51

6. QUALIFICATION OF REPRESENTATIVE 

177-3200 

Section 9(c)(1)(A) provides that employees may be represented “by any employee or group 

of employees or any individual or labor organization.” An election is directed and a certification 

is issued unless the proposed bargaining representative fails to qualify as a bona fide 

representative of the employees. Specific statutory provisions defining “labor organization” and, 

in the case of guards, creating a limitation with respect to their representative are treated here. 

The Board has also developed administrative policies for determining the qualification of

representatives, and these, too, are discussed in this chapter. 

6-100 The Statutory Definition of Labor Organization 

177-3925 

347-4030 

Section 2(5) defines “labor organization” as follows: 

The term “labor organization” means any organization of any kind, or any agency or

employee representation committee or plan, in which employees participate and which exists

for the purpose, in whole or in part, of dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours of employment, or conditions of work. 

See Litton Business Systems, 199 NLRB 354 (1972), and Machinists, 159 NLRB 137 (1966), 

for Board findings of a “labor organization.” 

6-110 Application of the Statutory Definition 

308-6000 

339-2500 et seq. 

347-4030 

The fact that a union is in its early stages of development and has not as yet won 

representation rights does not disqualify it as a labor organization. Thus, the Board has found that

the petitioner existed for the statutory purposes, although those purposes had not yet come to

fruition because employees had participated in its organization and subsequent activities,

although the latter were limited by the organization’s lack of representation rights. Michigan Bell 

Telephone Co., 182 NLRB 632 (1970). See also Early California Industries, 195 NLRB 671, 674

(1972). 

When there was no showing that the intervenor restricted its membership on religious 

grounds or that it would not accord adequate representation to all unit employees, the intervenor 

was qualified to act as representative. Town & Country, 194 NLRB 1135 (1972).

Despite the lack of structural formality manifested by the absence of a constitution or bylaws 

and by the failure to collect dues or initiation fees, an organization which admitted employees to 

membership, was established for the purpose of representing its membership, and intended to do

so if certified was found to be a labor organization. Butler Mfg. Co., 167 NLRB 308 (1967). See 

also Yale University, 184 NLRB 860 (1970); Stewart-Warner Corp., 123 NLRB 447 (1959). See 

also NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). But a group of five employees who 

engaged in a concerted refusal to see patients, was not a labor organization and thus, not bound 

by the notice provisions of Section 8(g). Vencare Ancillary Services, 334 NLRB 965 (2001).

In East Dayton Tool Co., 194 NLRB 266 (1972), the Board, after finding the petitioner to be 

a “labor organization” within the Act’s definition, also held that the fact that the petitioner’s 

organizers were members of the former independent union before its affiliation with the

intervenor and the fact that the petitioner adopted a name similar to that of the former union did
52 QUALIFICATION OF REPRESENTATIVE 

not constitute the petitioner the same labor organization as the intervenor nor preclude the 

petitioner from filing a petition. 

When the intervenor contended that the petitioner should not be recognized as a labor 

organization because it did not intend to fulfill its bargaining obligation if certified, but to affiliate 

with another labor organization immediately after certification, the Board found it premature to 

consider such possibility. Rather, the Board held that after certification it could , pursuant to its 

authority to police its certifications, examine the propriety of a post certification affiliation if an 

appropriate motion were filed. Butler Mfg. Co., supra; Guardian Container Co., 174 NLRB 34 

(1969). The Board applied the same reasoning when it dismissed an employer’s contention that 

the petitioner was not a labor organization because it had “bound itself by contract, custom, and 

practice” with the employer’s competitors “not to bargain or negotiate any other or different 

terms of employment from those embodied in Petitioner’s national contract.” Margaret-Peerless 

Coal Co., 173 NLRB 72 (1969). See also Gino Morena Enterprises, 181 NLRB 808 (1970), in 

which there was a premature contention that the petitioner did not fulfill the statutory requirement 

of employee participation. 

