National Labor Relations Board v. Gissel Packing Co.

delivered the opinion of the Court.

These cases involve the extent of an employer’s duty under the National Labor Relations Act to recognize a union that bases its claim to representative status solely on the possession of union authorization cards, and the steps an employer may take, particularly with regard to the scope and content of statements he may make, in legitimately resisting such card-based recognition. The specific questions facing us here are whether the duty to bargain can arise without a Board election under the Act; whether union authorization cards, if obtained from a majority of employees without misrepresentation or coercion, are reliable enough generally to provide a valid, alternate route to majority status; whether a bargaining order is an appropriate and authorized remedy where an employer rejects a card majority while at the same time committing unfair labor practices that tend to undermine the union’s majority and make a fair election an unlikely possibility; and whether certain specific statements made by an employer to his employees constituted such an election-voiding unfair labor practice and thus fell outside the protection of the First Amendment and § 8 (c) of the Act, 49 Stat. 452, as amended, 29 U. S. C. § 158 (c). For reasons given below, we answer each of these questions in the affirmative.

I.

Of the four eases before us, three — Gissel Packing Co., Heck’s Inc., and General Steel Products, Inc. — were consolidated following separate decisions in the Court of Appeals for the Fourth Circuit and brought here by the National Labor Relations Board in No. 573. Food Store Employees Union, Local No. 347, the petitioning Union in Gissel, brought that case here in a separate petition in No. 691. All three cases present the same legal issues *580 in similar, uncomplicated factual settings that can be briefly described together. The fourth case, No. 585 (Sinclair Company), brought here from the Court of Appeals for the First Circuit and argued separately, presents many of the same questions and will thus be disposed of in this opinion; but because the validity of some of the Board’s factual findings are under attack on First Amendment grounds, detailed attention must be paid to the factual setting of that case.

Nos. 573 and 691.

In each of the cases from the Fourth Circuit, the course of action followed by the Union and the employer and the Board’s response were similar. In each case, the Union waged an organizational campaign, obtained authorization cards from a majority of employees in the appropriate bargaining unit, and then, on the basis of the cards, demanded recognition by the employer. All three employers refused to bargain on the ground that authorization cards were inherently unreliable indicators of employee desires; and they either embarked on, or continued, vigorous antiunion campaigns that gave rise to numerous unfair labor practice charges. In Gissel, where the employer’s campaign began almost at the outset of the Union’s organizational drive, the Union (petitioner in No. 691), did not seek an election, but instead filed three unfair labor practice charges against the employer, for refusing to bargain in violation of §8 (a) (5), for coercion and intimidation of employees in violation of §8 (a)(1), and for discharge of Union adherents in violation of § 8 (a) (3). 1 In Heck’s an elec *? tion sought by the Union was never held because of nearly identical unfair labor practice charges later filed by the Union as a result of the employer’s antiunion campaign, initiated after the Union’s recognition demand. 2 *582 And in General Steel, an election petitioned for by the Union and won by the employer was set aside by the Board because of the unfair labor practices committed by the employer in the pre-election period. 3

In each case, the Board’s primary response was an order to bargain directed at the employers, despite the absence of an election in Gissel and Heck’s and the employer’s victory in General Steel. More specifically, the Board found in each case (1) that the Union had obtained *583 valid authorization cards 4 from a majority of the employees in the bargaining unit and was thus entitled to represent the employees for collective bargaining purposes; and (2) that the employer’s refusal to bargain with the Union in violation of § 8 (a) (5) was motivated, not by a “good faith” doubt of the Union’s majority status, but by a desire to gain time to dissipate that status. The Board based its conclusion as to the lack of good faith doubt on the fact that the employers had committed substantial unfair labor practices during their antiunion campaign efforts to resist recognition. Thus, the Board found that all three employers had engaged in restraint and coercion of employees in violation of § 8 (a)(1) — in Gissel, for coercively interrogating employees about Union activities, threatening them with discharge, and promising them benefits; in Heck’s, for coercively interrogating employees, threatening reprisals, creating the appearance of surveillance, and offering benefits for opposing the Union; and in General Steel, for coercive interrogation and threats of reprisals, including discharge. In addition, the Board found that the employers in Gissel and Heck’s had wrongfully discharged employees for engaging in Union activities in violation of § 8 (a) (3). And, because the employers had rejected *584 the card-based bargaining demand in bad faith, the Board found that all three had refused to recognize the Unions in violation of § 8 (a) (5).

