NATIONAL LABOR RELATIONS BOARD 

AN OUTLINE OF LAW AND PROCEDURE IN 

REPRESENTATION CASES 
N.L.R.B. 

AN OUTLINE 

OF LAW AND 

PROCEDURE IN 

REPRESENTATION 

CASES
NATIONAL LABOR RELATIONS BOARD 

AN OUTLINE OF LAW AND PROCEDURE IN 

REPRESENTATION CASES 

OFFICE OF THE GENERAL COUNSEL 

August 2008 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Washington, D.C. 20402-9328 
Preface 

 We are very pleased to provide Agency staff and the labor-management 

community with this updated edition of “An Outline of Law and Procedure in 

Representation Cases.” 

 This book was originally issued in the early 1960s and was the work of 

then Assistant General Counsel Elihu Platt. It was not revised until 1992 when 

John Higgins volunteered to update the text. Since then, he has revised and 

updated the text in 1995, 1997, 1999, 2002, and again in 2005. In this new 

edition, Deputy General Counsel Higgins has brought the text through December 

2007, has added a number of new topics, and has updated the subject matter 

index. Any suggestions or corrections for future editions should be forwarded to 

John Higgins at Board headquarters. 

 This book is a very important research tool. Both during my years as a 

private practitioner and while serving as a Board Member and as General 

Counsel, I referred to this book in researching representation case issues. I 

know from comments from practitioners that it continues to be a much used and 

valuable vehicle for researching “R” cases. 

 My thanks to John Higgins for his willingness to continue his efforts at 

keeping the Outline up to date. I also want to thank Lafe Solomon, Director of 

the Office of Representation Appeals, for reviewing the manuscript, as well as 

the dedicated employees in the Agency’s Editorial Section for their tireless work 

on this project. 

 Ronald Meisburg 

 General Counsel 
TABLE OF CONTENTS 

1. Jurisdiction .................. ............................................................................................................................. 1

1-100 Jurisdiction Generally ..................................................................................................................... 1

1-200 The Jurisdictional Standards ........................................................................................................... 2

1-201 Nonretail.......................................................................................................................................... 2

1-202 Retail ............................................................................................................................................... 3

1-203 Instrumentalities, Links, and Channels of Interstate Commerce..................................................... 4

1-204 National Defense/Federal Funds ..................................................................................................... 5

1-205 Plenary Jurisdiction......................................................................................................................... 5

1-206 Territories........................................................................................................................................ 5

1-207 Labor Organizations........................................................................................................................ 6

1-208 Multiemployer Groups and Joint Employers .................................................................................. 6

1-209 Enterprises Falling Under Several Standards .................................................................................. 7

1-210 Postal Service Employees ............................................................................................................... 7

1-211 Jurisdiction in an 8(a)(4) Situation.................................................................................................. 7

1-212 Secondary Boycotts......................................................................................................................... 8

1-213 Indian Tribes ................................................................................................................................... 8

1-300 Miscellaneous Categories in Which Jurisdiction was Asserted ...................................................... 9

1-301 Architects ........................................................................................................................................ 9

1-302 Amusement Industry ....................................................................................................................... 9

1-303 Apartment Houses........................................................................................................................... 9

1-304 Art Museums, Cultural Centers, and Libraries................................................................................ 9

1-305 Bandleaders..................................................................................................................................... 9

1-306 Cemeteries..................................................................................................................................... 10

1-307 Colleges, Universities, and Other Private Schools........................................................................ 10

1-308 Communication Systems............................................................................................................... 11

1-309 Condominiums and Cooperatives ................................................................................................. 11

1-310 Credit Unions ................................................................................................................................ 11

1-311 Day Care Centers .......................................................................................................................... 11

1-312 Financial-Information Organizations and Accounting Firms........................................................ 11

1-313 Gaming.......................................................................................................................................... 12

1-314 Government Contractors ............................................................................................................... 12

1-315 Health Care Institutions................................................................................................................. 12

1-316 Hotels and Motels ......................................................................................................................... 13

1-317 Law Firms and Legal Service Corporations.................................................................................. 13

1-318 Newspapers ................................................................................................................................... 14

1-319 Nonprofit Charitable Institutions................................................................................................... 14

1-320 Office Buildings............................................................................................................................ 14

1-321 Private Clubs ................................................................................................................................. 15

1-322 Professional Sports........................................................................................................................ 15

1-323 Public Utilities............................................................................................................................... 15

1-324 Restaurants .................................................................................................................................... 15

1-325 Shopping Centers .......................................................................................................................... 15

1-326 Social Services Organizations....................................................................................................... 16

1-327 Stock Brokerage Firms.................................................................................................................. 16

1-328 Symphony Orchestras ................................................................................................................... 16

1-329 Taxicabs ........................................................................................................................................ 16

1-330 Transit Systems ............................................................................................................................. 16

1-400 Jurisdiction Declined for Statutory Reasons ................................................................................. 17

1-401 State or Political Subdivision ........................................................................................................ 17

1-402 Employers Subject to the Railway Labor Act ............................................................................... 18

1-403 Religious Schools.......................................................................................................................... 20

1-500 Jurisdiction Declined for Policy Considerations ........................................................................... 20

i
ii TABLE OF CONTENTS

1-501 Foreign Flag Ships, Foreign Nationals, and Related Situations .................................................... 20

1-502 Horseracing and Dogracing........................................................................................................... 21

1-503 Religious Organizations ................................................................................................................ 22

1-504 National Security........................................................................................................................... 22

1-600 Rules of Application...................................................................................................................... 22

1-601 Advisory Opinions ........................................................................................................................ 22

1-602 Declaratory Orders ........................................................................................................................ 23

1-603 Tropicana Rule.............................................................................................................................. 23

1-604 Totality of Operations ................................................................................................................... 24

1-605 Integrated Operations .................................................................................................................... 24

1-606 Computation of Jurisdictional Amount ......................................................................................... 24

1-607 Relitigation of Jurisdiction ............................................................................................................ 25

2. Regional Directors’ Decisionmaking Authority in Representation Cases.......................................... 27

2-100 Statutory and Administrative Delegation ...................................................................................... 27

2-200 Scope of Authority ........................................................................................................................ 28

2-300 Other Specific Powers Under the Delegation................................................................................ 29

2-400 Finality of Decisions ..................................................................................................................... 29

2-500 Transfer and Review ..................................................................................................................... 30

3. Initial Representation Case Procedures ................................................................................................ 33

3-100 Filing of Petition and Notification................................................................................................. 33

3-200 Submission of Showing of Interest ............................................................................................... 33

3-300 Information Requested of Parties .................................................................................................. 34

3-500 Dismissal or Withdrawal of Petition ............................................................................................. 34

3-600 Amendments to Petition................................................................................................................ 34

3-700 Consent-Election Agreements....................................................................................................... 34

3-800 Notice of Hearing and Hearings.................................................................................................... 35

3-810 Nature and Objective..................................................................................................................... 35

3-820 Hearing Officer’s Responsibilities ................................................................................................ 35

3-830 Intervention ................................................................................................................................... 35

3-840 Conduct of Hearing ....................................................................................................................... 36

3-850 Hearing Officer’s Report............................................................................................................... 36

3-860 Briefs............................................................................................................................................. 36

3-870 Posthearing Matters Prior to Decision........................................................................................... 37

3-880 Regional Director’s or Board Decision and Request for Review.................................................. 37

3-900 Review of Representation Decisions............................................................................................. 38

3-910 Judicial Review—Generally.......................................................................................................... 38

3-911 Review by Employers ................................................................................................................... 38

3-912 Review by Unions ......................................................................................................................... 39

3-920 Litigation of Unfair Labor Practice Issues in Representation Cases ............................................. 39

4. Types of Petitions ........ ........................................................................................................................... 41

4-100 Representation Petition Seeking Certification (RC)...................................................................... 41

4-200 Decertification Petition (RD) ........................................................................................................ 41

4-300 Employer Petition (RM)................................................................................................................ 41

4-400 Union-Security Deauthorization Petition (UD)............................................................................. 42

4-500 Petition for Clarification (UC) ...................................................................................................... 42

4-600 Petition for Amendment of Certification (AC).............................................................................. 42

5. Showing of Interest ..... ........................................................................................................................... 43

5-100 Timeliness of Submission of a Showing of Interest...................................................................... 43

5-200 Nature of Evidence of Interest....................................................................................................... 44

5-210 Construction Industry.................................................................................................................... 44

5-300 Designee........................................................................................................................................ 45

5-400 Validity of Designations................................................................................................................ 46
TABLE OF CONTENTS iii

5-500 Currency and Dating of Designations ........................................................................................... 47

5-600 Quantitative Sufficiency................................................................................................................ 47

5-610 No Showing of Interest in 8(b)(7)(C) Cases.................................................................................. 48

5-620 A Specific 30-Percent Requirement in UD Cases......................................................................... 48

5-630 Employer Petitions........................................................................................................................ 49

5-640 Showing of Interest for Intervention ............................................................................................. 49

5-700 Relation to Bargaining Unit .......................................................................................................... 50

5-800 Date for Computation.................................................................................................................... 50

5-900 Investigations of Showing of Interest............................................................................................ 51

6. Qualification of Representative.............................................................................................................. 53

6-100 The Statutory Definition of Labor Organization ........................................................................... 53

6-110 Application of the Statutory Definition......................................................................................... 53

6-120 Impact of Labor-Management Reporting and Disclosure Act of 1959 ......................................... 54

6-130 Public Policy Considerations ........................................................................................................ 55

6-200 Statutory Limitation as to “Guards”.............................................................................................. 55

6-300 Administrative Policy Considerations........................................................................................... 57

6-310 A Union’s Constitution and Bylaws.............................................................................................. 57

6-320 Trusteeship .................................................................................................................................... 57

6-330 Employer Assistance or Domination and Supervisory Involvement............................................. 58

6-340 Nature of Representation............................................................................................................... 59

6-350 The Union as a Business Rival (Conflict of Interest).................................................................... 59

6-360 The Union as an Employer............................................................................................................ 60

6-370 Joint Petitioners............................................................................................................................. 61

6-380 Effect of Union Violence .............................................................................................................. 61

7. Existence of a Representation Question ................................................................................................ 63

7-100 General Rules................................................................................................................................ 63

7-110 Prerequisite for Finding a Question Concerning Representation .................................................. 63

7-120 The General Box Rule................................................................................................................... 63

7-130 The Effect of Private Dispute Resolution Mechanisms................................................................. 64

7-131 Grievances and Arbitration ........................................................................................................... 64

7-133 No-Raid Agreements..................................................................................................................... 65

7-140 Ability to Determine Unit as Affecting Representation Question................................................. 66

7-150 Statutory Exemption Under Section 8(b)(7)(C) of the Act—Expedited Elections........................ 66

7-200 Rules Affecting Employer Petitions.............................................................................................. 67

7-210 Union Claims or Conduct.............................................................................................................. 67

7-220 RM Petitions/Incumbent Unions................................................................................................... 68

7-230 Accretions ..................................................................................................................................... 69

7-240 Changes in Affiliation ................................................................................................................... 69

7-250 Employer Waiver .......................................................................................................................... 70

7-300 Rules Affecting Decertification Petitions...................................................................................... 70

7-310 Who May File a Decertification Petition....................................................................................... 70

7-320 The Unit in Which the Decertification Election Is Held ............................................................... 71

7-330 Categories Which may not be Included in the Unit in a Decertification Election......................... 72

7-340 Certification not a Prerequisite...................................................................................................... 72

7-400 Effect of Delay and Turnover........................................................................................................ 72

8. Disclaimer of Interest and Withdrawal of Petition .............................................................................. 73

8-100 Disclaimer ..................................................................................................................................... 73

8-200 Withdrawal.................................................................................................................................... 75

8-300 Effect of Disclaimer or Withdrawal .............................................................................................. 75

9. Contract Bar................ ........................................................................................................................... 77

9-100 Adequacy of Contract.................................................................................................................... 77

9-110 Written Contract............................................................................................................................ 77
iv TABLE OF CONTENTS

9-120 Signatures of the Parties................................................................................................................ 78

9-130 Substantial Terms and Conditions................................................................................................. 79

9-140 Coverage ....................................................................................................................................... 79

9-150 Appropriate Unit ........................................................................................................................... 80

9-160 “Members Only” ........................................................................................................................... 81

9-170 Master Agreement......................................................................................................................... 81

9-180 Prior Ratification........................................................................................................................... 82

9-200 Changed Circumstances Within the Contract Term ...................................................................... 82

9-210 Change in the Size of the Unit....................................................................................................... 82

9-211 Prehire Contracts........................................................................................................................... 82

9-212 The Yardsticks .............................................................................................................................. 83

9-220 Change in the Nature of the Unit................................................................................................... 83

9-221 Merger........................................................................................................................................... 83

9-222 Shutdown ...................................................................................................................................... 84

9-223 Relocation ..................................................................................................................................... 84

9-224 Assumption of Contract ................................................................................................................ 85

9-300 Duration of Contract...................................................................................................................... 85

9-310 Fixed-Term Contracts ................................................................................................................... 86

9-320 Contracts With no Fixed Term...................................................................................................... 87

9-321 Indefinite Duration ........................................................................................................................ 87

9-322 Terminable at Will ........................................................................................................................ 87

9-323 Temporary Agreements................................................................................................................. 87

9-324 Extensions ..................................................................................................................................... 87

9-400 Representative Status of Contracting Union ................................................................................. 88

9-410 Schism........................................................................................................................................... 88

9-411 Basic Intraunion Split.................................................................................................................... 88

9-412 Opportunity at a Meeting .............................................................................................................. 89

9-413 Reasonable Time........................................................................................................................... 89

9-414 Other Schism Issues ...................................................................................................................... 89

9-420 Defunctness and Disclaimer.......................................................................................................... 91

9-500 Effect of Contract on Rival Claims or Petitions............................................................................ 92

9-510 Time of Filing of Petition.............................................................................................................. 92

9-520 Amendment of Petition ................................................................................................................. 93

9-530 “Substantial Claim” Rule .............................................................................................................. 93

9-540 The “Insulated Period”.................................................................................................................. 94

9-550 The Period for Filing..................................................................................................................... 95

9-560 The Impact of Bargaining History on Rival Petitions ................................................................... 96

9-570 Automatic Renewal Provisions ..................................................................................................... 96

9-580 The “Premature Extension” Doctrine............................................................................................ 97

9-600 Private Agreements ....................................................................................................................... 99

9-610 Agreements not to Represent Certain Employees ......................................................................... 99

9-620 Neutrality Agreements ................................................................................................................ 100

9-700 Unlawful Union-Security and Checkoff Provisions.................................................................... 100

9-710 Union-Security Provisions .......................................................................................................... 101

9-720 Checkoff Provisions .................................................................................................................... 103

9-800 Racial Discrimination in Contracts ............................................................................................. 103

9-900 Contracts Proscribed by Section 8(e) .......................................................................................... 104

9-1000 Special Statutory Provisions as to Prehire Agreements............................................................. 105

10. Prior Determinations and Other Bars to an Election ...................................................................... 107

10-100 Effect of Prior Election ............................................................................................................. 107

10-110 Board Elections ......................................................................................................................... 107

10-120 Comity to State Elections.......................................................................................................... 108

10-200 The 1-Year Certification Rule................................................................................................... 109

10-210 Application of the 1-Year Certification Rule .............................................................................. 109

10-220 Exceptions to the Rule............................................................................................................... 110
TABLE OF CONTENTS v

10-221 The Mar-Jac Exception............................................................................................................. 110

10-222 The Ludlow Exception .............................................................................................................. 111

10-300 Settlement Agreement as a Bar ................................................................................................. 111

10-400 Court Decree as a Bar................................................................................................................ 112

10-500 Lawful Recognition as a Bar/Reasonable Period of Time......................................................... 112

10-600 Expanding Unit ......................................................................................................................... 113

10-700 Contracting Units and Cessation of Operations ........................................................................ 115

10-800 Blocking Charges (CHM sec. 11730) ....................................................................................... 115

10-900 Special Situations...................................................................................................................... 117

10-1000 Reasonable Period of Time ..................................................................................................... 118

11. Amendment, Clarification, and Deauthorization Petitions, Final Offer Elections and 

 Wage Hour Certifications..................................................................................................... 119

11-100 Amendment of Certification (AC) ............................................................................................ 119

11-200 Clarification of Certification (UC) ............................................................................................ 120

11-210 Timing of UC Petition............................................................................................................... 122

11-220 Accretion v. Question Concerning Representation ................................................................... 123

11-300 Deauthorization Petition (UD) .................................................................................................. 125

11-400 Final Offer Elections (CHM sec. 11520) .................................................................................. 126

11-500 Certificate of Representative Under FLSA (CHM sec. 11540)................................................. 126

11-600 Revocation of Certification ....................................................................................................... 126

12. Appropriate Unit: General Principles............................................................................................... 127

12-100 Introduction............................................................................................................................... 127

12-110 Professional Employees ............................................................................................................ 128

12-130 Plant Guards.............................................................................................................................. 128

12-140 Extent of Organization .............................................................................................................. 129

12-200 General Principles ..................................................................................................................... 129

12-210 Community of Interest .............................................................................................................. 129

12-220 History of Collective Bargaining .............................................................................................. 131

12-221 Consent-Election Stipulation..................................................................................................... 131

12-222 Bargaining History Contrary to Board Policy ........................................................................... 132

12-223 Ineffective Bargaining History.................................................................................................. 132

12-224 Oral Contract............................................................................................................................. 132

12-225 Bargaining History of Other Employees ................................................................................... 132

12-226 Significant Changes................................................................................................................... 133

12-227 Checkered Bargaining History .................................................................................................. 133

12-228 Deviation From Prior Unit Determination ................................................................................ 133

12-229 Other Exceptions....................................................................................................................... 133

12-230 Specific Unit Rules.................................................................................................................... 134

12-231 Size of Unit ............................................................................................................................... 134

12-232 Mode and/or Rate of Payment................................................................................................... 134

12-233 Age............................................................................................................................................ 135

12-234 Sex............................................................................................................................................. 135

12-235 Race........................................................................................................................................... 135

12-236 Union Membership.................................................................................................................... 136

12-237 Territorial Jurisdiction............................................................................................................... 136

12-238 Work Jurisdiction ...................................................................................................................... 136

12-239 Employees’ Desires................................................................................................................... 137

12-300 Extent of Organization .............................................................................................................. 137

12-400 Residual Units ........................................................................................................................... 138

12-410 Residual Units in the Health Care Industry............................................................................... 139

12-500 Accretions to Existing Units...................................................................................................... 139

12-510 Interchange................................................................................................................................ 140

12-520 Supervision and Conditions of Employment............................................................................. 141

12-530 Job Classification ...................................................................................................................... 141
vi TABLE OF CONTENTS

12-540 Integration of Units ................................................................................................................... 141

12-550 Geographic Proximity ............................................................................................................... 142

12-560 Role of New Employees............................................................................................................ 142

12-570 Community of Interest .............................................................................................................. 142

12-580 Bargaining History .................................................................................................................... 142

12-590 Skills and Education.................................................................................................................. 143

12-600 Relocations, Spinoffs, and Accretions....................................................................................... 143

13. Multilocation Employers .................................................................................................................... 145

13-100 Central Control of Labor Relations ........................................................................................... 147

13-200 Local Autonomy........................................................................................................................ 147

13-300 Interchange of Employees......................................................................................................... 148

13-400 Similarity of Skills .................................................................................................................... 148

13-500 Conditions of Employment ....................................................................................................... 149

13-600 Supervision................................................................................................................................ 149

13-700 Geographical Separation ........................................................................................................... 149

13-800 Plant Integration and Product Integration.................................................................................. 150

13-900 Bargaining History .................................................................................................................... 150

13-1000 Extent of Organization ............................................................................................................ 151

13-1100 Health Care.............................................................................................................................. 152

14. Multiemployer, Single Employer, and Joint Employer Units ......................................................... 153

14-100 Multiemployer Units ................................................................................................................. 153

14-200 The General Rule ...................................................................................................................... 154

14-300 Exceptions to the General Rule................................................................................................. 156

14-310 Agreement of the Parties ........................................................................................................... 156

14-320 Tainted Bargaining History....................................................................................................... 157

14-330 Inconclusive Bargaining History............................................................................................... 157

14-340 Employees in Different Category.............................................................................................. 157

14-350 The 8(f) Relationships-Construction Industry........................................................................... 157

14-360 Nonbeneficial Bargaining History............................................................................................. 157

14-370 Brief Duration of Multiemployer Bargaining............................................................................ 157

14-400 Employer Withdrawal From Multiemployer Bargaining .......................................................... 157

14-410 Adequate Timely Written Notice .............................................................................................. 158

14-420 Intent ......................................................................................................................................... 158

14-430 Where Actual Bargaining had Begun........................................................................................ 158

14-440 After Filing of Petition by Rival Union..................................................................................... 159

14-450 Consent of the Union................................................................................................................. 159

14-460 Appropriate Unit After Withdrawal .......................................................................................... 160

14-500 Single Employer........................................................................................................................ 160

14-600 Joint Employer .......................................................................................................................... 161

14-700 Alter Ego ................................................................................................................................... 162

15. Specific Units and Industries.............................................................................................................. 165

15-100 Architectural Employees ........................................................................................................... 165

15-120 Banking ..................................................................................................................................... 165

15-130 Construction Industry................................................................................................................ 166

15-140 Drivers....................................................................................................................................... 168

15-141 The Koester Rule....................................................................................................................... 168

15-142 Scope of Driver Units................................................................................................................ 170

15-143 Local Drivers and Over-the-Road Drivers ................................................................................ 170

15-144 Severance of Drivers ................................................................................................................. 171

15-145 Driver-Salespersons .................................................................................................................. 171

15-146 Health Care Institution Drivers ................................................................................................. 172

15-150 Funeral Homes .......................................................................................................................... 172

15-160 Gaming Units ............................................................................................................................ 172
TABLE OF CONTENTS vii

15-170 Health Care Institutions............................................................................................................. 173

15-171 Acute Care Hospitals................................................................................................................. 173

15-172 Other Hospitals.......................................................................................................................... 174

15-173 Nursing Homes.......................................................................................................................... 175

15-174 Application of the Health Care Rule ......................................................................................... 175

15-175 Registered Nurse Units.............................................................................................................. 176

15-180 Hotels and Motels ..................................................................................................................... 176

15-190 Insurance Industry..................................................................................................................... 177

15-200 Law Firms ................................................................................................................................. 178

15-210 Licensed Departments............................................................................................................... 179

15-211 In General.................................................................................................................................. 179

15-212 Unit Composition–Licensed Departments ................................................................................ 180

15-220 Maritime Industry...................................................................................................................... 180

15-230 Newspaper Units ....................................................................................................................... 180

15-231 Printing Industry........................................................................................................................ 181

15-240 Public Utilities........................................................................................................................... 181

15-250 Retail Store Operations ............................................................................................................. 183

15-251 Scope......................................................................................................................................... 183

15-252 Selling and Nonselling Employees............................................................................................ 184

15-253 Bargaining History in Retail Industry ....................................................................................... 184

15-254 Retail Categories ....................................................................................................................... 185

15-260 Television and Radio Industry .................................................................................................. 186

15-270 Universities and Colleges.......................................................................................................... 187

15-271 Faculty....................................................................................................................................... 188

15-272 Other Categories........................................................................................................................ 190

15-280 Warehouse Units ....................................................................................................................... 191

15-290 Research and Development Industry......................................................................................... 193

16. Craft and Traditional Departmental Units....................................................................................... 195

16-100 Severance .................................................................................................................................. 195

16-110 The Mallinckrodt Criteria.......................................................................................................... 196

16-111 True Craft or Functionally Distinct Department ....................................................................... 196

16-112 History of Collective Bargaining of Employees Sought to be Represented.............................. 196

16-113 Separate Identity........................................................................................................................ 196

16-114 Degree of Integration of the Employer’s Production Processes................................................ 196

16-115 Qualifications of the Union Seeking Severance........................................................................ 196

16-120 Application of Severance Principles ......................................................................................... 197

16-130 Severance of Maintenance Departments ................................................................................... 200

16-140 Construction Industry................................................................................................................ 200

16-200 Initial Establishment of Craft or Departmental Unit ................................................................. 200

16-300 Skilled Maintenance-Health Care ............................................................................................. 202

17. Statutory Exclusions . ......................................................................................................................... 205

17-100 Agricultural Employees............................................................................................................. 205

17-200 Domestics.................................................................................................................................. 207

17-300 Individuals Employed by Their Parent or Spouse..................................................................... 207

17-400 Independent Contractors ........................................................................................................... 207

17-410 Trucking Industry...................................................................................................................... 209

17-420 Newspaper Industry................................................................................................................... 209

17-430 Taxi Industry ............................................................................................................................. 210

17-440 Other Industries......................................................................................................................... 211

17-500 Supervisors................................................................................................................................ 212

17-501 Supervisory “Authority” as Defined in Section 2(11)............................................................... 213

17-502 Assignment/Responsible Direction/Independent Judgment...................................................... 215

17-503 Power Effectively to Recommend............................................................................................. 217

17-504 Limited, Occasional, or Sporadic Exercise of Supervisory Power; Part-Time Supervisors..... 218
viii TABLE OF CONTENTS

17-505 Substituting for a Supervisor..................................................................................................... 219

17-506 Promotions to Supervisory Positions and Management Trainees ............................................. 219

17-507 Secondary Indicia...................................................................................................................... 220

17-508 Ostensible or Apparent Authority ............................................................................................. 221

17-509 Supervision of Nonunit Employees........................................................................................... 221

17-510 Supervisory Issues Affecting Educational Institutions.............................................................. 222

17-511 Health Care Supervisory Issues................................................................................................. 223

17-600 Railway Workers....................................................................................................................... 224

17-700 Employees of “Nonemployers”................................................................................................. 224

18. Statutory Limitations ......................................................................................................................... 225

18-100 Professional Employees ............................................................................................................ 225

18-110 The Statutory Mandate .............................................................................................................. 225

18-120 Professionals Defined................................................................................................................ 226

18-130 Previously Established Units..................................................................................................... 227

18-200 Plant Guards.............................................................................................................................. 228

18-210 The Statutory Mandate .............................................................................................................. 228

18-220 Guards Defined ......................................................................................................................... 228

18-230 Guards Unions........................................................................................................................... 230

18-240 Scope of Unit............................................................................................................................. 231

19. Categories Governed by Board Policy............................................................................................... 233

19-100 Confidential Employees ............................................................................................................ 233

19-110 Status of Confidentials .............................................................................................................. 235

19-200 Managerial Employees.............................................................................................................. 235

19-210 Stock Ownershp ........................................................................................................................ 237

19-300 Relatives of Management.......................................................................................................... 237

19-400 Office Clerical and Plant Clerical Employees........................................................................... 238

19-410 Definitions................................................................................................................................. 238

19-420 Clerical Units Generally............................................................................................................ 239

19-430 Clericals—Warehouse Units ..................................................................................................... 240

19-440 Self-Determination Elections—Clericals .................................................................................. 240

19-450 Multiplant Clerical Units........................................................................................................... 240

19-460 Business Office Clerical—Health Care..................................................................................... 240

19-500 Technical Employees ................................................................................................................ 241

19-510 Technical Employees—Health Care ......................................................................................... 242

19-600 Quality Control Employees....................................................................................................... 243

20. Effect of Status or Tenure on Unit Placement and Eligibility to Vote............................................ 245

20-100 Part-Time Employees................................................................................................................ 245

20-110 Generally................................................................................................................................... 245

20-120 “On-Call” Employees................................................................................................................ 247

20-130 Part-Time Faculty Members...................................................................................................... 248

20-140 Irregular Part-Time Employees ................................................................................................. 248

20-200 Temporary Employees .............................................................................................................. 248

20-300 Seasonal Employees.................................................................................................................. 250

20-310 Same Labor Force ..................................................................................................................... 250

20-320 Former Employees .................................................................................................................... 250

20-330 Similarity of Duties, etc. ........................................................................................................... 250

20-340 Transition .................................................................................................................................. 250

20-350 Timing of Seasonal Elections.................................................................................................... 251

20-400 Student Workers........................................................................................................................ 252

20-500 Dual-Function Employees......................................................................................................... 253

20-600 Probationary Employees, Trainees, and Clients (Rehabilitation).............................................. 254
TABLE OF CONTENTS ix

20-610 Probationary Employees ........................................................................................................... 254

20-620 Trainees..................................................................................................................................... 254

20-630 Clients (Rehabilitation) ............................................................................................................. 255

21. Self-Determination Elections.............................................................................................................. 257

21-100 Several Units Equally Appropriate............................................................................................ 257

21-200 Craft and Traditional Departmental Severance ......................................................................... 258

21-300 Self-Determination Election for Craft or Traditional Department Employees Where no 

 Prior Plantwide Bargaining History Exists............................................................................... 258

21-400 Professional Employees ............................................................................................................ 259

21-500 Inclusion of Unrepresented Groups........................................................................................... 260

21-600 Pooling of Votes........................................................................................................................ 262

22. Representation Case Procedures Affecting the Election.................................................................. 263

22-101 The Election Date...................................................................................................................... 263

22-102 The Ballot.................................................................................................................................. 263

22-103 The Question and Choices on the Ballot ................................................................................... 263

22-104 Withdrawal From the Ballot...................................................................................................... 263

22-105 The Polling Place ...................................................................................................................... 264

22-106 The Notice of Election .............................................................................................................. 264

22-107 Voting Eligibility ...................................................................................................................... 264

22-108 Observers................................................................................................................................... 264

22-109 Closing of the Polls ................................................................................................................... 264

22-110 Mail Ballots............................................................................................................................... 265

22-111 Challenges................................................................................................................................. 265

22-112 The Count.................................................................................................................................. 266

22-113 The Tally of Ballots................................................................................................................... 266

22-114 Runoff Elections........................................................................................................................ 266

22-115 Resolution of Challenges .......................................................................................................... 266

22-116 Objections to Election–Filing Requirements............................................................................. 267

22-117 Investigation of Objections ....................................................................................................... 267

22-118 Hearing on Objections............................................................................................................... 268

22-119 The Decision ............................................................................................................................. 269

22-120 Rerun Elections ......................................................................................................................... 269

22-121 The Certification ....................................................................................................................... 270

22-122 Expedited Elections Under Section 8(b)(7)(C) ......................................................................... 270

23. Voting Eligibility ....... ......................................................................................................................... 273

23-100 Eligibility in General................................................................................................................. 273

23-110 The General Rule ...................................................................................................................... 273

23-111 Newly Hired or Transferred Employees.................................................................................... 274

23-112 Voluntary Quits......................................................................................................................... 274

23-113 Discharged Employees.............................................................................................................. 275

23-114 Employees on Sick Leave ......................................................................................................... 275

23-115 Laid-Off Employees.................................................................................................................. 276

23-116 Retirees/Social Security Annuitants.......................................................................................... 276

23-120 Economic Strikers, Locked Out Employees, and Replacements............................................... 276

23-125 Prisoners and Work Release Inmates ........................................................................................ 279

23-200 Eligibility Dates ........................................................................................................................ 279

23-210 Initial Elections ......................................................................................................................... 279

23-220 Runoff Elections........................................................................................................................ 279

23-230 Rerun Elections ......................................................................................................................... 280

23-240 Seasonal Operations .................................................................................................................. 280

23-300 Alleged Discriminatees ............................................................................................................. 280

23-400 Special Formulas for Specific Industries................................................................................... 280

23-410 Longshore.................................................................................................................................. 281
x TABLE OF CONTENTS

23-420 Construction .............................................................................................................................. 281

23-430 Oil Drilling................................................................................................................................ 281

23-440 Taxicabs .................................................................................................................................... 282

23-450 On-Call Employees ................................................................................................................... 282

23-460 Entertainment Industry.............................................................................................................. 282

23-470 On-Call Teachers ...................................................................................................................... 282

23-500 Eligibility Lists and Stipulations ............................................................................................... 283

23-510 Voting List (Excelsior).............................................................................................................. 283

23-520 Stipulated Eligibility Lists (Norris Thermador)........................................................................ 283

23-530 Construing Stipulations of the Parties in Representation Cases................................................ 284

24. Interference With Elections................................................................................................................ 287

24-100 Objections Procedures............................................................................................................... 287

24-110 Objections Period ...................................................................................................................... 287

24-120 Time for Filing Objections........................................................................................................ 288

24-130 Duty to Provide Evidence of Objections................................................................................... 288

24-l40 Scope of Investigation of Objections ......................................................................................... 289

24-150 Estoppel in Objection Cases...................................................................................................... 289

24-200 Legal Background of the “Free Speech” Issue.......................................................................... 290

24-210 The Early Cases......................................................................................................................... 290

24-220 Intervening Period and Gissel (Sinclair) ................................................................................... 291

24-230 The Later Cases......................................................................................................................... 293

24-300 Preelection Campaign Interference ........................................................................................... 295

24-310 Interference Which may also Violate the Unfair Labor Practice Provisions............................. 296

24-311 De Minimis or Isolated Conduct ............................................................................................... 297

24-312 Litigation of Unfair Labor Practice Issues in Representation Cases ......................................... 297

24-313 Narrowness of the Election Results........................................................................................... 298

24-314 Dissemination............................................................................................................................ 298

24-320 Types of Interference Under the General Shoe Doctrine .......................................................... 298

24-321 Assembly of Employees at a Focal Point of Authority and Home Visitations.......................... 301

24-322 Misrepresentation...................................................................................................................... 302

24-323 Racial Appeals .......................................................................................................................... 303

24-324 The Excelsior Rule.................................................................................................................... 306

24-325 The Peerless Rule...................................................................................................................... 310

24-326 Third-Party Conduct.................................................................................................................. 312

24-327 Offers to Waive Union Initiation Fees ...................................................................................... 317

24-328 Prounion Supervisory Conduct ................................................................................................. 318

24-329 Videotaping............................................................................................................................... 319

24-400 Interference with the Conduct of Elections ............................................................................... 319

24-410 Board Agent Conduct................................................................................................................ 320

24-420 Mechanics of the Election ......................................................................................................... 324

24-421 The Polling Place ...................................................................................................................... 324

24-422 Opening and Closing of the Polls.............................................................................................. 325

24-423 Notice of Election...................................................................................................................... 326

24-424 Observers................................................................................................................................... 327

24-425 Opportunity to Vote and Number of Voters.............................................................................. 329

24-426 Secrecy of the Ballot ................................................................................................................. 331

24-427 Mail Ballots............................................................................................................................... 333

24-428 Foreign Language Voters .......................................................................................................... 334

24-429 Ballot Count .............................................................................................................................. 335

24-430 Payments to Off-Duty Employees to Encourage Voting........................................................... 335

24-440 Electioneering ........................................................................................................................... 336

24-441 Ballot Reproduction .................................................................................................................. 336

24-442 The Milchem Rule ..................................................................................................................... 337

24-443 Raffles, Gifts, and Contests....................................................................................................... 339

24-444 Campaign Insignia .................................................................................................................... 341
TABLE OF CONTENTS xi

24-445 Checking Off Names of Voters ................................................................................................. 342

24-500 The Lufkin Rule......................................................................................................................... 343

24-600 Postelection Unit Modifications................................................................................................ 344
1. JURISDICTION 

1-100 Jurisdiction Generally 

1774-700 

177-5500 

240-1700 et seq. 

The National Labor Relations Board’s jurisdiction under the National Labor Relations Act 

extends to enterprises whose operations affect interstate commerce. Section 2(6) of the Act 

defines “commerce” and Section 2(7) defines “affecting commerce.” The Board’s jurisdiction has 

been construed to extend to all such conduct as might constitutionally be regulated under the 

commerce clause, subject only to the rule of de minimis. NLRB v. Fainblatt, 306 U.S. 601–607 

(1939). See J. M. Abraham, M.D., 242 NLRB 839 (1979), in which statutory jurisdiction was 

established by receipt of Medicare funds and Catalina Island Sightseeing, 124 NLRB 813 (1959), 

in which regulation by another Federal agency under the commerce clause established statutory 

jurisdiction. 

In its exercise of administrative discretion, the Board has limited the assertion of its broad 

statutory jurisdiction to those cases which, in its opinion, have a substantial effect on commerce. 

In doing so, the Board has adopted standards for the assertion of jurisdiction which are based on 

the volume and character of the business done by the employer. The Supreme Court has noted 

that Congress left it to the Board to ascertain whether prescribed practices would, in particular 

situations, adversely affect commerce. Polish National Alliance v. NLRB, 322 U.S. 643, 648 

(1944). This is sometimes called discretionary jurisdiction and the Court has recognized that, 

even when the effect of activities on interstate commerce is sufficient to enable the Board to take 

jurisdiction, the Board sometimes properly declines to do so, stating that the policies of the Act 

would not be effectuated by its assertion of jurisdiction. NLRB v. Denver Building Trades 

Council, 341 U.S. 675, 684 (1954). 

a. History of jurisdictional standards 

These broad principles, which delineate the basic law initially developed with respect to the 

Board’s jurisdictional grant, have been affected by statutory changes made in 1959. Prior to 1950, 

the Board exercised its discretionary jurisdiction on a case-by-case basis. Since that year, it has 

defined in its decisions those categories of enterprises over which it would exercise discretionary 

jurisdiction. The standards under which the Board had been operating were substantially revised 

in July 1954, and again in October 1958. The Board’s practice of establishing the standards under 

which it will assert jurisdiction was given a statutory basis by the Labor-Management Reporting 

and Disclosure Act of 1959, which added Section 14(c)(1) to the Act: 

 

The Board, in its discretion, may, by rule of decision or by published rules adopted pursuant 

to the Administrative Procedure Act, decline to assert Jurisdiction over any labor dispute 

involving any class or category of employers, where, in the opinion of the Board, the effect 

of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of 

its jurisdiction: Provided, That the Board shall not decline to assert jurisdiction over any 

labor dispute over which it would assert jurisdiction under the standards prevailing upon 

August 1, 1959. 

Thus, while the Board may exercise its discretion to decline to assert jurisdiction over 

enterprises which meet the legal test of “affecting interstate commerce,” it may not decline to 

assert jurisdiction over enterprises meeting its jurisdictional standards which were in effect on 

August 1, 1959. 

1
2 JURISDICTION 

A finding that the Board has statutory jurisdiction is necessary in all Board proceedings, even 

though no party contests that jurisdiction. Clark Concrete Construction Corp., 116 NLRB 321 fn. 

3 (1956). 

Statutory jurisdiction can be challenged at any stage, but discretionary jurisdiction must be 

timely raised. Anchortank, Inc., 233 NLRB 295 fn. 1 (1977). 

b. Board authority to cede jurisdiction

Section 10(a) of the Act permits the Board to cede jurisdiction to a State or Territory in: 

any cases in any industry (other than mining, manufacturing, communications, and 

transportation except where predominately local in character) . . . unless the provision of the 

State or Territorial statute . . . is inconsistent with the corresponding provision of this Act. 

The Board has interpreted Section 10(a) to require that the state statutes provisions be parallel 

with the NLRA, if not substantially identical. In fact, notwithstanding the requests of some States, 

the Board has never made a cession agreement. See Produce Magic, Inc., 318 NLRB 1171 

(1995), and cases cited therein. 

1-200 The Jurisdictional Standards 

The Board’s jurisdictional standards are: 

1-201 Nonretail 

260-6744 

260-3320-5000 et seq. 

An annual outflow or inflow, direct or indirect, across state lines of at least $50,000. 

Siemons Mailing Service, 122 NLRB 81 (1959) (see this decision for all the definitions 

under this heading). 

Direct outflow refers to goods shipped or services furnished by an employer directly outside 

the State. 

Indirect outflow refers to sales of goods or services within the State to users meeting any 

standard except solely an indirect inflow or indirect outflow standard. 

An illustration of the application of this definition: An employer engaged in tree surgery and 

landscaping performed $170,000 worth of services in and out of the State for several public 

utilities. As under Siemons, indirect outflow refers to services to users meeting any of the Board’s 

jurisdictional standards (except the indirect outflow or indirect inflow standard) and the 

employer’s services to the public utilities who met the gross volume for utilities constituted 

indirect outflow within the Siemons definition. Thus, because these services were in excess of 

$50,000 annually, the employer met the standard for assertion of jurisdiction for a nonretail 

enterprise. Labor Relations Commission of Massachusetts, 138 NLRB 381 (1962) (an advisory 

opinion under Secs. 102.98 and 102.99 of the Board’s Rules and Regulations). Note that the 

above definition of indirect outflow specifically refers to “users.” This was explained in St. 

Francis Pie Shop, 172 NLRB 89, 90 (1968), one of many cases based on the Siemons decision 

(see specifically, Siemons, supra at fn. 12). 

For purposes of indirect outflow, an exempt organization qualifies as a “user” in the same 

manner and to the same degree as a nonexempt enterprise. Peterein & Greenlee Construction 

Co., 172 NLRB 2110 (1968). Direct inflow refers to goods or services furnished directly to the 

employer from outside the State in which the enterprise is located. Indirect inflow refers to the 

purchase of goods or services which originate outside the employer’s State but which were 

purchased from a seller within the State. See Food & Commercial Workers Local 120 (Weber 

Meats), 275 NLRB 1376 fn. 1 (1985). In Combined Century Theatres, 120 NLRB 1379 (1959), 

and George Schuworth, 146 NLRB 459 (1964), the Board found indirect inflow in circumstances 

when the goods had changed form. 
JURISDICTION 3

For a further explication of these definitions, see Better Electric Co., 129 NLRB 1012 (1961). 

Nonrecurring capital expenses are included in assessing an employer’s inflow if those 

expenses are not the only items of inflow. East Side Sanitation Service, 230 NLRB 632 (1977); 

Arrow Rock Materials, 284 NLRB 1 (1987). 

As stated in Siemons, supra at 85, direct and indirect outflow may be combined as can direct 

and indirect inflow. But, outflow and inflow may not be combined. See Oregon Labor

Management Relations Board, 163 NLRB 17 (1967), combining the inflow of a contractor and its 

subcontractors. 

The nonretail standard has been applied when services were provided directly to the 

consuming public but when the cost of these services were paid for by a commercial enterprise. 

Bob’s Ambulance Service, 178 NLRB 1 (1969). See also Carroll-Naslund Disposal, 152 NLRB 

861 (1965). 

In Hobart Crane Rental, Inc., 337 NLRB 506 (2002), two companies that were allegedly a 

single employer did not together meet the outflow requirement in either of the 2 previous years. 

1-202 Retail 

260-6776 

260-6768 

260-6772 

All retail enterprises which fall within the Board’s statutory jurisdiction and do a gross 

annual volume of business of at least $500,000. Carolina Supplies & Cement Co., 122 

NLRB 88 (1959). 

There is a distinction between “retail” and “wholesale.” In Roland Electrical Co. v. Walling, 

326 U.S. 657, 764 (1946), the Court construed these terms precisely as they are used under the 

Fair Labor Standards Act. Thus, retail sales include sales to a purchaser who desires “to satisfy 

his own personal wants or those of his family or friends,” while wholesale sales constitute “sales 

of goods or merchandise ‘to trading establishments of all kinds, to institutions, industrial, 

commercial, and professional users, and sales to governmental bodies.”’ Bussey-Williams Tire 

Co., 122 NLRB 1146, 1147 (1959); Taylor Baking Co., 143 NLRB 566 (1963). The construction 

and sale of residential homes exclusively is considered a retail enterprise. DeMarco Concrete

Block Co., 221 NLRB 341 (1975). If an employer is engaged in both wholesale and retail 

distribution, either standard applies. DeMarco Concrete Block Co., supra. 

The retail standard, unlike that used for nonretail, is based on annual gross volume of 

business. Generally speaking, gross volume is easy to determine. But note that it does not include 

employers deductions from employee pay for tips. See Love’s Wood Pit Barbeque Restaurant,

209 NLRB 220 (1974), and Temptations, 337 NLRB 376 (2001).

This gross volume test is predicated on a concept which was first used in 1950, and codified 

in 1954 when a revised set of jurisdictional yardsticks was adopted. Normally, meeting this type 

of standard will necessarily entail activities “affecting commerce,” but, because gross volume, as 

distinguished from direct or indirect outflow or inflow used in nonretail operations, does not in 

and of itself indicate movement across State lines, evidence and a finding that the Board has 

statutory jurisdiction is required in addition to satisfying the gross volume requirement. 

Accordingly, whenever the gross volume standard is applied, including the retail standard, proof 

of statutory jurisdiction is needed. See, for example, Longshoremen ILWU (Catalina Island 

Sightseeing), 124 NLRB 813 (1960). 

A typical illustration of the application of the retail standard: Annual out-of-state purchases 

constituting inflow to the employer brings its operations within the Board’s statutory jurisdiction, 

while its combined annual gross volume of sales in excess of $500,000 satisfies the dollar volume 
4 JURISDICTION 

test for assertion of discretionary jurisdiction over retail enterprises. Swift Cleaners, 191 NLRB 

597 (1971). 

1-203 Instrumentalities, Links, and Channels of Interstate Commerce 

260-6732 

All enterprises engaged in furnishing interstate transportation of passengers or 

freight, and all other enterprises which function as essential links in the transportation 

of passengers or commodities in interstate commerce, deriving at least $50,000 annual 

gross revenue from such operations, or performing services valued at least at $50,000 

for enterprises over which jurisdiction would be asserted under any standard except 

one based on indirect outflow or indirect inflow. HPO Service, 122 NLRB 394 (1959). 

In HPO, the employer was engaged in the transportation by bus of mail under contract with 

the United States Post Office originating both within and outside the State of West Virginia, and 

over $50,000 of its annual gross revenue was received for such transportation of mail destined for 

delivery in States other than West Virginia. Where exact figures are not available, the Board may, 

in appropriate circumstances, infer from the nature of the employer operations that some revenue 

is derived from interstate travel. Margate Bridge Co., 247 NLRB 1437 (1980). 

The HPO standard has been applied to a variety of operations. 

In Carteret Towing Co., 135 NLRB 975, 977 (1962), it was applied to a company operating 

tugboats which, among other things, functioned as a link in the transportation of passengers and 

freight in interstate commerce, from which it received over $50,000 per year, and provided 

annual services in excess of that figure to companies over which the Board would assert 

jurisdiction. 

In Andes Fruit Co., 124 NLRB 781 fn. 2 (1959), it was applied to a company which received 

over $50,000 a year for stevedoring services performed for another company which imported 

products from a foreign country. 

A bank partakes of the nature of an instrumentality of commerce and is so treated. 

Amalgamated Bank of New York, 92 NLRB 545 (1951), see also NLRB v. Bank of America

National Trust & Savings Assn., 130 F.2d 624 (9th Cir. 1942). 

For further examples of enterprises described as “essential links,” see United Warehouse & 

Terminal Corp., 112 NLRB 959 (1955) (warehouse activities); Etiwan Fertilizer Co., 113 NLRB 

93 (1955) (shipping terminal operations); Kenedy Compress Co., 114 NLRB 634 (1956) 

(warehouse and shipping); Peoria Union Stock Yards Co., 116 NLRB 263 (1956) (public 

stockyard); Aurora Moving & Storage Co., 175 NLRB 771 (1969) (packing and crating); and 

Boston Cab Assn., 177 NLRB 64 (1969) (starter service); and Open Taxi Lot Operation, 240 

NLRB 808 (1979) (airport station or dispatch services). 

Note that in Kenilworth Delivery Service, 140 NLRB 1190 (1963), revenue from interstate 

transportation of commodities was combined with revenue from services performed within the 

State for enterprises which met the jurisdictional standards. In doing so, the Board explained that 

the purport of this standard was to equate transportation directly out of the State with within-State 

transportation services to other enterprises directly engaged in interstate commerce and to apply 

the $50,000 standard applicable to either category by adding the amount realized from each. This 

is consistent with Board policy in adding direct and indirect outflow or direct and indirect inflow. 

In Greyhound Terminal, 137 NLRB 87 (1962), the Board included all revenue related to a 

bus terminal including rentals from a taxistand and restaurant in determining jurisdiction because 

these services were an integral part of the terminal but incidental thereto. In Jarvis Cafeteria, 200 

NLRB 1141 (1972), the Board declined jurisdiction under the essential link standard where the 

sale of bus tickets was a minor incidental aspect of the employees’ total operations which 

included a restaurant. 
JURISDICTION 5

See also Superior Travel Service, Inc, 342 NLRB 570 (2004), holding that a travel agency 

qualifies as an “essential link.” 

1-204 National Defense/Federal Funds 

260-6736 

280-9706 

Enterprises as to which the Board has statutory jurisdiction and whose operations 

exert a substantial impact on national defense, irrespective of the Board’s other 

jurisdictional standards. No annual gross volume of business yardstick is used. Ready 

Mixed Concrete & Materials, 122 NLRB 318 (1959). 

Illustrative of enterprises over which jurisdiction has been asserted under this standard: a 

company primarily engaged in transporting defense materials (McFarland & Hullinger, 131 

NLRB 745 (1961)); a company which performed services for defense contractors (Colonial 

Catering Co., 137 NLRB 1607 (1962)); a company which engaged in a substantial amount of 

research and development for the United States Government under contract (Woods Hole

Oceanographic Institution, 143 NLRB 568 (1963)); and a company which hauled garbage away 

from Government missile sites and related housing units (Disposal Service, 191 NLRB 104 

(1971)); and a company which provides janitorial services to the U.S. Marine Corps. (Castle 

Instant Maintenance/Maid, Inc., 256 NLRB 130 (1981)). See also Pentagon Barber Shops, 255 

NLRB 1248 (1981); and Fort Houston Beauty Shop, 270 NLRB 1006 (1984), in which the 

national defense standard was not applied. 

The Board will assert jurisdiction over an enterprise that derives substantial amounts of 

revenue from Federal funds even in the absence of evidence of interstate inflow or outflow. Mon 

Valley United Health Services, 227 NLRB 728 (1977), and Community Services Planning 

Council, 243 NLRB 798 (1979). See also Electrical Workers Local 48 (Kingston Constructors),

332 NLRB 1492 (2000). 

In Firstline Transportation Security, 347 NLRB 447 (2006), the Board rejected a contention 

that it should decline, for national security reasons, jurisdiction over a private airport screening 

company. 

See also 1-504.

1-205 Plenary Jurisdiction 

220-7533-5000 

Plenary jurisdiction is exercised over enterprises in the District of Columbia and over which 

the Board would otherwise have statutory jurisdiction. Westchester Corp., 124 NLRB 194 (1959); 

M. S. Ginn & Co., 114 NLRB 112 (1956); and Catholic University of America, 201 NLRB 929 

(1973). 

1-206 Territories 

220-7533-7500 

Section 9(c)(1) of the Act provides that the Board shall direct an election in those cases where 

it has determined that “a question of representation affecting commerce exists.” Section 2(6) of 

the Act defines “commerce” as “trade, traffic, commerce, transportation, or communication 

among the several States, or between the District of Columbia or any Territory of the United 

States and any State or other Territory, or between any foreign country and any State, Territory, 

or the District of Columbia, or within the District of Columbia or any Territory, or between points 

in the same State but through any other State or any Territory or the District of Columbia or any 

foreign country.” 

“Territory,” as used in Section 2(6), has been interpreted by the Board to include Puerto Rico 

(Ronrico Corp. Co., 53 NLRB 1137 (1943)), the Virgin Islands (Virgin Isles Hotel, 110 NLRB 
6 JURISDICTION 

558 (1955); Caribe Lumber & Trading Corp., 148 NLRB 277 (1964)); and Guam (RCA Communications, 154 NLRB 34 (1965)). In Van Camp Seafood Co., 212 NLRB 537 (1974), the 

Board found that American Samoa is a territory as that term is used in Section 2(6) of the Act and 

exercised jurisdiction. See also Micronesian Telecommunications Corp., 273 NLRB 354 (1984), 

where the Board exercised jurisdiction over the trust territory of the Northern Mariana Islands. 

In Facilities Management Corp., 202 NLRB 1144 (1973), the Board declined to assert 

jurisdiction over Wake Island. Assuming, arguendo, that it had statutory jurisdiction, the Board 

nonetheless declined to exercise it, particularly due to the fact that Wake Island “has no local 

permanent residents and is remote, difficult of access, and contains nothing but a military 

installation.” See also Offshore Express, 267 NLRB 378 (1983), under Foreign Flag Ships, 

Foreign Nationals, and Related Situations, section 1-501, infra. For foreign policy considerations, 

the Board declined to exercise its statutory jurisdiction in the Panama Canal Zone. Central

Services, 202 NLRB 862 (1973). 

1-207 Labor Organizations 

260-6796 

28-8630 

177-1683-8750 

A labor organization, “when acting as an employer vis-a-vis its own employees, is an 

employer within the meaning of Section 2(2) of the Act, and subject to the Board’s jurisdiction 

over that industry.” Variety Artists (Golden Triangle Restaurant), 155 NLRB 1020 (1965). In its 

role as an employer, the same jurisdictional standards are applied to a labor organization as to any 

other employer. Oregon Teamsters’ Security Plan Office, 119 NLRB 207 (1958); Laundry 

Workers Local 26, 129 NLRB 1446 (1961). See also Teamsters Local 2000, 321 NLRB 1383 

(1996), where the Board rejected a contention that a union representing airline employees was not 

itself an employer under the Act. 

1-208 Multiemployer Groups and Joint Employers 

260-3360-6700 

530-5700 et seq. 

All members of a multiemployer group who participate in, or are bound by, multiemployer 

bargaining negotiations are considered as a single employer for jurisdictional purposes. Insulation

Contractors of Southern California, 110 NLRB 638 (1955). Jurisdiction is asserted if the 

standards are satisfied by any member of the association (Laundry Owners Assn. of Greater 

Cincinnati, 123 NLRB 543 (1959)), or by a total of the business of association members 

collectively without regard to that of the individual members (Federal Stores, 91 NLRB 647 

(1950); Checker Cab Co., 141 NLRB 583 (1963); and Transportation Promotions, 173 NLRB 

828 (1969)). 

Although neither the informality of the association nor the absence of an advance agreement 

to be bound by the negotiations does not preclude the assertion of jurisdiction on these grounds 

(Fish Industry Committee, 98 NLRB 696, 697–698 (1951)), the mere adoption by an employer of 

an area contract negotiated by an association of employers with which the employer is not 

connected is not sufficient to satisfy the standards (Gordon Electric Co., 123 NLRB 862 (1959); 

Greater Syracuse Printing Employers’ Assn., 140 NLRB 217 (1963)). 

It should be emphasized that multiemployer bargaining is predicated on the consent of the 

parties. See discussion in Marty Levitt, 171 NLRB 739 (1968), see also Evening News Assn., 154 

NLRB 1482 (1966), affd. sub nom. Detroit Newspaper Publishers Assn., 372 F.2d 569 (6th Cir. 

1967). 

As in the case of multiemployer groups, such as employer associations, on a finding of a joint 

employer relationship, the Board will combine the gross revenues of the employers for 
JURISDICTION 7

jurisdictional purposes. CID-SAM Management Corp., 315 NLRB 1256 (1995); Central Taxi 

Service, 173 NLRB 826 (1969); Checker Cab Co., 141 NLRB 583 (1963), enfd. 367 F.2d 692 

(6th Cir. 1966); NLRB v. Marinor Inns, 445 F.2d 538 (5th Cir. 1971), enfg. 181 NLRB 467 

(1970). 

In making a joint-employer finding, substantial reliance is placed on the employers holding 

themselves out to the public as a single-integrated enterprise (Transportation Promotions, 173 

NLRB 828 (1969); Operating Engineers Local 428 (Bee Slurry), 169 NLRB 184 (1968); and 

Bloch Enterprises, 172 NLRB 1678 (1968), and also on the extent of control over the other 

employer’s operations in particularly critical areas (Hamburg Industries, 193 NLRB 67 (1971)). 

For further discussion of multiemployer associations and joint employers, see Chapter14. 

1-209 Enterprises Falling Under Several Standards 

260-6768 

260-6772 

260-3360-8400 

If an enterprise is of such nature to be classified within several of the categories for which 

different standards have been established, jurisdiction is asserted if it satisfies the standards of 

any one of the categories within which it may be classified. Country Lane Food Store, 142 NLRB 

683 (1963). 

Thus, when an employer engages in both retail and nonretail operations, if the nonretail 

aspect is not de minimis, the Board asserts jurisdiction where the employer’s operations meet 

either standard. See, for example, Indiana Bottled Gas Co., 128 NLRB 1441 (1960), and Man 

Products, 128 NLRB 456 (1960). 

See also Phipps Houses Services, 320 NLRB 876 (1996), where the Board discusses the 

exception to the policy of examining each function if the operation meets the highest standard the 

Board applies to any enterprise. 

1-210 Postal Service Employees 

480-0125 

240-1775 

280-4310 

Under the Postal Reorganization Act of 1970 (Pub. L. 91-375, 91st Cong.), the National 

Labor Relations Act was made applicable to the United States Postal Service (USPS) and postal 

employees. The Board was specifically empowered to decide appropriate units, entertain 

representation petitions, conduct elections, and certify bargaining representatives for employees 

in the USPS. 

1-211 Jurisdiction in an 8(a)(4) Situation 

240-0167-1700 

240-0167-8300 

In a unique situation in which the Board, although finding legal jurisdiction, found that the 

respondent’s operations failed to meet the Board’s discretionary standards, it nonetheless 

fashioned an 8(a)(4) remedy. The case involved Section 8(a)(1), (3), and (5), as well as Section 

8(a)(4). The 8(a)(4) remedy was predicated on the discharge of employees for having met with 

and given evidence to a Board agent. In these circumstances, while dismissing the 8(a)(1), (3), 

and (5) portions of the complaint on jurisdictional grounds, the Board nonetheless held that it 

would effectuate the policies of the Act to assert jurisdiction for the purpose of remedying the 

respondent’s unlawful interference with the statutory right of all employees to resort to and 

participate in the Board’s processes and granted an 8(a)(4) remedy. A A Electric Co., 177 NLRB 
8 JURISDICTION 

504 (1969). The Eighth Circuit refused enforcement originally of this case on other grounds, 435 

F.2d 1296 (1971). The Supreme Court reversed the circuit court and remanded the case, saying 

that the court of appeals could “canvass” the “marginal” jurisdiction of the Board. 404 U.S. 821 

(1971). The Eighth Circuit then enforced the Board’s order in its finding of statutory jurisdiction. 

80 LRRM 3055 (1972). See also Pickle Bill’s, Inc., 229 NLRB 1091 (1977), in which the Board 

processed an election petition involving an employer who did not meet the Board’s discretionary 

standards. The Board did so because it had previously entered an 8(a)(4) order against the 

employer. It therefore processed the representation petition in order “to give full scope and 

effect” to that order. 

1-212 Secondary Boycotts 

260-3380 

Although this outline is devoted solely to representation proceedings, the special rule 

adopting a standard for asserting jurisdiction in secondary boycott cases is included in order to 

make the statement of jurisdictional standards complete. 

In cases in which a secondary boycott violation is alleged and the operations of the primary 

employer do not satisfy the jurisdictional requirements, the Board takes into consideration for 

jurisdictional purposes not only the operations of the primary employer, but also the entire 

operations of any secondary employers to the extent that the latter are affected by the conduct 

involved. Teamsters Local 554 (McAllister Transfer), 110 NLRB 1769 (1955). Jurisdiction over 

an 8(b)(4) case gives the Board jurisdiction over a related 8(b)(7) case. Plumbers Local 460 (L. J. 

Construction), 236 NLRB 1435 (1978). 

For illustrations of the application of this standard, see Hotel & Restaurant Employees Local 

595 (Arne Falk), 161 NLRB 1458, 1461–1462 (1966); Electrical Workers Local 257 (Osage 

Neon Plastics), 176 NLRB 424 (1969). 

1-213 Indian Tribes 

220-7567-7000 

In San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), enfd. 475 F.3d 1306 (D.C. 

Cir. 2007), the Board embarked “on a new approach to considering Indian owned and operated 

enterprises.” Finding that the special attributes of Indian sovereignty are not implicated by Board 

jurisdiction over Indian commercial enterprises that are par t of the national economy, the Board 

eschewed its previous on/off reservation dichotomy for determining whether or not to assert 

jurisdiction. Where, however, the enterprise is a traditional tribal or governmental function, the 

Board will decline jurisdiction. Yukon Kuskokwim Health Corp., 341 NLRB 1075 (2004). 

The Board had previously held that Indian tribes and their self-directed enterprises located on 

the tribal reservation are implicitly exempt as governmental entities within the meaning of the 

Act. See Fort Apache Timber Co., 226 NLRB 503 (1976); and Southern Indian Health Council, 

290 NLRB 436 (1988). However, the Board distinguished these cases and asserted jurisdiction 

where the tribal enterprise is located off the reservation. See Sac & Fox Industries, 307 NLRB 

241 (1992); and Yukon Kuskokwim Health Corp., 328 NLRB 761 (1999) (jurisdiction asserted 

over hospital located off treaty reservation). The Board also asserted jurisdiction in cases where 

the enterprise, although located on the tribal reservation, is neither wholly owned nor controlled 

by the tribe. See Devil’s Lake Sioux Mfg. Corp., 243 NLRB 163 (1979). See also Texas-Zinc 

Minerals Corp., 126 NLRB 603 (1960), in effect enforced in Navajo Tribe v. NLRB, 288 F.2d 

162 (D.C. Cir. 1961), cert. denied 366 U.S. 928 (1961). 

For a discussion of what constitutes reservation lands see U.S. v. John, 437 U.S. 634 (1978). 
JURISDICTION 9

1-300 Miscellaneous Categories in Which Jurisdiction was Asserted 

1-301 Architects 

280-8910 

An employer engaged in the practice of architecture, concededly in an operation over which 

the Board has statutory jurisdiction, was made subject to the Board’s discretionary jurisdiction. 

“Architecture,” the Board said, “plays an irreplaceable role in the construction industry, a major 

factor in interstate commerce, and it is apparent that disputes involving architects could have 

serious and far-reaching effects upon that industry.” The standard for nonretail business was 

applied. Wurster, Bernardi & Emmons, Inc., 192 NLRB 1049 (1971); Skidmore, Owings & 

Merrill, 192 NLRB 920 (1971); and Fisher-Friedman Associates, 192 NLRB 925 (1971). 

1-302 Amusement Industry 

280-7900 

The retail standard applies to the amusement industry. Ray, Davidson & Ray, 131 NLRB 433 

(1961); Coney Island, Inc., 140 NLRB 77 (1963); and Aspen Skiing Corp., 143 NLRB 707 

(1963). 

1-303 Apartment Houses 

260-6704 

280-6500 et seq. 

The apartment house standard is a gross annual revenue of $500,000 or more. Parkview

Gardens, 166 NLRB 697 (1967). 

Parkview was, the first case to establish a jurisdictional standard in the residential apartment 

industry, viz., the operation of a garden-type apartment project composed of 592 units with an 

annual gross rental of $650,000. 

In determining discretionary jurisdiction, the Board traditionally aggregates gross revenues 

derived from all residential buildings managed by the employer. Riverdale Manor Owners Corp., 

311 NLRB 1094 fn. 1 (1993). See also CID-SAM Management Corp., supra at fn. 4. Of course, 

there must also be a showing of statutory jurisdiction. Id. at fn. 5. 

Historically, the Board asserts jurisdiction over the managing agent of buildings where the 

underlying buildings meet the necessary jurisdictional requirements. Phipps Houses Services, 320 

NLRB 876 (1996). 

1-304 Art Museums, Cultural Centers, and Libraries 

280-8400 

In a series of cases, the Board has applied a $1 million gross revenues standard for 

jurisdiction over employers which, although not education institutions themselves, do contribute 

to the cultural and educational values of the community. Helen Clay Frick Foundation, 217 

NLRB 1100 (1975) (art museum); Colonial Williamsburg Foundation, 224 NLRB 718 (1976) 

(historical restoration and preservation); Wave Hill, Inc., 248 NLRB 1149 (1980) (environmental 

center); and Rutland Free Library, 299 NLRB 245 (1990) (private nonprofit library). 

1-305 Bandleaders 

280-7920 

Bandleaders who “sell” music to ultimate purchasers, i.e., a sale (performance) to a purchaser 

to satisfy personal wants or those of family or friends, come under the retail standard. Bands 

which “sell” music to commercial enterprises, not to the ultimate consumers, are governed by the 

prevailing nonretail standard. Marty Levitt, 171 NLRB 739 (1968). 
10 JURISDICTION 

1-306 Cemeteries 

280-6500 

The Board will exert its jurisdiction over the operations of cemetery whose gross annual 

revenue exceeds $500,000 and whose annual out-of-state purchases are more than de minimis. 

Catholic Cemeteries, 295 NLRB 966 (1989), and cases cited therein. 

1-307 Colleges, Universities, and Other Private Schools 

280-8220 

260-6708 

Private nonprofit colleges and universities which receive a gross annual revenue from all 

sources (excluding only contributions which are, because of limitation by the grantor, not 

available for use for operating expenses) of at least $1 million. National Labor Relations Board’s 

Rules and Regulations, Section 103.1, published in 35 F.R. 18370, December 3, 1970. 

This monetary yardstick was established by rulemaking and implemented the Board’s 

decision in Cornell University, 183 NLRB 329 (1970), in which it decided to assert jurisdiction 

over nonprofit private educational institutions. In doing so, the Board overruled its earlier 

decision in Columbia University, 97 NLRB 424 (1951). 

For illustrations of the application of this standard, see Boston College, 187 NLRB 133 

(1971); Leland Stanford Jr. University, 194 NLRB 1210 (1972); and Garland Junior College, 

188 NLRB 358 (1971). In Syracuse University, 204 NLRB 641 (1973), the Board asserted 

jurisdiction on the basis of gross annual revenues in excess of $1 million of which at least 

$50,000 was received from points outside the State of New York. 

Because the Board no longer declines to assert jurisdiction over educational institutions as a 

class, it asserted jurisdiction over the Corcoran Art Gallery, a District of Columbia institution, on 

a plenary basis. Corcoran Gallery of Art, 186 NLRB 565 (1970). 

As jurisdiction had been extended over private colleges and universities, no substantial 

justification remained for withholding the exercise of the Board’s powers over employers “whose 

operations are adjunctive to the educational system.” Thus, jurisdiction was asserted over a 

foundation operating radio stations on that basis. Pacifica Foundation-KPFA, 186 NLRB 825 

(1970). But in College of English Language, 277 NLRB 1065 (1985), the Board applied the retail 

rather than the educational standard because the nature of the employer’s operation was dissimilar 

from that of colleges or secondary schools. 

In Windsor School, 200 NLRB 991 (1972), the Board concluded that it was no longer 

justified in applying different standards to purely educational institutions based solely on their 

being operated for profit or nonprofit. Accordingly, it applied the jurisdictional standard of $1 

million annual gross revenue, which it had established for nonprofit secondary institutions, to 

similar for-profit secondary schools. See also Shattuck School, 189 NLRB 886 (1971). 

The jurisdictional standard for private schools is $1 million. See Roman Catholic 

Archdiocese of Baltimore, 216 NLRB 249 (1975). Although this case predates NLRB v. Catholic

Bishop of Chicago, 440 U.S. 490 (1979) (see sec. 1-403), there is no reason to believe that the 

Supreme Court’s decision there would affect this jurisdictional standard where it is applied to a 

nonreligious private school. For discussion of Religious Schools, see section 1-403 and for 

Religious Organizations, see section 1-503. 

Where, however, a university, although a private institution, was made by State legislation 

“an instrumentality of the Commonwealth of Pennsylvania” with resulting increased State control 

over the affairs of the university, thus, becoming “a quasi-public higher educational institution,” 

the assertion of jurisdiction was declined. Temple University, 194 NLRB 1160 (1972), but see 

Howard University, 224 NLRB 385 (1976). 
JURISDICTION 11

In 1976 the Board asserted jurisdiction over the University of Vermont, 223 NLRB 423 

(1976). The Board later reversed its position in an advisory opinion and now holds that this 

university is a political subdivision. University of Vermont, 297 NLRB 291 (1989). 

1-308 Communication Systems 

280-4800 et seq. 

Enterprises engaged in the operation of radio, or television broadcasting stations, or 

telephone, or telegraph systems which do a gross annual volume of business of at least $100,000 

come within the Board’s discretionary jurisdiction. For statutory jurisdiction, the Board noted that 

the employer advertised national brand products and was a member of the Associated Press 

utilizing its wire service. Raritan Valley Broadcasting Co., 122 NLRB 90 (1959). 

The Board has applied its communication systems standard to community television antenna 

systems (CATV). General Telephone & Electronics Communications, 160 NLRB 1192, 1193 fn. 

5 (1966). 

The Board has, however, declined jurisdiction over a television station that operated for 

religious purposes alone. Faith Center-WHCT Channel 18, 261 NLRB 106 (1982). See also 

sections 1-403 and 1-503, supra. 

1-309 Condominiums and Cooperatives 

260-6704 

280-6510 

In 30 Sutton Place Corp., 240 NLRB 752 (1979), the Board reversed its decision in Point

East Condominium Owners Assn., 193 NLRB 6 (1971), and decided that it would assert 

jurisdiction over condominiums and cooperatives. The jurisdiction standard was set at gross 

annual revenues in excess of $500,000. See also Imperial House Condominiums, 279 NLRB 1225 

(1986). In determining discretionary jurisdiction, the Board traditionally aggregates gross 

revenues derived from all residential buildings managed by the employer. Riverdale Manor 

Owners Corp., 311 NLRB 1094 fn. 1 (1993). 

For discussion of jurisdiction over managing agents see section 1-303, supra. 

1-310 Credit Unions 

280-6140 

Credit unions (nonprofit corporations engaged in the extension of consumer credit) are within 

the Board’s jurisdiction. Credit unions’ operations, like those of many financial institutions, have 

aspects of both retail and nonretail enterprises. To the extent credit unions lend money to or 

secure deposits from individuals, their operations appear to be retail in nature. To the extent they 

invest their funds in Treasury notes or commercial ventures, their activities are nonretail in 

nature. Thus, the impact on commerce of credit union operations may be measured by either the 

retail or nonretail standard. East Division, Federal Credit Union, 193 NLRB 682 (1971). 

1-311 Day Care Centers 

260-6750 

280-8350 

In Salt & Pepper Nursery School, 222 NLRB 1295 (1976), the Board set a $250,000 annual 

revenue standard for day care centers for children. 

1-312 Financial-Information Organizations and Accounting Firms 

280-8930 

Jurisdiction is asserted over employees engaged in the collection, compilation, editing, and 

disseminating of information in the areas of credit, finance, marketing, sales, economics, 
12 JURISDICTION 

education, and research. Dun & Bradstreet, Inc., 194 NLRB 9 (1971); Credit Bureau of Greater 

Boston, 73 NLRB 410 (1947). Ernst & Ernst National Warehouse, 228 NLRB 590 (1977). 

1-313 Gaming 

260-6724 

280-7990 

The retail standard applies to the gaming industry. El Dorado Club, 151 NLRB 579 (1965); 

Harrah’s Club, 150 NLRB 1702 (1965), enfd. 362 F.2d 425 (9th Cir. 1966), cert. denied 386 U.S. 

915 (1967). 

The Board exercised jurisdiction in two cases involving casinos affiliated with racetracks, 

finding that the enterprises were predominently casinos and the employees predominently casino 

employees. Prairie Meadows Racetrack & Casino, 324 NLRB 550 (1997), and Delaware Park, 

325 NLRB 156 (1997). 

But see Horseracing and Dogracing, infra at section 1-502. 

1-314 Government Contractors 

260-3390 

260-6736 

280-9100 et seq. 

In Management Training Corp., 317 NLRB 1355 (1995), a divided Board announced that 

henceforth it would “only consider whether the employer meets the definition of ‘employer’ 

under Section 2(2) of the Act in deciding whether the Board will exercise jurisdiction over private 

sector employers who work under contracts with Federal, state, or local governments.” This 

policy reversed the Board’s prior practice of examining the relationship between the employer 

and the government entity to determine whether “the employer has sufficient control over the 

employment conditions of its employees to enable it to bargain with a labor organization as their 

representative.” National Transportation Service, 240 NLRB 565 (1979); Res-Care, Inc., 280 

NLRB 670 (1986). In announcing the test in Management Training, the Board reversed Res Care, 

a policy which had itself overruled the “intimate connection” test of Rural Fire Protection Co., 

216 NLRB 584 (1975). The Sixth, Fourth, and Tenth Circuits have upheld the Management 

Training doctrine. See Pikeville United Methodist Hospital of Kentucky v. NLRB, 109 F.3d 1146 

(6th Cir. 1997); Teledyne Economic Development v. NLRB, 108 F.3d 56 (4th Cir. 1997); and 

Aramark Corp. v. NLRB, 156 F.3d 1087 (10th Cir. 1998). See also Recana Solutions, 349 NLRB 

No. 109 (2007); Jacksonville Urban League, 340 NLRB 1303 (2003),. 

The Board referenced the Management Training doctrine in a jurisdiction case involving 

exempt entities under the Railway Labor Act. See, e.g., D & T Limousine Service, 320 NLRB 

859, 860 fn. 3 (1996). 

For a discussion of State or Political Subdivisions, see section 1-401, infra. See also Comity 

to State Elections, section 10-120. 

1-315 Health Care Institutions 

260-6752 et seq. 

280-8000 et seq. 

In 1974 Congress enacted Section 2(14) to give the Board jurisdiction over “health care 

institutions.” These institutions are defined as “any hospital, convalescent hospital, health 

maintenance organization, health clinic, nursing home, extended care facility or other institution 

devoted to the care of sick, infirm or aged persons.” In East Oakland Health Alliance, 218 NLRB 

1270 (1975), the Board set discretionary standards for these institutions. 
JURISDICTION 13

For nursing homes, visiting nurses’ associations, and related facilities, the standard was set at 

$100,000 in gross revenues and for hospitals and other institutions the standard is $250,000. The 

Board has applied the statutory definition for health care institutions to include patient care at 

outpatient hemodialysis units, Bio-Medical of San Diego, 216 NLRB 631 (1975); family planning 

clinics, Planned Parenthood Assn., 217 NLRB 1098 (1975); facilities for the care and treatment 

of the mentally retarded, Beverly Farm Foundation, 218 NLRB 1275 (1975); doctors’ offices, 

Private Medical Group, 218 NLRB 1315 (1975); and dentists’ offices, Jack L. Williams, DDS, 

219 NLRB 1045 (1975). 

The Board has held that a blood bank that performs some patient-related function is a health 

care institution. Syracuse Region Blood Center, 302 NLRB 72 (1991). Generally, the $250,000 

standard has been deemed applicable. 

Health care facilities are held to be within the Board’s jurisdiction even though they may be 

sponsored and administered by religious organizations; Mid American Health Services, 247 

NLRB 752 (1980); and Saint Marys Hospital, 260 NLRB 1237 (1982); St. Elizabeth Hospital v. 

NLRB, 708 F.2d 1436 (9th Cir. 1983). But see Motherhouse of Sisters of Charity, 232 NLRB 318 

(1977), in which the Board did not assert jurisdiction because of the primarily religious purpose 

of that nursing home. 

At one time, the Board found that a medical school did not come within the health care 

definition because its primary purpose was education rather than patient care. Albany Medical 

College, 239 NLRB 853 (1978). However, the Board reconsidered and overruled that result in 

Kirksville College, 274 NLRB 794 (1985), giving the term “health care institution” an expansive 

reading when the medical school was closely intertwined with its hospital. In Duke University, 

306 NLRB 555 (1992), the Board declined to extend Kirksville to find that campus busdrivers are 

health care employees because they drive medical employees on campus routes. 

For discussions of health care unit issues, see section 15-170. 

1-316 Hotels and Motels 

260-6728 

280-7010 

Jurisdiction is asserted over hotels and motels that receive at least $500,000 in gross annual 

revenue. Penn-Keystone Realty Corp., 191 NLRB 800 (1971). 

Historic note: Initially, the standard for hotels and motels created a dichotomy between 

residential and transient property (see Floridan Hotel of Tampa, 124 NLRB 261 (1959)). This 

distinction was clarified in Continental Hotel, 133 NLRB 1694 (1961), but the dichotomy was 

nonetheless maintained. In Penn-Keystone, supra, the Board held that, because it no longer 

declined to assert jurisdiction over residential apartment buildings (Parkview Gardens, 166 

NLRB 697 (1967), see supra at sec. 1-303), it was unnecessary to continue to distinguish between 

residential and transient hotels or motels. Thus, as Penn-Keystone received gross annual revenue 

in the sum of $500,000, it met the monetary standard for hotels and motels as well as the 

monetary standard—also $500,000—for the assertion of jurisdiction over residential apartment 

buildings established in Parkview Gardens.

1-317 Law Firms and Legal Service Corporations 

280-8100 

260-6734 

The Board will assert jurisdiction over law firms, Foley, Hoag & Eliot, 229 NLRB 456 

(1977), and legal service corporations, Wayne County Legal Services, 229 NLRB 1023 (1977). 

The jurisdictional amount for law firms and legal services organizations is $250,000 in gross 

revenues. Camden Regional Legal Services, 231 NLRB 224 (1977). 
14 JURISDICTION 

1-318 Newspapers 

260-6740 

280-2710 

The Board asserts jurisdiction over newspaper companies which hold membership in or 

subscribe to interstate news services, or publish nationally syndicated features, or advertise 

nationally sold products, when the annual gross volume of the particular enterprise involves 

amounts of $200,000 or more. Belleville Employing Printers, 122 NLRB 350 (1959). 

Thus, for example, where the employer published a newspaper which carried advertisements 

of nationally sold products amounting to $4000, purchased by national advertising agencies, and 

derived an annual revenue of over $294,000 from its operations, more than $98,000 of which it 

derived from job printing, jurisdiction was asserted under this standard. Berea Publishing Co., 

140 NLRB 516 (1963). 

1-319 Nonprofit Charitable Institutions 

280-8670 

In St. Aloysius Home, 224 NLRB 1344 (1977), the Board reversed its longstanding policy of 

not exercising jurisdiction over nonprofit institutions whose activities are essentially 

noncommercial in nature and are intimately connected with the charitable purposes of the 

institution. See, e.g., Columbia University, 97 NLRB 424 (1951), and Ming Quong Children’s 

Center, 210 NLRB 899 (1974). The decision to reverse Columbia University and Ming Quong

was grounded on the 1974 Health Care Amendments which deleted the reference to nonprofit 

hospitals in Section 2(2) of the Act. The St. Aloysius majority concluded that those amendments 

removed any validity for further excluding nonprofit organizations, whether health care related or 

not, from the coverage of the Act. In Ohio Public Interest Campaign, 284 NLRB 281 (1987), the 

Board applied this policy but declined jurisdiction over a nonprofit corporation engaged in 

consumer lobbying because of its local character. Jurisdiction was exercised over Goodwill 

Industries of Denver, 304 NLRB 764 (1991), revg. Goodwill Industries of Southern California, 

231 NLRB 536 (1977). See section 20–630 for a discussion of the employee status of individuals 

working at these facilities. 

Having removed the charitable or nonprofit distinction, the Board in St. Aloysius announced 

that the jurisdictional standard for these institutions would depend on its substantive purpose, e.g., 

the day care center standard would apply to nonprofit as well as to profit day care centers. 

1-320 Office Buildings 

260-6748 

280-6510 

280-6530 

Enterprises engaged in the management and operation (whether as owners, lessors, or 

contract managers) of office buildings are within the Board’s jurisdiction when the gross annual 

revenue derived from such office buildings amounts to $100,000, and when $25,000 is derived 

from enterprises whose operations meet any of the current standards, except the indirect inflow 

and outflow standards. Mistletoe Operating Co., 122 NLRB 1534 (1959). 

Thus, for example, where an employer was engaged in the business of renting offices and its 

gross annual revenue from office rentals exceeded the sum of $100,000 and at least $25,000 of 

that sum was derived from a tenant who during an annual period sold and shipped goods valued 

in excess of $50,000 directly to points outside the State, the office buildings standard was met. 

Gulf Building Corp., 159 NLRB 1621 (1966). 

For a discussion of jurisdiction over managing agents, see section 1-303, and over shopping 

centers, see section 1-325. 
JURISDICTION 15

1-321 Private Clubs 

260-6716 

280-7990 

The retail standard applies to private clubs. Walnut Hills Country Club, 145 NLRB 81, 82 

(1964). 

In determining whether the gross volume of business of an enterprise in this category meets 

the Board’s retail standard, members’ dues and initiation fees are not included as income derived 

from its retail operation. Golf Course Inns, 199 NLRB 541 (1972); Rancho Los Coyotes Country 

Club, 170 NLRB 1773 (1968); and Woodland Hills Country Club, 146 NLRB 330, 331 (1964). 

1-322 Professional Sports 

260-6784 

280-7940 

The Board asserted jurisdiction over the American League of Professional Baseball Clubs, 

finding that professional baseball is an industry in or affecting commerce and, as such, is subject 

to Board jurisdiction. No specific monetary standard was set “as the annual gross revenues of this 

Employer are in excess of all of our prevailing monetary standards, we find that the Employer is 

engaged in an industry affecting commerce, and that it will effectuate the policies of the Act to 

assert jurisdiction herein.” American League of Professional Baseball Clubs, 180 NLRB 190, 192 

(1970). In later cases, the Board exercised jurisdiction over other professional sports but again did 

not set a monetary standard. See Major League Rodeo, Inc., 246 NLRB 743 (1979), and cases 

cited at fn. 7 therein. 

1-323 Public Utilities 

260-6760 

280-4900 et seq. 

The standard for public utilities is a gross annual volume of business of at least $250,000 or 

an annual outflow or inflow of goods, materials, or services, whether directly or indirectly across 

State lines, of $50,000. Sioux Valley Empire Electric Assn., 122 NLRB 92 (1959); Kingsbury 

Electric Cooperative, 138 NLRB 577 (1962). 

1-324 Restaurants 

280-5800 

The $500,000 annual gross volume standard, applicable to retail enterprises in general, also 

applies to restaurants. City Line Open Hearth, 141 NLRB 799 (1963). 

In that case, the restaurant standard was met where its gross volume of business, projected on 

an annual basis, met the retail test and the employer’s purchases of beverages, food, and supplies, 

produced and originating from outside the State, affected commerce under the Act and brought its 

operations within the Board’s statutory jurisdiction. 

See also Denny’s Restaurant, 177 NLRB 702 (1969), in which jurisdiction was asserted on 

the basis of a single-integrated enterprise. 

1-325 Shopping Centers 

260-6780 

280-6510 

Shopping centers are treated the same as office buildings (see sec. 1-320). Carol 

Management Corp., 133 NLRB 1126 (1961). 
16 JURISDICTION 

1-326 Social Services Organizations 

280-8300 et seq. 

260-6793 

In Hispanic Federation for Development, 284 NLRB 500 (1987), the Board announced that it 

would apply a $250,000 gross annual revenue for all social service organizations other than those 

for which the Board has already set a specific standard for the type of activity in which they are 

engaged. In doing so, the Board noted that it had previously set a standard of $100,000 for 

homemaker services and for visiting nurses’ associations. The $250,000 has been applied to 

organizations that solicit, collect, and distribute funds for charitable purposes. United Way of 

Howard County, 287 NLRB 987 (1988). 

1-327 Stock Brokerage Firms 

280-6200 et seq. 

Employers engaged in the securities industry are subject to the Board’s jurisdiction. A 

contention that the Securities Exchange Act precludes the Board from exercising its authority in 

cases involving this industry was rejected. Goodbody & Co., 182 NLRB 81 (1970). 

1-328 Symphony Orchestras 

280-7920 

The Board exercises jurisdiction over symphony orchestras which have a gross annual 

revenue from all sources (excluding only contributions which are because of limitations by the 

grantor not available for use for operating expenses) of not less than $1 million. Board Rules and 

Regulations, Section 103.2, published at 38 F.R. 6176, March 7, 1973. 

1-329 Taxicabs 

280-4120 

260-6788 

The retail standard of $500,000 or more annual volume of business is applied to taxicabs. 

In Carolina Supplies & Cement Co., supra, 122 NLRB 88 fn. 5, the term “retail enterprises” 

was deemed to include taxicabs. See also Red & White Airway Cab Co., 123 NLRB 83 (1959), in 

which the Board relied on the cited language in the Carolina decision. But see taxicab dispatch 

and starter cases under Instrumentalities, Links, and Channels of Interstate Commerce, section 1-

203 of this chapter. 

1-330 Transit Systems 

280-4100 et seq. 

260-6792 

Annual gross volume of business of $250,000 or more meets the Board standard for a private 

transit system. Charleston Transit Co., 123 NLRB 1296 (1959). 

This standard is distinguishable from the one described immediately above in that it embraces 

enterprises engaged in intrastate operations but which nonetheless affect substantially interstate 

commerce. Thus, in Charleston, the employer operated a local passenger transit system by bus in 

and around Charleston, West Virginia, carrying no freight or mail nor interchanging or sharing 

facilities with any other transit company. However, it carried more than 9 million passengers, 

including those using bus service to large plants, and its annually purchased fuel, tires, and parts 

produced out of the State in a sum exceeding $160,000. 

