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Requiring a majority of the bargaining committee to be employees of the employer. The proposals also prevent outside representatives of the bargaining union-at least if they form a majority-from serving on the bargaining committee which deals with the employer. This proposal is objectionable on the same grounds as that just discussed; it needlessly restricts employees in the selection of representatives of their own choosing. This proposal would require abandonment of the ordinary procedure in most large-scale collective negotiations, where the union is represented by its ablest available men, often those who are national officers. To prohibit this procedure would seriously weaken a union in its negotiations with an employer, since it is outside representatives, not dependent on the employer for their jobs, who can best represent the employees and can most frankly and fully present their demands. Particularly when read in connection with section 10 (c) of S. 1264, which prevents the Board from ordering reinstatement of employees discriminatorily discharged, this proposed restriction would do much toward reviving that inequality of bargaining, arising from the employee's dependence for his job on the employer from whom he is trying to wring concessions, which the act was intended to prevent. An employer who finds that the negotiating employee is too capable a bargainer for the employer's taste could dispose of his bargaining adversary at the slight expense of "remedial serverance pay." Requiring the filing of financial statements of labor organizations.-The requirement that labor organizations file financial statements is obviously beset with grave dangers to them. The proposal would therefore discourage or prevent many labor organizations from resorting to the procedure of the act, thereby increasing the possibilities of resort to industrial strife. We do not believe that the matter of intraunion finances raises such serious evils as to require legislation at this time, or that the specific proposal carries such advantages as to outweigh its obvious disadvantages.

VI. PROPOSALS AFFECTING DETERMINATION OF THE APPROPRIATE BARGAINING UNIT-SECTION 9 (B)

Section 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 this act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof."

S. 1000 would modify this by striking out the words "or subdivision thereof" and adding: “or any other unit: Provided, That when a craft exists, composed of one or more employees, then such craft shall constitute a unit appropriate for the purpose of collective bargaining for such employee or employees; a majority of such craft employees may designate a representative for such unit: And provided further, That an appropriate unit shall not embrace employees of more than one employer. Two or more units may, by voluntary consent, bargain through the same agent or agents with an employer or employers, their agent or agents."

S. 1264 would modify section 9 (b) by adding thereto the following provision: "Provided, That if the majority of any craft union within a plant or employer unit signify its wish for the craft unit, the Board shall designate the craft unit as the unit appropriate for the members of that union: Provided further, That without prejudice to the preceding provision if the majority of the employees of any plant within an employer unit signifies its wish for the plant unit for voting or representation in preference to the employer unit the Board shall designate the plant unit as the unit appropriate for collective bargaining for the employees of that plant."

Before discussing these provisions it is necessary to consider briefly the factors involved in a determination of the appropriate bargaining unit and the Board's actual decisions upon the appropriate unit in cases involving the American Federation of Labor and the Congress of Industrial Organizations.

A. FACTORS IN DETERMINATION OF THE APPROPRIATE BARGAINING UNIT Under the act the Board must determine the unit appropriate for collective bargaining in two types of cases: First, where a charge is filed alleging that an employer has refused to bargain collectively under section 8 (5) of the act; and second, where a petition is filed requesting the certification of repre

sentatives for collective bargaining. In both situations the issue concerning the appropriate unit is the same.

The Board's experience demonstrates that rules for determination of the appropriate unit cannot be reduced to a simple formula. Numerous factors are involved, many peculiar to the individual case. Thus the Board must consider the desires of the employees themselves, the history of collective bargaining in the plant involved, the history of collective bargaining in similar plants in the industry, the mutual interests of the employees, conflicts in the interests of the employees, the functional coherence of the various operations of the plant, geographical location of different units of the business, and many other similar factors. The Board has devoted a large share of its time to the question of the appropriate unit; much of the discussion of the eleven volumes of Board decisions hitherto issued relates to this subject."

B. THE BOARD'S DECISIONS UPON THE APPROPRIATE BARGAINING UNIT IN CASES INVOLVING THE AMERICAN FEDERATION OF LABOR AND THE CONGRESS OF INDUSTRIAL ORGANIZATIONS

1. IN GENERAL

From the commencement of operations in 1935 up to March 1, 1939, there have been 190 cases decided by the Board in which the American Federation of Labor and the Congress of Industrial Organizations have both participated and in which the question of appropriate unit was involved. In 90 of these 190 cases the American Federation of Labor and the Congress of Industrial Organizations agreed completely upon the appropriate unit. In 26 more both organizations agreed upon the general outlines of the unit, whether craft or industrial, and disagreed only concerning the inclusion or exclusion of minor groups or isolated individuals.

