WISDOM, Circuit Judge:
The National Labor Relations Board seeks enforcement of orders based on findings that the respondent, Southland Paint Company, Inc., violated sections 8(a) (1), 8(a) (3), and 8(a) (5) of the National Labor Relations Act, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq. The case is a run of the mine case as to the 8(a) (1) and 8(a) (3) charges. The 8(a) (5) charge, however, rests on the Board’s finding that Southland refused to bargain collectively with the Oil, Chemical and Atomic Workers International Union, AFL-CIO, representing a majority of its employees
as evidenced by signed authorization cards.
156 NLRB 22; 157 NLRB 795. We enforce the orders as to the 8(a) (1) and 8(a) (3) violations. We decline to enforce the mandatory bargaining order, because we hold that substantial evidence does not support the Board’s finding,
based on the authorization cards,
that the Union represented a majority of the employees at the time that the demand for bargaining was made.
I. The 8(a) (1) Violations.
A. The campaign by the Union to organize the production and maintenance employees of the Southland Paint Company of Gainesville, Texas, began early in 1964. The Company first learned of the campaign on February 28, when one of the employees told a supervisor that a union meeting was to be held that night. A few days later the Union sent a telegram to the Company announcing that the drive was underway, and that some of the employees were participating. The Company acted promptly to counteract the Union effort. Officials or pro-company employees took a list of license plate numbers at the site of the February 28 meeting, and tele
phoned the home of employees to determine if they were at the meeting. The next day, officers asked one of the employees, Thurman, to attend future meetings, to report to the Company, and to oppose the Union. He was offered a raise in salary in return for his help; he declined to help. March 2, the Company suspended plant operations and assembled the employees to hear an anti-union speech by the Chairman of the Board of Directors of the Company, R. A. Davis, Sr.
He threatened to close all or part of the plant and to reduce wages if the Union succeeded in its drive. That same day, the President established a Grievance Committee, the first time such a committee had been formed in the plant. A week later, the Company announced a general pay increase and a vacation plan for employees with five years of seniority.
During the weeks that followed, while the campaign continued, the Company made many attempts to stop the Union drive. The Company conducted surveillance of the union meetings through license plate checks and created an impression that it had an informer present at the meetings. Management personnel approached employees and interrogated them about their views and activities regarding the Union. The Company made general threats to close the plant if the Union came in, offered promotions and pay increases in return for opposition to the Union, and threatened reprisals against employees who supported the Union.
No good purpose would be served by reviewing in detail the Board’s findings as to the 8(a) (1) violation. On the record, as a whole, substantial evidence supports the conclusion of the Board that the conduct of the Company was an unfair labor practice by the terms of section 8(a) (1). See NLRB v. Camco, Inc., 5 Cir. 1965, 340 F.2d 803, cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed 2d 339.
B. The Board found that the Company also violated section 8(a) (1) by demoting John R. Smith from foreman to a rank-and-file member of the shipping crew.
Prior to his demotion Smith was a supervisor. Discrimination against him would not come within the terms of section 8(a) (3). Smith, however, had been an active supporter of the Union, had signed a union card himself, and had solicited others for the Union. The Company issued a directive that supervisory personnel were not to participate in the Union activity, and apparently, Smith abided with this regulation after it was made. At the first hearing held by the Board on the present charges, Smith gave testimony damaging to the Company. At a later date he gave an affidavit supporting the Board’s opposition to a continuance sought by the Company of a second hearing. As a result, according to his testimony, Davis, Sr. called him to account. Twelve days later, the Company demoted Smith and cut his wages. The Board discredited testimony of Company officials that Smith was demoted for cause, found that the demotion was a reprisal, and ordered that Smith be reinstated in his previous position.
