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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.co

The circumstances which invalidated an election consisted of substantial irregularities or procedural defects in the conduct of the election.61 Also proscribed were acts of interference which tend to pre

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5 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.

18 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 yote 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 : Natter 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

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clude the registering of a free choice by the employees, such as those of a labor organization exceeding the bounds of campaign propaganda,62 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.63 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.64 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. 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 Marr 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 ; çf. 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.

es 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.

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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. 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

86 Matter of Poster Cotton Mills, Inc., 73 N. L. R. B. 673. 07 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. (Repre. sentativeness of yote 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. BJ 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.)

85 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."

conflict with the Board's basic policy.70 The cases in which the parties could not agree on the general composition of the bargaining unit usually involved controversies concerning the propriety of establishing craft, multicraft, departmental, or production and maintenance units, and the related question of whether the unit established should be restricted to one plant, to all the plants of one employer, or to the plants of several different employers.

In resolving these controversies, where other factors were equal, the Board often relied upon the prior bargaining history at the plant if there were any." In the absence of local bargaining history, the Board looked to the history of other plants of the same employer as well as that of other employers engaged in the same 72 or similar types of business.73 However, the Board refused to accord controlling significance to prior bargaining history in those cases where the contract unit covered union members only, where previous contracts were oral or contained no substantive terms,75 where the bargaining unit was established by a contract with a union that the Board found to be employer-dominated in violation of section 8 (2) of the act,76 or where the composition of the preexisting unit in itself conflicted with the Board's basic policy."

In some cases where the preexisting bargaining unit had not been inherently inappropriate the Board nevertheless refused to accord controlling significance to prior bargaining history. Thus, the Board, during the past fiscal year, has granted self-determination or “Globe? elections 78 in a number of cases involving craft units when the employees concerned have formerly been a part of a larger bargaining unit. In deciding these cases the Board was not insensitive to the fact that, although dissatisfied minority groups were generally present in any large bargaining unit, adherence to established bargaining patterns lends desirable stability and certainty to employer-employee relations. On the other hand, strict adherence to prior bargaining patterns would often result in depriving true craftsmen of separate representation because they were formerly represented as a part of a larger unit. In each instance the Board weighed these opposing considerations and, where it found that the employees concerned constituted an apprenticeable and well-defined craft group in an in

** Thus, for example, the Board refused to follow an agreement of the parties to include monitorial guards with employees over whom they exercise monitorial functions. Matter of The Carborundum Company, 71 N. L. R. B. 926.

11 See Matter of E. I. du Pont de Nemours and Company, 73 N. L. R. B. 1167, and Matter of Johnson & Johnson, 72 N. L. R. B. 1061. Cf, Maiter of Brunswick Drug Company, 71 N. L. R. B. 309.

*2 See Matter of Danita Hosiery Manufacturing Co., Inc., 71 N. L. R. B. 366, and Matter of Dothan Silk Hosiery Company, Inc., 10 N. L. R. B. 1350. Cf. Matter of D. 0. Frost Co., 72 N. L. R. B. 900. 73 Cf. Matter of The Eclipse Lawn Mower Co., 73 N. L. R. B. 258. ** See Matter of Liggett Drug Company, Inc., 73 N. L. R. B. 312; cf. Matter of Spicer Manufacturing Division of Dana Corporation, 71'N. L. R. B. 1249.

* See Matter of P. Lorillard Company, 73 N. L. R. B. 596, and Matter of J. A. Bi880, Receiver for New Orleans Coal & Bisso Towboat Company, 71 N. L. R. B. 1441. Cf. Matter of Roane-Anderson Company, 71 N. L. R. B, 266.

* See Matter of Keystone Steel & Wire Company, 65 N. L. R. B. 274.

** See Matter of The City Ice and Fuel Company, 73 N. L. R. B. 903 (contract unit combined supervisory and nonsupervisory personnel), and Matter of F. 8. Royster Guano Company, National Utilization Works Division, 71 N. L. R. B. 1465.