In interpreting Section 2(5) of the Act, the Board, in Alto Plastics Mfg. Corp., 136 NLRB 

850, 851–852 (1962), stated its basic policy as follows: 

In order to be a labor organization under Section 2(5) of the Act, two things are required: 

first, it must be an organization in which employees participate; and second, it must exist for 

the purpose, in whole or in part, of dealing with employers concerning wages, hours, and 

other terms and conditions of employment. If an organization fulfills these two 

requirements, the fact that it is an ineffectual representative, that its contracts do not secure 

the same gains that other employees in the area enjoy, that certain of its officers or 

representatives may have criminal records, that there are betrayals of the trust and 

confidence of the membership, or that its funds are stolen or misused, cannot affect the 

conclusion which the Act then compels us to reach, namely, that the organization is a labor 

organization within the meaning of the Act. 

Accord: Coinmach Laundry Corp., 337 NLRB 1286 (2003).

See also Harrah’s Marina Hotel, 267 NLRB 1007 (1983), in which the Board held that the 

petitioner was not a labor organization. The employer contended that the petitioner was not a 

labor organization because of criminal activities of its officials and because it was not democratic. 

The Board found that the petitioner did not meet the statutory definition of Section 2(5) of the 

Act. See also Mohawk Flush Doors, 281 NLRB 410 (1986). 

An exclusive bargaining representative is empowered to designate and authorize agents 

including other labor organizations to act on its behalf. CCI Construction Co., 326 NLRB 1319 

(1998). 

6-120 Impact of Labor-Management Reporting and Disclosure Act of 1959 

133-2500 

Violations of the Labor-Management Reporting and Disclosure Act of 1959 do not affect 

Board policy, since Section 603(b) of the Act explicitly provides: “ nor shall anything contained 

in [Titles I through VI] . . . of this Act be construed . . . to impair or otherwise affect the rights of 

any person under the National Labor Relations Act, as amended.” 

An organization’s (or its agent’s) possible failure to comply with the Landrum-Griffin Act 

should be litigated in the appropriate forum under that Act, and not by the indirect and potentially 

duplicative means of the Board’s consideration in the course of determining the union’s status 

under Section 2(5) of the Act. See Neiser Supermarkets, 142 NLRB 513 fn. 3 (1963); Harlem 

River Consumers Cooperative, 191 NLRB 314 (1971); and Caesar’s Palace, 194 NLRB 818 

(1972). 
QUALIFICATION OF REPRESENTATIVE 53

A violation of the Labor-Management Relations Act of 1947 was likewise held not to 

disqualify a petitioner from filing a representation petition. Chicago Pottery Co., 136 NLRB 1247 

(1962). As stated in Lane Wells Co., 79 NLRB 252, 254 (1948), “excepting only the few 

restrictions explicitly or implicitly present in the Act, we find nothing in Section 9, or elsewhere, 

which vests in the Board any general authority to subtract from the rights of employees to select 

any labor organization they wish as exclusive bargaining representative.” See also National Van 

Lines, 117 NLRB 1213 (1957). 

6-130 Public Policy Considerations 

339-7527-8300 

385-5050-7500 

393-7016 

530-8080 

To the few statutory restrictions, however, may be added the constitutional proscription, 

through the due-process clause of the Fifth Amendment, against any recognition or enforcement 

of illegal discrimination by a Federal agency. Thus, in Hughes Tool Co., 147 NLRB 1573 (1964), 

the Board held that unions which exclude employees from membership on racial grounds may not 

obtain or retain a certified status under the Act. Similarly, the Board has indicated that an 

unlawful employment practice involving sex discrimination by a labor organization would 

disqualify that organization from representing a group of employees. See Glass Bottle Blowers 

Local 106 (Owens-Illinois), 210 NLRB 943 (1974). 

In NLRB v. Mansion House Management Corp., 473 F.2d 471 (8th Cir. 1973), the court held 

that, when an employer in good-faith raises the issue of union racial discrimination as a defense 

to an 8(a)(5) charge, the Board should inquire whether the union has taken affirmative action to 

undo its discriminatory practices, and that the Board’s remedial machinery cannot be available to 

a union which is unwilling to correct past practices of racial discrimination. Because the policy 

underlying this decision implicates the Board’s issuance of a certification as well as bargaining 

orders, the Board, in Handy Andy, Inc., 228 NLRB 447 (1977), held that unfair labor practice 

procedures are available for dealing with allegations of sex or race discrimination, but that such 

allegations will not be considered in representation proceedings. See also Guardian Armored 

Assets, LLC, 337 NLRB 557 (2002). 

6-200 Statutory Limitation as to “Guards” 

339-7575-7550 et seq. 