Only in General Steel was there any objection by an employer to the validity of the cards and the manner in which they had been solicited, and the doubt raised by the evidence was resolved in the following manner. The customary approach of the Board in dealing with allegations of misrepresentation by the Union and misunderstanding by the employees of the purpose for which the cards were being solicited has been set out in Cumberland Shoe Corp., 144 N. L. R. B. 1268 (1963) and reaffirmed in Levi Strauss & Co., 172 N. L. R. B. No. 57, 68 L. R. R. M. 1338 (1968). Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i. e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election. In General Steel, the trial examiner considered the allegations of misrepresentation at length and, applying the Board’s customary analysis, rejected the claims with findings that were adopted by the Board and are reprinted in the margin. 5

*585 Consequently, the Board ordered the companies to cease and desist from their unfair labor practices, to offer reinstatement and back pay to the employees who had been discriminatorily discharged, to bargain with the Unions on request, and to post the appropriate notices.

On appeal, the Court of Appeals for the Fourth Circuit, in per curiam opinions in each of the three cases (398 F. 2d 336, 337, 339), sustained the Board’s findings as to the §§8(a)(l) and (3) violations, but rejected the Board’s findings that the employers’ refusal to bargain violated § 8 (a) (5) and declined to enforce those portions of the Board’s orders directing the respondent companies to bargain in good faith. The court based its § 8 (a) (5) rulings on its 1967 decisions raising the same fundamental issues, Crawford Mfg. Co. v. NLRB, 386 F. 2d 367, cert. denied, 390 U. S. 1028 (1968) ; NLRB v. Logan Packing Co., 386 F. 2d 562; NLRB v. Sehon Stevenson & Co., Inc., 386 F. 2d 551. The court in those cases held that the 1947 Taft-Hartley amendments to the Act, which permitted the Board to resolve representation disputes by certification under § 9 (c) only by secret ballot election, withdrew from the Board the authority to order an employer to bargain under § 8 (a) (5) on the basis of cards, in the absence of NLRB certification, unless the employer knows independently of the cards that there is in fact no representation dispute. The court held that the cards themselves were so inherently unreliable that their use gave an employer virtually an automatic, good faith claim *586 that such a dispute existed, for which a secret election was necessary. Thus, these rulings established that a company could not be ordered to bargain unless (1) there was no question about a Union’s majority status (either because the employer agreed the cards were valid or had conducted his own poll so indicating), or (2) the employer’s §§ 8 (a)(1) and (3) unfair labor practices committed during the representation campaign were so extensive and pervasive that a bargaining order was the only available Board remedy irrespective of a card majority.

Thus based on the earlier decisions, the court’s reasoning in these cases was brief, as indicated by the representative holding in Heck’s:

“We have recently discussed the unreliability of the cards, in the usual case, in determining whether or not a union has attained a majority status and have concluded that an employer is justified in entertaining a good faith doubt of the union’s claims when confronted with a demand for recognition based solely upon union authorization cards. We have also noted that the National Labor Relations Act after the Taft-Hartley amendments provides for an election as the sole basis of a certification and restricts the Board to the use of secret ballots for the resolution of representation questions. This is not one of those extraordinary cases in which a bargaining order might be an appropriate remedy for pervasive violations of § 8 (a) (1). It is controlled by our recent decisions and their reasoning. . . . There was not substantial evidence to support the findings of the Board that Heck’s, Inc. had no good faith doubt of the unions’ claims of majorities.” 398 F. 2d, at 338-339.

*587 No. 585.