* As noted in the Eleventh Annual Report, p. 25 and footnote 89, a self-determination or "Globe" election was first ordered by the Board in Matter of Globe Machine and Stamping Company, 3 N. L. R. B. 294. Under this procedure the Board conducted separate elections among the craft employees and among the remainder of the employees in a larger proposed bargaining unit. In the craft election the employees concerned might indicate on their ballot whether they desired to be represented by the craft union, by the union seeking the larger unit, or by no union. The Board's final unit determination, made after the election had been concluded, depended in part upon the desires of the employees as shown by the balloting.

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dustry in which similar craft units had been established in the same geographical area, the Board usually granted a “Globe” election to the petitioning union if the members of the proposed craft unit had never had an opportunity to vote on the question of separate representation. "Globe" elections were also ordered, as a general rule, where a petitioning union sought to include within the bargaining unit groups of employees who had not previously been a part of that unit

and who had not had an opportunity to select a collective-bargaining representative.80

Another factor influencing the Board's determination of the appropriate unit was the extent of employee self-organization. This circumstance had been effective in the past in establishing the appropriateness of a grouping of employees which was less than the optimum one but was nevertheless feasible for bargaining purposes. The theory expressed in these cases was that it is often desirable in the determination of an appropriate unit to render collective bargaining for the employees involved a reasonably early possibility, lest prolonged delay expose the organized employees to the temptation of striking to obtain recognition and permit unorganized employees engaged in other work tasks to thwart collective bargaining by those who have evinced an interest in selecting a representative. During this fiscal year, in Matter of Garden State Hosiery Co., 74 N. L. R. B. 318, a majority of the Board (Board Member Reynolds dissenting) reaffirmed the doctrine as a factor influencing the determination of the appropriate unit.81 The majority pointed out, however, that extent of organization was never the sole or controlling factor; that additional objective factors must be present in order to prevent the petitioning union from unrestrictedly manipulating the boundaries of the appropriate unit; and that the minimum requirements were that bargaining on a more comprehensive basis must be improbable in the near future and that, as a wholly separate matter, the unit itself must be homogene

** See Matter of International Minerals and Chemical Corporation (Potash Division), 71 N. L. R. B. 878 (electricians); Matter of Trimont Manufacturing Company, 74 N. L. R. B. 959 (die sinkers), Matter of York Corporation, 74 N. L. R. B. 939 (pattern makers) ; Matter of Hooker Electrochemical Company, 74'N L. R. B. 618 (lead burners) ; Matter of The American Fork & Hoe Company, 72 N. L. R. B. 1025 (engineers and firemen).

See in this connection Matter of E. 1. du Pont de Nemours and Company, 73 N. L. R. B. 1167 ; Matter of International Harvester Company (Canton Works), 13 N. L. R. B. 1485, and Matter of Standard Oil Company of New Jersey (Louisiana Division), 72 N. L. R. B. 1389. In all three cases the members of the proposed unit had had an opportunity to vote on separate craft representation. In the first two cited cases the employees involved had several years earlier indicated their preference to be bargained for as part of the more comprehensive unit and bargaining had been actively conducted on that basis ; in the last. mentioned case the employees involved had a little more than a year before voted to constitute themselves a separate unit. In all three cases, the Board found the previously determined unit appropriate, declining to condition its unit finding upon a further self-determination election.

$0 Matter of The Long-Bell Lumber Company, Weed Division, 72 N. L. R. B. 890 ; Matter of The Western Union Telegraph Company, 72 N. L. R. B. 1047.

81 Commenting on this aspect of the case, the majority of the Board said : "It may well be that the unit found herein is not the perfect unit, or the best possible unit, or the ultimate unit. But the statute does not require that it be perfect, or the best possible or the ultimate, it requires only that the unit be 'appropriate.' It must be appropriate to ensure to employees, when each case is decided and not at some unknown date in the distant future, 'the full benefit of their right to self-organization and to collective bargaining.'

At another point in its decision, the majority said: “To refuse ever to apply an extent of organization doctrine would mean that, pending organization of an entire enterprise, working conditions must continue to be fixed by individual bargaining for all, despite the apparent contrary desires of some. All employees would thereby be deprived of an opportunity to observe whether collective bargaining will work well or badly in the enterprise of which they are a part. The problem posed to the Board, therefore, is not whether wages and working conditions shall be uniform throughout an enterprise, but whether individual or collective bargaining should be encouraged. And on that issue the statute impels the choice that we have made."

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