The Board also recognized the need for flexibility within the contract bargaining relationship to accommodate economic changes. Thus, in Matter of S&W Fine Foods, Inc., 74 N. L. R B. 1316, where a 2-year agreement had been reopened by one of the contracting parties at the end of the first year, in accordance with a clause permitting such reopening as to virtually all provisions except the contract termination date, the Board held that the original contract continued to serve as a bar, pointing out that "a decision which would in effect freeze contract provisions for a period of 2 years without permitting substantial reopening of the contract at the end of the first year overlooks the state of flux in our present economic life in which, among other things, the cost of living and production output and standards are ever changing." 26

During the past fiscal year the Board considered the effect of contracts reasonable in term which were executed with a noncertified union at a time when the employer employed less than 50 percent of its full complement. In Matter of Champion Motors Company, 72 N. L. R. B. 436, in which more than 6 months of the 1-year contract term had elapsed and the size of the unit had more than doubled, the Board removed the contract as a bar. In the Board's view, the contract had been executed at a time when it would have directed an election in an expanding unit according to the formula set forth in Matter of Aluminum Company of America, 52 N. L. R. B. 1040,27 and the conditions were met upon which the Board would, under that formula, have considered timely the petition of a rival union. Accordingly, it concluded that the contract was entitled to no greater validity than a certification, had it issued.28 Similarly, in Matter of United Parcel Service of New York, Inc., 74 N. L. Ř. B. 888, the Board removed as a bar an otherwise valid 2-year contract which was signed at a time when the employer contemplated an increase in the number of employees in the unit and expansion was imminent, and where the number of employees had more than tripled by the time of the hearing.

A familiar limitation to the general rule that a valid collective bargaining agreement would constitute a bar to a representation proceeding was the principle that a petition would be entertained if adequate notice of a representation claim were given by the petitioning union to the employer before the execution, or effective, date of a newly executed agreement, or before the operative date, commonly referred to as the "Mill B" date, of an automatic renewal clause in an existing agreement containing a renewal clause. The filing of a formal petition with the Board was always considered sufficient notice in and of itself

with an automatic renewal clause for 1-year periods thereafter, where the rival petition is timely filed during the initial term. Matter of General Electric Company, 74 N. L. R. B. 415. 26 To the same effect, see Matter of Puritan Ice Company, 74 N. L. R. B. 1311. However, if, during the contract term, the parties reopen an agreement containing no provision for modification (see Eleventh Annual Report, pp. 14 and 15), or if the negotiations exceed the scope of the modification clause (Matter of Heinsheimer Bros., Inc., 69 N. L. R. B. 253), the original contract will not operate as a bar. See also Matter of E. I. du Pont de Nemours & Company, Inc., Neoprene Plant, 73 N. L. R. B. 439, in which the Board held that the opening of a contract pursuant to a modification clause cannot occur at a time when notice to terminate is normally given and that notice of such reopening, which was followed by negotiations, effectively terminated the agreement and prevented it from being a bar to a rival petition.

27 See p. 9, supra.

28 Cf. Matter of Liggett & Meyers Tobacco Co., 73 N. L. R. B. 207, in which a contract was held to be a bar to an immediate election, the unit having less than doubled in size and no change having occurred in the scope or character of the operations.

to forestall the operation of the contract as a bar.29 Although an informal request for recognition submitted to an employer by a union was formerly also adequate notice per se, the Board, in Matter of General Electric X-Ray Corporatiton, 67 N. L. R. B. 997, discussed in the last annual report, determined that, absent extenuating circumstances, a "naked" recognition claim must be followed within 10 calendar days 30 by the filing of a petition in order to be effective against a contract executed in the interval between the dates of the claim and of the filing of the petition. In the course of the year, the Board considered the applicability of the latter doctrine to many factual situations.

31

Thus, the Board made clear that the failure to file the petition within 10 days after the assertion of a claim did not destroy the effect of the petition itself as notice to the employer of the petitioner's claim to representation from the date of its filing; " that the doctrine was inapplicable where the petitioner's claim was not naked but substantial on its face; that the 10-day filing period might appropriately be measured from the last date, immediately preceding the automatic renewal notice date of a contract, upon which a representation claim was made, even though such claim were one of a series of representation claims; and that, although a petition was timely filed so as to prevent an intervening agreement from barring an election, an amendment of the petition in substantial respects thereafter would operate to make the claim or petition unseasonable as to such an agreement and cause a dismissal of the petition.3

Another limitation placed on the general contract bar rule related to so-called premature extensions of existing agreements. Thus, where an extension was made before the expiration of an existing contract containing no automatic renewal clause, the Board held that such extension was no bar to a petition filed subsequent to the execution of the extension agreement, but before the expiration of the original contract.35

Similarly, a petition was entertained when filed before the Mill B date of a contract containing an automatic renewal clause, although after the execution of an agreement prematurely extending that contract. Heretofore, the Board had held that a petition filed after the Mill B date, but before the expiration of the original contract, would also be effective against an extension agreement executed prior to the petition. However, in Matter of Northwestern Publishing Company

20 See Matter of Ste. Genevieve Lime & Quarry Company, 70 N. L. R. B. 1259, where the Board proceeded to an election even though the employer did not receive notice of the petition until after the execution of a contract with a rival union. See also Matter of Mississippi Lime Company of Missouri, 71 N. L. R. B. 472, in which the Board indicated that, to be effective for contract bar purposes, the petition must be filed on or before the day preceding the making of the collective bargaining agreement.