In No. 585, the factual pattern was quite similar. The petitioner, a producer of mill rolls, wire, and related products at two plants in Holyoke, Massachusetts, was shut down for some three months in 1952 as the result of a strike over contract negotiations with the American Wire Weavers Protective Association, the representative of petitioner’s journeymen and apprentice wire weavers from 1933 to 1952. The Company subsequently reopened without a union contract, and its employees remained unrepresented through 1964, when the Company was acquired by an Ohio corporation, with the Company’s former president continuing as head of the Holyoke, Massachusetts, division. In July 1965, the International Brotherhood of Teamsters, Local Union No. 404, began an organizing campaign among petitioner’s Holyoke employees and by the end of the summer had obtained authorization cards from 11 of the Company’s 14 journeymen wire weavers choosing the Union as their bargaining agent. On September 20, the Union notified petitioner that it represented a majority of its wire weavers, requested that the Company bargain with it, and offered to submit the signed cards to a neutral third party for authentication. After petitioner’s president declined the Union’s request a week later, claiming, inter alia, that he had a good faith doubt of majority status because of the cards’ inherent unreliability, the Union petitioned, on November 8, for an election that was ultimately set for December 9.

When petitioner’s president first learned of the Union’s drive in July, he talked with all of his employees in an effort to dissuade them from joining a union. He particularly emphasized the results of the long 1952 strike, which he claimed “almost put our company out of busi *588 ness,” and expressed worry that the employees were forgetting the “lessons of the past.” He emphasized, secondly, that the Company was still on “thin ice” financially, that the Union’s “only weapon is to strike,” and that a strike “could lead to the closing of the plant,” since the parent company had ample manufacturing facilities elsewhere. He noted, thirdly, that because of their age and the limited usefulness of their skills outside their craft, the employees might not be able to find re-employment if they lost their jobs as a result of a strike. Finally, he warned those who did not believe that the plant could go out of business to “look around Holyoke and see a lot of them out of business.” The president sent letters to the same effect to the employees in early November, emphasizing that the parent company had no reason to stay in Massachusetts if profits went down.

During the two or three weeks immediately prior to the election on December 9, the president sent the employees a pamphlet captioned: “Do you want another 13-week strike?” stating, inter alia, that: “We have no doubt that the Teamsters Union can again close the Wire Weaving Department and the entire plant by a strike. We have no hopes that the Teamsters Union Bosses will not call a strike. . . . The Teamsters Union is a strike happy outfit.” Similar communications followed in late November, including one stressing the Teamsters’ “hoodlum control.” Two days before the election, the Company sent out another pamphlet that was entitled: “Let’s Look at the Record,” and that purported to be an obituary of companies in the Holyoke-Springfield, Massachusetts, area that had allegedly gone out of business because of union demands, eliminating some 3,500 jobs; the first page carried a large cartoon showing the preparation of a grave for the Sinclair Company and other headstones containing the names of other plants allegedly victimized by the unions. Finally, on the day before *589 the election, the president made another personal appeal to his employees to reject the Union. He repeated that the Company’s financial condition was precarious; that a possible strike would jeopardize the continued operation of the plant; and that age and lack of education would make re-employment difficult. The Union lost the election 7-6, and then filed both objections to the election and unfair labor practice charges which were consolidated for hearing before the trial examiner.

The Board agreed with the trial examiner that the president’s communications with his employees, when considered as a whole, “reasonably tended to convey to the employees the belief or impression that selection of the Union in the forthcoming election could lead [the Company] to close its plant, or to the transfer of the weaving production, with the resultant loss of jobs to the wire weavers.” Thus, the Board found that under the “totality of the circumstances” petitioner’s activities constituted a violation of §8 (a)(1) of the Act. The Board further agreed with the trial examiner that petitioner’s activities, because they “also interfered with the exercise of a free and untrammeled choice in the election,” and “tended to foreclose the possibility” of holding a fair election, required that the election be set aside. The Board also found that the Union had a valid card majority (the unambiguous cards, see n. 4, supra, went unchallenged) when it demanded recognition initially and that the Company declined recognition, not because of a good faith doubt as to the majority status, but, as the §8 (a)(1) violations indicated, in order to gain time to dissipate that status — in violation of § 8 (a)(5). Consequently, the Board set the election aside, entered a cease-and-desist order, and ordered the Company to bargain on request.

On appeal, the Court of Appeals for the First Circuit sustained the Board’s findings and conclusions and en *590 forced its order in full. 397 F. 2d 157. The court rejected the Company’s proposition that the inherent unreliability of authorization cards entitled an employer automatically to insist on an election, noting that the representative status of a union may be shown by means other than an election; the court thus reaffirmed its stance among those circuits disavowing the Fourth Circuit’s approach to authorization cards. 6 Because of the conflict among the circuits on the card issues and because of the alleged conflict between First Amendment freedoms and the restrictions placed on employer speech by § 8 (a)(1) in Sinclair, No. 585, we granted certiorari to consider both questions. 393 U. S. 997 (1968). For reasons given below, we reverse the decisions of the Court of Appeals for the Fourth Circuit and affirm the ruling of the Court of Appeals for the First Circuit.