385-5050-8700 

401-2575-2800 

Section 9(b)(3) provides that the Board shall not certify a labor organization “as the 

representative of employees in a bargaining unit of guards if such organization admits to 

membership, or is affiliated directly or indirectly with an organization which admits to 

membership, employees other than guards.” Thus, a petition for employees found to be “guards” 

was dismissed when the union, which sought to represent them, also admitted to membership 

employees other than guards, and therefore could not be certified under the Act as statutory 

representative. A.D.T. Co., 112 NLRB 80 (1955); Wackenhut Corp., 169 NLRB 398 (1968). On 

the other hand, the Board will refuse to litigate the collateral issue of whether employees 

represented by the union elsewhere are guards. Rapid Armored Corp., 323 NLRB 709 (1997). 

However, a union which accepts its own nonguard employees into the union is not precluded 

from representing a unit of guards as a union cannot bargain for its own employees. Sentry 

Investigation Corp., 198 NLRB 1074 (1972). Municipal police officers are not considered 
54 QUALIFICATION OF REPRESENTATIVE 

“employees other than guards” for purposes of disqualifying a union to represent guards. 

Children’s Hospital of Michigan, 299 NLRB 430 (1990). 

In University of Chicago, 272 NLRB 873 (1984), the Board reversed its practice of 

permitting nonguard units to intervene in an election sought by a guard union. In the Board’s 

view such a practice was inconsistent with the statutory proscription of Section 9(b)(3). Nor will 

the Board permit a nonguard unit to enjoy benefits of its unit clarification procedures. Thus in 

Brink’s Inc., 272 NLRB 868 (1984), the Board dismissed a UC petition. Although it 

acknowledged that an employer could legally recognize a nonguard union, the Board concluded 

that use of the Board’s processes to further that end should not be permitted. 

An indirect affiliation exists when a nonguard union participates in guard affairs to such an 

extent and for such a duration as to indicate that the guard union has lost the freedom to formulate 

its own policies. The Board has applied this standard with substantial latitude, particularly when 

guard unions were in their formative stages. Magnavox Co., 97 NLRB 1111 (1951); and Wells

Fargo Guard Services, 236 NLRB 1196 (1978). Thus, no indirect affiliation was found in which 

a guard union had free use of a nonguard union’s meeting hall (International Harvester Co., 81 

NLRB 374 (1949)); when a guard union shared office space with a nonguard union (Brooklyn

Piers, Inc., 88 NLRB 1364 (1950)); when a guard union was assisted in preparing unfair labor 

practice charges and in selecting an attorney (Midvale Co., 114 NLRB 372 (1956)); when a 

nonguard union assisted a guard union in soliciting authorization cards (Inspiration Consolidated 

Copper Co., 142 NLRB 53 (1963)); and when a guard union and an employer association 

voluntarily agreed to participate in a pension trust fund arrangement contractually established by 

the employer association and a nonguard union (New York Hilton, 193 NLRB 313 (1971)). 

But when a guard union has continued to receive advice and/or financial aid from a nonguard 

union after the organizational stage, whether or not the nonguard union represents employees in 

the same plant, Section 9(b)(3) prohibits certification and the Board will revoke the certification 

of a previously certified union. Mack Mfg. Corp., 107 NLRB 209 (1954); International 

Harvester Co, 145 NLRB 1747 (1964); Stewart-Warner Corp., 273 NLRB 1736 (1985); and 

Brink’s Inc., 274 NLRB 970 (1985). Compare Lee Adjustment Center, 325 NLRB 375 (1998), 

where indirect affiliation was severed before bargaining. See also Wackenhut Corp. v. NLRB, 

178 F.3d 543 (D.C. Cir. 1999). Note that the language of Section 9(b)(3) is not limited to the 

possible divided loyalty situation in a particular plant. International Harvester Co., supra. 

Actual rather than speculative membership of nonguards is required to refuse certification to 

the union. The noncertifiability of a guard union must be shown by “definitive evidence.” 

Children’s Hospital of Michigan, 317 NLRB 580 (1995). The record must establish that the union 

admits nonguards in order to support disqualification. Elite Protective & Security Services, 300 

NLRB 832 (1990). The mere fact that the union also represents police officers in the public sector 

does not present a conflict of interest. Guardian Armored Assets, LLC, 337 NLRB 556 (2002). 

