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bound by the acts of its agents, and "in determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified" is not controlling.

It was held in the Hornick case 58 that the breach by an employer of the terms of a collective agreement does not per se give the employees the right to bring an action before the National Labor Relations Board; however, if the employer refused to bargain prior to the breach, his action is an unfair labor practice. In the Sands case,59 the Board ruled that an employer may not refuse to discuss changes in a collective agreement. When this case reached the Supreme Court,60 several important points were decided. The Court, in denying enforcement of the Board's order, stated that (1) the purpose of the National Labor Relations Act is to compel employers to bargain collectively with their employees to the end that employment contracts binding on both parties should be made; (2) the Act does not forbid an employer to discharge an employee who has repudiated his agreement; and (3) as far as this subject is concerned, the concerted refusal of men to live up to their contract leaves the employer free to make a contract with a new labor union for the services of workmen to fill the places of former employees.

Types of Contracts Forbidden by Law. Employers may not, under the Taft-Hartley Act, enter into "yellow-dog" contracts, nor may they enter into contracts with company-dominated unions. Neither may they enter into contracts which have as their purpose the prevention of collective bargaining. Otherwise they may enter into individual contracts with their employees; but employees having individual contracts may, if they wish, demand collective agreements.62 The National Labor Relations Board has voided collective agreements held to be in violation of the Wagner and Taft-Hartley Acts; it has held that a contract between an employer and a minority union is void if a majority union exists; and it has voided contracts secured by means of unfair labor practices.63

58 In the Matter of Louise Hornick & Co., 2 N.L.R.B. 983, 994 (1937). 59 In the Matter of Sands Mfg. Co., 1 N.L.R.B. 546 (1935).

60 National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332 (1939). 61 Metropolitan Life Insurance Company v. New York State Labor Relations Board, 6 N.Y.S.2d 775 (1938).

62 In the Matter of New England Transportation Co., 1 N.L.R B. 130 (1936). 63 See In the Matter of National Electric Products Corp., 3 N.L.R.B. 475 (1937); In the Matter of Clinton-Philadelphia Coach Co., 6 N.L.R.B. 112 (1938); In the Matter of American Potash and Chemical Corp., 3 N.L.R.B. 140 (1937); In the Matter of Eagle Mfg. Co., 6 N.L.R.B. 492 (1938); and National Labor Relations Board v. American Potash Corp., 98 F.2d 488 (9th Cir. 1939).

CHAPTER 23

Employee Representation and the Bargaining Unit

Collective bargaining is, in a sense, a form of representative government. Citizens of a political community elect their representatives to a city council, to a state legislature, or to Congress; but prior to such election it is necessary to define the size and boundaries of the city ward, legislative district, or congressional district from which the representatives are to be chosen. The elected representative of the district legislates for the people of his district, and the individual voter is governed by this chosen representative. For purposes of collective bargaining, it is necessary first to define the group of employees who are to be governed by their representatives.

The Bargaining Unit. Under the Wagner and Taft-Hartley Acts, the authority to define bargaining units was given to the National Labor Relations Board. The Board recognizes, however, that its discretion is limited by the Act in the following ways:1

(1) professional employees may not be included in a unit of nonprofessional employees, unless a majority of the professional employees vote for the inclusion in such unit; (2) no craft unit may be held inappropriate on the ground that a different unit was established by a prior Board decision; (3) plant guards, who enforce rules for protection of property or safety on an employer's premises, may not be included with other employees, [and] the Board may not certify as bargaining agent for guards any union that admits other employees as members or that is affiliated directly with an organization admitting nonguard employees.

The National Labor Relations Board recognizes that it has the responsibility of determining the appropriateness of collective-bargaining units, for the Act does not define the term "appropriate," but rather leaves it to the Board to decide each case on its merits. Ordinarily such decisions are not subject to direct review of the courts. Under the Taft-Hartley

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1 National Labor Relations Board, Sixteenth Annual Report, 1952, p. 85.

2 Ibid. See Morand Brothers Beverage Co., 91 N.L.R.B. 409 (1950).

3 See Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146 (1941).

Act, the courts have applied the rule that the Board's unit determinations may not be disturbed unless they are clearly arbitrary or unreasonable.* The problem of determining the bargaining unit of course is quite different from the problem of determining who the representatives of the employees from that bargaining unit are. Procedures of the National Labor Relations Board in determining the choice of representatives from a bargaining unit are described on pages 195ff.

The Board is called upon to define the bargaining unit for various reasons: (1) the bargaining rights of a representative may be in question; (2) an employer may be charged with having refused to bargain collectively; (3) the representative union may have been accused of refusing to bargain with the employer; or (4) there may be a question of the validity of a union-security agreement.5

Basic issues involved in bargaining-unit cases include, as viewed by the Board:

1. What should be the type of the unit? Should the unit be an industrial unit, including the general class of production or maintenance employees, or some smaller unit?

2. What should be the scope of the unit? Should the unit be a “multiemployer, multiplant, plant-wide, or some smaller departmental unit?” 3. What should be the composition of the unit? Should it include "fringe" groups such as clerks or technical employees?

