7. EXISTENCE OF A REPRESENTATION QUESTION 

The granting of a petition for an election is conditioned by Section 9(c)(1) of the Act on a 

finding that a question of representation exists. This depends first on whether the petition filed 

with the Board has a proper basis. The ultimate finding of the existence of a representation 

question hinges on considerations such as the qualifications of the proposed bargaining 

representative, whether an election is barred by a contract or a prior determination, the 

appropriateness of the proposed bargaining unit, and other factors. These are discussed under 

appropriate headings in chapters which follow. The general rules affecting the representation 

question are discussed here. 

7-100 General Rules 

7-110 Prerequisite for Finding a Question Concerning Representation

301-5000 

316-3300 

316-6701-3300 

Normally, a question concerning representation is found to exist when the union has made a 

demand for recognition which the employer has refused. However, shortly after the adoption of

the 1947 amendments to the Act, the Board rejected a contention that Section 9(c)(1) of the

amended Act made such a demand and refusal mandatory prior to the filing of a petition. A prior 

demand and refusal, it was decided, is not a jurisdictional prerequisite to proceedings on the 

merits in a representation case. Advance Pattern Co., 80 NLRB 29 (1949). Consequently, the 

petition need not show the recognition was requested, Girton Mfg. Co., 129 NLRB 656 (1961), or

that it was denied, Seaboard Warehouse Terminals, 129 NLRB 378 (1961); Plains Cooperative 

Oil Mill, 123 NLRB 1709 (1959). 

The demand for recognition need not be made in any particular form. American Lawn 

Mower Co., 108 NLRB 1589, 1589–1590 (1954). The filing of a petition itself is deemed a 

demand for recognition. Gary Steel Products Corp., 127 NLRB 1170 (1960); National Welders 

Supply Co., 145 NLRB 948 (1964). 

7-120 The General Box Rule 

316-6783 

339-7562 

347-4001-4500 

347-4030-1800 

A petition may be entertained even though a union has been voluntarily recognized as the 

employees’ bargaining agent, since only through certification can the union secure whatever 

protection is afforded under Section 8(b)(4) as well as the benefits of the administrative “one year 

rule’’ developed by the Board. General Box Co., 82 NLRB 678 (1949); Pacific States Steel 

Corp., 121 NLRB 641 (1958); and Central Coat, Apron, & Linen Service, 126 NLRB 958 

(1960). See also Food & Commercial Workers Local 1996 (Visiting Nurse Health Systems), 336

NLRB 421 (2001) (dismissing 8(b)(4) case when charged union was certified). “Even recognition

of and a current contract with a petitioning union does not bar a petition for certification by that 

union.’’ General Dynamics Corp., 148 NLRB 338 (1964); Duke Power Co., 173 NLRB 240

(1969); and Empire Dental Co., 219 NLRB 1043 (1975). Moreover, an employer, as well as a 

recognized bargaining agent, is entitled to the benefits of certification under what has become 

known as the General Box rule, even though the employer has recognized the union for many

years. Pennsylvania Garment Mfrs. Assn., 125 NLRB 185, 186 fn. 7 (1959). However, an

employer’s petition is barred by a current contract to which it is a party for the entire term of the 

61
62 EXISTENCE OF A REPRESENTATION QUESTION 

contract, even when the union is not certified and the employer seeks the benefits of certification.

Absorbent Cotton Co., 137 NLRB 908 (1962). In Seven Up Bottling Co., 222 NLRB 278 (1976),

the Board found that a petition filed by a union certified a little more than a year before did not

raise a question concerning representation when the union and the employer were engaged in 

bargaining as a result of that certification. 

In adopting the General Box rule, the Board reasoned that the benefits of certification would 

provide greater protection to an already recognized union against raids of competing unions. For 

this reason, a petition filed by a recognized uncertified labor organization is treated by the Board 

as an exception to its contract-bar rules. Once a petition is filed under the General Box exception,

it is viewed by the Board the same as any other petition that raises a question concerning 

representation. Thus, the contracting union’s contract cannot thereafter act as a bar, and other 

unions are permitted to intervene. Ottawa Machine Products Co., 120 NLRB 1133 (1958); Puerto

Rico Cement Corp., 97 NLRB 382 (1951); and McGraw-Edison Co., 199 NLRB 1017 (1972). 