In Brink’s, Inc., 281 NLRB 468 (1986), the Board described the nature of the material that 

can be properly subpoenaed as part of an inquiry into affiliation. 

For other guard issues, see section 18-200, infra, and section 18-230 for further discussion of 

indirect affiliation. Note also the discussion of the effect of a union’s constitution in deciding 

guard issues at section 6-310, infra. 

6-300 Administrative Policy Considerations 

6-310 A Union’s Constitution and Bylaws 

339-7525 

339-7562 

Generally, the willingness of an organization or person to represent employees is controlling, 

not the eligibility of employees for membership in the organization or the organization’s 

constitutional jurisdiction. NAPA New York Warehouse, 75 NLRB 1269 (1948); “M” System, 115 
QUALIFICATION OF REPRESENTATIVE 55

NLRB 1316 fn. 2 (1956); and Community Service Publishing, 216 NLRB 997 (1975). See also 

Kodiak Island Hospital, 244 NLRB 929 (1979), in which a nurses’ association accorded full 

membership only to registered nurses, but sought to represent other employees as well. Thus, the 

fact that a union is precluded by its constitution from representing the employees involved does 

not affect its ability to file a representation petition for those employees and, if it wins the 

election, to become their bargaining representative. Hazelton Laboratories, 136 NLRB 1609 

(1962); Big “N,” Department Store No. 307, 200 NLRB 935 fn. 3 (1972). 

When certain provisions of a petitioner’s constitution indicated that its membership was to be 

drawn from the ranks of Government employees, who are not “employees” within the meaning of 

Section 2(3) of the Act, but the “import of these provisions [did] not restrict membership 

exclusively to such government employees” and numerous statutory employees involved in the 

representation proceeding were participating, dues-paying members of the petitioner, the Board 

found no basis for disqualification. Gino Morena Enterprises, 181 NLRB 808 (1970). Compare 

United Trucks & Bus Service Co., 257 NLRB 343 (1982), in which the petition was dismissed 

because the union admitted only “public employees” to membership. See also Children’s

Hospital of Michigan, 299 NLRB 430 (1990), in which the Board found that affiliation with 

public sector unions was not disqualifying. In a later Children’s Hospital decision, supra, the 

Board repeated its policy of considering a union’s constitutional restriction against representing 

nonguards as evidence of certifiability of a guard union. 

In the absence of proof that the union will not accord effective representation to all 

employees in the unit, the Board does not inquire into a labor organization’s constitution or 

charter. Ditto, Inc., 126 NLRB 135 fn. 2 (1960). Thus, when it was alleged that a union was 

fraudulently chartered, the Board held that “contentions such as this, having to do with the 

alleged illegality of the formation of a labor organization, are internal union matters and do not 

necessarily affect the capacity of the organization to act as a bargaining representative.” Reed & 

Rattan Furniture Co., 117 NLRB 495, 496 (1957). See also Gemex Corp., 120 NLRB 46 (1958). 

However, when, despite the facade of a separate identity, the Board was convinced that the 

petitioning union was not an independent, autonomous organization devoted to the representation 

of the employees sought because of the manner in which it was organized and its affairs were 

being conducted, the burden of going forward with the evidence shifted to petitioner. And when 

the petitioner failed to rebut the inference that it was fronting for another organization which 

could not qualify as a representative of the employees involved, the Board disqualified it. Iowa

Packing Co., 125 NLRB 1408 (1960). See also McGraw-Edison Co., 199 NLRB 1017 (1972), in 

which the Board permitted inquiry into the union’s motivation in filing a petition which was 

alleged to be an attempt to change affiliation and escape from its agreement. Case discussed in 

section 7-120, infra. 

6-320 Trusteeship 

339-2550 

The fact that a union is in trusteeship, whether in violation of the Labor-Management 

Reporting and Disclosure Act or not, does not disqualify it from representing employees as this 

does not, without more, affect its status as a labor organization within the meaning of the 

definition of Section 2(5) of the Act. Terminal System, 127 NLRB 979 (1960); E. Anthony & 

Sons, 147 NLRB 204 (1964); Jat Transportation Corp., 128 NLRB 780 (1960); Dorado Beach 

Hotel, 144 NLRB 712, 714 fn. 5 (1963). But see Illinois Grain Corp., 222 NLRB 495 (1976), in 

which conflicting claims resulting from the trusteeship raised a question concerning 

representation. 

