Garment Workers v. Labor Board, 366 U.S. 731 (1961)

Author: Justice Clark

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Garment Workers v. Labor Board, 366 U.S. 731 (1961)

MR. JUSTICE CLARK delivered the opinion of the Court.

We are asked to decide in this case whether it was an unfair labor practice for both an employer and a union to enter into an agreement under which the employer recognized the union as exclusive bargaining representative of certain of his employees although, in fact, only a minority of those employees had authorized the union to represent their interests. The Board found{1} that, by extending such recognition, even though done in the good faith belief that the union had the consent of a majority of employees in the appropriate bargaining unit, the employer interfered with the organizational rights of his employees in violation of § 8(a)(1) of the National Labor Relations Act, and that such recognition also constituted unlawful support to a labor organization in violation of § 8(a)(2).{2} In addition, the Board found that the union violated § 8(b)(1)(A){3} by its acceptance of exclusive bargaining authority at a time when, in fact, it did not have the support of a majority of the employees, and this in spite of its bona fide belief that it did. Accordingly, the Board ordered the unfair labor practices discontinued and directed the holding of a representation election. The Court of Appeals, by a divided vote, granted enforcement, 108 U.S.App.D.C. 68, 280 F.2d 616. We granted certiorari. 364 U.S. 811. We agree with the Board and the Court of Appeals that such extension and acceptance of recognition constitute unfair labor practices, and that the remedy provided was appropriate.

In October, 1956, the petitioner union initiated an organizational campaign at Bernhard-Altmann Texas Corporation’s knitwear manufacturing plant in San Antonio, Texas. No other labor organization was similarly engaged at that time. During the course of that campaign, on July 29, 1957, certain of the company’s Topping Department employees went on strike in protest against a wage reduction. That dispute was in no way related to the union campaign, however, and the organizational efforts were continued during the strike. Some of the striking employees had signed authorization cards solicited by the union during its drive, and, while the strike was in progress, the union entered upon a course of negotiations with the employer. As a result of those negotiations, held in New York City where the home offices of both were located, on August 30, 1957, the employer and union signed a "memorandum of understanding." In that memorandum, the company recognized the union as exclusive bargaining representative of "all production and shipping employees." The union representative asserted that the union’s comparison of the employee authorization cards in its possession with the number of eligible employees representatives of the company furnished it indicated that the union had in fact secured such cards from a majority of employees in the unit. Neither employer nor union made any effort at that time to check the cards in the union’s possession against the employee roll, or otherwise, to ascertain with any degree of certainty that the union’s assertion, later found by the Board to be erroneous,{4} was founded on fact, rather than upon good faith assumption. The agreement, containing no union security provisions, called for the ending of the strike and for certain improved wages and conditions of employment. It also provided that a "formal agreement containing these terms" would "be promptly drafted . . . and signed by both parties within the next two weeks."

Thereafter, on October 10, 1957, a formal collective bargaining agreement, embodying the terms of the August 30 memorandum, was signed by the parties. The bargaining unit description set out in the formal contract, although more specific, conformed to that contained in the prior memorandum. It is not disputed that, as of execution of the formal contract, the union in fact represented a clear majority of employees in the appropriate unit.{5} In upholding the complaints filed against the employer and union by the General Counsel, the Board decided{6} that the employer’s good faith belief that the union in fact represented a majority of employees in the unit on the critical date of the memorandum of understanding was not a defense, "particularly where, as here, the Company made no effort to check the authorization cards against its payroll records." 122 N.L.R.B. 1289, 1292. Noting that the union was "actively seeking recognition at the time such recognition was granted," and that "the Union was [not] the passive recipient of an unsolicited gift bestowed by the Company," the Board found that the union’s execution of the August 30 agreement was a "direct deprivation" of the nonconsenting majority employees’ organizational and bargaining rights. At pp. 1292, 1293, note 9. Accordingly, the Board ordered the employer to withhold all recognition from the union and to cease giving effect to agreements entered into with the union;{7} the union was ordered to cease acting as bargaining representative of any of the employees until such time as a Board conducted election demonstrated its majority status, and to refrain from seeking to enforce the agreements previously entered.

