that, under these circumstances, the newly constituted organization had been established in violation of section 8 (2) of the act. 91

Of course a genuinely unassisted labor organization, completely different and distinct from a previously existing dominated organization, is not proscribed by the act. 92

E. INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES

Section 9 (c) of the act provides that—

Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under section 10 or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.

By virtue of section 9 (a) of the act, representatives designated or selected for the purposes of collective bargaining by a majority of the employees in an appropriate unit are 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. For an employer to refuse to bargain collectively with such representatives is, by virtue of section 8 (5), an unfair labor practice which the Board is empowered to prevent.

The purpose of section 9 (c) is to give the Board the necessary investigatory power to determine whether or not a majority of the employees in an appropriate unit desire a particular representative to bargain collectively for them. As stated in section 9 (c), this investigatory power may be exercised in conjunction with a proceeding under section 10 to determine whether an employer has committed an unfair labor practice, but the proceeding under section 9 (c) is separate and apart from proceedings involving unfair labor practices. Thus, a proceeding under section 9 (c) results merely in a certification that a particular representative has been chosen by a majority of the employees in an appropriate unit, if such in fact is the case, and does not result in an order requiring the employer to cease and desist from an unfair labor practice or to take any affirmative action.

An investigation under section 9 (c) involves the determination of many questions which also arise in proceedings involving unfair labor practices. The question of what constitutes an appropriate unit and the question of whether a majority of the employees in such unit have designated and selected a representative for the purposes of collective bargaining must be determined both in a proceeding under section 8 (5) and in a proceeding under section 9 (c). These problems are therefore treated separately. The problem of whether or not the question concerning representation affects commerce is identical with

93

1 Cf. Matter of Douglas Aircraft Company, Inc. and United Automobile Workers of America, International Union. Douglas Local No. 214, 10 N. L. R. B. 242. petition to review filed December 21, 1938 (C. C. A. 8). See also, Matter of Inland Steel Company and Steel Workers Organizing Committee, et al., 9 N. L. R. B. 783, petition to review filed January 4, 1934 (C. C. A. 7); Matter of Kansas City Power & Light Company and International Brotherhood of Electrical Workers, Local Union B-12, 12 N. L. R. B. 1414, petition to review filed June 10, 1939 (C. C. A. 8): Matter of El Paso Electric Company, a corporation and Local Union 585, International Brotherhood of Electrical Workers, 13 N. L R. B., No. 28.

Matter of Wisconsin Telephone Company and Telephone Operators Union, Local 175-A, International Brotherhood of Electrical Workers, 12 N. L. R. B. 375; Matter of Mohawk Carpet Mills, Inc. and Textile Workers Organizing Committee, 12 N. L. R. B. 1265. See sec. F and sec. G, infra, this chapter.

the problem of whether an unfair labor practice affects commerce, and is likewise treated elsewhere.94

1. THE EXISTENCE OF A QUESTION CONCERNING REPRESENTATION

The act seeks to encourage the practice and procedure of collective bargaining through employee representatives of their own choosing. One of the main obstacles to such collective bargaining is uncertainty or disagreement concerning who has been designated by the employees as their representatives. Section 9 (c) is designed to remove this obstacle by creating machinery for the determination of such representatives. Therefore, pursuant to the policy and provisions of the act, the Board finds that there is a question concerning representation whenever collective bargaining may be encouraged by removing this obstacle through the use of the machinery devised in section 9 (c).95 But if the evidence fails to establish the existence of this obstacle, as in a case where the employer is willing to bargain collectively with a union and has entered into an agreement with it, in effect at the time of the Board's decision, recognizing it as the representative of the employees in an appropriate unit, there is normally no need for the use of the machinery of section 9 (c) and, accordingly, the Board finds that there is no question concerning representation.96 Similarly, no purpose is served by proceeding under section 9 (c) where no labor organization seeks to bargain with an employer or has any present intention of doing so.97

Even a refusal to bargain collectively does not always indicate that a question concerning representation exists, if the obstacles to collective bargaining are not such as the act empowers the Board to remove. Thus such a question does not exist if the union whose demand has been refused has been designated as bargaining representative by none or only a few, relatively, of the employees in an appropriate unit.98

A question concerning representation must exist at the time of the Board's decision. In Matter of American France Line and International Seamen's Union of Amer.," the Board dismissed a petition requesting an investigation and certification of representatives without prejudice to the filing of a new petition, where, because of unusual delay since the filing of the petition, there no longer was any basis for assuming that a question concerning representation, which might have existed at the time of the filing of the petition, still existed at the time of the Board's decision.

