NLRB v. GISSEL PACKING CO.

I said yesterday that Section 8 (a) (1) of the Labor Act when read together with Section 8 (c) prohibits the employer from coercively interfering by threat of reprisal with employee free choice and selecting a bargaining representative.

Now, of course, Congress never said in the Act or in its legislative history that the threat of reprisal need be in any particular form of words or that it need be confined within the compass of a single communication in order to be an unfair labor practice.

Congress was concerned with substantial rights and did not create any such loopholes in this Act.

Now, in this case, we are not dealing with an employer who was so ill-advised as to threaten his employees in blatant, unequivocal terms, but the Board also has a responsibility in protecting the rights that Congress has guaranteed to determine whether an employer who is carefully avoided the utterance of any specific overt threat has nevertheless intimidated his employees by getting the message across in the totality of what is said that there is a real threat of company reprisal if they should select the union.

In assessing whether the employer's communications where calculated to have that effect and more importantly, whether they were likely to be understood by the employees of such a threat.

The Board of course tries realistically to take into account all the circumstances including any factors that may make the employees especially susceptible to employer intimidation.

As Judge Hays of the Second Circuit who was a longtime and distinguished scholar of labor law has suggested in a dissenting opinion, it is not always easy for those of us who are in a profession which shows no signs of obsolescence and which offers a wide variety of employment flexibility to appreciate that the insecurities of workers who are not so fortunately situated can make them painfully vulnerable to the pressures of equivocal or veiled threats by their employers.

Now, one additional word of background may be illuminating before turning to this record, the particular kind of threat involved in this case, the threat of plant closure has long been recognized as one of the most flagrantly coercive and destructive of employee free choice.

In one of the leading opinions in this entire field, Franks Brothers against the Labor Board in Volume 321 U.S. in a unanimous opinion delivered by Mr. Justice Black, the Court singled plant closure offers special emphasis in the following language.

Before the election was held, petitioner conducted an aggressive campaign against the union even to the extent of threatening to close its factory if the union won the election.

Now, part of the record which the Board was dealing within this case is cogently summarized I believe in the petitioner's brief and I'd like to read a few short sentences at the bottom of the page 5 and top of page 6.

During this same period, 1952 to 1965, changes were made in weaving industry equipment.

The company's looms were automated to the point where they could be run without an operator.

Electric clutches and fingers were added, which made it much easier to operate and some skills formerly needed were eliminated.

Although it was not unusual to have apprentices in 1952, the situation changed in the industry after that time because of automation.

The company had had no apprentices since 1952.

The question then was whether the employer's communications to this group of employees whose skills had become technologically outmoded to a substantial degree were likely to have had a coercive effect by conveying a threat of reprisal.

Now, the Board relied on the purported effect of these communications as a whole rather than on any particular statements and they are rather diffusively spread over the record.

It's difficult to present in the course of an oral argument, the communications as a whole, but I'll attempt to make a quick survey of them relying upon the Board's findings in its opinion at first in the distillation that it made of these communications from the record.

If I can begin as background with the earlier communications starting on page 172 of the appendix in the findings and they were findings in the Board's opinion.

In the first speech made to all of the employees when the president of the company first learned of the union's organizing campaign long before any demand for recognition had been made.

He spoke towards the bottom of page 172 of the company's financial condition indicating that ever since the last strike, the shop had been running on thin ice.

He emphasized that if the company could not agree to the union's demands, the union's only weapon is a strike and pointed out that while he did not intend to close, a strike could lead to the closing of the plant.

He also told the group that the wire weavers craft was a small one that it would be difficult for them to find other jobs because it was not like finding a job as a machinist that many of them did not have the education which would make it difficult for them to find another job and that many of them were getting too old to go out and find new jobs.

Continuing on page 174, he said that he did not think the Lindsay organization, the new owners was going to be concerned if through contract negotiations with the union, our people went on strike, that the strike could close respondent's plant and nothing would prevent Lindsay from having respondent's weaving worked on at Lindsay's plant in Ohio and Mississippi.

He also stated the respondent was subject to foreign competition and that it was conceivable that if the plant was closed under any circumstances, that some of the work would go to foreign companies and that respondent had handled foreign wires in the past.

He pointed out that all they had to do was to look around Holyoke if they thought a strike could not close respondent's plant.

Now, continuing with a letter sent on November 5th to all of the employees on page 175, in the text of this letter, he said, that the new ownership is entrusted in profits and not pressure.

They have no ties with Holyoke or Massachusetts.

Skipping down, “The union promises you a lot but what can they deliver except pressure, the threat of a strike.”

He then stated that, “I do not believe the threat of a strike will cause the new owners any loss of sleep.

However, a long strike would be bad for me because I would like to remain in Holyoke.”

Next, I'd like to turn to page 178 in these findings, getting into the period within 30 days before the election upon which the Board directly rely and a letter of November 30th addressed to all of the wire weavers, I'm reading from page 178, the third line.

This letter warns that, “A strike can still close the Holyoke plant, but other plants can pick up the work, and that the new ownership is entrusted in profits and not pressure.”

He then points out that the Teamsters Union cannot do anything to improve our profit position, but can only make big demands which the company cannot meet, and the call you out on strike because a strike is a union's only weapon to enforce its big demands.

He then asks, “Can you afford a long strike when you know the Holyoke plant has been given a second chance to stay in the business and furnish jobs for all of us?”

Now, I would like to turn directly to the employer's last communications during the two days before the election.

First of all, a leaflet which was distributed to the wire weavers two days before the election in which appears on page 137 of the appendix in a foldout, it begins you'll note on page 137 of the appendix with a cartoon showing a grave being prepared for the Sinclair Company, surrounded by tombstones marked with the names of other companies in the area that had closed down.

And underneath the cartoon, among the comments is the statement, the Holyoke-Springfield Industrial graveyard is filled with companies which died under union pressure.

And then on the next page, on the reverse side, in the first column under the heading, many were sick when the union doctor came in, it says, “Some of the industrial corpses were already sick when the unions came in with big promises to the employees of what the unions could do for them.

These companies needed higher production and better quality to meet the stiffer competition.

The union doctors gave them bloodletting strikes restricted production and a higher labor cost.

The result as you see as you look around was the death of these companies.”

Then on the following page which continues the leaflet, page 139, under the caption our history is not bright against the background such as ours, your dreams of union miracles can be dangerous to your real job security.

We don't know what the future holds for any of us, but you can be sure the new owners of Sinclair Company were looking for profits and not operation Holyoke rat hole into which to pour dollars without hope of profit.

And then the final page, pictures five factories in the area which have closed down with the -- among the captions, unions furnished no job security here.

In testimony however, on pages 40 and 41 of the appendix, the employer admitted that he had no basis for believing that unions or union activities had had anything to do with the closing of any of these plants, despite the representations in this leaflet.

Justice John M. Harlan: Well, what had been the history of the labor relations to this company?

Mr. Wallace: There had been a union prior to 1952, an independent union which is now affiliated with the Teamsters and Wire Weaving Union.

There had been a 13-week strike.

After which, the plant reopened on a non-union basis until this present controversy in 1965.

Justice John M. Harlan: That was before the new management?

Mr. Wallace: That was before the -- a company was sold to Lindsay Wire Weaving, but the president of Sinclair, the wholly-owned subsidiary is the same man who is the manager when it was an independent company.

It's the son of the founder.

Now, finally, I would like to turn to the note cards introduced into evidence by the company which were the basis of the final speech to the wire weavers on the day before the election.

These begin on page 162 of the appendix, and I would like to naturally read selectively in the limited time we have.

Beginning on page 163 in the middle of card 5, “what can they do?” meaning the union, demand higher wages and expensive welfare and pension plans which could lead to even larger losses than we have had.

Although on page 69 of the record, I might point out president Sinclair testified that the company made a profit in fiscal year 1965 not losses, can call you out on strike, you people know what it is like, you have had strike experience, I don't think our new ownership will lose a minute sleep over whether the union threatens the company with a strike.

They have made it clear to me that they look for profit and not a hole to pour money down.

If we have to negotiate with the Teamsters and cannot reach agreement on a contract under which we can money, they could care less about the threat of strike.

And continuing on the next page in the middle of card 9, "Now, I would be the last one to blacklist you for getting another job if this plant close by strike, but the Teamsters can't guarantee you another job either."

Again, let's look at facts head-on, no one likes to admit his getting older.

We are all Jack Benny's, we're never going to be over 39, but we don't look that way to an employment manager.

Most companies probably have a large number of applicants, who are young, have better educations and certainly, a lot better insurance rating than you and I.

They can be hired for a lot less money, who you have experience, but it is limited to a particular small craft.

I have assumed in case we are force to shutdown because of a strike that some other plant will pick up your business, our business, excuse me.

This is not necessarily so.

Pressure is still on from foreign wire weavers.

Maybe three months from now, I'll force to sell foreign wires if the Teamsters Union stops our production.

You all know we have had to handle foreign wires in the past.

Then on the next page at the end of card 12, “I have given you the facts today and by mailings as I know them to be, it's not a rosy picture for you or for me.

Now, the decision is up to you.

Perhaps, you feel I'm exaggerating or bluffing.

I'm deadly serious and I'm deeply concerned.”

And the final sentence, “To you and your dependents, this is one of the most important elections in which you'll ever vote.”

We believe that on this record, in the circumstances of this community and this audience, the Court of Appeals correctly held that it was permissible, perhaps not required but permissible for the Board to conclude that the atmosphere of free choice which Congress has ordained for representation election had been undermined by an implied threat, a threat that the employer anticipated that it would not be able to agree to a contract with the union, and anticipated making other arrangements for its wire weaving needs, if the union should win the election that this would lead either to the closure of the plant or in the transfer of the wire weaving operations elsewhere.

Under the Act, this was a judgment for the Board to make, subject of course to the safeguards of judicial review.

It is the sort of judgment that the Board has required to make in a very large number of cases every year.

For example, during the fiscal 1967, more than 8,000 representation elections were conducted by the Board, and during the same year, objections were filed with the Board to 1,369 such elections.

Justice Abe Fortas: Mr. Wallace, are you going to talk about the authorization cards here?

Mr. Wallace: I am, Your Honor, in just a moment if I may.

In evaluating such objections, the Board has shown appropriate solicitude for the statutory rights of employers under Section 8 (c) to express their views during the campaign.

For example in a 1966 decision concerning Ameray's Corporation in Volume 162 of the NLRB reports.

The Board held that that following inaccurate and intemperate criticism of the union was privilege under this section, a statement by a supervisor that the company did not want the union end that quote “all they was good for was blowing up people's houses and kidnapping their kids and that they was rammed by nothing but a bunch of gangsters.”

The Board's decision also have upheld the right of an employer to explain realistically to his employees that his business situation is unfavorable and precludes increases in their compensation or other benefits, so long as this is done in a non-coercive way.

The employees in such a situation might still wish to select a bargaining representative to protect them against reductions of benefits or loss of employment.

Of course, we do not claim that the Board has been infallible in its judgments in every one of the many cases requiring it to draw the line between a protected expressions of views and implied threats, but we do claim that in the present case, the Board's conclusion was an unremarkable one.

It was a clearly warranted implementation of the congressional mandate for protection of employee free choice from the threat of economic coercion by the employer.

And indeed, we think the case would become remarkable only if this Court were to convert this record into a script which thereafter could be used by employers with impunity to intimidate their employees.

Justice John M. Harlan: Well, what do you mean by that?

Mr. Wallace: I mean if the holding word that --

Justice John M. Harlan: If it was decided for you, this would be your bet or --

Mr. Wallace: Well, I mean that if this record would be published and I'm certain, it would be use in counseling as to representations that could be made in the course of this campaigns, and as to which the Board could not make a judgment that the coercion unlawfully had occurred.

Justice Potter Stewart: Well, if we decided your opponent was right in this -- on this issue, there would be nothing improper about that.

Mr. Wallace: Of course, that's true.

Justice Potter Stewart: You're just telling me that you're right in this case.

Mr. Wallace: It's another way of telling it.

That's -- that is quite correct.

Of course, that is -- it's exactly the point I meant to make.

Now, once it is decided, it was decided in this case that wrongful coercion by the employer to stride the accuracy of the elective process as a measure of employee's sentiment, the Board's remedy of a bargaining order, it seems to me became plainly warranted on the facts of this case.

The union had made a very strong showing of employee support by obtaining authorization cards from a large majority of the employees; 11 of the total of 14 in the bargaining unit.

The authenticity of these cards is no longer disputed and the employer never disputed the authenticity of eight of them.

No claim has been made that they were obtained by misrepresentation or coercion, the cards themselves which are in the appendix on page 109 unequivocally designate the union as bargaining representative and include an application for membership in the union.

In these circumstances, the employer's coercive power during the election campaign permitted the Board, and it does not always draw this inference but it permitted the Board to infer that the employer's refusal to bargain in response to the union's request based on the cards was motivated not by good faith doubt as to the union's majority status, but motivated primarily by a desire to try by wrongful means to dissipate that majority.

Justice Potter Stewart: Now, here of course, the union lost the election.

Mr. Wallace: That is correct.

That -- what I just spoke of was the basis for the Board's finding of an 8 (a) (5) violation, a refusal to bargain for which a bargaining order is always the appropriate remedy.

The Board held moreover in this case that even in the absence of the finding of an 8 (a) (5) violation, the bargaining order would have been an appropriate remedy for the 8 (a) (1) violation and is so indicated by the Franks Brothers case with I referred to in 320 U.S. in which this Court said that the Board had lost its -- that the union had lost its majority because of the employer's coercive threats.

And nonetheless, upheld unanimously the bargaining order based on the authorization cards.

Justice Potter Stewart: That was -- posed a date of that case.

Mr. Wallace: It was in 321 U.S. and it was under the Wagner Act --

Justice Potter Stewart: Not under the Taft-Hartley Act.

Mr. Wallace: Not under the Taft-Hartley Act.

Because the employer's 8 (a) (1) violation in this case could not readily be cured so as to restore the conditions necessary for an election free from the effects of his wrongful coercion.

The Board was warranted in relying on the decisive majority indicated by the cards at a more accurate showing of employees' sentiment that an election would be in the existing circumstances, and thus to decide that the requested right of the employees to bargain collectively should be enforced without further delay.

Now, this is not a drastic remedy because as in the case of any bargaining order, there will be opportunities for interested persons to request another election to measure any changes in employees sentiment after a reasonable period of time.

In sum, therefore, we believe the Court of Appeals was entirely correct in treating this case as a rather routine example of the Board's proper discharge of its statutory responsibilities, which is the flavor one gets from the opinion of the Court of Appeals reviewing this record.

Thank you.

