campaign had been conducted on behalf of the complying petitioner by a noncomplying CIO organizing committee and a demand for recognition was made in the name of the CIO, but the authorization cards designated the petitioner, and the functions of the committee were to cease when organization had been achieved, the Board found that the committee was not a "front" for the petitioner.31 A change in the affiliation of a complying union, accompanied by a change in name, does not per se require the filing of new affidavits and financial data under the new name of the union.3

32

33

Under section 10 (a) of the amended act, the Board is permitted to cede its jurisdiction to State or Territorial agencies in certain types of cases "unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provisions of this act or has received a construction inconsistent therewith." In Matter of Kaiser-Frazer Parts Corp., the Board held that a State's failure to impose upon labor organiza tions any filing requirements comparable to those in section 9 (f), (g), and (h) of the Federal act was sufficient to create such an inconsistency between the State and Federal laws as to preclude the cession of jurisdiction. Accordingly, in the cited case, the Board was constrained to give no effect to a representation election, conducted by the Utah State Labor Relations Board, which had been won by a noncomplying union ineligible to appear on the ballot in any election conducted by the National Board.

The filing requirements of the act do not apply to proceedings before the Board under section 222 (f) of the Federal Communications Act of 1934, as amended.34

2. The question concerning representation

Representation proceedings, under section 9 (c) of the act, are initiated by petition. Subsections 9 (c) (1) (A) and (B),35 as amended,

31 Matter of McGraw-Curran Lumber Co., Inc., 79 N. L. R. B. 705. See also Matter of Tin Processing Corp., 80 N. L. R. B., No. 212.

" Matter of New Indiana Chair Co., Inc., 80 N. L. R. B., No. 249.

33 80 N. L. R. B., No. 158.

34 Matter of Western Union Telegraph Co., 81 N. L. R. B., No. 40. These subsections provide:

"9 (c) (1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board

"(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in sec. 9 (a), or (ii) assert 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 sec. 9 (a); or

"(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 sec. 9 (a);

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

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."

specify the three types of petitions which may be filed, i. e., (1) by employees, or an individual or labor organization on their behalf, seeking certification of a representative, or (2) seeking decertification of a recognized or certified representative," or (3) by an employer, seeking an election to determine a question of representation.37

Petitions seeking certification of representatives are usually filed by labor organizations which desire to be certified. Frequently, an international union will file a petition, or intervene in representation proceedings instituted by another party, for the purpose of securing a certification in its own name alone, even though it has an affiliated local union which offers membership and certain representative services to the employees in the bargaining unit. In such cases, it has long been the Board's practice to permit the international union alone to appear on the ballot in any election which might be directed, and to certify it as the employees' exclusive bargaining representative if it wins the election. In a divided opinion, the Board reviewed and affirmed its adherence to this practice in Matter of Lane Wells Company (79 N. L. R. B. 252). In that case an international union was the sole petitioner, although it was a local union chartered by the petitioner which had solicited the membership of the employees and raised the question concerning representation by presenting to the employer a demand for recognition. Despite the local's apparent beneficial interest in the proceedings, the Board majority (Members Reynolds and Gray dissenting) ruled that only the international's name should appear on the ballot in the election which was directed. The majority held that, in view of the act's fundamental guarantee to employees of "full freedom" in the selection of "representatives of their own choosing," and absent any showing that the petitioner had appeared instead of its local in order to circumvent any other statutory policy or restriction, express or implied,38 the Board had no authority to substitute

30 A supervisor may not file a decertification petition. See Thirteenth Annual Report, p. 26. An individual decertification petitioner need not, however, be an employee of the employer. Matter of Standard Oil Company (Indiana), 80 N. L. R. B., No. 152. A union officer may petition for decertification. Matter of Morse and Morse, Inc., 83 N. L. R. B., No. 54. The fact that an employee has formerly been a supervisor does not debar him from filing a decertification petition if, absent collusion, his status as a supervisor terminated before the filing of the petition. Matter of Goodyear Tire and Rubber Company, 78 N. L. R. B. 838. Matter of Jell-Well Dessert Company, 82 N. L. R. B., No. 8.

37 Employer petitions are not restricted to instances in which a union not previously recognized by the employer has presented a claim of majority designation. It is sufficient if the incumbent contractual representative seeks renewal of its contract and the employer questions its continued majority representative status. Matter of Whitney's, 81 N. L. R. B., No. 14. See also Matter of Continental Southern Corporation 83 N. L. R. B., No. 100 where a panel of the Board (Members Reynolds, Murdock, and Gray) held that, as the union, which had a recently expired contract, was still claiming recognition, "the Employer had a clear right to file a petition under sec. 9 (c) (1) (B) • ✦ whether or not there may have been any reasonable basis in fact upon which the Employer might question the Union's claim to majority representation."

* Such as the Board's policy against placing on the ballot a labor organization found to be company dominated, or the restrictions expressly set forth in sec. 9 (f), (g), and (h) of the act. In an earlier decision in this case the Board had dismissed the international's petition, on the ground that its local union had failed to comply with the filing requirements of sec. 9 (f), (g), and (h). (Matter of Lane Wells Company, 77 N. L. R. B. 1051.) Upon learning that the local union had in fact achieved compliance with the filing requirements after the close of the hearing, the Board reopened the proceeding and issued its decision above discussed. It is to be noted that the later decision in no way overrules the separate principle of the earlier one.

the local, or name it jointly with the international, as the candidate for election as the employees' statutory bargaining agent. The majority further noted that the Board has the power to police its certifications and might revoke any certification issued to the international union in this case, "if changing circumstances should give rise to a situation in which the Board for policy reasons would not issue a certification in the first instance." The dissenting members expressed the view that the local union would be an essential instrument in any bargaining relationship which might arise if the petitioner should win the election, and that the local should therefore appear on the ballot and be "at least a joint recipient" of any certification to be issued.

In any case arising under section 9 (c), the Board must determine that "a question of representation exists" before it may proceed to an election. The Board ordinarily has found that there is such a question 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.39 Although the record in many proceedings initiated by a union seeking certification, has revealed a specific demand by the union for recognition and a refusal to this demand by the employer before the filing of the petition, the Board has consistently ruled that this is not essential. It is enough if it appears as a fact at the hearing that the union asserts a claim of majority representation and that the employer declines to recognize it. In Matter of Advance Pattern Company, 80 N. L. R. B. 29,40 a Board majority (Members Murdock and Gray dissenting) reconsidered and reaffirmed the foregoing practice, rejecting the contention that it was the intent of section 9 (c) (1) to prescribe a specific demand and refusal, together with an allegation to that effect in the petition, as a jurisdictional prerequisite to the Board's further processing of a petition by a petitioner seeking certification of a representative.

Where it is disclosed by the record of a hearing under section 9 (c), or it appears at the time of the Board's decision," that no question of representation exists, the Board is required to dismiss the petition.42 Thus where the petitioning union limited its claim of representation to economic strikers who had been permanently replaced, and who

39 See Thirteenth Annual Report, p. 26; Twelfth Annual Report, p. 7.

40 Reversing and setting aside an earlier decision in the same case. See Matter of Advance Pattern Company, 79 N. L. R. B. 209.

See Thirteenth Annual Report, pp. 26 and 27.

42 Matter of Murray B. Marsh Company, Inc., 79 N. L. R. B. 76. (Disclaimer of interest by the union at the hearing on an employer's petition); Matter of Paramount Shoulder Pad Company, 80 N. L. R. B., No. 116 (disclaimer by the union at the hearing on a decertification proceeding). See also Matter of Bethlehem Steel Company, Shipbuilding Division, 80 N. L. R. B., No. 123 and Matter of Richfield Oil Corporation, 83 N. L. R. B., No. 171.

therefore, under section 9 (c) (3) 43 were not eligible to cast ballots, the Board found that an election would be a futility and refused to proceed to an election."4 Where an individual petitioner in a decertification proceeding, although served with notice, did not appear at the hearing, the Board construed this as a disclaimer of interest and dismissed the petition.45 But where the union sought to be decertified failed to appear at a hearing, the Board refused to interpret this fact, standing alone, as a disclaimer of its interest in representing the employees. And where a union had engaged in picketing as a means of inducing the employer to recognize it, and continued the picketing at the time of hearing on the employer's representation petition, the Board refused to grant the union's dismissal motion based on the assertion, made for the first time at the hearing, that it no longer claimed to represent the employer's employees.47

46

In Matter of General Box Company, 82 N. L. R. B., No. 75, the Board had occasion to determine the issue arising from the filing of a petition by a union which was admittedly recognized as the bargaining representative but which had instituted representation proceedings solely for the purpose of receiving a formal certification. The Board directed an election, saying that neither the precise language of section 9 (c) (1) (A),48 nor the Board's historical pronouncements as to the manner in which a question of representation is raised,19 compelled a finding that there can be no question of representation in the absence of an employer's declination to recognize the petitioning union. In its decision, the Board noted the new advantages which accrue to a certified union under subsections 8 (b) (4) (B), (C), and (D) of the amended act,50 as well as under the Board's long established "one year rule"; 51 it concluded that in a case such as this there was a question of representation "created by the petitioner's assertion of majority standing, its expressed desire to secure a certificate, and its formal petition that the Board investigate its status by the statutory method of conducting an election." 52

43 The Board's formal direction of election now contains a provision excluding, in the language of sec. 9 (c) (3), "employees on strike who are not entitled to reinstatement." See discussion at p. 22 ff., infra. 44 Matter of Griffin Hosiery Mills, Inc., d/b/a Dove Down Hosiery Mills, 83 N. L. R. B., No. 170.

45 Matter of Merchants Fire Dispatch, 83 N. L. R. B., No. 120.

46 Matter of Kraft Foods Company, 83 N. L. R. B., No. 39.

47 Matter of Coca-Cola Bottling Co. of Walla Walla, Washington, 80 N. L. R. B., 161.

48 See footnote 1, supra.

4 See footnote 5, and text, supra.

50 See discussion of these sections in ch. III, infra.

See p. 20, infra.

52 This case is to be distinguished from the Board's earlier decisions in Matter of Lake Tankers Corporation, 79 N. L. R. B. 442, and Matter of Cornell Dubilier Electric Corporation, 78 N. L. R. B. 664, where petitions filled by currently recognized unions were dismissed. In the former case, the parties were not in fact concerned with an election or certification, but merely desired the Board's opinion as to the supervisory status of watchmen. In the latter case, the petitioner was primarily concerned with obtaining an interpretation of an existing contract and its effect upon the employer's duty to bargain for a new one, an issue which the Board deemed to be more properly cognizable in a proceeding under sec. 8 (a) (5).

54

Section 9 (c) (1) (A) of the amended act prescribes that employees or their representatives filing a representation or decertification petition shall allege that their petition is supported by "a substantial number of employees." 53 The Board views this provision as codifying its practice, established under the act prior to amendment, of requiring the petitioning union in a representation case to present some evidence that it represents a substantial number of employees in the bargaining unit for whom it seeks certification. The purpose of the requirement is to enable the Board to avoid the useless expenditure of time and effort in conducting an election where there is little likelihood that the petitioner will be designated as majority bargaining representative.55 The Board also views the present statutory provision as not inconsistent with its earlier established rule that the petitioner's prima facie showing of interest is to be investigated only administratively by the regional director, and may not be the subject of litigation at the hearing.56 The amended act requires no showing of interest in proceedings initiated by an employer.57

The Board will not direct an election where the union seeking the certification lacks the attributes of a bona fide labor organization and is therefore incapable of serving as the representative of employees; nor will it accord such a union a place on the ballot in an election upon the petition of another labor organization.58

It is also the Board's policy to withhold the opportunity to be certified from a labor organization which will not accord equal representation to all the employees in the bargaining unit.59 But the Board has uniformly declined to find, merely on the basis of provisions in a union's constitution which appear to negate its ability to admit some or all of the employees in the unit as members, or to bargain collectively in their behalf, that the union is incapable of representing, or representing equally, the employees in the bargaining unit for which it seeks to be certified. The Board is reluctant to proceed with a representation

60

See footnote 1, supra.

34 Likewise an intervenor seeking an election in an appreciably larger unit than that sought by the petitioner must make a showing of interest in the larger group, equivalent to that which would be required to support a petition, in order to secure an election in the larger unit. Matter of Celanese Corporation of America, 84 N. L. R. B., No. 26.

Where the petitioner's administrative showing of interest consisted entirely of designation cards signed before the date of a State-conducted election in which most of the employees had voted against the petitioner, the Board concluded that there was not sufficient likelihood that a representative would be selected to warrant proceeding to an election. Matter of King Brooks, Inc., 84 N. L. R. B., No. 74.

56 See, for example, Matter of Western Electric Company, Inc., 84 N. L. R. B., No. 66.

7 See Thirteenth Annual Report, p. 28, and Matter of O. E. Felton d/b/a Felton Oil Co. (78 N. L. R. B. 1033), discussed therein.

5 Matter of Brown Express et al., 80 N. L. R. B., No. 114.

See Thirteenth Annual Report, p. 28; Tenth Annual Report, pp. 17, 18.

60 See Matter of United States Gypsum Company, 80 N. L. R. B., No. 122; Matter of Martin J. Barry, Inc., 83 N. L. R. B., No. 163. In the latter case, rejecting a contention that the petitioning union was ineligible for certification because its constitution did not authorize it to represent any of the employees in the bargaining unit except certain ones who were members of a particular trade or craft, the Board said: “* the willingness of a petitioner to represent employees is controlling under the Act, not the eligibility of employees to membership, or the exact extent of the petitioner's constitutional jurisdiction. Moreover, there is no showing that the Petitioner will not accord adequate representation to the employees in the unit.