This left only 74 cases in which there was any important disagreement between the American Federation of Labor and the Congress of Industrial Organizations upon the appropriate unit. These cases were decided as follows: American Federation of Labor contention upheld--Congress of Industrial Organizations contention upheld_. Contentions of each upheld in part..

No decision necessary--

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The main controversy between the American Federation of Labor and the Congress of Industrial Organizations has centered around the question of whether the appropriate unit should be a craft unit or an industrial unit. However, the common assumption that American Federation of Labor unions normally request craft units is not borne out by the facts. Up to March 1, 1939, American Federation of Labor unions have requested some form of industrial unit in approximately 210 cases and a craft form in approximately 100 cases.* Thus American Federation of Labor unions have asked for industrial units more than twice as often as they have asked for craft units. During the same period Congress of Industrial Organizations unions have not infrequently requested a unit smaller than that requested by the American Federation of Labor union involved in the same case." 86

2. CRAFT VERSUS INDUSTRIAL UNIT

It has frequently been charged that the Board's decisions have favored industrial unions at the expense of craft unions. Analysis of the actual record of decisions will demonstrate, however, that the charge is utterly unfounded in fact.

The decisions of the Board to date in cases involving a claim for a craft unit may be summarized briefly as follows:

4 For a detailed discussion of the Board's decisions in respect to the appropriate unit see Second Annual Report of the National Labor Relations Board (1937) pp. 122-140; Third Annual Report (1938). pp. 156-197.

35 The figures are approximate since it is sometimes very difficult to know whether a particular group requested as an appropriate unit should properly be considered a "craft" or an "industrial" group.

36 E. g., Matter of Marcus Loew Booking Agency, 3 N. L. R. B. 380; Matter of Friedman-Blau Farber Co., 4 N. L. R. B. 151.

(1) In any case in which a craft union, showing any substantial membership in a group of craft employees," has claimed a craft unit to be appropriate, and no other union has made a conflicting claim, the Board has ruled that the craft unit was appropriate.

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Thus, the Board has, in numerous cases, no other union entering a contrary claim, set up machinists as a machinists' unit, electricians as an electricians' unit, patternmakers as a patternmakers' unit, polishers as a polishers' unit, and the like. The only limitation imposed by the Board upon the application of this rule has been that the unit claimed as a craft unit must in fact be that group of employees which has historicaly been recognized as a separate craft, and not a smaller, larger, or different group. Thus, in one case a labor organization asked the Board to certify it as the representative of the welders in a boilermaking plant; the Board found, however, that the welders had never historically been considered a separate craft group in that industry and refused to set up a bargaining unit of welders only.39

(2) In any case in which a craft union, showing any substantial membership in a group of craft employees, has claimed a craft unit to be appropriate, and a rival union has claimed a larger unit, including the craft group, to be appropriate, the Board has applied what is known as the Globe doctrine." The Globe doctrine holds that, in such a situation, the employees in the craft group may by vote or other expression of their wishes decide for themselves whether they desire to be in a separate craft unit or to be part of a larger unit including the craft group. If a majority of the craft employees express their preference for the craft union, then the Board holds the craft unit to be appropriate; on the other hand, if a majority of the craft employees express a preference for the union claiming the larger unit, then the Board includes the craft employees in the larger unit.“

In our opinion the application of the Globe doctrine in cases of conflict between craft and industrial unions is eminently fair to craft unions. It leaves the decision as to whether the group of craft employees shall bargain through a craft union or through an industrial union entirely up to the craft employees themselves. If a majority of them wish to bargain through the craft union, that is permitted them. If a majority do not wish to bargain through the craft union but through the industrial union, no reason is apparent why such employees should be included in a separate bargaining unit.

The Globe doctrine has been the subject of extensive comment in current legal periodicals." None of these writers consider the Globe doctrine unfair to craft unions; most of them hold it more favorable to craft unions than to industrial unions. Thus in the article in the Illinois Law Review it is said: "When the unit question is contested by two or more bona fide labor organizations the Board is in an unenviable position * * * Whichever horn of the dilemma the Board takes is bound to result in charges of favoritism by the opposite side It cannot be doubted that this (the adoption of the Globe principle) is highly favorable to the American Federation of Labor.

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"From the standpoint of satisfying the employees, who, after all, are the party primarily interested, the Board is doing a good job in deciding the ap

If the craft union could not show any substantial membership among the group of employees which it asserted constituted a separate bargaining unit, there would, of course, be no question concerning representation under sec. 9 (c) and the Board would have no authority to investigate.