When, however, it was found that the petitioner sought an election for the precise purpose of 

bringing in the intervenor as bargaining agent for the employees, not for the benefit of obtaining a 

certification, the effect was to establish a purpose behind the filing of the petition other than

certification. In these circumstances, the Board concluded that there was no basis for applying the 

General Box exception to the petition and no reason for removing the contract between the 

petitioner and the employer as a bar. McGraw-Edison Co., supra. 

When, however, the unions involved were legitimate rivals contesting for the right to

represent the sought-after employees, the situation was considered different and elections were 

directed, despite the fact that the petitioner sought to withdraw its petition after intervention 

occurred. Jefferson City Cabinet Co., 120 NLRB 327 (1958). “We consider the presence of such 

a rivalry,’’ said the Board in McGraw-Edison Co., “to be a determining factor in General Box

cases of this type.’’

7-130 The Effect of Private Dispute Resolution Mechanisms 

Often the Board is confronted with requests that it consider the decision of an arbitrator or of 

another forum in determining whether there is a question concerning representation. 

Alternatively, parties will often ask that the Board stay its proceedings pending a decision by such 

a tribunal. As the paragraphs that follow reflect, the Board’s general policy is to refuse such 

requests. The existence of these proceedings, however, may have some bearing on whether there

is a question concerning representation or on the processing of the “R’’ case. 

7-131 Grievances and Arbitration

240-3367-8312 

316-3301-5000 

385-7501-2581 

The pursuit of representation rights through the grievance arbitration machinery of a contract

does not raise a question concerning representation—and hence an RM petition will not lie—if 

the union is merely seeking those rights as an accretion to the contract unit. Woolwich, Inc., 185

NLRB 783 (1970). In Woolwich, the Board distinguished accretion from attempts to secure 

representation in a separate bargaining unit. In the latter situation the demand for recognition 

through the means of a grievance will raise a question concerning representation. See also United 

Hospitals, 249 NLRB 562 (1980), and Valley Harvest Distributing, 294 NLRB 1166 (1989). But 

if a union seeks to add a group only as an accretion, and an arbitration award improperly finds

the accretion, the Board will consider the matter, albeit usually in a UC rather than an RM 

context. Williams Transportation Co., 233 NLRB 837 (1977). See also Ziegler, Inc., 333 NLRB 

949 (2001). When the union has processed a grievance through arbitration and has obtained a 

favorable award granting it representation rights, the Board must decide whether to defer to that 
EXISTENCE OF A REPRESENTATION QUESTION 63

award as a resolution of what would otherwise have been a question concerning representation. In 

Raley’s, Inc., 143 NLRB 256 (1963), the Board held that it had the authority to defer to an 

arbitrator’s award in a representation matter. Shortly after the Board’s Raley’s decision, the

Supreme Court held that a representation dispute was arbitrable. Carey v. Westinghouse, 375 

U.S. 261 (1964). Although Carey could have had the effect of reinforcing the Raley’s policy,

Board case law has generally declined to defer to arbitration awards in the representation case

area. See Hershey Foods Corp., 208 NLRB 452 (1974), and Commonwealth Gas Co., 218 NLRB 

857 (1975). In St. Mary’s Medical Center, 322 NLRB 954 (1997), the Board noted that it will 

defer when the issue turns solely on interpretation of the parties contract. See also Teamsters

Local 776 (Rite Aid), 305 NLRB 832 (1991), where the Board discussed the legality of lawsuits

to enforce arbitration decisions that conflict with a Board representation decision. Pursuing a 

grievance to include nonunit employees where the grievance is incompatible with a decision of

the Board or a Regional Director is an unfair labor practice. Allied Trades Council, 342 NLRB 

No. 103 (2004). 

The Board’s deferral policies enunciated in Collyer Insulated Wire, 192 NLRB 837 (1971),

and Dubo Mfg. Corp., 142 NLRB 431 (1963), in which the Board will either require grievance 

arbitration (Collyer), or stay its proceedings pending resolution of an existing grievance (Dubo), 

are not applicable to issues which are representational. See Marion Power Shovel Co., 230 

NLRB 576 (1977); Massachusetts Electric Co., 248 NLRB 155 (1980); Super Value Stores, 283 

NLRB 134 (1987); Williams Transportation Co., supra; and Tweedle Litho, Inc., 337 NLRB 686 

(2002). 

