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different operations or processes requiring personnel with different job classifications and skills.43 However, section 9 (c) (3)44 has put an end to the prior practice, in situations where less than 50 percent of the anticipated full complement was employed at the time of the election, of providing in the decision that the Board would entertain a new petition 6 months after any certification which might be issued, upon a showing that the unit had expanded to more than twice the number of employees eligible to vote in the election.45

4. The impact of contracts and prior determinations upon a representation proceeding

As in prior years, numerous representation cases were instituted in which the employees involved were covered by an existing contract between the employer and a union other than the petitioner; or in which the employees had, in a Board proceeding, designated another union as their bargaining representative, and a certification of that union was outstanding. In deciding whether a dismissal of the petition or the direction of an election would best effectuate the policies of the act, the Board, as formerly, weighed the interest of the parties and the public in preserving the industrial stability implicit in established bargaining relationships, against the statutory right of the employees freely to select and change their bargaining representative.

In Matter of Snow & Nealy (76 N. L. R. B. 390), the Board enunciated the policy of applying the usual contract bar principles and other rules of decision evolved in prior years, to decertification proceedings. 46 Consequently, whether in certification or decertification proceedings, the Board's general rule continued to be that a valid written collective bargaining agreement, signed by the parties and effective before the petitioner raised a question of representation,*7 extending for a definite and reasonable period, and embodying substantive terms and conditions of employment, constitutes a bar to a petition for an election among the employees covered by such contract until shortly before its terminal date. This rule has equal applicability to newly executed agreements and to those which take effect pursuant to automatic renewal clauses. 48

Conversely, the Board continued to hold that it would not be precluded from proceeding to an election by an oral or unsigned written agreement, or one failing to establish substantive terms and conditions of employment, 50 or one excluding employees in the unit 43 Matter of Allied Container Corp. (76 N. L. R. B. 1186); see Twelfth Annual Report, p. 8 ff. 4 Quoted in footnote 34, supra. 45 in Matter of Western Electric Co., Inc. (76 N. L. R. B. 400), in a comparable situation, the Board directed the usual election, stressing the employer's uncertainty as to when the contemplated expansion would be effected.

49 The Board held that this policy was dictated by sec. 9 (c) (2) of the act, which provides, in part, “In determining whether or not a question of representation affecting commerce exists, the same regulations and rules of decision shall apply irrespective of the identity of the persons filing the petition or the kind of relief sought

67 But it is the execution date, rather than the effective date, which is controlling in the situation where a new contract is executed during the period between “the Mill B date" and the expiration date of a preexisting contract, to be effective upon the expiration of the old contract. See Matter of Sterling Pulp & Paper Co., (77 N. L. R. B. 63). 45 See Twelfth Annual Report p. 9, and Annual Reports referred to in footnote 15 of that Report.

** Matter of Herman Lowenstein Inc. (75 N. L. R. B. 377) (oral agreement); Matter of Kraft Foods Co. (76 N. L. R. B. 492) (oral agreement which was reduced to writing and signed after filing of decertification petition, but was made effective retroactively to date before such filing).

40 Matter of Casteel Distributing Co. et al. (76 N. L. R. B. 153) (recognition agreement providing for closed shop and check-off of union dues and initiation fees, but containing no terms as to wages, hours, or other conditions of employment); Matter of The La Clede Cas Light Co. (76 N. L. R. B. 199) (mere wage agreement); Matter of Federal Shipbuilding & Drydock Co. (76 N. L. R. B. 413) (recognition agreement plus wage classification clauses); Matter of Clyde J. Merris (77 N. L. R.B. 1375) (mere recognition agreement).

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sought,61 or. covering an inappropriate unit of employees.

52 Nor will a contract be an obstacle to an immediate election where the contracting union has become defunct, 53 or where marked changes in circumstances have occurred during the contract term. 54

As to what constitutes a contract term of reasonable duration, the Board during the 1948 fiscal year adhered to its position enunciated last

year, in the Reed Roller Bit case, that “stability of industrial relations can be better served, without unreasonably restricting employees in their right to change representatives, by refusing to interfere with bargaining relations secured by collective agreements of 2 years' duration.55 This principle was further refined in Matter of California Walnut Growers (77 Ñ. L. R. B. 756), by the holding that a 3-year contract term would, in the absence of showing that the term is consistent with custom in the industry involved, be deemed unreasonable. Contracts which are unreasonable in term are, however, held to be a bar during their first 2 years, 57 as are contracts of indefinite duration.58 Contracts

Contracts for a period of less than 2 years constitute a bar for the contract term. And the effectiveness of any contract for bar purposes during such periods, the Board holds, is not impaired by a reopening of the contract, in accordance with a clause permitting such reopening, as to all provisions except the contract termination date. 59