The act offers no protection to supervisory personnel who are disciplined or discriminated against because of their support of a union. But it does protect them from discrimination premised on their having given testimony before the Board. In Oil City Brass Works v. NLRB, 5 Cir. 1966, 357 F.2d 466, 471, this Court held that among
the rights protected from management interference is the right to have the privileges secured by the Act vindicated through the administrative procedures of the Board, and that “any discrimination against supervisory personnel because of testimony before the Board directly infringes the right of rank-and-file employees to a congressionally provided, effective administrative process, in violation of section 8(a) (1), 29 U.S.C. § 158(a) (1)”. See NLRB v. Better Monkey Grip Co., 115 N.L.R.B. 1170, enfd., 243 F.2d 836 (5 Cir. 1957), cert. den., 355 U.S. 864, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); NLRB v. Dal-Tex Optical Co., 310 F.2d 58 (5 Cir. 1962). The giving of an affidavit in the course of a Board proceeding is equivalent to giving testimony.
Smith’s case raises a close factual issue.
However, the Board had before it sufficient evidence from which it could infer that Smith’s demotion was a violation of section 8(a) (1). We enforce the portion of the Board’s order requiring the Company to offer Smith reinstatement to his former position or to one substantially equivalent, with back pay and restoration of seniority or other rights which he may have lost as a result of the discriminatory conduct.
II. The 8(a) (3) Violations.
We hold that substantial evidence supports the Board’s findings that Southland discriminatorily discharged three employees, suspended one, and refused to rehire a fifth.
Two of the dis-
chargees were rehired, as was the applicant for reemployment. We disagree in one minor respect, with regard to George B. Brown. It is not disputed that the
lay-off of January 18 was legitimate. Brown first sought reinstatement by a letter mailed on February 3. On February 4, when the first man was hired, the Company could not have known of Brown’s desire to be reinstated. The Board’s order, however, requires the payment of back pay from that day until the day Brown was actually rehired. We modify the Board’s order to the extent that we require back pay to be paid Brown only from February 8, at which time two more men were hired, and by which time it is proper to infer that the refusal to rehire Brown was discriminatory.
III. The 8(a) (5) Violations.
The Union representatives, assisted by certain employees of the Company, sought to have the production and maintenance employees sign cards authorizing the Union to act as their bargaining agent.
At the first union meeting on February 28, and on several other occasions a number of employees signed such cards. March 24, the Union organizer wrote to Southland stating that the Union represented a majority of the employees in a unit of production and maintenance workers. The Union offered to prove its majority status through a third party, and demanded that the Company recognize and bargain with it. The Company did not reply to this letter and has refused to recognize the Union.
The Board found that on March 24 the appropriate unit consisted of 34 employees, that the Union held valid authorization cards from 20 of these employees, that the Company had no good faith doubt of the majority status, and that therefore the refusal to recognize and bargain with the Union was a violation of section 8(a) (5). Based on this finding, the Board issued an order re
quiring the Company, upon request to bargain with the Union.
A union elected by 20 employees in a unit of 34 acts as the “exclusive representative” of
all
34 employees. No wonder the Act, in terms (section 9(c)), provides for the selection of a union as bargaining representative by regulated secret ballot. In keeping with the importance of the election, the Board takes great care to prevent management or labor from coercing the employees. Indeed, the Board has prided itself on its providing “laboratory conditions” in regulating elections, so as “to determine the uninhibited desires of the employees”. General Shoe Corp., 77 N.L.R.B. 124, 127 (1948).
Section 8(a) (5), however, states that “it shall be an unfair labor practice for an employer * * * to refuse to bargain collectively with the representatives of his employees”. This language has been interpreted to mean that an employer is under a duty to bargain as soon as the union representative presents convincing evidence of majority support. NLRB v. Dahlstrom Metallic Door Co., 2 Cir. 1940, 112 F.2d 756. Notwithstanding Section 9(c), such evidence may consist of employees’ signatures on cards authorizing the union in question to act as their bargaining agent — without an election. Franks Bros. Co. v. NLRB, 1944, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020. In
Franks Bros,
the union had obtained signed cards from 45 of 80 eligible employees authorizing it to act as bargaining representative, and demanded recognition or an election. The company conducted an aggressive anti-union campaign, as a result of which the support for the union eroded. The union withdrew its election petition, alleging that a fair election was impossible. The Board held that the company was obligated to bargain when the cards were presented, and issued an order requiring it to do so. The Supreme Court upheld the Board, stating that as long as a majority had supported and authorized the union at the time the demand was made, it was appropriate for the Board to order bargaining, by virtue of its authority under section 10(c), authorizing the Board to fashion appropriate remedies to correct unfair labor practices.
