A labor union's offer to waive initiation fees for all employees
who sign union authorization cards before a certification election
under the National Labor Relations Act interferes with the
employees' right to refrain from union activities guaranteed by § 7
of the Act, does not comport with the principle of "fair and free
choice of bargaining representatives by employees" that is inherent
in § 9(c)(1)(A),
NLRB v. Tower Co., 329 U.
S. 324, and is ground for denying enforcement of an
order against the employer to bargain with the union after it wins
the election. Pp.
414 U. S.
275-281.
470 F.2d 305, affirmed.
DOUGLAS, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, MARSHALL, POWELL, and REHNQUIST, JJ.,
joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and
BLACKMUN, JJ., joined,
post, p.
414 U. S.
281.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The National Labor Relations Board, acting pursuant to § 9(c) of
the National Labor Relations Act, as
Page 414 U. S. 271
amended, 61 Stat. 144, [
Footnote
1] 129 U.S.C. § 159(c), conducted an election by secret ballot
among the production and maintenance employees of respondent at the
request of the Mechanics Educational Society of America (hereafter
Union). Under the Act, [
Footnote
2] the Union, if it wins the election, becomes "the exclusive
representative of all the employees" in that particular unit for
purposes of collective bargaining. The Union won the election by a
vote of 22-20.
Respondent filed objections to the election, but, after an
evidentiary hearing, a hearing officer found against respondent and
the Board certified the Union as the representative of the
employees in that unit. Respondent. however, refused to bargain.
The Union thereupon filed
Page 414 U. S. 272
an unfair labor practice charge with the General Counsel, who
issued a complaint alleging that respondent had violated §§ 8(a)(1)
and (5) of the Act. [
Footnote
3] The Board sustained the allegations and ordered respondent
to bargain with the Union. 194 N.L.R.B. 298. The Court of Appeals
denied enforcement of the order. 470 F.2d 305. We granted the
petition for certiorari, 411 U.S. 964, there apparently being a
conflict between this decision in the Sixth Circuit and a decision
in the Eighth Circuit,
NLRB v. DIT-MCO, Inc., 428 F.2d
775, and also with one in the Ninth Circuit,
NLRB v. G. K.
Turner Associates, 457 F.2d 484. We affirm.
It appeared that, prior to the election, "recognition slips"
were circulated among employees. An employee who signed the slip
before the election [
Footnote
4] became a member
Page 414 U. S. 273
of the Union and would not have to pay what at times was called
an "initiation fee" and at times a "fine." If the Union was voted
in, those who had not signed a recognition slip would have to
pay.
Page 414 U. S. 274
The actual solicitation of signatures on the "recognition slips"
was not done by Union officials. Union officials, however,
explained to employees at meetings that those who signed the slips
would not be required to pay an initiation fee, while those who did
not would have to pay. Those officials also picked out some five
employees to do the soliciting, and authorized them to explain the
Union's initiation fee policy. Those solicited were told that there
would be no initiation fee charged those who signed the slip before
the election. Under the bylaws of the Union, an initiation fee
apparently was not to be higher than $10, but the employees who
testified at the hearing (1) did not know how large the fee would
be and (2) said that their understanding was that the fee was a
"fine" or "assessment."
Page 414 U. S. 275
One employee, Donald Bridgeman, testified that he signed the
slip to avoid paying the "fine" if the Union won. He got the
message directly from an employee picked by the Union to solicit
signatures on the "slips." So did Thomas Rice, another
employee.
The Board originally took the position that pre-election
solicitation of memberships by a union with a promise to waive the
initiation fee of the union was not consistent with a fair and free
choice of bargaining representatives.
Lobue Bros., 109
N.L.R.B. 1182. Later in
DIT-MCO, Inc., 163 N.L.R.B. 1019,
the Board explained its changed position as follows:
"We shall assume,
arguendo, that employees who sign
cards when offered a waiver of initiation fees do so solely because
no cost is thus involved; that they, in fact, do not at that point
really want the union to be their bargaining representative. The
error of the
Lobue premise can be readily seen upon a
review of the consequences of such employees casting votes for or
against union representation. Initially, it is obvious that
employees who have received or been promised free memberships will
not be required to pay an initiation fee,
whatever the outcome
of the vote. If the union wins the election, there is, by
postulate, no obligation; and if the union loses,
there is
still no obligation, because compulsion to pay an initiation
fee arises under the Act only when a union becomes the employees'
representative and negotiates a valid union security agreement.
