In rejecting the contention that the ratification of the extended agreement eliminated any question of representation, the majority opinion said:

We have, however, held that even a union-security election is not tantamount to an election of representatives for the purpose of collective bargaining. The fact that the membership here voted to approve the extension of the existing contract is therefore not dispositive of the issue of their choice of bargaining representatives for the future.

9. Termination of Contracts

In determining whether or not an asserted contract is a bar to a present election, the Board must frequently pass upon the question whether the contract has in fact been terminated by the parties. The Board has consistently held that a contract is removed as a bar where notice to terminate or modify the contract is given in accordance with the terms of the contract.18 Thus, the Board rejected a contention that a notice to negotiate did not terminate the contract because of its provisions for arbitration in case a dispute regarding a new contract could not be adjusted. Nor do agreements between the parties to continue the terms of the contract pending negotiation of a new contract preserve the old contract as a bar. 19

a. What Constitutes Notice

In most cases, notice of a desire to terminate or to negotiate modifications of a contract is served upon the proper party or parties in clear and unmistakable terms, usually by registered letter, and well in advance of the notice date provided by the contract. The Board imposes no required form for it to take. However, in some cases, the question of whether proper notice was adequately served determines whether or not the contract involved is still effective as a bar.

One case in which a question of proper service was raised involved a contract designating both the local union and its parent international as the "union." The three signers for the union listed themselves on the contract as officials of the international but one of them was also president of the local. In this case, the Board held that the international had proper notice when the employer sent a notice of termination to the local at the office of its president, which was shared by one of the two other signers of the contract.20

A more complex problem of both notice and service was raised in the case of a union which sent the employer, shortly before the automatic

18 See for instance, The Diamond Match Co., 20-RC-961 (not printed); U. S. Rubber Co., 13-RC-1351 (not printed).

19 Scripps-Howard Radio Co., Inc., 93 NLRB 1095; Inco Co., 93 NLRB 745; Rooney Optical Co., 8-RC-767 (not printed).

20 Julian B. Slerin Co., 94 NLRB No. 205.

renewal date of the contract, a letter informing him that its members had voted to dissolve. The letter concluded with the statement: "Our contract with your firm state's (sic) that we must notify you (60) sixty day's (sic) before Nov. 1, 1950." The Board concluded that "this necessarily refers to the notice required by the contract to forestall its automatic renewal, for at no other place in the contract is there provision for the giving of any notice." The Board unanimously construed this as proper notice of termination.21 Also in this case, the union sent the notice in a registered, insured letter addressed to the president of the company. The envelope bore the name and address of the union for return. When the letter arrived, the company president was out of town. His secretary refused it, on instruction of the company's vice president-general superintendent. However, it was a discussion between this company official and the president of the union several days earlier, regarding the union's dissolution, that had led the union to send the letter. On the basis of these facts, a majority of the Board held that "we do not believe that the refusal of the . . . letter was justified, or that the contract between the employer and the intervenor [union] should bar this proceeding."

C. Impact of Prior Determinations

Generally, a Board certification of a bargaining representative is an absolute bar to a new determination of representatives for 1 year. This long-standing Board policy is reinforced by section 9 (c) (3) of the amended act which prohibits the holding of a representation election. less than 12 months after a prior valid representation election has been held in the same unit.

The purpose of the Board's policy is to enable a newly certified representative to establish bargaining relations by assuring it a year, free of rival claims or decertification proceedings, in which to negotiate a contract. Should litigation of the bargaining rights of the certified agent intervene, the agent is normally permitted to have a year to establish itself after the Board's order affirming those rights or the court decree enforcing the Board's order. Thus, the Board dismissed a decertification petition filed within a year of a court decree enforcing a bargaining order, notwithstanding the lapse of almost 5 years since the union's certification.'

Nor is the protection during the certification year lost by the execution or renewal of a contract during that year. Thus, a petition of a rival union which was filed just shortly before the automatic renewal date of such a contract was dismissed because the certification year

21 Evans Milling Co., 94 NLRB No. 164, Member Murdock dissenting on adequacy of service, 1 Aldora Mills, 10-RD-78 (not printed).

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had not run out. Similarly, a petition filed during the certification year was dismissed even though the certified union's short-term contract had expired.3

A petition, however, may be filed in the twelfth month of a certification year, but the Board will not process it until the year ends. But if, between filing of the petition and the certification year's end, the employer and the certified union enter into or renew a contract, the Board will dismiss the petition. In a case decided after close of the fiscal year, the Board stated this rule more fully:

. . . the Board has determined that, absent unusual circumstances, a petitio n filed more than 1 month before the end of the certification year should be dismissed. Where the petition is filed during the twelfth month of the certification year, the Board's administrative policy is to docket that petition; but in order to minimize the effect the petition might otherwise have as an intrusion upon the certified union's right to bargain freely during the remainder of the certification year, the Board has adhered to the administrative policy of having the Regional Director notify the parties that the petition will not be processed until after the certification year has expired. If a valid collective bargaining contract is then executed with the certified union before the expiration of its certification year, that contract operates as a bar in which event the docketed petition will be dismissed.5

However, the Board has declined to apply these rules where there is substantial evidence of a schism of the employees from the certified union of such proportions that the bargaining relationship "has become a matter of extreme confusion and uncertainty." To promote stability in industrial relations in such cases, the Board will direct an election before the end of the certification year. Thus, a petition filed 21⁄2 months before the end of the certification year was held timely where 7 months following certification, the union's members voted to disaffiliate from the certified union and to affiliate with the petitioner, and where the employer refused to recognize the petitioner until certified. However, ordinarily, the employer's refusal to recognize a rival petition does not raise a question of representation during the certification year."