A leading case in this area is Joy Silk Mills, Inc. v. NLRB, 1950, 87 U.S.App.D.C. 360, 185 F.2d 732, cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350. In
Joy Silk
the Court held that when an employer could have no doubt as to the majority status or when an employer refuses recognition of a union “due to a desire to gain time and to take action to dissipate the union’s majority, the refusal is no longer justifiable and constitutes a violation of the duty to bargain set forth in section 8(a) (5) of the Act”. On this point,
Joy Silk
has been universally followed ;
of course, first it must be shown that majority support did in fact exist.
Although the decision in
Joy Silk
turned on the employer’s motivation, “good faith doubt”, the case is perhaps most often cited on another point. The employer in
Joy Silk
had questioned the employees as to their purpose in signing the cards. In upholding the Board’s finding that this interrogation was a violation of section 8(a) (1), the court said
“an employee’s thoughts (or afterthoughts) as to why he signed a union
card, and what he thought the card meant, cannot negative the overt act of having signed a card designating a union as bargaining agent.” 185 F.2d at 743.
No issue was raised in
Joy Silk
as to the validity of the cards or of misrepresentation by the union representatives who solicited them. Nevertheless, the Board has often quoted and relied on this
Joy Silk
dictum, as it did in this case, to make the act of signing an authorization card decisive — regardless of the employee’s understanding of what he was signing and what he was told about the purpose of the card. This Court has never applied the dictum so woodenly. And courts of appeals in other circuits which have recently considered the point, with the exception of the District of Columbia Circuit, are in general accord with our view: the
Joy Silk
rationale is sound only if the employees understand that if a majority sign cards designating the union as their bargaining agent an election will be unnecessary.
“Laboratory conditions” are conspicuous by their absence in many cases involving selection of a bargaining representative by the use of authorization cards. The Board itself has said that this is “a notoriously unreliable method of determining majority status of a union”. Sunbeam Corporation, 99 N.L.R.B. 546, 550-551 (1952). Commentators are less restrained.
The Board’s current rule, sought to be applied here, is that an authorization card may not be questioned, unless there is clear and convincing evidence of misrepresentation or coercion. As a general principle, this rule would not be objectionable were it not that with regard to elections, the Board takes the position that the solicitation is not misleading unless the union solicitor represents that the cards are
solely
for the purpose of holding an election. The Board has not always had the strict rule it now applies.
In Englewood Lumber Co. 130 N.L.R.B. 394 (1961) the Board held that when union organizers told employees that the cards were for an election by secret ballot, such cards should not be counted in determining in a union’s majority status. See also Morris & Associates, Inc., 138 N.L.R.B. No. 126 (1962). But under Cumberland Shoe, 144 N.L.R.B. 1268 (1963), enforced, 6 Cir. 1965, 351 F.2d 917, the Board laid down the rule that there is but one misrepresentation as to the purpose of the card: a statement by the solicitor that the
only
purpose of the card is to obtain an election. The Board accepts cards stating in bold type “I want an NLRB election now”, signed on the representation that the cards are to obtain an. election. S.N.C. Manufacturing Co., Inc., 147 N.L.R.B. 92 (1964).
The central concern in determining whether a union is a qualified agent to bargain for its members is— employee free choice. It is not the right of the union to solicit support, or of the employer to bargain or not, or of the Board to uphold its authority to fashion remedies. Section 7 of the NLRA gives employees the right to “bargain collectively through representatives
of their own choosing
* * * or * * * to refrain from * * * such activities.” (Emphasis added.) This right is lost when a minority of the employees are able to authorize the union to bargain for all of the employees. Lost too is the right guaranteed by section 9 that exclusive bargaining status shall be granted to “representatives designated or selected * * * by a majority of the employees” in an appropriate unit.
