as appropriate by the trial examiner and the Board, followed by evidence of the majority's solidarity through the picketing and strike. Moreover, the employer did not demand that the Union request a Board election. It simply refused to recognize the Union. I understand our remand does not exclude consideration anew of whether in these circumstances the employer was shown to have acted in bad faith and, if so, the appropriate disposition the Board should make of the case.
I concur in the remand but am of the opinion that Gissel supports the Board's position.