Where an employer operated a local bus transportation business, deriving its revenue from 

contracts with local school boards for the transportation of school children the Board asserted 
JURISDICTION 17

jurisdiction under the Charleston Transit standards. See Government Contractors, section 1-314 

of this chapter. 

1-400 Jurisdiction Declined for Statutory Reasons 

177-1683 et seq. 

Section 2(2) of the Act specifically excludes certain enterprises from its definition of 

“employer” and for this reason jurisdiction is not asserted over those enterprises. Excluded are: 

the United States Government and wholly owned Government corporations or any Federal 

Reserve Bank; a State or a political subdivision of a State; persons subject to the Railway Labor 

Act; labor organizations (other than when acting as an employer); and anyone acting in the 

capacity of officer or agent of such labor organization. Because these are statutory limits on the 

Board’s jurisdiction, they can be raised at any time. Chelsea Catering Corp., 309 NLRB 822 fn. 

2 (1992). 

1-401 State or Political Subdivision 

177-1683-5000 

260-3390 

In determining whether an entity falls within the scope of the 2(2) exemption for “any State 

or political subdivision thereof,” the entity must either be (1) created directly by the State so as to 

constitute a department or administrative arm of the Government, or (2) administered by 

individuals who are responsible to public officials or to the general public. Natural Gas Utility 

District of Hawkins County, 167 NLRB 691 (1967), enfd. 427 F.2d 312 (6th Cir. 1970), affd. as 

to applicable standard only 402 U.S. 600 (1971). 

The Board held that the University of Vermont is a political subdivision because it meets both 

prongs of the Hawkins test. See University of Vermont, 297 NLRB 291 (1989), revg. a 1976 

decision reported at 223 NLRB 423. 

(1) Creature of the State 

An entity does not become a creature of the State by the mere receipt of revenue from a 

preestablished tax fund (see Service Employees Local 402 (San Diego Facilities Corp.), 175 

NLRB 161 (1969)), or by occupancy of city-owned property (Trans-East Air, Inc., 189 NLRB 

185 (1971)), or because the employees are paid by the city where this is merely a convenient 

method for transferring funds to an association or society to which the latter is entitled 

(Minneapolis Society of Fine Arts, 194 NLRB 371 (1972)). 

In Jervis Public Library Assn., 262 NLRB 1386 (1982), the Board found that it lacked 

jurisdiction because the entity is an administrative arm of the State. See also Rosenberg Library 

Assn., 269 NLRB 1173 (1984). In Hinds County Human Resource Agency, 331 NLRB 1404 

(2000), the Board dismissed a petition on jurisdictional grounds finding that the employer was 

created by the county Board of Supervisors pursuant to a State statute granting the authority for 

these agencies to Boards of Supervisors. The Board also noted that virtually all the Agency’s 

funding came from State and Federal governmental services. 

In State Bar of New Mexico, 346 NLRB 674 (2006), the Board found a State bar to be a 

creature of the New Mexico Supreme Court that serves as an administrative arm of that Court. 

In Research Foundation of the City University of New York, 337 NLRB 965 (2002), the 

Board found that an organization whose purpose is to administer grant awards was not a public 

employer because it was created by private individuals and was not responsible to the general 

public. In deciding this issue, the Board found it unnecessary to decide whether it lacked 

jurisdiction because the employer was a single employer with the City of New York because the 

Board found no bases for single-employer status. 
18 JURISDICTION 

The Board has rejected political subdivision contentions for Indian Tribes. San Manuel 

Indian Bingo & Casino, 341 NLRB 1055 (2004), and Yukon Kuskokwim Health Corp., 340 

NLRB 1171 (2004), and 328 NLRB 761 (1999), and privately run prisons. Correction Corp. of 

America v. NLRB, 234 F.3d 1321 (D.C. Cir. 2000). 

(2) Administered by Individuals Responsible to Public Officials or General Public 

During the 1990s the Board considered the issue of what is necessary to establish that an 

entity is administered by individuals who were responsible to the general public. In Enrichment 

Services Program, Inc., 325 NLRB 818 (1998), the Board reversed prior holdings and ruled that 

the “individuals are responsible to the general electorate under Hawkins County only if the 

relevant electorate is the same as that for general political elections.” In doing so, the Board 

overruled Woodbury County Community Action Agency, 299 NLRB 554 (1990); and Economic 

Security Corp., 299 NLRB 562 (1990). In FiveCap, Inc., 331 NLRB 1165 (2000), the Board 

found that the governing body of a Head Start program was not responsible to the general 

electorate. 

It must also be shown that the entity in question is administered by individuals who hold 

office not by virtue of the entity’s own articles of incorporation, but by virtue of a State 

requirement. Fayetteville-Lincoln County Electric System, 183 NLRB 101 (1970). See also Cape 

Girardeau Care Center, 278 NLRB 1018 (1986), finding jurisdiction where there was no direct 

accountability to public officials; Concordia Electric Cooperative, 315 NLRB 752 (1994), 

finding that electric cooperatives are generally not held to be political subdivisions and Research 

Foundation, supra. 

Indian Tribes do not meet this prong of the political subdivision test. San Manuel Indian 

Bingo & Casino, supra. 

For additional illustrations of the application of these tests for determining whether or not an 

entity is a political subdivision within the meaning of Section 2(2), see Regional Medical Center 

at Memphis, 343 NLRB 346 (2004); City Public Service Board of San Antonio, 197 NLRB 312 

(1972); Sis-Q Flying Service, 197 NLRB 195 (1972); Lewiston Orchards Irrigation District, 

186 NLRB 827 (1970), enf. denied 469 F.2d 698 (9th Cir. 1972); Austell Natural Gas System, 

186 NLRB 280 (1970); Detroit Institute of Arts, 271 NLRB 285 (1984); Pennsylvania State 

Assn., 267 NLRB 71 (1983); and Columbia Park Assn., 289 NLRB 123 (1988). 

Although jurisdiction has been asserted over private educational institutions, local school 

boards do not come within the definition of “employer” set out in Section 2(2). Children’s

Village, 197 NLRB 1218 (1972), and Lima & Allen County Action Commission, 304 NLRB 888 

(1991). 

For a discussion of Government Contractors, see section 1-314, supra. 

1-402 Employers Subject to the Railway Labor Act 

177-1683-7500 

240-6737 

280-4000 et seq. 

280-4500 et seq. 

The Railway Labor Act, originally endowed with jurisdiction over common carriers such as 

railroads, had its coverage extended under Title II of that Act to common carriers by air engaged 

in interstate or foreign commerce. 

Because of the nature of this type of jurisdictional question, it has been the Board’s practice 

to refer the issue of jurisdiction to the National Mediation Board (NMB) in cases where the 

jurisdictional issue is doubtful. Federal Express Corp., 317 NLRB 1115 (1995). The Board 

gives “substantial deference” to NMB decisions. DHL Worldwide Express, 340 NLRB 1034 

(2003). 
JURISDICTION 19

In making its determination on whether it has jurisdiction, the NMB has a two-pronged 

jurisdictional analysis: (1) whether the work is traditionally performed by employees of air and 

rail carriers; and (2) whether a common carrier exercises direct or indirect ownership or control. 

When the NMB finds that the entity meets the definition of common carrier under the Act 

administered by it, the NLRB declines to assert jurisdiction. Compare United Parcel Service, 318 

NLRB 778 (1995), where the Board decided the jurisdiction issue itself based on a prior history 

of NLRA coverage of the employer. See also Phoenix Systems & Technologies, 321 NLRB 1166 

(1996), applying the same principle where the factual situations are similar. Accord: Spartan 

Aviation Industries, 337 NLRB 708 (2002). Where NMB has previously rejected jurisdiction, the 

burden is on the party asserting current NMB jurisdiction to establish jurisdictionally significant 

changes since the NMB decision, D & T Limousine Service, 320 NLRB 859 (1996), and United 

Parcel Service, infra. 

In Teamsters Local 295 (Emery Air Freight Corp.), 255 NLRB 1091(1981), the Board found 

jurisdiction over an air freight forwarder declining to refer the matter to NMB because NMB had 

previously declined jurisdiction over air forwarders. 

The NMB determined that it has jurisdiction over a company engaged in furnishing air travel 

service to its members (Voyager 1000, 202 NLRB 901 (1973)); a company engaged in air taxi, 

charter, and on-demand and scheduled airline services plus refueling and maintenance work 

(Skyway Aviation, 194 NLRB 555 (1972)); a company engaged in servicing and storing aircraft, 

selling fuel, providing pilots and service to an aircraft club, and running an air taxi (Mark Aero, 

Inc., 200 NLRB 304 (1972)); a company engaged in operating, servicing, and storing aircraft at a 

county airport (International Aviation Services, 189 NLRB 75 (1971)); a company engaged in 

cleaning airline terminals (Globe Aviation Services, 334 NLRB 278 (2001)); and a company 

providing rail loading services (Foreign & Domestic Car Service, 333 NLRB 96 (2001)). 

In other cases, the NMB determined that it has no jurisdiction over a company engaged solely 

in intrastate air transportation, thus not meeting the statutory definition in Section 201, Title II, of 

the Railway Labor Act (Panorama Air Tour, 204 NLRB 45 (1973)); a scheduled aircraft carrier 

between several locations in California which in a 5-year period made only one flight outside the 

State (Air California, 170 NLRB 18 (1968)); a company engaged in airport food catering 

operations (Dobbs Houses v. NLRB, 443 F.2d 1066 (6th Cir. 1971)); a company which trains 

pilots and flight engineers, maintains and services aircraft, and operates an air taxi service found 

to be “minimal” (Flight Safety, Inc., 171 NLRB 146 (1968)); a company providing such ground 

services as airline booking, cleaning, and maintenance (Evergreen Aviation Ground Logistics, 

327 NLRB 869 (1999)); a company providing sky cap services (Servicemaster Aviation Services, 

325 NLRB 786 (1999), but see Aviation Safeguards, 338 NLRB 770 (2003));and a company 

which leases and operates an airport (Trans-East Air, Inc., supra). For other NMB decisions see 

Tri-State Aero, Inc., 262 NLRB 998 (1982); Air Cargo Transport, 289 NLRB 176 (1980); and 

Eagle Aviation, 290 NLRB 1149 (1988). 

In Ogden Ground Services, 339 NLRB 869 (2003), the Board found NMB jurisdiction, 

noting that the NMB had found no NMB jurisdiction over other aspects of the Ogden operations. 

The NMB will assert jurisdiction over companies providing services to airlines where these 

companies are under the control of the airline. Compare Chelsea Catering Corp., 309 NLRB 822 

(1992), and TNT Skypack, 311 NLRB 62 (1993). 

NMB jurisdiction involves common carriers by air. For an extensive discussion of that term 

see Phoenix Systems & Technologies, supra, where, inter alia, the Board rejected the contention 

that the Air National Guard is a common carrier. 

In Teamsters Local 2000, 321 NLRB 1383 (1996), the Board found that a union representing 

RLA covered employees is itself an employer under the Act. 

For casehandling instructions, see CHM 11711. 
20 JURISDICTION 

1-403 Religious Schools 

260-6708 et seq. 

280-8200 et seq. 

In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the Supreme Court found “no 

clear expression of an affirmative intention of Congress that teachers in church-operated schools 

should be covered by the Act.” Accordingly, the Court concluded that there is no Board 

jurisdiction in these instances. The Court declined to reach “difficult and sensitive” constitutional 

questions presented by an application of Board jurisdiction. 

The Board has not limited the Catholic Bishop principle to schools operated by a religious 

organization itself. Instead, the Board has found that it is the religious purpose and the 

employees’ role in effectuating that purpose that prompted the Court’s decision. See Jewish Day 

School of Greater Washington, 283 NLRB 757 (1987). In St. Joseph’s College, 282 NLRB 65 

(1986), the Board concluded that the concerns of the Catholic Bishop court were applicable to 

colleges and universities, reversing a line of cases that had limited Catholic Bishop to elementary 

and secondary schools. Compare Livingstone College, 286 NLRB 1308 (1987), in which 

jurisdiction was found because although church-owned, the primary purpose of the college was 

secular. Although the Board in Hanna Boys Center, 284 NLRB 1080 (1987), distinguished 

between jurisdiction over teachers at religious institutions and other employees of those 

institutions, it later characterized that decision as involving “a home for troubled boys” when it 

found no jurisdiction to process a petition for an election of custodians at a parochial school. St. 

Edmund’s High School, 337 NLRB 1260 (2002). 

In University of Great Falls, 331 NLRB 1663 (2000), the Board found that the Religious 

Freedom Restoration Act (RFRA) did not bar its jurisdiction over this university. Moreover, the 

Board rejected the contention that Catholic Bishop warranted a finding of no jurisdiction. 

Instead, the Board concluded that the school did not have a “substantial religious character.” For 

a related RFRA case, see Ukiah Valley Medical Center, 332 NLRB 602 (2000). See also Carroll 

College, Inc., 345 NLRB 254 (2005), reaffirmed at 350 NLRB No. 30 (2007). 

The Catholic Bishop rule has not been applied to health care institutions where the primary 

purpose of the institutions is not religious or to a language school even though sponsored by the 

church when the school was not part of the Church religious mission, Casa Italiana Language 

School, 326 NLRB 40 (1998). 

See Health Care Institutions, section 1-315 of this chapter for discussion of religiously 

sponsored health care institutions. See also Colleges, Universities, and other Private Schools (sec. 

1-307) and Religious Organizations (sec. 1-503). 

1-500 Jurisdiction Declined for Policy Considerations 

240-0150 

In its discretion, the Board, subject to the limitation imposed by Section 14(c)(1) of the Act, 

is empowered to decline to assert jurisdiction where the impact on commerce of a labor dispute 

would not be sufficiently substantial to warrant the exercise of its jurisdiction. 

Illustrations of the administrative exercise of this discretion follow: 

1-501 Foreign Flag Ships, Foreign Nationals, and Related Situations 

240-0150-5000 

240-0175 

280-4410 

177-1675 et seq. 

The United States Supreme Court has ruled that the Act does not provide for Board 

jurisdiction over ships of foreign registration and employing alien seamen, although the ships 
JURISDICTION 21

regularly operate in American ports and are owned by a foreign corporation which is a wholly 

owned subsidiary of an American corporation. McCulloch v. Sociedad Nacional de Marineros de 

Honduras (United Fruit Co.), 372 U.S. 10 (1963). Compare NLRB v. Dredge Operators, Inc., 19 

F.3d 206 (5th Cir. 1994), where the Fifth Circuit upheld the Board’s decision to conduct an 

election on American flagships working in Hong Kong. 

A foreign government operating a commercial business within the United States presents 

different considerations. In State Bank of India, 229 NLRB 838 (1977), the Board overruled prior 

precedent and concluded that it has statutory jurisdiction over such operations and that there was 

no valid justification for declining jurisdiction. The State Bank policy has been applied to schools, 

German School of Washington, 260 NLRB 1250 (1982); to a cultural center owned and operated 

by the German government, Goethe House New York, 288 NLRB 257 (1988), and to a manufacturing plant, S. K. Products Corp., 230 NLRB 1211 (1977). Cf. C. P. Clare & Co., 191 NLRB 

589 (1971). 

In Herbert Harvey, Inc., 171 NLRB 238 (1968), and National Detective Agencies, 237 

NLRB 451 (1978), the Board found no jurisdiction over firms supplying services to the World 

Bank if the World Bank controlled their labor relations because the Bank enjoys “the privileges 

and immunities from the laws of the sovereignty in which it is located customarily extended to 

such organizations.” 

In RCA OMS, Inc., 202 NLRB 228 (1973), jurisdiction was declined in a situation involving 

employees at several sites in Greenland, particularly since Greenland is a possession of Denmark 

and governed as a county of that country. See also Benz v. Compania Naviera Hidalgo, S.A., 353 

U.S. 138 (1957). See also Offshore Express, 267 NLRB 378 (1983), in which jurisdiction was 

declined over tugboat operations for the U.S. Navy at Diego Garcia, an island in the British 

Indian Ocean Territory. Accord: Computer Sciences Raytheon, 318 NLRB 966 (1995) (American 

company doing business in Antigua, a sovereign nation, and Ascension, a possession of the 

United Kingdom), and Range Systems Emergency Support, 326 NLRB 1047 (1998) (military 

weapons testing operation in the Bahamas). Compare Asplundh Tree Expert Co., 336 NLRB 

1106 (2001), where the Board found jurisdiction over an American firm doing business outside 

the U.S. on a temporary basis. Asplundh is an unfair labor practice case where the issue was 

protected activity by employees on temporary assignment in Canada. The Third Circuit denied 

enforcement of the Asplundh decision on jurisdictional grounds. 365 F.3d 168 (2004). 

The Board reaffirmed its Asplundh holding in California Gas Transport, Inc., 347 NLRB 

1313 (2006). 

For related discussion see section 1-206, supra. 

1-502 Horseracing and Dogracing 

260-6784 

280-7940 

In accordance with past rulings, the Board, pursuant to an exercise of its rulemaking 

authority, continued to decline to exercise its jurisdiction over the horseracing and dogracing 

industries. The Board’s Rules and Regulations, Section 103.3, published in 38 F.R. 9507, April 

17, 1973. But see American Totalisator Co., 264 NLRB 1100 (1982), in which the Board asserted 

jurisdiction over an employer engaged in the manufacture, service, and repair of electronic 

equipment used in parimutuel wagering at racetracks. 

Prior to this rulemaking determination which followed existing Board policy, the Board had 

concluded that racetrack operations, while exercising some impact on interstate commerce, was 

essentially local in character, and the effect of labor disputes involving racetrack enterprises was 

not sufficiently substantial to warrant assertion of jurisdiction. Centennial Turf Club, 192 NLRB 

698 (1971); Walter A. Kelley, 139 NLRB 744 (1962); Meadow Stud, Inc., 130 NLRB 1202 
22 JURISDICTION 

(1961); Hialeah Race Course, 125 NLRB 388 (1960); Los Angeles Turf Club, 90 NLRB 20 

(1950). 

In Prairie Meadows Racetrack & Casino, 324 NLRB 550 (1997), the Board extended 

jurisdiction over casinos that were affiliated with racetracks. 

1-503 Religious Organizations 

The Board will not assert jurisdiction over employees of a religious organization where the 

work of the employees is not sufficiently related to the Employer’s commercial operations. 

Riverside Church, 309 NLRB 806 (1992); and Faith Center-WHCT Channel 18, 261 NLRB 106 

(1982). See also section 1-403 of this chapter. 

In Ecclesiastical Maintenance Services, 320 NLRB 70 (1995), the Board advised that it 

would take jurisdiction over a cleaning service owned by a Catholic Archdiocese where the 

annual revenue was $1 million and direct inflow in excess of $50,000. Because this case was an 

Advisory Opinion, the Board declined to determine the religious affiliation jurisdictional issue. 

The Board later found jurisdiction over this same employer (325 NLRB 629 (1998)) where the 

company did not have a religious mission and even if it did, its employee perform secular, not 

religious duties. See also Casa Italiana Language School, 326 NLRB 40 (1998) (Board found 

jurisdiction where language school was not part of church’s religious mission). But in St. 

Edmund’s High School, 337 NLRB 1260 (2002), the Board distinquished Ecclesiastical

Maintenance on the grounds that the school at which the custodians worked was closely 

integrated to the mission of the church. In University of Great Falls, 331 NLRB 1663 (2000), the 

Board rejected the contention of a religiously sponsored university, that exercise of Board 

jurisdiction would violate the Religious Freedom Restoration Act. See also Carroll College, Inc., 

345 NLRB 254 (2005), reaffirmed at 350 NLRB No. 30 (2007). Accord: Ukiah Valley Medical 

Center, 332 NLRB 602 (2000), with respect to a hospital operated by the Seventh Day Adventist 

Church. 

See also section 1-403 (Religious Schools) and section 1-308 (Communication Systems). 

1-504 National Security 

In Firstline Transportation Security, 347 NLRB 447 (2006), the Board rejected a contention 

that for national security reasons it should decline to exert jurisdiction over a private airport 

screening company that does airport screening of passengers at the Kansas City International 

Airport. 

The case contains a collection of the Board’s cases decided during World War II where the 

Board was confronted with national security contentions that it should decline jurisdiction. 

See also section 1-204. 

1-600 Rules of Application 

1-601 Advisory Opinions 

240-2500 et seq. 

Section 102.98 of the Board’s Rules and Regulations provides a procedure by which a State 

or Territorial agency or court may, in a case pending before the agency or court, request an 

advisory opinion (AO) from the Board as to whether the Board would decline to assert 

jurisdiction (1) on the basis of its current standards (1) over an employer involved in a case 

currently pending before the agency or court or (2) because the “employing enterprise” is not 

within the jurisdiction of the Act. 

Earlier iterations of the rule permitted parties to request an advisory opinion but only as to 

current standards. That provision was repealed. Now the Board will only issue an opinion to the 

court or agency and it will consider both its current standards and whether an employer is a 

“political subdivision” or is otherwise exempt from the Board’s statutory jurisdiction. See St. 

Paul Ramsey Medical Center, 291 NLRB 755 (1988); University of Vermont, 297 NLRB 291 
JURISDICTION 23

(1989); and Correctional Medical Systems, 299 NLRB 654 (1990). The Board will not give an 

advisory opinion on a preemption issue even at the request of a State court. Townley Sweeping 

Service, 339 NLRB 301 (2003). 

Petitions filed under Section 102.98 require that the State agency or the parties provide the 

record information described in Section 102.99. W.M.P. Security Service Co., 309 NLRB 734 

(1992). See also De Coster Egg Farms, 325 NLRB 350 (1998), when a petition was dismissed 

because the the State agency had no evidence nor made any factual determination. 

The Board will generally not provide the requested advice if there is either a pending 

representation case—Humboldt General Hospital, 297 NLRB 258 (1989), or unfair labor 

practice case—American Lung Assn., 296 NLRB 12 (1989), unless it can be shown that there is a 

need for a more expeditious determination than the normal case procedures will provide. This 

rule applies even when the pending case and the advisory opinion involve different locations if 

the pending case would resolve the jurisdiction issue. Inter-Neighborhood Housing Corp., 311 

NLRB 1342 (1993). 

In Child & Family Service, 315 NLRB 13 (1994), the Board found that a scheduled hearing 

before the State board provided sufficient warrant for expeditious determination. 

A determination that the Board has jurisdiction over the employer under Section 102.98(a) is 

not a determination that the Board would certify the union in that matter. See, e.g., Carroll 

Associates, 300 NLRB 698 (1990). 

The Board will not give an advisory opinion where there are factual disputes about 

jurisdiction. See Brooklyn Bureau of Community Service, 320 NLRB 1148 (1996); and De 

Coster Egg Farms, supra. 

See CHM section 11709 for Regional Office procedures on the filing of an advisory opinion 

petition. 

1-602 Declaratory Orders 

240-2900 

This is a little used procedure that is available only to the General Counsel. When there is an 

unfair labor practice charge and representation petition involving the same employer, and the 

General Counsel has a question about Board jurisdiction a petition for a declaratory order may be 

filed with the Board. See the Board’s Rules and Regulations, Section 102.105 and Trico Disposal 

Service, 191 NLRB 104 (1971). The Board will not issue a declaratory order where the facts are 

in dispute. Latin Business Assn., 322 NLRB 1026 (1997). 

These procedures for a declaratory order under Section 102.105 are to be distinguished from 

the procedures available under 5 U.S.C. § 554(e). See Wilkes-Barre Publishing Co., 245 NLRB 

929 (1979); and Television Artists AFTRA, 222 NLRB 197 (1976). 

See CHM section 11710 for Regional Office procedures for a Declaratory Order under the 

Board’s Rules. 

1-603 Tropicana Rule 

240-0167-6700 

260-3320-8700 

Under this rule, in any case where an employer refuses, on reasonable request by a Board 

agent, to provide information relevant to the Board’s jurisdictional determination, jurisdiction 

will be asserted without regard to whether any jurisdictional standard is shown to be satisfied, if 

the record at a hearing establishes that the Board has statutory jurisdiction. Tropicana Products, 

122 NLRB 121, 123 (1959); Major League Rodeo, Inc., 246 NLRB 743 (1979); and Continental 

Packaging Corp., 327 NLRB 400 (1998). This principle has been applied also in situations where 

the employer was unable to produce relevant information and subpoenaed drivers failed to 
24 JURISDICTION 

respond and testify or gave incredible testimony. Supreme, Victory & Deluxe Cab Co., 160 

NLRB 140 (1966). 

The Tropicana rule is applicable in unfair labor practice cases. J.E.L. Painting & Decorating, 

303 NLRB 1029 (1991); Bell Glass Co., 293 NLRB 700 (1989); and Strand Theatre, 235 NLRB 

1500 (1978). 

For discussion of procedures see CHM section 11704. 

1-604 Totality of Operations 

260-3320-0137 

It is the totality of an employer’s operations which determines whether jurisdiction should be 

asserted. Siemons Mailing Service, 122 NLRB 81, 84 (1959); see also T. H. Rogers Lumber Co., 

117 NLRB 1732 (1957). 

In Bloch Enterprises, 172 NLRB 1678 (1968), the Board combined the revenues of two 

operations because of their close relationship even though it found the two were not a single 

employer. 

1-605 Integrated Operations 

260-3360-3300 et seq. 

If the enterprise is integrated, jurisdiction is exercised when the activities are diverse (Potato 

Growers Cooperative Co., 115 NLRB 1281 (1956); Country Lane Food Store, 142 NLRB 683 

(1963)), as well as when they are of like nature (Kostel Shoe Co., 124 NLRB 651, 654 (1959)). 

1-606 Computation of Jurisdictional Amount 

260-2300 et seq. 

The dollar volumes are expressed in annual terms, computation being based on the most 

recent calendar or fiscal year or on the figures of the immediately preceding 12-month period. 

The inclusion in the computation of unusual or nonrecurrent business transactions which brought 

the employer within the standards is not a ground for declining to assert jurisdiction (Imperial 

Rice Mills, 110 NLRB 612 (1955)), except that jurisdiction will not be asserted on the basis of 

nonrecurrent capital expenditures alone (Magic Mountain, Inc., 123 NLRB 1170 (1959)). The 

fact that the employer does not have title to the goods does not exclude those goods from the 

computation of gross volume. Pit Stop Markets, 279 NLRB 1124 (1986). 

If no annual figures are available, figures for a period of less than 1 year may be projected to 

obtain an annual figure. Carpenter Baking Co., 112 NLRB 288 (1955). Projections can include 

income from the past year projections of income for new business or combinations where both 

established and new businesses are involved. Pet Inn’s Grooming Shoppe, 220 NLRB 828 

(1975). The Board will take into account the experience of the predecessor in projecting what the 

revenues of a successor will be. See discussion in Northgate Cinema, Inc., 233 NLRB 586 

(1977). 

In Hickory Farms of Ohio, 180 NLRB 755 (1970), in determining how much annual income 

the employer would have derived from his operations but for picketing, the Board used the 

revenues received by it during the 12-month period preceding the picketing. It reiterated the rule 

that a drop in volume of business as a result of picketing cannot be taken into consideration as a 

factor in defeasance of the Board’s jurisdiction. (Cox’s Food Center, 164 NLRB 95 (1967); see 

also Hygienic Sanitation Co., 118 NLRB 1030 (1957); Carpenters District Council (Fairmount 

Construction), 95 NLRB 969 (1951)). But the Board will not presume that an employer will have 

met the Board’s jurisdictional standards but for picketing which began on the employer’s first day 

in business. Stage Employees IATSE Local 330 (Western Hills Theatres), 204 NLRB 1057 

(1973). 

For another example of projection, see Powerful Gas No. 1, 181 NLRB 104 (1970). 
JURISDICTION 25

Where the employer performs services on goods owned by another, it is the value of the 

employer’s sales and services, and not the value of the goods worked on, which is considered in 

determining whether to assert jurisdiction. Devco Diamond Rings, 146 NLRB 556 (1964). 

1-607 Relitigation of Jurisdiction 

For discussion of this subject see “Finality of Decisions,” section 2-400, infra. 
26 JURISDICTION 
2. REGIONAL DIRECTORS’ DECISIONMAKING 

AUTHORITY IN REPRESENTATION CASES 

A major milestone in the history of the National Labor Relations Board was the 1959 change 

in the Act which permitted the Board to delegate its decisionmaking authority in representation 

cases to the Regional Directors. This delegation, its scope, specific powers, the finality of 

Regional Directors’ decisions, and the procedure for transfer and review to the Board are treated 

here. 

2-100 Statutory and Administrative Delegation 

188-2000 

188-6067-6050 

393-0167-5000 

The National Labor Relations Act was amended on September 14, 1959, by the addition of 

the following language in Section 3(b): 

The Board is also authorized to delegate to its regional directors its powers under section 9 

to determine the unit appropriate for the purpose of collective bargaining, to investigate and 

provide for hearings, and determine whether a question of representation exists, and to direct 

an election or take a secret ballot under subsection (c) or (e) of section 9 and certify the 

results thereof, except that upon the filing of a request therefor with the Board by any 

interested person, the Board may review any action of a regional director delegated to him 

under this paragraph, but such a review shall not, unless specifically ordered by the Board, 

operate as a stay of any action taken by the regional director. 

On May 4, 1961, the Board published in the Federal Register a statement describing the 

delegation to the Regional Directors pursuant to the amendment of Section 3(b). This grant of 

authority became effective with respect to any petition filed under subsection (c) or (e) of Section 

9 of the Act on or after May 15, 1961. The principal effect of the delegation was to permit 

Regional Directors to decide representation cases. This had previously been done only by the 

Board in Washington. 

The grant of authority under the amendment to Section 3(b) of the Act was initially 

challenged in Wallace Shops, 133 NLRB 36 (1961). It was contended in that case that the Board, 

in delegating its Section 9 powers to its Regional Directors, had exceeded the authority vested in 

it by Section 3(b) of the Act, and that, in amending its Rules and Regulations and Statements of 

Procedure, the Board failed to conform to the requirements of the Administrative Procedures Act, 

5 U.S.C.A § 1001. Rejecting both contentions, the Board held: 

1. The task of interpreting the Act is a function vested in the Board, with power of 

review in the courts, and the Board did not exceed the authority granted to it by the 

amendments to Section 3(b). 

2. The delegation which the amendments to the Rules and Regulations and Statements 

of Procedure were designed to implement involves only the Board’s powers over 

proceedings for the certification of employee representatives. Section 5 of the 

Administrative Procedure Act, 5 U.S.C.A. § 1004, by its terms expressly exempts such 

proceedings from the provisions of Sections 5, 7, and 8, which deal with adjudications, 

hearings, and decisions. 

3. Section 4(c) of the Administrative Procedure Act applies only to substantive rules, 

and, since these amendments were procedural and organizational, Section 4(c) did not apply. 

27
REGIONAL DIRECTORS’ DECISIONMAKING AUTHORITY IN REPRESENTATION CASES 

28

A similar challenge, in the form of contentions that the delegation of decisionmaking 

authority to the Regional Directors in representation cases was unconstitutional and Section 3(b) 

as amended in this respect and the Board’s Rules and Regulations were in conflict with the 

Administrative Procedure Act, was rejected by the Board in Weyerhaeuser Co., 142 NLRB 702 

(1963), citing Wallace Shops, supra. 

Acting Regional Directors have the same authority as the Regional Directors in whose stead 

they are designated to serve. Korb’s Trading Post, 232 NLRB 67, 68 fn. 3 (1977). 

A State court sustained the validity of the Board’s delegation of authority. In Pennsylvania 

Labor Relations Board v. Butz, 411 Pa. 360, 192 A.2d 707 (1963), the lower court held that the 

National Labor Relations Board itself, rather than a Regional Director, must make the decision to 

decline jurisdiction. The Supreme Court of Pennsylvania reversed the lower court, at 192 A.2d 

7115: 

The National Board, with statutory authority, properly delegated to the Director its authority 

to decline jurisdiction and, the Director having made a final determination in accordance 

with proper procedure, the federal jurisdiction over the instant labor matter was suspended. 

2-200 Scope of Authority 

378-0140 

393-6081-2000 et seq. 

393-6034-1400 

Since the effective date of the delegation, the Regional Directors have exercised the authority 

contemplated by the statutory amendment to decide whether a question concerning representation 

exists, to determine the appropriate bargaining unit, and to direct elections to determine whether 

employees wish union representation for collective-bargaining purposes. They also rule on 

petitions to rescind union-security authorizations and on motions to clarify, amend, or rescind a 

certification resulting from a petition filed after the date the delegation went into effect. Such 

action by the Regional Director is final and binding on the parties, subject to a review procedure. 

The powers granted to Regional Directors include the issuance of such decisions, orders, 

rulings, directions, and certifications as are necessary to process any petition. Thus, they may 

dispose of petitions by administrative action, by formal hearing and decision, or by stipulated 

election agreements; pass on rulings made at hearings, including motions to dismiss petitions, and 

on requests for extensions for filing of briefs beyond the time granted by the hearing officer; rule 

with respect to showing of interest, waivers, disclaimers, withdrawals, or current charges; and 

entertain motions for reconsideration and oral argument. See Pentagon Plaza, 143 NLRB 1280 

(1963), which makes clear that, under the delegation of decisionmaking authority in 

representation cases, Regional Directors have the same authority as the Board, in cases which 

they decide, to reconsider their decisions. See also Air Lacarte, Florida, Inc., 212 NLRB 764 

(1974), in which the Board affirmed the Regional Director’s reconsideration of a representation 

case based on new evidence. 

A Regional Director may also consider alternative units when a petitioner expresses a 

willingness to proceed to an election in any unit found appropriate. Acme Markets, Inc., 328 

NLRB 1208 (1999). 

Election arrangements, e.g., dates and places of elections, mail ballots etc., are within the 

discretion of the Regional Director. Manchester Knitted Fashions, 108 NLRB 1366 (1954); 

Halliburton Services, 265 NLRB 1154 (1982); and Odibrecht Contractor of Florida, 326 NLRB 

33 (1998). 

In T & L Leasing, 318 NLRB 324 (1995), the Board held that Regional Directors must, 

absent special circumstances, honor the terms of a Stipulated Election Agreement. 

The Board’s Rules and Regulations were amended to effectuate the terms of the 1961 grant of 

authority to the Regional Directors. Subpart C, Sections 102.60 through 102.72, inclusive, details 
REGIONAL DIRECTORS’ DECISIONMAKING AUTHORITY IN REPRESENTATION CASES 

29

the “procedure under Section 9(c) of the Act for the determination of questions concerning 

representation of employees and for clarification of bargaining units and for amendment of 

certifications under Section 9(b) of the Act.’’ See also Rules and Regulations, Sections 

102.77(b), 102.80(a), 102.85, and 102.88. The Board’s Statements of Procedure, Sections 

101.21. 101.22, 101.23, 101.28, and 101.30 were similarly revised. 

2-300 Other Specific Powers Under the Delegation 

188-8067 

393-6081-2000 et seq. 

393-7077-2000 et seq. 

393-7022-1700 

In the course of the normal decisional process, the Board has from time to time spelled out 

other specific forms of authority which may be exercised by the Regional Directors under the 

delegation. Some of these are: 

1. The question of whether a continuance is to be granted and its extent is a matter within the 

sound discretion of the Regional Director. See Power Equipment Co., 135 NLRB 945 fn. 1 

(1962), for a full discussion. 

2. The jurisdiction of the Regional Director in making postelection investigations is not 

limited to the specific issues raised by the parties. Carter-Lee Lumber Co., 119 NLRB 1374, 

1376 (1958). 

3. The Regional Director’s staff is merely carrying out its duties when, in connection with 

having a petitioner withdraw its single-employer petition, it tells the petitioner of the existence of 

a multiemployer bargaining history involving the named employers. This is not improper 

assistance to the petitioning union. Dittler Bros., Inc., 132 NLRB 444 (1961); see Statements of 

Procedure, Section 101.18. 

4. When the Regional Director has consolidated a complaint case and an objections-toelection case and the consolidated proceeding comes to the Board for review, the Board may rule 

on the complaint, but sever the representation case and remand it to the Regional Director. See, 

for example, Collins & Aikman Corp., 143 NLRB 15 (1963). 

5. A Regional Director has delegated authority to deny a request for enforcement of a 

subpoena. Such a request was therefore properly referred by the hearing officer to the Regional 

Director rather than the Board. Northern States Beef, 311 NLRB 1056 (1993). 

6. A Regional Director does not have authority to vary the terms of a Stipulated Election 

Agreement, absent special circumstances. T & L Leasing, supra. 

2-400 Finality of Decisions 

393-6081-4067 

596-0175-5025 et seq. 

After the delegation of decisional authority in representation cases to the Regional Directors 

became effective, the question was raised whether to continue the policy in existence at that time 

that, in the absence of new or previously unavailable evidence, the Board will decline to 

reconsider matters determined in a prior representation case in a subsequent refusal-to-bargain 

unfair labor practice proceeding. The Board held that the policy will continue to govern under 

the delegation. Thus, where a representation petition had been processed by the Regional 

Director under Section 3(b) and the Board had denied a request for review of the decision and 

direction of election, relitigation of the issues raised in the request for review was not permitted in 

a later unfair labor practice proceeding involving an alleged violation of Section 8(a)(5). 

Mountain States Telephone Co., 136 NLRB 1612, 1613 (1962). In Hafadai Beach Hotel, 321 

NLRB 116 (1996), the Board noted that this was not limited to refusal to bargain cases. In 
REGIONAL DIRECTORS’ DECISIONMAKING AUTHORITY IN REPRESENTATION CASES 

30

Hafadai, supra, the Board precluded the relitigation of jurisdiction. See also I.O.O.F. Home of 

Ohio, Inc., 322 NLRB 921 (1997), where the issue was supervisory status. Accord: Premier 

Living Center, 331 NLRB 123 fn. 5 (2000). 

Compare Union SquareTheatre Management, 326 NLRB 70 (1998), relitigation permitted of 

employee status of technical directors in a subsequent 8(a)(l) and (3) case. Later affirmed at 327 

NLRB 618 (1999). 

Section 102.67(f) of the Rules and Regulations, provides in part: “Denial of a request for 

review shall constitute an affirmance of the Regional Director’s action which shall also preclude 

relitigating any such issues in any related subsequent unfair labor practice proceeding.” 

The Board’s practice was affirmed by the Supreme Court in Magnesium Casting Co. v. 

NLRB, 401 U.S. 137 (1971). The Court concluded that the 3(b) amendment was enacted for the 

purpose of expediting the final disposition of the Board’s caseload, and this delegation of 

authority reflects the considered judgment of Congress that the Regional Directors “have an 

expertise concerning unit determination” sufficiently comparable to the Board’s expertise and 

that such determinations may be left primarily to the Regional Directors, subject to the Board’s 

discretionary review. 

A Regional Director’s finding in an “R” case can have “persuasive relevance” in an unfair 

labor practice case subject however to reconsideration and additional evidence. Dole Fresh 

Vegetables, 339 NLRB 785 (2003). 

When an agreement for a consent election provides that the determinations of the Board’s 

Regional Director shall be final and binding, the courts have consistently held that “such a 

determination is conclusive and cannot thereafter be questioned unless the Regional Director acts 

arbitrarily or capriciously or not in line with Board policy or the requirements of the Act.’’ NLRB 

v. United Dairies, 337 F.2d 283, 286 (10th Cir. 1964). In the absence of fraud, misconduct, or 

gross mistake, the Regional Director’s decision is final, even though the Board might have 

reached a different conclusion in the first instance. General Tube Co., 141 NLRB 441, 445 

(1963). These cases, it should be noted, were decided after the effective date of the delegation. 

The Board accords finality to a Regional Director’s decision where the Board Members are 

equally divided and there is no majority to grant review. United Health Care Services, 326 

NLRB 1379 (1998), and Rapera, Inc., 333 NLRB 1287 (2001).

In a representation proceeding, the Regional Director’s consent to the withdrawal of a 

representation petition, on the ground that the exercise of jurisdiction by the National Labor 

Relations Board would not effectuate the policies of the National Labor Relations Act, constitutes 

a sufficient declination of jurisdiction to permit a State board to assume jurisdiction. 

Pennsylvania Labor Relations Board v. Butz, supra, 192 A.2d 707, 714. 

2-500 Transfer and Review 

393-6048 

393-6081-4000 et seq. 

The Regional Director may transfer a case to the Board for initial decision at any time before 

decision. This may occur prior to the hearing, during the hearing, or after the hearing. Whether a 

particular case should be transferred is a matter to be determined by the Regional Director, 

although Board policy is to discourage these transfers. It is also within the discretion of the 

Regional Director to inform the parties of the reason for transferral. 

Parties to a representation case may request the Board to review any action of the Regional 

Director taken pursuant to the authority under Section 3(b). Neither the filing of a request for 

review, nor the granting of review, will stay the Regional Director’s decision, unless otherwise 

ordered by the Board. Absent an order from the Board, the ballots in question will be impounded. 

See Section 102.67(b) of the Board’s Rules. 
REGIONAL DIRECTORS’ DECISIONMAKING AUTHORITY IN REPRESENTATION CASES 

31

Review of actions of Regional Directors may be sought only in any of the following 

situations: 

1. Where a substantial question of law or policy is raised because of the absence of, or 

departure from, officially reported precedent. 

2. Where a Regional Director’s decision on a substantial factual issue is clearly 

erroneous, and such error prejudicially affects the rights of a party. 

3. Where the conduct of a hearing in an election case or any ruling made in connection 

with the proceeding has resulted in prejudicial error. 

4. Where there are compelling reasons for reconsideration of an important Board rule or 

policy. 

With respect to the second ground, and other grounds where appropriate, the request must 

contain a summary of all evidence or rulings bearing on the issues, together with page citations 

from the transcript and a summary of the argument. But such request may not raise any issue or 

allege any facts not timely presented to the Regional Director. 

Failure to request review precludes the relitigation, in any related subsequent unfair labor 

practice proceeding, of any issue which was, or could have been, raised in the representation 

proceeding. Denial of a request for review constitutes an affirmance of the Regional Director’s 

action; this also precludes relitigation of any such issues in any related subsequent unfair labor 

practice proceeding. 

See the Board’s Rules and Regulations, Section 102.67. 

* * * * 

The reader can find more complete information on related representation matters as follows: 

Election Procedures—Chapter 22 

Conduct of Elections—Section 24-400 

Objection Procedures—Section 24-100 
REGIONAL DIRECTORS’ DECISIONMAKING AUTHORITY IN REPRESENTATION CASES 

32
3. INITIAL REPRESENTATION CASE PROCEDURES 

Having considered the general authority of the Regional Directors of the Board under Section 

3(b), pursuant to the 1959 amendments to the Act, we follow with a capsule summary of 

representation case procedures as distinguished from substantive law, beginning with the filing of 

the petition through the decision by the Regional Director or the Board. 

Sections 102.60 through 102.82 of the Board’s Rules and Regulations, and Sections 101.17 

through 101.21 of the Statements of Procedure describe these procedural steps. They may also be 

found, in greater detail, in the NLRB Casehandling Manual (CHM) (Part Two), Representation, 

sections 11000 through 11284. 

3-100 Filing of Petition and Notification 

316-6700 et seq. 

393-1000 et seq. 

393-6007-1700 to 8700 

When a petition is filed with the Regional Office, the petitioner receives a written 

acknowledgement of the filing, and the employer and all other interested parties are given written 

notification, including a description of the bargaining unit alleged to be appropriate and the name 

of the Board agent to whom the case has been assigned. The types of petitions are discussed, 

infra, at chapter 4. 

The following are regarded as interested parties: 

a. The petitioner; 

b. The employer; 

c. The owner of a leased department in a store; 

d. Any individual or labor organization named in the petition as having an interest or as 

being a party to a collective-bargaining contract, current or recently expired, covering any 

of the employees involved; 

e. Any labor organization which has notified the Regional Office by letter within the 

prior 6 months that it represents the employees involved or is actively campaigning among 

them; and 

f. Any labor organization whose name appears as an interested party in any prior case 

involving the same employees which was closed within recent years. 

An intervenor was held to have had notice of the petition prior to the date it executed a 

Stipulated Election Agreement. Seven-Up/Royal Crown Bottling Cos., 323 NLRB 579 (1997). 

See section 9-550 for discussion of the period for filing a petition. 

3-200 Submission of Showing of Interest 

324-0100 et seq. 

578-8075-6056 

If the petitioner has not already done so, proof of interest should be submitted within 48 hours 

after filing, but in no event later than the last day on which the petition may be timely filed. Note 

that when a petition is filed involving the same employer who is a party in a pending 8(b)(7) 

unfair labor practice charge, the petitioner is not required to allege that a claim has been made on 

the employer or that the union represents a substantial number of employees. See CHM sections 

11020–11035 and chapter 5, infra, for more complete information. 

33
INITIAL REPRESENTATION CASE PROCEDURES 34

3-300 Information Requested of Parties 

R/R 102.61(a) and (b) 

378-2878 

Employers are requested to submit commerce data, a list of employees in the proposed unit, 

and, when appropriate, information concerning striking employees eligible to vote under Section 

9(c)(3). Employers are also advised that, should an election be agreed to or directed, a list of 

names and addresses of the eligible voters must be filed with the Regional Director by the 

employer within 7 days after the agreement or direction. This list (Excelsior list) is in addition to 

the proposed unit list (see specific discussion at secs. 23-510 and 24-324, infra). 

All parties are requested to submit copies of any presently existing or recently expired 

contracts covering any of the employees as well as pertinent correspondence, and to notify the 

Board agent of any other interested parties entitled to be advised of the proceeding. (See CHM 

sec.11009, for the contents of the initial letter to the employer in an RC case.) 

3-400 Preliminary Investigation 

393-6014 

The Board agent assigned to the case examines the petition for sufficiency, determines the 

adequacy of the showing of interest, and then contacts the parties and requests the submission of 

all other pertinent data. (See CHM secs. 11010.1 and 11010.2, for the steps taken by the Board 

agent in RC, RD, and RM cases, respectively.) 

3-500 Dismissal or Withdrawal of Petition 

393-6027 et seq. 

393-6034 et seq. 

393-6081 

When it is readily apparent that no question concerning representation exists, the showing of 

interest is inadequate, the unit sought is inappropriate, the petition is not timely filed, or the 

petition does not meet the test of sufficiency for any other reason, the petitioner is requested to 

withdraw the petition. If this is not done within a reasonable time, the petition is dismissed. (For 

appeals from such dismissals, see CHM secs. 11100–11104.) See also section 8–200, infra.

3-600 Amendments to Petition 

393-6021 et seq. 

The petitioner may add to or delete from the original or amended petition and, when this 

occurs, all interested parties are notified of the changes. See section 9-520, infra, for additional 

discussion of amending the petition. 

3-700 Consent-Election Agreements 

393-6054 et seq. 

Consent-election agreements obviate the necessity for a hearing. There are two types of 

consent-election agreements: (1) Agreement for Consent Election (Form NLRB-651), (2) 

Stipulated-Election Agreement, and (3) Full Consent Agreement (Form NLRB-652). Under 

either, the parties agree that an election be conducted by the Regional Director. The basic 

difference between the two is that under a consent agreement, questions which arise in connection 

with the election at the postelection stage are determined by the Regional Director, but under a 

stipulated agreement these questions are determined by the Board. 
INITIAL REPRESENTATION CASE PROCEDURES 35

3-800 Notice of Hearing and Hearings 

393-6068-2000 

If the Regional Director has reason to believe that a question concerning representation 

exists, and if an election agreement is not obtained, a notice of hearing is issued (Form NLRB852). In such circumstances a hearing is mandatory. Angelica Healthcare Services, 315 NLRB 

1320 (1995). Compare Mueller Energy Services, 323 NLRB 785 (1997), where the Regional 

Director did not have reasonable cause and Premier Living Center, 331 NLRB 123 fn. 9 (2000) 

(no hearing required in a UC case). 

All parties must receive at least 5 days’ notice of hearing. Croft Metals, Inc., 337 NLRB 688 

(2002).

A Regional Director may use a Notice to Show Cause procedure to assist in expediting a 

representation case but that procedure cannot be a substitute for a hearing. Amerihealth 

Inc./Amerihealth HMO, 326 NLRB 509 (1998). 

Ordinarily a hearing will be conducted even if the issue is one that the Board is reconsidering. 

But see Pratt Institute, 339 NLRB 971 (2003). 

3-810 Nature and Objective 

393-6068-0100 

The hearing in a representation proceeding is a formal proceeding designed to elicit 

information on the basis of which the Board or its agents can make a determination under Section 

9 of the Act. The hearing is investigatory, not adversary. Parties have a right to present relevant 

evidence on the issues presented by the petition and the Board has ruled that it was an error to 

refuse the introduction of evidence in those circumstances. Barre National, Inc., 316 NLRB 877 

(1995). In North Manchester Foundry, Inc., 328 NLRB 372 (1999), the Board held that it was 

improper for a hearing officer to exclude testimony about a group of contested employees 

because of the small size of the group. See section 3-840 on the obligation of parties to take 

positions on issues. See section 22–118 (a) for a discussion of subpoenas in representation cases. 

3-820 Hearing Officer’s Responsibilities 

393-6068 et seq. 

The hearing officer is an agent of the Board who has an affirmative obligation to develop a 

full and complete record and may, if necessary to achieve this purpose, call and question 

witnesses, cross-examine, and require the introduction of all relevant documents. See Mariah, 

Inc., 322 NLRB 586 fn. 1 (1996). Once on notice of a substantial issue, the hearing officer is 

obliged to conduct inquiry. Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999). The hearing 

officer is, of course, required to be impartial in rulings and in conduct. For a discussion of 

hearing officer discretion to seek enforcement of subpoenas see section 3–840. For discussion of 

burdens of proof in representation cases see NLRB Hearing Officers Guide. 

3-830 Intervention 

393-2001-2083 

The hearing officer considers all motions to intervene. Motions for intervention are denied if 

filed by “employees’’ or “employees’ committees’’ not purporting to be labor organizations, or 

by an organization which had been directed to be disestablished by a final Board order. Those 

filed by labor organizations within the meaning of the Act, which show an interest in the 

employees concerned, are granted. A party permitted intervention may thereafter participate fully 

in the hearing, although the extent to which an intervenor may block stipulations depends on its 

showing of interest. See also Peco, Inc., 204 NLRB 1036 (1973), in which employees opposed to 

amendment were permitted to intervene in AC hearing. (For additional discussion on 

intervention, see sec. 5–640, infra.) 
INITIAL REPRESENTATION CASE PROCEDURES 36

3-840 Conduct of Hearing 

393-6068-6067-1700 through 8300 

393-6075 

Evidence is received either in the form of sworn oral testimony or stipulations. Examination 

and cross-examination of witnesses are permitted and parties are expected to take positions on the 

matters raised at the hearing. See Seattle Opera Assn., 323 NLRB 641 (1997); and Mariah, Inc.,

322 NLRB 586 fn. 1 (1996). Failure to do so may limit the party’s right to present evidence or to 

utilize the challenge procedure on the disputed classification if there is a presumption in the law 

with respect to that classification. Bennett Industries, 313 NLRB 1363 (1994). But in Allen 

Health Care Services, 332 NLRB 1308 (2000), the Board distinguished Bennett Industries on a 

unit issue where there was no presumption with respect to that unit. In those circumstances, the 

Board directed that the hearing officer take testimony necessary for the Board to make a unit 

determination. In doing so, the Board noted its obligation under Section 9(b) to “decide in each 

case . . . the unit appropriate.” 

In Marian Manor for the Aged, 333 NLRB 1084 (2001), the Board affirmed a hearing officer 

who refused to seek enforcement of a subpoena in a preelection hearing. In doing so the Board 

found the evidence sought was relevant and necessary but noted that there was no showing that 

the information could not be obtained from the employer’s own employees and that preelection 

hearings are investigatory, do not permit credibility resolutions and require expeditious handling. 

Where foreign language witnesses are required for the hearing, the Board secures the 

interpreter and pays the costs. Solar International Shipping Agency, 327 NLRB 369 (1998). 

Compare George Joseph Orchard Siding, Inc., 325 NLRB 252 (1998), for unfair labor practice 

hearing policy. 

Sequestration does not apply in pre-election representation cases. Fall River Savings Bank, 

246 NLRB 831 fn. 4 (1979). 

A petitioner is permitted to amend the petition during the hearing to reflect any changes in 

position after hearing the testimony. The other parties are likewise permitted to reflect changes in 

position. Withdrawal requests are also considered. Opportunity for oral argument is given to any 

party requesting it. The hearing officer refers to the Regional Director or to the Board for ruling 

all motions to dismiss, to transfer the case to the Board, or for oral argument before the Regional 

Director or the Board. 

3-850 Hearing Officer’s Report 

393-7055 

The hearing officer, after the close of the hearing, submits a brief report to the Regional 

Director, or to the Board in cases in which an order transferring the case to the Board has been 

issued prior to the preparation of the report. 

3-860 Briefs 

393-7066-2000 through 9000 

Section 102.67(a) of the Board’s Rules and Regulations provides that any party desiring to 

submit a brief to the Regional Director shall file an original and one copy thereof within 7 days 

after the close of the hearing, with the proviso that, before the close of the hearing and for good 

cause, the hearing officer may grant an extension of time not to exceed an additional 14 days. 

Requests for additional time, not made to the hearing officer, must be made to the Regional 

Director in writing. CHM section 11244.2, notes that “Authority to grant extensions of time to 

file briefs is discretionary with the hearing officer,” and not automatic. 
INITIAL REPRESENTATION CASE PROCEDURES 37

3-870 Posthearing Matters Prior to Decision 

393-6068-7000 

393-6068-6067-(3300) 

393-6054-0100 through 8200 

The transcript of the hearing may be corrected, if necessary. If the matter is pending before 

the Board and an unfair labor practice charge is filed, the Board is notified of the filing. All 

motions, or answers to motions, filed after the close of the hearing are filed directly with the 

Regional Director, or if before the Board with the latter. A consent-election agreement may be 

entered even after hearing. (For withdrawal of petitions or disclaimer of interest, see chapter 8, 

infra.) 

3-880 Regional Director’s or Board Decision and Request for Review 

393-6081-2000 et seq. 

393-6081-6000 et seq. 

The Regional Director or, if the case is transferred to the Board in Washington, the Board 

may dismiss a petition, remand it for further hearing, or direct an election. 

393-7077-4000 et seq. 

Sections 102.67(b) and (c) provides for requests for review of Regional Director’s decisions. 

Where a party is challenging a Regional Director’s factual findings, its request for review should 

be accompanied by documentary evidence. Aramark Sports & Entertainment Services, 327 

NLRB 47 (1998). The filing of such a request or the grant of review does not, “unless otherwise 

ordered by the Board,” operate as a stay of any action taken or directed by the Regional Director 

and the Regional Director may schedule and conduct the election. In that event, the voters whose 

eligibility is being questioned in the request for review will be challenged and their ballots 

impounded. 

The Second Circuit has held that in some circumstances a substantial change in the 

bargaining unit by the Board on review may affect the validity of the election. See Hamilton Test 

Systems v. NLRB, 743 F.2d 136 (2d Cir. 1984); NLRB v. Lorimar Productions, 771 F.2d 1294 

(9th Cir. 1985); and NLRB v. Parson School of Design, 793 F.2d 503 (2d Cir. 1986). All three 

cases are discussed by the Board in Toledo Hospital, 315 NLRB 594 (1994); and Morgan Manor 

Nursing & Rehabilitation Center, 319 NLRB 552 (1995). The Board has held that its Sonotone 

procedures (infra at sec. 21-400) for professional and nonprofessional elections are not implicated 

by these court rulings. Pratt & Whitney, 327 NLRB 1213 (1999). See also Northeast Iowa 

Telephone Co., 341 NLRB 670 (2004), in which a divided Board distinguished these cases from 

the “vote and impound procedures of the Board.” 

The Board will sometimes permit a disputed classification or an individual to vote under 

challenge rather than seeking to resolve the question on review. Usually, the number of such 

challenges will not exceed more than 10–12 percent of the unit. See Silver Cross Hospital, 350 

NLRB No. 11 fn. 10 (2007). 

In those situations in which the Board, on review, decides to vote the contested classification 

or person under challenge, any ensuing certification will note that the position is neither included 

nor excluded. Orson E. Pontiac-GMC Trucks, Inc., 328 NLRB 688 (1999). 

In a variation of this issue, the Board ordered a new election when it determined on review of 

the Regional Director’s decision that the Director had incorrectly found that two healthcare 

institutions were a single employer. Because an election had already been held on the premise 

that the companies were a single employer, the Board found that the ballot misidentified the 

employer and the unit and therefore a second election was warranted. Mercy General Partners, 

331 NLRB 783 (2000). 
INITIAL REPRESENTATION CASE PROCEDURES 38

A Board decision will ordinarily apply “to all pending cases in whatever stage.” Aramark 

School Services, 337 NLRB 1063 (2002). 

For discussion of the finality of Regional Directors decisions and the effect of the absence of 

a Board majority to reverse a Regional Director’s decision see section 2–400. 

* * * * 

This section of the procedures summarizes the initial stages of a representation proceeding. 

The precise language of the Board’s Rules and Regulations and Statements of Procedure should 

be consulted at all times in relation to specific procedural provisions and, for greater detail, it is 

important to follow the steps described in the CHM. 

3-900 Review of Representation Decisions 

3-910 Judicial Review—Generally 

A Board order in a representation case is not a final order and is therefore, not subject to 

judicial review directly. AF of L v. NLRB, 308 U.S. 401 (1940). Indeed, the Board retains 

jurisdiction over the representation case even where a related unfair labor practice case is pending 

in the Court. Freund Baking Co., 330 NLRB 17 fn. 3 (1999).

Where, however, the contention is that the Board’s decision in the representation case is in 

excess of its delegated power and is contrary to a specific prohibition of the Act, a party can 

obtain district court review of the Board’s decision. Leedom v. Kyne, 358 U.S. 184 (1958). The 

Court has held that this exception to the general rule of nonreviewability is a “narrow one,’’ Boire

v. Greyhound Corp., 376 U.S. 473 (1964). In test of certification proceedings, the Board 

generally rejects ancillary defenses where it is clear that the employer would not honor the 

certification in any event. See, e.g., People Care, Inc., 314 NLRB 1188 fn. 2 (1994), rejecting an 

employer defense that the union was dilatory in seeking bargaining. 

For a discussion of Court jurisdiction over the representation case see Freund Baking Co., 

330 NLRB 17 fn. 3 (1999). 

3-911 Review by Employers 

An employer who is dissatisfied with an adverse representation decision by the Board can 

obtain review of the decision only by refusing to bargain if and when the union is certified. The 

defense to that refusal to bargain would then be that the certification was improperly issued. The 

Board does not permit relitigation of the representation issue in the refusal to bargain case. 

Section 102.67(f) of the Board Rules, Shadow Broadcast Service, 323 NLRB 1002 (1997); and 

FPA Medical Management, 331 NLRB 936 (2000). In those circumstances, the court will review 

the representation issue in the court of appeals proceeding to enforce the Board order. Failure to 

request review will bar a party from raising the issue in a subsequent challenge to the 

certification. Nursing Center at Vineland Concrete, 318 NLRB 337 (1995). Similarily, in the 

absence of newly discovered evidence, an employer may not challenge a certification on the 

ground of supervisory status of unit members if it failed to raise the issue in the representation 

case. See Premier Living Center, 331 NLRB 123 (2000), where the Board likened that effort to a 

post election challenge. See also International Maintenance Corp., 337 NLRB 705 (2002), 

where the Board did not address a contention that the unit had increased by a factor of 10 because 

it was not raised as an exception. 

In an unfair labor practice case, the Respondent is required to notify the Board of its intention 

to preserve the issues that it raised in the underlying unfair labor practice case. Some courts have 

disagreed with the Board as to how much notification is required. See Nathan Katz Realty v. 

NLRB, 251 F.3d 981 (D.C. Cir. 2001).

In Food & Commercial Workers Local 1996 (Visiting Nurse Health System), 336 NLRB 421 

(2001), a divided Board found that a certified union could engage in secondary activity against a 
INITIAL REPRESENTATION CASE PROCEDURES 39

neutral that was doing business with the employer who was refusing to honor the certification. 

See also section 7–120. 

3-912 Review by Unions 

A union, on the other hand, has to utilize an even more indirect method of obtaining review if 

it is dissatisfied with an adverse decision of the Board in a representation case. Thus, a union 

would have to engage in allegedly unlawful 8(b)(7)(B) picketing where it believes the Board has 

incorrectly certified the results of an election (a union loss) because of the erroneous 

representation case decision. Oakland G. R. Kinney Co., 136 NLRB 335 (1962); Kansas Color 

Press, 158 NLRB 1332 (1966); and American Bread Co., 170 NLRB 91 (1968). 

3-920 Litigation of Unfair Labor Practice Issues in Representation Cases 

The Board is occasionally confronted with a contention that it should review an unfair labor 

practice decision of the General Counsel in a representation case. Stated simply, the general rule 

has since the earliest days of Section 3(d) of the Act been that the Board will not permit the 

litigation of unfair labor practices in representation proceedings. Times Square Stores Corp., 79 

NLRB 361 (1948). See also Texas Meat Packers, 130 NLRB 279 (1961); Cooper Supply Co., 

120 NLRB 1023 (1958); and Capitol Records, 118 NLRB 598 (1957); and Virginia Concrete 

Corp., 338 NLRB 1182 (2003). But in All County Electric Co., 332 NLRB 863 (2000), a divided 

Board permitted the litigation of alter ego status in a representation case. In doing so the Board 

majority distinguished Texas Meat Packers, which held that issues of motivation for a layoff 

should not be litigated in representation cases.

In Cooper Supply, the issue was one of striker eligibility to vote in an election. The General 

Counsel had refused to find bad-faith bargaining charge which the union contended resulted in an 

unfair labor practice strike which in turn, it was argued, made the strikers eligible to vote. The 

Board refused to consider the union’s contention solely because the General Counsel had refused 

to issue an 8(a)(5) complaint as to the bargaining. However, the fact that an unfair labor practice 

charge concerning the same conduct has been dismissed does not require pro forma overruling of 

the objection because they are not tested by the same criteria. ADIA Personnel Services, 322 

NLRB 994 (1997). 

Where, however, a party is charged with an unfair labor practice, the Board will consider that 

party’s contention that the General Counsel incorrectly dismissed an unfair labor practice charge 

which the party relies on as its defense to the General Counsel’s prosecution. See Warwick 

Caterers, 269 NLRB 482 (1984). 

A finding in a representation case of supervisory status is not binding in a later unfair labor 

practice case involving allegations of independent 8(a)(1) conduct, Bon Harbor Nursing & 

Rehabilitation Center, 348 NLRB 1062 (2006). 

For a related discussion of the relationship between unfair labor practice decisions of the 

General Counsel and objections to an election see discussion at section 24-312. 

3-930 Effect of Violence on a Board Certification 

In “extraordinary” circumstances of union violence, the Board may decline to enforce a 

certification or to give a normal bargaining order remedy. See Overnite Transportation Co., 333 

NLRB 472 (2001). See also Laura Modes Co., 144 NLRB 1592 (1963), and section 6-380, infra. 

 
INITIAL REPRESENTATION CASE PROCEDURES 40
4. TYPES OF PETITIONS 

A representation proceeding is initiated by the filing of a petition. Section 9(c) of the Act 

provides for three types of petitions: (1) a petition seeking certification, (2) an employer petition 

seeking resolution of a question concerning representation, and (3) a petition seeking 

decertification of the presently recognized bargaining agent. Section 9(e) of the Act provides for 

petitions for balloting with respect to recision of a union-shop authorization. In addition, the 

Rules and Regulations, Section 102.60(b), provides for petitions for clarification of the 

bargaining unit and petitions for amendment of the certification. 

The first four types of petitions (RC, RM, RD, and UD) all seek Board-conducted elections. 

The next two (UC and AC), are different in nature as the general description of each below will 

readily indicate. No attempt will be made here to outline the relevant substantive law which is 

applicable to given situations in the determination and disposition of cases involving any of the 

six types of petitions. Issues arising in relation to RC, RM, and RD petitions are treated under the 

several substantive chapters which pertain to all election petitions, whether they be for 

certification, decertification, or employer petitions. Issues arising in relation to UD, UC, and AC 

petitions are treated in a separate chapter. 

4-100 Representation Petition Seeking Certification (RC) 

316-6700 et seq. 

A petition for certification as bargaining agent under Section 9(c)(1)(A)(i) may be filed by an 

employee or group of employees or any individual or labor organization acting on their behalf, 

alleging that a substantial number of employees wish to be represented for collective-bargaining 

purposes and that their employer declined to recognize their representative. Such a petition is 

usually filed by unions, although in the language of the Act and Board interpretation this need not 

necessarily be the case, as the statutory provision uses the language “employee or group of 

employees or any individual or labor organization acting in their behalf.” 

4-200 Decertification Petition (RD) 

316-6733 

Under Section 9(c)(1)(A)(ii), an employee, group of employees, individual, or labor 

organization may file a decertification petition asserting that the currently certified or recognized 

bargaining representative no longer represents the employees in the bargaining unit. 

The substantive rules governing decertification petitions specifically are treated in the chapter 

on the “Existence of a Representation Question,” infra, at chapter 7. 

4-300 Employer Petition (RM) 

316-6750 

Under Section 9(c)(1)(B), an employer may file a petition for an election alleging that one or 

more individuals or labor organizations have presented a claim to be recognized as the bargaining 

representative of a unit of employees. The petitioning employer is generally required to show 

that the union has presented an affirmative demand for recognition. If the union is an incumbent, 

the employer must show that it has a good-faith uncertainty as to the union’s majority status. See 

Levitz Furniture Co., 333 NLRB 717 (2001). 

The substantive rules governing employer petitions specifically are treated in the chapter on 

the “Existence of a Representation Question,” infra, at chapter 7. 

41
42 TYPES OF PETITIONS 

4-400 Union-Security Deauthorization Petition (UD) 

324-4060-5000 

Under Section 9(e), the Board is empowered to take a secret ballot of the employees in a 

bargaining unit covered by an agreement between their employer and a labor organization, made 

pursuant to Section 8(a)(3), on the filing with the Board of a petition by 30 percent or more of the 

employees in the unit alleging their desire that the authority for such a provision be rescinded. 

The Board certifies the result of such balloting to the labor organization and to the employer. 

See CHM sections 11500–11516 for UD procedures. See also section 5-620, infra. 

4-500 Petition for Clarification (UC) 

355-7700 

385-0150 

385-7501-2500 et seq. 

The Board’s express authority under Section 9(c)(1) to issue certifications carries with it the 

implied authority to police such certifications and to clarify them as a means of effectuating the 

policies of the Act. Thus, under Section 102.60(b) of the Board’s Rules and Regulations, a party 

may file a petition for clarification of a bargaining unit when there is a certified or currently 

recognized bargaining representative and no question concerning representation exists. (See also 

Sec. 101.17 of the Statements of Procedure.) 

See Armco Steel Co., 312 NLRB 257 (1993), for a discussion of the use of UC proceedings to 

clarify unit scope as well as unit placement issues. 

For further discussion of Unit Clarification (UC) proceedings, see section 11-200. 

4-600 Petition for Amendment of Certification (AC) 

385-0150 

385-2500 et seq. 

Flowing from the Board’s express authority under Section 9(c)(1) to issue certifications is the 

implied authority to amend them. Under Section 102.60(b) of the Board’s Rules and Regulations, 

a party may file a petition to amend certification to reflect changed circumstances, such as 

changes in the name or application of the labor organization or in the site or location of the 

employer, when there is a unit covered by a certification and no question concerning 

representation exists. (See also sec. 101.17 of the Statements of Procedure.) 

Note that petition for amendment of certification may be filed only for a unit covered by a 

certification, while a petition for clarification of a bargaining unit may be filed either when the 

bargaining representative has a certification or is recognized by the employer but not pursuant to 

a certification. Locomotive Firemen & Enginemen, 145 NLRB 1521 (1964). The requirements 

and procedures for UC and AC petitions are set out in the Rules and Regulations, Sections 

102.61(d) and 102.61(e), and CHM sections 11490–11498. See also section 11-100, infra. 

4-700 Expedited Elections—Section 8(b)(7)(C) 

See discussion in sections 5-610, 7-150, and 22-122 infra. 
5. SHOWING OF INTEREST 

324-0125 et seq. 

324-2000 

324-4020-1400 

An employee or group of employees, or any individual or labor organization acting in the 

employees’ behalf, may file a representation petition under Section 9(c)(1)(A) of the Act. The 

Board is required to investigate any such petition which alleges that a “substantial number’’ of 

the employees desire an election, whether it is for certification or decertification. The Board has 

adopted the administrative rule that 30 percent constitutes a “substantial number.’’ Statements of 

Procedure, Section 101.18(a). This 30-percent rule applies to all representation petitions filed by 

or in behalf of a group of employees. 

The purpose of this requirement is to enable the Board to determine whether or not the filing 

of a petition warrants the holding of an election without the needless expenditure of Government 

time, efforts, and funds. River City Elevator Co., 339 NLRB 616 (2003); Pike Co., 314 NLRB 

691 (1994); S. H. Kress Co., 137 NLRB 1244, 1248 (1962); and O. D. Jennings & Co., 68 

NLRB 516 (1946). The showing-of-interest requirement is based on public policy and therefore 

may not be waived by the parties. Martin-Marietta Corp., 139 NLRB 925 fn. 2 (1962). The 

administrative determination of a showing of interest has no bearing on the issue of whether a 

representation question exists. Sheffield Corp., 108 NLRB 349, 350 (1954). 

The showing of interest is an administrative matter not subject to litigation. O. D. Jennings & 

Co., supra; River City Elevator Co., supra; General Dynamics Corp., 175 NLRB 1035 (1969); 

Allied Chemical Corp., 165 NLRB 235 (1967); and NLRB v. J. I. Case Co., 201 F.2d 597 (9th 

Cir. 1953). 

Specific issues which pertain to the showing of interest are treated below. 

5-100 Timeliness of Submission of a Showing of Interest 

324-4020-3000 

324-6033-6700 

324-6067-6700 

A showing must be submitted within 48 hours of the filing of the petition, but in no event 

later than the last day a petition might timely be filed. Statements of Procedure, Section 101.17; 

Mallinckrodt Chemical Works, 200 NLRB 1 (1972). CHM section 11024.1. See also Excel 

Corp. (Excell II), 313 NLRB 588 (1993), where the Board on reconsideration of its earlier 

decision at 311 NLRB 710 (1993) (Excel I), refused to permit additional showing to be filed after 

the window period. The Board in Excel II characterized its decision in Excel I as “an ill-advised 

departure’’ from precedent and the Board’s Rules. 

An exception to this rule, based on the special circumstances involved, was made in 

Rappahannock Sportswear Co., 163 NLRB 703 (1967). In that case, there was no bargaining 

history, and two rival unions were engaged in initial organization of the employer’s employees. 

The employer was aware of both organizational campaigns, and, on being notified that one of the 

unions had filed a petition, recognized, and executed a collective-bargaining agreement with the 

other. Although the showing of interest in support of that petition was not furnished to the 

Regional Office until the date the contract was executed, all cards predated the filing of the 

petition. The Board declined to apply Section 101.17, noting the manifest inequity in permitting 

the hasty signing of a contract to truncate the normal 48 hours for the filing of a showing of 

interest. See also Smith’s Food & Drug Centers, 320 NLRB 844 (1996), discussed under 

Recognition Bar (sec. 10-500). 

43
44 SHOWING OF INTEREST 

When the petitioner broadens its original unit to one that is substantially larger and different 

from that originally petitioned for, the broadened unit request is treated like a new petition and 

must be supported by an adequate showing of interest. Centennial Development Co., 218 NLRB 

1284 (1975). Cf. Brown Transport Corp., 296 NLRB 1213 (1989). See also section 5-800, infra. 

In Metal Sales Mfg., 310 NLRB 597 (1993), the Board permitted the late filing of an 

affidavit attesting to the dates the employees signed the showing of interest. 

5-200 Nature of Evidence of Interest 

324-4040-3300 et seq. 

324-8025 

590-7550 

The most commonly submitted type of evidence of interest consists of cards on which 

employees apply for membership in the labor organization and/or authorize it to represent them. 

Cards which were neither applications for membership nor specific authorizations to 

represent, but merely asked the Board to conduct an election, were held to suffice as evidence of 

interest when the cards stated that the purpose of seeking an election was for the union to be 

certified. Potomac Electric Co., 111 NLRB 553, 554–555 (1955). 

Other types of evidence of interest are also used, particularly when intervention is sought. 

Thus, a current contract constitutes evidence of interest. Brown-Ely Co., 87 NLRB 27 fn. 2 

(1950). A recently expired contract may also serve as such evidence. Bush Terminal Co., 121 

NLRB 1170 fn. 1 (1958). Where a labor organization has a contract covering the employer’s 

plant at another location and claims that the contract is applicable to the new plant, it has 

sufficient evidence of interest to warrant intervention. Intervention has also been granted based on 

agreements between the intervenors and a trade association that had been adopted by the 

employer in the proceeding, each signatory union being regarded as having “at least a colorable 

interest in certain of the employees involved.” W. Horace Williams Co., 130 NLRB 223 fn. 2 

(1961). 

It is clear, of course, that a contract found in an unfair labor practice proceeding to have been 

executed in violation of Section 8(a)(2) of the Act may not serve as evidence of interest. Bowman 

Transportation, 120 NLRB 1147 fn. 7 (1958); see also Halben Chemical Co., 124 NLRB 1431 

(1959). 

5-210 Construction Industry 

In John Deklewa & Sons, 282 NLRB 1375 (1987), the Board announced new unfair labor 

practice rules with respect to 8(f) prehire agreements in the construction industry. The Board 

noted that the second proviso to Section 8(f) provides that these agreements do not bar an election 

petition, and held that during the term of an 8(f) agreement, no showing of interest is required for 

an RM election petition filed by the signatory employer. The Board has decided to apply the same 

rule to an RC petition filed by the signatory union during the term of an 8(f) agreement or shortly 

after the expiration. Stockton Roofing Co., 304 NLRB 699 (1991). 

In Pike Co., 314 NLRB 691 (1994), the Board determined that the numerical sufficiency of a 

showing of interest in the construction industry is based on the number of unit employees 

employed at the time the petition is filed. In doing so, the Board rejected a contention that the 

showing should be based on the number of employees eligible to vote under the formula 

announced in Steiny & Co., 308 NLRB 1323 (1992), discussed in section 23-420, infra. 

For other construction industry issues, see sections 9-211, 9-1000, 10-600–10-700, and 15-

130. 
SHOWING OF INTEREST 45

5-300 Designee 

324-8025-5000 

324-8075 

530-2075 

Issues are sometimes raised as to whether an authorization designating one labor organization 

may serve as valid evidence of interest for another. 

The general policy has been stated as follows: “The Board has always accepted showing-ofinterest cards designating a Labor Organization affiliated with . . . the labor organization 

appearing on the ballot.’’ New Hotel Monteleone, 127 NLRB 1092, 1094 (1960) (see also cases in 

fn. 6 of this decision), and Monmouth Medical Center, 247 NLRB 508 (1980). Note, however 

that in Woods Quality Cabinetry Co., 340 NLRB 1355 (2003), the Board set aside an election 

where the petitioner was incorrectly designated as an affiliate of the AFL–CIO. 

A designation of a parent organization is a valid designation of its affiliate. Thus, cards 

designating the AFL–CIO have been held to be valid evidence of interest for an international 

union affiliated with the AFL–CIO. Up-To-Date Laundry, 124 NLRB 247 (1959); see also Wm. 

P. McDonald Corp., 83 NLRB 427 fn. 2 (1949); General Shoe Corp., 113 NLRB 905, 905–906 

(1955). Similarly, cards designating an international have been accepted as valid evidence 

submitted by one of its locals. Norfolk Southern Bus Corp., 76 NLRB 488, 489–490 (1948). 

Designations of an organizing committee that was acting on behalf of the petitioner constitute 

valid evidence of interest on behalf of the latter. Cab Service & Parts Corp., 114 NLRB 1294 

fn. 2 (1956). But see O & T Warehousing Co., 240 NLRB 386 (1979), in which the Board 

declined to place on the ballot “AFL–CIO and/or its Appropriate Affiliate,’’ requiring the parent 

organization either to place itself on the ballot or designate a specific affiliate to appear on the 

ballot in advance of the election. 

Two or more labor organizations may join together to file a petition as joint petitioners or to 

intervene in a proceeding. Authorization cards designating only one petitioner are sufficient to 

establish the interest of joint petitioners, and it is immaterial whether the cards indicate a desire 

for joint or individual representation. “We are persuaded that when 30 percent of the employees 

in a bargaining unit have indicated a desire to be represented by one or the other or two unions, 

and the two unions then offer themselves as joint representatives of the employees, the petitioning 

unions have demonstrated enough employee interest in their attaining representative status to 

warrant holding an election.’’ St. Louis Packing Co., 169 NLRB 1106, 1107 (1968). See also 

Mid-South Packers, 120 NLRB 495 fn. 1 (1958); Stickless Corp., 115 NLRB 979, 980 (1956). 

In such circumstances, the jointly acting labor organizations are jointly certified if successful 

in the election, and the employer may then insist that they, in fact, bargain jointly for the 

employees in question in a single unit. Mid-South Packers, supra. If testimony at the hearing 

indicates that in fact the joint petitioners intervened to represent groups of employees separately, 

the Board will dismiss the petition. Automatic Heating Co., 194 NLRB 1065 (1972); Suburban

Newspaper Publications, 230 NLRB 1215 (1977). 

For further discussion of joint representation, see section 6-370, infra. 
46 SHOWING OF INTEREST 

5-400 Validity of Designations 

324-8025 

324-8075 

530-2075 

737-4267-7500 

Evidence of interest consisting of authorizations from employees must, of course, bear the 

valid signatures of such employees. Signatures are presumed to be genuine unless there is some 

indication to the contrary. 

An employee’s subjective state of mind in signing a union card cannot negate the clear 

statement on the card that the signer is designating the union as that employee’s bargaining agent. 

Gary Steel Products Corp., 144 NLRB 1160 (1963). However, inducements offered to obtain 

authorizations may be brought into issue. In one case, the Board held that cards submitted by the 

petitioner, which had been signed by supporters of the incumbent union, were not invalid because 

solicited through appeals to sign to get an election, in which the petitioner’s literature clearly 

reflected that the petitioner’s purpose in seeking such authorizations was to supplant the 

incumbent. Potomac Electric Co., 111 NLRB 553 (1955). These issues are not, as noted earlier, 

litigable. See CHM section 11028 et seq. for procedures for challenging showing. See also 

General Dynamics Corp., 213 NLRB 851, 853 (1974), concerning the appropriate timing of the 

challenge. 

Issues have arisen involving the validity of designations because of alleged supervisory 

participation in securing the showing of interest and allegations to that effect have been found 

meritorious where in fact such participation existed. Thus, when a supervisor participated in 

obtaining the signatures of all the employees whose cards were submitted as evidence of interest, 

the petition was dismissed. Southeastern Newspapers, 129 NLRB 311 (1961). In that case, the 

employer’s motion to dismiss was treated “as a request for administrative investigation of the 

petitioner’s showing.’’ Cards signed at a meeting at which a supervisor vigorously espoused the 

petitioner’s cause were not counted as valid evidence of interest. Wolfe Metal Products Corp., 

119 NLRB 659 (1958). See also Desilu Productions, 106 NLRB 179 (1953). More recently, the 

Board has characterized this policy as a “bright line rule” of excluding all cards directly solicited 

by a supervisor. Dejana Industries, 336 NLRB 1202 (2001).

In Catholic Community Services, 254 NLRB 763 (1981), the Board found no supervisory 

taint when supervisors and unit employees signed a letter endorsing the need for a union and an 

alleged supervisor sat at petitioner counsel’s table during the representation hearing. In a 

decertification proceeding, where the supervisor is a member of the bargaining unit and there is 

no showing that his/her solicitation of the showing of interest was at the behest of the employer, 

the Board will not find taint of the showing of interest. Los Alamitos Medical Center, 287 NLRB 

415, 417 (1987). 

In a case which the Regional Director referred to the Board for an administrative 

determination of a showing of interest, the Board found that the individual alleged to have 

participated in obtaining all the authorization cards was not a supervisor within the meaning of 

the Act “during the period in which the authorization cards were solicited,’’ and consequently his 

participation did not taint or otherwise cast a doubt on the uncoerced nature of the showing of 

interest. L. A. Benson Co., 154 NLRB 1371 (1965). See also Silver Spur Casino, 270 NLRB 

1067 (1984). 

See also sections 24-110 and 24-328 for discussion of supervisory solicitation of support for 

union as objectionable conduct. 

A showing of interest is not subject to attack on the ground that the cards on which it is based 

have been revoked or withdrawn. “Such an attack,’’ said the Board, “has no bearing on the 

validity of the original showing but merely raises the question as to whether particular employees 
SHOWING OF INTEREST 47

have changed their minds about union representation. That question can best be resolved on the 

basis of an election by secret ballot.’’ General Dynamics Corp., 175 NLRB 1035 (1969). See also 

Allied Chemical Corp., 165 NLRB 235 fn. 2 (1967); Vent Control, Inc., 126 NLRB 1134 

(1960). 

Cards signed for more than one labor organization may be counted in determining showing of 

interest. “There is no reason why employees, if they so desire, may not join more than one labor 

organization.’’ The election will determine which labor organization, if any, the employees wish 

to represent them. Brooklyn Gas Co., 110 NLRB 18, 20 (1955). 

5-500 Currency and Dating of Designations 

324-8050 

530-2075-6700 

The general rule is that the individual authorization must be dated and must be current. A. 

Werman & Sons, 114 NLRB 629 (1956). The requirement for dating the showing may be 

accomplished by affidavit either submitted with the showing itself or timely filed thereafter. Dart 

Container Corp., 294 NLRB 798 (1989). See also Metal Sales Mfg., 310 NLRB 597 (1993), 

where the Board permitted the late filing of an affidavit attesting to the dates of the showing. 

Questions have arisen, however, as to what is meant by “current.’’ Thus, it has been held that 

cards dated more than a year prior to the filing of the petition were sufficiently current. Carey 

Mfg. Co., 69 NLRB 224 fn. 4 (1946); see also Northern Trust Co., 69 NLRB 652 fn. 4 (1946) 

(10 months), and Covenant Aviation Security, LLC, 349 NLRB 699 (2007), citing Carey Mfg.

with approval. 

Evidence of interest submitted in a prior Board proceeding which had been withdrawn was 

held to be valid evidence of interest in a new case more than 2 months later. Cleveland Cliffs 

Iron Co., 117 NLRB 668 (1957); see also Knox Glass Bottle Co., 101 NLRB 36 fn. 1 (1953). 

However, cards dated prior to a State-conducted election, which had been lost by the petitioner 3 

months prior to the Board proceeding, were held to be insufficient evidence of interest. King 

Brooks, Inc., 84 NLRB 652, 652–653 (1949). In Big Y Foods, 238 NLRB 855 fn. 4 (1978), a 

contention that the showing of interest was stale was rejected when the delay in processing the 

petition to an election was attributable to the employer’s unfair labor practices. Similarly, the 

Board rejected a suggestion that a new showing be made because of a lapse of time and turnover 

among employees between the first and directed second election. Sheraton Hotel Waterbury, 316 

NLRB 238 (1995). See also Freund Baking Co., 330 NLRB 17 (1999).

The Board will accept a showing of interest gathered prior to the time a question concerning 

representation could be raised. Covenant Aviation Security, supra. 

Under certain circumstances, labor organizations are permitted to intervene after the close of 

the hearing. However, they must meet the requirements for an intervenor’s showing of interest as 

of the time of the hearing in the case. Gary Steel Products Corp., 127 NLRB 1170 fn. 3 (1960); 

see also Transcontinental Bus System, 119 NLRB 1840 fn. 3 (1958); United Boat Service Corp.,

55 NLRB 671 (1944). See also Crown Nursing Home Associates, 299 NLRB 512 (1990). 

5-600 Quantitative Sufficiency 

324-0187 

324-4020 

As already indicated, a showing of 30 percent of the employees in the appropriate unit is 

normally required of a petitioner. Pearl Packing Co., 116 NLRB 1489, 1489–1490 (1957); see 

also S. H. Kress & Co., 137 NLRB 1244, 1249 (1962). 

The Board has rejected contentions that a larger showing of interest should be required when 

the petitioner has previously lost several elections. Sheffield Corp., 134 NLRB 1101 fn. 4 (1962); 

Barber-Colman Co., 130 NLRB 478 fn. 3 (1961). When cards attacked because of alleged 
48 SHOWING OF INTEREST 

unreliability are insufficient in number to reduce a petitioner’s showing of interest to less than 30 

percent, the showing is accepted as adequate. Pearl Packing Co., supra. 

