tional planners, a spectrograph gang leader with college degree and specialized knowledge in a new field of analytical chemistry, a radio-station employee with first-class engineer's license who spent 90 per cent of his time in experimental research." Employees found by the Board not to be professional in particular circumstances include: "blueprint operators, assistant engineers, timekeepers with college training in accounting, quality inspectors, draftsmen, embalmers, and funeral directors." 27

Clerical Employees and the Bargaining Unit. The policy of the National Labor Relations Board is to exclude office clerical employees from production and maintenance bargaining units because of "fundamental differences in the work and interests" of the two classes of employees, even though the office clerks may previously have been included in such units. If, in a particular situation, the clerical employees are not office employees but come into the category of plant clerical employees who have a similarity of interests and working conditions with production and maintenance people, the plant clerical employees may be included with the latter groups. Ordinarily, according to the Board, "clerical employees who work both in the office and in the plant will be included in the production group if they are primarily plant clericals and perform office work only occasionally," but if they are primarily office workers and perform plant clerical work only occasionally, they will be excluded from the production and maintenance group. Employees who have been classified as plant clerks in particular cases include: "stock chasers, tool crib attendants, receiving clerks, a general shop clerk, a record clerk, an expediter clerk, and shipping clerks." 28

Supervisory Employees and the Bargaining Unit. Section 2(3) of the Taft-Hartley Act excludes supervisors from the definition of employees entitled to the protection of the Act. Section 2(11) of the Act defines the term "supervisor" to mean

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

In accordance with these provisions of the Act, it is necessary for the National Labor Relations Board to determine whether or not particular employees possess supervisory authority so as to warrant their exclusion from a proposed bargaining unit. The fundamental question relates to the authority of the individual. Consequently the job title or payroll

27 National Labor Relations Board, Sixteenth Annual Report, p. 108. 28 Ibid., p. 109.

classification is not decisive, but the type of work done and the responsibility exercised are highly material. If the kind of authority exercised by an individual is no greater than that usually exercised by an experienced employee over an inexperienced employee, such individual will not be classified by the Board as a supervisor. To be a supervisor one must direct personnel primarily and not incidentally. Persons reported by the Board as not falling within this definition of supervisor have included 29 radio dispatchers of a transit company who were located in the radio room and transmitted usually standardized directives to mobile supervisors in response to trouble calls; street railway inspectors who were responsible for the observance of schedules and routes, enforced rules relative to the safe operation of vehicles, and investigated, corrected, and reported transgressions of safety rules by operators; employees in charge of one-man departments and employees who possess authority but have no subordinates; retail-store department heads who were the sole regularly assigned workers in their departments and had subordinates detailed to them only during short periods of seasonal activity.

Independent Contractors. The Taft-Hartley Act expressly excludes independent contractors from the definition of employees entitled to the protection of the Act, so independent contractors are not included in bargaining units. The National Labor Relations Board has described the standards by which independent contractors are defined in its administration of the Act as follows: "The legislative history of the Act shows that Congress intended that the Board recognize as employees those who 'work for wages or salaries under direct supervision,' and as independent contractors, those who 'undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods, materials, and labor and what they receive for the end result, that is, upon profit.'" In applying these standards to persons distributing newspapers, the Board found that certain haulers and dealers were independent contractors because they (1) "used their own trucks. in delivering papers to carriers and other sellers"; (2) "were not required to keep records and were not carried on the company's payroll"; (3) "were free to engage in other gainful business activities"; and (4) "were paid by the job with expense checks, or they derived their earnings from the difference between the cost of the newspapers to them and the flat rate they charged the carriers."

A basic test used by the Board in deciding whether or not persons are independent contractors is whether they are subject to the employer's "right of control." The Board states that if the employer "has the right

29 Ibid., pp. 110-111. Cited by the Board in this connection is United States Gypsum Co., 93 N.L.R.B. 91 (1951).

to control the methods and manner by which the work is done," the controlled person is not an independent contractor. Applying this test, the Board has decided that independent contractors include truckers who (1) "delivered gasoline and fuel oil in their own trucks to the employer's customers under a commission agreement"; (2) "were corporations with employees of their own"; (3) “received no payment other than a fixed gallonage rate"; (4) “did not share in benefits granted salaried employees”; (5) “fixed their own hours and manner of delivery”; and (6) “paid their own taxes and license fees." On the other hand, the Board held that a group of lumber-company truck drivers who owned their own trucks were employees and not independent contractors because (1) “they worked the same hours and had the same supervision as other truck drivers"; (2) “like the other drivers they were sometimes assigned to other duties"; and (3) they “received the same benefits as other employees, such as accident insurance and workmen's compensation," although they were "paid on the basis of the number of feet of lumber they hauled rather than by the hour" as were the other drivers who did not own their trucks.30