This Court scrutinizes authorization cards as a means of achieving representational status. See NLRB v. Dan River Mills, Inc., 5 Cir. 1960, 274 F.2d 381. In NLRB v. Peterson Bros., Inc., 5 Cir.1965, 342 F.2d 221, the union claimed majority status on the basis of authorization cards which designated the union as bargaining representative and also stated: “This card is for use in support of the demand by this Union for recognition from the Company in your behalf, or for an NLRB election.” The Board concluded that three disputed cards were valid since the signers were not told that the
only
purpose of the cards was to obtain an election. “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.” 144 N.L.R.B. at p. 682. We held that the cards were ambiguous in that they served a dual purpose — authorization for representation and authorization for an election. The Court, speaking through Judge Tuttle, said:
“[T]here 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. 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.” 342 F.2d at 224.
The Court denied enforcement of the bargaining order.
In Engineers and Fabricators, Inc. v. NLRB, 5 Cir. 1967, 376 F.2d 482 the authorization cards in question clearly stated that the signer requested and accepted membership in the union and authorized
it as his bargaining agent; there was no reference to an election on the cards. There was however, evidence that the cards were solicited on the representation that they were to be used to obtain an election. The Board, applying the
Cumberland Shoe
doctrine held that since the employees were not told that an election was the
only
purpose' of the cards, the challenged cards should be counted. The Court expressly rejected this standard. Speaking through Judge Coleman, we held:
“When cards are challenged because of alleged misrepresentations in their procurement, the general counsel must show that the subjective intent to authorize union representation was not vitiated by such representations * *. [T]oo lax a standard [was used] and therefore the burden was not met. The point is that the Board applied the facts to the wrong legal standard because there was no probing into the subjective intent of the challenged signers.” 376 F.2d at 487.
The Court quoted with approvel from Bauer Welding and Metal Fabricators, Inc. v. NLRB, 8 Cir. 1966, 358 F.2d 766; NLRB v. Koehler, 7 Cir. 1964, 328 F.2d 770, and Englewood Lumber Co., 130 N.L.R.B. 394 (1961).
In NLRB v. Lake Butler Apparel Co., 5 Cir. 1968, 392 F.2d 76 (March 25, 1968) as in
Engineers,
the cards used were clear, at least to the extent that the cards did not mention an election and did contain the signer’s acceptance of membership in the union. The Court made it clear that “once representation cards are challenged as here because of misrepresentation in their procurement and proof is offered which substantiates the challenge” the burden of proof is on the general counsel “to show that the subjective intent to authorize union representation was not vitiated by the misrepresentation.” Judge Bell, speaking for the Court, noted the weakness in the Board’s
Cumberland
approach:
The facts of this case would seem to point to fault in the
Cumberland Shoe
rule. While it does simplify the problem of proof and receives credence from parol evidence rule concepts, there are countervailing policy considerations. The rights involved are those of the employees. The right is to join or not to join a union. The right is to be exercised free from coercion from any quarter. This can be insured by the use of the secret ballot and by laboratory conditions which the Board so wisely requires. * * * The right of employees to a choice and a choice through the secret ballot should not be lightly disregarded. A rule of convenience such as that formulated in
Cumberland Shoe
must give way to truth based on the record considered as a whole. Anything less disparages the rights accorded employees under § 7 of the Act and may visit the sins of the employer on the employees. The struggle is between the employer and the union but the right to select is that of the employees. 392 F.2d at 82.
The Second Circuit also scrutinizes the use of authorization cards. In NLRB v. S. E. Nichols Co., 2 Cir. 1967, 380 F.2d 438, the Board made much of the fact that the cards clearly authorized only representation, in contrast with misleading or ambiguous dual purpose cards. Judge Friendly pointed out that clarity, like beauty, is in the eyes of the beholder
“But while clarity should constitute the beginning of any effort to show a majority on the basis of authorization cards, it is not the end; the clearest written words can be perverted by oral misrepresentations,
especially to ordinary working people unversed in the ‘witty diversities’ of labor law.
