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THIS chapter deals with Board decisions issued during the fiscal
HIS chapter deals with Board decisions issued during the fiscal year ending June 30, 1948, in contested cases arising under section 9 of the act, commonly called representation cases. It was in the representation field that the Board first had occasion to interpret and apply extensively the new provisions contained in the Labor Management Relations Act of 1947. This was partly because the filing requirements imposed upon unions under section 9 (f), (g), and (h) of the amended act were deemed to be immediately applicable, on and after August 22, 1947, when the amendments became effective, to unions involved in all representation cases then pending. Apart from these filing requirements, the Labor Management Relations Act of 1947 added more ew matter to section 9 than it altered or repealed, so that most of the practices and principles of decision previously established by the Board in the administration of that section remained unaltered. However, the amendments created four new categories of cases under section 9, thus materially increasing the volume of the Board's work. And the new statutory provisions brought about certain other important changes, both substantive and procedural, affecting the disposition of representation cases.
As in the past, representation proceedings, which are not adversary in character, are instituted by petition. But, whereas before the 1947 amendments the Board declined to entertain petitions filed by employees seeking to escape representation by a labor organization or other representative previously designated, that negative type of representation proceeding, known as a "decertification” case is now specifically authorized by section 9 (c) (1) (A) (ii). In addition, under section 9 (c) (1) (B), an employer's petition is now entertained when only one union has sought recognition as the collective bargaining agent of the petitioner's employees. Formerly, by rule, the Board entertained an employer petition only when “two or more labor organizations"'' had asserted conflicting claims to recognition as bargaining agent. In these decertification and employer-petition cases, as well as in the traditional type of representation case, now covered by section 9 (c) (1) (A) (i) of the act, where a labor organization or other employee representative seeks to be certified as the statutory bargaining agent of employees, the basic issue is whether a question of representation exists. If there is such a question, the Board's statutory function is to conduct an investigation, determine the appropriate bargaining unit of employees, and provide for an election for the purpose of ascertaining what union or other representative, if any, is desired as collective bargaining agent by a majority of the employees in the unit. The proceeding terminates either in a certification of the results of the election or an order dismissing the petition.
1 A few cases decided between July 1 and August 21, 1947, the day before the amended act became effective, appear in vol. 74 of the N. L. R, B. Reports. For the most part, cases referred to in this chapter were decided after August 22, 1947, and are reported in yols. 75, 76, and 77 N. L. R. B. A few noteworthy cases decided during the first 4 months of the new fiscal year (through October 1948) are also cited.
The Board commented at some length upon this and other differences between representation proceed, ings and unfair labor practice proceedings in Matter of Stokely Foods, Inc. (78 N. L. R. B. 842), decided after the close of the fiscal year. 3 See Matter of Tabardrey Manufacturing Co. (61 N. L. R. B. 246 (1943)). * See Rules and Regulations Series 4 (effective September 11, 1946), secs. 203.47 (b) and 203.49.
Two other new types of cases are the so-called union-authorization and deauthorization proceedings provided for in section 9 (e) of the act. They are not, in the true sense, “representation" cases, for the essential condition is that there be no question of representation. In these proceedings, the issue, which is determined by an election, is whether or not a majority of the employees in a bargaining unit desire to authorize their representative, whose status as such has been previously established, to enter into a union-shop contract with the employer, or to revoke such authorization previously conferred. The petition for authorization to make a union-shop contract is filed, under section 9 (e) (1), by the labor organization which is the statutory representative. A petition to revoke such authorization, under section 9 (e) (2), is filed by employees in the bargaining unit covered by a valid union-shop contract. Despite certain superficial similarities between these section 9 (e) cases and those arising under section 9 (c), the union authorization proceedings present many special problems. They will therefore be discussed under a separate topic heading below.
Certain aspects of the mechanics of handling representation cases, formerly within the Board's discretion, are now fixed by statute. Section 9 (c) (1), as amended, prescribes in part that upon the filing of a petition, the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.
This statutory language codifies the Board's long-time practice of having a petition investigated administratively in the regional office before a hearing is scheduled. It abolishes, however, a practice instituted in 1945, of permitting the regional director in appropriate circumstances to conduct the election, upon due notice to the parties, before holding the hearing. Moreover the Board's former discretionary power to utilize methods other than the secret-ballot election in ascertaining representatives is now limited by the statutory mandate to conduct an election if a question concerning representation is found to exist.? Finally, although section 9 (c) (1) codifies the Board's routine practice of having the hearing in an ordinary representation case conducted by an employee attached to the regional office where the case arose, the statute now specifies that this hearing officer "shall not make any recommendations" to the Board. Accordingly, since the amendments went into effect, hearing officers' informal reports to the Board in representation cases have contained no recommendations as to how the issues should be resolved.
