c. Compliance of Affiliates 58

60

The Board has also had occasion to determine in a number of cases whether the petition of an international union was barred because of the noncompliance of the affiliate which eventually might represent the employees involved. In one case, compliance by the international, which was shown to be the real party in interest, was held sufficient, and it was held immaterial whether or not the international's constitution required the establishment of a local for the purpose of consummating collective bargaining.59 Compliance by a petitioning international was likewise held to be sufficient where it did not appear that a local, whose officers had been elected by the employees in the unit, existed as a functioning organization. But the petitioning parent of a noncomplying local, which did not appear to be the real party in interest, was placed on the ballot only with the understanding that its certification was to be vacated if later it should be shown that the noncomplying local participated in representation of the employees concerned. Similarly, where it was not clear whether a noncomplying local existed as a functioning organization, the complying international was placed on the ballot, but its participation in the election was conditioned upon full compliance by any local which might bargain for employees in several units.62 Intervening internationals were similarly omitted from the ballot where there was no clear showing that their noncomplying contracting locals were no longer in existence.63

64

In decertification proceedings, a noncomplying union will be placed on the ballot, but if it wins the election, it will be certified only if it is then in compliance or has renewed its lapsed compliance. In the absence of such compliance, only the arithmetic results of the election will be certified.

58 The compliance of parent federations is discussed in footnote 37, supra.

59 Farrell-Cheek Steel Co., 88 NLRB No. 83.

60 General Box Co., 89 NLRB No. 163.

61 Manistee Salt Works, 85 NLRB 147. See also Wells Manufacturing Corp., 85 NLRB 23. 62 Electric Products Co., 89 NLRB No. 24; Consolidated Electric Lamp Co. (Champion Lamp Works Division), 89 NLRB No. 41; Sylvania Electric Products, Inc., 89 NLRB No. 52; Apex Electrical Manufacturing Co., 89 NLRB No. 60; Signal Manufacturing Co., 89 NLRB No. 65. See General Motors Corp., Frigidaire Division, et al., 88 NLRB No. 112. For other situations in which the foregoing principles were applied see Westinghouse Electric Corp., 89 NLRB No. 11; Baldwin Locomotive Works, Eddystone Division, 89 NLRB No. 38; Fostoria, Ohio, Works of the National Carbon Division, Union Carbide and Carbon Corp., 89 NLRB No. 63; Foote Bros. Gear & Machine Corp., 89 NLRB No. 103; Foster Wheeler Corp., 89 NLRB No. 105; General Instrument Corp., 89 NLRB No. 135; Philco Corp., 89 NLRB No. 112; General Electric Co., 89 NLRB No. 120; Lennox Manufacturing Co., 89 NLRB No. 183.

63 Bowen Products Corp., 89 NLRB No. 20; Easy Washing Machine Corp., 89 NLRB No. 27.

64 Hercules Powder Co., 89 NLRB No. 3; Stauffer Chemical Co. of Texas, 85 NLRB 595; Pittsburgh Plate Glass Co., 90 NLRB No. 60.

65 Sterling Tool & Manufacturing Co., 89 NLRB No. 9.

THE

HE act requires that an employer bargain with the representative selected by a majority of his employees in a unit appropriate for collective bargaining. In determining the employees' choice for a bargaining agent, the Board may act only after a petition has been filed by the employees or any individual or labor organization acting in their behalf, or by the employer. Once a petition has been properly filed, the Board has full statutory power to determine the employees' choice of collective bargaining representative in any business or industry where a labor dispute might affect interstate commerce with the major exceptions of agriculture, railroads, and airlines. It does not always exercise that power, however, where small or local enterprises are involved. It also has the power to determine the unit of employees appropriate for collective bargaining.

The Board may formally certify a collective bargaining representative in a representation case only upon the basis of the results of a Board-conducted secret ballot election. Once certified by the Board, the bargaining agent is the exclusive representative of all employees in the appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. The right of a bargaining agent to exclusive representative status, however, is limited by a statutory proviso that any individual employee or group of employees has the right to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of any collective bargaining contract that may then be in effect. The statute requires, however, that the bargaining representative must be given an opportunity to be present at the adjustment.

The act also empowers the Board to conduct an election to decertify an incumbent bargaining agent which has been previously certified or which is being currently recognized by the employer. Decertification petitions may be filed by employees or individuals, or by labor organizations acting on behalf of employees.

Petitions for Board elections are filed in the regional office in the area in which the plant or business involved is located. The Board provides standard forms for the filing of petitions in all types of

cases.

During the 1950 fiscal year, 9,279 petitions for representation elections were filed in the Board's offices. During this period, the Board conducted 5,731 representation elections, in which 899,848 employees were eligible to vote. Bargaining representatives were selected in 4,223 of these elections. Collective bargaining representatives were thereby designated to represent a total of 759,000 employees, or approximately 84 percent of those involved in Board elections. More than 72 percent of the elections was conducted by agreement of the parties, without the necessity for formal decisional action by the Board Members. The Board Members, however, were called upon to make decisions in 2,483 representation cases during the year. In these decisions, they directed representation elections in 1,630 cases.