Thus, whatever kindly feeling toward the union may be generated by
the cost-reduction offer, when consideration is given only to the
question of initiation fees, it is completely illogical to
characterize as improper inducement or coercion to
Page 414 U. S. 276
vote 'Yes' a waiver of something that can be avoided simply by
voting 'No.'"
"The illogic of
Lobue does not become any more logical
when other consequences of a vote for representation are
considered. Thus, employees know that, if a majority vote for the
union, it will be their exclusive representative, and, provided a
valid union security provision is negotiated, they will be obliged
to pay dues as a condition of employment. Thus, viewed solely as a
financial matter, a 'no' vote will help to avoid any subsequent
obligations, a 'yes' may well help to incur such obligations. In
these circumstances, an employee who did not want the union to
represent him would hardly be likely to vote for the union just
because there would be no initial cost involved in obtaining
membership. Since an election resulting in the union's defeat would
entail not only no initial cost, but also insure that no dues would
have to be paid as a condition of employment, the financial
inducement, if a factor at all, would be in the direction of a vote
against the union, rather than for it."
Id. at 1021-1022.
We are asked to respect the expertise of the Board on this
issue, giving it leeway to alter or modify its policy in light of
its ongoing experience with the problem. The difficulty is not in
that principle, but with the standards to govern the conduct of
elections under § 9(c)(1)(A). We said in
NLRB v. Tower
Co., 329 U. S. 324,
329 U. S. 330,
that the duty of the Board was to establish "the procedure and
safeguards necessary to insure the fair and free choice of
bargaining representatives by employees."
It is, of course, true, as we said in
NLRB v. Wyman-Gordon
Co., 394 U. S. 759,
394 U. S. 767,
that "Congress granted the Board a wide discretion to ensure the
fair and
Page 414 U. S. 277
free choice of bargaining representatives."
See also NLRB v.
Waterman S.S. Co., 309 U. S. 206,
309 U. S. 226.
But in this case, two opposed groups are in contention: one
composed of those who want a union, and the other of those who
prefer not to have one. The Board in its
DIT-MCO opinion
says "it is completely illogical to characterize as improper
inducement or coercion" a waiver of initiation fees for those who
vote "yes" when the whole problem can be avoided by voting "no."
163 N.L.R.B. at 1021-1022. But the Board's analysis ignores the
realities of the situation.
Whatever his true intentions, an employee who signs a
recognition slip prior to an election is indicating to other
workers that he supports the union. His outward manifestation of
support must often serve as a useful campaign tool in the union's
hands to convince other employees to vote for the union, if only
because many employees respect their coworkers' views on the
unionization issue. By permitting the union to offer to waive an
initiation fee for those employees signing a recognition slip prior
to the election, the Board allows the union to buy endorsements and
paint a false portrait of employee support during its election
campaign.
That influence may well have been felt here for, as noted,
[
Footnote 5] there were 28 who
signed up with the Union before the election petition was filed
with the Board, and either seven or eight more who signed up before
the election. We do not believe that the statutory policy of fair
elections prescribed in the
Tower case permits
endorsements, whether for or against the union, to be bought and
sold in this fashion.
In addition, while it is correct that the employee who signs a
recognition slip is not legally bound to vote for the union and has
not promised to do so in any formal
Page 414 U. S. 278
sense, certainly there may be some employees who would feel
obliged to carry through on their stated intention to support the
union. And on the facts of this case, the change of just one vote
would have resulted in a 21-21 election, rather than a 22-20
election.
Any procedure requiring a "fair" election must honor the right
of those who oppose a union, as well as those who favor it. The Act
is wholly neutral when it comes to that basic choice. By § 7 of the
Act, employees have the right not only to "form, join, or assist"
unions, but also the right "to refrain from any or all of such
activities." 29 U.S.C. § 157. An employer who promises to increase
the fringe benefits by $10 for each employee who votes against the
union, if the union loses the election, would cross the forbidden
line under our decisions.
See NLRB v. Exchange Parts Co.,
375 U. S. 405. The
right of employees to "form, join, or assist" labor unions
guaranteed by § 7 has an express sanction in § 8(a)(1), which makes
it an unfair labor practice for an employer "to interfere with,
restrain, or coerce employees" in the exercise of those rights. 29
U.S.C. § § 157, 158(a)(1). Such interference is an unfair labor
practice, as we held in
NLRB v. Exchange Parts Co., supra.
But, as already noted, § 7 guarantees the right of employees "to
refrain from any or all of such activities."