A showing of interest of less than 30 percent was found to be adequate in which (1) the 

petitioner had represented most of the classifications in the requested unit for 20 years; (2) its last 

contract had contained a valid union-security provision requiring the employees to become and 

remain members; and (3) the Board, in refusing to resolve the unit issues pursuant to a motion for 

clarification, had already advised the petitioner that it would entertain a petition for certification. 

FWD Corp., 138 NLRB 386 (1962) (see also cases cited in fn. 3 of this decision). 

Board practice does not require a new showing of interest in the case of expanding units. 

Avondale Shipyards, 174 NLRB 73 (1969). 

No evidence of interest is required when the labor organization seeks to add employees to an 

existing certified unit as an accretion to such unit. Kennametal, Inc., 132 NLRB 194 fn. 4 (1961). 

In Duke Power Co., 191 NLRB 308, 311 fn. 10 (1971), the Board held that there is no 

requirement that the employees’ interest in decertification be expressed on the Board’s standard 

forms. 

A change in ownership of the employer during the organizing campaign does not require a 

new showing of interest. New Laxton Coal Co., 134 NLRB 927 (1961). 

5-610 No Showing of Interest in 8(b)(7)(C) Cases 

578-8075-6056 

Despite the statutory provision noted above requiring that the petition be supported by a 

substantial number of employees, Section 8(b)(7)(C) of the Act provides that, when a petition is 

filed in conjunction with an unfair labor practice charge alleging a violation of this section, the 

Board shall direct an election in the appropriate unit without regard to the absence of a showing 

of substantial interest. Accordingly, in these circumstances, no showing of interest is required. 

See section 7-150 for further information. 

5-620 A Specific 30-Percent Requirement in UD Cases 

324-4060-5000 

On the other hand, Section 9(e)(1) of the Act establishes a specific 30-percent requirement in 

support of petitions to rescind a labor organization’s authority to enter into collective-bargaining 

contracts requiring membership in the union as a condition of employment, as set forth in Section 

8(a)(3) of the Act. See Covenant Aviation Security, LLC, supra, where the Board rejected the 

union’s contention that the signature underlying the showing of interest must postdate the 

effective union-security provisions. 
SHOWING OF INTEREST 49

5-630 Employer Petitions 

316-6725 

324-4020-5000 

When the petition is filed by an employer, pursuant to Section 9(c)(1)(B) of the Act, no 

evidence of representation on the part of the labor organization claiming a majority is required. 

Felton Oil Co., 78 NLRB 1033, 1035–1036 (1948). This is true of any intervenor claiming to 

represent a majority of the employees in the unit involved in the petition. See also General 

Electric Co., 89 NLRB 726, 726–727 (1950). It is also true even if the employer seeks to 

withdraw its petition but a union claiming to represent a majority in the unit desires an election. 

International Aluminum Corp., 117 NLRB 1221 (1957). 

See also discussions of 8(f) agreements under section 5-210 in this chapter, supra. 

5-640 Showing of Interest for Intervention 

324-4040 

Administratively, the Board has adopted the following policies with respect to the showing of 

interest of intervenors: 

(a) If an intervenor has less than a 10-percent showing of interest and the other parties 

are willing to consent to an election, the consent-election agreement is approved, and the 

intervenor has the right to appear as a choice on the ballot. 

(b) If an intervenor has more than a 10-percent showing and is unwilling to consent to 

an election, even though the other parties are willing, a consent-election agreement will not 

be approved, and the matter must go to hearing (unless dismissal is required by some other 

factor). 

(c) “Intervention’’ based on more than 30-percent showing amounts to a cross-petition 

which permits the union to seek a unit differing in substance from that of the original 

peitition. 

An intervenor seeking a unit different from that sought by the petitioner must make a 

petitioner’s showing of interest in the unit it seeks. Great Atlantic & Pacific Tea Co., 130 NLRB 

226, 226–227 (1961). 

When the petitioner sought an election in a single unit of employees in two departments and 

the intervenor sought to represent the employees in separate departmental units, but the intervenor 

had failed to make the necessary 30-percent showing among the employees in either department, 

the Board did not direct elections in separate units, but placed the intervenor’s name on the ballot 

in the overall unit since it had made some showing of interest among the employees sought. 

Southern Radio & Television Equipment Co., 107 NLRB 216, 216–217 (1954). When 

intervention was sought for the purpose of securing a separate election in a craft unit, severing it 

from an existing larger unit, the union was required to make a 30-percent showing of interest in 

the craft unit. Boeing Airplane Co., 86 NLRB 368 (1949). 

If the petitioner lacks a sufficient interest in a unit found appropriate, but an intervenor 

possesses a petitioner’s interest and wishes to proceed to an election, the petition will not be 

dismissed, nor will a withdrawal request be granted, but the intervenor will be treated as a crosspetitioner. Borden Co., 120 NLRB 1447, 1449 (1958); Seaboard Machinery Corp., 98 NLRB 

537 (1951). In such circumstances, the petitioner may be placed on the ballot as a choice in any 

unit in which it has some evidence of interest, but may not be on the ballot for any unit in which it 

has no evidence of interest. Borden Co., supra. 

In Crown Nursing Home Associates, 299 NLRB 512 (1990), the Board held that an 

intervenor has the right to make an additional showing of interest when the original petitioner 

sought to withdraw because another incumbent union had served a contract. The additional 
50 SHOWING OF INTEREST 

showing was required to be submitted timely but was not required to predate the execution of the 

contract. 

See also section 3-830, supra. 

5-700 Relation to Bargaining Unit 

In all cases, the showing of interest must relate to the bargaining unit involved. Esso Standard 

Oil Co., 124 NLRB 1383, 1385 (1959). 

5-800 Date for Computation 

324-4090 

It is apparent that the computation as to the showing of interest must be made at some certain 

date or dates. Normally, this is as of the date the petition was filed, or the showing may be 

computed from the payroll period immediately preceding the filing of the petition. Brunswick

Quick Freezer, 117 NLRB 662 (1957). This is true even in industries when there is fluctuating 

employment. Higgins, Inc., 111 NLRB 797 fn. 2 (1955); Trenton Foods, 101 NLRB 1769 (1953). 

When the unit found appropriate differs from that sought and a new check of the showing of 

interest is necessary, the Union may be given reasonable time to procure additional showing of 

interest. CHM section 11031.2. See also Brown Transport Corp., 296 NLRB 1213 (1989); 

Casale Industries, 311 NLRB 951 (1993); and Alamo Rent-A-Car, 330 NLRB 897, 899 fn. 9 

(2000).

In seasonal industries, the showing of interest may be made as of the time of filing the 

petition, even though the number of employees at such time is only a small percentage of the 

complement at the seasonal peak. J. J. Crosetti Co., 98 NLRB 268 fn. 1 (1951). Accord: Pike 

Co., 314 NLRB 691 (1994) (construction industry). 

If there are no employees employed at the time of filing the petition, the showing of interest 

may be made among the employees of the previous season if it is expected that they will be 

recalled during the new season. Grower-Shipper Vegetable Assn., 112 NLRB 807 (1955); cf. 

Holly Sugar Corp., 94 NLRB 1209 (1951). In a seasonal industry, a significant rate of 

reemployment will permit the use of the previous periods showing of interest. Bogus Basin 

Recreation Assn., 212 NLRB 833 (1974). 

Unusual circumstances occasionally require a different policy. Thus, when the petition was 

prematurely filed (in a nonseasonal industry) and a later election was directed, a current showing 

of interest was required. Mrs. Tucker’s Products, 106 NLRB 533, 535 (1953). When the 

petitioner had been found in an unfair labor practice proceeding to have received employer 

assistance in violation of Section 8(a) (2), an adequate showing of interest had to be made with 

cards obtained after the petitioner’s illegal status as the representative of the employees had been 

“effectively cut off.’’ Halben Chemical Co., 124 NLRB 1431 (1959). See also Bowman 

Transportation, 120 NLRB 1147, 1150 fn. 7 (1958); and Share Group, Inc., 323 NLRB 704 

(1997). 

In Gaylord Bag Co., 313 NLRB 306 (1993), the Board restated its rule that the showing was 

not litigable. In reviewing the Regional Director’s objections determination the Board assumed 

that a contention concerning the showing was timely and went on to conclude that the showing 

was adequate even assuming the employer’s contentions were correct. Thus, the Board noted that 

even discounting the cards of employees allegedly affected by the union’s conduct, there were 

sufficient remaining cards to satisfy the showing. It is important to note here that the Board’s 

discussion of the adequacy of the showing was not essential to its determination of the case 

because as the Board noted “after the election the adequacy of the showing is irrelevant.’’ See 

also City Stationery, Inc., 340 NLRB 523 (2003). 
SHOWING OF INTEREST 51

5-900 Investigations of Showing of Interest 

324-2000 

393-6814 

530-2075-6767 

737-2850-9900 

“An integral and essential element of the Board’s showing-of-interest rule is the 

nonlitigability of a petitioner’s evidence as to such interest. The Board reserves to itself the 

function of investigating such claims, and in its investigation it endeavors to keep the identity of 

the employees involved secret from the employer and other participating labor organizations. . . . 

The Board’s requirement that petitions be supported by a 30-percent showing of interest gives 

rise to no special obligation or right on the part of employers.’’ S. H. Kress & Co., 137 NLRB 

1244, 1248–1249 (1962). 

In keeping with these policies, a hearing officer is barred by the Board’s Rules and 

Regulations from producing the evidence of interest. Plains Cooperative Oil Mill, 123 NLRB 

1709, 1711 (1959), and the Board refused to supply cards in response to a subpoena. Irving v. 

DiLapi, 600 F.2d 1027 (2d Cir. 1979). The manner, method, and procedure in determining the 

showing of interest is not for disclosure. Pacific Gas & Electric Co., 97 NLRB 1397 fn. 3 

(1951). In Smith’s Food & Drug Centers, 320 NLRB 844 (1996), the Board, on review, found 

sufficient evidence of lack of a showing of interest to dismiss the petition without a remand to the 

Regional Director. 

When a party contends that a showing of interest was obtained by fraud, duress, or coercion, 

the proper procedure is to submit to the Regional Director any proof it might have. Perdue 

Farms, Inc., 328 NLRB 909 (1999); and Pearl Packing Co., 116 NLRB 1489 (1957). See also 

Columbia Records, 125 NLRB 1161 (1960); and Waste Management of New York, 323 NLRB 

590 (1997). Such conduct may also be considered as objectionable. See St. Peter More-4, 327 

NLRB 878 (1999), and Millsboro Nursing & Rehabilitation Center, 327 NLRB 879 (1999). 

Similarly, any attack on the genuineness of signatures should be made by submitting available 

evidence to the Regional Director within 5 days after the close of the hearing. Georgia Kraft Co., 

120 NLRB 806 (1958); Phillips Petroleum Co., 130 NLRB 895 fn. 2 (1961). See also Tung-Sol

Electric, 120 NLRB 1674, 1678 (1958). See also CHM section 11028.1, et seq. 

When evidence is submitted to the Regional Director which gives reasonable cause for 

believing that the showing of interest may have been invalidated by fraud or otherwise, an 

administrative investigation will be made. See, for example, Perdue Farms, supra; Globe Iron 

Foundry, 112 NLRB 1200 (1955); Georgia Kraft Co., supra. However, an administrative 

investigation will not be made unless the allegations of invalidity are accompanied by supporting 

evidence. Goldblatt Bros., 118 NLRB 643 fn. 1 (1957). Thus, affidavits by more than 70 percent 

of the unit to the effect that the affiants had not authorized the petitioner to represent them 

warranted an administrative investigation. Globe Iron Foundry, supra. Compare General Shoe

Corp., 114 NLRB 381, 382–383 (1956), in which such denials were from less than 70 percent of 

the unit. 

A request for a check of the showing to determine its quantative sufficiency must be made 

timely, viz. “only at or around the petition is filed” Community Affairs, Inc., 326 NLRB 311 

(1998). 

The above-administrative procedures parallel, but do not impinge on, the general rule that the 

Board normally refuses to receive evidence in representation cases that signatures on cards were 

unlawfully obtained or were otherwise invalid or fraudulent, but that such issues may be litigated, 

on appropriate charges and a complaint, in an unfair labor practice proceeding. Dale’s Super 

Valu, 181 NLRB 698 (1970). See also Radio Corp. of America, 89 NLRB 699 fn. 5 (1950); White

River Lumber Co., 88 NLRB 158 fn. 3 (1950); Clarostat Mfg. Co., 88 NLRB 723 fn. 2 (1950). 
52 SHOWING OF INTEREST 
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 even 

though 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); and 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 

53
54 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).

In Electromation, Inc., 309 NLRB 990 (1992), the Board set out its analysis of what is 

contemplated by the phrase “dealing with.” This analysis is fully discussed in Syracuse 

University, 350 NLRB 755 (2007), holding that the employer’s Staff Complaint Process is not a 

labor organization because its purpose is adjudicative and it does not make proposals to 

management or receive counterproposals from management. 

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 
QUALIFICATION OF REPRESENTATIVE 55

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). 

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 556 (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); and 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). 
56 QUALIFICATION OF REPRESENTATIVE 

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 

“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. 
QUALIFICATION OF REPRESENTATIVE 57

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 

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); and 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 
58 QUALIFICATION OF REPRESENTATIVE 

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. 

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); and 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; 
QUALIFICATION OF REPRESENTATIVE 59

(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. 

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); and 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); and 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. 
60 QUALIFICATION OF REPRESENTATIVE 

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 

“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 , 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); and 

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 the 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 
QUALIFICATION OF REPRESENTATIVE 61

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). 

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); and 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); and 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, supra, 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.
62 QUALIFICATION OF REPRESENTATIVE 
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); and 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); and 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 System), 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 

63
64 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 65

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 

1010 (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). 

Nor will the Board defer to the award of an arbitrator in a representation matter “except in the 

narrow class of cases where the sole and dispositive issue is one of contract interpretation,” 

Advanced Architectural Metals, Inc., 347 NLRB 1279 (2006). 

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 963 (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. 

In Postal Service, 348 NLRB 25 (2006), the Board distinguished Verizon finding that it 

would accept a petition filed after completion of the arbitration process. The Board found that a 

settlement agreement providing for arbitration did not provide an “express agreement” that the 

employer would not file a petition with the Board. 

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, 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 
66 EXISTENCE OF A REPRESENTATION QUESTION 

NLRB 29 (1979); 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. 

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); and 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); and 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. 
EXISTENCE OF A REPRESENTATION QUESTION 67

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. 

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, supra, 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); and Moore Laminating, 137 

NLRB 729, 732 fn. 6 (1962). 

For other material on Expedited Elections, see sections 5-610 and 22-122. 

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); and 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.,
68 EXISTENCE OF A REPRESENTATION QUESTION 

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). 

In 2006, the Board granted review of a Regional Director’s decision to dismiss a petition 

based on the New Otani principle. The grant of review was published. See Marriott Hartford 

Downtown Hotel, 347 NLRB 865 (2006). Later, however, in an unpublished order the Board 

affirmed the Regional Director’s decision. At the time of this printing the issue is pending at the 

Board albeit in another case. 

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

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 Sales & Service v. NLRB, 522 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. 
EXISTENCE OF A REPRESENTATION QUESTION 69

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, supra at 727–728, 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). 

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 Co., 

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 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) (Seattle-First), 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 
70 EXISTENCE OF A REPRESENTATION QUESTION 

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. 

For many years, the Board had a “due process” requirement for union affiliation matters. In 

Raymond F. Kravis Center for the Performing Arts, 351 NLRB No. 19 (2007), it abandoned that 

requirement in light of the Supreme Court’s Seattle-First decision. Similarly, the Board holds 

that lack of participation by nonmembers in an affiliation vote does not create a question 

concerning representation. Deposit Telephone Co., 349 NLRB 214 (2007). Kravis is applied 

retroactively. See Allied Mechanical Services, 352 NLRB No. 83 (2008). 

Disaffiliation of a union from the AFL–CIO does not, standing alone, create a question 

concerning representation (Laurel Baye Healthcare of Lake Lanier, 346 NLRB 159 (2007), and 

New York Center for Rehabilitation Care, 346 NLRB 447 (2006)). 

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.) 

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); and 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 
EXISTENCE OF A REPRESENTATION QUESTION 71

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 

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 
72 EXISTENCE OF A REPRESENTATION QUESTION 

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 

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). 
8. DISCLAIMER OF INTEREST AND WITHDRAWAL OF 

PETITION 

A determination of the question concerning representation raised in the filing of a petition 

may be foreclosed by a disclaimer of interest by the party whose representative status is in issue 

or by the withdrawal of petition. 

8-100 Disclaimer 

332-2500 et seq. 

A valid disclaimer may be made by the petitioning representative, by the representative 

named in an employer petition, or by the incumbent union sought to be decertified. To be 

effective, it must be clear and unequivocal and made in good faith. Retail Associates, 120 NLRB 

388, 391–392 (1958); Rochelle’s Restaurant, 152 NLRB 1401 (1965); and Gazette Printing Co., 

175 NLRB 1103 (1969). In International Paper, 325 NLRB 689 (1998), the Board characterized 

the request as being one of “sincere of abandonment with relative permanency.” 

Thus, a union’s bare statement is not sufficient to establish that it has abandoned its claim to 

representation if the surrounding circumstances justify an inference to the contrary. 3 Beall Bros.

3, 110 NLRB 685, 687 (1954). Its conduct, judged in its entirety, must not be inconsistent with 

its alleged disclaimer H. A. Rider & Sons, 117 NLRB 517, 518 (1957). McClintock Market, 244 

NLRB 555 (1979), and Ogden Enterprises, 248 NLRB 290 (1980). Windee’s Metal Industries, 

309 NLRB 1074 (1992). 

In any inquiry into the effectiveness of a disclaimer, the union’s contemporaneous and 

subsequent conduct receives particular attention. Miratti’s, Inc., 132 NLRB 699 (1961); Holiday

Inn of Providence-Downtown, 179 NLRB 337 (1969); and Denny’s Restaurant, 186 NLRB 48 

(1970). In the latter, the Board rejected a contention that the withdrawal or dismissal by the 

General Counsel of charges filed by the employer, alleging violations of Section 8(b)(7)(c) based 

on the picketing involved in the case, precluded a finding of conduct inconsistent with the union’s 

asserted disclaimer. See also Electrical Workers Local 58 (Steinmetz Electrical), 234 NLRB 633 

(1978), an unfair labor practice case. In VFL Technology Corp., 329 NLRB 458 (1999), a 

union’s disclaimer issued pursuant to an article XX (no raid) decision was considered ineffective 

where the union continued to represent the employees. 

The determination whether a disclaimer of interest by a union should be accepted at face 

value or whether, despite the disclaimer, the union is actually continuing to have an immediate 

recognitional object comes up with recurring regularity. The question in such cases, the Board 

has held, is one of fact to be resolved by evaluating the union’s course of conduct before and after 

the disclaimer. See, for example, Pennisula General Tire Co., 144 NLRB 1459 (1963). 

McClintock Market and Ogden Enterprises, supra. 

In American Sunroof Corp., 243 NLRB 1128 (1979), the Board held that a disclaimer by a 

contracting union would remove that contract as a bar to an election. Compare Mack Trucks, 209 

NLRB 1003 (1974); Gate City Optical Co., 175 NLRB 1059 (1969); East Mfg. Corp., 242 NLRB 

5 (1979). For further discussion of this issue see chapter 9, infra. See also VFL Technology 

Corp., 332 NLRB 1443 (2000), in which a divided Board found a clear and unequivocal 

disclaimer of interest by the union after it had lost a “no raid” proceeding under article XX of the 

AFL–CIO constitution, and Garden Manor Farms, Inc., 341 NLRB 192 (2004). 

The absence of a disclaimer may be considered in assessing whether this is a recognitional 

objective. Micromedia Publishing, 289 NLRB 537 (1988). 

An issue arose in the context of a claim by a union that, while it was possibly retaining its 

interest in representing the employees at some future date, it was no longer making a present

demand for recognition. In rejecting this contention, the Board found it significant that the union 

was not picketing for reinstatement of one or a small number of employees, but for a mass 

73
74 DISCLAIMER OF INTEREST AND WITHDRAWAL OF PETITION 

reinstatement of all strikers. “Since the strikers,” observed the Board, “were union adherents, the 

immediate consequence of mass reinstatement would have been the reestablishment of the 

union’s earlier majority status.” In these circumstances, it could not be realistically said that it 

had only a future, but not a present, object of recognition. Also taken into consideration was the 

union’s continued picketing in support of bargaining demands for a 16-month period. Gazette

Printing Co., supra. 

In this connection, the Board has stated that, if there is recognitional picketing immediately 

prior to an alleged shift in purpose, it will review the alleged shift in purpose with “some 

skepticism.” Waiters & Bartenders Local 500 (Mission Valley), 140 NLRB 433, 442 (1963). 

This is particularly true when the union resumes picketing after “a very brief hiatus” (Gazette 

Printing Co., supra). The holding that the picketing in Gazette had a recognitional objective, 

however, was explicitly based on the particular facts of that case, and in no way modified the 

position, set forth in Auto Workers (Fanelli Ford), 133 NLRB 1468 (1961), that picketing for 

reinstatement does not necessarily have a recognitional object. (Gazette Printing Co., supra at fn. 

5.) See also Don Davis Pontiac, 233 NLRB 853 (1977). For further discussion of hiatus, see 

Philadelphia Building Trades Council (Altemose Construction), 222 NLRB 1276 (1970), and 

Electrical Workers Local 453 (Southern Sun), 242 NLRB 1130 (1979). 

When, however, the union’s picketing is not inconsistent with its disclaimer, an employer’s 

petition is subject to dismissal. Autohaus-Bugger Inc., 173 NLRB 184 (1969). For example, 

picketing at customer entrances, having as its purpose and effect the notification to the public of 

the fact that the employer is “not union,” is not in and of itself inconsistent with the union’s 

disclaimer. Cockatoo, Inc., 145 NLRB 611, 614 (1964); see also Raymond F. Schweitzer, Inc.,

165 NLRB 875 (1974). Cf. Rusty Scupper, 215 NLRB 201 (1974). 

The pressing of an appeal from a Regional Director’s dismissal of a charge alleging violation 

of Section 8(a)(1) and (5) is not necessarily inconsistent with a union’s disclaimer of a present 

status as majority representative of the employees. Franz Food Products, 137 NLRB 340 (1962). 

Section 9(c)(ii) authorizes the Board to proceed to an election only when there is a present claim 

of representation by the union, while an 8(a)(5) allegation is based on the contention that the 

union represented a majority in the past; i.e., at the time it requested recognition and the employer 

unlawfully refused to bargain with it. The finding of an 8(a)(5) violation thus necessarily requires 

an implicit conclusion that no valid question of representation existed at the time of the Board’s 

order. When the union’s disclaimer is found to be effective, of course, no election will be held. 

On the other hand, 2 days before a disclaimer, the union told the employer that its picketing 

was designed as a pressure device to force capitulation to its recognition demand made 3 months 

earlier and, notwithstanding its disclaimer, continued without interruption to picket as it had done 

before, save for a slight modification in the picket sign language. The union’s “entire course of 

conduct” was inconsistent with its expressed disclaimer. Capitol Market No. 1, 145 NLRB 1430, 

1432 (1964), McClintock Market, supra. Likewise, when the picketing was begun at the 

instigation of an association which included a number of the employer’s competitors and which 

had asked the union if it could “do anything” about the employer’s alleged substandard wages 

and hours, and when the union alleged that its picketing was assertedly to protest substandard 

wages and working conditions, but at no time had inquired into these subjects, the picketing was 

inconsistent with the disclaimer and was designed to force the employer to recognize and bargain 

with the union. Pennisula General Tire Co., supra. 

Publicity picketing, or picketing aimed only at organizing the employees with the hope of 

eventually succeeding and then obtaining recognition, is not necessarily inconsistent with a 

disclaimer of a present claim for recognition. Martino’s, Home Furnishings, 145 NLRB 604 

(1964). In that case, as of the date of the hearing, almost 2 years after the union had last 

communicated with the employer, it directed its appeal to the public toward persuading potential 

consumers not to shop at the employer’s establishment and distributed leaflets expressly 

declaring, “We make no demands of any kind” on the employer. This did not constitute a 
DISCLAIMER OF INTEREST AND WITHDRAWAL OF PETITION 75

present claim to recognition and the union’s activity was consequently not inconsistent with its 

disclaimer. See also Windee’s Metal Industries, 309 NLRB 1074 (1992). 

A union’s failure to act in furtherance of its recognition, including failure to appear at the 

representation hearing, has been interpreted by the Board as either an abandonment of its 

representative status or a disclaimer that it represents the employees in question. Josephine 

Furniture Co., 172 NLRB 404 (1968); and Texas Bus Lines, 277 NLRB 626 (1985). Cf. 

McClintock Market, supra at fn. 4; Brazeway, Inc., 119 NLRB 87, 88 fn. 3 (1958); O’Connor

Motors, 100 NLRB 1146 fn. 1 (1951); and Felton Oil Co., 78 NLRB 1033, 1034 (1948). 

8-200 Withdrawal 

332-5000 et seq. 

Related to the subject of disclaimer of interest is the prior withdrawal of a petition. 

Prior to the transfer of a case to the Board, a petition may be withdrawn only with the consent 

of the Regional Director with whom such petition was filed. After the transfer of a case to the 

Board, the petition may be withdrawn only with the consent of the Board. Whenever the 

Regional Director or the Board, as the case may be, approves the withdrawal of any petition, the 

case is closed. Rules and Regulations, Section 102.60(a). 

When the petitioner moves to withdraw its petition, but the intervenor opposes, the petitioner 

may withdraw from the election. In a specific instance, this was done “with prejudice” to the 

petitioner’s filing of a new petition for a period of 6 months from the date of the decision “unless 

good cause is shown why the Board should entertain a new petition filed prior to the expiration of 

such period.” Carpenter Baking Co., 112 NLRB 288, 289 (1955). See also Baltimore Gas & 

Electric, 330 NLRB 3 (1999), where a Board majority permitted withdrawal after a second 

election. The withdrawal request came more than 12 months after the second election and at the 

time of the request, the Board was considering challenges and objections arising from that second 

election. And in Mercy General Hospital, 336 NLRB 1047 (2001), the Board approved 

withdrawal of RC petitions on a showing that the petitioner and employer agreed to voluntary 

recognition. The settlement also involved a vacating order of an earlier Board decision. 

Withdrawal from an election is permitted when, for example, the employees in two previous 

separate units represented by different unions are thereafter included in a combined unit. 

Westinghouse Electric Corp., 144 NLRB 455 (1963). In that case, although neither union 

claimed to represent all the employees in the combined unit, the employer’s petition for such a 

unit was granted, and in these circumstances either or both unions were permitted to withdraw 

from the election within 10 days from the date of the Board’s decision with the proviso that, if 

both unions withdrew from the election, the employer’s petition would be dismissed. However, if 

both unions elected to withdraw, and the employer’s petition was dismissed, that petition could be 

reinstated if either or both unions made any claim to represent the employees in question within 6 

months of the date of dismissal. Id. at 459. See also Denver Publishing Co., 238 NLRB 207 

(1978). 

In Transportation Maintenance Services, 328 NLRB 691 (1999), a divided Board permitted 

the employee petitioner in an RD case to withdraw the petition after the election but before the 

count of the impounded ballots. See also Garden Manor Farms, Inc., 341 NLRB 192 (2004), 

where a divided Board approved withdrawal of a petition that had been pending review by the 

Board and the union intended to file a second petition. 

8-300 Effect of Disclaimer or Withdrawal 

Board policies and procedures with respect to disclaimers and withdrawals including the 

effects thereof are set out in the Board’s Representation Casehandling Manual (Part Two). See 

sections 11110–11118 (withdrawals) and sections 11120–11124 (disclaimers). See also Stock 

Building Supply, 337 NLRB 440 (2002); NLRB v. Davenport Lutheran Home, 244 F.3d 660 (8th 

Cir. 2001);. and Baltimore Gas & Electric, 330 NLRB 3 (1999). 
76 DISCLAIMER OF INTEREST AND WITHDRAWAL OF PETITION 

A withdrawal of a petition after an election and during consideration of determinative 

challenge ballots does not affect the 1-year election bar rule. E Center, Yuba Sutter Head Start,

337 NLRB 983 (2002). 
9. CONTRACT BAR 

347-4001-2575-5000 

When a petition is filed for a representation election among a group of employees who are 

alleged to be covered by a collective-bargaining contract, the Board must decide whether the 

asserted contract exists in fact and whether it conforms to certain requirements. If the Board 

finds that the contract does exist and that the requirements are met, the contract is held a bar to an 

election. This is known as the contract-bar doctrine. Hexton Furniture Co., 111 NLRB 342 

(1955). 

The major objective of the Board’s contract-bar doctrine is to achieve a reasonable balance 

between the frequently conflicting aims of industrial stability and freedom of employees’ choice. 

This doctrine is intended to afford the contracting parties and the employees a reasonable period 

of stability in their relationship without interruption and at the same time to afford the employees 

the opportunity, at reasonable times, to change or eliminate their bargaining representative, if they 

wish to do so. The burden of proving that a contract is a bar is on the party asserting the doctrine. 

Roosevelt Memorial Park, 187 NLRB 517 (1970). “The single indispensable thread running 

through the Board’s decisions on contract bar is that the documents relied on as manifesting the 

parties’ agreement must clearly set out or refer to the terms of the agreement and must leave no 

doubt that they amount to an offer and an acceptance of those terms through the parties’ affixing 

of their signatures.” Seton Medical Center, 317 NLRB 87 (1995). 

For convenience, the contract-bar rules appear under a number of separate headings, although 

many of the subjects, notwithstanding the headings under which they are found, are necessarily 

interrelated. 

9-100 Adequacy of Contract 

347-4001-4300 

To serve as a bar to an election, a contract must be a “collective” agreement. J. P. Sand & 

Gravel Co., 222 NLRB 83 (1976), and be the result of free collective bargaining. Frank Hager, 

Inc., 230 NLRB 476 (1977). The basic requirements are set out in Appalachian Shale Products 

Co., 121 NLRB 1160 (1958), the lead case in this area. They are: 

9-110 Written Contract 

347-4040-1720 

347-4040-1760 

347-4040-1790 

347-4040-5001-5000 

The contract must be reduced to writing. An oral agreement does not constitute a bar. 

Empire Screen Printing, 249 NLRB 718 (1980); and Sullivan & Sons Mfg. Corp., 105 NLRB 549 

(1953). Nor does a written agreement which is extended orally. An agreement to arbitrate the 

provisions of a new agreement does not constitute a bar “for to constitute a bar, a contract must 

be in writing and signed by all the parties at the time the petition is filed.” Herlin Press, 177 

NLRB 940 (1969). Compare Stur-Dee Health Products, 248 NLRB 1100 (1980), in which the 

interested arbitration was to cover only economic conditions and all other terms were agreed 

upon. 

The contract-bar doctrine does not require “a formal final document.” It can be satisfied by a 

group of informal documents provided that they lay out substantial terms and conditions of 

employement and that they are signed. Waste Management of Maryland, 338 NLRB 1002 

(2003), and cases cited therein. 

77
78 CONTRACT BAR

“[R]eal stability in industrial relations can only be achieved where the contract undertakes to 

chart with adequate precision the course of the bargaining relationship, and the parties can look to 

the actual terms and conditions of their contract for guidance in their day-to-day problems.” 

Appalachian Shale Products Co., supra at 1163. See Raymond’s, Inc., 161 NLRB 838 (1966), for 

an application of this rule; see also Western Roto Engravers, 168 NLRB 986 (1968). Compare 

Seton Medical Center, supra; and St. Mary’s Hospital, 317 NLRB 89 (1995). 

When the employer has not applied the contract to the employees covered, and the union has 

not sought to administer it as to them, the contract “does not establish the existence of a 

stabilizing labor agreement which bars a representation election.” Tri-State Transportation Co., 

179 NLRB 310 (1969). This condition is not met when the contract is “in reality a set of identical 

individual contracts” between the employer and each signatory employee, because there is no 

evidence that the employees intended to be bound as a group by the product of the negotiations 

nor that the employer expected them to be so bound. Austin Powder Co., 201 NLRB 566 (1973); 

Cal-Western Van Storage Co., 170 NLRB 67 (1968). See also Brescome Distributors Corp., 197 

NLRB 642 (1972). 

When a contract, which meets the contract-bar standards, includes an error through mutual 

mistake, and another document is later drafted and signed with the intention of reforming the 

written contract to the actual intention of the parties, the earlier contract, as reformed, constitutes 

a bar. Gary Steel Supply Co., 144 NLRB 470 (1963); Gaylord Broadcasting, 250 NLRB 198 

(1980); and USM Corp., 256 NLRB 996 (1981). 

9-120 Signatures of the Parties 

347-4020-3350 

347-4040-1740 et seq. 

347-4040-1780 

The contract must be signed by all the parties before the rival petition is filed. DePaul Adult 

Care Communities, 325 NLRB 681 (1998), and Freuhauf Trailer Co., 87 NLRB 589 (1949). 

The signatures do not, however, have to be on the same formal document. Holiday Inn, 225 

NLRB 1092 (1976); and Liberty House, 225 NLRB 869 (1976). Although the terms of the 

agreement are applied retroactively, contracts signed after the filing of a petition do not serve as a 

bar. Hotel Employers Assn. of San Francisco, 159 NLRB 143 (1966). Thus, an undated contract 

was not recognized as a bar where the evidence as to the date of its execution was vague, 

ambiguous, and inconsistent. Road & Rail Services, 344 NLRB 388 (2005), and Roosevelt 

Memorial Park, supra. However, the absence of an execution date in the contract does not 

remove it as a bar if the date of execution was before the petition and that date can be established. 

Jackson Terrace Associates, 346 NLRB 180 (2005); and Cooper Tanks & Welding Corp., 328 

NLRB 759 (1999). A belatedly introduced document, newly signed, and especially prepared at 

the employer’s request to replace its original copy which had been lost or misplaced, was held 

insufficient to bar an election. Baldwin Auto Co., 180 NLRB 488 (1970). 

The contract must be signed by an authorized person. See Wickly, Inc., 131 NLRB 467 

(1961); and Overhead Door Co., 178 NLRB 481 (1969). The authorized person in the case of a 

joint representative is the spokesman for the joint representative and not the respective agents of 

the individual locals. Pharmaseel Laboratories, 199 NLRB 324 (1972). 

Unless a contract signed by all the parties precedes a petition, it does not bar an election even 

though the parties consider it properly concluded and have put into effect some or all of its 

provisions. This does not mean that contracts must be formal documents or that they cannot 

consist of an exchange of a written proposal and a written acceptance. Georgia Purchasing, 230 

NLRB 1174 (1977). It does mean that in such instances the informal document or the documents 

that are exchanged must be signed by all the parties in order to serve as a bar to an election. 

Appalachian Shale Products Co., supra; Waste Management of Maryland, supra; Yellow Cab,
CONTRACT BAR 79

131 NLRB 239 (1961); United Telephone Co. of Ohio, 179 NLRB 732 (1969); and Permanente 

Medical Group, 187 NLRB 1033 (1971). Similarly, these documents must establish the identity 

and the terms of the agreement. See Branch Cheese, 307 NLRB 239 (1992). The initials of the 

parties satisfies the signature requirement. Gaylord Broadcasting, supra. 

A requirement for approval by an international union which is not a named party to the 

contract is not a substantial requirement necessary to achieve stability in the bargaining 

relationship of the parties and is therefore not a condition precedent to the functioning of the 

contract as a bar. Standard Oil Co., 119 NLRB 598 (1958). Compare Crothall Hospital 

Services, 270 NLRB 1420 (1984), in which the named party had not signed and contract therefore 

held not to be a bar. However, if the contract by its terms makes approval by the international 

union a condition precedent, the terms may be such that the approval need not be given in 

writing. Western Roto Engravers, supra. 

9-130 Substantial Terms and Conditions 

347-4040-5000 

The contract must contain substantial terms and conditions of employment deemed sufficient 

to stabilize the bargaining relationship. It will not serve as a bar if limited to wages alone, or to 

one or several provisions not deemed substantial by the Board. Appalachian Shale Products Co.,

supra; Artcraft Displays, 262 NLRB 1233 (1982); cf. Leone Industries, 172 NLRB 1463 (1968); 

and Southern California Gas Co., 178 NLRB 607 (1969). Presumably a contract that is no longer 

applied to the terms of employment will not act as a bar. See Visitainer Corp., 237 NLRB 257 

(1978), in which the Board found that it was being applied. 

Thus, where a main agreement exempted certain employees from its coverage and a letter did 

not include them, the letter stating only the “position” of one of the parties, the letter was held not 

to have met the standards for the valid assertion of a contract bar. “Although the Board does not 

require that a contract must be embodied in a formal document if it is to serve as a bar, an 

asserted contract, if it is to meet minimal bar standards, must at least be signed by the parties and 

must contain terms and conditions of employment sufficiently substantial to stabilize the 

bargaining relationship.” Hotel Employers Assn. of San Francisco, supra. See also Waste 

Management of Maryland, supra. 

But, the Board does not require that an agreement delineate completely every single one of its 

provisions in order to qualify as a bar. USM Corp., supra at fn. 18, and cases cited therein. 

Similarly, an agreement was held to be a bar when the parties had agreed to all matters except 

economic conditions and had agreed to interest arbitration on those matters. Jackson Terrace 

Associates, 346 NLRB 180 (2005); Cooper Tanks & Welding Corp., 328 NLRB 759 (1999); and 

Stur-Dee Health Products, supra. Cf. Herlin Press, supra. In Madelaine Chocolate Novelties, 

333 NLRB 1312 (2001), the Board found no bar arising from an agreement to adopt the fourth 

year prior agreement as the first year of a successor agreement. Because the agreement did not 

provide terms for later years, the Board found no substantial terms. 

Some variance between the parties’ agreement and the written contract may not be enough to 

remove the contract as a bar. Aramark Sports & Entertainment Services, 327 NLRB 47 (1998). 

For an application of this rule in a case involving handwritten notes, see Eastwood Nealley 

Co., 169 NLRB 604 (1968). 

9-140 Coverage 

347-4040-3300 

347-4050 

The contract must clearly by its terms encompass the employees involved in the petition. 

Houck Transport Co., 130 NLRB 270 (1961); Bargain City, U.S.A., 131 NLRB 803 (1961); 
80 CONTRACT BAR

Plimpton Press, 140 NLRB 975 (1963); and Moore-McCormack Lines, 181 NLRB 510 (1970). 

See also United Telephone Co. of Ohio, supra. 

It should be noted that the precise wording used in the contract is not necessarily controlling. 

Thus, when the language was “purely descriptive and intended for the purpose of identifying the 

employer and not the scope of the contact’s coverage,’’ the contract was nevertheless upheld as a 

bar. Simmons Co., 126 NLRB 656 (1960). Furthermore, the parties’ intent regarding employee 

coverage may be elucidated by their bargaining history. Trade Wind Transportation Co., 168 

NLRB 860 (1968); and Hyatt House Motel, 174 NLRB 1009 (1969). See also RPM Products,

217 NLRB 855 (1975), in which testimony was admitted as to the scope of the unit. 

When newly hired employees are normal accretions to the existing unit, the contract bars a 

petition. Firestone Synthetic Fibers Co., 171 NLRB 1121, 1123 (1968). 

A contract does not cease to be a bar because it refers to the employees at a particular 

establishment and there has since been a relocation of the establishment. See, for example, Arrow 

Co., 147 NLRB 829 (1964). 

In G.L. Milliken Plastering, 340 NLRB 1169 fn. 4 (2003), the Board rejected a contention 

that limited geographic coverage affected contract bar quality. 

In UMass Memorial Medical Center, 349 NLRB 369 (2007), the Board affirmed a Regional 

Director’s order of an Armour-Globe election for a unit of per diem paramedics. (Armour & Co., 

40 NLRB 1333 (1942); and Globe Machine & Stamping Co., 3 NLRB 294 (1937).) The union 

already represented the regular paramedics and the parties had discussed the per diem paramedics 

during negotiations. The union did not request recognition at the time. Later, during the term of 

the agreement, the union filed a petition for a self-determination election to determine whether 

the per diem paramedics wished to be included in the unit. The Board agreed that a selfdetermination election was appropriate, that it was not barred by the contract and that the policy 

against unit clarification petitions during the term of an agreement was not applicable to a selfdetermination election because it is “meaningfully distinct from an accretion.” 

9-150 Appropriate Unit 

347-8000 et seq. 

347-4001-5000 

347-4040-3300 

The contract must cover an appropriate unit. Mathieson Alkali Works, 51 NLRB 113 (1943); 

Indianapolis Light Co., 78 NLRB 136 fn. 4 (1948); and Moveable Partitions, 175 NLRB 915 

(1969). In considering the appropriateness question, the Board places great weight on bargaining 

history and “will not disturb an established relationship unless required to do so by the dictates of 

the Act.” Great Atlantic & Pacific Tea Co., 153 NLRB 1549, 1550 (1965), quoted in Canal 

Carting, Inc., 339 NLRB 969 (2003). But, the Board said in Mathieson Alkali Works, supra at 

115: “Where the parties contract on the basis of a unit different from that found appropriate by 

the Board their agreement is subject to any subsequent determination the Board may make, in a 

proper proceeding, with respect to the appropriateness of the unit. Otherwise, the parties could in 

effect set aside the Board’s unit finding and foreclose the Board from performing its statutory 

duty of determining the appropriate unit.” 

The fact that several individuals were included who would not have been in an otherwise 

clearly appropriate unit, is insufficient to remove the contract as a bar. C. G. Willis, Inc., 119 

NLRB 1677 (1958) (supervisors); Airborne Freight Corp., 142 NLRB 873 (1963) (office 

clericals); and American Dyewood, 99 NLRB 78, 80 (1952) (small group of guards in a nonguard 

unit). But see Apex Tankers Co., 257 NLRB 685 (1981), in which the participation of supervisors 

in the union was extensive and the Board treated the union as if it were defunct because of the 

conflict of interest. 
CONTRACT BAR 81

The statutory proscription in Section 9(b)(3) against certification of guard units in certain 

circumstances does not preclude the application of normal contract-bar rules to contracts covering 

such units. Mixed units of guards and nonguards are never appropriate and hence do not 

constitute bars. Monsanto Chemical Co., 108 NLRB 870 (1950); and Corrections Corp. of 

America, 327 NLRB 577 (1999). However, if the unit is appropriate, e.g., was an all guards unit, 

and the contract is otherwise lawful, it serves as a bar. Burns International Detective Agency, 134 

NLRB 451 (1962). Burns was reaffirmed in Corporacion de Servicios Legales, 289 NLRB 612 

(1988), in which the Board found as a bar a contract containing a mixed unit of professionals and 

nonprofessionals and the professionals had not voted on inclusion in the unit. Burns and 

Corporacion de Servicios Legales, were reaffirmed in Stay Security, 311 NLRB 252 (1993). 

For further discussion of “guards” issues see section 18-200. For discussion of the history of 

collective bargaining in considering appropriate unit see section 12-220. 

9-160 “Members Only” 

347-4040-3367 

A contract for “members only” does not operate as a bar. Appalachian Shale Products Co., 

supra; and G. C. Murphy Co., 80 NLRB 1072 (1949); see also N. Sumergrade & Sons, 121 NLRB 

667, 669–670 (1958). 

Section 9(a) of the Act provides that “Representatives designated or selected for the purposes 

of collective bargaining by the majority of the employees in a unit appropriate for such purposes, 

shall be the exclusive representatives of all the employees in such unit for the purposes of 

collective bargaining.” As the statute contemplates the representation of all employees, not just 

those who are union members, a contract for members only does not constitute a bar to an 

election. In Bob’s Big Boy Family Restaurant, 235 NLRB 1227 (1978), the Board held that a 

contract clause that benefited “members only” removed the contract as a bar. But see NLRB v. 

Bob’s Big Boy Family Restaurant, 625 F.2d 850 (9th Cir. 1980). 

When ambiguity exists as to the intended coverage of a contract—whether for members only 

or equally to all employees regardless of membership—extrinsic evidence of intent and practice 

is admissible in the representation case hearing to establish the contract coverage. Post Houses,

173 NLRB 1320 (1969). See A & M Trucking, 314 NLRB 991 (1994), for an extensive analysis 

by the Board of a “members-only” contention. 

9-170 Master Agreement 

347-4040-1760-2500 

A master agreement covering more than one plant or a multiemployer group is no bar to an 

election at one of the plants where by its terms it is not effective until a local agreement has been 

completed, or until the inclusion of the plant has been negotiated by the parties as required by the 

master agreement, and a petition is filed before these events occur. Burns Security Services, 257 

NLRB 387, 387–388 (1981). However, when the master agreement is found to be the basic 

agreement, and local supplement merely serves to fill out its terms as to certain local conditions, 

it will constitute a bar to an election. Appalachian Shale Products Co., supra; and Pillsbury 

Mills, 92 NLRB 172 (1951). When the master agreement and the supplemental agreement have 

different termination dates, the one to be considered for election-bar purposes is the agreement 

which embodies the basic terms and conditions of employment. Tri-State Transportation Co., 

supra. 

A master agreement cannot be recognized for contract-bar purposes where its terms require, 

as a condition of extension of its terms to noncovered units, that the majority status of the 

signatory union in such a unit be evidenced by a card check and the record fails to establish that 

the condition was ever met. Long Transportation Co., 181 NLRB 7 (1970). 
82 CONTRACT BAR

9-180 Prior Ratification 

347-4020-3350-5000 

When ratification is a condition precedent to contractual validity by express contractual 

provision, the contract is ineffectual as a bar unless it is ratified prior to the filing of a petition. 

American Broadcasting Co., 114 NLRB 7 (1956); and Kennebec Mills Corp., 115 NLRB 1483 

(1956). But for this condition to be operative, it must be express, otherwise prior ratification is 

not required. International Paper Co., 294 NLRB 1168 fn. 1 (1989). 

This question arises when a contract by its terms requires that the union membership must 

first ratify the contract before it is deemed valid, or when it is contended that the parties had 

orally agreed to make prior ratifications a condition precedent, or when, although no express 

provision for prior ratification is included in the contract, it is contended that prior ratification is 

required by the union’s constitution or bylaws. Under this rule, prior ratification by the 

membership is required only when it is made an express condition precedent in the contract itself. 

Appalachian Shale Products Co., supra. See also Merico, Inc., 207 NLRB 101 (1973); Aramark 

Sports & Entertainment Services, 327 NLRB 47 (1998); and United Health Care Services, 326 

NLRB 1379 (1998). In such circumstances, a report to the employer that the contract has been 

ratified is normally sufficient to bar a petition. Swift & Co., 213 NLRB 49 (1974). 

9-200 Changed Circumstances Within the Contract Term 

347-4050 

347-4020-3350-1600 

Contracts executed before any employees have been hired or prior to a substantial increase in 

personnel do not bar an election, since the contracting union does not in fact enjoy a true 

representative status, the real unit for purposes of representation still being in an inchoate stage. 

The lead decision for this general category is General Extrusion Co., 121 NLRB 1165 (1958). 

9-210 Change in the Size of the Unit 

The contract-bar rules involving changes in size of units within the contract term are: 

9-211 Prehire Contracts 

347-4020-3350-1600 

347-4080 

347-8020 

A contract does not bar an election if executed before any employees have been hired. Price 

National Corp., 102 NLRB 1393 (1953); Potlatch Forests, 94 NLRB 1444 (1951); General 

Extrusion Co., supra at 1167; and Western Freight Assn., 172 NLRB 303 (1968). 

Even prehire contracts in the construction industry under Section 8(f) do not constitute bars to 

a representation election under Section 9(c). This is due to the express language in Section 8(f) 

which, among other things, provides that “any agreement which would be invalid, but for clause 

(1) of this subsection, shall not be a bar to a petition filed pursuant to section 9(c) or 9(e).” S. S.

Burford, Inc., 130 NLRB 1641, 1642 (1961); and John Deklewa & Sons, 282 NLRB 1375 (1987). 

But a contract will be a bar if it is continued in effect after the conversion of the bargaining 

relationship from 8(f) to 9(a). VFL Technology Corp., 329 NLRB 458 (1999). 

For other construction industry issues, see sections 5-210, 9-1000, 10-600–700, and 15-130. 
CONTRACT BAR 83

9-212 The Yardsticks 

347-4010-2001-5000 

347-8020-2025-3300 et seq. 

A contract bars an election only if at least 30 percent of the complement employed at the time 

of the hearing had been employed at the time the contract was executed and 50 percent of the job 

classifications in existence at the time of the hearing were in existence at the time the contract 

was executed. General Extrusion Co., supra; Rheem Mfg. Co., 188 NLRB 436 (1971); Guy H. 

James Construction Co., 191 NLRB 282 (1971); Cheney Bigelow Wire Works, 197 NLRB 1279 

(1972); National Cash Register Co., 201 NLRB 846 (1973); and A-1 Linen Service, 227 NLRB 

1469 (1977). In establishing the required percentage of employees, supervisors may not be 

counted. Permaneer California Corp., 175 NLRB 348 (1969). Trainees or probationary 

employees, however, may count as employees when the employer is committed to employ them 

in its operation on successful completion of their training. Performance of work even when full 

operations are in the preparatory stage has been held to be the equivalent of having positions in 

existence. California Labor Industries, 249 NLRB 600 (1980); Kleins Golden Manor, 214 NLRB 

807, 815–816 (1974); and Leone Industries, supra. 

These criteria are used in all cases where it must be decided whether a contract was 

prematurely executed. Originally, they were applied as of the time the new contract was executed. 

Foremost Appliance Corp., 128 NLRB 1033, 1035 (1960). Subsequently, the determinative date 

was found to be the date when the parties “agreed to apply the contract” to a new facility, and in 

such circumstances the actual date of the signing of the contract was not the determinative one. 

H. L. Klion, Inc., 148 NLRB 656 (1964). But when the execution date is plainly set out in a 

contract and there is no reference to retroactivity from a later date of execution, parol evidence is 

inadmissible to establish that the new contract was agreed on when employer had a substantial 

and representative complement. Consolidated Novelty Co., 186 NLRB 197 (1970). 

It should be noted that the 30-percent ratio articulated in General Extrusion is also relevant to 

the issue of the validity of a contract in an unfair labor practice proceeding. See Herman Bros., 

Inc., 264 NLRB 439, 441 fn. 8 (1982). 

9-220 Change in the Nature of the Unit 

347-4050-0133 

At times, between the execution of the contract and the filing of a petition, a change may 

occur in the nature of the operations, as distinguished from the size of the unit. The rules 

applicable to these situations are: 

9-221 Merger 

347-4050-0133-3300 

347-4050-3300 

A contract does not bar an election when a merger of two or more operations results in the 

creation of an entirely new operation with major personnel changes. New Jersey Natural Gas 

Co., 101 NLRB 251, 252 (1953); General Extrusion Co., supra at 1167; see also Kroger Co., 155 

NLRB 546, 548–549 (1965), distinguishing Bowman Dairy Co., 123 NLRB 707 (1959). See also 

Panda Terminals, 161 NLRB 1215, 1222–1223 (1966), and Massachusetts Electric Co., 248 

NLRB 155–157 (1980), where the two relatively equal groups to be merged were separately 

represented by different unions. See also General Electric Co., 185 NLRB 13 (1970). General 

Electric Co., 170 NLRB 1272 (1968); and General Electric Co., 170 NLRB 1277 (1968). 

Compare Builders Emporium, 97 NLRB 1113 (1952), where two companies owned by a single 

employer were consolidated at the location of one of the companies and the Board found the 

contract at that location to bar an election. 
84 CONTRACT BAR

9-222 Shutdown 

347-4050-8300 

When a plant is shut down for an indefinite period of time and operations resume with new 

employees at either the same or new location because the former employees were no longer 

available, a contract does not serve as a bar. Sheets & Mackey, 92 NLRB 179 (1951); General 

Extrusion Co., supra at 1167. When, however, the shutdown is temporary and the employer 

reopens at the same location with substantially the same business, the existing contract must be 

honored and will bar a representation petition. El Torito-La Fiesta Restaurants, 295 NLRB 493 

(1989). 

9-223 Relocation 

347-4050 

347-8020-2050 

347-8020-8000 

A mere relocation of operations accompanied by a transfer of a considerable proportion of the 

employees to another plant, without an accompanying change in the character of the jobs and the 

functions of the employees in the contract unit, does not remove the contract as a bar. Builders 

Emporium, supra; General Extrusion Co., supra; and Electrospace Corp., 189 NLRB 572 (1971). 

And see Rock Bottom Stores, 312 NLRB 400 (1993), enfd. 51 F.3d 366 (2d Cir. 1995). 

Thus, when one of two operations is closed and the employees are transferred to the other 

operation, the changed circumstances are not sufficient in themselves to remove the contract as a 

bar. Jones & Laughlin Steel Corp., 130 NLRB 259 (1961). See also Arrow Co., 147 NLRB 829 

(1964) (new warehouse merely a relocation and consolidation of facilities in two other cities); and 

H. L. Klion, Inc., supra (employer and intervenor had agreed to apply existing written contract as 

modified to new facility). In both Arrow and Klion, the existing contract barred an election. See 

also Pepsi-Cola General Bottlers, 173 NLRB 815 (1969). In Electrospace Corp., supra, the 

employer moved a portion of its operation producing civilian goods to another nearby building 

together with 50 to 60 employees who had been performing this work. The latter were 

transferred without any changes in their jobs and without any changes in wages, benefits, 

seniority, or any other conditions of employment. These transferred employees also produced the 

same products and utilized the same skills as they had at the old location. Compare Consolidated

Fibres, Inc., 205 NLRB 557 (1973), where the relocation resulted in an entirely new operation. 

In determining whether a relocation has been accompanied by a transfer of a considerable 

portion of employees from the old to the new plant, the number of these transferees at the time of 

the hearing is a relevant factor. Montville Warehousing Co., 158 NLRB 952 (1966); and Arrow 

Co., supra. See Harte & Co., 278 NLRB 947 (1986), where the Board set an approximate figure 

of 40 percent of the work force transferring as the standard for determining whether the existing 

contract remains in effect assuming the operations remain substantially the same. 

When the new employees hired at the relocated facility are not normal accretions to the unit 

covered by the existing contract, the Board will not find a bar. Towmotor Corp., 182 NLRB 774 

(1970); and Public Service Co., 190 NLRB 350 (1971). This holds even if an arbitrator should 

decide that the existing contract was intended to cover such employees. Cf. Beacon Photo 

Service, 163 NLRB 706 (1967); and Textron, Inc., 173 NLRB 1290 (1969). The contract-bar 

claim has also been rejected where there was no evidence that employees in a new department 

created at the new facility were actually represented by the intervenor. Flint Steel Corp., 168 

NLRB 271 (1968). 

A storewide contract was held no bar to a petition for the employees in a particular 

department when, at the time of the employer’s negotiations with the incumbent union, the 

department was not yet in existence, the incumbent did not wish to represent the employees in the 
CONTRACT BAR 85

new department and has not theretofore bargained for them, and the department was a 

functionally distinct and homogeneous unit. J. C. Penney Co., 151 NLRB 53 (1965). 

When a contract exists between an employer and an incumbent in a multistore unit, its 

coverage may be extended to a subsequently established store only if it is an accretion to the 

existing unit. Otherwise the contract covering the multistore unit does not constitute a bar. 

Melbet Jewelry Co., 180 NLRB 107 (1970); Kroger Co., 219 NLRB 388 (1975); and Almacs Inc., 

176 NLRB 670 (1969). 

9-224 Assumption of Contract 

347-4050-3300 et seq. 

530-4850-6700 

The assumption of the operations by a purchaser in good faith, who had not bound itself to 

assume the bargaining agreement of the prior owner of the establishment, removes the contract as 

a bar. General Extrusion Co., 121 NLRB 1165, 1168 (1958). In addition, the Board has required 

that, for contract-bar purposes, such an assumption of a prior contract by a new employer must be 

express and in writing. American Concrete Pipe of Hawaii, 128 NLRB 720 (1960); and M. V.

Dominator, 162 NLRB 1514, 1516 (1967). This policy has been reaffirmed since NLRB v. Burns 

Security Services, 406 U.S. 272 (1972). See Great Atlantic & Pacific Tea Co., 197 NLRB 922 

(1972); and Trans-American Video, 198 NLRB 1247 (1972). Finally, at the time of the 

assumption agreement, the original employer must have employed at least 30 percent of those 

employed on the date of the hearing. Baggett Bulk Transport, 193 NLRB 287, 288 (1971). 

The rule requiring a written contract assumption is inapplicable where changes in stock 

ownership or managerial hierarchy have no effect on the legal identity or responsibility of the 

corporate employer, the composition of the contract unit, or the operations of the company (M. B.

Farrin Lumber Co., 117 NLRB 575 (1957)), or when the employer becomes a wholly owned 

subsidiary of a larger corporation and its name is changed slightly, but no changes result in the 

nature of the operation, the management, the composition of the contract unit, or the stability of 

the bargaining relationship (Grainger Bros. Co., 146 NLRB 609 (1964)). But see MPE, Inc., 226 

NLRB 519 (1976); and Spencer Foods, 268 NLRB 1483 (1984). 

It should be noted that where the successor employer had no good-faith doubt that the union 

represented a majority of the employees in the unit and accordingly negotiated a new contract 

with the incumbent, the new agreement constituted a bar. Otherwise, said the Board, “we would 

be discouraging a successor Employer and incumbent Union from creating a new and stable 

bargaining relationship.” Ideal Chevrolet, 198 NLRB 280 (1972). 

See also section 10-500. 

9-300 Duration of Contract 

347-4010-2000 

347-4040-5060 

725-6733-8010 

Whether the duration of a contract contravenes the policy assuring employees a free choice of 

representatives at reasonable intervals must be determined as part of contract-bar policy. 

The lead decision is Pacific Coast Assn. of Pulp & Paper Mfrs., 121 NLRB 990 (1958), as 

modified in General Cable Corp., 139 NLRB 1123 (1962). In General Cable, the Board 

enlarged the period of the basic contract-bar rule from 2 to 3 years, but emphasized that “All 

other contract-bar rules, whether related or unrelated to the subject of contract term, remain 

unaltered; our new 3-year rule is to be read in harmony with them.” Id. at 1125. Accord: Dobbs 

International Services, 323 NLRB 1159 (1997). See also Crompton Co., 260 NLRB 417, 418 

(1982), holding that agreements of less than 90 days do not bar a petition. 
86 CONTRACT BAR

Since contracts of unreasonable duration are treated as if they were limited to a reasonable 

period (3 years), a petition is dismissed where it is not filed 60 days prior to the third anniversary 

date rather than the expiration date designated in the contract. Union Carbide Corp., 190 NLRB 

191, 192 (1971). 

Note: In Shaw’s Supermarkets, 350 NLRB 585 (2007), a Board majority permitted an 

employer to withdraw recognition in the fourth year of a 5-year contract when the employer was 

confronted with evidence of loss of majority. 

9-310 Fixed-Term Contracts 

347-4010-2000 

4040-1760 

347-4040-5060 

A contract having a fixed term of more than 3 years operates as a bar for as much of its term 

as does not exceed 3 years. General Cable Corp., supra; and General Dynamics Corp., 175 

NLRB 1035 (1969). The 3-year period during which a contract is operative as a bar runs from its 

effective date. Benjamin Franklin Paint Co., 124 NLRB 54 (1959). 

To achieve its contract-bar objectives, the Board looks to the contract’s fixed term or 

duration, because it is this term on the face of the contract to which employees and outside unions 

look to determine the appropriate time to file a representation petition. The length of the term of 

the contract as well as its adequacy must therefore be ascertainable on its face, with no resort to 

parol evidence, for it to be a bar. South Mountain Healthcare & Rehabilitation Center, 344 

NLRB 375 (2005); Union Fish Co., 156 NLRB 187 (1966); and Cind-R-Lite Co., 239 NLRB 

1255 (1979). Cf. Cooper Tire & Rubber Co., 181 NLRB 509 (1970). 

However, a significant exception is made where the party challenging the contract is either 

the employer or the contracting union. In those circumstances, the contract continues as a bar for 

its entire term. Montgomery Ward & Co., 137 NLRB 346, 348–349 (1962). The petition in that 

case was filed by the employer in the third year of a current 5-year contract with a certified union. 

The contract-bar rules, the Board explained, should not be interpreted so as to permit the 

contracting parties to take advantage of whatever benefits may accrue from the contract “with the 

knowledge that they have an option to avoid their contractual obligations and commitments 

through the device of a petition to the Board for an election.” 

In Absorbent Cotton Co., 137 NLRB 908 (1962), the employer filed a petition in the third 

year of a 3-year contract. The incumbent union was uncertified. The Board saw no valid reason 

for according to such an employer rights which are different from those of an employer who has a 

current contract with a certified union and held that, whether or not the union is certified, an 

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

contract. 

When, after the end of the first 3 years of a long-term contract, and before the filing of a 

petition, the parties execute a new agreement which embodies new terms and conditions, or 

incorporate by reference the terms and conditions of the long-term contract or a written 

amendment which expressly reaffirms the long-term agreement and indicates a clear intent on the 

part of the contracting parties to be bound for a specific period, the new agreement or amendment 

is effective as a bar for as much of its term as does not exceed 3 years. Southwestern Portland

Cement Co., 126 NLRB 931 (1960); and Santa Fe Trail Transportation Co., 139 NLRB 1513, 

1514 fn. 2 (1962). See also Shen-Valley Meat Packers, 261 NLRB 958 (1982). Shen-Valley was 

reaffirmed in M.C.P. Foods, 311 NLRB 1159 (1993), where the parties signed a 5-year contract 

and an amendment which reaffirmed the expiration date prior to the 3-year anniversary date of 

the initial agreement. The Board held this to be a “premature extension.” For discussion of this 

doctrine, see section 9-580. 
CONTRACT BAR 87

Where the employees, during the period of a long-term contract, vote in an election to 

redesignate the contracting union as their representative, the current contract between the parties 

is a bar to a subsequent petition for a new period of reasonable duration; i.e., up to 3 years, 

running from the date of the election. Montgomery Ward & Co., 143 NLRB 587 (1963). The 

election date is used as the beginning of the new period instead of the date of recertification 

because the election date is the critical date on which the employees manifested their decision to 

retain the incumbent as their representative. Id. at 588 fn. 3. 

9-320 Contracts With no Fixed Term 

A contract which has no fixed term does not bar an election for any period. Pacific Coast 

Assn. of Pulp & Paper Mfrs., supra, and McLean County Roofing, 290 NLRB 685 fn. 5 (1988). 

Contracts with no fixed duration include contracts of indefinite duration (9-321), contracts 

terminable at will (9-322), temporary agreements to be effective pending a final agreement (9-

323), and extensions of expired agreements pending negotiations (9-324). They are defined as 

follows. 

9-321 Indefinite Duration 

347-4010-2042 

A contract of indefinite duration is a contract without stated provisions for termination or 

which terminates on the occurrence of some event the date of which cannot be established with 

certainty before its occurrence. W. Horace Williams Co., 130 NLRB 223 (1961); and Pacific 

Coast Assn. of Pulp & Paper Mfrs., supra. 

It should be noted that, when a contract is for a fixed term, an employer’s notice of intention 

to close the plant does not demonstrate that the plant is operating under a contract of indefinite 

duration; the only indefiniteness is as to whether the plant will remain open for the duration of the 

contract period. Swift & Co., 145 NLRB 756, 761 (1963). 

9-322 Terminable at Will 

347-4010-2056 

A contract terminable at will is a contract which terminates immediately on, or a stated period 

after, notice, and such notice can be given at any time by either party. Pacific Motor Trucking

Co., 132 NLRB 950 (1961). 

9-323 Temporary Agreements 

347-4010-2070 

A temporary agreement, within the meaning of these rules, is one which is to be effective 

until a complete and final agreement can be negotiated. Bridgeport Brass Co., 110 NLRB 997 

(1955). 

9-324 Extensions 

347-4040-1760-7500 

347-4040-8384 

An extension of an expired agreement, for the purpose of these rules, means an extension 

made pending the negotiation of a new agreement or the modification of the old agreement. 

Union Bag Corp., 110 NLRB 1831 (1955); and Frye & Smith, Ltd., 151 NLRB 49 (1956). See 

also Crompton Co., supra. In Madelaine Chocolate Novelties, 333 NLRB 1312 (2001), the Board 

found that an alleged new contract was nothing more than an attempt to convert the fourth year of 

a prior agreement into the first year of a new contract. 

In Direct Press Modern Litho, Inc., 328 NLRB 860 (1999), the Board extended the duration 

of a contract bar where the employer had filed for Chapter 11 reorganization under the 

Bankruptcy Code. The Bankruptcy Court ordered the collective-bargaining agreement extended 
88 CONTRACT BAR

beyond its original expiration date for an additional 6-1/2 months. The Board found the 6-1/2-

month extension consistent with its policy of industrial stability between the employer and the 

union, and was an appropriate accommodation between the NLRA and the Bankruptcy Code. 

The Board said that the Bankruptcy Court’s action was not prohibited by the Board’s “premature 

extension” doctrine. Id. at 862. 

9-400 Representative Status of Contracting Union 

347-4030 

During the term of a contract, questions may arise concerning the representative status of the 

contracting party. Unlike other subjects of contract-bar policy, these involve the status of the 

contracting union rather than the nature or content of the collective-bargaining agreement. 

Generally, the issue is raised in the context of (a) an alleged schism in the bargaining 

representative, or (b) a claim that the bargaining representative is defunct. The lead case is 

Hershey Chocolate Corp., 121 NLRB 901 (1958). Although the Court of Appeals for the Third 

Circuit denied enforcement in the unfair labor practice case which grew out of the representation 

case (NLRB v. Hershey Chocolate Corp., 297 F.2d 286 (3d Cir. 1981)), the court’s decision, 

which was based on a disagreement with the Board in the interpretation of the facts, apparently 

has not impaired the validity of the schism doctrine as such. See Dorado Beach Hotel, 144 

NLRB 712, 714 fn. 6 (1963). 

9-410 Schism 

347-2017-7533-6700 

347-4030-5000 

A contract does not bar an election if there has been a schism in the contracting representative 

which is coextensive in scope with the existing unit. To make a schism finding, all three of the 

following conditions, spelled out by the Board in Hershey Chocolate Corp., supra, must exist. 

9-411 Basic Intraunion Split 

177-3987 

347-2017-7533-6700 

347-4030-5000 

The first element is a basic intraunion conflict affecting the contracting representative. A 

basic intraunion conflict is defined as a conflict over policy at the highest level of an international 

union, whether it is affiliated with a federation, or within a federation, which results in a 

disruption of existing intraunion relationships. See Clayton & Lambert Mfg. Co., 128 NLRB 209, 

210 (1960); cf. Saginaw Furniture Shops, 97 NLRB 1488 (1951). 

As illustrations of the type of disruption envisaged, the Board in Hershey cited the 

disaffiliation or expulsion of an international from a federation, coupled with the creation by the 

federation of a rival; a split in an international combined with the transfer of affiliation of some 

officials to an existing rival or a new union; any realignment which has substantially the same 

effect on the stability of bargaining relationships. 

In B & B Beer Distributing Co., 124 NLRB 1420, 1422 (1960), the Board reemphasized the 

requirement that in order to warrant a schism finding the conflict have a substantial disruptive 

effect on the industrial stability normally flowing from the existence of a collective-bargaining 

contract. The rationale for the requirement is explained in Allied Chemical Corp., 196 NLRB 

483, 484 (1972), where the Board notes that one of its concerns, in Hershey was to preclude an 

otherwise untimely election “when the alleged schism was in fact no more than a raid or an effort 

by dissident elements to repudiate their representative’s bargain.” 

A distinction thus exists between schism and “mere individual dissatisfaction with the 

collective bargaining apparatus.” Southwestern Portland Cement Co., 126 NLRB 931, 934 
CONTRACT BAR 89

(1960). A mere disaffiliation movement within a local, born out of a policy conflict between the 

local and its international, does not alone satisfy the Board’s requirements for a schism. Swift & 

Co., supra at 763. And the Board rejected the assertion of schism when it found merely 

competition between two individuals with conflicting sympathies for control of the existing unit 

to which both continued to belong. Allied Chemical Corp. , supra. See also Georgia Kaolin Co.,

287 NLRB 485 (1987), where the Board found no conflict at the highest level and therefore did 

not reach the question of whether the other conditions existed for a schism. 

9-412 Opportunity at a Meeting 

347-2017-7533-6700 

370-9500 

The second element: the employees in the unit seek to change their representatives for 

reasons related to the basic intraunion conflict and have had an opportunity to exercise their 

judgment on the merits of the controversy at an open meeting, called with due notice to the 

members in the unit for the purpose of taking disaffiliation action for reasons related to the basic 

intraunion conflict. 

Thus, where several meetings were held but no advance notice was given of their purpose, the 

requirement that employees have an opportunity to express their views was not satisfied, and a 

schism finding was not warranted. Wm. Wolf Bakery, 122 NLRB 1163, 1164 (1959). 

9-413 Reasonable Time 

177-3987 

347-2017-7533-6700 

347-4010-4033-5040 

The third element is that the action of the employees in the unit seeking to change their 

representatives took place within a reasonable time after the occurrence of the basic intraunion 

conflict. A year and a half was regarded as a reasonable period of time in light of all the 

circumstances. Great Atlantic & Pacific Tea Co., 126 NLRB 580, 583 (1960); and Oregon

Macaroni Co., 124 NLRB 1001, 1004 (1959). But in Standard Brands, 214 NLRB 72 (1974), a 

3-month delay between a special convention and a disaffiliation vote was deemed unreasonable 

where the possible merger discussed at the special convention had been well known and long 

publicized. 

9-414 Other Schism Issues 

Apart from the above basic elements comprising the definition of “schism,” additional rules 

spelled out in Hershey relate to filing, intervention, and a place on the ballot in the election, and 

also concern the effect on the existing contract. These are: 

In the processing of cases involving a schism finding, any labor organization having an 

adequate showing of interest and otherwise entitled to participate in the election may file a 

petition or intervene in the proceeding. The ballot, as in all elections other than craft severance 

elections, provides for a “no union” or “neither” vote. Furthermore, the winning union, if any, is 

not required to assume the existing contract. Hershey Chocolate Corp., supra at 909–910. 

In a situation involving joint representation by two or more local unions, disaffiliation action 

by members of one or more of the locals concerned a substantial number of employees in the 

contract unit, and was therefore regarded as sufficient to cause the kind of confusion which 

unstabilizes the bargaining relationship and justifies a schism finding. St. Louis Bakery Labor 

Council, 121 NLRB 1548, 1550–1551 (1958). The same result was reached where a disaffiliation 

action by one of three joint representatives occurred affecting four plants of a seven-plant singleemployer contract unit. Purity Baking Co., 121 NLRB 75 (1958). 
90 CONTRACT BAR

With specific reference to the expulsion of the Teamsters from the AFL–CIO, the Board 

found no evidence that such expulsion “has resulted either in the creation of a new rivalry or the 

aggravation of an existing rivalry, based on policy conflict.” It therefore concluded that the 

expulsion, standing alone, was “insufficient to establish the existence of the basic intraunion 

conflict which is a necessary prerequisite to a schism finding.” B & B Beer Distributing Co., 

supra. 

In Polar Ware Co., 139 NLRB 1006 (1962), the Board rejected a claim that a basic intraunion 

conflict had arisen over the issue of Communist domination of the international union. On three 

occasions subsequent to the expulsion of the international from the CIO, the employees had 

reaffirmed their affiliation with the expelled union and not until the latest contract was negotiated 

by that union did they vote to disaffiliate. Some employees supported the disaffiliation movement 

for reasons unrelated to the Communist issue. In these circumstances, the employees’ 

disaffiliation action did not meet the standards established for a schism finding. 

In Packerland Packing Co., 181 NLRB 284 (1970), the Board found no schism creating 

confusion as to the identity of the bargaining representative under the existing contract. In that 

case, an ambiguously worded ballot in an internal union poll did not conclusively indicate 

whether the majority of the unit had voted against continued representation by the intervenor or 

merely against management’s most recent contract proposal. Subsequent to the election, the 

intervenor had continued to negotiate new contracts, process grievances, and receive checked off 

dues despite the advent of a rival faction claiming to be the intervenor’s successor. 

In Kimco Auto Products, 183 NLRB 993 (1970), the Board dealt with a situation where no 

new organization resulted from the disaffiliation action of the contracting local and no 

“assignment” of the existing agreement was effected, so that the local, which alone had executed 

the agreement, remained the same after the disaffiliation action and continued to administer the 

agreement. As there was no open split at the highest level of the international union and within 

the certified local, “followed by intensive campaigning to secure the allegiance of the local union 

members on the basis of the policy differences which were initially responsible for the basic 

conflict,” the disaffiliation action did not create such confusion in the bargaining relationship as 

to remove the contract as a bar to an election. See also Bluff City Transfer Co., 184 NLRB 604 

(1970); and Buckeye Cellulose Corp., 184 NLRB 606 (1970). 

The Board has long held that the mere change in designation or affiliation of the contractual 

representative does not of itself warrant a finding that an otherwise valid preexisting contract is 

no longer a bar. This is true whether there is a specific assignment of the contract (see, for 

example, Louisville Railway Co., 90 NLRB 678 (1950)). However, this Board holding was not 

applied to “a true schismatic situation” as defined in Hershey but rather to agreements with 

respect to the transfer among all interested unions, or, at most, a disaffiliation based on a 

disagreement between an international and an individual local which did not result in the 

confusion and instability inherent in a true schismatic situation (see, for example, Prudential

Insurance Co., 106 NLRB 237 (1953)). 

“[A]pplication of this principle to a true schism,” said the Board in Hershey, supra at 911, 

“would tend to place resolution of the representation issue in the hands of the local officers who 

may or may not reflect the employees’ wishes.” 
CONTRACT BAR 91

9-420 Defunctness and Disclaimer 

347-2017-7533-5000 

347-4030-2500 et seq. 

347-4030-6700 

(a) Defunctness 

The rules as to defunctness, also enunciated in Hershey Chocolate Corp., 121 NLRB 901 

(1958), are: 

A contract does not bar an election if the contracting representative is defunct. Hershey 

Chocolate Corp., supra at 911; and International Harvester Co., 111 NLRB 276 (1955). 

In Hershey, the Board stated that a representative is deemed defunct if it “is unable or 

unwilling to represent the employees,” but made it clear that “mere temporary inability to 

function does not constitute defunctness; nor is the loss of all members in the unit the equivalent 

of defunctness if the representative otherwise continues in existence and is willing and able to 

represent the employees.” Id. at 911. The “relative inactivity of the union” is irrelevant to a 

defunctness determination. Rocky Mountain Hospital, 289 NLRB 1347 (1988); and Kent Corp.,

272 NLRB 735 (1984). On the other hand, a clear and unequivocal disclaimer of interest, made 

in good faith, will remove the contract as a bar. American Sunroof Corp., 243 NLRB 1128 

(1979). 

See also Moore Drop Forging Co., 168 NLRB 984 (1967); Aircraft Turbine Service, 173 

NLRB 709 (1969); Nevada Club, 178 NLRB 81 (1969); Automated Business Systems, 189 NLRB 

124 (1971); Road Materials, 193 NLRB 990 (1971); and Loree Footwear Corp., 197 NLRB 360 

(1972). In Apex Tankers Co., 257 NLRB 685 (1981), the Board treated as if it were defunct, a 

union that was dominated by supervisors. Although the union was not actually defunct, the 

disabling conflict of interest created by supervisory involvement prompted the Board to reject the 

contract as a bar. 

A resolution purporting to “dissolve and disestablish” a union will not compel a finding of 

defunctness if the surrounding circumstances indicate that it is not in fact defunct. News-Press

Publishing Co., 145 NLRB 803 (1964). The Board noted that the union remained a functioning 

organization with previous collective-bargaining experience, and could once again assume such a 

role if it wished or were required to do so; the meeting at which the resolution was voted was 

announced informally, with no statement of its purpose; fewer than half of the employees in the 

unit attended; the petitioner was instrumental in the efforts to terminate the allegedly defunct 

group’s status as a labor organization; and, in voting to dissolve it, the members who attended the 

meeting seemed to have been motivated by a desire to rid themselves of the recently executed 

contract between the union and the employer. See East Mfg. Corp., 242 NLRB 5 (1979). See 

also Gate City Optical Co., 173 NLRB 1709 (1969), in which a union that succeeded to the 

contracting union could not escape its contractual obligations by claiming its predecessor was 

defunct. 

Defunctness was not found in Polar Ware Co., supra (the union continued to hold regular 

meetings and to meet with employer to settle grievances and emphatically claimed willingness to 

administer the contract); Dorado Beach Hotel, 144 NLRB 712 (1963) (the union experienced 

only temporary inability to function); Swift & Co., 145 NLRB 756 fn. 6 (1963) (the union 

maintained a bank account, held membership meetings, and conferred with the employer to 

discuss plant shutdown); Gary Steel Supply Co., 144 NLRB 470 fn. 3 (1963) (the union had 

elective officers and was in fact administering the contract); Moore Drop Forging Co., supra (the 

union’s inactivity was due to its shop steward’s erroneous legal conclusion that the posting of an 

election notice by the Board precluded the union from continuing to negotiate with the company); 

Nevada Club, supra (an attempted merger failed, and the original local was reactivated); and 
92 CONTRACT BAR

Wahiawa Transport System, 183 NLRB 991 (1970) (the union was actively representing the 

employees at the time of an inadequately announced meeting at which a small percentage of the 

union’s members voted to merge with the intervenor). 

On the other hand, defunctness was found in Bennett Stone Co., 139 NLRB 1422 (1962) (the 

union’s charter had been canceled; most of its members had joined the petitioner; all of its books 

and other property had been transferred to the petitioner; and no one appeared on its behalf at the 

hearing). 

Although the Board found no defunctness in Nevada Club, supra, the contract involved did 

not serve as a bar because the Board’s decision issued after the contract’s expiration date. 

Similarly, in Automated Business Systems, 189 NLRB 124 (1971), the no-defunctness finding did 

not restore as a bar a contract which had been canceled by the officers and bargaining committee 

members who had signed it. 

It should be added that action by an international union or intermediate body evidencing its 

willingness and ability to assume the representative functions of a local, which is no longer 

capable of performing such functions, will be deemed relevant to the issue of defunctness only if 

the international or intermediate body is a party signatory to the contract. Hershey Chocolate 

Corp., 121 NLRB 901, 911–912 (1958). 

(b) Disclaimer 

See section 8-100. 

9-500 Effect of Contract on Rival Claims or Petitions 

347-4020-6725 

The issue of the timeliness of a rival petition as affecting contract bar arises often in 

representation cases. Because this has many potential complex ramifications, the Board has 

formulated a set of rules in an attempt to simplify the procedure. The lead case decision in this 

decisional area is Deluxe Metal Furniture Co., 121 NLRB 995 (1958). 

9-510 Time of Filing of Petition 

347-2067-3333 

347-4020-6700 

393-6007-1700 

A contract does not bar an election if a petition is filed with the Board before the execution 

date of the contract (where it is effective immediately or retroactively), or if a petition is filed 

with the Board before the effective date of the contract (where it is effective at some time after its 

execution). Deluxe Metal Furniture Co. , supra; National Broadcasting Co., 104 NLRB 587 

(1953); and Herdon Rock Products, 97 NLRB 1250 (1951). See also Aramark School Services, 

337 NLRB 1063 (2002). 

The Board’s “postmark rule” applies to the filing of petitions during the open period for filing 

a petition. Cargill Nutrena, Inc., 344 NLRB 1125 (2005). See also section 9-550. 

A contract executed on the same day that a petition is filed with the Board bars an election 

provided the contract is effective immediately or retroactively, and the employer did not have 

actual notice at the time of its execution that a petition had been filed. The “postmarking” rule—

date of deposit in mail—also governs the filing of petitions under this doctrine. See Rules 

Section 102.111(b). For an application of this rule, see Santa Fe Trail Transportation Co., 139 

NLRB 1513, 1514 fn. 3 (1962). But the petition is regarded as received in the Regional Office 

even if the mechanical details of filing have not been completed by the affixing of the date and 

time stamp Campbell Soup Co., 175 NLRB 452 (1969). The petition, to be considered filed, need 

not be on an official Board form. Duke Power Co., 191 NLRB 308, 311 fn. 10 (1971). Also, the 

Board has found no prejudice to the employer where it received notice of the filing of the petition 
CONTRACT BAR 93

a few hours before the petition was actually received in the Regional Office. As long as the 

employer was informed prior to its signing of the contract, the notice requirement was held 

fulfilled. Rappahannock Sportswear Co., 163 NLRB 703 (1967). Merely informing the 

employer of petitioner’s representative interest, however, and not of the filing of the petition, 

does not meet the requirement. Boise Cascade Corp., 178 NLRB 673 (1969). 

In Weather Vane Outerwear Corp., 233 NLRB 414 (1977), the Board held that when one 

petition filed under Section 9(e) is timely filed, and a second petition is filed during the pendency 

of the unresolved question concerning representation raised by the earlier one, the contract-bar 

doctrine is rendered inoperative as to the later petition. 

See also Hamilton Park Health Care Center, 298 NLRB 608 (1990), where the Board held 

that knowledge of the rival union campaign is irrelevant to a contract-bar determination. 

A contract may be deprived of its bar quality if it does not clearly reflect its expiration date. 

Bob’s Big Boy Family Restaurants, 259 NLRB 153 (1981). But in Suffolk Banana Co., 328 

NLRB 1086 (1999), the limited confusion of two different expiration dates in the contract was not 

detrimental to the employees. Since they did not rely on either date in filing their petition, the 

contract was held to be a bar. 

9-520 Amendment of Petition 

347-4020-6750 et seq. 

Where a petition is amended, and the employers and the operations or employees involved 

were contemplated under the original petition, and the amendment does not substantially enlarge 

the character or size of the unit or the number of employees covered, the filing date of the original 

petition is controlling. Deluxe Metal Furniture Co., supra, 1000 fn. 12. See also Illinois Bell 

Telephone Co., 77 NLRB 1073 (1948). When the Board itself finds a larger unit appropriate, an 

intervening contract will not be found a bar, Brown Transport Corp., 296 NLRB 1213 (1989). 

But see Centennial Development Co., 218 NLRB 1284 (1975). The filing date of the original 

petition is also controlling when a favorable ruling is made on a petitioner’s appeal from a 

Regional Director’s dismissal of a petition or on a motion for reconsideration of a decision. Id. 

However, when the original petition sought a craft in a departmental unit and was amended to 

seek a production and maintenance unit, the date of the amended petition was deemed controlling. 

Hyster Co., 72 NLRB 937 (1947). Also, when the original petition misnamed the employer in a 

material manner, the Board used the date of the amended petition as the date of filing. Allied 

Beverage Distributing Co., 143 NLRB 149 (1963); and Baldwin Co., 81 NLRB 927 (1949). 

9-530 “Substantial Claim” Rule 

347-4020-6725 

530-8019 

A contract between an employer and a rival union has been held not to bar an election if (1) 

when it was executed an incumbent union continued its claim to representative status, or (2) a 

nonincumbent union had refrained from filing a petition in reliance upon an employer’s conduct 

which indicated that recognition had been granted or that a contract would be obtained without an 

election. This is known as the substantial claim rule. Deluxe Metal Furniture Co., supra at 998–

999; see also Acme Brewing Co., 72 NLRB 1005 (1947); Chicago Bridge Co., 88 NLRB 402 

(1950); Southern Permanente Services, 172 NLRB 1399 (1968); and Riverdale Manor Home for

Adults, 189 NLRB 176 (1971). But see RCA Del Carribe, 262 NLRB 965 (1982), an unfair labor 

practice case. 

Thus, when a petitioner, an incumbent union, asserted a substantial representative claim by 

(1) urging that the employer’s notice of termination was untimely and that the contract remained 

in force for another year; (2) filing suit in the State court to vindicate this claim; and (3) filing a 

petition with the Board on the same date that the employer and the intervening union executed 
94 CONTRACT BAR

their contract, that contract did not serve as a bar to an election. General Dynamics Corp., 144 

NLRB 908, 909–910 (1963). 

All other claims of majority status or demands for recognition (generally called “bare 

claims”) have no effect on the determination of whether a contract is a bar to a rival petition. The 

“substantial claim” rule is applied in a situation when a petitioner is lulled into a false sense of 

security by an employer who led it to believe that recognition would not be granted, or any 

contract be entered into with any union, until after a Board election. Greenpoint Sleep Products, 

128 NLRB 548 (1960). 

9-540 The “Insulated Period” 

347-4010-4067 et seq. 

530-6083-2033 

A significant element in contract-bar policy is the concept of an “insulated period.” The 

parties to a contract which is approaching its expiration date are provided with a 60-day 

“insulation period” immediately preceding and including the expiration date to negotiate and 

execute a new contract. 

