representation cases where the validity of an election is challenged, the Board held that the material distributed by the union was only "legitimate campaign propaganda." 94

A petition for a union-authorization election, is of course, not barred by an existing contract between the employer and the petitioner.95 Indeed, the existence of such a contract tends to satisfy the prerequisite that there is no question concerning representation.

Accord: Matter of Champion Spark Plug Co., 80 N. L. R. B. 47.

95 Matter of Utah Wholesale Grocery Co., 79 N. L. R. B. 1435; Matter of Western Electric Co., Inc., supra.

Unfair Labor Practice Cases

THE Labor Management Relations Act, 1947, reenacted substan

tially the employer unfair labor practices enunciated in the National Labor Relations Act. It also imposed for the first time on labor organizations an unfair labor practice counterpart. The correlative rights and duties conferred on employers and on employees and their representatives are set forth in sections 7 and 8 (a) and 8 (b) of the amended act.

Section 7 of the amended act guarantees to employees the right to organize, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for their mutual aid and protection. It also guarantees to employees the right to refrain from such activities, except to the extent that such right may be affected by a union-shop clause in a collective bargaining agreement as authorized by section 8 (a) (3). Section 8 (a) describes employer unfair labor practices; 1 section 8 (b) does the same for union unfair labor practices.

Section 8 (a) is a restatement of section 8 of the National Labor Relations Act, except for the proviso clause to section 8 (a) (3), which outlaws the closed shop, but permits the union shop under certain prescribed conditions. As heretofore, it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; to dominate or interfere with the formation or administration of any labor organization, or to contribute financial or other support to it; to encourage or discourage membership in any labor organization by discriminating in regard to hire, tenure, terms, or other conditions of employment (except that a union-shop contract entered into under certain conditions is lawful); to discriminate against an employee because he has filed charges or given testimony under the act; and to refuse to bargain collectively with the statutory representative of his employees.

The Thirteenth Annual Report (p. 46-51) outlined the changes effected by the 1947 amendments to the Wagner Act in Board pro

1 The language guaranteeing to employees the right to "refrain from" all forms of concerted activity was added by the Labor Management Relations Act.

Under sec. 3 (d) of the amended act, the decision to issue or not to issue a complaint in an unfair labor practice case is vested exclusively in the independent General Counsel.

cedures and in its decisional and remedial standards. Also explained in that report were the changes effected by the specific definition of terms not previously defined, such as "free speech" and "to bargain collectively," as well as the exclusion of persons from the coverage of the act, such as foremen. The effect of these various changes upon the Board's decisions in the past year is treated in the sections that follow, where they are explained.

However, the Board's decisions of the past year interpreting the 6-month statute of limitations on the institution of unfair labor practice proceedings warrants mention here. Section 10 (b) of the act, as amended provides in part that:

No complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.

Shortly after the amendments became effective the Board ruled that this provision had no application to complaints which had been issued before the effective date of the amendments. In cases decided during the 1949 fiscal year involving complaints issued prior to the effective date of the amendments this principle was consistently followed.3 However, most of the cases which raised questions concerning the application of this provision involved complaints issued after the effective date of the amendments. In Matter of Itasca Cotton Manufacturing Company, the Board held that section 10 (b) imposes no time limitation on the issuance of complaints if the charge upon which it is based has been properly filed and served before or within 6 months of the date of the occurrence. However, in all cases in which complaints were issued after the effective date of the amended act, alleging unfair labor practices committed before such date the Board has required that the charge must have been filed and a copy actually served on the party within 6 months of the effective date of the amendments; and it has announced that in such cases proof of timely service must be made a part of the record. In cases involving complaints based upon amended charges filed and served after the limitation period, the Board has held that section 10 (b) does not prohibit the issuance of such complaints if, in fact, the amended charge is substantially a restatement of the original or previously amended charges which had been timely filed and served."

: Matter of Briggs Manufacturing Company, 75 N. L. R. B. 569. See also Thirteenth Annual Report, p. 47. E. g. Matter of Detroit Gasket and Manufacturing Co., 78 N. L.. R. B. 670. 479 N. L. R. B. 1442.

See also, Matter of Augusta Chemical Company, 83 N. L. R. B., No. 7; Matter of Quarles Manufacturing Company, 83 N. L. R. B., No. 109; Matter of Shawnee Milling Company, 82 N. L. R. B., No. 149; Matter of Rome Specialty Co., Inc., 84 N. L. R. B., No. 9.