Congress has also listed in § 8(b) of the Act "unfair" labor
practices of unions. 29 U.S.C. § 158(b). There is no explicit
provision which makes "interference" by a union with the right of
an employee to "refrain" from union activities an unfair labor
practice.
Section 8(c), however, provides:
"The expressing of any views, argument, or opinion, or the
dissemination thereof, whether, in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this subchapter
if such
expression contains no threat
Page 414 U. S. 279
of reprisal or force or promise of benefit."
29 U.S.C. § 158(c) (emphasis added).
Whether it would be an "unfair" labor practice for a union to
promise a special benefit to those who sign up for a union seems
not to have been squarely resolved. [
Footnote 6] The right of a free choice is, however,
inherent in the principles reflected in § 9(c)(1)(A).
When the dissent says that "[t]he special inducement is to sign
the card, not to vote for the union," and that treating the two
choices as one is untenable, it overlooks cases like
NLRB v. Gissel Packing
Co., 395 U.S.
Page 414 U. S. 280
575. There, we held that the gathering of authorization cards
from a majority of the employees in the bargaining unit may entitle
the union to represent the employees for collective bargaining
purposes, even though there has been and will be no election,
id. at
395 U. S.
582-583, and that rejection of that authorization by the
employer is an unfair labor practice. Where the solicitation of
cards is represented as being solely for the purpose of obtaining
an election, a contrary result is indicated.
Id. at
395 U. S. 584,
385 U. S. 606.
Thus, the solicitation of authorization cards may serve one of two
ends. Of course, when an election is contemplated, an employee does
not become a member of the union merely by signing a card. But,
prior to the election, if the union receives overwhelming support,
the pro-union group may decide to treat the union authorization
cards as authorizing it to conduct collective bargaining without an
election. The latent potential of that alternative use of
authorization cards cautions us to treat the solicitation of
authorization cards in exchange for consideration of fringe
benefits granted by the union as a separate step protected by the
same kind of moral standard that governs elections themselves.
The Board, in its supervision of union elections, may not
sanction procedures that cast their weight for the choice of a
union and against a nonunion shop or for a nonunion shop and
against a union.
In the
Exchange Parts case, we said that, although the
benefits granted by the employer were permanent and unconditional,
employees were
"not likely to miss the inference that the source of benefits
now conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged."
375 U.S. at
375 U. S. 409.
If we respect, as we must, the statutory right of employees to
resist efforts to unionize a plant, we cannot assume that unions
exercising powers are wholly benign towards their antagonists,
whether they be nonunion
Page 414 U. S. 281
protagonists or the employer. The failure to sign a recognition
slip may well seem ominous to nonunionists who fear that, if they
do not sign, they will face a wrathful union regime should the
union win. That influence may well have had a decisive impact in
this case, where a change of one vote would have changed the
result.
Affirmed.
[
Footnote 1]
Section 9(c)(1)(A) provides in part:
"(c)(1) Whenever a petition shall have been filed, in accordance
with such regulations as may be prescribed by the Board --"
"(A) by an employee or group of employees or any individual or
labor organization acting in their behalf alleging that a
substantial number of employees (i) wish to be represented for
collective bargaining and that their employer declines to recognize
their representative as the representative defined in [§ 9(a)] . .
."
"
* * * *"
"the Board shall investigate such petition and if it has
reasonable cause to believe that a question of representation
affecting commerce exists shall provide for an appropriate hearing
upon due notice. . . . If the Board finds upon the record of such
hearing that such a question of representation exists, it shall
direct an election by secret ballot and shall certify the results
thereof."
29 U.S.C. § 159(c).
[
Footnote 2]
Section 9(a) provides:
"Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit
appropriate for such purposes shall be the exclusive
representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment. . . ."
29 U.S.C. § 159(a).
[
Footnote 3]
Sections 8(a)(1) and (5) provide:
"(a) It shall be an unfair labor practice for an employer
--"
"(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in [§ 7];"
"
* * * *"
"(5) to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section [9(a)]."
29 U.S.C. §§ 158(a)(1) and (5).
[
Footnote 4]
The question for review presented by the Board is whether
the
"Board properly concluded that a union's offer to waive
initiation fees for all employees who sign union authorization
cards
before a Board representation election, if the union
wins the election, does not tend to interfere with employee free
choice in the election."
(Emphasis added.) There was testimony by Alfred Smith, National
Secretary-Treasurer of the Union, that he told the employees at a
meeting that the waiver of initiation fees was open to all who
signed the authorization cards before the collective bargaining
contract was signed.