The familiar rule of the Mill B case, as qualified in Matter of General Electric X-Ray Corp.61 and related cases, 62 continues to determine the time when a petitioner must raise the question concerning representation and file its petition in order to forestall a contract, either newly executed or based on an automatic renewal, from operating as

Also unchanged is the rule that a contract constituting a "premature extension" of an earlier contract will not bar a petition filed before the “Mill B date” (the operative date of the automatic

81 Matter of Pittsburgh Plate Glass Co. (76 N. L. R. B. 452). The Board, however, continues to distinguish this type of case from the one in which the contract, instead of excluding the employees from coverage, embodies an undertaking not to seek to organize or represent such employees during the life of the contract. Thus, in Matter of Essex County News Co., Inc. (76 N. L. R. B. 1340) the Board (Board Member Houston also participating, but noting his prior dissent in Matter of Briggs Indiana Corp. (63 N. L. R. B. 1270), dismissed the petition on the ground that the union had agreed not to represent the employees petitioned for during the life of its contract with the employer covering another group of employees. 62 Matter of Indianapolis Power & Light Co. (76 N. L. Ř.B. 136).

53 Matter of Riggs Optical Co. Consolidated (77 N. L. R. B. 265); Matter of A. Goodman & Son (77 N. L. R. B. 297); Matter of Moore Drydock Co. (77 N. L. R. B. 1431),

64 Matter of River point Finishing Co. (77 N. L. R. B. 1048) (where the employer closed the plant cov. ered by the contract and began operations at a new location with new employees). Matter of Dazey Corp. (77 N. L. R. B. 408) (where a plant-wide contract was executed when the complement in the department petitioned for was not representative in skills and was expanding).

85 Matter of Reed Roller Bit Co. (72 N. L. R. B. 927); cf. Matter of Acme Boot Manufacturing Co. (76 N. L. R. B. 441) in which the Board held this rule to be inapplicable to Board certifications (discussed infra).

88 In the cited case, the presumption of unreasonableness, urged by the petitioner, was overcome by the facts in the record, and the contract was held to be a bar.

87 This corollary to the Reed Roller Bit case was first set forth in Matter of Puritan Ice Co. (74 N. L. R. B. 1311), involving a 4-year contract.

58 Matter of Shaeffer Body Inc. (78 N. L. R. B. 1247), also see Twelfth Annual Report, p. 10. Cr. Matter of Wisconsin Telephone Co. (75 N. L. R. B. 993) (contract terminable at will held not to be a bar at any time).

$Matter of Beattie Manufacturing Co. (77 N. L. R. B. 361); Matter of California Walnut Growers Association (77 N. L. R. B. 756); cf. Matler of Indianapolis Power & Light Co. (76 N. L. R. B. 136). See also Twelfth Annual Report, p. 11. 60 Matter of Mill B Inc. et al (40 N. L. R. B. 346). 61 67 N. L. R. B. 997. 62 See Eleventh Annual Report, p. 15 ff; Twelfth Annual Report, p. 11 ff. 63 Matter of Esser County News Co., Inc. (75 N. L. R. B. 697); Matter of The Standard Oil Co. (Ohio) (77 N. L. R. B. 735). Compare Matter of Dunbar Glass Corp. (77 N. L. R. B. 742) and Matter of Manhattan Coil Corp. (79 N. L. R. B. 142), as to belated and material amendments of timely petitions. See Matter of Merchants Refrigerating Co. (78 N. L. R. B. 528), as to the effect of withdrawal of a timely petition upon the rights of a cross-petitioner. As to what are "extenuating circumstances" excusing

the failure to file a petition within

the 10 days prescribed in the General Electric X-Ray case, see Matter of L. O. Koven & Brothers, Inc. (77 N. L. R. B. 1253); Matter of Gale Products (77 N. L. R. B. 264).

a bar. 63

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renewal provision) of the old contract if it contained an automatic renewal clause, or before the termination date of the old contract if there was no automatic renewal provision. 64

Recognizing that stability will be served in the usual case by allowing a newly certified representative time in which to bargain collectively in behalf of the employees it represents, the Board has in the past followed the rule that, absent unusual circumstances, a certification will bar an election for a full year. Previous decisions have established that new agreements, premature extensions or automatic renewals of old agreements entered into by the certified union before its certification, or premature extensions of contracts entered into after its certification are immune during the 1-year period to otherwise timely rival claims. This rule was further amplified in Matter of Texas Paper Box Manufacturing Co. (75 N. L. R. B. 799), in which the Board held that a 1-year contract executed early in the certification year, which automatically renews within that year, is a bar to a petition filed before the Mill B date of the contract, even though the initial term of the contract will not expire until after the end of the certification year.

