Intrastate Representation Questions and the War Labor Boar

Coombs, Walter P

English

University of Montana

Montana Law Review Volume 6 Issue 1 Spring 1945 Article 12 1945 Intrastate Representation Questions and the War Labor Board Walter P. Coombs LLB, Montana State University; Public Panel Member, Tenth Regional War Labor Board, San Francisco, CA Follow this and additional works at: https://scholarworks.umt.edu/mlr  Part of the Law Commons Let us know how access to this document benefits you. Recommended Citation Walter P. Coombs, Intrastate Representation Questions and the War Labor Board, 6 Mont. L. Rev. (1945). Available at: https://scholarworks.umt.edu/mlr/vol6/iss1/12 This Article is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Montana Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. Intrastate Representation Questionsand the War Labor BoardWALTER P. COOMBS*There is no statute of the State of Montana which requiresan employer to recognize a union as the exclusive bargainingagent for the employees in his establishment, nor is there anyinstrumentality of the State which is empowered to determinesuch a representation question. Indeed, because of the State'slack of a labor relations act, a union which has lost its entiremembership might be successful in a War Labor Board pro-ceeding in securing the enforcement and continuation of aprior union shop agreement.The only Federal agency which may act in a dispute overthe issue of representation arising in the State of Montana be-tween a labor organization and an employer involved whollyin intrastate commerce is the National War Labor Board.Whether the Board will assume jurisdiction in such a caseseems to have been definitely decided, and in recent months,the Board has defined the extent of its jurisdiction in this field.The authority of the National War Labor Board stemsboth from Executive Order of the President (Executive Order9017 of January 12, 1942) and statutory enactment-the WarLabor Disputes Act of June 25, 1943, popularly known as theSmith-Connally Act, 57 Stat. 163. While the authority of theNational Labor Relations Board under the Wagner Act, 49Stat. 449, is dependent upon the commerce clause of the Con-stitution, the War Labor Disputes Act derives its authorityfrom the War Powers of the Congress and distinctions betweeninterstate and intrastate commerce are not germane to its ex-ercise. (Hirabyoshi v. U. S. 320 U. S. 81, 63 S. Ct. 1375, 87LE 1774 (1943); U. S. v. MacIntosh, 283 U. S. 605, 51 S. Ct.570, 75 LE 1302 (1931) ; Schenck v. U. S., 249 U. S. 47, 39 S. Ct.247, 63 LE 470 (1919) ; and Hamilton v. Kentucky Distillers Co.251 U. S. 146, 40 S. Ct. 106, 64 LE 194 (1919). See also J.Greenebaum Tanning Co. 10 W. L. R. 527 (194).Section 7(a) (1) of the War Labor Disputes Act providesthat the War Labor Board shall have jurisdiction over any labor*LL.B., Montana State University, 1941. Public Panel Member, TenthRegional War Labor Board, San Francisco, Calif.151Coombs: Intrastate Representation Questions and the War Labor BoardPublished by ScholarWorks at University of Montana, 1945MONTANA LAW REVIEWdispute which has "become so serious that it may lead to sub-stantial interference with the war effort." State boundarieshave no part to play in a determination based upon this test forthe war powers of Congress carry no such restriction.Under the Act, the Conciliation Service of the Departmentof Labor is empowered to certify to the National War LaborBoard those labor disputes which may lead to substantial inter-ference with the war effort and which cannot be settled by col-lective bargaining or conciliation. (Section 7 of the Act). Suchcertification is accepted as conclusive by the Board on the ques-tion of its jurisdiction. (J. S. Bache and Co., 15 W. L. R. 58(1944).The War Labor Board, in its early days of operation, didnot have a clearly defined policy regarding the handling of rep-resentation questions in those cases where the union had neitherbeen recognized by the employer nor certified by a state laborrelations board but where a dispute had been referred to it bythe United States Conciliation Service in accordance with theabove procedure. Thus, the various Regional Boards soughta formula by which the rights of the parties could be protected,the needs of war production met, and stable industrial relationsestablished. In some cases, elections to determine the majoritybargaining agent were ordered. In a case involving a Califor-nia employer, Lacey Milling Company, Case No. 111-2988-D,(unreported), (1943), a Regional War Labor Board directedthat an election be held within fourteen days of the date of theboard's order to determine the bargaining agent. An electionwas held and a majority of the employees in the unit voted infavor of no union and no contract resulted. In a similar case,Austin