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Employee sophistication doesn't extend this far. He should have an oppor. tunity to weigh all these factors before making his final decision. The employer is usually more than happy to enlighten him.
How yoTES AND CARDS CAN CONFLICT After hearing both sides, many employees who previously signed cards change their minds and vote against the union in the secret-ballot election. In a speech made August 7, 1962, Board Chairman Frank W. McCulloch pointed out that, even though a majority of employees had signed cards for particular unions, such unions had lost in the subsequent secret-ballot elections almost half the time.
Nevertheless, the Board holds that the employer may insist on an election by secret ballot only if he does so “in good faith." He must honestly doubt that the union has obtained a majority of signatures, and must have good reasons for his doubt. Here's what the Board says (Maphis Chapman Corp.):
"* * * Expressions of doubt *** standing alone amount to nothing more than bare assertions of a belief and, in the absence of more cogent facts, do not amount to a good-faith doubt of the union's majority status."
In that case, the employer claimed that his employees had been with him such a long time without complaining, he simply couldn't believe that they would join a union. He gave this as a basis for a reasonable doubt.”
The trial examiner made short shrift of this argument, calling it "nothing more substantial than an unsupported theory," and the Board agreed.
An employer who simply feels that an election is a better barometer of his employees' wishes than signed cards can't obtain an election for this reason alone. The unreliability of pledge cards is not a basis for a "good faith” doubt. If it were, law-abiding employers could always insist on an election.
For example, in one case the union offered to have a third party count its cards, but the employer refused. He told the union he would agree to an election by secret ballot, but not to a card count. He was not guilty of any illegal acts. However, he made some remarks to the effect that he wasn't too happy about the possibility of being unionized. These were legal statements, but they were termed a “rejection of the collective-bargaining principle.” (George Groh & Sons.)
The Board's trial examiner said:
“The evidence * * * establishes no unlawful *** activity, but based on other record evidence, I am convinced and find that the company's) refusal to recognize and bargain with the union was motivated not by a good-faith doubt of the union's majority status but by a rejection of the collective bargaining principle." (Italic supplied.)
"BAD FAITH''-WHAT IS IT? In other words, it is not necessary for an employer to illegally intimidate and coerce for the Board to find "bad faith,” which may be:
"*** manifested as well by attitudes * * * as by more overt, readily discernible (illegal) conduct.” (George Groh & Sons.)
Several recent Board decisions make crystal clear the rule that an employer who violates no law, who commits no “unfair labor practices," may still be guilty of “bad faith” and will be denied an election. (Snow & Sons, George Groh & Sons, Kellogg Mills, Dixon Ford Shoe Co., Inc.; "dictum" in Fleming & Sons, Bernel Foam, Peterson Bros., Inc.)
Apparently, the executive secretary of the Board, Ogden W. Fields, placed a different interpretation on these decisions when he wrote to “the Washington (D.C.) Evening Star” on February 22, 1965, in part as follows:
“An employer who believes that cards do not reflect the true choice of his employees does not have to abide by those cards, or find evidence that they do not reflect their true choice. All he has to do is wait for the Board to determine the issue in a secret-ballot election and commit no unfair labor practices in the meantime." (Italic supplied.)
With all due respect, this statement is inaccurate. Would that the law were that simple. The Board's rule is much more stringent, as shown in the examples above.
NOW: "ONE RULE FOR EMPLOYERS, A DIFFERENT FOR UNIONS" Contrary to the Board's executive secretary, the employer does have to find evidence that [the cards] do not reflect (the employees') true choice." If he doesn't, how can he prove to the Board that his doubt of the union majority is in "good faith"'? He can't merely sit back and "wait" and content himself with the
fact that he is committing no "unfair labor practices," as the Board secretary's letter would lead one to believe. It sounds good, but it just isn't so.
Of course, if the employer violates the law and engages in a campaign of coercion or makes illegal promises of benefit, he is guilty of bad faith. In such cases, he has made a free election difficult to achieve, and the Board compels recognition if a majority of cards is proven.
The Board's position here is entirely reasonable. The employer, by his illegal acts, has dissipated the union's claimed majority and forfeited his right to demand an election.
To hold otherwise would permit the employer to profit from his own violation of the law.
Thus the law-abiding employer today is in a real dilemma when he receives a union demand for recognition.
If he insists on an election by secret ballot, and the Board concludes that he hasn't a “good faith" doubt of the union's majority, he will be compelled to deal with the union without an election.
The employees, too, are thereby deprived of their opportunity to hear both sides and vote by secret ballot.
On the other hand, if he does inspect the cards and then signs up, the Board says he does this "at his peril.” So capitulation is not necessarily a good solution, either.
In some cases (e.g., N.L.R.B. v. Bernhard Altmann) the employer did recognize the union without an election, and later on the Board found that the union did not represent a majority, and held the employer and the union both guilty of violating the law.
This can easily happen if the Board finds some of the cards to be old, coerced, or unsigned. Also, it may be that the employee group agreed on was not "appropriate” as a bargaining group. Or perhaps part-timers, or temporary employees, or seasonal employees should-or should not-have been included in the count.