Justice John M. Harlan: Can I ask you a question --

Mr. Wallace: Yes, sir.

Justice John M. Harlan: -- the implications which you sketched out which the Board for you to answer, judgment on the totality.

Has the Board ever been reversed in one of these cases where both the unfair labor practice and totality approach?

Has it ever been reversed?

Mr. Wallace: Not to my knowledge, although there have been relatively few cases in which the only wrongful conduct, the only unfair labor practice was in implied threats or coercion, without any wrongful interrogations or wrongful discharges.

There are two Seventh Circuit cases upholding the Board in such situations that are cited in our brief, and those are the only ones that I know of other than this decision from the First Circuit, upholding an order based exclusively on this kind of unfair labor practice.

Thank you.

Transcript:

Argument of Dominick L. Manoli

Chief Justice Earl Warren: Number 573, National Labor Relations Board, petitioner, versus Gissel Packing Co., Inc., et al. and Number 691, Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters & Butchers Workmen of North America, versus Gissel Packing Company.

Mr. Manoli.

Mr. Dominick L. Manoli: Mr. Chief Justice and may it please the Court.

These cases number 573 and 691 are here on writs of certiorari to the Court of Appeals for the Fourth Circuit.

The Labor Act requires an employer to bargain with their union or with their representative which in the words of the statute has been designated or selected by a majority of the employees in an appropriate collective bargaining union.

For more than 30 years, this Court and the Courts of Appeals both under the original Act as well as the present Act have enforced Board orders which required an employer to bargain with the Union which the employees had designated as their bargain representative by means of authorization cards and the employer did not have a “good faith” doubt of the Union's majority status.

The court below, the court below which in the past had accepted authorization's card as adequate proof of a union's majority status for purposes of a bargaining of the bargaining obligation under Section 8 (a) (5) of the statute now holds that these authorization cards are inherently unreliable and that an employer, when he is confronted with the demand for recognition by union, whose representative status is base solely upon these authorization cards.

That the employer may assert a good faith doubt of the Union's majority status, refused to bargain, insist upon an election and all of these irrespective of the fact that concurrently with his refusal to bargain with -- to recognize and bargain with the Union as the majority representative concurrently with that action.

He is engaging in serious unfair labor practice which may either belie his reliance upon his good faith doubt or preclude a fair election.

Hence, the central question in these cases and not only these two, these cases that were shared from the Court up here and from the Court of Appeals but also in Sinclair case which from the First Circuit which will follow these cases.

The central question in these cases is whether the Board may require an employer to bargain with the Union whose representative status is based solely upon authorization cards from a majority of the employees in the particular unit.

And the employer's concurrent misconduct at the time that he refuses to bargain with the Union on the base of those cards is the concurrent misconduct demonstrates, demonstrates that is asserted doubt -- that he is refusing, he is refusing to bargain with the Union not because of any asserted doubt of the Union's majority status but in order to gain time, in order to dissipate the Union's strength and avoid bargaining at all.

Now, would obviously --

Justice Byron R. White: Is there a question about the -- about whether a subsequent election changes any of this?

Mr. Dominick L. Manoli: The --

Justice Byron R. White: Do we have to decide that question?

Mr. Dominick L. Manoli: The Boards -- I think you're getting at what the Board calls it burnout from rule.

In other words, if a union comes to an employer, goes to an employer, and demands recognition on the basis of cards, and the employer engages an unfair labor practice at that particular time.

The Board will nevertheless permit the Union to go to an election.

If the Union loses that election because of the unfair labor practice committed by the employer during the pre-election period, the Board will permit the Union then to go ahead an unfair labor practice charge and on the basis of the cards demonstrate that it had a majority and that the employer --

Justice Byron R. White: Do we have to decide that in this case?

Mr. Dominick L. Manoli: The --

Justice Byron R. White: In these cases --

Mr. Dominick L. Manoli: -- that problem -- you don't have to decide that in the Fourth Circuit case.

Justice Byron R. White: No.

Mr. Dominick L. Manoli: But that issue is present however in the Sinclair case, the one from the First Circuit because all, excuse me for one moment, I'll take that back.

In one of the cases here -- in one of the case here, there was an election which the Union --

Justice Byron R. White: So we do that to decide that?

Mr. Dominick L. Manoli: -- and that question is here.

That's right.

And it is also in the Sinclair case as I recall it.

Now obviously the time that I have at my disposal, I will not be able to go into the details of these cases here but I think I can fairly say -- I can fairly say that the factual framework in which this question arises in all three cases is not essentially dissimilar.

And in each case, you had the Union which engage in an organizing campaign among the employees and in the course of that organizing campaign it obtain cards authorizing it, unqualifiedly.

There's no question about the cards.

There's no ambiguity about these cards here which are reproduced in our brief, which unqualifiedly designated the Union as their bargain representatives -- as their bargain representatives and only one of these cases from the Fourth Circuit.

I believe that social to the Sinclair although I don't want to get into that one.

In only one of these cases was any question raised as to the validity of the cards in the General Steel case that claim was made that these cards were obtained by mis -- by virtue of misrepresentations as to their purposes.

The Board on the basis of the entire record upon the basis of the evidence before rejected that claim and found that all these cards here, all of these cards here unqualifiedly designated the Union as the bargain representative and that there was no impropriety in the procurement of these cards.

Now armed with these cards, the Union went to each of the three employers in these particular cases here and asks for recognition.

The employer questioning the validity of the cards, question the Union's majority status and refuse to bargain to the Union insisted upon an election.

Justice Hugo L. Black: On what grounds did they question?

Mr. Dominick L. Manoli: Oh, I think that it varied from case to case.And some of them the employers was said -- in effect said, we don't -- we don't rely on cards.

We think that they are unreliable because the circumstances and I wonder which they may be may have been procured.

In another case an employer said, I don't think I should recognize you because four years ago, four years ago -- there was an election in which this particular union had participated and got lost.

And still another case that employer simply said, no comment.

No comment and still another case the employer when asked to recognizing on the basis of the cards said that we think you ought to go to an election.

And I think there's one case here where the employer really never questions the cards, never question cards and his answer was, “no comment”.

No comment and there seems to be some evidence in the record here that the employer actually knew that a majority of employers had selected that particular --

Justice Byron R. White: Well, Mr. Manoli, what is the Board's view of what the employer must, and like they say, what is there position that he must take before the Board that will recognize that he may insist on an election rather than to a Court recognition based on cards?

Mr. Dominick L. Manoli: Your Honor, if the Union goes to an employer and says to the employer, we have cards here from the majority of your employees which as their bargain representative.

The employer may say, the Board has said this -- the employer may say, “I don't like cards.

I don't wish to rely upon your cards and I do insist that you go to an election.”

I think that that's the proper way to resolve this question this representation question is to go to an election.

If he does no more than that, he may even engage.

I mean during the pre-election period, he may engage in the speech -- he make speeches to his employees --

Justice Byron R. White: But that -- but that won't that may not get him -- the Union may just file 8 (b) – 8 (a) (5) but charges on them in.

Mr. Dominick L. Manoli: The Board will -- the general counsel will not issue a complaint on the basis of that in that kind of situation where the employer says for the Union, I don't wish to rely upon cards --

Justice Byron R. White: I don't care how many cards you've got.

I just don't like it.

Mr. Dominick L. Manoli: I don't care how many -- that's right.

I don't care how many cards you got --

Justice Byron R. White: He can get an election then?

Mr. Dominick L. Manoli: That's right.

As long as --

Justice Byron R. White: That's your rep – that's represents what the position of the Board is --

Mr. Dominick L. Manoli: That's right.

As long as he does not misbehave, now that's why they say.

Justice Byron R. White: As long as what?

Mr. Dominick L. Manoli: He does not misbehave, does not engage in contemporaneously with the refusal to accept those cards that he does not engage in unfair labor practice and serious unfair labor practice because the Board in some case where the employer may have engaged in some isolated unfair labor practice.

It still will permit it to refuse to bargain with the Union.

It's only when it engages in serious unfair labor practice --

Justice Byron R. White: Its certainly doesn't emerge from your briefs in this case?

Mr. Dominick L. Manoli: I hope it didn't.

Justice Byron R. White: Has this been -- has this always been the practice Mr. Manoli?

Mr. Dominick L. Manoli: No, Your Honor.

I think the Board is change a little bit --

Justice Byron R. White: Well, I may explain in times since I've been at it but the --

Mr. Dominick L. Manoli: -- the -- with the Board has change a little bit in his approach to these cards here.

I think that one --

Justice Byron R. White: Quite a bit.

Yes.

Mr. Dominick L. Manoli: But its not been a recent change really, Your Honor.

I think that this began back sometime in the early 60's.

At one time, the Board would take the position and simply I might say that we sold virtually all the courts, all the courts with this proposition that an employer when a union came to him and said, I -- we want to be recognized based on these cards, it was not enough for him to say, I don't like cards.

He had to have or not enough for him to say that I have a good faith doubt of your majority status.

He also had to have some objective evidence which supported his good faith doubt.

Today, the Board does not insist that when an employer is confronted with a demand for recognition --

Justice Byron R. White: Where is this articulated in the Board opinion somewhere its due?

Mr. Dominick L. Manoli: The -- well, I think you have to take the Aaron Brothers case, Your Honor.

The Aaron Brothers case which is cited in our brief and that one here has made it very clear.

And also, you might take a look at page 22 of our brief where we indicate its not in every case even if -- even where the employer may commit some unfair labor for practices, excuse me I'm getting away from this thing.

Even where the employer may commit some unfair labor practice when he refuses to accept these cards --

Justice Byron R. White: Well -- well if the key then Mr. Manoli that he has no right or rather the Board will not recognize that he should not be concluded by cards except in situations where there some kind of unfair labor practice that is connected with his refusal to --

Mr. Dominick L. Manoli: Yes.

Justice Byron R. White: -- the Court recognition based on current --

Mr. Dominick L. Manoli: That's right.

Words contemporaneous, contemporaneous with refusal upon --

Justice Byron R. White: And even -- and even then his right to insists on election is lost only, if I understood you, if his unfair labor practices of -- are of a serious nature?

Mr. Dominick L. Manoli: Yes, sir.

Yes, sir.

Justice Byron R. White: And is that what this case is all about?

Mr. Dominick L. Manoli: That's what we think is the narrow issue as we see that's presented in this particular case because I didn't get through with my facts.

Justice Abe Fortas: Well, Mr. Manoli, --

Mr. Dominick L. Manoli: But I think I can skip those from --

Justice Abe Fortas: Alright.

Mr. Manoli, this so I could be sure that this into the bench, I heard you correctly.

Mr. Dominick L. Manoli: Yes, sir.

Justice Abe Fortas: The cards are obtained by the Union.

Mr. Dominick L. Manoli: Yes.

Justice Abe Fortas: The employer says, I won't recognize these cards, and he petitions for an election.

No acts of -- no unfair labor practices intervene.

Now, what happens between the time that the Union submit its cards and the time the election is held.

Does the employer have to bargain with the Union then --

Mr. Dominick L. Manoli: No, sir.

Justice Abe Fortas: -- or does he not?

Mr. Dominick L. Manoli: No, sir.

Justice Abe Fortas: And you're saying, he does not have to bargain.

Mr. Dominick L. Manoli: No, sir.

He does not have bargain.

Justice Abe Fortas: I didn't get that either.

Mr. Dominick L. Manoli: He can wait for the election.

And again, I want to emphasize Your Honor that of course this is the case in which has been no misbehavior that kind that I'm speaking about in the --

Justice Abe Fortas: Well, I said that.

I said that --

Mr. Dominick L. Manoli: Yes.

Justice Abe Fortas: But I didn't understand that from your brief either?

Mr. Dominick L. Manoli: The -- no, there's no obligation of bargain.

If the Union confronts with the cards, under the Board's view of the law, the employer can say, I want to go to an election until that election --

Justice William J. Brennan: Did in anytime he ask for as long as the designated one say, I want --

Mr. Dominick L. Manoli: The one election that he doesn't wish to rely upon cards.

Justice William J. Brennan: Supplemental to what is that.

Assuming the employer here so that they can't (Inaudible) authorization letter.

Mr. Dominick L. Manoli: Yes, sir.

Justice William J. Brennan: Does the employer have to same right in that context (Voice Overlap)?

Mr. Dominick L. Manoli: Yes, he does.

He does and there is --

Justice William J. Brennan: Same right or free speech?

Mr. Dominick L. Manoli: He has the same right or his speech.

Justice William J. Brennan: Say this is much but no more than (Inaudible).

Mr. Dominick L. Manoli: That's right.

Justice William J. Brennan: And that's the Board's position?

Mr. Dominick L. Manoli: That's the Board's position.

Now, of course what this free speech -- what isn't free speech -- you will --

Justice William J. Brennan: What is that?

Mr. Dominick L. Manoli: -- you will hear more of that as in the Sinclair case.

But he is the Board will permit him to speak his speech to the employers who are trying to dissuade them not to vote for the Union, not to support for the Union --

Justice William J. Brennan: Or not to sign out authorization card.

Mr. Dominick L. Manoli: Or not to sign out authorization card, that's right.

He can do that.

Justice William J. Brennan: I don't like you keep repeating myself --

Mr. Dominick L. Manoli: Yes, sir.

Justice William J. Brennan: -- with this -- at least I think (Inaudible).

Now, I correctly understand the Board's position to lead that the only time that an employer is not bound with the Court's decision based upon cards and the other situations of private election in that situation which you (Inaudible) of serious unfair labor practice.

Mr. Dominick L. Manoli: That's correct.

With one – may I just add a very small fact on to that kind of case?

It really doesn't -- but in order to be completely accurately.

The Board had a case in which the employer when the Union demand recognition on the basis of the cards.

He did not question the cards.

He did not raise any question about this majority but he refused to bargain with the Union because he says he thought.

He thought that he was not subject to the Labor Act.

He was not subject to Labor Act.

Subsequently, as an afterthought you might say, he said well, I don't want to recognize you because I don't rely on cards.

That's really an off beat kind of a case.

In that particular case, the Board would not permit the employer to come up -- after having refuse to bargain with the Union on the basis of this that he did not come under the Act would not permit him to resurrect or inject into the picture, his good faith doubt of the Union's majority status.

But as I say that's a kind of an off beat type of case but your statement what I -- Board's position today is correct Mr. Justice Brennan.

Justice William J. Brennan: But the employer -- that the employer might say, I don't believe in cards and I don't think you guys you need to certify.

And then he just makes it --

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: -- and then -- then the Union will ask him about --

Mr. Dominick L. Manoli: Right.

Either he or the Union under the statute may ask for an election.

Justice William J. Brennan: (Inaudible) apparently not to be those committed before the Union asked him to recognize that it would be unfair labor practices afterwards?