Co. Case No. 4264-D, (unreported), (1943) ; another Re-gional board appointed a hearings officer to conduct an election.As a result, the board certified three unions as the bargainingagents for their members and ordered the company to bargaincollectively.' On review, the National Board sustained the re-gional board's action.As more and more labor disputes arose over representationissues concerning employers in intrastate operations, it became'This technique, that of ordering the parties to bargain, (in interstatecases), was later determined to be an invasion of the province of theNational Labor Relations Board, and subsequent cases limit the or-der to specific issues and provide, generally, a time limit of thirtydays in which the parties may have to negotiate further. Fred A.Snow Co. 17 W. L. R. 241 (1944) Section 7 of the War Labor DisputesAct provides: ". . . the Board shall conform to the provisions of . . .the National Labor Relations Act . . . and all other applicable provi-sions of law... "2Montana Law Review, Vol. 6 [1945], Iss. 1, Art. 12https://scholarworks.umt.edu/mlr/vol6/iss1/12INTRASTATE QUESTIONSapparent that the War Labor Board would be gradually, yetincreasingly, entering a field where hitherto most state legisla-tures had not seen fit to enter and where the Board would ex-ercise powers akin to those of a statutory labor relations board.After a period of uncertainty, in a series of cases, the NationalBoard announced that "where no applicable labor relations law(state or federal exists) and where the dispute is solely one ofrepresentation, the Board will decline jurisdiction." Savannahand Atlanta, Georgia Laundries, 14 W. L. R. 11 (1944). In theSimon J. Murphy Case, 14 W. L. R. 7, (1944), the Board, speak-ing through its Chairman, William H. Davis, said:"Where the National Labor Relations Act is not applic-able, the War Labor Board cannot involve itself in the de-termination of questions of appropriate unit or questionsconcerning the conduct of elections and the determinationof the results of elections over objections. Such determina-tions are for the period preceding collective bargaining; thework of this board is, in the main, tied in with the periodsubsequent to negotiations, when collective bargaining hasbroken down. Our experience has been that action by theWar Labor Board taken in the period when a union is un-recognized or uncertified has not generally avoided recur-ring difficulties between the parties."The Board's most compelling reason for declining to ac-cept jurisdiction in these cases was predicated largely on a de-sire to be relieved from the administrative burden which it feltwould thereby be imposed. It is questionable, however, whetherthe failure of the Board to continue to decide all labor disputes,including intrastate representation cases, proved to be sound,and it was generally considered that the Board had abdicatedpart of its responsibility for the settlement of war-time labordisputes. A natural result of the policy was that a great manyactual labor disputes were without a forum, and a dangerousloophole for war-time strikes was created. In this connection,the statement made by Dean Wayne L. Morse, former publicmember of the War Labor Board in the Reuben H. Donnellycase, 7 W. L. R. 198, (1943), is noteworthy."... the maintenance of a sound domestic economy isessential to the war effort. A threatened strike or lockoutin any community in the land is bound to disturb and dis-rupt the economic life of the community... Hence it is theopinion of the War Labor Board that it would indeed beunrealistic for it to attempt to classify labor disputes intotwo main categories, namely, those which affect the prose-cution of the war and those which do not."3Coombs: Intrastate Representation Questions and the War Labor BoardPublished by ScholarWorks at University of Montana, 1945MONTANA LAW REVIEWIn July of 1944, the National War Labor Board passed aresolution concerning the exercise of its jurisdiction over intra-state representation questions. It was made clear that "theboard will normally exercise its jurisdiction over these casesonly when the Union involved has demonstrated that it repre-sents a substantial number of employees concerned. . . The Re-gional Board to which such a case is assigned may conductwhatever further inquiry into the question it deems necessaryor appropriate." Resolution on Intrastate Cases (17 W. L. R.liii). The Board makes it clear that it "will accept the Uniononly as the representative of its actual members and will issueno order which would require the employer to recognize or bar-gain collectively with an unrecognized and uncertified union asthe exclusive representative of all its employees."Thus, in a number of recent cases, both on a regional andnational scale, the Board, having found that a Union representsa substantial number of employees, has thereupon fixed theterms and conditions of employment which shall thereafter ex-ist between the parties. Tygart Limestone Co. 18 W. L. R. 49(1944) ; Weber Milk Co. 17 W. L. R. 361, (1944) ; Brooklyn Cen.