See Matter of Old Colony Box Company, 81 N. L. R. B., No. 157.

1 Matter of Irving Paper Mills, 82 N. L. R. B., No. 71; Matter of Vanette Hosiery Mills, 80 N. L. R. B., No. 173; Matter of Joanna Cotton Mills Company, 81 N. L. R. B., No. 230; reversed 176 F. 2d. 749 (C. A. 4). 856215-50

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1. Interfering With, Restraining, or Coercing Employees in the Exercise of the Rights Guaranteed by the Act

Section 8 (a) (1) of the National Labor Relations Act, as amended like section 8 (1) of the act prior to amendment, prohibits employers, from interfering with, restraining, or coercing employees in the rights guaranteed in section 7.8 As in the past, the Board has continued to regard a violation by an employer of any of the other four subdivisions of section 8 (a) to be in addition a violation of subdivision (1). Section 8 (a) (1) may be, and often is, however, violated by conduct which is not specifically proscribed by any of the other four subdivisions. Although, as in past years, very few cases involved only such independent violations of section 8 (a) (1), this section of the Report is concerned with principles decided under those portions of Board decisions dealing with conduct not specifically prohibited by the other four subdivisions of section 8 (a).

Previous Annual Reports have disclosed the varied ways—some obvious and direct; others subtle and indirect-in which some employers have interfered with, restrained, or coerced their employees in violation of section 8 (a) (1). Cases decided during the past fiscal year involved the following types of conduct violative of section 8 (a) (1): surveillance of union activities; 10 interrogation of employees

8 Section 7 of the act, as amended, provides: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).”

• Third Annual Report, p. 52; Fourth Annual Report, p. 57. See below p. 61 with regard to violations of section 8 (a) (3) involving discrimination because of concerted activity other than membership in, or action on behalf of, a labor organization.

10 E. g. Matter of Electric City Dyeing Company, 79 N. L. R. B. 872; Matter of Macon Textiles, 80 N. L. R. B., No. 238; Matter of Barr Packing Company, 82 N. L. R. B., No. 1; Matter of North Electric Manufacturing Company, 84 N. L. R. B., No. 23.

Similarly, conduct which does not in itself involve direct employer spying, but seeks by related means to achieve the same objective, has been held to violate section 8 (a) (1) e. g., requesting employees to report to the employer the union activities of their fellow-employees. Matter of Boss Manufacturing Company, 78 N. L. R. B. 538; Matter of Cuffman Lumber Company, Inc., 82 N. L. R. B., No. 37; Matter of Dixie Shirt Company, Inc., 79 N. L. R. B. 127. However, in Matter of Atlantic Stages, 78 N. L. R. B. 553, such a request made to supervisors was found not to constitute a violation, where the request was never carried out and where there was no indication that the instruction implied that the supervisors were to use illegal means. See also Matter of The Texas Co., 80 N L. R. B., No. 140.

11

12

concerning their membership in, or activities on behalf of a labor organization; " polling employees with respect to their union views; threatening economic or physical reprisal for union activity; 13 promising or granting wage increases or other benefits to discourage union or other concerted activity; " assaulting union supporters or organizers; 15 blacklisting employees because of their union affiliations; 16 assisting in the circulation of antiunion petitions; "7 promoting resignations from a union or the withdrawal of a union's bargaining authority; 18

14

11 This includes not only questioning employees as to their union membership or activities, or those of their fellow-employees, but also inquiries regarding an employee's attitude toward the union; his reasons for wanting a union; his voting intentions in a representation election, etc., e. g. Matter of Elwood M. Jenks, 81, N. L. R. B., No. 121; Matter of Goodyear Footwear Corporation, 80 N. L. R. B., No. 126; Matter of Foremost Dairies, Inc., 83 N. L. R. B., No. 152; Matter of Lancaster Garment Company, 78 N. L. R. B. 935; Matter of Minnesota Mining and Manufacturing Co., 81 N. L. R. B., No. 99. The principle also extends to interrogation of job applicants as to their previous union affiliations or activities, e. g. Matter of D. D. Bean & Sons Co., 79 N. L. R. B. 724; Matter of Gulfport Transport Company, 84 N. L. R. B., No. 71; Matter of Wooster Brass Co., 80 N. L. R. B., No. 245. Nor is it a valid defense that the interrogation was designed merely to ascertain whether the union represented a majority. See Matter of C. Pappas Company, Inc., 82 N. L. R. B., No. 90, and see infra footnote 16.