The Board has indicated that it may permit representation questions to be resolved in an

arbitration forum in circumstances arising out of neutrality agreements or after acquired clauses. 

Central Parking System, 335 NLRB 390 (2001). But see discussion of Shaw’s Supermarkets, 343 

NLRB No. 105 (2004), infra at section 9-620. 

The Board has also found that a union is estopped from utilizing the Board’s processes where 

it sought to use the benefits of its contract while seeking to avoid its arbitration provision to

resolve a unit question. Verizon Information Systems, 335 NLRB 558 (2001). See also Tweedle 

Litho, supra. The Board may, however, hold postelection proceedings in abeyance pending 

determination of contractual grievance and arbitration procedures. In doing so the Board has 

stated that deferral would “avoid inconsistent outcomes and would respect the parties’ decision to 

resolve disputes through the arbitration machinery.” Morgan Services, Inc., 339 NLRB 463 

(2003), and cases cited there. 

See also sections 9-620, 12-500, and 23-113. 

7-133 No-Raid Agreements 

240-3367-1731 

These agreements present two different issues for the Board. (1) Should it defer to a decision

of a no-raid tribunal set up by labor organizations, and (2) should the Board stay its processes 

during the pendency of such procedures? As to the former, the Board has responded in the 

negative primarily because it will not defer the resolution of a question concerning representation 

to a private dispute resolution mechanism. See Cadmium & Nickle Plating, 124 NLRB 353 

(1959); Jackson Engineering Co., 265 NLRB 1688, 1701 (1982); Anheuser-Busch, Inc., 246 

NLRB 29 (1979); and Great Lakes Industries, 124 NLRB 353 (1959), and Weather Vane 

Outerwear Corp., 233 NLRB 414 (1977). See VFL Technology Corp., 329 NLRB 458 (1999), for 

a brief description of these proceedings and of a disclaimer arising out of one of them. The Board 

does authorize its Regional Directors to stay the processing of a representation petition for 30 

days during the pendency of a no-raid proceeding. See CHM sections 11017–11019. 
64 EXISTENCE OF A REPRESENTATION QUESTION 

7-140 Ability to Determine Unit as Affecting Representation Question 

316-6701-5000 et seq. 

347-8020 

A petition is premature, and therefore raises no question concerning representation, when the 

future scope and composition of the unit is in substantial doubt.The petition will not be held in 

abeyance pending the hiring of a representative and substantial employee complement. K-P

Hydraulics Co., 219 NLRB 138 (1975); Pullman, Inc., 221 NLRB 954 (1975). See also section 

10-600 discussion of Expanding Unit. 

However, in an industry in which projects are continually being started and completed at 

different times, and different employees may be hired for each job, the existence of a nucleus of 

employees who obtain continuous employment is sufficient for the holding of a representation 

election. S. K. Whitty & Co., 304 NLRB 776 (1991); Oklahoma Installation Co., 305 NLRB 812

(1991); Queen City Railroad Construction, 150 NLRB 1679 (1965); Dezcon, Inc., 295 NLRB 

109 (1989); and Wilson & Dean Construction Co., 295 NLRB 484 (1989). 

Similarly, when an employer often hired extra employees during its peak business season but 

operated continuously on a year-round basis with a substantial complement of year-round 

employees, the Board held that the business was “cyclical in nature, rather than the kind of 

seasonal business which requires postponement of the election until the employee complement is

at its peak.’’ Baugh Chemical Co., 150 NLRB 1034 (1961); Mark Farmer Co., 184 NLRB 785 

(1970). 

A question concerning representation found by the Board continues to exist after a successor 

employer has taken over the enterprise when there has been no change in any essential attribute of 

the employment relationship. Texas Eastman Co., 175 NLRB 626 (1969). But when there has 

been a basic change in the operation, a new question concerning representation arises. Thus, 

when the consolidation of two shops of one employer was found comparable to a new operation, 

a petition gave rise to a question concerning representation which was unaffected by the

intervenor’s contention of a multiplant unit. General Electric Co., 185 NLRB 13 (1970). And

when the character and scale of the operation drastically altered the scope of the original unit 

petitioned for and found appropriate, the original petition no longer provided the basis for a 

determination of representatives. Plymouth Shoe Co., 185 NLRB 732 (1970). 

