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An employer is not obligated to accept a card check as proof of majority status, under the National Labor Relations 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. 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) of the National Labor Relations Act (Act), 29 U.S.C.S. § 158(a)(1), if conducted in accordance with requirements. 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. The Board has emphasized that not any employer conduct found violative of § 8 (a)(1), regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding.
In two decisions (Linden Lumber Div., Summer & Co. (1971) 190 NLRB No. 116, and Wilder Mfg. Co. (1972) 198 NLRB No. 123), the National Labor Relations Board ruled that an employer is not guilty of an unlawful refusal to bargain when, confronted by a recognition demand by a union with authorization cards signed by a majority of the employees in an appropriate unit, the employer refuses recognition without an NLRB certification, even though the employer does not petition for an NLRB election, absent any independent unfair labor practices by the employer or any attempt or agreement by the employer to determine the union's majority status by means other than an NLRB election. On consolidated appeals, the United States Court of Appeals for the District of Columbia Circuit reversed and remanded. The Court of Appeals ruled that the employer should have tested out its doubts by petitioning for an election.
Did an employer who has not engaged in an unfair labor practice impairing the electoral process commit a violation of § 8 (a)(5) of the National Labor Relations Act simply because he refused to accept evidence of the union's majority status other than the results of a Board election?
The United States Supreme Court held that unless the employer engaged in an unfair labor practice that impaired the electoral process, the union with authorization cards purporting to represent a majority of the employees, refused recognition, had the burden of taking the next step in invoking the Board's election procedure.