(2) that Congress by its express language in section 9 "unquestionably meant the one national or international union with which a petitioning local might be affiliated. It did not mean all the organizations which could be literally described as national or international organizations, of which the petitioning local could be considered a constituent unit including both the A. F. of L. and the ILO in the case of A. F. of L. locals" [italics in original]; and (3) that to uphold the alternative interpretation would contravene the rule that "a provision of a statute must be interpreted with reference to its general purposes 'and so as to subserve' them rather than to defeat them." However, Board Member Gray took the view in his dissent that the AFL clearly falls within the meaning of the statutory language" under consideration and that, since "the AFL may exercise direct and influential control over its constituent unions in important respects" and "the AFL officers occupy a strategic position to affect the economic life of the nation, * it is inconceivable that Congress was not concerned with the Communist affiliation of the officers of the AFL and CIO in accomplishing its intended purposes of purging labor of Communist influence."

Subsequent decisions pointed out, however, that either the AFL or the CIO may be subject to the filing requirements of the act when, in a particular situation it exists for the purpose of dealing with an employer in collective bargaining and it seeks recognition for such purpose, or when it organizes and grants charters to directly affiliated local and Federal labor unions, and there is no intervening national or international union with which the local is affiliated.19

Although the Board itself, rather than the Secretary of Labor, has the responsibility, under section 9 (h), of receiving the non-Communist affidavits filed by the officers of labor organizations, and of determining administratively 20 whether or not labor organizations are in compliance with this section,21 it does not investigate the authenticity or truth of the affidavits which are filed. The Board has pointed out 22 that persons desiring to establish falsification or fraud have recourse to the Department of Justice for a prosecution under section 35 (a) of the criminal code. Accordingly, the Board does not investigate or pass upon the question, for example, whether a union in a given case may have acted with a purpose to frustrate congressional intent in effecting constitutional changes or otherwise abolishing offices so as to relieve certain individuals of the necessity of filing affidavits. If the persons who are, in fact, formally entitled "officers" of a labor organization have filed the proper affidavits, that organization is deemed to be in compliance with section 9 (h) so far as Board proceedings are concerned.

But the Board will prevent noncomplying unions from evading

19 Matter of S. W. Feans & Son (75 N. L. R. B. 811); see also Board Member Murdock's special concurrence in Matter of Northern Virginia Broadcasters, Inc., Radio Station WARL, supra, and Matter of Schenley Distilleries, Old Quaker Division (77 N. L. R. B. 468), as to the relationship between a Federal labor union and the AFL.

10 The Board does not permit the parties in a case before it to litigate the compliance status of any participating union. Like the question of prima facie showing of interest (discussed below) this is a matter to be determined administratively. See Matter of Lion Oil Co. (76 N. L. R. B. 565); Matter of Ironton Firebrick Co. (76 N. L. R. B. 764).

21 For this purpose the Board requires that there be filed with it, in addition to the statutory affidavits, an affidavit by an authorized representative of each labor organization "listing the titles of all offices of the organization and stating the names of the incumbents, if any, in each such office and the date of expiration of each incumbent's term." See Rules and Regulations, Series 5, sec. 203.13 (b) (1).

22See its Order Denying Motion in Matter of Craddock-Terry Shoe Corp. (76 N. L. R. B. 842).

the provisions of section 9 (h) by acting through individuals, purporting to serve as employee representatives,23 who are exempted from the filing of non-Communist affidavits. In Matter of Campbell Soup Co. (76 N. L. R. B. 950), the first such decision, the Board held improper the intervention by an individual in certification proceeding because she was, in fact, an agent or "front" for a noncomplying union which itself had no right to intervene.25

The Board will also prevent noncomplying locals from circumventing the filing requirements, and deriving the benefits of statutory proceedings, by acting through their complying nationals or internationals. The Board's position in this respect has been set forth in a line of cases involving petitions filed by international unions. In Matter of Warshawsky Co. (75 N. L. R. B. 1291), the Board held that the local union need not comply because its compliance status was "not in issue in this proceeding." The Board relied on the fact that there was nothing in the record to indicate that the international union was acting other than for itself. However, a different result was reached in later cases, where the record indicated that the petitioner was seeking to secure Board certification in behalf of a noncomplying local. In Matter of U. S. Gypsum (77 N. L. R. B. 1098), the Board dismissed the petition because it was clear from the fact, among others, that the union's constitution provided that all contracts should be in the name of the local and signed by the local's committee, that the international was seeking bargaining rights, not for itself, but for its local which was not in compliance. Also, in the original decision in Matter of Lane-Wells Co. (77 N. L. R. B. 1051), which was premised on the assumption that the local was not in compliance, the Board dismissed the petition, because the evidence revealed that the noncomplying union had made the original request for recognition of the employer and in other ways established to the Board's satisfaction that the international union was "in reality acting in behalf of" the local union. The Lane Wells case was subsequently reopened, when it appeared that the local union had, in fact, complied at the time of the issuance of the Board's order dismissing the petition. The Board thereupon directed an election, for it was clear that the filing requirements had been satisfied, and other conditions precedent to the conduct of an election had been met.26

