voted against." The Board found they had voted for collective bargaining on whatever basis the industrial union was able to represent them. The Board observed that under the circumstances the employees in each group could not know in advance in which of the other groups the industrial union would be successful, and that therefore a vote for the industrial union could not be interpreted as a vote for inclusion in any particular unit-such as the predetermined plantwide unit but must be construed as a desire for inclusion in the unit which the industrial union might eventually represent even if that unit consisted of a single voting group. In the Board's opinion, this view was reinforced by the fact that the employees did not avail themselves of the "no-union" choice.40

A self-determination election will be directed also where a union seeks to enlarge an existing unit by including a distinct group of employees which has not been part of the unit and has not been afforded an opportunity to participate in the choice of the original unit's representative." On the other hand, a majority of the Board declined to direct an election in the case of mere accretions to an existing unit. The majority pointed out that: The employees involved did not constitute distinct fringe groups; "only historical accident" had caused these employees to be omitted from the union's contracts in the past; and the original piecemeal units in the plant had been effectively merged into a single group so that only a company-wide unit was now appropriate. In one case, however, a Board majority reaffirmed the policy of granting a self-determination election to employees sought to be included in an existing unit, in a situation where the group involved had been separately represented over a 9year period.43

5. Multiplant Units

The question of the appropriateness of a multiplant unit was involved in a number of cases. As heretofore, the Board in determining the issue took into consideration the bargaining history of the employees involved," the functional integration of the employer's

40 The Board rejected the contention that its determination was in conflict with the provisions of sec. 9 (c) (5) which prohibits the Board from giving controlling weight to the extent of organization among the employees involved. In the Board's view, sec. 9 (c) (5) has reference only to preelection unit determinations, but not to a union's limited success in a series of "Globe" elections.

41 J. R. Reeves, et al., 89 NLRB No. 1; Great Lakes Pipe Line Co., 88 NLRB No. 225. 42 Lone Star Producing Company, 85 NLRB 1137 (Board Member Reynolds dissenting). 43 Illinois Cities Water Co., 87 NLRB 109, overruling York Motor Express Co., 82 NLRB 801 and Tingling & Powell, 82 NLRB 526. (Board Members Houston and Murdock dissenting.) However, the petition in the case was dismissed, without prejudice, because of the petitioner's failure to make an appropriate showing of interest in the smaller group. 44 The Great Atlantic & Pacific Tea Co., 85 NLRB 680; Kindy Optical Co., 85 NLRB 940; Westinghouse Electric Corp., 89 NLRB No. 11.

plants, centralization of management" and supervision," employee interchange, and the geographical location of the several plants."

48

Where the employees at all or several like plants of one employer have been treated historically as a single unit, the Board will ordinarily not permit the severance of one of the constituent plant groups.50 This reluctance on the part of the Board to disturb a historically recognized employee group extends to those cases in which severance is sought for craftsmen in one plant rather than for all members of the craft in the multiplant unit.51 Multiplant units have been found most frequently in the case of public utilities 52 because of the highly integrated and interdependent nature of their operations, and the centralized control over labor relations.

53

In 1 case, a single plant unit was found appropriate rather than a unit comprising 13 out of the employer's 60 meat packing plants, even though the 13 plants had been covered by successive master contracts for 6 years. The majority of the Board pointed out that those contracts left numerous matters to be negotiated at the local plant level and gave no clear indication that the parties, whose convenience they served primarily, intended to effect a consolidation of the 13 plant units and to extinguish the right of the employees in those units to select and change their representatives separately. Consequently, the majority declined to give decisive weight to the contractual bargaining history, particularly because the 13 plants did "not comprise any functional, administrative or geographical sector of the employer's business organization." The majority concluded

There is no Board doctrine that constrains us to find effective consolidation of employees in many separate and widely scattered plant groups where, as here, the record does not even show that the historical collective bargaining was designed

45 Kindy Optical Co., supra; American Shuffleboard Co., 85 NLRB 51; Lone Star Producing Co., 85 NLRB 1137; Norfolk Coca-Cola Bottling Works, Inc., 86 NLRB 462; Permanente Metals Corp., 89 NLRB No. 88; Nashville Display Co., 89 NLRB No. 14.

46 American Shuffleboard Co., supra; Permanente Metals Corp., supra; Jacksonville Linen Service, Branch of the National Linen Service Corp., 89 NLRB No. 180; Southwestern Electric Service Co., 89 NLRB No. 6. Chadbourn Hosiery Mills, Inc., 89 NLRB No. 157; Mixer and Co., 86 NLRB 656; Lone Star Producing Co., supra; The Harris Clay Co., 88 NLRB No. 177.

