ous, identifiable, and distinct.82 Board Member Reynolds, in his dissenting opinion, took the position that the application of this doctrine, in addition to impairing industrial stability, resulted in the rejection of the principle of majority rule in that it allowed "gerrymandering" by the petitioning union so as to establish a unit in which it could win an election.

84

As already noted, the Board sometimes found units appropriate which went beyond the confines of the employees of a single employer. It had established single units of employees of independent and competing employers if it appeared that the employers, either as members of an employer association or otherwise, had in practice handled their labor relations jointly and had demonstrated by customary adherence to uniform labor agreements resulting therefrom that they desired to be bound by group rather than individual action.83 The Board, however, recognized the right of a member of such a group to withdraw from that type of bargaining. In this connection, it found appropriate a unit confined to the employees of one such employer provided that the employer in question demonstrated an intent to pursue an individual or separate course with reference to his labor relations. However, this was not to say that the Board would always refuse to find a multiple employer unit appropriate in a situation where the constituent employers who had functioned jointly in the past oppose such a finding. Thus, in two cases generally designated as Matter of Waterfront Employers Association of the Pacific Coast et al., 71 N. L. R. B. 80 and 71 N. L. R. B. 121, the Board held, despite contentions to the contrary by employer associations and by many of their member companies that they did not wish to bargain on a multiple employer basis, that it was empowered under the act to find multiple employer units, appropriate, and that the circumstances justified exercise of that power. In both cases, the employer associations, by their activities, were found to have brought themselves within the statutory definition of employer. Further, the state of organization of the associations and the union involved, as well as the character of their activities, showed that adequate machinery for the conduct of multiple employer bargaining existed.

The past fiscal year saw the Board continue its policy of according to foremen and other supervisory employees the right to bargain collectively in accordance with the provisions of the act. Although the principles established during the course of the prior two fiscal years remained unchanged, the Board was, for the first time, unanimous in holding that it would direct an election in which supervisors sought representation by a union not affiliated with the union representing

85

See also Matter of Chadbourne Hosiery Mills, Inc., 74 N. L. R. B. 333; Matter of Waldensian Hosiery Mills, Incorporated, 74 N. L. R. B. 315 and Matter of Nebel Knitting Company, 74 N. L. R. B. 310.

Cf. Matter of Hudson Hosiery Company, 74 N. L. R. B. 250, in which Chairman Herzog and Board Member Houston differed as to the applicability of the extent of organization doctrine to the facts of that case. The Chairman held that it should not be applied.

Matter of T. C. King Pipe Company et al., 74 N. L. R. B. 468, cf. Matter of Foreman & Clark, 74 N. L. R. B. 77, and Matter of Martinolich Shipbuilding Company, et al., 73 N. L. R. B. 1304. Cf. also Matter of California Metal Trades Association, 72 N. L. R. B. 624, in which the employer association's power to bind its members to collective bargaining agreements stemmed not from mere membership in the association but from powers of attorney. Under these circumstances the unit was limited to those member firms which had delivered outstanding powers of attorney to the association before the execution of the last master contract, thereby properly indicating their desire to be part of the associationwide unit.

Matter of Canada Dry Ginger Ale, Incorporated, 73 N. L. R. B. 460, and Matter of General Baking Company (Bond Plant), 73 N. L. R. B. 44. * See Eleventh Annual Report, p. 26 ff, and Tenth Annual Report, p. 30 ff.

the rank and file employees. However, only a majority of the Board (Board Member Reynolds dissenting) continued to hold that it would direct an election in which the supervisors sought representation by a labor organization which was affiliated with, or identical to, the union which represents the rank and file employees. Similarly, the Board continued its adherence to its established policy of excluding supervisory employees from bargaining units comprised of nonsupervisory employees.

