3. Cases pending.-Six hundred and ninety-two, or slightly more than one-half of the representation cases handled during the year ending June 30, 1937, were pending on that date, again in large measure due to the enormous number of petitions filed after the Supreme Court decisions. These pending cases involved 332,308 workers. Of the 109 cases in which decisions and orders, including certification, were issued during the year, all of them following hearings, only 60, involving 8,940 workers, were awaiting final disposition, since 43 cases as described above were closed by certification and orders provided for dismissal in 5 other cases and for withdrawal in a sixth. Fifty-two other cases, involving 18,977 workers, in which hearings had likewise been held, were awaiting disposal by such decisions and orders. Thus 580 cases, involving 30,439 workers, were pending before hearing but in many of these the regional directors were either making preliminary investigations preparatory to submitting their recommendations to the Board, or were conducting negotiations in an attempt to arrange consent elections, or the cases were being prepared for hearing. Of this group of cases pending before hearing, only 1 had been held up because of an injunction suit as against the 7 cases of the 101 cases pending on June 30, 1936, which were so delayed.

Table VII sets forth the disposition of the representation cases by regions.

27708-37-3

692 580 52 60 10

109

B. ELECTIONS

During the period ending June 30, 1937, 265 elections were conducted by the agents of the Board, 48 pursuant to Board order and 217 by consent of the parties involved in the controversy concerning representation. There were approximately 181,424 workers eligible to vote in these elections and 164,207 actually participated in the polling. The fact that more than 90 percent of the eligible voters cast ballots in the elections conducted by the Board is an indication of the keen interest shown by employees in the choice of the persons or organizations who are to represent them in collective bargaining with their employers, and their approval of the democratic device of secret ballot to ascertain their choice.

The great majority of requests for investigation and certification of representatives were made by trade unions or their members, rather than by employee representation committee or other forms of "company unions" and almost every industry is represented among the petitioners. Of the total number of valid votes cast, 69.1 percent. were in favor of the trade unions whether such unions were the petitioners or not, and 30.8 percent were cast for the company union or against the trade unions. In some cases the ballots offered a choice between two organizations, oftentimes both trade unions, and the votes therefore are here tabulated as for the petitioning trade union, for the nonpetitioning trade union, or for the company union or against the petitioning trade union. Reckoning the elections held by the Board as 265 units, a trade union won in 214 of these units, whereas 44 elections were lost by trade unions. In two instances there were tie votes which are not allotted to either category of elections won or lost by trade unions. Four of the elections involved votes for or against a company union, in one instance the choice lay between two employee representation committees, and in a fifth case the choice was between two company unions.

Methods of conducting the elections were usually shaped to meet the needs of individual cases. In consent elections an attempt was made to secure an agreement regarding all the details of the election. In this manner, the parties determined the proper bargaining unit, the form of the ballot, the polling place, the time of the election, the eligibility list, the method of tallying, and other similar details. In those cases where elections were ordered by the Board it decided what the bargaining unit should be and usually directed that employees on the pay roll on a certain date should be eligible to vote. The regional director in whose region the case originated was empowered by the Board's direction of election to conduct the election and arranged the necessary details.

Some of the elections conducted this year raised similar problems to those which had to be met previously. The Board again ordered elections in several cases involving the maritime industry, and arrangements had to be made whereby notices of election and eligibility lists were posted on board the ships before they left on their outward voyages, and the men were polled on their return to their home ports. In such cases, elections might not be completed for several months after they were commenced. In some cases the ships stopped at two ports before making a long voyage, and it was possible to post elec

tion notices when the ships left their home port and poll the men at their first port of call.

In almost all cases election notices were posted and distributed several days before the date of the election. These notices contained full details about the election, setting forth the time and place of polling, the purpose of the election, and a copy of the ballot to be used. This enabled the employees to become familiar with the procedure to be followed and avoided much confusion and delay at the polling places. Usually each party had watchers and tellers present at the polling places, and these representatives signed certificates before the ballots were counted stating that the elections were conducted properly and fairly. This had the effect of eliminating many objections which, although without merit, might otherwise have been made by the losing party regarding the conduct of the elections, and were particularly useful in the case of consent elections.

Table VIII shows the regional offices in which the cases in which elections were held originated.

TABLE VIII.—Results of elections held by the National Labor Relations Board

VIII. LITIGATION 20

During the second year of its existence, the Board continued to be engaged in two principal types of litigation: (a) injunction suits in the district courts to restrain the Board from holding hearings or elections under the statute; (b) petitions in the circuit courts of appeals to enforce or review orders made by the Board pursuant to statutory procedure.

A. INJUNCTION PROCEEDINGS

At the present time the tide of injunction suits against the Board and its officers throughout the country has almost entirely subsided.21 A total of 95 such suits have been filed in district courts of the United States since the Board began to administer the statute. Of these, only three injunction decrees, all affirmed by or pending before the first circuit, now remain outstanding.22 The Supreme Court, on petition of the Board, has granted certiorari to review the action of the first circuit in upholding such injunctions,23 and the matter will probably be finally determined by the Supreme Court before the end of the present calendar year.

It is important to observe that at the present time, even before any final and authoritative decision by the Supreme Court, the first circuit stands alone in granting injunctive relief. Every other court of appeals that has considered the question, including those in the second, fourth, fifth, sixth, seventh, eighth,24 ninth, and tenth circuits and in the District of Columbia, in a total of 30 cases, has held to the contrary. The overwhelming majority of district courts-in a total of 73 out of 95 cases-likewise denied injunctive relief when the cases were first presented to them.

In view of the sweeping approval by the Supreme Court of the Board's procedure in the Jones & Laughlin case, cited above, pp. 12-13,

20 The chapter on litigation in the Board's First Annual Report (Ch. IX, pp. 46–59) covered the period from November 1935 to November 1936. The reason for this departure from the usual practice of limiting reports to the fiscal year was that a misleading picture of the Board's activities in the courts might have been given if the report had covered only the period to July 1, 1936. This section likewise includes matters in litigation which were disposed of by the courts as of November 15, 1937.

A complete cumulative summary of the Board's injunction litigation as of November 15, 1937, is set forth at pp. 36-40, post.

Myers v. Bethlehem Shipbuilding Corporation (2 cases), 88 F. (2d) 154, rehearing denied, 89 F. (2d) 1000 (C. C. A. 1st), affirming temporary injunctions granted by District Judge Brewster; Cocheco Woolen Mfg. Co. v. Myers, temporary injunction granted by District Judge Morris (D. N. H.), appeal pending before the Circuit Court of Appeals for the First Circuit.

23 October 11, 1937, Nos. 181, 182. October Term, 1937. At the same time the Supreme Court granted certiorari on petition of the Newport News Shipbuilding & Drydock Co. (No. 305, October Term, 1937), to review a decision of the fourth circuit affirming a decree of Judge Way (E. D., Va.) denying a temporary injunction and dismissing the company's bill for an injunction. 91 F. (2d) 730.

24 In Stout v. Pratt (2 cases), 85 F. (2d) 172, the eighth circuit affirmed decrees of injunction granted by Judge Otis in the district court. After the decisions of the Supreme Court on April 12, 1937, the eighth circuit held to the contrary in Pratt v. Oberman and Co., 89 F. (2d) 786, and a number of other cases (pp. 38, 40, infra); and Judge Otis granted the Board's motion to vacate the injunction decrees in Stout v. Pratt and to dismiss the bills of complaint.