22 Sec. 2 (4) of the act reads: "The term 'representatives' includes any individual or labor organization" and sec. 9 (c) (1) (A) provides that a certification or decertification petition may be filed by an employee or group of employees or "any individual or labor organization acting in their behalf." 24 Subsecs. 9 (f), (g), and (h) apply only to labor organizations seeking access to the processes of the Board. See in this connection, Matter of Acme Root Manufacturing Co. Inc. (76 N. L. R. B. 441), wherein an individual petitioning for a decertification election was not required to file a non-Communist affidavit.

25 See also, Matter of Harris Foundry & Machine Co., supra, in which the Board, in a decertification proceeding, entertained a question concerning representation raised "in fact as well as in form" by individuals.

26 79 NLRB, No. 35. At this stage of the proceedings, opinion among the five members of the Board divid ed on the question whether it was proper to place the petitioning international union alone on the ballot. Notwithstanding the local's demonstrated interest in the proceeding it was the international only, not the local, which had sought certification. The majority of the Board (Members Reynolds and Gray dissenting) therefore held that, as the possibility of evasion of the filing requirements had been extinguished, the employees involved in the case had an unconditional right under the statute to vote for the international union petitioner, if they so desired; and the petitioner itself had a right to be certified in its own name, if it won the election. Without passing on the dissenting members' expressed opinion that it is more desirable for employees to be represented by local unions than by internationals, the majority pointed to certain provisions of secs. 1 and 9 (c) of the act to support its view that the Board has no power to restrict employees' choice in this respect. The majority members of the Board also found support for their view in the legislative history of the amendments, pointing out that when the statute was considered by the Congress in 1947, a proposal which would have severely limited the Board's authority to certify national or international labor organizations was debated and rejected.

In accordance with the Board's present practice in instances of division of opinion, the dissenting members in the Lane Wells case have since deemed themselves bound by the majority ruling. See the supplemental decision and direction of election in Matter of Magnolia Petroleum Co. (79 N. L. R. B., No. 126).

811773-49-3

*

3. The question concerning representation

The amendments to section 9 (c) of the act codify the Board's former rule 27 that representation proceedings shall be instituted by petition. Subsections 9 (c) (1) (A) and (B) of the amended act specify in considerable detail the three types of petitions which may be filed in cases looking toward certification or decertification of representatives: (A) by employees, "or any individual or labor organization acting in their behalf," 28 alleging, (i) that they desire to be represented for collective bargaining and "that their employer declines to recognize their representative *") * or, (ii) that "the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in section 9 (a)"; 29 and (B) by an employer alleging that "one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in section 9 (a)." But even though a petition in proper form be filed under section 9 (c) (1), the Board must still determine, as under the act before the amendments, that "a question of representation exists" before it proceeds to an election and certification.30 The Board ordinarily finds that there is a question concerning representation if the employer has refused a union's request for recognition as the statutory bargaining agent or if, in a decertification proceeding, the employees in the unit challenge the representative status of a union which maintains that it is the statutory bargaining agent by virtue of a previous certification or current recognition.32

31

A majority of the members construe the act to mean that the Board's power to proceed to an election in any case under section 9 (c) (1) is dependent upon a finding that the question concerning representation exists at the time when the election is directed.33 Petitions in a number of cases have therefore been dismissed where the union whose claim of representative status had created a question concerning representation withdrew that claim after the petition was filed, or even after the hearing. In Matter of Ny-Lint Tool & Manufacturing Co. (77

27 See, for example, Rules and Regulations, Series 4, effective September 11, 1946, secs. 203.46 and 203.47. 28 But a supervisor may not file a decertification petition, either in his capacity as a representative of the employer, or as an "individual" acting in behalf of employees, for the Board believes that a purpose of the act as amended is to draw a clear line of demarcation between supervisory representatives of management on the one hand and employees on the other. Matter of Clyde J. Merris (77 N. L. R. B. 1375).