-tral YMCA, 17 W.L.R. 249. (1944); Cape Giraudeau MerchantsAssn., 15 W. L. R. 3 (1944). In these cases, the problem be-fore the Board has been fairly simple. The Union, during thetime the case is in the hands of a conciliator of the UnitedStates Conciliation Service or later may be required to produceevidence as to its actual membership. Although it is still an un-settled question, and the Board has not been called upon tospecify an exact figure, it has been indicated at least adminis-tratively, that the statement, "a substantial number of the em-ployees concerned" will be construed to mean at least thirtyper cent of the employees in the appropriate unit. In order,however, to insure uniformity with NLRB practice, the Boardwill probably set this figure at over fifty per cent.Thus, if a Union can demonstrate through its membershiprecords, sworn statements, a cross check, or another acceptablemethod that it represents a total of at least a third of the em-ployees in the unit, the Board may fix the terms and conditionsof employment which will obtain for the employees involved.Generally, this device works to the advantage of the Union,for it unquestionably aids organization and limits to a consid-erable degree the freedom of action of the employer. In manyinstances, the Union is able to secure more concessions, andeven Federal law and procedure will now operate to assist theUnion. For example, if the employer wishes to secure approvalof a voluntary wage or salary adjustment under the Wage4Montana Law Review, Vol. 6 [1945], Iss. 1, Art. 12https://scholarworks.umt.edu/mlr/vol6/iss1/12INTRASTATE QUESTIONSStabilization Act (Act of Congress of October 2, 1942), forthose employees not represented by the Union but in the samebargaining unit, the signature of the Union's representativemay be required on the form 10 application, and the employermust inaugurate any wage increase strictly in accordance withthe wage stabilization division ruling which prohibits any dis-crimination against the Union!Contrast this then with the situation in a State where alabor relations act is in force. There, the question of major-ity representation becomes important, and the so-called "thir-ty per cent rule" has no application. Unless a majority of theemployees in the bargaining unit vote in favor of the partic-ular union, no contract or terms of employment results. Thisconcession, though minor, indicates that the War Labor Boardhas not found it expedient to relinquish too great a portion ofits jurisdiction over intrastate cases and it has found it neces-sary to reassert jurisdiction it attempted to relinquish!A second situation arises in those intrastate cases wherethe employer has extended recognition voluntarily to theUnion, or has, by virtue of economic means the Union had atits disposal prior to the no-strike pledge, entered into a signedagreement. Again, in these cases, usually no inquiry is madeinto the number of employees actually members of the Union.The basic test is whether or not the War Labor Board will per-mit an employer to withdraw from a labor agreement which20n this precise point, i.e., whether or not the War Labor Board willpermit an unrecognized, uncertified union to join in a form 10 applica-tion for a wage adjustment filed by the employer, the WLB Manual ofOperations is silent. The Regional Boards have generally held that thefacts in the particular case are controlling. In two recent cases in theTenth Region (California, Arizona and Nevada), both unreported,Cases '10-15261, Barker Brothers, and 111-13084, Hale Brothers, bothretail establishments in intrastate commerce, the Regional Board heldup action on form 10 applications despite the fact the union in eachInstance was unrecognized. The basis for the Regional Board's actionappeared to be that they would not permit the employer to take uni-lateral action on a matter affecting union organization and conditionsof employment where the union could demonstrate it possessed morethan a substantial number of the employees involved and where adispute case was certified to the War Labor Board by the U. S. Con-ciliation Service.'It should be borne in mind, however, that the Board will only prescribeappropriate terms and conditions of employment and as the resolutionot July 12, 1944, (op. cit.) points out: ... "Will issue no order whichwtuld require the employer to recognize or bargain collectively withan unrecognized and uncertified union as the exclusive representa-tive of all employees. Thus, on issues such as check off and unionsecurity, and even including the board's war-time formula of