7-150 Statutory Exemption Under Section 8(b)(7)(C) of the Act—Expedited 

Elections 

578-8075-6056 

Petitions filed under the circumstances described in the first proviso to Section 8(b)(7)(C) of 

the Act are specifically exempt from the requirements of Section 9(c)(1). Section 8(b)(7)(C) 

provides that it is an unfair labor practice for a union to picket an employer for the purpose of 

forcing it to recognize or bargain with an uncertifled union, or forcing employees to select the

union as their collective-bargaining representative, unless a petition is filed under Section 9(c) 

within 30 days of the commencement of the picketing. Under the first proviso to Section 

8(b)(7)(C), when a petition is filed in these circumstances, the Board directs an election in the 

appropriate unit without regard to the provision of Section 9(c)(1) or the absence of a showing of 

interest on the part of the union. See Rules 102.77; Statements of Procedure, Sections 101.22 to 

101.25 and CHM sections 10244.3 and 11312.1k. 

The basic ground rules and conditions necessary to trigger the 8(b)(7)(C) expedited election 

machinery are spelled out in C. A. Blinne Construction Co., 135 NLRB 1153 (1963). Thus, as 

indicated by the Board, Section 8(b)(7)(C) represents a compromise between a union’s picketing 

rights and an employer’s right not to be subject to blackmail picketing. Unless shortened by a

union’s resort to violence, see Eastern Camera Corp., 141 NLRB 991 (1963), 30 days was 

defined as a reasonable period, absent a petition being filed, for the union to exercise its rights.
EXISTENCE OF A REPRESENTATION QUESTION 65

Picketing beyond 30 days is an unfair labor practice. The filing of a petition stays the 30-day

limitation and picketing may continue during processing of the petition. 

As the Board made clear in Blinne, however, a union cannot file a petition, engage in

recognitional picketing, and obtain an expedited election unless an 8(b)(7)(C) charge is filed. A

union cannot, of course, file an 8(b)(7)(C) charge against itself. Blinne, supra at 1157 fn. 10. 

In short, the expedited election procedure represents a compromise which seeks to balance 

competing rights. This compromise extends an option to an employer faced with recognition or

organization picketing. Thus, upon the commencement of such picketing, an employer may file 

an 8(b)(7)(C) charge. 

By the plain language of the first proviso to Section 8(b)(7)(C), the expedited election 

procedure is available only when a timely petition if filed, i.e., no more than 30 days after the start

of picketing for an 8(b)(7)(C) object. Petitions filed after 30 days are processed under normal “R” 

case procedures and do not serve as a defense to 8(b)(7)(C) picketing which has exceeded 30 

days. See Crown Cafeteria, 135 NLRB 1153, 1185 fn. 4 (1962); Moore Laminating, 137 NLRB

729, 732 fn. 6 (1962). 

7-200 Rules Affecting Employer Petitions 

7-210 Union Claims or Conduct 

308-8050 

316-3375 

316-6725 

Although a question of representation may be brought to the Board’s attention by the filing of 

an employer petition, the question is raised only by an affirmative claim of one or more labor 

organizations asserting representation of a majority of employees in an appropriate unit. Amperex 

Electric Corp., 109 NLRB 353, 354 (1954). Thus, a finding of a representation question is 

predicated on a union claim of representative status. Westinghouse Electric Corp., 129 NLRB 846 

(1961); Bowman Transportation, 142 NLRB 1093 (1963). 

Union conduct sufficient to constitute an affirmative claim for recognition may take many 

forms. It may, for example, be picketing (Bergen Knitting Mills, 122 NLRB 801, 802 (1959)),

and Rusty Scupper, 215 NLRB 201 (1974), including picketing for an 8(f) agreement, ElecComm, Inc., 298 NLRB 605, 706 fn. 5 (1990), or a demand for a new contract (Mastic Tile 

Corp., 122 NLRB 1528 (1959)). Such picketing is to be distinguished from a mere request that an 

employer sign an 8(f) agreement. In Albuquerque Insulation Contractor, 256 NLRB 61 (1981),

the Board held that such a request did not amount to a present demand for recognition. 

