chapter, a union not in compliance with section 9 (f), (g), and (h) of the act is barred from the ballot in all cases, except decertification cases, even though it may have properly intervened in the proceedings by virtue of a current contractual interest. A corollary rule is that neither a union thus excluded from the ballot nor any individual or organization deemed to be "fronting" for it, will be permitted to file objections to the election or exceptions to the regional director's report on objections or challenges.85

The Board is keenly aware of its responsibility to the parties in representation cases and to the public for the maintenance of high standards governing the conduct of elections under its auspices. Its objective in each case is to insure that the secret ballot is held under conditions enabling employees to register a free and untrammeled choice for or against a bargaining representative. When a party in a representation case files timely objections,86 the Board will set the election aside if its investigation reveals that there was any substantial defect or irregularity in the conduct of the balloting 87 or that the employees' freedom to express their true desires in the election was inhibited by "antecedent conduct or episodes which were both (1) coercive in character, and (2) so related to the election in time or otherwise as to have had a probable effect upon the employees' action at the polls." 88 On the other hand, the Board eschews the role of censor and declines to vacate elections because of activities in the nature of "campaign propaganda." 89

Unremedied unfair labor practices constituting coercion of employees are generally regarded by the Board as grounds for vacating an election,90 but the converse is not always true. The Board has the power to set aside an election, in the exercise of its discretion, because of any conduct or circumstances militating against the employees' freedom of choice, even though the objectionable conduct in a particular case may not quite be an unfair labor practice subject to prevention in complaint proceedings. In such a case, the Board will occasionally set aside the election if it is convinced that there was serious interference with the employees' free exercise of their franchise; but, as the majority remarked in Matter of General Shoe Corp., 77 N. L. R. B.

$5 See certification of representatives issued June 4, 1948, in Matter of Norcal Packing Co., Case No. 20-R2221 (Decision and Direction of Election at 76 N. L. R. B. 254); Matter of Oppenheim Collins and Co., Inc. (79 N. L. R. B., No. 59). However, a noncomplying union whose name appears on the ballot in a decertification election may file objections. See Matter of Magnesium Casting Company 77 N. L. R. B. 1143.

Objections must be filed within 5 days after the tally of ballots has been furnished to the parties; but in the computation of this period, Sundays, legal holidays (but not half-holidays), and Saturdays on which the Board's offices are not open for business are excluded. See secs. 203.61 and 203.87 of the Rules and Regulations, Series 5, as amended August 18, 1948, and Matter of Lafayette National Bank of Brooklyn, New York (77 N. L. R. B. 1210).

$7 See Matter of NAPA New York Warehouse, Inc. (75 N. L. R. B. 1269) (failure of Board agent to challenge the ballots of voters as to whose probable ineligibility he had notice); Matter of Knox Metal Products, Inc. (75 N. L. R. B. 277). Compare Matter of Wilson Athletic Goods (76 N. L. R. B. 315).

This test of substantial interference with an election, enunciated in Matter of Maywood Hosiery Mills (64 N. L. R. B. 146), in 1945, was reiterated by the Board in Matter of NAPA New York Warehouse, Inc., footnote 87, supra.

89 Matter of Carrollton Furniture Manufacturing Company (75 N. L. R. B. 710); Matter of Stonewall Cotton Mills (75 N. L. R. B. 762); Matter of NAPA New York Warehouse, footnote 87, supra.

90 For this reason the Board ordinarily declines to conduct an election if unfair labor practice charges are pending or if unfair labor practices previously found by the Board have not yet been remedied, unless the charging party files a "waiver" agreeing not to rely upon the alleged or established violations of the act as a basis for subsequently attacking the results of the election. See Tenth Annual Report, pp. 26, 27; Matter of Linde Air Products (77 N. L. R. B. 1206). But charges finally disposed of by administrative dismissal present no obstacle to an election. Matter of Dickson-Jenkins Manufacturing Co. (76 N. L. R. B. 449).

