395 U.S.

575
89 S.Ct. 1918
23 L.Ed.2d 547

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
GISSEL PACKING CO., Inc., et al. FOOD STORE
EMPLOYEES UNION, LOCAL NO. 347, AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, AFLCIO, Petitioner, v. GISSEL PACKING
CO., Inc. The SINCLAIR COMPANY, Petitioner, v.
NATIONAL LABOR RELATIONS BOARD.
Nos. 573, 691, 585.
Argued March 26 and 27, 1969.
Decided June 16, 1969.
Rehearing Denied Oct. 13, 1969.

See 90 S.Ct. 35.

[Syllabus from pages 575-578 intentionally omitted]
Dominick L. Manoli, Washington, D.C., for N.L.R.B., petitioner.
Albert Gore, Chicago, Ill., for Food Store Employees Union, Local No.
347, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFLCIO.
John E. Jenkins, Jr., Huntington, W. Va., for Gissel Packing Co., Inc.
Lewis P. Hamlin, Jr., Salisbury, N.C., for General Steel Products, Inc.,
and another.
Frederick F. Holroyd, Charleston, W. Va., for Hecks, Inc.
Edward J. Simerka, Cleveland, Ohio, for the Sinclair Co.
Lawrence G. Wallace, Washington, D.C., for N.L.R.B., respondent.

Mr. Chief Justice WARREN delivered the opinion of the Court.

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, and the steps an employer
may take, particularly with regard to the scope and content of statements he
may make, in legitimately resisting such card-based recognition. The specific
questions facing us here are whether the duty to bargain can arise without a
Board election under the Act; whether union authorization cards, if obtained
from a majority of employees without misrepresentation or coercion, are
reliable enough generally to provide a valid, alternate route to majority status;
whether a bargaining order is an appropriate and authorized remedy where an
employer rejects a card majority while at the same time committing unfair
practices that tend to undermine the union's majority and make a fair election
an unlikely possibility; and whether certain specific statements made by an
employer to his employees constituted such an election-voiding unfair labor
practice and thus fell outside the protection of the First Amendment and 8(c)
of the Act, 49 Stat. 452, as amended, 29 U.S.C. 158(c). For reasons given
below, we answer each of these questions in the affirmative.

I.
2

Of the four cases before us, threeGissel Packing Co., Heck's Inc., and
General Steel Products, Inc.were consolidated following separate decisions
in the Court of Appeals for the Fourth Circuit and brought here by the National
Labor Relations Board in No. 573. Food Store Employees Union, Local No.
347, the petitioning Union in Gissel, brought that case here in a separate
petition in No. 691. All three cases present the same legal issues in similar,
uncomplicated factual settings that can be briefly described together. The fourth
case, No. 585 (Sinclair Company), brought here fromt he Court of Appeals for
the First Circuit and argued separately, presents many of the same questions
and will thus be disposed of in this opinion; but because the validity of some of
the Board's factual findings are under attack on First Amendment grounds,
detailed attention must be paid to the factual setting of that case.

3Nos. 573 and 691.

4

In each of the cases from the Fourth Circuit, the course of action followed by
the Union and the employer and the Board's response were similar. In each
case, the Union waged an organizational campaign, obtained authorization
cards from a majority of employees in the appropriate bargaining unit, and then,

on the basis of the cards, demanded recognition by the employer. All three
employers refused to bargain on the ground that authorization cards were
inherently unreliable indicators of employee desires; and they either embarked
on, or continued, vigorous antiunion campaigns that gave rise to numerous
unfair labor practice charges. In Gissel, where the employer's campaign began
almost at the outset of the Union's organizational drive, the Union (petitioner in
No. 691), did not seek an election, but instead filed three unfair labor practice
charges against the employer, for refusing to bargain in violation of 8(a)(5),
for coercion and intimidation of employees in violation of 8(a) (1), and for
discharge of Union adherents in violation of 8(a)(3).1 In Heck's an election
sought by the Union was never held because of nearly identical unfair labor
practice charges later filed by the Union as a result of the employer's antiunion
campaign, initiated after the Union's recognition demand.2 And in General
Steel, an election petitioned for by the Union and won by the employer was set
aside by the Board because of the unfair labor practices committed by the
employer in the pre-election period.3
5

In each case, the Board's primary response was an order to bargain directed at
the employers, despite the absence of an election in Gissel and Heck's and the
employer's victory in General Steel. More specifically, the Board found in each
case (1) that the Union had obtained valid authorization cards4 from a majority
of the employees in the bargaining unit and was thus entitled to represent the
employees for collective bargaining purposes; and (2) that the employer's
refusal to bargain with the Union in violation of 8(a)(5) was motivated, not by
a 'good faith' doubt of the Union's majority status, but by a desire to gain time to
dissipate that status. The Board based its conclusion as to the lack of good faith
doubt on the fact that the employers had committed substantial unfair labor
practices during their antiunion campaign efforts to resist recognition. Thus, the
Board found that all three employers had engaged in restraint and coercion of
employees in violation of 8(a)(1)in Gissel, for coercively interrogating
employees about Union activities, threatening them with discharge, and
promising them benefits; in Heck's, for coercively interrogating employees,
threatening reprisals, creating the appearance of surveillance, and offering
benefits for opposing the Union; and in General Steel, for coercive
interrogation and threats of reprisals, including discharge. In addition, the
Board found that the employers in Gissel and Heck's had wrongfully discharged
employees for engaging in Union activities in violation of 8(a)(3). And,
because the employers had rejected the card-based bargaining demand in bad
faith, the Board found that all three had refused to recognize the Unions in
violation of 8(a)(5).

Only in General Steel was there any objection by an employer to the validity of

the cards and the manner in which they had been solicited, and the doubt raised
by the evidence was resolved in the following manner. The customary
approach of the Board in dealing with allegations of misrepresentation by the
Union and misunderstanding by the employees of the purpose for which the
cards were being solicited has been set out in Cumberland Shoe Corp., 144
N.L.R.B. 1268 (1963), and reaffirmed in Levi Strauss & Co., 172 N.L.R.B. No.
57, 68 L.R.R.M. 1338 (1968). Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (i.e., states on its face that the signer authorizes the
Union to represent the employee for collective bargaining purposes and not to
seek an election), it will be counted unless it is proved that the employee was
told that the card was to be used solely for the purpose of obtaining an election.
In General Steel, the trial examiner considered the allegations of
misrepresentation at length and, applying the Board's customary analysis,
rejected the claims with findings that were adopted by the Board and are
reprinted in the margin.5
7* * *
8

'With respect to the 97 employees named in the attached Appendix B

Respondent in its brief contends, in substance, that their cards should be
rejected because each of these employees was told one or more of the
following: (1) that the card would be used to get an election (2) that he had the
right to vote either way, even though he signed the card (3) that the card would
be kept secret and not shown to anybody except to the Board in order to get an
election. For reasons heretofore explicated, I conclude that these statements,
singly or jointly, do not foreclose use of the cards for the purpose designated on
their face.' Consequently, the Board ordered the companies to cease and desist
from their unfair labor practices, to offer reinstatement and back pay to the
employees who had been discriminatorily discharged, to bargain with the
Unions on request, and to post the appropriate notices.

On appeal, the Court of Appeals for the Fourth Circuit, in per curiam opinions
in each of the three cases (398 F.2d 336, 337, 339), sustained the Board's
findings as to the 8(a)(1) and (3) violations, but rejected the Board's findings
that the employers' refusal to bargain violated 8(a)(5) and declined to enforce
those portions of the Board's orders directing the respondent companies to
bargain in good faith. The court based its 8(a)(5) rulings on its 1967 decisions
raising the same fundamental issues, Crawford Mfg. Co. v. NLRB, 386 F.2d
367, cert. denied, 390 U.S. 1028, 88 S.Ct. 1408, 20 L.Ed.2d 286 (1968); NLRB
v. S. S. Logan Packing Co., 386 F.2d 562; NLRB v. Sehon Stevenson & Co.,
Inc., 386 F.2d 551. The court in those cases held that the 1947 Taft-Hartley
amendments to the Act, which permitted the Board to resolve representation

disputes by certification under 9(c) only by secret ballote lection, withdrew

from the Board the authority to order an employer to bargain under 8(a)(5) on
the basis of cards, in the absence of NLRB certification, unless the employer
knows independently of the cards that there is in fact no representation dispute.
The court held that the cards themselves were so inherently unreliable that their
use gave an employer virtually an automatic, good faith claim that such a
dispute existed, for which a secret election was necessary. Thus, these rulings
established that a company could not be ordered to bargain unless (1) there was
no question about a Union's majority status (either because the employer agreed
the cards were valid or had conducted his own poll so indicating), or (2) the
employer's 8(a)(1) and (3) unfair labor practices committed during the
representation campaign were so extensive and pervasive that a bargaining
order was the only available Board remedy irrespective of a card majority.
10

Thus based on the earlier decisions, the court's reasoning in these cases was
brief, as indicated by the representative holding in Heck's:

11

'We have recently discussed the unreliability of the cards, in the usual case, in
determining whether or not a union has attained a majority status and have
concluded that an employer is justified in entertaining a good faith doubt of the
union's claims when confronted with a demand for recognition based solely
upon union authorization cards. We have also noted that the National Labor
Relations Act after the Taft-Hartley amendments provides for an election as the
sole basis of a certification and restricts the Board to the use of secret ballots
for the resolution of representation questions. This is not one of those
extraordinary cases in which a bargaining order might be an appropriate remedy
for pervasive violations of 8(a)(1). It is controlled by our recent decisions and
their reasoning. * * * There was not substantial evidence to support the findings
of the Board that Heck's, Inc. had no good faith doubt of the unions' claims of
majorities.' 398 F.2d, at 338339.