II.

In urging us to reverse the Fourth Circuit and to affirm the First Circuit, the National Labor Relations *591 Board contends that we should approve its interpretation and administration of the duties and obligations imposed by the Act in authorization card cases. The Board argues (1) that unions have never been limited under § 9 (c) of either the Wagner Act or the 1947 amendments to certified elections as the sole route to attaining representative status. Unions may, the Board contends, impose a duty to bargain on the employer under § 8 (a) (5) by reliance on other evidence of majority employee support, such as authorization cards. Contrary to the Fourth Circuit’s holding, the Board asserts, the 1947 amendments did not eliminate the alternative routes to majority status. The Board contends (2) that the cards themselves, when solicited in accordance with Board standards which adequately insure against union misrepresentation, are sufficiently reliable indicators of employee desires to support a bargaining order against an employer who refuses to recognize a card majority in violation of §8 (a) (5). The Board argues (3) that a bargaining order is the appropriate remedy for the § 8 (a) (5) violation, where the employer commits other unfair labor practices that tend to undermine union support and render a fair election improbable.

Relying on these three assertions, the Board asks us to approve its current practice, which is briefly as follows. When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union’s request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under §9 (c)(1)(B). If, however, the employer commits independent and substantial unfair labor practices disruptive of election conditions, the Board may withhold the election or set it aside, and issue instead a bargaining order as a remedy *592 for the various violations. A bargaining order will not issue, of course, if the union obtained the cards through misrepresentation or coercion or if the employer’s unfair labor practices are unrelated generally to the representation campaign. Conversely, the employers in these cases urge us to adopt the views of the Fourth Circuit.

There is more at issue in these cases than the dispute outlined above between the Board and the four employers, however, for the Union, petitioner in No. 691, argues that we should accord a far greater role to cards in the bargaining area than the Board itself seeks in this litigation. In order to understand the differences between the Union and the Board, it is necessary to trace the evolution of the Board’s approach to authorization cards from its early practice to the position it takes on oral argument before this Court. Such an analysis requires viewing the Board’s treatment of authorization cards in three separate phases: (1) under the Joy Silk doctrine, (2) under the rules of the Aaron Brothers case, and (3) under the approach announced at oral argument before this Court.

The traditional approach utilized by the Board for many years has been known as the Joy Silk doctrine. Joy Silk Mills, Inc., 85 N. L. R. B. 1263 (1949), enforced, 87 U. S. App. D. C. 360, 185 F. 2d 732 (1950). Under that rule, an employer could lawfully refuse to bargain with a union claiming representative status through possession of authorization cards if he had a “good faith doubt” as to the union’s majority status; instead of bargaining, he could insist that the union seek an election in order to test out his doubts. The Board, then, could find a lack of good faith doubt and enter a bargaining order in one of two ways. It could find (1) that the employer’s independent unfair labor practices were evidence of bad faith, showing that the employer was seeking time to dissipate the union’s *593 majority. Or the Board could find (2) that the employer had come forward with no reasons for entertaining any doubt and therefore that he must have rejected the bargaining demand in bad faith. An example of the second category was Snow & Sons, 134 N. L. R. B. 709 (1961), enforced, 308 F. 2d 687 (C. A. 9th Cir. 1962), where the employer reneged on his agreement to bargain after a third party checked the validity of the card signatures and insisted on an election because he doubted that the employees truly desired representation. The Board entered a bargaining order with very broad language to the effect that an employer could not refuse a bargaining demand and seek an election instead “without a valid ground therefor,” 134 N. L. R. B., at 710-711. See also Dixon Ford Shoe Co., Inc., 150 N. L. R. B. 861 (1965); Kellogg Mills, 147 N. L. R. B. 342, 346 (1964), enforced, 347 F. 2d 219 (C. A. 9th Cir. 1965).

