8. Activities of the Office of General Counsel

The General Counsel of the National Labor Relations Board has the sole and independent responsibility of investigating charges of unfair labor practices, issuing complaints in cases where his investigators find evidence of violation, and prosecuting the cases before the Board. Also, under an arrangement between the five-member Board and General Counsel," his field staff has authority to act as agents of the Board in the preliminary investigation of representation and unionshop cases, to effect settlements or adjustments in such cases, and to conduct hearings on the issues involved. The five-member Board, however, makes decisions in all contested representation and unionshop cases.

A. Representation and Union-Shop Cases

The field staff closed a total of 7,539 representation cases during the 1949 fiscal year, most of them pursuant to agreement by all parties. This was approximately 82 percent of the 9,245 representation cases closed by the agency during the year. The remainder of the representation cases were closed by action of the Board members. The General Counsel's field staff conducted hearings in a total of 1,821 representation cases. This was an increase of 57 percent over the 1,159 such hearings conducted during the 1948 fiscal year.

Of the cases closed before reaching the five-member Board, 7,017 were closed by the field staff without the necessity of formal action. Of these, 4,219 were adjusted by the conduct of elections agreed to by the parties or by recognition of the candidate bargaining agent. Petitions for elections were withdrawn in 2,117 cases, and they were dismissed, subject to appeal to the five-member Board, in 639 cases. The field staff also closed a total of 18,887 union-shop cases. these, 16,356 were adjusted in the field. This was done by the conduct of elections agreed to by the parties in 15,578 cases, and by elections directed by the regional director in 778 cases. In an additional 2,183 cases, the petitions for union-shop authorization elections were withdrawn, and in 320 the petitions were dismissed.

B. Unfair Practice Cases

Of

In the capacity of prosecutor of unfair labor practices, the General Counsel's staff closed a total of 4,664 unfair practice cases of all types. This was an increase of 28 percent over the 3,643 such cases closed during the 1948 fiscal year. The General Counsel issued complaints

'Statement of Delegation of Certain Powers of National Labor Relations Board to General Counsel of National Labor Relations Board, 13 Federal Register 654, published in the Federal Register February 13, 1948. The delegation is discussed in the Thirteenth Annual Report, pp. 9-11.

in a total of 617 cases in which he found evidence to support charges of violation of the act. This is an increase of approximately 102 percent over the 305 cases in which complaints were issued during the 1948 fiscal year. During the 1949 fiscal year complaints were issued in 142 cases involving charges of unfair labor practice against labor organizations. Complaints charging employers with unfair practices were issued in a total of 475 cases.

A total of 4,199 unfair practice cases were closed after investigation without the necessity of formal action; this represented 90 percent of all cases closed. Of these, 951 were adjusted in the field. The charges were withdrawn in 2,151 cases, and in 1,086 cases the charges were dismissed. Of the cases dismissed, 853 involved charges against employers. These constituted approximately 23 percent of all cases against employers which were closed. A total of 233 cases involving charges against unions were dismissed. These constituted approximately 25 percent of the cases against unions which were closed.

C. Injunctions

Section 10 (1) of the amended act requires the General Counsel to seek a Federal District Court injunction whenever he has "reasonable cause to believe" that a charge of secondary boycott or certain other specified unfair labor practices is true. The act confers discretion to seek such injunctions in the case of jurisdictional disputes or any other type of unfair labor practice.

During the 1949 fiscal year, the General Counsel petitioned United States District Courts in various sections of the United States and the Territory of Alaska for a total of 32 injunctions of all types. This compares with 21 injunctions sought under the law during the 1948 fiscal year. Of the injunctions sought in fiscal 1949, all were against labor organizations. Two were sought under discretionary provisions of the act and the remaining 30 were sought under the mandatory provisions of section 10 (1). Of the injunctions sought at the General Counsel's discretion, one was sought in a jurisdictional dispute and the other in connection with the 1948 coal strike. All of the mandatory injunctions except one were requested to halt alleged secondary boycotts. The exception was a case in which a union was charged with attempting to induce employees to strike after another union had been certified by the Board as the bargaining representative for the employees. Three of the cases in which injunctions were sought to halt secondary boycotts also involved charges of jurisdictional disputes.

Of the injunctions requested, 16 were granted and 4 were denied during the fiscal year. Four others were withdrawn or dismissed after settlement or the cessation of the alleged illegal conduct. Three

were dissolved following the issuance of Board decisions in the cases. The remaining cases were pending at the close of the fiscal year.

Under section 10 (e) of the act, an injunction was obtained to prevent an employer company from disposing of its assets until it had made provision for meeting its liabilities under an order of the Board directing it to reimburse employees for wages lost as a result of discriminatory discharges. Claims of the employees in the case were estimated at $40,000.

Injunction litigation conducted by the General Counsel during the fiscal year is discussed more fully in chapter V.