93

92

124,91 it will exercise its power in this area only "sparingly." If the alleged interference consists solely of an employer's antiunion propaganda falling within the "free speech" privilege defined in section 8 (c) of the amended act, the Board is disinclined to vacate the election. There are, of course, many representation cases in which the validity of an election is called into question by an objecting party but there is no companion unfair labor practice case presenting the issue whether the alleged interference with the election is also a violation of the act. In those cases, the Board determines only the question whether there was substantial interference with the election, and does not consider the possible applicability of the unfair labor practice provisions of the statute."

Section 9 (c) (3) of the act as amended provides in part, "In any election where none of the choices on the ballot receives a majority a run-off shall be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election." This provision has not as yet been interpreted by the Board in any formal opinion. It alters certain features of the Board's practice respecting run-off elections in this respect: whereas, under the rules and regulations in effect before the 1947 amendments, 95 the "neither" or "none" choice was eliminated from the run-off ballot unless it received a plurality of votes cast in the original election, this choice now must appear on the run-off ballot if it received either the highest or second highest number of votes.

6. The unit appropriate for the purposes of collective bargaining

Under section 9 (a) of the amended act, as before, the collective bargaining representative designated by the majority of the employees in an appropriate unit,96 is the exclusive representative of all the employees in that unit, "for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. And it is the Board's responsibility under section 9 (b) of the act to "decide in each case whether, in order to

In this case a majority of the Board set aside an election because the employer's president had delivered an intemperate antiunion address to small groups of employees, summoned from their work to listen to him, on the day before the election took place, and the foreman had propagandized the employees in their homes. Although the majority held that this was such an abuse of normal campaign tactics as to warrant vacating the election, the Board found unanimously that the conduct in question did not constitute an unfair labor practice because it fell within the area of privilege defined in sec. 8 (c) of the act. (See footnote 92, infra.) Members Reynolds and Gray dissented from the majority's ruling as to the validity of the election, stating that, in their opinion, the Board should not exercise its power to set aside an election for employer conduct to which the act "specifically lends protection."

Sec. 8 (c) of the amended act provides:

"The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this act, if such expression contains no threat of reprisal or force or promise of benefit." In a number of recent cases, the members comprising the majority in the General Shoe case, supra, have declined to apply the doctrine of that case to comparable, but somewhat less aggravated, fact situations, and have applied the standards defined în sec. 8 (c), supra, in determining whether or not an employer's antiunion campaign afforded justification for setting aside an election. See Matter of The Babcock & Wilcor Co. (77 N. L. R. B. 577); Matter of The Kinsman Transit Co. (78 N. L. R. B. 78); Matter of The Hinde & Dauch Paper Co. (78 N. L. R. B. 488) (distinguishing the General Shoe case); and Matter of Malinckrodt Chemical Works (79 N. L. R. B., No. 184) distinguishing the General Shoe case, with Members Houston and Reynolds dissenting).

See Matter of Haskett Tool & Manufacturing Co. (77 N. L. R. B. 572), where an election was vacated because the employer, on the day of the election, had changed the schedule of working hours, so that the employees could not go to the polls conveniently or without making themselves conspicuous. See also Matter of General Steel Products (77 N. L. R. B. 810).

* See Rules and Regulations, Series 4 (effective September 11, 1946), sec. 203.56.

As explained in prior annual reports, the vote of a majority of the employees participating in an election under Board auspices, provided that a representative number of the eligible employees cast ballots, is deemed to reflect the desires of all the employees in the bargaining unit. See Twelfth Annual Report, p. 18; Eleventh Annual Report, p. 23.

