ing union which is barred from the ballot," or a person or organization found to be acting in behalf of such noncomplying union, will be investigated by the Board. If the investigation reveals that there was any substantial defect or irregularity in the conduct of the balloting, or that the eligible voters were restrained, coerced, or in any other manner prevented from exercising a free choice in the selection of a bargaining representative, the Board will void the election.10 However, it leaves to the good sense of the voter the task of appraising campaign propaganda and considers it the function of the interested parties to counteract the effect of campaign statements that are merely exaggerated, inaccurate, or untrue."

The problem of where to draw the line between union campaign activities that are merely "propaganda" and those which amount to actual coercion or restraint of employees in the exercise on their franchise confronted the Board in a number of representation cases decided during the fiscal year. In Matter of G. H. Hess, Inc.,12 the Board considered, as possible bases for setting aside an election, two remarks made by a union organizer to an employee: (1) Three days before the scheduled election, the organizer said to the worker, "If you don't vote for the union the girls will refuse to work with you." And, (2) on the same occasion the organizer requested the employee, in order to "keep from causing hard feelings," to leave the factory at quitting time on the day of the election instead of going to the polls. This, the Board found, was "underscored" by the further statement, "There has been a lot of rough stuff at these union elections." Two members of the Board (Messrs. Reynolds and Gray) condemned both of these statements as coercive in their reasonably calculated effect upon the listener: the first, because it "conveyed a threat of economic

7 As noted in pt. 2 of this chapter, a noncomplying union sought to be decertified in decertification pro ceedings instituted under sec. 9 (c) (1) (A) (ii) is placed on the ballot, and may file objections to the election. See Matter of Oppenheim-Collins & Co., Inc., supra; Matter of H. O. Canfield Company, supra. Although a noncomplying union in representation proceedings instituted under subsecs. (A) (i) or (B) of sec. 9 (c) (1) is not entitled to file objections as a matter of right, the Board considered, on the merits, an "objection" filed by a noncomplying union in Matter of Woodmark Industries, 80 N. L. R. B., No. 171. There a plurality of the eligible voters had marked their ballots for the noncomplying union by the use of stickers and other superimposed designations. The regional director voided these ballots and the Board sustained his action, overruling the contention of the noncomplying union that these write-in ballots should have been counted as valid votes against the only labor organization on the ballot. Similarly, in Matter of Belmont Radio Corporation, 83 N. L. R. B., No. 5, the Board permitted a group of economic strikers to intervene through their attorney in the post-election proceeding, insofar as it involved the disposition of their challenged ballots.

• The investigation may include a formal hearing, if the Board so directs, in a case where exceptions are filed to the regional director's report on objections. See sec. 203.61 of the Board's Rules and Regulations, Series 5, as amended.

10 The Board may set aside an election because of conduct on the part of either the employer or a labor organization which does not amount to an unfair labor practice, but in practice it seldom finds that conduct which does not amount to an unfair labor practice nevertheless is sufficiently serious to warrant setting aside the election. See Thirteenth Annual Report, pp. 34-35.

11 See Matter of N. P. Nelson Iron Works, Inc., 78 N. L. R. B. 1270; Matter of Champion Spark Plug Company, Ceramic Division, 80 N. L. R. B., No. 12.

13 82 N. L. R. B., No. 52.

*

reprisal, i. e., that [the employee addressed] would, through the efforts of the union, be deprived of her job should she vote against the union"; 13 the second, because it constituted an implied threat of bodily harm if the employee should go to the polls in defiance of the union organizer's advice. Members Houston and Murdock disagreed with this position on both counts. As to the remark, "the girls will refuse to work with you," these two members held in their dissenting opinion that this was only "a commonplace reference in the usual context" to the privilege of trade-union members to "refuse to work with those who do not share their views on the value of collective bargaining." The dissenting opinion also asserted that the statement in question was exactly comparable to employer statements prophesying that unionization would have adverse economic consequences, which the Board had held in another case 14 to be privileged as "free speech." As to the union organizer's admonition to stay away from the polls, Members Houston and Murdock stated that they did not approve "this kind of election tactic," but were unwilling to set the election aside because of this one episode, which seemed to them "isolated" and "quite insubstantial" as there was no "context of force or threats of violence." Chairman Herzog, who cast the deciding vote in this case, agreed with Members Houston and Murdock as to the first of the union organizer's remarks. But he voted to set the election aside solely because of the intimidatory character of the union organizer's direction to a worker to keep entirely away from the polls. The Chairman stated, in his separate concurring opinion, that this type of interference with an election constituted too serious a threat to the democratic process to be belittled or tolerated in any case. He said that "Threats calculated to keep employees from coming to the polls to exercise the franchise may never be tolerated by this Board, whatever their source and whatever their effect. *** The fact that a ballot may be secret when cast and counted gives little comfort and less assurance to the citizen or employee who dares not cast any ballot at all." 15

In any election where "none of the choices on the ballot receives a majority," section 9 (c) (3) of the act provides that "a run-off election

13 Members Reynolds and Gray added: "We vigorously disagree with our dissenting colleagues [Members Houston and Murdock] that this statement amounted to no more than a mere expression of an intent to strike, an expression which we would hold protected as free speech just as zealously as our colleagues." 14 Matter of Mylan-Sparta Company, Inc., 78 N. L. R. B. 1144.

