in a self-determination election.50 Such elections ordinarily are held (1) where different units proposed by competing unions are equally appropriate and the unit ultimately to be adopted depends on which union the different employee groups select; (2) when it is proposed that a group of employees, whether or not heretofore represented, be merged in or added to a larger unit which the Board has found appropriate.

Situations of the first type arise frequently in the case of competing requests for the representation of a craft or departmental group as a separate unit or as part of a larger unit.51 Similarly, a selfdetermination election will be directed where the overall unit proposed by the petitioner includes departmental groups with a separate bargaining history.5

52

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In cases of the second type, the Board has adhered to the Great Lakes Pipe Line principle and has directed self-determination elections among the group to be merged or added regardless of whether it constituted a separate appropriate unit.

In one case, the Board reaffirmed the rule that, where the representative of an existing production and maintenance unit requests a separate unit of a group of unrepresented maintenance employees, and where the Board finds that the group more properly should be added to the existing unit, the wishes of the employees in the group will be ascertained in a self-determination election.56

(1) Change in Rule on Self-Determination for Fringe Employees

In cases where an incumbent union proposed to add to the established bargaining unit an unrepresented fringe group and petitioned for an election in the enlarged unit, the Waterous Co.57 rule, adopted in 1950, precluded self-determination elections in which the fringe group could express its wishes as to inclusion in the bargaining unit or continued nonrepresentation. During fiscal 1954, the Board reexamined the merits of that rule and the predecessor Peterson & Lytle 58 principle which had accorded self-determination to previously unrepresented fringe groups. A majority of the Board concluded

59 60

50 Self-determination elections as to the inclusion of professional employees in units with nonprofessionals are mandatory under section 9 (b) (1) of the act.

51 See the cases discussed under section 2, above.

5 See Phillips Petroleum Co., 107 NLRB No. 266, Member Murdock dissenting.

53 See e. g., Western Electric Co., Inc., 108 NLRB No. 86; Wisconsin Electric Power Co., 107 NLRB No. 262; The Item Co., 108 NLRB No. 177, Member Peterson dissenting from the denial of an election in one group which the majority believed could properly form a part of the overall unit sought by the petitioner.

Great Lakes Pipe Line Co., 92 NLRB 583 (1950).

55 United States Gypsum Company, 107 NLRB No. 39.

56 The Board cited Kirstein Leather Co., Inc., 100 NLRB 1469.

Waterous Co., 92 NLRB 76, Chairman Herzog and Member Reynolds dissenting.

58 Peterson & Lytle, 60 NLRB 1070 (1945).

The Zia Company, 108 NLRB No. 140, amended July 22, 1954, in respects not material to this discussion.

Member Murdock dissenting.

that the earlier rule is the best policy. The Waterous doctrine was overruled and the Peterson & Lytle rule was reinstated. In the majority's opinion, adherence to the rule

will... tend to insure that the wishes of small groups of employees no longer will be thwarted by the numerical superiority of employee-members of an existing historical unit from which the former have been excluded.

The majority further pointed out that this rule safeguards the right of such a group to determine for themselves whether or not they are to become part of the bargaining unit and thus gives effect to the statutory policy which affords employees the right "to bargain collectively" or "to refrain from such action." Nor, according to the majority, did the inappropriateness as a separate bargaining unit of the fringe group justify refusal to it of the privilege of selfexpression in the matter of continued nonrepresentation. The majority pointed out that it had been the Board's policy to accord selfdetermination elections to historical groups to express their desire to continue bargaining regardless of their appropriateness as a unit, and that similar groups should not be treated differently where the issue is continued nonrepresentation.

