The Use and Abuse of Authorization Cards
in Determining Union Majority
By ROBERT LEWIS *
In a critical analysis and new approach, the author's main point
of discussion concerns the Joy Silk doctrine with respect to the
validity of authorization cards. Mr. Lewis is a partner of the law
firm of Jackson, Lewis, Schnitzier & Moss, in New York City.
FOLLOWING AUTHORIZATION CARD was held by the
THENational
Labor Relations Board to be a valid authorization designating the United Shoe Workers of America as the collective bargaining
representative.-'^
". . . identified his signature on his authorization card. He cannot
read and writes only his name. The remainder of the card was completed
by someone else, but . . . does not know by whom. . . . The statements
he remembers with reference to the authorization card are that they wanted
the card signed so that they could have a vote, and that they had to have
30 or 31 per cent in order to have a vote. He stated that he saw everyone
signing cards, so he also signed a card. He could not read the card, and
it was not read to him. He signed the card at the factory."
It was considered to be an authorization to the union to represent the
employee without a vote, although he was told that the purpose of the card
was "so that they could have a vote." It was counted by the Board,
together with 21 other cards^ signed under similar circumstances, in
determining that a majority of the employees had authorized the United
Shoe Workers Union to be their collective bargaining representative.*
* The author wishes to acknowledge his appreciation to Richard S. Boris
for his aid in the preparation of this article.
' Gotham Shoe Manufacturing Co., Inc., 149 NLRB No. 80, 1964 CCH NLRB
^ 13,570. The above quotation is from the Trial Examiner's decision, adopted by
the Board.
' The cards stated "I hereby authorize the United Shoe Workers of America
AFL-CIO to represent me in collective bargaining with my employer."
° The 22 employees who signed these cards testified that they were told
that the cards were to obtain a vote. Without these cards, the union would
not have had a majority in the unit. Three of the cards were signed by employees who did not know how to read, one of whom testified that he did not
know what the words "represent me in collective bargaining" meant. Gotham
Shoe, see footnote 1.
434
July, 1965
•
Labor Law Journal
From July 1, 1961 to July 1, 1964,
unions filed 7,966 unfair labor practice
charges against employers, alleging refusal to bargain.* Most of these charges
were either withdrawn, dismissed by
the Board prior to complaint or resulted
in a settlement in which the employer
agreed to bargain with the union. In
approximately 200 cases during this
same period, complaints were issued
which resulted in Board decisions
ordering employers to bargain based
upon a majority of cards.^
This is a significant number of decisions. In addition, current Board
law is influential in employer decisions
to "voluntarily" recognize a union with
a claimed majority of cards, rather than
to engage in expensive litigation.*
When these cases of voluntary recognition are added to the number where
recognition is compelled by Board
order or settlement agreement, it is obvious that a large number of employees
are affected.
Analysis of Board Decisions
In view of the severity of the consequences of this doctrine on both employer and employee, it is worthy of
analysis to determine the appropriateness of the criteria used by the Board
' The proportion of such charges compared with the total number of all types
of charges filed against employers has
steadily increased. In 1961, allegations of
violations of Section 8(a)(S) amounted to
20.6 per cent of the total number of charges
filed. This figure increased to 24.9 per cent
in 1962, 27.1 per cent in 1963 and 28.9 per
cent in 1964. It is obvious that unions are
filing this charge with greater frequency.
The Board's continuing "liberalization" of
its rules, may be a contributing factor.
(1961 NLRB Aimual Report 22(i; 1962 NLRB
Annual Report 262; 1963 NLRB Annual Report 164; 1964 NLRB Annual Report 170.)
"The Washington D. C. Evening Star,
February 17, 1965, letters to the Editor, by
Ogden W. Fields, Executive Secretary
NLRB.
in deciding such cases. Furthermore,
consideration should be given to
whether the Board's approach is correct, or whether administrative or legislative action is required.^
In Joy Silk Mills, Inc.,^ the Board
said that it will order an employer to
bargain with a union, holding a majority of cards, where the employer's
insistence on an election is motivated
by a rejection of the collective bargaining principle, or by a desire to gain
time to undermine the union. This rule
stands firmly alongside the election procedures of Section 9(c) of the Labor
Management Relations Act as the two
accepted methods for determining union
representation.^ .