main-tenance of membership, the board has indicated it will not act. SeeWeber Milk Co. (op. cit.) and Brooklyn Central YMCA, (op. cit)5Coombs: Intrastate Representation Questions and the War Labor BoardPublished by ScholarWorks at University of Montana, 1945MONTANA LAW REVIEWhe has previously entered into. The Board's resolution states:"In the absence of substantial evidence to the contrary, theBoard will act on the presumption that the status of the Unionhas not changed and will recogniize the Union's exclusive rightof representation as established in the prior collective bargain-ing agreement." What will serve as "substantial evidence"again depends on the facts of each case. Thus, in Abraham'sMarkets, (111-10972), (1944), unreported, a Regional Board(subsequently affirmed by the National Board) directed theemployer to abide by the terms of a collective bargaining agree-ment wherein the employer had voluntarily extended recogni-tion to a union. The majority opinion states:"It may be argued that in view of the fact that theUnion represents none of the employees presently employedby the employer, this should militate against the Board's ac-cepting jurisdiction. To follow that course would clearlybe an unrealistic step for it would permit this employer whohas consistently refused to carry out the terms of his con-tract to benefit thereby during this war-time emergency."Thus an employer may be ordered to continue in effect forthe duration of the present emergency a union contract despitethe fact that he can demonstrate that the Union no longer has asingle member employed in his establishment and that he is en-gaged solely in intrastate commerce. (See also Basha's Markets17 W. L. R. 407, (1944) where a similar conclusion was arrivedat on the basis of the Board's resolution on intrastate com-merce).The explanation of this, of course, is that if by his ownaction, the employer has failed to follow the terms of his con-tract and has discriminated against union members, the WarLabor Board considers that the interests of stable war-timelabor relations require that he be denied the right to be freedfrom what he may term the burden of a union shop contractualprovision. The War Labor Board has reiterated over andagain that it will continue in effect a union or closed shop ifsuch existed contractually prior to the no-strike pledge andthat it will not order such a provision where the parties havenot reached agreement and included it in their contract.''See Harvill Aircraft Die Castings Corp. 6 W. L. B. 334 (1943) as af-firmed by Weber Showcase and Fixture Co. 12 W. L. R. 142, (1944)."The National War Labor Board, -in its basic policies, holds that theGovernment will not use its sanctions during this war to establish ordisestablish the union shop. By this decision, notice is now given toboth workers and management, beyond future misunderstanding orappeal, that no company can take advantage of the Board's standard6Montana Law Review, Vol. 6 [1945], Iss. 1, Art. 12https://scholarworks.umt.edu/mlr/vol6/iss1/12INTRASTATE QUESTIONSThus, it can be seen that the National War Labor Boardis actively engaged in attempting to decide numerous types ofintrastate labor disputes to which the jurisdiction of the Na-tional Labor Relations Board does not extend. Despite thisfact and the fact that most state legislatures have not passedlegislation providing for the handling of representation ques-tions, the WLB finds itself in the position of performing anecessary but controversial function. The conclusion seemsinescapable that for the duration of the emergency the WLBwill be forced to continue its work in this field and if presentindications continue one may expect an increase in the numberof cases considered under the so-called "substantial number"rule. We may also conclude that in certain respects the policyof the Board amounts to an invitation to unions to bring to theWLB disputes over questions which have traditionally been thesubject of negotiations and disputes which except for the war,would be considered beyond the power of a Federal agency toattempt to adjudicate.Whether this same trend will occur in Montana is prob-lematical, but if it does, the machinery of the Federal govern-ment will be found ready and one may expect that- the applica-tion of the WLB rules will result in some advances for unionswhich thus far have been unable to secure recognition.provision for union security to reduce the provision for the union shopto the provision for maintenance of membership, hereafter also forthe so-called Interim employees and that no company can take ad-vantage of the no-strike pledge to throw out a union shop previouslyestablished by agreement between the parties."7Coombs: Intrastate Representation Questions and the War Labor BoardPublished by ScholarWorks at University of Montana, 1945