: If a majority of employees voting in the election designate a union or other representative which is eligible for certification, the Board issues its certificate declaring that the representative so selected is the exclusive bargaining agent under sec. 9 (a) of the act of all the employees in the specified unit.
* See Tenth Annual Report, p. 15, on prebearing elections.
The other new statutory provisions affecting representation proceedings concern: the disabilities imposed upon labor organizations which fail to comply with the filing requirements contained in section 9. (f), (g), and (h) of the act; certain limitations upon the Board's discretion in fixing the appropriate bargaining unit, contained in section 9 (b) and section 9 (c) (5); and other limitations upon the Board's discretion with respect to the standards to be applied in determining whether or not a question of representation exists, the frequency with which elections may be conducted, the eligibility of strikers to vote in elections, and the form of ballot to be used in runoff elections, contained in section 9 (c) (2) and (3). In addition, section 2 of the act as amended contains certain changes in the definitions of “employers” and “employees” in subsections (2) and (3), respectively, and there are new statutory definitions of supervisors and professional employees, respectively, in subsections (11) and (12).
The remainder of this chapter is devoted primarily to discussion of the new developments in the representation field resulting from these amendments. Previously established rules and policies which were not altered, extended, or qualified during the 1947-48 fiscal year, either by the 1947 amendments or by Board decision, are not fully restated.
2. The filing requirements The Board is expressly prohibited from investigating any questions concerning representation, and from processing any requests for a union-shop referendum, raised or submitted by a labor organization which is not in compliance with the filing requirements contained in section 9 (f), (g), and (h) of the act. These subsections require, in general, that a labor organization desiring to invoke Board process must file with the Secretary of Labor certain financial and other data, and must also file with the Board "non-Communist affidavits” by its officers. More specifically, section 9 (h) provides that "each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit shall file with the Board affidavits attesting 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." Section 9 (f) provides that unions must file with the Secretary of Labor detailed reports concerning their structure, finances, and conditions of membership, and furnish to all of their members copies of certain
? In practice, however, the election was the method almost invariably utilized by the Board in contested cases ever since 1939. See Matter of Cudahy Packing Co. (13 N. L. R. B. 526).
The Tenth, Eleventh, and Twelfth Annual Reports contain a full statement of this existing body of doctrine.
financial data. Section 9 (g) requires that these reports be kept up to date "annually."
Because these filing requirements are made conditions precedent to processing a case, the Board had to determine very early in the fiscal year the precise impact of section 9 (f) and (h) upon matters already pending fore it at various stages on August 22, 1947. In Matter of Rite-Form Corset Co., Inc. (75 N. L. R. B. 174), decided November 4, 1947, the Board indicated that it would halt all further action in representation cases filed before the effective date of the amendments, where the petitioner had failed to comply with section 9 (f) and (h) of the act. It construed these provisions "as precluding it not only from initiating investigations after the effective date of the amendments, but also from continuing investigations of questions concerning representation which were pending before the Board when the amendments became effective. This is so because every step in a proceeding initiated under section 9 (c)—the preliminary administrative review of the facts, the hearing, the Board decision and direction, the election itself, and the proceedings on challenges and objections, constitute investigation of the question within the meaning of 9 (f) and (h).” 10 This was followed by the Board's related holdings that it would not certify a noncomplying union which had won an election, but was not yet certified, before the effective date of the amended act, that it would not place a noncomplying union on the ballot, as intervenor, in an election held upon the petition of a complying labor organization, even though its intervention was otherwise proper;13 and that it would likewise refuse a place on the ballot to a noncomplying intervenor in an election initiated by an employer's petition."
The board has, however, dealt otherwise with a petition for decertification, where employees seek to decertify or unseat an incumbent noncomplying union. Thus, in Matter of Harris Foundry & Machine Co. (76 N. L. R. B. 118), the Board held that it must place the noncomplying union on the ballot, lest the labor organization's own dereliction, in failing to comply, immunize it against decertification. In
• Recently, the United States Supreme Court upheld the constitutionality of sec. 9 (f) and (g), Anding it unnecessary to pass upon the constitutionality
of sec. 9 (h) which the
majority of the lower court had also held to be constitutional. National Maritime Union v. Herzog (68 S. Ct. 1529) affirming pro tanto 78 F. Supp. 146. A majority of another three-judge statutory court also upheld the constitutionality of sec. 9 (h) in Wholesale and Warehouse Workers Union Local 65 v. Douds (22 L, R. R. M. 2276 (8. D. N. Y. 1948)), as did the majority of the court in Inland Steel Co. v. N. L. R. B. (22 L. R. R, M. 2507 (C. C. A. 7)).
10 See also Matter of Monumental Life Insurance Co. (75 N. L. R. B. 776); Matter of Hardwicke-Etter Co., (75 N. L, R. B. 992).