On May 4, 1964, the Board overruled
a 10-year contrary precedent, and extended its Joy Silk order-to-bargain
rule to the situation where a union initially loses an election. In Beritel Foam
Products Co., I7ic.,^° the Board ordered
the employer to bargain with the union
after the union lost the election. This
was done on the basis of the union's
pre-election majority status based upon
authorization cards.
The point of initial inquiry in every
Joy Silk case is whether a majority of
employees signed union authorization
° The smaller the employer, the easier it
is for a union to obtain a majority of cards,
and the more onerous it is for the employer
to employ capable counsel to protect his
rights.
' The question of the need for corrective
legislation was raised during hearings held
in late May before the House Lahor Subcommittee on repeal of Section 14(b). The
Board's use of authorization cards as a substitute for an election was criticized by
Congressman Griffin (R., Mich.).
'85 NLRB 1263 (1949), enfd 185 F 2d
732, 19 LC 1166,021 (CA D of C 1950).
° Employers are usually aghast upon learning that there is an alternate method to the
NLRB election procedures for a union to
obtain "certification."
"146 NLRB No. 161, 1964 CCH NLRB
f 13,066.
The Use and Abuse of Authorization Cards
435
cards as of the date of the employer's
alleged refusal to bargain. This is the
date the employer receives the union's
letter seeking recognition^^ or the date
of the employer's letter declining recognition.^^
Proof of the union's majority status
usually is established by the General
Counsel's producing the employees who
signed the cards and having them identify their signatures.^^ If the employees testify that their signatures
were forged, the cards, of course, will
not be
The rationale of Joy Silk is that if a
majority of employees choose a union
to represent it, an employer is required
to recognize it unless he has a good
faith doubt of its majority status.^'
However, this rationale is sound only
if a majority of employees has voluntarily, knowingly and validly designated
the union as its collective bargaining
representative without coercion or misrepresentation.^® Thus, the basic problem concerns the employee's understanding of what he was signing, and
what he was told about the purpose
of his signature.
The Board originally held that union
misrepresentation as to the card's purpose invalidated it. Where employees
were told the cards were necessary in
order that the Board might hold an
^"^ Allegheny Pepsi-Cola Battling Co., 312
F. 2d 529, 46 LC H 17,988 (CA-3 1962), enf'g
134 NLRB 388, 1961 CCH NLRB Tf 10,645.
^^Burton-Dixie Corporation, 103 NLRB
880 (1953), enfd 210 F.2d 199,25 LC f 68,143
(CA-10 1954).
' ' T h e Board also admits cards based on
a union representative's testimony that he
saw the employee sign the card. Colson Corp.,
148 NLRB No. 89,1964 CCH NLRB f 13,402;
/. Taitel & Son, 119 NLRB 910 (1957).
However, authorization cards have been
rejected where General Counsel attempted
to authenticate such cards by the testimony of the business agent that the cards
in question were handed to him by leaders
in an organizational drive. Franke's Inc.,
142 NLRB 551, 558, 1963 CCH NLRB
H 12,324.
^* See IMCO Container Company of Harrhonhurg. 148 NLRB No. 32, 1964 CCH
NLRB If 13,344 where 19 employees so testified. The union had submitted 95 cards in all.
It needed 83 to constitute a majority. The
testimony cf the 19 employees resulted in the
elimination of their cards and loss of majority.
Nor will the cards be counted where the
employees testify that they signed as a
result of union threats of loss of job, /. Posner. Inc., 133 NLRB 1573, 1575, 1961 CCH
NLRB |f 10,567, or if they revoke their
cards prior to the date of the employer's
refusal to bargain.
"Within the last few years the Board
lias given "good faith doubt" a most stringent interpretation. In the 1950s the Board
interpreted Joy Silk as follows:
"When the General Counsel introduced
evidence that the Union represented a ma-
jority of the employees in an appropriate
unit, that it requested recognition, and that
this request was declined, and the Respondent came forth, as it did, with evidence
establishing that its refusal to grant recognition was founded on its desire that the
Union first establish its majority before
this Board, the ultimate burden of proving
that the refusal was motivated by bad
faith remained for the General Counsel to
sustain. The burden of proving its bona fides
did not shift to the Respondent." (Italics
in original.)