29 In Matter of Kraft Foods Co. (76 N.L.R.B. 492), the Board held that a decertification petition signed by a majority of the employees stating that they no longer desired to be represented by the union was adequate. The Board held: "The only assertion required in a decertification petition is that the currently certified or recognized bargaining agent is no longer the agent designated or selected by the majority of the employees in the appropriate unit." Compare Matter of Queen City Warehouse, Inc. (77 N. L. R. B. 268), where a decertification petition was dismissed because the union was neither certified nor currently recognized. 30 Matter of A. Goodman & Son (77 N. L. R. B. 297) (decertification petition dismissed where the union named in the petition did not claim to represent the employees in the unit, nor did the employer recognize it as the representative); Matter of Louella Balierino (77 N. L. R. B. 738) (employer petition dismissed where the union, although it had asked the employer to sign a contract and had attempted to organize the employees, had never expressly claimed to represent a majority of the employees; the Board found that at the hearing the union withdrew any such claim which might have been implicit in its prior conduct.) See also Matter of Ny-Lint Tool & Manufacturing Co. (77 N. L. R. B. 642); Matter of Federal Shipbuilding & Drydock Co. (77 Ñ. L. R. B. 463), and cases cited in footnote 35 infra.

ai But in Matter of Cornell Dubilier Electric Corp. (78 N. L. R. B. 664), decided after the close of the fiscal year, the Board dismissed a union's petition for certification, finding that no question concerning representation existed where the employer did not dispute either the appropriateness of the requested unit or the petitioner's status as majority representative; the only issue was whether or not the employer was under a duty to meet with the petitioner to negotiate a new contract.

32 Cf. Cronin Motor Co., Inc. (77 N. L. R. B. 808).

33 Before it was amended, sec. 9 (c) of the act authorized the Board to investigate and certify representatives "whenever a question affecting commerce arises." As the majority of the Board (Member Reynolds dissenting) pointed out in Matter of Federal Shipbuilding & Drydock Co., infra, the new statutory language (sec. 9 (c) (1)) is: "if the Board finds upon the record that such a question of representation erists, it shall direct an election

[Italics added.]

N. L. R. B., 642), where the petition was filed by an employer, the intervening union, which was the only labor organization involved, had represented the employees for several years, and shortly before the petition was filed it had attempted to negotiate a new contract with the employer. At the hearing, however, it disavowed any present claim to represent the employees in the bargaining unit. Holding that the jurisdictional prerequisite to further proceedings, the existence of a question concerning representation, had been extinguished by the union's disclaimer, the Board majority (Member Reynolds dissenting, Member Gray not participating) ordered the petition dismissed. The majority held that this result was not incompatible with the new statutory right of employers to petition in one-union cases, for, as the opinion stated, "the employer is not injured by dismissal of his petition. It has accomplished its objective in filing the petition-to determine whether or not the union now represents its production and maintenance employees-and, [the employer] is free of any obligation it may have had to recognize the union." The majority opinion in this case also observed that to direct an election in this situation would be a "futile act leading to a purely negative result" and would deprive the employees of an opportunity to select any bargaining representative for an entire year after the election, because of the provisions of section 9 (c) (3) of the amended act.34

* * *

Similarly, in Matter of Federal Shipbuilding & Drydock Co. (77 N. L. R. B. 463), a majority of the Board (Member Reynolds dissenting) dismissed a decertification petition and rescinded a direction of election theretofore issued in the same proceeding, because the only union involved had renounced its bargaining rights after the hearing but before the election. The majority held that the union's disavowal eliminated the question concerning representation and extinguished whatever vitality a certification issued to the union in 1946 might otherwise have had.35 For the same reasons as those deemed controlling in the Ny-Lint and Federal Shipbuilding cases a majority of the Board (Members Reynolds and Gray dissenting) granted the petitioner's request to withdraw his decertification petition in Matter of Underwriters Salvage Co. of New York (76 N. L. R. B. 601) although this request was opposed by the employer.36

For many years it has been the Board's practice to require the petitioning union in a representation case to show, prima facie, that it represented a substantial number of the employees in the bargaining unit for whom it seeks to be certified as representative. Absent that prima facie demonstration that the petitioner's interest was substantial, the Board dismissed the petition in order to avoid the useless

The pertinent portion of this section, discussed below, reads: "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held."

See also Matter of Riggs Optical Co., Consolidated (77 N. L. R. B. 265). Compare Matter of Standard Brands, Inc. (77 N. L. R. B. 992) (question found to exist despite vague and contradictory disclaimer of interest by the union, on the theory that the union might later claim that it had never waived its right to bargain for the employees covered by the petition).