Section 9 (c)(3) of the amended statute, which proscribes the holding of more than one valid election in a bargaining unit or any subdivision thereof in a 12-month period,66 amounts in part to a codification of the Board's 1-year certification rule.67 In addition, however, it creates a prohibition against holding a second election within the same year after a valid election lost by a union, where the election does not result in a certification. The significant term, "valid election,” has been interpreted by the Board in several cases. The Board has held that this term does not embrace an informal card check;oo or an election in which the balloting was inconclusive;° or an election which resulted in a dismissal of the petition, without disposing of objections, because of the petitioning union's noncompliance with section 9 (f) and (h) of the act.71

In a number of cases, the Board found it necessary to consider the impact of section 9 (f), (g), and (h), section 103, and section 8 (d) (1) of the amended act on the foregoing principles relating to the operation of contracts and certifications as bars to petitions in representation cases.

The purpose of section 9 (f), (g), and (h) has already been discussed above. The purpose of section 103 is to forestall for specified periods the invalidation of either a certification issued prior to the effective date of the amended act, or a contract, in respect to a certification, entered into before its effective date. Section 8 (d) (1) covers one aspect of the duty to bargain and provides, in part, that, before terminating or modifying a contract, a party thereto should serve a written notice upon the other party of the proposed termination or modification 60 days before its expiration date. 64 Matter of Robertshaw-Fulton Controls Co. (77 N. L. R. B. 316). 65 To similar effect is Matter of Willborn Bros. Co., Inc. (77 N. L. R. B. 1026). 67 The Board relied upon this statutory provision in Matter of Lehrolite, Inc. (75 N. L. R. B. 607), in dismissing a petition filed 5 months after a consent election in the same unit won by a rival union, because only 11 months had elapsed at the time of its decision.

$ For one ramification of this section see Matter of Federal Shipbuilding & Drydock Co. discussed at pp. 27, supra. 69 Matter of Arrow, Hart, and Hegeman Electric Co. (77 N. L. R. B. 258). 70 Matter of NAPA New York Warehouse, Inc. (76 N. L. R. B. 840). 11 Matter of Nashville Corp. (77 N. L. R. B. 145).

68 See footnote 34, supra.

The Board has taken the position that noncompliance with section 9 (f), (g), and (h) will not prevent a union from invoking its current contract as a bar to an election, even though it may have no right to a place on the ballot if an election is directed. With respect to section 103, the Board has held that this savings clause will operate to protect the vitality of a certificate issued prior to the amended act until 1 year after its issuance, despite the noncompliance of the certified union.73 But it does not operate to protect a contract which was executed before the effective date of amended act in the face of another union's petition; 74 or to preserve a contract entered into before such effective date as to certain employees whose inclusion in the coverage of the contract exceeded the authority conferred by the certification; 75 or to prevent the conduct of a hearing before the expiration date of a contract executed before August 22, 1947.76 As to section 8 (d) (1), the Board has concluded that this provision has no impact upon the automatic renewal clause of a contract which renews itself less than 60 days before its termination date, and that it leaves unimpaired the rule that a petition filed before the Mill B date of a contract will prevent that contract from operating as a bar.”

5. The resolution of a question concerning representation, conduct of elections Section 9 (c) of the act, as amended, prescribes the election by secret ballot as the sole method of resolving a question concerning representation, and leaves the Board without the discretion it formerly possessed (but rarely exercised) to utilize other "suitable means" of ascertaining representatives.78 With certain significant exceptions, discussed below, the Labor Management Relations Act of 1947 has left to the Board's discretion all other matters pertaining to the determination of representatives, including, for example, selection of the time and place when elections are to be conducted, the method whereby a forthcoming election is to be publicized, the mechanics of the balloting, the identification of eligible voters, and appraisal of the election results. And, except for adaptations required by the new statutory provisions, the Board has adhered to its previously enunciated rules and practices governing representation elections, without significant change during this fiscal year.79

The standards determining eligibility to vote in Board-directed elections are familiar; generally all persons who were employed in the appropriate unit at the time when the direction of election issued are eligible to vote, unless they quit or were discharged for cause between that date and the date of the election itself. But the old rule that employees engaged in a current strike are eligible to participate in the choice of a collective bargaining representative has been modified by section 9 (c)(3) of the act, as amended, which provides in part, “Employees on strike who are not entitled to reinstatement shall not be eligible to vote." This statutory provision must be read in the light of the Board's long-standing rule that employees participating in an “economic strike," as contrasted with those engaged in a strike caused by unfair labor practices, are not entitled to be reinstated if, when they apply, their jobs have been filled by replacement workers.80 Despite this rule, under which economic strikers, so called, are not absolutely “entitled” to reinstatement, it was the Board's consistent view, prior to the 1947 amendments, that such strikers were eligible to vote in representation elections, even though they had been replaced. This was partly because their status as employees was expressly preserved by that portion of section 2 (3) of the act which defines the term "employee'' as including "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice.”' 81

