tection should likewise be accorded a premature extension agreement where both the original contract and the agreement prematurely extending its termination date were executed during the certification year, explaining:

The rule rests on the principle that, during the 1-year period following certification, the employer has the duty of bargaining in good faith with the certified union and that it would be entirely inconsistent for the Board to require an employer to negotiate with the certified union concerning an agreement while withholding power from the parties to make an agreement for a reasonable period effective against the claim of a rival union.42

The resolution of a question concerning representation

The Board customarily ascertains which union, if any, the employees desire to designate as their bargaining representative, by conducting an election by secret ballot. In ordering an election the Board provides as a rule that it should be held as early as possible but not later than 30 days after the Direction of Election. Ordinarily, the Board refused to proceed to a determination of representatives if there were pending unfair labor-practice charges or previously found but unremedied unfair labor practices, unless the union which had filed the charges agreed to waive them as grounds for objecting to an election.** And in the absence of some special circumstance the Board generally directed that all those employed during the pay-roll period immediately preceding the date of the Direction of Election should be eligible

to vote.

The Board scrutinized very carefully grounds urged at the hearing for delaying elections. Thus, the contemplated removal of a plant to a new location was held to be an insufficient reason for failing to conduct an immediate election.145 However, where the employer's operations were to be terminated in approximately 3 months by the return of the plant to the lessor, and there were no reasonable grounds for believing that the lessor would employ a substantial number of the present employees, the Board dismissed the petition on the ground that no useful purpose would be served by holding an election. Also, neither alleged "raiding" tactics by the petitioning union,17 nor high labor turn-over in the employer's plant,48 warranted the withholding of an immediate election. Furthermore, the possibility that the employer would materially expand or contract its working force in the near future was no bar to an immediate election, but the Board would entertain a new petition after a lapse of 6 months from a re

42 See also Matter of DeVry Corporation, 73 N. L. R. B. 1145.

During the past fiscal year, as in the prior year, regional directors conducted numerous elections, known as prehearing elections. This was done pursuant to National Labor Relations Board Rules and Regulations, Series 4, secs. 203.49 and 203.55 which provide that, in cases not involving substantial issues, the regional director may conduct an election by secret ballot at any stage of the proceeding, either before or after the hearing, but before transfer of the case to the Board. Such prehearing elections are no longer possible under the 1947 amendments.

Regional directors also conducted consent elections and consent cross checks in accordance with sec. 203.48 of the above Rules and Regulations, which provide that, with the approval of the regional director, the parties to a representation proceeding may enter into a consent election or consent cross-check agreement, pursuant to which an election or cross check is held under the regional director's direction and supervision. The consent agreement may provide either for a Board certification of the winning union, or for a designation by the regional director based on the results of the election or cross check.

Matter of A. Gross Candle Company, Inc., 72 N. L. R. B. 879; cf. Matter of Johnson Furniture Company, 73 N. L. R. B. 1112.

Matter of Food Machinery Corporation, 72 N. L. R. B. 483, and Matter of Swan Engineering & Machine Company, 70 N. L. R. B. 1293.

48 Matter of International Harvester Company, Chattanooga Works, 73 N. L. R. B. 436. 47 Matter of The Columbia Mills, Incorporated, 71 N. L. R. B. 1205.

48 Matter of Philip Lewis & Sons, 71 N, L, R. B, 976,

49

sulting certification, if certain conditions were met. And, in those situations where a strike was pending, a majority of the Board (Board Member Reynolds dissenting) directed an immediate election on the theory that a prompt election would rapidly terminate the strike in many instances. Board Member Reynolds, however, adhered to the view that the Board's election machinery should be withheld until such time as the strike was terminated and normal work schedules resumed.50

The Board made no noteworthy changes, since the last annual report, in the general principles concerning eligibility to vote.51 Only where unusual circumstances warranted such action, did the Board deviate from its practice of determining eligibility to vote on the basis of the pay roll immediately preceding the Direction of the Election.52 Generally, an eligibility list was prepared in advance of the election. In instances where the employer refused to cooperate in an election and no pay roll or eligibility list was available, the Board accepted the affidavits of the employees as to their eligibility to vote.53 Among those normally eligible to vote were employees who were not actually at work during the eligibility period because they were ill, on vacation, or temporarily laid off. Employees absent in the armed forces were likewise held eligible to vote if they presented themselves at the polls; in addition, the Board permitted them to cast their ballots by

54

See discussion under question concerning representation, supra.