Mr. Dominick L. Manoli: No.

There are unfair labor practices that may take during the course of the Union organizing campaign.

Justice William J. Brennan: But even that they did.

That the first they ever heard to your campaign was (Inaudible)?

Mr. Dominick L. Manoli: Yes.

And what's equalizing --

Justice William J. Brennan: And he said, “I want an election.”

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: And then he goes to commit some unfair labor practice by the same rule?

Mr. Dominick L. Manoli: The same rule applies.

If he commits so serious unfair labor practice then that the Union has a majority of the cards which are otherwise valid.

He will be subject to a bargain Your Honor.

Justice Thurgood Marshall: Well, is there any magic in what words he says when he rejects him?

Mr. Dominick L. Manoli: No, I don't think so Your Honor, but the Board has never had the case in which the employer just said when the Union asked him to a -- to bargain and to recognize it and say, “Go away”, and said no more than that or said, “To go away and I want an election.”

Usually of course, with your case where the employer will say, “I don't trust cards.

I don't think they are reliable.

I think we have to go an election.”

But although the Board is not dealt with the first case, I don't think that any meaningful distinction can be drawn between two cases.

Justice Thurgood Marshall: Well in these cases here, there's nothing on the language that was used to reject in the cause.

Mr. Dominick L. Manoli: Sir?

Justice Thurgood Marshall: There is nothing significant about the language in these cases that was used in rejecting the cause, is that right?

Mr. Dominick L. Manoli: Well, I think you will find without spelling out which particular case in which the employer was suppose to or so as he did say.

We don't want to rely upon cards.

We want to go to an election.

Justice Thurgood Marshall: Right.

Mr. Dominick L. Manoli: -- and in another I think there were two of those cases.

There were -- another -- one of these cases here where the Union actually put that authorization cards in front of the employer.

The employer took a glance out and then he says.

He said, “I don't want to go on the basis of cards.

We want to go on election.”

So as I say, I wouldn't draw any narrow distinction between where the employer may not be articulate enough to say, “Well, look I've heard all the story, all the stories about cards not being very reliable.”

But if he simply says, “I want to go to an election.

I don't -- I just -- that's I think the way union should establish his majority status is by election.”

Then I think that the Board will permit it.

The Board will permit him to refuse to bargain without union to recognize it --

Justice Byron R. White: Or even if he said, “don't waste my time, go to an election.”

Mr. Dominick L. Manoli: Yes, I think so.

I think so.

The -- well, I will not -- I think we've pretty much got in the facts of these of cases out, so I won't spend any more time with that.

I've already indicated what the Fourth Circuit's opinion is as the unreliability of these cards.

Now, I want to go into the two arguments that I think ought to be brought out in connection with these cads.

The -- our analysis of course begins with Section 85 of the Act.

Section 85 of the Act makes unfair labor practice for an employer to refuse to bargain with the representative of his employees as defined in Sections 9 (a) of the Act.

Section 9 (a) of the Act in turn defines a representative as one which has been designated or selected by a majority of the employees in an appropriate bargaining unit.

Section 9 (a) does not specify, it does not specify how the employees will designate or select their employees and both under the original Wagner Act as well as the present Act.

The Courts of Appeals had consistently recognize, had consistently recognize that a union could establish its majority status not only by means of an election but also by other means including, including authorization cards.

And this Court in the Arkansas Flooring case which was decided in 19 -- of some nine years, some nine years after they Taft-Hartley amendments of 1947 and I'll come to those amendments in just a moment.

The Court in that particular case said that a union may establish its selection that an election was not the only means for a union to establish its representative status but that it could do so by other means including authorization cards.

Now, the legislative history of -- the 1947 amendments on which the court below heavily rely for its contrary view -- for its contrary review, we submit, we suggest that it does not bar.

It does not bar reliance upon authorization cards as proof of the Union's majority status.

I might say that the court below is the only one that the Court of Appeals and frankly, all the Courts of Appeals have had this problem that the law -- that the Court below is the only one that interprets the 94 -- 1947 amendments to bar, to bar the use cards for the purpose of establishing a union's majority status as a predicate for bargaining order under Section 85 and it's the only Court that has set that only that the Union must establish his majority status -- can only establish his majority status as a predicate for bargaining or only via the election root.

Justice Potter Stewart: May I ask you Mr. Manoli just --

Mr. Dominick L. Manoli: Yes, sir.

Justice Potter Stewart: -- out of ignorance.

Prior to 1947, prior to Taft-Harley Act, there was no provision for an election at the request of the employer.

Mr. Dominick L. Manoli: That's right.

Justice Potter Stewart: Am I wrong about that?

Mr. Dominick L. Manoli: Yes.

Justice Potter Stewart: Or right about that?

Mr. Dominick L. Manoli: Yes, that's quite right.

Justice Potter Stewart: But there -- was there in the old Wagner -- in the Wagner Act up until 1947 provision for Board supervisor elections at the request of the Union?

Mr. Dominick L. Manoli: Under the Wagner Act, the Wagner Act made no provision as Your Honors indicated for an employer to file a representation petition.

It was the Board's practice in those days to entertain a petition from an employer if two or more unions --

Justice Potter Stewart: Yes.

Mr. Dominick L. Manoli: -- if two or more unions were make -- demanded recognition.

In that case, the Board would entertain -- would entertain the election, the petition --

Justice Potter Stewart: Although, there was no explicit statutory authority?

Mr. Dominick L. Manoli: Sir?

Justice Potter Stewart: Although, there was no explicit statutory authority?

Mr. Dominick L. Manoli: No explicit.

It made no provision.

Justice Potter Stewart: Right.

Mr. Dominick L. Manoli: It was completely sudden, it made no provision the 47 amendments did take care of that particular problem because under the 47 amendments an employer is now permitted to file his representation petition whether its one or more unions -- one or more unions that --

Justice Potter Stewart: The predicate for that however still you have -- it has to be a demand on the employer by a union --

Mr. Dominick L. Manoli: Yes.

Justice Potter Stewart: -- representative --

Mr. Dominick L. Manoli: But that's right.

Justice Potter Stewart: -- at least one union.

Mr. Dominick L. Manoli: That's right.

Justice Potter Stewart: And prior to 1947, was there explicit statutory provision for Board supervised elections at the request of a union?

Mr. Dominick L. Manoli: The -- under the Wagner Act, there was a provision in Section 9 there which empowered the Board to ascertain whenever a question concerning representation arose to determine that question either by means of an election or partly in the exact language of the Wagner Act or by other suitable means, other suitable means for ascertaining the employee's wishes.

Again, the 47 Amendment knocked that part of the Act.

By other suitable means and the 47 amendments made up board election the sole basis for a formal board certification. Of course, a board bargaining order is to be distinguished from the Board certification which is use following --

Justice Potter Stewart: What was the practice of these prior 1947, were there many elections?

Mr. Dominick L. Manoli: Yes, there were.

There were elections.

I thought Your Honor was going to asked me, did the Board certify unions since all the suitable methods were also available to it?

Did it often certify union on the basis of something other than election?

Justice Potter Stewart: Well, that was -- you framed my question better but that's what in my mind.

Mr. Dominick L. Manoli: The Board did that until 1939.

It would certify union on the basis of cards or some other.

Well, presume about, usually cards or maybe some other written proof of this majority status.

In 1939, the Board abandoned that practice but the Board however continued to certify a union on the basis of cards while the employer and the Union, both agreed to have a crossed check of the cards as against the payroll in order to determine the authenticity of the cards.

And in that particular case -- in that particular situation, the Board continued after 1939 not many of those cases, I suspect, I really don't know how many, but probably not many but nonetheless the Board would continue to issue certifications on the basis of that kind of a crossed check with both parties agreed that if the crossed check was correct, the certification would issue.

Again, if I may come back quickly to the 1947 amendments, the 47 amendments do no longer permit the Board certification to issue on anything but in an election.

The --

Justice Byron R. White: Mr. Manoli, isn't that the --

Mr. Dominick L. Manoli: Yes, sir.

Justice Byron R. White: But assume the Union's representative come to the employer and presents his cards (Inaudible) it says, well certainly it appears that you have a majority and I have no question about these cards and you still like you've got a majority of the workers with you but I want an election.

Mr. Dominick L. Manoli: The Board will permit him to go on election as long as he does not misbehave.

Justice Byron R. White: Well, the test you state in your brief --

Mr. Dominick L. Manoli: Yes.

Justice Byron R. White: -- is whether or not the employer has a good faith doubt about the majority status of the Union and that unfair labor practice is only a material element in judging whether or not he had a good faith doubt.

Now, you're stating --

Mr. Dominick L. Manoli: Sir --

Justice Byron R. White: -- a considerably different rule in that.

Mr. Dominick L. Manoli: If Your Honor -- if Your Honors --

Justice Byron R. White: Don't you think the rule you're stating is different?

Mr. Dominick L. Manoli: No, I think it's the rule we've indicated -- it's the Board rule in our process --

Justice Byron R. White: You mean that -- yes, but the employer says, I have no doubt at all about your majority status.

No good faith -- I have no good faith doubt --

Mr. Dominick L. Manoli: Let me --

Justice Byron R. White: I'm -- but I just want an election.

Mr. Dominick L. Manoli: The -- I think that under the Board -- let me put two different kind of cases in order to answer Your Honor's question.

Justice Byron R. White: Well, how about --

Mr. Dominick L. Manoli: Yes.

Justice Byron R. White: Just that --let me -- the employer does no more -- and he says.

He says explicit -- I have no good faith doubt that you have majority there but I'm not going to recognize you without an election.

I want an election.

Mr. Dominick L. Manoli: But is he saying, if I may put to your question in return.

Is he saying that I have no doubt -- I have no doubt that you have cards here signed by a majority --

Justice Byron R. White: I have no good faith doubt that you do.

Mr. Dominick L. Manoli: -- or I have no good faith doubt that these cards have been signed by majority of my employees but I still don't like cards and I want to go an election.

Justice Byron R. White: Well, he doesn't say, --

Mr. Dominick L. Manoli: The board --

Justice Byron R. White: --“I don't like cards.”

He says, “I want an election.”

Mr. Dominick L. Manoli: I think in that kind of a case, the Board will permit him to go on election.

Now, let me put this case --

Justice Byron R. White: Will permit him -- will permit him.

Mr. Dominick L. Manoli: Yes.

Justice Byron R. White: And they won't -- and they will not have met then say that he's been guilty of an 8 (a) (5) --

Mr. Dominick L. Manoli: Right.

Justice Byron R. White: -- violation.

Mr. Dominick L. Manoli: That's correct.

Justice Byron R. White: Now, that seems to me considerably different test that you got in your brief but you honestly accept it though.

Mr. Dominick L. Manoli: Let me put this case, --

Justice Byron R. White: Alright.

He wants to accept this test.

Mr. Dominick L. Manoli: Yes.

That's right.

Now, let me put this case.

Now, suppose that the employer when faced with these cards he said -- he would say, “I've made my own independent check of the employees and I discovered from my own independent check of the employees and independently of your cards that they do want to use their bargain representative.”

Now, that case there, he will be required to bargain with the Union even though he'd be not engaged in any unfair labor practice.

I want to make that clear.

Even the Fourth Circuit in that kind of a case would enforce a bargaining order where the employer has made its own independent poll of the employees and on the basis of that he's been -- he -- the employees have told him, “Yes, we want this union a majority of them.

Then even Fourth Circuit.”

The Fourth Circuit will --

Justice Byron R. White: You mean if he has a mass meeting of the employees said, “Do you fellows really want this union?”

And unanimously they say, “We sure do.”

Mr. Dominick L. Manoli: That's right.

Justice Byron R. White: And he has to recognize.

Mr. Dominick L. Manoli: That's right.

Justice Thurgood Marshall: You draw up --

Justice Byron R. White: Getting in there?

Justice Thurgood Marshall: You draw the line then between in saying that I have no doubt -- good faith doubt that these are the signatures.

And he is saying that I have no doubt that you do represent the majority.

You draw a line between those two.

Mr. Dominick L. Manoli: If he says, “Yes, I think you would draw a line between those two and I don't --

Justice Thurgood Marshall: If he says, I have no doubt that these are the signatures of 51% of my employees and I have no doubt that 51% of the employees want you but I still want an election.”

Mr. Dominick L. Manoli: If you put that way, it cannot insist upon an election when --

Justice Byron R. White: You say, he can or can not?

Mr. Dominick L. Manoli: He can not.

He can not insist upon election because there -- there he's not merely saying in the case of Mr. Justice Marshall has put to us.

He's not merely saying, I know you got cards here, but he's also saying that he knows.

He knows independently of the cards, independent of the cards of the majority of the employees have designated that union.

Justice Byron R. White: But it is only his evidence is the -- of his -- whether he knows or not is the cards.

Mr. Dominick L. Manoli: Yes.

Justice Byron R. White: I think he'd have the election.

Mr. Dominick L. Manoli: Yes, that's right.

Now, to go on with the legislative history that as I've indicated that the courts had uniformly -- had uniformly interpreted both the Wagner Act and Taft-Hartley Act to permit the use of cards for union to demonstrate its majority as majority status.

The 47 amendments did not change either Section 8 (a) (5) or which was 8 (5) in the original Wagner Act or Section 9 (a).

But in fact, the legislative history the 1947 amendments shows that the conference committee specifically rejected a house passed amendments which have -- where have relieve the employer, which we have a relieve the employer of any obligation to bargain with the Union, which based its majority status upon cards.

Congress specifically rejected that proposal which would have amended Section 8 (a) (5) so as to permit the Board to issue a bargaining order only when the employer was either refusing to bargain with the Union that he was currently recognizing or a union which have been certified by the Board after an election.

Congress says that it rejected that amendment, rejected that amendment and retained the language of Section 8 (a) (5), Sections 9 (a) which from the very beginning of this statute had been interpreted both by the Board, by the courts as permitting the use of cards to establish a union as majority status.

The 1959 amendments when there was discussion in -- when there is the legislative consideration of the 1959 amendments, Congress again took note of the fact that a Board -- that a bargaining obligation under Section 8 (5), that the issuance of a Board bargaining order was not dependent upon a board election.

It took specific note of Board cases where the Board had required an employer to bargain with the Union which was representative status was based upon cards and where the employer had engaged in misconduct which belies his good faith doubt.

Nonetheless, the 1959 Congress did not amend the basic language of Section 8 (5) or Section 9 which as I repeatedly offset is the basis for the use of cards as a means for establishing union's majority position.

Now, its argued -- as argued very strongly that cards because of the circumstances -- because of the circumstances that may attend their procurement are inherently unreliable and that an election is the only proper way of safeguarding the employees and permitting them to vote their convictions.