In dealing with these issues, the primary concern of the National Labor Relations Board "is to group together only employees who have substantial mutual interests" related to their jobs. The National Labor Relations Board declares that, like the National Mediation Board in its admistration of the Railway Labor Act, "it has consistently refused to establish units based upon race, nationality, or special considerations unrelated to work interests and functions." Among the factors considered by the Board in resolving the bargaining-unit problems of a given group of employees are (1) the collective-bargaining history of the group; (2) the wishes of the employees involved; (3) the type and extent of unionization among the employees; and (4) "similarity of duties, skills, and working conditions of the employees."?

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The Factor of Collective-bargaining History. An important factor in determining the bargaining unit is the bargaining history of the group of employees involved. Although the history of bargaining does not control the determination of the appropriate unit, the Board follows the rule

4 National Labor Relations Board v. Grace Co., 184 F.2d 126 (1950); and National Labor Relations Board v. Conlon Bros. Mfg. Co., 187 F.2d 329 (1951). 5 National Labor Relations Board, Sixteenth Annual Report, p. 85.

6 Ibid., p. 86.

7 Ibid.

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that "a well-established bargaining pattern" will not ordinarily be disturbed in the absence of "compelling circumstances." As an example of the application of this principle, the Board reports a case in which it determined that an existing bargaining unit of eight stores was appropriate even though this group of stores did not make up a separate administrative group. If the bargaining history is brief and not substantial, the Board gives it little weight. Thus, in an example reported by the Board, a one-year bargaining history was not sufficient to control the determination of a bargaining unit. If the bargaining history is substantial, it may nevertheless be disregarded by the National Labor Relations Board if it is contrary to the principles or policies of the Board or the Act. In a case involving a union which had been "illegally assisted by the employer," the Board refused to determine the bargaining unit on the basis of that union's bargaining experience.10

The Craft as the Bargaining Unit. The basic issue between the AFL and the CIO is over the question of craft units versus industrial units. The AFL has taken the position that its duty is to protect the jurisdictional rights of all trade-unions organized along craft lines, while the CIO has taken the position that the appropriate bargaining unit should be the industrial unit, which may, of course, include one or more crafts. Accordingly the bargaining-unit determinations of the National Labor Relations Board are of vast importance to these two labor organizations.

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The major determination by the National Labor Relations Board on the craft-unit-versus-industrial-unit issue under the Wagner Act was made in the Globe case,11 in which the Board decided that where an industrial union claimed a plant-wide bargaining unit, and a craft union sought a craft unit composed of employees also claimed by the industrial union, an election should be held in which the employees in the craft group would vote separately for either the craft union or the industrial union. If the craft union were successful, the Board would determine that the craft unit was the appropriate bargaining unit; but if the craft union were unsuccessful, the industrial unit would include the craftsmen. Section 9(b) of the Taft-Hartley Act deals with the craft-unit-versusindustrial-unit question by providing:

The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit

8 The Kroger Co., 93 N.L.R.B. 274 (1951). See also Kohler Co., 93 N.L.R.B. 398 (1951); and Baltimore Transit Co., 92 N.L.R.B. 688 (1950).

9 Brewster Motors, Inc., 93 N.L.R.B. 675 (1951); and Reynolds Metals Co., 93 N.L.R.B. 721 (1951).

10 Albert's, Inc., 91 N.L.R.B. 522 (1950). Cases in this paragraph are cited in National Labor Relations Board, Sixteenth Annual Report, pp. 86–87.

11 In the Matter of The Globe Machine and Stamping Co., 3 N.L.R.B. 294 (1937).

appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not ... (2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation.

The National Labor Relations Board has interpreted this language as permitting it to exercise discretion over whether or not separate elections shall be held for craft unions, although the general policy of the Board is to grant separate self-determination elections even though bargaining previously has been undertaken on a broader basis."

12

In cases involving requests by craft unions for severance elections, the Board states that "it must decide whether the employees in the proposed unit are in fact craft employees and whether they form a cohesive group which can appropriately bargain as a unit." Employees are given craft status if they do the "work of a traditional craft" and if they have qualified for their jobs through the completion of an apprenticeship, as do carpenters, electricians, etc. Often, however, the requirement that the work be that of a traditional craft has been waived. In such cases the work must be distinct from that of "production" employees and must require "a high degree of skill and a substantial period of training or instruction." Craft status, for example, was given to a group of cuttingmachine operators in a printing plant who required about four years' experience in learning their skills. Loom fixers' work, however, was found to be closely integrated with production, and therefore was not given separate bargaining-unit status in the textile industry.13

Certain groups of workers are granted separate bargaining-unit status even though craft skills are not required. Truck drivers, powerhouse operators, and foundry workers have customarily been regarded as similar to craftsmen and generally are included as coming within the craft classification.1

The Bargaining Unit in Integrated Industries. The National Labor Relations Board has decided that in certain industries there is such a complete integration of all operations that to deviate from the established plant-wide bargaining pattern in a particular instance would not only adversely affect operations and production, but also hamper effective representation. In basic steel, basic aluminum, lumbering, and wet milling, the Board has not permitted separate craft-representation elections. On the other hand, in rubber, pulp and paper, Portland cement, and

12 National Labor Relations Board, Sixteenth Annual Report, p. 88. 13 Ibid.

14 Ibid., p. 89.

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