See, e. g., Matter of Duplex Printing Co., 1 N. L. R. B. 82 (machinists' unit); Matter of Campbell Machine Co., 3 N. L. R. B. 793 (machinists, shipwrights, and electrical workers included in separate units); Matter of Worthington Pump Co., 4 N. L. R. B. 448 (patternmakers' unit); Matter of National Sewing Machine Co., 5 N. L. R. B. 372 (molders and polishers included in separate units).

Matter of Novelty Steam Boiler Works, 7 N. L. R. B. 969. Board member Edwin S. Smith dissented in this case.

40 The term "Globe" doctrine is derived from the name of the first case in which the principle was applied, Matter of Globe Machine and Stamping Co., 3 N. L. R. B. 294. Board member Edwin S. Smith has dissented from a number of the cases in which the Board has applied the Globe doctrine. See Third Annual Report of the National Labor Relations Board (1938), pp. 173-174.

The cases up to July 1, 1938, in which the Board has applied the Globe doctrine are collected in Third Annual Report of the National Labor Relations Board (1938), pp.

167-174.

232 Illinois Law Review 599, 604; 23 Cornell Law Quarterly 392, 412; 47 Yale Law Journal 122, 124; 38 Columbia Law Review 1243, 1255-1258, 1266-1267; 7 International Juridical Association Bulletin 69. See also Fortune Magazine (October 1938), The GD Labor Board.

propriate unit, despite the fact that from the standpoint of a labor organization advocating a particular type of unit the decisions might be unsatisfactory.'

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The Cornell Law Quarterly has stated:

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"Thus in granting workers the right to vote to determine whether they desire to continue under the craft form of organization * it appears that the craft method is assured of more than a fair deal at the hands of the National Labor Relations Board. If the craft unit is active enough to retain the loyalty of its members, it is given the assurance of continued existence under the act."

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And the International Juridical Association Bulletin has concluded: "Although there are pronounced differences of opinion as to the policy of the Wagner Act, there is complete agreement that the American Federation of Labor is definitely not being discriminated against by the Board in the selection of bargaining units." "5

Thus in cases involving claims for a craft unit the Board has regularly either established the craft outright as an appropriate unit or has, by the application of the Globe doctrine, permitted the craft employees themselves to determine the appropriate unit. Let us see now how the application of these principles has affected the claims made by American Federation of Labor unions for craft units.

From the effective date of the act until March 1, 1939, unions affiliated with the American Federation of Labor claimed that a craft unit was appropriate in 100 cases decided by the Board. In 81 of these cases the Board granted the claim of the craft union in full, either by setting up the craft employees directly as a separate unit or by permitting the craft employees to make their own choice in accordance with the Globe doctrine." In the 19 remaining cases the reasons for rejecting the claim for craft units were as follows:

(1) In seven cases the craft union making the claim for a separate craft unit had no members or substantially no members among the craft employees and the craft employees had indicated no desire to be included in the craft unit. In this situation, the Board has ruled that a separate election among the craft employees to determine their wishes with respect to the craft union would be futile, and that it would not force these employees into a craft unit against their will. It is difficult to see how any legitimate interest of the craft union is prejudiced by this ruling.

(2) In seven cases the group of employees claimed by the craft union to constitute a separate bargaining unit had never historically been considered a separate craft group."

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(3) In one case the union claiming separate craft units did not define the limits of such units with sufficient definiteness for the Board to determine which employees were included within the claimed units and which were not."

(4) In one case where a craft union claimed a separate craft unit, the employees in the claimed unit had previously given express approval to a contract which the employer had made with an industrial union on a plant-wide basis, and the contract was still in force at the time of the Board's decision.

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(5) In one case there were only two employees in the unit claimed by the craft union to be a separate unit; one of these employees belong to the craft union and one belonged to an industrial union; under these circumstances the Board refused to set up two employees as a separate craft unit.

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(6) In one case a group of eight craft unions claimed that the employees eligible for membership therein constituted a single bargaining unit; the Board

43 32 Illinois Law Review 599, 605–608.

4423 Cornell Law Quarterly 392, 412.

457 International Juridical Association Bulletin 69.

40 Of the 19 remaining cases, in 5 the claims of the American Federation of Labor unions were granted as to some craft groups and denied as to others.

47 Matter of Allis-Chalmer Manufacturing Co., 4 N. L. R. B. 159; Matter of Texas Co., West Tulsa Works, 4 N. L. R. B. 182; Matter of American Hardware Corp., 4 N. L. R. B. 412; Matter of Bemis Bag Co., 5 N. L. R. B. 70: Matter of Waggoner Refining Co., 6 N. L. R. B. 731; Matter of Pure Oil Co., 8 N. L. R. B. 207; Matter of Indianapolis Times, 8 N. L. R. B. 1256.

