IV

Representation and Union-Shop Cases

THE

HE ACT requires that an employer bargain with the representative selected by a majority of his employees in a unit appropriate for collective bargaining.' But the act does not require that the representative be selected by any particular procedure so long as the representative is clearly the choice of a majority of the employees. As one method for employees to select a majority representative, the act authorizes the Board to conduct representation elections.2 However, the Board may conduct such an election only after a petition has been filed by the employees or any individual or labor organization acting on their behalf, or by an employer who has been confronted with a claim of representation from an individual or labor organization.

Once a petition has been properly filed, the Board has full statutory power to determine the employees' choice of collective bargaining representative in any business or industry where a labor dispute might affect interstate commerce, with the major exceptions of agriculture, railroads, and airlines. It does not always exercise that power, however, where small or local enterprises are involved. It also has the power to determine the unit of employees appropriate for collective bargaining.

The Board may formally certify a collective bargaining representative in a representation case only upon the basis of the results of a Board-conducted election by secret ballot. Once certified by the Board, the bargaining agent is the exclusive representative of all employees in the appropriate unit for collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. The right of a bargaining agent to exclusive representative status, however, is limited by a statutory proviso to section 9 (a)

1 Sec. 9 (a).

Sec. 9 (c) (1).

Ch. III, Jurisdiction.

However, in an unfair labor practice case involving refusal to bargain, the Board may use other evidence to determine whether or not individual or labor organization claiming representation rights actually was the choice of a majority of employees at the time of the alleged refusal to bargain.

that any individual employee or group of employees has the right to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of any collective bargaining agreement then in effect. The statute requires, however, that the bargaining representative must be given an opportunity to be present at any such adjustment.

The amended act also empowers the Board to conduct an election to decertify an incumbent bargaining agent which has been previously certified or which is being currently recognized by the employer. Decertification petitions may be filed by employees or individuals other than management representatives, or by labor organizations acting on behalf of employees.

Petitions for Board elections are filed in the regional office in the area in which the plant or business involved is located. The Board provides standard forms for filing petitions in all types of cases.

During the 1951 fiscal year, 10,247 petitions for representation elections were filed in the Board's office. During this period, the Board conducted 6,525 representation elections, in which 672,522 employees were eligible to vote. Bargaining representatives were selected in 4,785 of these elections. Collective bargaining representatives were thereby designated to represent a total of 508,004 employees, or approximately 76 percent of those involved in Board elections. More than 76 percent of the elections were conducted by agreement of the parties, without the necessity for formal decisional action by the Board members. The Board members, however, were called upon to make decisions in 2,740 representation cases during the year. They directed representation elections in 1,689 of these

cases.

1. Union-Shop Poll Abolished

The act formerly required also that, before a bargaining agent could effectuate a contract with an employer for a union shop, a majority of the eligible employees must authorize it in a Boardconducted referendum. This provision was in effect throughout the 1951 fiscal year, but it was eliminated by amendment to the act contained in Public Law No. 189 approved by the President October 22, 1951.5 The amendments contained in Public Law No. 189, however, reenacted the provision for Board-conducted polls to revoke a bargaining agent's authority to make a union-shop agreement. Moreover, the new amendments to the act provide specifically that a union must obtain notice from the Board of compliance with the filing requirements of sections 9 (f), (g), and (h) before making a

See appendix C, Text of Amended Act, and sec. F of this chapter, the Union-Shop Referendum. 974250-52-5

union-shop agreement. The act still limits union-shop agreements to those in which employees are required to become members not earlier than 30 days after they are employed or after the union-shop clause takes effect, whichever is the later.

During the 1951 fiscal year, the Board conducted 5,964 union-shop authorization polls. In these polls, 1,623,375 employees were eligible to vote. The employees authorized negotiation of union-shop contracts in 5,759 elections, or about 97 percent of those conducted. The bargaining agents were thereby authorized to negotiate unionshop contracts covering a total of 1,585,881 employees.

During the 4 years and 2 months in which the union-shop poll was required, the Board conducted 46,119 such polls, in which a total of 6,542,564 employees were eligible to vote. Negotiation of unionshop agreements was authorized in 44,795 of these polls, or 97.1 percent. A total of 5,547,478 employees, or 84.8 percent of those eligible to vote, cast ballots and 5,071,978, or 91.4 percent of those voting, voted in favor of the union shop. Those voting in favor constituted 77.5 percent of those eligible to vote.

The conditions under which the Board directed union-shop polls and the conditions under which the Board will direct representation elections are discussed in the following sections of this chapter.

A. The Question of Representation

Proceedings before the Board to determine a group of employees' choice of a collective bargaining representative are technically of two types-proceedings to certify a bargaining agent and proceedings to decertify an incumbent bargaining agent. In both types of cases, the Board must determine whether or not a question of the representation of employees exists, and whether or not there is sufficient interest in the question among the employees to merit the holding of an election. If the Board finds that a question of representation exists, it can make a final determination of the employees' choice only by a secret ballot election.

The Board's proceedings in both types of cases are set in motion by the filing of a petition. The filing of petitions and the proceedings are governed by section 9 (c) of the act. This section provides that a petition either for certification or for decertification may be filed (1) by employees or (2) by an individual or a labor organization on behalf of employees. An employer also may file a petition for a certification proceeding when he is presented with a claim to recognition as bargaining agent by an individual or a labor organization.