15 Cf. Matter of N. P. Nelson Iron Workers, 78 N. L. R. B. 1270, and Matter of Champion Spark Plug Company, 80 N. L. R. B., No. 12, where the Board overruled objections based upon the following union campaign statements, and others in like vein: "A vote for the union will bring you these things called job security and a living in wages"; and "When this election is out of the way, your demands must be granted by the company." In Matter of The Fairbanks Company, 81 N. L. R. B., No. 132, a panel of the Board (Chairman Herzog and Member Reynolds, with Member Gray dissenting) declined to set aside an election where the union had told employees that if the union lost the election the employer would immediately cut their wages, but the employer had published a denial of this statement before the time of the balloting.

shall be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election. 16 In obedience to this provision the Board has abandoned its former practice of eliminating the "no union" choice from the run-off ballot in any case where that choice failed to receive the plurality of votes cast in the original election." However, the Board has held that a run-off election is not mandatory under section 9 (c) (3) where it would in all probability be futile."

There has been no change in the Board's settled rule that the vote of a majority of the employees participating in an election in a representation case, rather than a majority of those eligible to vote, is decisive of the question of representation,19 provided only that a representative number of the eligible employees cast ballots.20

5. The unit appropriate for purposes of collective bargaining

One of the Board's most important functions is to delineate collective-bargaining units. These determinations must be made in all cases arising under section 9 of the act, as well as in cases where either an employer or a union is charged with refusing to bargain collectively, in violation of section 8 (a) (5) or section 8 (b) (3).21 Under section 9 (b), the Board is vested with broad discretion to decide what unit is appropriate to "assure to employees the fullest freedom in exercising the rights guaranteed by this Act, *" subject to specific restrictions as to the treatment of professional employees, guards, and craft groups. 22

* *

In any case where there is a controversy as to the bargaining unit,23 one or more of the following questions is usually presented to the

16 Under sec. 203.62 of the Board's Rules (Series 5 as amended) this procedure is applicable only in an election where the original ballot provided for not less than three choices. The cited rule also provides: "Only one run-off shall be held pursuant to this section."

17 See the Board's direction of a run-off in one of the voting groups (Group 4) in Matter of J. I. Case Company, 81 N. L. R. B., No. 149.

18 See Matter of United States Rubber Company, 83 N. L. R. B., No. 52; Matter of Bauer-Schweitzer Hop & Malt Co., et al. 79 N. L. R. B. 453. In both these cases, the two unions on the ballot were tied for first place, and there were no votes for the "no union" choice.

19 As the Board pointed out in Matter of Best Motor Lines, 82 N. L. R. B., No. 35, this means that a union appearing on the ballot in a decertification case will be "decertified" if it polls only 50 percent of the votes cast, even though a majority have not voted against the union.

29 See Eleventh Annual Report, p. 23; Twelfth Annual Report, p. 18; Thirteenth Annual Report, pp. 35 and 44. Contrast the statutory requirement in union-shop referendum cases, discussed on p. 7 of this chap. ter, infra.

21 The proviso to sec. 8 (a) (3), too, protects discrimination pursuant to a union-shop contract, provided, among other things, that the contracting union "is the representative of the employees as provided in sec. 9 (a), in the appropriate collective bargaining unit covered by such agreement when made; [Italics supplied.]

22 These limitations on the Board's discretion are contained in three provisos to sec. 9 (b), which were added by the 1947 amendments. For a fuller discussion of these and other changes in the statutory provisions as to appropriate units, see Thirteenth Annual Report, pp. 35-40.

Ordinarily where all parties to a representation proceeding agree upon the bargaining unit and such unit meets the basic tests of appropriateness and does not violate the statutory interdictions, the Board will approve the agreement of the parties.

Board for decision: What should be the general type or character of the unit, for example, whether it should be an industrial unit embracing all the employees in a broad class such as production and maintenance workers, or a craft unit confined to a small, specialized group within the class of production or maintenance employees; what the scope of the unit should be, i. e., whether it would embrace all employees in a given class at only one plant or establishment of one employer, or at several plants of one employer or at all or several plants of a group of associated employers; and, finally, what the specific composition of the unit should be, that is, whether or not it should include occupational groups of employees such as clerks, inspectors, helpers, technical employees, and a host of others who, in a particular case, may be on the "fringe" of the class constituting the unit as a whole. Related to questions in this last category are problems of determining what personnel, otherwise akin to the employees in the unit, must be excluded because they are specifically exempted from the definition of "employee" in section 2 (3) of the act-for example, "supervisors." 24 As noted in the last annual report, the 1947 amendments to the act have, in the main, left unchanged the familiar basic tests of appropriateness formulated by the Board during the years it administered the act prior to the amendments. Thus, in resolving unit issues, the Board is still guided by the fundamental concept that only employees having a substantial mutuality of interest in wages, hours, and working conditions, as revealed by the type of work they perform, should be appropriately grouped in a single unit. Various factors are taken into consideration by the Board in applying this general rule to the particular facts of each case. Chief among these criteria of appropriateness are: (1) the extent and type of union organization 25 and the history of collective bargaining in behalf of the employees involved or other employees of the same employer or of other employers in the same industry; (2) the duties, skill, wages, and working conditions of the employees; (3) the relationship between the proposed unit or units and the employer's organization, management, and operation of his