Alright, I would think that the fact that the Congress -- that Congress must have discounted this argument when in 1947, it rejected the House passed Amendment which was where relieved the employer of any obligation to bargain with the Union whose representative status was based upon cards.

Justice Abe Fortas: What was the Board's practice at that time -- at the time that Congress rejected that?

What was the Board's practice with respect to cards?

Mr. Dominick L. Manoli: The Boards was been using cards all along every since the beginning --

Justice Abe Fortas: I understand but there's been some shift in the certainties and the --

Mr. Dominick L. Manoli: Yes, sir.

Has been --

Justice Abe Fortas: -- new onsets and the --

Mr. Dominick L. Manoli: Yes.

Justice Abe Fortas: -- grace notes of all these?

Mr. Dominick L. Manoli: This shift has been I think primarily in this respect that the Board originally would say the employer had to come forward with some objective evidence to support his good faith doubt.

Today the Board has not insists that he come forward with the objective evidence.

In fact, the Board puts it burden of proving the employer's lack of a good faith doubt -- puts that burden upon the general counsel.

Justice Abe Fortas: What you're saying is -- are you telling me then that in 1947 --

Mr. Dominick L. Manoli: Yes, sir.

Justice Abe Fortas: -- and in 1959 when Congress, according to you, rejected in fact on the use of cards, the Board's practice was at those times was to accept the cards, require that the employer bargain on the basis of cards unless there was an affirmative showing of bad faith?

Mr. Dominick L. Manoli: Unless -- unless he had a good faith doubt based upon objective considerations.

I would like phrase it that way.

Justice Abe Fortas: Unless he had a good faith doubt based on objective consideration -- I withdraw bad faith.

Mr. Dominick L. Manoli: All right, sir.

The -- I'm afraid my time is up.

I have to leave the rest of it to the brief.

This is a case that might have needed a little bit more time.

Chief Justice Earl Warren: Very well.

Mr. Dominick L. Manoli: Thank you very much.

Chief Justice Earl Warren: Mr. Gore.

Argument of Albert Gore

Mr. Albert Gore: Mr. Chief Justice, may it please the Court.

I'm in the anomalous position of having to come to this Court to argue a case in conjunction with the Board with some slight differences and now in the position of having to take the position almost diametrical to that which has been argued today.

The statement of Board counsel in respect to the responses to the respective questions of Your Honors, do not in my view suggest the rule of that the Board is now following nor do they suggest the rule that the law lays doubt.

The inherent interpretation that can be predicated upon counsel's responses to the questions is that cards are unreliable because he argues as we do that there are two ways to gain recognition.

There are two ways to impose a duty to recognize upon an employer, i.e. the root by way of the election, and second, the root by way of authorization cards, unambiguous, unequivocal, signed by a majority of the employees without restrain or coercion.

It was this rule that was approved by Congress of 1947.

It is this rule which has been approved that by Congress in 1959.

It's this rule which Congress, there are certain members of Congress has -- have attempted to change unsuccessfully.

The rule as we see it is that when as in Gissel Packing the case in which we are the petitioner.

A majority of the employees signed clear and unambiguous cards saying, “I authorize this union to represent me in wages or wages hours and conditions of employment.”

And when this majority of cards are tendered to the employer, in one form or another and in the instant case, they were tendered to the employer himself not to third party.

And they say, “Here are the cards.

We represent the majority.”

At that point as we view the law, the employer is under a duty to recognize.

Justice William J. Brennan: When -- when they say, no, I want an election, under your view?

Mr. Albert Gore: Your Honor, he may not say no.

I want an election.

What he may do under the inherent construction of the Act is to file for an election himself and then if he engages in no conduct which is inconsistent with the free election and election can be had.

Justice William J. Brennan: You mean, he can -- may not insist upon the Union secret election --

Mr. Albert Gore: That is correct.

Justice William J. Brennan: But he may himself say, I won't now write the Board for an election.

Mr. Albert Gore: That is correct because --

Justice William J. Brennan: That's -- that sort of a --

Mr. Albert Gore: Well, Your Honor --

Justice William J. Brennan: -- through the Government's little deed?

Mr. Albert Gore: Well, no it is not.

Justice William J. Brennan: Uh-huh.

Mr. Albert Gore: It is not because there is in labor relations, the tremendous important factor of time --

Justice William J. Brennan: Well, the employer though wouldn't necessarily give the election?

Mr. Albert Gore: Oh, yes.

Oh, yes.

Justice William J. Brennan: Why would he give it?

Mr. Albert Gore: If the employer files a petition because the one Amendment in 1947 that has some relevance to this case.

Was the amendment in Section 9 (c) (1) (d) and the way this came up was that Congress was concerned with the fact that a union may come to an employer and demand recognition, and the employer was without any resource to do anything.

Unless the Union itself petitioned that the employer they said was on the -- had to arrive between so (Inaudible) this so -- of violating 8 (a) (2) that is recognizing the Union when indeed it may not represent the majority and for evidence of violating 8 (a) (5) where they did represent the majority.

Chief Justice Earl Warren: Mr. Gore --

Mr. Albert Gore: To get him -- if I may complete my answer Your Honor.

To get him off --

Justice William J. Brennan: Are you answering my question?

Mr. Albert Gore: Pardon?

Justice William J. Brennan: You are answering my question?

Mr. Albert Gore: Yes.

Yes.

Justice William J. Brennan: Alright.

Mr. Albert Gore: To get him off of that -- to get him off of that Congress gave the employer the right to file the petition, and when that petition is filed, that petition is process by the Board.

So, he can have as an election and he can't have a forthwith.

Justice Potter Stewart: But in the meantime as I understand you're submission, he is under a duty to bargain?

Mr. Albert Gore: Your Honor, at the time that he files his petition, he is not under a duty to bargain.

Justice Potter Stewart: Even though he had to represent him --

Mr. Albert Gore: Because that is the one exception that has been constructed into the Act by Congress.

Justice William J. Brennan: Well, then I come back with the --

Mr. Albert Gore: The only time --

Justice William J. Brennan: I come back to what I said to you earlier?

Mr. Albert Gore: Yes.

Justice William J. Brennan: As I understand it, what you're telling us is that in your view, the Union comes into the employer and although the employer may have no quarrel with you about the authenticity of signatures, no quarrel with you about the number of cards as representing the majority in the appropriate bargaining unit.

Nevertheless, I mean the employers not required to bargain if instead, he files his own petition with the Board requesting an election, is that right?

Mr. Albert Gore: That is correct.

Now --

Justice William J. Brennan: I don't see -- I just don't see how much difference there is between you and what Mr. Manoli told?

Mr. Albert Gore: Oh!

The difference is vast.

The difference is vast because under the administrative rules of the Board, when the employer files the petition, delays are not available to him like they are when the Union files a petition.

He can not -- he comes in and he must state what the appropriate unit is.

He must state what his position is in respect to illegibility.

He must -- he must take his position that all these methods and at that point the Union can say, “Yes, we agree.”

And immediately you have no pass.

Whereas, when the employer sits on hands and says, “You file the petition.

Whatever you say in your petition we're going to disagree with.

We're going to raise an objection be it frivolous or not on the appropriateness of the unit.”

You say who are the supervisors will object to who you say the supervisors are.

And under those circumstances, under the rules of the Board in a no issue case -- in a no issue case, an employer has at least 45 days in a no issue case to go to an election and in my experience we had have cases with petitions filed that have gone beyond the year from the time of the filing of petition before an election is held.

Justice Abe Fortas: But Mr. Gore let's see, the difference between your position and that of Mr. Manoli.

Is that Mr. Manoli say -- you say that after the Union presents the authorization cards to the employer.

The employer is under a duty to bargain with the Union unless and until the employer files a claim for hearing.

Mr. Albert Gore: Your Honor, that is correct with one clarification.

Justice Abe Fortas: Now wait a minute, is that right?

Mr. Albert Gore: Yes.

Justice Abe Fortas: Mr. Manoli says that when the Union presents the authorization cards to the employer, if the employer says, I don't believe in cards and I refuse to accept these cards.

And does not engage in unfair labor practice then the employer is not, is not under an obligation to bargain with the Union --

Mr. Albert Gore: Yes.

Justice Abe Fortas: Then there has to be an election presumably on the petition of the Union.

Mr. Albert Gore: That is his position, yes.

Justice Abe Fortas: Now, have I stated the difference between the two of it correctly?

Mr. Albert Gore: Yes.

But the difference as you stated seems small indeed they are -- apart.

Justice Abe Fortas: I'm not arguing whether it's small or not.

Is that the difference?

Mr. Albert Gore: Yes.

Yes.

Justice Abe Fortas: And you're taking the position that what Mr. Manoli told us is not reflected in the statute or in any Board decisions.

Mr. Albert Gore: That is correct.

Justice Abe Fortas: That there are no decisions by the National Labor Relations Board that sets forth with what Mr. Manoli has told us, is that right?

Mr. Albert Gore: Yes.

I have the red light.

Chief Justice Earl Warren: You may answer fully after this.

Mr. Gore, you may continue with your arguments.

Mr. Albert Gore: Alright.

I'd like to complete my answer to Judge Fortas' question.

Perhaps I was a bit presumptuous to suggest what the Board's position is as of today.

My -- I have suggested --now, what my views of the Board's decisions might be and what their position has been unquestionably Mr. Manoli is in a better position to suggest what the Board's position is as of today than I.

And then, if the presumption that I --

Chief Justice Earl Warren: How about yesterday?

Mr. Albert Gore: Yes.

Well, I think -- yesterday's position I thought I understood.

Justice William J. Brennan: Well, do you -- are there any cases that you know of which articulates the view that Mr. Manoli --

Mr. Albert Gore: Well, the Aaron Brothers case that Mr. Manoli suggested articulates a view that an employer may refuse to recognize under certain circumstances when there are no unfair labor practices.

It also articulates the view that the employer is -- has a duty to bargain impose upon him --

Justice Byron R. White: Unless he has a good faith doubt?

Mr. Albert Gore: -- even -- yes -- even when there are no unfair labor practices.

Justice Byron R. White: Yes.

Mr. Albert Gore: The Aaron brothers case does not sustain a -- as I understand it, I should say Your Honor, does not sustain the view that an employer can't -- can refuse to recognized blatantly.

The Union which has been designated by the employees merely because he says, he doesn't like cards.

I don't think that that suggested in the Aaron Brothers case.

Indeed if the Board takes that position, it is my view that this is clearly contrary to the law.

Now, I think the mistake that is made is that somewhere along the line, the Board has forgotten that we're talking about employees' rights.

This Court suggested that an employer may have a duty to bargain imposed upon him by authorization cards in the Arkansas Flooring case.

But when let's farther actually in the International Ladies Garments Workers Union against the NLRB, which I generally refer to as the Bernard Olton case.

In that case, there was a questioned violation of Section 8 (a) (2).

There the employer had recognized a union on the basis of authorization cards without checking the cards believing that there was a majority.

This Court and oh, I should add and there was no question that case.

None whatsoever but that the employer was in good faith in recognizing the Union.

This Court held that good faith did not satisfy prohibited conduct.

This Court said that the employees' rights were paramount.

This Court said that the employer has a duty when cards are submitted to it -- to countercheck the cards against payroll.

Justice Byron R. White: You're arguing in no matter what decision of the Board it is wrong.

Mr. Albert Gore: That is quite correct.

Justice Potter Stewart: Well, I should think in view of the ruling in that case, it would -- the employer's alternative duty to ask for an election.

Mr. Albert Gore: That is correct.

And if it does not it is violated the law.

Justice Potter Stewart: Well, no.

You told us just now that it could alternatively check the cards on its own.

Mr. Albert Gore: Yes.

Oh, yes.

It may check the cards.

Justice Potter Stewart: But it doesn't have --

Mr. Albert Gore: Ever since the cards and finds that there is a majority that recognizes.

Justice Potter Stewart: Well, what's --

Mr. Albert Gore: If it checks the cards and finds there is no majority, it shall not recognize.

Justice Byron R. White: Can he ask employees, did you sign this card?

Mr. Albert Gore: If there is a question about the -- if there is a question about the authenticity of the signature.

However, I would suggest Your Honor that the employer has within his means sufficient basis to check the authenticity of the signatures without going to the employers.

Justice Byron R. White: With the handwriting against it.

Mr. Albert Gore: Where with no W-2 forms and many other things that they have.

And if then if there still remains the question, there's no -- he has the right to ask the employees.

Justice Thurgood Marshall: Mr. Gore, do I understand your position that the when the Union comes in and says, here are the cards.

And the employer says, “Thanks, I'm going to ask for an election.”

No more.

That is if employer is in good shape?

Mr. Albert Gore: The employer is in good shape if he does not engage in other conduct which is inconsistent with the free choice of the employees.

This was an exception in this multi-facetted Act that was imposed by Mr. (Inaudible) --

Justice William J. Brennan: Now, in that respect Mr. Gore, do I understand you correctly.

The employer doesn't have to do anything when the Union comes with the cards, if he wants to say, “No, I'm going to file a petition for an election.”

Mr. Albert Gore: And does work with fire --

Justice William J. Brennan: That's right.

Mr. Albert Gore: Yes.

Justice William J. Brennan: And if he does that, he doesn't have to check cards.

He doesn't have to do anything?

Mr. Albert Gore: That is correct.

Justice William J. Brennan: He doesn't have to make any comment of any kind.

Mr. Albert Gore: That is correct.

Justice William J. Brennan: Yes.

Mr. Albert Gore: If he goes forward and files for an election and under those circumstances, the representation procedures of the NLRB are expedited.

He does not have within his power to control delay under those circumstances of free choice of the employees, assuming again that he does not engage inconsistent conduct thereafter.

Justice William J. Brennan: Is there a time limit for the completion of proceedings under employers' petition?

Mr. Albert Gore: No.

Justice William J. Brennan: Is there a time limit on the completion of proceedings under the Unions' petition?

Mr. Albert Gore: In fortiori.

Justice Byron R. White: And I take it that you would say that the employer has the same right of free speech at that time and the pending the election?

Mr. Albert Gore: Rights under that 8 (c) are protected at all times.

Yes.

Justice Byron R. White: And he could I suppose say to the employees, you may have signed these cards but that you certainly made a mistake and we are going to -- and when you heard the whole facts you'll vote against the Union.

Mr. Albert Gore: I don't know that I would accept the statement that you've made a mistake but I think that he would have a right to tell the employees that you have a right to freely to choose in the election.

Then you are not required to vote in accordance with the way you signed cards.

Justice Byron R. White: And here's why -- and here's why it would be better to vote against the Union?