30 Matter of Kirby Lumber Corporation, 71 N. L. R. B. 688.

31 Matter of Consolidated Steel Corporation of Texas, 74 N. L. R. B. 204.

32 Matter of Acme Brewing Company, 72 N. L. R. B. 1005 (petitioner was a vital and recognized incumbent having the status of statutory representative at the time it made its claim to representation).

33 Matter of Consolidated Vultee Aircraft Corporation, Nashville Division, 74 N. L. R. B. 967.

34 Matter of Hyster Company, 72 N. L. R. B. 937. However, an amendment which affected only a small part of the unit would not warrant a dismissal of the proceeding. Matter of General Electric X-Ray Corporation, 72 N. L. R. B. 1245.

Matter of Don Juan, Inc., 71 N. L. R. B. 734.

36 Matter of Murray Leather Company, 73 N. L. R. B. 892. This principle was held applicable irrespective of the bona fides of the parties in entering into the premature extension agreement. Matter of Worth Hardware Co., Inc., 71 N. L. R. B. 684. See also Matter of Greenville Finishing Company, 71 N. L. R. B. 436, overruling, on this point, Matter of Erie Concrete & Steel Supply Co., 55 N. L. R. B. 1124.

(WDAN), a Corporation, 71 N. L. R. B. 167, the Board ruled that an extension of a contract executed during the Mill B period and made effective immediately bars an election upon a petition filed thereafter, although before the expiration date of the original contract. The Board found significant the circumstance that the new contract was executed during the Mill B period, saying:

37

On these facts, were we to find the new contract between the Employer and the Intervenor not to be a bar, we would discourage timely negotiation for continuing stable relations. The new contract in this case, made effective between the Mill B and expiration dates of the old agreement, was consummated within the usual period for contracting parties to negotiate and conclude new agreements governing their relations for a coming term. Where, as here, this period is reasonable in time, we fail to perceive how the new contract can be regarded as a "premature" extension of the old.

Thereafter, in Matter of Mississippi Lime Company of Missouri, 71 N. L. R. B. 472, in which the extension agreement was executed during the Mill B period of a contract, but was made effective as of the expiration date of the original contract, and the petition was filed between the execution and effective dates of the extension agreement, a majority of the Board (Board Member Houston dissenting) held that the execution date rather than the effective date of the extension agreement was controlling and dismissed the petition.88 And, in keeping with the added significance given to the Mill B date, the Board also held in Matter of Greenville Finishing Company, Inc., 71 N. L. R. B. 436, that extensions which were executed and made immediately effective before the Mill B date of existing contracts, although still vulnerable to petitions filed before the latter date, nevertheless barred petitions which were filed after the Mill B date had passed.39

During the past fiscal year, the Board also had occasion to amplify its familiar doctrine that, absent unusual circumstances, a newly certified union was entitled to a full year following its certification, in which to bargain collectively in behalf of the employees it represents. Previous decisions had established, in this connection, that the immunity thus afforded against otherwise timely rival claims embraced not only new agreements executed during the certification year, but also the premature extension or automatic renewal, during that period, of agreements entered into by the certified union before its certification."1 As a logical sequence, the Board ruled recently, in Matter of The Quaker Maid Company, Incorporated, 71 N. L. R. B. 915, that pro

40

The premature extension_doctrine was first enunciated in Matter of Wichita Union Stockyards Company, 40 N. L. R B. 369. Although the claim in that case was made before the Mill B date, the doctrine was applied thereafter in Matter of Memphis Furniture Mfg. Co., 51 N. L. R. B. 1447, in which the petitioner's claim was regarded as not made before the Mill B date. The Board therefore found it necessary to overrule only the latter decision to the extent that it was inconsistent with the Northwestern Publishing case. In that case, Board Member Houston, in his dissenting opinion, disagreed with the majority view that the usual rule of determining contract bar questions by the effective rather than the execution date (Matter of Commercial Printing Company, Inc., 73 N. L. R. B. 159) was inapplicable in these circumstances. He declared that the period between the execution and effective dates was unsettled due to the abandonment of the old contract and the noneffectiveness of the new one; that the ruling was hardly conducive to industrial stability; and that he was concerned over the possibility of fraud in the purposeful antedating of contracts to preclude the choice of a new bargaining representative.

The Board left undisturbed the established principle that, where the employer and the contracting party voluntarily entered into negotiations for an entirely new contract subsequent to the automatic renewal date and thereby evinced an intent to terminate the existing agreement, a rival claimant was relieved of the duty it otherwise might have had to present its representation claim before the automatic renewal date. Matter of Falcon Manufacturing Company, 73 N. L R. B. 467; Matter of Honolulu Rapid Transit Company, Limited, 71 N. L. R. B. 172.

Matter of Con P. Curran Printing Company, 67 N. L. R. B. 1419.

Matter of Kimberly-Clark Corporation, 61 N. L. R. B. 90 (automatic renewal); and Mater of Omaha Packing Company, 67 N. L. R. B. 304 (premature extension).

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

43

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.45 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.46 Also, neither alleged "raiding" tactics by the petitioning union,47 nor high labor turn-over in the employer's plant, 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.

48

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,

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

51

The Board made no noteworthy changes, since the last annual report, in the general principles concerning eligibility to vote." 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. 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.54 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

49 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.

51 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).

52 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 N. L. R. B. 224.