97

assure to employees the fullest freedom in exercising the rights guaranteed by this act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * * * Guided by this general statement of statutory purposes and standards, the opening part of which was slightly rephrased but not substantially changed by the amendments, the Board, over a period of years, has formulated certain criteria which are applicable to the determination of all questions concerning the appropriate bargaining unit.98 Except in the particular and important situations discussed below, the 1947 amendments of the act have left unchanged these familiar basic tests of appropriateness. Chief among them is the rule, restated by the Board this year in Matter of Chrysler Corp.,99 that "employees with similar interests shall be placed in the same bargaining unit." This factor of mutuality of interest, together with the history of collective bargaining in the particular plant or industry involved, is given great weight by the Board in deciding any unit controversy, whether the dispute concerns the geographical scope of the proper bargaining unit, or its general character (for example, whether craft or industrial), or questions as to the inclusion of particular occupational categories of employees.

In deciding each case on its own facts, as it must do, the Board is vested with broad discretion, but its discretion in certain instances is now limited by provisions of the amended act. In brief outline, the innovations are as follows: "Professional employees," "guards," and "supervisors," respectively, are now defined in the statute; and supervisors, as well as "independent contractors" are expressly excluded from the definition of "employees" covered by the act. Two new provisos added to section 9 (b) dictate conditions affecting the unit placement of professional employees and guards. Another proviso, section 9 (b) (2), affects the Board's consideration of certain cases involving the familiar controversy over craft versus industrial units. Finally, section 9 (c) (5) prescribes that the extent of employee organization shall not be "controlling" in unit determinations.

* * *

Among the first important substantive questions which the Board decided under the amended act were those involving the meaning of the so-called craft amendment, section 9 (b) (2). This subsection provides "That the Board shall not * * * decide that any craft unit is inappropriate on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation." In Matter of National Tube Co.,' a leading case, a craft union petitioned for an election among the employees in a small craft group (bricklayers) who were employed in a large basic steel plant. Collective bargaining history at that plant had established an industrial

97 The phrase, "in order to assure to employees the fullest freedom in exercising the rights guaranteed by this act," was substituted for the following phrase in sec. 9 (b) of the original act: "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 this act." In Matter of National Tube Co. (76 N. L. R. B. 1199), discussed below, the Board explained that the new language is not substantially different from the old, and held that the change does not itself indicate that small units, such as craft groups, must now be preferred over more comprehensive ones. See also Matter of Chrysler Corp. (76 N. L. R. B. 55), where the Board overruled a contention that the policy of the amended act required it to exercise its discretion in favor of small departmental units rather than a single plant-wide unit.

9 See Twelfth Annual Report, p. 18; Eleventh Annual Report, pp. 23-24; Tenth Annual Report, pp. 27-28.

99 Cited in footnote 97, supra.

1 Cited in footnote 97, supra.

unit which included the bricklayers, and there had been, several years before, a "prior Board determination" that the industrial unit was appropriate. The petitioning craft union argued vigorously in this case that the Board was compelled, under section 9 (b) (2), to grant a self-determination election looking toward the establishment of a separate unit of bricklayers. But the Board unanimously rejected this contention, and found that the proposed craft unit was inappropriate, particularly because of the complete integration of bricklaying with other functions in the steel-making process and the prevailing pattern of industrial units in the basic steel industry. As to the craftunit proviso itself, the Board held that this new statutory provision precludes it from rejecting a proposed craft unit in any case upon the sole ground that a different unit was established by a prior decision; but that it does not preclude consideration of the employer's collective bargaining history at the particular plant in question as a factor weighing against splitting off a craft unit, much less the historical pattern of bargaining in the industry as a whole.

The result reached by the Board in the National Tube case was consistent with a line of earlier decisions involving the problem of craft severance in basic steel plants.3 However, in many other cases decided during the last fiscal year, where the factors deemed controlling in the National Tube case were not present, the Board has continued to follow its increasingly prevalent policy of permitting the employees in a true craft group to vote for separate representation, even in the face of bargaining history on an industrial basis. In addition, the Board has made progress, during the period covered by this report, in clarifying the standards to be applied in judging what aggregations of employees are "craft" groups, normally entitled to separate representation and to be severed from existing industrial units. Certain departmental groups which are homogeneous and particularly distinct, although they are not pure craft groups, are also frequently recognized as appropriate units, especially if they have a substantial craft nucleus or a tradition of separate representation."

This argument relied less on the statutory language itself than on certain statements in the legislative history of the 1947 amendments, indicating an intention on the part of the Congress to overrule the doctrine of the old American Can case (13 N. L. R. B. 1225). The Board held, however, that the legislative history in its entirety did not support the argument that craft severance was mandatory in all situations.

See Matter of Geneva Steel Co. (57 N. L. R. B. 50 and 67 N. L. R. B. 1159), and cases cited therein. See also, Matter of American Rolling Mills Co. (76 N. L. R. B. 1209), where the Board followed its ruling in the National Tube case. Cf. Matter of The Standard Steel Spring Co. (75 N. L. R. B. 471).

4 See Matter of International Minerals & Chemical Corp., etc. (71 N. L. R. B. 878 (1946)).

See Matter of Marshall Field & Co. (76 N. L. R. B. 479); Matter of Sun Shipbuilding & Dry Dock Co. (77 N. L. R. B. 1153); Matter of Bucyrus-Erie Co. (76 N. L. R. B. 483). However, the limitation on the right of a craft group at a single plant to split off from a multiple plant industrial unit, enunciated prior to the effective date of the amendments in Matter of T. C. King Pipe Co. et al. (74 N. L. R. B. 468) and Matter of The Central Foundry Co. (74 N. L. R. B. 1026) has been reaffirmed and followed under the amended act. See Matter of Robert Gair Co. (77 N. L. R. B. 649).

See Matter of The Baldwin Locomotive Works (76 N. L. R. B. 922); Matter of Pacific Car & Foundry Co. (76 N. L. R. B. 32); Matter of American Cabinet Hardware Corp. (77 N. L. R. B. 1435); Matter of The Sharon Herald Co. (77 N. L. R. B. 341); Matter of St. Louis Public Service Co. (75 N. L. R. B. 693); Matter of Gulf Oil Corp. (77 N. L. R. B. 308); Matter of Dazey Corp. (77 N. L. R. B. 408). The Board does not require, as a condition of craft severance, that the employees in the craft groups exercise the whole gamut of their skills (Matter of American Chain and Cable Co., Inc. (77 N. L. R. B. 850)); but it does hold that craftsmen seeking severance should be engaged, at least a substantial part of their working time, in the skilled work for which they are qualified (Matter of Hardy Plastics & Chemical Corp. (76 N. L. R. B. 463)).

' In Matter of Allis-Chalmers Manufacturing Co. (77 N. L. R. B. 719), the Board stated, in outlining its approach to the problem of severance of such groups: "The Board has not always insisted that a small group of employees be composed exclusively of craftsmen in order to warrant its establishment as a separate unit, or its severance from a larger unit. However, the less stringent requirements in this respect have generally been applied to groups of employees with a substantial nucleus of craftsmen, and then only to certain types of departments. Such departments are generally identifiable and homogenous, perform operations substantially different from those performed in the rest of the plant, contain all the particular kind of employees in the plant, and have a history of separate bargaining; they have included boiler rooms, powerhouses, toolrooms and machine shops. (Citing illustrative cases.) Such departments have, by custom and practice, come to be regarded as craft like and separable." Compare, however, Matter of Interstate Telephone Co. (77 N. L. R. B. 637); Matter of St. Louis Public Service Co. (77 N. L. R. B. 749).

