Linden Lumber Division, Summer & Company v. National Labor Relations Board – Oral Argument – November 18, 1974

Media for Linden Lumber Division, Summer & Company v. National Labor Relations Board

Audio Transcription for Opinion Announcement – December 23, 1974 in Linden Lumber Division, Summer & Company v. National Labor Relations Board

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Warren E. Burger:

We’ll hear arguments first this morning in 73-1231 and consolidated with 73-123, Linden Lumber Division against the Labor Board and the Labor Board against the Truck Drivers Union.

Mr. Come, you may proceed whenever you’re ready.

Norton J. Come:

Mr. Chief Justice and may it please the Court.

These cases are here on writs of certiorari to the District of Columbia Circuit, and they present a question which was left open by this Court in the Gissel Packing case in 395 US.

In Gissel, the Court sustained the Board’s authority to require an employer to recognize and bargain with a Union that based its claim to represent to the status on the possession of Union authorization cards where the employer had engaged in independent unfair labor practices that tended to preclude the holding of a fair election.

The Court found it unnecessary to decide whether a bargaining order based on cards or some other showing of employee support other than a Board election is ever appropriate in cases where there’s no interference with the election processes.

Warren E. Burger:

You say the Court left that open.

There wasn’t any occasion for the Court to address that question at all in Gissel, was there?

Norton J. Come:

Well, the Union had urge a broader position which is the equivalent of their position here and–

Warren E. Burger:

But it was outside the scope of the case in controversy then presented to the Court, wasn’t it?

Norton J. Come:

That is correct because, there, there were unfair labor practices which tended to preclude the holding of a fair election.

Warren E. Burger:

And that was the fulcrum of the decision.

Norton J. Come:

That was the fulcrum of the decision.

However, we believe that the rationale in the Court’s reasoning is relevant to the problem that we have here, as I will get to in a moment.

There are two Board cases here which were consolidate for purposes of briefing an argument in the Court of Appeals on the Board’s petition.

The first involves the Linden Lumber Company which manufactures prefabricated homes and the second involves Wilder Manufacturing Company, a manufacturer of cooking utensils.

The essential facts of both cases are similar and I’ll briefly sketch them out.

In both cases, the Union, the teamsters in Linden and the textile workers in Wilder, signed authorization cards from a majority of the company’s employees in a unit later found to be appropriate.

There are 11 out of 11 plus the card of 1 employee who was found to be a supervisor in Linden, and 11 out of 18 in Wilder.

The Union requested recognition, and in Linden, the company that request with a petition of the Board for a representation election.

In both cases, the company denied the recognition request.

In Linden, the company did so and refused to consent to an election on the Union’s petition because of its belief that supervisors had assisted in the Union’s organizational effort.

The card signers included Schaeffer and Marsh whom the company contended were supervisors.

The Board subsequently found that Marsh was not a supervisor.

That Schaeffer was, but that his conduct did not taint the Union’s majority.

In Wilder, the company refused recognition because of its belief that the unit was larger than 18, which was ultimately found to be the appropriate unit and, thus, the Union did not have a majority in the larger unit.

And, before the Board, there was a contest as to whether seven technical employees whom the company claimed should have been included in the unit were in fact in the unit.

The Board resolved that against the company.

In Linden, the Union withdrew its representation petition and, in both cases, the employees struck and established picket lines in front of the plant.

In Linden, 8 of the 11 card signers participated in this activity, at least at the outset, and in Wilder, all of the 11 original card signers did.

William J. Brennan, Jr.:

Mr. Come, may I ask–

Norton J. Come:

Yes.

William J. Brennan, Jr.:

If either employer, in these circumstances, had itsil– had itself a petition for an election, they would’ve been entitled to it?

Norton J. Come:

They would’ve been entitled to petition for–

William J. Brennan, Jr.:

Mr. Come, I think you took– as I remember, when Gissel was here, the Board told us that its view now was that the employer, even in circumstances like these, was entitled itself to insist upon an election.

Norton J. Come:

Yes, but the Board also took the position that the employer was no required to petition for an election.

That if the employer merely rejected the card showing with no comment, it would not– he would not be guilty of a refusal to bargain.

That he could file a petition if he wanted to.

The Union, likewise, could file a petition because, in the Board’s view, an election was the most reliable and the quickest way of resolving the situation.

William J. Brennan, Jr.:

And what’s the difference of these situations?

Norton J. Come:

There is no– the difference here is whether or not, at least as I understand the difference between the parties, the fact that the employer had knowledge independent of the cards that was provided by the picket line showing should be enough to make a difference in the bargaining obligation.

Warren E. Burger:

You mean the picketing is sort of a demonstrative election, is that the idea?

Norton J. Come:

It reinforces the card showing.

Byron R. White:

Now, has that always been the Board’s position?

Norton J. Come:

No, Your Honor.

That has not always been the Board’s position.

As– when we were here before in Gissel, we pointed out to the Court that the Board’s position under the Wagner Act was the Joy-Silk position, and that was also the position during the early days of Taft-Hartley.

Joy-Silk position made good faith doubt the touch stone at the bargaining obligation.

In other words, the Union came forward with a card showing or a card showing plus a picket line showing.

The burden was on the employer, if he rejected a bargaining request, to come forward with reasons to show why he doubted the Union’s majority.

The Board, over the years, had great difficulty in applying the good faith doubt concept because it involved, in many cases, a probe into the employer’s objective motivation.

William J. Brennan, Jr.:

So that’s when the Board went to the idea that if they wanted to refuse the cards and insist on an election, whether they file their own petition or not, they could do so without committing an unfair labor practice.

Norton J. Come:

That is correct.

William J. Brennan, Jr.:

Now, when this change is now– you are now presenting it.

Norton J. Come:

Now, at the time of Gissel, we pointed out that the Board had abandoned the Joy-Silk Doctrine and had virtually ended up as the Court said in Gissel.

Under the Board’s current practice, an employer’s good faith doubt is largely irrelevant and the key is the commission of unserious unfair labor practices.

Thus, an employer can insist on an election with no comment.

The Court added, however, that the Board had a qualification that– of the independent knowledge that if the employer knew through a personal poll, for instance, a majority of his employees supported the Union, that would make a different result.

Now, what has happened here is that the Board, subsequent to Gissel, has concluded that the independent knowledge exception is subject to the same problems in it that led to the abandonment of the good faith doubt principle to begin with because, how are you to know whether the employer has an independent knowledge?

As the Board put it, that would require us to reenter the picket of good faith doubt that we told the Court that we had abandoned in Gissel.

Norton J. Come:

The Union says, however, a picket line showing is something else.

The Board concluded and the Court of Appeals agreed with the Board that a picket line showing should not be entitled to definitive weight because a picket line showing is very often the result of a bandwagon psychology.

There may be peer pressures that would induce it.

And, to find out whether the employees really meant it or didn’t mean it, you’re going to have to probe subjective motivation and, therefore, the cleanest thing is to adopt the clear-cut principle that if an employer keeps his hands clean and does not commit unfair labor practices which would interfere with the holding of a fair election, he’s entitled to reject a showing less than a Board election.

William J. Brennan, Jr.:

But–

Norton J. Come:

Yes.

William J. Brennan, Jr.:

Really, it comes down to the Board’s position that he’s entitled, in the absence of committing unfair labor practices.

He’s entitled to an election if he wants it.

Norton J. Come:

That is correct.

William J. Brennan, Jr.:

Doesn’t it come down to that?

Norton J. Come:

That is correct, there is just one exception to that and that is the Snow & Sons situation where the Board says that if the employer waives his right to an election and agrees to be bound by some other means like a poll, he can’t renege on that and say that “well, he still wants an election.”

Byron R. White:

Well, I take it you’re also forced along that line to say that not only is the employer entitled to an election, but he need not file a petition.

Norton J. Come:

That is–

Byron R. White:

If you made him file a petition, you’d be immediately back in trying to figure out when he has to file a petition.

Norton J. Come:

That is correct, and that’s the difference between the Board and the Court of Appeals.

The Court of Appeals goes with the Board in cutting loose from the independent knowledge vestige of the good– of the Joy-Silk history.

But, the Court of Appeals says that if you’re going to do that, you got to put something else in is place.

Byron R. White:

To show good faith.

Norton J. Come:

To show good faith.

Byron R. White:

By filing a petition.

Norton J. Come:

By having the employer file his own petition or express a willingness to consent to a petition filed by–

Byron R. White:

But that would mean getting right back, again, to figuring out when it is he has to file a petition.