" Matter of Myrtle Desk Co. (75 N. L. R. B. 226) (the noncomplying petitioner won the election, but th: Board rejected the contention that certification is a ministerial act and does not involve the exercise of discretion); Matter of Colonial Radio Corp. (75 N. L. R. B. 228) (the noncomplying intervenor won the election).
Compare however, Matter of J. Freezer & Son, Inc., (75 N. L. R. B. 646), in which the Board refused to rescind a certificate issued before the amended act went into effect because the certified union had not thereafter complied with the filing and affidavit requirements of the amended act. The Board relied on sec. 103 of the amended act, which protects any certificate issued before the effective date of the statute until 1 year after its issuance.
12 Matter of Sigmund Cohn Manufacturing Co., Inc. (75 N. L. R. B. 177); Matter of Wilson Transit Co., (75 N. L. R. B. 181).
However, where compliance is effected subsequent to a direction of election, but in advance of the election, the Board will permit a union to appear on the ballot. Matter of Omar, Inc. (76 N. L. R. B. 955).
13 In order to intervene in such cases, a noncomplying union must have a current contractual interest in the employees; and then it may intervene for all purposes. Matter of Schneider Transportation Co. (76 N. L. R. B. 870); Matter of American Chain & Cable Co. (77 N. L. R. B. 850); Matter Of Precision Castings Company, Inc. (77 N. L. R. B. 261); Matter of Campbell Soup Co. (76 N. L. R. B. 950).
14 Matter of Herman Lowenstein, Inc. (75 N. L. R. B. 377). This ruling would require the dismissal of the petition is only one union is involved, and it is not in compliance. However, inasmuch as one of the two unions in the cited case was in compliance, the Board proceeded to an election, putting only the complying union on the ballot. Although the employer invokes the procedures of the act, the overriding consideration In this type of case, the Board holds, is that the question concerning representation is "raised by the union's "claim" of majority representation, and noncompliance should therefore be a bar to placing it on the ballot. 14 Matter of Magnesium Casting Co. (77 N. L. R. B. 1143) (the noncomplying union was permitted to file objections to the conduct of the decertification election in which it was involved). 19 The Board will, of course, certify the union if, by the time it wins the election it is in compliance with 18 This language is substantially identical in each of the subsecs. 9 (1). (g), and (h).
this type of case, because it is the petitioning employees, not the labor organization, who raise the question concerning representation, the Board is not precluded by the noncompliance of the incumbent union from investigating the question.15 Although the noncomplying union is thus accorded the status of a party to the proceeding, & its participation in the election is subject to the proviso that, if it wins the election, the Board will merely certify the arithmetic result.17
Even before it had fully interpreted the provisions of section 9 (f), (g), and (h) with respect to the disabilities imposed upon noncomplying labor organizations, the Board had to determine certain questions as to how compliance with the filing requirements is effected. In Matter of Northern Virginia Broadcasters, Inc., Radio Station WARL (75 N. L. R. B. 11, decided October 7, 1947), the first of these questions was presented on appeal from a regional director's dismissal of a petition filed by a local of the International Brotherhood of Electrical Workers, an A. F. of L. affiliate. Both the petitioning local and the International Brotherhood itself had filed the affidavits and reports specified in section 9 (f) and (h), but the American Federation of Labor had not yet done so. The issue was whether or not the parent federation itself must have satisfied the filing requirements before the petition could be processed. Resolution of this issue turned upon the meaning of the statutory phrase specifying that the requisite reports and affidavits shall be filed, not only by the labor organization filing a charge, raising a question concerning representation under section 9 (c) of the act, or filing a petition for a union-shop referendum under section 9 (e) (i), but also by “any national or international labor organization of which such labor organization is an affiliate or constituent unit.” 18 In accordance with the General Counsel's interpretation of this language, the regional director had dismissed the petition, on the theory that the American Federation of Labor was a "national or international labor organization," of which the petitioning IBEW local was an affiliate or constituent unit” within the meaning of the statutory requirement.
A majority of the Board (Member Gray dissenting) reversed this ruling and ordered the petition reinstated. Three members of the majority (Chairman Herzog and Members Houston and Reynolds), rested their decision on the ground that the phrase“ national or international labor organization” refers, in ordinary labor parlance, to labor organizations such as the International Brotherhood of Electrical Workers, rather than to parent federations such as the AFL and CIO. They held that the fundamental purpose of Congress in enacting these provisions--to eliminate Communist influence from the labor movement of the United States—would be substantially defeated by holding that "if one officer of the AFL or CIO fails to comply, not a single complying local or international union within that federation can derive any benefit from its own clean hands.” In his separate concurrence, Board Member Murdock found more persuasive, in reaching the same result, (1) that the parent federation did not in this case meet the test laid down in the act's definition of a labor organization; 15 Compare in this connection, footnote 14 supra.
sec. 9 (1), (g), and (h) of the act.