A charter from an international is not essential to a local’s continued existence as a labor 

organization if the conditions of Section 2(5) are satisfied. Awning Research Institute, 116 NLRB 

505 (1957). See also section 9-410, infra, for a discussion of schism. 
56 QUALIFICATION OF REPRESENTATIVE 

6-330 Employer Assistance or Domination and Supervisory Involvement 

177-3950-7200 et seq. 

339-7550 

339-7575-9300 

393-6068-9050 

A labor organization found, in a prior unfair labor practice proceeding, to have received 

unlawful employer assistance has no standing to seek a Board-conducted election, and its petition 

is subject to dismissal. Halben Chemical Co., 124 NLRB 1431 (1959). Such an organization may, 

of course, file a new petition based on an adequate showing of interest obtained after its illegal 

status of employee representative has been dissipated. Sears, Roebuck & Co., 112 NLRB 559 

(1955). 

A fortiori, when an organization has been found to be dominated by the employer, it is 

deemed incapable of qualifying as a bona fide representative of employees. Douglas Aircraft Co.,

53 NLRB 486 (1943). It follows that a supervisor cannot represent employees for purposes of 

collective bargaining (Kennecott Copper Corp., 98 NLRB 75 (1951)), nor may an organization 

controlled by supervisors do so (Brunswick Pulp Co., 152 NLRB 973 (1965)), nor independent 

contractors who, by definition, are not employees within the meaning of the Act (Brunswick Pulp, 

supra). In Apex Tankers Co., 257 NLRB 685 (1981), the Board found that a contract was not a 

bar to a petition when supervisors play a crucial role in the administration of the signatory union. 

However, mere membership, limited participation, or the holding of a position of a supervisor 

in a labor organization does not per se destroy its capacity to act as a bona fide representative. 

Allen B. Dumont Laboratories, 88 NLRB 1296 (1950); Associated Dry Goods Corp., 117 NLRB 

1069 (1957). The crucial factors are substantial participation by employee members, as well as 

goals determined, and negotiations conducted by them. International Paper Co., 172 NLRB 933 

(1968). See particularly Power Piping Co., 291 NLRB 494 (1988), in which the Board reviewed 

the history of this doctrine and set forth the applicable standard for determining whether 

supervisory participation is unlawful. 

Health care cases, particularly in nurses’ units, have presented a number of difficult issues of 

supervisory participation in the affairs of the petitioning labor organization. Very often nurses’ 

unions are composed of both employee nurses and nurses whose duties clearly qualify them as 

statutory supervisors. In Sierra Vista Hospital, 241 NLRB 631 (1979), the Board set the test for 

determining whether the membership and participation of these supervisors in the union 

disqualified the union from being certified as the exclusive representative under Section 9 of the 

Act. 

As described in Sidney Farber Cancer Institute, 247 NLRB 1 (1980), disqualification 

depends: 

(1) Upon whether a supervisor or supervisors employed by the employer were in a 

position of authority within the labor organization and, if so, upon the role of that individual 

or individuals in the affairs of the labor organization or; 

(2) In the instance of supervisory nurses employed by third-party employers and holding 

positions of authority, upon some demonstrated connection between the employer of the unit 

employees concerned and the employer or employers of those supervisors which might 

affect the bargainging agent’s ability to single-mindedly represent the unit employees. 

The burden of establishing this conflict is on the party opposing the union’s qualification as a 

labor organization and is a “heavy one.” See Sidney Farber, supra; Western Baptist Hospital, 246 

NLRB 170 (1980), and Highland Hospital, 288 NLRB 750 (1988), in which the burden was not 

met and Exeter Hospital, 248 NLRB 377 (1980), in which the burden of establishing 

disqualification was met. 
QUALIFICATION OF REPRESENTATIVE 57

As contentions alleging employer domination or assistance are, in effect, unfair labor practice 

charges, they may not properly be litigated in representation proceedings (Bi-States Co., 117 

NLRB 86 (1957)), and evidence in support of such allegations is therefore excluded from 

proceedings designed to determine a bargaining representative (Lampcraft Industries, 127 NLRB 

92 (1960); John Liber & Co., 123 NLRB 1174 (1959)). However, this rule does not prevent a 

determination of a petitioner’s alleged supervisory status, and if petitioner is found to be a 

supervisor within the meaning of the Act the petition will, of course, be dismissed. Modern Hard 

Chrome Service Co., 124 NLRB 1235 (1959); Carey Transportation, 119 NLRB 332 (1958). See 

also section 7-310 and Canter’s Fairfax Restaurant, 309 NLRB 883 fn. 2 (1992). 