Mr. Albert Gore: Oh, he would have a right to express his views --

Justice Byron R. White: Yes.

Mr. Albert Gore: -- again so that they do not contain within the veiled threats or promises of benefit which would affect the employees free choice.

Justice Hugo L. Black: May I ask you a question to see if I clearly understand --

Mr. Albert Gore: Yes, sir.

Justice Hugo L. Black: -- the difference between you.

As I understand, you take the position that when the employees give cards to the employer, he has a right under the law say, “Alright, I don't want to do this.

I prefer an election.”

Mr. Albert Gore: Yes.

Justice Hugo L. Black: Then he can answer to the election not -- the Union doesn't have to ask for it but he can ask for it.

And that after he asked for it, you have an election in which you have the same rights and free speech as both sides as though the Union had asked for an election.

Mr. Albert Gore: Correct.

Now, I should add that this is been the view of the Fourth Circuit before Logan Packing and it was expressed in the Florence Printing Company case an overnight express.

Chief Justice Earl Warren: Well, how may I -- may I ask about what the very difference there is between you and Mr. Manoli about who must initiate this election in the circumstances of Mr. Justice Black's question.

As I understood you, you said that it was then the duty of the employer to request election --

Mr. Albert Gore: Correct.

Chief Justice Earl Warren: -- and I understood that Mr. Manoli thought it was the employees which should go forward with demanding an election.

Mr. Albert Gore: I understand that could be the position of the Board, yes.

Chief Justice Earl Warren: You understand that to be the position --

Mr. Albert Gore: Well, of course Mr. Manoli I should say.

Chief Justice Earl Warren: I beg your pardon.

Mr. Albert Gore: I understand that is Mr. Manoli's position that there is not a requirement on the employer to file a petition under Section 9 (c) (1) (b) in order to avoid a refusal to recognize.

Chief Justice Earl Warren: Well, are there other decisions of the National Labor Relations Board pro or con on that subject in the past.

Mr. Albert Gore: This case --

Chief Justice Earl Warren: I beg your pardon.

Mr. Albert Gore: This case in Gissel Packing case, the Board accentuated the fact and rely the great measure upon the fact that the employer did not file a petition -- our petition under Section 9 (c) (1) (b).

I should however add that this case presents an addition numerous unfair labor practices engaged in by the employer including this charges which were obviously inconsistent with the -- a desire to give the employees a free choice.

But in this case, they specifically talked about the failure of the employer to file a 9 (c) (1) (b) petition.

Justice Hugo L. Black: Why did they say it was his duty?

Mr. Albert Gore: Pardon?

Justice Hugo L. Black: Why did they say it was his duty?

Mr. Albert Gore: Well, they said --

Justice Hugo L. Black: Well --

Mr. Albert Gore: They said that its failure to do this showed that he was not in good faith.

Is the position that the Board took.

Justice Hugo L. Black: Not his failure to file?

Mr. Albert Gore: Yes.

The failure to file a 9 (c) (1) (b) petition was an act of not in good faith.

Now here, of course is where we differ from the Board again and that we don't think that good faith is relevant.

Justice Hugo L. Black: Whether he has a right?

Mr. Albert Gore: So the question of a duty to recognize.

Justice Hugo L. Black: He has a right to file for an election, doesn't he?

Which the Board could knock him out?

Mr. Albert Gore: That of -- he has the right to file for an election.

That is correct.

Justice Hugo L. Black: Either one of them?

Mr. Albert Gore: That is correct.

Justice Hugo L. Black: So why shouldn't he file it if he is not satisfied with the card?

Mr. Albert Gore: I think he should but he does not Your Honor and he does not because he gains time by not filing.

He gains time to engage in all kinds of conduct that if -- a conduct which can be viewed as being illegal and conduct which we never learned about.

Chief Justice Earl Warren: Do you think it's crucial for us to find in this case whether the obligation in those circumstances is on the employer or the Union to file for the election.

Mr. Albert Gore: I think it's crucial to find that when the employer does not file such a petition on the mere tender of cards, the majority cards, the employer has violated his duty and has refused to recognize and thereby has violated the employee's rights in designating their bargaining representative.

Chief Justice Earl Warren: And the only way you can relieve himself of that is through demand an election?

Mr. Albert Gore: By filing a petition on its own.

That is correct.

Chief Justice Earl Warren: Yes.

Yes, yes that's absolutely correct.

Mr. Albert Gore: Yes.

Justice Abe Fortas: Mr. Gore --

Chief Justice Earl Warren: You and Mr. Manoli are in distinct disagreement on that are you?

Mr. Albert Gore: Apparently.

Justice Abe Fortas: Mr. Gore isn't that possible to dispose of these two cases without reaching most of the questions you've been discussing.

Mr. Albert Gore: Yes.

Justice Abe Fortas: That is to say, as I understand it that these in both of these cases, the Board has found affirmative acts which the Board says constitute unfair labor practices.

Now, it is conceivable I suppose to decide these cases on the basis that where the employer engages in affirmative positive acts of unfair labor practices.

Then, the employer is not justified in refusing to proceed to bargain on the basis of the authorization cards?

Mr. Albert Gore: That is correct.

Indeed the -- it was that aspect of the case that I intended -- originally intended to address my attention to the Court.

Justice Abe Fortas: Or was that aspect of the case that I got out of the briefs and then we heard a lot of things that started of this course.

Mr. Albert Gore: Thank you.

If you'll excuse me I wish to save some time for rebuttal for issue.

Chief Justice Earl Warren: Mr. Jenkins.

Argument of John E. Jenkins, Jr.

Mr. John E. Jenkins, Jr.: May it please the Court.

Perhaps it would be helpful to the Court having heard this general discussion of the principles that are involved in the issues in this case.

If we take Gissel as an example from a factual standpoint and see how the application of these principles came up with one little sausage maker back in the hills of West Virginia.

Back in the 1960's about 1961, this union started a massive organization campaign in the retail food industry there and it attempted to organize the Logan Packing Company, the Gissel Packing Company and many other companies.

Petitions were filed, cards were taken up and the Union claimed that had a majority of the employees.

And in 1961, the National Labor Relations Board came in, pitched its tents in this company premises, in order the employees in to vote without the President of the company hanging over their shoulder or without the Union organizer paying over their and a free expression of their wishes.

Justice Potter Stewart: On whose petition was that?

Mr. John E. Jenkins, Jr.: Among the petition of the Union.

Justice Potter Stewart: In the Union.

Mr. John E. Jenkins, Jr.: And when this occurred and the Union having represented as it must have been a necessity that it had a majority because it had demanded recognition before that in these cases.

The employees and all of these companies rejected the Union.

Three or four years past and the Union was still under great pressure from its clients William P. Krueger and the Big Chains to organize this industry.

This was no spontaneous rising with union interest of the employees in this companies and they started in with the new technique which the Board had developed for them that is on trial before your -- this Court today, the authorization card technique.

And in January of 1965, they contacted Gissel, my client, and said, “We represent the majority of your employees bargain with us or we'll file unfair labor practices against you.

We got some cards.”

Now, Gissel people had been down this road before.

They knew these cards were unreliable.

They had knew the propensities of this union to overstate its claim or its case of representation.

Justice Potter Stewart: Had there been cards back in 1961 or just claims?

Mr. John E. Jenkins, Jr.: There had been cards submitted by the Union to the Board as a prerequisite to getting the election.

There had not been authorization cards as I understand it submitted to the company, Your Honor.

And so, the company immediately responded to this request and they said this, “We don't have any confidence in these cards.”

Secondly, why not let's get this thing settled properly by a fair and honest election, and wrote the Union a letter and asked them to petition for an election.

Now, it is an act of complete futility for an employer in these circumstances to file a petition for election.

We did it in Sehon Stevenson, it was refused.

We did it in Davis Wholesale, it was refused.

We did it in Logan Packing Company, it was refused.

In Gissel, the company wrote a letter to the Union and invited them to file the petition and --

Justice Byron R. White: And Mr. -- and Mr. Manoli says, that when the employer asked them when they'll -- he'll get it.

Did you understand him to say that?

Mr. John E. Jenkins, Jr.: I certainly did and its most and like.

Chief Justice Earl Warren: You did ask and you didn't get it?

Mr. John E. Jenkins, Jr.: We -- I asked time and again, and we did not get it.

Justice Hugo L. Black: In this case?

Mr. John E. Jenkins, Jr.: No, sir.

In this case, we decided to try a different attack we thought maybe the Union has more persuasive authority with the Board than we do.

Let's write the Union a letter and suggest a quick consent election and maybe if they petition they can get it because this is what we want.

Of course, they didn't want an election because they knew they didn't represent a majority of this people.

Justice Thurgood Marshall: But if you'd ask an election --

Justice Hugo L. Black: Didn't you file it any how?

We can --

Mr. John E. Jenkins, Jr.: We thought it was a few --

Justice Hugo L. Black: It was a question passed on?

Mr. John E. Jenkins, Jr.: We feel -- we thought it was futile act Your Honor and in Logan Packing Company, we did file the petition and it was thrown out in Davis Wholesale Company currently in the Court of Appeals for the DC Circuit, we filed it and it was thrown out --

Justice Hugo L. Black: Why was it thrown out?

Mr. John E. Jenkins, Jr.: They said it, we're going -- you're going to have to honor those cards.

You've got to accept --

Justice Byron R. White: Anything more behind it than that, was it?

Mr. John E. Jenkins, Jr.: Yes, sir.

There were collateral. Unfair labor practices of the company involved of supervisors of the company.

Yes, sir.

Now --

Chief Justice Earl Warren: That might not make it necessarily futile act for you to ask where there were not, would it?

Mr. John E. Jenkins, Jr.: I don't know.

It is --

Justice Hugo L. Black: What is -- gets him.

Have you been guilty of any unfair labor practice?

Mr. John E. Jenkins, Jr.: Pardon sir?

Justice Hugo L. Black: What?

Mr. John E. Jenkins, Jr.: Pardon sir?

Justice Hugo L. Black: Had you been guilty of any unfair labor case -- practice in this case?

Mr. John E. Jenkins, Jr.: The Board so found.

Yes, sir.

State coercive statements of some people -- they didn't like the Union expressions of opinion which the Board found were coercive and unfair labor practices.

Yes, sir.

Now --

Justice Hugo L. Black: When did they found that?

Mr. John E. Jenkins, Jr.: They found that as part of this case which is here now in which they found that the company had committed some other peripheral unfair labor practices and that it had a duty to bargain with the Union on basis of these cards alone.

Justice Hugo L. Black: Well, that was on the card issues.

Mr. John E. Jenkins, Jr.: Yes, sir.

Justice Hugo L. Black: Did you have fraud on an election before that hearing was held on that unfair labor practice?

Mr. John E. Jenkins, Jr.: The -- the hearing Your Honor was all combined in one hearing.

The election and card question and the unfair labor practices were all in one hearing.

We did not ask for an election.

In this case, we wrote a letter to the Union when the demand was originally made we're suggesting that they petition for an election in this case.

Justice Hugo L. Black: But that was the only way you asked about it?

Mr. John E. Jenkins, Jr.: Yes, sir.

Because you see Your Honor, we felt and we believe the law so provides.

If you read Section 9, it never says in there that the employer must petition.

Justice Hugo L. Black: But it doesn't say much.

You said it can if you want to.

Mr. John E. Jenkins, Jr.: It's a right that he has but certainly he's rights in the matter should not be determined until whether he file, initiates a petition of the Union.

The Union is the one that is asking for recognition.

The Board had uniformly --

Justice Hugo L. Black: Not if there's one declining to give it to him?

Mr. John E. Jenkins, Jr.: Pardon sir?

Justice Hugo L. Black: The Company is the one that's declining to give it to them.

Mr. John E. Jenkins, Jr.: This is true.

Then if the -- if the Union then still wants recognition, they have this avenue open to them to go and ask for an election if they want it.

We simply suggest it to them in this case if they do this.

Chief Justice Earl Warren: The Board found here did it not that you -- the company had been guilty of unfair labor practices before any presentation of these signatures?

Mr. John E. Jenkins, Jr.: Yes, sir.

They were on both sides chronologically.

Chief Justice Earl Warren: I beg your pardon?

Mr. John E. Jenkins, Jr.: On both sides chronologically.

Most of the alleged unfair labor practices occurred subsequent to the dates on this authorization cards.

Chief Justice Earl Warren: They are told that if they got talking to Union men, you blank the blank things will go, didn't they or didn't they find that coerced --

Mr. John E. Jenkins, Jr.: Evidence to that effect then that Board accepted it.

Yes, Your Honor.

Chief Justice Earl Warren: That is before the cards were submitted.

Mr. John E. Jenkins, Jr.: No, Your Honor.

The -- the cards were submitted and then statements were made.

I'm not sure in my mind about the chronology of each of these incidents that you're talking about there they were all and relatively the same general period of time there.

Justice Thurgood Marshall: Did I understand you correctly to say that your client wanted an election?

Mr. John E. Jenkins, Jr.: Yes, Your Honor.

Justice Thurgood Marshall: But didn't want to ask for it?

Mr. John E. Jenkins, Jr.: No, sir.

We wrote a union -- a letter to the Union asking them to ask for it and suggesting it.

Justice Thurgood Marshall: But you knew you could have petitioned?

Mr. John E. Jenkins, Jr.: We thought it was a free --

Justice Thurgood Marshall: Whether or not the Board granted it, you have a right to petition for it.

Mr. John E. Jenkins, Jr.: We have -- we had a right to petition the election.

We did it in the companion cases.

The Board refused it and so we decided in Gissel to simply suggest to the Union do it.

Justice Thurgood Marshall: And did you also realize that if you petition and you continue these unfair labor practices, you would be in deeper trouble?

Mr. John E. Jenkins, Jr.: We -- I do not think Your Honor that that the two are related to each other.

You see, there is a question of who is going to represent the employees.

The whole structure of the labor law is to preserve the rights of employees.

They are not apprise over which a union and a company, fights.

The question of representation of them and there freedom of choice is one thing to be dealt with by the Board and there an employer or union's unfair labor practices are something separate and distinct from that.

Justice Thurgood Marshall: But I understand that once you ask for the petition for the election, you have all the freedoms of speech and then by all set.

Mr. John E. Jenkins, Jr.: Well --

Justice Thurgood Marshall: Right?

Mr. John E. Jenkins, Jr.: That is true.

As long as --

Justice Thurgood Marshall: But you didn't?

Mr. John E. Jenkins, Jr.: We -- we don't think --

Justice Thurgood Marshall: You want -- you didn't petition for your election and you did exercise which you thought was freedom of speech but we're actually unfair labor practice.