Intrastate Representation Questions and the War Labor Board

University of Montana School of Law

Montana Law Review
Volume 6
Issue 1 Spring 1945 Article 12
1945
Intrastate Representation Questions and the War
Labor Board
Walter P. Coombs
LLB, Montana State University; Public Panel Member, Tenth Regional War Labor Board, San Francisco, CA
Follow this and additional works at: https://scholarship.law.umt.edu/mlr
Part of the Law Commons
This Article is brought to you for free and open access by The Scholarly Forum @ Montana Law. It has been accepted for inclusion in Montana Law
Review by an authorized editor of The Scholarly Forum @ Montana Law.
Recommended Citation
Walter P. Coombs, Intrastate Representation Questions and the War Labor Board, 6 Mont. L. Rev. (1945).
Available at: https://scholarship.law.umt.edu/mlr/vol6/iss1/12
Intrastate Representation Questions
and the War Labor Board
WALTER P. COOMBS*
There is no statute of the State of Montana which requires
an employer to recognize a union as the exclusive bargaining
agent for the employees in his establishment, nor is there any
instrumentality of the State which is empowered to determine
such a representation question. Indeed, because of the State's
lack of a labor relations act, a union which has lost its entire
membership might be successful in a War Labor Board pro-
ceeding in securing the enforcement and continuation of a
prior union shop agreement.
The only Federal agency which may act in a dispute over
the issue of representation arising in the State of Montana be-
tween a labor organization and an employer involved wholly
in intrastate commerce is the National War Labor Board.
Whether the Board will assume jurisdiction in such a case
seems to have been definitely decided, and in recent months,
the Board has defined the extent of its jurisdiction in this field.
The authority of the National War Labor Board stems
both from Executive Order of the President (Executive Order
9017 of January 12, 1942) and statutory enactment-the War
Labor Disputes Act of June 25, 1943, popularly known as the
Smith-Connally Act, 57 Stat. 163. While the authority of the
National Labor Relations Board under the Wagner Act, 49
Stat. 449, is dependent upon the commerce clause of the Con-
stitution, the War Labor Disputes Act derives its authority
from the War Powers of the Congress and distinctions between
interstate and intrastate commerce are not germane to its ex-
ercise. (Hirabyoshi v. U. S. 320 U. S. 81, 63 S. Ct. 1375, 87
LE 1774 (1943); U. S. v. MacIntosh, 283 U. S. 605, 51 S. Ct.
570, 75 LE 1302 (1931) ; Schenck v. U. S., 249 U. S. 47, 39 S. Ct.
247, 63 LE 470 (1919) ; and Hamilton v. Kentucky Distillers Co.
251 U. S. 146, 40 S. Ct. 106, 64 LE 194 (1919). See also J.
Greenebaum Tanning Co. 10 W. L. R. 527 (194).
Section 7(a) (1) of the War Labor Disputes Act provides
that the War Labor Board shall have jurisdiction over any labor
*LL.B., Montana State University, 1941. Public Panel Member, Tenth
Regional War Labor Board, San Francisco, Calif.
15
1
Coombs: Intrastate Representation Questions and the War Labor Board
Published by The Scholarly Forum @ Montana Law, 1945
MONTANA LAW REVIEW
dispute which has "become so serious that it may lead to sub-
stantial interference with the war effort." State boundaries
have no part to play in a determination based upon this test for
the war powers of Congress carry no such restriction.
Under the Act, the Conciliation Service of the Department
of Labor is empowered to certify to the National War Labor
Board those labor disputes which may lead to substantial inter-
ference with the war effort and which cannot be settled by col-
lective bargaining or conciliation. (Section 7 of the Act). Such
certification is accepted as conclusive by the Board on the ques-
tion of its jurisdiction. (J. S. Bache and Co., 15 W. L. R. 58
(1944).
The War Labor Board, in its early days of operation, did
not have a clearly defined policy regarding the handling of rep-
resentation questions in those cases where the union had neither
been recognized by the employer nor certified by a state labor
relations board but where a dispute had been referred to it by
the United States Conciliation Service in accordance with the
above procedure. Thus, the various Regional Boards sought
a formula by which the rights of the parties could be protected,
the needs of war production met, and stable industrial relations
established. In some cases, elections to determine the majority
bargaining agent were ordered. In a case involving a Califor-
nia employer, Lacey Milling Company, Case No. 111-2988-D,
(unreported), (1943), a Regional War Labor Board directed
that an election be held within fourteen days of the date of the
board's order to determine the bargaining agent. An election
was held and a majority of the employees in the unit voted in
favor of no union and no contract resulted. In a similar case,
Austin Co. Case No. 4264-D, (unreported), (1943) ; another Re-