The leading case codifying modifications to the Joy Silk doctrine was Aaron Brothers, 158 N. L. R. B. 1077 (1966). There the Board made it clear that it had shifted the burden to the General Counsel to show bad faith and that an employer “will not be held to have violated his bargaining obligation . . . simply because he refuses to rely upon cards, rather than an election, as the method for determining the union’s majority.” 158 N. L. R. B., at 1078. Two significant consequences were emphasized. The Board noted (1) that not every unfair labor practice would automatically result in a finding of bad faith and therefore a bargaining order; the Board implied that it would find bad faith only if the unfair labor practice was serious enough to have the tendency to dissipate the union’s majority. The Board noted (2) that an employer no longer needed to come forward with reasons for rejecting a bargaining demand. The Board pointed out, however, that a bargaining order would issue if it could prove that an employer’s “course of conduct” *594 gave indications as to the employer’s bad faith. As examples of such a “course of conduct,” the Board cited Snow & Sons, supra; Dixon Ford Shoe Co., Inc., supra, and Kellogg Mills, supra, thereby reaffirming John P. Serpa, Inc., 155 N. L. R. B. 99 (1965), where the Board had limited Snow & Sons to its facts.

Although the Board’s brief before this Court generally followed the approach as set out in Aaron Brothers, supra, the Board announced at oral argument that it had virtually abandoned the Joy Silk doctrine altogether. Under the Board’s current practice, an employer’s good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple “no comment” to the union. The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, and (2) that an employer could not refuse recognition initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union’s strength.

The Union argues here that an employer’s right to insist on an election in the absence of unfair labor practices should be more circumscribed, and a union’s right to rely on cards correspondingly more expanded, than the Board would have us rule. The Union’s contention is that an employer, when confronted with a card-based bargaining demand, can insist on an election only by filing the election petition himself immediately under *595 i 9 (c)(1)(B) and not by insisting that the Union file the election petition, whereby the election can be subjected to considerable delay. If the employer does not himself petition for an election, the Union argues, he must recognize the Union regardless of his good or bad faith and regardless of his other unfair labor practices, and should be ordered to bargain if the cards were in fact validly obtained. And if this Court should continue to utilize the good faith doubt rule, the Union contends that at the least we should put the burden on the employer to make an affirmative showing of his reasons for entertaining such doubt.

Because the employers’ refusal to bargain in each of these cases was accompanied by independent unfair labor practices which tend to preclude the holding of a fair election, we need not decide whether a bargaining order is ever appropriate in cases where there is no interference with the election processes.

With the Union’s arguments aside, the points of difference between the employers and the Board will be considered in the following manner. The validity of the cards under the Act, their intrinsic reliability, and the appropriateness of a bargaining order as a response to violations of § 8 (a)(5) as well as §§ 8 (a)(1) and (3) will be discussed in the next section. The nature of an employer’s reaction to an organizational campaign, and particularly the Board’s conclusion that the employer’s statements in No. 585 contained threats of reprisal and thus constituted restraint and coercion in violation of § 8 (a)(1) and not protected speech, will be covered in the final section.

III.

A.

The first issue facing us is whether a union can establish a bargaining obligation by means other than a Board election and whether the validity of alternate routes to *596 majority status, such as cards, was affected by the 1947 Taft-Hartley amendments. The most commonly traveled 7 route for a union to obtain recognition as the exclusive bargaining representative of an unorganized group of employees is through the Board’s election and certification procedures under § 9 (c) of the Act (29 ü. S. C. § 159(c)); it is also, from the Board’s point of view, the preferred route. 8 A union is not limited to a Board election, however, for, in addition to § 9, the present Act provides in § 8 (a) (5) (29 U. S. C. § 158 (a)(5)), as did the Wagner Act in § 8 (5), that “[i]t shall be an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a).” Since § 9 (a), in both the Wagner Act and the present Act, refers to the representative as the one “designated or selected” by a majority of the employees without specifying precisely how that representative is to be chosen, it was early recognized that an employer had a duty to bargain whenever the union representative presented “convincing evidence of majority support.” 9 Almost from the inception of the Act, *597 then, it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means under the unfair labor practice provision of §8 (a) (5) — by showing convincing support, for instance, by a union-called strike or strike vote, 10 or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes. 11