For the views of each Board member on this issue, see Matter of Seneca Falls Machine Company, 71 N. L. R. B. 1106, and Matter of National Silver Manufacturing Company, 71 N. L. R. B. 594. See also Matter of National Foundry of New York, Inc., 73 N. L. R. B. 16; Matter of Horton's Laundry, 72 N. L. R. B. 1129; and Matter of Whiting & Davis Company, 71 N. L. R. B. 1200.

Eleventh Annual Report, p. 20 ff.; see also Tenth Annual Report, p. 22; Ninth Annual Report, p. 28; and Eighth Annual Report, p. 49 ff.

The Board's Rules and Regulations provided that questions as to the eligibility of voters in Board elections might be raised by challenges at the election itself. If a challenge were made by a Board agent or an interested party, the challenged voter's ballot was segregated from all other ballots. If, after the election was concluded, it developed that the challenged ballot must be counted or rejected as invalid, in order to determine whether or not a majority of the valid votes had been cast for any of the contestants in the election, the Board investigated the facts and ruled on the issues (National Labor Relations Board Rules and Regulations, Series 4, sec. 203.55).

The fact that the number of employees had markedly decreased because of a temporary recession, prompted the Board to direct that eligibility to vote should be determined by a pay roll for a period ending approximately 4 months prior to the issuance of the Direction of Election, and also to permit employees who worked 15 days between the determinative pay-roll date and the issuance of the direction to vote. Matter of Phillips Packing Company, 73 N. L. R. B. 447. Where a prehearing election had been held on the basis of a pay roll which was temporarily far below normal, the prehearing election was set aside. Matter of Carl and Joe Theiler, Inc., 73 N. L. R. B. 1175. In addition, in Matter of Waterfront Employers Association of the Pacific Coast, et al., 72 N. L. R. B. 366, where the longshore industry had returned to a peacetime basis in the period preceding the agreed upon terminal date of the eligibility period, a 3-month eligibility period was held to be most indicative of over-all peacetime requirements.

And in several cases in which a strike was in progress at the time of the hearing, the Board directed that, if the strike was still current and the plant shut down at the time of the issuance of its decision, the determinative pay roll should be the one immediately preceding the strike; and directed further that, if the employer's plant had reopened before the issuance of the decision, the determinative pay roll should be the one immediately preceding the decision, with provision for both strikers and bona fide replacements to vote. Matter of Wicaco Machine Corporation, 69 N. L. R. B. 741; Matter of Seneca Falls Machine Company, 71 N. L. R. B. 1106; and Matter of The ChaseShawmut Company, 71 N. L. R. B. 610. (Note, however, in connection with these cases, the dissent of Board Member Reynods in the Seneca Falls case, the only one of these three cases in which he participated, wherein he asserts his opposition to the conduct of an election during a strike.)

Matter of Griffin-Goodner Grocery Company, 73 N. L. R. B. 1332; Matter of Ely & Walker Dry Goods Company, 73 N. L. R. B. 874.

Thus, an employee assigned to work for another company for a limited time before the election, but who was retained on the employer's pay roll, was eligible to vote. Matter of Quick Industries, Incorporated, 71 N. L. R. B. 949. An employee on leave of absence to attend school for a few months, who was carried on the employer's pay roll, was eligible to vote. Matter of Imperial Brass Manufacturing Company, 72 N. L. R. B. 513. Officers of a union on indefinite leave of absence were permitted to vote under challenge, subject to a later determination, if necessary, of their right to participate in the election. Matter of Public Service Corporation of New Jersey, et al., 72 Ñ. L. R. B.

mail where the issue was raised at the hearing and where conditions outlined by the Board in the Matter of South West Pennsylvania Pipe Lines, 64 N. L. R. B. 1384, had been substantially met.55 Furthermore, regular part-time employees were usually regarded as having sufficient interest to entitle them to vote, particularly where they worked regular schedules of hours. And inasmuch as they were normally hired with the expectation of permanent employment, probationary employees, trainees, and apprentices were also deemed eligible to participate in elections.56 On the other hand, temporary or casual employees having no expectancy of regular, permanent employment were ineligible to vote.57 Employees who voluntarily terminated their employment or were discharged subsequent to the eligibility period and who were not rehired or reinstated before the date of the election, were similarly considered ineligible to vote.58 However, if a charge had been filed alleging that the discharges were in violation of the act, the discharged employees were permitted to cast ballots which were impounded and not counted unless they could affect the election; in the latter event, the determination of the question of eligibility was deferred until disposition was made of the unfair labor practice charge.59

In furtherance of the Board's efforts to insure that elections were conducted under conditions which would facilitate a free and independent selection of bargaining representatives by the employees concerned, the Rules provided for the filing by any interested party of objections to the conduct of the election or conduct affecting the results of the election. If an issue were raised as to the validity of an election by the timely filing of such objections, and if a Board investigation disclosed that the employees were, in fact, deprived of full freedom in exercising their franchise, the election was set aside.60

The circumstances which invalidated an election consisted of substantial irregularities or procedural defects in the conduct of the election. Also proscribed were acts of interference which tend to pre

61

55 Matter of Dothan Silk Hosiery Company, Inc., 70 N. L. R. B., 1350; see also Matter of Swift & Company, 71 N. L. R. B. 727, in which mail balloting for servicemen was denied because the employer had no knowledge of the present whereabouts of more than 50 percent of such employees.