(Sunset Lumber Products,
113 NLRB 1172, 1175.) However in the
1960s the Board, apparently shifted to the
employer the burden of proving his good
faith by requiring him to affirmatively establish evidence of the basis for his doubt.
See Mitchell Concrete Products Co., Inc., 137
NLRB 504, 505, 1962 CCH NLRB f 11,273.
See also Trial Examiner's decision in Photobell Company, Inc., TXD 208-65, Case 2-CA10260, April 22, 1965, citing Mitchell for this
point.
^° It is not the purpose of this article to
take issue with the Joy Silk rule itself. Other
writers have recently done so. See David
Lawrence, "NLRB Held Violating Right to
Secret Ballot," New York Herald Tribune,
February 9, 1965, and "The Real Issue in
Union Voting," the Evening Star, Washington, February 17, 1965; Sandier, "Another
Worry for Employers," United States News
& World Report, March 15, 1965. This
writer joins them in their criticism. This
article deals only with the Board's rules
for determining the validity of authorization cards used in Joy Silk cases.
436
July, 1965
•
Labor Law Journal
election by secret ballot, such cards
were not counted in determining a
union's majority
In Morris & Associates, Inc.,^^ the
cards stated in bold face type "IUE—I
want an NLRB election—IUE." The
employees were told that the cards were
not binding, other than for an election.
The Board beld that the cards would
not be counted.
The "Only" Rule
The political climate changed; so did
the composition of tbe Board. Unfortunately, as the composition of the
Board changed, so did its interpretation
of tbe law. Under its current rule, as
set forth in Cumberland Shoe Corp.,^^
the Board will count cards signed by an
employee even though it was procured
through tbe misrepresentation that the
card would be used to obtain an election, or even though tbe card states in
bold type '"I want an election now."-*'
Tbe Board under Cumberland, now
holds that there is but one misrepresentation that will invalidate a card: a
statement by a union organizer tbat tbe
only purpose of tbe card is to obtain an
election.^^
Tbe misrepresentations made in
Englewood and tbose made in Cumberland were nearly identical. In Engle-
wood 10 employees testified tbat when
tbeir signatures were solicited tbey
were told tbat tbe purpose of tbe cards
was for an election. The cards were not
counted. In Cttmberland, 17 employees
testified that tbey were told tbat tbe
purpose of tbe cards was for an election.
Tbe cards were counted. Thus, the
same representation wbicb tbe Board
bad once held would invalidate cards
would no longer have tbe same effect.^Recently, tbe Board in Aero Corp.-^
reiterated its new "only" rule.
"Tbe validity of sucb affirmation can
be overcome only by establishing that
tbe Union obtained tbe signatures
tbrougb coercion . . . or tbat the Union
obtained the signatures by representing
to tbe employees tbat tbe cards would
be used only for a different, more
limited purpose. Tbis must be done on
tbe basis of wbat tbe employees were
told, not on tbe basis of tbeir subjective
state of mind wben tbey signed tbe
cards.
"Tbe Trial Examiner concluded that
tbe evidence does not support tbe conclusion tbat emplo3'ees were induced to
sign authorization cards by any representation tbat tbey would be used only
to obtain a Board election. We agree.
There is, of course, testimony by employees tbat tbey were told tbat signing
^^ Englewood Lumber Co., 130 NLRB 394,
°"' In commenting on the apparent incon1961 CCH NLRB If 9685.
sistency of the Board's holding in these
'" 138 NLRB No. 126, 1962 CCH NLRB two cases Trial Examiner John E. Eunke
1111,660.
recently noted: "The rationale for such a
" 144 NLRB No. 124, 1963 CCH NLRB distinction is nowhere explicated in the
U 12,674.
Cumberland decision and it may perhaps
=" S.N.C. Mfg. Co., Inc. 147 NLRB No. 92, only be explained by the change in the
1964 CCH NLRB U 13,219.
membership of the panels which decided
-' Accordingly, where cards state "For the respective cases." Lem Company, TXDElection Only," they will not be counted. 93-65, (9-CA-3194) March 9, 1965.