Norton J. Come:

That is right, Your Honor, and it’s for that reason that the Board believes that the Court of Appeals exceeded is reviewing authority here in mandating that the Board had to adopt that– well, they put the Board in the horns of the dilemma.

They either had to go back to the independent knowledge concept which the Court recognized was unreliable and had problems, or go to the other extreme of requiring that the employer file a petition if he wants to get out from under a bargaining obligation.

Byron R. White:

Well, there really isn’t much– there really– Mr. Come, there really isn’t much trouble in determining when there’s a card majority on the face of things anyway.

Norton J. Come:

No, there’s–

Byron R. White:

And if you said “well, if there’s a card majority, the employer ought to at least file a petition rather than sit and wait.”

Now, what’s so difficult about that?

Norton J. Come:

Well, we believe that the statute doesn’t require– I mean, conceivably, the Board could go to that position, but we believe that this is an area that Congress left to the Board to determine what is going to be the proper accommodation here.

9 (c)–

Byron R. White:

Well, on the merits of the issue though.

Norton J. Come:

Yes.

Byron R. White:

Is it just a litigation avoidance rationale or what?

Norton J. Come:

Well, I think that–

Byron R. White:

I mean, if there– it doesn’t appear on the face of it to be a whole lot of merit in saying that the– that an employer, who was faced with a card majority plus a picket line by a majority of the bargaining unit, can just shrug it off and not even file a petition.

There must be some reason the Board had for saying he can sit and wait.

Norton J. Come:

Well, I think the reason is that the– well, first of all, the– in adding Section 9 (c) (1) (b) to the statute in 1947, which is the provision that gives the employer the right to file a petition, there is no indication that Congress intended that the employer would have to file a petition to resolve his doubts.

The sole purpose for adding that provision was to cure what was the discrimination that existed against the employer under the Wa– Board’s Wagner Act rules.

Under the rules that the Board worked on in the Wagner Act, a Union could file a petition but an employer could only file a petition if he was presented by rival claims.

And– so that, in a one Union situation such as we have here, he couldn’t have filed one even if he wanted to, and the legislative history indicated that that was the sole reason that the employer was given the privilege of filing a petition.

It doesn’t say that he has to file one and that if he doesn’t, that he would be subject to bargaining obligation under 8 (a) (5).

Now–

Byron R. White:

Well, you’re not suggesting, nevertheless, that the Board might not, for reasons dealing with the general administration of the Act, conclude “no, he must file them.”

Merely because the statute doesn’t say so in so many words, it doesn’t mean that the Board’s powerless to require, is it?

Norton J. Come:

I do not think that the Board would be precluded from doing so.

However–

Byron R. White:

You did.

You already– you have.

It doesn’t go further than that.

That is in the old Joy-Silk.

Norton J. Come:

Well, I think that the Board was reasonable and–

Byron R. White:

If they bargained, there were a– there was an unfair labor practice.

Norton J. Come:

Well–

Byron R. White:

If he didn’t bargain, he’d leave an unfair labor practice under Joy-Silk if there was a part majority or independent knowledge.

Norton J. Come:

That was under the Joy-Silk rule but, having eliminated the Joy-Silk rule, we submit that it is reasonable for the Board to go the whole haul and say that “we’re not going to get into the question of good faith or lack of good faith, and the filing of the petition does bear on good faith.

I mean, the Union is perfectly free to file a petition if it wants an election, no less than the employer.

If the Union were to file a petition, the Union would have to define the unit and it would also have to make a 30% showing.

If the employ–

Harry A. Blackmun:

Mr. Come, is that the mechanical difference between the employer filing the petition and the Union doing so?

Norton J. Come:

I believe that it is, Your Honor.

Harry A. Blackmun:

Except the only difference?

Norton J. Come:

I believe that that is so.

It also accounts for the timing of the election and the length of a period of time in which eh employer may have a right to exercise.

His power under 8 (c) of the statute indicate why he believes the employees may not want a Union, which has become a very important element.

It was added to the statute in 1947, when Congress amended Section 7 of the Act to give employees the right to refrain from Union activity no less than the right to engage in Union activity.

Byron R. White:

What was the Board doctrine in 1947?

Wasn’t– weren’t you requiring bargaining by employers without an election?

I thought that was–

Norton J. Come:

Yes, we still had the–

Byron R. White:

Well, wasn’t that what Congress was– they legislated against that background, didn’t they?

Norton J. Come:

They did legislate against that background.

However–

Thurgood Marshall:

What year was Joy-Silk?

Norton J. Come:

Joy-Silk was, I believe it was, after Taft-Hartley.

Byron R. White:

But what did it– it didn’t make a new doctrine, Joy-Silk?

Norton J. Come:

What’s that?

Byron R. White:

Did Joy-Silk make a new doctrine or was it–

Norton J. Come:

No.

Byron R. White:

Reflective of prior– of stated law, existing law?

Norton J. Come:

That is correct.

Warren E. Burger:

Under what circumstances, Mr. Come, is a Union ever– the employees ever compelled to file petition for an election?

Norton J. Come:

Under what circumstances is a Union ever compelled?

Warren E. Burger:

Yes.

Norton J. Come:

I think that–

Warren E. Burger:

They have the right to it.

Norton J. Come:

They have the right.

There is no compulsion to file.

The only sense in which there might be compulsion is that, in 1959, Congress added 8 (b) (7) (c) to the statute which regulates picketing for recognition, and that says that you can picket for recognition for 30 days unless a petition for an election is filed within that period of time, and if the Union is picketing for recognition, if it wants to continue its picketing beyond 30 days, that might furnish some compulsion to file a petition but there isn’t any other–

Warren E. Burger:

Another way of saying it is they can’t continue the picketing for more than 30 days if they do not file a petition.

Norton J. Come:

That is–

Warren E. Burger:

Isn’t that the stress of the Act?

Norton J. Come:

That is correct, Your Honor.

Now, the Board–

Harry A. Blackmun:

Let me put it another way.

Norton J. Come:

Yes, sir.

Harry A. Blackmun:

Why does the Union always want the employer to petition?

What does it gain by having the employer petition contrast to itself?

Is it the designation of the unit?

Norton J. Come:

I think that that is so.

They also believe that if the employer petitions, he– it’s going to be faster because there’s– it’s much– there’s much less likelihood of litigation.

Now, we submit that that is not entirely valid because even if the employer were to petition, unless he were willing to consent to a hearing, that would not speed things up any because an employer petition would not preclude the employer from litigating unit questions.

For example, in the Wilder case, there was a question of whether the seven technicals were included in the unit or not.

Now, even if the employer were forced to file a petition, it is most unlikely that he would’ve waived his right to go to a hearing on that question because that could well make a difference in the Union’s majority.

Similarly, in Linden, there was a question of supervisory assistance in the Union’s organizational drive.

An employer petition would not have cut out litigation of that point.

So, we submit that the assumption of the Court of Appeals that an employer petition would invariably speed things up would not, we submit, preclude an employer who had either a legitimate or either– or an illegitimate basis for seeking to litigate issues still continuing to litigate.

So, with that in mind, the Board has concluded there’s no warrant for distorting the scheme of the statute and then requiring an employer petition.

Warren E. Burger:

You indicated earlier that the Board tends to discount pressures of picketing for recognition because of the bandwagon aspect.

You think there’s any less or more bandwagon aspect to card signing?

Norton J. Come:

I would say that it, certainly, likely to be as much.

Warren E. Burger:

At least as much, was it not?

Norton J. Come:

At least as much.

Warren E. Burger:

The documentary aspect of it is very forceful psychologically, isn’t it?

Norton J. Come:

Right.

Warren E. Burger:

Has the Board ever indicated that in any affirmative way?

Norton J. Come:

Well, I think they’ve indicated it in their statements that election is a more reliable means of ascertaining–

Warren E. Burger:

So, it’s a secret ballot?

Norton J. Come:

That is correct, Your Honor.

Warren E. Burger:

And the bandwagon aspect of either crowding people into a picket line or pressing cards on them isn’t present in the balloting.

Norton J. Come:

And the picket line has the added problems since 8 (b) (7) has been added to the statute in 1959.

Norton J. Come:

If that made the difference, if cards alone were not enough but a cards plus picket line would, it would be encouraging picketing for recognition contrary to the policy of 8 (b) (7) which is to restrict such picketing, at least, and to funnel these things into the Board’s election processes.

I believe I’ve already trespassed on my brother’s time, so–

Warren E. Burger:

Thank you, Mr. Come.

Mr. Cohen.

Lawrence M. Cohen:

Mr. Chief Justice and may it please the Court.

