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Supreme Court 113 rulemaking procedures, but disagreed that this defect was rendered immaterial by the specific direction in Wyman-Gordon. However, a majority for upholding the names and addresses requirement in that case was obtained through the votes of Justices Black, Brennan, and Marshall, who filed a separate concurring opinion. In the view of the three concurring Justices, the Board, in Exclsior, was not required to follow the APA rulemaking procedures, for both the APA and the NLRA gave "the Board the authority to decide, within its informed discretion, whether to proceed by rule making or adjudication." Moreover, the concurring Justices added, the Excelsior decision constituted an "adjudication" even though the requirement was to be prospectively applied. "The Board's opinion [in Excelsior] should not be regarded as any less an appropriate part of the adjudicatory process merely because the reason it gave for rejecting the unions' position was not that the Board disagreed with them as to the merits of the disclosure procedure but rather . . . that . . . the Board did not feel that it should upset the Excelsior Company's justified reliance on previous refusals to compel disclosure by setting aside this particular election." B. Authorization Cards as Proof of Majority and the Basis for a Bargaining Order In Gissel, 6 the Supreme Court sustained the Board's position that an employer who refuses to recognize a union which has obtained valid authorization cards from a majority of the employees in an appropriate unit may be ordered to bargain with the union if he engages in unfair labor practices which tend to undermine the union's support and prevent a fair election. The Court rejected the contention that the 1947 amendments to the Act made a Board election the exclusive means of establishing a union's representative status, pointing out that, on the contrary, Congress had specifically declined to accept an amendment which would have limited an employer's obligation to bargain under section 8(a) (5) to unions certified by the Board. The Court further rejected the contention that authorization cards were such inherently unreliable indicators of employee desires that they could never be used to support a bargaining order. The Court acknowledged the superiority of the election process for determining whether a union has majority support, but con- 6 N.L.R.S. v. Gissel Packing Co., 395 U.S. 575, As noted (fn. 1, supra), the Court's opinion covered four cases, Giasel, Heck's, General Steel, and Sinclair.
114 Thirty-fourth Annual Report of the National Labor Relations Board eluded that this "does not mean that cards are thereby rendered totally invalid, for where an employer engages in conduct disruptive of the election process, cards may be the most effective— perhaps the only—way of assuring employee choice." And, as for misrepresentation, "the proper course is to apply the Board's customary standards . . . and rule there was no majority if the standards were not satisfied." 7 Respecting the substantive theory of the unlawful refusal to bargain, the Court noted that, under the Board's current practice, "an employer's good faith doubt [as to the union's majority status] is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfer with the election processes and tend to preclude the holding of a fair election." The Court held that a bargaining order was appropriate in these circumstances. 8 The only effect of its holding, the Court added, was to approve the Board's use of the bargaining order, not only in "'exceptional cases marked by 'outrageous' and 'pervasive' unfair labor practices," 9 but also "in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." Thus, " [i]f the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employer sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue." 10 The Court concluded that the bargaining order in the Sinclair case (see fn. 1, supra) was adequately supported, since the Board had "made a finding, left undisturbed by the First Circuit, that the employer's threats of reprisal were so coercive that, even in the absence of 8(a) (5) violation, a bargaining order would have 7 The Court approved the Board's Cumberland Shoe principle, 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (C.A. 6), under which a card that unambiguousl y designates the union as the signer's collective-bargaining representative will not be invalidated unless the employee is told in some form of words that the only purpose of the card is to obtain an election The Court specifically rejected "any rule that requires a probe of an employee's subjective motivations," since that entails "an endless and unreliable inquiry." 8 Because the employer's refusal to bargain in each of the cases before the Court was accompanied by independent unfair labor practices which tended to preclude the holding of a fair election, the Court found it unnecessary to decide "whether a bargaining order is ever appropriate in cases where there is no interference with the election process." 8 The Fourth Circuit, while refusing to validate the general use of a bargaining order based on cards, left open the possibility of imposing one in such cases. See N.L.R.B. v. Logan Packing Co. 386 F.2d 562, 570 (C.A. 4). i° The Court emphasized that "ifit is for the Board and not the courts . . . to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity.-
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TMR.TY-FOURM ANNUAL REPORT
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NATIONAL LABOR RELATIONS BOARD Memb
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7 TABLE OF CONTENTS CHAPTER I. Oper
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Table of Contents ix Page 1. Preser
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PERCENT PERCENT 100 100 1111111 90
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II Jurisdiction of the Board The Bo
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V Representation Cases The Act requ
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Table 3A.—Formal Actions Taken in
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Table 4.—Remedial Actions Taken i
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Table 6.—Geographic Distribution
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Table 7.-Analysis of Methods of Dis
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it! All C cases CA cases CB cases C
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Stage of disposition ' Table 8.-Dis
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Table 11A.—Analysis of Elections
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Table 13.-Final Outcome of Represen
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Participating unions AFL-CIO v. AFL
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Table 14.-Valid Votes Cast in Repre
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Participating unions AFL-CIO v. AFL
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144 0 Table 16.-Industrial Distribu
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