Representation petitions filed timely under the “postmark rule” (Sec. 102.111(b)) will be 

processed even though received in the Regional Office during the insulated period. John I. Haas, 

Inc., 301 NLRB 300 (1991); and Central Supply Co. of Virginia, 217 NLRB 642 (1975). See 

also Cargill Nutrena, Inc., 344 NLRB 1125 (2005). 

The “insulated period” was adopted to afford the parties to an expiring contract an 

opportunity to negotiate and execute a new or amended agreement without the disrupting effect of 

rival petitions. See Crompton Co., 260 NLRB 417, 418 (1982), for a discussion of the policies 

involved and for holding that contracts for less then 90 days are not a bar because they do not 

stabilize the relationship and provide no “insulation period.” The insulated period rule was, 

announced in Deluxe Metal Furniture Co., supra at 1000, and holds petitions filed during the 60-

day (or other applicable) period immediately preceding and including the expiration date of an 

existing contract are dismissed, regardless of whether the contract contains an automatic renewal 

clause and regardless of the length of the renewal period. 

An “insulated period” applies to every kind of representation petition, including employer 

petitions (Nelson Name Plate Co., 122 NLRB 467 (1959)), and regardless of the seasonal nature 

of the employer’s business (Cooperativa Azucarera Los Canos, 122 NLRB 817 fn. 2 (1959)), but 

the period is different in health care institution cases. See section 9-550 infra. 

It does not apply when the contract is not a bar for other reasons under the contract-bar rules. 

National Brassiere Products Corp., 122 NLRB 965 (1959); and Stewart-Warner Corp., 123 

NLRB 447 (1959). 

The net effect of the “insulated period” rule is to require all petitioners to have their petitions 

on file at least 61 days before the contract’s termination date or undergo a risk that a contract 

executed during the 60-day insulated period will foreclose another petition for the new contract’s 

term. Moreover, the rule prevents “overhanging rivalry and uncertainty during the bargaining 

period, and will eliminate the possibility for employees to wait and see how bargaining is 

proceeding and use another union as a threat to force their current representative into 

unreasonable demands.” Deluxe Metal Furniture Co., supra at 1001; Electric Boat Division, 158 

NLRB 956 (1966); and National Cash Register Co., 201 NLRB 846 (1973). 

The Electric Boat policy of granting an additional 60-day insulated period applies only when 

an untimely petition is processed under conditions denying the parties to an existing bargaining 

relationship an opportunity to execute a new contract within the original 60-day insulated period. 

Thus, when an untimely filed petition was administratively dismissed about 26 days before 

expiration of the insulated period and there was no showing that an additional insulated period 

could be justified on other grounds, a newly executed contract was held not to bar a petition filed 
CONTRACT BAR 95

before its execution. Kroger Co., 173 NLRB 397 (1969); and Royal Dean Coal Co., 177 NLRB 

700 (1969). In another context, when any prejudice to the parties, caused by the processing of the 

untimely filed petition, resulted from their own conduct in waiting 2 weeks to apprise the 

Regional Director of the existence of the contract, the request for an additional insulated period 

was denied. Utilco Co., 197 NLRB 664 (1972). 

In Vanity Fair Mills, 256 NLRB 1104 (1981), the Board reinstated a petition that had been 

dismissed as untimely filed. In doing so, the Board noted that the petitioning employee relied on 

erroneous advice by an NLRB agent. 

A Presidential wage-price freeze led to a special exception to the Deluxe Metal rule. In 

several cases, the Board dismissed as untimely petitions which would be considered timely under 

ordinary contract-bar rules because the freeze in effect during the parties’ insulated period created 

an uncertainty which deprived the parties of a 60-day period in which to bargain intelligently. 

The parties were then granted a new 60-day insulated period. West India Mfg. Co., 195 NLRB 

1135 (1972); Hill & Sanders-Wheaton, Inc., 195 NLRB 1137 (1972); Dennis Chemical Co., 196 

NLRB 226 (1972); and Litton Business Systems, 199 NLRB 354 (1972). This approach was also 

applied when agreement between the union and an employer association had been a firm 

precondition, acquiesced in by the employer, to an agreement between the union and the 

employer, and negotiations had been effectively suspended during the freeze. California Parts & 

Equipment, 196 NLRB 1108 (1972). However, a contract agreed on but not signed because of 

uncertainties created by phases I and II of the President’s economic program was held not a bar 

when the union had ample time, prior to the filing of the petition and after sufficiently clear 

guidelines had been established by the Pay Board, to resume negotiations obstructed by the 

freeze. Bowling Green Foods, 196 NLRB 814 (1972). 

9-550 The Period for Filing 

347-4010-4000 et seq. 

347-4010-8080 

347-4020-6700 

Except in the health care industry and seasonal operations to be timely with respect to an 

existing contract, the petition must be filed more than 60 days but less than 90 days before the 

expiration date of the contract. Leonard Wholesale Meats, 136 NLRB 1000 (1962) (which 

modified the Deluxe Metal decision in one respect; i.e., by changing the maximum limit from 150 

days to 90 days). In health care cases, the petition must be filed not more than 120 days or less 

than 90 days before expiration. Trinity Lutheran Hospital, 218 NLRB 199 (1975). 

The Board’s “postmark rule” applies to the filing of petitions during the open period for filing 

a petition. Cargill Nutrena, Inc., 344 NLRB 1125 (2005). See also section 9-510. 

A petition filed untimely will be regarded as premature under this rule and may be dismissed 

unless (1) the contract would not be a bar under some other rule, or (2) a hearing is directed 

despite the prematurity of the petition in order to resolve doubts as to the effectiveness of the 

contract as a bar, and the decision issues on or after the 90th day preceding the expiration date of 

the contract. Deluxe Metal Furniture Co., 121 NLRB 995, 999 (1958), and Mosler Safe Co., 216 

NLRB 9 (1975). See, for example, Royal Crown Cola Bottling Co., 150 NLRB 1624 (1964); 

General Time Corp., 195 NLRB 1107 (1975); and Maramount Corp., 310 NLRB 508 (1993). 

When a substantial number of the employers comprising the appropriate unit are neither 

named in nor notified of a petition until the filing and service of an amended petition, the filing 

date of the amended petition is controlling and, if it was filed within the “insulated period,” it is 

subject to dismissal. Allied Beverage Distributing Co., 143 NLRB 149 (1963). See also Baldwin 

Co., 81 NLRB 927 (1949), and in connection with the discussion of amended petitions on 33, 

ante. 
96 CONTRACT BAR

An interim arrangement extending the expiration date of a contract pending the negotiation 

and execution of a new agreement cannot change the expiration date for purposes of the timely 

filing of a petition. Metropolitan Life Insurance Co., 172 NLRB 1257 (1968). 

A petition filed after the execution of a supplemental agreement amending the original 

agreement so as to cover employees who, in effect, were an accretion to the unit is barred by the 

contract as amended, so long as the petition would be untimely with respect to the expiration date 

of the original contract. California Offset Printers, 181 NLRB 871 (1970). See also Firestone

Synthetic Fibers Co., 171 NLRB 1121 (1968). 

When a unit was covered by two contracts which were jointly negotiated and administered 

but which expiration dates were 30 days apart, a petition filed 90–60 days before the later of the 

two expiration dates was held timely as to both contracts. Midway Lincoln-Mercury, 180 NLRB 

58 (1969). 

Conflicting contracts offered as a bar create no bar since such a situation precludes a clear 

determination by a potential petitioner of the proper time for filing a new petition. Cabrillo 

Lanes, 202 NLRB 921 (1973). Similarly, when the contract distributed to employees showed 

different dates than the actual contract dates, a petition filed within the dates known to employees 

was considered timely. Bob’s Big Boy Family Restaurant, 235 NLRB 1227 (1978). 

With respect to seasonal industries, while the 60-day insulated period is applicable, the 90-

day filing rule (formerly 150-day rule under Deluxe) is not. Cooperativa Azucarera Los Canos, 

122 NLRB 817 fn. 2 (1959). 

9-560 The Impact of Bargaining History on Rival Petitions 

347-4060-5000 

When there has been a prior bargaining history on a single-employer basis, a rival petition for 

a single-employer unit will prevail if timely filed before the insulated period of the last individual 

contract, even if the employer has adopted or joined in a multiemployer contract and whether that 

multiemployer contract would otherwise be a bar to a petition. U.S. Pillow Corp., 137 NLRB 584 

(1962). See also West Lawrence Care Center, 305 NLRB 212 (1991). Compare Albertson’s Inc.,

307 NLRB 338 (1992). This rule has been held not to apply where there has been no singleemployer bargaining history. Thos. de la Rue, Inc., 151 NLRB 234 (1965). 

9-570 Automatic Renewal Provisions 

347-4010-9000 

347-4040-8300 

These are provisions under which contracts automatically renew themselves unless either 

party notifies the other of its desire to modify or terminate the contract. The parties sometimes 

forestall automatic renewal by notice as provided in the contract. If they do not, the contract 

renews itself and constitutes a bar unless a timely petition is filed before the beginning of the 

insulated period. ALJUD Licensed Home Care Services, 345 NLRB 1089 (2005). If automatic 

renewal is forestalled, the situation is precisely the same as if the contract had no automatic 

renewal clause. 

The pertinent rules pertaining to automatic renewal are: 

a. The question of whether or not automatic renewal of a contract has been forestalled 

should be considered only after the parties have failed to execute a new agreement during 

the 60-day “insulated period.” Deluxe Metal Furniture Co., supra at 999, 1001. 

b. Any notice of a desire to negotiate changes received by the other party immediately 

preceding the automatic renewal date provided in the contract will prevent its renewal for 

contract-bar purposes unless there is a provision or agreement for the continuation of the 

existing contract during negotiations. KCW Furniture Co., 247 NLRB 541 (1980). Compare 

Bridgestone/Firestone, Inc., 331 NLRB 205 (2001). 
CONTRACT BAR 97

c. A written agreement which reinstates the old automatically renewable contract is 

treated as a new contract. 

d. A notice given shortly before the automatic renewal date is treated as one to forestall 

renewal, even if the contract contains separate modification and renewal clauses, except 

where the contract specifically provides that it will be renewed despite notice given pursuant 

to the modification provisions and the notice is in fact specifically given pursuant to these 

provisions. Id. at 1003; Wagoner Transportation Co., 177 NLRB 452, 453 fn. 2 (1969). 

e. A midterm modification provision, regardless of its scope, does not remove the 

contract as a bar unless the parties actually terminate the contract. Deluxe Metal Furniture 

Co., supra at 1003; Ellison Bros. Oyster Co., 124 NLRB 1225 (1959); Penn-Keystone Realty 

Corp., 191 NLRB 800 (1971); and Providence Television, 194 NLRB 759, 760 (1972). 

f. If the contract specifies an automatic renewal period other than 60 days, the parties are 

deemed bound by their agreement for purposes of forestalling renewal, but the timeliness of 

the petition is “keyed” to the 60-day period. Deluxe Metal Furniture Co., supra at 1000. 

g. When the administration of the contract has been abandoned, it cannot automatically 

renew. Id. at 1002 fn. 15. 

h. The effectiveness of a timely notice to forestall automatic renewal is not changed by 

inaction of the parties after such notice, even though the contract required certain action 

within a specified period, or by rejection of the notice, or by its withdrawal. Id. at 1002 fn. 

16. 

i. The employer, by repeatedly negotiating with the union in the absence of timely notice, 

does not thereby waive the untimeliness of such notice. Therefore, in Moore Drop Forging 

Co., 168 NLRB 984 (1967), automatic renewal was not forestalled and the contract was held 

a bar. 

j. Automatic renewal is not forestalled by oral notice. Appalachian Shale Products Co., 

121 NLRB 1160 fn. 6 (1958). For other cases dealing with automatic renewal, see Carter 

Machine Co., 133 NLRB 247 fn. 2 (1961); New England Lead Burning Co., 133 NLRB 863, 

866 (1961); Long-Lewis Hardware Co., 134 NLRB 1554 (1962); General Dynamics Corp., 

144 NLRB 908, 909–910 (1963); Stox Restaurant, 172 NLRB 1474 (1968); and Herlin 

Press, 177 NLRB 940 (1969). 

9-580 The “Premature Extension” Doctrine 

347-4010-4033-5060 et seq. 

347-4040-8384 

If the parties, during the term of an existing contract, execute an amendment or a new 

contract containing a later termination date, the contract is deemed prematurely extended. Deluxe 

Metal Furniture Co., supra at 1001–1002; Lord Baltimore Press, 144 NLRB 1376 (1963); New 

England Telephone Co., 179 NLRB 53 (1969); M.C.P. Foods, 311 NLRB 1159 (1993); and 

Shen-Valley Meat Packers, 261 NLRB 958 (1982). 

In New England Telephone, the Board, reiterating this doctrine, explained that a new contract 

for a longer period, signed during the term of a previously executed agreement at a time when 

that prior agreement would bar a petition, can itself prevent the processing of a rival petition only 

for the remainder of the period when the prior contract would have been such a bar. Thus, when 

such a “premature extension” occurs, the proper time for the filing of a rival petition is the 30-day 

period between the 90th and 60th day prior to the expiration date of the original contract of 3 

years’ duration or less. See also Hertz Corp., 265 NLRB 1127 (1982). 

For an earlier application of the “premature extension” doctrine, see Republic Aviation Corp., 

122 NLRB 998 (1959), noting, of course, that the period for filing the petition, under Leonard 

Wholesale Meats, supra, was changed from a maximum of 150 days to 90 days prior to the 

expiration of the initial 3-year period, and that a prematurely extended contract therefore does not 
98 CONTRACT BAR

bar an election if the petition is filed more than 60 days but less than 90 days before the terminal 

date of the original contract. 

It should be noted, however, that a contract is not prematurely extended when executed (1) 

during the 60-day insulated period preceding the terminal date of the old contract; (2) after the 

terminal date of the contract if automatic renewal was forestalled or if the contract contained no 

renewal provision; and (3) at a time when the existing contract would not have barred an election 

because of other contract-bar rules. Deluxe Metal Furniture Co., 121 NLRB 995, 1001–1002 

(1958). An illustration of the third exception is where the contract had been in effect for its 

reasonable term, such as in Cushman’s Sons, Inc., 88 NLRB 121 (1950). 

It is immaterial that the premature extension is embodied in an entirely new and separate 

agreement rather than in an amendment, supplement, or extension of an existing contract. 

Stubnitz Greene Corp., 116 NLRB 965 (1957); and Auburn Rubber Co., 140 NLRB 919 (1963). 

Such a prematurely extended contract does not bar a petition even though (1) the employer gave 

notice to employees of an intent to negotiate a new contract; (2) the new contract was entered into 

in good faith; and (3) the new contract was ratified by members of the incumbent union. The vice 

the Board sought to avoid was that of requiring employees, who desire to change representatives, 

to accelerate organizational activities so that they would be ready to assert a claim of majority 

representation at any time the parties might elect to discuss modification of the existing contract. 

Id. at 921. 

When an employer was not a party to the original contract between its predecessor owner and 

the incumbent union, but instead, following purchase of the plant, entered into new obligations, 

separately undertaken, by executing with the union a new contract containing different starting 

and termination dates, the contract was not deemed an extension of the contract executed by the 

employer’s predecessor, even though it was labeled “Extension Agreement.’’ Thus, the new 

contract barred a petition for 3 years from its execution. Chrysler Corp., 153 NLRB 578 (1965). 

When a multiplant contract is found to constitute a premature extension of a single-plant 

contract and a petition is timely filed with respect to the single-plant contract, the multiplant 

contract does not bar the petition. Continental Can Co., 145 NLRB 1427 (1964). This situation 

is distinguishable from that in which the agreement in question is intended solely to implement a 

long considered determination by the employer and the union to join in multiemployer 

bargaining. Under these circumstances, the premature extension doctrine is not applied. Sefton 

Fibre Can Co., 109 NLRB 360 (1954). 

When the antecedent contract contains a discriminatory provision, it does not bar an election 

and therefore does not come within the premature extension rule. However, the Board does not 

admit extrinsic evidence in a representation proceeding to establish the unlawful nature of a 

contract provision. Thus, in St. Louis Cordage Mills, 168 NLRB 981 (1968), because the Board 

could not determine, in the absence of extrinsic evidence, that sex was not a bona fide 

qualification for the jobs covered by a seniority clause, the clause was not found unlawful on its 

face. Therefore, the contract was held a premature extension and, consequently, no bar to an 

election. 

Where there may be a question of premature extension, but the department involved in the 

petition is a new and separate unit, prior contracts covering other units in the employer’s 

operations can have no impact on the contract between the employer and the intervenor covering 

employees in the new unit, and this latter contract serves as a bar. Michigan Bell Telephone Co., 

182 NLRB 632 (1970). 

The Board’s rule is not an absolute ban on premature extensions; rather, it applies to petitions 

not timely filed with respect to antecedent agreements. Since contracts of unreasonable duration 

are treated as if they were limited to a reasonable period (3 years), a petition is dismissed where it 

is not filed 60 days prior to the third anniversary date rather than the expiration date designated in 

the contract. Union Carbide Corp., 190 NLRB 191, 192 (1971). A prematurely extended 

contract also bars a petition filed after the date on which the original contract would have expired 
CONTRACT BAR 99

if the new contract had not been executed. H. L. Klion, Inc., 148 NLRB 656 (1964). See also 

Baldwin Auto Co., 178 NLRB 88 (1969). As stated in Klion, supra at 660: 

The primary purpose of the premature-extension rule is to protect petitioners in general from 

being faced with prematurely executed contracts at a time when the Petitioner would 

normally be permitted to file a petition. However, the Board’s rule is not an absolute ban on 

premature extensions, but only subjects such extensions to the condition that if a petition is 

filed during the open period calculated from the expiration date of the old contract, the 

premature extension will not be a bar. 

Thus, a premature extension cannot serve to deprive a petitioner of the open period under the 

original contract. M.C.P. Foods, 311 NLRB 1159 (1993). 

For an interesting case on a related subject, see Madelaine Chocolate Novelties, 333 NLRB 

1312 (2001), discussed at 9-130 and 9-324, supra. See also discussion of this doctrine in a 

bankruptcy context. Direct Press Modern Litho, Inc., 328 NLRB 860 (1999). Section 9-224, 

supra. 

9-600 Private Agreements 

9-610 Agreements not to Represent Certain Employees 

347-4070 

Under the Briggs Indiana rule (Briggs Indiana, 63 NLRB 1270 (1945)), an agreement in 

which a union agrees not to seek representation of certain employees bars a petition by that union 

for the specified employees during the life of the agreement. The agreement does not have to be 

part of the collective-bargaining agreement. Lexington House, 328 NLRB 894 (1999). 

This rule was restated, with certain qualifications in Cessna Aircraft Co., 123 NLRB 855 

(1959). See also Allis-Chalmers Mfg. Co., 179 NLRB 1 (1969), and United Broadcasting, 223 

NLRB 908 (1976). In Northern Pacific Sealcoating, 309 NLRB 759 (1992), the Board applied 

the Briggs Indiana rationale to bar petitions filed by employers to 8(f) agreements where the 

employer agreed not to file a petition. 

When a union, which has agreed not to represent certain employees during the term of a 

contract, files a petition for those employees during the contract term, but explicitly states at the 

hearing that it does not wish to represent them until after the contract has expired, the Briggs

Indiana rule does not apply. Fullview Industries, 149 NLRB 427 (1965). In such a situation, the 

Board noted, it is not expending its efforts to assist a union in breaching its agreement. 

The revised rules are: 

(1) Such a promise will not be implied from a mere unit exclusion. UMass Memorial 

Medical Center, 349 NLRB 369 (2007); Budd Co., 154 NLRB 421 (1965); and Women & 

Infants’ Hospital of Rhode Island, 333 NLRB 479 (2001). 

(2) The rule will not be implied on the basis of an alleged understanding of the parties 

during contract negotiations. Cessna Aircraft Co., supra at 857. However, it is not required 

that the agreement be included in the contract. Lexington House, supra. 

(3) When an international union is a party to a contract containing a provision within the 

meaning of this rule, the rule will be applied to any locals of the international as well as to the 

international itself, and where a local is a party to such a contract, the rule will be applied to 

any other local of the same international union. Cessna Aircraft, supra at 857. 

In Allis-Chalmers Mfg. Co., supra, a contract provision read: “The Union shall not, during 

the term of this agreement, solicit or accept into membership any person in the employ of the 

Company excluded from the coverage of the agreement under the provisions of paragraph 3 

above [which expressly excluded seven specific categories].” The Board, construing the 

provision to apply to the petitioner (the international), which was a signatory to the contract, 

stated that it did not view this rule as an undue encroachment on rights guaranteed by Section 
100 CONTRACT BAR

7 of the Act; employees excluded by such provisions are not disenfranchised; “rather, their 

options as to which unions are available to them are merely diminished by one”; and the Act 

does not declare unlawful a union’s decision not to organize and represent certain employees. 

See also Budd Co., supra; Montgomery Ward & Co., 137 NLRB 346 (1962); and Huron 

Portland Cement Co., 115 NLRB 879 (1956). 

(4) The rule is inapplicable to a contract by a certified union, which contains a provision 

not to represent certain of the employees in the certified unit. Id. 

9-620 Neutrality Agreements 

It is beyond the scope of this book to cover all aspects of neutrality agreements; a broad term 

that can cover agreements calling for a “gag order” on employer speech, agreements for card 

checks, or even agreements for arbitration of first contracts. 

The Board has held that a provision for recognition of “after-acquired” facilities is a 

mandatory subject. Pall Biomedical Products Corp., 331 NLRB 1674 (2000). These clauses are 

often referred to as Kroger clauses. See Houston Div. of the Kroger Co., 219 NLRB 388 (1975). 

Compare Raley’s, 336 NLRB 374 (2001). 

Where the parties agree to such a clause, the Board will hold them to it and will dismiss a 

petition filed by the union party thereto even in circumstances where the union argues that the 

agreement will result in an arbitrator deciding unit placement and scope issues. Verizon 

Information Systems, 335 NLRB 558 (2001). See also Central Parking System, 335 NLRB 390 

(2001). 

In Postal Service, 348 NLRB 25 (2006), the Board distinguished Verizon finding that it 

would accept a petition filed after completion of the arbitration process. The Board found that a 

settlement agreement providing for arbitration did not provide an “express agreement” that the 

employer would not file a petition with the Board. 

On December 8, 2004, the Board granted review in Shaw’s Supermarkets, 343 NLRB 963 

(2004). The Regional Director had dismissed the RM petition “finding that the Union’s demand 

for recognition based on an alleged contractual” after-acquired clause does not entitle the 

Employer to demand an election under Section 9(c)(i)(B). The Board granted review and 

remanded for hearing on the following issues: 

(1) Whether the Employer clearly and unmistakably waived the right to a Board election; 

(2) If so, whether public policy reasons outweigh the Employer’s private agreement not to 

have an election. 

In granting review, the Board commented that the Central Parking decision is “contrary to 

the general rule that the Board does not defer representation case issues to arbitration [and that]by 

granting review here we keep open the possibility that the Board will abide by the general rule 

rather than Central Parking.” The petition in Shaw’s was later withdrawn. There was no 

subsequent decision by the Board. 

See also Dana Corp., 351 NLRB No. 28 (2007), pending review on the issue of recognition 

bar. (Sec. 10-500, infra.) 

See also section 7-131. 

9-700 Unlawful Union-Security and Checkoff Provisions 

Another type of contract infirmity which renders it incapable of barring a representation 

petition is an unlawful union-security provision. 

The lead case for this area of contract-bar policy is Paragon Products Corp., 134 NLRB 662 

(1962), which overruled in several material respects the initial lead case, Keystone Coat Supply 

Co., 121 NLRB 880 (1958). For more recent discussion of Paragon, see Electrical Workers 

Local 444 (Paramax Systems), 311 NLRB 1031, 1035, 1037 fn. 32 (1993). 
CONTRACT BAR 101

For convenience, the effect on contract bar of certain types of contract checkoff provisions is 

also treated here. 

9-710 Union-Security Provisions 

347-4040-3367 

347-4040-6725 

A contract containing a union-security clause which is clearly unlawful on its face, or which 

has been found to be unlawful in an unfair labor practice proceeding, does not bar an election. “A 

clearly unlawful union-security provision for this purpose is one which by its terms clearly and 

unequivocably goes beyond the limited form of union-security permitted by Section 8(a)(3) of the 

Act, and is therefore incapable of a lawful interpretation.’’ Paragon Products Corp., supra at 

666. This principle was reaffirmed in Paramax, supra at 1037 fn. 32. The clause itself and not 

extrinsic evidence must establish the illegality. Jet-Pak Corp., 231 NLRB 552 (1977) (stipulation 

of parties not admissible to remove bar). 

Such unlawful provisions include those which (1) require the employer expressly and 

unambiguously to give preference to union members in hiring, laying off, seniority, wages, or 

other terms and conditions of employment; (2) specifically withhold from incumbent 

nonmembers and/or new employees the statutory 30-day grace period; and (3) expressly require, 

as a condition of employment, the payment of sums of money other than the “periodic dues and 

initiation fees uniformly required.” 

While a union owes a duty to advise its members of their General Motors (373 U.S. 734 

(1963)), and Beck (NLRB v. Beck Engraving Co., 487 U.S. 735 (1988)) rights, it does not breech 

its duty of fair representation by negotiating a union security clause that tracks that statutuory 

language of Section 8(a)(3), i.e., uses the term “Membership” without expressly explaining to the 

employees their General Motors and Beck right. Thus, the use of that language would not make 

such a union-security clause illegal on its face. Assn. for Retarded Citizens (Opportunities 

Unlimited), 327 NLRB 463 (1999). 

Contracts containing ambiguous though not clearly unlawful union-security provisions bar an 

election in the absence of a determination of illegality as to the provision involved by the Board 

or a Federal court pursuant to an unfair labor practice proceeding. 

In this connection, the Board has had occasion to distinguish Paragon Products Corp., supra, 

and also St. Louis Cordage Mills, supra, from circumstances which involved an ambiguity 

existing “as to the extended coverage of the contract’’ in Post Houses, 173 NLRB 1320 (1969). 

The Board held in Post Houses that the ambiguity “must be resolved by considering the intent 

and practice of the contracting parties,” relying therefore on such evidence in arriving at a 

determination that a contract was not a “members only” contract. 

This approach, however, is not used in cases involving determination as to the validity of 

union-security provisions. As we have indicated at the outset of this discussion, contracts 

containing ambiguous union-security (though not clearly unlawful) provisions are not litigated in 

representation proceedings and do bar an election. A similar result is reached where the issue is 

whether a seniority provision renders a contract ineffective as a bar. This determination, too, 

“depends on whether the provision was unlawful on its face, as the Board will not admit extrinsic 

evidence in a representation proceeding to establish its unlawful nature.” St. Louis Cordage 

Mills, supra at 982. The Board has stated that it would view the contract itself and that no 

testimony or evidence relevant only to the practice under the contract would be admissible in a 

representation proceeding. See discussion in Peabody Coal Co., 197 NLRB 1231 (1972). 

When one article of a contract requires certain employees to become and remain members of 

the union after 3 months’ service, a clause stating that these employees will receive a pay increase 

after 3 months’ service if they join the union is not clearly unlawful, and the fact that an 
102 CONTRACT BAR

ambiguity is present does not, consistent with Paragon Products, remove the contract as a bar. 

H. L. Klion, Inc., supra at 660. 

It is clear, of course, that a contract containing an unambiguous closed-shop clause does not 

bar a petition. Horizon House 1, Inc., 151 NLRB 766 (1965). Similarly, when a contract shows 

on its face that it is retroactively effective and that its grace period is geared to that effective date, 

and thereby fails to accord nonmember incumbent employees the required 30-day grace period 

following the date of its execution, it is not a bar. Standard Molding Corp., 137 NLRB 1515, 

1516 (1962). The Board, in arriving at its conclusion, stated it was therefore “a provision 

incapable of a lawful interpretation and does not bar the instant petition.’’ But in Federal Mogul 

Corp., 176 NLRB 619 (1969), the Board found that it was clear “from the terms of the contract 

itself” that it was not retroactively effective. Accordingly, Standard Molding was inapplicable 

and, as the union-security provision of the contract was “not clearly unlawful on its face,” it 

operated as a bar to a petition which was untimely filed after its execution date. 

Where a union-security contract is renegotiated during its term with a retroactive effective 

date, the new contract will operate as a bar to a petition. As the terms of the contracts overlap and 

coverage under lawful union-security clauses is continuous, it cannot be said that the current 

contract specifically withholds from incumbent nonmembers and/or new employees the statutory 

30-day grace period. Weyerhaeuser Co., 142 NLRB 702 (1963). A union-security clause 

requiring employees, upon employment, to sign a union membership application to become 

effective 30 days after date of hiring is unlawful. It denies to employees the 30-day grace period 

during which they may consider the matter of joining the union. Sentry Investigation Corp., 198 

NLRB 1074 (1972). 

A contract clause requiring all employees to pay, in addition to initiation fees and dues, 

“assessments [not including fines and penalties]” is unlawful, since “assessments” are not 

included within the meaning of the term “periodic dues” as used in Section 8(a)(3) of the Act. 

Santa Fe Trail Transportation Co., 139 NLRB 1513 (1962). Compare Suffolk Banana Co., 328 

NLRB 1086 (1999), bar status not lost because the contract did not require payment of 

assessments. 

On the other hand, a contract requiring employees to become and remain union members in 

accordance with the union’s constitution and bylaws is lawful as such a clause may be interpreted 

to require no more than the tender of periodic dues and initiation fees. Stackhouse Oldsmobile, 

140 NLRB 1239 (1963). 

A contract clause conditioning the relative seniority standing of supervisors returning to that 

unit upon the quantum of payment of the equivalent of union dues during a period when such 

employees were outside the unit is clearly unlawful and, therefore, renders the contract inoperable 

as a bar. Steelworkers Local 1070 (Columbia Steel & Shafting Co.), 171 NLRB 945 (1968). The 

same finding was made in Pine Transportation, 197 NLRB 256 (1972), where the objectionable 

clause conditioned retention and further accumulation of seniority by employees in or promoted 

outside the bargaining unit upon maintenance of membership. 

Although the Board has addressed the effect of a savings clause on the enforcement of a 

contract under unfair labor practice law (compare South Alabama Plumbing, 333 NLRB 16 

(2001); and Joint Council of Teamsters Local 42, 248 NLRB 808, 816 fn. 28 (1980)), it has not 

clearly stated what effect a savings clause would have on whether the contract is a bar in a 

representation case. See, e.g., Four Seasons Solar Products Corp., 332 NLRB 67, 69 fn. 8 

(2000), where the Board found it unnecessary to reach this issue. 
CONTRACT BAR 103

9-720 Checkoff Provisions 

347-4040-6750 

536-2554-2500 

725-6733-8045 

The lead case for the impact of checkoff provisions is Gary Steel Supply Co., 144 NLRB 470 

(1963). In that case, the Board codified its rules in relation to contracts containing checkoff 

provisions. 

Section 302 of the Act provides that an employer may deduct union membership dues from 

wages of employees only if “the employer has received from each employee, on whose account 

such deductions were made, a written assignment which shall not be irrevocable for a period of 

more than one year, or beyond the termination date of the applicable collective agreement, 

whichever occurs sooner.” However, a contract will not lose its effectiveness as a bar to a 

representation proceeding simply because it contains a checkoff provision which fails to spell out 

the requirements of the proviso to Section 302 quoted above. 

This rule does not apply to a checkoff provision, which is either (a) unlawful on its face, or 

(b) found to be illegal in an unfair labor practice proceeding or in a proceeding initiated by the 

Attorney General. Gary Steel Supply Co., supra at 472–473 fn. 10. The Board reiterated its 

holding in Paragon Products Corp., supra, that no testimony or evidence will be admissible in a 

representation proceeding when the testimony or evidence is only relevant to the question of the 

practice under a contract urged as a bar to the proceeding. 

In American Beef Packers, 169 NLRB 215 (1968), the following contract clause was the 

subject of a contract-bar issue: 

During the period of this agreement, the Company shall deduct, as to each employee who 

shall authorize it in writing in the appropriate form or whose valid and effective 

authorization is now on file with the Company, and for so long as such authorization shall 

remain valid or effective, from the first pay payable to each member each month, the regular 

monthly union dues and the initiation fee of the Union and promptly remit the same to 

Arthur L. Morgan. 

It was contended that this provision for employer payments to an individual representative of 

his employees was a misdemeanor under Section 302 of the Landrum-Griffin Act of 1959, and 

the checkoff clause therefore rendered the contract no bar. Applying Gary Steel, the Board held 

that the checkoff provision was not unlawful under the standards of that case and that the contract 

operated as a bar. “Such a contract,” said the Board in the language of Gary Steel, “will be 

considered effective as a bar to a representation proceeding, even though it contains a checkoff 

provision which fails to spell out the requirements of the proviso to Section 302(c) (4) of the Act, 

unless the checkoff provision is either unlawful on its face or has been otherwise determined to be 

illegal in an unfair labor practice proceeding or in a proceeding initiated by the Attorney 

General.” See also General Electric Co., 173 NLRB 511 (1969). 

9-800 Racial Discrimination in Contracts 

347-4040-3333-3367 

Contracts which discriminate between groups of employees on racial lines do not constitute a 

bar to an election. Pioneer Bus Co., 140 NLRB 54 (1963). 

Consistent with decisions by the courts in other contexts condemning governmental sanction 

of racially separate grouping as inherently discriminatory (see, for example, Brown v. Board of 

Education, 349 U.S. 294 (1955)), the Board does not permit its contract-bar rules to be utilized to 

shield such contracts from otherwise appropriate election petitions. Thus, when the bargaining 

representative of employees in an appropriate unit executes separate contracts, or for that matter a 
104 CONTRACT BAR

single contract which discriminates between groups of employees on the basis of race, such 

contracts do not operate as a bar. 

In Pioneer Bus, the employer met separately with representatives of a group composed 

exclusively of white employees and another group consisting entirely of black employees—both 

groups covering the same classifications—and executed separate contracts with each. While the 

contracts were executed on the same dates and generally contained identical terms and conditions 

of employment, separate seniority lists were maintained within each unit. On these facts, since 

the two contracts divided the employees into two separate bargaining units solely on 

considerations of race, they were removed as a bar. 

In Safety Cabs, Inc., 173 NLRB 17 (1969), separate collective-bargaining agreements, 

entered into by a single employer on separate dates and with different terms for black drivers at 

one company and for white drivers at another, were found to constitute separate bargaining units 

essentially based on race. This was the type of bargaining history “established and continued on 

a racial basis, the validity of which the Board could not accept as a factor in determining the 

scope of an appropriate bargaining unit.” For this reason, the Board in an earlier case involving 

the same companies (New Deal Cab Co., 159 NLRB 1838 (1966)) declined to accord any weight 

to the extensive bargaining history of separate units “essentially based on race” in unit 

determination. In Safety Cabs the Board concluded that contracts thereafter executed which 

separated employees on racial lines could not bar a petition for a combined unit of both 

companies. 

Significantly, the Board rejected the contention, inter alia, that segregation was inherent in 

and a reflection of the history of the community in which the parties functioned as a justification 

for separate units and for upholding the separate contracts as a bar. “The fact that the parties may 

not have caused the racial segregation,’’ observed the Board, “does not make its perpetuation less 

invidious.’’ 

Although it did not deal with contract-bar issues, the Board’s decision in Glass Bottle 

Blowers Local 106 (Owens-Illinois), 210 NLRB 943 (1974), would suggest the same result where 

there is gender discrimination. 

9-900 Contracts Proscribed by Section 8(e) 

347-4040-6775 

Section 8(e) makes it an unfair labor practice for any labor organization and any “employer to 

enter into any contract or agreement, express or implied, whereby such employer ceases or 

refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise 

dealing in any of the products of any other employer, or to cease doing business with any other 

person, and any contract or agreement entered into heretofore or hereafter containing such an 

agreement shall be to such extent unenforceable and void.” The contract proscribed is commonly 

known as a hot cargo assessment. 

A proviso to Section 8(e) specifically states that nothing in the above subsection shall apply 

to an agreement between a labor organization and an employer in the construction industry 

relating “to the contracting or subcontracting of work to be done at the site of the construction, 

alteration, painting, or repair of a building, structure, or other work.” 

In Food Haulers, 136 NLRB 394, 395–396 (1962), a contract asserted as a bar contained the 

following provision: 

It shall not be the duty of any employee nor shall any employee at any time be required to 

cross a picket line and refusal of any employee at any time to cross a picket line shall not 

constitute insubordination nor cause for discharge or disciplinary action. 

It was contended that this contract clause was unlawful under Section 8(e) of the Act and that 

the contract was therefore no bar. The Board rejected this contention, holding that a hot cargo 

clause, although unlawful, “does not in any sense act as a restraint upon an employee’s choice of 
CONTRACT BAR 105

a bargaining representative,” and, accordingly, does not remove the contract as a bar. In arriving 

at this result the Board reasoned as follows: 

Thus, Section 8(e) provides that any contract or agreement containing an unlawful “hot 

cargo” provision “shall be to such extent unenforceable and void.” In an unfair labor 

practice proceeding, if the Board found after litigation that a disputed clause violated Section 

8(e), it would not and could not set aside the entire contract but only the unlawful clause. 

Yet . . . in a representation proceeding where the issue of legality of an alleged “hot cargo” 

clause is collateral at best, the entire contract would in effect be set aside [if found no bar] 

on a finding that the contract contained a “hot cargo” provision. We can perceive no rational 

basis for a sanction so much more drastic in a representation than in an unfair labor practice 

proceeding, even assuming that the Board has to power so to do. In fact, such a drastic 

remedy seems to be inconsistent . . . with the stated purport of Section 8(e). 

The Board distinguished C. Hager & Sons Mfg. Co., 80 NLRB 163 (1949), in which it held 

that it would not find a contract a bar which contained an unlawful union-security clause because 

the “existence of such a provision acts as a restraint upon those desiring to refrain from union 

activities within the meaning of Section 7 of the Act.” A “hot cargo” clause, it stated in Food 

Haulers, “although unlawful, does not in any sense act as a restraint upon an employee’s choice 

of a bargaining representative.” See also Four Seasons Solar Products Corp., 332 NLRB 67 

(2000). 

9-1000 Special Statutory Provisions as to Prehire Agreements 

347-4040-5080 

90-7550 et seq. 

Section 8(f)(1), added by the 1959 amendments to the Act, provides that it shall not be an 

unfair labor practice for an employer engaged primarily in the construction industry to make an 

agreement with a union covering construction employees, even though the union’s majority status 

has not been established prior to the making of the agreement. 

However, a proviso to Section 8(f) states that, when the majority status of the contracting 

union has not been established pursuant to Section 9, an agreement lawful under Section 8(f) will 

not serve as a bar to a petition filed pursuant to Section 9(c) or Section 9(e). Accordingly, a 

prehire contract made lawful by Section 8(f) does not constitute a bar to a petition. John Deklewa 

& Sons, 282 NLRB 1375 (1987), and S. S. Burford, Inc., 130 NLRB 1641, 1642 (1961). 

Section 8(f)(1) does not mean that a union may acquire representative status only by 

certification; voluntary recognition is an equally suitable method for determining whether the 

proviso to Section 8(f) applies. Thus, a contract executed pursuant to voluntary recognition, 

when a union demonstrates its majority “in a manner recognized as valid under Section 9(a),” 

remains bar despite the proviso to Section 8(f). Island Construction Co., 135 NLRB 13 (1962). 

John Deklewa & Sons, supra at 1384. The Board explained that a union obtains exclusive 

representative status by establishing that a majority of the employees in an appropriate unit have 

selected it as their representative, either in a Board-conducted election pursuant to Section 9(c), or 

by other voluntary designation pursuant to Section 9(a). A union selected under either Section 

9(c) or Section 9(a) is entitled to recognition. Accordingly, the Board, saw no justification to 

limit Section 8(f)(1) as meaning that the union’s representative status may only be acquired by 

certification, or that recognition accorded under Section 9(a) is not an equally suitable method for 

determining whether the proviso to Section 8(f) applies. And where the relationship does convert 

from 8(f) to 9(a), the contract will become a bar to a rival petition. VFL Technology Corp., 329 

NLRB 458 (1999). For a discussion of these principles in an 8(a)(5) proceeding, see Goodless

Electric Co., 321 NLRB 64 (1996). 

In Central Illinois Construction, 335 NLRB 717 (2001), the Board took the “occasion” to 

explain how an 8(f) representative can become a 9(a) representative through an agreement with 
106 CONTRACT BAR

the employer. Specifically the Board stated that written contract language must unequivocally 

show: 

(1) that the union requested recognition as the majority representative of the unit employees. 

(2) that the employer granted such recognition; and 

(3) that the employee’s recognition was based on the union showing, or offer to show, 

substantiation of its majority support. 

See also Donaldson Traditional Interiors, 345 NLRB 1298 (2005), in which a panel majority 

found it unnecessary to rely on Central Illinois and Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 

(D.C. Cir. 2003), a decision in which the court criticized the Board’s Central Illinois decision. 

On the other hand, strict requirements for the showing of majority status apply. J & R Tile, 

291 NLRB 1034 (1988); American Thoro-Clean Ltd., 283 NLRB 1107 (1987); and Golden West 

Electric, 307 NLRB 1494 (1992). And in H.Y. Floors & Gameline Painting, 331 NLRB 304 

(2000), a divided Board remanded an RD petition to the Regional Director to take evidence as to 

whether or not the union represented a majority when the employer extended 9(a) recognition. 

Compare Oklahoma Installation Co., 325 NLRB 741 (1998), where the Board found that a letter 

of assent that states that the union has submitted and the employer is satisfied that the union 

represents a majority of the unit employees. 

The mere fact that a construction industry bargaining relationship was in existence prior to 

the enactment of Section 8(f) does not support an inference that the parties must have initiated 

their relationship under Section 9(a). Brannan Sand & Gravel, 289 NLRB 977 (1988). Compare 

Casale Industries, 311 NLRB 951 (1993), where the Board held that it would not permit a 

challenge to 9(a) status where that status is granted and more than 6 months passed without a 

charge or petition. At footnote 18 of Casale, the Board harmonized this decision with its 

decisions in J & R Tile and Brannan Sand, supra. Compare H.Y. Floors, supra, where the petition 

was filed less than 6 months after the purported 9(a) recognition. See also Saylor’s, Inc., 338 

NLRB 330 (2002); Reichenbach Ceiling & Partition Co., 337 NLRB 125 (2001); Verkler, Inc.,

337 NLRB 128 (2001); and Pontiac Ceiling & Partition Co., 337 NLRB 120 (2001).

The decision in Island Construction is distinguishable from the Board’s holding in S. S.

Burford, Inc., supra. In the latter, the contract was held not to be a bar since it had been entered 

into as a prehire contract; i.e., at a time when the contracting unions had not and could not have 

demonstrated their majority status under Section 9 of the Act. 

In one case the Board has suggested that it would not permit a carryover of 9(a) status where 

the units were substantially altered and expanded by subsequent agreements. James Julian, Inc., 

310 NLRB 1247 fn. 1 (1993). 

For discussions of other prehire-8(f) issues, see sections 5-210 (Showing of Interest), 9-211 

(Contract Bar), 10-500 (Lawful Recognition), 10-600 (Expanding Unit), 14-350 (Multiemployer, 

Single Employer, and Joint Employer Units), and 15-130 (Construction Units). 
10. PRIOR DETERMINATIONS AND 

OTHER BARS TO AN ELECTION 

The granting of a petition for an election is subject to certain limitations which are designed, 

like contract bar, to implement the statutory objective of achieving a balance between industrial 

stability and freedom of choice. 

We have already considered contract bar. Treated here are other bars, one based on a 

statutory provision, Section 9(c)(3) of the Act, and the others on policy considerations. 

10-100 Effect of Prior Election 

347-2083 

10-110 Board Elections 

Section 9(c)(3) prohibits the holding of an election in any bargaining unit or subdivision in 

which a valid election was held during the preceding 12-month period. 

An election may be valid and bar a new election even if the certification resulting from that 

election is revoked during the 12-month period, depending on the circumstances. Weston Biscuit 

Co., 117 NLRB 1206 (1955). The 12-month period runs from the date of balloting, not from the 

date of the certification. Mallinckrodt Chemical Works, 84 NLRB 291 (1949); and Retail Store 

Employees Local 692 (Irvins, Inc.), 134 NLRB 686 fn. 5 (1961). If the balloting takes more than 

1 day, the election is not considered as held until it has been completed. Alaska Salmon Industry,

90 NLRB 168, 170 (1950). 

Under Section 9(c)(3), the prior election must be a “valid” election. Security Aluminum Co., 

149 NLRB 581 (1964). A considerable increase in the number of employees and the employer’s 

inaccurate prediction at the prior hearing, concerning the number of employees it would shortly 

have at the plant, did not impair the validity of the prior election. U. S. Steel Corp., 156 NLRB 

1216 (1966). 

A withdrawal of a petition after an election during the consideration of determinative 

challenge ballots does not affect the 1-year election bar rule. E Center, Yuba Sutter Head Start, 

337 NLRB 983 (2002). 

The prohibition of Section 9(c)(3) does not preclude the processing of a petition filed within 

60 days before the expiration of the statutory period so long as the election resulting from such 

petition is not held within the prohibited time. However, petitions filed more than 60 days before 

the end of the statutory period will be dismissed. Vickers, Inc., 124 NLRB 1051 (1959). Note the 

distinction between this rule and the 1-year certification rule, treated later, which precludes the 

processing of a petition filed before the end of the 1-year period. The Vickers rule does not apply 

to a situation when an untimely petition, dismissed by the Regional Director, is reinstated by the 

Board on appeal because of questions concerning the validity of the prior election. Mason & 

Hanger-Silas Mason Co., 142 NLRB 699 (1963). 

Although a petition was filed more than 5 months before the end of the 12-month period 

described in Section 9(c)(3), an immediate election was directed where the petition had already 

been processed, a hearing was held, and 12 months had by this time actually elapsed, the Board 

noting that “To dismiss the petition at this time would subject the Board to an immediate 

repetition of the proceeding as a new petition could be timely filed as soon as a decision in this 

case issues.” Weston Biscuit Co., supra at 1208; see also Mason & Hanger-Silas Mason Co., 

supra. Compare Randolph Metal Works, 147 NLRB 973, 974 fn. 5 (1964). 

A new election is barred only in a “unit or any subdivision” in which a previous election was 

held. Section 9(c)(3) applies to the unit, not the employer, so an election is barred in same unit in 

the case of a successor employer during the 12-month period. Kraco Industries, 39 LRRM 1236 

(Feb. 20, 1957). 

107
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 108 

Section 9(c)(3) does not preclude for a 12-month period the holding of an election in a larger 

unit, such as a plantwide unit, where there has been a previous election in a smaller unit, such as a 

craft unit, because the subsequent election is not being conducted in a “unit or any subdivision” in 

which the earlier election was held. Allegheny Pepsi-Cola Bottling Co., 222 NLRB 1298 (1976). 

Thiokol Chemical Corp., 123 NLRB 888 (1959); and Allstate Insurance Co., 176 NLRB 94 

(1969). For a discussion of the converse of this situation, see Vickers, Inc., supra at 1052. 

Employees who voted in the first election may be included in the larger unit and vote in the new 

election. Robertson Bros. Dept. Store, 95 NLRB 271, 273 (1951). Similarly, an election is not 

barred for employees who are excluded from the unit in the prior election. S. S. Joachim & Anne 

Residence, 314 NLRB 1191 (1994), and Philadelphia Co., 84 NLRB 115 (1949). 

Section 9(c)(3) prohibits only the holding of more than one valid election within a 1-year 

period. It does not prevent the Board from imposing a bargaining obligation based on a card 

majority within 1 year of a valid election. Comvac International, 297 NLRB 853 (1991); and 

Great Scott Supermarkets, 156 NLRB 592 (1966). 

There is also an election year bar rule for UD elections. See Section 9(e)(2). That bar, 

however, applies only to valid UD elections. It does not bar a UD election within 12 months of a 

valid representation election. Monsanto Chemical Co., 147 NLRB 49, 50 (1964). See also 

Gilchrist Timber Co., 76 NLRB 1233, 1234 (1948), explaining the interplay of Section 9(c)(3) 

and (e)(2) [then Sec. 9(e)(3)]. 

10-120 Comity to State Elections 

347-2033 

347-2040 

In applying the statutory limitations in Section 9(c)(3), representation elections conducted by 

State authorities are given the same effect as the Board’s own election, provided that the election 

itself is valid under State law and not affected by any irregularities under the Board’s standards. 

We Transport, Inc., 198 NLRB 949 (1972); Olin Mathieson Chemical Corp., 115 NLRB 1501 

(1956); and T-H Products Co., 113 NLRB 1246 (1955). In Summer’s Living Center, 332 NLRB 

275 (2000), the Board set out the standards for comity: 

(1) the state-conducted elections reflect the true desires of the affected employees; 

(2) there was no showing of election irregularities; and 

(3) there was no substantial deviation from due process requirements. 

Where in a State-conducted election supervisors within the meaning of the National Labor 

Relations Act were included in the unit found appropriate, the Board deemed such an election not 

a valid election and declined to accord to it the same effect as it would have given to one of its 

own elections. Southern Minnesota Supply Co., 116 NLRB 968, 969 (1957). See also Health 

Center of Boulder County, 222 NLRB 901 (1976), in which the Board did not give effect to an 

election in a mixed unit of professionals and nonprofessionals. 

The Board did give effect to an election held under the law of the Virgin Islands, although 

that Territory’s challenge procedures did not conform to the Board’s, since the parties voluntarily 

participated in the election and the election was conducted “without substantial deviation” from 

the due-process requirements. West Indian Co., 129 NLRB 1203 (1961). The results of a second 

election held by a State agency within 1 year of the first election were honored where the State 

law did not prohibit such an election. Western Meat Packers, 148 NLRB 444, 449–450 (1964). 

In Albertson’s/Max Food Warehouse, 329 NLRB 410 (1999), the Board reversed its prior holding 

in City Markets, Inc., 266 NLRB 1020 (1983), and ruled that the timeliness of a UD petition is to 

be determined under the NLRB, not State law. 

A distinction is made between an election conducted by a Government agency and one 

privately conducted. Interboro Chevrolet Co., 111 NLRB 783, 784 (1955). 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 109

10-200 The 1-Year Certification Rule 

347-2017-2500 

530-4020 

It is the Board’s policy to treat a certification under Section 9 of the Act as identifying the 

statutory bargaining representative with certainty and finality for a period of 1 year. 

This rule was upheld by the U. S. Supreme Court in Brooks v. NLRB, 348 U.S. 96, 103 

(1954), in which the Court stated that “The underlying purpose of this statute is industrial peace. 

To allow employers to rely on employees’ rights in refusing to bargain with the formally 

designated union is not conducive to that end, it is inimical to it. Congress has devised a formal 

mode for selection and rejection of bargaining agents and has fixed the spacing of elections, with 

a view of furthering industrial stability and with due regard to administrative prudence.” In 

Americare-Lexington Health Care Center, 316 NLRB 1226 (1995), the Board reaffirmed the 

certification year rule and a panel majority applied the rule to the year after employees voted for 

continued representation in a decertification election. Accord: Beverly Manor Health Care 

Center, 322 NLRB 881 (1997). 

In Virginia Mason Medical Center, 350 NLRB No. 73 (2007), bargaining began 4 months 

after a court order affirming the Board’s order in a test of certification case. The Board found 

that there was no unwarranted delay in the 4-month period and therefore set the certification year 

as beginning with the bargaining. 

To effectuate the policy of affording the employer and the union full opportunity of arriving 

at an agreement within the certification year, the Board has developed the rule that petitions, 

whether these be representation, employer, or decertification, will be dismissed if filed before the 

end of the certification year. The Board explained that “the mere retention on file of such 

petitions, although unprocessed, cannot but detract from the full import of a Board certification, 

which should be permitted to run its complete 1-year course before any question of the 

representative status of the certified union is given formal cognizance by the Board.” This rule 

was enunciated in Centr-O-Cast Engineering Co., 100 NLRB 1507, 1508 (1951), and is applied 

strictly. United Supermarkets, 287 NLRB 119 (1987). And in Chelsea Industries, 331 NLRB 

1648 (2000), an unfair labor practice case, the Board held that an employer cannot withdraw 

recognition after the certification year expires based on evidence of employee dissatisfaction that 

was obtained during the certification year. Compare LTD Ceramics, Inc., 341 NLRB 86 (2004) 

(signatures obtained on last day of certification year permitted). 

In Kirkhill Rubber Co., 306 NLRB 559 (1992), the Board decided that the certification year 

rule did not bar the processing of a UC petition. Compare Firestone Tire Co., 185 NLRB 63 (1970), 

distinguished by the Board in Kirkhill. 

Care should be taken to distinguish between the 1-year certification rule promulgated by the 

Board and the 1-year limitation on elections provided by Section 9(c)(3) of the Act. The first 

requires the dismissal of any representation petition filed within 1 year after certification. The 

second prohibits the holding of an election in the 12-month period following a valid election. 

A petition filed before the expiration of the 12-month period following an incumbent union’s 

certification will, with certain exceptions discussed below, be dismissed, even if it is filed only a 

few days before that date. 

10-210 Application of the 1-Year Certification Rule 

347-2017-7533-8300 

The 1-year certification rule applies only to petitions involving the representation of employees 

in the unit certified. It was not applied to a petition seeking a small segment of the employees who 

were included in a unit certified less than 1 year prior to the new petition, when during that year 

those employees had been effectively separated for unit purposes from the other employees covered 

by the certification. American Concrete Pipe of Hawaii, 128 NLRB 720 (1960). 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 110 

When a voting group in a self-determination election chooses to remain a part of the existing 

larger bargaining unit, the certification resulting from that election does not constitute the type 

which bars a petition for 1 year because it does not embrace a complete bargaining unit, but only 

amounts to a finding that the group of employees voting have indicated a desire to remain a part 

of the larger unit. Westinghouse Electric Corp., 115 NLRB 185, 186 (1956), and Edward J. 

DeBartolo Corp., 315 NLRB 1170 (1994). See also chapter on “Self-Determination Elections,” 

infra, section 21. 

But an RM petition for a plantwide unit was dismissed when a union had been certified less 

than 1 year previously as bargaining representative for a unit which encompassed a part of the 

employees in the plant. Casey-Metcalf Machinery Co., 114 NLRB 1520, 1525 (1956). 

10-220 Exceptions to the Rule 

347-2017-5000 

347-2017-7567 

625-6675 

10-221 The Mar-Jac Exception 

The certification year is extended in situations where the employer has failed to carry out his 

statutory duty to bargain in good faith. The extension equals the time of delay and commences on 

the resumption of negotiations. The aim is to insure “at least one year of actual bargaining.” MarJac Poultry Co., 136 NLRB 785, 787 (1962), and Lamar Hotel, 137 NLRB 1271, 1273 (1962). 

See also Bridgestone/Firestone, Inc., 337 NLRB 133 (2001); and JASCO Industries, 328 NLRB 

201 (1999). 

Thus, when the employer had bargained with the union for only 6 months and, largely 

through its refusal to bargain, took from the union a substantial part of the 1-year period, “when 

Unions are generally at their greatest strength,” to permit an election on the employer’s petition at 

that time in question “would be to allow it to take advantage of its own failure to carry out its 

statutory obligation, contrary to the very reasons for the establishment of the rule that a 

certification requires bargaining for at least 1 year.” Id. See also Midstate Telephone Co., 179 

NLRB 85 (1969); Burnett Construction Co., 149 NLRB 1419 (1964), enfd. 350 F.2d 57 (10th 

Cir. 1965); and Lower Bucks Cooling & Heating, 316 NLRB 16 (1995). 

When there was not “a single minute of bargaining uncompromised by . . . unlawful 

conduct,” the Board extended for a full year. Metta Electric, 349 NLRB 1088 (2007). Compare 

American Medical Response, 346 NLRB 1004 (2007) (3-month extension). 

In Dominguez Valley Hospital, 287 NLRB 149 (1987), the Board ruled that the Mar-Jac year 

began with the first bargaining session, not the date of court enforcement of the bargaining order 

and not the date in which the parties agreed to schedule a bargaining session. The Board has held 

that an employer offers to bargain conditional on litigation in the Supreme Court did not in any 

way afford the unions their Mar-Jac year. Chicago Health Clubs, 251 NLRB 140 (1980). See 

also Van Dorn Plastic Machinery Co., 300 NLRB 278 (1990), and JASCO Industries, supra. 

In Paramount Metal & Finishing Co., 223 NLRB 1337 (1976), the Board rejected an 

employer defense to Mar-Jac application where the union did not request immediate bargaining 

after the election and where the employer had an appeal pending in a related bargaining case. 

On the other hand, the “equities of the case” were found not to warrant the Mar-Jac exception 

where the lapse in negotiations was occasioned solely by the employer’s cessation of operations 

for a period of 4 months; the settlement of unfair labor practices related to the employer’s refusal 

to bargain as to such cessation; and the union had the benefit of more than a year under its 

certification (9 months prior to the plant shutdown and more than 5 months subsequent to the 

settlement agreement) in which to negotiate. Southern Mfg. Co., 144 NLRB 784 (1963). 

The Mar-Jac case involved a settlement agreement, as did Southern Mfg. The Mar-Jac rule 

was also applied to a situation when an employer belatedly furnished requested information 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 111

resulting in the union’s withdrawal of the charge. This was held “tantamount” to a settlement of 

the unfair labor practice proceeding, less formal but essentially not different from the written 

settlement agreement which the Board in Mar-Jac considered a sufficient foundation for 

extending the period following a certification during which no valid petition may be filed. 

Gebhardt-Vogel Tanning Co., 154 NLRB 913, 915 (1965). 

In this line of cases, violations occurred during the certification year and directly served to 

deprive the union of the fruits of the certification. When, however, all the employer’s violations 

occurred before the beginning of the certification year and it did not appear that any further 

violations were committed between the date of the certification and that of the request to bargain, 

there was no warrant for concluding that meaningful bargaining could not have taken place 

during the certification year. Dixie Gas, Inc., 151 NLRB 1257, 1259–1260 (1965). 

Similarly, the Mar-Jac rule is not necessarily applicable in any 8(a)(5) situation; there must 

be a showing of a general refusal to bargain. Cortland Transit, 324 NLRB 372 (1997). 

The Board has specifically rejected the application of Mar-Jac to the voting group in a selfdetermination election. Edward J. DeBartolo Corp., supra, and White Cap Inc., 323 NLRB 477 

(1997). 

10-222 The Ludlow Exception 

347-2017-7533-1700 

When the parties execute a contract within 12 months of the contracting union’s certification, 

the certification year merges with that of the contract and the latter controls the timeliness of the 

filing of a rival petition. In such circumstances, there is no need to protect the certification 

further. Thus, a petition which is filed timely in relation to such a contract will be processed even 

though it is filed before the end of the certification year. Ludlow Typograph Co., 108 NLRB 1463 

(1954). 

The Ludlow exception applies only when the union negotiates a new contract, and not when 

the union, after certification, assumes an existing contract pursuant to a preelection agreement. 

Great Atlantic & Pacific Tea Co., 123 NLRB 1005 (1959). In other words, it does not apply in a 

situation where an agreement to continue an existing contract in effect after certification is 

executed prior to the certification year. John Vilicich, 133 NLRB 238 (1961); and Westinghouse 

Electric Corp., 114 NLRB 1515 (1956). In the latter, an existing national agreement was applied 

to the plant. 

10-300 Settlement Agreement as a Bar 

347-6020-5067 

Following a settlement agreement containing a provision requiring bargaining, a reasonable 

period of time must be afforded the parties in which to reach a contract. Poole Foundry & 

Machine Co., 95 NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 

(1952). Poole was recently reaffirmed in Caterair International, 322 NLRB 64 (1996). 

Effectuation of the policies of the Act requires that the employer honor the bargaining 

obligation provided for in a settlement agreement for a reasonable period of time and no question 

concerning representation may be raised while the effects of the employer’s unfair labor practices 

are being remedied by the employer’s compliance with the terms of a settlement agreement. 

Freedom WLNE-TV, 295 NLRB 634 (1989). Interstate Brick Co., 167 NLRB 831 (1967); Frank 

Becker Towing Co., 151 NLRB 466, 467 (1965); and Dick Bros., Inc., 110 NLRB 451 (1955). 

In Lexus of Concord, Inc., 343 NLRB 851 (2004), the Board rejected an administrative law 

judge’s holding that an employer’s letter stating that it would resume negotiations met the 

standards for settlement bar such as to bar a question concerning representation raised by a 

majority of employees expressing disaffection from the union. 

For a discussion of “reasonable period,” see 10-1000. 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 112 

In Trusev Corp., 349 NLRB 227 (2007), the Board reversed a series of cases dealing with the 

processing of decertification petitions in the face of settlements of concurrent unfair labor 

practice charges. The Board summarized its decision as follows: 

Based on all of the above, we overrule Douglas-Randall and its progeny and return to the 

Board’s prior holdings for handling decertification petitions when the parties have resolved 

concurrent unfair labor practice allegations by entering into either a settlement agreement or 

collective-bargaining agreement. Thus, an employer’s agreement to resolve outstanding 

unfair labor practice charges and complaints by recognizing and bargaining with the union, or 

by entering into a collective-bargaining agreement, will not be treated as an admission of 

wrongdoing unless it expressly so provides, and will not require dismissal of a decertification 

petition challenging the union’s majority status filed after the alleged unlawful conduct but 

prior to settlement. When the parties reach a collective-bargaining agreement during 

bargaining pursuant to a settlement agreement, that contract will, of course, continue to serve 

as a bar to newly filed petitions under the Board’s contract-bar rules, but it will not bar a 

petition filed prior to the agreement. 

This decision reverses Douglas Randall, Inc., 320 NLRB 431 (1995); Liberty Fabrics, 327 

NLRB 38 (1998); and Supershuttle of Orange County, 330 NLRB 1016 (2000); and returned 

Board law to Passavant Health Center, 278 NLRB 483 (1986). It does not of course validate a 

decertification petition whose showing of interest is tainted by employer misconduct. In 

reinstating Passavant, the Board also reinstated Jefferson Hotel, 309 NLRB 705 (1992), which 

encourages participation of the RD petitioner in the settlement negotiations of the unfair labor 

practice case. See Trusev, supra at fn. 14. 

For further discussion of related issues, see section 10-800. 

In BOC Group, 323 NLRB 1100 (1997), the Board found that a settlement agreement did not 

require bargaining or involve the type of unfair labor practices that would preclude a question 

concerning representation. There were, however, other pending 8(a)(3) and (5) charges. In those 

circumstances, the Board dismissed the petition subject to reinstatement on request if it would be 

appropriate in light of the disposition of those charges. 

10-400 Court Decree as a Bar 

347-6040 

817-5942-9000 

When more than a year has elapsed since the entry by the court of a decree directing an 

employer to bargain with a union, and no contract has resulted, the court order will not act as a 

bar to a current determination of representatives. Ellis-Klatcher & Co., 79 NLRB 183 (1948). 

In Ellis-Klatcher, supra, more than 4 years had elapsed since the entry of the court decree. In 

Mascot Stove Co., 75 NLRB 427 (1948), the union had been certified as the exclusive bargaining 

representative, negotiations between the employer and the union were commenced but no 

contract was executed, and the Sixth Circuit entered a bargaining decree pursuant to which 

negotiations were resumed but, again, no contract was executed. When more than a year elapsed 

from the date of the decree without the consummation of a collective-bargaining agreement, the 

Board held that the court’s decree did not preclude a current determination of representatives. 

10-500 Lawful Recognition as a Bar/Reasonable Period of Time 

347-2067 

Like situations involving certifications, Board orders, and settlement agreements, where the 

parties must be afforded a reasonable time to bargain and to execute the contracts resulting from 

such bargaining, lawful recognition of a union bars a petition for “a reasonable period of time.” 

Keller Plastics Eastern, Inc., 157 NLRB 583 (1966). For a discussion of “reasonable time” see 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 113

Royal Coach Lines, 282 NLRB 1037 (1987); Tajon, Inc., 269 NLRB 327 (1984); and Brennan’s 

Cadillac, 231 NLRB 225 (1977). See also Ford Center for the Performing Arts, 328 NLRB 1 

(1998), where the Board noted the problems of first contract bargaining as a consideration in 

determining “reasonable time.” See also MGM Grand Hotel, 329 NLRB 464 (1999) (11 months 

held reasonable in circumstances). 

See also the discussion of “reasonable period”at 10-1000. 

The Board now holds that in order to apply the recognition-bar doctrine, unit employees or a 

rival union must be given an opportunity to petition for an election. Thus, in Dana Corp., 351 

NLRB No. 28 (2007), the Board majority modified its prior holding in Keller Plastics Eastern, 

Inc., 157 NLRB 583 (1966); Smith’s Food & Drug Centers, 320 NLRB 844 (1996); and Seattle 

Mariners, 335 NLRB 563 (2001). It now requires that the employer notify the unit employees of 

the recognition so that they, or a rival union, may seek an election from the Board. The notice to 

employees is obtained from the Regional Director and must be posted for 45 days. A petition 

filed during this period must be supported by a 30-percent showing of interest. If no petition is 

filed during the 45-day period, the recognition bar will apply. 

In 2002, the Board reversed its “successor bar” doctrine and returned to its earlier policy of 

holding that recognition extended to “an incumbent union in a successorship situation is entitled 

to—and only to—a rebuttable presumption of continuing majority status.” MV Transportation, 

337 NLRB 770 (2002), reversing St. Elizabeth Manor, 329 NLRB 341 (1999). In reversing St. 

Elizabeth Manor, the Board majority in MV Transportation returned to the rule of Southern 

Moldings, 219 NLRB 119 (1975). 

In a number of cases when one or more of the criteria set forth in Sound Contractors and 

Josephine Furniture were not affirmatively met, the informal agreement was held not to 

constitute a bar. S. Abraham & Sons, 193 NLRB 523 (1971); Akron Cablevision, 191 NLRB 4 

(1971); Display Sign Service, 180 NLRB 49 (1970); Pineville Kraft Corp., 173 NLRB 863 

(1969); and Allied Super Markets, 167 NLRB 361 (1967). 

Since the John Deklewa & Sons decision (282 NLRB 1375 (1987)), there have been no cases 

in which the Board has been presented with a recognition bar in the construction industry. 

However, the discussion of appropriate unit in Casale Industries, 311 NLRB 951 (1993), clearly 

indicates that the Board would apply the doctrine in this industry subject to a scrutiny of that 

recognition. (See also sec. 9-1000.) 

10-600 Expanding Unit 

316-6701-6700 et seq. 

347-8020-2050 et seq. 

Some of the factors commonly raised by employers contending that a petition should be 

dismissed as premature are that the plant is still under construction or not yet in full operation; an 

insufficient number of the contemplated job classifications are filled; and there is not a 

representative number of employees in a substantial number of the existing job classifications. 

In Endicott Johnson de Puerto Rico, 172 NLRB 1676, 1677 fn. 3 (1968), the Board made it 

clear that the yardsticks enunciated in General Extrusion Co., 121 NLRB 1165 (1958), are 

applicable only to contract-bar issues and were not intended to govern the propriety of granting 

an election in cases involving an expanding unit in an unorganized plant. The test in noncontractbar cases is, rather, whether the present complement is substantial and representative; and there is 

no flat rule for making such a determination. In this particular case, the employer, at the time of 

the hearing, had a complement of approximately 200 employees in 115 assigned job 

classifications engaged in the production of six types of shoes. The employer’s expansion plans 

included more employees, more job classifications, and more types of shoes in the original plant 

as well as in a second plant to be constructed. As the Board found that the numerous new job 

titles planned would not necessarily involve new job classifications in terms of skills, it found the 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 114 

present complement representative and substantial for purposes of directing an immediate 

election. See also General Cable Corp., 173 NLRB 251 (1969); and Yellowstone International 

Mailing, 332 NLRB 386 (2000), and cases cited there. In general, the Board finds an existing 

complement of employees substantial and representative when at least 30 percent of the eventual 

employee complement is employed in 50 percent of the anticipated job classifications. Shares, 

Inc., 343 NLRB 455 fn. 2 (2004). 

In making its determination, the Board generally considers one or more of the following four 

factors: 

1. The size of the employee complement just prior to the date of issuance of the Board’s 

decision. By such time the complement may be significantly more representative and 

substantial than it was at the time of the hearing. See Celotex Corp., 180 NLRB 62 (1970); 

Bell Aerospace Co., 190 NLRB 509 (1971); and St. John of God Hospital, 260 NLRB 905 

(1982). 

2. Whether the projected additional jobs merely involve distinct operations rather than 

separate and distinct job classifications in terms of types of skills required of the employees. 

If no significantly different functions are to be fulfilled or no significantly different skills are 

required, the Board will find the “substantial and representative complement” test satisfied. 

See Frolic Footwear, 180 NLRB 188 (1970); Redman Industries, 174 NLRB 1065 (1969); 

and Revere Copper & Brass, 172 NLRB 1126 (1968). Compare Bekaert Steel Wire Corp.,

189 NLRB 561 (1971), in which the Board directed an election although the employer 

contended that its plans to add a new facility and process made the petition premature. The 

Board found the existing facility (process) then in operation “representative and a separate 

appropriate unit.” The Board stated that the continuing viability of any certification that may 

result from the election and the effect, if any, of such certification may be reviewed in a 

subsequent appropriate proceeding after the new operations have materialized. See also Some 

Industries, 204 NLRB 1142 (1973), wherein the Board, while agreeing that the employee 

complement was substantial, held that the addition of 10–15 new classifications to the 9 in 

existence rendered the present complement nonrepresentative. Compare Witteman Steel Mills, 

253 NLRB 320 fn. 7 (1981). 

3. The rate of expansion of the unit. The Board has found that an expansion anticipated 

for implementation almost 2 years after the current hearing was “too remote and speculative 

to form a basis for denying present employees an opportunity to select a bargaining 

representative.” An expansion contemplated within the forthcoming year, however, was 

considered “a more realistic date for measuring the substantiality of the present force.” 

Gerlach Meat Co., 192 NLRB 559 (1971). See also Bekaert Steel Wire Corp., supra; Key 

Research & Development Co., 176 NLRB 134 (1969). 

A case involving the construction industry highlights the rationality of the Board’s 

flexible ad hoc approach in the area of expanding units. This decision notes the Board’s effort 

to balance two potentially conflicting policy objectives: insuring maximum employee 

participation in the selection of a bargaining agent, and permitting employees who wish to be 

represented as immediate representation as is possible. Since the construction industry, 

however, is characterized by activities of “a fluctuating nature and unpredictable duration,” 

delaying an election until the employee complement was full or almost full “might well result 

in bargaining for only a very short duration, with the project completed before any 

meaningful results could ensue.” Thus, in the construction industry the Board favors an early 

election. Clement-Blythe Cos., 182 NLRB 502 (1970). For further discussion see John 

Deklewa & Sons, 282 NLRB 1375, 1386 fn. 45 (1987). 

4. The Board will look at the employer’s projected plans and will not dismiss where the 

plans are mere speculation or conjecture. See, e.g., General Engineering, 123 NLRB 586 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 115

(1959); Meramec Mining Co., 134 NLRB 1675 (1962); and Pullman, Inc., 221 NLRB 954 

(1975). 

In Toto Industries (Atlanta), 323 NLRB 645 (1997)), the Board affirmed on a Regional 

Director’s decision finding representative complement and describing seven factors to be 

considered. 

For a discussion of other construction industry issues, see sections 5-210, 9-211, 9-1000, 10-

700, and 15-130. 

10-700 Contracting Units and Cessation of Operations 

347-8020-6000 et seq. 

The Board has extended its expanding unit guidelines to cases where the unit is contracting. 

M. B. Kahn Construction Co., 210 NLRB 1050 (1974); and Douglas Motors Corp., 128 NLRB 

307 (1960). See also NLRB v. Engineer Constructors, 756 F.2d 464 (6th Cir. 1985). In FraserBrace Engineering Co., 38 NLRB 1263 (1942), the Board dismissed a petition without prejudice 

where the construction work on a project was nearing completion and all or most employees 

would soon be laid off. 

In MGM Studios, 336 NLRB 1255 (2001), the Board described its policy: 

To warrant an immediate election where there is definite evidence of an expanding or 

contracting unit, the present work complement must be substantial and representative of the 

ultimate complement to be employed in the near future, projected both as to the number of 

employees and the number and kind of classifications. 

A mere reduction in the number of employees is not sufficient to warrant dismissal of the 

petition. Rather, the Board will examine whether the reduction is a result of a fundamental change 

in the nature of the employer operations. Plymouth Shoe Co., 185 NLRB 732 (1970); and 

Douglas Motors Corp., supra at 308. See also Wm. L. Hoge & Co., 103 NLRB 20 (1953). See 

Canterberry of Puerto Rico, Inc., 225 NLRB 309 (1976), and Gibson Electric, 226 NLRB 1063 

(1976), requiring that mere speculation as to the uncertainty of future operations is not sufficient 

warrant for dismissing the petition. In Pathology Institute, 320 NLRB 1050 (1996) (an unfair 

labor practice case), the Board noted that a reduction in operations did not “destroy the continued 

appropriateness of the historic unit.” Compare Tracinda Investment Corp., 235 NLRB 1167 

(1978), and Larson Plywood Co., 223 NLRB 1161 (1976). See also Cooper International, Inc., 

205 NLRB 1057 (1973), as to unit contraction as a result of plant relocation. 

In Servicios Correccionales De Puerto Rico, 338 NLRB 452 (2002), the Board, having been 

advised that the unit had ceased to exist because of cancellation of a management service 

contract, issued an order to Show Cause why the petition should not be dismissed. 

For an analysis of Board policy in construction cases compare Fish Engineering & 

Construction, 308 NLRB 836 (1992); and Davey McKee Corp., 308 NLRB 839 (1992). 

For a discussion of other construction industry issues, see sections 5-210, 9-211, 9-1000, 10-

600, and 15-130. 

10-800 Blocking Charges (CHM sec. 11730) 

347-6020-5033 

393-6061 

578-8075-6028 et seq. 

The Board has a longstanding policy of refusing to process representation petitions when 

there is a pending unfair labor practice case. U. S. Coal Co., 3 NLRB 398 (1937); and Big Three 

Industries, 201 NLRB 197 (1973). This policy is known as the blocking charge policy and it is set 

forth in detail in CHM section 11730. In practice the policy has two different applications. 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 116 

(1) Election petitions will not be processed when the alleged unfair labor practice conduct 

would have a tendency to interfere with employees’ free choice. Mark Burnett Productions, 

349 NLRB 706 (2007). This aspect of the policy requires that the charges be filed by a party 

to the representation case. The processing of the petition is deferred until the unfair labor 

practice case is resolved, absent a request to proceed (CHM sec. 11731.1). See also Overnite 

Transportation Co., 337 NLRB 131 (2001) (national posting blocked petition at facility 

where no unfair labor practices had occurred). In Bally’s Atlantic City, 338 NLRB 443 

(2002), a divided panel declined a suggestion by one Board member that impounded ballots 

be counted where the petitioner had filed unfair labor practice charges instead of objections. 

(2) If the charges allege incidents that challenge the circumstances surrounding the 

petition or the showing of interest or violations of Section 8(a)(2), (5), (b)(3), or (b)(7), the 

petition will be dismissed if the charge is deemed to have merit because the remedies for such 

cases may preclude a question concerning representation (CHM sec. 11730.3). American 

Medical Response, 346 NLRB 1004 (2006). This second application of the policy does not 

require that the charge be filed by a party to the representation case. The petitioner may upon 

final disposition of the unfair labor practice case seek reinstatement of the petition and is, for 

this purpose, kept informed of the status of that case by being granted party in interest status 

in the unfair labor practice case (CHM sec. 11733.2(b)). See, e.g., Brannon Sand & Gravel, 

308 NLRB 922 (1992). 

The blocking charge policy is not a per se rule. Thus, there are four major exceptions to the 

policy: 

(1) Where a request to proceed is filed by the party filing the charge. (CHM sec. 

11731.1) Such a request must be in writing and will usually be honored except in cases where 

the charges would, if proven, preclude the existence of a question concerning representation 

(Sec. 8(a)(2), (5), (b)(7), or (3)). A request to proceed in an 8(a)(2) case may be honored if 

the parties execute a Carlson waiver. Carlson Furniture Industries, 157 NLB 581 (1966), and 

CHM section 11731.1(c)(1). See also Mistletoe Express Service, 268 NLRB 1245 (1984), 

where the Board rejected such a waiver in the absence of an 8(a)(2) order and Town & 

Country, 194 NLRB 1135 (1972). Cf. Pullman Industries, 159 NLRB 580 (1966), where a 

waiver was approved in the absence of a Board order because the alleged assisted union was 

not a party to the representation case. 

(2) Where a fair election can be conducted notwithstanding meritorious charges. This 

exception is available where the nature of the unfair labor practices would not interfere with 

employee free choice. CHM section 11731.2 describes the considerations which go into the 

application of this exception. 

(3) Where significant common issues will be resolved by processing the representation 

case. See CHM section 11731.3 for further information. See also discussion of A. J. 

Schneider & Associates, 227 NLRB 1305 (1977), in Chapter 11 under “Clarification of 

Certification (UC).” 

(4) Where the charge is filed too late to permit investigation before the hearing or the 

election. (CHM secs. 11731.4 and 11731.5.) In this situation the Regional Director has the 

discretion to postpone the hearing or election; conduct the hearing or election and impound 

the ballots; or conduct the election, issue a tally and determine the validity of the election if 

objections are filed. 

(5) A fifth less known exception involves strikers. The Board will waive the blocking 

charge rule in order to hold an election within 12 months of the beginning of an economic 

strike so as not to exclude strikers. American Metal Products, 139 NLRB 601 (1962). See 

also section 23-120, infra. 

In the case of decertification petitions it may be alleged that unfair labor practices tainted the 

petition thus mandating dismissal thereof. In order to warrant dismissal, there must be a causal 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 117

connection between the unfair labor practices and the employee disaffection. Lee Lumber & 

Building Material Corp., 322 NLRB 175, 177 (1996); and Overnite Transportation Co., 333 

NLRB 1392 (2001). The Board has a four-factor test for determining causal connection: 

(1) the length of time between the unfair labor practices and the filing of the petition; 

(2) the nature of the alleged acts; 

(3) any possible tendency to cause employee disaffection; and 

(4) the effect of the unlawful conduct on employee morale, organizational activities, and 

membership in the union. Master Slack Corp., 271 NLRB 78, 84 (1984). Compare AT 

Systems West, Inc., 341 NLRB 7 (2004) (conduct tainted the petitions); and LTD 

Ceramics, Inc., 341 NLRB 86 (2004) (conduct did not taint); Overnight Transportation 

Co., supra, and Penn Tank Lines, Inc., 336 NLRB 1066 (2001). 

In Saint Gobain Abrasives, Inc., 342 NLRB 434 (2004), the Board directed the Regional 

Director to conduct a preelection hearing on an RD petition to determine whether there “was a 

causal relationship between [alleged unfair labor practice] conduct and the disaffection.” In so 

doing the Board noted that the standards set out in Master Slack, 271 NLRB 78 (1984), should be 

applied and that “the Master Slack test is an objective one.” Id. at fn. 2. 

A petition that is not dismissed may be held in abeyance. Upon final disposition of the unfair 

labor practice charges, the petition that was held in abeyance will be activated and be processed 

in the normal manner. Where the unfair labor practices were found meritorious, no election will 

be conducted until the posting period has expired absent a written waiver. Preliminary processing 

of the petition is permitted (CHM sec. 11734). See also Matson Terminals, 321 NLRB 879 fn. 7 

(1996). 

As noted above, a petitioner may request that a dismissed petition be reinstated on final 

disposition of the unfair labor practice case. In Poole Foundry & Machine Co., 95 NLRB 34 

(1951), the Board ordered the employer to bargain for a reasonable period of time after entry of 

an 8(a)(5) order and would not permit a question concerning representation to be raised during 

that period. A previously dismissed petition will not be reinstated during this period and if, 

bargaining during that period results in a contract, that contract will bar processing of the petition. 

In Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), the Board set a 6-month to 1-

year period for bargaining before the union’s status can be challenged. 

For Board policy with respect to concurrent decertification pettions and unfair labor practice 

cases, see section 10-300, supra. 

Petitions filed during the posting period of a settlement agreement will be dismissed. 

Freedom WLNE-TV, 295 NLRB 634 (1989); Hertz Equipment Rental Corp., 328 NLRB 28 

(1999). 

For additional discussion, see sections 10-300 and 24-150. 

10-900 Special Situations 

There are times when special situations occur. In Aerojet-General Corp., 144 NLRB 368, 371 

(1963), the Board stated: 

In the particular circumstances of this case, we do not believe it would be in the national 

interest to direct an election based on the present petition. Administration of the National 

Labor Relations Act, it must be remembered, is an important, but not the sole, instrument of 

our national labor policy. Although exclusive jurisdiction over representation matters has 

been committed to the Board, we do not regard this as a license to carry out our 

responsibilities with myopic disregard for other important considerations affecting the 

national interest and well-being. 
PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION 118 

In Aerojet-General, supra, the Board held that an election would be inappropriate, although it 

would normally have directed one, in view of the intervention of the President of the United 

States and the Secretary of Labor in the national interest and their setting up special procedures to 

resolve a contract dispute in order to avert serious damage to the Nation’s vital defense program 

that a strike would have caused. 

Along similar lines, in Mine Workers, 205 NLRB 509 (1973), a case in which a union was 

involved in its capacity as an employer, the Board found a special situation “in which 

extraordinary considerations compel a different result.” Factually, a reorganization resulted from 

proceedings began by the Secretary of Labor and actions initiated by private parties enforcing 

rights granted under the Labor-Management Reporting and Disclosure Act, Section 2(a). To hold 

an election at the time in question, observed the Board, would be at cross-purposes with, and 

possibly impede, the Government-initiated procedures set in motion by those suits and might also 

interfere with possible voluntary resolutions of existing issues concerning some of the districts of 

the union acting as employer. In these circumstances, the representation petition was dismissed, 

without prejudice to refiling after stabilization of the situation. 

10-1000 Reasonable Period of Time 

A Board bargaining order pursuant to an order of the Board will bar any challenge to the 

union’s status for “a reasonable period of time.” In Lee Lumber & Building Material Corp., 334 

NLRB 399 (2001), a case involving a withdrawal of recognition after an adjudicated violation of 

Section 8(a)(5), the Board set out the parameters of what constitutes a reasonable period, id.: 

[W]e have decided that when an employer has unlawfully refused to recognize or bargain 

with an incumbent union, a reasonable time for bargaining before the union’s majority status 

can be challenged will be no less than 6 months, but no more than 1 year. Whether a 

“reasonable period of time” is only 6 months, or some longer period up to 1 year, will 

depend on a multifactor analysis. Under that analysis, we shall consider whether the parties 

are bargaining for an initial agreement, the complexity of the issues being negotiated and the 

parties’ bargaining procedures, the total amount of time elapsed since the commencement of 

bargaining and the number of bargaining sessions, the amount of progress made in 

negotiations and how near the parties are to agreement, and the presence or absence of a 

bargaining impasse. 

See also sections 10-300 and 10-500. 
11. AMENDMENT, CLARIFICATION, AND 

DEAUTHORIZATION PETITIONS, FINAL OFFER 

ELECTIONS AND WAGE-HOUR CERTIFICATIONS 

In our consideration of types of petitions in an earlier chapter, we described in bare outline 

the six types, reserving for amplification in the individual chapters the variety of areas of law and 

procedure involved in the handling of certification petitions (RC), employer petitions (RM), and 

decertification petitions (RD). The remaining three types of petitions, however, are susceptible of 

treatment in a single chapter. These are petitions for amendment of certification (AC), petitions 

for clarification of unit (UC), and petitions for deauthorization of union security (UD). Also 

included in the chapter are final offer elections and wage-hour certifications. 

11-100 Amendment of Certification (AC) 

355-8800 

385-2500 

Flowing from the Board’s express authority under Section 9(c)(1) to issue certifications is the 

implied authority to amend them. Under Section 102.60(b) of the Board’s Rules and Regulations, 

Series 8, a party may file a petition to amend a certification to reflect changed circumstances, 

such as a merger or changes in the name or affiliation of the labor organization or in the site or 

location of the employer, where there is a unit covered by a certification and no question 

concerning representation exists. For amendment on a change of location see South Coast 

Terminals, 221 NLRB 197 (1976). 