56 Matter of Saginaw Cabinet Company, 72 N. L. R. B. 951, and Matter of Paragon Rubber Corporation, 72 N. L. R. B. 170.

Matter of Detroit Sheet Metal Works, Newcomb Detroit Company, et al., 73 N. L. R. B. 475; Matter of Great Trails Broadcasting Company, 73 N. L. R. B. 396; and Matter of Harriston Hardwood Company, 70 N. L. R. B. 1296.

58 This conformed to the Board practice of considering eligible to vote only those employees who were in the unit both during the eligibility period and on the date of the election. Thus, an employee in a unit on the eligibility date was ineligible if transferred out of the unit before the election, and an employee transferring into the unit after the eligibility date was likewise ineligible. Matter of J. B. Cook Machine Company, Inc., 73 N. L. R. B. 249. Employees dropped from the pay roll after the eligibility date but before the election were held ineligible to vote. Matter of Brewster Pateros Processors, Inc., 73 N. L. R. B. 833. Supervisory employees excluded from a production and maintenance unit were held eligible to vote if they lost their supervisory powers before the voting eligibility date. Matter of Nashville Cotton Oil Mill Corporation, 70 N. L. R. B. 1248.

As respects striking employees, the Board deemed currently striking employees eligible to vote, regardless of whether the strike was the result of unfair labor practices. If the strike was not caused by unfair labor practices, the Board, as formerly, permitted not only the strikers to vote but also those hired to replace them, provided such replacements were bona fide and were effected prior to an unconditional request for reinstatement by the strikers. Matter of National Foundry of New York, Inc., 73 N. L. R. B. 16: Matter of Horton's Laundry, Inc., 72 N. L. R. B. 1129.

See Eleventh Annual Report, p. 21.

60 Sec. 203.55 of the Board's Rules and Regulations, Series 4, prescribed the procedure in filing objections to the conduct or results of an election.

61 Matter of River Raisin Paper Company, 70 N. L. R. B. 1348 (before the parties had an opportunity to file exceptions to the regional director's report on challenges, the challenges which he had recommended be overruled were opened and counted); Matter of Hunt Foods, Inc., 70 N. L. R. B. 1312 (official notices were not posted because

clude the registering of a free choice by the employees, such as those of a labor organization exceeding the bounds of campaign propaganda, or those of an employer violative of his required neutrality. In the latter connection, if an employer, immediately preceding an election, announced a unilateral wage increase, or continued to check off dues in behalf of one of the competing unions, although the contract with that union had terminated, the election was generally voided. Similarly, an employer's conduct in questioning employees on how they intend to vote, disparaging the union and urging workers to vote against it, "holding out hope of reward" to union opponents, and threatening economic reprisal against union adherents, would cause an election to be vacated. And recently in Matter of Robbins Tire & Rubber Co., Inc., 72 N. L. R. B. 157, a majority of the Board (Board Member Houston dissenting), set aside an election upon the employer's own objections, where a supervisor, without the employer's knowledge, encouraged workers to join and vote for the sole participating labor organization; however, the employer was cautioned that it could not thereafter rely upon the misconduct of its supervisory employees as grounds for invalidating an election.65 The Board also held, in Matter of P. D. Gwaltney, Jr., and Company, Inc., 74 N. L. R. B. 371, that acts of third parties, regardless of the employer's connection therewith, would vitiate an election which the sole participating union lost, when such acts engendered fear of economic and physical reprisals if the employees failed to reject the union. The Board summed up its conclusions in that case as follows: This is not an unfair labor practice proceeding, but an investigation to ascertain employees' desires concerning their choice of a bargaining representative. Therefore, in appraising the facts and determining the Board's duty in the premises, more is involved than the mere determination of whether or not the Employer was itself responsible for the anti-union conduct which immediately preceded the election. As already indicated, there is no convincing evidence that would support a finding that the acts of [the third parties] were the acts of this Employer, within the meaning of the statute. But that does not dispose of the case, which relates to the validity of a Board election, any more than would the fact that a hurricane or other act of God could not be attributed to an Employer necessarily lead to the conclusion that an election conducted in the atmosphere created by such a natural phenomenon must be upheld as a true expression of the employees' desires. The issue before us here is whether, under all the circumstances, this election was held in an atmosphere conducive to the sort of free, unintimidated choice of representatives which the Act contemplates. We find that it was not.

they were received by the company after the election, and only 11 of 21 eligible employees cast ballots); and Matter of Louis Mare Co., Inc., of Penna., 70 N. L. R. B. 1242 (employees of the largest department in voting the group were not afforded the same voting opportunity as those in other departments).