Bannon Mills, Inc., 146 NLRB No. 81, 1964
The Trial Examiner in Cumberland had
CCH NLRB 1113,013; or, if the handbill previously taken note of this change. He
accompanying the cards states that the stated: ". . . the Englewood decision was by
cards being solicited are "only your re- a divided panel in 1961. Since that time
quest" for an election, the cards will not be there has been a change in the composition
counted. Quarterly Report of General Coun- of the Board." 144 NLRB at p. 1278.
sel, April 26, 1965.
=' 149 NLRB No. 114, 1964 CCH NLRB
II 13,619.
The Use and Abuse of Authorization Cards
437
tbe cards could lead to an election. . . .
[But, there is no] substantial evidence
in tbe record tbat any employee was
told by the Union tbat the authorization card be signed would be used only
to obtain an election. . . ." (Italics in
original.)
Thus, if a union organizer says tbat
tbe purpose of tbe cards is to secure an
election or if be talks about an election
generally, but carefully refrains from
using the word "only," tbe Board will
bold tbat tbe cards are valid.^^ It may
be assumed tbat many tbousands of
sucb cards are currently being obtained
by union organizers, wbich under
present Board rules, may be used in
Joy Silk cases.
Tbe Board's new rule is presently
receiving judicial consideration. In
NLRB V. Peterson Bros., Inc.,^^ tbe
Fiftb Circuit examined tbis rule in connection witb an ambiguously worded
autborization card. On appeal, tbe
union's majority hinged on tbe validity of three cards.** Tbey bore tbe
signatures of employees named [R],
[W] and [S].
[R] initially refused to sign a card
because of bis sense of loyalty to bis
employer for never baving laid him off.
After tbe refusal, tbe business agent
said to him:
"The only thing I am asking you to
do is sign tbe card; regardless of bow
you vote—I would like for you to sign
the card so tbat we could bave tbe election.""
[R] again refused to sign, but later
asked a fellow employee for a card
wbicb he then read, signed, and returned to tbe union. The Board stated:
"Tbe Trial Examiner believed that
[R] had not meant to designate the
Union as bis representative, but bad
signed tbe card on tbe basis of tbe
union's premise (sic) tbat it bad notbing to do witb whetber one was pro- or
anti-union but was simply a means of
obtaining an election, or tbat [R]'s action was ambiguous and tbat tbe General Counsel bad not carried bis burden
of proof. Chairman McCullocb and
Member- Fanning tbink tbis relies too
beavily on [R]'s subjective understanding as to the effect of tbe card. Since
[R] knew tbat tbe cards could also be
used as a basis for establisbing majority
status witbout an election, tbey believe
tbat bis signature is an authorization
to tbe Union to proceed eitber tbrougb
designation and voluntary recognition
or tbrougb tbe election procedure.
Tbey would tberefore count [R]'s card
as a valid designation. As Member
Leedom agrees witb tbe Trial Exam-
'•" A card signed under the following hypothetical, but fairly typical circumstances,
would be considered by the Board as valid:
AUTHORIZATION FOR
REPRESENTATION
International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers
and Helpers
AFL-CIO
Date
I, the undersigned employees of
Organizer: "Come on, sign a card, everyone Is
doing It."
Employee: "No, I'm not Interested, stop botherIng me."
Organizer: "Come on, the cards wiU get us
a Board election, and then you can vote for
or against the union."
Employee: "Stop bothering me."
Organizer: "Listen, the purpose of the cards
IS to get an election here, we need 30 per cent
to get an election. Don't you want to give
your fellow employees an opportunity to vote?"
Employee: "O. K. To get you off my back.
I'll sign. If as you say Its for an election; but
I am not saying I'm for It."
(Name of Company)
hereby select the above named Union as
my collective bargaining agent
Signature of Employee
This is not an application for membership. This card is for use in support of the
='342 F. 2d. 221, 51 LC 1[ 19,564 (CA-5 demand by this Union for recognition from
1965), enf'K in part 144 NLRB 679, 1963 the Company in your behalf, or for an
NLRB election.
CCH NLRB II 12,601.
" 144 NLRB at p. 689.
"° The cards read:
438
July, 1965
Labor Law Journal
iner, he would not count [R]'s card as
a valid designation."^^
[W] signed his card under similar
representations by the business agent
that the card was to obtain an election.
He testified that he had not yet made
up his mind whether he was in favor
of the union when he signed. He also
testified that he knew that by signing
the card he was authorizing the union
to represent him.