Certainly, these are matters for the Board's expertise and not for an inexperienced employer to determine.
FIGURES THAT ARE “MISLEADING” In "the Washington Star” of February 17, 1965, the Board's executive secretary cites statistics to show that "the number of cases in which a union's majority status was based on cards would not equal 1 percent” of the number of secretballot elections—20,535—held over a 3-year period.
Even if these figures are correct, they are misleading. How about the hundreds and perhaps thousands of employers who, knowing in advance that the Board wouldn't grant them an election, sign up without going to the Board?
These are situations that rarely reach the Board and therefore would form no part of the Board's statistics.
At any rate, Mr. Fields' argument that, in effect, if we're wrong about this, we're wrong only 1 percent of the time," doesn't hold water. One percent of 20,535 is 205 cases, which is just 205 too many. This is not a wrong through inadvertence. It is an injustice to both employers and employees which can and should be rectified-not sloughed off with a statistic.
How much safer and more clear-cut is the election procedure.
The Board watches over its secret-ballot elections like a mother hen to be certain that they are held in what it terms a “laboratory atmosphere."
Last-minute misstatements by the victor will lead the Board to set aside the results of the election. Not only that, but the Board screens all preelection propaganda for coercion, intimidation, or illegal promises of benefit.
An NLRB election freezes the employees' intent, all at the same time, by secret ballot, after both sides have had an opportunity to be heard. If the union wins, it obtains a “certification,” which is something akin to a Government seal.
“CARD-COUNT METHOD PROTECTS NO ONE" Majority "proof” by the card-count method protects no one. It is inaccurate and unfair. It freezes the “intent of the employees, one at a time, in an organizing atmosphere which is badly in need of policing by the Board. On February 19, 1965, a Board trial examiner said the following (Conren, Inc.):
"* * * An examiner is disturbed to make a finding of majority status based on cards obtained in (this) haphazard fashion. *** A significant number of these cards were undated. Why this slovenly practice should still continue passes understanding." [Italics supplied.]
Moreover, when the Board does find that some cards were procured by misrepresentation or coercion, it mathematically excludes those particular cards from the count. But isn't it probable that employees repeated the union misrepresentations and “word got around"?
The Board should hold that the entire atmosphere was poisoned, regardless of how few employees were coerced. When an employer makes coercive statements, the Board has repeatedly said:
"* * * The number of instances of interference * * * are not material to the issue. * * * It is impossible to measure the effect of such interference upon the exercise of their right of franchise either by the employees directly concerned or by other employees who might have learned of the interference." (Italics supplied.) (U.S. Rubber, 86 NLRB 3.)
Why not the same holding when a union coerces or misrepresents? In one old case (Wells, Inc., 68 NLRB 545), the Board did throw out the entire "majority" where only '10 percent of the employees had been coerced by the union, and all the rest of the employees had signed cards. But since then there has been one rule for employers, and a different one for unions.
Clearly there is no "laboratory atmosphere” when a majority is obtained and proven by signing up employees in a "goldfish bowl.” If there is, it's a laboratory that has a taint of the septic rather than the antiseptic.
"THE SECRET BALLOT IS BEST'.
The secret-ballot election is the best means we've been able to devise to determine what people want.
The Taft-Hartley Law should be amended to provide employees, unions, and law-abiding employers with the absolute right to such an election.
It can't happen soon enough.
Senator Javits. Mr. Chairman, may I have inserted in the record a copy of the bill we have been discussing in this colloquy?
Senator McNAMARA. Without objection, that, too, will be inserted in the record at this point. (The bill, S. 2133 follows:)
[8. 2133, 89th Cong., 1st sess.) A BILL To amend section 9 (c) of the National Labor Relations Act so as to provide for
the holding of representation elections upon petition of employers where labor organizations seek recognition on the basis of employees' authorizations or similar evidence
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 9(c) of the National Labor Relations Act is amended by adding the following new paragraph:
“(6) In any case in which it is alleged in a petition filed by an employer pursuant to paragraph (1)(B), that a labor organization seeking recognition as the representative of the employees of such employer has presented evidence purporting to show that a maiority of employees in the appropriate bargaining unit desires to be represented by such labor organization, and that such employer has a bonafide intention to seek actively to persuade his employees to vote in opposition to such labor organization in any election held under this section, it shall be the duty of the Board, if it determines in accordance with paragraph (1) that in all other respects a question of representation affecting commerce exists, to direct the holdi g of such an election. The consideration of the petition and the holding of the election, in any such case, shall not be delayed by reason of the pendency of an unfair labor practice charge based upon the refusal of the employer to bargain collectively with the labor organization, and no such unfair labor practice charge based upon a refusal to bargain prior to the election shall thereafter be considered unless the Board determines that the labor organization had once been authorized to represent a majority of the employees in the bargaining unit, but that as a result of unfair labor practices committed by the employer (other than unfair labor practices under section 8(a)(5)), such labor organization is no longer authorized to represent such maiority."