Matter of Acme Brewing Company et al., 74 N. L. R. B. 146 (distribution by contracting union of new and more favorable contract executed by it with employer to become effective after election). See Eleventh Annual Report, p. 23.

Matter of Shelbyville Desk Company, 72 N. L. R. B. 925; Matter of Armour_and Company, 72 N. L. R. B. 1182; cf. Matter of Aurora Wall Paper Mill, Inc., 72 N. L. R. B. 1036, where, although the employer granted a unilateral wage increase 3 weeks before an election won by the incumbent union, the Board overruled the defeated union's objections, pointing out that, inasmuch as the incumbent had neither received nor claimed credit for the increase, the employer's action could not be deemed prejudicial.

Matter of The Pure Oil Company, 73 N. L. R. B. 1. However, statements by an employer indicating disapproval of a union, but containing no intimation of reprisal, Would not warrant setting aside an election. Matter of Hercules Motor Corporation, 73 N. L. R. B. 650.

Board Member Houston, in his dissent, asserted that, inasmuch as the employer's objections were based on its own alleged violations of the act, the employer's position was tantamount to a plea that the Board refuse certification because the employer had violated the act; and that to accept the employer's position is to overlook the wellestablished doctrine that the Board would not recognize unfair labor practices as creating equities. For another decision to the same effect, see Matter of Parkchester Machine Corporation, 72 N. L. R. B. 1410.

When a union received a majority of the valid votes cast, the Board normally certified that union as the exclusive bargaining representative of the employees in the appropriate unit." However, the Board would refrain from issuing a certification unless a representative number of eligible voters have participated in the election. As pointed out in previous annual reports, where a substantial number, although less than a majority, had cast ballots and all eligibles were accorded adequate opportunity to vote, the requirement in this respect for certification had been met.67

In elections involving more than one union, if the results of the original election were inconclusive, the Board would conduct a run-off election at the request of any party entitled to appear on the ballot. The rules provided in this connection that such request must be submitted "within ten (10) days after the date of the election." In Matter of Gastonia Combed Yarn Corporation, et al., 73 N. L. R. B. 169, the Board indicated that the 10 days were to be computed from the time when all valid ballots, including challenged ballots declared valid by the Board, had been opened and counted.

THE UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE BARGAINING

The establishment by the Board of an appropriate unit or units for collective-bargaining purposes was a prerequisite to the resolution of questions concerning representation.68 While each case must be decided on its own particular facts, one basic test was applied by the Board to all unit questions, namely: did the proposed bargaining unit constitute a group of employees whose interests in wages, hours, working conditions, and the other subjects of collective bargaining were substantially the same? In making its determination within this general rule the Board considered a number of factors, the most important of which were: the history of collective bargaining and the history, extent, and type of organization among the employees at the plant involved and at other plants of the same employer, or at plants of other employers in the same or related industries; the skill, wages, and working conditions of the employees; the desires of the employees; the eligibility of employees for membership in the union or unions involved; and the relationship between the unit or units proposed and the operation, organization, and management of the employer's business."

69

In those cases in which there was no dispute between the parties concerning the composition of the proposed unit, the Board generally accepted as appropriate the unit sought by the petitioner if it did not

Matter of Poster Cotton Mills, Inc., 73 N. L. R. B. 673.

See Eleventh Annual Report, p. 23, and Ninth Annual Report, p. 33. See also Matter of A. A. Fagan, et al., 73 N. L. R. B. 680. (Vote held representative where two out of five eligible voters participated); Matter of A. L. Mechling, et al., 69 N. L. R. B. 838. (Representativeness of vote held determinable not on basis of percentage of returns, but upon circumstances of each case); Matter of San Fernando Heights Lemon Association, 72 N. L. R. BĮ 372.

(Vote in unit of packing house employees held not representative where, at time of election, only half of the packing house operations was in progress and the number of eligible workers equaled less than half of the peak season complement.)

Similarly, the Board held it could not find a refusal to bargain, within the meaning of sec. 8 (5) of the act, until it had first determined an appropriate bargaining unit.

69 Sec. 9 (b) of the act provides: "The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of the act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof."