Representation Cases

THIS chapter outlines the major principles of law and policy by which

the Board determines the issues in cases arising under section 9 of the act, as reflected in decisions issued during the fiscal year ending June 30, 1949.1

There are two types of cases under section 9, in both of which the Board acts in a nonadversary capacity. The first is the representation case, which arises under subsection 9 (c). In these proceedings, if it is found that "a question of representation affecting commerce exists" the Board designates the appropriate bargaining unit of employees and ascertains, through an election, what union or other representative, if any, is desired as collective bargaining agent by a majority of the employees in that unit. These proceedings implement the basic statutory principle, embodied in subsection 9 (a), that:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. * * *

The Board classifies and distinguishes among representation cases, for certain purposes, according to whether they are instituted by petitioners desiring to be certified as statutory bargaining representatives; by employees or persons acting in their behalf seeking to have certified or presently recognized representatives "decertified"; or by employers desiring to have existing questions of representation resolved by the Board.

The other type of case which the Board is required to process under section 9 is of two varieties, the so-called union-authorization proceeding and the "deauthorization" proceeding, for both of which provision is made in subsection 9 (e). These proceedings are instituted either by a union "which is the representative of employees as provided in section 9 (a)," seeking authorization to make a union-shop contract, or by employees in the bargaining unit covered by a valid union-security agreement, seeking to rescind their union's authority

1 These decisions are reported in volumes 78 to 84, inclusive, of the N. L. R. B. reports. A few noteworthy cases decided shortly after the close of the fiscal year are also cited in this chapter.

to make such an agreement. In a union-authorization case, the essential substantive condition is that there be "no question of representation." If the Board finds that this condition is satisfied, it conducts a secret ballot election, or referendum, and certifies the results. A referendum under subsection 9 (e), and a Board certification showing that the proposal to authorize a union-shop contract was approved, in the most recent referendum, by a majority of the employees eligible to vote, are necessary to satisfy one of the conditions prescribed in section 8 (a) (3) of the act for the validity of union-security contracts.

In both representation and union-authorization proceedings, as well as in cases under section 8 of the act involving unfair labor practices, labor organizations seeking to invoke Board process, or raising questions of representation, must comply with certain threshold filing requirements, contained in subsections (f), (g), and (h) of section 9. These provisions, enacted in 1947, are designed to bring about full disclosure of financial and other data respecting the organizational structure of unions, and to deny the benefits of the act to labor organizations whose officers have not filed certain affidavits.

1. The filing requirements

Subsections 9 (f), (g), and (h) of the act detail the filing requirements which a union must fulfill before the Board may process its petition in any case under section 9,2 or certify it as a statutory bargaining representative, or investigate any question of representation raised by it in any representation proceeding.3 Subsections 9 (f) and (g) prescribe that a labor organization shall file with the Secretary of Labor copies of its constitution and bylaws, and information as to its officers and their salaries, its finances, conditions of membership, methods of authorizing strikes, and the like. These subsections also require unions to furnish annual financial reports to their members. And under subsection 9 (h) a union must file, with the Board, "non-Communist" affidavits executed by each of its officers.*

Accordingly, the Board will not entertain a labor organization's petition for certification under section 9 (c),5 or for a union-shop

2 These subsections also prescribe that no complaint shall be issued pursuant to an unfair labor practice charge filed by a noncomplying labor organization.

This applies even to representation proceedings instituted by an employer. See Thirteenth Annual Report, p. 22.

'Specifically sec. 9 (h) prescribes that a union officer shall state in his affidavit "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. The provisions of sec. 35A of the Criminal Code shall be applicable in respect to such affidavits."

E. g., Matter of Advance Pattern Co., 80 N. L. R. B., No. 10. However, where the petitioner's compliance has lapsed since the hearing, the Board will ordinarily place the petitioner's name on the ballot, if an election is directed, provided that the petitioner renews its compliance within 10 days from the date of the direction of election. Matter of Advance Pattern Co., supra.

referendum under section 9 (e), unless the petitioner has complied with the foregoing filing requirements. Moreover, a noncomplying union may not intervene in proceedings where another labor organization or individual has petitioned for certification or in a representation case instituted by an employer,' unless, at the time of the hearing, it has a collective bargaining contract covering employees affected by the petition. Nor will the Board place the name of a noncomplying union on the ballot in any election directed on the petition of the employer, a complying union, or an individual seeking certification, even though the noncomplying union may have been a proper intervenor at the hearing. For the same reason, write-in votes for a noncomplying union will be treated as void ballots, not as votes against the union officially on the ballot.10 Where a union, because of its noncompliance, has been excluded from the ballot in a representation election, it has no standing to file objections contesting the validity of the election or to except to the regional director's report on any objections or challenges."1

In decertification cases, however, because of the difference in the nature of the proceeding,1 the Board has held that the union which is the employees' current representative, sought to be decertified, must be allowed to participate in the hearing 13 and must be accorded a place on the ballot 14 as well as the right to object to the conduct of the election,15 even though it has not satisfied the filing requirements.

Matter of H. C. Godman Co., 79 N. L. R. B. 1030.

1 Matter of Remington Rand, Inc., 78 N. L. R. B. 181; Matter of Schutte & Koerting Company, 79 N. L. R. B. 599; Matter of Oppenheim-Collins & Co., Inc., 79 N. L. R. B. 435. In the Oppenheim-Collins case, the Board held that the denial of a hearing to a noncomplying union, which has no contractual interest, does not conflict either with the hearing requirement in section 9 (c) of the act or with constitutional requirements of due process. Accord: Fay v. Douds, 172 F. 2d (C. A. 2).

A noncomplying union which is permitted to intervene because it has such a contractual interest will be heard on all questions raised by the petition. Matter of New Indiana Chair Co., Inc., 80 N. L. R. B., No. 2; Matter of Boston Consolidated Gas Co., 79 N. L. R. B. 337; Matter of Niagara Hudson Power Corp., 79 N. L R. B. 1115; Matter of New England Dressed Meat and Wool Co., 81 N. L. R. B., No. 186; Matter of Southland Paper Mills, Inc., 81 N. L. R. B., No. 57. In Matter of U. S. Gypsum Co., 79 N. L. R. B. 48, an interna. national was permitted to intervene for a local which had a current contractual interest. But, intervention will be denied to a noncomplying union whose contract expired before the hearing (Matter of Schutte & Koerting Co., supra), or whose contract does not cover the unit sought by the petitioner (Matter of Inspiration Consolidated Copper Co., 81 N. L. R. B., No. 226).

• Matter of Oppenheim-Collins & Co., Inc., supra; Matter of Jefferson Chemical Co., 81 N. L. R. B., No. 229; Matter of Baugh and Sons Co., 82 N. L. R. B., No. 157; Matter of Hackensack Water Co., 84 N. L. R. B., No. 96; Matter of Elizabethtown Water Co., Consolidated, 84 N. L. R. B., No. 97. However, an intervening union which is in the process of effecting compliance at the time of the hearing will ordinarily be allowed to participate in the election, if it achieves full compliance within 10 days from the date of the Board's direction of election. See Matter of U. S. Gypsum Company., 79 N. L. R. B. 48.

10 Matter of Woodmark Industries, Inc., 80 N. L. R. B., No. 171.

11 Matter of Oppenheim-Collins & Co., Inc., supra; Matter of Times Square Stores Corp., 79 N. L. R. B. 361, 81 N. L. R. B., No. 46; Matter of Westinghouse Electric Corp., 78 N. L. R. B. 315.

Compare, however, Matter of Woodmark Industries, Inc., supra, also discussed in part 5 of this chapter, infra at p.

12 See Thirteenth Annual Report at p. 22.

13 Matter of Bethlehem Steel Co., 79 N. L. R. B. 594.

14 Matter of Ives-Cameron Co., Inc., 81 N. L. R. B., No. 45; Matter of Hygrade Food Products Corp., 82 N. L. R. B., No. 45; Matter of Bethlehem Steel Co., supra.