The principal disagreement between the majority and the dissenting members in this case was occasioned by the employer's assertion in its brief that the intervening union, which opposed the petition, had coerced the petitioner into requesting leave to withdraw. The majority pointed out that this assertion was, in effect, an accusation that the union had engaged in an unfair labor practice in violation of sec. 8 (b) of the act as amended; it held that evidence in support of this accusation could not properly be received in a representation proceeding, under the Board's long-standing policy, recently reaffirmed in Matter of Magnesium Casting Co. (76 N. L. R. B. 251), and that an unfair labor practice could not be presumed to have been committed.

expenditure of time and effort involved in conducting an election where there was little likelihood that the petitioner would be designated as majority bargaining representative. The amended act prescribes that employees or their representatives petitioning for certification or decertification under section 9 (c) (1) (A) shall allege that their petition is supported by "a substantial number of employees." The Board views this provision of the statute as codifying its prior practice,37 and as leaving unimpaired the established rule that a petitioner's prima facie showing of interest is to be investigated only administratively by the regional director, and may not be a subject of litigation at the hearing.38 However, the statute makes no reference to a showing of interest in proceedings initiated by an employer petition; a majority of the Board (Member Murdock dissenting) has construed this to mean that no showing is required of the labor organization or organizations claiming a majority in cases where the employer is the petitioner.3

39

.40

Other familiar prerequisites to the resolution of a question concerning representation still obtain, although not similarly codified. Thus the Board will not direct an election where the union seeking the certification lacks the attributes of a bona fide labor organization;4 it will not direct an election where the union will not accord adequate representation to all employees within the appropriate unit, although it will assume, in the absence of evidence to the contrary, an intention by a petitioning union to represent all employees concerned without discrimination; and it is reluctant to entertain proceedings involving a jurisdictional dispute concerning representation between two or more unions affiliated with the same parent organization, but will proceed where the dispute cannot be resolved by submission to the authority of the parent body.42

The Board also continued to invoke the rule that an election will not be delayed merely because of an imminent reduction or expansion in force, unless the change-over will involve material alterations in the character of the bargaining unit, or the adoption of new or materially

37 See, for example, Matter of Consolidated Steamship Co., et al. (75 N. L. R. B. 1254) (petition for certification dismissed where petitioner's showing of interest not sufficient to indicate "a substantial probability that an election conducted in this proceeding would result in the selection of a statutory bargaining representative").

38 Matter of Mascot Stove Co. (75 N. L. R. B. 427); Matter of Burry Biscuit Corp. (76 N. L; R. B. 640); Matter of Colonial Hardwood Flooring Co., Inc. (76 N. L. R. B. 1039); see also Twelfth Annual Report, p. 8, and sec. 202.17 of the Board's Statements of Procedure, which provide, that "in the absence of special factors" a petition must be supported by a 30-percent showing of interest, at least, in order to establish that a "substantial" number of employees have designated the petitioner.

39 Matter of O. E. Felton d/b/a Felton Oil Co. (78 N. L. R. B. 1033). The majority gave effect by this decision to sec. 202.17(a) of the Board's Rules and Regulations, Series 5, effective August 22, 1947. It held that, aside from the fact that nothing in the act or the legislative history of the amendments precludes the Board from adhering to this rule, the rule will best effectuate the intent of Congress in enacting 9 (c) (1) (B), "that employers confronted with a union claim for recognition be afforded an opportunity to ascertain through a Board election the representative status of the union." It added that to "require the petitioning employer to obtain and submit evidence of a union's representative interest in the same manner as other petitioners" would at the very least "require the employer to engage in an unfair labor practice in procuring such data." The dissenting opinion, however would not require the employer to supply the proof as to the union's representation; it would place the burden on the union to appear and support its prior claim of representative status and, absent such proof, would resolve the employer's petition by a finding that the claimant is not the representative of the employees. And, in disagreement with the majority, it finds authority for insisting on a showing being made in "the plain language of 9 (c) (2) which provides that the same rules of decision shall be applied in determining the existence of a question concerning representation irrespective of the identity of the persons filing the petition or the kind of relief sought."

40 Matter of Alaska Salmon Industry (78 N. L. R. B. 185).

41 Matter of NAPA New York Warehouse, Inc. (75 N. L. R. B. 1269); see also Matter of The Baldwin Locomotive Works (76 N. L. R. B. 922) where the Board refused to inquire into the union's constitution, in the absence of proof that the union would not accord effective representation; and Matter of Norfolk Southern Bus Corp. (76 N. L. R. B. 488), where the exclusion by the union of one racial group from membership did not prevent an election, absent evidence that the union would not accord adequate representation to them.

42 Matter of Pacific Car & Foundry Co. (76 N. L. R. B. 32).