Mr. John E. Jenkins, Jr.: We hope Your Honor that the right of freedom of speech of any citizen of the country is not contention upon him filing a paper with the National Labor Relations Board.

We think he has that right inherently God given whether he files a petition or anything else.

Justice Thurgood Marshall: Despite what the law said?

Mr. John E. Jenkins, Jr.: Pardon sir?

Justice Thurgood Marshall: Despite what the law says?

Mr. John E. Jenkins, Jr.: I do not think the law says --

Justice Thurgood Marshall: What you really mean is that what you think is freedom of speech is one thing and what they are now law be thinks that freedom of speech is another thing, and what the law says freedom of speech is a very thing.

Mr. John E. Jenkins, Jr.: We have our differences of what freedom of speech is Your Honor.

Justice Thurgood Marshall: And so you choose to take the other side instead of petition.

Mr. John E. Jenkins, Jr.: We did not think that the law employers' rights of freedom of speech were conditioned upon him filing a paper of any kind with anybody.

Justice Thurgood Marshall: But why did you write to file the paper with the Union?

Mr. John E. Jenkins, Jr.: We wrote that to try to see if by this means, we could get this question resolved properly and fairly.

Justice Thurgood Marshall: Well, would it --

Mr. John E. Jenkins, Jr.: We --

Justice Thurgood Marshall: -- promptly, would the Union's petition get faster action in the employers?

Mr. John E. Jenkins, Jr.: We had tried the employer petition and failed and so we thought we try the Union side of it.

Justice Thurgood Marshall: You didn't try it in this case?

Mr. John E. Jenkins, Jr.: Pardon sir.

Justice Thurgood Marshall: How about the other cases?

Yes, you didn't try it here.

Mr. John E. Jenkins, Jr.: No.

This is true.

Justice Thurgood Marshall: Nice to know what it.

Mr. John E. Jenkins, Jr.: This is true.

But we don't think Your Honor that an employers' rights of what his conduct is or dependent upon whether he initiates a petition or whether a union initiates a petition and certainly not insofar as rights as fundamental as free speech.

Justice Abe Fortas: Mr. Jenkins, did the Union in these other cases where you did file a petition for an election.

Did they -- Board give any reason as to why that was not granted?

Mr. John E. Jenkins, Jr.: It's a matter of Board policy and that is the only reason -- it is the matter of Board policy that they want to merge unfair labor practices and representation questions together.

Confuse the two and not decide on representation questions until unfair questions are determined.

And so if --

Justice Abe Fortas: That sounds to me as if that's very likely what they said to you.

Mr. John E. Jenkins, Jr.: No, Your Honor.

That is my gloss on what they do.

Justice Abe Fortas: Now, what I like to know is what they say, give you any reason and if so what was that reason?

And then you may go ahead of course if you like with your gloss.

Mr. John E. Jenkins, Jr.: What they said was they wrote a letter and said since -- let me go back in this case to make it clear again.

Of course, we did not file a petition.

In Logan we did, so I'll have to answer you in terms of Logan, in Davis, in Sehon, and all the others.

In those cases, we filed the petition promptly.

In each of these cases, the Union as soon as they got the petition, they didn't want an election.

So they filed the unfair labor practice charges.

They know that by doing this automatically by the Board rule blocks the election and then, in the next return of mail, the letter from the Board Office in Cincinnati comes back to us in Huntington saying, “The Union has filed unfair labor practice charges against you.

Therefore, we are going to dismiss your petition for the election.”

And that's what we're doing.

It's their policy.

They equate the two of these things you see together.

Chief Justice Earl Warren: Mr. Jenkins, if -- as I understand that the reason you didn't apply for an election yourself here was because you thought it would be afforded to do it.

Now, if you had the rights in this case to file for the election yourselves, would you feel that was in accordance with the law and would protect your rights adequately?

Mr. John E. Jenkins, Jr.: No, Your Honor.

I do not -- I think it's a matter entirely of employer's discretion.

There is nowhere in the law in number one that says, “In order to get certain rights or to get certain protections, an employer must file a petition.”

Section 9 of the Labor Relations Act says nothing about who has to initiate this.

In fact, the Solicitor General of the -- here says, that he makes no difference who initiates the petition.

Only counsel for the Union takes this rather strange view that it makes a difference in that -- that the employer under peril are being found guilty of unfair labor practices must rush to Cincinnati and file this petition in order to protect his right of free speech.

That is --

Chief Justice Earl Warren: You don't think it would make any difference why would you object so much to initiating the election yourself.

You said you wanted it.

Mr. John E. Jenkins, Jr.: We did not object to it.

We simply didn't do it because we thought --

No, I said, why would you now in response to my question?

Chief Justice Earl Warren: Whether your rights would be protected in that manner, why would you fight for the other position if it made no difference?

Mr. John E. Jenkins, Jr.: Well, it seems to me that an employer's rights in this situation should not be dependent upon his filing a paper.

Either he has an obligation under the law to recognize this union or he doesn't.

And I don't see that his rights in the manner are dependent upon whether he files a paper or who files a paper.

What we're really trying to get to is a speedy resolution and the problem is how we do it over what these people really want.

That's a problem that we've got.

Justice Byron R. White: Would you -- would you think though that the question of the employer's unfair labor practices before or after the presentation of the authorization cards -- those unfair labor practices are relevant to deciding whether or not the employer has a duty to bargain?

Mr. John E. Jenkins, Jr.: I don't think that they are Your Honor.

They don't prove a thing.

This is the great assumption which goes without critical analysis in all of these.

Let me give some, for instance --

Justice Byron R. White: Mr. Manoli says the Board position is, the employer may say, “well I just don't like cards.”

And therefore, the employer may just refuse to bargain but I gather that position is that if he convicts him unfair labor practices, he does have a duty to bargain regardless.

Mr. John E. Jenkins, Jr.: That's what he says.

Justice Byron R. White: And --

Mr. John E. Jenkins, Jr.: This is what the Board is saying apparently.

But the two are two different animals.

There are different things.

Let me give you for instance facts --

Justice Byron R. White: But how could you ever have -- I suppose you would agree though that the unfair labor practices are decent basis for avoiding an election?

Mr. John E. Jenkins, Jr.: Yes, sir.

But this presume --

Justice Byron R. White: But when -- well, if you start committing unfair labor practices prior to an election or if you continue to commit them.

There is in any way of getting of a fair election?

Mr. John E. Jenkins, Jr.: If the election -- if the Board --

Justice Byron R. White: And say you take the next best thing cards.

Mr. John E. Jenkins, Jr.: No, Your Honor.

Cards even by the Board apparently now, it's inherent when the Board's argument this morning, that cards are inherently suspect and unreliable.

Otherwise, they couldn't justify an employer in rejecting them out of hand.

Justice Byron R. White: Well, yes but do you have got any better way of doing it because the employer forecloses it better way.

What are you going to do then?

Mr. John E. Jenkins, Jr.: Well, let's take the shoe in other --

Justice Byron R. White: Well, let's just have that how about that question.

Mr. John E. Jenkins, Jr.: Yes, sir.

I'm sorry.

The employer refuses to recognize the Union and then there are some -- and the Board says, on the basis of cards alone, you could assume -- we could assume that you feel only 49% of the employees really want the Union and therefore, you are justified in refusing recognition.

Then, let a supervisor of the company go out and make some coercive statements or let there be some other unfair labor practices and then the Board says, “Oh, oh, something has change.”

Now, you added this other ingredient and this proves to us that you didn't really feel that there was only 49%.

We now realize that you thought there was 51%.

Justice Byron R. White: Well, I think that you're willing to -- you're willing to confine your statements to the 49% case.

Mr. John E. Jenkins, Jr.: Either one.

I --

Justice Byron R. White: Or let say the 60% case when the employer says, “Yes, you have 60% of the cards and I've checked all the signatures on these cards.

They are perfectly valid.

Looks like you got it.”

But I still don't like cards, I wand an election.

Mr. Manoli says, the employer could have his election and then if he goes and commits unfair labor practices.

What then --

Mr. John E. Jenkins, Jr.: Well --

Justice Byron R. White: What then about being ordered to bargain on the basis of the cards?

Mr. John E. Jenkins, Jr.: Well, Your Honor what kind of unfair labor practices?

Are they unfair labor practices that --

Justice Byron R. White: Now, the kind that would void an election period.

Mr. John E. Jenkins, Jr.: But the problem is that in the Gissel case, there is no finding of fact anywhere to that effect.

Justice Byron R. White: Well, what about unfair labor practices that would void an election.

Mr. John E. Jenkins, Jr.: If they are unfair labor practices, then they should order the election, if the Union is not satisfied with the outcome of the election.

There is a procedure there where they can get to there very question that Your Honor raises.

That is things the employer did made an unfair election and therefore, the Board can set it aside.

It -- suppose on the other hand, the Union commits unfair labor practices when they are seeking recognition.

What happens then?

Does the Board say, “We're not going to let you in for a year because you have made an election unfair or impossible because of your 8 (b) (1) course of acts, oh no.

When the shoe is on the other foot, what is the Union -- what does the Board do?

The Board says to the Union, “You close to a little notice and say for 60 days you won't do it anymore and then at the end of 60 days, they go on and hold election.”

You see, it depends on whose ox is being gored.

I see that my time has expired.

Thank you.

Chief Justice Earl Warren: Mr. Hamlin.

Argument of Lewis P. Hamlin, Jr.

Mr. Lewis P. Hamlin, Jr.: Mr. Chief Justice, if the Court please.

If I may, I will first state the three or four things which are different about the General Steel case in the context of this combined hearing.

In General Steel, the Union lost an election.

The result of the election was later set aside and the entire election proceeding dismissed.

Even though, the Board had previously found and recorded in its order that a question concerning representation existed, a finding which would squarely place the case within Section 8 (c) under which the Board concedes that it must hold an election in order to resolve the questions of representation.

No new election has ever been held.

In this case, the Union was installed as in the other cases.

But in this case, it was installed after having lost a secret ballot election.

In this case, there were no 8 (a) (3) charges.

No one was alleged or found.

No individual was alleged or found to have been improperly discriminated against.

The Board installed the Union based entirely upon alleged coercion by the employer and alleged failure in good faith to recognize the Union upon demand.

This much more is perhaps different.

In General Steel, there was a demand by the Union for recognition.

But the Union made no offer of proof whatever.

I do not want to be taken as conceding that that makes a difference in this case, but I want the Court to be aware of it.

I think it makes this much difference or the Union fails to make any offer of proof of its position.

It indicates a lack of security on the part of the Union in making its demand and is certainly something upon which the employer can rely in deciding whether he believes, the Union really represents his people.

Now, of course it is --

Justice Abe Fortas: May I -- may I be clear --

Mr. Lewis P. Hamlin, Jr.: Yes, sir.

Justice Abe Fortas: -- on one thing.

There was a finding of unfair labor practice here by the Board, was it there?

Mr. Lewis P. Hamlin, Jr.: Yes, sir.

There were -- there were indeed and certain one of them isolated instances by (Inaudible) supervisors were not denied.

Justice Abe Fortas: Well, however that may be I take it that your statement a few moments ago indicates nothing more than that this particular types of unfair labor practices did not occur.

Nobody was actually discharged but the Board did find that there were other types --

Mr. Lewis P. Hamlin, Jr.: That is correct.

Justice Abe Fortas: -- of unfair labor practices.

Mr. Lewis P. Hamlin, Jr.: The impact of that factor as I see it goes to the extent of the unfair labor practices.

And if one is speaking of remedy, it goes to the question of whether or not a severe remedy can be justified in such a case which not only destroys the right of the employer to an election but destroys the right of the employee to an election.

Justice Abe Fortas: Let me see if I understand the issue that you're tendering.

Number one, I suppose your arguing that the compelling an employer to bargain with the Union on the basis of authorization cards is not justified by the statute in any of that.

Are you arguing that?

Mr. Lewis P. Hamlin, Jr.: I am arguing that the statute -- I think I would agree with you as you've stated.

Justice Abe Fortas: No, you're not agreeing with me.

I'm trying to find out what's your position is?

Mr. Lewis P. Hamlin, Jr.: I think I would agree with the formulation you made.

I may wish to qualify at this extent.

I would not assert that there is never a case where the Board has no authority as a matter of remedy to order an employer to bargain.

I do assert and I think the literature is abundant to support it that authorization cards are far too unreliable a basis on which to go and destroying these rights which the act was primarily set up to create.

Justice Abe Fortas: Well, forgive me for taking more of your time but I must endeavor and get a little sharper understanding of your position.

Do I now understand you to say that there are some limited circumstances in which in your belief the Board may properly require bargaining with the Union solely on the basis of authorization card?

Mr. Lewis P. Hamlin, Jr.: No, sir.

Justice Abe Fortas: Alright now, --

Mr. Lewis P. Hamlin, Jr.: I think there may be issues --

Justice Abe Fortas: What is your position?

Mr. Lewis P. Hamlin, Jr.: I think there may be limited circumstances where the Board may properly order bargaining without any election.

I think the evidence upon which the Board satisfies itself of union support by the employees ought to be much more than merely authorization cards.

Justice Abe Fortas: Now, for that --

Mr. Lewis P. Hamlin, Jr.: If ever that comes to that remedy.

Justice Abe Fortas: For example?

Mr. Lewis P. Hamlin, Jr.: For example --

Justice Abe Fortas: What citation?

Mr. Lewis P. Hamlin, Jr.: Sehon Stevenson which was one of the Fourth Circuit cases where the employer has satisfied himself independently that the Union has a majority.

I think I should agree.

The Fourth Circuit has suggested that were employer unfair labor practices are sufficiently aggravated that a rerun election with an expected fair result could not be held.

Even applying the remedies which are available to the Board not only in those circumstances should the Board impose bargaining without giving the employees an opportunity to express themselves?

Justice Abe Fortas: Now, do you agree with that proposition or are you challenging it before this Court?

That is to say, that there are -- there are circumstances in which the unfair labor practices are of such a character and are so pervasive as to justify the Board in requiring the employer to recognize the Union and to bargain with it.

Even though there's no election and even though let us say the basic evidence of union representation is the authorization cards.

Do you agree with that or disagree with it?

Mr. Lewis P. Hamlin, Jr.: I do not agree that the Board should be permitted to require this solely upon the basis of cards in any case.

Justice Abe Fortas: Even where there is gross --

Mr. Lewis P. Hamlin, Jr.: I think.

Justice Abe Fortas: -- the unfair labor practices are so gross and so pervasive as in the judgment of the Board and the court to make the holding of a fair election impossible?

Mr. Lewis P. Hamlin, Jr.: I go along with the fair election an impossible test.

Justice Abe Fortas: So that what you are --

Mr. Lewis P. Hamlin, Jr.: Just before that I'm insisting however that the cards alone are not --

Justice Abe Fortas: I understand that.