24 Sec. 2 (3) excludes: "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."

25 Subsec. 9 (c) (5) provides: "In determining whether a unit is appropriate for the purposes specified in subsec. (b) [of sec. 9] the extent to which the employees have organized shall not be controlling." However, the extent of employee organization is still one of several factors to be weighed in determining the appropriateness of a unit. See Matter of Waldensian Hoisery Mills, Inc., 83 N. L. R. B., No. 113.

business, including the geographical location of the various plants involved; and (4) the desires of the employees themselves.26

Section 9 (b) (2) forbids the Board to "decide that any craft unit is inappropriate * * * on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation." This new statutory provision has resulted in an increasing number of petitions being filed by labor organizations seeking to carve segments from established bargaining units. In most such cases, the Board has permitted severance of the groups sought, provided they meet certain basic tests of identifiableness and homogeneity. As a general rule, where the employees in a proposed unit are commonly engaged in craft work of a distinctive nature,27 or where the requested unit is composed of skilled employees constituting a department with a craft nucleus,28 or the employees sought comprise a departmental group which has, by custom and practice, come to be regarded as craftlike, the Board will permit their severance from an established plant-wide or otherwise more comprehensive unit, according to their desires as expressed in a self-determination election.30 Where,

29

se It is in cases where the Board applies its long-standing "Globe" doctrine, allowing the interested employees to choose by secret ballot between two equally appropriate units, that this fourth factor assumes particular importance. Typically, in a case where a Globe election is directed, the employees in a craft group are afforded the opportunity to indicate that they prefer to be established as a separate bargaining unit, apart from a broader industrial unit in which they would otherwise be included, by voting for the craft union that seeks to represent them separately, as against the industrial union that desires to represent them as part of the broader unit. But in such an election, a majority of the employees in the craft group will sometimes vote for the "no-union" choice, or for an industrial union which fails to win a majority in the balance of the industrial unit for which it desires to bargain. In Matter of J. I. Case Company, 81 N. L. R. B., No. 149, the Board passed upon what its post-election unit determinations should be in such a situation. The majority (Member Murdock dissenting) dismissed the petition-in effect, certifying "no union" and finding no unit appropriate for a craft group of employees who had voted against both the unions on the ballot, and found that another craft group, whose majority had voted for the industrial union, nevertheless constituted an appropriate craft unit. The industrial union was certified as the representative of this craft unit alone, as it had lost the election in the residual production and maintenance group in which the craft employees would otherwise have been included. Member Murdock argued, in his dissent, that because in each instance they had voted against being severed as a craft unit, the craft employees in both groups should have been merged with the residual group of production and maintenance employees for purposes of a run-off election and the Board's ultimate unit finding.

See e. g., the following cases involving pattern makers: Matter of American Steel Foundries, 85 N. L. R. B., No. 7; Matter of General Motors Corporation, Buick Motors Division, 79 N. L. R. B. 376; Matter of W. A. Jones Foundry & Machine Co., 83 N. L. R. B., No. 28; the following cases involving electricians: Matter of National Carbide Corporation, 85 N. L. R. B., No. 15; Matter of Gaylord Container Corporation, 80 N. L. R. B., No. 181; the following cases involving machinists: Matter of E. I. DuPont De Nemours and Company, 83 N. L. R. B., No. 131; Matter of Columbia Pictures Corporation, 80 N. L. R. B., No. 214; Matter of C. Hager & Sons Hinge Manufacturing Company, 80 N. L. R. B., No. 36; the following case as to polishers and buffers: Matter of Murlin Manufacturing Company, 80 N. L. R. B. 309; and the following case involving sheetmetal workers, carpenters, bricklayers, pipe fitters: Matter of Standard Oil Company of California, 79 N. L. R. B. 1466.

28 See Matter of International Harvester Company (Indianapolis Works), 82 N. L. R. B., No. 86.

* See Matter of C. A. Swanson and Sons, 81 N. L. R. B., No. 54, and cases cited therein. Such groups include boiler room and powerhouse employees (Matter of Jacobsen Mfg. Co., 82 N. L. R. B., No. 158; but cf. Matter of Lynn Gas and Electric Company, 78 N. L. R. B. 3); truck drivers and allied classifications (Matter of Standard Oil Company (Indiana), 81 N. L. R. B., No. 227); foundry employees (Matter of W. A. Jones Foundry & Machine Co., 83 N. L. R. B., No. 28).

30 See footnote 6, supra.

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