No. 585.
12

In No. 585, the factual pattern was quite similar. The petitioner, a producer of
mill rolls, wire, and related products at two plants in Holyoke, Massachusetts,
was shut down for some three months in 1952 as the result of a strike over
contract negotiations with the American Wire Weavers Protective Association,
the representative of petitioner's journeymen and apprentice wire weavers from
1933 to 1952. The Company subsequently reopened without a union contract,
and its employees remained unrepresented through 1964, when the Company
was acquired by an Ohio corporation, with the Company's former president
continuing as head of the Holyoke, Massachusetts, division. In July 1965, the

International Brotherhood of Teamsters, Local Union No. 404, began an

organizing campaign among petitioner's Holyoke employees and by the end of
the summer had obtained authorization cards from 11 of the Company's 14
journeymen wire weavers choosing the Union as their bargaining agent. On
September 20, the Union notified petitioner that it represented a majority of its
wire weavers, requested that the Company bargain with it, and offered to
submit the signed cards to a neutral third party for authentication. After
petitioner's president declined the Union's request a week later, claiming, inter
alia, that he had a good faith doubt of majority status because of the cards'
inherent unreliability, the Union petitioned, on November 8, for an election that
was ultimately set for December 9.
13

When petitioner's president first learned of the Union's drive in July, he talked
with all of his employees in an effort to dissuade them from joining a union. He
particularly emphasized the results of the long 1952 strike, which he claimed
'almost put our company out of business,' and expressed worry that the
employees were forgetting the 'lessons of the past.' He emphasized, secondly,
that the Company was still on 'thin ice' financially, that the Union's 'only
weapon is to strike,' and that a strike 'could lead to the closing of the plant,'
since the parent company had ample manufacturing facilities elsewhere. He
noted, thirdly, that because of their age and the limited usefulness of their skills
outside their craft, the employees might not be able to find re-employment if
they lost their jobs as a result of a strike. Finally, he warned those who did not
believe that the plant could go out of business to 'look around Holyoke and see
a lot of them out of business.' The president sent letters to the same effect to the
employees in early November, emphasizing that the parent company had no
reason to stay in Massachusetts if profits went down.

14

During the two or three weeks immediately prior to the election on December
9, the president sent the employees a pamphlet captioned: 'Do you want another
13-week strike?' stating, inter alia, that: 'We have no doubt that the Teamsters
Union can again close the Wire Weaving Department and the entire plant by a
strike. We have no hopes that the Teamsters Union Bosses will not call a strike.
* * * The Teamsters Union is a strike happy outfit.' Similar communications
followed in late November, including one stressing the Teamsters' 'hoodlum
control.' Two days before the election, the Company sent out another pamphlet
that was entitled: 'Let's Look at the Record,' and that purported to be an
obituary of companies in the Holyoke-Springfield, Massachusetts, area that had
allegedly gone out of business because of union demands, eliminating some
3,500 jobs; the first page carried a large cartoon showing the preparation of a
grave for the Sinclair Company and other headstones containing the names of
other plants allegedly victimized by the unions. Finally, on the day before the

election, the president made another personal appeal to his employees to reject
the Union. He repeated that the Company's financial condition was precarious;
that a possible strike would jeopardize the continued operation of the plant; and
that age and lack of education would make re-employment difficult. The Union
lost the election 76, and then filed both objections to the election and unfair
labor practice charges which were consolidated for hearing before the trial
examiner.
15

The Board agreed with the trial examiner that the president's communications
with his employees, when considered as a whole, 'reasonably tended to convey
to the employees the belief or impression that selection of the Union in the
forthcoming election could lead (the Company) to close its plant, or to the
transfer of the weaving production, with the resultant loss of jobs to the wire
weavers.' Thus, the Board found that under the 'totality of the circumstances'
petitioner's activities constituted a violation of 8(a)(1) of the Act. The Board
further agreed with the trial examiner that petitioner's activities, because they
'also interferred with the exercise of a free and untrammeled choice in the
election,' and 'tended to forclose the possibility' of holding a fair election,
required that the election be set aside. The Board also found that the Union had
a valid card majority (the unambiguous cards, see n. 4, supra, went
unchallenged) when it demanded recognition initially and that the Company
declined recognition, not because of a good faith doubt as to the majority status,
but, as the 8(a)(1) violations indicated, in order to gain time to dissipate that
statusin violation of 8(a)(5). Consequently, the Board set the election aside,
entered a cease-and-desist order, and ordered the Company to bargain on
request.

16

On appeal, the Court of Appeals for the First Circuit sustained the Board's
findings and conclusions and enforced its order in full. 397 F.2d 157. The court
rejected the Company's proposition that the inherent unreliability of
authorization cards entitled an employer automatically to insist on an election,
noting that the representative status of a union my be shown by means other
than an election; the court thus reaffirmed its stance among those circuits
disavowing the Fourth Circuit's approach to authorization cards.6 Because of
the conflict among the circuits on the card issues and because of the alleged
conflict between First Amendment freedoms and the restrictions placed on
employer speech by 8(a)(1) in Sinclair, No. 585, we granted certiorari to
consider both questions. 393 U.S. 997, 89 S.Ct. 482, 21 L.Ed.2d 462 (1968).
For reasons given below, we reverse the decisions of the Court of Appeals for
the Fourth Circuit and affirm the ruling of the Court of Appeals for the First
Circuit.

II.
17

In urging us to reverse the Fourth Circuit and to affirm the First Circuit, the
National Labor Relations Board contends that we should approve its
interpretation and administration of the duties and obligations imposed by the
Act in authorization card cases. The Board argues (1) that unions have never
been limited under 9(c) of either the Wagner Act or the 1947 amendments to
certified elections as the sole route to attaining representative status. Unions
may, the Board contends, impose a duty to bargain on the employer under
8(a)(5) by reliance on other evidence of majority employee support, such as
authorization cards. Contrary to the Fourth Circuit's holding, the Board asserts,
the 1947 amendments did not eliminate the alternative routes to majority status.
The Board contends (2) that the cards themselves, when solicited in accordance
with Board standards which adequately insure against union misrepresentation,
are sufficiently reliable indicators of employee desires to support a bargaining
order against an employer who refuses to recognize a card majority in violation
of 8(a)(5). The Board argues (3) that a bargaining order is the appropriate
remedy for the 8(a)(5) violation, where the employer commits other unfair
labor practices that tend to undermine union support and render a fair election
improbable.

18

Relying on these three assertions, the Board asks us to approve its current
practice, which is briefly as follows. When confronted by a recognition demand
based on 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 9(c)(1) (B). If,
however, the employer commits independent and substantial unfair labor
practices disruptive of election conditions, the Board may withhold the election
or set it aside, and issue instead a bargaining order as a remedy for the various
violatios . A bargaining order will not issue of course, if the union obtained the
cards through misrepresentation or coercion or if the employer's unfair labor
practices are unrelated generally to the representation campaign. Conversely,
the employers in these cases urge us to adopt the views of the Fourth Circuit.

19

There is more at issue in these cases than the dispute outlined above between
the Board and the four employers, however, for the Union, petitioner in No.
691, argues that we should accord a far greater role to cards in the bargaining
area than the Board itself seeks in this litigation. In order to understand the
differences between the Union and the Board, it is necessary to trace the
evolution of the Board's approach to authorization cards from its early practice

to the position it takes on oral argument before this Court. Such an analysis
requires viewing the Board's treatment of authorization cards in three separate
phases: (1) under the Joy Silk doctrine, (2) under the rules of the Aaron
Brothers case, and (3) under the approach announced at oral argument before
this Court.
20

The traditional approach utilized by the Board for many years has been known
as the Joy Silk doctrine. Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949),
enforced, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950). Under that rule, an
employer could lawfully refuse to bargain with a union claiming representative
status through possession of authorization cards if he had a 'good faith doubt' as
to the union's majority status; instead of bargaining, he could insist that the
union seek an election in order to test out his doubts. The Board, then, could
find a lack of good faith doubt and enter a bargaining order in one of two ways.
It could find (1) that the employer's independent unfair labor practices were
evidence of bad faith, showing that the employer was seeking time to dissipate
the union's majority. Or the Board could find (2) that the employer had come
forward with no reasons for entertaining any doubt and therefore that he must
have rejected the bargaining demand in bad faith. An example of the second
category was Snow & Sons, 134 N.L.R.B. 709 (1961), enforced, 308 F.2d 687
(C.A.9th Cir. 1962), where the employer reneged on his agreement to bargain
after a third party checked the validity of the card signatures and insisted on an
election because he doubted that the employees truly desired representation.
The Board entered a bargaining order with very broad language to the effect
that an employer could not refuse a bargaining demand and seek an election
instead 'without a valid ground therefor,' 134 N.L.R.B., at 710711. See also
Dixon Ford Shoe Co., Inc., 150 N.L.R.B. 861 (1965); Kellogg Mills, 147
N.L.R.B. 342, 346 (1964), enforced, 347 F.2d 219 (C.A.9th Cir. 1965).

21

The leading case codifying modifications to the Joy Silk doctrine was Aaron
Brothers, 158 N.L.R.B. 1077 (1966). There the Board made it clear that it had
shifted the burden to the General Counsel to show bad faith and that an
employer 'will not be held to have violated his bargaining obligation * * *
simply because he refuses to rely upon cards, rather than an election, as the
method for determining the union's majority.' 158 N.L.R.B., at 1078. Two
significant consequences were emphasized. The Board noted (1) that not every
unfair labor practice would automatically result in a finding of bad faith and
therefore a bargaining order; the Board implied that it would find bad faith only
if the unfair labor practice was serious enough to have the tendency to dissipate
the union's majority. The Board noted (2) that an employer no longer needed to
come forward with reasons for rejecting a bargaining demand. The Board
pointed out, however, that a bargaining order would issue if it could prove that

an employer's 'course of conduct' gave indications as to the employer's bad

faith. As examples of such a 'course of conduct,' the Board cited Snow & Sons,
supra; Dixon Ford Shoe Co., Inc., supra, and Kellogg Mills, supra, h ereby
reaffirming John P. Serpa, Inc., 155 N.L.R.B. 99 (1965), where the Board had
limited Snow & Sons to its facts.
22

Although the Board's brief before this Court generally followed the approach as
set out in Aaron Brothers, supra, the Board announced at oral argument that it
had virtually abandoned the Joy Silk doctrine altogether. Under the Board's
current practice, an employer's good faith doubt is largely irrelevant, and the
key to the issuance of a bargaining order is the commission of serious unfair
labor practices that interfere with the election processes and tend to preclude
the holding of a fair election. Thus, an employer can insist that a union go to an
election, regardless of his subjective motivation, so long as he is not guilty of
misconduct; he need give no affirmative reasons for rejecting a recognition
request, and he can demand an election with a simple 'no comment' to the
union. The Board pointed out, however, (1) that an employer could not refuse to
bargain if he knew, through a personal poll for instance, that a majority of his
employees supported the union, and (2) that an employer could not refuse
recognition initially because of questions as to the appropriateness of the unit
and then later claim, as an afterthought, that he doubted the union's strength.

23

The Union argues here that an employer's right to insist on an election in the
absence of unfair labor practices should be more circumscribed, and a union's
right to rely on cards correspondingly more expanded, than the Board would
have us rule. The Union's contention is that an employer, when confronted with
a card-based bargaining demand, can insist on an election only by filing the
election petition himself immediately under s 9(c)(1)(B) and not by insisting
that the Union file the election petition, whereby the election can be subjected
to considerable delay. If the employer does not himself petition for an election,
the Union argues, he must recognize the Union regardless of his good or bad
faith and regardless of his other unfair labor practices, and should be ordered to
bargain if the cards were in fact validly obtained. And if this Court should
continue to utilize the good faith doubt rule, the Union contends that at the least
we should put the burden on the employer to make an affirmative showing of
his reasons for entertaining such doubt.

24

Because the employers' refusal to bargain in each of these cases was

accompanied by independent unfair labor practices which tend to preclude the
holding of a fair election, we need not decide whether a bargaining order is
ever appropriate in cases where there is no interference with the election
processes.

25

With the Union's arguments aside, the points of difference between the
employers and the Board will be considered in the following manner. The
validity of the cards under the Act, their intrinsic reliability, and the
appropriateness of a bargaining order as a response to violations of 8(a)(5) as
well as 8(a)(1) and (3) will be discussed in the next section. The nature of an
employer's reaction to an organizational compaign, and particularly the Board's
conclusion that the employer's statements in No. 585 contained threats of
reprisal and thus constituted restraint and coercion in violation of 8(a)(1) and
not protected speech, will be covered in the final section.

III.
A.
26

The first issue facing us is whether a union can establish a bargaining

obligation by means other than a Board election and whether the validity of
alternate routes to majority status, such as cards, was affected by the 1947 TaftHartley amendments. The most commonly traveled7 route for a union to obtain
recognition as the exclusive bargaining representative of an unorganized group
of employees is through the Board's election and certification procedures under
9(c) of the Act (29 U.S.C. 159(c)); it is also, from the Board's point of view,
the preferred route.8 A union is not limited to a Board elet ion, however, for, in
addition to 9, the present Act provides in 8(a) (5) (29 U.S.C. 158(a)(5)), as
did the Wagner Act in 8(5), that '(i)t shall be an unfair labor practice for an
employer * * * to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 9(a).' Since 9(a), in both the
Wagner Act and the present Act, refers to the representative as the one
'designated or selected' by a majority of the employees without specifying
precisely how that representative is to be chosen, it was early recognized that
an employer had a duty to bargain whenever the union representative presented
'convincing evidence of majority support.'9 Almost from the inception of the
Act, then, it was recognized that a union did not have to be certified as the
winner of a Board election to invoke a bargaining obligation; it could establish
majority status by other means under the unfair labor practice provision of
8(a)(5)by showing convincing support, for instance, by a union-called strike
or strike vote,10 or, as here, by possession of cards signed by a majority of the
employees authorizing the union to represent them for collective bargaining
purposes.11

27

We have consistently accepted this interpretation of the Wagner Act and the
present Act, particularly as to the use of authorization cards. See, e.g., NLRB v.
Bradford Dyeing Assn., 310 U.S. 318, 339340, 60 S.Ct. 918, 929, 84 L.Ed.

122 (1940); Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed.
1020 (1944); United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62, 76
S.Ct. 559, 100 L.Ed. 941 (1956). Thus, in United Mine Workers, supra, we
noted that a 'Board election is not the only method by which an employer may
satisfy itself as to the union's majority status,' 351 U.S. at 72, n. 8, 76 S.Ct. at
565, since 9(a), 'which deals expressly with employee representation, says
nothing as to how the employees' representative shall be chosen,' 351 U.S. at
71, 76 S.Ct. at 565. We therefore pointed out in that case, where the union had
obtained signed authorization cards from a majority of the employees, that '(i)n
the absence of any bona fide dispute12 as to the existence of the required
majority of eligible employees, the employer's denial of recognition of the
union would have violated s 8(a)(5) of the Act.' 351 U.S. at 69, 76 S.Ct. at 563.
We see no reason to reject this approach to bargaining obligations now, and we
find unpersuasive the Fourth Circuit's view that the 1947 Taft-Hartley
amendments, enacted some nine years before our decs ion in United Mine
Workers, supra, require us to disregard that case. Indeed, the 1947 amendments
weaken rather than strengthen the position taken by the employers here and the
Fourth Circuit below. An early version of the bill in the House would have
amended 8(5) of the Wagner Act to permit the Board to find a refusal-tobargain violation only where an employer had failed to bargain with a union
'currently recognized by the employer or certified as such (through an election)
under section 9.' Section 8(a)(5) of H.R. 3020, 80th Cong., 1st Sess. (1947).
The proposed change, which would have eliminated the use of cards, was
rejected in Conference (H.R.Conf.Rep.No. 510, 80th Cong., 1st Sess., 41
(1947)), however, and we cannot make a similar change in the Act simply
because, as the employers assert, Congress did not expressly approve the use of
cards in rejecting the House amendment. Nor can we accept the Fourth
Circuit's conclusion that the change was wrought when Congress amended
9(c) to make election the sole basis for certification by eliminating the phrase
'any other suitable method to ascertain such representatives,'13 under which the
Board had occasionally used cards as a certification basis. A certified union has
the benefit of numerous special privileges which are not accorded unions
recognized voluntarily or under a bargaining order14 and which, Congress could
determine, should not be dispensed unless a union has survived the crucible of a
secret ballot election.
28

The employer rely finally on the addition to 9(c) of subparagraph (B), which
allows an employer to petition for an election whenever 'one or more
individuals or labor organizations have presented to him a claim15 to be
recognized the cards themselves may never be used section 9(a).' That
provision was not added, as the employers 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 would then presumably not
cause to be set aside by illegal antiunion activity.16 We agree with the Board's
assertion here that there is no suggestion that Congress intended 9(c)(1)(B) to
relieve any employer of his 8(a)(5) bargaining obligation where, without good
faith, he engaged in unfair labor practices disruptive of the Board's election
machinery. And we agree that the policies reflected in 9(c)(1)(B) fully
support the Board's present administration of the Act (see supra, at 591592);
for an employer can insist on a secret ballot election, unless in the words of the
Board, he engages 'in contemporaneous unfair labor practices likely to destroy
the union's majority and seriously impede the election.' Brief for Petitioner, the
Board in No. 573, p. 36.
29

In short, we hold that the 1947 amendments did not restrict an employer's duty
to bargain under 8(a)(5) solely to those unions whose representative status is
certified after a Board election.17

B.
30

We next consider the question whether authorization cards are such inherently
unreliable indicators of employee desires that, whatever the validity of other
alternate routes to representative status, the cards themselves may never be
sued to determine a union's majority and to support an order to bargain. In this
context, the employers urge us to take the step the 1947 amendments and their
legislative history indicate Congress did not take, namely, to rule out
completely the use of cards in the bargaining arena. Even if we do not
unhesitatingly accept the Fourth Circuit's view in the matter, the employers
argue, at the very least we should overrule the Cumberland Shoe doctrine (see
supra, at 584) and establish stricter controls over the solicitation of the cards by
union representatives.18

31

The objections to the use of cards voiced by the employers and the Fourth
Circuit boil down to two contentions:19 (1) that, as contrasted with the election
procedure,20 the cards cannot accurately reflect an employee's wishes, either
because an employer has not had a chance to present his views and thus a
chance to insure that the employee choice was an informed one, or because the
choice was the result of group pressures and not individual decision made in
the privacy of a voting booth; and (2) that quite apart from the election
comparison, the cards are too often obtained through misrepresentation and
coercion which compound the cards' inherent inferiority to the election process.
Neither contention is persuasive, and each proves too much. The Board itself
has recognized, and continues to do so here, that secret elections are generally

the most satisfactoryindeed the preferredmethod of ascertaining whether a

union has majority support.21 The acknowledged superiority of the election
process, however, 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 effectiveperhaps the onlyway of assuring employee
choice. As for misrepresentation, in any specific case of alleged irregularity in
the solicitation of the cards, the proper course is to apply the Board's customary
standards (to be discussed more fully below) and rule that there was no majority
if the standards were not satisfied. It does not follow that because there are
some instances of irregularity, the cards can never be used; otherwise, an
employer could put off his bargaining obligation indefinitely through
continuing interference with elections.
32

That the cards, though admittedly inferior to the election process, can
adequately reflect employee sentiment when that process has been impeded,
needs no extended discussion, for the employers' contentions cannot withstand
close examination. The employers argue that their employees cannot make an
informed choice because the card drive will be over before the employer has
had a chance to present his side of the unionization issues. Normally, however,
the union will inform the employer of its organization drive early in order to
subject the employer to the unfair labor practice provisions of the Act; the
union must be able to show the employer's awareness of the drive in order to
prove that his contemporaneous conduct constituted unfair labor practices on
which a bargaining order can be based if the drive is ultimately successful. See,
e.g., Hunt Oil Co., 157 N.L.R.B. 282 (1966); Don Swart Trucking Co., 154
N.L.R.B. 1345 (1965). Thus, in all of the cases here but the Charleston
campaign in Heck's the employer, whether informed by the union or not, was
aware of the union's organizing drive almost at the outset and began its
antiunion campaign at that time; and even in the Heck's Charleston case where
the recognition demand came about a week after the solicitation began, the
employer was able to deliver a speech before the union obtained a majority.
Further, the employers argue that without a secret ballot an employee may, in a
card drive, succumb to group pressures or sign simply to get the union 'off his
back' and then be unable to change his mind as he would be free to do once
inside a voting booth. But the same pressures are likely to be equally present in
an election, for election cases arise most often with small bargaining units22
where virtually every voter's sentiments can be carefully and individually
canvassed. And no voter, of course, can change his mind after casting a ballot
in an election even though he may think better of his choice shortly thereafter.

33

The employers' second complaint, that the cards are too often obtained through
misrepresentation and coercion, must be rejected also in view of the Board's

present rules for controlling card solicitation, which we view as adequate to the
task where the cards involved state their purpose clearly and unambigously on
their face. We would be closing our eyes to obvious difficulties, of course, if we
did not recognize that there have been abuses, primarily arising out of
misrepresentations by union organizers as to whether the effect of signing a
card was to designate the union to represent the employee for collective
bargaining purposes or merely to authorize it to seek an election to determine
that issue. And we would be equally blind if we did not recognize that various
courts of appeals and commentators23 have differed significantly as to the
effectiveness of the Board's Cumberland Shoe doctrine (see supra, at 584) to
cure such abuses.
34

Thus, even where the cards are unambiguous on their face, both the Second
Circuit (NLRB v. S. E. Nichols Co., 380 F.2d 438 (1967)) and the Fifth Circuit
(Engineers & Fabricators, Inc. v. NLRB, 376 F.2d 482 (1967)) have joined the
Fourth Circuit below in rejecting the Board's rule that the cards will be counted
unless the solicitor's statements amounted under the circumstances to an
assurance that the cards would be used only for an election, or for no other
purpose than an election. And even those circuits which have adopted the
Board's approach have criticized the Board for tending too often to apply the
Cumberland rule too mechanically, declining occasionally to uphold the
Board's application of its own rule in a given case. See, e.g., NLRB v.
Southbridge Sheet Metal Works, Inc., 380 F.2d 851 (C.A.1st Cir. 1967); NLRB
v. Sandy's Stores, Inc., 398 F.2d 268 (C.A.1st Cir. 1968); NLRB v. Swan Super
Cleaners, Inc., 384 F.2d 609 (C.A.6th Cir. 1967); NLRB v. Dan Howard Mfg.
Co., 390 F.2d 304 (C.A.7th Cir. 1968); Furr's, Inc. v. NLRB, 381 F.2d 562
(C.A.10th Cir. 1967); International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAWAFLCIO v. NLRB,
129 U.S.App.D.C. 196, 392 F.2d 801 (1967). Among those which reject the
Cumberland rule, the Fifth Circuit agrees with the Second Circuit (see S. E.
Nichols Co., supra), that a card will be vitiated if an employee was left with the
impression that he would be able to resolve any lingering doubts and make a
final decision in an election, and further requires that the Board probe the
subjective intent of each signer, an inquiry expressly avoided by Cumberland.
See NLRB v. Southland Paint Co., 394 F.2d 717, 728, 730 (C.A.5th Cir. 1968);
Engineers & Fabricators, Inc. v. NLRB, supra. Where the cards are ambiguous
on their face, the Fifth Circuit, joined by the Eighth Circuit (see, e.g., NLRB v.
Peterson Bros., 342 F.2d 221 (C.A.5th Cir. 1965), and Bauer Welding & Metal
Fabricators, Inc. v. NLRB, 358 F.2d 766 (C.A.8th Cir. 1966)), departs still
further from the Board rule. And there is a conflict among those courts whicho
therwise follow the Board as to single-purpose cards (compare NLRB v. Lenz
Co., 396 F.2d 905, 908 (C.A.6th Cir. 1968), with NLRB v. C. J. Glasgow Co.,

356 F.2d 476, 478 (C.A.7th Cir. 1966)).

35

We need make no decision as to the conflicting approaches used with regard to

dual-purpose cards, for in each of the five organization campaigns in the four
cases before us the cards used were single-purpose cards, stating clearly and
unambiguously on their face that the signer designated the union as his
representative. And even the view forcefully voiced by the Fourth Circuit
below that unambiguous cards as well present too many opportunities for
misrepresentation comes before us somewhat weakened in view of the fact that
there were no allegations of irregularities in four of those five campaigns
(Gissel, the two Heck's campaigns,24 and Sinclair). Only in General Steel did
the employer challenge the cards on the basis of misrepresentations. There, the
trial examiner, after hearing testimony from over 100 employees and applying
the traditional Board approach (see n. 5, supra), concluded that 'all of these
employees not only intended, but were fully aware, that they were thereby
designating the Union as their representative.' Thus, the sole question before us,
raised in only one of the four cases here, is whether the Cumberland Shoe
doctrine is an adequate rule under the Act for assuring employee free choice.

36

In resolving the conflict among the circuits in favor of approving the Board's
Cumberland rule, we think it sufficient to point out that employees should be
bound by the clear language of what they sign unless that language is
deliberately and clearly canceled by a union adherent with words calculated to
direct the signer to disregard and forget the language above his signature. There
is nothing inconsistent in handing an employee a card that says the signer
authorizes the union to represent him and then telling him that the card will
probably be used first to get an election. Elections have been, after all, and will
continue to be, held in the vast majority of cases; the union will still have to
have the signatures of 30%25 of the employees when an employer rejects a
bargaining demand and insists that the union seek an election. We cannot agree
with the employers here that employees as a rule are too unsophisticated to be
bound by what they sign unless expressly told that their act of signing
represents something else. In addition to approving the use of cards, of course,
Congress has expressly authorized reliance on employee signatures alone in
other areas of labor relations, even where criminal sanctions hang in the
balance,26 and we should not act hastily in disregarding congressional
judgments that employees can be counted on to take responsibility for their
acts.

37

We agree, however, with the Board's own warnings in Levi Strauss & Co., 172
N.L.R.B. No. 57, 68 L.R.R.M. 1338, 1341, and n. 7 (1968), that in hearing
testimony concerning a card challenge, trial examiners should not neglect their

obligation to ensure employee free choice by a too easy mechanical application

of the Cumberland rule.27 We also accept the observation that employees are
more likely than not, many months after a card drive and in response to
questions by company counsel, to give testimony damaging to the union,
particularly where company officials have previously threatened reprisals for
union activity in violation of 8(a)(1).28 We therefore reject any rule that
requires a probe of an employee's subjective motivations as involving an
endless and unreliable inquiry. We nevertheless feel that the trial examiner's
findings in General Steel (see n. 5, supra) represent the limits of the
Cumberland rule's application. We emphasize that the Board should be careful
to guard against an approach any more rigid than that in General Steel. And we
reiterate that nothing we say here indicates our approval of the Cumberland
Shoe rule when applied to ambiguous, dual-purpose cards.
38

The employers argue as a final reason for rejecting the use of the cards that
they are faced with a Hobson's choice29 under current Board rules and will
almost inevitably come out the loser. They contend that if they do not make an
immediate, personal investigation into possible solicitation irregularities to
determine whether in fact the union represents an uncoerced majority, they wil
have unlawfully refused to bargain for failure to have a good faith doubt of the
union's majority; and if they do make such an investigation, their efforts at
polling and interrogation will constitute an unfair labor practice in violation of
8(a)(1) and they will again be ordered to bargain. As we have pointed out,
however, an employer is not obligated to accept a card check as proof of
majority status, under the Board's current practice, and he is not required to
justify his insistence on an election by making his own investigation of
employee sentiment and showing affirmative reasons for doubting the majority
status. See Aaron Brothers, 158 N.L.R.B. 1077, 1078. If he does make an
investigation, the Board's recent cases indicate that reasonable polling in this
regard will not always be termed violative of 8(a) (1) if conducted in
accordance with the requirements seto ut in Struksnes Construction Co., 165
N.L.R.B. No. 102, 65 L.R.R.M. 1385 (1967). And even if an employer's limited
interrogation is found violative of the Act, it might not be serious enough to call
for a bargaining order. See Aaron Brothers, supra; Hammond & Irving, Inc.,
154 N.L.R.B. 1071 (1965). As noted above, the Board has emphasized that not
'any employer conduct found violative of Section 8(a) (1) of the Act, regardless
of its nature or gravity, will necessarily support a refusal-to-bargain finding,'
Aaron Brothers, supra, at 1079.

C.
39

Remaining before us is the propriety of a bargaining order as a remedy for a

8(a)(5) refusal to bargain where an employer has committed independent unfair

labor practices which have made the holding of a fair election unlikely or which
have in fact undermined a union's majority and caused an election to be set
aside. We have long held that the Board is not limited to a cease-and-desist
order in such cases, but has the authority to issue a bargaining order without
first requiring the union to show that it has been able to maintain its majority
status. See NLRB v. Katz, 369 U.S. 736, 748, n 16, 82 S.Ct. 1107, 1114, 8
L.Ed.2d 230 (1962); NLRB v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86
L.Ed. 380 (1942). And we have held the Board has the same authority even
where it is clear that the union, which once had possession of cards from a
majority of the employees, represents only a minority when the bargaining
order is entered. Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88
L.Ed. 1020 (1944). We see no reason now to withdraw this authority from the
Board. If the Board could enter only a cease-and-desist order and direct an
election or a rerun, it would in effect be rewarding the employer and allowing
him 'to profit from (his) own wrongful refusal to bargain,' Franks Bros., supra,
at 704, 64 S.Ct. at 818, while at the same time severely curtailing the
employees' right freely to determine whether they desire a representative. The
employer could continue to delay or disrupt the election processes and put off
indefinitely his obligation to bargain;30 and any election held under these
circumstances would not be likely to demonstrate the employees' true,
undistorted desires.31
40

The employers argue that the Board has ample remedies, over and above the
cease-and-desist order, to control employer misconduct. The Board can, they
assert, direct the companies to mail notices to employees, to read notices to
employees during plant time and to give the union access to employees during
working time at the plant, or it can seek a court injunctive order under 10(j)
(29 U.S.C. 160(j)) as a last resort. In view of the Board's power, they
conclude, the bargaining order is an unnecessarily harsh remedy that needlessly
prejudices employees' 7 rights solely for the purpose of punishing or
restraining an employer. Such an argument ignores that a bargaining order is
designed as much to remedy past election damage32 as it is to deter future
misconduct. If an employer has succeeded in undermining a union's strength
and destroying the laboratory conditions necessary for a fair election, he may
see no need to violate a cease-and-desist order by further unlawful activity. The
damage will have been done, and perhaps the only fair way to effectuate
employee rights is to re-establish the conditions as they existed before the
employer's unlawful campaign.33 There is, after all, nothing permanent in a
bargaining order, and if, after the effects of the employer's acts have worn off,
the employees clearly desire to disavow the union, they can do so by filing a
representation petition. for, as we pointed out long ago, in finding that a

bargaining order involved no 'injustice to employees who may wish to

substitute for the particular union some other * * * arrangement,' a bargaining
relationship 'once rightfully established must be permitted to exist and function
for a reasonable period in which it can be given a fair chance to succeed,' after
which the 'Board may, * * * upon a proper showing, take steps in recognition
of changed situations which might make appropriate changed bargaining
relationships.' Franks Bros., supra, at 705706, 64 S.Ct. at 819.
41

42

Before considering whether the bargaining orders were appropriately entered in

these cases, we should summarize the factors that go into such a determination.
Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all
major issues, the actual area of disagreement between our position here and that
of the Fourth Circuit is not large as a practical matter. While refusing to
validate the general use of a bargaining order in reliance on cards, the Fourth
Circuit nevertheless left open the possibility of imposing a bargaining order,
without need of inquiry into majority status on the basis of cards or otherwise,
in 'exceptional' cases marked by 'outrageous' and 'pervasive' unfair labor
practices. Such an order would be an appropriate remedy for those practices,
the court noted, if they are of 'such a nature that their coercive effects cannot be
eliminated by the application of traditional remedies, with the result that a fair
and reliable election cannot be had.' NLRB v. S. S. Logan Packing Co., 386
F.2d 562, 570 (C.A.4th Cir. 1967); see also NLRB v. Heck's, Inc., 398 F.2d
337, 338. The Board itself, we should add, has long had a similar policy of
issuing a bargaining order, in the absence of a 8(a)(5) violation or even a
bargaining demand, when that was the only available, effective remedy for
substantial unfair labor practices. See, e.g., United Steelworkers of America v.
NLRB, 126 U.S.App.D.C. 215, 376 F.2d 770 (1967); J. C. Penney Co., Inc. v.
NLRB, 384 F.2d 479, 485486 (C.A.10th Cir. 1967).
The only effect of our holding here is to approve the Board's use of the
bargaining order in less extraordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine majority strength and
impede the election processes. The Board's authority to issue such an order on a
lesser showing of employer misconduct is appropriate, we should reemphasize,
where there is also a showing that at one point the union had a majority; in such
a case, of course, effectuating ascertainable employee free choice becomes as
important a goal as deterring employer misbehavior. In fashioning a remedy in
the exercise of its discretion, then, the Board can properly take into
consideration the extensiveness of an employer's unfair practices in terms of
their past effect on election conditions and the likelihood of their recurrence in
the future. If 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 employee sentiment once expressed
through cards would, on balance, be better protected by a bargaining order, then
such an order should issue (see n. 32, supra).
43

We emphasize that under the Board's remedial power there is still a third
category of minor or less extensive unfair labor practices, which, because of
their minimal impact on the election machinery, will not sustain a bargaining
order. There is, the Board says, no per se rule that the commission of any unfair
practice will automatically result in a 8(a)(5) violation and the issuance of an
order to bargain. See Aaron Brothers, supra.