I'm not trying to make -- I'm not trying to complicate this thing.

I'm trying to clarify it.

Now, what I'm suggesting to you is that what should your position really comes down to urging this Court to adopt a standard based upon a differentiation, a qualitative differentiation as to the type and effect of unfair labor practices?

That is to say, there are some kinds of unfair labor practices which will make it alright in your submission to rely on the cards.

There are other types of labor practices such as the ones involved in your case that you suggest do not provide a basis or justifying the use of the authorization cards.

Mr. Lewis P. Hamlin, Jr.: If I may expand on that sir.

I think I can state my position.

I had decided in my own mind that I did not wish to attempt to defend the hardest case, if there is one.

Where the Board and the courts would be justified in concluding that the employer had engage in such outrageous practices that you could never within the reasonably foreseeable future procure them, reassure the employees, and hold a valid fair election.

In that case, I would be willing to concede that after the application of the Board's remedies to attempt to control the situation.

If it is necessarily concluded that you still cannot reassure this people.

Perhaps, there is a basis for further inquiry.

The district --

Chief Justice Earl Warren: As I understood it here -- as I understood it here throughout the Union six months organizational campaign vote before and after its demand for recognition the company's foreman and supervisors engage in extensive acts of coercion and intimidation.

Did the Court find -- did the Board find that?

Mr. Lewis P. Hamlin, Jr.: The trial examiner generalized to that extent.

If you count up the instances in which he makes any specific claiming of fact.

You'll find, of course, this is rough.

I think about 13 employees involved of the plan of 200 except for the anti-union speech which was made by this employer, in which among the testimony of four men out 200 denied by the employer.

He has said to have said, if the Union comes in.

I will negotiate and negotiate but I do not have to reach contract with.

And if you go out on strike, I can, on his testimony I can replace you, on the testimony of three or four employees and said, “If you go out on strike.

I have a right to end your job that's the end of it, a very close line.”

The speech is -- were based upon letters written for people, all of which passed amongst the trial examiner.

The specific unfair labor practices involved a very limited group and only three or four of those were undenied.

Chief Justice Earl Warren: Were some of them threatened, were discharged for engaging union activities?

Mr. Lewis P. Hamlin, Jr.: They were alleged to have been --

Chief Justice Earl Warren: It's true --

Mr. Lewis P. Hamlin, Jr.: -- in each of those, yes.

Chief Justice Earl Warren: -- to the satisfaction of the Board, wasn't it?

Mr. Lewis P. Hamlin, Jr.: That is true.

In the four cases I believe.

And again, there was some concession that one or two of those may have been adjust and that they were all by (Inaudible) supervisors.

One of them by the time the election came had been demoted to the rank and file status not for this reason for lack of competence.

We didn't even know about till this came along.

There isn't time here to review the legislative history of this act of course.

There hasn't been time on the other side.

We feel that the legislative history supports the view that Congress intended to make an election the own limit for the selection of a representative.

I think Congress intended probably more than I'm here contending for.

The statement in the House Report on Taft-Hartley resided a long list of what Congress regarded as deprivation of employee rights, to make their own selections.

Throughout the debates, there are references to the desirability of an election and no one disputed that even the senators who ultimately voted against the Taft-Hartley Amendments were so far as the record shows agreeable to the election principle.

Section 8 (c) was elaborately rewritten to provide for an election.

The Board's authority to do otherwise was removed from 8 (c).

The Board's authority to determine a representative in an unfair labor practice proceeding was stricken out of 8 (c), specifically so.

They had that authority before it was taken out with the Taft-Hartley Amendment as far as I know the Board has never reconciled that with its subsequent practice.

Now, the Board was already, before Taft-Hartley, engaged in conducting elections.

The Board had already decided that in most cases it would hold elections because it regarded elections as the reliable way.

The Board had already invented its good -- its good faith test for determining whether it was going to give an employer an election.

There is nothing in Taft-Hartley, nothing in the debates that I have found that shows that any intention on the part of Congress to confirm the Board's existing practice of counting authorization cards or to continue with that nor to confirm the Board's existing doctrine of good faith doubt.

There is a complete absence of any language to support the Board's present position.

It seems to me in summary it is perfectly clear from the congressional history that the intention was to make a change.

Basically though, the Board is here defending the course of action which it was already pursuing.

At that time, it is contending that no change occurred start talking -- and the only piece of legislative history it hangs it on is the failure of the House Bill amending 8 (a) (5) to emerge from committee.

That however I think is readily explained, incidentally, this legislative history is very well summarized in a brand new pamphlet issued by the Wharton School of University of Pennsylvania by McFarland and Bishop.

It just came out in February or January.

The House Bill I was referring to the effort to a mandate file.

The House Bill had gone too far, not only with the House Bill have amended 8 (a) (5) to require an employer to bargain only where there was an election.

It -- it destroyed the existing relationships based upon voluntary recognition and the minority protested against that.

The House Report said this, “If an employer is satisfied that the Union represents the majority and wishes to recognize it without it being certified on Section 9 he is free to do so.

As long as he wishes but as long as he recognizes it or when it has been certified, he must bargain with it.

If he wishes not to recognize the Union or having recognized it stops doing so, stops doing so, the Union may ask for an election.”

Well, that gave him a right to recognize today and withdraw tomorrow and I think Congress right agreed, there is no legislative history to show just what thoughts went into this, went into merged committees rightly agreed to not to go that far.

I believe my time is getting close but let me suggest this.

There are tremendous disadvantages in a reliance on cards.

There is lack of anonymity for the employees.

There is lack of transfer reflection.

They have no chance to think it over and change their minds.

There is a lack of chance to hear the other side.

It is totally inconsistent with the Board's Excelsior doctrine in which the Board is insisting that the employees be given a chance to hear both sides and consider this.

When you do have an election and later set is aside under the Excelsior doctrine the employer has been forced to supply the Union with all these information about how to contact employees where to reach them.

Even the Union, every opportunity for coercing them, if it can get to them, the Board has never adopted any system for policing these cards solicitations, never.

Justice Potter Stewart: There's no time limitation on the period over which these cards can be --

Mr. Lewis P. Hamlin, Jr.: None whatsoever.

Justice Potter Stewart: -- gathered is there?

Mr. Lewis P. Hamlin, Jr.: And in General Steel case, one of the Union's Solicitors admitted on cross-examination that he had personally dated over 50 of these cards before presenting.

That's at the very tail end to this record in the final pages.

He does it, even though he was not the person who solicited many of them.

Justice Potter Stewart: Our cards generally it's a matter of fact is dated?

Mr. Lewis P. Hamlin, Jr.: They must be dated before they're presented as I understand it.

Justice Potter Stewart: Well --

Mr. Lewis P. Hamlin, Jr.: If they are not, customarily unions don't date.

A stale card is no good and the Union does not want to stock card that looks stale.

Justice Potter Stewart: Who says the stale cards --

Mr. Lewis P. Hamlin, Jr.: In this proceeding, there were very little evidence of cards being dated at the time they were signed.

Justice Potter Stewart: But who is to decide that a stale card is no good?

Mr. Lewis P. Hamlin, Jr.: Sir?

Justice Potter Stewart: Why is a stale card no good under what provision of law?

Mr. Lewis P. Hamlin, Jr.: I don't recall where the Board has drawn the line.

The idea of course is that they are too stale --

Justice Potter Stewart: Well, I understand the idea but that's -- this was my question.

But there is any under board decision or practices?

Are there any time limitation before which your card is --

Mr. Lewis P. Hamlin, Jr.: I can't decide it -- I can't decide it to you.

I think it is either just months or a year, if the Board knows it.

If the Board knows but if the solicitors are the one who gathers the cards, how will the Board ever know?

The solicitor is he one who dates the cards.

Justice Byron R. White: Do you -- do you agree with the gentleman who preceded you that the practice of the Board is to dismissed employer's petition for an election if the Union has filed that unfair labor practice charge?

Mr. Lewis P. Hamlin, Jr.: The practice of the Board is to refuse to hold any election if there is unfair labor practice charge pending by any party.

Justice Byron R. White: Until --

Mr. Lewis P. Hamlin, Jr.: Yes, sir.

Justice Byron R. White: Until --

Mr. Lewis P. Hamlin, Jr.: Until it's resolved.

Justice Byron R. White: Until that's resolved.

Mr. Lewis P. Hamlin, Jr.: Yes, sir.

Justice Byron R. White: And what if it's resolved against the employer?

Mr. Lewis P. Hamlin, Jr.: If its one of these 8 (a) (5) card check cases and they order him to bargain based upon the 8 (a) (5) charge.

They will then dismiss the election petition and say, he is not entitled to an election.

Justice Byron R. White: If he is committed unfair labor practices in the course of checking out these cards before that a man he says, they will be no election, you must bargain.

Mr. Lewis P. Hamlin, Jr.: That's right.

And they will dismiss the election petition at that point having the bargain --

Justice Byron R. White: But if the Union asked for an election, they will hold it?

And if the --

Mr. Lewis P. Hamlin, Jr.: If the Union asked for an election.

They will hold an election --

Justice Byron R. White: And if they lose it, the employer will bargain anyway.

Mr. Lewis P. Hamlin, Jr.: If the Union asked for an election, the Board will hold an election.

As I understand the rule will not hold the election and face an unfair labor practice charge then -- then and this Bernel Foam type of cases --

Justice Byron R. White: But that they will decide the unfair labor --

Mr. Lewis P. Hamlin, Jr.: They will decide the unfair labor practice charge first.

They have done that --

Justice Byron R. White: Well, if they do that they don't -- why would they just order him the bargain if the charge is sustained?

Mr. Lewis P. Hamlin, Jr.: If they -- if the charge is sustain there customary practice is to assuming it's a fair charge, a bargain charge.

The customary practice is to order bargaining and to take the position that there is no more question of representation.

Justice William J. Brennan: What about the -- how does it come about then the Union sometimes asks for an election --

Mr. Lewis P. Hamlin, Jr.: Loses it and then comes back.

They do not file there charges although they know about it.

Justice William J. Brennan: Oh, until that --

Mr. Lewis P. Hamlin, Jr.: The Union does not file its charges until after the election is over.

That's what happened here.

There were no charges pending when the election was held.

Justice William J. Brennan: But well of course this is six months status let me tell you on that.

Mr. Lewis P. Hamlin, Jr.: That's right.

The Union --

Justice William J. Brennan: That's the charge now.

Mr. Lewis P. Hamlin, Jr.: The Aiello doctrine which formerly existed up until 1964 for a period of 10 years.

Under that doctrine, the Union if it new about unfair labor practices had to make up its mind whether or not those practices where sufficient to and fairly than election.

The Union was not allowed to go through a futile election.

Knowing about unfair labor practices --

Justice William J. Brennan: Well, if you --

Mr. Lewis P. Hamlin, Jr.: -- if the charges that would cost him to be set aside.

Justice William J. Brennan: It says, depending a request for an election and then -- but there are unfair labor practices --

Mr. Lewis P. Hamlin, Jr.: Pending a run off --

Justice William J. Brennan: -- now its pending -- pending -- does it make any difference what kind of a charge the unfair labor practice charge is as to whether or not they will go forward with an election?

Does it have to be 8 (a) (5)?

Mr. Lewis P. Hamlin, Jr.: No, sir.

Justice William J. Brennan: Just any kind of --

Mr. Lewis P. Hamlin, Jr.: Any kind of an unfair labor practice charge brought by the Union against the employer pending the election will resolve in the elections being held up.

Unless there union also files a way per se, we won't use these charges to set aside the election.

We'd like you to go on --

Justice William J. Brennan: Let's assume they hold the -- they resolve the unfair labor practices charges against the employer and then will they ordering to bargain automatically no matter what kind of unfair labor practice charge it was or does it depend on whether the unfair labor practice charge might obtain at the election?

Mr. Lewis P. Hamlin, Jr.: If the election is held and the Union loses, the election must be set aside before the Board will entertain an 8 (a) (5) charge.

Justice William J. Brennan: Now, what -- but I suppose there's a petition for an election.

Union files an unfair labor practice charge except the hypothesis that the charge does not necessarily bear upon the fairness of the election.

As I understand the practice, the Board hears the charge holding any action on the election petition.

Suppose it's found that the charge is sustained but that it is not conduct on the part of the employer that will interfere with the conduct of a fair election.

What does the Board do then?

Mr. Lewis P. Hamlin, Jr.: It goes ahead after the -- after there has been a chance to dissipate the effect of these unfair labor practices.

It goes ahead and holds an election, and that's what I am saying.

The Board ought to do in almost all of these cases.

Justice William J. Brennan: You know I'm just thinking of a situation, I suppose must have happen sometimes.

You have competing unions in the plant and the employer commits an unfair labor practice by let's say demoting.

One of those opponents of one the Unions but the Union that gets the cards is the other union.

And it's the one that then seeks recognition and the employer says, “No, I'll have a file election petition”, and he does.

Then there's an unfair labor practice charge in connection with the demotion of the employee active for the Union that lost out with the employee.

You mean, if they find in that situation that the unfair labor practice charge is sustained.

They'll not be in election involving the other union?

Mr. Lewis P. Hamlin, Jr.: The election will only be thrown off where it is an 8 (5) charge under which the Board ordered bargain.

If it is in the other sort of charge and if it's an 8 (1), 8 (3) charge, the Board will resolved that.

We'll require corrective action and we'll wait whatever --

Justice William J. Brennan: We'll wait?

Mr. Lewis P. Hamlin, Jr.: -- time is necessary to dissipate the --

Justice William J. Brennan: Even under situation that I suppose, hypothesis.

Mr. Lewis P. Hamlin, Jr.: I think so and then you have --

Justice Byron R. White: But then they will hold the election?

Mr. Lewis P. Hamlin, Jr.: You have posed a two-union situation --

Justice Byron R. White: But then they hold the election?

Mr. Lewis P. Hamlin, Jr.: Yes, sir.

Justice Byron R. White: They won't order him to bargain?

Mr. Lewis P. Hamlin, Jr.: No, sir.

Not merely on 8 (1), 8 (3) charge and should not and I say.

I think the Board's remedies are ample to control these situations, if the Court please.

The Board has the contempt power of the Court at its disposal.

It has a 10 (j) injunction built into the Act at its disposal.

It need not destroy the employee's right to an election or the employer's right to an election in order to control unfair labor practices.

I believe my time is over.

Chief Justice Earl Warren: Very well then.

Mr. Holroyd.

Argument of Frederick F. Holroyd

Mr. Frederick F. Holroyd: Thank you sir.

Gentlemen, you heard all the confusions here about the state of law in the hands of the experts here.