(A) THE EFFECT OF EXISTING CONTRACTS

As in previous years, a number of cases have presented the question whether an existing valid contract constitutes a bar to an investiga

94 See ch. VIII, post.

95 See, for example, Matter of George G. Averill and Fresh Fruit & Vegetable Workers Union, Local 78, 13 N. L. R. B., No. 48 (employer denied that union represented majority in appropriate unit).

96 Matter of Century Woven Label Co. and Century Woven Label Union, No. 21116, 8 N. L. R. B. 665.

Matter of J. & A. Young, Inc. and Rose Amanzio, 9 N. L. R. B. 1164.

98 Matter of Century Woven Label Co. and Century Woven Label Union, No. 21116, 8 N. L. R. B. 665.

99 12 N. L. R. B. 766. In this case, the petitions were filed in June 1937 and elections were held, beginning in September 1937, among the employees of all but 11 of the 52 companies involved. The Board on May 8. 1939, dismissed the petitions involving the employees of the 11 companies where no elections had been held. For a similar case, see Matter of Int. Freighting Corp. and Int. Seamen's Union of Amer., 12 N. L. R. B. 785.

tion and certification of representatives by the Board. In Matter of F. E. Booth & Co. and Monterey Bay Area Fish Workers Union No. 23,1 the Board found that a contract, which did not expire until several months after the date of the Board's decision and related to seasonal employees, did not constitute a bar to an investigation, because the current working season had nearly ended at the time of the Board's decision and the next working season would not begin until after the expiration of the contract. Similarly, a question concerning representation is not precluded by a contract which becomes inoperative before it is to terminate. Thus in Matter of Sound Timber Co. and Int. Woodworkers of Amer., the union, after the signing of a contract, became inactive and abandoned all efforts to represent the employees, all of whom became members of another union. Under such circumstances, the Board held the contract was no bar to an investigation and certification of representatives.

4

Similarly, to prevent undue restriction on the selection of representatives by employees, the Board has followed the principle that a contract does not constitute a bar to an investigation or certification of representatives where it covers an undue length of time and has been in effect for at least a year. But in Matter of The National Sugar Refining Co. and Local 1476, Sugar Refinery Workers, Int. Longshoremen's Ass'n, in the interest of the stabilization of industrial relations, the Board held that since the contract was not to last for more than a year, it did constitute a bar to an investigation and certification of representatives until such time as it was about to expire, where at the time it was signed the contracting union represented a majority of employees in an appropriate unit and no opposing union having members among the employees had given notice of its claims to the employer or the contracting union.

Individual contracts of employment do not constitute any bar to an investigation and certification of representatives, since they are usually opposed to, rather than the result of, true collective bargaining and do not reflect the desires of the employees concerning representation."

(B) THE EFFECT OF PRIOR ELECTIONS AND CERTIFICATES

As in the case of contracts, the Board has attempted to give all the effect possible to prior elections and certifications without thereby restricting the employees in the exercise of their right to select bargaining representatives of their own choosing. If the prior election, because of the circumstances under which it was conducted, does not

110 N. L. R. B. 1491.

28 N. L. R. B. 844.

*

Matter of Columbia Broadcasting System, Inc. and Amer. Communications Ass'n, 8 N. L. R. B. 508 (decided July 22, 1938; contract entered into in June 1937, to expire in October 1942). In this case the Board said: "** * we are of the opinion that it would be contrary to the policies and purposes of the act to refuse to order an election or certify representatives on the basis of a contract which has already been in effect for a period of more than a year.' Matter of M. & J. Tracy, Inc. and Inland Boatmen's Union, 12 N. L. R. B. 936 (decided May 13, 1939; contract entered into in March 1937, to expire in March 1940).