48 Great Atlantic & Pacific Tea Co., supra; Lone Star Producing Co., supra; Union Asbestos and Rubber Co., 86 NLRB 321; Westinghouse Electric Corp., 87 NLRB 203.

B. F. Goodrich Co., 87 NLRB 1355; Farrington Mfg. Co., 87 NLRB 1051; Nashville Display Co., 89 NLRB No. 14; Southwestern Electric Service Co., 89 NLRB No. 6. 50 The Fort Industry Co., 88 NLRB No. 110; Manhattan Sponging Works, 90 NLRB No. 7. 51 West Virginia Pulp & Paper Co., 89 NLRB No. 82; see also American Steel Foundries, 85 NLRB 19.

52 Southwestern Electric Service Co., 85 NLRB 4; Del Rio & Winter Garden Telephone Co., 85 NLRB 199; The Ohio Bell Telephone Co., 87 NLRB 1555; Pacific Gas and Electric Co., 87 NLRB 257; New England Telephone and Telegraph Co., 90 NLRB No. 102. But cf. Southwestern Electric Service Co., 89 NLRB No. 24, where the Board pointed out that while the company-wide unit is the optimum unit in public utilities, such unit is not at all times and in all circumstances the only appropriate unit, particularly where no union seeks to represent a group of employees on a company-wide basis.

53 Hygrade Food Corp., 85 NLRB 841 (Board Member Reynolds dissenting).

to achieve such consolidation. Much less is it a rule of this Board to find appropriate any unit that may have been desired and agreed upon by the employer and a bargaining representative in the past where, as here, that unit does not conform reasonably well to other standards of appropriateness. Section 9 (b) of the act provides that "The Board shall decide," and "in each case," what unit is appropriate for collective bargaining purposes.

6. Multiemployer Units

54

Where several independent employers engage in joint collective bargaining negotiations, either as members of an association or by individual designations of a joint bargaining agent, the Board will establish a multiemployer unit, if requested. In such cases, the absence of a formal employers' association for bargaining purposes does not preclude the establishment of a multiemployer unit where the employers, through an authorized representative, have participated in bargaining as a group rather than on an individual basis.55 In the case of association-wide units, the Board will include only the employees of those employers who are actually members of the association and have participated in group bargaining.56 Thus the Board excluded from a multiemployer unit the employees of one employer who had adopted and signed the standard contracts resulting from joint negotiations, but had never participated in the joint negotiations or specifically delegated to any of the participating employers authority to negotiate on his behalf.57 Conversely, where all members of an association participated in joint bargaining, a unit limited to the employees of only some of the participating employers was held inappropriate.58

60

While the Board takes into consideration the bargaining history,59 it is primarily guided by the desires of the parties in determining the appropriateness of multiemployer units. For example, where after the Board's finding of such a unit the employers involved abandoned all group bargaining and elected to pursue individual courses of action, the Board, upon a motion for reconsideration, set aside its prior finding and held individual employer units appropriate. In another case,

Columbia Marble Co., et al., 89 NLRB No. 200.

55 Johnson Optical Co., et al., 85 NLRB 895.

Indianapolis Cleaners and Launderers Club, 87 NLRB 472; see also Association of Motion Picture Producers, Inc., et al., 85 NLRB 902.

57 Bunker Hill and Sullivan Mining and Concentrating Co., 89 NLRB No. 8.

58 Association of Motion Picture Producers, Inc., et al., 85 NLRB 902.

59 Johnson Optical Co., et al., 85 NLRB 895; Association of Motion Picture Producers, Ino., et al., supra; Epp Furniture Co., et al., 86 NLRB 120; Balaban & Katz (Princess Theater), 87 NLRB 1071; Chicago Typographical Union No. 16, et al. (Printing Industry of America, etc.), 87 NLRB 1418; General Optical Co., et al., 88 NLRB No. 89; Central Baking Co., 90 NLRB No. 90.

60 See RKO Radio Pictures, Inc., 90 NLRB No. 58.

Johnson Optical Co., et al., 87 NLRB 539; see also The Association of Motion Picture Producers, Inc., et al., 88 NLRB No. 190.