I think its little wonder that my client when approached by a union in light of all these and say, I have no comment.

And this is what he said --

Justice Potter Stewart: What he said, I have no what?

Mr. Frederick F. Holroyd: No comment.

Justice Potter Stewart: You can --

Mr. Frederick F. Holroyd: The Union presents to a company and I think we have to be realistic about this gentlemen.

We can get up on the levels that we like to speak and say that this is the way the law is and this is the way it ought to be but I think we've got to get down and put ourselves in the level of the employer standing there when the Union official comes out of the blue, presents cards to him as to what should he do and what can be do.

And I think we also have to put a more importantly, I think, we have to put ourselves in the position of the employee when the Union official comes to his home and says, “I'd like for you to sign a union card.”

The employee says for example, “What's this all about?”

The Union official says, “Well, we're trying to get in over the company.”

Well, the employee says, “Has everybody else signed?”

“Yes, mostly everybody else has signed.”

So he signs his name.

Or friend next door comes over and says, “Jim, how about signing this for me.”

So, he signs his mine.

The employee not fully understanding in a many instances not understanding at all what it is that he is doing.

The Board through its rules have limited the evidence which can be presented in the appellant court in this regard because the trial examiners will not even accept evidence as to the motive behind the signing of a union card.

In most instances absence that is, threats or coercions on the part of the solicitor of the card.

So, this is the basis of what we have gentlemen.

We have this cards that are signed and virtually any circumstances --

Justice Byron R. White: But what -- would you object the -- what objection which you have in Mr. Manoli's version of what the Board position is?

Where he says that the employer says, no comment, I want an election.

He need not bargain.

He can get an election when it asks, the Union asks for it.

Mr. Frederick F. Holroyd: Well, I'm going to ask for a printing of the record in that regard for -- from his remarks and present that to the next trial examiner that I have because that is the certain new to me --

Justice Byron R. White: Well, yes I know but that is what I -- let's assume that were the Board's position.

Mr. Frederick F. Holroyd: It is not the Board's position --

Justice Byron R. White: Let's just assume that it was.

Mr. Frederick F. Holroyd: -- assuming that it is.

Assuming that it is and I would say --

Justice Byron R. White: That's exactly what the Board would do in any case.

Mr. Frederick F. Holroyd: Alright.

Assuming that it is the position of the Board that if presented, the employer presented with a demand on the behalf of the Union.

The employer says, “Well, I don't think you represent the majority.

I'm going to file and let you petition.”

I think this is perfectly proper.

Justice Byron R. White: Well, he doesn't even need to do that.

You can say, “I'm just not going to bargain with you and wait for the Union to file.”

Mr. Frederick F. Holroyd: This is correct.

This is what has been said that he can do it.

Justice Byron R. White: Would this solve your problem?

Mr. Frederick F. Holroyd: Sir?

Justice Byron R. White: Would this solve your problems?

At least that to the kind you're talking about now?

Mr. Frederick F. Holroyd: If the employer says, I'm not going to do anything.

I think this would solve the problem to an extent.

I think this is not the answer though.

We're not -- I would like the Court to give us some guidance as to what to do here rather than to come up with a negative expressions because we're on the firing line here.

We don't know what really to do.

The Union doesn't know what to do.

The company counsels do not know what to do in this regard.

The client says, “The Union may have sit in my other room, what do I do?

Justice Thurgood Marshall: What doesn't company counsel know that the employer can ask for an election petition for one?

Mr. Frederick F. Holroyd: Yes, sir.

He should know.

He should know that the employer has a right to ask for an election but like Mr. Jenkins said, “Time and time, time and time again we've asked for these elections.

The Board almost administratively rejects our petition.”

The Union files an unfair labor practice charge, so where are we?

We have no right to appeal this administrative rejection on the part of the Board.

Justice Thurgood Marshall: But wouldn't she be in better shape if he did?

Mr. Frederick F. Holroyd: Would we better in shape than we did?

Justice Thurgood Marshall: Right now?

If you had petition, would you be in better shape?

Mr. Frederick F. Holroyd: Would I be in better shape?

Justice Thurgood Marshall: Yes, sir.

Mr. Frederick F. Holroyd: I think not.

No, sir.

Justice Thurgood Marshall: You think it's not over it?

Mr. Frederick F. Holroyd: I think that there's no question in my mind in these cases if we had filed a petition for an election that the Board would have rejected the petition based on the unfair labor practice of the Union which was found shortly after the -- a company conducted its investigations in these cases to determine whether or not the Union had a majority.

You've got to remember gentlemen in this one case, in the Heck's case, in Warehouse case, the Union came to the company.

They had 13 cards, there were 26 employees in the bargaining unit said, “We represent a majority.”

They did not represent the majority and the Board so held.

Now the next day, they came up.

They got another card then send a letter to the Union without relating the fact that they had secured additional card.

They send a letter to the Union or the company said, “Confirming our conversation of yesterday, we -- or last week, we demand recognition and bargaining rights.”

Well, nothing has come to the mind of the company which would indicate that the Union had later secured its bargaining rights.

Now, one more point that I think is very a significant gentlemen and that is this matter of good faith.

The mere fact that a company commits unfair labor practices before, during, or after a demand for recognition in my judgment has absolutely nothing to do with his state of mind in declining to recognize a union on his down for the Union represents the majority.

The Union says and the Board says that, if unfair labor practices occur after the demand, he could not have had good faith when he denied it.

This doesn't make sense.

Now, if you want to punish the company for this then this is alright.

This is a punishment.

But if you want to say that because they committed unfair labor practices, he did not have a good faith.

Then gentlemen, this is not sound reasoning.

Now, it is --

Chief Justice Earl Warren: How about they immediately fires or discharges all of those who are active in the Union?

Mr. Frederick F. Holroyd: He could still have a good faith doubt that the Union represents the majority and fire him.

Yes, sir.

Chief Justice Earl Warren: In this case, the day after the company was notified.

They fired the principal union there, didn't they?

Mr. Frederick F. Holroyd: They fired the man that the company was under the impression that he was a supervisor.

It turned out that the Board held it was not.

Chief Justice Earl Warren: They also told other employees that they not -- that they would lose their bonuses and the various other things if they persisted and they did take away at least one signature, didn't he?

Mr. Frederick F. Holroyd: Yes, sir.

But --

Chief Justice Earl Warren: Now, you don't need those then bear on whether its good faith or not?

Mr. Frederick F. Holroyd: Well, this is a good point Your Honor because --

Chief Justice Earl Warren: I thought so.

Mr. Frederick F. Holroyd: -- when the.

Now, when the Union in this case made a demand -- made its demand, it's over the man's recognition.

It did not represent the majority and the Board so held.

So the good faith bound to have been there because of the fact was there and nothing came to the company as I say which would indicate to the Union later mastered up another card to get it that one over one half.

But now, if you want to punish the companies because of their subsequent unfair labor practice by throwing this plum to the Union that is the employees and these are his rights, the National Labor Relations Board suppose to be protecting.

If you want to this plum to the Union as a punishment to the company then of course this is one thing.

But merely to say that there subsequent unfair labor practices negate the possibility of good faith and it is in the first instances to me does not sound reasonable.

Justice Abe Fortas: Well, I suppose that where you come out on this may dependent part on which proposition you stock with.

In one end it's possible to look at this problem on the assumption that the cards are valid and that they are operated effective to require the employer to recognize a union unless the employer in good faith doubts that they are authentic.

Now, that seems to be the position of the Board.

In other words, as they start with proposition of the cards, authorization cards are valid and effective unless there's some reason to challenge it.

Mr. Frederick F. Holroyd: But the --

Justice Abe Fortas: The other way to look at it is let me express you on the other side, is that the cards -- you start propositions -- cards are not effective and that it's only if the employer does something that makes an election.

The holding of a fair election -- holding of a fair election clearly impossible that the employer, only if the employer does something to make the election impossible.

Will the cards then be given some vitality and some life?

But as I understand it, that the Board's position as expressed by Mr. Manoli here is that the cards are effective to require the -- there acceptance and recognition by the employer unless he in good faith doubts that he has some basis for doubting in good faith their validity.

And it is not just the effect of the unfair labor practice on the possibility of holding a fair election.

Mr. Frederick F. Holroyd: Oh, it would be in my brief, I see my time is up, that cards are valid for the purpose of nomination but they're not valid for the purpose of election.

Justice Abe Fortas: And that's what makes this particular Board.

Mr. Frederick F. Holroyd: Yes, sir.

Justice Abe Fortas: Because the Board disagrees with you.

Mr. Frederick F. Holroyd: Yes, sir.

Thank you, gentlemen.

Chief Justice Earl Warren: Mr. Gore.

Rebuttal of Albert Gore

Mr. Albert Gore: Yes.

I just have a few brief comments I hope.

Justice William J. Brennan: Mr. Gore, before you start.

Is there any legislation pending bill on this?

Mr. Albert Gore: Yes.

I think there are at least one if not two bills in the Harper, one but --

Justice William J. Brennan: [Inaudible]

Mr. Albert Gore: Yes.

Justice William J. Brennan: Which would like disallow them?

Mr. Albert Gore: Oh, no.

No -- no.

I mean, in one case the pending bill would disallow them entirely, yes.

The (Inaudible) Bill would not disallow them as a matter of fact.

Justice William J. Brennan: How would it be?

Mr. Albert Gore: I'll give you a rundown on the --

Justice William J. Brennan: Oh, no.

We don't need it but it would --

Mr. Albert Gore: No.

It would they would honor it -- it would honor authorization cards.

Justice William J. Brennan: (Inaudible)

Mr. Albert Gore: And it would provide for an immediate election, a forthwith election if the employer filed a petition and did not engage unfair labor practice.

Justice William J. Brennan: Is that what at stake in this case or by the state?

Mr. Albert Gore: No!

Oh, I should hope not.

Justice Byron R. White: Can you distinguish between the time that would initiate the employer to request for an election and authorize the immediate Board of Advisory to take that (Inaudible)?

Mr. Albert Gore: I think first that that's a difficult thing to do in an abstract way.

Unquestionably in our case taking the Gissel Packing case where you had men discharged for union activities.

That vitiates the right for free election.

We have threats of discharge that vitiates the right for free election.

We have threats of plant shutdown or abandonment if the Union comes in.

That vitiates the right to a free election.

I think these are all things that we have in the Gissel case so that as far as our situation is concerned, I have no question that under any rule, be it the rule adopted by the Board or suggested by the Board --

Justice Byron R. White: Do you say that would be the (Inaudible)?

Mr. Albert Gore: I would say --

Justice Byron R. White: The possibility is there?

Mr. Albert Gore: That is quite right.

It's a matter of fact if -- in our brief, we suggest to the Court that there are many activities engaged in by employers that are not unfair labor practices that still affect and vitiate the free election.

Unfortunately, the law cannot be written which will be able to take care of all these things because of the position of the employee vis-à-vis the employer, the life and death aspect of the employer on the employee.

Justice Byron R. White: Especially now you justify the Board of bargaining vitiation of the election vis-à-vis the employer in order to bargain with the employer the basic content of the facts namely that the possibility of having a fair election is gone or do you say it really it should go back and say this bears on whether or not there's a good faith doubt of the --

Mr. Albert Gore: No, Your Honor.

Your Honor, I suggest that the law is that good faith doubt has nothing to do with it that the obligation to bargain is written into the law by Congress arises from the presentation of a majority of the cards in a refusal to recognize thereby brings in the obligation to bargain.

And in thereby --

Justice Byron R. White: Do you say a (Inaudible)?

Mr. Albert Gore: That is right.

That is the --

Justice Byron R. White: Let's assume he gets fired.

Mr. Albert Gore: Yes.

Under those circumstances it is when the employer engages in unfair labor practices which make a free election improbable.

Now, I would want to direct my attention very briefly to the comments of Mr. Jenkins.

The -- there were some arguments, the horrors of the record in respect to certain other cases, and in respect to what happens to petitions.

I would like to read to the Court from the decision of the Fourth Circuit in the Sehon Stevenson case which was called to your attention and that relates to the petition, it says as follows.

Chief Justice Earl Warren: You may have three minutes more of your --

Mr. Albert Gore: Thank you.

Chief Justice Earl Warren: -- it is taken up by questions.

Mr. Albert Gore: The employers' petition for an election was denied because of the pendency of the unfair labor practice charges.

A hearing held on those charges resulted in findings of violations of Sections 8 (a) (1), (3), and (5), and this is indeed what the fact is.

The Board will set aside the petition either it be a union petition or an employer petition, if the charges are valid on the other hand, if the charges are not valid, the charges are dismissed and the Board goes forward with the election.

And it's as simple as that.

Justice William J. Brennan: So the petition really held have a suspension in saying towards it is not?

Mr. Albert Gore: It could be.

As a matter fact, the petition under Board rules is in some 90 to 95% of the cases held in suspension.

There are a few unusual cases and the Terminals is one, Mars Incorporation is another, where the Board has gone forward in spite of the existence of unfair labor practices charges.

Justice William J. Brennan: And how do you elect to do it?

Mr. Albert Gore: Yes.

Justice William J. Brennan: And this is without the person's deciding the unfair labor practice?

Mr. Albert Gore: They kept going forward to make it clear they've gone forward with the processing of the representation case which they normally hold up and I do not recall a case where they actually held the election.

I think they wait until the charges are resolved one way or the other before the election is held.

But it is -- let me point out.

In 90 to 95% of the cases, the processing of the charges of that of the petition is held up pending the processing of the charges.

Now, I think that we ought to note that in Gissel Packing and I think in Heck's, I know less about General Steel Products, the cases involved serious and egregious unfair labor practices engaged simultaneously with the request to bargain and the tender of cards.

In Gissel Packing, several months before the Union tendered the cards but when the company knew the Union was on the scene, the company threatened the employees with discharge.

If it found that they had talked to union agents.

This threat of discharge continued from before the organizational activity began and continued from its inception to beyond the point when the demand was made indeed it.

There was a crescendo which followed the demand of the employer of the demand of the Union.

I would like to end by saying one thing.

It's clear that the purpose of the law cannot be to restore the wrongdoing to as good a position as he would have occupied before he engaged in such serious violations.

Thank you.

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NLRB v. GISSEL PACKING CO.. The Oyez Project at IIT Chicago-Kent College of Law. 12 February 2012. <http://www.oyez.org/cases/1960-1969/1968/1968_573>.

NLRB v. GISSEL PACKING CO., The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1968/1968_573 (last visited February 12, 2012).

"NLRB v. GISSEL PACKING CO.," The Oyez Project at IIT Chicago-Kent College of Law, accessed February 12, 2012, http://www.oyez.org/cases/1960-1969/1968/1968_573.