6-340 Nature of Representation 

The bona fides of labor organization status is not affected by the fact that both office or 

clerical employees and production and maintenance employees are represented by the same 

union. The Board does not interfere with the right of employees to choose whomever they wish to 

represent them. Swift & Co., 124 NLRB 50 (1959). 

6-350 The Union as a Business Rival (Conflict of Interest) 

339-7575 

385-5050 

A labor organization which is also a business rival of an employer is not a proper bargaining 

representative of employees of that employer. Bausch & Lomb Optical Co., 108 NLRB 1555, 

1558 (1954). In that case, the union operated an optical business which was in direct competition 

with the employer whose employees it sought to represent in collective bargaining. The 

disqualification is based on the latent danger that the union may bargain not for the benefit of unit 

employees, but for the protection and enhancement of its business interests which are in direct 

competition with those of the employer at the other side of the bargaining table. Bambury

Fashions, 179 NLRB 447 (1969); Douglas Oil Co., 197 NLRB 308 (1972). See also Visiting

Nurses Assn., 188 NLRB 155 (1971), in which the union through its affiliates was a business rival 

of the employer. But the danger must be “clear and present.” A plan to engage in an activity that 

might be competitive and even disqualifying is not sufficient. The plans must have materialized. 

Alanis Airport Services, 316 NLRB 1233 (1995), and IFS Virgin Island Food Service, 215 NLRB 

174 (1974). In Detroit Newspapers, 330 NLRB 505 fn. 2 (2000), the Board refused to find a 

conflict of interest in the publication of an “interim” newspaper that would shut down once the 

strike was settled. 

The Board declined to apply the Bausch & Lomb principle in which it found that the alleged 

rival business was a cooperative store operated by the union for the use of its members only and 

could therefore not be regarded as being in competition with the employer. Associated Dry Goods 

Corp., 150 NLRB 812 fn. 4 (1965). In Garrison Nursing Home, 293 NLRB 122 (1989), the 

Board found no conflict based on past relationships but did find a conflict in which there was a 

debtor/creditor relationship between the employer and a high official of the petitioner’s union. 

In Russ Toggs, Inc., 187 NLRB 134 (1971), the petitioner alone sought to represent a unit of 

the employer’s traveling commission salesmen. The Board directed an election despite the 

petitioner’s affiliation with an association disqualified on the ground of conflict of interest, 

reasoning that the petitioner had existed as a separate labor organization and had separately 

represented employees for collective-bargaining purposes. The Board cautioned, however, that its 

processes might properly be invoked to examine the certification if it subsequently appeared that 

the petitioner was not acting independently, but as an agent of the association, in its 

representation of the employees. 

Investment of union pension funds in a “competitor” of the employer does not disqualify the 

petitioning union from acting as bargaining representative. David Buttrick Co., 167 NLRB 438 

(1967). Neither do loans by the union’s pension fund of the union’s international affiliate to a 
58 QUALIFICATION OF REPRESENTATIVE 

“competitor” of the employer where the local, rather than the international, dominated in dealings 

with the employer. H. P. Hood & Sons (Hood I), 167 NLRB 437 (1967), and 182 NLRB 194 

(1970) (Hood II). 

In Harlem River Consumers Cooperative, supra, the intervenor labor organization’s business 

agent had a substantial business interest in a company engaged in promoting and selling certain 

brand name products to retail outlets, including the employer. The Board held that, although this 

did not disqualify the union generally from representing employees, it was incompatible with its 

disinterested representation of the employer’s employees. Thus, if the intervenor should win the 

election, it should not be certified so long as its business agent remained in that capacity in the 

employer’s geographical area. Compare Teamsters Local 2000, 321 NLRB 1383 (1996). 

When no record evidence supported the contention that the petitioner’s parent organization 

was controlled by individuals other than drivers or owner-drivers and, therefore, the fleet owners, 

through their membership in the parent organization, did not dominate or control the affairs of 

petitioner, there was no basis for disqualification. Tryon Trucking, 192 NLRB 764 (1971); Aetna

Freight Lines, 194 NLRB 740 (1972). 