The Board again explained its rule:
"The cards on their face clearly and
explicitly declare their purpose. If the
cards are to be voided on the ground
that the employees were misled into believing the cards would be used for a
different or more limited purpose, this
must be done on the basis of what the
employees were told, not on the basis
of their subjective state of mind when
they signed the cards."^*
The Board concluded that the employees were not told that the only purpose of the designations was to obtain
an election and counted the cards.
The Court disagreed, stating:
"In view of the language on the face
of the card that 'this is not an application for membership' and the language
that in the alternative it is 'for an
NLRB election' we think there was a
burden of the General Counsel to establish by a preponderance of the evidence that the signer of the card did, in
effect, what he would have done by
'" 144 NLRB at p. 683 (Boyd Leedom's
term with the Board expired December 16
1964).
"' 144 NLRB at p. 682.
'" Cited at footnote 25. The Court also
overruled the Board's inclusion of [S]'s
card. This card arrived at [S]'s house by
mail during his absence. [S]'s wife signed
her husband's name on the card and mailed
it to the union. When [S] found out that his
wife signed the card he became angry. He
testified he was neutral toward the union.
He stated he did not try to get the card
back because the company president had
voting for the union in a Board election.
We think that in refusing to consider
the subjective intent of the signer of the
card, in light of the ambiguity on the
face of the card, the Board erred. Upon
a careful examination of the record, we
found that the designation cards signed
by [R] and [W] were not valid designations for the union. We conclude that
the Board's finding to the contrary is
not based on substantial evidence on
the record as a whole."*"
Dual Purpose Cards
The cards used in Peterson stated a
twofold purpose—authorization for representation and authorization for an
election. The court was particularly
critical of these dual purpose cards; it
challenged the use and acceptance of
such cards, noting:
"It would be very simple for the
union to prepare a card that in an unambiguous form would authorize union
representation as a bargaining agent. If
the union also wished to have cards
signed to call an election this would also
be a very simple matter. There can be
little excuse for combining the two in a
card that makes possible misrepresentation . . . and . . . misunderstanding...."
A more recent example of the use
(and abuse) of dual purpose cards occurred in the case of Lenz Company.^^
The union used two types of similarly
worded cards. One type was as follows :
said the cards did not make any difference
as there would be an election. The Board
had counted the card stressing the fact that
[S] had mentioned to his son-in-law, a
fellow employee, that he had sent in his
card. The Court disagreed. The elimination of [Si's card, together with those of
[R] and [W] resulted in 25 valid cards out
of a total of 51, one less than a majority.
Consequently, the court refused to enforce
the Board's order to the company to negotiate.
" Lenz, cited at footnote 22.
The Use and Abuse of Authorization Cards
439
"Petition and Authorization to Show
That I want an NLRB Election Now
I, the undersigned, an employee of . . ."
In considering this card the Trial Examiner took notice of the difference in
the size of the type, that is, the larger
bold type on the top asking for an election, and small type on the bottom
authorizing bargaining. He rejected
the cards, concluding:
"These cards partake too strongly of
the 'fine print' clauses in contracts used
by businesses to dupe and deceive the
public and the encouragement of the
practice does not seem to be a proper
federal function."
" . . . I do not consider that a majority
obtained by either fraud or coercion to
be a majority within the meaning of
the Act. It is difficult to acknowledge
that a condonation of chicanery is
necessary in order to effectuate the policies of the Act."
Similar criticism was expressed in a
concurring opinion in NLRB v. S.N.C.
Manufacturing Company, Inc.^^ The
union involved was the IUE. The card
it used was identical to the card it used
at Lem Company. Judge Burger stated:
"This authorization card seems to
me misleading; a less than studied
reading of it might well leave the impression that it authorizes the union
only to petition for an election. Moreover, this possibility of confusion is
unnecessarv."
In support. Judge Burger quoted
the Fifth Circuit's criticism of dual
purpose cards in Peterson. He then
concluded:
"Our observation in Joy Silk Mills
. . . that 'an employee's thoughts (or
afterthoughts) as to why he signed
a union card, and what he thought
that card meant, cannot negative the
overt action of having signed a card
designating a union as bargaining
agent' should not be taken to license
the use of misleading authorization
cards. If such cards are to substitute
for a secret ballot, their terms ought to
be unmistakable." (Italics added.)