Albuquerque was reaffirmed in PSM Steel Construction, 309 NLRB 1302 (1992), which 

analyzed the issue in light of John Deklewa & Sons, 282 NLRB 1375 (1987), and distinguished 

Elec-Comm, Inc, supra at fn. 15. Accord: Western Pipeline, Inc., 328 NLRB 925 (1999), in

which the Board further concluded that an unsubstantiated claim that the employer was an alter

ego of the signatory contractor and obligated to sign the contract, was nothing more than a

request to sign an 8(f) agreement and therefore did not raise a question concerning representation. 

In New Otani Hotel & Garden, 331 NLRB 1078 (2000), the Board found that picketing and 

boycotts, accompanied by requests for a neutrality card check agreement do not constitute a 

demand for recognition and thus do not warrant processing an RM petion. Accord: Brylane, L.P.,

338 NLRB 538 (2002). Where however such a demand is accompanied by evidence of a current 

organizing campaign, the Board will find a recognitional objective. Rapera, Inc., 333 NLRB 

1287 (2001).

A work assignment dispute does not, however, raise a question concerning representation

A. S. Abell Co., 224 NLRB 425 (1976). Silent acquiescence by one union in the recognition 

demand of another union with whom it had jointly sought to organize the petitioning employer’s 

plant constitutes an implied demand sufficient to support the employer’s petition. Atlantic-Pacific
66 EXISTENCE OF A REPRESENTATION QUESTION 

Mfg. Corp., 121 NLRB 783 (1958). In Kingsport Press, 150 NLRB 1157 (1965), the union had

been engaged in an economic strike for more than a year when the employer filed its petition. but

the union continued to claim recognition as bargaining agent for certain employees. Although the 

employer was willing to recognize the union and negotiate with it while its status as the certified 

representative continued, the Board found that the employer’s purpose in filing the petition was to 

question that status and to determine, through an election, whether the union remained the choice 

of a majority of the employees in the bargaining unit. In these circumstances, the Board, citing 

Bowman Transportation, supra, found that the petition raised a question concerning 

representation. 

In Windee’s Metal Industries, 309 NLRB 1074 (1992), the Board found that the informational 

picketing there did not amount to a “claim to be recognized’’ and reaffirmed the longstanding

position that Section 9(c)(1)(B) requires evidence of a “present demand for recognition’’ in order 

to process the RM petition. The Board described the legislative history of Section 9(c)(1)(B) and 

the history of its interpretation by the Board. Additionally, the Board distinguished the facts in 

Windee’s from those cases in which the union engages in postdisclaimer picketing together with a 

present demand for recognition. In this latter circumstance, the Board will process the RM

petition. (See also sec. 8-100, Disclaimer.) 

For related discussion, see section 9-620. 

7-220 RM Petitions/Incumbent Unions 

316-6725-5000 

When an employer petitions the Board for an election as a means of questioning the 

continued majority status of a previously certified incumbent union, it must, in addition to 

showing the union’s claim for continued recognition, demonstrate a basis for seeking an election.

Prior to its decision in Levitz Furniture Co., 333 NLRB 717 (2001), the Board required that the

employer show “by objective considerations that it has some reasonable grounds for believing

that the union has lost its majority status.’’ U.S. Gypsum Co., 157 NLRB 652, 656 (1966). This 

was known as the U.S. Gypsum rule and before its promulgation, an employer-petitioner under 

Section 9(c)(1)(B) had to show only that the union had claimed representative status in the unit 

and that the employer had questioned it. In Levitz, the Board lowered the standard for filing an

RM petition in these circumstances to a “good-faith uncertainty” that a majority of the unit

employees continue to support the union. In doing so, the Board abandoned the unitary standard 

that it had applied for withdrawal of recognition, filing RM petitions and polling. See Allentown

Mack Soles & Service v. NLRB, 552 U.S. 359 (1998). Instead the Board set a higher standard for

withdrawal—“actual loss of majority”—and maintained the “uncertainty” standard for filing a 

RM petition. See also Raven Government Services, 331 NLRB 651 (2001). Although in U.S. 