In American Arbitration Assn., 225 NLRB 291 (1976), the Board rejected the employer’s 

contention that the role of the employer as a neutral in labor-management relations precluded 

representation of its employees or alternatively representation by other than an unaffiliated 

independent labor organization. 

As a general rule, the Board will not find a conflict of interest where the union represents 

both the employees of the employer and a subcontractor doing business with that employer. In 

CMT, Inc., 333 NLRB 1307 (2001), the Board rejected a contention that the petition should be 

dismissed where the union was seeking to represent the subcontractors employees and had 

previously grieved about the subcontracting. The Board in CMT noted two cases in which the 

Board did find a disability conflict. See Catalytic Industrial Maintenance, 209 NLRB 641 

(1974), and Valley West Welding Co., 265 NLRB 1997 (1982). Compare Massachusetts Society 

for Prevention of Cruelty to Children v. NLRB, 297 F.3d 41 (1st Cir. 2002) (union opposed 

contracting of public employees’ work to private sector).

6-360 The Union as an Employer 

177-1683-8750 

339-7575-2550 

A union is not qualified to act as bargaining representative of employees of another union 

where both it and the union acting as employer are affiliates of the same international union. 

Teamsters Local 249, 139 NLRB 605, 606 (1962). In that case, the union acting as employer and 

the petitioner were both subject to the same international’s constitution and bylaws which 

provided for control and participation by the international and the joint council in various 

activities of the locals, and the international and joint council contributed to the petitioner’s 

organizational expenses. Thus, if the petitioning union were permitted to represent the employees 

of its coaffiliate, it would, in effect, be permitted to bargain with itself. As the Board stated in an 

earlier case, “a union must approach the bargaining table ‘with the single-minded purpose of 

protecting and advancing the interests of the employees who have selected it as their bargaining 

agent and there must be no ulterior purpose.”’ Oregon Teamsters’ Security Plan Office, 119 

NLRB 207, 211 (1958). See also Bausch & Lomb Optical Co., 108 NLRB 1555, 1559 (1954); 

and Centerville Clinics, 181 NLRB 135 (1970). 

In the same vein, the Board has disqualified a “semi-beneficial” local which was considered 

under its parent’s constitution and bylaws as a subordinate body and which gave the parent the 

right to take over and conduct the affairs of the local if the best interests of the parent so required. 

Welfare & Pension Funds, 178 NLRB 14 (1969). 
QUALIFICATION OF REPRESENTATIVE 59

6-370 Joint Petitioners 

316-6767 

339-2582 

Two or more labor organizations are permitted to act jointly as bargaining representative for a 

single group of employees. Vanadium Corp. of America, 117 NLRB 1390 (1957); S. D. Warren 

Co., 150 NLRB 288 (1965). 

If the joint petitioners are successful in the election, they will be certified jointly and the 

employer may insist on joint bargaining. Florida Tile Industries, 130 NLRB 897 (1961). 

However, where each of the two unions which filed a joint petition intends to bargain only for the 

employees within its own jurisdiction, the Board has held such an intention is inconsistent with 

the concept of joint representation. Automatic Heating Co., 194 NLRB 1065 (1972); Stevens

Trucking, 226 NLRB 638 (1976). 

6-380 Effect of Union Violence 

The Board has a longstanding policy of denying a bargaining order where the union has 

engaged in “unprovoked and irresponsible physical assaults” in support of its bargaining efforts. 

Laura Modes Co., 144 NLRB 1592, 1596 (1963). This is not “routine relief.” Overnite 

Transportation Co. (Dayton, Ohio Terminal), 334 NLRB 1074 (2001). Indeed, as noted in 

Overnite, the Board will not deny a bargaining order in every incident of union picket line 

misconduct. Overnite Transportation Co., 333 NLRB 472 (2001). 

In Laura Modes, supra, the Board did not preclude union representation of the unit employees 

involved. The union there had attained its bargaining status through unfair labor proceedings and 

the Board withheld a bargaining order until the union won a Board election. The Board decision 

in Overnite, 333 NLRB 472 (2000), suggests a willingness to refuse a bargaining order based on a 

certification and even to revoke the certification in the event a level of Laura Modes violence is 

established. 

See also section 3-930.