The Hearing Officer, however, found that
"Bridgeman further testified that subsequent to that meeting,
and prior to the election, Bennie McKnight told employees that, if
they signed the union membership and authorization card
before
the election, there would be no union 'initiation fee' if the
union were successful at the election."
(Emphasis added.) While Bridgeman's testimony about McKnight's
representations after the meeting might have been only implicit,
the Hearing Officer also referred to Bridgeman's testimony that
Smith himself had stated at the meeting that waiver of the
initiation fee would be limited to those signing up before the
election. The Hearing Officer clearly proceeded on the premise that
the waiver was open only to those who signed up before the
election:
"The Employer further argues that it is an economic inducement
contingent upon how employees vote in the election and on the
results of the election, and, as such, constitutes an objectionable
inducement. This argument, however, has been rejected by the Board.
In the
DIT-MCO, Inc., 163 N.L.R.B. No. 147 case [p. 1019],
the Board held that a provisional waiver of initiation fees prior
to election is not improper regardless of whether it is contingent
upon the results of the election. The Board pointed out that it
would be unreasonable to conclude that a statement by the union
during an election to the effect that an assessment of money or an
obligation to pay money
which could be avoided by the execution
of a union membership card prior to the election, would
influence a vote in favor of the Union when the simplest way to
avoid the incurrence of any financial obligation would be to vote
'no.' Thus, it would appear that any threat to impose a 'fine,'
'assessment' or 'initiation fee,' or 'payment to join the union,'
although it may induce an employee to execute a union
authorization membership card, would more probably induce him to
vote 'no' at the election."
(Emphasis added.)
The Court of Appeals read the Hearing Officer's Report to state
that the waiver was limited to those signing up before the
election, as do we. Such a reading is amply supported by the
evidence in the record beyond the testimony to which we have
already alluded. The record demonstrates the pressure which
employees felt to sign up with the Union quickly, before the
election and perhaps even before the representation petition itself
was filed, a pressure utterly inconsistent with a belief that a
waiver would be available to them up to the time a collective
bargaining agreement was signed after the election. It is also
supported by the fact that 28 individuals signed up with the Union
before the election petition was filed with the Board on August 12,
1970, and apparently an additional seven or eight signed up before
the September 22, 1970, election. But there is no indication of any
individuals signing up with the Union after the election, which
would be the obviously rational decision once the Union had won the
election.
The Board argues that unions have a valid interest in waiving
the initiation fee when the union has not yet been chosen as a
bargaining representative, because
"'[e]mployees otherwise sympathetic to the union might well have
been reluctant to pay out money before the union had done anything
for them. Waiver of the [initiation fees] would remove this
artificial obstacle to their endorsement of the union.'"
See Amalgamated Clothing Workers v. NLRB, 345 F.2d 264,
268 (CA2 1969). While this union interest is legitimate, the
Board's argument ignores the fact that this interest can be
preserved as well by waiver of initiation fees available not only
to those who have signed up with the union before an election, but
also to those who join after the election. The limitation imposed
by the Union in this case -- to those joining before the election
-- is necessary only because it serves the additional purpose of
affecting the Union organizational campaign and the election.
[
Footnote 5]
See n 4,
supra.
[
Footnote 6]
The lower courts have recognized that promising benefits or
conferring benefits before representation elections may unduly
influence the representational choices of employees where the offer
is not across the board to all employees but, as here, only to
those who sign up prior to the election.
See, e.g., NLRB v.
Gorbea, Perez & Morell, 328 F.2d 679, 681-682 and nn. 6-7
(CA1 1964) (promise to waive initiation fee for those joining union
prior to election, but not after, may substantially influence
election);
Amalgamated Clothing Workers v. NLRB, 345 F.2d
at 268-269 (Friendly, J., concurring) (improper to waive fees for
those joining union immediately while indicating that this is
foreclosed to those joining later).
See also Collins &
Aikman Corp. v. NLRB, 383 F.2d 722, 728-729 (CA4 1967) (paying
employee $7 to be observer at election is an "unreasonable or
excessive economic inducement" potentially influencing other
employees, and is ground to set aside election);
NLRB v.
Commercial Letter, Inc., 455 F.2d 109 (CA8 1972)
(disproportionate payments to employees attending union "hearings"
prior to representation election).
The NLRB itself has recognized in other contexts that promising
or conferring benefits may unduly influence representation
elections.
See e.g., Wagner Electric Corp., 167 N.L.R.B.