Where these characteristics are lacking however, the new subsection 9 (c) (5) of the act militates against the establishment of departmental units. That subsection provides: "In determining whether a unit is appropriate for the purposes specified in subsection (b) [of sec. 9] the extent to which the employees have organized shall not be controlling." The Board construes this provision as overruling its earlier decisions in which "extent of organization" was the controlling factor supporting a finding that a particular unit was appropriate. There has been no noteworthy change in the principles applied by the Board in considering multiple-employer and multiple-plant 10 units. The amendment to section 2 (3) of the act, excluding supervisors from the class of persons defined as "employees" for purposes of the statute, settled a question which vexed and divided the Board ever since 1942. As only "employees" can compose appropriate units, it is no longer within the Board's discretion either to include supervisory personnel in units of rank and file employees or to establish units consisting solely of supervisory personnel. The definition of supervisors contained in section 2 (11) of the act as amended 12 is substantially a codification of the definition formulated and uniformly applied by the Board for several years before the amendment of the statute." 13

11

The exclusion of independent contractors from the definition of employees in section 2 (3) of the act has been cited by the Board in several recent cases, in which independent contractors or their employees were excluded from a unit consisting of employees of the principal employer by whom the independent contractor was engaged.14 Literally, this amendment only codifies the Board's previous practice of excluding persons who clearly fell within the category of independent contractors. However, as the Board indicated in Matter of Morris

See Matter of Hudson Hosiery Co. (77 N. L. R. B. 566). But see also Matter of Mandel Bros., Inc. (77 N. L. R. B. 512), where the Board pointed out that, although the extent of employee organization can no longer be the controlling factor, it is still one of the several factors to be weighed in determining the appropriateness of a unit. Cf. Matter of Roanoke Mills Co. (76 N. L. R. B. 195), where the Board found a single-plant unit appropriate, despite a contention that the employer's second plant, 1-mile distant, should be included, and that only the two-plant unit would be appropriate. For an explanation of the "extent of organization" doctrine as it existed on the eve of the enactment of the Labor Management Relations Act of 1947, see Twelfth Annual Report, p. 20.

See Matter of Sterling Pulp & Paper Co. (77 N. L. R. B. 63); Matter of Cour D'Alene Mines Corp. (77 N. L. R. B. 570); Matter of Edward Taubman et al. (77 N. L. R. B. 846); Matter of Home Furniture Co. (77 N. L. R. B. 1437). Cf. Matter of The Veneer Manufacturing Co. (77 N. L. R. B. 659).

10 See Matter of Link-Belt Co. (76 N. L. R. B. 124); Cf. Matter of Texas Electric Service Co. (77 N. L. R. B. 1258).

11 See Tenth Annual Report, p. 31 ff.; Eleventh Annual Report, p. 28 ff.; Twelfth Annual Report, p. 21 ff. 12 This section provides: "The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

13 Consistently with its prior practice, the Board has held, since the new act went into effect, that mere straw bosses or work leaders are not supervisors. Matter of George Ehlenberger and Co., Inc. (77 N. L. R. B. 701): Matter of H. J. Heinz Co. (77 N. L. R. B. 1103). In Matter of Clayton Mark & Co. (76 N. L. R. B. 230), a majority of the Board (Members Reynolds and Gray dissenting) reaffirmed the rule previously announced in Matter of Luminous Processes Inc. (71 N. L. R. B. 405), that production inspectors whose duties may affect the earnings of employees will nevertheless be included in a production and maintenance unit, as inspectors of this type are not supervisors, guards, or professional employees within the meaning of the amended act. An employer's designation of certain employees as "supervisors" is not necessarily decisive of their status. The Board will examine the facts and circumstances in each case and decide whether or not personnel whose inclusion in a unit is disputed are actually supervisors as defined in the act. See Matter of Morowebb Cotton Mills Co. (75 N. L. R. B. 987); Matter of The Austin Co. (77 N. L. R. B. 938); Matter of The American News Company, Inc. (77 N. L. R. B. 1036).

14 Matter of Kansas City Star (76 N. L. R. B. 384); Matter of Southwestern Associated Telephone Co. (76 N. L. R. B. 1105) (Chairman Herzog dissenting).