UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Fahy, Senior Circuit Judge, and McGowan and MacKinnon, Circuit Judges. Fahy, Senior Circuit Judge (concurring).
In this proceeding brought by a union to review an order of the National Labor Relations Board dismissing a Section 8 (a) (5) complaint, counsel for both the petitioner and the Board filed supplemental briefs after the Supreme Court decided NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969). This was because the case, involving as it does the refusal of the employer to recognize the union on the basis of authorization cards, fell within the general ambit of Gissel. Counsel for the Board now argues that, although here, unlike Gissel, the employer engaged in no independent unfair labor practices, there are expressions by the Court in Gissel which indicate approval of the course followed by the Board. The union, contrarily, stresses the differing circumstances of Gissel, and urges us to approve a method of handling pressed upon the Supreme Court in Gissel but not dealt with definitively by it. *fn1
We think the matter of sufficient importance to warrant further consideration by the Board in the first instance in the light of Gissel, but without limitation; and we remand the case for that purpose. In doing so, we note particularly that the defense advanced by the employer at the unfair labor practice hearing was that it did not think the cards presented to it represented a majority of the appropriate unit, as the employer conceived that unit to be. In Gissel, the Supreme Court (at p. 594, 89 S. Ct. at p. 1930) said the Board had represented at oral argument that the Board's "current practice" was to view "an employer's good faith doubt [as] largely irrelevant," although "an employer could not refuse recognition initially because of questions as to the appropriateness of the unit . . .." *fn2 In view of this representation, there would appear to be some question as to whether the employer's conduct here allowed it, under the Board's "current practice," to escape a violation by remaining passive. Thus it would appear useful for the Board to look at this case again not only in the light of what the Court decided in Gissel but also by reference to what the Court said it understood the Board's practice to be in situations not involving independent unfair labor practices but where the employer stands upon a doubt as to the appropriateness of the unit.
An order of remand will issue. IN AGREEMENT
FAHY, Senior Circuit Judge (concurring):
I concur in the remand for further consideration by the Board of its own current practice as understood by the Supreme Curt in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969), but without limitation. I point out, however, what seems to me the narrow scope of the Gissel decision in relation to this case. The Supreme Court ruled that an employer's duty to bargain under Section 8(a) (5) is not restricted solely to those unions which have been certified after a Board election. The Court also rejected the view that Union authorization cards are inherently unreliable. The facts in the record before us make both of these rulings applicable to the present case; but the Supreme Court also pointed out that it was not deciding whether a refusal to bargain absent an unfair labor practice other than a violation of Section 8(a) (5) constitutes a violation of that section.* I accordingly do not give weight to the Board's present contention that because the Court described current practices of the Board it impliedly approved them. On the other hand I do not think the Court's decision covers the Union's position in the present case, aside from the specific holdings noted above.
Our Per Curiam suggests that the Supreme Court's understanding of current Board practice is that it prohibits an employer from refusing to grant union recognition on the ground that there is no appropriate unit, thus raising the question whether under that practice the employer's conduct in our case would be proper. That the Board's current practice is as our Per Curiam suggests the Supreme Court understood it to be is not entirely clear to me.
Putting aside now the reference in the Supreme Court's opinion to the practice of the Board as stated in its oral argument in Gissel, it is significant that the standard the Board urges in support of its decision favorable to the employer in the present case is one of "bad faith" on the employer's part. In this connection the Board urges that if the employer does not commit other unfair labor practices it can refuse to bargain with impunity so long as it has no independent knowledge of the Union's representative status. The present record reveals that the Union representatives had authorization cards free of suspicion from a majority in a unit recognized as appropriate by the trial examiner and the Board, followed by evidence of the majority's solidarity through the picketing and strike. Moreover, the employer did not demand that the Union request a Board election. It simply refused to recognize the Union. I understand our remand does not exclude consideration anew of whether in these circumstances the employer was shown to have acted in bad faith and, if so, the appropriate disposition the Board should make of the case.
MacKINNON, Circuit Judge:
I concur in the remand but am of the opinion that Gissel supports ...