532, 533 (grant of life insurance policy to those who signed with
union before representation election "subjects the donees to a
constraint to vote for the donor union");
General Cable
Corp., 170 N.L.R.B. 1682 ($5 gift to employees by union before
election, even when not conditioned on outcome of election, was
inducement to cast ballots favorable to union);
Teletype
Corp., 122 N.L.R.B. 1594 (payment of money by rival unions to
those attending pre-election meetings).
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE
BLACKMUN join, dissenting.
The report of the Hearing Officer, filed in response to the
Company's objections to the election, reveals that, prior to the
filing of the representation petition, a union organizer had told
employees that, if the Union won the election, they would be
subject to an initiation fee or "fine" if they did not sign an
authorization card. The Union was then engaged in securing the
necessary 30% showing of union support, which would entitle it to
hold an election under the Labor Board's rules. 29 CFR §§ 101.17,
101.18 (1973). The officer concluded that there was "insufficient
evidence . . . that a threat of a
fine' occurred either before
or after the filing date of the petition." In any event, he also
concluded that conduct occurring before the filing of an election
petition was not ground for setting aside the election, since
"[w]hether or not a sufficient valid showing of interest was
obtained constitutes a matter for administrative determination."
Cf. Goodyear Tire & Rubber Co., 138 N.L.R.B. 453
(1962). [Footnote 2/1]
After the representation petition was filed and the election
campaign proper commenced, the Union's Secretary-Treasurer,
Page 414 U. S. 282
Alfred Smith, addressed a group of about 20 employees at an
organization meeting. In response to a question about the
initiation fee, Smith indicated that there was "a small fee" which
would be waived for all employees who signed cards prior to the
election. [
Footnote 2/2] The fee
was, in fact, $10. Qualification for fee waiver was obtained by
signing membership cards, but the testimony indicated that no one
incurred any obligation to the Union until and unless the Union
became the bargaining agent and a collective contract was signed.
The Hearing Officer found
"no evidence, nor any contention, that the Union misrepresented
to employees that they would have to become members immediately
upon the certification of the union as bargaining agent."
On this record, the Board, obviously relying on its decision in
DIT-MCO, Inc., 163 N.L.R.B. 1019 (1967),
enforced, 428 F.2d 775 (CA8 1970), which overruled its
prior decision in
Lobue Bros., 109 N.L.R.B. 1182 (1954),
ordered the employer to bargain with the Union. 194 N.L.R.B. 298
(1971). The Sixth Circuit denied enforcement of the order, 470 F.2d
305 (1972), and the majority now affirms that judgment.
Because, in my view, the Labor Board has
"a wide degree of discretion in establishing the procedure and
safeguards necessary to insure the fair and free choice of
bargaining representatives by employees,"
NLRB v. Tower Co., 329 U. S. 324,
329 U. S. 330
(1946), and because I am unpersuaded that the waiver of initiation
fees in this case is so clearly coercive within § 7 of the National
Labor Relations Act that the Board has abused its discretion in
finding otherwise, I respectfully dissent.
Page 414 U. S. 283
I
It is well established that an "unconditional" offer to waive
initiation fees, where the waiver offer is left open for some
period of time after the election, is not coercive, and does not
constitute an unfair labor practice. The Sixth Circuit itself has
so held,
NLRB v. Gafner Automotive Machine, Inc., 400 F.2d
10 (1968), and other courts of appeals have reached the same
result.
Amalgamated Clothing Workers v. NLRB, 345 F.2d 264
(CA2 1965);
NLRB v. Crest Leather Mfg. Corp., 414 F.2d 421
(CA5 1969). The existence of the initiation fee is created by the
union and represents a self-imposed barrier to entry. [
Footnote 2/3] There is no evidence that the
fee is normally imposed for the sole purpose of removing it during
a labor campaign. A different case might be put if the union
purported to remove a nonexistent fee or artificially inflated the
fee so as to misrepresent the benefit tendered by its removal.
See NLRB v. Gorbea, Perez & Morell, 328 F.2d 679 (CA1
1964). Similarly, it is established that the union can promise
employees to obtain wage increases or other benefits if it is
elected as a bargaining representative.
Wilson Atlhetic Goods
Mfg. Co. v. NLRB, 164 F.2d 637 (CA7 1947).