62

the Board excluded from an association-wide unit the employees of those association members who affirmatively indicated a desire to bargain individually. And, where originally a single unit had been found for the employees of seven employers, a separate unit for the employees of one of these employers was established after he indicated his desire to pursue an independent course of action.63 However, in the Johnson Optical case, the Board found a multiemployer unit appropriate despite the fact that the employers had concurred in the petitioning union's request for separate units. The Board, while relying mainly on the successful 13-year bargaining history of the group during which a labor relations consultant had bargained on behalf of the several employers, took into consideration the additional fact that the employers' agreement with the union's request for separate units was not accompanied by any indication that they intended to abandon their concerted course of action on labor relations.

The Board is often called upon to determine the appropriateness of a unit where the employers involved are interrelated through stock ownership, common control, or highly integrated operations. The Board has consistently treated such companies as a single employer in its unit determination. Thus, in view of their common over-all management and control of labor relations, a bus company and a retail service station, while separate corporate entities, were held to be a single employer whose employees could constitute a single appropriate unit. In another case, the Board similarly found that three separate companies with common officers, highly integrated operations, and unified labor policies constituted a single employer for the purposes of a unit determination.67

65

7. Professional Employees

Section 9 (b) (1), which codified established Board practice, forbids the inclusion of professional employees in a unit with nonprofessional employees unless a majority of the professional employees vote for inclusion. Consequently, the Board in a number of cases either excluded professionals from the unit found or directed self-determi

63 Kindy Optical Co., 85 NLRB 940; Henry J. Norts, Inc., 86 NLRB 580. 68 Epp Furniture Co., et al., supra.

64 85 NLRB 895.

The McMahon Transportation Co., Inc., et al., 89 NLRB No. 211.

66 South Georgia Pecan Shelling Co., 85 NLRB 591; see also Victor Hosiery Corp., et al., 86 NLRB 195.

67 But cf. Strathmore District Orange Association, et al., 85 NLRB 1029, where notwithstanding factors evidencing a high degree of integration of operations, the Board found three nonprofit cooperative associations to be separate and distinct entities whose labor policies were determined separately and whose employees, therefore, could not form a multiemployer unit.

es See Thirteenth Annual Report, p. 40.

69

nation elections among them. However, the Board has construed section 9 (b) (1) as not precluding the establishment of a single unit composed of both professional and nonprofessional employees, where the group is predominantly professional and includes only a small minority of nonprofessional employees. In such cases, the unit as a whole is held to qualify as a professional group.70

In determining whether employees are "professional" within the act's definition," the Board looks to the specific work performed by the employee concerned, rather than the employee's job classification." Thus, the Board found in one case that employees engaged in routine electrical and chemical testing were technical rather than professional employees; whereas it found another group of chemical testers in the same department were professional employees on the ground that practically all employees in the group had college degrees in chemistry or chemical engineering and performed work which involved continual use of their scientific knowledge." Similarly, the Board found a chemist who was not a college graduate to be a professional employee, because he had 18 years of laboratory experience and exercised independent judgment in performing analytical and experimental laboratory work, but found that another chemist who had a college degree in chemistry was not a professional employee, since he merely assisted in the testing of products under the close supervision of a nonprofessional laboratory head."

Kelsey Hayes Wheel Co., 85 NLRB 666; Boeing Airplane Co., 86 NLRB 368; Pacific Gas and Electric Co., 87 NLRB 257; General Electric Co., 89 NLRB No. 120; Westinghouse Electric Corp., 89 NLRB No. 11.

TO Boeing Airplane Co., supra.

Sec. 2 (12) of the act provides: "The term 'professional employee' means-(a) any employee engaged in work (1) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of high learning or a hospital as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical process; or (b) any employee, who (1) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a)." T The following types of employees were held to be professional employees under the circumstances of the respective cases: Chemist (Union Oil Company of California, 88 NLRB No. 185); cost and material estimators at gas and electric utility (Pacific Gas and Electric Co., 87 NLRB 257); metallurgist (Kelsey Hayes Wheel Co., supra); time-study employees (General Electric Co., 89 NLRB No. 120); methods engineers, technical writers, nurses, negotiation correspondents, laboratory technicians (Westinghouse Electric Corp., 89 NLRB No. 11). On the other hand, the Board held that the following workers were not professional employees; Artistic and photographic employees (Koopman-Neumer, 88 NLRB No. 125); research and control technicians at a chemical laboratory (Boeing Airplane Co., 86 NLRB 368); laboratory analyst performing routine functions (Victor Chemical Works, 85 NLRB 495).

7 Boeing Airplane Co., 86 NLRB 368.

14 The Colorado Milling and Elevator Co., 87 NLRB 1091.