We agree with the Labor Board that where an employer does not commit unfair labor practices and preclude a fair election, a bargaining order based on either cards or picket lines or both or other secondary indicia of employer’s– employee support should not issue.

At the heart of this issue, as the Court of Appeals noted, is really a fundamental disagreement as to the direction and policy of our National Labor Act.

Let me try and summarize what I believe the Union’s position is this– is thusly.

The Unions argued not only the cards or picket lines should be an interchangeable substitute with elections, that actually they should be preferred to elections.

The Unions argue that the policy of our Labor Act at the time of the Wagner Act has remained unchanged, that it is to promote unionization.

That elections, since they take longer, since Unions loose more elections than they do in a case of obtaining cards, should not be used unless there is a bonafide dispute as to whether the cards or the picket lines evidence employee support.

Where there is a bonafide dispute, then there should be an election.

Where there is no bonafide dispute, then the cards or the secondary indicia should speak for themselves.

We disagree with this position.

We think it’s contrary to the intent of the Taft-Hartley amendments to the Act.

We think it’s contrary to this Court’s reasoning and the logic of its opinion in the Gissel case.

At least since 1947, the Board has never, and I emphasize “never,” held that cards or sec– or picket line activity, in it of itself where there’s no unfair labor practices, is the basis for a bargaining order.

Since the Taft-Hartley amendments were added to the Act, the policy of the Act has been not to promote unionization but to promote three reasoned, informed employee choice.

That was the entire thrust of the Taft-Hartley amendments to the Act.

An election, as we thought this Court made clear in Gissel, is the preferred means, not other means, and other means are only to be used where, in the language of the Franks Brothers case, to prevent an employer from profiting by his own wrong doing or where an election is not possible because an employer is precluded by his unfair labor practices.

Where an election is possible, where a free election is possible, then that ought to be the Courts that’s used.

There are many indications, we think, of this congressional intent and this change in the direction of the Act at the time of Taft-Hartley.

First of all, and the real thrust of the law which now, as this Court stated last term in the Savair case, is one of neutrality to our collective bargaining, not promotion of collective bargaining.

William J. Brennan, Jr.:

I gather, Mr. Cohen, this argument suggest that Joy-Silk were wrongly decided by the Board.

Lawrence M. Cohen:

No, I think that Joy– the question really is, in Joy-Silk there were unfair labor practices, the question that’s really before the Court is a gloss on the Joy-Silk Doctrine in a sense of whether where there are no unfair labor practices standing alone, the so-called Snow & Sons independent knowledge question, if in Joy-Silk there were unfair labor practices and the Board, at all times after 1947 with the exception of the renege type situation that Mr.– which was actually Snow & Sons that Mr. Come alluded to, except for that kind of renege exception, the Board uniformly did ever issue bargaining orders where there was no unfair labor practices.

That was Secretary of Labor Wirtz’s position when he testified during the amendments to the Act.

That was the position that the Board expressly stated in 1966 in the Aaron Brothers case that this Court referred to in Gissel and has been, in as far as we’ve been able to research in any other commentator, the uniform position of the Board.

One commentator, as cited in our brief, said that no Board member has even suggested going as far as the Unions would propose at any time since 1947.

So, in our opinion, there’s no change in direction of the Board policy in this case, merely a reaffirmation of what it has been long-standing Board policy required by the congressional intent manifested in Taft-Hartley.

Taft-Hartley added, for example, Section 9 (c) (1) (b) to the Act.

Lawrence M. Cohen:

This provision, as this Court stated in Gissel, fully supports the Board’s present administration of the Act.

Before an employer can insist on a secret ballot election unless, in the words of the Board, he engages in contemporaneous unfair labor practices, likely destroy the Union’s majority and impede the election.

So, 9 (c) (1) (b) does not, as the Unions argue here, detract from the Board’s policy nor, as the Court of Appeals argues, should it impose an independent requirement.

It supports the Board’s policy.

The employer has an option.

He can let the Union file a petition and do nothing or he can, if he wishes, go in and file his own petition.

There was an addition in Taft-Hartley, Section 8 (c), added to the Act.

It is– the purpose of Section 8 (c), we submit, is to permit an employer to articulate his views on the reasons why employees should not choose Unions.

It wish to inform employees and permit them to consider the question in a light of an election with the knowledge of both sides.

There is also the expressed writing added in Taft-Hartley that employees can– may refrain from unionization, that the Unions cannot interfere with that policy.

Taft-Hartley, as well as the Landrum-Griffin amendments to the Act, curtailed recognition picketing, secondary boycotts, use of Union power to try and obtain recognition and there was also the requirement added that certification could only issue in the purpose– in the case of an election and decertification and so on as we’ve spelled out in our brief.

The thrust of all these changes was not to promote and cur– continue to promote unionization but to, instead, direct the Act at employee free choice.

It was to channel claims for recognition into the election area unless there was either voluntary recognition or unless the employer preclude the use of election machinery.

Since ha– Taft-Hartley, as I’ve indicated, the Board has repeatedly recognized this principle.

Warren E. Burger:

When you say precluded it–

Lawrence M. Cohen:

Excuse me.

Warren E. Burger:

You include interfering with it.

Lawrence M. Cohen:

Yes.

Warren E. Burger:

I am fairly–

Lawrence M. Cohen:

Two alternatives.

The employer voluntarily recognized that the Union and– either conditionally subject to third-party checking of cards or does it without any condition, then of course there’s no election.

If he interferes with the election, as Gissel made clear about by substantial unfair labor practices so that there can be no fair election, then of course the election machinery can’t be used either.

Warren E. Burger:

The interference in that sense is an affirmative act, is it not?

Lawrence M. Cohen:

It’s an affirmative act of the employer that requires resort to secondary evidence because the primary evidence of the election is not available, and I think this is– this points out another anomaly in the Union’s position.

If, as this Court said in Gissel where you have minimal interference with an election, no bargaining order should issue, then how can you have an interf– how can you have a bargaining order in a case such as this where there is no interference whatsoever with the election process?

That’s where we think this case, in the Union’s position, is if not required by the expressed language of Gissel, because the case was– the question was reserved there, as required by the logic of Gissel.

Let me turn, if I may, to the position of the Court of Appeals which and why we think that’s really an incorrect compromise, if you will, between the different positions.

Contrary to Mr. Come, we would take the position that the Board has no power even if it wanted to, which it has not, to require an employer to file an election petition.

That would impose an obligation no required by the Act.

9 (c) (1) (b) permits but does not require an employer election petition.

Lawrence M. Cohen:

In fact, that idea was suggested at the time of the Taft-Hartley amendments and rejected.

To quote a couple of sentences from a Fourth Circuit decision in Logan Packing, “it was made plain of the Taft-Hartley Committee reports that an employer, after receipt of a demand to bargain from a Union claiming to represent a majority of employees, need not petition for an election.”

He had the alternative of waiting for the Union to invoke the Board’s election process, but he was assured of an election at his own petition if the Union sought to obtain recognition by a means other than an election.

The second defect in the Court of Appeals’ position, as Mr. Come has pointed out, is that it resurrects the good faith doubt test.

“When should an employer have to petition?

Why should they have to petition that evidence is good faith?”

Says the Court of Appeals.

That returns one to the whole Joy-Silk subjective intent quagmire.

There is no way to ascertain subjective good faith.

There’s no need to obtain in subjective good faith.

We think, third, what the Court of Appeals has done is be–

William J. Brennan, Jr.:

Well, your earlier argument, Mr. Cohen, suggests the Board couldn’t return to good faith doubt.

Lawrence M. Cohen:

That’s– we said the Board– no, what we’ve suggested is that the Board could not require an employer to file an election petition.

William J. Brennan, Jr.:

That wasn’t what I suggested.

Your earlier argument was that, after the 47 amendments, election period in the absence of unfair labor practices, right?

Lawrence M. Cohen:

That’s our position.

William J. Brennan, Jr.:

That’s where you have to read the statute.

Lawrence M. Cohen:

That’s what we would do.

William J. Brennan, Jr.:

If that’s so, in an instance where there were no unfair labor practices the Board, as a matter of statutory construction, I thought you were suggesting, could not return to Joy-Silk.

Lawrence M. Cohen:

Yes, that’s correct.

William J. Brennan, Jr.:

Isn’t that right?

Lawrence M. Cohen:

That’s correct.

William J. Brennan, Jr.:

The good faith test.

Lawrence M. Cohen:

That’s correct, and I think there’s– all I’m trying to point out, Mr. Justice Brennan, was that there are some policy reasons for the Board not doing so.

William J. Brennan, Jr.:

Yes.

Warren E. Burger:

I suppose the policy reasons would be somewhat similar to the reasons why the– you would consider that the Board had no authority to force the Union to demand an election.