44

With these considerations in mind, we turn to an examination of the orders in

these cases. In Sinclair, No. 585, the Board 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 a 8(a)(5) violation, a bargaining order would have been
necessary to repair the unlawful effect of those threats.34 The Board therefore
did not have to make the determination called for in the intermediate situation
above that the risks that a fair rerun electin might not be possible were too great
to disregard the desires of the employees already expressed through the cards.
The employer argues, however, that its communications to its employees were
protected by the First Amendment and 8(c) of the Act (29 U.S.C. 158 (c)),
whatever the effect of those communications on the union's majority or the
Board's ability to ensure a fair election; it is to that contention that we shall
direct our final attention in the next section.

45

In the three cases in Nos. 573 and 691 from the Fourth Circuit, on the other
hand, the Board did not make a similar finding that a bargaining order would
have been necessary in the absence of an unlawful refusal to bargain. Nor did it
make a finding that, even though traditional remedies might be able to ensure a
fair election, there was insufficient indication that an election (or a rerun in
General Steel) would definitely be a more reliable test of the employees' desires
than the card count taken before the unfair labor practices occurred. The
employees argue that such findings would not be warranted, and the court
below ruled in General Steel that available remedies short of a bargaining order
could guarantee a fair election. 398 F.2d 339, 340, n. 3. We think it possible
that the requisite findings were implicit in the Board's decisions below to issue
bargaining orders (and to set aside the election in General Steel); and we think
it clearly inappropriate for the court below to make any contrary finding on its
own (see n. 32, supra). Because the Board's current practice at the time required
it to phrase its findings in terms of an employer's good or bad faith doubts (see
Part II, supra), however, the precise analysis the Board now puts forth was not
employed below, and we therefore remand these cases for proper findings.

IV.
46

We consider finally petitioner Sinclair's First Amendment challenge to the

holding of the Board and the Court of Appeals for the First Circuit. At the
outset we note that the question raised here most often arises in the context of a
nascent union organizational drive, where employers must be careful in waging
their antiunion campaign. As to conduct generally, the above-noted gradations
of unfair labor practices, with their varying consequences, create certain
hazards for employers when they seek to estimate or resist unionization efforts.
But so long as the differences involve conduct easily avoided, such as
discharge, surveillance, and coercive interrogation, we do not think that
employers can complain that the distinctions are unreasonably difficult to
follow. Where an employer's antiunion efforts consist of speech alone,
however, the difficulties raised are not so easily resolved. The Board has
eliminated some of the problem areas by no longer requiring an employer to
show affirmative reasons for insisting on an election and by permitting him to
make reasonable inquiries. We do not decide, of course, whether these
allowances are mandatory. But we do note that an employer's free speech right
to communicate his views to his employees is firmly established and cannot be
infringed by a union or the Board. Thus, 8(c) (29 U.S.C. 158(c)) merely
implements the First Amendment by requiring that the expression of 'any
views, argument, or opinion' shall not be 'evidence of an unfair labor practice,'
so long as such expression contains 'no threat of reprisal or force or promise of
benefit' in violation of 8(a)(1). Section 8(a)(1), in turn, prohibits interference,
restraint or coercion of employees in the exercise of their right to selforganization.

47

Any assessment of the precise scope of employer expression, of o urse, must be

made in the context of its labor relations setting. Thus, an employer's rights
cannot outweigh the equal rights of the employees to associate freely, as those
rights are embodied in 7 and protected by 8(a)(1) and the proviso to 8(c).
And any balancing of those rights must take into account the economic
dependence of the employees on their employers, and the necessary tendency of
the former, because of that relationship, to pick up intended implications of the
latter that might be more readily dismissed by a more disinterested ear. Stating
these obvious principles is but another way of recognizing that what is basically
at stake is the establishment of a nonpermanent, limited relationship between
the employer, his economically dependent employee and his union agent, not
the election of legislators or the enactment of legislation whereby that
relationship is ultimately defined and where the independent voter may be freer
to listen more objectively and employers as a class freer to talk. Cf. New York
Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

48

Within this framework, we must reject the Company's challenge to the decision
below and the findings of the Board on which is was based. The standards used
below for evaluating the impact of an employer's statements are not seriously
questioned by petitioner and we see no need to tamper with them here. Thus, an
employer is free to communicate to his employees any of his general views
about unionism or any of his specific views about a particular union, so long as
the communications do not contain a 'threat of reprisal or force or promise of
benefit.' He may even make a prediction as to the precise effects he believes
unionization will have on his company. In such a case, however, the prediction
must be carefully phrased on the basis of objective fact to convey an employer's
belief as to demonstrably probable consequences beyond his control or to
convey a management decision already arrived at to close the plant in case of
unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274,
n. 20, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). If there is any implication that an
employer may or may not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to him, the statement is no
longer a reasonable prediction based on available facts but a threat of retaliation
based on misrepresentation and coersion, and as such without the protection of
the First Amendment. We therefore agree with the court below that
'(c)onveyance of the employer's belief, even though sincere, that unionization
will or may result in the closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing is capable of proof.' 397
F.2d 157, 160. As stated elsewhere, an employer is free only to tell 'what he
reasonably believes will be the likely economic consequences of unionization
that are outside his control,' and not 'threats of economic reprisal to be taken
solely on his own volition.' NLRB v. River Togs, Inc., 382 F.2d 198, 202
(C.A.2d Cir. 1967).

49

Equally valid was the finding by the court and the Board that petitioner's
statements and communications were not cast as a prediction of 'demonstrable
'economic consequences," 397 F.2d, at 160, but rather as a threat of retaliatory
action. The Board found that petitioner's speeches, pamphlets, leaflets, and
letters conveyed the following message: that the company was in a precarious
financial condition; that the 'strike-happy' union would in all likelihood have to
obtain its potentially unreasonable demands by striking, the probable result of
which would be a plant shutdown, as the past history of labor relations in the
area indicated; and that the employees in such a case would have great
difficulty finding employment elsewhere. In carrying out its duty to focus on
the question: '(W)hat did the speaker intend and the listener understand?' (A.
Cox Law and the National Labor Policy 44 (1960)), the Board could reasonably
conclude that the intended and understood import of that message was not to
predict that unionization would inevitably cause the plant to close but to

threaten to throw employees out of work regardless of the economic realities. In

this connection, we need go no further than to point out (1) that petitioner had
no support for its basic assumption that the union, which had not yet even
presented any demands, would have to strike to be heard, and that it admitted at
the hearing that it had no basis for attributing other plant closings in the area to
unionism; and (2) that the Board has often found that employees, who are
particularly sensitive to rumors of plant closings,35 take such hints as coercive
threats rather than honest forecasts.36
50

Petitioner argues that the line between so-called permitted predictions and
proscribed threats is too vague to stand up under traditional First Amendment
analysis and that the Board's discretion to curtail free speech rights is
correspondingly too uncontrolled. It is true that a reviewing court must
recognize the Board's competence in the first instance to judge the impact of
utterances made in the context of the employer-employee relationship, see
NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 479, 62 S.Ct. 344, 349,
86 L.Ed. 348 (1941). But an employer, who has control over that relationship
and therefore knows it best, cannot be heard to complain that he is without an
adequate guide for his behavior. He can easily make his views known without
engaging in "brinkmanship" when it becomes all too easy to 'overstep and
tumble (over) the brink,' Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372
(C.A.7th Cir. 1967). At the least he can avoid coercive speech simply by
avoiding conscious overstatements he has reason to believe will mislead his
employees.

51

For the foregoing reasons, we affirm the judgment of the Court of Appeals for
the First Circuit in No. 585, and we reverse the judgments of the Court of
Appeals for the Fourth Circuit in Nos. 573 and 691 insofar as they decline
enforcement of the Board's orders to bargain and remand those cases to that
court with directions to remand to the Board for further proceedings in
conformity with this opinion.

52

It is so ordered.

53

Judgment in No. 585 affirmed, and judgments in Nos. 573 and 691 reversed in
part and cases remanded with directions.