15 Matter of The Univis Lens Co., 82 N. L. R. B., No. 155.

However, in such cases, if the noncomplying union wins the election, the Board will not certify the union but will merely announce the arithmetical results.16

Subsections 9 (f), (g), and (h) require a union to show, before it can utilize the processes of the Board, not only that it has itself satisfied the filing requirements, but also that any "national or international labor organization" of which it is "an affiliate or constituent unit" has likewise filed the prescribed reports and affidavits. The Board has construed the quoted phrases as not including the two great parent federations, the Congress of Industrial Organizations and the American Federation of Labor, in their relation to autonomous or self-governing labor organizations affiliated with them, and themselves commonly called "Nationals" or "Internationals." Accordingly, noncompliance by the CIO or AFL will not bar the petition of such an autonomous affiliate. Where, however, a labor organization, such as a "Federal labor union," affiliated with the CIO or AFL is not autonomous, it cannot invoke the processes of the Board so long as the parent federation is not in compliance.18

The Board has consistently held that it will not investigate the authenticity or truth of affidavits filed under section 9 (h), as such investigations are by the statute made a function of the Department of Justice.19 The compliance status of a union, moreover, is administratively determined by the Board, and may not be litigated in a hearing before the Board; 20 nor need evidence of compliance be disclosed at such a hearing or set forth in the record.21

However, noncomplying unions will not be permitted to circumvent the filing requirements of the statute by acting through individuals,22 16 Matter of Hygrade Food Products Corp., supra.

17 Matter of U. S. Gypsum Co., 81 N. L. R. B., No. 52; Matter of The Chesapeake and Potomac Telephone Co of Virginia, 82 N. L. R. B., No. 94. See also discussion in Thirteenth Annual Report at pp. 23, 24 of Matter of Northern Virginia Broadcasters, Inc., Radio Station WARL, 75 N. L. R. B. 11.

18 Matter of American Optical Co., 81 N. L. R. B., No. 80. In that case, in dismissing the petition of a CIO organizing committee because of noncompliance by the CIO, a majority of the Board found that the committee was not an autonomous body because (1) it had no constitution or bylaws except the constitution and bylaws of the CIO, (2) it could be dissolved by the CIO at any time, (3) its officers were not elected but were appointed by the CIO and subject to its control. Chairman Herzog and Member Houston, dissenting, stated that in their opinion the organizing committee was sufficiently "insulated from domination and control" by the CIO so as not to require compliance by the CIO as a condition of the Board's entertaining the committee's petition. They stressed the fact that the committee, like national or international unions of the CIO, issued charters for locals, received a per capita tax from them, contributed to the finances of the CIO, maintained its own offices and bank accounts, and executed collective bargaining agreements and called strikes without the approval of the CIO. Cf. Matter of The Chesapeake and Potomac Telephone Co. of Virginia, supra, where the Board unanimously held that an organizing committee affiliated with the CIO could invoke the Board's processes, despite noncompliance by the CIO. In that case, however, the committee was found to be autonomous, as it operated under its own rules amendable only by its members, and representatives of the CIO among its members and officers were in the minority.

19 Matter of The Chesapeake and Potomac Telephone Co., of Virginia, supra; Matter of Wilson and Co., Inc., 80 N. L. R. B., No. 229; Matter of U. S. Gypsum Co., 80 N. L. R. B., No. 122.

20 Matter of Teletype Corp., 79 N. L. R. B. 1044; Matter of General Plywood Corp., 79 N. L. R. B. 1458; Matter of The Procter & Gamble Manufacturing Co., 78 N. L. R. B. 1043; Matter of Burrows and Sanborn, Inc., 81 N. L. R. B., No. 205; Matter of Trueman Fertilizer Co., 81 N. L. R. B., No. 13; Matter of The Prudential Insurance Co. of America, 80 N. L. R. B., No. 239.

