unit with the printing pressmen, but were classified and voted with the third unit, which included all the other factory employees. In this unit Local 224 was victorious. On June 11, 1937, pursuant to the results of the election, the Company entered into a written agreement with Local 224, the first paragraph of which read as follows: "Recognition. The Employer recognizes the above Union as the collectivebargaining agency for factory employees to represent all factory employees who are not members of the Lithograph Department, also excepting supervisors and clerks, with respect to wages, hours, and similar conditions of employment." This agreement remained in effect until December 31, 1937, when it was succeeded by another agreement containing the same recognition clause, and the terms of this agreement are still in effect. The employees of Department 22 have been covered by these agreements as an integral part of the bargaining unit that includes the factory force. On the basis of these facts it seems clear that by voluntary agreement and by collective-bargaining contracts the employees have themselves together with the Company, classified the employees of Department 22 as factory employees and not as printing press craftsmen. Had they been considered such craftsmen they would have been eligible to vote the printing pressmen's ballot in the election. Under these circumstances, I do not think that it is within the authority of the Board to split off the employees of Department 22, to remove them from the contract by which they are covered, and to reclassify them in another bargaining unit with a separate and different contract. These employees have acquired rights and privileges under the working contracts that now govern their relations with the Company which the Board is not free to set aside or to ignore. By assuming authority to alter bargaining units established and maintained by collective agreements the Board endangers all union contracts, whether these are negotiated on a craft basis, a plant basis, industry basis, or on the basis of any other unit that the parties have found appropriate in bargaining collectively. Because craft unions rarely consist of one craft only, but commonly are a combination of several skilled occupations, together with helpers and other semiskilled and unskilled workers, the assumption of authority by the Board in substituting its judgment as to the appropriateness of a unit for the customs and practices of collective bargaining as evidenced by contracts threatens with disruption craft unions as well as the unions that are organized on a so-called industrial or other basis. The International Association of Machinists includes mechanics of various kinds and degrees of skill as well as unskilled workers. The same is true of the Brotherhood of Electrical Workers, the Hotel and Restaurant Workers' Union, which includes cooks, waiters, bartenders, and dishwashers; the Amalgamated Meat Cutters and Butcher Workmen; the Amalgamated Association of Street and Electric Railway Employees; the United Garment Workers; the Brotherhood of Railway Clerks; and many others affiliated with the A. F. of L. The same is true also of the so-called industrial unions affiliated with the C. I. O. If the bargaining units maintained by these organizations in their contracts may be changed or split by the Board when it feels that other units are preferable, then the existence of these unions, as well as their established contractual relationships with employers, are at the mercy of the members of the Board. Every disgruntled occupational group within a craft or other unit might well demand and secure separate certification if the Board is not bound by the bargaining units established by contracts. It is argued that this result does not necessarily follow and that nothing of the sort has in fact happened. The complaints of both C. I. O. and A. F. of L. unions seem to me to indicate that it has happened. But even assuming that it has not happened, if the Board may consider units established by contracts as "fortuitous" and if it is vested with authority to alter such established units when in its judgment this is necessary or desirable, then of course a mere change in the membership of the Board may bring about a splitting or combining of established contractual craft units. If the authority is lodged in the Board, as is contended, then the fact that it may not yet have been exercised makes it no less dangerous to labor organizations and their contracts with employers. I am of the opinion that Congress intended the Board to be bound by the bargaining units established and maintained by collective agreements. Precisely this problem arose under the Railway Labor Act where the term "craft or class of employees" is used in the same sense as "appropriate bar gaining unit" is used in the National Labor Relations Act. In neither Act are the terms defined. Under the Railway Act stationary engineers demanded separate representation from firemen and oilers with whom they were combined by contract in a single bargaining unit. Dining-car cooks wanted separate representation from waiters and other dining-car employees where contracts of the Hotel and Restaurant Workers' Union included all of them in a single unit, or craft, or class. Freight handlers petitioned for separate representation where the Brotherhood of Railway Clerks had by contracts established the craft or class to include all clerical, office, station, and storehouse employees as a single bargaining unit. Yard conductors attempted to split themselves off from yard brakemen where the contracts included both in a single craft or class. Because of the vital interests involved the courts have been called upon to review findings as to craft or class (or bargaining units) under the Railway Labor Act. In Brotherhood of Railroad Trainmen v. National Mediation Board,1 the United States Court of Appeals for the District of Columbia laid down the rule which is now being followed in determining representation disputes under that Act: "The general purpose of the (Railway) Labor Act was to promote peaceful and conciliatory consideration of labor disputes and especially to secure the right of collective bargaining, through a representative chosen by a majority of the employees in a particular craft or class. It is not going too far to say that the basic and underlying purpose of the Act was to insure representation in accordance with established custom to those employees whose interests are involved. But the Act leaves uncertain the precise or exact meaning of the word 'class or craft,' and we think obviously for the reason that it was intended by Congress to adopt the designation of class or craft as determined by the then current working agreement