Lawrence M. Cohen:

That’s correct.

I mean, I don’t think the Act requires either party to petition for an election.

I think that’s demonstrated by the 8 (b) (7) Section that Mr. Come alluded to, 8 (b) (7) presu– permits recognition picketing to go on unless either party files a petition.

Now, if the Court of Appeals is right that the employer has to file a petition, that option is lost.

Lawrence M. Cohen:

The employer can’t simply sit back, let the Union engage in recognition picketing, and do nothing.

He’s required to go in and file a petition which automatically removes the time bar, the 30-day period, in Section 8 (b) (7) (c).

It’s inconsistent to say, on one hand, employers can sit back and let the Union picket for 30 days and then it’s over if a petition hasn’t been filed and, second hand, say the employer must go in and file a petition which, in effect, removes the 30-day time bar.

To answer Mr. Justice Blackmun’s question, why do Unions want employers, let’s say, to file a petition?

Well, first of all, it removes the 30% interest showing.

Unions can– if an employer files a petition, the Union doesn’t have to have any interest showing and the result is that, at that point, election is held.

The Union could win the election without ever having established the 30% requirement that it would have to do if it filed its own petition.

It enables, secondly, a Union to control the timing and the duration.

Unions frequently demand recognition and proposed with– at the peak of their organizational campaign.

So that, if an employer is required to file as soon as a Union demands recognition, there’s no time hiatus between the filing of the petition and the Union’s demand for recognition.

Now, the– and, any alter– any possibility that the employer, during that period, can engage in campaigning.

Unions traditionally want to speed up the election process because, as soon after they have organized as possible, they would like the election.

Employers traditionally take the opposite point of view.

The more time that elapses, the more opportunity employees have to hear the other side, the better the chance of employer’s success and the better– the less chance the Unions are going to win the election.

So, the thrust of the Court of Appeals’ argument is that this supposedly would avoid delay.

Well, it doesn’t do so because of the Union file– if the employer files a petition, the Union can say “we don’t want that unit,” and the Board will then dismiss the petition.

The Unions may still say “well, we’re willing to take that unit, but we have some disagreement over the composition of the voting unit.”

Again, what would happen in that case is there’s a hearing required, and the hearing would be the same kind of hearing with the same Boar processes as would take place in the case of an employer petition.

So, the problem with an employer required petition is, first, it’s not required by the Act, it’s contrary to the committee reports, it doesn’t avoid delay, and it’s unfair to employees.

And, for all these reasons, we get back to the basic principle which we have argued to this Court that, unless there are unfair labor practices, one should look to the primary function of an election which is the whole thrust of the Act to resolve the question “do employees want or don’t want a Union?”

And, looking to that primary thrust, it’s only when the employers precluded it that the Union should not have to test its claim in the crucible of an election.

Byron R. White:

Mr. Cohen, right along that line, I’m– I still am a little unclear of what– as to what your position is with respect to the state of the law at the time of the 1947 Act.

You say in your brief, “to be sure–“ at page 12, “to be sure of the finding in Gissel where an employer did not have a good faith doubt as the Union majority status, where there did not exist a bonafided dispute, a bargaining order could issue.”

Lawrence M. Cohen:

I think there were some language in cases prior to Taft-Hartley, the Dahlstrom case, other case that the Union talks about where they imply that a bargaining could– order could issue if there were no unfair labor practices.

Byron R. White:

Now, you said a while ago that there’s never been an instance there–

Lawrence M. Cohen:

Since 1947 was my position that there has been no c–

Byron R. White:

But were there before it?

Lawrence M. Cohen:

There was no– there were cases which had the language, but there were no case in which the Board imposed such an order.

Byron R. White:

But if somebody asks– if someone knowledgeable in labor law ask– was asked could a bargaining order issue–

Lawrence M. Cohen:

I think that it was–

Byron R. White:

Absent of good faith doubt and absent of unfair labor practices, you’d say yes.

Lawrence M. Cohen:

We’re talking about the time of Taft-Hartley.

I think that one would look to cases and say “probably yes, but we don’t know.”

Byron R. White:

Well, then, you do think–

Lawrence M. Cohen:

I don’t think there was any Board case that came out saying so.

Byron R. White:

Do you think that Taft-Hartley Act– that after Taft-Hartley you would answer no?

Lawrence M. Cohen:

That’s correct, and I think–

Byron R. White:

Now, what specific provision do you say changes the law?

Lawrence M. Cohen:

What provision changed?

It was all the provisions that I’ve enumerated: 9 (c) (1) (b), 8 (c), Section 7, and so on, the whole pro–

Byron R. White:

Because it didn’t– it doesn’t–

Lawrence M. Cohen:

The whole change in professional objective.

Byron R. White:

It doesn’t sound to me like the Board would agree– the Board agreed with you.

Lawrence M. Cohen:

Well–

Byron R. White:

It didn’t agree with you then and it doesn’t apparently agree with you today.

Lawrence M. Cohen:

The significant fact is, since 1947, the Board recognized a change in direction.

It’s never suggested going as far as the Union has done.

There’s no case that’s ever done it, and what the Unions are asking for here is something that hasn’t occurred at any time since the Taft-Hartley Act and may or may not have been permissible prior to Taft-Hartley.

Byron R. White:

That isn’t the way the Board described Joy-Silk to us today.

Lawrence M. Cohen:

Well, it’s the way the Board attempted to describe Joy-Silk in Aaron Brothers.

Byron R. White:

That’s right.

Lawrence M. Cohen:

And the way it clearly described Joy-Silk when it got to Gissel.

I think there’s some confusion in the Board cases that was unfortunate.

Potter Stewart:

Really, Mr. Cohen, all you need to argue here is that the Board’s present position is a perfectly permissible one under the existing statute.

Lawrence M. Cohen:

That’s correct.

Potter Stewart:

Isn’t it?

Lawrence M. Cohen:

That’s correct.

I think it’s the only permissible one.

Potter Stewart:

You don’t need–

Lawrence M. Cohen:

But I don’t have to go s–

Potter Stewart:

You don’t need to argue it’s the only required one.

Lawrence M. Cohen:

I don’t have to argue that.

That’s–

Potter Stewart:

You have to say it’s perfectly permissible under the statute, and your opponents have to say “no, it’s not even permissible.”

Lawrence M. Cohen:

That’s correct.

Potter Stewart:

Their position is required.

Lawrence M. Cohen:

That’s correct.

I would agree with you.

Warren E. Burger:

Mr. Cohen, let me read you just one sentence of the Court of Appeals opinion and see what your reaction is to that.

The statement is when an employer petitions for or consents to an election, the election process is expedited.

If he declines to exercise this option, he must take the risk that his conduct as a whole, in the context of convincing evidence of majority support, may be taken as a refusal to bargain.

Would you say that’s the heart of the error of the Court of Appeals opinion?

Lawrence M. Cohen:

I think the second part of the sentence is the error.

I think the first part factually, in most cases, is not correct.

It would not expedite the election process and I think there’s no reason, based on the arguments I’ve given, that it should ever be taken as evidence if they had faith or evidence to support a bargaining order.

Warren E. Burger:

Mr. Gold.

Laurence Stephen Gold:

Mr. Chief Justice and may it please the Court.

I’d like to pursue the inquiry that it seemed to me that Mr. Justice White open with his question, and that inquiry is, what are specific statutory materials that are relevant here?

It’s our view that, in accord with normal practice, we should start with the language of the Act.

The language set out, among other places, in page 2 of our brief and what the language does is make it an unfair labor practice for an employer “to refuse to bargain collectively with the representative designated or selected by the majority of the employees in an appropriate unit.”

The only open-ended words there are “designated” and “or selected,” and it’s perfectly plain that those words are not the equivalent of “certified.”

And yet, the Board in our view, has, in effect, changed those words even though Congress refused to do so in 1947 to make them read “certified.”

We think that this language says, and says quite clearly on its face, that if the Union secures the status of majority representative which it secures by being designated or selected.

The employer has an obligation at that point, a duty, to recognize.

The Board says “no, he has a privilege, a privilege to require the Union to petition for and secure a certification.”

That privilege is subject to certain conditions subsequent.

It can be lost if the employer commits unfair labor practices or it can be lost if he voluntarily agrees to some test of the Union’s majority, but it is a privilege nonetheless.

It is an absolute privilege subject to those conditions.

There is no duty–

William J. Brennan, Jr.:

Mr. Gold, isn’t this an argument beyond– you didn’t cross-petition, did you?

Laurence Stephen Gold:

No.