21 Matter of General Plywood Corp., supra; Matter of Veneer Products, Inc., 81 N. L. R. B., No. 90.

22 Matter of Oppenheim-Collins & Co., supra. Individuals are normally exempt from the filing require. ments, which apply only to "labor organizations." Matter of Standard Oil Co., 80 N. L. R. B., No. 152.

or through other complying unions.23 The Board has applied this rule so as to preclude even the possibility of such result. Thus, where the petitioner is an international union and it has a local admitting to membership employees in the bargaining unit involved in the proceedings, the Board's present rule, as stated in Matter of The Prudential Insurance Company of America 24 is that the local, as well as the international, must comply with the filing requirements, if it has members in the unit, "without regard to the extent to which [the local] may participate in collective bargaining," as a condition precedent to the international's participation in the election.25 But the Board regards compliance by the petitioning international union alone as sufficient where no local has as yet been established for the employees in the unit,26 or where a local in the process of formation is not yet a "functioning organization." 27 In such cases, the Board has indicated that the possibility that the petitioner might, if certified, establish a local which would not comply with the filing requirements was too remote and speculative to warrant dismissal of the petition.28

Frequently, difficult questions arise as to whether one union is, as a matter of fact, acting for another union in invoking the processes of the Board. Where an intervening union had been organized under circumstances indicating that it was sponsored and financed by a noncomplying union, a majority of the Board found that the intervenor was acting as a "front" for the noncomplying union, and denied the intervenor a place on the ballot.29 On the other hand, the mere fact that an organizer for a petitioning union had formerly been connected with a noncomplying union was held insufficient to establish that the petitioner was acting for the other union.30 Where an organizational

23 Matter of Rub-R-Engraving Co., 79 N. L. R. B. 332; Matter of Oppenheim-Collins & Co., supra; Matter of International Harvester Co., 80 N. L. R. B. No. 194; Matter of Lynchburg Gas Co., 80 N. L. R. B., No. 184; Matter of Southland Paper Mills, Inc., 81 N. L. R. B., No. 57.

24 81 N. L. R. B., No. 48, modifying 80 N. L. R. B., No. 239. Accord: Matter of John Hancock Mutual Life Insurance Co., 82 N. L. R. B., No. 16.

15 Chairman Herzog dissented in this case, stating that in his opinion the right of the international union to appear on the ballot in the absence of full compliance by its local, should depend upon whether the local "in actual fact" engages in collective bargaining in behalf of the employees in the unit. Both the Chairman, in his dissenting opinion, and the other Members of the Board, in their majority opinion in this case, relied upon Matter of Lane-Wells Company, 77 N. L. R. B. 1051 and Matter of United States Gypsum Company, 77 N. L. R. B. 1098, decided the previous year (Thirteenth Annual Report, p. 25), but differed in their interpretation of those earlier rulings.

20 Matter of Samuel Bonat & Bro., Inc., 81 N. L. R. B., No. 196; Matter of Minneapolis Knitting Works, 84 N. L. R. B., No. 92; Matter of Bentwood Products, Inc., 81 N. L. R. B., No. 113.

27 Matter of Cribben & Sexton Co., 82 N. L. R. B., No. 159. Cf. Matter of The Empire Furniture Manufacturing Co., 82 N. L. R. B., No. 44.

28 In the Matter of Detroit & Canada Tunnel Corp., 83 N. L. R. B., No. 110, the Board placed the name of a complying international union on the ballot, despite the noncompliance of its local, which had bargained for employees in the unit, because of the "unusual circumstance" that the local was a Canadian labor organization, resident in Windsor, and subject to the labor laws of the Dominion of Canada and the Province of Ontario.

29 Matter of R. J. Reynolds Tobacco Co., 83 N. L. R. B., No. 46. Chairman Herzog and Member Houston, dissenting, stated that the intervenor should not be denied a place on the ballot as it was not actually proven that it was in some manner connected with, or controlled by, or seeking certification only to advance the interests of, the noncomplying union.

30 Matter of Sampsel Time Control, Inc., 80 N. L. R. B., No. 188.