between the railroad and particular groups or classes of its employees. And we find justification for this conclusion in paragraph seven of Sec. 2, which provides that: "No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act.' "In other words, that no carrier shall change the terms of its working agreement with any class of employees, as that class is embodied in and declared to exist by the working agreement, except in accordance with the terms of the agreement or in conformity with the Act. In the light of this provision-and that of the general scheme of the Act as a whole-we think it is obvious that how classes are to be formed and who shall compose them are matters left to the employees themselves; and so we think that by reference to the terms of the working agreement which the employees have made, is to be found at least some evidence of who are members of the craft or class covered by that agreement. The Board also recognizes that this is a criterion, for in its First Annual Report to Congress, after noting that the Act does not give it authority to define the crafts or classes, it says: 'So far as possible the Board has followed the past practice of the employees in grouping themselves for representation purposes and of the carriers in making agreements with such representatives.'' Here we are clearly told that the precise meaning of the words "craft or class" being left uncertain, it was intended by Congress "to adopt the designation of class or craft as determined by the then current working agreement between the railroad and the particular groups or classes of its employees." The National Labor Relations Act leaves uncertain the precise meaning of the term "appropriate bargaining unit," I believe, for the same reason that "craft or class" is undefined in the Railway Act-because Congress intended to adopt the designation "bargaining unit" as determined by the working agreements voluntarily made by the employees with their employers. Many cases come to the Board, of course, where no bargaining units have been established by collective-bargaining agreements. In these cases it is clear that the appropriate units are those determined by the employees' own voluntary organization. Where no contract provides otherwise, every separately organized group is entitled to select or vote for representatives in a unit based on its own form of organization. This rule is working successfully and satisfactorily to all concerned under the Railway Labor Act. I am of the opinion that the same rule is required to control 188 Fed. (2nd) 757, decided Dec. 21, 1936. the administration of the National Labor Relations Act if the purposes of the Act are to be accomplished. Although admitting that collective-bargaining custom and practice as evidenced by working contracts must be considered by the Board in determining appropriate bargaining units, the majority of the Board contends that other factors must also be considered. In the Pittsburgh Plate Glass Company case1 these other factors are enumerated. They include uniformity of wages, hours, and working conditions, as well as manufacturing processes, the necessity of placing employees on a basis of equal bargaining strength with the employer and avoiding disharmony in the bargaining process, the continued insistence of legitimate labor organization on a particular form of bargaining unit, and the feasibility of a particular form of bargaining unit. In the present case the majority mentions also the history of collective bargaining throughout the industry as a whole, as well as the structure of the various labor organizations which admit to membership the employees, or some of the employees, in question. It does not seem to me that these are objective criteria on the basis of which a determination of a bargaining unit can be made in accordance with the provisions of the National Labor Relations Act. Such factors do not provide a rule or principle which binds the members of the Board as well as the parties whose disputes are to be settled. They make the final determination a personal judgment instead of a rule of law. The listed factors are more in the nature of arguments that the protagonists of one form of structure and organization of labor unions may use as against those who favor other forms. I do not think that it was intended by Congress when it adopted the Act that a government administrative board should decide in favor of one or another form of labor organization by weighing arguments or the factors indicated in order to determine the form that is best for collective bargaining. It seems plain to me that the intent of the Act was to keep the Government out of any such controversies and to leave the employees free to organize on a craft, industrial, plant, or other basis as they deem best, without any interference from their employers. Only by considering itself bound by the bargaining units established and maintained by collective-bargaining contracts can an administrative board keep itself from taking sides in jurisdictional controversies among labor organizations which differ as to the most effective form of organization for collectivebargaining purposes. In view of these considerations, I am of the opinion that the Board is constrained by the existing contract covering factory employees to dismiss the petition in the present case. EXHIBIT NO. 57 [Inter-office communication] NATIONAL LABOR RELATIONS BOARD, October 21, 1939. To: Mr. Madden, Mr. Smith, Mr. Emerson. Subject: Coos Bay Lumber Company, R-1344. Here is my revised dissent on the basis of one majority opinion. I have made the reservation about the against or neither in a footnote. Please note also that I have omitted the reference to proportional representation on which there is comment in the majority draft. Mr. WILLIAM M. LEISERSON, dissenting: W. M. L. I cannot agree with the ruling of the majority directing a run-off election. A secret ballot has clearly shown that neither of the contesting organizations has been chosen by a majority of the employees. The allegiance of the employees is almost equally divided, 195 having designated one organization and 188 the other. It seems to me stretching the discretion of the Board beyond proper bounds to order now another election in which the choice of the employees is to be limited to the one organization which received the 195 votes and to deny the employees an opportunity to vote for the other organization which had only 7 votes iess. The so-called run-off election here ordered is a form of preferential voting to create a second choice majority where the first choice resulted in no majority. 