The act requires also that, before a bargaining agent may effectuate a contract with an employer for a union shop, a majority of the eligible employees must authorize it in a Board-conducted referendum. The act permits a union shop in which employees are required to become members of the union not less than 30 days after they are employed or 30 days after a union-shop contract is made, whichever is the later. Under this provision of the act, the Board conducted 5,591 union-shop authorization polls during the 1950 fiscal year. In these polls, 1,072,917 employees were eligible to vote. The employees authorized negotiation of union-shop contracts in 5,377 elections, or about 96 percent of those conducted. The bargaining agents were

thereby authorized to negotiate union-shop contracts covering a total of 1,045,162 employees.

The conditions under which the Board will direct representation elections and union-shop polls are discussed in the following sections of this chapter.

A. The Question of Representation

Proceedings before the Board to determine the choice of employees in the matter of a collective bargaining representative are technically of two types-proceedings to certify a bargaining agent and proceedings to decertify an incumbent bargaining agent. In both types of cases, the Board must determine whether or not a question of the representation of employees exists and whether or not there is sufficient interest in the question among the employees to merit the holding of an

election. If the Board finds that a question of representation exists, it can make a final determination of the employees' choice only by a secret-ballot election.

The Board's proceedings in both types of cases are set in motion by the filing of a petition. The filing of petitions and the proceedings are governed by section 9 (c) of the act. This section provides that a petition either for certification or for decertification may be filed (1) by employees or (2) by an individual or a labor organization on behalf of employees. An employer also may file a petition for a certification proceeding, when he is presented with a claim to recognition as bargaining agent by an individual or a labor organization.

1. Showing of Employee Interest

The first question that arises upon the filing of a petition in either type of representation case is whether there is sufficient support for the petition to merit the holding of an election. This is the first step toward determining whether a question of representation does exist. If the petitioner is an employee or group of employees, or an individual or labor organization acting on behalf of employees, section 9 (c) (1) (A) requires that the petition must allege the support of "a substantial number of employees." In administering this provision, the Board has consistently required a showing that at least 30 percent of the employees in the bargaining unit support the petition. This support may be shown to Board investigators by authorization cards signed by employees or by any other appropriate evidence. The requirement of this "showing of interest" is intended to avoid burdening the Board with the duty of conducting elections in cases where there is little likelihood that a majority representative will be chosen.2

In a representation proceeding initiated by an employer, no showing of interest is required."

Application of the showing of interest requirement frequently calls for determination of two questions: (1) Which parties to the proceed. ing must disclose their interest, and (2) what interest must each show. The statutory requirement applies only to petitioners, but often there is more than one individual or union claiming to represent the same group of employees. Manifestly, it would be impossible to conduct an orderly investigation of a representation question if every party who claimed any kind of interest in the case was allowed to participate in the proceeding. But, to be balanced against this need

1 Statements of Procedure, sec. 202.17. Example: Oklahoma Gas and Electric Co., 86 NLRB 437.

* See Fourteenth Annual Report, p. 21; Statements of Procedure, as amended August 18, 1948, sec. 202.17 (p. 42, Board edition).

P. R. Mallory & Co., Inc., 89 NLRB No. 121; J. O. Penny Co.-Store No. 1518, 86 NLRB 920.

4

for an orderly proceeding is the stated policy of the statute to assure employees of "the fullest freedom" in the "designation of representatives of their own choosing.” 5 The Board, out of its experience, has developed a number of rules as to the parties which may intervene in representation proceedings. Most common among those who have been held entitled to intervene are individuals or unions holding contracts with the employer which cover all or part of the employees involved, and individuals or unions which claim to represent all or part of the employees. The Board's rules also provide for intervention limited to the extent of the interest of the person or organization seeking intervention."

During the past year, the Board has mainly reaffirmed its longestablished rules regarding the admission of intervenors and the showing of interest required of them. However, it did deal with a number of points which arose for the first time during fiscal 1950.

In one case, the Board reaffirmed its rule that a party which seeks to intervene in order to be placed on the ballot must make some showing of an adequate interest,' such as a current or recent contractual or representative interest in the employees. However, an intervenor seeking the same industrial unit as the petitioner need not make a 30percent interest showing." Nor need a union make a showing if it is claiming to represent a unit substantially the same as that requested by a petitioning employer.10

In general, rival unions contending for representation of substantially different but overlapping units of employees are each required to make full showings of interest in the unit each seeks. In a case where one petition for a production and maintenance unit and other petitions for craft units were filed, the former was dismissed because no 30-percent showing had been made in the larger group." In the Electric Auto-Lite case,12 it was held necessary for an intervening labor organization, which sought a unit appreciably larger than that sought by the petitioner, to file a separate petition or make an administrative showing of interest which would support a petition for the larger unit. In Boeing Airplane Company,13 the Board, reversing its prior practice,1 ruled that a union which seeks to sever a craft unit from an

• Sec. 9 (a).

Sec. 1.

Rules and Regulations, Series 5, as amended, sec. 208.57.

"Norfolk Coca-Cola Bottling Works, Inc., 86 NLRB 462.

'Cf. Ninth Annual Report, p. 30; Eleventh Annual Report, p. 10, footnote 10.

• Comwell Co., 88 NLRB No. 148.

10 Westinghouse Electric Corp., 89 NLRB No. 11; General Electric Co., 89 NLRB No. 120. "Carbide & Carbon Chemicals Corp., 88 NLRB No. 98.

187 NLRB 129.

"Boeing Airplane Co., 86 NLRB 368.

14 Richfield Oil Corp., 59 NLRB 1554; ree also Standard Oil Co. (Ohio), Cleveland Division, 63 NLRB 1248; and General Tire and Rubber Co., 63 NLRB 182.