(2) Change in Method of Tallying Ballots in Self-Determination Election

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In the American Potash case, the Board recognized that the current method of tallying votes cast in self-determination (or “Globe” type) elections, such as the one directed in the case, may not reflect the true wishes of certain voting groups. It was found, as pointed out by Members Murdock and Peterson in their dissent in Pacific Intermountain, that a system of pooling votes must be used where voting groups, established for the purpose of ascertaining their wishes as to representation in separate units or their inclusion in a more comprehensive unit, indicate their preference for the larger unit in which a concurrent election is held.83 Expressly adopting the earlier recommendations of Members Murdock and Peterson, the Board ruled that in the case of such a vote the ballots cast by the group must be pooled with the votes cast in the larger unit and are to be tallied in the following manner:

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the votes for the union seeking the separate unit shall be counted as valid votes, but neither for nor against any union seeking to represent the more comprehensive unit; all other votes are to be accorded their face value, whether for representation in a union seeking the comprehensive group or for no union."

1 See pp. 38-41.

Pacific Intermountain Express Co., 105 NLRB 480.

Where the voting group selects the union seeking to represent it separately, the employees in the group will, as heretofore, be taken to have indicated their desire to constitute a separate bargaining unit.

The identical pooling method had been applied in the earlier Wisconsin Electric Power Co. case, 107 NLRB No. 262.

For an illustration of this method of pooling and tallying votes see the dissent in the Pacific Intermountain case.

The labor organization which receives a majority of the pooled votes will then be certified as the representative of the comprehensive unit. In one case, where a craft group was sought to be represented separately by 1 union, and as part of a production and maintenance unit by 2 competing unions and the craft union was also on the ballot in the production and maintenance unit, the Board directed that if the craft employees should not vote for the craft union, their votes would be pooled with those of the production and maintenance group, and accorded their face value in determining the craft union's standing in the larger unit.

d. Multiemployer Units

The criteria on which the appropriateness of a multiemployer unit depends were summarized by the Board during fiscal 1954 in the following terms:

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Under Board law, it is not a prerequisite for the establishment of an associationwide or multiemployer unit that there be evidence of an employer association with formal organizational structure, or that the members delegate to the association final authority to bind them, or that the association membership be nonfluctuating. The settled criterion for the inclusion of an employer in a multiemployer bargaining unit is whether the employer unequivocally intends to be bound in collective bargaining by group, rather than individual, action. Thus, participation by an employer in group bargaining provides such evidence of the employer's intention. But whatever an employer's previous bargaining policy or practice may have been, there is no question as to the principle that the employer may properly withdraw from an existing multiemployer unit, provided it clearly evinces at an appropriate time its intention of pursuing an individual course in bargaining. [Footnotes omitted.]

Thus, where it was found that an employer's participation in area wide bargaining indicated its intent to be part of the multiemployer bargaining pattern, the request for a single-employer unit was denied." While the employer here had not, until recently, formally participated in association joint bargaining, it had been customarily used by the area unions to initiate bargaining for the industry. The employer in turn considered its contracts as interim agreements to be modified and amended to conform to the subsequent industrywide agreements. More recently, the employer participated in group negotiations, signed the resulting industry agreement, and at the hearing stated its position that it was part of the multiemployer group. But, in another case, it was held that the mere adoption by the 2 employers for at least 8 years of the terms of multiemployer contracts was held insufficient to warrant their inclusion in the multiemployer unit. The employers involved had never participated in joint negotiations or authorized anyone to conduct negotiations for them on a group basis.

06 Mendon Company, R. B. M. Division, 108 NLRB No. 68, as amended 108 NLRB No. 110. 67 York Transfer & Storage Co., 107 NLRB No. 47. 68 Martinolich Shipbuilding Co., 108 NLRB No. 45. West End Brewing Co., 107 NLRB No. 310.