73 See Matter of California Walnut Growers Assoc. (77 N. L. R. B. 756). The union whose contract was held to bar an election in that case was not in compliance. 73 Matter of J. Freezer & Son Inc. (75 N. L. R. B. 646); footnote 11, supra. 24 Matter of National Tube Co. (76 N. L. R. B. 1199); Matter of American Rolling Mills Co. (76 N. L. R. 75 Matter of American Rolling Mills Co. (footnote 74, supra).

76 Matter of General Electric Co. (77 N., L. R. B. 1198); Matter of Westinghouse Electric Corp. (78 N. L. R. B. 10); Matter of Bush Woolen Mills, Inc. (76 N. L. R. B. 618). 77 Matter of International Harvester Co. (77 N. L. R. B. 242).

?Before it was amended, sec. 9 (c) of the act provided in part, “Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." As noted in the introductory discussion, the Board has uniformly employed the election method since 1939. See footnote 7, supra.

70 See Tenth Annual Report, p. 22, ff.; Eleventh Annual Report, p. 19, ff.; Twelfth Annual Report, p. 14, ff.

B. 1209).

This doctrine is now specifically overruled by the quoted language of section 9 (c) (3). Accordingly, in cases where a strike is current at the time of an election, the Board now denies the franchise to those striking employees who have been “permanently replaced.”' 82 Frequently, as in the leading Pipe Machinery case 83 which was first before the Board in February 1948 it cannot be accurately determined at the time the election is directed which strikers have been validly replaced and which are still entitled to reinstatement. The Board therefore provided in the cited case and others like it that both the strikers and the replacement workers would be deemed presumptively eligible and permitted to cast ballots subject to challenge.84 În the Pipe Machinery case, a supplemental hearing on challenged ballots was held after the election; the Board then (in the October 1948, decision) disposed of the issues upon the basis of the evidence showing the status of strikers and their replacements as of the time of the election.

The filing requirements of the amended act affect another phase of election and postelection practice. As noted elsewhere in this

80 See N. L. R. B. v. Mackay Radio & Telegraph Co. (304 U. S. 333). #1 As the majority of the Board explained in 1945, in Matter of Columbia Pictures Corp. et al. (64 N. L. R. B. 490), another reason for this rule was the fact that strikes are frequently concluded by settlements pursuant to which the strikers are reinstated and their replacements are dismissed. For much the same reasons, an earlier Board in 1938, in Matter of A. Sartorious & Co., Inc. (10 N. L. R. B. 493), held that the replacement workers themselves were ineligible to vote in an election conducted during an economic strike, because they were essentially temporary employers. That rule was changed in 1941, in Matter of The Rudolph Wurlitzer Co. (32 N. L. Ř. B. 163), where a majority of the Board held that the replacement employees as well as the economic strikers were eligible to vote. The rule of the Wurlitzer case was unchanged until the amend

82 The general rule that temporary employees, as distinguished from those who have a substantial expectancy of future employment, are ineligible to vote in Board directed elections still stands. Consequently a crucial issue commonly presented in the economic strike cases is whether or not replacement workers are "permanent" employees. In Matter of The Pipe Machinery Co. (79 N. L. R. B., No. 181) (Supplemental Decision and Direction issued. October 13, 1948); the Board found that a group of economic strikers had been permanently replaced and that the strikers were therefore not "entitled to reinstatement within the ineaning of sec. 9 (c) (3). The Board stressed the following facts: The replacement workers as well as the strikers themselves had been told by the employer that the newly hired employees were being employed on a permanent basis and would not be "bumped” by strikers seeking to return to work after a certain date; most of the replacement workers had previously engaged in the same or similar work as that for which they were hired by this employer; and the new employees were recruited from the geographical area in which the plant was located. In addition, the Board pointed out that there was no showing

that any of the indi viduals currently on strike had ever made an unconditional application for reinstatement.

3 Cited in footnote 82, supra. The Decision and Direction of Election is reported at 76 N. L. R. B. 247 * In the Pipe Machinery case the Board was careful to point out that its action should not be taken as reiterating the doctrine of the Wurlitzer case.

ment of the act in 1947.

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