At the outset of the Union campaign, the Company vice president informed two
employees, later discharged, that if they were caught talking to Union men, 'you
God-damned things will go.' Subsequently, the Union presented oral and

written demands for recognition, claiming possession of authorization cards

from 31 of the 47 employees in the appropriate unit. Rejecting the bargaining
demand, the Company began to interrogate employees as to their Union
activities; to promise them better benefits than the Union could offer; and to
warn them that if the 'union got in, (the vice president) would just take his
money and let the union run the place,' that the Union was not going to get in,
and that it would have to 'fight' the Company first. Further, when the Company
learned of an impending Union meeting, it arranged, so the Board later found,
to have an agent present to report the identity of the Union's adherents. On the
first day following the meeting, the vice president told the two employees
referred to above that he knew they had gone to the meeting and that their work
hours were henceforth reduced to half a day. Three hours later, the two
employees were discharged.
2

The organizing drive was initiated by the employees themselves at Heck's

Charleston warehouses. The Union first demanded recognition on the basis of
13 cards from 26 employees of the Company's three Charleston warehouses.
After responding 'No comment' to the Union's repeated requests for recognition,
the president assembled the employees and told them of his shock at their
selection of the Union; he singled out one of the employees to ask if he had
signed an authorization card. The next day the Union obtained the additional
card necessary to establish a majority. That same day, the leading Union
supporter (the employee who had first established contacts with the Union and
had solicited a large number of the cards) was discharged, and another
employee was interrogated as to his Union activities, encouraged to withdraw
his authorization, and warned that a Union victory could result in reduced
hours, fewer raises, and wih drawal of bonuses. A second demand for
recognition was made two days later, and thereafter the president summoned
two known Union supporters to his office and offered them new jobs at higher
pay if they would use their influence to 'break up the union.'
The same pattern was repeated a year later at the Company's Ashland,
Kentucky, store, where the Union obtained cards from 21 of the 38 employees
by October 5, 1965. The next day, the assistant store manager told an employee
that he knew that the Union had acquired majority status. When the Union
requested recognition on October 8, however, the Company refused on the
ground that it was not sure whether department heads were included in the
bargaining uniteven though the cards represented a majority with or without
the department heads. After a second request for recognition and an offer to
submit the cards to the employer for verification, respondent again refused, on
grounds of uncertainty about the definition of the unit and because a poll taken
by the Company showed that a majority of the employees did not want Union
representation. Meanwhile, the Company told the employees that an employee

of another company store had been fired on the spot for signing a card, warned
employees that the Company knew which ones had signed cards, and polled
employees about their desire for Union representation without giving them
assurances against reprisals.
3

Throughout the Union's six-month organizational campaign both before and

after its demand for recognition based on possession of cards from 120 of the
207 employees in the appropriate unitthe Company's foremen and
supervisors interrogated employees about their Union involvement; threatened
them with discharge for engaging in Union activities or voting for the Union;
suggested that unionization might hurt business and make new jobs more
difficult to obtain; warned that strikes and other dire economic consequences
would result (a supervisor informed a group of employees that if the Union
came in, 'a nigger would be the head of it,' and that when the Company put in
10 new machines, 'the niggers would be the operators of them'); and asserted
that, although the Company would have to negotiate with the Union, it could
negotiate endlessly and would not have to sign anything.

The cards used in all four campaigns in Nos. 573 and 691 and in the one drive
in No. 585 unambiguously authorized the Union to represent the signing
employee for collective bargaining purposes; there was no reference to
elections. Typical of the cards was the one used in the Charleston campaign in
Heck's, and it stated in relevant part:
'Desiring to become a member of the above Union of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, I hereby make application for admission to membership. I hereby
authorize you, your agents or representatives to act for me as collective
bargaining agent on all matters pertaining to rates of pay, hours, or any other
conditions of employment.'

'Accordingly, I reject Respondent's contention 'that if a man is told that his card
will be secret, or will be shown only to the Labor Board for the purpose of
obtaining election, that this is the absolute equivalent of telling him that it will
be used 'only' for purposes of obtaining an election.'

See, e.g., Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732
(1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951); NLRB
v. Gotham Shoe Mfg. Co., Inc., 359 F.2d 684 (C.A.2d Cir. 1966); NLRB v.
Quality Markets, Inc., 387 F.2d 20 (C.A.3d Cir. 1967); NLRB v. Phil-Modes,
Inc., 396 F.2d 131 (C.A.5th Cir. 1968); Atlas Engine Works, Inc. v. NLRB, 396
F.2d 775 (C.A.6th Cir. 1968), petition for certiorari pending; NLRB v. Clark
Products, Inc., 385 F.2d 396 (C.A.7th Cir. 1967); NLRB v. Ralph Printing &

Lithographing Co., 379 F.2d 687 (C.A.8th Cir. 1967); NLRB v. Luisi Truck
Lines, 384 F.2d 842 (C.A.9th Cir. 1967); Furr's, Inc. v. NLRB, 381 F.2d 562
(C.A.10th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 70, 19 L.Ed.2d 105 (1967).
In addition to the First Circuit below, four courts of appeals have subsequently
considered the Fourth Circuit's view of the cards and specifically rejected it.
NLRB v. United Mineral & Chemical Corp., 391 F.2d 829, 836, n. 10 (C.A.2d
Cir. 1968); NLRB v. Goodyear Tire & Rubber Co., 394 F.2d 711, 712713
(C.A.5th Cir. 1968); NLRB v. Atco-Surgical Supports, 394 F.2d 659, 660
(C.A.6th Cir. 1968); NLRB v. Ozark Motor Lines, 403 F.2d 356 (C.A.8th Cir.
1968).
7

In 1967, for instance, the Board conducted 8,116 elections but issued only 157
bargaining orders based on a card majority. Levi Strauss & Co., 172 N.L.R.B.
No. 57, 68 L.R.R.M. 1338, 1342, n. 9 (1968). See also Sheinkman, Recognition
of Unions Through Authorization Cards, 3 Ga.L.Rev. 319 (1969). The number
of card cases that year, however, represents a rather dramatic increase over
previous years from 12 such cases in 1964, 24 in 1965, and about 117 in 1966.
Browne, Obligation to Bargain on Basis of Card Majority, 3 Ga.L.Rev. 334,
347 (1969).

See, e.g., Aaron Brothers, 158 N.L.R.B. 1077 (1966); cf., General Shoe Corp.,
77 N.L.R.B. 124 (1948). An employer, of course, may not, even if he acts in
good faith, recognize a minority union, International Ladies' Garment Workers'
Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961).

NLRB v. Dahlstrom Metallic Door Co., 112 F.2d 756, 757 (C.A.2d Cir. 1940).

10

See, e.g., Denver Auto Dealers Assn., 10 N.L.R.B. 1173 (1939); Century Mills,
Inc., 5 N.L.R.B. 807 (1938).

11

The right of an employer lawfully to refuse to bargain if he had a good faith

doubt as to the Union's majority status, even if in fact the Union did represent a
majority, was recognized early in the administration of the Act, see NLRB v.
Remington Rand, Inc., 94 F.2d 862, 868 (C.A.2d Cir.), cert. denied, 304 U.S.
576, 58 S.Ct. 1046, 82 L.Ed. 1540 (1938).

12

See n. 11, supra.

13

Section 9(c) of the Wagner Act had provided:

'Whenever a question affecting commerce arises concerning the representation
of employees, the Board may investigate such controversy and certify * * * the
name or names of the representatives that have been designated or selected. In

any such investigation, the Board * * * may take a secret ballot of employees,
or utilize any other suitable method to ascertain such representatives.'
14

E.g., protection against the filing of new election petitions by rival unions or
employees seeking decertification for 12 months ( 9(c)(3)), protection for a
reasonable period, usually one year, against any disruption of the bargaining
relationship because of claims that the union no longer represents a majority
(see Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954)),
protection against recognitional picketing by rival unions ( 8(b) (4)(C)), and
freedom from the restrictions placed in work assignments disputes by 8(b)(4)
(D), and on recognitional and organizational picketing by 8(b) (7).

15

Under the Wagner Act, which did not prescribe h o would file election
petitions, the Board had ruled that an employer could seek an election only
when two unions presented conflicting bargaining requests on the ground that if
he were given the same election petition rights as the union, he could interrupt
union drives by demanding an election before the union had obtained majority
status. The 1947 amendments resolved the difficulty by providing that an
employer could seek an election only after he had been requested to bargain.
See H.R.Rep. No. 245, 80th Cong., 1st Sess., 35 (1947).

16

The Senate report stated that the 'present Board rules * * * discriminate against
employers who have reasonable grounds for believing that labor organizations
claiming to represent their employees are really not the choice of the majority.'
S.Rep. No. 105, 80th Cong., 1st Sess., 10 (1947). Senator Taft stated during the
debates:
'Today an employer is faced with this situation. A man comes into his office
and says. 'I represent your employees. Sign this agreement, or we strike
tomorrow.' * * * The employer has no way in which to determine whether this
man really does represent his employees or does not. The bill gives him the
right to go to the Board * * * and say, 'I want an election. I want to know who
is the bargaining agent for my employees." 93 Cong.Rec. 3838 (1947).