When the amendment amounts to nothing more than a mere change in name or location, the 

Board will routinely grant the amendment. When, however, the amendment is sought to reflect a 

change brought about by an affiliation or merger with another labor organization, different 

considerations will apply. In merger or affiliation situations, the Board historically required that 

two conditions be met before it would grant an AC petition. First, there must have been a vote on 

the change that satisfied minimum due process and second, there must have been a substantial 

continuity between the pre and postaffiliation bargaining representative. Hammond Publishers, 

286 NLRB 49 (1987); and Hamilton Tool Co., 190 NLRB 571 (1971). 

The Supreme Court severely limited the due process test when it held that a union is not 

required to permit nonmember bargaining unit employees to vote on the decision to merge or 

affiliate. NLRB v. Financial Institution Employees, 475 U.S. 192 (1986). 

For a number of years thereafter, the Board debated the due process issue. Finally, in 

Raymond F. Kravis Center for the Performing Arts, 351 NLRB No. 19 (2007), it “decided to 

abandon the due process requirement for union affiliation.” Thus, there is no longer anything left 

of the first part of the Board’s test. For a history of that test see the Kravis decision. The Board 

has decided to apply the Kravis principle retroactively. Allied Mechanical Services, 352 NLRB 

No. 83 (2008). 

In the wake of Financial Institution Employees, supra, the Board was presented with a series 

of cases raising the second part of its test—continuity. In Western Commercial Transport, 288 

NLRB 214, 217 (1988), the Board rejected an 8(a)(5) charge because the affiliation of the 

certified union with another union resulted in “a sufficiently ‘dramatic’ change in the identity of 

the bargaining representative to raise a question concerning representation.” The Board found that 

the certified union lost its autonomy, that its officials had no major role in the organization, and 

that these officials were replaced by officials of the other labor organization. The substantial 

changes in size (136-employee unit affiliated with 8500-member organization), organization 

structure and administration diminished the rights of the membership to such an extent as to 

warrant a fundamental change in the character of the certified union. See also Mike Basil 

119
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120 

Chevrolet, 331 NLRB 1044 (2000);; Avante at Boca Raton, Inc., 334 NLRB 381 (2001); Garlock 

Equipment Co., 288 NLRB 247 (1988); and Chas. S. Winner, Inc., 289 NLRB 62 (1988). Cf. 

Sioux City Foundry, 323 NLRB 1071 (1997), enfd. 154 F.3d 832 (8th Cir. 1998); CPS Chemical 

Co., 324 NLRB 1021 (1997); Seattle-First National Bank, 290 NLRB 571 (1988), where there 

was no change in officers as a result of the affiliation; News/Sun-Sentinel Co., 290 NLRB 1171 

(1988); National Posters, 289 NLRB 468 (1988); and Minn-Dak Farmers Cooperative, 311 

NLRB 942 (1993).. For n analysis of the continuity question in the context of a trusteeship, see 

Quality Inn Waikiki, 297 NLRB 497 (1989). See also Potters Medical Center, 289 NLRB 201 

(1988), involving the merger of international unions; City Wide Insulation, 307 NLRB 1 (1992); 

and Service America Corp., 307 NLRB 57 (1992). 

An amendment of certification, which is granted only where there is continuity of 

representation, is not affected by the Board’s normal contract-bar rules. Hamilton Tool Co., supra 

at 573. However, in some circumstances, an amendment of certification will be denied. In one 

case, the Board stated it would, in effect, be subverting the policies of the Act by certifying a 

union through an AC proceeding which less than a year before had been rejected by a majority of 

the employees. Williamson Co., 244 NLRB 953, 955 (1979); Bunker Hill Co., 197 NLRB 334 

(1972). Bedford Gear & Machine Products, 150 NLRB 1 (1964); Gulf Oil Corp., 109 NLRB 861 

(1954); and United Hydraulics Corp., 205 NLRB 62 (1973). 

When an RC petition has been filed and the Board finds no question concerning 

representation but rather a problem that can be resolved by clarification or amendment of 

certification, it may on its own initiative clarify or amend the existing certification. Pacific Coast 

Shipbuilders Assn., 157 NLRB 384 (1966); and 220 Television, Inc., 172 NLRB 1304 (1968). 

If an AC petition clearly presents a question concerning representation, it must be dismissed, 

even in the absence of objections by any of the parties, because an amendment of certification is 

not intended to change the representative itself. Uniroyal, Inc., 194 NLRB 268 (1972); and 

Missouri Beef Packers, 175 NLRB 1100 (1969). 

Note that petition for amendment of certification may be filed only for a unit covered by a 

certification while a petition for clarification of a bargaining unit may be filed either where the 

bargaining representative has a certification or is recognized by the employer under a contract but 

not pursuant to a certification. 

The requirements and procedures for both of these types of petitions are set out in Sections 

102.61(d) (clarification) and 102.61(e) (amendment) of the Rules and Regulations. CHM sections 

11490–11498 and Section 101.17 of the Statements of Procedure. See also MCA Distribution 

Corp., 288 NLRB 1173 (1988), infra. 

11-200 Clarification of Certification (UC) 

Generally 

316-3301-5000 

355-7700 

385-7501 et seq. 

The Board’s express authority under Section 9(c)(1) to issue certifications carries with it the 

implied authority to police such certifications and to clarify them as a means of effectuating the 

policies of the Act. Thus, under Section 102.60(b) of the Board’s Rules and Regulations, Series 8, 

a party may file a petition for clarification of a bargaining unit where there is a certified or 

currently recognized bargaining representative and no question concerning representation exists. 

(See also Sec. 101.17 of the Statements of Procedure.) As noted above the procedures for UC and 

AC petitions are described at CHM sections 11490–11498. These procedures provide resolution 

of these issues by administrative investigation or by hearing as appropriate. Note that when the 

Regional Director utilizes the former, a failure to cooperate may preclude an opportunity for a 

hearing to appeal. MCA Distribution Corp., supra. 
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The Board described the purpose of unit clarification proceedings in Union Electric Co., 217 

NLRB 666, 667 (1975): 

Unit clarification, as the term itself implies, is appropriate for resolving ambiguities 

concerning the unit placement of individuals who, for example, come within a newly 

established classification of disputed unit placement or, within an existing classification 

which has undergone recent, substantial changes in the duties and responsibilities of the 

employees in it so as to create a real doubt as to whether the individuals in such 

classification continue to fall within the category—excluded or included—that they 

occupied in the past. Clarification is not appropriate, however, for upsetting an agreement of 

a union and employer or an established practice of such parties concerning the unit 

placement of various individuals, even if the agreement was entered into by one of the 

parties for what it claims to be mistaken reasons or the practice has become established by 

acquiescence and not express consent. 

See also E. I. Du Pont, Inc., 341 NLRB 607 (2004); Developmental Disabilities Institute, 334 

NLRB 1166 (2001); and Robert Wood Johnson University Hospital, 328 NLRB 912 (1999), 

quoting from United Parcel Service, 303 NLRB 326, 327 (1991). 

The limitations on accretion . . . require neither that the union have acquiesced in the 

historical exclusion of a group of employees from an existing unit, nor that the excluded 

group have some common job-related characteristic distinct from unit employees. It is the 

fact of historical exclusion that is determinative. 

When an RC petition has been filed and the Board finds no question concerning 

representation but rather a problem that can be resolved by clarification or amendment of 

certification, it may on its own initiative clarify or amend the existing certification. Pacific Coast 

Shipbuilders Assn., 157 NLRB 384 (1966); and 220 Television, Inc., 172 NLRB 1304 (1968). 

In order to have a valid UC petition, there must be employees in the classifications sought to 

be added. See Coca-Cola Bottling Co. of Wisconsin, 310 NLRB 844 (1993). Similarly, work 

assignment disputes are not appropriate for a UC proceeding. Coatings Application Co., 307 

NLRB 806 (1992); compare Steelworkers Local 392 (BP Minerals), 293 NLRB 913 (1989). 

The Board will determine the status of disputed employees even though they belong to a unit 

represented by an uncertified union because national labor policy requires it to take all positive 

action available to eliminate industrial strife and encourage collective bargaining. Furthermore, it 

would be a needless expense for both the parties and the Government to compel an election where 

there is no serious doubt of the union’s majority position. Firemen & Oilers, 145 NLRB 1521 

(1964); Seaway Food Town, 171 NLRB 729 (1968); Alaska Steamship Co., 172 NLRB 1200 fn. 8 

(1968); Manitowoc Shipbuilding, 191 NLRB 786 (1971); and Peerless Publications, 190 NLRB 

658 (1971). 

The Board will not entertain a unit clarification petition seeking to accrete a historically 

excluded classification into the unit, unless the classification has undergone recent, substantial 

changes. Bethlehem Steel Corp., 329 NLRB 243, 244 (1999). Accord: Kaiser Foundation 

Hospitals, 337 NLRB 1061 (2002), holding that the Board’s decision in M. B. Sturgis, Inc., 331 

NLRB 1298 (2000), was not intended to reverse this longstanding Board doctrine, and temporary 

employees who are jointly employed are not excepted from this principle. Further, absent recent 

substantial changes, the Board will not entertain such a petition, regardless of when in the 

bargaining cycle the petition is filed, even if there has been a change in the Board’s decisional 

law. Caesar’s Palace, 209 NLRB 950 (1974). See also Premcor, Inc., 333 NLRB 1365 (2001), 

discussed infra at section 11-220. 

The board has a “relitigation rule” that precludes a party from stipulating to the inclusion of a 

classification in the representation case and shortly thereafter seeking to exclude the position 

from the unit. Premier Living Center, 331 NLRB 123 (2000), and I.O.O.F. Home of Ohio, Inc., 
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122 

322 NLRB 921 (1997). There is an exception to this rule when the issue involves the inclusion of 

positions “that would violate basic principles of the Act.” Washington Post Co., 254 NLRB 168 

(1981), and Goddard Riverside Community Center, 351 NLRB No. 84 (2007). Where there is 

such an issue, the Board will process the petition if it is filed at an appropriate time. (See sec. 11-

210, infra.) 

In The Sun, 329 NLRB 854, 859 (1999), a divided Board set out the test for deciding UC 

cases involving units defined by the work performed. 

Accordingly, we shall apply the following standard in unit clarification proceedings 

involving bargaining units defined by the work performed: If the new employees perform 

job functions similar to those performed by unit employees, as defined in the unit 

description, we will presume that the new employees should be added to the unit, unless the 

unit functions they perform are merely incidental to their primary work functions or are 

otherwise an insignificant part of their work. Once the above standard has been met, the 

party seeking to exclude the employees has the burden to show that the new group is 

sufficiently dissimilar from the unit employees so that the existing unit, including the new 

group, is no longer appropriate. [Footnote omitted.] 

In doing so the Board also summarized the standards for UC determinations in traditionally 

described units. Compare Archer Daniels Midland Co., 333 NLRB 673 (2001). 

11-210 Timing of UC Petition 

A unit may be clarified in the middle of a contract term where the procedure is invoked to 

determine the unit placement of employees performing a new operation. Crown Cork & Seal Co., 

203 NLRB 171 (1973); and Alaska Steamship Co., supra. It may also be clarified in midterm 

where the contract specifically excluded a group, such as supervisors, and there is a dispute as to 

the supervisory status of certain classifications of employees. Western Colorado Power Co., 190 

NLRB 564 (1971). 

The Board refuses to clarify in midterm, however, when the objective is to change the 

composition of a contractually agreed-upon unit by the exclusion or inclusion of employees. To 

grant the petition at such a time would be disruptive of a bargaining relationship voluntarily 

entered into by the parties when they executed the existing contract. Edison Sault Electric Co., 

313 NLRB 753 (1994), and Arthur C. Logan Memorial Hospital, 231 NLRB 778 (1977). San 

Jose Mercury & San Jose News, 200 NLRB 105 (1973); Credit Union National Assn., 199 NLRB 

682 (1972); and Wallace-Murray Corp., 192 NLRB 1090 (1971). In Edison Sault Electric, supra, 

the Board extended this policy to a situation in which the parties have agreed to a contract but 

have not yet signed the agreement. 

The Board has an exception to its midterm prohibition against processing UC petitions where 

the matter is also being considered in the grievance arbitration procedure. In those circumstances, 

the Board holds “that processing of the employer’s petition to confirm the historical exclusion of 

the disputed position is necessary to prevent the enforcement of a contradictory arbitration 

award.” Ziegler, Inc., 333 NLRB 949 (2001), and Williams Transportation Co., 233 NLRB 837 

(1977). The Board will, however, clarify the unit where the petition is filed shortly before 

expiration of the contract. Shop Rite Foods, 247 NLRB 883 (1980), and University of Dubuque, 

289 NLRB 349 (1988). 

A petition will also be entertained shortly after a contract is executed when the parties could 

not reach agreement or a disputed classification and the UC petitioner did not abandon its 

position in exchange for contract concessions. St. Francis Hospital, 282 NLRB 950 (1987), and 

cases cited therein. See also Goddard Riverside Community Center, supra. Similarly, a petition 

will be processed when the Board finds that the parties never recognized the disputed 

classification as part of the unit. Parker Jewish Geriatric Institute, 304 NLRB 153 (1990). 
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123

The Board has never set a precise time limit defining “shortly after.” In Baltimore Sun Co., 

296 NLRB 1023, 1024 (1989), the Board processed a UC petition filed 11 weeks after contract 

execution. And in a somewhat unusual situation, the Board processed a petition filed almost a 

year after the parties reached agreement on the contract but not on the unit dispute issue. Sunoco, 

Inc., 347 NLRB 421 (2006). 

For an interesting series of discussions on the timing of a UC petition see the three Bethlehem 

Steel cases decided the same day; Bethlehem Steel Corp., 329 NLRB 241 (1999); Bethlehem Steel 

Corp., 329 NLRB 243 (1999); and Bethlehem Steel Corp., 329 NLRB 245 (1999). 

In two cases, the Board continued its practice of permitting the processing of a UC petition 

midterm where it is necessary to resolve a dispute that the parties have been unable to resolve. 

See Kirkhill Rubber Co., 306 NLRB 559 (1992), petition processed during certification year 

where employees voted without challenge, but disagree as to their placement, and the parties 

cannot resolve the dispute. Compare Firestone Tire Co., 185 NLRB 63 (1970), distinguished by 

the Board in Kirkhill. The second case is Baltimore Sun Co., 296 NLRB 1023 (1989), where the 

petitioner reserved “the right to go to the Board” in the collective-bargaining negotiations. And 

see Brookdale Hospital Medical Center, 313 NLRB 592 fn. 3 (1993). 

11-220 Accretion v. Question Concerning Representation 

When a group or classification of employees sought to be added to a unit existed at the time 

the unit was certified, and these employees had no opportunity to participate in the selection of 

the bargaining representative, their unit placement raises a question concerning representation and 

a petition to amend or clarify will be dismissed. Gould-National Batteries, Inc., 157 NLRB 679 

(1966); Bendix Corp., 168 NLRB 371 (1968); AMF Inc., 193 NLRB 1113 (1971); and 

International Silver Co., 203 NLRB 221 (1973). See also Kaiser Foundation Hospitals, 337 

NLRB 1061 (2002). The same rule applies where the disputed jobs were in existence at the time 

of the certification; they were excluded from the certified unit as inappropriate; and the record 

shows no recent changes in the jobs that would make them appropriate for inclusion. Mountain 

States Telephone Co., 175 NLRB 553 (1969); Lufkin Foundry & Machine Co., 174 NLRB 556 

(1969); National Can Corp., 170 NLRB 926 (1968); and Sterilon Corp., 147 NLRB 219 (1964). 

See also Williams Transportation Co., 233 NLRB 837 (1977). Similarly, when the employees 

have not been included in the unit for some time and the union has made no attempt to include the 

position of the unit, the Board may find that the position is historically outside the unit and that 

the union has waived its right to a UC proceeding. Sunar Hauserman, 273 NLRB 1176 (1984), 

and Plough, Inc., 203 NLRB 818 (1973). Accord: ATS Acquisition Corp., 321 NLRB 712 (1996), 

and Robert Wood Johnson University Hospital, supra. 

When the disputed employees do not constitute an accretion to the unit represented by 

petitioner, the correct procedure to determine the issue of their inclusion is not a UC petition, but 

a petition pursuant to Section 9(c) of the Act seeking an election. Coca-Cola Bottling Co. of 

Wisconsin, supra. Westinghouse Electric Corp., 173 NLRB 310 (1969); Brockton Taunton Gas 

Co., 178 NLRB 404 (1969); Roper Corp., 186 NLRB 437 (1970); and Bradford-Robinson 

Printing Co., 193 NLRB 928 (1971). But see Armco Steel Co., 312 NLRB 257 (1993), where the 

Board indicated a willingness to utilize UC proceedings to determine unit scope and even 

majority issues as part of a Gitano analysis (Gitano Distribution Center, 308 NLRB 1172 (1992); 

see sec. 12-600, infra). Accord: Steelworkers Local 7912 (U.S. Tsubaki), 338 NLRB 29 (2002). 

Note that when the disputed employees constitute an accretion to the unit represented by the 

intervenor, a UC petition filed by another union is dismissed and no question concerning 

representation is raised. U.S. Steel Corp., 187 NLRB 522 (1971). 

A claim of accretion does not generally raise a question concerning representation sufficient 

to support filing of an RM petition. Woolwich, Inc., 185 NLRB 783 (1970). 

A UC petition was dismissed where the Board concluded that an election was the appropriate 

means of testing the propriety of merging several different units represented by several different 
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124 

unions, none of which claimed to represent all the employees involved. LTV Aerospace Corp.,

170 NLRB 200 (1973). 

As with other representation matters, the Board will not defer a UC petition to an arbitration’s 

decision, Magna Corp., 261 NLRB 104, 105 fn. 2 (1982), and cases cited therein. See also 

Advanced Architectural Metals, Inc., 347 NLRB 1279 (2006). 

While Section 9(b)(1) does not require the Board to render inappropriate a mixed unit of 

professional and nonprofessional employees established voluntarily by the parties, it does 

preclude the Board from creating on its own initiative a new unit composed of both professionals 

and nonprofessionals without a self-determination election. Thus, when the employer and union 

have already established and maintained a bargaining unit encompassing both elements, they may 

continue to maintain their bargaining relationship, and the Board will process a UC petition 

without first affording the professional members of the unit a self-determination election. A. O. 

Smith Corp., 166 NLRB 845 (1967); and International Telephone Corp., 159 NLRB 1757, 1762 

(1966). See Retail Clerks Local 324 (Vincent Drugs), 144 NLRB 1247, 1251 (1963); but see 

Wells Fargo Corp., 270 NLRB 787, 788 fn. 6 (1984), questioning Vincent Drugs. When, 

however, the UC petition seeks to add professional employees to the unit without a separate 

election, the petition will be dismissed. Gibbs & Cox, Inc., 168 NLRB 220 (1968); and Lockheed 

Aircraft Corp., 155 NLRB 702, 713 (1965). 

In Brink’s Inc., 272 NLRB 868 (1984), the Board was confronted with a UC proceeding 

involving a unit of guards represented by a nonguard union. The Board dismissed the petition as 

to do otherwise would “place an unduly narrow interpretation on the legislative intent” of Section 

9(b)(3) of the Act. 

In Libbey-Owens-Ford Glass Co., 169 NLRB 126 (1968), the Board ordered an election in a 

UC proceeding. There, the petitioner was seeking to use the UC procedures to absorb into an 

existing certified multiplant unit represented by it separately existing single-plant units also 

represented by it. The Board, finding that either an employerwide unit or separate plant units 

would be appropriate and that there was no actual question concerning representation because 

employer did not dispute the union’s representative status at any of the plants, held that the 

disputed employees should be given the opportunity to express their wishes. A later case 

involving the same employer, union, and issues, however, held differently. The decision in 

Libbey-Owens-Ford Glass Co., 189 NLRB 869 (1971), was written by the dissenters in the first 

case and relied on the reasoning of that dissent. They held that unit scope, not representation, was 

in issue, and that there was no statutory authority for permitting employees to decide, “in a 

representational vacuum,” which contract unit they wished. See also PPG Industries, 180 NLRB 

477 (1969). 

The creation of a new operation and a new unit typically raises a question concerning 

representation between the unions representing the formerly separate bargaining units, especially 

when neither group of affected employees is sufficiently predominate to determine exclusive 

bargaining status. F.H.E. Services, 338 NLRB 1095 (2003), relying on National Carloading 

Corp., 167 NLRB 801 (1967).When a provision intended in fact as a formula for determining 

eligibility in an election has been inadvertently included in the unit description, the Board will 

clarify the unit description by eliminating the eligibility provision. Detective Intelligence Service, 

177 NLRB 69 (1969). 

When appropriate, the Board will treat an RC petition as a motion to clarify or amend a 

certification. Compare 220 Television, Inc., 172 NLRB 1304 (1968); and U. S. Pipe Co., 223 

NLRB 1443 (1976). 

If a new classification is performing the same basic function as the unit employees have 

historically performed, the new classification is properly“viewed as remaining in the unit rather 

than being added to the unit by accretion.” Premcor, Inc., 338 NLRB 1365 (2001). See also 

Developmental Disabilities Institute, 334 NLRB 1166 (2001). 
AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

125

It is an unfair labor practice for an employer and union to “accrete” a group of employees that 

has been in existence and historically excluded from the unit. Teamsters Local 89 (United Parcel 

Service), 346 NLRB 484 (2006). 

In Al J. Schneider & Associates, 227 NLRB 1305 (1977), the Board dismissed a UC petition 

filed by the employer which presented the same unit question presented in an 8(a)(5) unfair labor 

practice case. In doing so, the Board stated that a unit placement issue is not presented when “the 

petition seeks a declaration by the Board; in advance of a disposition of the 8(a)(5) charges. The 

Schneider decision must, however, be read in conjunction with Exception 3 of the Blocking 

Charge rule. Thus, a Regional Director can secure Board approval to process a representation 

case first, including a UC petition, in which its resolution will resolve significant common issues. 

More recently, the Board indicated strong support for the use of UC proceedings to resolve unit 

scope as well as unit placement issues, particularly when the use of these proceedings will be 

more expeditious and will obviate the need for unfair labor practice proceedings. Armco Steel 

Co., 312 NLRB 257 (1993). 

For further discussion of accretions, see section 12-500. 

11-300 Deauthorization Petition (UD) 

324-4060-5000 

347-4040-3301-7500 

362-3385 

Under Section 9(e), the Board is empowered to take a secret ballot of the employees in a 

bargaining unit covered by an agreement between their employer and a labor organization, made 

pursuant to Section 8(a)(3), upon the filing with the Board of a petition by 30 percent or more of 

the employees in the unit alleging their desire that the authority for the union-security provision 

be rescinded. The Board certifies the result of such balloting to the labor organization and to the 

employer. A UD petition may not be filed by a supervisor. Rose Metal Products, 289 NLRB 1153 

(1988). 

In F. W. Woolworth Co., 107 NLRB 671 (1954), the Board held that the 30 percent or more 

of employees who may make the request are employees from the bargaining unit covered by the 

contract, not just those from the group obligated to become union members by reason of the 

contract. 

There must be a union-security clause in the contract in order to have a UD election. 

Wakefield’s Deep Sea Trawlers, 115 NLRB 1024 (1956). However, the showing of interest need 

not postdate the effective union-security provision. Covenant Aviation Security, LLC, 349 NLRB 

699 (2007). 

When employees previously certified by the Board or recognized by the employer as separate 

units have, in effect, been merged into single unit and comprise the bargaining unit covered by 

the existing union-security agreement, a petition for a UD election in only two of the original 

separate units was dismissed. Hall-Scott, Inc., 120 NLRB 1364 (1958). See also S. B. Rest. of 

Huntington, Inc., 223 NLRB 1445 (1976). 

Romac Containers, Inc., 190 NLRB 238 (1971), held that students who were summer 

employees but had joined the union were eligible to vote in a deauthorization election. 

Individuals who spend “a great majority of their time providing exempt public school bus 

services” were permitted to vote in a UD election because “in a union deauthorization election the 

Board does not define the bargaining unit.” Illinois School Bus Co., 231 NLRB 1 (1977). 

The Board will give effect to a state election proceeding held within 1 year of a UD petition 

being filed. Asamera Oil (U.S.), Inc., 251 NLRB 684 (1980). 

A majority of eligible voters must vote for deauthorization in order for the proposition to 

prevail and in one case the Board found that employer conduct to encourage voter turnout was 
AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION PETITIONS, FINAL OFFER

ELECTIONS AND WAGE-HOUR CERTIFICATIONS

126 

“particularly significant” in determining that the conduct (changes in paycheck procedures) was 

objectionable. United Cerebral Palsey Assn. of Niagara County, 327 NLRB 40 (1998). 

For a discussion of the effect of a threat not to represent the unit in the event the union is 

deauthorized, see Chicago Truck Drivers Local 101 (Bake-Line Products), 329 NLRB 247 

(1999), and Trump Taj Mahal Casino, 329 NLRB 256 (1999). 

The timeliness of a UD petition is determined under NLRA law, not State law (Colorado 

Peace Act). See Albertson’s/Max Food Warehouse, 329 NLRB 410 (1999), reversing City 

Markets, Inc., 216 NLRB 1020 (1983). 

11-400 Final Offer Elections (CHM sec. 11520) 

355-9500 

Section 206 et seq. of the Act describes the procedures in which the President can seek an 

injunction against a strike or lockout which imperils the national health or safety. Such an 

injunction can continue for 80 days. After the first 60 days a Board of Inquiry appointed by the 

President reports on the status of negotiations including the “employer’s last offer of settlement.” 

Within 15 days thereof the Board conducts a secret-ballot election among the employees on the 

question of “whether they wish to accept the final offer of settlement of their employer.” Within 5 

days of the election, the Board certifies the result to the Attorney General. 

11-500 Certificate of Representative Under FLSA (CHM sec. 11540) 

This little used procedure is authorized by Section 7(b) of the Fair Labor Standards Act. The 

procedure calls for the Board to certify that a union is a “bona fide” representative of the 

employees of a given unit. Once certified, the union and the employer may as part of their 

collective bargaining vary somewhat the overtime provisions of the FLSA. This procedure is 

applicable to public employees’ units as well as units in the private sector. 

11-600 Revocation of Certification 

A certification must be honored for a reasonable period, ordinarily 1 year, in the absence of 

“unusual circumstances.” Ray Brooks v. NLRB, 348 U.S. 96, 98 (1954). There are three situations 

in which the Board has found unusual circumstances: (1) a defunct union (sec. 9-420); (2) a 

schism (sec. 9-410); or (3) a radical fluctuation in the size of the bargaining unit within a short 

time. Id. 

An employer who is confronted with what it believes is such a situation must petition the 

Board for revocation of the certification. “Unusual circumstances” is not a valid defense in a 

refusal-to-bargain case. Id at 103. See also KI (USA) Corp., 310 NLRB 1233 fn. 1 (1993). 
12. APPROPRIATE UNIT: GENERAL PRINCIPLES 

12-100 Introduction 

401-2500 et seq. 

420-0150 

440-1720 

Section 9(a) of the Act implements the general provisions contained in Section 7 of the Act, 

which grant employees the right to self-organization and to representation through agents of their 

own choosing. Section 9(a) goes further by providing that representatives selected for the 

purposes of collective bargaining shall be the “exclusive” representatives. 

There are specific requirements in the statutory provision. The representative must be chosen 

by a majority of the employees. These employees must be in a unit appropriate for collectivebargaining purposes. Under Section 9(b) the Board is empowered to “decide in each case 

whether, in order to assure employees the fullest freedom in exercising the rights guaranteed by 

this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, 

craft unit, plant unit, or subdivision thereof.” “The selection of an appropriate bargaining unit lies 

largely within the discretion of the Board whose decision, if not final, is rarely to be disturbed.” 

So. Prairie Construction v. Operating Engineers Local 627, 425 U.S. 800, 805 (1976). 

The distinction between issues involving the scope of the unit and those involving its 

composition should be kept in mind. The scope of the unit pertains to such questions as to 

whether it should be limited to one plant rather than employerwide or to one employer as 

distinguished from multiemployer. (Chs. 12–14.) Composition of a unit relates to such questions 

as the inclusion or exclusion of disputed employee categories or unit placement in general. (Chs. 

16–20.) In Boeing Co., 337 NLRB 152, 153 (2001), the Board described its policy with respect to 

determining appropriate units: 

The Board’s procedure for determining an appropriate unit under Section 9(b) is to 

examine first the petitioned-for unit. If that unit is appropriate, then the inquiry into the 

appropriate unit ends. If the petitioned-for unit is not appropriate, the Board may examine 

the alternative units suggested by the parties, but it also has the discretion to select an 

appropriate unit that is different from the alternative proposals of the parties. See, e.g., 

Overnite Transportation Co., 331 NLRB 662, 663 (2000); NLRB v. Lake County Assn. for 

the Retarded, 128 F.3d 1181, 1185 fn. 2 (7th Cir. 1997). 

It will be observed that there is nothing in the statute which requires that the unit for 

bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit; the Act 

requires only that the unit be “appropriate,” that is, appropriate to insure to employees in each 

case “the fullest freedom in exercising the rights guaranteed by this Act.” Bartlett Collins Co., 

334 NLRB 484 (2001); Overnite Transportation Co., 322 NLRB 723 (1996); Morand Bros. 

Beverage Co., 91 NLRB 409 (1950), enfd. 190 F.2d 576 (7th Cir. 1951); Federal Electric Corp., 

157 NLRB 1130 (1966); Parsons Investment Co., 152 NLRB 192 fn. 1 (1965); Capital Bakers, 

168 NLRB 904, 905 (1968); National Cash Register Co., 166 NLRB 173 (1967); NLRB v. 

Carson Cable TV, 795 F.2d 879 (9th Cir. 1986); and Dezcon, Inc., 295 NLRB 109 (1989). A 

union is, therefore, not required to seek representation in the most comprehensive grouping of 

employees unless “an appropriate unit compatible with that requested does not exist.” P. 

Ballantine & Sons, 141 NLRB 1103 (1963); Bamberger’s Paramus, 151 NLRB 748, 751 (1965); 

and Purity Food Stores, 160 NLRB 651 (1966). Indeed, “the Board generally attempts to select a 

unit that is the smallest appropriate unit encompassing the petitioned-for employees.” Bartlett 

Collins Co., supra. 

Moreover, it is well settled that there is more than one way in which employees of a given 

employer may appropriately be grouped for purposes of collective bargaining. See, for example, 

127
128 APPROPRIATE UNIT: GENERAL PRINCIPLES 

General Instrument Corp. v. NLRB, 319 F.2d 420, 422–423 (4th Cir. 1963), cert. denied 375 U.S. 

966 (1964); and Mountain States Telephone Co. v. NLRB, 310 F.2d 478, 480 (10th Cir. 1962). 

The Board will pass only on the appropriateness of units that have been argued for. Acme 

Markets, Inc., 328 NLRB 1208 (1999). 

The presumption is that a single location unit is appropriate. Hegins Corp., 255 NLRB 1236 

(1981); and Penn Color, Inc., 249 NLRB 1117, 1119 (1980). Marks Oxygen Co., 147 NLRB 228, 

230 (1964); see also Huckleberry Youth Programs, 326 NLRB 1272 (1998). 

A petitioner’s desire as to unit is always a relevant consideration but cannot be dispositive. 

Marks Oxygen Co., supra; and Airco, Inc., 273 NLRB 348 (1984), and section 12-140, infra. 

Obviously, a proposed bargaining unit based on an arbitrary, heterogeneous, or artificial grouping 

of employees is inappropriate. Moore Business Forms, Inc., 204 NLRB 552 (1973); and Glosser 

Bros., Inc., 93 NLRB 1343 (1951). Thus, when all maintenance and technical employees have 

similar working conditions, are under common supervision, and interchange jobs frequently, a 

unit including only part of them is inappropriate. U.S. Steel Corp., 192 NLRB 58 (1971). 

The discretion granted to the Board in Section 9(b) to determine the appropriate bargaining 

unit is reasonably broad, although it does require that there be record evidence on which a finding 

of appropriateness can be granted. Allen Health Care Services, 332 NLRB 1308 (2000). The only 

statutory limitations are those pertaining to professional employees (Sec. 9(b)(1)); craft 

representation (Sec. 9(b)(2)); plant guards (Sec. 9(b)(3)); and extent of organization (Sec. 

9(c)(5)). These provisions are treated in summary manner here and at greater length under more 

specific headings in later chapters. By way of an introductory note to these statutory limitations, 

we summarize them here. 

12-110 Professional Employees 

355-2260 

401-2575-1400 

440-1760-4300 

Section 9(b)(1) prohibits the Board from deciding that a unit including both professional and 

nonprofessional employees is appropriate, unless a majority of the professional employees vote 

for inclusion in such a mixed unit. Leedom v. Kyne, 358 U.S. 184 (1958); Vickers, Inc., 124 

NLRB 1051 (1959); Pay Less Drug Stores, 127 NLRB 160 (1960); Westinghouse Electric Corp. 

v. NLRB, 440 F.2d 7 (2d Cir. 1971), cert. denied 404 U.S. 853 (1971); A. O. Smith Corp., 166 

NLRB 845 (1967); and Lockheed Aircraft Corp., 202 NLRB 1140 (1973). In Russelton Medical 

Group, 302 NLRB 718 (1991), an unfair labor practice case, the Board declined to order 

bargaining in a combined unit where there had never been a vote under Section 9(b)(1). See also 

Utah Power & Light Co., 258 NLRB 1059 (1981), and section 18-100, infra. 

12-120 Craft Units 

440-1760-9100 

Section 9(b)(2) prohibits the Board from deciding that a proposed craft unit is inappropriate 

because of the prior establishment by the Board of a broader unit unless a majority of the 

employees in the proposed craft unit vote against separate representation. For a full discussion of 

this provision and its interpretation, see chapter 16 on Craft and Traditional Departmental Units 

in general and Mallinckrodt Chemical Works, 162 NLRB 387 (1967), in particular. 

12-130 Plant Guards 

339-7575-7500 et seq. 

401-2575-2800 

Section 9(b)(3) prohibits the Board from establishing units including both plant guards and 

other employees and from certifying a labor organization as representative of a guard unit, if the 
APPROPRIATE UNIT: GENERAL PRINCIPLES 129

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

organization which admits nonguard employees. American Building Maintenance Co., 126 

NLRB 185 (1960); Bonded Armored Carrier, 195 NLRB 346 (1972); and Wackenhut Corp., 196 

NLRB 278 (1972). See also Elite Protective & Security Services, 300 NLRB 832 (1990). 

The Board has also held that the 9(b)(3) restriction precludes it from finding unlawful the 

withdrawal of recognition for a mixed guard union that had been voluntarily recognized for a 

guard unit. Temple Security, Inc., 328 NLRB 663 (1999), and Wells Fargo Corp., 270 NLRB 787 

(1984) 

See also section 18-200, infra. 

12-140 Extent of Organization 

401-2562 

Section 9(c)(5) prohibits the Board from establishing a bargaining unit solely on the basis of 

extent of organization. NLRB v. Morganton Hosiery Co., 241 F.2d 913 (4th Cir. 1957); 

Metropolitan Life Insurance Co. v. NLRB, 380 U.S. 438 (1965); and Motts Shop Rite of 

Springfield, 182 NLRB 172 (1970). See also Overnite Transportation Co., 322 NLRB 723 (1996) 

, and 325 NLRB 612 (1998), where the Board held that a finding of different units in the same 

factual setting does not mean that the decision is based on extent organization. 

For a fuller discussion of this statutory limitation, see sections 12-300 and 13-1000. 

12-200 General Principles 

The Board has given full recognition to the significance of its discretionary determination of 

an appropriate bargaining unit. In Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962), it 

stated: 

Because the scope or the unit is basic to and permeates the whole of the collectivebargaining relationship, each determination, in order to further effective expression of the 

statutory purposes, must have a direct relevancy to the circumstances within which 

collective bargaining is to take place. For, if the unit determination fails to relate to the 

factual situation with which the parties must deal, efficient and stable collective bargaining 

is undermined rather than fostered. Accord: Gustave Fischer, Inc., 256 NLRB 1069 (1981). 

To obtain a better understanding of the factors which go into a unit finding, we shall first 

consider those which are relatively simple and therefore require little elaboration, and then, in 

more detail, those which need further explication. 

12-210 Community of Interest 

401-7500 

420-2900 

420-4000 et seq. 

A major determinant in an appropriate unit finding is the community of duties and interests of 

the employees involved. When the interests of one group of employees are dissimilar from those 

of another group, a single unit is inappropriate. Swift & Co., 129 NLRB 1391 (1961). See also 

U.S. Steel Corp, supra. But the fact that two or more groups of employees engage in different 

processes does not by itself render a combined unit inappropriate if there is a sufficient 

community of interest among all these employees. Berea Publishing Co., 140 NLRB 516, 518 

(1963). 

Many considerations enter into a finding of community of interest. See, e.g., NLRB v. Paper 

Mfrs. Co., 786 F.2d 163 (3d Cir. 1986). The factors affecting the ultimate unit determination may 

be found in the following sampling: 
130 APPROPRIATE UNIT: GENERAL PRINCIPLES 

a. Degree of functional integration. Casino Aztar, 349 NLRB 603 (2007); Publix Super 

Markets, Inc., 343 NLRB 1023 (2004); United Rentals, Inc., 341 NLRB 540 (2004); United 

Operations, Inc., 338 NLRB 123 (2002); Seaboard Marine Ltd., 327 NLRB 556 (1999); 

Atlanta Hilton & Towers, 273 NLRB 87 (1984); NCR Corp., 236 NLRB 215 (1978); 

Michigan Wisconsin Pipe Line Co., 194 NLRB 469 (1972); Threads-Inc., 191 NLRB 667 

(1971); H. P. Hood & Sons, 187 NLRB 404 (1971); Monsanto Research Corp., 185 NLRB 

137 (1970); and Transerv Systems, 311 NLRB 766 (1993). 

b. Common supervision. United Rentals, Inc., supra; Bradley Steel, Inc., 342 NLRB 215 

(2004); United Operations, Inc., supra; Associated Milk Producers, 250 NLRB 1407 (1970); 

Sears, Roebuck & Co., 191 NLRB 398 (1971); Donald Carroll Metals, 185 NLRB 409 

(1970); Dean Witter & Co., 189 NLRB 785 (1971); Harron Communications, 308 NLRB 62 

(1992); Transerv Systems, supra; and Sears, Roebuck & Co., 319 NLRB 607 (1995). 

c. The nature of employee skills and functions. United Operations, Inc., supra; Overnite 

Transportation Co., 331 NLRB 662 (2000) (all unskilled employees at particular location); 

Seaboard Marine Ltd., supra; J. C. Penney Co., 328 NLRB 766 (1999); Harron 

Communications, supra; Hamilton Test Systems, 265 NLRB 595 (1982); R-N Market, 190 

NLRB 292 (1971); Downingtown Paper Co., 192 NLRB 310 (1971); and Phoenician, 308 

NLRB 826 (1992). 

d. Interchangeability and contact among employees. Casino Aztar, supra; United 

Rentals, supra; J. C. Penney, supra; Associated Milk Producers, supra; Purity Supreme, Inc., 

197 NLRB 915 (1972); Gray Drug Stores, 197 NLRB 924 (1972); and Michigan Bell 

Telephone Co., 192 NLRB 1212 (1971). 

e. Work situs. R-N Market, supra; Bank of America, 196 NLRB 591 (1972); and Kendall 

Co., 184 NLRB 847 (1970). 

f. General working conditions. United Rentals, supra; Allied Gear & Machine Co., 250 

NLRB 679 (1980); Sears, Roebuck & Co., supra; and Yale University, 184 NLRB 860 (1970). 

See also K.G. Knitting Mills, 320 NLRB 374 (1995), where the Board held that the fact that 

employees receive a salary, do not punch timeclocks, receive different health insurance 

benefits from other unit employees, and are able to adjust their own hours was not an 

adequate basis for exclusion from the unit. 

g. Fringe benefits. Allied Gear & Machine Co., supra; Donald Carroll Metals, supra; 

Cheney Bigelow Wire Works, 197 NLRB 1279 (1972). In Publix Super Markets, supra; 

Bradley Steel, Inc., supra; and Los Angeles Water & Power Employees’ Assn., 340 NLRB 

1232 (2003), the Board found community of interest where the only factor militating against 

inclusion was the higher rate of pay enjoyed by the contested employee. 

“[T]he manner in which a particular employer has organized his plant and utilizes the skills of 

his labor force has a direct bearing on the community of interest among various groups of 

employees in the plant and is thus an important consideration in any unit determination.” 

International Paper Co., 96 NLRB 295, 298 fn. 7 (1951). Accord: Gustave Fischer, Inc., supra at 

fn. 5. 

This enumeration of factors relevant to a community-of-interest finding is intended to alert 

the reader to the ingredients to look for in arriving at a determination. It should be noted, 

however, that, in the normal situation, the unit question is resolved by weighing all the relevant 

factors against the major determinant of community of interest. See, e.g., Publix Super Markets, 

supra; Bradley Steel, Inc., supra; Trumbull Memorial Hospital, 338 NLRB 900 (2003); United 

Operations, Inc., supra; and Hotel Services Group, 328 NLRB 116 (1999). 

A difference in the situs of employment does not in itself require establishment of separate 

bargaining units, especially when there is evidence of a community of interest in their 

employment joining both groups. NLRB v. Carson Cable TV, supra. McCann Steel Co., 179 

NLRB 635, 636 (1969); and Peerless Products Co., 114 NLRB 1586 (1956). Conversely, 
APPROPRIATE UNIT: GENERAL PRINCIPLES 131

employees stationed away from the plant are excluded from a production and maintenance unit 

where they do not have sufficient interests in common with the in-plant employees. Sealite, Inc., 

125 NLRB 619 (1959); and Sheffield Corp., 123 NLRB 1454 (1959). As a consequence, 

homeworkers are generally excluded from a unit of in-plant employees. Valley Forge Flag Co., 

152 NLRB 1550 (1965); and Terri Lee, Inc., 103 NLRB 995 (1953). However, employees who 

spend most of their time away from the plant may be included in a plantwide unit if the petitioner 

is willing to represent such a unit and no other union seeks to represent them separately. Marks 

Oxygen Co., supra. Difference in supervision is not a per se basis for excluding employees from 

an appropriate unit. Texas Empire Pipe Line Co., 88 NLRB 631 (1950). The important 

consideration is still the overall community of interest among the several employees. 

For a typical analysis of the operative factors leading to or away from a community-ofinterest finding, see U.S. Steel Corp., supra, and Brand Precision Services, 313 NLRB 657 

(1994). See also Aerospace Corp., 331 NLRB 561 (2000) (community-of-interest test used in 

research and development industry). 

In Winsett-Simmonds Engineers, Inc., 164 NLRB 611 (1967), the Board found sufficient 

community of interest to include work release prisoners in a bargaining unit in the circumstances 

there. Compare Speedrack Products Group, Ltd., 321 NLRB No. 143 (1996) (not reported in 

Board volumes), enf. denied 114 F.3d 1276 (D.C. Cir. 1997). On remand the Board included the 

work release prisoners. Speedrack Products Group Limited, 325 NLRB 609 (1998). 

12-220 History of Collective Bargaining 

420-1200 et seq. 

In determining the appropriateness of a bargaining unit, prior bargaining history is given 

substantial weight. As a general rule, the Board is reluctant to disturb a unit established by 

collective bargaining which is not repugnant to Board policy or so constituted as to hamper 

employees in fully exercising rights guaranteed by the Act. Canal Carting, Inc., 339 NLRB 969 

(2003); Ready Mix USA, Inc., 340 NLRB 946 (2003); Red Coats, Inc., 328 NLRB 205 (1999); 

and Washington Post Co., 254 NLRB 168 (1981). Fraser & Johnston Co., 189 NLRB 142, 151 

fn. 50 (1971); Lone Star Gas Co., 194 NLRB 761 (1972); West Virginia Pulp & Paper Co., 120 

NLRB 1281, 1284 (1958); and Great Atlantic & Pacific Tea Co., 153 NLRB 1549 (1965). The 

rationale for this policy is based on the statutory objective of stability in industrial relations. See 

also Hi-Way Billboards, 191 NLRB 244 (1971). 

Bargaining history under 8(f) agreements is relevant to a unit determination under Section 9 

but not conclusive. Barron Heating & Air Conditioning, Inc., 343 NLRB 450 (2004). 

A party challenging a historical unit as no longer inappropriate has a heavy evidentiary 

burden. Trident Seafoods, Inc., 318 NLRB 738 (1995); Canal Carting, supra; and Ready Mix 

USA, supra. 

As in many areas of substantive law, exceptions are made to the general rule. These are: 

12-221 Consent-Election Stipulation 

393-6054-6750 

401-5000 

420-7312 

The Board does not consider itself bound by a collective-bargaining history resulting from a 

consent election conducted pursuant to a unit stipulated by the parties rather than one determined 

by the Board. Laboratory Corp. of America Holdings, 341 NLRB 1079 (2004); Mid-West 

Abrasive Co., 145 NLRB 1665 (1964); and Macy’s San Francisco, 120 NLRB 69, 71 (1958). 

Likewise, the Board does not consider itself bound by a history of bargaining resulting from a 

Board certification or stipulation of the parties at the hearing. Coca-Cola Bottling Co. of 

Baltimore, 156 NLRB 450, 452 (1966); and Westinghouse Electric Corp., 118 NLRB 1043 
132 APPROPRIATE UNIT: GENERAL PRINCIPLES 

(1957). This policy is not applicable to instances in which the Board is making unit placement 

determinations in a stipulated unit. In such cases, the intent of the parties is paramount. Tribune 

Co., 190 NLRB 398 (1971); and Lear Siegler, Inc., 287 NLRB 372 (1987). Where that intent is 

unclear, a community-of-interest test is applied. Space Mark, Inc., 325 NLRB 1140 fn. 1 (1998). 

For additional discussion of stipulations in representation cases, see sections 23-500, -520, 

and -530 and Pacific Lincoln-Mercury, 312 NLRB 901 (1993). 

12-222 Bargaining History Contrary to Board Policy 

420-1787 

Bargaining history, conducted on a basis contrary to established Board representation policy, 

carries little or no weight in a determination of appropriate unit. Mfg. Woodworkers Assn., 194 

NLRB 1122 (1972) (bargaining history on a “members only” basis); Land Title Guarantee & 

Trust Co., 194 NLRB 148 (1972) (bargaining history based solely on the sex of the employees); 

Crown Zellerbach Corp., 246 NLRB 202 (1980), and A. L. Mechling Barge Lines, 192 NLRB 

1118, 1120 (1971) (inclusion of employees by agreement despite lack of community of interest); 

Liggett & Meyers Tobacco Co., 91 NLRB 1145, 1146 fn. 3 (1950) (bargaining history on a 

“members only” basis); and New Deal Cab Co., 159 NLRB 1838, 1841 (1966) (bargaining 

history based solely on race). But simply because the historical unit would not be appropriate 

under Board standards if being organized for the first time, does not make it inappropriate. Ready 

Mix USA, Inc., supra. 

12-223 Ineffective Bargaining History 

420-1708 

420-1775 

A brief or ineffective history of collective bargaining is not accorded determinative weight. 

Generally, a bargaining history of less than a year in duration is regarded as too brief to be 

deemed a significant factor. See Jos. Schlitz Brewing Co., 206 NLRB 928 (1973); Duke Power 

Co., 191 NLRB 308 (1971); Heublein, Inc., 119 NLRB 1337, 1339 (1958); and Chrysler Corp., 

119 NLRB 1312, 1314 (1958). 

12-224 Oral Contract 

420-1725 

A bargaining history which is based on an oral contract is not controlling. Inyo Lumber Co., 

92 NLRB 1267 fn. 3 (1951). 

12-225 Bargaining History of Other Employees 

420-1254 

420-1263 

420-1281 

The bargaining history of a group of organized employees in a plant does not control the unit 

determination for every other group of unorganized employees in that plant. North American 

Rockwell Corp., 193 NLRB 985 (1971); Piggly Wiggly California Co., 144 NLRB 708 (1963); 

Arcata Plywood Corp., 120 NLRB 1648, 1651 (1958); and Joseph E. Seagram & Sons, Inc., 101 

NLRB 101 (1953). Compare Transcontinental Bus System, 178 NLRB 712 (1969). 

For similar reasons, the bargaining pattern at other plants of the same employer or in the 

particular industry will not be considered controlling in relation to the bargaining unit of a 

particular plant, Big Y Foods, 238 NLRB 855 (1978); Miller & Miller Motor Freight Lines, 101 

NLRB 581 (1953), although it may be a factor in unit determination; and Spartan Department 

Stores, 140 NLRB 608 (1963). 
APPROPRIATE UNIT: GENERAL PRINCIPLES 133

12-226 Significant Changes 

420-2300 

Notwithstanding a long history of bargaining on a multiplant basis, where significant changes 

occur after the prior certification, the bargaining history on the former basis no longer has a 

controlling effect. Plymouth Shoe Co., 185 NLRB 732 (1970); General Electric Co., 185 NLRB 

13 (1970); and General Electric Co., 100 NLRB 1489 (1951). Thus, the bargaining history lost its 

impact where, as a result of a reorganization, integrated plants became decentralized. See also 

General Electric Co., 123 NLRB 1193 (1959); and Westinghouse Electric Corp., 144 NLRB 455 

(1963). Compare Crown Zellerbach Corp., supra, where the Board found the changes 

insubstantial but nonetheless directed an election in a single-plant unit which had historically 

been part of a multiplant unit. In Rinker Materials Corp., 294 NLRB 738 (1989), the Board found 

that the changes were not sufficient “to destroy the historical separation of two groups of 

employees.” See also Ready Mix USA, Inc., 340 NLRB 946 (2003), changes made by successor 

found insubstantial. 

12-227 Checkered Bargaining History 

420-1209 

Where there is a varied bargaining history, sometimes described as a “checkered bargaining 

history” (Western Electric Co., 98 NLRB 1018, 1036 (1951)), the most recent bargaining history 

normally controls. Weston Paper & Mfg. Co., 100 NLRB 276 (1951). A “checkered bargaining 

history” is one in which no fixed pattern of bargaining has been established either among all 

employees or among groupings of employees in a plant. See Western Electric Co., supra, for an 

illustration of such a bargaining history. 

12-228 Deviation From Prior Unit Determination 

420-1766 

420-9000 

Bargaining on a basis which deviates substantially from a prior unit determination is not 

controlling in a subsequent proceeding in which a redetermination of the unit is sought. Thus, for 

example, where all the parties have abandoned joint bargaining, as where a multiemployer 

association released its members and the members in turn resigned, revoked the association’s 

authority, and entered into separate agreements with the former common employee 

representatives, the former bargaining history has no controlling effect on current unit 

determination. Pennsylvania Garment Mfrs. Assn., 125 NLRB 185 (1959). 

12-229 Other Exceptions 

339-7550 

420-1227 

420-1758 

420-1787 

An employer’s dealings with a shop committee established by it, which did not conduct any 

bargaining with the employer or handle any grievance, is not regarded as evidence of a bargaining 

history. Mid-West Abrasive Co., 145 NLRB 1665 (1964). Although in the determination of the 

scope of the appropriate unit weight is given to bargaining history and to the prior agreement of 

the parties, such factors are not determinative of the status of disputed employee categories whose 

exclusion may be required because of the statute or for policy reasons. Firemen & Oilers, 145 

NLRB 1521, 1525 fn. 10 (1964). Where a multiplant bargaining history began prior to the 

expiration of a single-plant contract, and resulted in the execution of a multiplant contract found 

to be a premature extension of the single-plant contract, the bargaining history was not given 
134 APPROPRIATE UNIT: GENERAL PRINCIPLES 

controlling weight in determining the appropriate unit. Continental Can Co., 145 NLRB 1427, 

1429 (1964)). See also Firestone Synthetic Fibers Co., 171 NLRB 1121 (1968), wherein the 

employees involved were found to be accretions to an existing unit. 

12-230 Specific Unit Rules 

A number of rules have been formulated affecting a variety of unit contentions urging the 

determination of an appropriate unit on one or more of the grounds listed here. These include 

considerations such as size of unit, mode of payment, age, sex, race, union membership, territorial 

or work jurisdiction, and the desires of the employees involved. 

12-231 Size of Unit 

347-8040 

As noted above 12-100, the Board generally selects the smallest appropriate unit that includes 

the petitioned-for employees. Bartlett Collins Co., 334 NLRB 484 (2001). 

It is, however, contrary to Board policy to certify a representative for bargaining purposes in 

a unit consisting of only one employee. Roman Catholic Orphan Asylum, 229 NLRB 251 (1977); 

Sonoma-Marin Publishing Co., 172 NLRB 625 (1968); and Griffin Wheel Co., 80 NLRB 1471 

(1949); cf. discussion in Louis Rosenberg, Inc., 122 NLRB 1450, 1453 (1959); also Foreign Car 

Center, 129 NLRB 319 (1961)); and Teamsters Local 115 (Vila-Barr Co.), 157 NLRB 588 

(1966). In the latter case, the Board held that, because it is not empowered to require bargaining 

or to certify a bargaining representative in a unit comprising only one employee, it does not direct 

elections in such units either under Section 9(c) or under Section 8(b)(7)(c). Consequently, a 

union claiming recognition is disabled through no fault of its own from invoking the Board’s 

election processes for purposes of resolving the question concerning representation raised by 

picketing, and it would be inequitable and not within the congressional intent to condition the 

lawfulness of the recognitional picketing in the one-man unit on the union’s filing of a petition. 

See also Operating Engineers Local 181 (Steel Fab), 292 NLRB 354 (1989); and Laborers Local 

133 (Whitaker & Sons), 283 NLRB 918 (1987). 

It should be noted that the appropriateness of a unit is not affected by the speculative 

possibility that the employee complement may be reduced to one employee. National Licorice 

Co., 85 NLRB 140 (1949). It is the permanent size of the unit, not the number of actual 

incumbents employed at any given time that is controlling. Copier Care Plus, 324 NLRB 785 fn. 

3 (1997). 

12-232 Mode and/or Rate of Payment 

420-2903 et seq. 

The mode of payment itself is not determinative of the scope of an appropriate bargaining 

unit. Palmer Mfg. Corp., 105 NLRB 812 (1953). Nor does a distinction in the rate of pay affect 

the unit determination. Four Winds Services, 325 NLRB 632 (1998) (some paid under DavisBacon and some not), and Donald Carroll Metals, 185 NLRB 409, 410 (1970). A mere difference 

in the method of payment does not warrant exclusion from an appropriate unit. Armour & Co., 

119 NLRB 122 (1958); and Century Electric Co., 146 NLRB 232 (1964). Where a different 

method of payment arises out of historical or administrative reasons, rather than a functional 

distinction, no valid basis exists for distinguishing, for representation purposes, hourly paid 

workers from those paid by the week. Swift & Co., 101 NLRB 33 (1951). It is to the general 

interests, duties, nature of work, and working conditions of the employees that significance is 

given in the resolution of unit questions. Kansas City Power & Light Co., 75 NLRB 609 (1948). 

Mode of payment, if viable at all as a factor, is generally only one of a number of factors, all of 

which when considered together determine the unit finding. Hotel Services Group, 328 NLRB 

116 (1999); Liquid Transporters, Inc., 250 NLRB 1421, 1424 (1980); Firestone Tire Co., 156 
APPROPRIATE UNIT: GENERAL PRINCIPLES 135

NLRB 454, 456 (1966); “M” System, 115 NLRB 1316 (1956); Curcie Bros., Inc., 146 NLRB 380 

(1964); and Carter Camera Shops, 130 NLRB 276 (1961). 

12-233 Age 

420-3460 

Age is not a valid consideration for exclusion from a unit. Thus, a contention for exclusion 

from a unit on the ground that the employees were elderly was rejected. Metal Textile Corp., 88 

NLRB 1326, 1329 (1950). Similarly, social security annuitants who limit their earnings so as not 

to decrease their annuity but who otherwise share community of interests with unit employees are 

included. Holiday Inns of America, 176 NLRB 939 (1969). 

12-234 Sex 

420-3440 

In the absence of evidence of a substantial difference in skills between male and female 

employees, a petition for a unit based on sex is inappropriate. Cuneo Eastern Press, 106 NLRB 

343 (1953); and Land Title Guarantee & Trust Co., 194 NLRB 148 (1972). For related reasons, 

severance of all female employees, although they performed similar duties and had interests in 

common with the other employees, was denied. No justification for severance had been advanced, 

leaving only the differentiation in sex, and that, Board policy makes clear, is by itself no basis for 

a separate unit. Rexall Drug Co., 89 NLRB 683 (1950). Where the evidence established, and the 

parties admitted, that the sole basis for separate units and separate contracts was that one included 

all female production employees and the other included all male production employees, the Board 

directed an election in a unit of all production employees, rejecting a proposed unit based solely 

on sex. U.S. Baking Co., 165 NLRB 951 (1967). 

In the latter case, the Board admonished the parties that if the labor organization which had 

represented the separate units of male employees and female employees wins the election, and it 

should later be shown, in an appropriate proceeding, that equal representation had been denied to 

any employee in the unit, the Board would consider revoking its certification. See U.S. Baking 

Co., supra at fn. 6. See also Glass Bottle Blowers Local 106 (Owens-Illinois), 210 NLRB 943 

(1974), separate locals and units based on sex held violative of Section 8(b)(1)(A) and (2). 

12-235 Race 

420-3420 

The race of employees is not a valid determinant of the appropriateness of a unit. Norfolk 

Southern Bus Corp., 76 NLRB 488 fn. 8 (1948); and New Deal Cab Co., 159 NLRB 1838 (1966). 

See also Andrews Industries, 105 NLRB 946 (1953); Pioneer Bus Co., 140 NLRB 54 (1963); and 

Lindsay Newspapers, 192 NLRB 478 (1971). 

In New Deal, supra, the Board found that New Deal Cab Co., and Safety Cabs, Inc., 173 

NLRB 17 (1969), constituted a single employer but had engaged in a bargaining pattern 

predicated on racial factors “which cannot be accepted as appropriate.” The separation of 

bargaining units was rooted originally in representation by separate segregated locals, a situation 

fostered by the local government’s issuance of separate permits to the separate enterprises based 

essentially on lines of racial segregation. That racial pattern continued to exist as of the time of 

the Board decision. “Throughout its entire history,” said the Board, it “has refused to recognize 

race as a valid factor in determining the appropriateness of any unit for collective bargaining.” 

See, for example, American Tobacco Co., 9 NLRB 579 (1938); Union Envelope Co., 10 NLRB 

1147 (1939); Aetna Iron & Steel Co., 35 NLRB 136 (1941); U.S. Bedding Co., 52 NLRB 382 

(1943); Norfolk Southern Bus Corp., );supra; Andrews Industries, supra; and Pioneer Bus Co., 

supra. 
136 APPROPRIATE UNIT: GENERAL PRINCIPLES 

For a discussion of Board policy with respect to contention that a union should not be 

certified because it discriminates on racial grounds see Handy Andy, Inc., 228 NLRB 447 (1977), 

discussed of section 6-130. See also Memphis Furniture Mfg. Co., 259 NLRB 401 (1981). 

12-236 Union Membership 

420-7336 et seq. 

The fact that a union does not admit certain employee categories to membership is not a valid 

ground for excluding such employees from a bargaining unit. Rockwell Mfg. Co., 89 NLRB 1434, 

1436 fn. 8 (1950). Thus, the jurisdictional inability of a union to represent certain employees or 

job classifications in no way restricts the Board in the determination of the appropriate unit. Davis 

Cafeteria, 160 NLRB 1141 (1966); Associated Grocers, 142 NLRB 576 (1963); and Central 

Coat, Apron & Linen Service, 126 NLRB 958 (1960). Nor are the union’s jurisdictional 

limitations, standing alone, a proper determinant of bargaining unit. Pennsylvania Garment Mfrs. 

Assn., supra. Moreover, a jurisdictional agreement between two or more unions does not relieve 

the Board of its statutory duty to determine the appropriate bargaining unit. J. A. Jones 

Construction Co., 84 NLRB 88 (1949). This is true even where there has been a prior bargaining 

history along the lines of the jurisdictional agreement. Utility Appliance Corp., 106 NLRB 398 

(1953). 

When, however, exclusion from membership is based on invidious or discriminatory reasons, 

see Handy Andy, Inc., supra. 

12-237 Territorial Jurisdiction 

420-7342 

420-8473 

The union’s territorial jurisdiction and limitations do not generally affect the determination of 

an appropriate unit. Groendyke Transport, 171 NLRB 997, 998 (1968). See also Building

Construction Employers Assn., 147 NLRB 222 (1964); John Sundwall & Co., 149 NLRB 1022 

(1964); and Paxton Wholesale Grocery Co., 123 NLRB 316 (1959). But see Dundee’s Seafood, 

Inc., 221 NLRB 1183 (1976), in which the Board considers the union’s jurisdictional limitations 

as one factor in its unit determination. In doing so, the Board noted that its limitation was a factor 

in past bargaining. See also P. J. Dick Contracting, 290 NLRB 150 fn. 8 (1988). 

12-238 Work Jurisdiction 

420-7342 

420-8400 

560-7580-4000 

Early in its history the Board stated that its function in a representation proceeding “is to 

ascertain and certify to the parties the name of the bargaining representative, if any, that has been 

designated by the employees in the appropriate unit; it is not our function to direct, instruct, or 

limit that representative as to the manner in which it is to exercise its bargaining agency.” Wilson 

Packing & Rubber Co., 51 NLRB 910, 913 (1943). Thus, in describing a unit the Board does not 

make an award to employees in the unit found appropriate to perform exclusively all the duties 

required by their job classifications. General Aniline Corp., 89 NLRB 467 (1950). See also 

Plumbing Contractors Assn., 93 NLRB 1081, 1087 fn. 21 (1951); and Gas Service Co., 140 

NLRB 445 (1963). As the Board has explained, certifications are not granted to unions on the 

basis of specific work tasks or types of machines operated, on union jurisdictional claim but in 

terms of employee classifications performing related work functions, under a community of 

interest analysis. Ross-Meehan Foundries, 147 NLRB 207 (1964). Scrantonian Publishing Co., 

215 NLRB 296, 298 fn. 9 (1974). 
APPROPRIATE UNIT: GENERAL PRINCIPLES 137

12-239 Employees’ Desires 

420-7306 

“While the desires of employees with respect to their inclusion in a bargaining unit [are] not 

controlling, it is a factor which the Board should take into consideration in reaching its ultimate 

decision. . . . Indeed, it may be the single factor that would ‘tip the scales.’” NLRB v. Ideal 

Laundry & Dry Cleaning Co., 330 F.2d 712, 717 (10th Cir. 1964). 

While in Ideal Laundry, the Board accepted the court’s theory with respect to the employees’ 

unit desires as the law of the case, it disagreed with the court’s opinion to the extent that the court 

indicated that subjective testimony by employees as to their desires for inclusion in or exclusion 

from an appropriate unit is generally relevant in Board unit determinations. Ideal Laundry & Dry 

Cleaning Co., 152 NLRB 1130, 1131 fn. 6 (1955). See also Marriott In-Flite Services v. NLRB, 

652 F.2d 202 (1981). 

See also Extent of Organization, section 12-300, infra. 

12-300 Extent of Organization 

401-2562 

420-8400 

We mentioned at the beginning of this chapter, in referring to statutory limitations, that one of 

these is the provision in Section 9(c)(5) against making “extent of organization” a controlling 

factor in bargaining unit determination. Amplification of this provision appears to be appropriate 

at this point. Although this requirement is essentially one of statutory origin, its application is 

nonetheless couched in terms of Board policy and therefore does not seem out of place in a 

synopsis of general unit principles. 

The Board has effectuated the 9(c)(5) provision denying unit requests where the only 

apparent basis was the extent of the petitioner’s organization of the employees. However, it has 

held that extent of organization may be taken into consideration as one of the factors in unit 

determination, together with other factors, provided, of course, that it is not the governing factor. 

NLRB v. Quaker City Life Insurance Co., 319 F.2d 690 (4th Cir. 1963); Metropolitan Life 

Insurance Co. v. NLRB, 380 U.S. 438 (1965). 

In conformity with this statutory limitation, it has been held that a unit based solely or 

essentially on extent of organization is inappropriate. New England Power Co., 120 NLRB 666 

(1958); and John Sundwall & Co., supra. However, the fact that under Section 9(c)(5) the extent 

that employees have been organized may not be the controlling determinant of the 

appropriateness of a proposed bargaining unit does not, as we have said, preclude reliance on that 

factor in conjunction with other factors. Metropolitan Life Insurance Co., 156 NLRB 1408 

(1966); Central Power & Light Co., 195 NLRB 743 (1972); Mosler Safe Co., 188 NLRB 650, 

651 fn. 6 (1971); and Overnite Transportation Co., 141 NLRB 384 fn. 2 (1963). 

In Central Power & Light Co., supra at 746, which involved the public utility industry, it was 

pointed out that “Before bargaining can occur on the basis of a systemwide unit, there must be 

systemwide organization of employees”; there is nothing in the Act or in Board policy which 

requires a petitioner to seek the optimum unit; and it “need only seek to represent an appropriate 

unit of employees.” Consequently, the decision aimed at in that case comported with the statutory 

direction and did not preclude the eventual establishment of bargaining in the systemwide unit. 

Even if a petitioning union’s proposal is, in part, based on the extent of its organizational 

efforts, it does not follow that such a unit is necessarily defective or that in designating that unit 

as appropriate the Board is thereby giving any, much less controlling, weight to the union’s extent 

of organization. Dundee’s Seafood, Inc., supra; Consolidated Papers, 220 NLRB 1281 (1975); 

and Bell Industries, 139 NLRB 629, 631 fn. 7 (1962). Similarly, the fact that the petitioner’s 

motive in seeking separate units is guided by the extent to which the union had organized is 
138 APPROPRIATE UNIT: GENERAL PRINCIPLES 

immaterial so long as the Board, in its choice of appropriate unit, does not give controlling weight 

to that fact. Stern’s Paramus, 150 NLRB 799, 807 (1965). 

See earlier reference to this subject at sections 12-140 and 12-239, supra. See also section 13-

1000, infra. 

12-400 Residual Units 

420-8400 

440-1780-6000 

Groups of employees omitted from established bargaining units constitute appropriate 

“residual” units, provided they include all the unrepresented employees of the type covered by the 

petition. G.L. Milliken Plastering, 340 NLRB 1169 (2003); Carl Buddig & Co., 328 NLRB 929 

(1999); and Fleming Foods, 313 NLRB 948 (1994). See also Premier Plastering, Inc., 342 

NLRB 1072 (2004). 

For example, where a group of laboratory employees had been excluded from the production 

and maintenance unit and were therefore unrepresented, representation in a separate unit on a 

residual basis was held appropriate. S. D. Warren Co., 114 NLRB 410, 411 (1956). When, 

however, a petitioner sought a unit of employees in the employer’s shipping and warehouse 

office, and it appeared that the employer had many unrepresented clerical employees other than 

those petitioned for, the unit sought was found to be comprised of only a segment of all the 

unrepresented employees, and therefore did not meet the test of “residual unit,” and was 

inappropriate as a bargaining unit. American Radiator Corp., 114 NLRB 1151, 1154–1155 

(1956). Where, however, the union is willing to proceed to an election in a larger unit, an election 

will be directed. Carl Buddig, supra, and Folger Coffee Co., 250 NLRB 1 (1980). 

In fashioning overall or larger units, the Board is reluctant to leave a residual unit where the 

employees could be included in the larger group. Huckleberry Youth Programs, 326 NLRB 1272 

(1998) . See also United Rentals, Inc., 341 NLRB 540 fn. 11 (2004) (only unrepresented 

employees at facility included in unit despite sparse record of community of interest) and section 

19-440, infra. 

Where the record was insufficient to establish whether the requested residual unit includes all 

unrepresented employees, the Board has remanded the matter to the Regional Director. G.L. 

Milliken, supra. 

For other illustrations of groups found appropriate as “residual,” see Cities Service Oil Co., 

200 NLRB 470 (1972) (in a multiplant situation); Walter Kidde & Co., 191 NLRB 10 (1971) 

(plant clerical employees); Water Tower Inn, 139 NLRB 842, 848 (1962) (food service and 

kitchen employees); Hot Shoppes, Inc., 143 NLRB 578 (1963) (food preparation employees and 

related categories); and Rostone Corp., 196 NLRB 467 (1972) (so-called hot mold employees). 

For illustrations of groups found inappropriate for a bargaining unit on a residual basis, see 

Republican Co., 169 NLRB 1146, 1147 (1968) (part-time employees in mailing room alone); 

Budd Co., 154 NLRB 421, 428 (1965) (separate residual units of engineers and accountants 

inappropriate in view of established units of technical and office clerical employees represented 

by the petitioner); Armstrong Rubber Co., 144 NLRB 1115, 1119 fn. 11 (1963) (unit sought as 

“residual’’ did not contain all of the unrepresented employees); and Richmond Dry Goods Co., 93 

NLRB 663, 666–667 (1951) (inappropriate because the larger unit as to which it was allegedly 

“residual” was inappropriate). 

When the employer’s only employees not presently represented by a labor organization are 

those classified in the category sought by the petitioning union, the petition is treated as a request 

for a residual unit of all unrepresented employees and an election is directed in that unit. Building 

Construction Employers Assn., 147 NLRB 222 (1964); Eastern Container Corp., 275 NLRB 

1537 (1985). 
APPROPRIATE UNIT: GENERAL PRINCIPLES 139

The issue of appropriateness of a residual unit sometimes arises in a more complex context. 

For example, when, in the face of an existing multiemployer unit, separate residual units of all 

unrepresented employees of two hotels were sought, these units were found inappropriate for the 

reason that the employees sought comprised miscellaneous groupings lacking internal 

homogeneity or cohesiveness and could not alone constitute an appropriate unit. To be “residual,” 

the group must be coextensive in scope with the existing multiemployer unit, and not merely 

coextensive with the particular employer’s operations and thus only a segment of the residual 

group. Los Angeles Statler Hilton Hotel, 129 NLRB 1349 (1961). But where employees could 

have expressed their choice in a smaller clerical unit if included in a prior election (held on the 

basis of a stipulation which failed to include them), they were accorded the opportunity to vote on 

a residual basis “under the same condition afforded represented clericals.” Chrysler Corp., 173 

NLRB 1046, 1047 (1969). 

12-410 Residual Units in the Health Care Industry 

When it fashioned its rules for bargaining units in acute care hospitals, the Board specifically 

deferred resolving whether or not it would process a petition for a residual unit filed by a 

nonincumbent union in cases involving nonconforming units. See Health Care Unit Rules, 284 

NLRB 1580, 1580–1597 (1989); and Rules 103.30. Later in St. John’s Hospital, 307 NLRB 767 

(1992), the Board held that it would process a petition for an incumbent union but that the unit 

would have to include all skilled maintenance employees residual to the existing unit and that the 

employees must be added to the existing unit by means of a self-determination election. 

In St. Mary’s Duluth Clinic Health System, 332 NLRB 1419 (2000), the Board held that a 

nonincumbent union may represent a separate residual unit of employees in an acute care hospital 

that is residual to an existing nonconforming unit. In doing so, the Board overruled its pre-Rule 

decision in Levine Hospital of Hayward, 219 NLRB 327 (1975). Thereafter, in Kaiser 

Foundation Health Plan of Colorado, 333 NLRB 557 (2001), the Board applied its new St. 

Mary’s policy to a nonacute care health facility. See also section 15-170, infra. 

For a more extensive discussion of the type of elections accorded residual groups, see chapter 

21, infra. 

12-500 Accretions to Existing Units 

316-3301-5000 

347-4050-1733 

385-7533-4080 

440-6701 

In outlining general unit principles, and before turning to the broad specific areas each of 

which is treated in the separate chapters that follow, we turn our attention to “accretion.” For 

additional discussion of “accretion” see chapter 21 and section 11-220. “The Board has defined 

an accretion as ‘the addition of a relatively small group of employees to an existing unit where 

these additional employees share a community of interest with the unit employees and have no 

separate identity.’” Safety Carrier, Inc., 306 NLRB 960, 969 (1992). See also Progressive Service 

Die Co., 323 NLRB 1182 (1997). 

In Safeway Stores, 256 NLRB 918 (1981), the Board described its test as requiring that the 

group to be accreted have “little or no separate group identity” and “have an overwhelming 

community of interest with the unit.” Recently, the Fourth Circuit agreed with this rule but 

disagreed with how the Board applied it. Baltimore Sun Co. v. NLRB, 257 F.3d 419 (4th Cir. 

2001). Accord: E. I. Du Pont, Inc., 341 NLRB 607 (2004). 

Accretions to an established bargaining unit are regarded as additions to the unit and 

therefore as part of it. United Parcel Service, 325 NLRB 37 (1997). An accretion issue may arise 

in three different contexts: contract bar, a petition for certification, or a petition for unit 
140 APPROPRIATE UNIT: GENERAL PRINCIPLES 

clarification. “The Board has followed a restrictive policy in finding accretion because it 

foreclosed the employee’s basic right to select their bargaining representative.” Towne Ford 

Sales, 270 NLRB 311 (1984); and Melbet Jewelry Co., 180 NLRB 107 (1970). See also Giant 

Eagle Markets, 308 NLRB 206 (1992). Thus, the accretion doctrine is not applicable to situations 

in which the group sought to be accreted would constitute a separate appropriate bargaining unit. 

Passavant Health Center, 313 NLRB 1216 (1994), and Beverly Manor-San Francisco, 322 

NLRB 968, 972 (1997). The issue may also arise in an unfair labor practice case where the 

General Counsel alleges that an employer unlawfully added employees to a unit where there is no 

accretion and the union did not represent a majority of those added. Ryder Integrated Logistics, 

Inc., 329 NLRB 1493 (1999). 

Where employees are found to be an accretion to an existing unit, a current contract covering 

that unit bars the petition. Firestone Synthetic Fibers Co., 171 NLRB 1121 (1968); and Public 

Service Co., 190 NLRB 350 (1971). 

Employees accreted to an existing unit are not accorded a self-determination election. BorgWarner Corp., 113 NLRB 152, 154 (1955); and Goodyear Tire Co., 147 NLRB 1233 fn. 6. 

(1964). Compare Massachusetts Electric Co., 248 NLRB 155 (1980), where a self-determination 

election was directed where the meter readers could have been in either of two units. See also 

Carr-Gottstein Foods Co., 307 NLRB 1318 (1992), and Photype, Inc., 145 NLRB 1268 (1964), 

for discussion of self-determination elections. For a complete discussion of self-determination 

elections see chapter 21, infra. 

Finally, a new classification that is performing the same work the unit classification had 

historically performed is viewed as part of the unit, not as an accretion. Premcor, Inc., 333 

NLRB 1365 (2001); and Developmental Disabilities Institute, 334 NLRB 1166 (2001). 

A petition for certification of a group found to be an accretion is, of course, dismissed. 

Granite City Steel Co., 137 NLRB 209 (1962); and Radio Corp. of America, 141 NLRB 1134 

(1963). However, a petition for clarification is granted if the disputed employees are an accretion 

to the unit. Printing Industry of Seattle, 202 NLRB 558 (1973). 

Accretion issue resolution can depend on a number of factors and as in the case of most areas 

depending on a resolution of factors, it is a combination of factors rather than one single factor 

which affects the determination whether the employees in question constitute an accretion to an 

existing bargaining unit. The touchstone is community of interest. See Boeing Co., 349 NLRB 

957 (2007). For example, the production and maintenance electrical workers and steamfitters at 

employer’s newly established can manufacturing plant were held not an accretion to the 

employer’s brewery plant in view of the absence of employee interchange, separate management 

and administrative control, and differences in working conditions. Jos. Schlitz Brewing Co., 192 

NLRB 553 (1971). Similarly, shared factors such as geographic proximity, working conditions 

and wages were outweighed by other factors. E. I. Du Pont, Inc., supra. By way of contrast, 

accretion was found where the employer’s second plant provided the same service as the original 

unit; the employer was the sole owner of both companies; and the companies had interlocking 

officers and directors and similar operating functions, job classifications, and working conditions. 

Baton Rouge Water Works Co., 170 NLRB 1183 (1968). See also Earthgrains Co., 334 NLRB 

1131 (2001). 

The factors commonly used to determine whether the group of employees in question 

constitutes an accretion include the following: 

12-510 Interchange 

Absence or infrequency of interchange among the new employees and those in the existing 

unit. Dennison Mfg. Co., 296 NLRB 1034 (1989); Plumbing Distributors, 248 NLRB 413 (1980); 

Brooklyn Union Gas Co., 129 NLRB 361 (1961); and Combustion Engineering, 195 NLRB 909, 

912 (1972). 
APPROPRIATE UNIT: GENERAL PRINCIPLES 141

As pointed out by the administrative law judge in the last case, “The absence, or infrequency, 

of interchange of employees is probably the one factor most commonly relied upon by the Board 

in finding no accretion.” It has not deemed it material that interchange was feasible. Thus, in 

finding no accretion, the Board noted that, although the jobs at the two operations involved were 

virtually interchangeable, there was in fact no interchange. Essex Wire Corp., 130 NLRB 450 

(1961). See also Towne Ford Sales, 270 NLRB 311 (1984); Super Value Stores, 283 NLRB 134 

(1987); and Judge & Dolph, Ltd., 333 NLRB 175 (2001). 

12-520 Supervision and Conditions of Employment 

420-2900 

Common supervision and similar terms and conditions of employment. Western Cartridge 

Co., 134 NLRB 67 (1962); and Western Wirebound Box Co., 191 NLRB 748 (1971). 

In Western Cartridge Co., supra, the Board issued a decision in which it clarified an existing 

certification, including in the description of the appropriate unit a grouping of employees. It relied 

in part on the fact that these employees had “the same supervisors, duties, and conditions of 

employment.” Compare Town Ford Sales, supra; and Plumbing Distributors, supra. See also 

Safety Carrier, Inc., 306 NLRB 960, 969 (1992), and Judge & Dolph, Ltd., supra. 

12-530 Job Classification 

385-7533-2000 

Substantially similar job classifications. Gillette Motor Transport, 137 NLRB 471 (1962); 

and Printing Industry of Seattle, supra; Plough, Inc., 203 NLRB 818 (1973). 

In Printing Industry of Seattle, supra, a certification was clarified to include personnel as an 

accretion because of the identical work being performed by them. But where 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.” Premcor, Inc., 333 NLRB 1365 (2001). See also Developmental Disabilities Institute,

334 NLRB 1166, 1168 (2001). 

12-540 Integration of Units 

420-4600 

The physical, functional, and administrative integration of units. Granite City Steel Co., 

supra; Combustion Engineering, supra. 

“Although both groups may occasionally utilize similar work measurement techniques, this 

fact alone is insufficient to warrant the accretion of the new group to the existing unit, where, as 

here, the functions performed by the two groups are in no way integrated or related and there is 

no common supervision.” General Electric Co., 204 NLRB 576 (1973). 

The Board will find an accretion of a separate unit of employees into an existing unit where 

the reasons for the exclusion have been eliminated. U.S. West Communications, 310 NLRB 854 

(1993). 

An employer cannot have employees clarified out of a unit merely by transferring them to a 

new location, when they are doing the same work under the same supervision. Montgomery Ward 

& Co., 195 NLRB 1031 (1972). Similarly, in the case of an intracorporation reorganization, 

employees who continue to perform the same type of functions under the same supervision 

should remain in the unit. Swedish Medical Center, 325 NLRB 683 (1998); McDonnell Douglas 

Astronautics Co., 194 NLRB 689 (1972); and S. D. Warren Co., 164 NLRB 489 (1967). 

However, when a merger eliminates the “rational basis” for a separate unit, such unit will be 

found inappropriate and its members will be clarified into the larger, more comprehensive unit. 

Joseph Cory Warehouse, 184 NLRB 627 (1970). And when a change in the method of operation 

eliminates the historical justification for including certain employees in a unit, they may be 
142 APPROPRIATE UNIT: GENERAL PRINCIPLES 

clarified out of the unit. Cal-Central Press, 179 NLRB 162 (1969); and Libby, McNeill & Libby, 

159 NLRB 677, 681 (1966). 

12-550 Geographic Proximity

420-6700 

Rollins-Purle, Inc., 194 NLRB 709, 711 (1972), in which the administrative law judge quoted 

from Melbet Jewelry Co., 180 NLRB 107 (1970): “We will not . . . under the guise of accretion, 

compel a group of employees, who may constitute a separate appropriate unit, to be included in 

an overall unit without allowing those employees the opportunity of expressing their preference 

in a secret election or by some other evidence that they wish to authorize the Union to represent 

them.” Geographic remoteness was among the factors militating against an accretion finding in 

Rollins-Purle, Inc., )supra. See also Granite City Steel Co., supra. See also Super Value Stores, 

supra. In that case the Board found a 10–12-mile distance as not weighing in favor of accretion. 

See Bryant Infant Wear, 235 NLRB 1305 (1978), and Judge & Dolph, Ltd., 333 NLRB 175 

(2001) (70 miles). Compare Arizona Public Service Co., 256 NLRB 400 (1981); and White Front 

Stores, 192 NLRB 240 (1971). 

The Board does not automatically accrete employees at a new facility solely because the unit 

description covers all facilities in a geographical area. Superior Protection Inc., 341 NLRB 267 

(2004). 

12-560 Role of New Employees 

The role of the new employees in the operations of the existing unit is a factor in accretion 

analysis. Granite City Steel Co., supra. In that case, the Board commented, inter alia, on the “vital 

role in the operation” of new employees held to be an accretion. Compare Premcor, Inc., )supra; 

Developmental Disabilities Institute, )supra, section 12-530. 

12-570 Community of Interest 

401-7550 

As we have seen in other substantive areas, the element of community of interest is 

consistently a vital element in determining accretion. Boeing Co., 349 NLRB 957 (2007); and 

Dennison Mfg. Co., supra. In Firestone Synthetic Fibers Co., supra at 1123, accretion was found 

where maintenance employees, recently acquired, shared a community of interest with the 

employer’s other maintenance employees and with the production and maintenance employees 

generally. Earthgrains Co., 334 NLRB 1131 (2001). See also U.S. Steel Corp., 187 NLRB 522 

(1971); and CF&I Steel Corp., 196 NLRB 470 (1972). Compare Giant Eagle Markets, 308 

NLRB 206 (1992). 

A UC petition was dismissed where petitioner did not seek to include other employees who 

performed similar functions and had a close community of interest with the employees sought. 

Armstrong Rubber Co., 180 NLRB 410 (1970). Compare KMBZ/KMBR Radio, 290 NLRB 459 

(1988). 

12-580 Bargaining History 

420-1200 

A long history of exclusion from the unit was relied on by the Board in rejecting an accretion 

contention. Teamsters Local 89 (United Parcel Service), 346 NLRB 484 (2006). Aerojet-General 

Corp., 185 NLRB 794, 798 (1970). See also Manitowoc Shipbuilding, 191 NLRB 786 (1971), 

noting a long history of inclusion of related employees in the unit which warranted finding of 

accretion. Compare Safeway Stores, 256 NLRB 918 (1981), where jurisdictional clause in a 

contract with another union precluded accretion. In Massachusetts Electric Co. , supra, the Board 

declined to accrete transferred employees who had been separately represented by another union. 
APPROPRIATE UNIT: GENERAL PRINCIPLES 143

See also United Parcel Service, 303 NLRB 326 (1991); Staten Island University Hospital, 308 

NLRB 58 (1992); and ATS Acquisition Corp., 321 NLRB 712 (1996). 

As a general rule, the Board will not clarify a bargaining unit to interfere with or change a 

long-term collective-bargaining history. However, in Rock-Tenn Co., 274 NLRB 772 (1985), the 

Board clarified a two-plant unit into separate units in which the two plants had been sold to 

separately incorporated operating divisions of Rock-Tenn. The Board found that the sale had 

resulted in significant organizational changes which offset what community of interest had 

existed among the employees of the two plants. The Board’s Rock-Tenn decision emphasized the 

particular facts of the case finding that they constituted “compelling circumstances” for 

disregarding the two-plant bargaining history. Later, in Batesville Casket Co., 283 NLRB 795 

(1987), the Board declined to clarify an existing two-company single unit into separate units 

where the single unit had been in existence without substantial changes for many years. In 

distinguishing Rock-Tenn), the Board emphasized that the changes there which had prompted 

clarification were “recent substantial changes.” As there were not “recent substantial changes” in 

Batesville, the UC petition was dismissed. See also Ameron, Inc., 288 NLRB 747 (1988), where 

the Board clarified a single unit into two units under Rock-Tenn principles and Delta Mills, 287 

NLRB 366 (1987), where the Board in an RD proceeding rejected a contention that changed 

circumstances warranted splitting an existing unit into two units. Accord: Lennox Industries, 308 

NLRB 1237 (1992), in which the Board clarified a single unit into two units rejecting the 

employer’s request for six units. In Mayfield Holiday Inn, 335 NLRB 38 (2001), the Board 

allowed a historically single unit covering two locations to be divided into two separate units 

when the two facilities were sold to different employers. 