William J. Brennan, Jr.:

Desn’t this go beyond what the Court of Appeals did?

Laurence Stephen Gold:

No, Your Honor.

In fact, I– we tried–

William J. Brennan, Jr.:

Are you supporting the Court of Appeals’ judgment, aren’t you?

Laurence Stephen Gold:

Well, we’re supporting the Court of Appeals’ judgment understanding what the Court of Appeals’ judgment is or our understanding of what the Court of Appeals’ judgment is.

Let me digress to try to reach the point of what was the Court of Appeals’ judgment.

The Court of Appeals opinion on page 35 of the NLRB’s petition, there are two petitions here, states the Board’s view of the law.

It says the Board has adopted a voluntarous view of the duty to bargain which is that, absent unfair labor practices or an agreement to determine majority status through means other than an election such as a poll, the employer has no duty to recognize the Union.

That’s the Board’s absolute privilege position.

Then, on pages 36 through 37, the Court of Appeals says “we reject that absolute privilege position because it is contrary to the statute.”

The paragraph on the bottom of page 37 says “these statutory provisions plainly contemplate employer duty of recognition even in the absence of election and give a safeguard to the employer who has doubts about majority status by assuring him the right to file his own petition for an election.”

There is no clear-cut answer, however, either in the text of the statute or the legislative history to the question of when and in what circumstances an employer must take evidence of majority support as convincing.

So, there are two questions, one, is the Board right in saying that an employer never has a duty to bargain with the Union, that he has an absolute privilege.

The Court of Appeals answered that question, “no.”

The next logical question is under what circumstances does the employer have a duty?

The Court of Appeals did not answer that question.

It did not enter a bargaining order here and, from pages 38 through 50 of the petition appendix, it discussed the question of possible rules that the Board could adopt as long as it recognized the one limitation very clear on the statute, that it couldn’t require the Union to petition for certification in every case no matter what its showing had been.

Byron R. White:

You don’t think the Court of Appeals said as long as the employer files, he can escape an unfair labor practice charge?

Laurence Stephen Gold:

I think the Court of Appeals said that it would validate such a rule if the Board adopted it, but it did not say that the Board had to adopt it.

Byron R. White:

Let’s assume the Board did adopt the rule that, absent other unfair labor practices, absent agreement, there’s no reason to bar it as long as the– until and unless there is a certification after an employer’s request of an election.

Now, the Court of Appeals would accept that, wouldn’t they?

Laurence Stephen Gold:

Yes.

Byron R. White:

You would not.

Laurence Stephen Gold:

Right.

Byron R. White:

You would not.

Laurence Stephen Gold:

We would not accept that.

Byron R. White:

And, in that sense, you are saying that you’re disagreeing with the Court of Appeals.

Laurence Stephen Gold:

Well, the Court of Appeals said– implied that it would but, in this c– let me say, in this case, there were no employer petitions.

No employer filed a petition, so that question of the effect of an employer petition isn’t in this case.

Laurence Stephen Gold:

It is an intellectual problem that has to be faced, we think, but it isn’t in this case.

The order of the Court of Appeals was simply that the Board was wrong in saying that an employer never had a duty and the order was to remand, and then it remanded.

William J. Brennan, Jr.:

I’m surprised you didn’t cross-petition on this.

Laurence Stephen Gold:

Well, our view on why we– quite frankly, we did not cross-petition so that we could find out the answer to the underlying question before we got to what we regard as the secondary question, the secondary question being under what circumstances an employer has a duty.

We thought it best to deal with the Board’s flat position, never, at this point, and leave it to the Board to deal with that which it can deal with because it is our view that this question which is here is when that the statute answers.

But, it is our view that there are options opened to the Board in answering the secondary question when hav– when, if ever– I mean, when does the employer have the duty to recognize the exact circumstances.

In other words, there are a variety, even though it isn’t clearly acknowledged here, there are a variety of ways the Union can prove its majority.

One would be through cards.

Another would be, as in this case, through cards plus a strike by the card signers.

Another would be by giving the employer cards and offering to have him check it through a poll conducted pursuant to safeguards.

We may get different answers to those.

We think the Board has an opt– has a degree of leeway in answering the question of what is the specific– what are the specifics of when the employer’s duty arises.

The one thing we do not think the Board can do is to say that the employer never has a duty, that no matter what the Union does in proving its majority and no matter how inactive the employer is, if you will, in reacting to that, that it is never an unfair labor practice for him to refuse to bargain.

Such–

Warren E. Burger:

Well, aren’t you converting an option into an obligation by this argument that you’re making, the option that’s been extended to an employer as it is extended to the workman to call for an election?

Now, you’re converting that into an obligation.

In fact, the Court of Appeals has done so, have they not?

Laurence Stephen Gold:

Well, first of all, in practical terms, the Union doesn’t have an option.

The whole reason that there is a National Labor Relations Act is that employers have normally not chosen to deal of their own free volition with Unions.

So, the question is, when does the employer have a duty to deal with a Union?

Warren E. Burger:

I’m speaking in terms of the option, the option to seek an election.

These other alternatives are all a series of things leading up to the same end result with all of your young men.

Laurence Stephen Gold:

Well, we don’t agree with that.

Warren E. Burger:

But if they’re not exercised– up to now, has it not been thought clear that the Union has an option at its choice to call for an election and if the employer has an option to call for an election and that neither one is compelled to do so, is that not so?

Laurence Stephen Gold:

Well, I don’t think that it has ever been the law that an employer has an option, it’s– it has never been the law, so far as I know that an employer has an option no matter what the circumstance is to cal for an election.

Warren E. Burger:

Well, wasn’t Gissel– the holding of the Court in Gissel regarded as a departure in the sense that it said that the option of the employer is lost in circumstances where the employer has done something to interfere with the probability of a free choice.

Isn’t that the essence of the Gissel holding?

Laurence Stephen Gold:

Well, that is the essence of the Gissel holding, but it is not a departure, as we understand it, from anything that was the law starting with the day after the Wagner Act was passed.

Warren E. Burger:

You didn’t think Gissel– the Gissel holding startled anyone?

Laurence Stephen Gold:

Not in terms of the obligations that imposed on employers.

Laurence Stephen Gold:

It’s– it has been understood since the first day of the Wagner Act because of the plain language of the Wagner Act that employers have a duty to bargain and there has never been, as I’m– I attempt to show–

Warren E. Burger:

Bargain on what, on everything?

Laurence Stephen Gold:

I’m sorry.

It has– as the language of the statute shows, they have a duty to bargain with the representative designated or selected by the majority.

That’s been the law and, from 1935 until 1947, it must have come forth, rightly stated, it was perfectly well settled that the employer had an obligation to bargain with the Union when the Union presented convincing evidence of majority support that he could not insist that the Union petition for an election and, indeed, it was perfectly well-settled prior 1935 that he had no right.

The employer had no right under any circumstances to petition for an election when there was only one Union in the picture.

That was the law.

Now, to get back to the language of the statute, the language of the statute imposes a duty on the employer to bargain with a Union which has the status of having been designated or selected by the majority.

Congress did not, in 1935, use the word that the employer only had a duty to bargain with a Union which had been certified.

Now, let me talk about the precedence from 1935 to 1947.

Early on in the Act, Judge Leonard Hand, in the Remington Rand case which is cited on pages 9 and 10 of our brief, said that the employer was not completely at the mercy of the Union.

The Union could not come in and say “we represent a majority.”

The employer would say “show me some evidence of that.”

The Union would say “we don’t choose to show you any evidence.

In fact, we represent a majority.

We don’t choose to show you any evidence.

We’re going to file an 8 (a) (5) charge against you and prove it at the hearing.”

Judge Hand said that it’s permissible to look at the statute as requiring the Union to come up with some evidence and, on the other hand, if he does not, the employer could say that he has a good faith doubt since the Union hasn’t shown him anything to back up its claim and, on the other hand, Judge Hand made it perfectly clear that the employer– that because of this option for the employer, it does not mean that the employer, no matter what the facts are, can say he only thing we will accept is a certification.

He says “it does not follow from that immunity, the immunity based on good faith, it does not follow from that immunity that the employer need be satisfied with no evidence except the Board’s certificate.”

Later on in Dahlstrom Metallic Door which is cited in pages 6 and 7 of our brief, a case in which there were no employer unfair labor practices, Judge Charles Clark, also Second Circuit, said the contention that bargaining was not mandatory until the Board had accredited local 307 as bargaining agent is frivolous.

An employer is under a duty to bargain as soon as the Union representative presents convincing evidence of majority support.

We’ve cited other Board cases as well.

