V THE NATIONAL LABOR RELATIONS ACT IN PRACTICE: During the past fiscal year the representation cases arising under the Act have continued to constitute an increasingly important part of the Board's work. In these cases, which are governed by Section 9 of the Act,' three basic questions are presented: (1) whether a question concerning representation has arisen, (2) how it should be resolved, and (3) what is the appropriate unit. WHEN A QUESTION CONCERNING REPRESENTATION ARISES Disputes respecting whether an exclusive representative has been selected by the employees frequently arise because of the employer's expressed doubt as to whether a majority of the employees have selected such a representative, the competing claims of rival unions, or disagreement as to the classifications of employees that constitute an appropriate unit. Under Section 9 (c) of the Act the Board may settle a dispute of this nature by investigating the question, determining the choice of the employees by secret ballot, or by other means, and thereafter certifying to the parties the exclusive representative if one is designated. Such a certification does not result in any order to the employer to take any affirmative action or to cease and desist from engaging in any conduct, but merely results in the certification of a fact determined as a result of the investigation-that a particular labor organization has been chosen by a majority of the employees in the unit found to be appropriate by the Board. If no representative is found to have been selected, the Board dismisses the proceeding. The factual situations which give rise to the existence of a question concerning representation are diverse and varied. As has been stated in prior Annual Reports, the Board finds a question to exist where the employer declines to recognize a union as the exclusive representative 1 Section 9 of the National Labor Relations Act provides that the representative selected for the purposes of collective bargaining by a majority of the employees in a unit appropriate for such purposes, is the exclusive collective bargaining representative of all the employees in such unit. The Act requires that the Board decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining and otherwise to effectuate the policies of the Act, the unit appropriate for collective bargaining purposes is "the employer unit, craft unit, plant unit, or subdivision thereof." When a question concerning the representation of employees is raised the Board may investigate and certify the representative, if any, chosen by the majority of the employees in the appropriate unit. 558154-44 43 either because of a doubt as to its majority status, disagreement with respect to the composition of the appropriate unit, a desire to secure formal Board determination of the existence of a question and the appropriate unit, or where rival unions are competing for the right to act as the representative of the employees. The Board customarily requires that the union petitioning for a determination of representatives present substantial proof in the form of membership records or cards authorizing it to act as the bargaining representative of the signers, or in some other appropriate manner 3 indicate that it is likely to be selected by the employees. The Board requires that such a prima facie showing of substantial representation be made in order to prevent its process and the time and efforts of employees as well as employers from being dissipated and wasted by proceedings instituted by organizations that have little or no chance of being designated as the exclusive representatives by the employees. In cases where the company is presently operating under a contract providing for the closed shop or some other form of maintenance of membership, the Board accepts as substantial a smaller representation showing than in cases where no such contractual provisions exist." The Board is reluctant to undertake the resolution of a jurisdictional dispute between two or more unions affiliated with the same parent organization. It will, however, proceed with an investigation of representatives in a case involving a dispute between coaffiliates where a union not a party to the jurisdictional dispute is a party to the case, or where it appears from the circumstances that there is little substantial prospect that the controversy will be resolved by the parent organization. Thus, elections have been ordered in cases where the affiliated unions involved had agreed that the Board should settle the controversy since the parent organization was unable to do so, and where the dispute was of such long standing that effective resolution by the parent body appeared unlikely. Another problem, which has been presented to the Board as a result of the war economy, is that arising from rapidly expanding employment because of the creation of new plants and the expansion of existing plants. In such situations the Board must decide, in order to assure some measure of orderly collective bargaining procedure, whether to proceed to a determination of representatives prior to the time the normal or full complement of employees is reached, or whether The Board does not, in a representation proceeding, inquire into the bona fides of the employer's doubt as to majority, inasmuch as the union has elected to have its majority status determined in a representation proceeding rather than by filing charges of refusal to bargain. In Matter of Chicago Molded Products Corp., 49 N. L. R. B. 756, the Board found two petitions, one reciting that the signers wished to withdraw from the contracting union and the other that they desired the Board to conduct an election, to be appropriate evidence of representation showing. Since this is the only purpose of the requirement, the Board does not permit examination at the hearing into the validity of the evidence