Senator McNAMARA. Mr. Browne, the other body has ruled your subject is extraneous, we are not going to do that, but we are going to ask you if this is a long presentation, how long do you expect to be
Mr. BROWNE. As long as Tom's was; now, I do not know whether that is short or long in your judgment.
Senator McNAMARA. About 15 minutes?
Senator McNAMARA. All right, go right ahead, sir. We want to give you a forum if you desire it.
Mr. BROWNE. That is what I came from Kansas City for.
I wish only to say at the outset if the subcommittee pleases, that I have specialized in labor-management relations for some 28 years, some 11 of which were as an attorney with the National Labor Relations Board, except for the 3 years in the U.S. Naval Reserve. That may not qualify me as an expert but I think that at least it cannot be successfully contended that I am not an expert by geographical juxtaposition.
I live and work in Kansas City, Mo., just a few blocks away from the State line of Kansas, which is a "right-to-work" State. Missouri is not a "right-to-work" State. During my practice I have negotiated many labor contracts on a wide basis, and they include employers under the same contract in both Missouri and Kansas.
Now, while our President has told you that 14(b) has divided Americans, and I am quoting his language, has divided Americans from various States, my observation at the grassroots level is that 14(b) has not created any division between the citizens of those two neighboring States.
We have been able to negotiate common agreements for all employees and all employers whether they work and live in Kansas or Missouri with a simple deletion of the union shop provision in the geographical area affecting Kansas.
I could only wish that other labor-management disputes could be as easily settled.
Now, as a matter of fact, it could be as easily agreed that far fromagain I quote our President-"far from reducing conflicts” as the President hoped, the very existence of the union shop creates as many disputes as it settles.
I am thinking, for example, of the case involving Intercontinental Engineering & Manufacturing Co. out of Kansas City, Mo.
Their sole issue of the strike was a union security shop. The IAM went out on strike, and it remained out on strike for 427 days. I have clippings of it here, “negotiating motor stall," "Strike by machinists enters second year.”
Here is a union paper, "no drop in determination to end yearlong strike;" and the whole issue was that the union sincerely believed, I do not doubt that, that it needed a union security provision, and the employer was equally opposed to it.
Well, the union gave up on the strike, the employees terminated it because they could not bend the employer to their will. But this is the interesting part about that case.
The union filed unfair labor practice charges against the company because it refused to bargain, it alleged, in good faith, and the hearing was held.
Now, the chief witness for the union got on for the general counsel for the board and testified about this issue-union security, modified maintenance of membership.
That is what the employees wanted.
He kept repeating it over and over again, and on cross-examination I finally decided to ask him what modified union security meant.
And do you know that he did not know what that meant. Do you know that that employee, along with scores and scores of others who were out on strike, did not know what they were striking for, if this employee's testimony is any indication.
Now, there was an instance, I would submit, that if we had had a "right-to-work" law in Missouri it would have reduced conflicts.
Now, I am not saying generally this is applicable to all, I am just telling you of a precise illustration that I am familiar with.
I might add in that case, while the union filed unfair labor practice charges against the company, the matter was heard by the Board and it was dismissed by both the trial examiner and the Board.
Now, I do not propose to go into the many arguments pro and con over the merits of the union shop. There are too many of them that are made. We have heard some of them today. I do believe, however, that we can agree on one thing, and that is the morality of employees being able to make a free choice on whether or not they want a union to represent them initially.
All of us should agree that if section 14(b) is repealed and should the union therefore be given the power to compel employees to become members of the union as a condition of employment, the Congress, and this committee, should make sure that the union truly represents the majority of the employees in an appropriate bargaining unit.
I therefore submit, very respectfully and urgently and earnestly, that before repeal can be considered Congress should establish proper safeguards as a condition presented to the exaction of the union shop; that it must be made sure that the collective bargaining representative, in fact, represents the will of the majority, before either an employer or a union can impose restrictions on the livelihood of the individual worker who is or has too often been the forgotten man in this power play between collective bargaining participants and these pressures that are imposed on Congress by these both sides.
Unfortunately, Congress where, by section 9 of the act, provided for an election by secret ballot, Board decisions have circumvented election provisions by reliance on what the Board calls the Joy Silk doctrine and the Bernel Foam doctrine.
Those cases have been set forth in our prepared statement and it is not necessary to repeat them here.
Suffice to say that by this doctrine the Board has imposed a union on the employees without an election or indeed, where the union may have been decisively defeated in the election.
What they do in a situation like this is to presume that union authorization cards or union cards which may have been signed evidence a valid free will choice on the part of the employees.
Now, anyone with the slightest experience knows that those cards are notoriously unreliable as true indicators of the employees desires.
Now, I use the words "notoriously unreliable” not as my words but as words of the Board, because this is what the Board itself said about union authorization cards.
They may be signed out of ignorance, signed out of fear, they might be signed out of a desire to get the union off its back, and “to get the union off its back” are not my words either they are the words of the AFL-CIO, because they have admitted that this is very frequently done.