9. Division of Trial Examiners

The Board's Division of Trial Examiners maintained a staff of 40 trial examiners during the fiscal year ended June 30, 1949. The trial examiners issued intermediate reports in a total of 328 cases during the 1949 fiscal year. The reports were issued in 86 cases involving unfair labor practice charges against employers filed under the Wagner Act; in 185 cases involving charges of unfair labor practices against employers under the Labor Management Relations Act; and in 57 cases involving charges of unfair labor practices against unions.

During the year, the trial examiners conducted hearings in a total of 414 cases. The hearings ran to a total of 1,562 hearing days. The average length of a hearing was 4.72 days. The actual length of individual hearings, however, varied widely from a fraction of a day to 52 actual hearing days in one case.

In most cases, particularly those arising under the Labor Management Relations Act, the trial examiners' findings or recommended order, or both, were contested by the parties before the Board members, but in 44 cases the trial examiners' recommendations were accepted by the parties without contest. In the latter cases, the trial examiners' recommendations automatically become Board decisions under the amended statute.

Representation Cases

THIS chapter outlines the major principles of law and policy by which

the Board determines the issues in cases arising under section 9 of the act, as reflected in decisions issued during the fiscal year ending June 30, 1949.1

There are two types of cases under section 9, in both of which the Board acts in a nonadversary capacity. The first is the representation case, which arises under subsection 9 (c). In these proceedings, if it is found that "a question of representation affecting commerce exists" the Board designates the appropriate bargaining unit of employees and ascertains, through an election, what union or other representative, if any, is desired as collective bargaining agent by a majority of the employees in that unit. These proceedings implement the basic statutory principle, embodied in subsection 9 (a), that:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. * * *

The Board classifies and distinguishes among representation cases, for certain purposes, according to whether they are instituted by petitioners desiring to be certified as statutory bargaining representatives; by employees or persons acting in their behalf seeking to have certified or presently recognized representatives "decertified"; or by employers desiring to have existing questions of representation resolved by the Board.

The other type of case which the Board is required to process under section 9 is of two varieties, the so-called union-authorization proceeding and the "deauthorization" proceeding, for both of which provision is made in subsection 9 (e). These proceedings are instituted either by a union "which is the representative of employees as provided in section 9 (a)," seeking authorization to make a union-shop contract, or by employees in the bargaining unit covered by a valid union-security agreement, seeking to rescind their union's authority

1 These decisions are reported in volumes 78 to 84, inclusive, of the N. L. R. B. reports. A few noteworthy cases decided shortly after the close of the fiscal year are also cited in this chapter.

to make such an agreement. In a union-authorization case, the essential substantive condition is that there be "no question of representation." If the Board finds that this condition is satisfied, it conducts a secret ballot election, or referendum, and certifies the results. A referendum under subsection 9 (e), and a Board certification showing that the proposal to authorize a union-shop contract was approved, in the most recent referendum, by a majority of the employees eligible to vote, are necessary to satisfy one of the conditions prescribed in section 8 (a) (3) of the act for the validity of union-security contracts.

In both representation and union-authorization proceedings, as well as in cases under section 8 of the act involving unfair labor practices, labor organizations seeking to invoke Board process, or raising questions of representation, must comply with certain threshold filing requirements, contained in subsections (f), (g), and (h) of section 9. These provisions, enacted in 1947, are designed to bring about full disclosure of financial and other data respecting the organizational structure of unions, and to deny the benefits of the act to labor organizations whose officers have not filed certain affidavits.

1. The filing requirements

Subsections 9 (f), (g), and (h) of the act detail the filing requirements which a union must fulfill before the Board may process its petition in any case under section 9,2 or certify it as a statutory bargaining representative, or investigate any question of representation raised by it in any representation proceeding.3 Subsections 9 (f) and (g) prescribe that a labor organization shall file with the Secretary of Labor copies of its constitution and bylaws, and information as to its officers and their salaries, its finances, conditions of membership, methods of authorizing strikes, and the like. These subsections also require unions to furnish annual financial reports to their members. And under subsection 9 (h) a union must file, with the Board, "non-Communist" affidavits executed by each of its officers.*

Accordingly, the Board will not entertain a labor organization's petition for certification under section 9 (c),5 or for a union-shop

'These subsections also prescribe that no complaint shall be issued pursuant to an unfair labor practice charge filed by a noncomplying labor organization.

This applies even to representation proceedings instituted by an employer. See Thirteenth Annual Report, p. 22.

'Specifically sec. 9 (h) prescribes that a union officer shall state in his affidavit "that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of sec. 35A of the Criminal Code shall be applicable in respect to such affidavits."

E. g., Matter of Advance Pattern Co., 80 N. L. R. B., No. 10. However, where the petitioner's compliance has lapsed since the hearing, the Board will ordinarily place the petitioner's name on the ballot, if an election is directed, provided that the petitioner renews its compliance within 10 days from the date of the direction of election. Matter of Advance Pattern Co., supra.