91

88

87

The Board also continued to exclude from bargaining units of other employees, confidential personnel and managerial employees.89 With respect to office clerical and technical employees it generally excluded these employees from production and maintenance units, absent cogent reasons to the contrary.90 However, in view of their mutuality of interests, plant clericals were normally included in such units. In the latter connection, during the past fiscal year the Board reversed its policy of excluding timekeepers from production and maintenance units, holding, in Matter of Northwest Engineering Company, 73 N. L. R. B. 40, that, inasmuch as timekeepers "perform essentially the same functions as other factory clerical employees," they could be properly included in production and maintenance units.92 With regard to inspectors, the Board continued to hold that they generally could be included in the same unit as production and maintenance workers.93 As to nonmonitorial guards, the Board held during the fiscal year that they might properly be included in production and maintenance units. And, as to guards who performed monitorial functions, the Board continued the practice of not permitting their inclusion in the same unit with production and maintenance employees, but of approving their representation in a separate unit.

94

86 Matter of Chicago Pneumatic Tool Company, 72 N. L. R. B. 7. In Packard Motor Car Company v. N. L. R. B. 67 S. Ct. 789, decided this year, the Supreme Court of the United States upheld the Board's position that supervisory personnel are "employees" as defined by the act, and, as such, are entitled to be bargained for collectively in an appropriate unit by a union organized exclusively to represent supervisory employees. The amended statute, however, removes the Board's power to find units of supervisors appropriate.

87 Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 71 N. L. R. B. 1261. See also, separate concurring opinion of Board Member Reynolds in Matter of Chicago Pneumatic Tool Company, supra.

68 See Eleventh Annual Report, pp. 31 and 32.

89 Matter of Continental Oil Company, 74 N. L. R. B. 116 (confidential employees); Matter of The Firestone Tire and Rubber Company, 73 N. L. R. B. 691 (confidential employees); Matter of Continental Can Company, Inc. (Mono Container Division), 74 N. L. R. B. 351 (managerial employees); Matter of Sheffield Farms Company, Inc., 73 N. L. R. B. 572 (managerial employee).

Matter of Blue Star Airlines, Inc., 73 N. L. R. B. 663 (office clericals); Matter of Shell Oil Company, Incorporated, 72 N. L. R. B. 516 (office clericals); Matter of Continental Motors Corporation, 73 N. L. R. B. 888 (technical employees); Matter of West Engineering Company, 74 N. L. R. B. 36 (technical employees). The Board established technical employees in a separate unit from office clericals where there was opposition to their merger. Matter of The Adams & Westlake Company, 72 N. L. R. B. 726.

91 Matter of W. C. Norris Manufacturer, Inc., 73 N. L. R. B. 838. Plant clericals, however, were excluded from a production and maintenance unit when all parties agreed to such exclusion. Cf. Matter of Grand Central Airport Company, 70 N. L. R. B. 1094.

82 See also Matter of Purolator Products, Inc., 73 N. L. R. B. 1075, in which the Board, over objection, granted the petitioner's request to include timekeepers in a plant clerical employees' unit.

93 Matter of William C. Meredith Company, Inc., 74 N. L. R. B. 1064; Matter of Russell Electric Company, 72 N. L. R. B. 278. See also, Matter of Luminous Processes, Inc., 71 N. L. R. B. 405, in which a majority of the Board (Board Member Reynolds dissenting) held that the fact that inspectors had authority to reject and, in certain instances, to report on defective work and thereby affect the earnings and status of those inspected was insufficient to warrant excluding them from the unit embracing the inspected employees. 94 Matter of John Deere Dubuque Tractor Company, 72 N. L. R. B. 656. The Board has, however, excluded plant-protection employees with purely custodial duties from units of production as distinguished from production and maintenance units. Matter of D. O. Frost Co., 72 N. L. R. B. 900; cf. Matter of the Packers Association of Chicago, et al., 73 N. L. R. B. 627.

However, only a majority of the Board (Board Member Reynolds dissenting) continued to hold that guards may choose as their bargaining agent the same union which represents the production and maintenance employees.95

The postwar program saw many veterans engaged in production work under the terms of the "on the job" training program of the Veterans' Administration. The status of these individuals, generally referred to as GI trainees, was considered by the Board in a number of cases. The Board, over objection, held to the view that there was a sufficient community of interest between these and other production employees to warrant their inclusion in the same unit where they were paid on a comparable basis, were obliged to conform to plant rules as to conduct and work requirements, and had a reasonable expectation of eventually becoming regular employees.