gional board appointed a hearings officer to conduct an election.
As a result, the board certified three unions as the bargaining
agents for their members and ordered the company to bargain
collectively.' On review, the National Board sustained the re-
gional board's action.
As more and more labor disputes arose over representation
issues concerning employers in intrastate operations, it became
'This technique, that of ordering the parties to bargain, (in interstate
cases), was later determined to be an invasion of the province of the
National Labor Relations Board, and subsequent cases limit the or-
der to specific issues and provide, generally, a time limit of thirty
days in which the parties may have to negotiate further. Fred A.
Snow Co. 17 W. L. R. 241 (1944) Section 7 of the War Labor Disputes
Act provides: ". . . the Board shall conform to the provisions of . . .
the National Labor Relations Act . . . and all other applicable provi-
sions of law... "
2
Montana Law Review, Vol. 6 [1945], Iss. 1, Art. 12
https://scholarship.law.umt.edu/mlr/vol6/iss1/12
INTRASTATE QUESTIONS
apparent that the War Labor Board would be gradually, yet
increasingly, entering a field where hitherto most state legisla-
tures had not seen fit to enter and where the Board would ex-
ercise powers akin to those of a statutory labor relations board.
After a period of uncertainty, in a series of cases, the National
Board announced that "where no applicable labor relations law
(state or federal exists) and where the dispute is solely one of
representation, the Board will decline jurisdiction." Savannah
and Atlanta, Georgia Laundries, 14 W. L. R. 11 (1944). In the
Simon J. Murphy Case, 14 W. L. R. 7, (1944), the Board, speak-
ing through its Chairman, William H. Davis, said:
"Where the National Labor Relations Act is not applic-
able, the War Labor Board cannot involve itself in the de-
termination of questions of appropriate unit or questions
concerning the conduct of elections and the determination
of the results of elections over objections. Such determina-
tions are for the period preceding collective bargaining; the
work of this board is, in the main, tied in with the period
subsequent to negotiations, when collective bargaining has
broken down. Our experience has been that action by the
War Labor Board taken in the period when a union is un-
recognized or uncertified has not generally avoided recur-
ring difficulties between the parties."
The Board's most compelling reason for declining to ac-
cept jurisdiction in these cases was predicated largely on a de-
sire to be relieved from the administrative burden which it felt
would thereby be imposed. It is questionable, however, whether
the failure of the Board to continue to decide all labor disputes,
including intrastate representation cases, proved to be sound,
and it was generally considered that the Board had abdicated
part of its responsibility for the settlement of war-time labor
disputes. A natural result of the policy was that a great many
actual labor disputes were without a forum, and a dangerous
loophole for war-time strikes was created. In this connection,
the statement made by Dean Wayne L. Morse, former public
member of the War Labor Board in the Reuben H. Donnelly
case, 7 W. L. R. 198, (1943), is noteworthy.
"... the maintenance of a sound domestic economy is
essential to the war effort. A threatened strike or lockout
in any community in the land is bound to disturb and dis-
rupt the economic life of the community... Hence it is the
opinion of the War Labor Board that it would indeed be
unrealistic for it to attempt to classify labor disputes into
two main categories, namely, those which affect the prose-
cution of the war and those which do not."
3
Coombs: Intrastate Representation Questions and the War Labor Board
Published by The Scholarly Forum @ Montana Law, 1945
MONTANA LAW REVIEW
In July of 1944, the National War Labor Board passed a
resolution concerning the exercise of its jurisdiction over intra-
state representation questions. It was made clear that "the
board will normally exercise its jurisdiction over these cases
only when the Union involved has demonstrated that it repre-
sents a substantial number of employees concerned. . . The Re-
gional Board to which such a case is assigned may conduct
whatever further inquiry into the question it deems necessary
or appropriate." Resolution on Intrastate Cases (17 W. L. R.
liii). The Board makes it clear that it "will accept the Union
only as the representative of its actual members and will issue
no order which would require the employer to recognize or bar-
gain collectively with an unrecognized and uncertified union as
the exclusive representative of all its employees."
Thus, in a number of recent cases, both on a regional and
national scale, the Board, having found that a Union represents
a substantial number of employees, has thereupon fixed the
terms and conditions of employment which shall thereafter ex-