The Court of Appeals found it difficult to "conceive of a clearer restraint on the employees’ right of self-organization than for their employer to enter into a collective bargaining agreement with a minority of the employees." 280 F.2d at 619. The court distinguished our decision in Labor Board v. Drivers Local Union No. 639, 362 U.S. 274, on the ground that there was involved here neither recognitional nor organizational picketing. The court held that the bona fides of the parties was irrelevant except to the extent that it "was arrived at through an adequate effort to determine the true facts of the situation." 280 F.2d at 622.

At the outset, we reject as without relevance to our decision the fact that, as of the execution date of the formal agreement on October 10, petitioner represented a majority of the employees. As the Court of Appeals indicated, the recognition of the minority union on August 30, 1957, was "a fait accompli depriving the majority of the employees of their guaranteed right to choose their own representative." 280 F.2d at 621. It is, therefore, of no consequence that petitioner may have acquired, by October 10, the necessary majority if, during the interim, it was acting unlawfully. Indeed, such acquisition of majority status itself might indicate that the recognition secured by the August 30 agreement afforded petitioner a deceptive cloak of authority with which to persuasively elicit additional employee support.

Nor does this case directly involve a strike. The strike which occurred was in protest against a wage reduction, and had nothing to do with petitioner’s quest for recognition. Likewise, no question of picketing is presented. Lastly, the violation which the Board found was the grant by the employer of exclusive representation status to a minority union, as distinguished from an employer’s bargaining with a minority union for its members only. Therefore, the exclusive representation provision is the vice in the agreement, and discussion of "collective bargaining," as distinguished from "exclusive recognition," is pointless.{8} Moreover, the insistence that we hold the agreement valid and enforceable as to those employees who consented to it must be rejected. On the facts shown, the agreement must fail in its entirety. It was obtained under the erroneous claim of majority representation. Perhaps the employer would not have entered into it if he had known the facts. Quite apart from other conceivable situations, the unlawful genesis of this agreement precludes its partial validity.

In their selection of a bargaining representative, § 9(a) of the Wagner Act guarantees employees freedom of choice and majority rule. J. I. Case Co. v. Labor Board, 321 U.S. 332, 339. In short, as we said in Brooks v. Labor Board, 348 U.S. 96, 103, the Act placed "a nonconsenting minority under the bargaining responsibility of an agency selected by a majority of the workers." Here, however, the reverse has been shown to be the case. Bernhard-Altmann granted exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority. There could be no clearer abridgment of § 7 of the Act, assuring employees the right "to bargain collectively through representatives of their own choosing" or "to refrain from" such activity.{9} It follows, without need of further demonstration, that the employer activity found present here violated § 8(a)(1) of the Act, which prohibits employer interference with, and restraint of, employee exercise of § 7 rights. Section 8(a)(2) of the Act makes it an unfair labor practice for an employer to "contribute . . . support" to a labor organization. The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of that section, because the union so favored is given "a marked advantage over any other in securing the adherence of employees," Labor Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 267. In the Taft-Hartley Law, Congress added § 8(b)(1)(A) to the Wagner Act, prohibiting, as the Court of Appeals held, "unions from invading the rights of employees under § 7 in a fashion comparable to the activities of employers prohibited under § 8(a)(1)." 280 F.2d at 620. It was the intent of Congress to impose upon unions the same restrictions which the Wagner Act imposed on employers with respect to violations of employee rights.{10}

The petitioner, while taking no issue with the fact of its minority status on the critical date, maintains that both Bernhard-Altmann’s and its own good faith beliefs in petitioner’s majority status are a complete defense. To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act -- that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives.{11} We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices are involved. The act made unlawful by § 8(a)(2) is employer support of a minority union. Here, that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees’ rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith.{12}