96

See dissenting opinion of Board Member Reynolds in Matter of Monsanto Chemical Company, 71 N. L. R. B. 11, in which he pointed to the danger of conflicting loyalties as militating against the representation of monitorial guards by a union which has either legal or factual association with the one representing the employees whom the guards police; and in which he construed sec. 9 (c) of the act as permissive rather than mandatory. See also Matter of Bethlehem Steel Company, 73 N. L. R. B. 277; Matter of A. S. Campbell Company, Inc., 71 N. L. R. B. 753.

Matter of General Motors Corporation, Fisher Body-Ternstedt Division, 74 N. L. R. B. 28, and Matter of Westbrook Manufacturing Company, 72 N. L. R. B. 851. Cf., however, Matter of The American Rolling Mill Company, 73′N. L. R. B. 617, in which co-op students, also former "GI's," who were not "steady" employees and whose employ was merely incidental to their education, were excluded from the appropriate unit.

THE NATIONAL LABOR RELATIONS ACT IN PRACTICE:

SECTIO

UNFAIR LABOR PRACTICE CASES1

ECTION 7 of the National Labor Relations Act guarantees to employees the right to organize, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for their mutual aid and protection. Prior to amendment, section 8 made it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; to dominate or interfere with the formation or administration of any labor organization or to contribute financial or other support to it; to encourage or discourage membership in any labor organization by discriminating in regard to hire, tenure, terms, or conditions of employment, except that it was not unlawful for closedshop or similar types of contracts to be executed under certain conditions; to discriminate against an employee because he has filed charges or given testimony under the act; and to refuse to bargain collectively with the representatives duly designated by a majority of the employees in an appropriate unit. Some of these provisions remained unaffected by the 1947 amendments.

Following is a brief resume of the more significant unfair labor practice cases decided by the Board from July 1, 1946, to August 22, 1947.2

INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED BY THE ACT

3

Section 8 (1) of the act forbids employers to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.

Because it is general in character, this was the provision of the act, as to which violations were most frequently alleged and found. The kinds of unlawful employer conduct intended or tending to influence employees' self-organizational activities ranged from the direct to the indirect or subtle. The cases decided during the past fiscal year illustrate that diversity. Some examples of such illegal employer conduct

1 The Labor Management Relations Act, 1947, became law on June 23, 1947, but did not become fully effective until August 22, 1947, after the close of the fiscal year. Consequently, the Board's decisions during the 1946-47 fiscal year do not reflect the changes made in the National Labor Relations Act by the new law. Board Member Reynolds participated in no decisions issued before August 27, 1946.

This report covers cases beyond the close of the fiscal year on June 30, in order to give a full picture of the Board's decisions down to the effective date of the new amendments (through vol. 74, N. L. R. B.). For specific decisions and details of established fundamental principles, see the individual volumes of the Board's Decisions and Orders and previous annual reports.

Sec. 8 (a) (1) of the act as amended by the Labor Management Relations Act, 1947. 24

10

6

were: threats of economic reprisals, promises of economic benefits," grants of economic benefits, interrogation as to union membership and activities, surveillance, physical assault on a union organizer by a supervisor, discrimination in favor of one of two competing unions, conducting elections to determine employees' choice of bargaining representatives," soliciting individual strikers to return to work in disregard of their union,12 purportedly discharging strikers as a tactical maneuver to break a strike, purportedly leasing plant property to another person to frustrate the union's attempts to bargain, and helping employees in the preparation and execution of affidavits by which the employees repudiated their bargaining representative.15 Of course, in many other cases allegations of violation of section 8 (1) were dismissed by the Board after hearing.