However, the Board has held that the interrogation of supervisors is no longer violative of the act. Matter of Atlantic Stages, 78 N. L. R. B. 553. And, within limits, an employer is free to question certain confiden. tial employees regarding their union activities. See Matter of American Book-Stratford Press, Inc., 80 N. L. R. B., No. 142; Matter of Dalton Telephone Company, 82 N. L. R. B., No. 131. In Matter of Socony Vacuum Oil Company, Inc., 78 N. L. R. B. 1185 the Board found lawful the interrogation of employees conducted in the presence of union representatives, concerning participation in an illegal strike.

12 E. g. Matter of Granite State Machine Company, Inc., 80 N. L. R. B., No. 20.

13 E. g. Matter of John H. Maclin Peanut Co., Inc., 84 N. L. R. B., No. 48; Matter of Steinberg & Company, 78 N. L. R. B. 211; Matter of Quest-Shon Mark Brassiere Co., 80 N. L. R. B., No. 175; Matter of Quarles Manufacturing Company, 83 N. L. R. B., No. 109; Matter of Elwood M. Jenks, 84 N. L. R. B., No. 121. A prevalent form of coercive statement is one containing a threat to close the plant if it should be organized by a union. But c. f. Matter of M. Snower & Company, 83 N. L. R. B., No. 38, in which such a threat made to a union organizer but not communicated to the employees was found not violative of section 8 (a) (1). And see Matter of Mylan-Sparta Company, Inc., 78 N. L. R. B. 1144, in which the Board held that a prediction of dire economic consequences of unionization did not violate section 8 (a) (1) because there was no indication that the events predicted would result from the employer's use of its own economic power. 14 In some instances the promise or grant of a wage increase or other benefit was expressly conditioned upon renunciation of concerted activities e. g. Matter of Foremost Dairies, Inc., 83 N. L. R. B., No. 134; Matter of Superior Engraving Company, 83 N. L. R. B., No. 29; Matter of Waynline, Inc., 81 N. L. R. B., No. 95; Matter of Macon Textiles, 80 N. L. R. B., No. 238. In Matter of Cedartown Yarn Mills, Inc., 84 N. L. R. B., No. 1, granting employees a day off to celebrate the union's defeat in an election was construed as containing a promise of similar benefits in the future if the union were again rejected.

In other cases the violation was found in the timing of the announcement of the benefit. E. g. Matter of Elwood M. Jenks, 81 N. L. R. B., No. 121; Matter of Magnolia Cotton Mill Co., Inc., 79 N. L. R. B. 91; Matter of Minnesota Mining & Manufacturing Co., 81 N. L. R. B., No. 99; Matter of Lancaster Garment Company, 78 N. L. R. B. 935; Matter of Agar Packing & Provision Corporation, 81 N. L. R. B., No. 109.

15 E. g. Matter of The Russell Manufacturing Co., Incorporated, 82 N. L. R. B., No. 136; Matter of Taylor Manufacturing Company, Inc., 83 N. L. R. B., No. 17. See also Matter of Fort Worth Transit Co., 80 N. L. R. B., No. 221.

16 Matter of The Russell Manufacturing Co., Incorporated, 82 N. L. R. B., No. 136.

17 E. g. Matter of Amory Garment Company, Inc., 80 N. L. R. B., No. 41; Matter of Atlantic Company, 79 N. L. R. B. 820; Matter of Superior Engraving Company, 83 N. L. R. B., No. 29. But where the record failed to establish that the employer promoted or sponsored the petition, or where, upon being advised of it, the employer immediately disavowed responsibility, the Board found no violation. Matter of Union Screw Products, 78 N. L. R. B. 1107, Matter of F. W. Judge Optical Works, 78 N. L. R. B. 385.

18 E. g. Matter of Magnolia Cotton Mill Co., Inc., 79 N. L. R. B. 91; Matter of Macon Textiles, 80 N. L. R. B., No. 238; Matter of Biggs Antique Co., 80 N. L. R. B., No. 77; Matter of Kentucky Utilities Company, Inc., 83 N. L. R. B., No. 139; Matter of The Red Rock Company, 84 N. L. R. B., No. 65. Similarly, an attempt by an employer to force employees to sign a petition renouncing the union's position on a particular bargaining issue was found violative of section 8 (a) (1). Matter of American Book-Stratford Press, Inc., 80 N. L. R. B., No. 142.