10 N. L. R. B. 1410 (contract to last a year, only 6 months of which had expired at time of Board's decision). Board member Edwin S. Smith dissented from this decision on the ground that, although the contract was to last for only a year, 2 years had elapsed since the Board had held a consent election among the employees of the company, and there was evidence that the contracting union no longer represented a majority of employees. Cf. Amer. Hair & Felt Co. and Jute, Hair & Felt Workers Local No. 163, 15 N. L. R. B., No. 61 (decided September 22, 1939).

Matter of The Gates Rubber Co. and Denver Printing Pressmen and Assistants Union No. 40, 8 N. L. R. B. 303.

192197-40- -6

8

accurately reflect the wishes of the employees, no effect can be given to it. Therefore, as pointed out in the Third Annual Report, an election conducted by an employer constitutes no bar to an investigation and certification of representatives for employees. Nor does an election constitute a bar if it reflects the desires of but part of the employees involved. In Matter of Pacific Greyhound Lines and Amal. Ass'n of Street, Electric Railway and Motor Coach Employees of Amer., the Board decided that an election conducted less than a year ago by it among one group of a company's employees, which did not result in any certification of representatives, did not constitute a bar to a subsequent investigation and certification of representatives for a unit comprising all the company's employees."

A consent election conducted by a regional director a short time before the filing of a petition for investigation and certification of representatives constitutes a bar to such an investigation and certification, where the evidence shows that the election was a fair and proper one conducted among employees in an appropriate bargaining unit.10 But, as in the case of contracts lasting for over a year, the Board has decided that such a consent election, although held a short time before the filing of a petition, does not constitute a bar to an investigation by the Board if the results of another election will not be determined until a year after the results of the prior consent election have been announced. Similarly, a certification of representatives issued by the Board over a year ago does not constitute any bar to a new choice of representatives by the same employees.12

2. DIRECTIONS OF ELECTION

(A) DATE ON WHICH ELIGIBILITY OF WORKERS IS DETERMINED

The Board has adopted no fixed rule relative to the date to be used for the determination of the eligibility of employees to vote in an election, but has considered the circumstances existing in each case and endeavored, so far as possible, to extend the privilege of voting to all persons with sufficient employee status to fall within the appropriate unit and have an interest in the selection of a bargaining representative for it. Thus, as pointed out in the Third

At p. 138.

8 Matter of J. Wiss & Sons Co. and United Electrical, Radio & Machine Workers of Amer., 12 N. L. R. B. 601 (employer-conducted election held not unfair labor practice within the meaning of Section 8 (1) of the act, but such election and contract entered into with winning union held no bar to filing of subsequent petition for investigation and certification of representatives); Matter of Crystal Springs Finishing Co. and United Textile Workers of Amer., Local No. 10. 12 N. L. R. B. 1291.

99 N. L. R. B. 557 (prior Board election held among 600 bus drivers, resulting in victory by a small margin for one union, but in no certification of representatives since this union had not petitioned the Board for certification in the unit which it contended was appropriate; 300 other employees of company who did not vote in election were eligible to vote in election the Board directed in instant decision).

10 Matter of Godchaux Sugars, Inc. and Sugar Mill Workers' Union, 12 N. L. R. B. 568 (election held one week before filing of petition).

Matter of Waterman Steamship Corp. and Commercial Telegraphers Union, 10 N. L. R. B. 1079 (decided January 9, 1939; consent election held from June 23, 1937, to March 11, 1938).

12 Matter of New York & Cuba Mail Steamship Co. and National Organization Masters, Mates and Pilots of Amer., 9 N. L. R. B. 51 (decided October 5, 1938; prior certification on August 14, 1937); Matter of Todd-Johnson Dry Docks, Inc. and Industrial Union of Marine & Shipbuilding Workers of Amer., Local No. 29, 10 N. L. R. B. 629 (decided December 14, 1938; prior "certification" by Regional Director on September 16, 1937). Cf. Matter of Pennsylvania Greyhound Lines and Brotherhood of Railroad Trainmen, 13 N. L. R. B., No. 4 (decided June 2, 1939: prior certification on September 14, 1937).

13 See, for example, Matter of Clinton Garment Co. and Int. Ladies Garment Workers Union, 8 N. L. R. B. 775, where the Board ordered that the pay-roll period next preceding the date of the election should be used to determine eligibility to vote, because the company was a growing enterprise, constantly increasing the number of employees.