It must be obvious that these waivers of fees are a form of
economic inducement, as the opinion for the Court employs that
term. Undoubtedly an offer to reduce the cost of joining the union
makes the union a
Page 414 U. S. 284
more attractive possibility and may influence an employee to
vote for the union, though one would assume, in view of the other
costs and benefits at stake, that this consideration will be
marginal. Similarly, if the union represents to the employees that
it will attempt to secure higher wages, an employee's calculations
of costs and benefits will be altered, but, in that instance, the
union is merely stating the obvious; indeed, the promise of higher
wages is the primary rationale for the existence of the union. In
any event, these forms of inducement are valid.
In the instant case, an offer which, by its terms, expires with
the conclusion of the election is also a form of economic
inducement. But insofar as the offer might affect the calculation
of costs and benefits of joining the union, its effect is the same
as an offer which does not expire until some time after the
election. The inability to distinguish between these two
situations, at least where small fees are involved and where the
sole source of concern is pure financial inducement, led the Board
to conclude in
DIT-MCO that
"an employee who did not want the union to represent him would
hardly be likely to vote for the union just because there would be
no initial cost involved in obtaining membership."
163 N.L.R.B. at 1022.
The majority places heavy reliance on the supposed analogy
between the waiver of fees in this case and an actual increase in
benefits made by an employer during the course of an election
campaign.
NLRB v. Exchange Parts Co., 375 U.
S. 405 (1964). There, the employer increased vacation
pay benefits during the course of the campaign. The Court agreed
with the Board that this was coercive activity on the part of the
employer, and accordingly reversed the Court of Appeals and ordered
enforcement of the Board's order. It was stated that
Page 414 U. S. 285
"[t]he danger inherent in well timed increases in benefits is
the suggestion of a fist inside the velvet glove."
Id. at
409. A number of important differences exist between that case and
the instant one. First, the employer actually gave his employees
substantial increased benefits, whereas here the benefit is only
contingent and small; the union glove is not very velvet. Secondly,
in the union context, the fist is missing. When the employer
increased benefits, the threat was made "that the source of
benefits now conferred is also the source from which future
benefits must flow and which may dry up if it is not obliged."
Ibid. The Union, on the other hand, since it was not the
representative of the employees and would not be if it were
unsuccessful in the election, could not make the same threat by
offering a benefit which it would take away if it lost the
election. A union can only make its own victory more desirable in
the minds of the employees. [
Footnote
2/4]
II
If pure economic inducement in the form of lowering anticipated
costs of joining the union is not to be considered
Page 414 U. S. 286
coercive, one must focus on the special dangers, if any,
presented by the conditional offer, an analysis not undertaken by
the majority. It has been proposed that the conditional offer is
specially to be proscribed because of the interjection of a new
consideration into the voting choice of an employee: how probable
it is that the union will win or lose the election.
NLRB v.
Gafner Automotive Machine, Inc., 400 F.2d at 13 (Phillips, J.,
concurring);
Amalgamated Clothing Workers v. NLRB, 345
F.2d at 268 (Friendly, J., concurring). The argument might be that
an employee who estimates that the costs of joining the union
exceed the benefits, even taking into account the reduced
initiation fees available by signing a card, will still sign the
card, as a hedge, because of his prediction that the union will win
the election. [
Footnote 2/5] A
statement of the theory carries with it its own disproof. The
special inducement is to sign the card, not to vote for the union.
The majority decision collapses these two choices into one, and is
thus untenable. The majority assumes, contrary to fact, that the
employee has joined the Union by signing the authorization card.
This is only true, however, if the Union wins the election and
signs a collective contract, and the employee can still seek to
prevent that outcome by casting
Page 414 U. S. 287
his vote against the Union in a secret ballot. The testimony was
clear that, if the Union loses the election, the employee who signs
the card incurs no obligation to the Union. The expressed
preference in the National Labor Relations Act for secret ballot
elections assumes that voters may act differently in private than
in public, and ordinarily guarantees to employees the ability to
make a secret choice. It is, therefore, important to highlight the
fact that the Board in
DIT-MCO assumed,
arguendo,
"that employees who sign cards when offered a waiver of
initiation fees do so solely because no cost is thus involved; that
they, in fact, do not at that point really want the union to be
their bargaining representative."
163 N.L.R.B. at 1021.
There is no need to consider here, as does the majority, whether
the Union could achieve recognition on the basis of authorization
cards secured, in part, by an offer of fee waiver. Of course, a
card majority cannot serve as a basis for a § 8(a)(5) bargaining
order under
NLRB v. Gissel Pacing Co., 395 U.