17

As aptly stated in Lesnick, Establishment of Bargaining Rights Without an

NLRB Election, 65 Mich.L.Rev. 851, 861862 (1967):
'Cards have been used under the act for thirty years; (this) Court has repeatedly
held that certification is not the only route to representative status; and the 1947
attempt in the House-passed Hartley Bill to amend section 8(a)(5) * * * was
rejected by the conference committee that produced the Taft-Hartley Act. No
amount of drum-beating should be permitted to overcome, without legislation,
this history.'

18

In dealing with the reliability of cards, we should re-emphasize what issues we

are not confronting. As pointed out above, we are not here faced with a
situation where an employer, with 'good' or 'bad' subjective motivation, has
rejected a card-based bargaining request without good reason and has insisted
that the Union go to an election while at the same time refraining from
committing unfair labor practices that would tend to disturb the 'laboratory
conditions' of that election. We thus need not decide whether, absent election
interference by an employer's unfair labor practices, he may obtain an election
only if he petitions for one himself; whether, if he does not, he must bargain
with a card majority if the Union chooses not to seek an election; and whether,
in the latter situation, he is bound by the Board's ultimate determination of the
card results regardless of his earlier good faith doubts, or whether he can still
insist on a Union-sought election if he makes an affirmative showing of his
positive reasons for believing there is a representation dispute. In short, a
union's right to rely on cards as a freely interchangeable substitute for elections
where there has been no election interference is not put in issue here; we need
only decide whether the cards are reliable enough to support a bargaining order
where a fair election probably could not have been held, or where an election
that was held was in fact set aside.

19

The Board's reliance on authorization cards has provoked considerable

scholarly controversy. Compare criticism of Board policy, particularly its
treatment of ambiguous, dual-purpose cards, in Browne, supra, n. 7, and
Comment, Union Authorization Cards, 75 Yale L.J. 805 (1966), with defense of
Board practice in Lesnick, supra, n. 17 Welles, The Obligation to Bargain on
the Basis of a Card Majority, 3 Ga.L.Rev. 349 (1969); and Comment, Union
Authorization Cards: A Reliable Basis for an NLRB Order To Bargain?, 47
Texas L.Rev. 87 (1968).

20

For a comparison of the card procedure and the election process, see discussion
in NLRB v. S. S. Logan Packing Co., 386 F.2d 562, 564566 (C.A.4th Cir.
1967).

21

See nn. 78, supra.

22

See Comment, Union Authorization Cards: A Reliable Basis for an NLRB

Order To Bargain?, supra, at 94 and n. 32.

23

See n. 19, supra.

24

In the Charleston campaign in Heck's, the employees handled the card drive
themselves from beginning to end, contacting the union, obtaining the blank
authorization cards, and soliciting their fellow employees on that basis; no
union agents were involved in the card signing.

25

See 1969 CCH Guidebook to Labor Relations 402.4.

26

Criminal sanctions are imposed by 302 (29 U.S.C. 186) which makes it
unlawful for an employer to pay to and for a union representative to receive
'any money or other thing of value.' Section 302(c)(4) (29 U.S.C. 186(c)(4))
exempts payments by employers to union representatives of union dues,
however, where an employee has executed a 'written assignment' of the dues,
i.e., a checkoff authorization. Signatures are also relied on in 9(c)(1)(A) (29
U.S.C. 159(c)(1)(A)), which provides for Board processing of representation
and decertification petitions when each is supported by a 'substantial number of
employees' (the basis for the 30% signature requirement, see n. 25, supra,) and
in 9(e) which specifically provides for 30% of the signatures in the bargaining
unit to empower the Board to hold a union shop de-authorization elet ion.

27

In explaining and reaffirming the Cumberland Shoe doctrine in the context of

unambiguous cards, the Board stated:
'Thus the fact that employees are told in the course of solicitation that an
election is contemplated, or that a purpose of the card is to make an election
possible, provides in our view insufficient basis in itself for vitiating
unambiguously worded authorization cards on the theory of misrepresentation.
A different situation is presented, of course, where union organizers solicit
cards on the explicit or indirectly expressed representation that they will use
such cards only for an election and subsequently seek to use them for a
different purpose * * *.'
The Board stated further in a footnote:
'The foregoing does not of course imply that a finding of misrepresentation is
confined to situations where employees are expressly told in haec verba that the
'sole' or 'only' purpose of the cards is to obtain an election. The Board has never
suggested such a mechanistic application of the foregoing principles, as some
have contended. The Board looks to substance rather than to form. It is not the
use or nonuse of certain key or 'magic' words that is controlling, but whether or
not the totality of circumstances surrounding the card solicitation is such, as to
add up to an assurance to the card signer that his card will be used for no
purpose other than to help get an election.' 172 N.L.R.B. No. 57, 68 L.R.R.M.
1338, 13411342, and n. 7.

28

See Sheinkman, supra, n. 7, at 332333.

29

See Judge Brown's 'Scylla and Charybdis' analogy in NLRB v. Dan River
Mills, 274 F.2d 381, 388 (C.A.5th Cir. 1960).

30

The Board indicates here that its records show that in the period between
January and June 1968, the median time between the filing of an unfair labor
practice charge and a Board decision in a contested case was 388 days. But the
employer can do more than just put off his bargaining obligation by seeking to
slow down the Board's administrative processes. He can also affect the outcome
of a rerun election by delaying tactics, for figures show that the longer the time
between a tainted election and a rerun, the less are the union's chances of
reversing the outcome of the first election. See n. 31, infra.

31

A study of 20,153 elections held between 1960 and 1962 shows that in the 267
cases where rerun elections the party who caused the election to be set aside.
See Pollitt, NLRB Re-Run Elections: A Study, 41 N.C.L.Rev. 209, 212 (1963).
The study shows further that certain unfair labor practices are more effective to
destroy election conditions for a longer period of time than others. For instance,
in cases involving threats to close or transfer plant operations, the union won
the rerun only 29% of the time, while threats to eliminate benefits or refuse to
deal with the union of elected seemed less irremediable with the union winning
the rerun 75% of the time. Id., at 215216. Finally, time appears to be a factor.
The figures suggest that if a rerun is held too soon after the election before the
effects of the unfair labor practices have worn off, or too long after the election
when interest in the union may have waned, the chances for a changed result
occurring are not as good as they are if the rerun is held somei me in between
those periods. Thus, the study showed that if the rerun is held within 30 days of
the election or over nine months after, the chances that a different result will
occur are only one in five; when the rerun is held within 3060 days after the
election, the chances for a changed result are two in five. Id., at 221.

32

The employers argue that the Fourth Circuit correcty observed that, 'in the great
majority of cases, a cease and desist order with the posting of appropriate
notices will eliminate any undue influences upon employees voting in the
security of anonymity.' NLRB v. S. S. Logan Packing Co., 386 F.2d, at 570. It
is for the Board and not the courts, however, to make that determination, based
on its expert estimate as to the effects on the election process of unfair labor
practices of varying intensity. In fashioning its remedies under the broad
provisions of 10(c) of the Act (29 U.S.C. 160(c)), the Board draws on a fund
of knowledge and expertise all its own, and its choice of remedy must therefore
be given special respect by reviewing courts. See Fibreboard Paper Products
Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). '(I)t is
usually better to minimize the opportunity for reviewing courts to substitute
their discretion for that of the agency.' Consolo v. FMC, 383 U.S. 607, 621, 86
S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966).

33

It has been pointed out that employee rights are affected whether or not a

bargaining order is entered, for those who desire representation may not be
protected by an inadequate rerun election, and those who oppose collective
bargaining may be prejudiced by a bargaining order if in fact the union would
have lost an election absent employer coercion. See Lesnick, supra, n. 17, at
862. Any effect will be minimal at best, however, for there 'is every reason for
the union to negotiate a contract that will satisfy the majority, for the union will
surely realize that it must win the support of the emply ees, in the face of a
hostile employer, in order to survive the threat of a decertification election after
a year has passed.' Bok, The Regulation of Campaign Tactics in Representation
Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 135
(1964).
34

Under the doctrine of Bernel Foam Products Co., 146 N.L.R.B. 1277 (1964),
there is nothing inconsistent in the Union's filing an election petition and
thereby agreeing that a question of representation exists, and then filing a
refusal-to-bargain charge after the election is lost because of the employer's
unfair labor practices.

35

See Bok, supra, n. 33, at 77; n. 31, supra.

36

See, e.g., Kolmar Laboratories, Inc., 159 N.L.R.B. 805, 807810, and cases
(relied on by the trial examiner here) cited at 809, n. 3, enforced, 387 F.2d 833
(C.A.7th Cir. 1967); Surprenant Mfg. Co., 144 N.L.R.B. 507, 510511,
enforced, 341 F.2d 756, 761 (C.A.6th Cir. 1965).