We have consistently accepted this interpretation of the Wagner Act and the present Act, particularly as to the use of authorization cards. See, e. g., NLRB v. Bradford Dyeing Assn., 310 U. S. 318, 339-340 (1940); Franks Bros. Co. v. NLRB, 321 U. S. 702 (1944); United Mine Workers v. Arkansas Flooring Co., 351 U. S. 62 (1956). Thus, in United Mine Workers, supra, we noted that a “Board election is not the only method by which an employer may satisfy itself as to the union’s majority status,” 351 U. S., at 72, n. 8, since § 9 (a), “which deals expressly with employee representation, says nothing as to how the employees’ representative shall be chosen,” 351 U. S., at 71. We therefore pointed out in that case, where the union had obtained signed authorization cards from a majority of the employees, that “[i]n the absence of any bona fide dispute 12 as to the existence of the required majority of eligible employees, the employer’s denial of recognition of the union would have violated *598 §8 (a) (5) of the Act.” 351 U. S., at 69. We see no reason to reject this approach to bargaining obligations now, and we find unpersuasive the Fourth Circuit’s view that the 1947 Taft-Hartley amendments, enacted some nine years before our decision in United Mine Workers, supra, require us to disregard that case. Indeed, the 1947 amendments weaken rather than strengthen the position taken by the employers here and the Fourth Circuit below. An early version of the bill in the House would have amended § 8 (5) of the Wagner Act to permit the Board to find a refusal-to-bargain violation only where an employer had failed to bargain with a union “currently recognized by the employer or certified as such [through an election] under section 9.” Section 8 (a)(5) of H. R. 3020, 80th Cong., 1st Sess. (1947). The proposed change, which would have eliminated the use of cards, was rejected in Conference (H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 41 (1947)), however, and we cannot make a similar change in the Act simply because, as the employers assert, Congress did not expressly approve the use of cards in rejecting the House amendment. Nor can we accept the Fourth Circuit’s conclusion that the change was wrought when Congress amended § 9 (c) to make election the sole basis for certification by eliminating the phrase “any other suitable method to ascertain such representatives,” 13 under which the Board had occasionally used cards as a certification basis. A certified union has the benefit of numerous special privileges *599 which are not accorded unions recognized voluntarily or under a bargaining order 14 and which, Congress could determine, should not be dispensed unless a union has survived the crucible of a secret ballot election.

The employers rely finally on the addition to § 9 (c) of subparagraph (B), which allows an employer to petition for an election whenever “one or more individuals or labor organizations have presented to him a claim 15 to be recognized as the representative defined in section 9 (a).” That provision was not added, as the employers assert, to give them an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity. 16 We *600 agree with the Board's assertion here that there is no suggestion that Congress intended §9 (c)(1)(B) to relieve any employer of his § 8 (a) (5) bargaining obligation where, without good faith, he engaged in unfair labor practices disruptive of the Board's election machinery. And we agree that the policies reflected in § 9 (c) (1) (B) fully support the Board's present administration of the Act (see supra, at 591-592); for an employer can insist on a secret ballot election, unless, in the words of the Board, he engages “in contemporaneous unfair labor practices likely to destroy the union’s majority and seriously impede the election.” Brief for Petitioner, the Board, in No. 573, p. 36.

In short, we hold that the 1947 amendments did not restrict an employer’s duty to bargain under § 8 (a)(5) solely to those unions whose representative status is certified after a Board election. 17

*601 B.

We next consider the question whether authorization cards are such inherently unreliable indicators of employee desires that, whatever the validity of other alternate routes to representative status, the cards themselves may never be used to determine a union’s majority and to support an order to bargain. In this context, the employers urge us to take the step the 1947 amendments and their legislative history indicate Congress did not take, namely, to rule out completely the use of cards in the bargaining arena. Even if we do not unhesitatingly accept the Fourth Circuit’s view in the matter, the employers argue, at the very least we should overrule the Cumberland Shoe doctrine (see supra, at 584) and establish stricter controls over the solicitation of the cards by union representatives. 18