ist between the parties. Tygart Limestone Co. 18 W. L. R. 49
(1944) ; Weber Milk Co. 17 W. L. R. 361, (1944) ; Brooklyn Cen.-
tral YMCA, 17 W.L.R. 249. (1944); Cape Giraudeau Merchants
Assn., 15 W. L. R. 3 (1944). In these cases, the problem be-
fore the Board has been fairly simple. The Union, during the
time the case is in the hands of a conciliator of the United
States Conciliation Service or later may be required to produce
evidence as to its actual membership. Although it is still an un-
settled question, and the Board has not been called upon to
specify an exact figure, it has been indicated at least adminis-
tratively, that the statement, "a substantial number of the em-
ployees concerned" will be construed to mean at least thirty
per cent of the employees in the appropriate unit. In order,
however, to insure uniformity with NLRB practice, the Board
will probably set this figure at over fifty per cent.
Thus, if a Union can demonstrate through its membership
records, sworn statements, a cross check, or another acceptable
method that it represents a total of at least a third of the em-
ployees in the unit, the Board may fix the terms and conditions
of employment which will obtain for the employees involved.
Generally, this device works to the advantage of the Union,
for it unquestionably aids organization and limits to a consid-
erable degree the freedom of action of the employer. In many
instances, the Union is able to secure more concessions, and
even Federal law and procedure will now operate to assist the
Union. For example, if the employer wishes to secure approval
of a voluntary wage or salary adjustment under the Wage
4
Montana Law Review, Vol. 6 [1945], Iss. 1, Art. 12
https://scholarship.law.umt.edu/mlr/vol6/iss1/12
INTRASTATE QUESTIONS
Stabilization Act (Act of Congress of October 2, 1942), for
those employees not represented by the Union but in the same
bargaining unit, the signature of the Union's representative
may be required on the form 10 application, and the employer
must inaugurate any wage increase strictly in accordance with
the wage stabilization division ruling which prohibits any dis-
crimination against the Union!
Contrast this then with the situation in a State where a
labor relations act is in force. There, the question of major-
ity representation becomes important, and the so-called "thir-
ty per cent rule" has no application. Unless a majority of the
employees in the bargaining unit vote in favor of the partic-
ular union, no contract or terms of employment results. This
concession, though minor, indicates that the War Labor Board
has not found it expedient to relinquish too great a portion of
its jurisdiction over intrastate cases and it has found it neces-
sary to reassert jurisdiction it attempted to relinquish!
A second situation arises in those intrastate cases where
the employer has extended recognition voluntarily to the
Union, or has, by virtue of economic means the Union had at
its disposal prior to the no-strike pledge, entered into a signed
agreement. Again, in these cases, usually no inquiry is made
into the number of employees actually members of the Union.
The basic test is whether or not the War Labor Board will per-
mit an employer to withdraw from a labor agreement which
20n this precise point, i.e., whether or not the War Labor Board will
permit an unrecognized, uncertified union to join in a form 10 applica-
tion for a wage adjustment filed by the employer, the WLB Manual of
Operations is silent. The Regional Boards have generally held that the
facts in the particular case are controlling. In two recent cases in the
Tenth Region (California, Arizona and Nevada), both unreported,
Cases '10-15261, Barker Brothers, and 111-13084, Hale Brothers, both
retail establishments in intrastate commerce, the Regional Board held
up action on form 10 applications despite the fact the union in each
Instance was unrecognized. The basis for the Regional Board's action
appeared to be that they would not permit the employer to take uni-
lateral action on a matter affecting union organization and conditions
of employment where the union could demonstrate it possessed more
than a substantial number of the employees involved and where a
dispute case was certified to the War Labor Board by the U. S. Con-
ciliation Service.
'It should be borne in mind, however, that the Board will only prescribe
appropriate terms and conditions of employment and as the resolution
ot July 12, 1944, (op. cit.) points out: ... "Will issue no order which
wtuld require the employer to recognize or bargain collectively with
an unrecognized and uncertified union as the exclusive representa-
tive of all employees. Thus, on issues such as check off and union
security, and even including the board's war-time formula of main-
tenance of membership, the board has indicated it will not act. See
Weber Milk Co. (op. cit.) and Brooklyn Central YMCA, (op. cit)
5
Coombs: Intrastate Representation Questions and the War Labor Board