As a “members only” contract does not afford the kind of representation nor establish the 

type of bargaining unit which the Act contemplates, the Board will not make its procedures 

available to clarify a unit covered by an agreement which has been applied, in effect, on a 

“members only” basis. Ron Wiscombe Painting Co., 194 NLRB 907 (1972). 

In United Parcel Service, 325 NLRB 37 (1997), the Board declined to clarify a nationwide 

bargaining unit to include a group of employees in one geographic area while continuing to 

exclude employees performing similar duties in the rest of the unit. 

For an analysis of the effect of hiatus on accretion, compare F & A Food Sales, 325 NLRB 

513 (1998) (position included in unit after 3-year hiatus); with Coca-Cola Bottling Co. of 

Wisconsin, 310 NLRB 844 (1993) (no accretion due to 12-year hiatus). 

12-590 Skills and Education 

420-2963 

Despite an apparent similarity of function, employees found to be basically “computer 

programmers,” who had to meet special educational requirements, were held, for this reason 

among others, not to have accreted to the unit. Dennison Mfg. Co., supra; and Aerojet-General 

Corp., supra at 797. Accord: E. I. Du Pont, Inc., 341 NLRB 607 (2004). 

12-600 Relocations, Spinoffs, and Accretions 

530-8018-2500 

530-8090-4000 et seq. 

The Board has been confronted with the problem presented by the transfers of bargaining unit 

work members. In Coca-Cola Bottling Co. of Buffalo, 299 NLRB 989 (1990), the Board termed a 

transfer of what has been traditionally unit work to a new facility using unit members as a 

“spinoff.” In Gitano Distribution Center, 308 NLRB 1172 (1992), the Board overruled CocaCola and announced a new test for determining the bargaining obligation in such situations. 

Under this test, the Board will presume that the new operation is a separate appropriate unit. If 

this presumption is not rebutted, the Board then applies “a simple fact-based majority test’’ to 
144 APPROPRIATE UNIT: GENERAL PRINCIPLES 

determine the bargaining obligation. See also U.S. Tsubaki, Inc., 331 NLRB 327 (2000); Mercy 

Health Services North, 311 NLRB 367 (1993); and ATS Acquisition Corp., supra. The Board 

remanded Coca-Cola for further consideration in light of Gitano and later found that the 

presumption of a separate unit had been rebutted. Coca-Cola Bottling Co. of Buffalo, 325 NLRB 

312 (1998). See also Rock Bottom Stores, 312 NLRB 400 (1993), an unfair labor practice case 

involving when it is appropriate to require application of an existing contract at the new facility. 

In Armco Steel Co., 312 NLRB 257 (1993), the Board held that UC proceedings could be 

utilized to resolve the full panoply of issues presented in a Gitano analysis. Thus, the Board 

found the UC proceeding is a more expeditious method of resolving the unit scope and the 

majority status issues that are part of a Gitano consideration. 
13. MULTILOCATION EMPLOYERS 

420-4000 

420-7390 

440-3300 

737-4267-8700 

The determination of the proper scope of a bargaining unit when the employer operates more 

than one plant or establishment often presents special problems. As we have seen, Section 9(b) 

empowers the Board to decide in each case whether the unit appropriate for bargaining purposes 

shall be the employer unit, the craft unit, the plant unit, or a subdivision thereof. 

The scope of the unit sought by the petitioner is relevant but cannot be determinative of the 

unit (see sec. 13-1000, infra). So when a union seeks a presumptively appropriate unit, e.g., a 

single facility or an employerwide unit, it is the burden of the party seeking a multifacility unit to 

rebut the presumption. See, e.g., Hilander Foods, 348 NLRB 1200 (2006); and Greenhorne & 

O’Mara, Inc., 326 NLRB 514 (1998) (employerwide unit presumptively appropriate). However, 

where the union seeks a multifacility unit, the single-facility presumption is inapplicable, Capital 

Coors Co., 309 NLRB 322 (1992), citing NLRB v. Carson Cable TV, 795 F.2d 879, 886–887 (9th 

Cir. 1986). 

A number of factors bear on the unit determination in a multilocation situation; indeed, they 

bear striking resemblance to the factors discussed in the preceding chapter. Assuming the union is 

seeking a single-location unit, these include past bargaining history; the extent of interchange of 

employees; the work contacts existing among the several groups of employees; the extent of 

functional integration of operations; the differences, if any, in the products or in the skills or types 

of work required; the centralization or lack of centralization of management and supervision, 

particularly in regard to labor relations, the power to hire, discharge, or affect the terms and 

conditions of employment; and the physical and geographical location in relation to each other. 

These factors must necessarily be weighed in resolving the unit contentions of the parties. See, 

for example, Alamo Rent-A-Car, 330 NLRB 897 (2000); Novato Disposal Services, 328 NLRB 

820 (1999); and R & D Trucking, 327 NLRB 531 (1999), both finding that the single-facility 

presumption was rebutted; RB Associates, 324 NLRB 874 (1997), single-facility presumption not 

rebutted; J&L Plate, 310 NLRB 429 (1993). 

The general rule is that a single-plant unit is presumptively appropriate, unless the employees 

at the plant have been merged into a more comprehensive unit by bargaining history, or the plant 

has been so integrated with the employees in another plant as to cause their single-plant unit to 

lose its separate identity. Trane, 339 NLRB 866 (2003); Budget Rent A Car Systems, 337 NLRB 

884 (2002); Dattco, Inc., 338 NLRB 49 (2002); New Britain Transportation Co., 330 NLRB 397 

(1999); Centurion Auto Transport, 329 NLRB 34 (1999); Kendall Co., 184 NLRB 847 (1970); 

Kent Plastics Corp., 183 NLRB 612 (1970); National Cash Register Co., 166 NLRB 173 (1967); 

O’Brien Memorial, 308 NLRB 553 (1992); and Passavant Health Center, 313 NLRB 1216 

(1994) (health care institution). For a recent case in which this presumption was rebutted, see 

Dattco, supra; and Budget Rent A Car Systems, supra. See also Waste Management Northwest, 

331 NLRB 309 (2000); and Oklahoma Installation Co., 305 NLRB 812 (1991), for a discussion 

of multisite units in the construction industry. See Acme Markets, Inc., 328 NLRB 1208 (1999). 

In North Hills Office Services, 342 NLRB 437 (2004), the Board found a single-facility unit 

appropriate and distinguished Trane, supra, and Waste Management Northwest, supra. 

Even though employees may share a community of interest with others in a petitioned-for 

multifacility unit, that interest must be separate and distinct from that which they share with other 

employees at other facilities of the same employer, if the petitioned-for unit is to be appropriate. 

Laboratory Corp. of America Holdings, 341 NLRB 1079 (2004). 

145
146

An employerwide unit is also presumptively appropriate. 

In considering whether the single-facility presumption has been rebutted, the Board examines 

a number of factors including: 

(1) central control over labor relations 

(2) local autonomy 

(3) interchange of employees 

(4) similarity of skills 

(5) conditions of employment 

(6) supervision 

(7) geographic separation 

(8) plant and product integration 

(9) bargaining history 

Budget Rent A Car Systems, supra; Trane, supra; and Bashas’, Inc., 337 NLRB 710 (2002). 

For other cases dealing with these issues see Bowie Hall Trucking, 290 NLRB 41 (1988); Esco 

Corp., 298 NLRB 837 (1990); and Executive Resources Associates, 301 NLRB 400 (1991). 

In 2006, the Board decided two cases that dealt with most of these factors. In Hilander 

Foods, 348 NLRB 1200, the Board found that the employer had not rebutted the single-store 

presumption. But, in Prince Telecom, 347 NLRB 789 (2006), the Board found that the employer 

had. 

The same general rule is applicable also to retail chain store operations. At one time the 

Board’s policy generally was to determine the appropriate unit in retail chain store industry on the 

basis of being coextensive with the employer’s administrative division or the geographic area in 

question. This was changed in Sav-On Drugs, 138 NLRB 1032 (1962), which modified the 

preexisting policy to apply the rule that a proposed unit, which is confined to one of two or more 

retail establishments making up an employer’s retail chain, is either appropriate or not in the light 

“of all the circumstances in the case.” Id. at 1033. This does not make the extent of organization 

the “decisive factor,” but, as in manufacturing and any other multiplant enterprises, means that “a 

single location or a grouping other than an administrative division of geographical area may be 

appropriate.” See, e.g., Verizon Wireless, 341 NLRB 483 (2004) (unit of Bakersfield stores 

appropriate, even though distinct wide unit might also be appropriate). 

This means that the question of appropriateness of a unit is not decided “by any rigid 

yardstick” but by examining all the relevant circumstances. Frisch’s Big Boy Ill-Mar, Inc., 147 

NLRB 551, 552 (1964). By way of clarification of the rule announced in Sav-On Drugs, it was 

pointed out in Frisch’s that the rule in multiplant situations was applicable to multistore 

situations; i.e., a single-plant unit is presumptively appropriate unless it is established that the 

single plant has been effectively merged into a more comprehensive unit so as to have lost its 

individual identity. See also Walgreen Co., 198 NLRB 1138 (1972); Gray Drug Stores, 197 

NLRB 924 (1972); Haag Drug Co., 169 NLRB 877 (1968); and V.I.M. Jeans, 271 NLRB 1408 

(1984). In Great Atlantic & Pacific Tea Co., 153 NLRB 1549 (1965), applying the Sav-On Drugs

rule, a multistore unit was found solely appropriate on the basis of an established bargaining 

relationship and other factors pertinent to a unit determination. Compare Twenty-First Century 

Restaurant, 192 NLRB 881 (1971), and McDonalds, 192 NLRB 878 (1971). In Bashas’, Inc.,

supra, , the Board rejected a multistore unit petition that was based solely on the fact that all 

stores were in the same county. 

It was pointed out in Haag Drug, supra, that a group of retail outlets could also constitute an 

appropriate bargaining unit if there were a sufficient degree of geographic coherence and 

common interests of the employees in the outlets. And see NLRB v. Carson Cable TV, 795 F.2d 

879 (9th Cir. 1986), which illustrates the principle that the single-facility presumption is 

inapplicable when a union petitions for a multifacility unit. 
MULTILOCATION EMPLOYERS 147

Even if there are some factors supporting a multiplant or multistore unit, the appropriateness 

of such a unit does not establish the inappropriateness of a smaller unit. McCoy Co., 151 NLRB 

383, 384 (1965). It also follows that the appropriateness of a storewide unit does not establish a 

smaller unit as appropriate. Montgomery Ward & Co., 150 NLRB 598 (1965). Thus, although the 

optimum unit for collective bargaining may well be citywide in scope, a union is not precluded 

from seeking a smaller unit when the unit sought is in and of itself also appropriate for collective 

bargaining in light of all the circumstances. Frisch’s Big Boy Ill-Mar, Inc., supra. 

On September 28, 1995, the Board published a proposed rule on the appropriateness of 

single-location bargaining units. Specifically, the proposal stated that an unrepresented singlelocation unit shall, absent extraordinary circumstances, be found appropriate provided that there 

are 15 or more employees, that no other location is located within 1 mile, and that a supervisor is 

present at the location for a regular and substantial period. The Board later decided to withdraw 

the proposed rule. 

We now direct our specific attention to the individual factors previously cited in multiplant 

and multistore situations: 

13-100 Central Control of Labor Relations 

420-4025 

440-3300 

The fact that several plants or stores are subject to identical personnel and labor relations 

policies, which are determined at the employer’s principal office, have been cited to support 

multilocation determination. Budget Rent A Car Systems, supra; Dattco, Inc., supra Purity 

Supreme, Inc., 197 NLRB 915 (1972); Dan’s Star Market, 172 NLRB 1393 (1968); McCulloch 

Corp., 149 NLRB 1020 (1964); Mid-West Abrasive Co., 145 NLRB 1665, 1667–1668 (1964); 

and Barber-Colman Co., 130 NLRB 478, 479 (1961). Similarly, administrative integration of the 

employer’s operations under unified control and centralized control of labor relations are factors 

given significant weight in favor of a multilocation unit. Prince Telecom, supra; Novato Disposal 

Services, 328 NLRB 820 (1999); R & D Trucking,, 327 NLRB 531 (1999); Twenty-First Century 

Restaurant, 199 NLRB 881 (1971); Mary Carter Paint Co., 148 NLRB 46 (1964); and Universal 

Metal Products Corp., 128 NLRB 442 (1960). Compare Cargill, Inc., 336 NLRB 1114 (2001),

where the Board majority found “significant local autonomy over labor relations sufficient for a 

single unit.” In Twenty-First Century Restaurant, supra at 882, the Board commented: 

In our opinion it is significant that all of the franchised food outlets of the Employer conduct 

business under standardized policies and procedures subject to close centralized controls. It 

is clear that the location manager is vested only with minimal discretion with respect to 

labor relations matters and the method of operation, and the exercise of his discretion is 

carefully monitored by the field supervisor who visits each location daily and the general 

manager who also makes frequent visitations. In sum, any meaningful decision governing 

labor relations matters emanates from established corporatewide policy, as implemented by 

the general managers and field supervisors. [See also Waste Management Northwest, 331 

NLRB 309 (2000).] 

Compare Red Lobster, 300 NLRB 908 (1990). 

13-200 Local Autonomy 

420-4033 

440-3300 

Local autonomy of operations will militate toward a separate unit. Massachusetts Society for 

the Prevention of Cruelty to Children v. NLRB, 297 F.3d 41 (1st Cir. 2002); Hilander Foods, 

supra; Angelus Furniture Mfg. Co., 192 NLRB 992 (1971); Bank of America, 196 NLRB 591 
148

(1972); Parsons Investment Co., 152 NLRB 192 (1965); J. W. Mays, Inc., 147 NLRB 968 (1964); 

Thompson Ramo Wooldridge, Inc., 128 NLRB 236 (1960). and D&L Transportation, 324 NLRB 

160 (1997). In Angelus Furniture, supra, the individual store manager could he said to represent 

“the highest level of supervisory authority present in the store for a substantial majority of time.” 

See also Grand Union Co., 176 NLRB 230 (1969); Red Lobster, )supra. Compare Budget Rent A 

Car Systems, 337 NLRB 884 (2002); V.I.M. Jeans, supra; R & D Trucking, supra. 

In New Britain Transportation Co., 330 NLRB 397 (1999), the Board found that the 

existence of centralized administration and control was not inconsistent with finding sufficient 

local autonomy to warrant a single location. 

13-300 Interchange of Employees 

420-5027 et seq. 

440-3300 

Interchange among employees is a frequent consideration. Like the other factors, it is 

considered in the total context. Gray Drug Stores, supra; and Carter Camera Shops, 130 NLRB 

276, 278 (1961). Thus, for example, where, except for the rare instance of a new store opening, 

employees were not transferred from the store in question to another store, a unit confined to the 

one store was found appropriate. Massachusetts Society for the Prevention of Cruelty to Children 

v. NLRB, supra; Hilander Foods, supra; and J. W. Mays, Inc., supra at 970. See Cargill, Inc., 336 

NLRB 1114 (2001); Van Lear Equipment, Inc., 336 NLRB 1059 (2001); Bowie Hall Trucking, 

290 NLRB 41 (1988); and cf. Globe Furniture Rentals, 298 NLRB 288 (1990). See also Courier 

Dispatch Group, 311 NLRB 728 (1993). Compare Budget Rent A Car Systems, 337 NLRB 884 

(2002); and Trane, 339 NLRB 866 (2003). 

For discussion of interchange in a health care setting see O’Brien Memorial, 308 NLRB 553 

(1992). 

In J&L Plate, 310 NLRB 429 (1993), the Board found that minimal employee interchange 

and lack of meaningful contact between employees at the two facilities diminishes the 

significance of the functional integration and distance between the facilities. See also Alamo 

Rent-A-Car, 330 NLRB 897 (2000); RB Associates, supra. Compare First Security Services 

Corp., 329 NLRB 235 (1999). R & D Trucking, supra; Novato Disposal Services, 328 NLRB 820 

(1999); and Macy’s West, Inc., 327 NLRB 1222 (1999). 

In New Britain Transportation Co., 330 NLRB 397 (1999), the Board found that the singlefacility presumption was not rebutted by evidence of interchange that was presented in aggregate 

form rather than as a percentage of total employees. 

In Laboratory Corp. of America Holdings, 341 NLRB 1079 (2004), the Board found the 

multifacility unit sought was too narrow as it left out employees with whom the unit employees 

interchanged regularly. 

13-400 Similarity of Skills 

420-8417 

440-3300 

The similarity or dissimilarity of work skills has some bearing, along with the nature of any 

work performed, in deciding on whether a multiplant alone is appropriate. Thus, where similar 

classifications existed and similar work was being performed at two separately located plants, 

these, in addition to the consideration of multiplant bargaining history, weighed the balance in 

favor of finding only a two-plant unit appropriate. Cheney Bigelow Wire Works, 197 NLRB 1279 

(1972). See also Dattco, Inc., 338 NLRB 49 (2002); R & D Trucking, supra; Greenhorne & 

O’Mara,supra; and Waste Management Northwest, 331 NLRB 309 (2000). 
MULTILOCATION EMPLOYERS 149

13-500 Conditions of Employment 

420-2900 

440-3300 

Working hours, pay rates, the nature of the employer’s operations, and indeed all terms and 

conditions of employment are factors in this area of unit determination. Prince Telecom, 347 

NLRB 789 (2006). A difference in working hours in each store was one among a number of 

factors considered. V. J. Elmore 5 Stores, 99 NLRB 1505 (1951). A difference in rates of pay was 

a factor, among others, in reaching the ultimate conclusion. Miller & Miller Motor Freight Lines, 

101 NLRB 581 (1953). The fact that airport operations were “functionally distinct” from the 

employer’s other operations in the area was taken into account. The airport operations involved 

the preparation and supplying of cooked meals for various airline companies which were 

prepared, brought to thc airport, and loaded on airplanes by employees. The employer’s other 

operations were restaurants in the same general area. In this context, a unit confined to the airport 

employees was found appropriate. Hot Shoppes, Inc., 130 NLRB 138, 141 (1961). But see 

Dattco, Inc.,supra; Stormont-Vail Healthcare, Inc., 340 NLRB 1205 (2003); and Globe Furniture 

Rentals, supra, finding a multilocation unit appropriate. See also Greenhorne & O’Mara, supra; 

and Novato Disposal Services, 328 NLRB 820 (1999). 

13-600 Supervision 

440-3300 

Whether the employees at different plants or stores share common supervision is a 

consideration where more than one plant, facility, or store is involved. Thus, where a store 

supervisor and the store manager of a store had direct control over the hiring and discharging of 

employees in one store, assigned work, approved work schedules and time off, and settled 

customer complaints, a unit limited in scope to that store was an appropriate unit within Board 

policy. Purity Food Stores, 150 NLRB 1523, 1527 (1965). See also Alamo Rent-A-Car, 330 

NLRB 897 (2000); Penn Color, Inc., 249 NLRB 1117 (1980); and Renzettis Market, 238 NLRB 

174 (1978). See also First Security Services Corp., supra, and Courier Dispatch Group, supra. 

Compare Dattco, Inc., supra; Trane, supra; Novato Disposal Services, supra; and Macy’s West, 

supra. 

13-700 Geographical Separation 

420-6280 

440-3300 

Geography is frequently a matter of significance in resolving these issues. Thus, plants which 

are in close proximity to each other are distinguished from those which are separated by 

meaningful geographical distances. This was among the factors enumerated in deciding the 

appropriateness of a single-plant unit where 20 miles separated it from another plant. Although 

not a large distance, this geographical separation added to lack of substantial interchange; the 

absence of a bargaining history and the fact that no labor organization sought to represent a 

multiplant unit were held to warrant a single-plant unit. Dixie Belle Mills, 139 NLRB 629, 632 

(1962). See also Van Lear Equipment, Inc., 336 NLRB 1059 (2001). Compare Barber-Colman 

Co., supra, in which a plant 43 miles distant was included in what would otherwise have been a 

three-plant unit because of the functional integration of operations and centralized management of 

labor matters. See also Stormont-Vail Healthcare, Inc., 340 NLRB 1205 (2003); Trane, supra; 

Novato Disposal Services, supra, and Macy’s West, Inc., supra. But see Esco Corp., 298 NLRB 

837 (1990). 
150

In Capital Coors Co., 309 NLRB 322 (1992), the Board denied an employer’s request for 

review of a decision in which the Regional Director found two plants to be a single unit even 

though they were 90 miles apart. Here, the union had sought a single unit of the two plants. 

In D&L Transportation, 324 NLRB 160 (1997), the Board found a single-bus terminal unit 

appropriate where inter alia, the other terminals were between 3 and 21 miles apart. See also New 

Britain Transportation, 330 NLRB 397 (1999) (separations of 6 and 12 miles). 

13-800 Plant Integration and Product Integration 

420-2969 et seq. 

420-4600 

440-3300 

A distinction exists between plant integration and product integration. While operations may 

be integrated among several plants with respect to executive, managerial, and engineering 

activities, countervailing factors may nonetheless favor the appropriateness of a single-plant unit. 

“[P]roduct integration is becoming a less significant factor in determining an appropriate unit 

because modern manufacturing techniques combined with the increased speed and ease of 

transport make it possible for plants located in different States to have a high degree of product 

integration and still maintain a separate identity for bargaining purposes.” Black & Decker Mfg. 

Co., 147 NLRB 825, 828 (1964). In that case, the employer engaged in the manufacture of power 

tools at plants located 24 miles apart. The Board was mindful of the existence of product 

integration and that the interchange of employees between the two plants was “more than 

minimal.” However, these circumstances were counteracted by a “relatively wide geographical 

separation,” substantial autonomy reflected by the control exercised by departmental managers 

and foremen in day-to-day operations, the absence of any bargaining history, and the fact that no 

labor organization was seeking a larger unit. It should be noted parenthetically that the latter two 

factors reflect a constant refrain in unit determinations. But compare Eastman West, 273 NLRB 

610 (1984). See also Lawson Mardon U.S.A., 332 NLRB 1282 (2000). 

Although the integration of two or more plants in substantial respects may weigh heavily in 

favor of the more comprehensive unit, it is not a conclusive factor, particularly when potent 

considerations support a single-plant unit. In this connection, see also Dixie Belle Mills, supra, 

and J&L Plate, 310 NLRB 429 (1993). 

The highly integrated nature of particular industries has caused the Board to find that a 

broader unit is optional. See New England Telephone Co., 280 NLRB 162 (1986) (systemwide 

unit for each department in public utility); and Inter-Ocean Steamship Co., 107 NLRB 330 (1954) 

(fleetwide unit in the maritime industry). With respect to maritime, see also Moore-McCormack 

Lines, 139 NLRB 796 (1962), in which special circumstances supported a finding that a fleetwide 

unit was not appropriate. Accord: Keystone Shipping Co., 327 NLRB 892 (1999). For a 

discussion of functional integration in automobile rental industry, see Alamo Rent-A-Car, 330 

NLRB 897 (2000). 

See also section 15-280. 

13-900 Bargaining History 

420-1200 

440-3300 

The pattern of bargaining, as any study of bargaining unit principles will readily indicate, 

plays a significant role in all phases of unit determination, including, of course, the resolution of 

questions pertaining to single-unit or multilocation unit scope. By way of illustration, we mention 

three of the many cases involving this factor: 
MULTILOCATION EMPLOYERS 151

Where a retail chain bargained in citywide units in other cities, this fact was accorded 

considerable weight in arriving at the unit determination. Spartan Department Stores, 140 

NLRB 608, 610 (1963). 

A bargaining history on a chainwide basis militated in favor of the more comprehensive 

bargaining unit. Meijer Supermarkets, 142 NLRB 513 (1963). 

A “fairly sketchy history of bargaining in two units” was insufficient to rebut other 

evidence supporting the sole appropriateness of a three-plant unit. Coplay Cement Co., 288 

NLRB 66 (1988). 

In Massachusetts Society for the Prevention of Cruelty to Children v. NLRB, 297 F.3d 41 (1st. 

Cir. 2002), the First Circuit, while commenting that the absence of history of bargaining does not 

favor or disfavor a single-facility finding, nonetheless found that the Regional Director did not 

abuse her discretion in relying on it for a single-facility finding. 

13-1000 Extent of Organization 

420-4600 

420-6280 et seq. 

440-3300 

This area of substantive law has received the specific attention of the courts, including the 

United States Supreme Court. Generally, the courts have enforced Board orders based on findings 

in given circumstances of single-location units in multilocation enterprises, despite contentions 

that the Board acted in derogation of the ban in Section 9(c)(5) on giving controlling weight to 

extent of organization. Thus, the Fourth Circuit, in discussing this type of unit determination and 

considering the factual elements, had occasion to state: “[T]he office operates in an isolated 

manner, with little or no contact with other branch offices. . . . We cannot say that a single office 

is an arbitrary choice. . . . At most, the extent of organization was only one of the factors leading 

to the Board’s decision, not the controlling one.” NLRB v. Quaker City Life Insurance Co., 319 

F.2d 690, 693–694 (4th Cir. 1963). 

In its analysis of the facts, the Third Circuit observed that “[t]he grouping of two district 

offices was founded on cogent geographical considerations.” Metropolitan Life Insurance Co. v. 

NLRB, 328 F.2d 820 (3d Cir. 1964). 

The Sixth Circuit pointed out that “Geographical considerations were not ‘simulated grounds’ 

but the actual basis for the Board’s decision.” Metropolitan Life Insurance Co. v. NLRB, 330 F.2d 

62 (6th Cir. 1964). See also the Ninth Circuit opinion in NLRB v. Carson Cable TV, 795 F.2d 879 

(9th Cir. 1986). 

Finally, this issue reached the highest court, in Metropolitan Life Insurance Co. v. NLRB, 380 

U.S. 438 (1965), the Supreme Court reversed an unfavorable decision of the First Circuit, 327 

F.2d 906 (1964). The circumstances attending this expression by the Supreme Court were as 

follows. 

The First Circuit, disagreeing with the Board’s finding, had held, in the light of the 

unarticulated basis of decision and what appeared to it to be inconsistent determinations 

approving units requested by the union, that the only conclusion that it could reach was that the 

Board had made extent of organization the controlling factor in violation of the congressional 

mandate. The Supreme Court, declining to accept the First Circuit’s holding that the only possible 

conclusion was that the Board had acted contrary to the ban on “extent of organization” in 

Section 9(c)(5), remanded the case to the Board for the purpose of disclosing the basis of its order 

and to “give clear indications that it has exercised the discretion with which Congress has 

empowered it.” The Court added that the Board may, of course, articulate the basis of its order 

“by reference to other decisions or its general policies laid down in its rules and its annual reports, 

reflecting its ‘cumulative experience.’” 
152

Restating its policy in Metropolitan Life Insurance Co., 156 NLRB 1408, 1418 (1966), the 

Board stated: 

In making its determination the Board applied the usual tests to measure the community of 

interest of the employers involved: common working conditions a clearly defined 

geographical area sufficiently inclusive and compact to make collective bargaining in a 

single unit feasible and the absence of any substantial interchange with employees or offices 

outside the stated areas. As the units are thus appropriate under traditional criteria, the fact 

that we give effect to the Union’s request certainly does not mean that our decision is 

controlled by the extent of the Union’s organization, which would be contrary to the 

mandate of Section 9(c)(5). 

It should be pointed out that, when a union requested a single unit in which only two of the 

three divisions would be represented, the Board characterized the request as one which asked “for 

neither fish nor fowl,” and found instead a unit which would represent “some geographic or 

administrative coherence.” See discussion in State Farm Mutual Automobile Insurance Co., 158 

NLRB 925 (1966). 

For additional discussion see sections 12-140, -239, and -300. 

13-1100 Health Care 

401-7575 

470-8500 

The statutory admonition against proliferation of bargaining units in health care prompted the 

Board to apply a somewhat different standard on multilocation v. single-location unit questions. 

In Manor Healthcare Corp., 285 NLRB 224 (1987), the Board announced that it would apply the 

single-facility presumption in health care. See also Visiting Nurses Assn. of Central Illinois, 324 

NLRB 55 (1997); and Mercy Health Services North, 311 NLRB 367 (1993). That presumption 

can however, “be rebutted by a showing that the approval of a single-facility unit will threaten the 

kinds of disruptions to continuity of patient care that Congress sought to prevent when it 

expressed concern about proliferation of units in the health care industry.” Mercywood Health 

Building, 287 NLRB 1114 (1988). In that case, the Board found a single facility appropriate. 

Compare West Jersey Health System, 293 NLRB 749 (1989). Under the Board’s Rules on health 

care bargaining units, this issue is left to adjudication. 284 NLRB 1527, 1532 (1989). See also 

Massachusetts Society for the Prevention of Cruelty to Children v. NLRB, 297 F.3d 41 (1st Cir. 

2002). 

In St. Luke’s Health System, Inc., 340 NLRB 1171 (2003), a divided Board found that the 

single-facility presumption had been rebutted in a health care situation based on a review of the 

traditional factors for deciding multilocation unit issues. See also Stormont-Vail Healthcare, Inc,.

340 NLRB 1205 (2003) 

See other health care issues discussed and cross-referenced in section 15-170. 
14. MULTIEMPLOYER, SINGLE EMPLOYER, AND 

JOINT EMPLOYER UNITS 

177-1642 et seq. 

420-9000 

As we have seen, Section 9(b) of the Act confers on the Board the duty to determine in each 

instance whether “the unit appropriate for the purposes of collective bargaining shall be the 

employer unit craft unit, plant unit, or subdivision thereof.” From an early date, the Board has 

construed “employer unit” to include multiemployer units, and joint-employer units. In some 

respects the tests for determining multiemployer and joint-employer status overlap although there 

are distinctions. Generally, a multiemployer situation is said to exist when two or more employers 

band together for purposes of bargaining with the union for what would otherwise be separate 

units of the employees of each of the Employers. A “single employer” question presents different 

considerations and is posed when “two nominally-separated entities are actually part of a single 

integrated enterprise.” Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir. 1982). In 

contrast, the term “joint employer” is usually applied to a situation where two or more employers 

share labor relations control over a group of what would otherwise be one of the employer’s 

employees. This sharing is not necessarily for bargaining purposes. In fact, joint-employer issues 

arise often in unfair labor practice cases. 

This chapter deals primarily with multiemployer bargaining units. The subjects of single- and 

joint-employer relationships and applicable unit principles are covered briefly. 

14-100 Multiemployer Units 

420-9000 

440-5000 

530-8023 

The practice of multiemployer bargaining was known to Congress when it enacted the TaftHartley amendments. The construction was given formal approval by the Supreme Court in NLRB

v. Teamsters Local 449 (Buffalo Linen), 353 U.S. 87 (1957), when it stated that Congress 

“intended to leave to the Board’s specialized judgment the inevitable questions concerning 

multiemployer bargaining bound to arise in the future.’’ 

The question of the appropriateness of a bargaining unit comprising employees of more than 

one employer generally arises where employers in an industry have conducted collectivebargaining negotiations jointly as members of an association or are asserted to have delegated the 

power to bind themselves in collective bargaining to a joint agent. Consideration is given to the 

history of collective bargaining, intent of the parties, the nature and character of the joint 

bargaining, the contract executed by the parties, whether effective withdrawal from 

multiemployer bargaining had occurred, and other factors relevant to this determination. See 

Maramount Corp., 310 NLRB 508 (1993), where the long history of collective bargaining was 

balanced against the employees’ Section 7 rights as evidenced by a series of petitions for single 

units. 

Basically, in addressing itself to this standard to be applied in assessing the existence of a 

multiemployer bargaining, the Board looks for a sufficient indication from the history of the 

bargaining relationship between the employers and the union of “intent to be governed by joint 

action.” Rock Springs Retail Merchants Assn., 188 NLRB 261 (1971). 

Determinations normally are made within the framework of a unit functioning either via an 

association or under an informal understanding between otherwise unrelated employers. See 

Weyerhaeuser Co., 166 NLRB 299, 300 (1967); and Van Eerden Co., 154 NLRB 496 (1965). 

153
154 MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS

In Weyerhaeuser, the Board adverted to the fact that it had in the past found a multiemployer 

unit even though the employers had never formalized themselves into an employer association, “a 

requirement the Board has never demanded,” and added that “substance rather than legalistic 

form is all the Board has ever required in multiemployer bargaining.” Thus, the emphasis is on 

intent to be bound by joint action as evidenced by objective, as distinguished from subjective, 

facts. Compare Accetta Millwork, 274 NLRB 141 (1985), where the Board found no intent to be 

bound by group action. 

14-200 The General Rule 

420-9000 

440-1729-0133 

440-5033 

530-5700 

530-8023-9500 

The general rule is that a single-employer unit is presumptively appropriate. Thus, to 

establish a contested claim for a broader unit, a controlling history of collective bargaining on a 

multiemployer basis must be shown. Central Transport, Inc., 328 NLRB 407 (1999); Chicago 

Metropolitan Home Builders Assn., 119 NLRB 1184 (1958); Cab Operating Corp., 153 NLRB 

878, 879–880 (1965); and Bennett Stone Co., 139 NLRB 1422, 1424 (1962). See also Sands

Point Nursing Home, 319 NLRB 390 (1995), and St. Luke’s Hospital, 234 NLRB 130 (1978), 

where the Board found that the history of multiemployer bargaining governed the scope of the 

unit. 

For examples of cases in which the Board found a bargaining history on a multiemployer 

basis, see Milwaukee Meat Packers Assn., 223 NLRB 922, 924 (1976); John Corbett Press Corp., 

172 NLRB 1124 (1968); B. Brody Seating Co., 167 NLRB 830 (1967); United Metal Trades 

Assn., 172 NLRB 410 (1968); and Tom’s Monarch Laundry & Cleaning Co., 168 NLRB 217 

(1968). Compare with Santa Barbara Distributing Co., 172 NLRB 1665 (1968), in which the 

Board found a manifest failure of intention to participate in a multiemployer unit. Similarly, in 

Walt’s Broiler, 270 NLRB 556 (1984), the employers timely withdrew from multiemployer 

bargaining. The fact that they later used the same representative was not inconsistent with that 

withdrawal. 

As multiemployer bargaining is a voluntary agreement, dependent upon the real consent of 

the participants to bind themselves to each other for bargaining purposes, the “ultimate question 

. . . is the actual intent of the parties.’’ Van Eerden Co., supra. Intent to be bound by joint 

bargaining is found where employers participate in meaningful multiemployer bargaining for a 

substantial period of time and there is a uniform adoption of the agreement resulting therefrom. 

Architectural Contractors Trade Assn., 343 NLRB 259 (2004); Arbor Construction Personnel, 

Inc., 343 NLRB 259 (2004); Krist Gradis, 121 NLRB 601 (1958); and Hi-Way Billboards, 191 

NLRB 244 (1971). 

The intention of the parties to be bound in their collective bargaining by group rather than 

individual action must be unequivocal. Donaldson Traditional Interiors, 345 NLRB 1298 

(2005); Hunts Point Recycling Corp., 301 NLRB 751 (1991); Kroger Co., 148 NLRB 569 

(1964); Morgan Linen Service, 131 NLRB 420 (1961); and Artcraft Displays, 262 NLRB 1233 

(1982). “The mere adoption of an areawide contract, which includes a ‘one unit’ clause” is not 

sufficient. See Architectural Contractors, supra, and Arbor Construction, supra. 

Intent to become part of a multiemployer unit cannot be based solely on the adoption by an 

employer of a contract negotiated by a multiemployer association of which the employer was not 

a member. There must also be evidence that the employer had authorized the association to 

negotiate on its behalf. Etna Equipment & Supply Co., 236 NLRB 1578 (1978). Moveable
MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS 155

Partitions, 175 NLRB 915 (1969); and Photographers of the Motion Picture Industries, 197 

NLRB 1187 (1972). In the latter, the evidence indicated that the so-called independent employers 

did not in fact comprise a part of a single unit for bargaining. It was admitted that these 

employers had the option to negotiate separately if they so desired; they could refuse to be bound 

by any agreement negotiated by any multiemployer group simply by not signing the resulting 

contract; it was not until they received the proposed agreement and discussed it that each 

individually decided whether to become a party to the agreement; and the association had not 

been authorized to negotiate on behalf of any of these. On this evidence, they were found not to 

be part of a multiemployer unit. Compare Custom Color Contractors, 226 NLRB 851 (1976). 

Intent is inferred from the conduct of the parties, not subjectively. Thus, when employers 

have banded together informally to bargain, without expressly documenting their relationship to 

each other or to the unions, the presence of the requisite intention is inferred from the facts. In 

these cases, a steady refrain runs through Board rationales: meaningful joint bargaining, a 

substantial period of time, and adoption of uniform contracts resulting from the joint bargaining. 

American Publishing Corp., 121 NLRB 115 (1958). In the language of the Board, in Van Eerden 

Co., supra at 499: 

The ultimate question in these cases, however, is the actual intent of the parties, since 

multiemployer bargaining is a voluntary arrangement, dependent upon the real consent of 

the participants to bind themselves to each other for bargaining purposes. And where there is 

specific evidence, beyond the mere circumstances of joint negotiations and uniformity of 

contracts, indicating that the parties did not intend to accept the obligations and benefits of 

multiemployer bargaining, that evidence must be equally considered in determining the 

basic issue. 

Thus, in American Publishing Corp., supra, the presentation of a joint position in bargaining 

and the signing of the resulting contract as a single document by all participating employers was 

regarded as a manifestation of the intent to be bound. But in Texas Cartage Co., 122 NLRB 999 

(1959), mere adoption of an areawide agreement by an employer who never participated in group 

negotiations and never authorized any agent to negotiate on his behalf did not make the employer 

part of the multiemployer unit. See also Laundry Owners Assn. of Greater Cincinnati, 123 NLRB 

543 (1959), and Ruan Transport Corp., 234 NLRB 241 (1978). 

An effective bargaining history or pattern, even though based on an informal organization of 

employers, may be sufficient to establish an appropriate multiemployer unit (Detroit News, 119 

NLRB 345, 347–348 (1958)), but the fact that the union voluntarily entered into initial 

negotiations with a new employer association, with no prior bargaining history and no existing 

multiemployer unit, and continued negotiations over a period of some months without reaching 

agreement was insufficient to establish a multiemployer unit binding upon the union. Operating

Engineers Local 701 (Cascade Employer), 132 NLRB 648 (1961). 

An employer group may be found to have engaged in joint bargaining even though the 

members of that group had no formal organization and even in the absence of an advance 

agreement to be bound by the negotiations. Belleville Employing Printers, 122 NLRB 350 (1959). 

Similarly, the retention by participating employers of the right to approve or disapprove the 

agreement reached does not necessarily preclude a finding that a multiemployer unit is 

appropriate. Quality Limestone Products, 143 NLRB 589 (1963). Compare Rock Springs Retail 

Merchants Assn., supra. 

A multiemployer unit may be appropriate even though the employer has not specifically 

delegated to an employer group the authority to represent it in collective bargaining or given the 

group the power to execute final and binding agreements on its behalf. What is essential is that 

the employer member has indicated from the outset an intention to be bound in collective 

bargaining by group rather than by individual action. Kroger Co., supra. See also Bennett Stone 

Co., supra. 
156 MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS

Fluctuating membership in a multiemployer group does not necessarily render the 

multiemployer unit inappropriate. Quality Limestone Products, supra at 591. 

The fact that an employer group includes employers who are members of an existing formal 

association, as well as employers who are not, is not relevant to the determination. American

Publishing Corp., supra. Similarly, a multiemployer unit may be appropriate even though some of 

the contracts have not been signed by all members of the employer group. Kroger Co., supra. 

A finding that an effective multiemployer bargaining history exists is not precluded by the 

fact that joint negotiations are followed by the signing of individual uniform contracts, rather than 

by the execution of a single document. Krist Gradis, supra; see also Belleville Employing 

Printers, supra. It is immaterial that the members of the employer group sign a joint agreement 

separately rather than delegate authority to sign to a joint representative. American Publishing 

Corp., supra. Nor is it decisive that, in addition to the joint agreement, there are local agreements 

in strictly local matters or that each employer in the group handles his own grievances. Evans 

Pipe Co., 121 NLRB 15 (1958). 

The exercise of a mutually recognized privilege to bargain individually on limited matters is 

not necessarily inconsistent with the concept of collective bargaining in a multiemployer unit. 

Kroger Co., supra. “Multiemployer bargaining does not altogether preclude demand for 

specialized treatment of special problems; what is required, if an employer or a union is unwilling 

to be bound by a general settlement, is that the particularized demand be made early, 

unequivocally and persistently.” Genesco Inc. v. Clothing & Textile Workers, 341 F.2d 482, 489 

(2d Cir. 1966). 

Where the employer had bargained collectively with the union on a multiemployer basis for 

17 years, but, during and after the latest negotiations, had insisted that it would not agree to a 

contract which included a pension plan, such a reservation was found to be “nothing more than an 

exercise of the Employer’s privilege, acquiesced in by the Union, to insist upon limited separate 

negotiation, which privilege . . . is consistent with the concept of multiemployer bargaining.” Nor 

did the fact that in past bargaining limited individual adjustments arose from apparently dozens of 

agreements, all of which were jointly negotiated, establish a future unequivocal intent not to be 

bound by group action generally. Kroger Co., supra at 574. 

The existence of a multiemployer agreement which establishes an administrative organization 

to speak for the employers, in such matters as the management of trusts and health and welfare 

funds, should not be construed as committing an employer to a multiemployer bargaining 

relationship, absent a clear intention to be so bound. Averill Plumbing Corp., 153 NLRB 1595 

(1965). 

There is a distinction between an employer who is a member of a multiemployer bargaining 

unit and an employer who, while not a member of that unit, nonetheless agrees to sign the 

multiemployer agreement with the union. HCL, Inc., 343 NLRB 981 (2004). 

14-300 Exceptions to the General Rule 

There are exceptions to the rule that controlling weight is accorded past bargaining history in 

determining the appropriateness of multiemployer units. These are: 

14-310 Agreement of the Parties 

420-7384 

Where an employer association and a union agree to proposed multiemployer bargaining, and 

no party seeks a single-employer unit, bargaining history is not a prerequisite to a finding that a 

multiemployer unit is appropriate. Broward County Launderers Assn., 125 NLRB 256 (1960); 

and Television Film Producers, 126 NLRB 54 (1960). Compare Maramount Corp., 310 NLRB 

508 (1993), where some employers had left the unit and the union filed petitions for separate 

units. 
MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS 157

14-320 Tainted Bargaining History 

420-1758 

420-9630 

A collective-bargaining history with a labor organization which has received illegal employer 

assistance is not given any weight. Cavendish Record Mfg. Co., 124 NLRB 1161, 1169 (1959). 

14-330 Inconclusive Bargaining History 

420-1209 

420-1708 et seq. 

Where there is a dispute as to the appropriateness of a multiemployer unit, the following 

circumstances will militate against a finding that such unit is appropriate, even though there has 

been some bargaining with respect to it: The bargaining was preceded by a long history of singleemployer bargaining; it was of relatively brief duration; it did not result in a written contract of 

any substantial duration; and it was not based on a Board unit finding. Chicago Home Builders 

Assn., 119 NLRB 1184, 1186 (1958). 

14-340 Employees in Different Category 

420-1766 

420-2966 

A history of multiemployer bargaining for some employees does not preclude the 

establishment of a single unit of unrepresented employees in a different category. Macy’s San 

Francisco, 120 NLRB 69 (1958). Compare St. Luke’s Hospital, 234 NLRB 130 (1978). 

14-350 The 8(f) Relationships-Construction Industry 

In Comtel Systems Technology, 305 NLRB 287 (1991), the Board held that the merger of 9(a) 

and 8(f) bargaining units into a multiemployer unit does not convert the 8(f) relationship into a 

Section 9 relationship. 

14-360 Nonbeneficial Bargaining History 

Even a lengthy history of multiemployer bargaining may not be determinative if the Board 

concludes that the benefits and stability that have resulted from multiemployer bargaining have 

not been beneficial to the unit employees. Maramount Corp., 310 NLRB 508, 511 (1993), and 

Burns Security Services, 257 NLRB 387, 388 (1981). 

14-370 Brief Duration of Multiemployer Bargaining 

A brief history of multiemployer bargaining may be insufficient to rebut the presumption in 

favor of single employer units. West Lawrence Care Center, 305 NLRB 212, 217 (1991). See 

also section 9-560. 

14-400 Employer Withdrawal From Multiemployer Bargaining 

420-9016 

440-5033-6080 

530-5770 

In the context of multiemployer units, a subject that regularly comes up for consideration is 

the question of withdrawals from multiemployer bargaining and its impact on unit policy. 

The general rule, axiomatic by its very nature, is that employees are not included in a 

multiemployer bargaining unit if it is shown that their employer has effectively withdrawn from 

multiemployer bargaining. 
158 MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS

The “specific ground rules” governing withdrawal are set out in Retail Associates, 120 NLRB 

388, 394 (1958). The Board observed that: 

The decision to withdraw must contemplate a sincere abandonment, with relative 

permanency, of the multiemployer unit and the embracement of a different course of 

bargaining on an individual-employer basis. The element of good faith is a necessary 

requirement in any such decision to withdraw, because of the unstabilizing and disrupting 

effect on multiemployer collective bargaining which would result if such withdrawal were 

permitted to be lightly made. 

See also CTS, Inc., 340 NLRB 904 (2003). 

To implement these principles, the Board, beginning with Retail Associates, has promulgated 

criteria. These follow under several headings below. 

14-410 Adequate Timely Written Notice 

420-9016 et seq. 

530-5770 

530-8023 

Neither an employer nor a union may effectively withdraw from a duly established 

multiemployer bargaining unit except upon adequate written notice given prior to the date set by 

the contract for modification, or the agreed-upon date to begin the multiemployer negotiations. 

Retail Associates, supra at 395; Milwaukee Meat Packers Assn., 223 NLRB 922, 924 (1976). 

14-420 Intent 

420-9016 et seq. 

440-5033-6020 

530-5784 

530-8023-3700 

The withdrawal from a multiemployer unit “must be shown as manifesting an unequivocal 

and timely intention of withdrawing therefrom on a permanent basis.” B. Brody Seating Co., 167 

NLRB 830 (1967). See also Walt’s Broiler, 270 NLRB 556, 557 (1984). For an instance of union 

effective withdrawal from a multiemployer bargaining unit, see Belleville News Democrat, 185 

NLRB 1000 (1970). 

14-430 Where Actual Bargaining had Begun 

530-5770-2550 et seq. 

530-8023 

Where actual bargaining negotiations based on the existing multiemployer unit have begun, 

the Board will not permit, except on mutual consent, an abandonment of the unit upon which each 

party has committed himself to the other, absent unusual circumstances. Retail Associates, supra 

at 395; Kroger Co., supra; Sheridan Creations, Inc., 148 NLRB 1503 (1964), enfd. 357 F.2d 245 

(2d Cir. 1966); Union Fish Co., 156 NLRB 187 (1966); and Los Angeles-Yuma Freight, 172 

NLRB 328 (1968); Hi-Way Billboards, 191 NLRB 244 (1971). 

An example of “unusual circumstances” may be found in U.S. Lingerie Corp., 170 NLRB 

750 (1968). In that case, the following evidence was presented: (a) the employer withdrew from 

the association in order to relocate away from the particular area; (b) it unsuccessfully sought 

help from the union in its effort to overcome the difficult economic straits it was in; (c) its status 

was that of “debtor in possession” under the bankruptcy laws; and (d) its intention to relocate the 

plant outside the area it was in raised issues “more inherently amenable to resolution through 

collective bargaining confined to the parties immediately involved in the dispute rather than 
MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS 159

through collective bargaining on an associationwide basis.” The withdrawal in this case came at a 

time after the commencement of the latest round of bargaining. 

In Chel LaCort, 315 NLRB 1036 (1994), a Board majority rejected as an “unusual 

circumstances” exception situations where the multiemployers association fails, either 

deliberately or otherwise, to inform its employer-members of the start of negotiations. Accord: 

D. A. Nolt, Inc., 340 NLRB 1279 (2004), finding no secrecy or collusion concerning bargaining 

that was directed at respondent or employer members. Compare Plumbers Local 669 (Lexington 

Fire Protection Group), 318 NLRB 347 (1995), where a Board majority found that furnishing a 

list of employers represented by the association was adequate notice of the withdrawal of other 

employers from the association. The Chel LaCort principle was approved by the D.C. Court of 

Appeals in Resort Nursing Home v. NLRB, 389 F.3d 1262 (D.C. Cir. 2004). 

A fragmented bargaining association that undermined the integrity of the multiemployer unit 

has been found to be an unusual circumstance. Universal Enterprises, 291 NLRB 670 (1988). 

The Board has consistently rejected impasse as an “unusual circumstance” which would 

prompt withdrawal from multiemployer bargaining. Hi-Way Billboards, 206 NLRB 22 (1973); 

and Charles D. Bonnano Linen Service v. NLRB, 454 U.S. 404 (1982). See also El Cerrito Mill & 

Lumber Co., 316 NLRB 1005 (1995). 

Compare Ice Cream Council, 145 NLRB 865, 870 (1964), where the Board approved 

withdrawal where there had been a “breakdown in negotiations leading to an impasse and a 

resultant strike.” 

In Atlas Transit Mix Corp., 323 NLRB 1144 (1997), the Board rejected as unsupported, the 

contention that unusual circumstances existed because the association did not represent the 

interests of the employer. The employer relied on criminal proceedings against certain union 

officials. 

14-440 After Filing of Petition by Rival Union 

530-5770-2500 

530-8023-5000 

An attempted withdrawal from a multiemployer unit will be regarded as untimely and 

ineffective where it takes place after the filing of a petition by a rival union. “What we are doing,” 

the Board pointed out, “is fulfilling our statutory duty of determining what is an appropriate time 

for such withdrawal.” Dittler Bros., Inc., 132 NLRB 444, 446 (1961). 

In the Dittler case, the attempted withdrawal took place while the multiemployer association 

was negotiating a new multiemployer contract with the incumbent union. The Dittler rule does 

not apply where a multiemployer contract is still in effect and a substantial part of its duration 

still has to run. Ward Baking Co., 139 NLRB 1344 (1962). 

14-450 Consent of the Union 

530-5770-3733 

530-8023-7500 

Withdrawal is permitted at an otherwise inappropriate time when the action has the consent, 

express or implied, of the union. Atlas Sheet Metal Works, 148 NLRB 27 (1964). 

In the Atlas case, the union not only concluded that the employer had withdrawn from 

multiemployer bargaining, but also acquiesced in the withdrawal. Its acquiescence was reflected 

both by its consent to bargain with the employer on a single-employer basis even after the 

association and the union had reached an agreement and by conduct such as its willingness to 

bargain with other individual employers during an impasse and its failure to present the 

association contract to the employer for signature. Atlas Sheet Metal Works, supra at 29. See also 

C & M Construction Co., 147 NLRB 843 (1964). 
160 MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS

Separate negotiations while reflecting union acquiescence and “unusual circumstances” may 

nonetheless present an unfair labor practice issue if those negotiations amount to an untimely 

withdrawal from group bargaining over the objections of the group. Olympia Auto Dealers Assn., 

243 NLRB 1086 (1979). The Board will, however, permit interim agreements provided those 

agreements contemplate that the parties will execute the final agreement between the group and 

the union. Charles D. Bonnano Linen Service, 243 NLRB 1093, 1096 (1979), affd. 454 U.S. 404, 

414 (1982). 

Whether the union has acquiesced in the withdrawal is a question of fact to be determined 

from an examination of its conduct in the light of all the circumstances. As the Board stated in 

CTS, Inc., 340 NLRB 904, 907 (2003): 

Thus, a union may be found implicitly to have consented to or acquiesced in the attempted 

withdrawal, where the totality of the union’s conduct toward that employer consists of a 

course of affirmative action that is clearly antithetical to any claim that the employer has not

withdrawn from multiemployer bargaining. I. C. Refrigeration Service, 200 NLRB 687, 689 

(1972). In determining whether the union has consented or acquiesced to the employer’s 

withdrawal, a prime indicator is the union’s willingness to engage in individual bargaining 

with the employer that is seeking to abandon multiemployer bargaining. 

In Pepsi-Cola Bottling Co., 154 NLRB 490, 493 (1965), the union apparently recognized “a 

break from any possible past multiemployer association” when it met with a representative of one 

individual employer on the day following group bargaining and with another some time 

thereafter. Therefore, even if these individual employers had been members of a multiemployer 

association, the employers’ “timely requests for separate bargaining and the Union’s compliance 

with these requests clearly establish that neither operation [employer] was a member of any 

multiemployer bargaining unit at the time the present petitions were filed.” 

14-460 Appropriate Unit After Withdrawal 

440-3325 

440-5033-6080 

530-8020-6000 

In one case, the Board found that, after withdrawal, the determination of the appropriate unit 

for the withdrawn employer’s employees is made on the basis of traditional unit considerations 

and not in relation to the history of bargaining on multiemployer basis. Albertson’s Inc., 270 

NLRB 132 (1984). But this principle is applicable only when the grouping in the multiemployer 

unit would not otherwise be an appropriate multifacility unit. Arrow Uniform Rental, 300 NLRB 

246 (1990). 

In the construction industry an 8(f) relationship does not convert into a Section 9 relationship 

by virtue of merger into a matter employer unit. Accordingly, careful consideration must be 

given to the nature of the recognition in this industry. See Comtel Systems Technology, 305 

NLRB 287 (1991). 

14-500 Single Employer 

177-1642 

401-7550 

420-2900 

The term “single employer” applies to situations where apparently separate entities operate as 

an integrated enterprise in such a way that “for all purposes, there is in fact only a single 

employer.” NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d. Cir. 1982). Singleemployer issues are not limited to representation questions. They may, for example, have 

primary/secondary implications in 8(b)(4) cases. 
MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS 161

The principal factors which the Board considers in determining whether the integration is 

sufficient for single-employer status are the extent of: 

(1) Interrelation of operations 

(2) Centralized control of labor relations 

(3) Common management 

(4) Common ownership or financial control 

See Radio Union Local 1264 v. Broadcast Service, 380 U.S. 255 (1965); South Prairie 

Construction Co. v. Operating Engineers Local 627, 425 U.S. 800, 802 (1976); Mercy Hospital 

of Buffalo, 336 NLRB 1282 (2001); Grass Valley Grocery Outlet, 332 NLRB 1449 (2000); 

Mercy General Health Partners, 331 NLRB 783 (2000); Centurion Auto Transport, 329 NLRB 

394 (1999); Denart Coal Co., 315 NLRB 850 (1994); Blumenfeld Theatres Circuit, 240 NLRB 

206, 215 (1979); Hydrolines, Inc., 305 NLRB 416 (1991); and Alexander Bistrikzky, 323 NLRB 

524 (1997). 

The most critical of these factors is centralized control over labor relations. Common 

ownership, while normally necessary, is not determinative in a single-employer status in the 

absence of such a centralized policy. AG Communication Systems Corp., 350 NLRB 168 (2007); 

Grass Valley Grocery Outlet, supra; Mercy General Health Partners, supra; Western Union 

Corp., 224 NLRB 274, 276 (1976); and Alabama Metal Products, 280 NLRB 1090, 1095 (1986). 

Compare Dow Chemical Co., 326 NLRB 288 (1998), rejecting single-employer status based on 

common ownership alone. 

However, in Bolivar-Tees, Inc., 349 NLRB 720 (2007), the Board found single-employer 

status for four commonly-owned corporations—two American and two Mexican—

notwithstanding the absence of evidence of centralized contral of labor relations. Noting that it 

usually “accords centralized control of labor relations substantial importance in the singleemployer analysis,” the Board found it “inappropriate” to do so in this case. 

For other cases presenting single-employer issues, see Soule Glass & Glazing Co., 246 

NLRB 792 (1980), enfd. 652 F.2d 1055 (1st. Cir. 1981); and George V. Hamilton, Inc., 289 

NLRB 1335 (1988). See also RBE Electronics of S.D., 320 NLRB 80 (1995); and Francis 

Building Corp., 327 NLRB 485 (1998). 

A determination of single-employer status does not determine the appropriate bargaining unit. 

Thus, a single-employer analysis focuses on ownership, structure, and employer integrated 

control of separate corporations. Consideration of the scope of the unit examines employee 

community of interest. Peter Kiewit Sons’ Co., 231 NLRB 76 (1977); and Edenwal Construction 

Co., 294 NLRB 297 (1989). See also Lawson Mardon U.S.A., 332 NLRB 1282 (2000) (Board 

applies traditional presumption involving separate locations even in single-employer cases). 

14-600 Joint Employer 

177-1650 

420-7330 

530-4825-5000 

The distinction between single and joint employer is often blurred. In an excellent opinion, 

the Third Circuit described the distinction between these two concepts. NLRB v. Browning-Ferris 

Industries, supra at 1122. Thus, the court stated: 

In contrast, the “joint employer” concept does not depend upon the existence of a single 

integrated enterprise and therefore the above-mentioned four factor standard is inapposite. 

Rather, a finding that companies are “joint employers” assumes in the first instance that 

companies are “what they appear to be”—independent legal entities that have merely 

“historically chosen to handle jointly . . . important aspects of their employer-employee 

relationship.’’ Checker Cab Co. v. NLRB, 367 F.2d 692, 698 (6th Cir. 1966). 
162 MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS

The existence of a joint-employer relationship is essentially a factual issue that depends on 

the control that one employer exercises over the labor relations of another employer. M. B. 

Sturgis, Inc., 331 NLRB 1298 (2000); M. K. Parker Transport, 332 NLRB 547 (2000); Boire v. 

Greyhound Corp., 376 U.S. 473 (1964); Frostco Super Save Stores, 138 NLRB 125 (1962); 

Laerco Transportation & Warehouse, 269 NLRB 324 (1984); TLI, Inc., 271 NLRB 798 (1984); 

O’Sullivan, Muckle, Kron Mortuary, 246 NLRB 164 (1980); and Lee Hospital, 300 NLRB 947 

(1990). Rawson Contractors, 302 NLRB 782 (1991). See also G. Wes Ltd. Co., 309 NLRB 225 

(1992); Capitol EMI Music, 311 NLRB 997 (1993); Flatbush Manor Care Center, 313 NLRB 

591 (1993); Brookdale Hospital Medical Center, 313 NLRB 592 (1993); and Executive Cleaning 

Services, 315 NLRB 227 (1994). 

In AM Property Holding Corp., 350 NLRB No. 80 (2007), the Board found no jointemployer relationship. The case is interesting because while agreeing with the decision, one 

Member criticized the test for joint employer and suggested that more emphasis be given to the 

provision of capital made by one corporation to another rather than the extent of supervisory 

control of one over the other. 

As noted earlier, joint-employer issues are usually presented in unfair labor practice cases. 

Where they do arise in a representation matter, i.e., who is the employer of the bargaining unit 

employees, the Board previously held that there must be a showing of employer consent, implied 

or actual, to the inclusion of employees other than its own in the unit. See Lee Hospital, supra, 

and Greenhoot, Inc., 205 NLRB 250 (1973); Compare Quantum Resources Corp., 305 NLRB 

759 (1991), in which the Board found joint employers in a representation case without a 

discussion of consent and Alexander Bistrikzky, supra, where the Board found the Lee/Greenhoot 

consent requirement inapposite because all the employees in the petitioned-for unit are employed 

by a single employer. 

In M. B. Sturgis, Inc., supra, the Board overruled Lee Hospital and clarified its Greenhoot 

holding. Specifically, the Board held that joint-employer consent is not required for a unit 

combining solely employed user employees and jointly employed user/supplier employees. In 

Oakwood Care Center, 343 NLRB 659 (2004), the Board overruled Sturgis finding that such 

units are multiemployer units and require consent of the employer involved. 

There is a series of cases decided under M. B. Sturgis, Inc., supra, whose viability will have to 

be decided by the Board in future decisions. See Holiday Inn City, 332 NLRB 1246 (2000); 

Professional Facilities Management, 332 NLRB 345 (2000); and Engineered Storage, 334 NLRB 

1063 (2001).

In Airborne Express, 338 NLRB 597 (2002), a Board majority rejected the suggestion of the 

dissenting Member when she advocated that the Board revisit its joint-employer test because 

“business trends driven by accelerating competition . . . may no longer fit economic realities.” 

14-700 Alter Ego 

Alter ego is primarily an unfair labor practice concept that applies to situations in which the 

Board finds that what purports to be two separate employers are in fact and law one employer and 

that the employer is not honoring its bargaining obligation. Two enterprises will be found to be 

alter egos where they “have substantially identical management, business purpose, operation, 

equipment, customers and supervision as well as ownership.” Denzel S. Alkire, 259 NLRB 1323, 

1324 (1982); and Advance Electric, 268 NLRB 1001, 1002 (1984). As the Board noted in each of 

these cases, it is also relevant to consider whether the alleged alter ego was created for the 

purpose of evading bargaining responsibilities. See also Crawford Door Sales Co., 226 NLRB 

1144 (1976). Fallon-Williams, Inc., 336 NLRB 602 (2001) (motive relevant but not required for 

finding of alter ego); APF Carting, Inc., 336 NLRB 73 (2001); Dupont Dow Elastomers LLC, 

332 NLRB 1071 (2001); and NYP Acquisition Corp., 332 NLRB 1041 (2001). The Board will 

also consider alter ego allegations in representation proceedings. Elec-Comm, Inc., 298 NLRB 

705 (1990). Accord: All County Electric Co., 332 NLRB 863 (2000) (also noting that 10(b) 
MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS 163

statute of limitations is not applicable to representation cases). Note also that the Board divided 

on the issue of whether alter ego can appropriately be decided in an “R” case. 

In D & B Contracting Co., 305 NLRB 765 (1991), the Board declined to apply an alter ego 

bargaining order to a unit that had been the subject of a Board election. Noting that the 

“employees freely decided in a fair election that they did not want to be represented by the 

Union,” the Board concluded that it would give “controlling weight to their rejection of 

representation” and dismissed the unfair labor practice complaint. 

In one interesting case, the Board, as a consequence of court action, withdrew an earlier 

comment in Gartner-Harf Co., 308 NLRB 531 (1992), that alter ego is a subset of single 

employer. In doing so, the Board noted that the two concepts are related, but separate. Johnstown

Corp., 322 NLRB 818 (1997). 

In 2007, the Board decided two cases in which it rejected an alter ego contention because of 

the absence of common ownership. In Summit Express, Inc., 350 NLRB No. 51 (2007), there was 

no common ownership although one Member found evidence of substantial control. In the 

second case, US Reinforcing, Inc., 350 NLRB No. 41 (2007), the Board rejected a contention that 

the two corporations satisfied the common ownership test because of a close familial relationship. 

The Board majority accepted the general rule that close familial relationship where the owner 

exercises control over the alter ego business can amount to common ownership, but refused to 

find alter ego in this case notwithstanding that the owners cohabited and were a “committed 

couple.” 

 
164 MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER UNITS
15. SPECIFIC UNITS AND INDUSTRIES 

Treatment on a complete industry-by-industry or specific type-of-unit basis would necessarily 

enlarge this volume beyond manageable proportions. Moreover, the major principles and relevant 

factors under more general headings do tend, for the most part, to govern unit determinations in 

any event, regardless of the particular industry affected. We shall therefore use a selective basis, 

making certain, however, to include for consideration units which had been affected by policy 

changes or have been the subject of more-than-casual litigation, those which have constituted 

problem areas, and, of course, units in industries which in recent years have become the subject 

of Board jurisdiction. For convenience, we have arranged the units and industries in alphabetical 

order. 

15-100 Architectural Employees 

440-1760-4340 

177-9300 

The Board has found appropriate units of professional architectural employees. Wurster, 

Bernardi & Emmons, Inc., 192 NLRB 1049 (1971); Skidmore, Owings & Merrill, 192 NLRB 920 

(1971); Hertzka & Knowles, 192 NLRB 923 (1971); Fisher-Friedman Associates, 192 NLRB 925 

(1971); and Frederick Confer & Associates, 193 NLRB 910 (1971). 

In Wurster, supra, virtually all the employees were graduates of recognized architectural 

schools, although some had not yet become “licensed” architects. Both classes of employees were 

found to be professionals within the meaning of the Act. Included in the unit was a graduate 

interior designer, also found to be a professional. The architectural employees were divided into 

two main groups, associates and nonassociates, the main distinction being that the associates 

receive higher pay, are on an annual salary as opposed to an hourly wage, share in a special fund 

set aside from the profits, and attend quarterly meetings with the firm’s principals. However, as 

the nonassociates generally perform similar functions and share identical fringe benefits, creating 

a sufficient community of interest, they were included in the same unit. A job inspector and a 

modelmaker were excluded as nonprofessionals. 

In Skidmore, supra, employees in an “interior design and graphics department” were excluded 

from the unit of architectural employees because they were not engaged in work which qualified 

them as professional employees within the statutory definition. 

See the other cases cited above for peripheral issues. 

15-120 Banking 

440-1720 

440-3375 

In determining the scope of a unit in the banking industry, the Board follows the singlelocation unit presumption. Thus, absent compelling evidence otherwise, a unit of branch bank 

employees is appropriate. Wyandotte Savings Bank, 245 NLRB 943 (1979); Hawaii National 

Bank, 212 NLRB 576 (1974); Bank of America, 196 NLRB 591 (1972); Banco Credito y Ahorro 

Ponceno, 160 NLRB 1504 (1966); Central Valley National Bank, 154 NLRB 995 (1965); and 

Banco Credito y Ahorro Ponceno v. NLRB, 390 F.2d 110 (1st Cir. 1968). But see Wayne Oakland 

Bank v. NLRB, 462 F.2d 666 (6th Cir. 1972). 

Where, however, the evidence indicates significant employee interchange between branches, 

a unit encompassing several offices in a metropolitan area may also be appropriate. Banco 

Credito y Ahorro Ponceno, supra. 

A branch unit will ordinarily be a “wall to wall” unit particularly if a proposed exclusion would 

leave that group the only unrepresented employees. Wyandotte Savings Bank, supra at 945. For an 

165
166 SPECIFIC UNITS AND INDUSTRIES 

example of inclusion of various classifications in a branch unit, see Banco Credito y Ahorro 

Ponceno, )supra at 1513–1514. 

15-130 Construction Industry 

440-1760-9167 et seq. 

440-5033 

590-7500 

Prior to 1951, although the Board had asserted jurisdiction over the building and construction 

industry in both unfair labor practice and representation cases, at least since the enactment of the 

Taft-Hartley Act, the representation cases involved either multicraft units of construction 

employees on large projects of substantial duration or shop employees. 

In Plumbing Contractors Assn., 93 NLRB 1081 (1951), for the first time, the Board was 

confronted with the question of whether it should direct an election in a proposed single-craft unit 

of employees in actual construction operations. It was recognized in that case that the 

construction industry involved a series of successive operations by each craft in a specified order, 

but the Board nonetheless found that the degree of integration in the industry was not comparable, 

for example, to assembly line operations, and, in light of the history of separate representation of 

the employees involved in that case (a unit of plumbers, plumbers’ apprentices, and gasfitters), 

found the separate craft grouping to be an appropriate unit. The Board also found that 

employment in the unit had been sufficiently stable to permit the election to be held. 

In John Deklewa & Sons, 282 NLRB 1375 (1987), the Board set down new policies with 

respect to the application of Section 8(f) of the Act. Although it is an unfair labor practice case, 

Deklewa does provide guidance on certain representation case matters. Deklewa involved an 

employer who withdrew from a multiemployer 8(f) bargaining relationship. The Board noted that 

in such cases, notwithstanding the history of 8(f) bargaining on a broader basis, “single employer 

units will normally be appropriate.” Deklewa, supra at 1385. Nothing in Deklewa would, 

however, preclude a finding of a multiemployer unit where the parties agree or where there is a 

history of bargaining on that basis under Section 9 of the Act. The history of collective 

bargaining under 8(f) agreements is relevant, but not conclusive, to a unit determination under 

Section 9. Turner Industries Group, LLC, 349 NLRB 428 (2007), and Barron Heating & Air 

Conditioning, Inc., 343 NLRB 450 (2004). 

In circumstances where the expired 8(f) agreement covered only one employer, the unit will 

normally be that covered by the expired contract. But, see Dezcon, Inc., 295 NLRB 109 (1989), in 

which the Board found the history of bargaining as well as the trend toward project-by-project 

agreements insufficient to overcome employee community of interest in making the unit 

determination. In Wilson & Dean Construction Co., 295 NLRB 484 (1989), the Board used the 

Daniel Construction Co. formula (133 NLRB 264 (1961)) to determine eligibility to vote. In 

doing so, it rejected the employer’s contention that it did not intend to use the hiring hall under 

the expired agreement as a source of employees. Thus, eligibility and unit scope were in that case 

governed by the coverage of the expired agreement. See also P. J. Dick Contracting, 290 NLRB 

150 (1988), in which the Board found the bargaining history under the expired 8(f) agreement to 

be determinative in view of “the limited evidence presented.” Note, however, that in this case, the 

parties did stipulate to common conditions of employment and centralized labor relations among 

multicounty worksites. Compare Longcrier Co., 277 NLRB 570 (1985), cited in Dezcon, supra at 

fn. 12, in which the evidence supported separate project units. 

As to geographic scope of unit in construction cases, the proper unit description is one 

without geographic limitation where the employer uses a core group of employees at its various 

jobsites regardless of location. Premier Plastering, Inc., 342 NLRB 1072 (2004). Compare 

Oklahoma Installation Co., 305 NLRB 812 (1991), where the Board found a multisite unit 

appropriate. In doing so, it reaffirmed the use of traditional community-of-interest standards for 
SPECIFIC UNITS AND INDUSTRIES 167

deciding single versus multisite unit issues. The Board, in Oklahoma, also rejected a contention 

that the unit should include work in a county in which the employer had never conducted 

business. 

The Board has found appropriate separate units of plumbers and gasfitters, pipefitters, and 

drain layers (Denver & Contractors Assn., 99 NLRB 251 (1951)); plumbers, steamfitters, 

pipefitters, refrigeration men, and their apprentices (Automatic Heating Co., 100 NLRB 571 

(1951)); plumbers and pipefitters (Air Conditioning Contractors, 110 NLRB 261 (1955)); riggers 

(Michigan Cartagemen’s Assn., 117 NLRB 1778 (1957)); lathers (Employing Plasterers Assn.,

118 NLRB 17 (1957)); plumbers and pipefitters (Daniel Construction Co., supra); truckdrivers 

(Graver Construction Co., 118 NLRB 1050 (1957)); laborers (R. B. Butler, Inc., 160 NLRB 1595 

(1966)); and carpenters (Dezcon, Inc., )supra). 

The laborers involved in Butler performed a type of work different from that of the other 

employees and had traditionally been represented by the petitioner or other locals of the 

petitioner’s international in the same type of unit. They therefore constituted “a readily 

identifiable and homogeneous group with a community of interests separate and apart from the 

other employees.” The fact that employees may perform duties not strictly within their 

classification does not render the unit inappropriate when these duties are secondary in nature. 

Dick Kelchner Excavating Co., 236 NLRB 1414 (1978). See also Burns & Roe Services Corp., 

313 NLRB 1307 (1994). 

In Del-Mont Construction Co., 150 NLRB 85 (1965), relied on by the Board in Butler, the 

holding, in effect, was that an appropriate unit in the construction industry did not have to be 

either a craft or departmental unit so long as the requested employees were a readily identifiable 

and distinct group with common interests distinguishable from those of other employees. See also 

S. J. Graves & Sons Co., 267 NLRB 175 (1983); and Brown & Root, Inc., 258 NLRB 1002 

(1981). But in Brown & Root Braun, 310 NLRB 632 (1993), the Board denied review of a 

Regional Director’s determination that an ironworkers and helpers’ unit was neither a craft unit 

nor a departmental unit. 

The Board also stated in Butler, supra at 1599, that “in the construction industry, collective 

bargaining for groups of employees identified by function . . . has proven successful and has 

become an established accommodation to the needs of the industry and of the employees so 

engaged.” For this reason, in Hydro Constructors, 168 NLRB 105 (1968), the Board concluded 

that a unit of laborers alone was appropriate, rather than a unit of laborers combined with dump 

truckdrivers. The laborers were engaged, a substantial majority of their time, in laborers’ duties 

(while the drivers were not), they were traditionally represented in this type of laborers’ unit, and 

a pay differential existed between the laborers and the other employees. Thus, while two or more 

groups may each be separately appropriate, they cannot be arbitrarily grouped to the exclusion of 

others. S. J. Graves & Sons Co., supra. Similarly, an overall unit may be the only appropriate unit 

where there is no basis for separate grouping A. C. Pavement Striping Co., 296 NLRB 206 

(1989). 

In New Enterprise Stone Co., 172 NLRB 2157 (1968), a unit of heavy equipment operators, 

together with the mechanics and oilers who maintain and service their equipment, was found 

appropriate as a distinct functional grouping of construction employees with a community of 

interest separate and apart from other employees. 

In Del-Mont Construction Co., supra, a separate unit consisting of operators of power-driven 

equipment, including crane, backhoe, shovel, bulldozer, compressor and pump operators, and 

mechanics, was found appropriate. In that case, another separate unit of laborers and truckdrivers 

was found appropriate. It should be noted that, unlike the situation in Hydro, supra, the laborers 

and drivers had related interests. 

In Johnson Controls, Inc., 322 NLRB 669 (1996), the Board found a unit of fitters, system 

representatives, and service specialists appropriate. The employer sold, installed, and services 

building environmental control systems and fire and security systems. 
168 SPECIFIC UNITS AND INDUSTRIES 

For a discussion of other construction industry issues, see sections 5-210, 9-211and -1000, 

and 10-600 and -700. 

15-140 Drivers 

15-141 The Koester Rule 

440-1760-6200 

Prior to 1961, Board policy was to require the inclusion of drivers or driver-salesmen in 

production and maintenance units unless the parties agreed to exclude them or another labor 

organization sought to represent them (see, for example, Cooperative Milk Producers Assn., 127 

NLRB 785 (1960)). 

But in Plaza Provision Co., 134 NLRB 910 (1962), a case involving driver-salesmen, the 

Board reconsidered the then existing policy, and in early 1962, in E. H. Koester Bakery Co., 136 

NLRB 1006 (1962), which involved truckdrivers as well as driver-salesmen, it followed through 

with a full explication of the treatment it believed warranted for unit determinations involving 

drivers. 

The Board recognized that the complexity of modern industry generally precludes the 

application of fixed rules for the unit placement of truckdrivers, that case experience 

demonstrates wide variation in employment conditions with respect to local and over-the-road 

drivers, between the various industries, and from plant to plant in a given industry. For these 

reasons, substantial weight is accorded to an established course of dealings as well as to the 

agreement of the parties. But when the parties disagree, and there is no bargaining history, and no 

union is seeking to represent them separately, the pertinent facts must be considered “to 

determine wherein the predominant interests of truckdrivers are vested.” 

A reexamination of the policy convinced the Board that the automatic rule amounted to a 

refusal to consider on its merits an issue, the resolution of which the parties have been unable to 

reach on the basis of their collective experience. The Board stated (136 NLRB at 1011): 

We have therefore decided to abandon the blanket policy of including truckdrivers in more 

comprehensive units and to return to the approach of predicating their unit placement in each 

case upon a determination of their community of interest. 

From then on, unit determinations were to depend on the following factors: 

(a) Whether the truckdrivers and the plant employees have related or diverse duties, the 

mode of compensation, hours, supervision, and other conditions of employment; and 

(b) Whether they are engaged in the same or related production processes or operations, or 

spend a substantial portion of their time in such production or adjunct activities. 

If the interests shared with other employees are sufficient to warrant their inclusion, the 

truckdrivers are included in the more comprehensive unit. On the other hand, if truckdrivers are 

shown to have substantially separate interests from those of the other employees, they may be 

excluded upon request of the petitioning union. Compare Calco Plating, 242 NLRB 1364 (1979), 

and Chin Industries, 232 NLRB 176 (1977). See also Overnite Transportation Co., 331 NLRB 

662 (2000), where the Board reversed a finding that a petitioned-for unit of dockworkers should 

include truckdrivers. Instead the Board found the unit should include all unskilled workers at the 

terminal.

In Marks Oxygen Co., 147 NLRB 228 (1964), the Board further clarified the Koester policy 

by announcing that it would continue to utilize relevant criteria in addition to job content in 

evaluating community of interest. It made it clear that, in Koester, it reversed the policy of 

requiring the inclusion of truckdrivers where there was disagreement, but that it did not reverse 

basic policies such as (a) a plantwide unit is presumptively appropriate; (b) a petitioner’s desires 

as to the unit is always a relevant consideration; and (c) it is not essential that a unit be the most 

appropriate unit. Accord: NLRB v. Southern Metal Services, 606 F.2d 512 (5th Cir. 1979). See 
SPECIFIC UNITS AND INDUSTRIES 169

also Overnite Transportation Co., 325 NLRB 612 (1998), rejecting the argument that 

consideration of petitioner’s desires there violated the prohibition on making the extent of 

organization determinative. It is important to note here that more than one truckdriver unit may be 

appropriate and the union can seek an election in any appropriate unit. Publix Super Markets, 

Inc., 343 NLRB 1023 (2004). 

In Mc-Mor-Han Trucking Co., 166 NLRB 700 (1967), the facts did not reveal such a 

community of interest between the drivers and mechanics as would render a proposed driver unit 

inappropriate. This holding was distinguished from that of Marks Oxygen, )supra, in which the 

issue was not whether a separate unit of drivers was inappropriate, as in Mc-Mor-Han, but rather 

whether a requested unit combining drivers with production and maintenance drivers was 

appropriate. Thus, as we have seen, the Board, in Marks Oxygen, found the more comprehensive 

unit appropriate, but specifically reaffirmed certain basic policies which were left undisturbed by 

the Koester decision. See also Airco, Inc., 273 NLRB 348 (1984). 

In Tallahassee Coca-Cola Bottling Co., 168 NLRB 1037 (1968), a unit of production and 

maintenance employees, which included driver-salesmen, was found appropriate. In the 

subsequent unfair labor practice proceeding, it was contended that the unit finding was erroneous 

and enforcement was resisted on that ground. The Fifth Circuit remanded the case to the Board, 

particularly as to its reliance on Marks Oxygen, supra, in relation to the Koester criteria. In its 

supplemental decision the Board expanded its rationale and adhered to its original decision. 

Ultimately, the court granted enforcement (NLRB v. Tallahassee Coca-Cola Bottling Co., 409 

F.2d 201 (5th Cir. 1969)), concluding that the Board had adequately explained its rationale for 

this unit determination. 

Truckdrivers were found so functionally integrated with plant employees as to preclude 

separate representation where (a) the drivers spent a substantial amount of time performing the 

same function as other employees at the terminals, some of whom performed driving duties; (b) 

the drivers had the same supervision, pay scale, and benefits as other employees; and (c) the 

drivers’ conditions of employment were substantially the same as that of the others. Standard Oil 

Co., 147 NLRB 1226 (1964). See also Philco Corp., 146 NLRB 867 (1964); Donald Carroll 

Metals, 185 NLRB 409 (1970); Trans-American Video, 198 NLRB 1247 (1972); Levitz Furniture 

Co., 192 NLRB 61 (1971); and Calco Plating, supra. 

In General Electric Co., 148 NLRB 811 (1964), employees, described as “motor 

messengers,” drove vehicles in order to distribute mail but, apart from this function, exercised 

clerical functions similar to those of office clerical employees, shared the same wage basis and 

hours, and many had the same supervision and progression pattern. Of 21 such employees, only 5 

spent the majority of their time in driving. The other 16 spent about 40 percent of their time 

driving and about 60 percent in clerical work not involving mail handling. In these circumstances, 

the driving functions of some were not considered such as to set apart the whole requested unit of 

motor messengers, mail handlers, and addressograph operators from other office clerical 

employees in the manner, for example, “that truckdrivers may be considered to have interests 

distinct from production and maintenance employees.” See also National Broadcasting Co., 231 

NLRB 942 (1977). 

In Container Research Corp., 188 NLRB 586 (1971), two over-the-road drivers were 

excluded from a plantwide unit, although sought by the petitioning union. Thereafter, in Fayette 

Mfg. Co., 193 NLRB 312 (1971), the Board overruled Container Research Corp. to the extent 

that decision was inconsistent with Fayette and in contravention of Marks Oxygen, discussed 

above. 

Summing up the flexibility which exists in this policy area, the Board in Lonergan Corp., 194 

NLRB 742, 743 (1972), a case in which it found appropriate a unit excluding truckdrivers, cited 

NLRB v. Tallahassee Coca-Cola Bottling Co., supra, 409 F.2d 201, and stated: 
170 SPECIFIC UNITS AND INDUSTRIES 

The above facts present an overall picture which is similar to many cases involving the 

inclusion-exclusion problem with respect to truckdrivers, i.e., these truckdrivers have what 

amounts to a dual community of interest with some factors supporting their exclusion from 

an overall production and maintenance unit and some factors supporting their inclusion in 

the broader unit. As the Board has frequently noted, in such a situation and where no other 

labor organization is seeking a unit larger or smaller than the unit requested by the 

Petitioner, the sole issue to be determined is whether or not the unit requested by the 

Petitioner is an appropriate unit. Accordingly, while we agree that certain factors may 

support the Regional Director’s conclusion that a unit including the truckdrivers is an 

appropriate unit, in our view the unit requested by the Petitioner which would exclude the 

truckdrivers is an appropriate unit and it is therefore irrelevant that a larger unit might also 

be appropriate. 

Similarly, the Board concluded that a unit of drivers was an appropriate one and rejected the 

finding of the Regional Director that the unit should include mechanics. Overnite Transportation 

Co., 322 NLRB 347 (1996). The Board denied a motion for reconsideration of this decision in 

Overnite Transportation Co., 322 NLRB 723 (1996), and then expanded its discussion of these 

unit decisions in Overnite Transportation Co., 325 NLRB 612 (1998), and Novato Disposal 

Services, 330 NLRB 632 (2000). See also Home Depot USA, 331 NLRB 1289 (2000) (drivers 

share interest with others but have sufficient distinct interests to warrant separate unit). 

15-142 Scope of Driver Units 

440-1760-6200 

440-3300 

Single-terminal units are presumptively appropriate. Groendyke Transport, 171 NLRB 997 

(1968); Alterman Transport Lines, 178 NLRB 122 (1969); and Wayland Distributing Co., 204 

NLRB 459 (1973). 

In Alterman, the employer’s terminals in Miami, Tampa, and Orlando were separated by as 

much as several hundred miles; despite much centralization, a sufficient degree of autonomy had 

been vested in the managers of the individual terminals, and there was no history of collective 

bargaining at any of the terminals involved. In Wayland, there was little temporary interchange of 

drivers, very few transfers, no prior bargaining history, and no labor organization sought to 

represent the drivers on any basis. In these circumstances, rejecting an employer contention that 

the only appropriate unit would be a unit of all unrepresented drivers and shop employees 

wherever located, the Board found a unit appropriate of drivers “based in either Mobile, 

Alabama, or Pensacola, Florida.” See also Bowie Hall Trucking, 290 NLRB 41 (1988); and 

Carter Hawley Hale Stores, 273 NLRB 621 (1984); but compare Dayton Transport Corp., 270 

NLRB 1114 (1984). 

On the other hand, in Tryon Trucking, 192 NLRB 764 (1971), in which the petitioner had 

requested a drivers’ unit employed at all of the employer’s terminals in four States, the Board 

held that, while a single-terminal unit might be appropriate, the requested employerwide unit was 

also appropriate in view of common skills, integration of operations of all the terminals, and “the 

common unity of interests of all the drivers in employment by the same company.” 

As the general principles applicable to multilocation unit issues are equally germane in any 

consideration of issues arising in the transportation industry, see chapter, ante, on Multilocation 

Units. 

15-143 Local Drivers and Over-the-Road Drivers 

440-1760-6200 

Local drivers and over-the-road drivers constitute separate appropriate units where it is 

shown that they are clearly defined homogeneous and functionally distinct groups with separate 
SPECIFIC UNITS AND INDUSTRIES 171

interests which can effectively be represented separately for bargaining purposes. Georgia 

Highway Express, 150 NLRB 1649, 1651 (1965); Alterman Transport Lines, supra. See also 

Jocie Motor Lines, 112 NLRB 1201, 1204 (1955); and Gluck Bros., 119 NLRB 1848 (1958). 

Compare Carpenter Trucking, 266 NLRB 907 (1983). 

15-144 Severance of Drivers 

440-8325-7562 

Drivers, under appropriate circumstances, are accorded the right of self-determination, 

notwithstanding a bargaining history on a broader basis, where it is found that they constitute a 

homogeneous, functionally distinct group entitled to severance. See Kalamazoo Paper Box Corp., 

136 NLRB 134, 137–139 (1962), in which the Board held that severance would depend on a 

consideration of all relevant community-of-interest factors. See also Wright City Display Mfg. 