*602 The objections to the use of cards voiced by the employers and the Fourth Circuit boil down to two contentions: 19 (1) that, as contrasted with the election procedure, 20 the cards cannot accurately reflect an employee’s wishes, either because an employer has not had a chance to present his views and thus a chance to insure that the employee choice was an informed one, or because the choice was the result of group pressures and not individual decision made in the privacy of a voting booth; and (2) that quite apart from the election comparison, the cards are too often obtained through misrepresentation and coercion which compound the cards’ inherent inferiority to the election process. Neither contention is persuasive, and each proves too much. The Board itself has recognized, and continues to do so here, that secret elections are generally the most satisfactory — indeed the preferred — method of ascertaining whether a union has majority support. 21 The acknowledged superiority of the election process, however, does not mean that cards are thereby rendered totally invalid, for where an employer engages in conduct disruptive of the election process, cards may be the most effective — perhaps the only — way of assuring employee choice. As for misrepresentation, in any specific case of *603 alleged irregularity in the solicitation of the cards, the proper course is to apply the Board’s customary standards (to be discussed more fully below) and rule that there was no majority if the standards were not satisfied. It does not follow that because there are some instances of irregularity, the cards can never be used; otherwise, an employer could put off his bargaining obligation indefinitely through continuing interference with elections.

That the cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when that process has been impeded, needs no extended discussion, for the employers’ contentions cannot withstand close examination. The employers argue that their employees cannot make an informed choice because the card drive will be over before the employer has had a chance to present his side of the unionization issues. Normally, however, the union will inform the employer of its organization drive early in order to subject the employer to the unfair labor practice provisions of the Act; the union must be able to show the employer’s awareness of the drive in order to prove that his contemporaneous conduct constituted unfair labor practices on which a bargaining order can be based if the drive is ultimately successful. See, e. g., Hunt Oil Co., 157 N. L. R. B. 282 (1966); Don Swart Trucking Co., 154 N. L. R. B. 1345 (1965). Thus, in all of the cases here but the Charleston campaign in Heck’s the employer, whether informed by the union or not, was aware of the union’s organizing drive almost at the outset and began its antiunion campaign at that time; and even in the Heck’s Charleston case, where the recognition demand came about a week after the solicitation began, the employer was able to deliver a speech before the union obtained a majority. Further, the employers argue that without a secret ballot an employee may, in *604 a card drive, succumb to group pressures or sign simply to get the union “off his back” and then be unable to change his mind as he would be free to do once inside a voting booth. But the same pressures are likely to be equally present in an election, for election cases arise most often with small bargaining units 22 where virtually every voter’s sentiments can be carefully and individually canvassed. And no voter, of course, can change his mind after casting a ballot in an election even though he may think better of his choice shortly thereafter.

The employers’ second complaint, that the cards are too often obtained through misrepresentation and coercion, must be rejected also in view of the Board’s present rules for controlling card solicitation, which we view as adequate to the task where the cards involved state their purpose clearly and unambiguously on their face. We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses, primarily arising out of misrepresentations by union organizers as to whether the effect of signing a card was to designate the union to represent the employee for collective bargaining purposes or merely to authorize it to seek an election to determine that issue. And we would be equally blind if we did not recognize that various courts of appeals and commentators 23 have differed significantly as to the effectiveness of the Board’s Cumberland Shoe doctrine (see supra, at 584) to cure such abuses.

Thus, even where the cards are unambiguous on their face, both the Second Circuit (NLRB v. S. E. Nichols Co., 380 F. 2d 438 (1967)) and the Fifth Circuit (Engineers & Fabricators, Inc. v. NLRB, 376 F. 2d 482 (1967)) have joined the Fourth Circuit below *605 in rejecting the Board’s rule that the cards will be counted unless the solicitor’s statements amounted under the circumstances to an assurance that the cards would be used only for an election, or for no other purpose than an election. And even those circuits which have adopted the Board’s approach have criticized the Board for tending too often to apply the Cumberland rule too mechanically, declining occasionally to uphold the Board’s application of its own rule in a given case. See, e. g., NLRB v. Southbridge Sheet Metal Works, Inc., 380 F. 2d 851 (C. A. 1st Cir. 1967); NLRB v. Sandy’s Stores, Inc., 398 F. 2d 268 (C. A. 1st Cir. 1968); NLRB v. Swan Super Cleaners, Inc., 384 F. 2d 609 (C. A. 6th Cir. 1967); NLRB