Published by The Scholarly Forum @ Montana Law, 1945
MONTANA LAW REVIEW
he has previously entered into. The Board's resolution states:
"In the absence of substantial evidence to the contrary, the
Board will act on the presumption that the status of the Union
has not changed and will recogniize the Union's exclusive right
of representation as established in the prior collective bargain-
ing agreement." What will serve as "substantial evidence"
again depends on the facts of each case. Thus, in Abraham's
Markets, (111-10972), (1944), unreported, a Regional Board
(subsequently affirmed by the National Board) directed the
employer to abide by the terms of a collective bargaining agree-
ment wherein the employer had voluntarily extended recogni-
tion to a union. The majority opinion states:
"It may be argued that in view of the fact that the
Union represents none of the employees presently employed
by the employer, this should militate against the Board's ac-
cepting jurisdiction. To follow that course would clearly
be an unrealistic step for it would permit this employer who
has consistently refused to carry out the terms of his con-
tract to benefit thereby during this war-time emergency."
Thus an employer may be ordered to continue in effect for
the duration of the present emergency a union contract despite
the fact that he can demonstrate that the Union no longer has a
single member employed in his establishment and that he is en-
gaged solely in intrastate commerce. (See also Basha's Markets
17 W. L. R. 407, (1944) where a similar conclusion was arrived
at on the basis of the Board's resolution on intrastate com-
merce).
The explanation of this, of course, is that if by his own
action, the employer has failed to follow the terms of his con-
tract and has discriminated against union members, the War
Labor Board considers that the interests of stable war-time
labor relations require that he be denied the right to be freed
from what he may term the burden of a union shop contractual
provision. The War Labor Board has reiterated over and
again that it will continue in effect a union or closed shop if
such existed contractually prior to the no-strike pledge and
that it will not order such a provision where the parties have
not reached agreement and included it in their contract.'
'See Harvill Aircraft Die Castings Corp. 6 W. L. B. 334 (1943) as af-
firmed by Weber Showcase and Fixture Co. 12 W. L. R. 142, (1944).
"The National War Labor Board, -in its basic policies, holds that the
Government will not use its sanctions during this war to establish or
disestablish the union shop. By this decision, notice is now given to
both workers and management, beyond future misunderstanding or
appeal, that no company can take advantage of the Board's standard
6
Montana Law Review, Vol. 6 [1945], Iss. 1, Art. 12
https://scholarship.law.umt.edu/mlr/vol6/iss1/12
INTRASTATE QUESTIONS
Thus, it can be seen that the National War Labor Board
is actively engaged in attempting to decide numerous types of
intrastate labor disputes to which the jurisdiction of the Na-
tional Labor Relations Board does not extend. Despite this
fact and the fact that most state legislatures have not passed
legislation providing for the handling of representation ques-
tions, the WLB finds itself in the position of performing a
necessary but controversial function. The conclusion seems
inescapable that for the duration of the emergency the WLB
will be forced to continue its work in this field and if present
indications continue one may expect an increase in the number
of cases considered under the so-called "substantial number"
rule. We may also conclude that in certain respects the policy
of the Board amounts to an invitation to unions to bring to the
WLB disputes over questions which have traditionally been the
subject of negotiations and disputes which except for the war,
would be considered beyond the power of a Federal agency to
attempt to adjudicate.
Whether this same trend will occur in Montana is prob-
lematical, but if it does, the machinery of the Federal govern-
ment will be found ready and one may expect that- the applica-
tion of the WLB rules will result in some advances for unions
which thus far have been unable to secure recognition.
provision for union security to reduce the provision for the union shop
to the provision for maintenance of membership, hereafter also for
the so-called Interim employees and that no company can take ad-
vantage of the no-strike pledge to throw out a union shop previously
established by agreement between the parties."
7
Coombs: Intrastate Representation Questions and the War Labor Board
Published by The Scholarly Forum @ Montana Law, 1945


https://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1930&context=mlr

Intrastate Representation Questions and the War Labor Board

Abstract

Similar works

Full text

Available Versions

University of Montana

University of Montana School of Law