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The National Labor Relations Board is not limited to a cease-and-desist order in cases 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 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. 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.
In four separate proceedings involving unfair labor practice charges filed against employers by unions, the National Labor Relations Board (“NLRB”) found that the employers had violated 8(a)(5) of the National Labor Relations Act in refusing to recognize the unions, which had sought recognition on the basis of unambiguous authorization cards signed by a majority of the employees, and that the employers had also committed unfair labor practices in violation of 8(a)(1) of the Act in using coercion and threats of reprisals to their employees during the union organization campaigns, and in violation of 8(a)(3) in two of the cases by discharging union adherents. In two of the cases, a representation election had been held and resulted in victory for the employers. In each of the cases the relief ordered by the Board included an order directing the employers to bargain with the unions on the basis of authorization card majorities. In one of the cases (No. 585), the Board ruled against the employer's contention that its statements to the employees to dissuade them from joining the union constituted protected free speech, and the United States Court of Appeals for the First Circuit sustained the Board's findings on appeal and enforced the Board's order in full, including the bargaining order. In the other cases (Nos. 573 and 691), which were consolidated after separate decisions on appeal, the Court of Appeals for the Fourth Circuit sustained the Board's findings as to the employers' 8(a)(1) and (3) violations, but rejected the findings that the employers' refusal to bargain violated 8(a)(5), and declined enforcement of the Board's bargaining orders on the grounds of the inherent unreliability of authorization cards and the absence of such extensive and pervasive unfair labor practices by the employers as to render bargaining orders the only available remedy.
Did the Taft-Hartley amendments to the National Labor Relations Act, 29 U.S.C.S. § 151 et seq., restrict employers' duty to bargain solely to unions whose representative status was certified after an NLRB election?
The Supreme Court adopted the NLRB position that the Taft-Hartley amendments to the National Labor Relations Act, 29 U.S.C.S. § 151 et seq., did not restrict employers' duty to bargain solely to unions whose representative status was certified after an NLRB election. The employees' possession of single-purpose authorization cards, without more, triggered the duty to bargain under the Cumberland Shoe doctrine. The NLRB was empowered to order bargaining where an employer committed unfair labor practices that made holding a fair election unlikely. U.S. Const. amend. I protected employers' right to speak to employees about unionization efforts without committing an unfair labor practice as long as no threats of reprisal or promises of benefits were made with the intent of restraining unionization. The Court reversed the Fourth Circuit decisions and affirmed the First Circuit decision.