* From August 22, 1947, the effective date of 1947 amendments to the act, to October 22, 1951, the date on which Public Law 189, abolishing the union-shop referendum, was approved by the President.

1. Showing of Employee Interest

A petition for a representation election filed by an employee or a group of employees or any individual or labor organization acting in behalf of employees must allege support of "a substantial number of employees." Consequently, the first question to be determined upon the filing of such petition is whether there actually is sufficient employee support to warrant the holding of an election. The Board has consistently required an administrative showing of at least a 30 percent interest. This requirement is based on the Board's experience that, in the absence of such showing of interest, an election seldom would serve any purpose of the statute because there is little likelihood that a majority representative can be chosen. The holding of an election in such circumstances would serve only to deprive employees of their right to participate in another election for a period of 12 months, under the statute. Moreover, in such circumstances, an election would result in the "needless dissipation of the Government's time, effort and funds." The required "showing of interest" may be made by submitting to Board investigators authorization cards. signed by employees, or any other appropriate evidence. To determine the adequacy of the showing, Board agents check the evidence against the appropriate payroll for the unit involved.

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The Board continues to adhere to the traditional position that the showing of interest is exclusively a matter for administrative determination by the regional director and may not be challenged either directly or collaterally, in the course of proceedings for a determination of representatives." The basic reason is that no rights of the parties are affected, because it is the election that decides which, if any, of the claimants actually represent a majority of the employees involved.? Accordingly, the Board declined to dismiss representation petitions on any of the following grounds which were asserted in various cases: That failure to disclose the showing of interest prevented the employer from preparing his case; that authorization cards relied on were alleged to be misleading or invalid because of fraud; 10 that the showing of interest was not made within the time prescribed by the Board's

1 Sec. 9 (e) (1) (A).

See for instance B. G. Corporation, 2-RC-3897 (27.9 percent interest held insufficient), Administrative Decision of the Board No. 621.

Statements of Procedure, effective March 1, 1951, sec. 101.17.

See sec. G of this chapter, the 12-month Limitation.

10. D. Jennings & Co., 68 NLRB 516.

The Visking Corp., 90 NLRB 1006; White Construction and Engineering Co., 94, NLRB No. 202; The Liberal Market, Inc., 9-RC-739 (not printed); Akin Products Co., 39-RC-207 (not printed).

10. D. Jennings & Co., cited above.

United States Hoffman Machinery Corp., 3-RC-476 (not printed).

Magma Copper Co., 21-RC-1298 (not printed).

Arrow Mill Co., 21-RC-1545 (not printed).

rules and regulations; " that other evidence tended to offset the showing submitted to the regional director; 12 or that there had been a change in the unit requested by the claimant.13

The showing of interest requirement also involves the question of (1) which parties to representation proceedings must show interest, and (2) the unit in which interest must be shown.

a. Petitioner's Interest

Under the statute, showing of interest is specifically required of petitioning employees, individuals, or labor organizations. A petitioning employer, however, is not required to make such showing; but, to obtain an election, he must show a bona fide request for recognition by a party claiming to represent a majority of employees in an appropriate unit. 15

Unless the petitioner shows a 30-percent interest in the unit which it seeks, or which is appropriate, the Board will dismiss the petition. But the Board has held that each of two labor organizations which jointly seek to represent a single group of employees need not each make separate 30-percent showings. 16 However, in a case where a petitioner sought to enlarge a laborers' unit which it was then representing, the Board dismissed the petition because the petitioner failed to demonstrate a 30-percent interest in the group of machine operators it sought to add." But when the intervening union in this case demonstrated a sufficient interest in the existing laborers' unit, the Board treated the intervenor as petitioner and permitted the original petitioner to participate in an election among the laborers.

In some cases, the Board finds a unit of employees different from that claimed in the petition to be appropriate for bargaining. If the petitioner's interest in the unit found appropriate is sufficient, the Board will direct an election. However, in such case, the Board permits the petitioner to withdraw without prejudice, upon notice, 18 unless the petitioner has indicated its willingness to participate in an election in the unit found.19 On the other hand, if the petitioner's

11 Corning Glass Works, 93 NLRB 775; Continental Carbon, Inc., 94 NLRB No. 148.

12 United States Rubber Co., 91 NLRB 293 (previous dismissal of petition for inadequate showing); Standard Steel Spring Co., 90 NLRB 1805 (affidavits repudiating petitioner); Waterways Engineering Corp., 93 NLRB 794 (petitioner's previous loss of Board election).

13 The Diamond Match Co., 20-RC-961 (not printed); American Locomotive Co., 92 NLRB 115.

14 Sec. 9 (c) (1) (A).

15 Sec. 9 (c) (1) (B); Grossman Department Store, Inc., 7-RM-51 (not printed); Statements of Procedure, sec. 101.17.

16 Sullivan Chevrolet Co., 13-RC-1668 (not printed).

17 National Oats Co., 93 NLRB 939.

18 J. C. Penney Co., 92 NLRB 1286; Flora Cabinet Co., Inc., 94 NLRB No. 6; Kraft Foods Co., 92 NLRB 193 (10 days' notice); Coca-Cola Bottling Co., 32-RC-221 (not printed) (5 days' notice).

19 Reilly Electrotype Co., 94 NLRB No. 120.