S. 575,
395 U. S.
614-616 (1969), unless the employer has committed
serious unfair labor practices. It may be that, even given a
serious unfair labor practice on the part of the employer, these
cards could not serve as a basis for recognition. In this case,
however, the Board's bargaining order was based on the vote of a
secret ballot election, and the Court must supply the connective
between the decision to sign a card and the decision to vote for
the Union. [
Footnote 2/6]
Page 414 U. S. 288
This connective can only be supplied by some rather speculative
counter-rational psychological assumptions,
i.e., that a
person who signs the card will vote for the union. [
Footnote 2/7] The Board assumes that such is not
the case, and I am not prepared to upset the Board's judgment on
this matter. [
Footnote 2/8] The
majority opinion stresses the fact that the margin of Union victory
was only two
Page 414 U. S. 289
votes, and thus suggests that the "psychological connective" may
explain the outcome indicating that it "
may well have had
a decisive impact" (emphasis added). But there is no evidence to
this effect, and definitions of unfair practices which become a
function of the outcome of an election are subject to severe
problems of administration. The Board, in my judgment, is entitled
to regulate elections on standard theories of coercion.
III
Since the case for coercion arising out of the conditional offer
is speculative, and since the alteration of the calculus of costs
and benefits is marginal where a small fee is involved, the issue
here resolves into the proper allocation of institutional
responsibility between an administrative agency and a reviewing
court. The Board, upon reflection and study, has concluded that the
conditional offer is not coercive within the meaning of § 7. This
represented a basic change in policy, but "one of the signal
attributes of the administrative process is flexibility in
reconsidering and reforming of policy."
City of Chicago v.
FPC, 128 U.S.App.D.C. 107, 115, 385 F.2d 629, 637 (1967). Such
revisions are especially likely in the regulation of labor
elections, due to the substantial problems in deciding what is
likely to interfere with employee free choice.
See Bok,
The Regulation of Campaign Tactics in Representation Elections
under the National Labor Relations Act, 78 Harv.L.Rev. 38, 44-45
(1964).
While the invocation of agency expertise is not talismanic,
see Radio Corp. v. United States, 341 U.
S. 412,
341 U. S. 421
(1951) (Frankfurter, J.,
dubitante), and while the
decision of the Board must be supported by substantial evidence,
Universal Camera Corp. v. NLRB, 340 U.
S. 474 (1951), one cannot ask the agency to do the
impossible. When choosing between alternative contentions
Page 414 U. S. 290
of coercion, the agency must make Judgments based on available
knowledge. This is a difficult task, and accounts in part for the
decision of Congress to entrust the Board
"with a wide degree of discretion in establishing the procedure
and safeguards necessary to insure the fair and free choice of
bargaining representatives by employees."
NLRB v. Tower Co., 329 U.S. at
329 U. S. 330.
Recognition of this discretion has been a recurrent theme in this
Court's review of Board decisions.
NLRB v. Waterman S.S.
Co., 309 U. S. 206,
309 U. S. 226
(1940);
NLRB v. Wyman-Gordon Co., 394 U.
S. 759,
394 U. S. 767
(1969). In other contexts, the Board has had to perform the
"far more delicate task . . . of weighing the interests of
employees in concerted activity against the interest of the
employer in operating his business in a particular manner. . .
."
NLRB v. Erie Resistor Corp., 373 U.
S. 221,
373 U. S. 229
(1963);
American Ship Bldg. Co. v. NLRB, 380 U.
S. 300,
380 U. S. 312
(1965). There is certainly a conflicting interest between the
union's right to make itself attractive to employees without
misrepresentation and the employee's unfettered choice to vote for
or against the union. I think it is rational for the Board to
conclude on the basis of the facts presented that the decision of
the Union to waive small fees was not coercive within the meaning
of § 7. I therefore respectfully dissent.
[
Footnote 2/1]
The opinion for the Court places no special emphasis on the fact
that the waiver of initiation fees may have been referred to as a
"fine." Since the Hearing Officer expressly found that no such
representation was made, the matter deserves no further
attention.
[
Footnote 2/2]
Mr. Bridgeman, an employee who attended the meeting, testified
that his brother asked Smith if there was a fee for joining the
union. Mr. Smith's answer was "[t]here would be a small fee." App.
28.
[
Footnote 2/3]
The role of the initiation fee has been described by one writer
as follows:
"Initiation fees serve several sorts of union purposes. First,
of course, they are a source of revenue, which is occasionally
expendable however during an organization drive when the union is
anxious to induce workers to join the union. Second, the initiation
fee represents for the older member a kind of equity payment by the
new member to compensate, at least partially, for the efforts that
others have put into building the union. . . ."