Miscellaneous Classes of Excluded Employees. The Taft-Hartley Act expressly excludes other categories of employees from the protection of the Act, and such employees are not included in bargaining units by the National Labor Relations Board. Such persons include (1) "domestic servants employed in a home"; (2) "individuals employed by parent or spouse”; (3) “individuals employed by an employer under the Railway Labor Act"; and (4) “agricultural laborers." In addition to these groups, it has been the practice of the Board to exclude from bargaining units "employees whose duties are managerial, and employees who stand in a confidential relationship to executive employees handling labor relations of the employer." The Board has defined "managerial employees" as "executive employees who are in a position to formulate, determine, and effectuate management policies." It has defined “confidential employees" as "those who assist and act in a confidential capacity to persons who exercise 'managerial' functions in the field of labor relations." 31

30 National Labor Relations Board, Sixteenth Annual Report, pp. 114-115. Cases cited by the Board in this connection are The Times Herald Printing Co., 94 N.L.R.B. 250 (1951); and Sinclair Refining Co., 93 N.L.R.B. 1115 (1951).

31 National Labor Relations Board, Sixteenth Annual Report, pp. 109-110, 117. Ford Motor Co., 66 N.L.R.B. 1317 (1946), and Palace Laundry Dry Cleaning Corp., 85 N.L.R.B. 320 (1949), are cited by the Board in this connection.

CHAPTER 24

The Duty to Bargain Collectively

The duty to bargain collectively is more than a matter of moral obligation or judicious policy. It is a matter of positive, enforceable law. As defined by the Taft-Hartley Act, the duty to bargain collectively 1

1

is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of any employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.

Status of Employees' Representative and Employer's Duty to Bargain. The duty of the employer to bargain in good faith is an obligation to deal with a representative selected freely by a majority of employees comprising an appropriate bargaining unit. After the employees' representative has been chosen by the employees and certified by the National Labor Relations Board, the employer has the obligation to accept that representative. The employer is no longer free to challenge the status of the representative by refusing to bargain with him. The National Labor Relations Board follows the rule that it "does not permit relitigation of the issues decided in the prior representation proceeding” in a case of alleged refusal to bargain.2

After a labor organization has been certified as the proper representative, this representative status is conclusively presumed by the National Labor Relations Board to prevail for a reasonable period of time, and such a period is ordinarily at least one year. The representative status of a labor organization generally continues until such time as the facts indicate that the labor organization no longer represents the employees,

1 Sec. 8(d).

2 National Labor Relations Board, Sixteenth Annual Report, 1952, p. 188. See also S. H. Kress & Co., 88 N.L.R.B. 79 (1950); and American Finishing Co., 90 N.L.R.B. 964 (1950).

but the one-year certification period is not subject to employer challenge through refusal to bargain.

Although the employer may in good faith have doubts that the labor organization represents a majority of the employees, he nevertheless has the statutory duty to bargain with it during the certification year. According to the National Labor Relations Board, "This rule stems from the policy of the Act to reduce industrial strife by encouraging the practice and procedure of collective bargaining.' From experience, the Board has found that a period of at least a year is needed to assure employees, through their newly certified representative, an opportunity to establish a functioning collective bargaining relationship." Thus the Board has held that “the mere raising of the question of a union's majority status as a condition precedent to bargaining within the certification year amounts to a violation" of the Taft-Hartley Act.3

On occasion an employer may attempt to oust the union as the employees' representative through the use of unfair labor practices, such as discriminatory discharge of union members and establishing a company union. It is the policy of the National Labor Relations Board not to permit the employer who has been guilty of disturbing the membership of the certified union to question the representative status of such union. But subsequent to the termination of the certification year, however, if union members have been discharged for just cause and there has been no unfair labor practice on the part of the employer, the labor organization's representative status may be challenged.

Collective-bargaining relationships frequently develop when the employer accepts the union as the proper representative of the employees without requiring certification by the National Labor Relations Board. The employer may choose to accept the employees' representative without certification for the purpose of demonstrating his good will, to promote early harmony with the labor organization, or for other reasons. Subsequently, however, the employer may have reason to doubt that the union represents a majority of the employees. The employer who then questions the majority status of the union and refuses to bargain with it may have the Board decide whether or not the labor organization should be certified as the proper representative.

After the certification year or a reasonable time has elapsed, the National Labor Relations Board allows the employer to challenge the labor organization's representative status when the employer does so in good faith. According to the Board,*

3 National Labor Relations Board, Sixteenth Annual Report, p. 188. See also West Fork Cut Glass Co., 90 N.L.R.B. 944 (1950).

+ National Labor Relations Board, Sixteenth Annual Report, pp. 188-190. See also New Jersey Carpet Mills, Inc., 92 N.L.R.B. 604 (1951).