We– I don’t how law could be more clearly settled that an employer does not have– that, prior to 1935, an employer did not have– prior to 1947, an employer did not have the option to say to a Union, “no matter what evidence you show me, the only thing that will satisfy me is a certificate,” or in practical terms say the same thing by saying “I will not bargain with you.

You can go to the Labor Board.

You can do whatever you want.

I am not going to bargain with you.”

I think that that was a thoroughly discredited view.

I know of not a single case, prior to 1947, which can be cited to support the proposition that an employer had such an option.

And, yet, that is what the Board would give to an employer today.

Then, in 1947, the Taft-Hartley amendments were passed and Congress specifically addressed itself to the question of whether Section 8 (a) (5) and 9 (a) should remain as they were.

Laurence Stephen Gold:

The House which, by in large, took the position which was less favorable to Unions and more favorable to employers.

Then, the Senate passed a Bill which said that an employer who had failed to bargain with a Union currently recognized by the employer or certified as such through an election under Section 9 was the only one who was guilty of a Section 8 (a) (5).

The practical effect of that would’ve been to repeal the law as it had been understood.

The Senate would not accept that provision.

The Senate insisted that Section 8 (a) (5) and 9 (a) stay as they were.

The only change was that Section 8, what had previously been Section 8 (5), became Section 8 (a) (5) because of the addition of the 8 (b) Sections creating Union unfair labor practices.

Harry A. Blackmun:

But what did you say the proposed amendment was?

Laurence Stephen Gold:

The proposed amendment is reproduced on page 15 of our brief, the rust-colored brief, and the House proposed to amend Section 8 (a) (5) and 9 (a) which, as I’ve indicated, together impose a duty to represent the– I mean, to recognize the representative designated or selected with an obligation imposed on employers to fail to bargain with a Union currently recognized by that employer or certified as such through an election under Section 9.

So, the employer would’ve been free of the duty as it had been understood.

His only duty would be to recognize a Union that had been certified or one that it had already recognized.

In the conference agreement– I mean, in the House conference report, and this is a House conference report I’m talking about now which, again, is reproduced on page 15 and I emphasize the word “House conference report” because the printed document which came out of conferences at that time was prepared by the House Managers and signed only by them.

Therefore, simply because of human nature and nothing else, it has to be taken with somewhat of a grain of salt where the House receded and there is an indication in the House conference report that they really hadn’t given up as much as would appear.

On the other hand, it seems to us to be terribly persuasive when the House says that we have gone along absolutely with the Senate view.

And, this is what the con– the House conference report says.

The conference agreement follows the provisions of existing law in the case of Section 8 (5) which makes it an unfair labor practice for an employer to refuse to bargain collectively with the representative of his employees subject to the provisions of Section 9 (a).

Now, if that isn’t a congressional ratification of at least the broad outlines of the laws that stood before and, as I said, the law as it stood before was whether or not employer committed unfair labor practices.

If the Union presented him with convincing evidence, he had an obligation, some obligation.

The term “what was convincing evidence” wasn’t flushed out.

That’s why we say that that question is open to the Board on remand, but the essence, the objective essence, of the good faith standard seems to us to have been quite clearly ratified by Congress.

I would just like to add one citation to what was–

Byron R. White:

You wouldn’t think that would be satisfied by a rule that the employer could always refuse to bargain as long as sought an election?

Laurence Stephen Gold:

No, our view, Mr. Justice White, is that, once again, the statute addresses itself directly to that question.

The Senate had inserted a provision, Section 9 (c) (1) (b), giving employers an option to file petitions.

And, in the Senate report, it explained what it was intent upon and we’ve reproduced the relevant portion of that explanation on page 17, and it said “the present Board rules which,” and I interject here, “which allowed employer to petition for an election only where two Union, who were seeking representative status, discriminate against employers who have reasonable grounds for believing that labor organizations claiming to represent the employees are really not the choice for the majority.

And, what our view of what Section 9 (c) (1) (b) was intended to do was to deal with a situation that the pre-1947 law didn’t really deal with, and that situation is the following.

The Union appears on the scene and says “we represent a majority of your employees.”

The employer says “give us some proof,” and again the Union says “we will not give you some proof, but we’re going to engage in outsider picketing or minority picket,” which was lawful.

The employer said “well, I will recognize if you could prove up your majority.”

At– in that type of a situation, the employer could not get to the Board and we think Section 9 (c) (1) (b) says if he has a reasonable doubt, if the Union hasn’t fulfilled its obligation of coming forward with convincing evidence, if the employer has fulfilled his affirmative obligations as the law was prior to 1947 to investigate the situation in determining whether or not the Union had convincing, then the employer could file his petition.

William H. Rehnquist:

Mr. Gold, you referred to the law between 1935 and 1947 to the Dahlstrom case which enforced a Board order, I believe.

William H. Rehnquist:

Is it your position that the Board couldn’t have taken any position than it did in view of the statute between 1935 and 1947?

Laurence Stephen Gold:

I don’t see how the Board could’ve taken another view, but I do think that if the Board had taken another view between 1935 and 1947 and if we had the same sequence of events and a 1947 determination by the Conference Committee to follow the law as it stood, that that might stand up now.

At least you’d have a conflict in that situation between the plain language of the Act and the legislative history in 1947.

What I’m arguing for here is a rule which says that the Act states an obligation on the employer that that obligation was understood and given meaning between 1935 and 1947, and the Board cannot write that obligation out of the law and substitute for it a privilege.

William H. Rehnquist:

Do you think Congress froze it then in 1947?

Laurence Stephen Gold:

To that extent, to the extent of the outline.

We have been careful in our brief to say that we do not think that the 1935-1947 law answers the question, what is convincing evidence?

What are the circumstances under which an employer must bargain?

That’s why we didn’t cross-petition.

That’s why we think that that question is properly for the Board in the first instance.

They’ve never addressed it.

William J. Brennan, Jr.:

Well, Mr. Gold, if the Board were to address it and were to say “nothing’s convincing except the result of an election,” could they do that?

Laurence Stephen Gold:

That, we think, is the one option which was removed.

That was the one thing that was frozen into the–

William J. Brennan, Jr.:

That’s what I thought.

Laurence Stephen Gold:

Into the law.

William J. Brennan, Jr.:

Exactly.

Laurence Stephen Gold:

We don’t see how, in light of the pr– the 1935-1947 law and what happened–

William J. Brennan, Jr.:

So, whatever the definition of convincing evidence that the Board, as you suggest, may fashion, it can include that.

Laurence Stephen Gold:

That’s right.

William J. Brennan, Jr.:

There’s got to be some other chip types of convincing evidence.

Laurence Stephen Gold:

That’s right.

We think that, in other words, if the House had prevailed, it would’ve made it quite clear that the only type of convincing evidence–

William J. Brennan, Jr.:

Would be certification.

Laurence Stephen Gold:

Would be certification.

Then, Congress says policy would’ve moved to the point of requiring an election in every case, at least in every case in which you wanted a legal enforcement.

Byron R. White:

Mr. Gold, do you read the Gissel as– do you think that the Court– this Court acquiesced in the Board’s abandonment of the good faith test in Gissel?

Laurence Stephen Gold:

Your Honor–

Byron R. White:

And if we did, I take it you think we made a mistake.

Laurence Stephen Gold:

Well, I am perfectly convinced that you did not acquiesce.[Laughter]

Laurence Stephen Gold:

And, therefore, I don’t have to deal with the possibility of coming here and arguing that a prior decision was mistaken.

First of all, in Gissel, Chief Justice Warren, with what we think was care, stated the question that was before the Court.

This is on page 29 and he said, I think this is the first sentence of the opinion, “these cases involve the extent of an employer’s duty under the National Labor Relations Act to recognize a Union that bases its claim to representative status solely on the possession of Union authorization cards.”

Warren E. Burger:

What page of the original opinion is the other jump site?

Laurence Stephen Gold:

That is 395 US at 579.

That was the issue.

The Union was arguing that employer had to recognize Union on the basis of cards no matter what the unfair labor– no matter– whether or not there were unfair labor practices.

Byron R. White:

But didn’t the opinion, or didn’t it, pretty clearly indicate that, absent unfair labor practices, the Board– that the employer could petition for an election and not have to bargain?

Laurence Stephen Gold:

I do not–

Byron R. White:

You don’t think so?

Laurence Stephen Gold:

Believe that it did.

Again, we discussed this at some length in terms of discussion of Section 9 (c) (1) (b).