This conclusion, while giving the employee only the protection assured him by the Act, places no particular hardship on the employer or the union. It merely requires that recognition be withheld until the Board-conducted election results in majority selection of a representative. The Board’s order here, as we might infer from the employer’s failure to resist its enforcement, would apparently result in similarly slight hardship upon it. We do not share petitioner’s apprehension that holding such conduct unlawful will somehow induce a breakdown, or seriously impede the progress of collective bargaining. If an employer takes reasonable steps to verify union claims, themselves advanced only after careful estimate -- precisely what Bernhard-Altmann and petitioner failed to do here -- he can readily ascertain their validity and obviate a Board election. We fail to see any onerous burden involved in requiring responsible negotiators to be careful, by cross-checking, for example, well analyzed employer records with union listings or authorization cards. Individual and collective employee rights may not be trampled upon merely because it is inconvenient to avoid doing so. Moreover, no penalty is attached to the violation. Assuming that an employer in good faith accepts or rejects a union claim of majority status, the validity of his decision may be tested in an unfair labor practice proceeding.{13} If he is found to have erred in extending or withholding recognition, he is subject only to a remedial order requiring him to conform his conduct to the norms set out in the Act, as was the case here. No further penalty results. We believe the Board’s remedial order is the proper one in such cases. Labor Board v. District 50, U.M.W, 355 U.S. 453.


1. Except for filing an answer, the employer, Bernhard-Altmann Texas Corporation, did not resist enforcement of the Board’s order, and has not sought review in this Court.

2. Section 8(a)(1) and (2), insofar as pertinent, provides:

It shall be an unfair labor practice for an employer --

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;

(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. . . .

61 Stat. 140, 29 U.S.C. § 158(a)(1, 2).

3. Section 8(b)(1)(A) provides in pertinent part:

It shall be an unfair labor practice for a labor organization or its agents --

(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7. . . .

61 Stat. 141, 29 U.S.C. § 158(b)(1)(A).

4. The Board found that, as of August 30, the union in fact had authority to represent either 70 employees out of a relevant total of 280, or 158 out of 368, depending upon the criteria used in determining employee eligibility. "Accordingly, the Union could not, under any circumstances, have represented a majority of the employees involved on August 30, 1957." 122 N.L.R.B. 1289, 1291-1292.

5. The Court of Appeals considered irrelevant the achievement of majority status during the period that the union maintained the unlawful agreement. 280 F.2d 616, 619, note 3.

6. Member Fanning agreed with a majority of the Board that the employer violated § 8(a)(1) and (2), but dissented as to the finding of union violation of § 8(b)(1)(A). 122 N.L.R.B. 1289, 1297.

7. However, the terms and conditions of employment fixed by the agreement were not required to be varied or abandoned. We take it that the Board’s order restraining the union and employer from dealing will, in any event, terminate after the election is held.

8. Relying upon reference to § 9 decertification proceedings, petitioner contends that such a contract with a minority union does not prevent employees from exercising complete freedom. The availability of such a remedy is doubtful in view of the Board’s position that the "contract bar" defense prevents a showing of lack of majority status at the time a contract was made. See In re Columbia River Salmon & Tuna Packers Assn., 91 N.L.R.B. 1424, and cases cited therein.

9. Section 7 provides:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

61 Stat. 140, 29 U.S.C. § 157.

10. See S.Rep. No. 105, 80th Cong., 1st Sess. 50 (Supp.Views), I Leg.Hist. (1947) 456; II Leg.Hist. (1947) 1199, 1204, 1207.

11. Although it is of no significance to our holding, we note that there was made no reasonable effort to determine whether, in fact, petitioner represented a majority of the employees.

12. See Labor Board v. Perfect Circle Co., 162 F.2d 566; Labor Board v. Illinois Tool Works, 153 F.2d 811; McQuay-Norris Mfg. Co. v. Labor Board, 116 F.2d 748; and cf. Labor Board v. Industrial Cotton Mills, 208 F.2d 87.

13. Section 8(a)(5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees. . . ." 61 Stat. 141, 29 U.S.C. § 158(a)(5).


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Chicago: Clark, "Clark, J., Lead Opinion," Garment Workers v. Labor Board, 366 U.S. 731 (1961) in 366 U.S. 731 366 U.S. 733–366 U.S. 740. Original Sources, accessed December 10, 2023,

MLA: Clark. "Clark, J., Lead Opinion." Garment Workers v. Labor Board, 366 U.S. 731 (1961), in 366 U.S. 731, pp. 366 U.S. 733–366 U.S. 740. Original Sources. 10 Dec. 2023.

Harvard: Clark, 'Clark, J., Lead Opinion' in Garment Workers v. Labor Board, 366 U.S. 731 (1961). cited in 1961, 366 U.S. 731, pp.366 U.S. 733–366 U.S. 740. Original Sources, retrieved 10 December 2023, from