or the statements made by the Board agent who has investigated and reported thereon. The Board's agents, of course, are required to satisfy themselves that the evidence submitted and reported on appears valid and genuine. Matter of Sayles Finishing Plants, Inc., 49 N. L. R. B. 532; Matter of Superior Coach Corp., 49 N. L. R. B. 873. See Matter of Montgomery Ward & Co., Inc., 50 N. L. R. B. 163. Matter of Iowa Electric Light & Power Company, 46 N. L. R. B. 230. See also Matter of Fitzhugh, Inc., 47 N. L. R. B. 606. • Matter of Kistler Stationery Company, 51 N. L. R. B. 978. to delay conducting an election for an indefinite period which obviously would tend to deny to a large group of employees the rights guaranteed to them in the Act. The question further arises as to the length of time for which a certification under such circumstances should be regarded as operative. In an effort to meet these problems, the Board has on occasion ordered elections where a representative group of employees was presently employed but has provided that on appropriate petition it will reexamine the question of representation within less than the usual 1-year period if there has been a substantial increase in the number of employees within less than a year after certification. Where, however, the company has in its employ approximately onehalf of the expected full complement to be reached in a year, the Board has continued to follow its normal procedure of ordering an election and certifying the successful union without any qualification as to the time within which a new petition would be entertained. After the close of the fiscal year the Board restated and clarified its policy in this respect, in Matter of Aluminum Company, 52 N. L. R. B. 1040. In that case, the company had in its employ at the time of the hearing approximately 30 percent of its expected full complement, which it hoped to reach about 7 months after the hearing. The Board ordered an election, in order to avoid the postponement of collective bargaining for the substantial and representative group of workers presently employed. Noting, however, that 50 percent of the quota might not be reached for 2 or more months after issuance of the decision, it provided for the contingency that within a period of less than 1 year following the certification, the company's pay roll might be more than doubled, stating: we shall entertain a new representation petition affecting the employees involved herein within a period less than 1 year, but not before the expiration of 6 months, from the date of any certification which we may issue in the instant proceedings, upon proof (1) that the number of employees in the appropriate unit is more than double the number of employees eligible to vote in the election hereinafter directed; and (2) that the petitioning labor organization represents a substantial number of employees in the expanded unit. THE EFFECT OF EXISTING CONTRACTS OR PRIOR DETERMINATIONS With the increased acceptance of the practice of collective bargaining, the Board is petitioned in an ever-increasing number of cases to conduct an investigation of representatives affecting employees who, assertedly, are already represented by a collective bargaining agent other than the petitioner. In many cases it appears that the established bargaining agent has entered into a contract with the employer covering the employees whom the petitioning labor organization seeks to represent. In these situations the Board conceives its task to be that of balancing the interest of employees and society in such stability as is essential to the effective encouragement of collective bargaining, against the sometimes conflicting interest in the freedom of employees to select and change their representatives at will. In the per • Matter of The Trailer Company of America, 51 N. L. R. B. 1106; Seventh Annual Report, p. 54. formance of this task, with which it has been confronted in a long line of cases involving bitter contests between unions, the Board has evolved certain rules of general application which serve to determine whether the interest in stability or the interest in freedom of choice should control.10 During the past fiscal year the Board has had occasion in a number of cases to reiterate and clarify these governing principles. In general it has long been the Board's practice to dismiss a representation petition where substantially less than a year has elapsed since bargaining relations were established by the designation of an exclusive bargaining agent," of by the execution of a contract covering the employees whom the petitioner seeks to represent.12 The term of the contract, if it is reasonable under the circumstances, will be taken as determinative of the period during which the status of the presently recognized bargaining agent should remain undisturbed.13 Although 1 year is customarily recognized as the reasonable contract term, an agreement to be in effect for a longer period will be held to bar an investigation of representatives if it is the custom in the particular industry to make such long-term contracts.14 A contract renewed for a further term by the operation of an automatic renewal clause, in the absence of a prior claim by a rival union, will be given the same effect as a contract originally executed less than a year or other reasonable period prior to the time the petition is considered by the Board.15 An existing agreement will not be held to bar an investigation of representatives, however, unless it fulfills certain conditions essential to achieve the desired stability of labor relations and accomplish the purposes of the Act. To serve as a bar, the contract must be in writing and fully executed; it must provide for exclusive recognition of the contracting union; and it must contain the customary written terms covering conditions of employment. Accordingly, the Board has proceeded to an election where the petitioner's claim of representation was asserted in the face of an oral agreement not reduced to writing.16 Similarly, an agreement which has been orally extended to, or later construed as covering, a plant which was not in existence when the contract was made, is regarded as no bar to an immediate resolution of a question of representation affecting employees at the new plant." The same result is reached where the contract covers 10 See Matter of Basic Magnesium, Inc., 48 N. L. R. B. 1310, where the Board, noting that the position of the rival labor organizations was precisely the reverse of their positions in Matter of Eicor, Inc., 46 N. L. R. B. 1035, pointed out that a departure from the doctrine enunciated in the earlier case would seem capricious. 