J. Barbash, The Practice of Unionism 79 (1956).
[
Footnote 2/4]
The Court cannot ignore the fact, as well, that § 1 of the
National Labor Relations Act declared the congressional policy of
"encouraging the practice and procedure of collective bargaining."
29 U.S.C. § 151. The existence of unions is an inescapable
corollary of this preference. To the extent that this Court
prohibits the union from promising a fairer deal for unionized
employees by describing the benefits to be obtained by
unionization, this policy is seriously eroded. This Court has often
underscored this preference in the Act.
See, e.g., Phelps Dodge
Corp. v. NLRB, 313 U. S. 177,
313 U. S. 182
(1941);
NLRB v. Allis-Chalmers Mfg. Co., 388 U.
S. 175,
388 U. S. 180
(1967). This preference is only one of opportunity and the free
choice of the employee must be protected, but restrictions on the
communications of the union as to potential benefits may unduly
prevent the intelligent exercise of such choice. The employer may
garner loyalty through his actions and record of past performance
for his own employees; the union can only sell employees the
future.
[
Footnote 2/5]
This possibility of hedging is to some extent borne out by the
record. Although the Court cannot know what the correlation was
between signed cards and votes for the Union, we do know that not
everyone who signed cards voted for the Union. Twenty-eight persons
plus signed cards (App. 75), and only 22 voted for the Union.
Moreover, there is testimony that some employees discussed the
hedge.
"Of course, some of us fellows did say to other fellows that
were really against it [the Union]
and have always been against
it, 'you better sign your ticket and turn it in, because, if
you didn't, if it does get voted in, if the majority of the men
vote the union in, at least you have to pay your dues, which is
very natural, but you wouldn't have to pay no initiation fee.'"
App. 229. (Emphasis added.)
[
Footnote 2/6]
As to the possible effect of the fee waiver offer on securing
the 30% showing necessary for holding an election, whether or not
there is a valid showing is a matter for administrative
determination not subject to litigation by the parties.
Goodyear Tire & Rubber Co., 138 N.L.R.B. 453 (1962).
Courts of appeals have uniformly so held.
See NLRB v. J. I.
Case Co., 201 F.2d 597 (CA9 1953);
NLRB v. White Constr.
& Eng. Co., 204 F.2d 950, 953 (CA5 1953);
Kearney
& Trecker Corp. v. NLRB, 209 F.2d 782, 787-788 (CA7 1953);
NLRB v. National Truck Rental Co., 99 U.S.App.D.C. 259,
261-262, 239 F.2d 422, 424-425 (1956) (Burger, J.),
cert.
denied, 352 U.S. 1016 (1957);
NLRB v. Louisville Chair
Co., 385 F.2d 922, 926-927 (CA6 1967);
Intertype Co. v.
NLRB, 401 F.2d 41, 43 (CA4 1968),
cert. denied, 393
U.S. 1049 (1969).
[
Footnote 2/7]
It is certainly arguable that such a connection can be made when
the union pays a person cash to vote for or assist the union. The
benefit of the union has been tendered and the employee may well
feel he has incurred a moral obligation to vote for the union.
See, e.g., Wagner Electric Corp., 167 N.L.R.B. 532, 533
(1967) (grant of life insurance policy to those who signed with
union before representation election "subjects the donees to a
constraint to vote for the donor union").
See also Collins
& Aikman Corp. v. NLRB, 383 F.2d 722 (CA4 1967) (payment
of $7 to employee to be observer at election);
NLRB v.
Commercial Letter, Inc., 455 F.2d 109 (CA8 1972) (excessive
payments to union members to attend meetings). In
Wagner,
supra, the Board distinguished the initiation fee decision in
DIT-MCO, Inc., 163 N.L.R.B. 1019 (1967), on the ground
that there was no immediate improvement in an employee's economic
situation when fees were waived.
[
Footnote 2/8]
The majority in its conclusion seems to articulate still another
theory of coercion:
"The failure to sign a recognition slip may well seem ominous to
nonunionists who fear that, if they do not sign, they will face a
wrathful union regime, should the union win."
This theory, of course, assumes a card signer will vote for the
union. Moreover, this problem is fundamental in labor elections, at
the outset, when cards are collected for the purpose of holding an
election pursuant to the necessary showing of support, and, at the
conclusion, if the union wins, when those who oppose the union must
still decide to join the union or face the union's wrath. One could
easily argue that at least an equal deterrent to signing the card
is the wrathful employer if the union
loses the
election.