48 Matter of M. H. Birge and Sons, 5 N. L. R. B. 314; Matter of Southport Petroleum Co., 8 N. L. R. B. 792; Matter of Shell Petroleum Co., 9 N. L. R. B., No. 76; Matter of Willys-Overland Motor Co., 9 N. L. R. B., No. 87; Matter of New York Evening Journal, Inc., 10 N. L. R. B., No. 14; Matter of Paper Calmenson & Co., 10 N. L. R. B., No. 17; Matter of Westinghouse Electric & Manufacturing Co., 10 N. L. R. B., No. 68.

49 Matter of Standard Oil Co. of California, 5 N. L. R. B. 750.

50 Matter of Superior Electric Products, 6 N. L. R. B. 19.

Matter of Des Moines Steel Co., 6 N. L. R. B. 532.

refused to hold that this multiple-craft unit was appropriate, but did not decide that the separate craft groups would not have constituted appropriate bargaining units if each group had been claimed as a separate unit. In this case the Board also refused to set up a separate unit for another craft on grounds similar to those discussed in paragraph (1) above.62

(7) In one case a union affiliated with the American Federation of Labor had organized the employees in a plant in two locals,-one having jurisdiction over a group of craft employees and the other having jurisdiction over the remainder of the employees in the plant. The Board found in its decision that the employer had assisted the American Federation of Labor union through various unfair labor practices. As to the claim for a separate craft unit, the Board said: "While ordinarily we have regarded as controlling the free choice of a majority of the employees in a well-defined craft as to the form of organization they desire, in the present case the respondent's conduct in influencing such choice precludes the application of this doctrine in the determination of the appropriate unit or units." The majority of the Board then went on to state that a plant-wide unit was appropriate in any event because the American Federation of Labor union, despite the separation of the employees into two locals, had really organized on the plant-wide basis itself."

The foregoing analysis demonstrates, we believe, first that the decisions of the Board on the appropriate bargaining unit have at all times fully protected the rights of the craft unions, and second, that many special cases arise which must be treated on their peculiar facts and which cannot be satisfactorily solved by an inflexible statutory rule.

We turn now to a consideration of the amendment with respect to craft units proposed by S. 1000.

C. THE PROPOSAL OF S. 1000 TO MAKE EACH GROUP OF CRAFT EMPLOYEES A SEPARATE BARGAINING UNIT

Section 9 (b) of S. 1000, quoted above, makes it mandatory upon the Board to create a separate bargaining unit out of each group of craft employees. No exceptions are provided for. Separate units must be created throughout the plant irrespective of the wishes of the employees in the craft group, irrespective of the wishes of the other employees in the plant, irrespective of whether a craft union exists, ever has existed, or is ever likely to exist in the plant, and irrespective of whether any craft union in existence has jurisdiction over the employees in question. Let us consider briefly some of the more important results of this proposal.

(1) The administrative burden imposed upon the Board by the proposed amendment would be intolerable. Hardly a plant in the country does not have employees working in half a dozen different craft groups and in a hundred different job classifications. A large plant may have employees working in from 20 to 50 different craft groups and in hundreds of different job classifications. It must be remembered also that the term "craft" carries no precise meaning. And even where some definite meaning can be attributed to it, the line between craftsmen and noncraftsmen in many types of work is growing constantly more and more difficult to draw.

Nevertheless, under S. 1000 the Board in each case would have to determine all possible craft groups in the plant, define the limits of each craft in terms of job classifications, determine which specific employees were members of each craft group, and determine the majority, by election or otherwise, of each craft group separately. We think it plain that the Board and its staff are not equipped to handle the technical problems involved in setting up a multiplicity of hypothetical crafts in this manner. The proposed amendment would make the simplest representation proceeding an intricate and elaborate task.

(2) The proposed amendment would also put the Board in the position of determining every jurisdictional dispute that arises between two unions affiliated

Matter of Shell Oil Company, 7 N. L. R. B. 417.

Matter of Serrick Corporation, 8 N. L. R. B. 621. Chairman J. Warren Madden dissented from the latter portion of the opinion on the ground that it was "unnecessary to the decision."

That the Serrick case deals with a special situation and in no sense constitutes an abandonment of the Globe doctrine, is clear from the fact that, following the Serrick case, the majority of the Board has applied the Globe doctrine in a number of cases. See, e. g., Matter of Vultee Aircraft Division, 9 N. L. R. B., No. 9; Matter of Union Premier Food Stores, Inc., 10 N. L. R. B., No. 26.

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