" 147 NLRB No. 92, 1964 CCH NLRB
If 13,219, enf'd 51 LC If 19,706 (CA D of C).
" The problem of recollection is even
worse in a Bernel type hearing. The unfair
labor practice proceeding takes place after
an election is held, and after an investigation by the Regional Director of objections.
See Irving Air Chute Co., Inc., 149 NLRB
No. 59, 1964 CCH NLRB 1113,554. In the
usual case this would be six months to a
year following the critical conversation.
"' Cf. the procedure in political elections
where the electorate will sign a nominating
petition for a candidate to place him on the
ballot. A signature on the petition does
not constitute a commitment, mental or
otherwise, that the signatory is authorizing
the candidate to represent him. (See, for
example, in New York State, Election Law,
Sec. 138, McKinney's Cons. Laws at 258).
'" This idea was expressed by the Trial
Examiner in Peterson:
"When employees vote for a union in a
Board election their vote means that they
select the union as their bargaining agent
to represent them. . . . Absent an election,
it is incumbent upon the General Counsel
to establish by a preponderance of the
evidence . . . that [R], by signing the card.
(Continued on next Page.}
440
Recommendation
It is submitted that the Board's
"only" rule is unrealistic, unworkable
and unfair. It exalts one word in the
English language. It places too much
reliance on testimony, often hazy, as
to what was said months previously.**
The rule stretches Joy Silk's tenuous
fabric too far. It permits cards signed
for one purpose (an election) to be
used for another.** It countenances
misrepresentation and fosters deceit.
It adds fuel to the arguments for legislative overriding of Joy Silk.
If these cards are to be used as a
substitute for an election, some realistic method must be found to apprise
an employee that his signature on an
authorization card is in the nature of
a vote for a union.*' He should be
July, 1965
•
Labor taw Journal
made aware of the gravity of the act
and its possible finality.'"^
The criticism of dual purpose cards
by the Fifth Circuit in Peterson should
be heeded, and its suggestion for two
different cards adopted. If a union is
seeking an election, it can use one
type of card. If it is seeking recognition or a Board order without an election, it can use another type of card.
If it intends to proceed alternately, it
can obtain signatures on both cards
at the same time.
One card could read:
AUTHORIZATIO'N
TO PETITION
FOR NLRB ELECTION
I hereby authorize the
Union to petition the National Labor
Relations Board for an election. This
card will not be used for any other
purpose.
Name
Date
Address
Citv
State
Signature
(Footnc^te 33 continued.)
did, in effect, what he would have done by
voting for the Union in a Board election
as described above." 144 NLRB at p. 689.
The Fifth Circuit adopted this idea verbatim: " . . . [W]e think there was a
burden on the General Counsel to establish
by a preponderance of the evidence that
the signer of the card did, in effect, what
he would have done by voting for the
union in a Board election."
" This is especially important, because
in the usual case he has not had the opportunity to hear the pros and cons of unionization prior to signing the card. This is
The other card could read:
AUTHORIZATION AS
BARGAINING AGENT
I hereby authorize the
Union to represent me for purposes
of collective bargaining. / understand
that my signature on this card is the
same as a vote for the union.
Name
Date
City
State
Address
Signature
The wording on the second card,
that it authorizes representation for
purposes of collective bargaining, is
the same as the wording on ballots
in Board elections. An employee's
acknowledgement that his signature
is equivalent to a vote, would impress
upon him the importance of his signature.^^
This recommendation is not a panacea for all the problems in this area.
But it would tend to lessen much of
the Board and court litigation currently taking place concerning authorization cards. It would also, to
a small extent, relieve the inherent
unfairness of the whole concept of
using authorization cards as a substitute for an election.
[The End]
to be contrasted to his knowledge of the
advantages and disadvantages of unionization prior to casting a ballot in an election.
" The Board can require the uniform use
of these two cards by so stating in a decision establishing such policy. It can also
establish uniformity in the wording of such
cards as it did in establishing uniformity
in hiring hall agreements. Associated General Contractors, 119 NLRB 883 (1957);
and uniformity in valid union security contracts (model union security clause) Keystone Coat, Apron & Towel Supply Co., 121
NLRB 880 (1958).
The Use and Abuse of Authorization Cards
441