Single-employer units were held inappropriate where the employers involved had participated in joint negotiations for at least 11 months and had recently reaffirmed their unqualified desire to continue to bargain on a multiemployer basis.70

Conversely, the Board has declined to include in a multiemployer unit employers who had clearly manifested their intention to abandon their former participation in group action and to pursue a course of individual action with respect to their labor relations. In one case, single-employer units of warehouse and production employees, who had been represented in a multiemployer unit for 15 years, were approved." The employers involved, the Board found, had evidenced an unequivocal intention to abandon bargaining through the association of which they had been members. Each of them had submitted to the association its resignation from membership, and had made clear at the hearing that it had no connection with the association whatever. In an earlier case, involving the same association, to which the employers in this case were parties," the Board had denied requests for separate units because the employer-members there had not been shown to have effectively resigned from the group. The employers there had merely attempted to resign from the bargaining unit while retaining their association membership.

In addition to being unequivocal, an employer's announcement of intent to abandon group bargaining must be timely. The Board continues to adhere to the principle that a withdrawal which occurs after the expiration of the most recent contract is timely.73

In two cases during the past fiscal year, the Board reaffirmed the rule that, where an employer has evinced an unequivocal intention to abandon group bargaining and to pursue instead individual bargaining, the employer's expressed desire will be given effect without regard to his reason for so doing."

e. Employees in Separate Units

A number of cases during fiscal 1954 presented questions regarding the establishment of separate units of plant guards, which is required under section 9 (b) (3); and the proper unit placement of professional employees under section 9 (b) (1), and of clerical employees in the light of previous Board policy.

Acryvin Corporation of America, 107 NLRB No. 178; Motor Cargo, Inc., 108 NLRB No. 98.

Reid Murdock Co., 107 NLRB No. 53.

Blue Ribbon Products Co., Inc., 106 NLRB 562.

320th Century Press, 107 NLRB No. 84.

"Bearing & Rim Supply Co., 107 NLRB No. 34; and Moscow Idaho Seed Co., 107 NLRB No. 35. Member Murdock agrees with the principle, but dissented in both cases on the ground that no unequivocal intent to abandon group bargaining was shown.

(1) Plant Guards

Section 9 (b) (3) defines a guard as "any individual employed to enforce against employees or other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises." The section directs that guards may be represented only in separate units by a union which does not admit, and is not directly or indirectly affiliated with a union which admits, employees other than guards.

Generally, an employee is held to be a guard if he is primarily engaged in such duties as patrolling the plant, checking for fires or theft, enforcing plant rules, and performing gate duty for the purpose of identifying persons entering the plant and checking whether employees leaving the plant take away plant property." Safety department employees who merely check for fire hazards and check other employees concerning the wearing of safety equipment have been held not to have guard status.76

The question whether employees of an organization which furnishes protective services to its customers are guards within the meaning of section 9 (b) (3) was reexamined during the past year in the Armored Motor Service case." Overruling earlier decisions to the contrary, the Board concluded that the statutory language does not require it to give controlling effect to the fact that the property protected by the employees in question belongs to their employer's customers rather than their own employer. Thus the Board said:

We do not believe that Congress intended to limit the prohibition of section 9 (b) (3) to plant guards. The statutory language contains no such restriction, and we see no basis for giving it so narrow a construction. The danger of divided loyalty which Congress sought to eliminate may not be quite so far reaching in the case of armored-car guards, but it is, nevertheless, present. A conflict of loyalty could arise, for example, if the guards should be called upon to deliver money or valuables to one of their customers whose employees were represented by the same union as represented the armored-car guards and the employees of the customer were on strike and picketing the premises of the customer.

Observing that its views were in accord with those of the Third Circuit. Court of Appeals in N. L. R. B. v. American District Telegraph Company, 205 F. 2d 86 (setting aside 100 NLRB 155), the Board accorded guard status to employees who spent 75 percent of their time on the employer's armored trucks, transporting and protecting money and valuables belonging to the employer's customers, and who spent the remainder of their time putting money in pay envelopes on their

7 See, e. g., Nash-Kelvinator Corporation, 107 NLRB No. 137. 70 Nash-Kelvinator Corporation, see preceding footnote.

7 Armored Motor Service Co., Inc., 106 NLRB 1139.

18 Brink's Inc., 77 NLRB 1182, and American District Telegraph Co., 89 NLRB 1228.