After the Supreme Court's decision in the Republic Aviation and Le Tourneau cases, it was held that a company rule against union solicitation on the employer's property during the employees' own time is invalid. In a number of cases decided during the past fiscal year, the Board had occasion to reenunciate that doctrine.17 Not only was the promulgation of such a no-solicitation rule held invalid, but its discriminatory enforcement was also ruled unlawful.18 Other employer practices unreasonably limiting the use of their property for union organizational purposes have also been held unlawful. For example, the refusal to permit a union meeting in the only meeting hall in a town owned by the employers,19 and a company rule limiting access of union representatives to a lumber camp, where the employees lived and worked, to 21⁄2 hours per week and further limiting the place

See, for example, Matter of Keith Furnace Company, 73 N. L. R. B. 754; Matter of Ford Brothers, 73 N. L. R. B. 49; Matter of The Pure Oil Company, 73 N. L. R. B. 1; Matter of Bergmann's Inc., 71 N. L. R. B. 1020.

5 See cases cited in footnote 4, supra.

Matter of Hudson Hosiery Company, 72 N. L. R. B. 1434. But wage increases granted for economic reasons unconnected with the organizational activities then proceeding were held lawful. Matter of Heisler Manufacturing Company, 71 N. L. R. B. 1114; Matter of William B. Huffman d/b/a Radio Station WFHR, 71 N. L. R. B. 518.

See, for example, Matter of Southshore Packing Corporation, 73 N. L. R. B. 1116; Matter of Montgomery Hardwood Flooring Company. Inc., 72 N. L. R. B. 113; Matter of American Gear & Mfg. Co., 69 N. L. R. B. 663. However, where the questioning occurred after the filing of an unfair labor practice charge, was for the purpose of enabling the employer to prepare its case for trial, and was limited to the issues raised by the charge, it was held lawful in Matter of May Department Stores Company, 70 N. L. R. B. 94. Compare this case with Matter of Bausch & Lomb Optical Company, 69 N. L. R. B. 1104.

Matter of Sewell Manufacturing Company, 72 N. L. R. B. 85; Matter of Clark Bros. Co., Inc., 70 N. L. R. B. 802, enf'd 163 F. 2d 363 (C. C. A. 2); cf. Matter of Boreva Sportswear, Inc., 73 N. L. R. B. 1048; Matter of May Department Stores Company, 70 N. L. R. B. 94, enf'd 162 F. 2d 247 (C. C. A. 8).

Matter of Arton Studios, Incorporated, 74 N. L. R. B. 1158.

19 Matter of Califruit Canning Company, 73 N. L. R. B. 290; Matter of Cannon Manufacturing Corporation, 71 N. L. R. B. 1059: Matter of Capolino Packing Corporation, 71 N. L. R. B. 1003; Matter of 1. Spiewak & Sons, 71 N. L. R. B. 770; Matter of Winona Knitting Mills, Inc., 70 N. L. Ř. B. 612.

"Matter of Parkside Hotel, 74 N. L. R. B. 809; Matter of Southshore Packing Corporation, 73 N. L. R. B. 1116; Matter of Louisville Railway Company, 69 N. L. R. B. 691. 12 Matter of Athens Manufacturing Company, 69 N. L. R. B. 605, enf'd 161 F. 2d 8 (C. C. A. 5); Matter of I. Spiewak & Sons, 71 N. L. R. B. 770; cf. Matter of Roanoke Public Warehouse, 72 N. L. R. B. 1281; Matter of Times Publishing Company, 72 N. L. R. B. 676.

13 Matter of Roanoke Public Warehouse, 72 N. L. R. B. 1281.

14 Matter of Victory Fluorspar Mining Company, 72 N. L. R. B. 1356. The employer's conduct also violated sec. 8 (5).

15 Matter of Keith Furnace Company, 73 N. L. R. B. 754.

16 Republic Aviation Corporation v. N. L. R. B.; N. L. R. B. v. Le Tourneau Company of Georgia, 324 U. S. 793.

Matter of Tomlinson of High Point, Inc., 74 N. L. R. B. 681; Matter of Lindley Box & Paper Company, 73 N. L. R. B. 553; Matter of La Salle Steel Company, 72 N. L. R. B. 411: Matter of Cannon Manufacturing Corporation, 71 N. L. R. B. 1059.

18 Matter of Lindley Box & Paper Company, 73 N. L. R. B. 553.

19 Matter of Stowe Spinning Company, 70 N. L. R. B. 614.

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