It is all too easy for the Board or a reviewing court to fall into the error of thinking that language clear to them was equally clear to employees previously unexposed to labor relations matters; to treat authorization cards, which union organizers present for filling out and signing and then immediately take away, as if they were wills or contracts carefully explained by a lawyer to his client is to substitute form for reality.
* * * In our view the evidence demands a conclusion that at least three of the signers were induced to affix their signatures by statements causing them to believe that the union would not achieve representative status without an election." (380 F.2d at 442-443. (Emphasis added.)
The Court concluded that there was “an impairment of employees’ § 7 rights” when an employee signs a card under the representation that he will be given an opportunity to make a formal choice only in an election and such card is used instead to designate a bargaining agent. 380 F.2d at 445. Judge Friendly noted that the cards, unlike those in
Engineers & Fabricators (but like the cards in the instant case),
did not contain an acceptance of union membership, “one thing an employee could readily understand”. Bearing in mind that “the function of authorization cards * * * is to demonstrate that a majority of the employees have ‘clearly manifested an intention to designate the Union as their bargaining representative’
[Englewood Lumber Co.] *
* * there seems to be no reason why cards could not state in large type that if a majority signed, the union would claim representative status without an election”. 380 F.2d at 442.
We agree.
The Sixth Circuit which approved the Board’s. Cumberland Shoe doctrine, NLRB v. Cumberland Shoe Corp., 6 Cir. 1965, 351 F.2d 917,
has recently reinterpreted its position. In NLRB v. Swan Super Cleaners, Inc., 6 Cir. 1967, 384 F.2d 609, the court denied enforcement of a bargaining order because union solicitors had misrepresented the purpose of the cards. The court declined to consider evidence of a subjective intention not to join the union “as of controlling importance”, citing
Joy Silk.
However, the court considered such evidence “relevant in assessing the effect of the solicitor’s words,' for it casts a telling reflection on the actual communication conveyed to the signer”. Moreover, the “testimony of the signer as to his
expressed
state of mind is also relevant in determining whether his misapprehension over the purpose of the card was
knowingly induced
by the solicitor”. (Emphasis in the original.) The Court explained
Cumberland:
“ [W] e do not consider that we have announced a rule that only where the solicitor of a card actually employs the specified words ‘this card is for the
sole
and
only
purpose of having an election’ will a card be invalidated. We did not intend such a narrow and mechanical rule. We believe that whatever the style or actual words of the solicitation, if it is clearly calculated to create in the mind of the one solicited a belief that the only purpose of the card is to obtain an election, an invalidation of such card does not offend our Cumberland rule.”
The Court distinguished
Cumberland
on the ground that there the union did not seek an election.
Here, as to the four challenged cards:
“Considering the context of the solicitations, we find that their clear intent
and effect was to assure these women that their signing was only for the purpose of having an election.”
The Seventh Circuit, expressly relying on
Swan,
refused enforcement of a bargaining order in NLRB v. Dan Howard Mfg. Co., 7 Cir., 390 F.2d 304 (January 12, 1968). In that case one employee who had signed a card had been told falsely that a majority had already signed. Another was told that the purpose of the card was to admit her to a meeting. The court observed, “The fact that the language of the card was unambiguous is of little significance in light of [the signer’s] testimony as to her conversation with [the solicitor] and her testimony that she did not read the card nor did anyone read it to her.”
In several recent decisions the Fourth Circuit has stated in strong terms that authorization cards are a highly unreliable method for determining employee choice. That court has taken the position that an employer is entitled to have a good faith doubt of a union’s majority support when it is based on cards alone, NLRB v. S. S. Logan Packing Co., 4 Cir. 1967, 386 F.2d 562; Crawford Mfg. Co. v. NLRB, 4 Cir. 1967, 386 F.2d 367,
except in the rare instance when the employer verifies the majority status himself and finds that it does in fact exist. NLRB v. Sehon Stevenson & Co., 4 Cir. 1967, 386 F.2d 551. Although we find the arguments advanced in those opinions persuasive, at this time in this case it is unnecessary to go as far as the Fourth Circuit has gone.