11 See Fifth Annual Report, p. 55; Seventh Annual Report, p. 56. 12 See Third Annual Report, p. 136; Fourth Annual Report, p. 75; Fifth Annual Report, pp. 55-56; Sixth Annual Report, p. 55; Seventh Annual Report, p. 55. 13 See Matter of Thompson Products, Inc., 47 N. L. R. B. 619, where subsequent to a run-off election but 5 months prior to the Board's certification, the certified union and the employer entered into a 1-year collective bargaining contract. The Board held that the term of the contract, rather than the date of the certification, was the controlling factor in determining when another election might be held. 14 See Seventh Annual Report, p. 55; Matter of Inland Container Corporation, 47 N. L. R. B. 952. 1 Seventh Annual Report, pp. 55-56; Matter of The Cleveland Container Company, 47 N. L. R. B. 1309; Matter of North Range Mining Co., 47 N. L. R. B. 1306. 10 Matter of Eicor, Inc., 46 N. L. R. B.10.5; Matter of Cattie and Brothers, Incorporated, 47 N. L. R. B. 81; Matter of Basic Magnesium, Inc., 48 N. L. R. B. 1310; Matter of Daniel Burkhartsmeier Cooperage Co., 49 N. L. R. B. 428. 17 See Matter of Revere Copper and Brass Incorporated, 47 N. L. R. B. 817; Matter of Menasha Wooden Wa Corporation. 48 N. L. R. B. 366. only the members of the contracting union,18 or where it provides, merely, for exclusive recognition but contains no provisions fixing conditions of employment." Conversely, in Matter of Allis-Chalmers Manufacturing Company,20 the Board held that a determination of representatives was barred by a contract which provided for more than bare recognition of the contracting union, although the terms of agreement as to certain basic issues, including union security, seniority, and lay-offs were held in abeyance until the indefinite future date when the National War Labor Board should have issued its decision in certain related cases. The Board also takes the view that the interest in stability is not served by postponing an investigation of representatives where there is substantial doubt as to the identity of the contracting union or its ability to continue to administer the agreement and otherwise function as the bargaining representative of the employees whom the petitioner seeks to represent. Accordingly, the Board has ordered an election where the contracting union had been formally dissolved subsequent to the execution of the contract, or where, due to other circumstances, such as schism or the defection of substantially the entire membership there was doubt as to its identity or continued existence." Similarly, the Board ordered an election where, less than a year after certification, the certified union had become defunct.22 Since it is contrary to the purposes of the Act to perpetuate a condition in which the opportunity for collective bargaining is restricted, the Board in another case entertained a petition for investigation of representatives where the petitioning union, having 5 months previously lost an election in which no representative was chosen, had agreed with the employer that it would not file a new petition for a year.23 24 In Matter of Chase Brass & Copper Co., Inc., and Matter of Sardik Food Products Corporation,25 as well as in two more recent cases involving rapidly expanding war plants,26 the Board indicated that a contract purporting to cover employees in a plant which, since the execution of 18 See Sixth Annual Report, p. 55; Seventh Annual Report, p. 55. Matter of National Lead Company, et al., 45 N. L. R. B. 182; Matter of Lone Star Cement Corporation, 45 N. L. R. B. 1298; Matter of Robert P. Scherer, et al., doing business as Gelatin Products Company, 49 N. L. R. B. 173; Matter of Armour Leather Company of Delaware, 51 N. L. R. B. 1091, Matter of Brenizer Trucking Company, et al., 44 N. L. R. B. 810; Matter of Harbison-Walker Refractories Co., 44 N. L. R. B. 1280; Matter of Atlantic Waste Paper Company, Inc., 45 N. L. R. B. 1087; Matter of Kay and Ess Company, 48 N. L. R. B. 1387; Matter of Central Pattern & Foundry Company, 51 N. L. R. B. 400; Matter of California Central Fibre Corporation, 44 N. L. R. B. 1226; Matter of Morrison Steel Products, Inc., 50 N. L. R. B. 72, Matter of Nashville Bridge Company, 49 N. L. R. B. 629; Matter of Sunshine Mining Company, 48 N. L. R. B. 301; Matter of Wilson Packing and Rubber Company, 51 N. L. R. B. 910. Matter of Helena Rubenstein, Inc., et al., 47 N. L. R. B. 435. See also Matter of Hydraulic Press Brick Company, 47 N. L. R. B. 286; Matter of Container Corporation of America, 49 N. L. R. B. 929; Matter of John Deere Tractor Company, 47 N. L. R. B. 1316; Matter of Kansas City Star Company, 47 N. L. R. B. 386. Matter of General Aircraft Corporation, 49 N. L. R. B. 916; see also Matter of Packard Motor Car Company, 47 N. L. R. B. 932; Matter of Briggs Indiana Corporation, 49 N. L. R. B. 920; Matter of Ford Motor Company, 47 N. L. R. B. 939; 946. #447 N. L. R. B. 298. 25 46 N. L. R. B. 894. Matter of Aluminum Company of America, et al., 49 N. L. R. B. 1431; Matter of Aluminum Company of America, 51 N. L. R. B. 1295. |