Co., 183 NLRB 881 (1970); and Downingtown Paper Co., 192 NLRB 310 (1971). In 

Downingtown, severance was granted to over-the-road truckdrivers on the basis of constituting a 

homogeneous, functionally distinct group. The Board noted that the drivers spent most of their 

working time away from the plant, did no plantwork, did not load or unload their trucks at the 

plant, and did not interchange with other drivers or production and maintenance employees. 

Moreover, their basis for compensation differed from the others, they were not permitted 

overtime work, and they did not work in other departments or for supervisors other than those in 

their department. 

As is generally true of severance policy when the Board’s requirements are not met, the 

request for a self-determination election is denied. Hearst Corp., 200 NLRB 475 (1973); A. O. 

Smith Corp., 195 NLRB 955 (1972) (reliance for dismissal was placed on the facts that the 

drivers spent a substantial amount of their time performing in-plant work and shared the same 

immediate supervisor); Western Pennsylvania Carriers Assn., 187 NLRB 371 (1971) (the 

requested employees in 42 petitions did not constitute “a functionally distinct department or 

departments for which a tradition of separate representation exists”); Consolidated Packaging 

Corp., 178 NLRB 564 (1969); Rockingham Poultry Cooperative, 174 NLRB 1278 (1969) (overthe-road drivers denied severance on the grounds, among others, of overall unit bargaining 

history and performance in substantial respects of duties similar to other drivers not sought by the 

petitioner and similar working conditions, fringe benefits, and supervision as other employees); 

and Fernandes Super Markets, 171 NLRB 419, 420 (1968) (whatever separate community of 

interests the employees in question may have had was “submerged into the broader community of 

interest which they share with other employees by reason of several years uninterrupted 

association in the existing overall unit and their participation in the representation of that unit for 

purposes of collective bargaining”). See also Memphis Furniture Mfg. Co., 259 NLRB 401 

(1981). 

For a discussion of severance in its broader context involving crafts and departmental units, 

see chapter on Craft and Traditional Departmental Units, infra. 

15-145 Driver-Salespersons 

440-1760-6200 

440-1760-7200 

Employees who drive trucks or automobiles and distribute products of their employer from 

their vehicles have varying duties, depending on the employer’s sales and distribution policies 

and practices. Where employees engaged in selling their employer’s products drive vehicles and 

deliver the products “as an incident” of their sales activity, they are regarded as essentially 

salespersons with “interests more closely applied to salesmen in general than to truckdrivers or to 

production and maintenance employees or warehouse employees.” Plaza Provision Co., 134 

NLRB 910 (1962). Thus, route salesmen were excluded from a driver’s unit, being differentiated 
172 SPECIFIC UNITS AND INDUSTRIES 

from employees with little or no function in making or promoting sales of the employer’s 

products. 

Driver- salespersons are excluded from a unit of plant employees where (a) they deal directly 

with customers whom they must satisfy in order to retain their patronage; (b) their value to the 

employer is therefore based on qualities not required of plant employees; and (c) their interests 

and working conditions are substantially different from the plant employees. Gunzenhauser 

Bakery, 137 NLRB 1613 (1962). Compare Wilson Wholesale Meat Co., 209 NLRB 222 (1974). 

See also Southern Bakeries Co., 139 NLRB 62 (1962) (driver- salespersons excluded from a 

unit of transport drivers); E. Anthony & Sons, 147 NLRB 204 (1964) (separate units of “district 

managers” who promoted sales and serviced subscriptions; and truckdrivers who were principally 

delivery men, the distinction between delivery men and those who drive vehicles only as an 

incident to their sales activity thus being preserved); Kold Kist, Inc., 149 NLRB 1449 (1964) 

(“demonstrators” working primarily at off-plant locations and under separate supervision 

regarded as performing functions relating to sales rather than production of products, and 

therefore excluded from a unit of production and maintenance employees and truckdrivers); 

Walker-Roemer Dairies, 196 NLRB 20 (1972) (wholesale route salespersons combined with 

retail route salespersons in a single unit, despite certain distinct interests, because of “strong 

interests they share” in common; tank truckdrivers and van drivers excluded from the unit); and 

Dr. Pepper Bottling Co., 228 NLRB 1119 (1977). 

15-146 Health Care Institution Drivers 

470-1795 

470-8300 

Drivers are not one of the units found appropriate in the health care rules. See section 15-170, 

Health Care Institutions, infra, and Health Care Rulemaking, as reported at 284 NLRB 1516. 

While it can be expected that they will be included in the “Other Non-Professionals Unit,” 284 

NLRB 1516, 1565, it may be that they share sufficient community of interest to warrant inclusion 

in another unit. See Michael Reese Hospital, 242 NLRB 322 (1979), and North Medical Center, 

224 NLRB 218, 220 (1976), decided prior to the health care unit rules. In Duke University, 306 

NLRB 555 (1992), decided after the rules, the Board decided that busdrivers were not health care 

employees, even though they spent over half their time servicing the employer’s medical center. 

15-150 Funeral Homes 

440-1720-3300 

440-1760-9900 

An overall unit of funeral home employees would, like any other overall unit, be 

presumptively appropriate. Riverside Chapels, 226 NLRB 2 (1976). In considering petitions for 

units of less than all employees, the Board has found that those employees whose duties relate to 

embalming and other direct funeral services show a sufficient community of interest to warrant a 

separate appropriate unit. NLRB v. H. M. Patterson, Inc., 636 F.2d 1014 (5th Cir. 1981). Compare 

Oritz Funeral Home Corp., 250 NLRB 730 (1981), in which clerical employees were included in 

a unit of employees performing funeral services because the nature of their work was closely 

related to and included funeral service responsibilities. 

15-160 Gaming Units 

Units of gaming casino employees have been found appropriate prior to 1965 when 

jurisdiction over this type of enterprise was exercised on the basis of being part of a hotel 

operation (see, for example, Hotel La Concha, 144 NLRB 754 (1963)), and thereafter directly, 

regardless of hotel affillatlon (El Dorado Club, 151 NLRB 579 (1965)). 
SPECIFIC UNITS AND INDUSTRIES 173

In Crystal Bay Club, 169 NLRB 838 (1968), the Board was faced with the question whether 

the interests of casino employees are so different from those of culinary and bar, office, and 

maintenance employees as to require their exclusion from an overall unit where there has been no 

stipulation to exclude them. It held that a unit consisting of all employees was appropriate 

because of the fact that the same union was seeking to represent all, the lack of any substantial 

bargaining history, and “particularly the closeness of all the departments which function for the 

most part to support the casino operations.” Compare Holiday Hotel, 134 NLRB 113 (1962), in 

which casino employees were found to have interests sufficiently different from those of other 

hotel employees to justify honoring the parties’ stipulation to exclude them. See also North Shore 

Club, 169 NLRB 854 (1968). 

Although in one case slot machine mechanics were found skilled craftspersons, therefore 

constituting an appropriate unit, excluding all other employees (Freemont Hotel, 168 NLRB 115 

(1968)), they were not found to be craftspersons in other cases (Hotel Tropicana, 176 NLRB 375 

(1969); Nevada Club, 178 NLRB 81 (1969); and Aladdin Hotel, 179 NLRB 362 (1969)). Thus, it 

was pointed out in Aladdin, for example, that the facts in Freemont were distinguishable, as in the 

latter the mechanics were the only unrepresented group in the casino, there was a formal 

apprentice program for them, they did not interchange with other employees, and they were the 

only employees who worked on the machines. See also Bally’s Park Place, 255 NLRB 63 (1981), 

in which a slot department composed of mechanics and attendants was found appropriate. 

Slot mechanics are included in the gaming unit rather than with the maintenance department 

employees where it appears that their contacts are basically with other gaming unit employees 

and casino patrons; some of their duties are the same as those assigned to the employees in the 

gaming unit; their work is related solely to the casino operations; and, unlike the maintenance 

employees, they are not concerned to any degree with other maintenance or repair functions 

incidental to the employer’s operations. Club Cal-Neva, 194 NLRB 797 (1972); and Harold’s 

Club, 194 NLRB 13 (1972). 

Separate units of change personnel and booth cashiers were rejected as comprising neither a 

separate homogeneous group of employees with special skills, nor a functionally distinct 

department. Horseshoe Hotel, 172 NLRB 1703 (1968). However, self-determination elections 

were granted to voting groups of casino cashiers to determine whether they desired to be added to 

an existing croupiers’ unit represented by the petitioner. El San Juan Hotel, 179 NLRB 516 

(1969); and El Conquistador Hotel, 186 NLRB 123 (1970). 

In Bally’s Park Place, 259 NLRB 829 (1982), the Board rejected a petition seeking separate 

or combined units of hard (coins) and soft (currency) employees. The employer there contended 

that only an accounting department unit was appropriate. The Board dismissed the petition 

without commenting on the appropriateness of the employer’s proposed unit. 

Separate units limited to all gaming employees and all maintenance employees, respectively, 

are appropriate. Silver Spur Casino, 192 NLRB 1124 (1971); cf. Harrah’s Club, 187 NLRB 810 

(1971); and El Dorado Club, supra. 

In Florida Casino Cruises, 322 NLRB 857 (1997), the Board affirmed a finding that a unit of 

the ship’s personnel was appropriate on a casino cruise ship. The employer had sought a “wall to 

wall” unit including the gaming and food personnel. 

15-170 Health Care Institutions 

470-0000 

15-171 Acute Care Hospitals 

On April 21, 1989, the Board set out the appropriate units for acute care hospitals in a 

rulemaking proceeding, reported at 284 NLRB 1515, et seq. The Rule (Sec. 103.30) provides that 
174 SPECIFIC UNITS AND INDUSTRIES 

except in extraordinary circumstances, the following units and only these units are appropriate in 

an acute hospital. 

1. All registered nurses. 

2. All physicians. 

3 All professionals except for registered nurses and physicians. 

4. All technical employees. 

5. All skilled maintenance employees. 

6. All business office clerical employees. 

7. All guards. 

8. All other nonprofessional employees. 

The Rule provides that a petitioning union can request a consolidation of two or more of the 

above units and, absent a statutory restriction, e.g., guards and nonguards in the same unit, such a 

combined unit may be found appropriate. Characterizing the issue as novel, the Board approved a 

decision by a Regional Director ordering a self-determination election for nurses. The choice was 

between separate representation, inclusion in a unit of all professionals and, then, inclusion with 

nonprofessionals. Dominican Santa Cruz Hospital, 307 NLRB 506 (1992). 

For a discussion of residual units under the Rule, see section 12-400, supra. 

The Board’s Rule provides one example of an extraordinary circumstance, a unit of five or 

fewer employees. The fact that such a unit would be an extraordinary circumstance means that the 

Board will consider alternative unit contentions by the parties. It does not mean that the Board’s 

ultimate unit determination will necessarily be at variance with the units found appropriate in the 

Rule. 

In St. Margaret Memorial Hospital, 303 NLRB 923 (1991), the Board reaffirmed the position 

stated in the Rule that a party urging “extraordinary circumstances” bears a “heavy burden.” 

Compare Child’s Hospital, 307 NLRB 90 (1992), where the Board found extraordinary 

circumstances where there was a physical joinder of a nursing home and a hospital. 

The Rule also excepts from its coverage “existing nonconforming units.” See Crittenton 

Hospital, 328 NLRB 879 (1999), for a discussion of the meaning of this exception. In Pathology 

Institute, 320 NLRB 1050 (1996), the Board found a nonconforming unit and evaluated it, not 

under the Rule, but under “traditional representation principles.” 

In Rhode Island Hospital, 313 NLRB 343 (1993), the Board rejected a contention that the 

research areas of a hospital are not part of an acute care hospital for purposes of application of the 

Rule. 

15-172 Other Hospitals 

177-9700 

470-0100 

The Board did not include psychiatric and rehabilitation hospitals in the Rule. Thus, 

determination as to appropriate units in these health care institutions is left to adjudication on a 

case-by-case basis. The Board’s Rule for acute care hospitals is based on “a reasonable, finite 

number of congenial groups displaying both a community of interests within themselves and a 

disparity of interests from other groups,” and it may be that this will be the test for unit 

determinations in other health care cases. In Mount Airy Psychiatric Center, 253 NLRB 1003 

(1981), the Board did reach a different unit determination in a psychiatric hospital than it would 

have in an acute care facility. 

For a discussion of units in psychiatric hospitals, see the discussion below of Park Manor 

Care Center, 305 NLRB 872 (1991), and related cases. See also the Board’s denial of review in 
SPECIFIC UNITS AND INDUSTRIES 175

Holliswood Hospital, 312 NLRB 1185 (1993), in which review of a finding of an RN unit in a 

psychiatric hospital was denied. 

In Virtua Health, Inc., 344 NLRB 604 (2005), the Board found that a unit of the employer’s 

paramedics was too limited and that the paramedics should be included in a technical unit. The 

employer was a health care institution and the employer contended that it was an acute care 

facility and thus, within the Board’s Health Care Unit Rules. The Board found it unnecessary to 

decide coverage under the Rule because even under the broader standard of Park Manor, supra, 

the community-of-interest test, a paramedic unit was not appropriate. 

15-173 Nursing Homes 

Nursing homes were initially considered in the rulemaking proceeding. The units suggested 

in the initial proposal were (1) all professionals, (2) all technicals, (3) all service, maintenance 

and clericals, and (4) all guards. After consideration of the comments and evidence received, the 

Board excluded these institutions from the health care rule and the determination of appropriate 

units in nursing homes is left to a case-by-case approach. 284 NLRB 1567, 1568. 

The Board’s experience in nursing home units predates the 1974 health care amendments and 

by 1970 the distinction between proprietary and nonproprietary nursing homes was eliminated. 

Drexel Home, 182 NLRB 1045 (1970). 

In Park Manor Care Center, supra, the Board announced that henceforth it would apply a 

community-of-interest test in nursing homes together with “background information gathered 

during rulemaking and prior precedent.” The Board reaffirmed its decision to decide nursing 

home units by adjudication with the “hope that . . . certain recurring factual patterns will emerge 

and illustrate which units are typically appropriate.” For an example of this policy see Hebrew 

Home & Hospital, 311 NLRB 1400 (1993), affirming on review the decision of the Acting 

Regional Director approving a separate skilled maintenance unit at a nursing home. 

The Board has also applied Park Manor to psychiatric hospitals. McLean Hospital Corp., 309 

NLRB 564 fn. 1 (1992); Brattleboro Retreat, 310 NLRB 615 (1993); and McLean Hospital 

Corp., 311 NLRB 1100 (1993), where the Board denied request for review of finding that RN 

unit was appropriate. In Charter Hospital of Orlando South, 313 NLRB 951 (1994), the Board 

affirmed an RD finding of a professional (RNs) and nonprofessional units at a psychiatric 

hospital. But in Stormont-Vail Healthcare, Inc., 340 NLRB 1205 (2003), the Board noted that 

psychiatric nurses are not automatically excluded from an RN unit in an acute care hospital. 

Applying traditional community of interest standards, the Board included psychiatric RN nurses 

at outlying facilities in a unit comprised of RNs and other psychiatric RNs at the central facility. 

In Lifeline Mobile Medics, 308 NLRB 1068 (1992), the community-of-interest standard was 

applied to an ambulance service, and in Upstate Home for Children, 309 NLRB 986 (1992), it 

was applied in a residential home for retarded children and a medical equipment and clinical 

services facility. CGE Caresystems, Inc., 328 NLRB 748 (1999). 

15-174 Application of the Health Care Rule 

Shortly after the Supreme Court affirmed the Rule, the General Counsel issued two 

memoranda—General Counsel’s Exhibit 91-3 gave the Regions procedural guidance on the 

procedures to be followed under the Rule and General Counsel’s Exhibit 91-4 summarized case 

law on health care unit placement. Reproduction of these memoranda would unduly burden this 

book. Copies may be obtained from the Board’s Division of Information. 

In Kaiser Foundation Hospitals, 312 NLRB 933 (1993), the Board addressed the application 

of Rule to preexisting nonconforming units. In Kaiser the petitioner sought to sever skilled 

maintenance employees from a nonprofessional unit. The Board held that the Rule only applies 

to “new units of previously unrepresented employees which would be an addition to the existing 

units at a facility.” Accordingly, the Board would not apply the Rule to a severance but instead 
176 SPECIFIC UNITS AND INDUSTRIES 

analyzed the petition under traditional Mallinckrodt principles (Mallinckrodt Chemical Works, 

162 NLRB 387 (1967); see sec. 16-100 et seq.). 

15-175 Registered Nurse Units 

As noted earlier, the Board’s Rule finds that units of registered nurses are appropriate. Issues 

of unit placement are determined on a case-by-case basis. Licensing is an important factor in 

determining whether a particular employee or group should be included in a RN unit. As the 

Board indicated: 

Although the Board has not included all RNs in a hospital RN unit regardless of function, 

the Board generally has included in RN units those classifications which perform 

utilization/review of discharge planning work where an employer requires or effectively 

requires RN licensing for the job. Salem Hospital, 333 NLRB 560 (2001). 

In South Hills Health System Agency, 330 NLRB 653 (2000), the Board denied a request for 

review of a Regional Director’s decision finding a unit of RNs appropriate in a nonacute health 

care facility. 

See section 15-173, for discussion of unit placement of psychiatric RNs in acute care 

hospitals. 

15-176 Other Health Care Issues

For discussions of other health care issues, see sections 1-315 (Jurisdiction), 12-400 

(Residual Units), 13-1100 (Health Care), 15-146 (Health Care Institution Drivers), 16-300 

(Skilled Maintenance-Health Care), 17-512 (Health Care Supervisory Issues), 19-460 (Business 

Office Clerical-Health Care), and 19-510 (Technical Employees-Health Care). 

In Rhode Island Hospital, 313 NLRB 343 (1993), the Board decided a series of unit 

placement issues in health care. Specifically, the case involved business office clericals, 

technicals, skilled maintenance, and students (nursing, radiology, and pharmacy). The case also 

involved eligibility issues relating to employees who are involved in research that is funded by 

sources outside the hospital. 

15-180 Hotels and Motels 

The Board first asserted jurisdiction over enterprises in the hotel and motel industry in 1959 

(Floridan Hotel of Tampa, 124 NLRB 261 (1959)), and a year later formulated a general rule of 

unit determination in this industry to the effect that all operating personnel have such a high 

degree of functional integration and mutuality of interests that they should be grouped together 

for purposes of collective bargaining (Arlington Hotel Co., 126 NLRB 400 (1960)). 

Several years later, this rule was relaxed to some extent in situations in which a well-defined 

area practice of bargaining for less than a hotelwide unit was shown to exist. See, for example, 

Water Tower Inn, 139 NLRB 842 (1962); and Mariemont Inn, 145 NLRB 79 (1964). A motel 

unit was approved that excluded office clerical employees, even though there was no bargaining 

history in the particular unit selected (LaRonde Bar & Restaurant, 145 NLRB 270 (1963)). See 

also Columbus Plaza Hotel, 148 NLRB 1053 (1964). 

Ultimately, in 1966, the rule established in Arlington was considered by the Board and 

overruled because of its rigidity. While Arlington took a valid principle, i.e., if functions and 

mutual interests are highly integrated an overall unit alone is appropriate, and fashioned from it 

an inflexible rule to be applied to all hotels and motels, Board experience had indicated that the 

operations of every hotel or motel were not so highly integrated nor all employees so similar as to 

negate the existence of a separate community of interest among smaller groupings. In these 

circumstances, the Board decided that it would thereafter “consider each case on the facts 

peculiar to it in order to decide wherein lies the true community of interest among particular 

employees” of a hotel or motel. Holiday Inn Restaurant, 160 NLRB 927 (1966). 
SPECIFIC UNITS AND INDUSTRIES 177

Thus, the rule now is that the general criteria used for determining units in other industries, 

after weighing all the factors present in each case, are also applicable to the hotel and motel 

industry. These factors include distinctions in the skills and functions of particular employee 

groupings, their separate supervision, the employer’s organizational structure, and differences in 

wages and hours. See Omni International Hotel, 283 NLRB 475 (1987). 

Notwithstanding the former broad rule in Arlington, recognition had impliedly been given by 

the Board even in that decision to the difference which exists between clerical employees and 

manual operating personnel. This had been indicated also in other cases. See, for example, Water

Tower Inn, supra; Mariemont Inn, supra; LaRonde Bar & Restaurant, supra; Columbus Plaza 

Hotel, supra. 

Accordingly, while this decisional approach to hotel unit questions does not abrogate the 

Board’s policy of treating clerical employees as “operating personnel,” it nevertheless relegates 

that generic classification to the status of just one factor among many others, which the Board 

considers in making hotel unit findings. In short, generic classification in a hotel may not be the 

controlling factor any more than it would be controlling in the determination of an industrial unit. 

Regency Hyatt House, 171 NLRB 1347 (1968). 

For other examples of the current case-by-case approach see Westin Hotel, 277 NLRB 1506 

(1986), in which the Board rejected a separate maintenance unit because of the absence of unique 

skills and of separate supervision; Hotel Services Group, 328 NLRB 116 (1999), finding a unit of 

licensed massage therapists inappropriate; Stanford Park Hotel, 287 NLRB 1291 (1988), holding 

appropriate a separate unit of housekeeping and maintenance employees; Omni International 

Hotel, )supra, and Hilton Hotel, 287 NLRB 359 (1987), finding a unit of engineering employees 

appropriate; and Dinah’s Hotel & Apartments, 295 NLRB 1100 (1989), finding a unit of front 

desk employees appropriate. But see Ramada Beverly Hills, 278 NLRB 691 (1986), finding only 

an overall unit appropriate in view of the extent of the integration of the operation; and Atlanta 

Hilton & Towers, 273 NLRB 87 (1984). 

15-190 Insurance Industry 

Although at one time only a statewide or companywide unit of insurance employees was 

found appropriate, the normal unit principles applied in other industries are now used in 

determining bargaining units in the insurance industry. This question came to a head in 1965 

when it reached the United States Supreme Court in Metropolitan Life Insurance Co. v. NLRB, 

380 U.S. 438 (1965) (see discussion ante on Multilocation Units). Following a remand from that 

Court, the Board delineated its policy pertaining to unit determination in the insurance industry in 

Metropolitan Life Insurance Co., 156 NLRB 1408 (1966). 

In general, a single district office is the basic appropriate unit for insurance agents. 

Metropolitan Life Insurance Co., supra at 1418; Western & Southern Life Insurance Co., 163 

NLRB 138 (1967), enfd. 391 F.2d 119 (3d Cir. 1968). See also Allstate Insurance Co., 191 

NLRB 339 (1971), finding a districtwide unit requested by the petitioner to be appropriate. 

Noting that not all companies have precisely the same administrative structure or office 

nomenclature, the Board stated that the basic appropriate unit for insurance claims’ 

representatives or adjusters was “the smallest component of the Employer’s business structure 

which may be said to be relatively autonomous in its operation” and thus comparable to the 

district office involved in the Supreme Court Metropolitan decision. State Farm Mutual 

Automobile Insurance Co., 158 NLRB 925, 929 (1966). See also American Automobile Assn., 

172 NLRB 1276 (1968). 

Illustrative of the application of these principles, a unit of insurance adjusters limited to a 

single branch office was found appropriate. Fireman’s Fund Insurance Co., 173 NLRB 982 

(1969). Describing its approach as predicated on the presumption of the basic appropriateness of 

the single branch office, and finding that this presumption in the facts before it had not been 

overcome, the Board compared this with unit questions arising in the retail industry and pointed 
178 SPECIFIC UNITS AND INDUSTRIES 

out that this presumption may be rebutted where it is shown that day-to-day interests shared by 

employees at a particular location have become merged with those of employees at other 

locations. 

In setting out the principles governing its unit determinations in the insurance industry, the 

Board noted in Metropolitan, supra, that the fact that individual district offices qualified as 

separate appropriate bargaining units did not necessarily mean that a combination of such district 

offices into a broader more inclusive unit was to be ruled out. Accordingly, where a reasonable 

degree of geographic coherence existed among several locations within a proposed unit, a 

multilocation unit was found appropriate. Allstate Insurance Co., 171 NLRB 142 (1968); State 

Farm Mutual Automobile Insurance Co., supra. Compare American Automobile Assn., 242 

NLRB 722 (1979). 

On composition of insurance industry units, the Board has held that underwriters, engineers, 

and adjusters generally perform duties of a technical, specialized nature, in which they are called 

upon to exercise considerable independent judgment. Although physically located near clericals, 

their work requires a higher level of responsibility. They therefore have interests sufficiently 

different to warrant exclusion from an overall-type unit. Reliance Insurance Cos., 173 NLRB 985 

(1969). See also Fireman’s Fund Insurance Co., supra; North Carolina Life Insurance Co., 109 

NLRB 625 (1954); cf. Farmers Insurance Group, 164 NLRB 233 (1967). See also Empire 

Insurance Co., 195 NLRB 284 (1972), in which an all-employee unit, including clerical 

employees, was found to be appropriate. 

15-200 Law Firms 

440-1720-3300 

440-1760-4300 

440-1760-9940 

Since the Board’s decision to extend jurisdiction over law firms in 1977 (Foley, Hoag & 

Eliot, 229 NLRB 456 (1977)), the majority of reported cases have centered on organizing efforts 

in legal services corporations. In Wayne County Legal Services, 229 NLRB 1023 (1977), the 

Board decided to treat legal services corporations like law firms for jurisdictional purposes. The 

unit issues presented by these cases have involved the placement of paralegals, law school 

graduates not yet admitted to the bar and supervisory issues. 

Clearly, a unit of all professionals, i.e., attorneys, is appropriate. Similarly, a unit of all 

employees, professional and nonprofessional, may be appropriate provided that the professional 

employees agree after a separate vote to be included in the overall unit. Neighborhood Legal 

Services, 236 NLRB 1269 (1978). 

Employees who are law school graduates but not as yet admitted to the bar have been held to 

be professional employees. Wayne County Legal Services, supra. Law students on the other hand 

have been found not to be professionals and would be included in a clerical employee unit if they 

share a sufficient community of interest with the clericals. Cf. Legal Services for the Elderly 

Poor, 236 NLRB 485 fn. 15 (1978). Generally, paralegals do not have the full range of 

responsibility and education to qualify for inclusion in the professional unit. Neighborhood Legal 

Services, supra. Whether or not they are included in a clerical unit depends on their community of 

interest with those employees. In both Twentieth Century Fox Film Corp., 234 NLRB 172 (1978), 

and Stroock, Stroock & Lavan, 253 NLRB 447 (1981), the Board found insufficient community 

to warrant inclusion. 

The Board has rejected the contention that employees of a law firm are “confidential” since 

they handle labor relations matters and information for the firm’s clients. In Kleinberg, Kaplan, 

Wolff, Cohen & Burrows, P.C., 253 NLRB 450 (1981), the Board held that employees are 

confidential only if they handle confidential matters concerning labor relations for their own 

employers. 
SPECIFIC UNITS AND INDUSTRIES 179

15-210 Licensed Departments 

15-211 In General 

177-1633-5033 

177-1650 

Licensed departments are operations conducted under a lease or license agreement between a 

store owner and lessee under which the latter does business on the premises of the owner. The 

cases involving licensed departments generally pose (1) the initial question whether or not the 

lessor and lessee are joint employers, and (2) the ensuing question, depending on the outcome of 

the first, whether the employees of the lessee have a sufficient community of interest to be 

included in the unit of the other store employees. Although these questions arise mostly in retail 

or discount retail store contexts, the issues posed are not necessarily limited to that segment of 

business enterprise. 

The general rule is that the licensor or lessor and its licensees are joint employers of the 

employees in the licensed departments where it is established that the licensor “is in a position to 

influence the licensee’s labor policies.” Grand Central Liquors, 155 NLRB 295 (1965); Spartan 

Department Stores, 140 NLRB 608 (1963); Frostco Super Save Stores, 138 NLRB 125 (1962); 

and Pergament United Sales, 296 NLRB 333 (1989). For the corollary, where the licensors had 

not exercised substantial control of the licensees’ labor policies and were therefore not joint 

employers, see, for example, S.A.G.E., Inc., 146 NLRB 325 (1964); and Esgro Anaheim, Inc., 150 

NLRB 401 (1965). 

Almost invariably in these situations the lessor and lessee execute a trade agreement, one of 

the major purposes on their part being to create the appearance of an integrated department store. 

Their agreement normally provides for advertising and promotional activity; inspection of 

premises; store layout; audit of records; approval of alterations, fixtures, and signs; decisions as to 

which articles may be sold; pricing policies; customer complaints; sharing of overhead expenses 

(usually prorated); purchase of supplies; names on signs and labels; and, significantly, labor and 

personnel policies. 

The Board has recognized that, in the lessor-lessee arrangement where two or more 

employers at one location, although retaining their separate corporate entities, cooperate to 

present the appearance of a single-integrated enterprise to obtain mutual business advantage, “the 

dominant entrepreneur will of necessity retain sufficient control over the operations of the 

constituent departments so that it will be in a position to take action required to remove any 

causes for disruption in store operations.” Disco Fair Stores, 189 NLRB 456 (1971). However, 

such control has not in and of itself been sufficient justification for a joint-employer finding. Such 

a finding is generally made where it has been demonstrated that the lessor is in a position to 

control the lessee’s labor relations. S.A.G.E., Inc., supra. 

Where the lessor explicitly reserves such control in its lease arrangements, a joint-employer 

finding invariably results. See, for example, S. S. Kresge Co., 161 NLRB 1127 (1966); and Jewel 

Tea Co., 162 NLRB 508 (1967). 

But the Board has not limited itself to an explicit reservation of control over labor relations 

and has held, in effect, that the licensor’s right to dissolve the relationship entirely, its retention of 

overall managerial control, and the extent to which it retained the right to establish the manner 

and method of work performance put it in a position to influence the lessee’s labor policies, 

whether or not such power has ever been exercised. Value Village, 161 NLRB 603 (1966). 

The Board said: “While we would not postulate the existence of a joint-employer relationship 

merely on the basis of such a need—[to control the operations and labor relations of the licensees] 

and so stated in Value Village, supra—we will make such a finding where the license 

arrangements objectively demonstrate a response to that need. Here there is ample proof of such a 

response.” Globe Discount City, 171 NLRB 830, 832 (1968). In that case, the Board concluded 
180 SPECIFIC UNITS AND INDUSTRIES 

that the lessor’s power to control or influence the labor policies of its licensees, particularly as it 

occurred in the context of the same type of joint business venture as was present in Value Village, 

was substantially the same as the power retained by the licensor in the latter. 

On the other hand, both Value Village and Globe were distinguished in a later case, Disco

Fair Stores, supra, in which the joint employer issue was resolved by finding that no such 

relationship existed. The Board held that the lease, unlike those involved in the two earlier cases, 

contained no provisions denominating the lessees as in default of their obligations for failure to 

follow or conform to such rules and regulations as Disco may promulgate concerning personnel. 

Nor did the lease arrangements give the lessor sufficiently specific control over labor relations of 

the lessees to warrant a joint employer finding. 

15-212 Unit Composition–Licensed Departments 

420-7384 et seq. 

440-3350-5000 et seq. 

Where no union seeks a more limited unit, a unit embracing the employees of the licensor and 

its licensed department employees is appropriate. Value Village, supra. However, even if the 

existence of a joint employer relationship is found, it does not necessarily follow that storewide 

units including all leased and licensed department employees would be the only appropriate unit. 

Esgro Valley, Inc., 169 NLRB 76 (1968). As explicated in Bargain Town U.S.A., 162 NLRB 

1145, 1147 (1967): “While there are circumstances indicating that all employees working at the 

store share a common community of interest in certain respects, there are other significant factors 

which establish that the employees of the leased and licensed departments in other respects also 

have a community of interest separate and distinct from that of the other employees.” See also 

Collins Mart, 138 NLRB 383 (1962); and Frostco Super Save Stores, supra. 

15-220 Maritime Industry 

Generally, the Board considers a fleetwide unit appropriate in the maritime industry. InterOcean Steamship Co., 107 NLRB 330 (1954). In Moore-McCormack Lines, 139 NLRB 796 

(1962), and Keystone Shipping Co., 327 NLRB 892 (1999), the Board found a less than fleetwide 

unit appropriate. 

In Florida Casino Cruises, supra, the Board found a unit of the ship’s personnel appropriate 

rejecting a request for a “wall to wall” unit. 

15-230 Newspaper Units 

The optimum appropriate unit in the newspaper industry is a unit comprising employees in all 

nonmechanical departments. Salt Lake Tribune Publishing Co., 92 NLRB 1411 (1951); Lowell 

Sun Publishing Co., 132 NLRB 1168 (1961); and Minneapolis Star & Tribune Co., 222 NLRB 

342 (1976). 

Thus, in the absence of a bargaining history of separate units of nonmechanical employees, 

the Board, based on sufficient community of interest, will grant a union’s request to include all 

such employees in a single unit. Dow Jones & Co., 142 NLRB 421 (1963); Minneapolis Star & 

Tribune Co., supra at 343. A combined unit consisting of departments that do not do similar or 

coordinated work, and which does not include all nonmechanical employees, may be found 

inappropriate. Peoria Journal Star, 117 NLRB 708 (1957); Lowell Sun Publishing Co., supra. 

See also Salt Lake Tribune Publishing Co., supra. 

A multidepartment unit is not, however, the only appropriate unit in every case. In each 

instance the question turns on the facts of the case, including the bargaining history, the 

employer’s organizational structure, and the willingness of the labor organizations involved to 

represent the overall unit, a factor which may be considered although it cannot be controlling. It 

does not, however, turn on the ultimate desirability of the overall unit. Peoria Journal Star, supra. 

Thus, when the employer’s operations are organized into separate distinct departments, separate 
SPECIFIC UNITS AND INDUSTRIES 181

departmental units may be found appropriate, even in the face of functional integration and 

control, interchangeability among employees, or uniformity of benefits and conditions of 

employment. See also Chicago Daily News, 98 NLRB 1235 (1951). Single major departments 

which have been held to constitute appropriate units are the news department (Daily Press, 112 

NLRB 1434 (1955)), and the circulation department (Times Herald Printing Co., 94 NLRB 1785 

(1951)). See also Evening News, 308 NLRB 563 (1992), and Leaf Chronicle Co., 244 NLRB 

1104 (1979), in which a single-location unit was found appropriate. 

In the newspaper industry, the Board usually finds separate units of the various mechanical 

department crafts appropriate. American-Republican, 171 NLRB 43 (1968); Garden Island 

Publishing Co., 154 NLRB 697, 698 (1965). These units, however, may be joined where they 

share sufficient community of interest. Evening News and Leaf Chronicle Co., supra. Where 

photoengraving employees engaged in the distinct, skilled work of making photoengraving plates 

under separate supervision, there was no transfer or interchange between their jobs and 

proofreading jobs, and their skills, training, hours, and wage scales were different, a unit limited 

to photoengravers was found appropriate. American-Republican, supra. 

A combination of departments may constitute an appropriate unit when the departments 

perform closely related functions calling for similar skills (Bethlehem’s Globe Publishing Co., 74 

NLRB 392 (1947); and Dayton Newspapers, 119 NLRB 566 (1958)), and where there has been a 

history of bargaining for the employees of dissimilar departments (Sacramento Publishing Co., 

57 NLRB 1636 (1944)), or where no union seeks to represent nonmechanical employees on a 

broader basis (Philadelphia Daily News, 113 NLRB 91 (1955)). 

Mailroom employees in the newspaper industry are a well-defined functionally distinct group 

who have been traditionally represented on a separate departmental basis. See Bakersfield 

Californian, 152 NLRB 1683 (1965). The fact that outside helpers and carriers also do some 

work in the mailroom does not destroy that traditional basis for a separate mailroom unit. 

Bakersfield, supra; Suburban Newspaper Publications, 226 NLRB 154 (1976). 

15-231 Printing Industry 

A unit of all production and maintenance employees involved in the lithographic process is 

appropriate in the printing industry. The Board will apply traditional community-of-interest 

analysis in deciding on petitioned-for units whether the unit is press employees, a combined unit 

of press and pre-press employees, or an overall production unit. The Board does accord some 

weight to a traditional lithographic unit—a combined unit of press and pre-press employees. AGI 

Klearfold, Inc., LLC, 350 NLRB No. 50 (2007). 

15-240 Public Utilities 

420-4000 

420-4617 

440-1720 

440-3300 

The systemwide unit is the optimum bargaining unit in public utilities industries. Colorado 

Interstate Gas Co., 202 NLRB 847 (1973); Deposit Telephone Co., 328 NLRB 1029 (1999); 

Louisiana Gas Service Co., 126 NLRB 147 (1960); and Montana-Dakota Utilities Co., 115 

NLRB 1396 (1956). The reason for this general principle lies in “the essential service rendered to 

their customers and the integrated and interdependent nature of their operations.”Colorado 

Interstate Gas Co., supra. However,s the Board noted in Deposit Telephone,supra, “this policy 

does not require multi-departmental units in all instances.” And, in Verizon Wireless, 341 NLRB 

483 (2004), the Board rejected the systemwide unit for retail employees in the wireless telephone 

industry without passing on whether this industry is a public utility. 
182 SPECIFIC UNITS AND INDUSTRIES 

While public utilities, in comparison to other industries, may be more intimately interrelated 

and interdependent throughout a widespread system, each case must nonetheless be judged on its 

own merits in determining the appropriateness of bargaining units. Idaho Power Co., 179 NLRB 

22 (1969); and Pacific Northwest Telephone Co., 173 NLRB 1441 (1969). Where, on balance, all 

the relevant factors indicate that the administrative structure or geographic features of a public 

utility company’s operations have created a separate community of interest for certain of the 

company’s employees, a less than systemwide unit may be found appropriate. PECO Energy 

Co., 322 NLRB 1074 (1997); Monongahela Power Co., 176 NLRB 915 (1969); Michigan 

Wisconsin Pipe Line Co., 164 NLRB 359 (1967); Sanborn Telephone Co., 140 NLRB 512 

(1963); Mountain States Telephone Co., 126 NLRB 676 (1960); Western Light Telephone Co., 

129 NLRB 719 (1961); and Southern California Water Co., 220 NLRB 482 (1975). 

As is true of other areas of unit determination, the history of collective bargaining and 

existing bargaining relationships and the fact that no labor organization seeks to represent a 

broader unit of the employees in question are relevant factors. Deposit Telephone Co., supra, and 

Michigan Bell Telephone Co., 192 NLRB 1212 (1971). Deposit Telephone reversed Red Hook 

Telephone, 108 NLRB 260 (1967), and Fidelity Telephone, 221 NLRB 1335 (1976). 

In the absence of a bargaining history on a more comprehensive basis, units have been found 

appropriate in the public utility industry which correspond to an administrative subdivision of the 

particular operation PECO Energy Co., supra; Mountain States Telephone Co., supra, reflecting 

geographical lines of demarcation (Philadelphia Electric Co., 110 NLRB 320 (1955)), and 

reflecting operational integration of the subdivision as a separate administrative entity. MontanaDakota Utilities Co., supra. See also Connecticut Light & Power Co., 222 NLRB 1243 (1976); 

Southern California Water Co., supra; and New England Telephone Co., 242 NLRB 793 (1979). 

The fact that it was not shown by “satisfactory or documented evidence” that a work stoppage 

in one district would have a substantial impact on the operations of other districts within the 

division was taken in consideration. United Gas, 190 NLRB 618 (1971); and Southwest Gas 

Corp., 199 NLRB 486 (1972); Southern California Water Co., supra. 

In United Gas, supra, the local distribution organization in question was likened to singlestore units in retail operations and single district office units in the insurance industry. See M. 

O’Neil Co., 175 NLRB 514 (1969); and Metropolitan Life Insurance Co., 156 NLRB 1408 

(1966). 

In a case litigated in the Tenth Circuit, the unit certified by the Board consisted of 10 

employees in one department of a single telephone exchange in one State. There was no history 

of bargaining. Although the court pointed out that in a number of cases involving integrated 

telephone companies the Board had concluded that systemwide units are normally the appropriate 

unit, the court found the Board’s action neither arbitrary nor capricious and that “the designated 

unit is a functioning, distinct and separate operation of a group of unrepresented employees who 

work in a single geographical location,” and, thus, appropriate for purposes of collective 

bargaining. Mountain States Telephone Co. v. NLRB, 310 F.2d 478 (10th Cir. 1962). 

Illustrative of the type of situation encountered at times in public utility unit determinations is 

Michigan Wisconsin Pipe Line Co., 194 NLRB 469 (1972), in which a unit found appropriate in a 

1967 decision involving a district of the company’s system (164 NLRB )359) was held no longer 

appropriate due to administrative and operational changes which had since occurred. In arriving 

at this result, consideration was given to the facts that (1) the district encompassing the requested 

employees became one of three districts in a major administrative subdivision of the pipeline 

system; (2) to continue finding the initial unit appropriate would “fragmentize” the pipeline 

employees; and (3) supervision of the district in question was closely coordinated with 

supervision in other districts in the area with the concomitant of a significant degree of employee 

interchange. 

The opposite result follows, of course, when changes have no significant effect on the unit. 

Thus, where changes made since a merger had not materially affected the appropriateness of an 
SPECIFIC UNITS AND INDUSTRIES 183

existing unit, that unit remained appropriate and could not be absorbed into a systemwide unit 

unless the employees in it were accorded in a self-determination election. Brooklyn Union Gas 

Co., 123 NLRB 441 (1959); and Houston Corp., 124 NLRB 810 (1959). 

The reluctance of the Board to “fragmentize” in establishing units for natural gas pipeline 

systems was a focal point in Colorado Interstate Gas Co., 202 NLRB 847 (1973). It found that 

requested districtwide units were too narrow in scope to be appropriate, relying on (1) the high 

degree of control exercised by the company’s headquarters management over the operational 

districts; (2) evidence of substantial temporary interchange among the districts; (3) the 

systemwide procedures applied in posting and bidding for openings in higher paying positions; 

(4) the lack of substantial autonomy in the district superintendents with respect to day-to-day 

personnel matters; and (5) the uniformity of wages, hours, and conditions of employment 

throughout the company’s system. See also Tennessee Gas Pipeline, 254 NLRB 1031 (1981); 

Gas Pipeline Co. of America, 223 NLRB 1439 (1976). 

By way of contrast, there was no problem of “fragmentization’’ in Idaho Power Co., supra, in 

which a proposed divisionwide unit was found appropriate relying on (1) geographic coherence; 

(2) distinctiveness of functions; and (3) the relative autonomy of operation with which the 

divisional managing official had been entrusted. Similarly, in PECO Energy Co., 322 NLRB 

1074 (1997), the Board found a less than systemwide unit, conforming its determination to the 

employer restructuring of its operations. This case contains a collection and discussion of the 

key utility unit cases. 

In Alyeska Pipeline Service Co., 348 NLRB 808 (2006), the Board held that it would apply 

the presumption of a systemwide unit to a natural gas pipeline whether or not it is considered a 

public utility. 

15-250 Retail Store Operations 

15-251 Scope 

440-1720 

440-3300 

In our consideration of multilocation bargaining units, we singled out, in particular, unit 

determinations in retail store operations. We addressed the marked modification in policy 

effected, in 1962, by the Board’s decision in Sav-On Drugs, 138 NLRB 1032 (1962), under 

which a proposed retail unit would no longer be the subject of a per se rule but would instead be 

found appropriate or not depending on the circumstances of each case. The per se rule which SavOn Drugs abandoned was generally to determine appropriateness of unit in the retail industry on 

the basis of being extensive with the employer’s administrative division or the geographic area in 

question. See chapter, ante, on Multilocation Units. 

Thus, the basic rule is that single-store units are presumptively appropriate in retail 

merchandising. See Haag Drug Co., 169 NLRB 877 (1968), for a thorough review of the Sav-On 

Drug policy in affirming the prior holding. 

This presumption may be rebutted where it is shown that the day-to-day interests of 

employees in the particular store may have merged with those of employees of other stores. Food 

Marts, 200 NLRB 18 (1973). For example, in that case the presumption was held rebutted where 

the Board found (1) lack of autonomy at the single-store level as reflected by the strict limitations 

of the store manager’s authority in personnel, labor relations, merchandising, and other matters; 

(2) the extensive role played by officials at the main office in the daily operations of the store; (3) 

the geographical proximity of the store; and (4) the transfer of employees among them. See also 

NAPA Columbus Parts Co., 269 NLRB 1052 (1984); and Big Y Foods, 238 NLRB 860 (1978). 

The presumption was not rebutted in Foodland of Ravenswood, 323 NLRB 665 (1997). 
184 SPECIFIC UNITS AND INDUSTRIES 

15-252 Selling and Nonselling Employees 

440-1760-7200 et seq. 

The bargaining pattern in the industry, the history of bargaining in the area, and a close 

examination of the composition of the work force in the industry “require the recognition of the 

existing differences in work tasks and interests between selling and nonselling employees in 

department stores.” The Board therefore found separate units for the selling and the nonselling 

employees appropriate. Stern’s Paramus, 150 NLRB 799, 806 (1965); Arnold Constable Corp., 

150 NLRB 788 (1965); and Lord & Taylor, 160 NLRB 812 (1966). 

It was pointed out in Stern’s Paramus that, although the storewide unit in retail 

establishments has been regarded as “basically appropriate” (I. Magnin & Co., 119 NLRB 642, 

643 (1958)), or the “optimum unit” (May Department Stores Co., 97 NLRB 1007, 1008 (1951)), 

the single-comprehensive unit is not the only appropriate unit in such establishments (Root Dry 

Goods Co., 126 NLRB 953, 955 (1960)). 

However, combining various categories of nonselling employees into one proposed unit 

predicated “on the single negative characteristic that none of the included employees performs 

any selling functions” is insufficient to overcome the diversity of interests among employees in 

an otherwise random grouping of heterogeneous classifications. Beco Industries, 197 NLRB 1105 

(1972). 

In Levitz Furniture Co., 192 NLRB 61 (1971), less-than-storewide units were found 

inappropriate due, among other things, to the small size and functional integration of the retail 

store and the community of interest shared by all of the store employees. For further discussion of 

Beco Industries )and Levitz, see Wickes Corp., 231 NLRB 154 (1977). 

In Saks & Co., 204 NLRB 24 (1973), a petition which sought a grouping of nonselling 

employees was dismissed on the basis of (1) lack of a separate community of interest, there being 

no similarity of job function among the employees sought; (2) a failure, as a nonselling unit, to 

include other nonselling employees; and (3) the close similarity of working conditions and 

benefits, and the close contact between the selling and nonselling employees, thus constituting an 

operation “more closely integrated than other retail establishments.” 

In Sears, Roebuck & Co., 191 NLRB 398 (1971), employees of the service station, 

warehouse, store dock area, and retail store were held to constitute a homogeneous grouping 

whose common supervision, uniform working conditions, and overlapping job functions within 

the framework of a substantially integrated set of operations required that they be included in a 

single-bargaining unit. See also J. C. Penney Co., 182 NLRB 708 (1970); Montgomery Ward & 

Co., 225 NLRB 547 (1976); and Sears, Roebuck & Co., 261 NLRB 245 (1982). See also Sears, 

Roebuck & Co., 319 NLRB 607 (1995). 

In Sears, Roebuck & Co., 182 NLRB 777 (1970), a petition for a unit of nonselling 

employees was dismissed as inappropriate because of the integration of all store functions and the 

arbitrary exclusion of some nonselling employees. 

15-253 Bargaining History in Retail Industry 

420-1281 

440-1760-7400 

A common thread which runs through unit discussion is bargaining history. It therefore 

becomes readily apparent that elections are normally directed in separate units of selling and 

nonselling employees where there has been a history of bargaining on that basis or, for that 

matter, where there has been agreement among the parties. 

In Bond Stores, 99 NLRB 1029 (1951), the petitioning union sought an overall unit. But the 

Board directed an election in two units: a selling unit for which an intervening union had been 

bargaining and a nonselling unit, saying that “either an over-all unit of both selling and nonselling 

employees or separate units of each may be appropriate.” 
SPECIFIC UNITS AND INDUSTRIES 185

In Root Dry Goods Co., supra, the Board directed a decertification election in a unit of selling 

employees that had been established by collective bargaining. 

In Supermercados Pueblo, 203 NLRB 629 (1973), a request was denied for a proposed twodepartment group of meat and delicatessen employees, to be carved out from an established 

multistore unit composed of all nonsupervisory employees in a retail supermarket chain. A major 

factor in this denial was a 15-year amicable bargaining history on an overall, or “wall-to-wall,” 

basis. Also considered in arriving at the ultimate result were factors such as functional 

interrelation of the work and the common interests and supervision of all the employees, the 

centralized control of labor relations policies, and the stabilized pattern of interwoven seniority 

rights and privileges within the overall unit. See also Buckeye Village Market, 175 NLRB 271, 

272 (1969) (a 22-month bargaining history regarded as “substantial”). 

Where there has been no bargaining on a broader basis, a geographic grouping of retail chain 

stores less than chainwide in scope, particularly where such grouping coincides with an 

administrative subdivision within the employer’s organization, may be appropriate. U-Tote-Em 

Grocery Co., 185 NLRB 52 (1970); and Community Drug Co., 180 NLRB 525 (1970). Hence, in 

the absence of a broader bargaining history, a geographic grouping of retail chain stores—eight 

downtown Los Angeles stores—was found appropriate. White Cross Discount Centers, 199 

NLRB 721 (1972). 

15-254 Retail Categories 

440-1740 

440-1760-3600 

440-1760-9900 

Where bargaining history on a broader basis or other factors are absent, differences in work 

and interest of many categories and occupations in retail stores have been accorded due 

recoguition in the form of smaller units. Examples of such units found appropriate are: 

Alteration department employees comprising tailor shop employees, bushelmen-fitters, 

finishers, operators, rippers, and pressers, as “a basically highly skilled, distinct, and 

homogeneous departmental group.” Foreman & Clark, Inc., 97 NLRB 1080 (1951). See also 

Loveman, Joseph & Loeb, 147 NLRB 1129 (1964). 

Bakery employees employed in a department store. Rich’s, Inc., 147 NLRB 163, 165 

(1964). Compare Jordan Marsh Co., 174 NLRB 1265 (1969), and see in particular fn. 5 

which distinguishes the facts in Rich’s. 

Carpet workroom employees as functional group having predominantly craft 

characteristics. J. L. Hudson Co., 103 NLRB 1378, 1381 (1953). 

Display department employees sharing a substantial community of interest, apart from 

others, by reason of their skills and training and different working conditions. Goldblatt 

Bros., 86 NLRB 914 (1949). See also W & J Sloane, Inc., 173 NLRB 1387 (1969). But 

compare John Wanamaker Philadelphia, 195 NLRB 452 (1972), in which a unit of requested 

display department employees was held inappropriate because they had interests closely 

related to other selling and nonselling store employees, worked in many different areas of the 

store, had no special training or skills, and received the same wage rates and benefits as other 

employees. Compare also Sears, Roebuck & Co., 194 NLRB 321 (1972), in which any 

separate community of interest that the display employees might have enjoyed had been 

submerged into a broader community of interest. 

Grocery employees: excluding meat department personnel, where the separate unit is 

sought. R-N Market, 190 NLRB 292 (1971). See also Payless, 157 NLRB 1143 (1966); Allied 

Super Markets, 167 NLRB 361 (1967); Great Atlantic & Pacific Tea Co., 162 NLRB 1182 

(1967); and Big Y Supermarkets, 161 NLRB 1263, 1268 (1966). 
186 SPECIFIC UNITS AND INDUSTRIES 

Meat department: in Scolari’s Warehouse Markets, 319 NLRB 153 (1995), the Board 

gave an extensive analysis of the separate meat department issue. The case collects some of 

the key cases in this area. See also Ray’s Sentry, 319 NLRB 724 (1995); and Super K Mart 

Center (Broadview, Illinois), 323 NLRB 582 (1997). In Wal-Mart Stores, 328 NLRB 904 

(1999), the Board rejected a meatcutters unit but found a meat department unit to be 

appropriate. 

Restaurant employees: worked different hours, received additional benefits, had separate 

supervision, and were not subject to frequent transfers to other jobs. Wm. H. Block Co., 151 

NLRB 318 (1965). See also F. W. Woolworth Co., 144 NLRB 307, 308–309 (1963). In 

Washington Palm, Inc., 314 NLRB 1122 (1994), the Board affirmed a Regional Director’s 

finding that a unit of nontipped kitchen employees was appropriate. In doing so, the Regional 

Director rejected the employer’s contention that the unit included all food and beverage 

employees. 

In Casino Aztar, 349 NLRB 603 (2007), the Board rejected a beverage department unit on 

a riverboat casino finding instead the smallest most appropriate unit to be a beverage, 

catering, and restaurant unit. 

Service department employees: an appliance service facility operated in conjunction with a 

retail department store. Montgomery Ward & Co., 193 NLRB 992 (1971). Compare J. C. 

Penney Co., 196 NLRB 446 (1972), and J. C. Penney Co., 196 NLRB 708 (1972); Sears, 

Roebuck & Co., 160 NLRB 1435 (1966); and Montgomery Ward & Co., 150 NLRB 598 

(1965). 

Wireless retail stores: less than districtwide unit found appropriate based on geographic 

proximity, regular contact between employees, common terms and condition of employment, 

and transfers. Verizon Wireless, 341 NLRB 483 (2004). 

15-260 Television and Radio Industry 

440-1720 et seq. 

440-1760-3400 

440-1760-9900 

In the television and radio industry either an overall program department unit or separate 

units of (1) employees regularly and frequently appearing before the microphone/camera, and (2) 

employees who do work preliminary to broadcasts or telecasts may be appropriate. Radio & 

Television Station WFLA, 120 NLRB 903 (1958). Where no labor organization is seeking to 

represent the performing and nonperforming employees separately, a single unit of the program 

department employees is appropriate. Ibid. See also El Mundo, Inc., 127 NLRB 538 (1960). 

Consistent with this principle, employees directly involved in the staging and presentation of 

studio productions, including both those who perform on radio and television programs and those 

who contribute directly to such performances, constitute essentially a production and program 

unit. Their functional interrelationships creates a substantial community of interest and renders 

the combined unit appropriate. WTAR Radio-TV Corp., 168 NLRB 976 (1968). 

Employees who regularly or frequently appear before the microphone constitute a 

homogeneous, readily identifiable cohesive group appropriate as a unit for collective bargaining. 

Hampton Roads Broadcasting Corp., 100 NLRB 238 (1951). See also WTMJ-AM-FM-TV, 205 

NLRB 36 (1973), and Perry Broadcasting, 300 NLRB 1140 (1990). Compare KJAZ 

Broadcasting Co., 272 NLRB 196 (1984), in which the Board found the on-air off-air distinction 

had broken down. In Perry Broadcasting, supra, the Board described KJAZ as a “narrow 

exception.” 

The other major department in this industry is the engineering department. The employees in 

that department are generally skilled technicians who operate the electronic equipment and work 

in the control booth, control room, or at the transmitter sites. They are under the general 
SPECIFIC UNITS AND INDUSTRIES 187

supervision of a chief engineer, must have FCC licenses, and do not, as a rule, interchange with 

program department employees. They share many interests in common with one another, which 

are separate and apart from the other employees. See, for example, Sarkes Tarzian, 115 NLRB 

535 (1956). In these circumstances, although an overall unit including the engineers may be 

appropriate, a unit which excludes them is also appropriate. WTAR Radio-TV Corp., supra. 

Moreover, a unit consisting of employees in the engineering and program departments of a 

television or radio station who contribute to the presentation of but do not appear on the TV or 

radio programs is also appropriate. KMTR Radio Corp., 85 NLRB 99 (1949); and Indiana 

Broadcasting Corp., 121 NLRB 111 (1958). 

A broadcasting station’s production department alone does not constitute an appropriate unit 

when employees in another department (e.g., program planning) are essentially production 

employees and work in close contact with the employees in the production department proper. In 

such a situation, without the program planning employees, the production department constitutes 

only a segment of an appropriate unit. WTVJ, Inc., 120 NLRB 1180, 1188 (1958). A unit of 

television producers/directors has been found appropriate. WTMJ Inc., 222 NLRB 1111 (1976). 

See also KFDA-TV Channel 10, 308 NLRB 667 (1992) (reporters included in production unit). 

A unit of radio and television newsmen is not appropriate if limited only to a portion of the 

integrated services performed by the newsmen. American Broadcasting Co., 153 NLRB 259, 266 

(1965). See also WLNE-TV, 259 NLRB 1224 (1982), in which a unit of camera employees was 

not appropriate because of the working conditions they shared with other employees. 

A unit of radio news editors, production assistants, and copyroom employees was found 

appropriate. Among the issues raised was whether the television newsroom operations should be 

considered as separate departments. The Board found that each is run as a separate department as 

indicated by different immediate supervision, different physical locations, different final 

products, and little, if any, employee interchange. A unit confined to the radio news operations 

was therefore appropriate. Post-Newsweek Stations, 203 NLRB 522 (1973). 

A proposed unit of traffic and compliance employees alone was held inappropriate as it 

comprised but a segment of the employees performing the same or similar work. National 

Broadcasting Co., 202 NLRB 396 (1973). 

Artists have been included in program department units where they contribute directly to the 

station’s program activities, but where they constituted an arbitrary segment of the unrepresented 

employees they were found not to be an appropriate voting group. WPVI TV, 194 NLRB 1063 

(1972). 

15-270 Universities and Colleges 

In 1970, the Board, reversing a prior policy, asserted jurisdiction over private nonprofit 

universities and colleges. Cornell University, 183 NLRB 329 (1970). It later issued a rule 

establishing a jurisdictional standard. See chapter on Jurisdiction, ante, and 35 Fed.Reg. 18370; 

29 C.F.R. 103.1. 

In Cornell University, supra, mindful of entering into “a hitherto uncharted area,” the Board 

reiterated a number of established unit principles where an employer operates a number of 

facilities as “reliable guides to organization in the educational context as they have been in the 

industrial.” These were described as: prior bargaining history, centralization of management 

particularly in regard to labor relations; extent of employee interchange; degree of 

interdependence or autonomy; differences or similarities of skills and functions of the employees; 

and geographical locations of the facilities in relation to each other. 
188 SPECIFIC UNITS AND INDUSTRIES 

15-271 Faculty 

420-9660 

440-1760-4300 

460-5033 

In C. W. Post Center, 189 NLRB 904 (1971), it was urged that various attributes of faculty 

status require the application of different principles from those applied by the Board in 

determining units involving other types of employees. But, as in Cornell, the Board could not 

discern from cases decided by state labor relations boards any clear-cut pattern or practice of 

collective bargaining in the academic field requiring the Board to modify its ordinary unit 

determination rules. A unit of professional employees was found appropriate, with certain 

specific inclusions and exclusions. See also Long Island University, 189 NLRB 909 (1971). 

In 1975 the Supreme Court in NLRB v. Yeshiva University, 444 U.S. 672 (1980), held that the 

full-time faculty there were managerial and thus not employees within the meaning of the Act. 

The Supreme Court found that the Yeshiva faculty “exercise authority which in any other context 

unquestionably would be managerial,” supra at 686. Yeshiva has had a substantial effect on Board 

unit considerations in higher education cases because of the extent of the inquiry that the Yeshiva

case requires as to faculty authority. This inquiry includes the authority of faculty as to hiring, 

promotion, and tenure of themselves, and their authority in setting university policy including 

standards for admission and graduation. The fact that they may not have final authority over these 

matters does not preclude a finding of managerial. For cases in which the Board found managerial 

status see LeMoyne-Owen College, 345 NLRB 1123 (2005); University of Dubuque, 289 NLRB 

349 (1988); Lewis & Clark College, 300 NLRB 155 (1990); Livingstone College, 286 NLRB 

1308 (1987); Boston University, 281 NLRB 798 (1986); Duquesne University, 261 NLRB 587 

(1982); and University of New Haven, 267 NLRB 939 (1983). See also Elmira College, 309 

NLRB 842 (1992), where a divided Board denied review of a managerial determination of a 

Regional Director. 

The Board has found employee rather than managerial status in other cases. See, e.g., Carroll 

College, Inc., 350 NLRB No. 30 (2007); University of Great Falls, 325 NLRB 83 (1997); Cooper 

Union of Science & Art, 273 NLRB 1768 (1985); Kendall School of Design, 279 NLRB 281 

(1986); and Lewis University, 265 NLRB 1239 (1983). 

The Board has included graduate and undergraduate faculty in the same unit. Nova 

Southeastern University, 325 NLRB 728 (1998). 

In Brown University, 342 NLRB 483 (2004), the Board reversed New York University, 332 

NLRB 1205 (2000), finding that graduate assistants are not employees. See section 20-400, infra. 

In cases predating New York University, the Board had held that the relationship between a 

faculty member and a graduate assistant is basically a teacher-student relationship which does not 

make the faculty member a supervisor. Fordham University, 193 NLRB 134 (1971). 

In Research Foundation-SUNY, 350 NLRB 197 (2007), and Research Foundation of the City 

University of New York, 350 NLRB 201 (2007), the Board distinquished Brown University

finding that research project assistants employed by a private corporation are employees within 

the meaning of the Act. 

Before Brown, the Board held that graduate assistants do not share a sufficient community of 

interest with the regular faculty to warrant their inclusion. Adelphi University, 195 NLRB 639 

(1972). Graduate assistants were distinguished in Adelphi from the “research associate” included 

in the professional unit in C. W. Post Center, supra. See also University of Vermont, 223 NLRB 

423 (1976). Unlike graduate assistants, the research associate already had a doctoral degree and 

was eligible for tenure. Graduate assistants were more comparable to the technical laboratory 

assistants who were excluded from a professional teaching unit in Long Island University, supra. 
SPECIFIC UNITS AND INDUSTRIES 189

See also College of Pharmaceutical Sciences, 197 NLRB 959 (1972). The viability of all these 

unit placement cases after New York University may be in doubt. 

Members of a religious order were excluded from a faculty unit where the order operates the 

university, Seton Hill College, 201 NLRB 1026 (1973), but are included if the university is 

operated by another order. Niagara University, 227 NLRB 313 (1977). See also NLRB v.

Universidad Central de Bayamon, 793 F.2d 383 (1st Cir. 1986), in which an evenly divided First 

Circuit considered the application of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), 

to a university. 

It will be recalled that in Cornell University, 183 NLRB 329 (1970), unit guidelines adapted 

from the industrial world were initially applied in the academic field, and that in C. W. Post 

Center a similar approach was used. But in Adelphi University, supra, the Board commented that 

“the industrial model cannot be imposed blindly on the academic,” and in Syracuse University, 

204 NLRB 641 (1973), in the context of such a reevaluation, it accorded individual treatment to a 

law school faculty, as a group, by directing a special type of election for them. The rationale for 

this was summarized as follows: “Granting a voice merely in determining whether such a group 

shall be swallowed up by the collective body or shall have separate representation will not 

answer. Rather it requires yet another choice, that of standing alone without representation 

regardless of the choice of the university body as a whole.” The new type of election in Syracuse

(see discussion, in chapter on Self-Determination Elections, infra), was directed within the 

framework of the holdings in Fordham University, supra, and Catholic University of America, 

201 NLRB 929 (1973), of the separate unit status of law school faculty. The differences between 

professional school faculty and other faculty is often sufficient to support separate units absent a 

petition to include the entire faculty. See Boston University v. NLRB, 575 F.2d 301 (1st Cir. 

1978). 

The unit guidelines set out in Cornell for an employer operating a number of facilities—the 

same as those used in unit determinations in the industrial field—were nonetheless applied in 

Claremont University Center, 198 NLRB 811 (1972), which involved a petition for professional 

and nonprofessional employees of a college library. In that case, in keeping with these factors, the 

Board found the proposed unit of library employees an identifiable group with a separate 

community of interest, distinguishing on the facts the ruling in Cornell with respect to 

nonprofessional library employees. It was also pointed out that, since Cornell, the Board has 

found less than an overall unit appropriate where, as in Claremont, the work situation shows a 

homogeneous group of employees who share a close community of interest. See, for example, 

Syracuse University, supra; Catholic University of America, supra; Fordham University, supra 

(separate elections for faculty members in the law school of a university); Leland Stanford Jr. 

University, 194 NLRB 1210 (1972) (maintenance employees at a university; campus police at a 

university; firemen at a university); and California Institute of Technology, 192 NLRB 582 

(1971) (central plant employees comprising but a section of the physical plant department of a 

university). 

Librarians were found to be professional employees engaged in functions closely related to 

teaching and therefore included in a unit of faculty members. Florida Southern College, 196 

NLRB 888 (1972). See also C. W. Post Center, supra; Long Island University (Brooklyn Center), 

supra. These cases, however, do not hold that librarians and supporting personnel in a library 

system, which is not part of any of the colleges it serves, cannot organize themselves separately in 

an appropriate unit. See Claremont University Center, supra. 

The Board is now convinced that the differences between full-time and part-time faculty 

members are so substantial in most colleges and universities that it should not adhere to its 

normal rationale concerning part-time employees. Accordingly, the Board excluded part-time 

faculty members who were not employed in “tenure track” positions. New York University, 205 

NLRB 4 (1973). See also Bradford College, 211 NLRB 565 (1974). 
190 SPECIFIC UNITS AND INDUSTRIES 

15-272 Other Categories 

Turning to groupings other than faculty and those engaged in functions closely related to 

teaching, “the Board applies the rules traditionally used to determine the appropriateness of a unit 

in an industrial setting.’’ Livingstone College, 290 NLRB 304 (1988); and Cornell University, 

183 NLRB 329 (1970). They are discussed here. 

In Yale University, 184 NLRB 860 (1970), the Board dismissed a petition for a unit of 

nonfaculty, clerical, and technical employees in the Department of Epidemiology and Public 

Health. Relying on the Cornell guidelines, it was concluded that these employees did not share a 

sufficiently special community of interest which would justify creating a separate unit for them. 

Taken into consideration, inter alia, were the facts that they were subject to the same working 

conditions as all other Yale employees, their skills and techniques did not vary substantially from 

those of others doing parallel jobs, and the thorough integration of the EPH Department into the 

Yale School of Medicine and the University. 

Food service employees were found appropriate in a separate unit. In Cornell University, 202 

NLRB 290 (1973), the Board analogized the situation of a university which operates dining 

facilities for its students to a hotel which operates a restaurant for its guests (see, for example, 

Denver Athletic Club, 164 NLRB 677 (1967)). It concluded that the food service employees 

shared a substantial community of interest separate from that of other university employees on the 

Ithaca campus and may therefore constitute a separate bargaining unit. See also ITT Canteen 

Corp., 187 NLRB 1 (1971). Compare Harvard College, 269 NLRB 821 (1984), in which the 

Board found insufficent bases for a separate unit of clerical and technical employees from the 

university’s medical area. 

Service employees were found appropriate in a separate unit. Duke University, 194 NLRB 

236 (1972). In that case, the Board determined that, since the hospital operated by the employer 

was exempt from the Board’s jurisdiction under Section 2(2), the unit of service employees 

would exclude any employees working more than 50 percent of their time within the hospital. 

(See distinction drawn on this point in the later case, Duke University, 200 NLRB 81 (1972). 

Describing a service and maintenance employees unit as “analogous to the usual production and 

maintenance unit in the industrial sphere,” and therefore a classic appropriate unit, the Board 

directed an election in such a unit. Georgetown University, 200 NLRB 215 (1972). As this type of 

unit does not normally include office clerical or technical employees, they were excluded. The 

percentage rule applied to hospital employees, as first devised in Duke University, supra, was 

used in Georgetown. See also Loyola University Medical Center, 194 NLRB 234 fn. 5 (1971), 

and cases cited therein. “Library assistants” were excluded as clerical employees, but “library 

aides” and messenger clerks, as essentially “blue collar” workers, were included with the service 

and maintenance employees. 

Note: the 1974 Health Care amendments mooted the need for the 50-percent rule in Duke. 

Applying the Cornell guidelines, a unit of bookstore employees was found inappropriate. 

George Washington University, 191 NLRB 151 (1971). In light of the basic criteria, these 

employees did not have a community of interest sufficiently separate and distinct from other 

nonacademic employees to justify the creation of a separate unit for them. 

In California Institute of Technology, supra, a unit of central plant personnel was deemed a 

typical functionally distinct and homogeneous powerhouse departmental unit of the type 

customarily found appropriate where there is no collective-bargaining history on a broader basis. 

Self-determination elections were directed in (1) a voting group of central plant section personnel 

(powerhouse employees), and (2) all other employees of the physical plant department. More 

limited intermediate groups were found inappropriate. 

In Tulane University, 195 NLRB 329 (1972), the operations of four facilities were found 

integrated and centralized and a community of interest shared by all the wage employees. A unit 
SPECIFIC UNITS AND INDUSTRIES 191

confined to the main campus was therefore held inappropriate, and an election was directed in a 

bargaining unit embracing the wage employees of all four facilities. 

15-280 Warehouse Units 

440-1760-6700 

The Board has recognized a distinction between employees in the retail store industry who 

perform warehouse functions and those who perform other functions. A. Harris & Co., 116 

NLRB 1628 (1957). The employer’s organizational integration of its operations does not preclude 

the establishment of any unit less than storewide in scope where the operations of the unit sought 

are devoted essentially to the warehousing functions of servicing the main and branch retail stores 

and the employees’ principal and regular duties consist of performing what were typically 

warehouse functions. See also Esco Corp., 298 NLRB 837 (1990), in which the Board noted that 

Harris did not apply to nonretail warehouses, overriding inconsistent cases. Later, in A. Russo & 

Sons, Inc., 329 NLRB 402 (1999), a divided Board answered the issue left open in Esco by 

holding that Harris does not apply in combination retail and wholesale operations. 

The policy, adopted in Harris, may be spelled out as follows: A separate unit of warehouse 

employees is presumptively appropriate where (1) the warehouse operation is geographically 

separated from the retail store operations; (2) there is separate supervision of employees engaged 

in the warehousing functions; and (3) there is no substantial integration among the warehouse 

employees and those engaged in other functions. A. Harris Co., supra; and J. W. Robinson Co., 

153 NLRB 989 (1965). 

Thus, where the warehouse employees were under supervision separate from the retail stores, 

performed their work in a building geographically separated from the retail stores, were not 

integrated with any other employees in the performance of their regular work, and had different 

hours and wage rates, they constituted an employee group of a type the Board has found 

appropriate as a bargaining unit, at least in the absence of a controlling bargaining history 

including employees in a broader unit. Wigwam Stores, 166 NLRB 1034 (1967). 

On the other hand, where warehouse employees were sought, but they were not 

geographically separated from the retail store operations and were engaged in activities 

substantially integrated with other store functions, the Board found that the proposed unit failed 

to meet the criteria for a separate warehouse unit enunciated in the Harris decision. Wickes Corp., 

201 NLRB 610 (1973). The Board pointed out, for example, in Levitz Furniture Co., 192 NLRB 

61 (1971), that the Harris factors must be satisfied for a separate warehouse unit to be found 

appropriate. See also Sears, Roebuck & Co., 180 NLRB 862 (1965); Wickes Corp., 201 NLRB 

615 (1973). 

For a period of time, the Board construed the geographically separate requirement broadly. 

See Wickes Corp., 255 NLRB 545 (1981). However, in Roberds, Inc., 272 NLRB 1318 (1984), 

the Board announced that it would henceforth apply a narrow construction to the requirement. 

In Sears, Roebuck & Co., 151 NLRB 1356 (1965), the Board held that the warehouse 

employees having a degree of functional difference and autonomy, including geographic and 

supervisory separateness within the overall complex of the employer’s retail operations, clearly 

demonstrated a community of interest among the warehouse employees sufficient to warrant 

placing them in a separate unit. See also City Stores Co., 152 NLRB 719 (1965); John’s Bargain 

Stores Corp., 160 NLRB 1519 (1966); Sears, Roebuck & Co., 201 NLRB 1057 (1973), the only 

issues in that case involved the composition of the warehouse unit, and the Board found a unit 

appropriate larger than that petitioned for and permitted the election subject to a sufficient 

additional showing of interest. In an unnumbered publication, however, the Board vacated its 

Decision and Direction of Election in this case on withdrawal by the petitioner. This withdrawal 

came after the Board, for grounds not stated, had granted the employer’s motion for 
192 SPECIFIC UNITS AND INDUSTRIES 

reconsideration. Thus, what parts, if any, of the case are suspect are unknown so the case should 

be cited with caution, if at all. 

A proposed warehouse unit was rejected when the facts showed that shipping and receiving, 

the functions performed by warehouse department employees, had been integrated with the 

material-moving functions performed by other commissary department employees in production 

areas. Frisch’s Restaurants, 182 NLRB 544 (1970). See also Rexall Drug Co., 156 NLRB 1099, 

1101 (1966); and Charrette Drafting Supplies, 275 NLRB 1294 (1985), in which the Board found 

that some of the Harris criteria had been met and rejected a separate unit. 

The fact that overlapping of work skills exists among some employees in the stores and in the 

warehouse does not, in and of itself, destroy the homogeneity and mutuality of interests of the 

warehouse employees in the warehouse. H. P. Wasson & Co., 153 NLRB 1499, 1500 (1965). See 

also Famous-Barr Co., 153 NLRB 341 (1965); and Sears, Roebuck & Co., supra. 

A retail warehouse unit should comprise employees performing “typical” warehouse 

functions. A. Harris Co., supra at 1633. For this reason, all employees in radio repair workrooms, 

and those who work in the fur storage vaults, were excluded from a warehouse unit. Famous-Barr 

Co., supra at 344. 

Relevant considerations are the absence of a bargaining history on a broader basis, as noted, 

for example, in Wigwam Stores, supra, and the fact that no union seeks a broader unit, as for 

example, in Sears, Roebuck & Co., 152 NLRB 45, 48 (1965). 

The lead case, A. Harris Co., supra, dealt with warehouse units in the retail store industry, 

and the cases discussed were therefore those which arose in that industry. Cases have been 

decided, however, in other industries, involving other enterprises in which the Board considers 

“all relevant factors’’ in determining whether a separate unit would be appropriate. Esco Corp., 

supra. See also Vitro Corp., 309 NLRB 390 (1992). 

Thus, by way of illustration, where the employer was engaged in providing health, accident, 

medical, hospital, and physicians’ reimbursement insurance, a warehouse was involved which 

served as a storage facility for various forms used in filing claims under medical insurance 

programs. The warehouse was geographically separate from any of the employer’s other 

facilities; there was different immediate supervision; 6 of the 12 employees sought were in job 

classifications unique to the warehouse; few transfers into or out of the warehouse occurred; and 

there was no bargaining history at the warehouse. A warehouse unit was found appropriate. 

California Blue Shield, 178 NLRB 716, 719–720 (1969). 

Where an insurance company operated a storage facility, located away from its main office, 

which was used as a repository for records as well as supplies and forms, and six employees 

performed the receiving, storage, and transportation duties, the Board was of the opinion that the 

employees working in the storage facility might appropriately be separately represented if sought 

on that basis. However, they were included in an overall unit since the petitioning labor 

organization sought the more comprehensive unit. Reliance Insurance Cos., 173 NLRB 985, 986 

(1969). 

In Scholastic Magazines, 192 NLRB 461 (1971), an employer who manufactures and sells 

paperback books was involved. The petitioner sought a unit limited to the warehouse and 

maintenance departments. The Board found that the employer was engaged in a single highly 

integrated process and that the employees of the processing departments and warehouse 

employees participated equally and fully in the single process of filling customer orders. 

Therefore, for this reason and because no substantial distinctions could be drawn between the 

warehouse and maintenance departments and the processing departments with respect to wages, 

level of skills, supervision, benefits, and other conditions of employment, the comprehensive unit 

was found appropriate. Cf. Garrett Supply Co., 165 NLRB 561 (1967). 
SPECIFIC UNITS AND INDUSTRIES 193

15-290 Research and Development Industry 

The Board applies a traditional community-of-interest standard in determining bargaining 

units in the research and development industry. Aerospace Corp., 331 NLRB 561 (2000). In 

doing so, it considers “the nature of the business, i.e., testing to be a significant but not a 

determinative factor.” and has rejected the contention that only facilitywide units are appropriate. 
194 SPECIFIC UNITS AND INDUSTRIES 
16. CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 

401-2525 

440-1760-9101 

Section 9(b) of the Act confers on the Board the discretion to establish the unit appropriate 

for collective bargaining and to decide whether such unit shall be the employer unit, craft unit, 

plant unit, or subdivision thereof. A craft unit is defined as: 

. . . one consisting of a distinct and homogeneous group of skilled journeymen craftsmen, 

who, together with helpers or apprentices, are primarily engaged in the performance of tasks 

which are not performed by other employees and which require the use of substantial craft 

skills and specialized tools and equipment. [Burns & Roe Services Corp., 313 NLRB 1307, 

1308 (1994).] 

With respect to craft units, Section 9(b)(2) of the Act prohibits the Board from deciding “that 

any craft unit is inappropriate for [collective-bargaining] purposes on the ground that a different 

unit has been established by a prior Board determination, unless a majority of the employees in 

the proposed craft unit votes against separate representation.” The procedures for such an election 

are at section 11091.3 of the Casehandling Manual. 

Generally, employees constituting a functionally distinct departmental grouping with a 

tradition of separate representation have been treated in a manner similar to craft groups, and the 

Board has applied craft severance principles to them as well. 

While special attention is given in this chapter to craft and departmental severance, 

particularly in the context of Section 9(b)(2) of the Act, we are also concerned with the initial

establishment of craft and departmental units, i.e., where there has been no previous history of 

collective bargaining on a more comprehensive basis. Our discussion will proceed in that order. 

16-100 Severance 

440-8325-7591 et seq. 

The interpretation of Section 9(b) of the Act has been reflected in the Board’s decisional 

policy, and changes in interpretation have resulted in policy changes. 

A policy change in this respect manifested itself in Mallinckrodt Chemical Works, 162 NLRB 

387 (1967), the ostensible purpose being to free the Board “from the restrictive effect of rigid and 

inflexible rules” in determining bargaining units. Attention was called to the need in severance 

cases of balancing the interest of the employer and the total employee complement in maintaining 

industrial stability and the resulting benefits of an historical plantwide bargaining unit as against 

the interest of a portion of such complement having an opportunity to break away from the 

historical unit by a vote for separate representation. As a result, instead of being limited by the 

former tests (as set out in American Potash Corp., 107 NLRB 1418 (1954), the Board in 

Mallinckrodt broadened its judgmental scope “to permit evaluation of all considerations relevant 

to an informed decision in this area.” 

A number of factors were spelled out in Mallinckrodt to be considered in deciding craft 

issues. A more recent Board decision discussed a number of these criteria in the context of a 

skilled maintenance unit in a health care institution. Kaiser Foundation Hospitals, 312 NLRB 933 

(1993). 

Historical Note: Under American Potash Corp., supra, severance had been granted when the 

employees sought constituted a true craft or traditional departmental group and the union which 

sought to represent them was their “traditional” representative. The only exceptions made were in 

four industries (basic steel, basic aluminum, lumber, and wet milling). These exceptions were 

designed to preserve firmly established bargaining patterns created by the degree of integration in 

the production process. 

195
196 CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 

16-110 The Mallinckrodt Criteria 

16-111 True Craft or Functionally Distinct Department 

440-1760-9133-0500 

The first questions to be decided are: Does the proposed unit consist of a distinct and 

homogeneous group of skilled journeymen craftsmen performing the functions of their craft on a 

nonrepetitive basis? See Firestone Tire Co., 223 NLRB 904 (1976). Does it consist of employees 

constituting a functionally distinct department employed in trades or occupations for which a 

tradition of separate representation exists? These requirements have always been in effect. The 

emphasis in Mallinckrodt was on avoiding the use of a “loose definition” of what constitutes a 

true craft or a traditional department. Craft units include apprentices and helpers. American 

Potash Corp., supra at 1423, and Fletcher Jones Chevrolet, 300 NLRB 875 (1990). 

In Metropolitan Opera Assn., 327 NLRB 740 (1999), a Board majority found that a group of 

choristers were not a distinct and homogenous group. 

See definition of craft in introduction to this chapter and set out in Burns & Roe, supra. See 

also Schaus Roofing, 323 NLRB 781 (1997). 

16-112 History of Collective Bargaining of Employees Sought to be Represented 

440-1760-9133-2100 

This criterion entails an evaluation of the history of collective bargaining of the employees 

sought to be represented at the plant involved, and at other plants of the employer. Special 

consideration is required in deciding whether the existing patterns of bargaining are productive of 

stability in labor relations, and whether such stability will be unduly disrupted by the destruction 

of the existing patterns of representation. Inquiry is also made into the history and pattern of 

collective bargaining in the industry involved. See, e.g., Firestone Tire Co., supra. See also 

Kaiser Foundation Hospitals, supra and Metropolitan Opera, supra. 

16-113 Separate Identity 

440-1760-9133-7800 

To what extent have the employees in the proposed unit established and maintained their 

separate identity during the period of inclusion in the broader unit? Also relevant is the nature of 

their participation, or lack of it, in the establishment and maintenance of the existing pattern of 

representation, and the prior opportunities, if any, afforded them to obtain separate representation. 

See, e.g., Beaunit Corp., 224 NLRB 1502 (1976). 

16-114 Degree of Integration of the Employer’s Production Processes 

440-1760-9133-8300 

The degree of integration of the employer’s processes is evaluated, including the extent to 

which the continued normal operation of the production processes is dependent on the 

performance of the assigned functions of the employees in the proposed unit. Integration of 

operations requiring some crossover between craft and noncraft employees, or between 

employees of different crafts, is permissible in a craft situation. See E. I. du Pont & Co., 162 

NLRB 413 (1966). See also Burns & Roe, supra. 

16-115 Qualifications of the Union Seeking Severance 

440-1760-9133-1200 

A subject of inquiry relates to the qualifications of the union seeking to “carve out” a separate 

unit in the face of a broader bargaining history. These, in turn, depend on its experience in 

representing employees such as those involved in the severance proceeding; while no longer a 

sine qua non, the fact that it may or may not have devoted itself to representing the special 
CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 197

interests of a particular craft or traditional departmental group of employees nonetheless bears 

consideration. See Beaunit Corp., supra at 1505. See also Kaiser Foundation Hospitals, supra. 

The former requirement that craft severance petitions be filed by traditional representatives of 

the employees was noted by the Board in an early case declining to permit craft severance in a 

decertification case. Campbell Soup Co., 111 NLRB 234 (1955). 

The above factors, as already indicated, should not be regarded as an inclusive or exclusive 

listing of all the criteria involved in making unit determinations in severance cases. As the Board 

pointed out in Mallinckrodt these are examples of the pertinent areas of inquiry and are intended 

to illustrate the fact that “determinations will be made on a case-by-case basis,” and only after 

weighing all relevant factors. “In severance cases such as this we do not apply automatic rules but 

rather evaluate all relevant considerations.” Kimberly-Clark Corp., 197 NLRB 1172 (1972). 

16-120 Application of Severance Principles 

440-8325-7591 

440-8325-7596 

440-8325-7562 

A petitioning union and an intervenor sought a unit of tool-and-die makers, allied toolroom 

craftsmen, and their apprentices. The Board found that the employees sought to be severed shared 

a substantial community of interest with other employees in the existing plantwide unit; although 

they possessed special skills, their work was not confined to tasks requiring the exercise of such 

skills; there was an overlap in actual work assignments between employees within and outside the 

proposed unit; and the toolroom employees, even when engaged in their specialized tasks, 

performed work that was an integral part of the production process. On this basis, including a 

long bargaining history, severance was denied. Holmberg, Inc., 162 NLRB 407 (1967). 

Where, among other things, the functional coherence and community of interest of toolroom 

and production employees had long been recognized, as reflected in part by existing job posting 

and seniority practices and in a 20-year bargaining history, and no attempt had been made for 

separate representation or recognition, severance was denied. Universal Form Clamp Co., 163 

NLRB 184 (1967). 

In another toolroom severance case, the petition for the requested unit was denied on the 

basis of the functional interrelationship of toolroom employees with other phases of the 

employer’s production operation; frequent contact and common interest with production 

employees and with other skilled employees; a 12-year bargaining history; and “the questionable 

qualifications of the Petitioner as a specialist in craft representation.” American Bosch Arma 

Corp., 163 NLRB 650 (1967). A machinist group was not entitled to severance where, in the face 

of a long bargaining history, it was found that the employees in the group were primarily engaged 

in production work under the same supervision as the production employees, and there was no 

showing that “any of their alleged special interests have been prejudiced by their inclusion in the 

existing unit.” Paris Mfg. Co., 163 NLRB 964 (1967). 

The factor of integrated production processes was significant in the denial of severance to 

proposed separate units of electricians and instrumentmen. Thus, the finding that the necessity for 

continuity in the production processes and the high degree to which these employees were 

integrated with these processes militated heavily against severance from an established plantwide 

unit. Alton Box Board Co., 164 NLRB 919 (1967). 

Although in a decision prior to Mallinckrodt a severance election had been directed, the 

contention that this decision constituted binding precedent was rejected on the ground that the 

policy which existed at that time no longer prevailed and that all relevant factors must now be 

considered. Allied Chemical Corp., 165 NLRB 235 (1967). 