The passage of the Court’s opinion is 395 US at 599-600, and all the Court said there, as we read it, is that Section 9 (c) (1) (b) supports the Board insofar as the Board precluded an employer from committing unfair labor practices and then saying that the Union had to secure a certification, but that does not mean, because the Court throughout the opinion put aside the Union objections, to say that a Section supports the Board against the employer doesn’t mean that it supports the Board’s view against later objections which were said not to be treated in the opinion to the Board’s view.

And, there is not a word in the Court’s opinion with the possible exception of that passage on 599-600 which says anything which it supports the Board’s position here.

Indeed, we think that Gissel stands– is the logical culmination of an evolution.

Starting with Joy-Silk Mills, the Board took a subjective view to the good faith doubt standard that was in the law prior to 1947.

We read the pre-1947 cases as attemptings.

Painstakingly, it may be, but it nevertheless is attempting to evolve a series of objective criteria to measure good faith doubt.

After that, the Board had a standard.

At times, there’s a– after 1947, there is a Board case for any proposition, but we read the– both of the cases going out from Joy-Silk Mills to take quite a subjective view.

There was criticism of the Board’s position in two respects.

One, insofar as the Board relied on authorization cards.

Authorization cards were attacked as unreliable.

Secondly, there was intellectual criticism chiefly from Judge Friendly and from others, interestingly enough, going all the way back to an opinion after 1947 by Judge Leonard Hand, again on the Board’s view, that it was logical to impute bad faith in denying recognition from subsequent unfair labor practices.

Judge Friendly put the point that it was just as logical to believe that an employer could make sure that the Union didn’t grant– gained a majority by committing unfair labor practices as that he believe the Union already had a majority.

Warren E. Burger:

What do you think the Court meant in the Gissel case?

Page 600 where the Court said “for an employer can insist on a secret ballot, unless,” in the words of the Board, “he engages in contemporaneous unfair labor practices likely to destroy the Union’s majority and seriously impede a fair election.”

Laurence Stephen Gold:

That was the passage I was referring to, Mr. Chief Justice, discussion– discussing–

Warren E. Burger:

What do you think the Gissel Court meant by that?

Laurence Stephen Gold:

I say, that was the passage I was discussing a moment ago where the Court was discussing 9 (c) (1) (b).

Laurence Stephen Gold:

I read that to be, one, a response to an employer contention and, two, a statement of the Board law as it stood at the time of Gissel and not an adoption of the Board’s reading that an employer can always secure an election.

I think that they are all– there is evidence throughout the opinion, one, how the question was stated, two, the citation with the seeming authority of Mine Workers versus Arkansas Oak Flooring.

Warren E. Burger:

Well, to save time, I had read only the latter part of it.

The language that I just read to you was preceded by the statement by this Court.

I’m not quoting anyone.

And, we agree that the policies reflected in 9 (c) (1) (b) fully support the Board’s present administration of the Act.

Laurence Stephen Gold:

That’s right, because–

Warren E. Burger:

And then going on, “for an employer can insist on a secret ballot.”

Laurence Stephen Gold:

That is–

Warren E. Burger:

Isn’t that what is unequivocal to a holding of the Court as you could find?

Laurence Stephen Gold:

I don’t think it’s a holding.

I don’t even think it’s a dictum, Mr. Chief Justice.

At page 599, that paragraph is introduced by statement “the employers rely finely on the addition to Section 9 (c) of subparagraph (b) which allows an employer to petition for an election.”

And then, the Court says “that provision was not added as the employer’s assert to give them an absolute right to an election at any time, rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a Union’s majority in a secret election which they then– which would then presumably not cause to be set aside by a legal Union activity.

In other words, the Court started out by quoting the language from the Senate report upon which we relied.

Then, it said that, in light of the fact that Congress only intended that Section to go in favor– to run in favor of an employer who had a reasonable doubt, it doesn’t run in favor of employers who don’t have such doubts and who have impeded an election.

And, to that extent, it was saying that the Board was right in issuing bargaining orders against employers who committed unfair labor practices.

But, there’s nothing in the opinion and indeed, at the start of the opinion, as I’ve pointed out, the Union’s positions was– were put aside.

The Union’s objections to the Board law were put aside to– and not treated.

We don’t see how a– that case can be considered a decision which freezes the Board’s present position into the law.

Indeed, the Board hadn’t gotten this far.

At the time, Mr. Chief Justice, that Gissel was argued, the Board acknowledged that Snow & Sons was good law and that employers would have an obligation if they knew.

The Board was taking the strange position that an employer could close its eyes, had no obligation to look around him but if, by chance, he opened his eyes and found out something, then he could have an obligation to bargain.

And, that was part of the law as– the Board law as it stood.

Byron R. White:

At least there’s nothing in Gissel, I take it, suggesting that even if the employer has the right to file, that he has to, or that he can just sit and wait for somebody else.

Laurence Stephen Gold:

That’s right.

Byron R. White:

He might have the right to file without bargaining.

Laurence Stephen Gold:

That’s right.

I mean, we would consider it to be an erroneous rule to say that any time an employer files, that frees him from the 8 (a) (5) obligation, as I have stated it.

But, even that rule is different from the Board’s rule or from the rule that Mr. Cohen wants.

Laurence Stephen Gold:

What they want is a rule that the employer could sit there no matter what the Union does and that there is never an obligation on an employer so long as he’s smart enough to keep his eyes closed and so long as he doesn’t commit unfair labor practices.

Potter Stewart:

By file, you mean petition under–

Laurence Stephen Gold:

Yes, petition, to file a petition.

Potter Stewart:

Under 9 (c) (1) (b).

Laurence Stephen Gold:

Right.

The Board does not take the position that an employer ever has to do anything as long as he has certain negative restraints on him, as someone has said.

Potter Stewart:

So, y–

Laurence Stephen Gold:

He has no affirmative obligations under Section 8 (a) (5).

Potter Stewart:

Even if the language from Gissel could be read as literally and as strongly and as much of a holding in that case, as had been suggested, the most it would mean that the Board can insist that the employer avail himself of 9 (c) (1) (b).

Laurence Stephen Gold:

That’s right.

Potter Stewart:

Not that he’d wait for the–

Laurence Stephen Gold:

That’s right.

Potter Stewart:

Union to petition.

Laurence Stephen Gold:

Yes, sir, and I believe that would be the most, and as I say, that is not the Board’s position nor is it the position of the employer.

I was discussing the 1947 amendments and, to what I’ve already said, I simply wish to note a citation, as I’ve mentioned, the only document we cited in our brief is the House conference report because we take it as a complete acknowledgment by the House that they had receded.

We’d also like to call to the Court’s attention that in the two-volume legislative history of the NLRA at page 1539, Senator Taft inserted his explanation of the conference agreement and, there, he said the language of the conference agreement is identical with the corresponding provisions in the Senate amendment since the Senate conferees refused to yield to the House with respect to the provisions contained in the House Bill amending the provisions in Section 8 (2) relating to company-dominated Unions and subsection 8 (5) relating to collective bargaining.

This means that the five unfair labor practices contained in the present NLRA remain unchanged.

Now, I th– it’s our view that this situation is, therefore, the same as the Curtis Bros. case in 362 US 24 which is reviewed in our brief at pages 22-24 and quoted therein.

There, the Board, after 1947, attempted to make recognitional picketing by a minority of vile and unfair labor practice.

They did so in the face of a conference report which said there’s no intent to make recognitional picketing an unfair labor practice.

They’re justification was we’re only making minority recognitional picketing unlawful and, in conference, all they said was that they were not going to prohibit all recognitional picketing and it leaves us this smaller area in which to undermine, if I may, the congressional intent.

And, the Court said, “absolutely not.”

This is the same argument that’s being presented here.

The argument being presented here is that he conferees only wanted to continue the power of the Board to issue bargaining orders where the employer committed unfair labor practices.

There’s not a word in the conference report to suggest that indeed, as we say, when you put all the pieces together the language of the Act which creates a duty and which doesn’t relate it to violating other obligations imposed by the National Labor Relations Act by the law from 1935-1947, by the language of the House conference report, the language of Senator Taft in the Senate, what they were doing was cuing to the line that had been established in the past.

We think the Board has to cue to that line, not in any particular, not as to whether cards are enough or something else is enough, but so as not to make what was once a duty into a privilege.

That, we think, the Board cannot do.

I wanted to say some other things about Gissle.

Most prominently, the fact that Gissel cites with approval Mine Workers versus Arkansas Oak Flooring, a case in this Court, a preemption case but a pre-garment preemption case which is cited and discussed at 25-27 of our brief.

There, the Court stated the law as it understood it at that time after 1947.

Laurence Stephen Gold:

They said, under Sections 8 (a) (5) and 9 (a) and by virtue of the conceded majority designation of the Union, the employer is obligated to recognize the designated Union.