1 cit. Section 9 (c) of the Act authorizes the Board to certify the representatives that have been designated or selected by the majority of the employees in a unit appropriate for collective bargaining. When an election results in no majority it is plain that the Board may not issue any certification, and accordingly the Board dismisses petitions for certificates in many cases where no representative receives a majority vote. It should do so in all cases and should not inaugurate a controversial system of second choice voting without express authority from Congress. Whenever there are more than two candidates on a ballot there is a possibility that the election will result in no majority. Congress might have provided that in all such cases a plurality shall prevail, but it saw fit not to authorize certification on a plurality vote. Congress might also have provided that whenever there are more than two candidates the voters shall indicate their first and second choices and that a majority should be calculated on the basis of the second choice votes. If this were done no run-off election would be necessary. But Congress did not see fit to adopt this device. The so-called run-off election is merely an alternative method of indicating second choices. If Congress did not authorize the first method, I cannot see how it can be assumed that the alternative method was authorized. The so-called run-off election itself offers various methods of arriving at a majority. There are also other methods of balloting in run-off elections which people consider preferable in indicating second choices. Whether elections should be conducted on the basis of simple majorities, second choices, or other forms of preferential voting are political questions on which the people of the country have strong differences of opinion. I think the Board should refrain from adopting any of the systems of second choice voting to create an artificial majority where the first choice resulted in no majority. The majority opinion argues that "if a majority of the employees desire collective bargaining and can unite upon a common representative, we see no reason to deny them the right to select such a representative." The Board does not know, however, that they desire to unite upon such a representative. It creates a condition under which they must vote for or against one representative, and the effect of this is to force those who are opposed to the particular representative to vote against any collective bargaining. I think that this kind of a runoff election thwarts rather than effectuates the collective-bargaining policy of the Act. Moreover, the essential dispute that the election is designed to settle is between the two labor organizations, one of which received 195 votes and the other 188. To say that they can unite upon a common representative is the same as saying that the members of one organization should transfer their allegiance to the other. Employees have many and strong reasons for remaining loyal to their unions even though they do not receive a majority vote in an election. It is not for the Board to say that they should vote for a competing organization rather than wait until they can win a few more adherents to make a majority. We are told also that if the petition is dismissed "a small minority of employees who desire no representation are able to deprive the greater majority of employees of all opportunity for collective bargaining." But this is exactly what the run-off election accomplishes when the employees vote against all collective rather than for the one representative on the ballot. Further, the Board does not order a second election in all cases where the first results in a plurality. The actual practice is to dismiss all such cases except where a request is made for a run-off election by the organization which received the highest number of votes. It seems to me arbitrary to order a run-off election in a case like the present one at the request of the organization which had seven more votes than the other, and not to order such an election if a request is not made. Collective bargaining is prevented in all cases where elections result in no majority. If Congress intended that no representative should be certified in some of these cases, I cannot understand how it can be assumed that a portion of the cases should be otherwise treated. In any case, it does not seem to me to be within the province of the Board to seek second- or third-choice majorities by one of the questionable methods of preferential voting. 1 See Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local 1657, 4 N. L. R. B. 55, 62; Matter of Waggoner Refining Company, Inc. and International Association of Oil Field, Gas Well, and Refinery Workers of America, 8 N. L. R. B. 789. Subject: Milton Bradley Company and Int. Printing Pressmen, Case R-1377. I understand that oral argument in this case was held while I was in Minnesota and that you are ready to decide the case. I have read the record of the oral argument and the exhibits and the file in the case as well as the informal report of the trial examiner. The trial examiner recommends an election in a bargaining unit consisting of the printing pressmen. I agree with this and think that an election ought to be held accordingly. Copy to Mr. Emerson. To: Mr. Madden. From: W. M. Leiserson. INTER-OFFICE COMMUNICATION Date: 7/7/39. Subject: Times Publishing Co., Case No. C-746. Oral argument in this case was heard in July, 1938, just a year ago. I don't want to participate in a case where Board's proceedings were completed a year before I came. Copy to Mr. Emerson. INTER-OFFICE COMMUNICATION Date: July 10, 1939. To: Mr. Madden. From: Wm. M. Leiserson. Subject: I. Miller & Sons, Inc. I agree with this decision, but I think the first paragraph on page 7 should be omitted and a single sentence substituted to the effect that "we find that there is no dispute as to the bargaining unit." On page 8 the decision says that the A. F. of L. union refused to submit its evidence of the men it claimed to represent because of the fear of discharge under the closed shop agreement. This is a valid excuse, but we are ordering an election on the assumption that the A. F. of L. union did have real evidence. I think instructions should be issued to the trial examiners to require the evidence and hold the signatures confidential. With the evidence excluded the last sentence in the first paragraph on page 8 is no reason at all for our opinion. Copy to Mr. Emerson. -WML To: Mr. Madden. INTER-OFFICE COMMUNICATION From: Wm. M. Leiserson. Date: July 10, 1939. Subject: The Press Co., Inc., and the Gannett Company, Case No. C-641. In this connection I should like to call your attention to the Alabama Power Company case which is more than a year old. Dan Tracy of the Electrical Workers wrote a letter to the Board members urging the importance of an |