Gypsum and Levitz, the union was a certified incumbent, the rationale of the decisions do not 

preclude application to any incumbent, certified or not. Nor do they affect employer petitions 

involving claims by unions asserting representative status in an effort to obtain initial recognition. 

In practice, the question of “good-faith uncertainty” is treated as an administrative 

determination of the Regional Director, and is therefore not litigated at the hearing. The thrust of 

such determination is whether the employer is uncertain of the union’s majority status, and not 

whether such status is in question. See Levitz, slip op. at 11–12 and CHM section 11042. 

In Levitz, the Board noted two cases in which it had not found good-faith uncertainty. See 

Henry Bierce Co., 328 NLRB 646, 650 (1999), enfd. in relevant part 234 F.3d 1268 (6th Cir. 

2000), and Scepter Ingot Castings, Inc., 331 NLRB 1509 (2000). 

Once an incumbent union has accepted a contract offer, the employer cannot challenge its 

majority status by filing an RM petition even though a RD or rival RC petition could be filed

assuming acceptance would not otherwise be precluded by the Board’s control bar standards

(chapter 9). Auciello Iron Workers, 317 NLRB 364, 374 (1995). 
EXISTENCE OF A REPRESENTATION QUESTION 67

7-230 Accretions 

316-3301-5000 

347-8020-8067 

420-2360 

The subject of accretion is more fully discussed in section 12-500, infra. A merger of two

groups of employees may in certain circumstances raise a question concerning representation.

When one of the two groups is represented and the other is not, the issue of whether there is an 

accretion will depend on traditional community-of-interest matters and on whether the

represented group is larger than the unrepresented group. See Central Soya Co., 281 NLRB 1308 

(1986), and Special Machine & Engineering, 282 NLRB 1410 (1987). But when the two groups 

have been represented by different labor organizations, the merger will raise a question 

concerning representation unless one of the represented unions clearly predominates. The fact

that one group is slightly larger than the other will not be considered sufficient to find

predomination. National Carloading Corp., 167 NLRB 801 (1967); and Martin Marietta 

Chemicals, 270 NLRB 821 (1984). See also F.H.E. Services, 338 NLRB 1095 (2003). 

Accretion analysis is inapplicable when the unit is fully described, i.e., defined by the work 

performed. See The Sun, 329 NLRB 854 (1999); Archer Daniels Midland Co., 333 NLRB 673

(2001); Premcor, Inc., 333 NLRB 1365 (2001); and Developmental Disabilities Institute, 334 

NLRB 1166 (2001). In Premcor, the Board summarized its position: 

Once it is established that a new classification is performing the same basic functions as a

unit classification historically had performed, the new classification is properly viewed as

remaining in the unit rather than being added to the unit by accretion. Accordingly, an 

accretion analysis in these circumstances is inapplicable. 

Nor does the accretion doctrine apply where the employee group sought to be accreted may 

separately constitute an appropriate bargaining unit. Passavant Health Center, 313 NLRB 1216

(1994). 

As noted above, the subject of accretions is more fully discussed at section 12-500. In 

addition, see discussions of accretion in section 12-600 and in chapter 21. 

7-240 Changes in Affiliation 

316-3390 

385-2525 

In NLRB v. Financial Institution, Employees, 475 U.S. 192 (1986), the Supreme Court set

forth the standards for determining whether a change in the affiliation status of a certified union 

raises a question concerning representation. Chapter 11, section 100, infra, fully discusses the 

Board’s AC petition procedures and policies. Briefly, however, an affiliation will raise a 

representation question where there is not a substantial continuity between the pre- and 

postaffiliation union. See Hammond Publishers, 286 NLRB 49 (1987); Western Commercial

Transport, 288 NLRB 214 (1988); City Wide Insulation, 307 NLRB 1 (1992); Service America 

Corp., 307 NLRB 57 (1992); Mike Basil Chevrolet, 331 NLRB 1044 (2000); Avante at Boca 

Raton, Inc., 334 NLRB 381 (2001); and chapter 11, section 100, infra. 