The District of Columbia Circuit adheres to
Cumberland.
In International Union UAW, etc. v. NLRB, D.C. Cir., 392 F.2d 801 (November 14,1967) (Preston Products Co.), over a dissent calling attention to
Swan,
the court upheld a bargaining order despite evidence of misrepresentation in the solicitation of the cards. The court distinguished
Nichols
and
Swan
on the ground that in each case the union had never actually sought an election, while in
Preston
it had, and that therefore it was not a misrepresentation to say that one purpose of the cards was to call for an election.
We return now to the facts before us.
We note, first, that most of the employees here had not completed high school and that many could not read well.
Many of
the
employees, “unlearned in the ‘witty diversities’ of labor law”; accepted without comment the solicitors’ explanation that the cards designated the Union as their bargaining representative; what interested them was that, if enough cards were signed — there would be an election.
Looking at the face of the card, we find that it clearly states that the signer designated the Union as the bargaining agent of the employees in the unit. But exclusions may be more telling than inclusions. If an authorization card is to be relied upon in lieu of an election, it is only fair for the cards to say so. In the light of the solicitor’s oral statements, the omission of such a statement was a misrepresentation of the purposes for which the card was to be used. We observe too that the card omits any reference to the signer’s membership in the Union. As the court said in
Nichols,
this is “one thing an employee would readily understand”. At the bottom of the card is the statement, “Neither your employer nor his representative will ever see this signed authorization”. It would be difficult for the average employee to reconcile this statement with the ostensible purpose of using the cards for recognition of a union composed of the signers and, of course, the other members of the unit. (There is no evidence that the solicitors explained that a neutral third party would check the cards.) This caveat of confidentiality creates the impression that the act of signing was not in itself the critical act; the cards would form a basis for a secret election.
On their face, the authorization cards were not as ambiguous as those used by the union in
Peterson Bros.,
but they were more ambiguous than those used in
Engineers & Fabricators.
Taking the cards with the solicitors’ explanation, the cards were as much for a dual purpose here as they were in
Peterson Bros.
The effect of signing must be considered within the context of the solicitation ; otherwise, it would be too easy for a union to circumvent employee freedom of choice by saying one thing and doing another when dealing with relatively unsophisticated employees.
The trial examiner tried this case on the assumption, quoting
Joy Silk,
that an employee’s state of mind as to why he signed a card “cannot negative the overt action of having signed a card designating a union as bargaining agent”. The examiner’s criterion was “whether the employee signed for the limited or
sole
purpose of obtaining an election”. The Board adopted the examiner’s findings and conclusions. In the light of
Peterson Bros,
and
Engineers & Fabricators,
the examiner and the Board employed the wrong legal standards.
We have reviewed the record with more than usual care.
There is substantial evidence to support the finding that the union solicitors in many instances explained that the cards designated the union as the bargaining agent of the employees. Consistent with the examiner’s premises, this finding was enough to justify the examiner’s conclusion that the solicitors did not represent to the signers that the cards were
solely
for an election. At the same time there is undisputed evidence that the solicitors told at least as many as a dozen employees that a purpose of the cards was to obtain an election. At least eight and perhaps more employees were permitted to sign under the impression that the
cards were to be used to obtain an election.
Except in one instance,
the trial examiner did not discredit the signers’ testimony; he disregarded it. On
the record before us we hold that the Board should have invalidated the cards of Ruby Floyd, Johnny Perry, Julius Hess, Wayne Mullins, Bill Jones, Ted Noggler, Emma Leverett, and Letha Ward.
Invalidation of these cards destroys the union majority.
* * * * * *
As to the 8(a) (1) and 8(a) (3) violations, the orders of the Board are enforced, except as modified with regard to Brown. As to the alleged 8(a) (5) violation, the portion of the order requiring the Company to bargain with the Union and to rescind its work rules will not be enforced.