Annual Report,14 the question of the date on which eligibility to vote is to be determined is often important in connection with seasonal, temporary, intermittent, or part-time employees. Where the Board permits such classes of employees to participate in an election, it establishes standards of eligibility to prevent their participating where their period of employment with the company has been extremely short or intermittent or has not been recent.15

Similarly, where the Board has directed that an election or elections be held among the employees of several employers among whom there is a constant interchange of workers, the Board has set forth standards to determine among the employees of which employer an individual employee shall vote.16

The Board also attempts to hold an election at a time when the balloting will accurately reflect the untrammeled desires of the employees. Consequently, if the Board has found that the employer has engaged in unfair labor practices, it usually postpones the election until some future time after its decision, when the effects of the unfair labor practices will have been dissipated; but the Board will, in such cases, when requested to do so by all the parties involved, direct that an election be held forthwith.18

(B) GENERAL EXCEPTIONS GOVERNING ELIGIBILITY OF VOTERS

In pursuance of its policy of extending the privilege of voting to the largest number possible, consistent with the policies and purposes of the act, of persons who have sufficient employee status to fall within the appropriate unit and have an interest in the choice of a representative for collective bargaining for it, the Board has adopted the rule that all employees on the pay roll used to determine eligibility shall be entitled to vote, including employees who did not work during this pay-roll period because they were ill or on vacation or had been temporarily laid off, and including employees who have

14 At pp. 140–141.

15 See, for example, Matter of Mobile Steamship Ass'n and Int. Longshoremen and Warehousemen's Union, 8 N. L. R. B. 1297 (longshoremen, banana handlers, and cle ks, and checkers who had worked in each of any 8 weeks during a 6-month period preceding Board's decision eligible); Matter of Aluminum Line and Int. Longshoremen and Warehousemen's Union, 8 N. L. R. B. 1325; Matter of Monon Stone Co. and Quarry Workers' Int. Union of N. Amer., 10 N. L. R. B. 64 (quarry employees who had worked for at least 60 days during year preceding Board's decision eligible); Matter of KMOX Broadcasting Station and St. Louis Local, Amer. Federation of Radio Artists, 10 N. L. R. B. 479 (radio artists who performed before microphone in any regular program at any of four radio stations involved at any time during 3-month period preceding Board's decision eligible); Matter of Southern California Gas Co. and Utility Workers Organ. Comm., Local No. 132, 10 N. L. R. B. 1123 (only temporary employees who had had 6 weeks' work within a 15-week period immediately preceding date of election eligible); Matter of F. E. Booth & Co. and Monterey Bay Area Fish Workers Union No. 23, 10 N. L. R. B. 1491 (fish cannery employees who had worked for 6 days during 6-month period preceding date of decision eligible); Matter of Union Premier Food Stores, Inc. and United Retail & Wholesale Employees of Amer., 10 N. L. R. B. 370, 11 N. L. R. B. 270 (part-time employees who had worked during any part of 3 of the 4 weeks immediately preceding date of Board's decision eligible).

is See, for example, Matter of Mobile Steamship Ass'n and Int. Longshoremen and Warehousemen's Union, 8 N. L. R. B. 1297 (employee to vote with employees of company which had employed him greatest amount of time during 6-month period preceding Board's decision): Matter of Aluminum Line and Int. Longshoremen and Warehousemen's Union, 8 N. L. R. B. 1325: Matter of Monon Stone Co. and Quarry Workers' Int. Union of N. Amer.. 10 N. L. R. B. 64 (employee to vote with employees of company for which he had worked for longest aggregate period during year preceding Board's decision); Matter of F. E. Booth & Co. and Monterey Bay Area Fish Workers Union No. 23, 10 N. L. R. B. 1491 femployee to vote with employees of company which had employed him on greatest number of days during 6-month period preceding Board's decision; where employee had worked same number of days for two or more companies, his vote to be cast with employees of company which had last employed him; all periods of time to be computed by days; number of hours of employment per day not to be considered).

17 See Third Annual Report, p. 142.

18 Matter of Ward Baking Co. and Comm. for Industrial Organization, 8 N. L. R. B. 558.