7-250 Employer Waiver 

An employer who agrees not to file an RM petition during the life of an 8(f) agreement will

be held to its agreement and the Board will not process the petition. Northern Pacific 

Sealcoating, 309 NLRB 759 (1992). (See also sec. 9-600.) 
68 EXISTENCE OF A REPRESENTATION QUESTION 

7-300 Rules Affecting Decertification Petitions 

7-310 Who May File a Decertification Petition

316-6733 

324-4060-2500 

To raise a valid question concerning representation, a decertification petition need not be 

filed by an employee of the employer. Bernson Silk Mills, 106 NLRB 826 (1953). However, this

does not mean that a supervisor may file a decertification petition. To permit supervisors to act as 

employee representatives would defeat one of the purposes of the Act, which was to draw a clear 

line of demarcation between supervisory representatives of management and employees because

of the possibility of conflicts in allegiance if supervisors were permitted to participate in union 

activities with employees. Clyde J. Merris, 77 NLRB 1375 (1948). However, when the petitioner 

becomes a supervisor after the filing of the petition, the proceedings are not abated.

Weyerhaeuser Timber Co., 93 NLRB 842 (1951); Harter Equipment, 293 NLRB 647 (1989). 

Thus, while ordinarily the Board does not allow the litigation of the issue of “employer

instigation of, or assistance in, the filing of the decertification petition’’ in the representation 

proceeding (Union Mfg. Co., 123 NLRB 1633 (1959)), a petition filed by one of the employer’s

supervisors cannot raise a valid question and, as a result, the issue of supervisory status has to be 

determined in the decertification proceeding, if raised. Modern Hard Chrome Service Co., 124 

NLRB 1235, 1236 (1959). The supervisory status of the petitioner in a decertification proceeding 

must in any event be decided, because an employee who is not a supervisor is included in the unit

and is entitled to vote in the election and deferring this issue to an unfair labor practice 

proceeding could only result in costly delay of the representation proceeding. Id. at 1236. 

A confidential employee may not file a decertification petition even if the employee is 

included in the unit. Star Brush Mfg. Co., 100 NLRB 679 (1951). 

In Pan American Airways, 188 NLRB 121 (1971), the incumbent union contended that a

decertification petition should not be processed because the petitioner had misled the employees

into supporting the petition by holding out the prospect of a big wage increase if they would 

decertify the union and support the Teamsters. A question concerning representation was found,

however, although the Board noted parenthetically that the Teamsters withdrew from the case 

after the hearing, sought no place on the ballot, and would be precluded from obtaining an 

election for a 12-month period after the election directed in this decision. See also Ray Brooks v.

NLRB, 348 U.S. 96 (1954).

Related to the issue of who may file a decertification petition is the question of who may

withdraw a petition. In Transportation Maintenence Services, 328 NLRB 691 (1999), a divided 

Board permitted withdrawal of the petition after the election was held, and the ballots impounded 

but before any counting of ballots. 

See 10–800 for discussion of blocking charge rules and decertification petitions.

7-320 The Unit in Which the Decertification Election Is Held 

355-3350 

The general rule is that the bargaining unit in which the decertification election is held must

be coextensive with the certified or recognized unit. Campbell Soup Co., 111 NLRB 234 (1955);

W. T. Grant Co., 179 NLRB 670 (1969); Bell & Howell Airline Service Co., 185 NLRB 67

(1970); WAPI-TV-AM-FM, 198 NLRB 342 (1972); and Mo’s West, 283 NLRB 130 (1989).

Mindful of the fact that Congress made no provision for the decertification of part of a certified or 

recognized unit, the existing unit normally is the appropriate unit in decertification cases. Stated 

differently, a merger of units normally has the effect of destroying the separate identity of the 

prior units. White-Westinghouse Corp., 229 NLRB 667, 672 (1977). Accord: Albertson’s, Inc., 

307 NLRB 338 (1992). Compare West Lawrence Care Center, 305 NLRB 212 (1991), where the 
EXISTENCE OF A REPRESENTATION QUESTION 69

RD petition was filed shortly after the merger and the Board ordered an election in the prior 

single unit. 

Thus, when the employer, with the union’s acquiescence, recognized and contracted with

single-plant units rather than the previously certified multiplant unit, and the Board found the 

single-plant unit appropriate, a decertification election was ordered in the single-plant unit sought. 