“Conceded” there was used in the term of uncontroverted, as we indicate.

How Gissel can be thought to close the door on us here, in light of its discussion and citation of Mine Workers, we don’t understand, nor do we think that there’s any logical implication from the fact that Gissel says that where there are serious unfair labor practices there shall be a bargaining order, and where there aren’t serious unfair labor practices there shall not be.

The Court in Gissel was discussing the remedial power of the Board to remedy a Section 8 (a) (1).

As I started to say, the evolution had been to criticize the Board’s good faith test insofar as that test made the existence of other unfair labor practices a basis for a finding of good faith.

And, what Gissel did and what the Board did at about the time of Gissel was to clean up this area and to say that, logically, what we are doing is entering an order to remedy the other unfair labor practice.

We’re really not making a finding of fact as to whether the U– the employer had good faith doubt in refusing recognition in the first place.

And, at pages 32 and 33 of our brief, we cite and discuss a case called Steel-Fab Inc., a very recent Board decision, which the Board says precisely what I’m trying to say here.

That what Gissel did was talk about the Board’s power under Section 10 (c), it’s power to remedy illegal discharges, illegal interrogations and so on, but it didn’t say what 8 (a) (5) means.

And, what the Board is really trying to do here is to say that 8 (a) (5) means nothing.

There is no obligation on an employer strictly by 8 (a) (5), no obligation to recognize the Union selected or designated, only an obligation to recognize a Union certified, not only certified but a Union that has gone and gotten its certification.

And, why do we care?

I think that’s really the last question.

I think that everything I’ve said thus far indicates that we’re right on the law, but why do we care?

And, the reason we care is that the law that the Board has adopted that the employers want here creates employer free choice.

The employer has a free choice to decide whether or not there will be an election.

If he wants an election, there’ll be an election.

If he wants to recognize the Union, he can.

That is an employee free choice.

There are times when people have manifested their desire so clearly that there’s no longer a real question.

William H. Rehnquist:

Well, you say employer free choice, but the Union can petition for an election.

It does–

Laurence Stephen Gold:

Well, it’s employer free choice.

Sure, the Union can petition for an election.

If it wants to go through the more time-consuming route, it can.

The only question is whether Congress said that it had to.

William H. Rehnquist:

Well, but you– when you say employer free choice, you give the impression that the decision is solely in the hands of the employer but the Union, if it petitions for an election, takes the play away from the employer.

Laurence Stephen Gold:

Yes, but the employer has everything to gain by that play.

As Mr. Cohen quite candidly said, what the employer wants is to wait as long as possible.

I don’t know of any Union which has ever petitioned for an election when the employer has come to them and say “please, please don’t petition for an election.

Laurence Stephen Gold:

We will recognize you now.”

The Union wants the recognition.

Normally, the employer doesn’t.

If they both want the recognition, there’s never an election at all.

What we’re dealing with here is the case where the employer says “I won’t recognize you.”

William H. Rehnquist:

Well, then why can’t the Union petition for an election?

Why doesn’t that solve their problem?

Laurence Stephen Gold:

It doesn’t solve their problems, as I’m starting to say, in that it takes a long time and gives the employer all sorts of options to delay bargaining and–

William H. Rehnquist:

Well, then your real criticism isn’t that it gives employer free choice, but that you don’t like elections.

Laurence Stephen Gold:

No.

Our real objection is that the employer can play it either way.

If the employer doesn’t like elections and he wants to recognize, there’s nothing that stops him.

On the other hand, Congress said that in this statute that the employer was supposed to have a duty, a duty to recognize.

And, the question is, what is the precondition?

And, what the Board is saying here is that the employer has the option.

He can either have an election or not.

If the Union is knocking at the door and he doesn’t want to accord them recognition.

We don’t think that Congress has said there has to be an election every case.

The logic of the situation is that that clogs the machinery.

It gives the employer a chance to dissipate the majority.

There’s been much talk in the employer’s brief about the Franks Brothers case.

It was a case in which unfair labor practices were committed, but this is what Mr. Justice Black said “the unlawful refusal of an employer to bargain collectively with its employees, chosen representatives, disrupts the employee’s morale, deters their organizational activities, and discourages their membership in Unions.

We think that’s true.

There are cases in which employees are willing to manifest their desire to be represented in a way in which the employer can check.

Where that is the case, we think that Congress has determined by keeping the words “selected or designated” by ratifying the pre-1935 law to let them do so.

That it hasn’t gone to the proposition that its policy has not yet moved to the point of requiring an election no matter how strong the Union’s proof is.

I want to say one word in my few remaining seconds on Section 8 (b) (7).

This is the second case this term where Section 8 (b) (7) has been dragged in by its heels, by counsel on a post-Taft basis.

The first was the important case which was argued a few months- a month or so ago.

In that case, the Board relied somewhat on 8 (b) (7) even though the Board decision had not touched 8 (b) (7), and even though the Union argued that there was no picketing there but only hand-billing.

Laurence Stephen Gold:

Here, there is an explicit Board holding at page 171 of the NLRB petition appendix that 8 (b) (7) is irrelevant here because there is no– because 8 (b) (7) does not relate to situations in which the employer has illegally refuse to bargain.

Nevertheless, both Mr. Cohen and Mr. Come have stood up here and argued that Section 8 (b) (7) supports their view of the statute.

We think that that’s completely impermissible.

Warren E. Burger:

Thank you, Mr. Gold.

Do you have anything further?

You have about four minutes left.

Laurence Stephen Gold:

Just two points.

With respect to Gissel, of course the Court is in the best position to know what it held in Gissel.

However–

Warren E. Burger:

Well, some of us are.[Laughter]

Norton J. Come:

At page 591 of the Court’s opinion in Gissel, the Court describes the Board’s current practice as follows.

When confronted by a recognition demand based on the possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately but may, unless he has knowledge independently of the cards that the Union has a majority, decline the Union’s request and insist on an election either by requesting the Union to file an election petition or by filing such a petition himself under Section 9 (c) (1) (b).

Now, it is that description of the Board’s current practice that the Court later on, in Gissel, found to be in accord with the policies of Section 9 (c) (1) (b) and, furthermore, later on in the Gissel opinion, in meeting the employer’s argument that he’s between Sila and Caribdus (ph) when faced with a card check because if he accepts it and the Union doesn’t have a majority, he’s guilty of a violation under Bernard Oaklin (Inaudible).

But, if he attempts to question to find out whether it is in fact a majority of the employees supported, he’d be guilty of an 8 (a) (1) violation.

The Court, again, states that under the Board’s current practice the employer is not obligated to investigate.

He can simply decline the recognition request.

So that, insofar as what the Board’s policy was at the time of Gissel, that was it and the Board made it perfectly clear that the employer was not obligated to file a petition under 9 (c) (1) but could invite the Union to do so.

Now, secondly–

Byron R. White:

Well, did that reach independent knowledge?

Norton J. Come:

No, it did not reach independent knowledge.

However, the Court in Gissel recognized, we submit, that the Board could reject the good faith doubt test and the Board, on reflection after Gissel, concluded, and we submit reasonably so, that the independent knowledge element would plunge the Board into the same good faith doubt picket that it was in under Joy-Silk.

Now, with respect to the legislative history, the Board’s position does not ignore the fact that Congress, in 1947, decided not to adopt the House proposal that would’ve made a Board certification the only basis on which you could predicate a bargaining obligation.

The one exce– one situation where that is not so is in a case of voluntary recognition.

The second exception, which is the principle situation because that’s where most of the card-based bargaining orders are found, are in a situation where the employer’s unfair labor practices have precluded the holding of a fair election.

If the House amendment had been adopted, you couldn’t sustain a Gissel bargaining order.

You would’ve needed a certification notwithstanding the fact that the employer had engaged in all kinds of unfair labor practices that would’ve precluded the holding of an election.

The third situation where a car– a bargaining order can be predicated on a showing less than a Board election is in the Snow & Sons situation where the employer agrees to a means other than a Board election and then doesn’t like the results and reneges on it.

Now, therefore, we are in– not in an area like Curtis or Insurance Agents where Congress had said “this is as far as you can go” and the Board is going further, but we’re in the area where, and the Court of Appeals agrees on that point, where Congress did leave room for Board discretion, namely what sort of– what situations are you going to permit a showing less than a Board election?

And the Board, we submit, is reasonable in concluding that, short of the three situations that I have just outlined, an election is the means that is most likely to effectuate the overall policies of the Act.

Warren E. Burger:

Thank you very much, Mr. Come.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.