While a certified union is generally protected from rival union intrusions, no similar immunity is conferred upon a bargaining agent which has been recognized by an employer on the basis of only the settlement agreement and a card check.

2 Wm. Bros. Boiler & Manufacturing Co., 18-RC-1028 (not printed). International Harvester Co., 9-RC-1023, 1047 (not printed).

4 See KMYR Broadcasting Co., 91 NLRB 91, following Central California Ice Co., 85 NLRB 1205. National Heat Treating Co., 95 NLRB No. 144 (August 14, 1951), also following Central California Ice Co., cited above. See also Zenith Radio Corp., 95 NLRB No. 155 (August 17, 1951).

Swift & Co., 94 NLRB No. 137.

Swift & Co., cited above.

Kay and Burbank Co., 92 NLRB 224.

National Waste Material Corp., 93 NLRB 477.

D. Unit of Employees Appropriate for Bargaining

The act imposes upon the Board the duty to determine, whenever the question arises, whether a proposed or existing bargaining unit is "appropriate" for collective-bargaining purposes.

term "appropriate," the Board said in a recent case:

Construing the

There is nothing in the statute which requires that the unit for bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit; the Act requires only that the unit be "appropriate." It must be appropriate to ensure the employees in each case "the fullest freedom in exercising the rights guaranteed by this Act." 1

However, the discretion of the Board in determining bargaining units is limited insofar as section 9 (b) provides that "the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." The proviso of section 9 (b) further limits the Board's discretion in the following respects:

1. Professional employees may not be included in a unit of nonprofessional employees, unless a majority of the professional employees vote for the inclusion in such unit.

2. No craft unit may be held inappropriate on the ground that a different unit was established by a prior Board decision.

3. Plant guards, who enforce rules for protection of property or safety on an employer's premises, may not be included with other employees.2

The broad standards of section 9 (b) must be applied to individual situations in the large number of cases in which the Board is asked to determine the bargaining rights of a representative under the various provisions of section 9. The standards must be applied also in cases in which it is alleged that an employer has violated section 8 (a) (5) by refusing to bargain with the representative of employees in an appropriate unit, and in cases in which it is charged that a union which represents employees in such a unit has refused to bargain with their employer in violation of section 8 (b) (3). The question is involved also in cases where the Board must determine whether a union-security agreement is valid, in that it covers employees represented by the contracting union in an appropriate unit, as required by section 8 (a) (3).

In any of these cases, certain basic issues present themselves which concern: (1) The type of the unit, i. e., whether an industrial unit,

1 Morand Brothers Beverage Co., 91 NLRB 409.

Moreover, the Board may not certify as bargaining agent for guards any union that admits other employees as members or that is "affiliated directly or indirectly" with an organization admitting nonguard employees, sec. 9 (b) (3).

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embracing a general class such as production and maintenance employees, or a smaller group within the general category is proper; (2) the scope of the unit, i. e., whether it should be a multiemployer, multiplant, plant-wide, or some smaller departmental unit; and (3) the composition of the unit, i. e., whether the unit should include "fringe" groups such as clerks, technical, or professional employees. To some extent, the composition of bargaining units is specifically limited by section 2 (3) of the act, which exempts certain classes of employees from its operation.'

In resolving unit issues, the Board's primary concern is to group together only employees who have substantial mutual interests in wages, hours, and other conditions of employment. The Board has consistently refused to establish units based upon race, nationality, or special considerations unrelated to work interests and functions. In order to determine whether sufficient mutual interests exist in a given instance, the Board considers such factors as (1) extent and type of union organization of the employees involved; (2) any pertinent history of collective bargaining among the employees involved; (3) similarity of duties, skills, and working conditions of the employees; and (4) the desires of the employees.

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1. Collective Bargaining History

A history of collective bargaining among any group of employees, whose representation is the subject of a petition, often plays an important part in determining the unit appropriate for an election. The Board, of course, does not consider itself bound by the applicable bargaining history in deciding whether a unit is appropriate, but it generally will not disturb a well-established bargaining pattern unless there are "compelling circumstances" for doing so. For example, in a case involving a chain grocery, the Board held that on the basis of an existing bargaining history, a residual unit of 8 out of 20 grocery stores in one of the employer's districts was appropriate, although the 8 stores did not comprise a separate administrative group within the

The numerical size of the unit is important only insofar as the Board has consistently held one-man units inappropriate. See Fifteenth Annual Report, p. 39.

Sec. 2 (3) expressly excludes from the term "employee" as used in the act "any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined."

See Alaska Salmon Industry, Inc., 94 NLRB No. 204.

Sec. 9 (c) provides "In determining whether a unit is appropriate . . . the extent to which the employees have organized shall not be controlling." Compare Breman Steel Company, 93 NLRB 720. However, this does not preclude the Board from giving some consideration to the extent of self-organization where other factors are given proper weight. Silverwood's, 92 NLRB 1114.

Kohler Co., 93 NLRB 398 and cases cited there.

Baltimore Transit Co., 92 NLRB 688.