Clohecy Collision, 176 NLRB 616 (1969). And, conversely, when the long, continuous pattern of 

bargaining between the union and the employer had brought about an effective merger of the

individually certified units into a multiplant contractual unit, the Board dismissed a petition for a 

decertification election in one of the originally certified units. General Electric Co., 180 NLRB 

1094 (1970); Gibbs & Cox, Inc., 280 NLRB 953 (1986); Green-Wood Cemetery, 280 NLRB 

1359 (1986); and Wisconsin Bell, 283 NLRB 1165 (1987). See also Duke Power Co., 191 NLRB 

308 (1971), when because of the short period of time in which the units had been included in a 

systemwide agreement, they had not yet been irrevocably amalgamated into the larger collectivebargaining unit. 

In Albertson’s Inc., 273 NLRB 286 (1984), the Board directed an election in a single store 

unit where the employer had withdrawn from multiemployer bargaining where it had bargained 

on a multistore basis. The Board held that on withdrawal, the considerations for grouping the 

employer’s eight stores no longer existed and as the most recent agreement was for a

multiemployer unit, a unit that the Board would not have found appropriate in an initial unit 

determination, a decertification petition will be processed as to a single store appropriate unit. Yet 

see Arrow Uniform Rental, 300 NLRB 246 (1990), which limited Albertson’s to a situation in 

which the employer’s multilocation grouping in the multiemployer unit was not one which the 

Board would have certified.

When a new store was recognized by the employer as an accretion to the existing multistore 

unit but the Board, in the absence of evidence showing that the new store had been effectively 

merged into the existing unit, found it to be a separate appropriate unit, a decertification petition 

was entertained in that single store unit. Food Fair Stores, 204 NLRB 75 (1973). 

When the union is the currently recognized majority representative of a mixed unit of guards 

and nonguards, the general rule would, in effect, constitute an acceptance of the appropriateness 

of the mixed unit, a position contrary to Section 9(b)(3) of the Act which prohibits the Board 

from deciding that a unit of guards and nonguards is appropriate. This statutory requirement thus 

necessitates an exception to the general rule. In such circumstances, a unit limited to guards

constitutes the appropriate unit in the decertification election. Fisher-New Center Co., 170

NLRB 909 (1968). 

A mixed unit of professional and nonprofessional employers presents a somewhat related

problem. In such a case the Board will not direct a decertification election among the professional

employees if they have previously voted for inclusion in the overall unit Westinghouse Electric

Corp., 115 NLRB 530 (1956). When the professional employees have not had such an 

opportunity, the Board will make an exception to the general rule and direct a decertification 

election among the professionals. Utah Power & Light Co., 258 NLRB 1059 (1981). Compare 

Group Health Assn., 317 NLRB 238 (1995). Note also that in Group Health, supra, the Board

dismissed the petition because the professionals were specifically excluded from the unit and the 

Board was unable to conclude whether or not the unit was appropriate. 

7-330 Categories Which may not be Included in the Unit in a Decertification 

Election 

355-3350-6200 

As a victory in a decertification election would entitle the union to a recertification as 

bargaining representative, and as the Board is without jurisdiction to include agricultural 

laborers or supervisors in such a unit, the status of individuals who may belong to those 

categories must be determined. Their exclusion from the unit, which is required by the Act, is not
70 EXISTENCE OF A REPRESENTATION QUESTION 

construed to constitute a change in the unit. Illinois Canning Co., 125 NLRB 699 (1960). See 

also WAPI-TV-AM-FM, supra, excluding supervisors. 

7-340 Certification not a Prerequisite 

Section 9(c)(1) of the Act provides that the decertification process may be invoked not only 

when a labor organization has been certified, but also when an uncertified organization is being 

currently recognized as the bargaining representative. Lee-Mark Metal Mfg. Co., 85 NLRB 1299

(1949); Wahiawa Transport System, 183 NLRB 991 (1970). 

7-400 Effect of Delay and Turnover 

In situations in which the courts have rejected the Board’s bargaining order in a Gissel case

(NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) and the Board is therefore now considering 

the representation case, it has consistently rejected employer contentions that the petition should 

be dismissed because of the long delay and/or because of employee turnover. Sheraton Hotel 

Waterbury, 316 NLRB 238 (1995).