Elections in separate units of maintenance mechanics, auto mechanics, and instrumentmen, as 

well as in a unit of production and maintenance employees, were sought in a case where the 
198 CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 

employees in the first three units had been continuously represented as part of the production and 

maintenance unit. One of the reasons, among others, for denying severance elections was the fact 

that, under the bargaining contracts covering the plantwide unit, all personnel enjoy common 

seniority rights, allowing auto mechanics, for example, to “bump” into production jobs in the 

event of layoff. Bunker Hill Co., 165 NLRB 730 (1967). 

Craft status, the petitioner's qualifications as representative, coordination in the production 

process, bargaining history, and industry and area bargaining—all these factors seriatim—were 

considered in a case involving severance requests for units of maintenance electricians and 

instrument maintenance employees. Both groups were found to consist of craftsmen and the 

petitioning union qualified as the traditional representative. However, coordination of the 

requested employees in the production processes was found to exist, and the bargaining history at 

the plant and in the industry and area favored the plantwide unit. A contention by the petitioner 

that the incumbent union had not “provided adequate representation for the special interests of the 

craftsmen” was rejected on the basis of the evidence. Allen-Bradley Co., 168 NLRB 15 (1968). 

Adequacy of representation was treated as a factor in cases involving toolroom employees in 

which severance was denied. Trico Products Corp., 169 NLRB 287 (1968). See also Square D 

Co., 169 NLRB 1040 (1968). In another case where adequacy of representation was an issue, viz., 

the question revolving around grievance handling, it was concluded that the grievances were 

relatively minor compared to the total picture of representation and that the employees sought to 

be severed had not maintained a separate identity for bargaining purposes, “but over the years 

have acquiesced in the established bargaining pattern, have participated therein, and have 

received the benefits of that participation.” Radio Corp. of America, 173 NLRB 440 (1969). See 

Beaunit Corp., supra, petitioning union was newly formed and the Board considered that as one 

factor in rejecting severance. 

Mailing room employees were found not to possess the essential attributes of craftsmen and 

therefore did not meet the tests for severance from an established bargaining unit. Republican 

Co., 169 NLRB 1146 (1968). Composing room employees who possessed some skills, but such 

skills were not equal to those in the commercial printing industry generally, were for this reason, 

among others, denied severance. International Tag & Business Forms Co., 170 NLRB 35 (1968). 

Powerhouse employees were denied severance under the Mallinckrodt policy on the basis, 

inter alia, of a long and stable bargaining history at the terminal in question and the similar 

bargaining practice at like terminals of the employer involved and other major oil companies, and 

the high degree of integration existing between the powerhouse function and the storage and 

distribution operations of the terminal. It was pointed out, however, that this did not imply that 

units of powerhouse employees were inherently or presumptively inappropriate and could never 

be severed; the circumstances in each case would be examined. Mobil Oil Corp., 169 NLRB 259 

(1968). 

In Firestone Tire Co., supra, the Board affirmed the dismissal of a petition seeking to sever a 

group of “skilled tradesmen” from an overall production and maintenance unit. The Regional 

Director denied severance based on the heterogeneous nature of the unit sought, the absence of 

bargaining history, and the high degree of integration of operation. 

On the other hand, in a case involving toolroom employees, where such employees were 

found to constitute an identifiable departmental group engaged in the tool-and-die making craft, 

who had retained their separate identity, the Board noting that contract negotiations had resulted 

in a 9-cent-per-hour increase for all production and maintenance employees but the contract was 

“conspicuous by the absence of any reference to toolmakers as within the contract coverage,” 

severance was granted. Buddy L. Corp., 167 NLRB 808, 809–810 (1967). The Board stated: 

. . . to deny separate representation where to do so advances the cause of stability little, if at 

all, might also carry the seeds of instability. We think that it might do so in the present 

situation, and, we also think that to deny separate representation in the present case would be 
CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 199

contrary to the policies of the Act as it would deny employees the freedom of choice 

Congress considered as equally essential; in proper circumstances, to achieve the peace and 

stability necessary if our commerce is to flow without interruption. 

In like vein, the Board granted a craft severance election to a group of toolroom employees, 

holding that they constituted an identifiable group of highly skilled employees who, 

notwithstanding their inclusion for 13 years in the production and maintenance unit, had 

maintained their separate identity and had not participated actively in the affairs of the intervenor 

or utilized the contractual grievance procedure. “On this record,” said the Board, “we cannot 

conclude that the separate community of interests which the toolroom employees enjoy by reason 

of their skills and training has been irrevocably submerged in the broader community of interest 

which they share with other employees.” Eaton Yale & Towne, Inc., 191 NLRB 217, 218 (1971). 

See also Jay Kay Metal Specialties Corp., 163 NLRB 719 (1967). 

A severance election was granted to a group of tool-and-die makers and machinists. Among 

the reasons given for granting them a self-determination election, in addition to noting that they 

constituted “a homogeneous, identifiable, traditional, departmental group with a nucleus of craft 

tool and die makers and machinists who are engaged in the skills of their trade,” was the fact that 

they had retained their identity as a distinct group during their inclusion in the broader unit. 

Mason & Hanger-Silas Mason Co., 180 NLRB 467 (1970). Compare Union Carbide Corp., 205 

NLRB 794 (1973). 

In La-Z-Boy Chair Co., 235 NLRB 77, 78 fn. 5 (1978), the Board distinguished its no 

severance decision there from its holding in Buddy L and Eaton Yale & Towne, supra, stating, 

“the lack of showing here that the Employer contracts out any diemaking or repair work clearly 

distinguished this case from Eaton Yale and Buddy L.” 

A group of powerhouse employees was granted severance from a production and 

maintenance unit on the basis of special circumstances, including a relatively short bargaining 

history on a comprehensive basis and the fact that separate representation of employees only 

recently added to the existing unit could not prove unduly disruptive. Towmotor Corp., 187 

NLRB 1027 (1971). 

Truckdrivers were accorded a self-determination election as a “homogeneous, functionally 

distinct group such as the Board has traditionally accorded the right of self-determination, 

notwithstanding a history of bargaining on a broader basis.” The fact that the petitioning union 

had historically represented truckdrivers was also taken into consideration. Wright City Display 

Mfg. Co., 183 NLRB 881 (1970). See also Downingtown Paper Co., 192 NLRB 310 (1971), but 

compare Olinkraft, Inc., 179 NLRB 414 (1969), and Dura-Containers, 164 NLRB 293 (1967). 

Bakers were accorded a severance election. The Board based its decision on the fact that they 

were “an identifiable group unit of craft bakers who are engaged in the skills of their trade and 

who perform functions that are different from and not integrated with those of other in-store 

employees.” It added that the bargaining history of their inclusion in the broader unit did not 

militate against their severance, “particularly in view of the recent changes in the Employer’s 

method of baking and the changed job requirements.” Also bearing on this determination was the 

inconclusive history and pattern of bargaining in the industry. Safeway Stores, 178 NLRB 412 

(1969). Compare Jordan Marsh Co., 174 NLRB 1265 (1969). 

For other cases involving the craft severance issue, see Walker Boat Yard, 273 NLRB 309 

(1984) (no severance of diesel repair shop in boatyard unit); Supermercados Pueblo, 203 NLRB 

629 (1973) (meat department and delicatessen); Animated Film Producers Assn., 200 NLRB 473 

(1973) (animated “Storymen”); Kimberly-Clark Corp., supra (tradesmen and warehousers); 

Cameron Iron Works, 195 NLRB 797 (1972) (die sinkers); Lone Star Industries, 193 NLRB 80 

(1971) (marine department employees); ASG Industries, 190 NLRB 557 (1971) (electricians and 

powerhouse employees); Dixie-Portland Flour Mills, 186 NLRB 681 (1970) (drivers); Goodyear 
200 CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 

Tire Co., 165 NLRB 188 (1967) (electricians); Aerojet-General Corp., 163 NLRB 890 (1967) 

(tool-and-die makers); and North American Aviation, 162 NLRB 1267 (1967) (welders). 

See Burns & Roe Services Corp., 313 NLRB 1307 (1994), a craft issue case containing an 

excellent discussion of other electrician cases. 

16-130 Severance of Maintenance Departments 

440-8325-7510 

Employees comprising a maintenance department do not constitute a homogeneous group of 

skilled craftsmen to whom craft severance is customarily granted. Although the Board had in the 

past permitted separate representation of maintenance employees in the absence of a prior 

collective-bargaining history, it has been the Board’s established policy, before Mallinckrodt as 

well as after, to decline to sever a group of maintenance employees from an existing production 

and maintenance unit in the face of a substantial collective-bargaining history on a plantwide 

basis. Armstrong Cork Co., 80 NLRB 1328, 1329 (1949). Union Steam Pump Co., 118 NLRB 

689, 693 (1957); and Seville-Sea Isle Hotel Corp., 125 NLRB 299, 300 (1960). 

Thus, a petition seeking to sever a unit of all maintenance employees from an historic 

production and maintenance unit was denied. General Foods Corp., 166 NLRB 1032 (1967). The 

Board in dismissing a petition for severance of a unit of maintenance employees characterized the 

proposed unit as a heterogeneous group of diversified workers who perform routine maintenance 

functions at locations all over the plant. Moloney Electric Co., 169 NLRB 464 (1968). Similarly, 

maintenance employees were not severed from an overall production and maintenance unit. Wah 

Chang Albany Corp., 171 NLRB 385 (1968). 

In these cases, the Board, despite the policy which was in existence before Mallinckrodt, 

referred to the factors described in that decision. There was no indication, however, that a 

different result would have been reached in the absence of these factors. 

16-140 Construction Industry 

For a discussion of craft units in construction, see chapter 15. 

16-200 Initial Establishment of Craft or Departmental Unit 

355-2200 

420-1200 

440-1760-1000 

440-1760-9133 et seq. 

Up to this point, we described the application of Board law to petitions seeking severance 

from more comprehensive units of craft or departmental groups, including maintenance 

departments. We turn now to the initial establishment of craft or departmental groups. 

An obvious distinction exists between the two situations, and the cases clearly point up the 

dichotomy between the two. 

With respect to craft or departmental units, the general rule is: Where no bargaining history 

on a more comprehensive basis exists, a craft or traditional departmental group having a separate 

identity of functions, skills, and supervision, exercising craft skills or having a craft nucleus, is 

generally appropriate. See, for example, E. I. du Pont & Co., 162 NLRB 413 (1966). See also 

Mirage Casino-Hotel, 338 NLRB 529 (2002); and E. I. du Pont & Co., 192 NLRB 1019 (1971). 

In Burns & Roe, supra at 1308, the Board described the test: 

In determining whether a petitioned-for group of employees constitutes a separate craft unit, 

the Board looks at whether the petitioned-for employees participate in a formal training or 

apprenticeship program; whether the work is functionally integrated with the work of the 

excluded employees; whether the duties of the petitoned-for employees overlap with the 

duties of the excluded employees; whether the employer assigns work according to need 
CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 201

rather than on craft or jurisdictional lines; and whether the petitioned-for employees share 

common interests with other employees, including wages, benefits, and cross-training. 

With respect to maintenance departments, the general rule is: Where no bargaining history on 

a broader basis exists, and the maintenance employees are readily identifiable as a group whose 

similarity of functions and skills create a community of interest such as would warrant separate 

representation, an election is directed in such unit. If a production and maintenance unit is also 

sought, a self-determination election is directed in voting groups of (a) maintenance employees 

and (b) production employees. American Cyanamid Co., 131 NLRB 909, 911–912 (1961). 

In that case, the Board stated: 

The Board must hold fast to the objectives of the statute using an empirical approach to 

adjust its decisions to the evolving realities of industrial progress and the reflection of that 

change in organizations of employees. To be effective for that purpose, each unit 

determination must have a direct relevancy to the circumstances within which collective 

bargaining is to take place. While many factors may be common to most situations, in an 

evolving industrial complex the effect of any one factor, and therefore the weight to be given 

it in making the unit determination, will vary from industry to industry and from plant to 

plant. We are therefore convinced that collective-bargaining units must be based upon all the 

relevant evidence in each individual case. Thus we shall continue to examine on a case-bycase basis the appropriateness of separate maintenance department units, fully cognizant that 

homogeneity, cohesiveness, and other factors of separate identity are being affected by 

automation and technological changes and other forms of industrial advancement. 

In Ore-Ida Foods, 313 NLRB 1016 (1994), the Board summarized the cases involving initial 

establishment of maintenance units. See also Macy’s West, Inc., 327 NLRB 1222 (1999). The 

Board found a separate maintenance unit appropriate in the following cases: Lawson Mardon 

U.S.A., 332 NLRB 1282 (2000); Yuengling Brewery Co. of Tampa, 333 NLRB 893 (2001); and 

Capri Sun, Inc., 330 NLRB 1124 (2000). 

It should be noted that in U.S. Plywood-Champion Papers, 174 NLRB 292 (1969), the Board 

dismissed a petition for a separate departmental maintenance unit and directed an election in the 

overall production and maintenance unit. It noted that in American Cyanamid it “did not hold that 

every maintenance department unit must automatically be found to be an appropriate unit for 

collective bargaining purposes, but only that such unit may be appropriate where the record 

establishes that maintenance employees are a separately identifiable group performing similar 

functions which are separate from production and having a community of interest such as would 

warrant separate representation.” Distinguishing Crown Simpson Pulp Co., 163 NLRB 796 

(1967), the Board found on its evaluation of all relevant factors that the proposed maintenance 

department unit was not composed of a distinct and homogeneous group of employees with 

interests separate from those of other employees. It was therefore inappropriate as a bargaining 

unit. See also F. & M. Schafer Brewing Co., 198 NLRB 323 (1972); and Franklin Mint Corp., 

254 NLRB 714 (1981). 

Integration of operations and functions was posed as a factor in a case involving no prior 

bargaining history and considered together with all other relevant factors. Nonetheless, separate 

groups of craft employees were found entitled to self-determination elections. In arriving at this 

decision, the Board pointed out that this did not foreclose the possibility that, in other 

circumstances, the integration of operations and functions may be such as to warrant a finding 

that only an overall unit is appropriate. It added: “Nor do we express an opinion as to how we 

would rule in a case similar to this one, but where, however, there is a history of bargaining on a 

production and maintenance basis and severance of craft units is sought.” Union Carbide Corp., 

156 NLRB 634 fn. 7 (1966) . 

In another case without a prior bargaining history, however, it was concluded that 

maintenance electricians were essentially no more than specialized workmen with limited skills 
202 CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 

and training, adapted to the particular processes of the employer’s operations, and therefore were 

not entitled to separate representation on a craft unit basis. Timber Products Co., 164 NLRB 1060 

(1967). The Board there noted that the history of bargaining in the lumber industry has been “wall 

to wall units.” The Board appears to have varied from this history. See Willamette Industries v. 

NLRB, 144 F.3d 877 (D.C. Cir. 1998), denying enforcement to Board certification. Similarly, 

even absent a bargaining history, a group of “setup and operator-setup employees” was held not 

to constitute a craft unit of printing pressmen because they were “not predominantly engaged in 

such function.” Kimball Systems, 164 NLRB 290 (1967). See also Monsanto Co., 172 NLRB 

1461 (1968), and Proctor & Gamble Paper Products Co., 251 NLRB 492 (1980). 

On the other hand, maintenance electricians were found to possess the traditional skills of 

their craft. The only factor weighing against the separate craft group unit was the highly 

integrated nature of the employer’s production process. But since this did not obliterate the lines 

of separate craft identity, it was not, in itself, sufficient to preclude the formation of a separate 

craft unit. There was no prior bargaining history at the plant. Anheuser-Busch, Inc., 170 NLRB 46 

(1968). Note: in this case the Board used the Mallinckrodt tests in its determinations, advising, 

however, that such were “not controlling” in a nonseverance case. 

In Buckhorn, Inc., 343 NLRB 201 (2004), the Board rejected a petition for a separate 

maintenance unit at a plastic container manufacturer. In doing so, the Board relied on a high 

degree of functional integration at the plant, the absence of a skills disparity, evidence of 

permanent transfers between the maintenance and production employees, and the absence of 

common surpervision among the maintenance employees. Accord: TDK Ferrites Corp., 342 

NLRB 1006 (2004). 

The Board has held that automobile mechanics can constitute a group of craft employees and 

be represented in a unit separate and apart from other service department employees. Dodge City 

of Wauwatosa, 282 NLRB 459 (1986); and Fletcher Jones Chevrolet, 300 NLRB 875 (1990). See 

also Phoenician, 308 NLRB 826 (1992), involving a group of golf course maintenance employees 

who were included in a unit with landscape employees using traditional community of interest 

criteria. In doing so, the Board found that neither of the groups had special skills. 

In Mirage Casino-Hotel, 338 NLRB 529 (2002), a panel majority directed an election in a 

unit of carpenters and upholsterers at a gaming hotel/casino. In doing so, that Board noted that 

the carpenters performed craft work, and together with the upholsterers, were separately 

supervised, and had limited interchange with other engineering department employees. The Board 

included the upholsterers with the carpenters, noting such a unit was an area practice. 

In Turner Industries Group, LLC, 349 NLRB 428 (2007), the Board considered the 

bargaining unit history in a multicraft unit with the predecessor employer but decided that there 

was a strong community of interest with other excluded employees and directed their inclusion in 

the multicraft unit. This case is also of interest because the Board found it unnecessary to decide 

whether the employer was primarily engaged in the building and construction industry for 

purposes of determining an appropriate eligibility formula. 

16-300 Skilled Maintenance-Health Care 

Skilled maintenance units are one of the appropriate units under the Health Care Rules. See 

section 15-170. See Jewish Hospital of St. Louis, 305 NLRB 955 (1991). 

In University of Pittsburgh Medical Center, 313 NLRB 1341 (1994), the Board found 

telecommunication specialists to be skilled maintenance employees. It also rejected a contention 

that a skilled maintenance unit should become part of a larger unit. The test in such a case is one 

of traditional community of interest and in this case the Board concluded that the unit maintained 

itself as a distinct entity notwithstanding mergers and consolidations. 

In Toledo Hospital, 312 NLRB 652 (1993), the Board dealt with a number of classifications 

that are included in a skilled maintenance unit including biomedical technicians. See also San 

Juan Medical Center, 307 NLRB 117 (1992). In another case, the Board excluded 
CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 203

groundskeepers from these units and decided a number of other skilled maintenance placement 

issues. Ingalls Hospital, 309 NLRB 393 (1992). See also St. Luke’s Health Care Assn., 312 

NLRB 139 (1993). And in Silver Cross Hospital, 350 NLRB No. 11 (2007), the Board found that 

the computer operators did not have the skills or duties common to skilled maintenance employee 

classifications nor were they helpers or assistants who might qualify for inclusion in such a unit. 

In Hebrew Home & Hospital, 311 NLRB 1400 (1993), the Board affirmed the decision of an 

Acting Regional Director approving a separate skilled maintenance unit at a nursing home. 

In Kaiser Foundation Hospitals, 312 NLRB 933 (1993), the Board denied craft severance of 

a skilled maintenance unit by applying Mallinckrodt principles (see sec. 15–170, supra). 
204 CRAFT AND TRADITIONAL DEPARTMENTAL UNITS 
17. STATUTORY EXCLUSIONS 

In defining “employees,” Section 2(3) of the Act specifically excludes agricultural laborers, 

domestic service employees, individuals employed by their parent or spouse, independent 

contractors, supervisors, individuals employed by employers subject to the Railway Labor Act, 

and employees of any other person who is not an employer within the meaning of the statutory 

definition. 

We consider these statutory exclusions in the order in which they appear in Section 2(3). 

17-100 Agricultural Employees 

177-2484-1200 et seq. 

460-7550-1200 

Annually, since July 1946, Congress has added to the Board’s appropriation a rider which in 

effect directs the Board to be guided by the definition set forth in Section 3(f) of the Fair Labor 

Standards Act in determining whether an employee is an agricultural laborer within the meaning 

of Section 2(3) of the National Labor Relations Act. 

The Board has frequently stated that its policy is to consider, whenever possible, the 

interpretation of Section 3(f) adopted by the Department of Labor, which is charged with the 

responsibility for administering the Fair Labor Standards Act. See, for example, Bayside

Enterprises v. NLRB, 429 U.S. 298 (1977); Davis Grain Corp., 203 NLRB 319 (1973); Jack 

Frost, Inc., 201 NLRB 659 (1973); CPA Trucking Agency, 185 NLRB 452 (1970); D’Arrigo

Bros. Co. of California, 171 NLRB 22 (1968); Samuel B. Gass, 154 NLRB 728 (1965); Bodine

Produce Co., 147 NLRB 832 (1964); and Imperial Garden Growers, 91 NLRB 1034 (1950). 

Thus, in Jack Frost, supra, the Board referred to Section 3(f) of the Fair Labor Standards Act 

which reads, in pertinent part, as follows: 

[A]griculture includes farming in all its branches and among other things includes . . . the 

production, cultivation, growing and harvesting of any agricultural . . . commodities . . . and 

any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with 

such farming operations, including preparation for market, delivery to storage or to market 

or to carriers for transportation to market. 

As the truckdrivers and egg processing plant employees involved in this case were not engaged in 

direct farming operations of the type enumerated in the primary definition of agriculture, the 

question was whether they were engaged in activities included in the secondary definition of that 

term (see Farmers Reservoir Irrigation Co. v. McComb, Wage & Hour Administrator, 337 U.S. 

755, 762 (1949)). The Board then relied on a Labor Department Interpretive Bulletin (see 29 CFR 

§ 780.135), indicating that when processors enter into contractual agreements with independent 

farmers whereby the farmers agree to raise poultry to marketable size and the processor supplies 

the baby chicks, furnishes the required feed, and retains title to the chickens until they are sold, 

the activities of the independent farmers and their employees in raising the poultry are clearly 

exempt, but the activities of the processors are not considered “raising of poultry” and their 

employees are therefore not exempt on that ground. The Board’s position was affirmed by the 

Supreme Court in Bayside Enterprises, supra. See also Holly Farms Corp. v. NLRB, 116 S.Ct. 

1396 (1996). 

The burden of proving that individuals are exempt as agricultural laborers rests on the party 

asserting the exemption. Agrigeneral L.P., 325 NLRB 972 (1998). And the question of employee 

status is not decided on an employerwide basis, but on a classification by classification analysis. 

Id. at fn. 1. 

A thorough discussion of several of the criteria used by the Board in determining whether or 

not employees are “agricultural laborers” may be found in Bodine Produce Co., supra. These 

depend in major measure on the nature of the employer’s business. 

205
206 STATUTORY EXCLUSIONS 

One criterion is whether the operation is an established part of agriculture, is subordinate to 

the farming aspect involved, and does not amount to an independent business. See Labor 

Department Interpretive Bulletin, 29 CFR § 780; Jack Frost, Inc., supra, and Bayside Enterprises,

supra. 

Where the employer produced and supplied the feed which enabled the production of the 

poultry and then processed and marketed the product, with the agricultural function of tending 

and feeding the live birds performed by the independent growers intervening in the chain, the 

agricultural phase of the entire operation was an incident of the employer’s nonagricultural 

activities rather than the converse. CPA Trucking Agency, supra. See also Draper Valley Farms, 

307 NLRB 1440 (1992), finding that chicken catchers are not agricultural when working on the 

farms of independent growers. The Supreme Court upheld as reasonable, the Board’s conclusion 

that “livehaul crews” are employees. The Court found that the work of these crews was tied to the 

employers processing operations rather than incidental to farming operations. Holly Farms Corp. 

v. NLRB, supra. 

Another criterion is whether the employer confines the operation in question to his own 

produce. 

Where the employer was engaged in the production, processing, and wholesaling of eggs, had 

been purchasing about half of its eggs from outside sources, and could not substantiate his claim 

that new production facilities would be able to replace the outside sources, the Board could not 

find that the employer came within the terms of the agricultural exemption. Cherry Lane Farms, 

190 NLRB 299 (1971). See also CPA Trucking Agency, supra; D’Arrigo Bros. Co. of California, 

supra. More recently, the Board has declined to set a standard based on the percentage coming 

from outside sources. Rather the Board will assert jurisdiction “if any amount of farm 

commodities other than those of the employer-farmer are regularly handled by the employees in 

question.” Camsco Produce Co., 297 NLRB 905 (1990). See also Campbells Fresh, 298 NLRB 

432 (1990); Cal-Maine Farms, 307 NLRB 450 (1992); and Agrigeneral L.P., supra. 

A different test applies when considering whether workers who perform agricultural and 

nonagricultural work are exempted from the definition of “employee.” In these cases, the test is 

substantiality, not regularity. Thus, where cutter packers spent 50 percent of their time 

performing nonagricultural work, they were considered to be employees because the amount of 

nonagricultural work was substantial. Produce Magic, Inc., 311 NLRB 1277 (1993). But in 

Pictsweet Mushroom Form, 329 NLRB 852 (1999), the Board denied review of a Regional 

Director finding that mushroom slicers were agricultural employees. In doing so, the Regional 

Director relied on the fact that all the other workers were agricultural laborers, that the slicing did 

not essentially change the natural state of the mushroom and that the slicers were only a small 

part of the employers operation. 

Other cases holding that employees were not exempt from the coverage of the Act: Mario

Saikhon, Inc., 278 NLRB 1289 (1986) (field packing employees); Davis Grain Corp., 203 NLRB 

319 (1973) (grain elevator employees); Batley-Janss Enterprises, 195 NLRB 310 (1972) (drivers 

of freshly cut alfalfa); and John Bagwell Farms, 192 NLRB 547 (1971) (feed mill employees). 

A Fifth Circuit decision rejected a distinction between workers on large mechanized farms 

and those employed on family farms. The court held that both groups are excluded from the Act’s 

coverage because the agricultural exemption “is not measured by the magnitude of [the farmer’s] 

planting nor in the prolificacy of his harvest.” Food & Commercial Workers Local 300 v. 

McCulloch, 428 F.2d 396, 399 (5th Cir. 1970). 

Adverting again to the legislative rider to the Board’s appropriation act, mention should be 

made of the fact that annually, since 1954, Congress has added in the definition of agricultural 

laborers, and, thus, exempts from the Board’s jurisdiction “employees engaged in the 

maintenance and operation of ditches, canals, reservoirs, and waterways when maintained or 

operated on a mutual, nonprofit basis and at least 95 percent of the water stored or supplied 

thereby is used for farming purposes.” 
STATUTORY EXCLUSIONS 207

Thus, where employees were found by the Board to have engaged solely in the functions here 

described and more than 95 percent of the water stored or supplied by their employer was used 

for farming purposes, the Board found that it was precluded from asserting jurisdiction by reason, 

inter alia, of the fact that these employees were agricultural employees as defined in the rider to 

the Board’s current appropriation act. Minidoka Irrigation District, 175 NLRB 880 (1969). See 

also Truckee-Carson Irrigation District, 164 NLRB 1176 (1967); and Sutter Mutual Water Co., 

160 NLRB 1139 (1966). 

Similarly, employees engaged in the revegetation of mined land as a part of a reclamation 

project, are exempt from Board jurisdiction. Drummond Coal Co., 249 NLRB 1017 (1980). 

17-200 Domestics 

177-2484-2500 

Individuals who are in the domestic service of any family or person at his home are excluded 

from the coverage of the Act. See the definition of “employees” in Section 2(3). Individuals 

employed by a business rather than a family are employees. The Board’s “focus is on the 

principals to whom the employer-employee relationship in fact runs and not merely to the 

undisputely ‘domestic’ nature of the services rendered.” Ankh Services, 243 NLRB 478, 480 

(1979). See also NLRB v. Imperial House Condominiums, 831 F.2d 999 (11th Cir. 1987). 

17-300 Individuals Employed by Their Parent or Spouse 

177-2484-3700 

The problems encountered by the Board under this heading go beyond problems with the 

statutory language. The question is in some cases one of Board policy underlying the unit 

treatment of “relatives of management” when corporate ownership is involved. This is treated 

specifically in section 19-300, infra. 

17-400 Independent Contractors 

177-2414 

177-2484-5000 

460-7550-6200 

Section 2(3) of the Act excludes from the definition of “employee,” as spelled out in that 

section, “any individual having the status of an independent contractor.” 

In meeting this provision, Congress did not define the status, but intended that in each case 

the issue should be determined by the application of general agency principles. NLRB v. United 

Insurance Co., 390 U.S. 254 (1968). The party asserting independent contractor status bear the 

burden of establishing that status. Community Bus Lines, 341 NLRB 474 (2004). 

Under agency principles, each case is determined on its own facts. Frito-Lay, Inc. v. NLRB, 

385 F.2d 180 (7th Cir. 1967). 

Restatement 2d, Agency § 220(2), sets out the following factors for determining whether one 

acting for another is a servant or an independent contractor: 

(a) the extent of control which . . . the master may exercise over the details of work; 

(b) whether or not the one employed is engaged in a distinct occupation or business; 

(c) the kind of occupation, with reference to whether, in the locality, the work is usually 

 done under the direction of the employer or by a specialist without supervision; 

(d) the skill required in the . . . occupation; 

(e) whether the employer or top workman supplies the instrumentalities, tools, and the place 

 of work for the person doing the work; 

(f) the length of time for which the person is employed; 

(g) the method of payment, whether by the time or by the job; 

(h) whether or not the work is part of the regular business of the employer; 
208 STATUTORY EXCLUSIONS 

(i) whether or not the parties believe they are creating the relation of master and servant; and 

(j) whether the principal is or is not in business. 

With respect to item (c) above—Community Custom—see Amerihealth Inc./Amerihealth 

HMO, 329 NLRB 870 (1999), holding physicians to be independent contractors. 

The major principle, regularly enunciated by the Board and the courts in this phase of the 

law, is that the appropriate test to apply in determining whether certain individuals are 

independent contractors (and not under the Act) or “employees” (and therefore under the Act) is 

the common law of agency. NLRB v. United Insurance Co., supra; Ace Doran Hauling Co. v. 

NLRB, 462 F.2d 190 (6th Cir. 1972); Gary Enterprises, 300 NLRB 1111 (1990); Portage

Transfer Co., 204 NLRB 787 (1973); and Associated General Contractors, 201 NLRB 311 

(1973). 

Under this test, an employer-employee relationship exists when the employer reserves the 

right to control not only the ends to be achieved, but also the means to be used in achieving such 

ends. See for example Lakes Pilots Assn., 320 NLRB 168 (1995). On the other hand, when 

control is reserved only as to the result sought, an independent contractor relationship exists. Gold

Medal Baking Co., 199 NLRB 895 (1972). 

The Board does not consider requirements imposed by the government to constitute employer 

control; it is considered government control, Air Transit, 271 NLRB 1108, 1110 (1984), and Elite 

Limousine Plus, 324 NLRB 992 (1997). 

In Standard Oil Co., 230 NLRB 967, 968 (1977), the Board described the test: 

Among factors considered significant at common law in connection with the “right to 

control” test in determining whether an employment relationship exists are (1) whether 

individuals perform functions that are an essential part of the Company’s normal operation 

or operate an independent business; (2) whether they have permanent working arrangement 

with the Company which will ordinarily continue as long as performance is satisfactory; (3) 

whether they do business in the Company’s name with assistance and guidance from the 

Company’s personnel and ordinarily sell only the Company’s products; (4) whether the 

agreement which contains the terms and conditions under which they operate is promulgated 

and changed unilaterally by the Company; (5) whether they account to the Company for the 

funds they collect under a regular reporting procedure prescribed by the Company; (6) 

whether particular skills are required for the operations subject to the contract; (7) whether 

they have proprietary interest in the work in which they are engaged; and, (8) whether they 

have the opportunity to make decisions which involve risks taken by the independent 

businessman which may result in profit or loss. 

The Board does not regard as determinative the fact that the written agreement defines the 

relationship as one of “independent contractor” (National Freight, 153 NLRB 1536 (1965), and 

Big East Conference, 282 NLRB 335, 345 (1986)); or that the employer does not make payroll 

deductions and the drivers pay their own social security and other taxes (Miller Road Dairy, 135 

NLRB 217, 220 (1962)); or that the drivers are free to solicit their own passengers in addition to 

complying with the employer’s dispatch orders, or that the employer does not give the drivers 

written driving instructions (Southern Cab Corp., 159 NLRB 248 fn. 4 (1966)); and Diamond

Cab, 164 NLRB 859 (1967)). In BKN, Inc., 333 NLRB 143 (2001), the Board found the freelance 

writers, designers and artists for a television production company to be employees noting 

extensive supervision by that company. 

In any analysis of the cases presenting independent contractor issues, once the general rule 

has been stated, its application can only be discussed in empiric terms for, as the Seventh Circuit, 

among others, has said, each case must be determined on its own facts (Frito-Lay, Inc. v. NLRB, 

supra at 188). In these circumstances, several illustrative cases will be considered here in the light 

of the factual content in which they were decided. It may be helpful to divide our examples along 
STATUTORY EXCLUSIONS 209

the more typical industry lines. As the independent contractor issue arises with some degree of 

frequency in the trucking industry, we shall begin with that industry. 

Before doing so, note that the Board held oral argument on two independent contractor cases 

and then found the pickup and delivery drivers in Roadway Package System, 326 NLRB 842 

(1998), to be employees and the customer delivery drivers to be independent contractors in DialA-Mattress Operating Corp., 326 NLRB 884 (1998). In Argix Direct, Inc., 343 NLRB 1017 

(2004), the Board found independent contractor status in a unit of truckdrivers on facts similar to 

Dial-A-Mattress. 

17-410 Trucking Industry 

177-2484-5067 

The trucking industry has generated a large number of cases presenting the independent 

contractor issue. Because, as indicated, the determinations are so fact-based, little purpose is 

served by summarizing the facts of particular cases. Rather, we have listed below a series of cases 

presenting independent contractor issues with different results. Among the factors considered by 

the Board in reaching its decisions are: (1) right to reject loads; (2) right to perform hauling for 

other carriers; (3) right to determine work schedules; (4) obligations to pay for fuel and 

maintenance; and (5) requirements to run predetermined routes. 

Cases Finding Independent Contractor Status 

– Central Transport, Inc., 299 NLRB 5 (1990). 

– Precision Bulk Transport, 279 NLRB 437 (1986). 

– Don Bass Trucking, 275 NLRB 1172 (1985). 

– Austin Tupler Trucking, 261 NLRB 183 (1983). 

– C. C. Eastern, Inc., 309 NLRB 1070 (1992). 

– Diamond L Transportation, 310 NLRB 630 (1993). 

– Dial-A-Mattress Operating Corp., 326 NLRB 884 (1998). 

– Argix Direct, Inc., 343 NLRB 1017 (2004). 

– AAA Cab Services, 341 NLRB 462 (2004). 

– Pennsylvania Academy of the Fine Arts, 343 NLRB 846 (2004). 

Cases Finding Employee Status 

– Corporate Express Delivery System, 332 NLRB 1522 (2000).

– Slay Transportation Co., 331 NLRB 1292 (2000).

– R. W. Bozel Transfer, 304 NLRB 200 (1991). 

– Roadway Package System, 288 NLRB 196 (1988). 

– North American Van Lines, 288 NLRB 38 (1988). 

– Redieh’s Interstate, 255 NLRB 1073 (1980). 

– Standard Oil Co., 230 NLRB 967 (1977). 

– Roadway Package System, 326 NLRB 842 (1998). 

– Metro-Taxicab Co., 341 NLRB 722 (2004). 

17-420 Newspaper Industry 

177-2484-5033-0133 

177-2484-5076 

177-8540-2700 

Persons in the “motor routemen” classification ordinarily delivered to single subscribers in 

rural areas but also delivered in bulk to carriers and dealers. In holding them to be “employees,” 

the Board addressed itself to “the result to be accomplished,” i.e., the circulation and sale of 

newspapers, as well as the right to control the manner and means. Thus, it found that they must 

purchase the newspapers at the cost established by the employer and sell them at a price no higher 
210 STATUTORY EXCLUSIONS 

than the published price in the area or territory defined and controlled by the employer; their risk 

of loss and capacity to draw on personal initiative to increase earnings were minimized 

significantly by the extent of the employer’s practices and policies of preventing competition 

between the motor routemen, of accepting return for credit, of adjusting the wholesale rate, and of 

granting subsidies, apparently to compensate for added expenses, thus affecting their earnings; 

and the motor routemen had no proprietary interest in their routes. Beacon Journal Publishing 

Co., 188 NLRB 218 (1971). Compare Las Vegas Review Journal, 223 NLRB 744 (1976). 

In a case involving carrier boys, the Board found that their opportunities for profits were 

limited by the company’s regulation and control of their work, having, to a large extent, reserved 

the right to control the manner and means, in addition to the result, of their work. They were 

therefore held to be “employees.” A. S. Abell Co., 185 NLRB 144 (1970). St. Louis PostDispatch, 205 NLRB 316 (1973). 

For other “employee” findings in the newspaper industry, see Vindicator Printing Co., 146 

NLRB 871 (1964) (contract distributors engaged in the sale and distribution of newspapers to 

newstands and carriers); Sacramento Union, 160 NLRB 1515 (1966) (district dealers); CitizenNews Co., 97 NLRB 428 (1951) (carrier boys); News Syndicate Co., 164 NLRB 422 (1967) 

(franchised dealers); El Mundo, Inc., 167 NLRB 760 (1967) (newspaper dealers who, under 

contract, distribute and sell the employer’s newspapers to stores, newsstands, and newsboys, and 

by means of vending machines); Herald Co., 181 NLRB 421 (1970), enfd. 444 F.2d 430 (2d Cir. 

1971) (distributors); News-Journal Co., 185 NLRB 158 (1970), enfd. 447 F.2d 65 (3d Cir. 1971); 

Long Beach Press-Telegram, 305 NLRB 412 (1991) (area managers and district advisers); 

Evening News, 308 NLRB 563 (1992); and North Shore Weeklies, Inc., 317 NLRB 1128 (1995) 

(comparing press supervisors and press operators). 

In Hearst Corp., 174 NLRB 934 (1969), distributors were found to be supervisors rather than 

either “employees” or “independent contractors.” The fact that several news deliverers threatened 

suit to enforce “their individual contractor status” was held insufficient, when weighed against 

other factors, to change the finding that they were “employees” and not “independent 

contractors.” News-Journal Co., supra. On the other hand, in Denver Post, 196 NLRB 1162, 1164 

(1972), the Board held that “distributors” engaged principally in the delivery of newspapers to 

subscribers, either directly or through carriers, were independent contractors. 

In two recent cases the Board found newspaper carriers to be independent contractors. In St. 

Joseph News-Press, 345 NLRB 474 (2005), the Board found that five of the common-law factors 

weighed in favor of independent contractor status: (1) the company exercised little control over 

the carriers; (2) the carriers, not the company, provided the tools necessary to perform the work at 

issue: (3) the carriers had entrepreneurial control over the amount of compensation; (4) the 

carriers performed their duties with little company supervision; and (5) the parties intended to 

create an independent contractor relationship. The Board found that four other factors weighed in 

favor of finding that the carriers were employees: (1) the carriers’ work was an integral part of 

the company’s business; (2) the work was unskilled; (3) the parties relationship was for an 

indefinite period; and (4) the company performed similar—though not identical—work. The 

Board concluded that, on balance, the factors weighed in favor of finding independent contractor 

status. Accord: Arizona Republic Co., 349 NLRB 104 (2007). 

17-430 Taxi Industry 

177-2482-5067-6000 

Cabdrivers’ status presents a frequent occasion for litigation of the independent contractor 

issue. 

As with any determination of this issue, the right to control test will apply. The Board has, 

however, been inclined to find independent contractor status where the cabdrivers lease their own 

cabs and there is no relationship between their base fees and the fares generated. For cases 
STATUTORY EXCLUSIONS 211

holding independent contractor status see City Cab of Orlando, 285 NLRB 1191 (1987); and Air

Transit, 271 NLRB 1108 (1984). 

In Metropolitan Taxicab Board of Trade, 342 NLRB 1300 (2004), an administrative law 

judge found most of the cabdrivers in New York are independent contractors. In doing so, he 

recounts the history of the conversion of these drivers from employees to independent 

contractors. See also AAA Cab Services, 341 NLRB 462 (2004), finding independent contractors 

status and Metro-Taxicab Co., 341 NLRB 722 (2004), find employee status. 

In Yellow Taxi of Minneapolis, 262 NLRB 702 (1982), in which the Board, sua sponte, 

reconsidered its original decision that the drivers were employees and reached the same result 

notwithstanding adverse decisions by the courts in other factually similar cases. 

The Board was reversed by the court in Suburban Yellow Taxi Co. v. NLRB, 721 F.2d 366 

(D.C. Cir. 1983). The Board later distinguished Suburban Yellow Taxi and a number of other taxi 

cases in which the courts refused to enforce Board orders. See Yellow Cab of Quincy, 312 NLRB 

142 (1993). 

In Stamford Taxi, Inc., 332 NLRB 1372 (2000), the Board found taxi drivers to be employees 

based on a Roadway Package System, 326 NLRB 842 (1998), analyses. 

For an analysis of limousine drivers see Elite Limousine Plus, 324 NLRB 992 (1997). 

17-440 Other Industries 

177-2484-5033-0167 

177-2484-5067 

Where American Oil Company leased a service station to a lessee, and the lease contained no 

requirements or limitations on the method or manner of operating the station; the lessee being 

free to set his own hours, hire and fire whomever he pleased, set his employees’ wage rates, and, 

except for the sale of American Oil gasoline, sell either its products or those of its competitors at 

his own prices, the lessee was found to be an independent contractor. The Board did not regard a 

“Financial Assistance Plan” available to the lessee as a sufficient basis for changing the result. 

American Oil Co., 188 NLRB 438 (1971). 

A franchisee was held to be an independent contractor in the factual context of the case. 

Citing Clark Oil & Refining Corp., 129 NLRB 750 (1960), the Board pointed out that it has never 

held that the right to terminate a franchise agreement, standing alone, negates the existence of 

independent contractor status. Speedee 7-Eleven, 170 NLRB 1332 (1968). 

Where a photographer used his own equipment, paid for his own photographic supplies, 

received payment only for each picture accepted for publication, stood the loss for each picture 

not accepted, sold copies of pictures to any customers other than the employer’s competitors, he 

was found to be an independent contractor, particularly since the employer did not control the 

manner or means by which he was to perform the work. La Prensa, Inc., 131 NLRB 527 (1961). 

See also Young & Rubicam International, 226 NLRB 1271 (1976). 

In Pennsylvania Academy of the Fine Arts, 343 NLRB 846 (2004), the Board found that 

artists models were independent contractors. In doing so, the Board panel majority relied on the 

facts that these models could choose the classes before which they will model, that they were paid 

by the class and not by the hour, that they supply their own robes and that they can work for other 

schools or independent artists. The Board also noted the high degree of skill of the models in 

striking and holding a pose. 

On the other hand, where contract salesmen at a dairy products plant were used exclusively in 

the company’s service, and the company built up their routes, limited the prices they could 

charge, made charge accounts subject to its approval, and required daily reports and cash 

settlements each day of the day’s receipts, the salesmen were found to be employees. Albert Lea 

Creamery Assn., 119 NLRB 817 (1957). 
212 STATUTORY EXCLUSIONS 

Consideration was accorded the fact that the employers “reserved the right to control the 

manner and means as well as indirectly the result of the work performed” in finding drivers 

“employees” rather than independent contractors. Okeh Caterers, 179 NLRB 535 (1969). 

A factor in arriving at a finding that “auto shuttlers,” also known as “car transporters,” were 

not independent contractors was that no opportunity existed for the individuals in question “to 

make business decisions affecting their profit or loss.” Avis Rent-A-Car System, 173 NLRB 1366 

(1968). See also Avis Rent-A-Car System, 173 NLRB 1368 (1968); and A. Paladini, Inc., 168 

NLRB 952 (1967). 

In Lakes Pilots Assn., 320 NLRB 168 (1995), the Board found that pilots in training—

applicant maritime pilots—were employees not independent contractors. The Board noted that the 

employer retained the right to control the manner in which these pilots performed their services. 

See also Cardinal McCloskey Services, 298 NLRB 434 (1992), in which the Board found day 

care providers to be independent contractors. Compare People Care, Inc., 311 NLRB 1075 

(1993), finding the providers there to be employees. 

In Ameri Health HMO, 326 NLRB 509 (1998), the Board remanded for further proceedings 

the question of whether physicians are employees of a health maintenance organization. 

17-500 Supervisors 

177-8501 

177-8540 

177-8580 

Supervisory status under the Act depends on whether an individual possesses authority to act 

in the interest of the employer in the matters and in the manner specified in Section 2(11) of the 

Act, which defines the term “supervisor” as: 

The term “supervisor” means any individual having authority, in the interest of the 

employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or 

discipline other employees, or responsibly to direct them, or to adjust their grievances, or 

effectively to recommend such action, if in connection with the foregoing the exercise of 

such authority is not of a merely routine or clerical nature, but requires the use of 

independent judgment. 

In discussing the above statutory definition, the Sixth Circuit declared that Section 2(11) is to 

be interpreted in the disjunctive and that “the possession of any one of the authorities listed in 

[that section] places the employee invested with this authority in the supervisory class.” Ohio

Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949). See also 

NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571 (1994); American 

Commercial Barge Line Co., 337 NLRB 1070 (2002); NLRB v. Edward G. Budd Mfg. Co., 169 

F.2d 571 (6th Cir. 1948), cert. denied 335 U.S. 908 (1948); Harborside Healthcare Inc., 330 

NLRB 1334 (2000); Pepsi-Cola Co., 327 NLRB 1062 (1999); Allen Services Co., 314 NLRB 

1060 (1994); and Queen Mary, 317 NLRB 1303 (1995). 

It is axiomatic, of course, that the existence of the power determines whether an individual is 

an employee or a supervisor (see, for example, West Penn Power Co. v. NLRB, 337 F.2d 993, 996 

(3d Cir. 1964)), but the real task which confronts the Board is the difficult one of finding whether 

the supervisory power in fact exists, and this can only be ascertained as a result of a painstaking 

analysis of the facts in each case. 

Supervisory issues are among the most common in representation cases, and the Board 

volumes are replete with findings of both supervisory and nonsupervisory status in a veritable 

myriad of factual situations, sometimes simple but more often complex. A number of factors are 

considered in resolving supervisory issues. These, of course, include the statutory requirements 

described above. The problem, however, lies mainly in the application of these factors in order to 
STATUTORY EXCLUSIONS 213

ascertain from the relevant facts and circumstances whether or not the terms of the statutory 

definition are met. It is an individual’s duties not job title that determines status. Dole Fresh 

Vegetables, Inc., 339 NLRB 785 (2003). 

Supervisory status cannot be measured in individually distinct terms, nor can hard-and-fast 

rules be laid down. In each case, the differentiation must be made between the exercise of 

independent judgment and the routine following of instructions, between effective 

recommendation and forceful suggestion, and between the appearance of supervision and 

supervision in fact. See, e.g., Chevron Shipping Co., 317 NLRB 379 (1995); J. C. Brock Corp., 

314 NLRB 157 (1994); Clark Machine Corp., 308 NLRB 555 (1992); McCollough 

Environmental Services, 306 NLRB 565 (1992); and Quadrex Environmental Co., 308 NLRB 

101 (1992), all of which involved finding of no independent judgment. Compare Virginia Mfg. 

Co., 311 NLRB 992 (1993), and Allen Services Co., supra. 

The burden of establishing supervisory status rests on the party asserting that status. NLRB v. 

Kentucky River Community Care, 532 U.S. 706, 711–712 (2001); Oakwood Healthcare, Inc., 348 

NLRB 686 (2006); Benchmark Mechanical Contractors, Inc., 327 NLRB 829 (1999); Alois Box 

Co., 326 NLRB 1177 (1998); and Youville Health Care Center, Inc., 326 NLRB 495 (1998). 

And, any lack of evidence is construed against the party asserting supervisory status. Elmhurst 

Extended Care Facilities, 329 NLRB 535 fn. 8 (1999). Conclusionary statements without 

supporting evidence do not establish supervisory authority. Volair Contractors, Inc., 341 NLRB 

673 (2004). 

Listed below is a series of cases in which the Board found that the burden was not met. 

Spentonbush/Red Star Cos., 319 NLRB 988 (1995) (tugboat captains), enf. denied 106 F.3d 484 

(2d Cir. 1997); Northwest Florida Legal Services, 320 NLRB 92 (1995) (supervisory attorney); 

K.G. Knitting Mills, 320 NLRB 374 (1995); Azusa Ranch Market, 321 NLRB 811 (1996) 

(department manager in grocery store); New Jersey Newspapers, 322 NLRB 394 (1996) 

(pressroom foremen); Pine Brook Care Center, 322 NLRB 740 (1996) (charge nurses); PECO

Energy Co., 322 NLRB 1074 (1997) (lead maintenance technicians at a public utility); Illinois

Veterans Home at Anna L.P., 323 NLRB 890 (1997) (registered nurses); and Chrome Deposit 

Corp., 323 NLRB 961 (1997) (crew leaders). 

A discussion of criteria follows: 

17-501 Supervisory “Authority” as Defined in Section 2(11) 

177-8520 

177-8560 

Individuals who possess the authority spelled out in the statutory definition contained in 

Section 2(11) are, of course, “supervisors” and can be held to be supervisors even if the authority 

has not yet exercised. Fred Meyer Alaska, Inc., 334 NLRB 646 fn. 8 (2001). U.S. Gypsum Co.,

93 NLRB 91 (1951), and Wasatch Oil Refining Co., 76 NLRB 417 fn. 17 (1948).

Accordingly, supervisory findings resulted where “news producers” at a television station, 

among other responsibilities, assigned overtime (Westinghouse Broadcasting Co., 195 NLRB 339 

(1972)), or made work assignments (Westinghouse Broadcasting Co., 188 NLRB 157 (1971)); 

“strip supervisors” and “dispatchers” discharged drivers in a trucking operation for serious 

misconduct, which was one indication of their authority (Pennsylvania Truck Lines, 199 NLRB 

641 (1972)); an individual in a welding operation scheduled work, assigned it to employees, gave 

them orders, and had sole responsibility for the workload (Custom Bronze & Aluminum Corp., 

197 NLRB 397 (1972)); a personnel manager actively engaged in the hiring process (Lawson

Milk Co., 143 NLRB 916, 919–920 (1963)); an individual had the authority to grant time off and 

furlough employees during slack periods (Birmingham Fabricating Co., 140 NLRB 640, 642 

(1963)); “shift leaders” had the responsibility for transmitting work orders and for seeing to it that 

these orders were carried out (Little Rock Hardboard Co., 140 NLRB 264, 265 (1962)); a 
214 STATUTORY EXCLUSIONS 

“working foreman” who, among other indicia of authority, granted employees time off (Western

Saw Mfrs., 155 NLRB 1323, 1329 fn. 11 (1965)); “line leaders” who had the authority to 

maintain discipline (Lee-Rowan Mfg. Co., 129 NLRB 980, 984 (1960)); department and line 

supervisors who have disciplinary authority and who could make effective hiring 

recommendations (Venture Industries, 327 NLRB 918 (1999)); licensed practical nurses who had 

disciplinary authority (Heartland of Beckley, 328 NLRB 1056 (1999)); and assistant supervisors 

whose evaluations led to automatic wage increases (Harbor City Volunteer Ambulance Squad, 

318 NLRB 764 (1995)). Compare Arizona Public Service Co., 310 NLRB 477 (1993). 

Nonsupervisory findings resulted in situations where a dentist's reassignment authority was a 

means of assuring compatibility. (Robert Greenspan, D.D.S., P.C., 318 NLRB 70 (1995)); where 

the authority to order intoxicated employees to leave was not disciplinary (Chevron Shipping, 

supra); where “associate architects” had no authority as statutorily defined, the firm principal 

reserving for himself “the final determination on all architectural decisions” (Howard A. 

Friedman & Associates, 192 NLRB 919 (1971)); work assignments are routine in nature (Sears, 

Roebuck & Co., 292 NLRB 753, 754 (1989)); authority had not in fact been exercised (Northwest

Steel, 200 NLRB 108 (1972)); airport bus dispatchers were not required to exercise independent 

judgment or test their own initiative (Greyhound Airport Services, 189 NLRB 291 (1971)); 

“district managers” employed by a newspaper publishing company possessed minimal discretion 

(Suburban Newspaper Group, 195 NLRB 438 (1972)); telephone company “traffic supervisors” 

who, despite enlarged responsibilities and new title, nonetheless did not possess the kind of 

responsibility contemplated by Section 2(11) (Hawaiian Telephone Co., 186 NLRB 1 (1970)). 

See also Blue Star Ready-Mix Concrete Corp., 305 NLRB 429 (1991), in which the Board held 

that “batchers” employed by a concrete producer do not exercise independent judgment; and 

Hogan Mfg., supra, testing welders was not authority to recommend hire. The presence or 

absence of the exercise of independent judgment is an important factor weighed by the Board in 

making its supervisory determinations. Sears, Roebuck & Co., 304 NLRB 193 (1991). 

Moreover, although an individual’s duties may include relaying to management complaints 

against other employees, also reports of inefficiency, if these are investigated independently by 

higher management, he is not a supervisor within the meaning of the statutory definition. PepsiCola Bottling Co., 154 NLRB 490, 493–494 (1965). Nor is he a supervisor if the control he 

exercises is merely that which is derived from job experience. Sanborn Telephone Co., 140 

NLRB 512, 515 (1963). Similarly, the authority to evaluate is not a supervisory indicia if the 

evaluation does not affect employee status or tenure. Volair Contractors, Inc., supra; Williamette 

Industries, 336 NLRB 743 (2001). Compare Trevilla of Golden Valley, 330 NLRB 1377 (2000). 

Quality control work—inspecting and reporting the work of others—is not supervisory. Nor 

is the testing of welds. Brown & Root, Inc., 314 NLRB 19, 21 fn. 6 (1994). Authority to issue 

instructions and minor orders based on greater job skills does not amount to supervisory 

authority, Byers Engineering Corp., 324 NLRB 740 (1997). 

In an unfair labor practice case, the Board described the proper balancing of interests in 

assessing supervisory authority. The case involved a series of disciplinary actions by the alleged 

supervisor. The Board found that some of the incidents did not establish supervisory authority 

but concluded that one incident was sufficient to find supervisory status rejecting an argument 

that it was a sporadic exercise of authority. Biewer Wisconsin Sawmill, 312 NLRB 506 (1993). 

The Board has found that distribution and system dispatchers in the utility industry are not 

supervisors. Mississippi Power & Light Co., 328 NLRB 965 (1999), reversing Big Rivers 

Electric Corp., 266 NLRB 380 (1983). 

Section 2(11) requires that the alleged supervisor exercise authority “in the interest of the 

employer.” In Allstate Insurance Co., 332 NLRB 759 (2000), the Board found that the individual 

in question had complete discretion whether to work alone or to have assistance. The Board 

found that the essential components of the employers business were not affected by such a 

decision and therefore the individual was not exercising authority in the interest of the employer. 
STATUTORY EXCLUSIONS 215

For a full discussion of “interest of the employer” see NLRB v. Health Care & Retirement 

Corp. of America, 511 U.S. 571 (1994). 

17-502 Assignment/Responsible Direction/Independent Judgment 

177-8520 

177-8560 

Employees who must and do use independent judgment in directing other employees are 

supervisors within the meaning of Section 2(11). See, e.g., Sears, Roebuck & Co., supra. See also 

DST Industries, 310 NLRB 957 (1993). Similarly, those who use independent judgment in 

effectively recommending discipline are supervisors. Progressive Transportation Services, 340 

NLRB 1019 (2003). See also Mountaineer Park, Inc., 343 NLRB 1473 (2004). Compare 

Armstrong Machine Co., 343 NLRB 1149 (2004). 

Recently, the Board had occasion to consider its policies with respect to the 2(11) phrases, 

“responsibly to direct,” “the use of independent judgment” and the term “assign.” This review 

was engendered by the adverse decision of the Supreme Court in NLRB v. Kentucky River 

Community Care, 532 U.S. 706 (2001). The Court rejected the Board’s interpretation of 

“independent judgment” finding that the Board incorrectly held that “employees do not use 

independent judgment,” when they exercise ordinary professional or technical judgment in 

directing less skilled employees to deliver services in accordance with employer specified 

standards. The Court saw this as a “categorical exclusion” and rejected it. Thus, the Court found 

that the nature of the judgment, whether professional, technical, or experimental, does not 

determine whether a judgment is “independent” in the sense used in Section 2(11). The Court’s 

holding did not reject the Board’s traditional holding that the judgment of a subordinate is 

“routine” if it is limited by the directions of higher officials who have not delegated the power to 

make significant judgments or if the subordinates’ judgments are constrained by employer 

specified standards. 

Following the Kentucky River decision the Board, after extensive briefing by the parties and 

amici issued decisions in three cases Oakwood Healthcare, Inc., 348 NLRB 686 (2006); Croft 

Metals, Inc., 348 NLRB 717 (2006); and Golden Crest Healthcare Center, 348 NLRB 727 

(2006). 

Oakwood was the lead case and in it the Board majority defined “assign” as the act of 

“designating an employee to a place (such as a location, department or wing), appointing an 

individual to a time (such as a shift or overtime period) or giving significant overall duties to an 

employee.” 348 NLRB at 689. 

The majority stated that it did not see the terms “assign” and responsibly to direct” as 

synonymous. Noting that the Board “rarely” has sought to define the parameters of the term 

“responsibly to direct” the Board examined the decisions of the courts and adopted their holding 

that “for direction to be responsible, the person directing and performing the oversight of the 

employee must be accountable for the performance of the task by the other such that some 

adverse consequence may befall the one providing the oversight if the tasks . . . are not performed 

properly.” 348 NLRB at 692. 

Finally, the Oakwood Board majority defined “independent judgment” to be “at a minimum” 

the authority to “act or effectively recommend action, free of the control of others” and to “form 

an opinion or evaluation by discerning and comparing data.” Independent judgment “contrasts 

with actions that are of a merely routine or clerical nature.” 

The Board majority used this analytic framework to find that certain of the charge nurses in 

Oakwood were supervisors. In the two companion cases the Board found that the disputed 

classifications of charge nurses in Golden Crest and lead persons in a manufacturing plant in 

Croft Metals were not supervisors. 
216 STATUTORY EXCLUSIONS 

Post Oakwood decisions have repeatedly emphasized the point that supervisory status must 

be proven and that conclusory evidence will not satisfy the burden of proof. Lynwood Manor, 

350 NLRB 489 (2007); Austal USA, L.L.C., 349 NLRB 561 (2007); and Avante at Wilson, Inc.,

348 NLRB 1056 (2006). 

In two cases the Board has found individuals to be supervisors where they used independent 

judgment in the exercise of a Section 2(11) indicia. See Metropolitan Transportation Services, 

351 NLRB No. 43 (2007) (discipline), and Sheraton Universal Hotel, 350 NLRB 1114 (2007) 

(discipline). 

And in two other cases the Board found independent judgment to be lacking. Shaw, Inc., 350 

NLRB 354 (2007) (assignment), and CGLM, Inc., 350 NLRB 974 (2007) (direction). 

See also two pre-Oakwood cases American River Transportation Co., 347 NLRB 925 (2006), 

and Marquette Transportation/Bluegrass Marine, 346 NLRB 449 (2006), where tug boat captains 

(American) and river pilots (Marquette) were found to be supervisors. 

In Dynamic Science, Inc., 334 NLRB 391 (2001). The Board found that test leaders of a 

military test facility were not supervisors applying the Kentucky River analysis. Accord: 

American Commercial Barge Line Co., 337 NLRB 1070 (2002) (tugboat pilots). 

Kentucky River was a health care case involving registered nurses. The Court did not rule 

that all nurses are supervisors. See Beverly Health & Rehabilitation Services, 335 NLRB 635 

(2001). 

The facts in Custom Bronze & Aluminum Corp., supra, are illustrative of Board analysis in 

traditional industrial settings. While it was not contended that the individual in question had the 

authority to hire or discharge, reward, promote, suspend, layoff, discipline, reprimand employees, 

effectively recommend such action, or handle grievances, it was nonetheless found that he alone 

was responsible for the work of the shop employees and the daily production of the shop; he was 

in charge of the shop and its workload, exercised responsibilities and duties that his colleague did 

not, scheduled and assigned work, gave employees their orders and instructions, helped them in 

performing their jobs, made certain that the work was done and done properly, and determined 

whether overtime or additional help was needed. Compare Dean & Deluca New York, Inc., 338 

NLRB 1046 (2003) (being in charge of store does not evidence supervisory authority in absence 

of showing of use of independent judgment). Croft Metals, Inc., supra. 

For other pre-Oakwood cases, in which a supervisory finding was made on the basis of 

responsible direction or independent judgment, see Arlington Masonry Supply, Inc., 339 NLRB 

817 (2003); Wal-Mart Stores, 335 NLRB 1310 (2001); Venture Industries, 327 NLRB 918 

(1999); Superior Bakery, 294 NLRB 256 (1989); Rose Metal Products, 289 NLRB 1153 (1988); 

Illini Steel Fabricators, 197 NLRB 303 (1972); Consolidated Freightway Corp., 196 NLRB 807 

(1972); Wolverine World Wide, 196 NLRB 410 (1972); and Westinghouse Broadcasting Co., 195 

NLRB 339 (1972). 

Illustrative of the opposite result under this heading is Mid-State Fruit, Inc., 186 NLRB 51 

(1970). While the individual in question recruited substitute drivers and occasionally directed “an 

extra delivery to a good customer,” a company principal was always on call and was reached on 

the telephone for instructions in matters involving substitution of drivers or other emergencies. 

He worked the same hours and received the same benefits as other members of the crew. In 

assigning overtime, he did so at his principal's specific instructions. And although the individual 

in question claimed to have discharged an employee, there was no evidence that he actually did, 

and it was clear from the facts that he possessed no such authority. As he was “not free to use his 

own independent judgment,” concluded the Board, “he could not be said to responsibly direct 

other employees.” See also Wal-Mart Stores, 340 NLRB 220 (2003). 

In two television station cases, a divided Board found that producers did not have the 

independent authority to make work assignments and thus were not supervisors. KGW-TV, 329 

NLRB 378 (1999), and KGTV-TV, 329 NLRB 454 (1999). 
STATUTORY EXCLUSIONS 217

For other cases decided along similar lines, see Dynamic Science, Inc., supra; Health 

Resources of Lakeview, 332 NLRB 878 (2000); Arlington Electric, 332 NLRB 845 (2000); 

Carlisle Engineered Products, 330 NLRB 1359 (2000); Freeman Decorating Co., 330 NLRB 

1143 (2000); Fleming Cos., 330 NLRB 277 fn. 1 (1999); Crittenton Hospital, 328 NLRB 879 

(1999); Tree-Fiber Co., 328 NLRB 389 (1999); Millord Refrigeration Services, 326 NLRB 1437 

(1998); Ryder Truck Rental, 326 NLRB 1386 (1998); Alois Box Co., 326 NLRB 1177 (1998); 

Greenhorne & O’Mara, Inc., 326 NLRB 514 (1998); Youville Health Care Center, Inc., 326 

NLRB 495 (1998); General Security Services Corp., 326 NLRB 312 (1998); Hausner Hard 

Chrome of KY, Inc., 326 NLRB 426 (1998); Hydro Conduit Corp., 254 NLRB 433 (1981); 

Suburban Newspaper Group, supra; Willis Shaw Frozen Food Express, 173 NLRB 487 (1968); 

John Stalfort & Sons, 156 NLRB 84, 86 (1965); and Bakersfield Californian, 316 NLRB 1211 

(1995). 

In Armstrong Machine Co., 343 NLRB 1149 (2004), a panel majority found no supervisory 

status for the most senior employees in the department who answered questions concerning work 

and who made work assignments based on “a priority list generated by management.” In absence 

of the owner, the employee answered customer inquiries. The panel found that the work 

assignments were routine not “based on anything other than the common knowledge, present in 

any small workplace, of which employees have certain skills and which employees do not work 

well together.” Citing Hausner Hard Chrome of KY, Inc., supra, the panel found that the 

employees work did “not demonstrate the exercise of independent judgment as envisioned by 

Section 2(11) of the Act.” 

Direction of work that is routine in nature and typical of a leadperson was held not to be 

supervisory in the following cases: Croft Metals, Inc.,, supra; Central Plumbing Specialties, 337 

NLRB 973 (2002); Byers Engineering Corp., 324 NLRB 740 (1997); S.D.I. Operating Partners, 

L.P., 321 NLRB 111 (1996); Consolidated Services, 321 NLRB 845 (1996); Azusa Ranch 

Market, 321 NLRB 811 (1996); and St. Francis Medical Center-West, 323 NLRB 1046 (1997). 

Authority to initial timecards is not generally considered supervisory authority. Los Angeles 

Water & Power Employees’ Assn., 340 NLRB 1232 (2003). 

17-503 Power Effectively to Recommend 

177-8520 

Persons with the power “effectively to recommend” the actions described in Section 2(11) are 

supervisors within the statutory definition. See, e.g., Entergy Systems & Service, 328 NLRB 902 

(1999); Detroit College of Business, 296 NLRB 318 (1989); and Westwood Health Care Center, 

330 NLRB 935 (2000). 

In Mountaineer Park, Inc., 343 NLRB 1473 (2004), a divided panel found two individuals to 

be supervisors where they could “on their own volition . . . bring a potential disciplinary issue” to 

their superiors and discipline is imposed at the level recommended. 

A supervisory finding was made, based in part, on the power effectively to recommend hiring 

and firing. A factual situation served as a predicate: When an employee was discharged, he asked 

a company official for another chance and was told that the company official must abide by the 

decision of the individual found to be a supervisor. Elliott-Williams Co., 143 NLRB 811, 816 

(1963). On the other hand, where recommendations concerning discipline and reward “were not 

shown to be effective or to result in personnel action being taken without resort to individual 

investigation by higher authority,” a nonsupervisory determination followed. Hawaiian

Telephone Co., supra. See also Mower Lumber Co., 276 NLRB 766 (1985). Compare Oak Park 

Nursing Care Center, 351 NLRB No. 9 (2006), holding that filling out counseling form was an 

effective recommendation. 

The Board has rejected the contention that mere suggestions are effective recommendations. 

Brown & Root, Inc., 314 NLRB 19 (1994), and that signatures on a discipline form amounted to 

an effective recommendation. Rather in this latter case, the Board adopted the hearing officer’s 
218 STATUTORY EXCLUSIONS 

conclusion that such signatures were for witness purposes. Necedah Screw Machine Products, 

323 NLRB 574 (1997). See also Children’s Farm Home, 324 NLRB 61 (1997). Accord: Los 

Angeles Water & Power Employees’ Assn., supra (initialing timecards). 

The Board has held that the mere issuance of a directive to alleged supervisors setting forth 

supervisory authority is not determinative of their supervisory status. Connecticut Light & Power 

Co., 121 NLRB 768, 770 (1958). See also Bakersfield Californian, supra. In Security Guard 

Service, 154 NLRB 8 (1965), despite some evidence that certain “sergeants” had at one time been 

advised that they had supervisory authority, including the power to make effective 

recommendations, there was no evidence that this had been exercised. See also World Theatre 

Corp., 316 NLRB 969 (1995), where unit employees routinely recommended hires. 

Authority to submit reports on employee conduct that are merely records of instruction or are 

investigated independently, does not establish supervisory status. Williamette Industries, 336 

NLRB 743 (2001); Ken-Crest Services, 335 NLRB 777 (2001); Tree-Fiber Co., 328 NLRB 389 

(1999); Green Acres Country Care Center, 327 NLRB 257 (1998); Custom Mattress Mfg., 327 

NLRB 111 (1998); Ryder Truck Rental, 326 NLRB 1386 (1998); Hausner Hard Chrome of KY, 

Inc., 326 NLRB 426 (1998); F. A. Bartlett Tree Expert Co., 325 NLRB 243 (1997); MJ Metal 

Products, 325 NLRB 240 (1997); and Mount Sinai Hospital, 325 NLRB 1136 (1998). Nor is the 

assessment of an applicant for employments technical skills an effective recommendation to hire 

that individual. Aardvark Post, 331 NLRB 320 (2000). In Hogan Mfg., 305 NLRB 861 (1991), 

the testing of welders as part of the hiring process was not considered to be an effective 

recommendation. 

Individuals must have been notified of their authority if they are to be supervisors. Volair 

Contractors, Inc., 341 NLRB 673 (2004). 

17-504 Limited, Occasional, or Sporadic Exercise of Supervisory 

Power; Part-Time Supervisors 

177-8560-5000 

Employees who spend a substantial part of each workday or workweek as supervisors are 

customarily excluded as such from the bargaining unit. Benchmark Mechanical Contractors, 

Inc., 327 NLRB 829 (1999), and U.S. Radium Corp., 122 NLRB 468 (1958). Those who exercise 

supervisory authority for a portion of the year and perform rank-and-file functions for the 

remainder are described as “seasonal supervisors” and are included in the bargaining unit with 

respect to their rank-and-file duties. Great Western Sugar Co., 137 NLRB 551 (1962). This does 

not mean that persons exercising only sporadic or irregular supervisory functions meet the 

statutory definition of supervisor. Latas de Alumino Reynolds, 276 NLRB 1313 (1985); Meijer 

Supermarkets, 142 NLRB 513 (1963); and Indiana Refrigerator Lines, 157 NLRB 539 (1966). 

Occasional isolated instances of actions which might otherwise be indicative of supervisory 

authority are generally insufficient to predicate a supervisory finding. Volair Contractors, Inc.,

supra. . Kanawha Stone Co., 334 NLRB 235 (2001). Commercial Fleet Wash, 190 NLRB 326 

(1971). Thus, where a “crew leader” had occasionally been consulted about an employee’s 

progress and an employee had been granted a raise after his crew leader had recommended the 

raise, these isolated instances, without more, were not regarded sufficient to establish supervisory 

indicia. Highland Telephone Cooperative, 192 NLRB 1057 (1971). See also Robert Greenspan, 

D.D.S., P.C., 318 NLRB 70 (1995); Hygeia Coca-Cola Bottling Co., 192 NLRB 1127 (1971); 

Billows Electric Supply, 311 NLRB 878 (1993); Biewer Wisconsin Sawmill, 312 NLRB 506 

(1993); and Brown & Root, Inc., supra. Compare Union Square Theatre Management, Inc., 326 

NLRB 70 (1998), where the Board reversed a Regional Director’s finding of sporadic hiring by 

an individual. Instead the Board found that that authority was “part and parcel” of their duties. 

In Oakwood Healthcare, Inc., 348 NLRB 686, 694 (2006), the Board majority held that an 

individual who “spends a regular and substantial portion of his/her worktime performing 

supervisory functions” is a supervisor. The Board noted that it “has not adopted a strict 
STATUTORY EXCLUSIONS 219

numerical definition of substantiality” but that 10–15 percent of total worktime is sufficient to 

find supervisory status. 

17-505 Substituting for a Supervisor 

177-8520-8500 

177-8560-1800 

Where an employee completely takes over the supervisory duties of another, he is regarded as 

a supervisor under the Act. Birmingham Fabricating Co., 140 NLRB 640 (1963); and Illinois 

Power Co., 155 NLRB 1097 (1965). However, isolated supervisory substitution does not warrant 

a supervisory finding. Latas de Alumino Reynolds, supra. The Board has stated that, where 

intermittent supervision of unit employees is involved, the test is whether the part-time 

supervisors spent a “regular and substantial” portion of their time performing supervisory duties, 

or whether such substitution is sporadic and insignificant. Carlisle Engineered Products, 330 

NLRB 1359 (2000), and Aladdin Hotel, 270 NLRB 838 (1984). This test applies even if there is 

a clear demarcation between the individuals’ supervisory and rank-and-file duties. Canonie 

Transportation, 289 NLRB 299 (1988). See also Billows Electric Supply, 311 NLRB 878 (1993); 

Brown & Root, Inc., supra; and OHD Service Corp., 313 NLRB 901 (1994). 

In St. Francis Medical Center-West, 323 NLRB 1046 (1997), the Board found that 

substitution for a substantial period of time (5 of the 10 months before the election) was not 

regular because it was caused by extraordinary circumstances and was not likely to reoccur. Thus, 

the Board found that the individual was not a supervisor. Merely being “in charge” of store on 

weekends is not sufficient to establish supervisory authority in absence of use of independent 

judgment. Dean & Deluca New York, Inc., 338 NLRB 1046 (2003). 

For an interesting discussion of this point see Benchmark Mechanical Contractors, Inc., 327 

NLRB 829 (1999), where the Board found that an employee who quit on the day of the election 

but who had been promoted to a supervisory position at that time would not have spent a 

substantial portion of his time as a supervisor even if he had not quit. 

17-506 Promotions to Supervisory Positions and Management Trainees 

177-8520-6200 

177-8560-6000 

The possibility of promotion to a supervisory position in the future does not in and of itself 

warrant exclusion from a unit. Weaver Motors, 123 NLRB 209 (1959). See also International 

General Electric, 117 NLRB 1571 (1957). Thus, individuals whose future assignment to 

supervisory status is contingent on demonstration of required qualifications are, if otherwise 

warranted by the facts, included in the unit. Continental Can Co., 116 NLRB 1202 (1956). 

Management trainees are generally treated the same as other individuals who are in line for 

elevation to supervisory positions. Thus, “manager trainees” who were in a training program 

ranging from 3 to 6 years, a period devoted to learning all store duties, but who had no indicia of 

supervisory authority and shared the same fringe benefits and working conditions with other 

employees, were included in the unit. Neisner Bros., Inc., 200 NLRB 935 (1972). Compare 

however, M. O’Neil Co., 175 NLRB 514 (1969). The latter case involved “management trainees,” 

who were given broad experience in the employer’s operation with the hope that they would 

eventually qualify for positions as supervisors, management personnel, or administrative 

personnel. Gradually, those who did not so graduate left the company. Finding that these 

employees had a community of interest different from that of regular employees, the Board 

excluded them from the unit. Note, however, that the exclusion was not on a supervisory ground. 

See also Gibson Discount Center, 191 NLRB 622 (1971). 

A person in supervisory training who exercises some supervisory authority, is excluded from 

the unit. Augusta Chemical Co., 124 NLRB 1021 (1959). The probationary character of 
220 STATUTORY EXCLUSIONS 

supervisory authority does not affect supervisory status, and probationary supervisors are 

excluded from the unit. Shelburne Shirt Co., 86 NLRB 1308 (1949). Nor will the fact that an 

individual may in the future exercise supervisory authority on a sporadic basis support a 

supervisory determination. Indiana Refrigerator Lines, .supra. See also Du-Tri Displays, 231 

NLRB 1261 (1977). 

For an excellent summary of the four-part test for determining whether management trainees 

(nonsupervisory) are included in the unit under community-of-interest principles, see Nationsway 

Transport Service, 316 NLRB 4 (1995). 

See also section 20-620 (Trainees). 

17-507 Secondary Indicia 

Nonstatutory indicia can be used as background evidence on the question of supervisory 

status but are not themselves dispositive of the issue in the absence of evidence indicating the 

existence of one of the primary or statutory indications of supervisory status. See Training 

School of Vineland, 332 NLRB 1412 (2000), and Chrome Deposit Corp., 323 NLRB 961, 963 fn. 

9 (1997). Three such secondary indicia are the ratio of alleged supervisors to employees, 

differences in terms and conditions of employment and attending management meetings. 

a. Ratio of supervisors to nonsupervisors 

The ratio of supervisors to rank-and-file employees is a background factor which may enter 

into Board consideration when resolving a supervisory issue, but it is not itself statutory indicia. 

Ken-Crest Services, 335 NLRB 777 (2001). Where the ratio is unrealistic, a practical evaluation 

of employees’ functions in this context is normally made. 

The Board pointed out, for example, in Pennsylvania Truck Lines, 199 NLRB 641 (1972), 

that “if strip supervisors and dispatchers were found to be nonsupervisory, there would be no 

more than three supervisors . . . at any of the employer’s terminals, some of which have as many 

as 100 drivers, and there would be no supervisors at the terminals on weekends, when a 

dispatcher or strip supervisor is in charge.” 

See also Harborside Healthcare, Inc., 330 NLRB 1334 (2000); Naples Community Hospital, 

318 NLRB 272 (1995); Essbar Equipment Co., 315 NLRB 461 (1994); Sears, Roebuck & Co.,

292 NLRB 753 (1989); Washington Beef Producers, 264 NLRB 1163 (1982); Ridgely Mfg. Co.,

198 NLRB 860 (1972); Maryland Cup Corp., 182 NLRB 686 (1970); U.S. Gypsum Co., 178 

NLRB 85 (1969); Welsh Farms Ice Cream, 161 NLRB 748 (1966); and West Virginia Pulp & 

Paper Co., 122 NLRB 738 (1958). 

b. Difference in terms and conditions of employment 

177-8250-5500 

A substantial difference in terms and conditions of employment, while also not a statutory 

indicia, may be condensed as a background factor or secondary critira militating in favor of 

finding supervisory status. American Commercial Barge Line Co., 337 NLRB 1070 (2002); North 

Shore Weeklies, Inc., 317 NLRB 1128 (1995); Essbar Equipment Co., supra; Illini Steel 

Fabricators, 197 NLRB 303 (1972); Grand Union Co., 193 NLRB 525 (1971); and Little Rock 

Hardboard Co., 140 NLRB 264 (1962). It is, however, a secondary indication and is not 

dispositive. General Security Services Corp., 326 NLRB 312 (1998); St. Francis Medical 

Center-West, supra, and S.D.I. Operating Partners, L.P., 321 NLRB 111 fn. 2 (1996). Tri-City 

Motor Co., 284 NLRB 659 (1987). See also Waterbed World, 286 NLRB 425 (1987). Compare 

Brown & Root, Inc., 314 NLRB 19 (1994), and Custom Mattress Mfg., 327 NLRB 111 (1998), 

where the difference in pay was due to technical skills not supervisory duties. See also Ken-Crest 

Services, supra, difference in salary and being highest ranking person on premises did not 

establish supervisory status. Central Plumbing Specialties, 337 NLRB 973 (2002). 
STATUTORY EXCLUSIONS 221

In Illini Steel Fabricators, supra, the Board considered as one of the elements the higher rate 

of pay received by the individual found to be a supervisor. Among the factors relied on for a 

supervisory finding in Grand Union Co., supra, was the fact that the employer raised the scale of 

salaries to accord with newly assigned “supervisory responsibilities.” And in Little Rock 

Hardboard Co., 140 NLRB 264 (1962), the Board took into consideration, among other factors, 

the higher rate of pay, as compared with the pay of the production employees, which the disputed 

“shift leaders” received. 

c. Attendance at management meetings 

The fact that an individual may attend management meetings is a secondary indicator of 

supervisory authority and does not in and of itself establish such authority. Dean & Deluca New 

York, Inc., 338 NLRB 1046 (2003). 

17-508 Ostensible or Apparent Authority 

177-8520-7000 

Ostensible or apparent authority can be a basis for making the supervisory determination. 

Poly-America, Inc., 328 NLRB 667 (1999), and Hausner Hard Chrome of KY, Inc., 326 NLRB 

426 (1998). 

For example, where two “all around” men and four “floor girls” were in dispute, it appeared 

that all six were held out as supervisors to employees by the respective department foremen and 

the employees were instructed to do as they were told by them. That was one circumstance noted 

by the Board in making a supervisory finding. Wolverine World Wide, 196 NLRB 410 (1972). 

See also SAIA Motor Freight, Inc., 334 NLRB 979 (2001), where the Board said that “the test is 

whether under all the circumstances,” the employees would reasonably believe that the employee 

in question was reflecting company policy and speaking and acting for management. Accord: 

Facchina Construction Co., 343 NLRB 886 (2004); Ready Mix, Inc., 337 NLRB 1189 (2002); 

Mid-South Drywall Co., 339 NLRB 480 (2002); and D&F Industries, 339 NLRB 618 (2002).

The Board found an individual was reasonably perceived by the employees to be a supervisor 

where the employer permitted him to continue to function as a supervisor during a transition 

period between his supervisory position and a nonsupervisory position. A. O. Smith Automotive 

Products Co., 315 NLRB 994 (1994). 

Where the employees looked on the individual in question as a supervisor and “there is valid 

basis for such judgment on their part,” this was given some weight in the resolution of the 

supervisory question. Bama Co., 145 NLRB 1141 (1964). However, the fact that an individual is 

held out as a supervisor is not necessarily dispositive of supervisory status. Williamette 

Industries, 336 NLRB 743 (2001); Pan-Oston Co., 336 NLRB 305 (2001); and Blue Star ReadyMix Concrete Corp., 305 NLRB 429 (1991). In Carlisle Engineered Products, 330 NLRB 1359 

(2000), the Board stated: “It is well established that rank and file employees cannot be 

transformed into supervisors merely being invested with that title.”

See also Spirit Construction Services, 351 NLRB No. 56 (2007); SKC Electric, Inc., 350 

NLRB 857 (2007); G.E. Maier Co., 349 NLRB 1052 (2007); Suburban Electrical 

Engineers/Contractors, 351 NLRB No. 1 (2007); Thriftway Supermarket, 276 NLRB 1450 

(1985); Washington Beef Producers, supra; and G.T.A. Enterprises, 260 NLRB 197 (1982); 

Waterbed World, supra, for other ostensible authority holdings. 

17-509 Supervision of Nonunit Employees 

177-8501-7000 

The Board is often confronted with the question of whether an individual is a supervisor 

when only a portion of the individual’s time is spent in supervising nonunit employees. In Detroit 

College of Business, 296 NLRB 318 (1989), the Board rejected what it believed had become a 

misapplication of its decision in Adelphi University, 195 NLRB 639 (1972). Adelphi involved the 
222 STATUTORY EXCLUSIONS 

status of the director of admissions in a unit of faculty where the director supervised his secretary, 

an out-of-unit employee. As more fully described in Detroit College, supra, the Adelphi principle 

soon became the 50-percent rule, “any individual who supervises nonunit employees less than 50 

percent of his time is not a supervisor.” 

In Detroit College, supra, the Board rejected “any such shorthand approach” to the resolution 

of these cases. Instead, the Board stated that it would “make a complete examination of all the 

factors present to determine the nature of the individuals alliance with management.” 

The Board described these factors as including: 

[T]he business of the employer, the duties of the individuals exercising supervisory authority 

and those of the bargaining unit employees, the particular supervisory functions being 

exercised, the degree of control being exercised over the nonunit employees and the relative 

amount of interest the individuals at issue have in furthering the policies of the employer as 

opposed to those of the bargaining unit in which they would be included. 

See also Pepsi-Cola Co., 327 NLRB 1062 (1999); Union Square Theatre Management, Inc., 

326 NLRB 70 (1998); Rite Aid Corp., 325 NLRB 717 (1998); and Legal Aid Society of Alameda 

County, 324 NLRB 796 (1997). 

In the case of supervision of employees of another employer, the Board will not find the 

individual to be 2(11) supervisor. In order to qualify as a supervisor, one must supervise the 

employees of the employer in question. Crenulated Co., 308 NLRB 1216 (1992). 

17-510 Supervisory Issues Affecting Educational Institutions 

177-8540-8200 

177-8540-8200 

A concomitant to the Board’s assertion of jurisdiction over colleges and universities in recent 

years has been the need for resolving supervisory issues in cases involving such institutions. 

Some of the more typical determinations in this area follow: 

“Department chairmen” with authority effectively to recommend the hire and reappointment 

(or nonreappointment) of all part-time faculty members, and to allocate merit increases without 

the approval of the department’s faculty, were found to be supervisors within the meaning of 

Section 2(11). Berry Schools, 234 NLRB 942 (1978); University of Vermont, 223 NLRB 423 

(1976); and Adelphi University, supra. See also C. W. Post Center, 189 NLRB 904 (1971). It 

should be noted, however, that in Fordham University, 193 NLRB 134 (1971), the “department 

chairmen” were found to be nonsupervisory and included in the unit. The distinction is explained 

in the text and in footnote 19 in the decision in Fordham. And in University of Detroit, 193 

NLRB 566 (1971), the university was said to regard the “department chairmen” as faculty 

members, not administrators. They did not sign an administrative agreement on being appointed; 

they represented the faculty at university senate meetings; they received no additional 

compensation; and they taught courses albeit fewer than their fellow faculty members. Thus, as in 

Fordham, they were held not to be supervisors within the meaning of the statutory definition. 

In Adelphi University, supra, the Board also considered, inter alia, whether the members of a 

“personnel committee” and those of a “grievance committee” are supervisors within the statutory 

definition and concluded that, “[w]e are not disposed to disenfranchise faculty members merely 

because they have some measure of quasi-collegial authority either as an entire faculty or as 

representatives elected by the faculty.” Accordingly, several members of these committees were 

held not to be supervisors within the meaning of the Act “solely by reason of such membership” 

and were included in the bargaining unit (supra at 648). Consult the text of this decision for a 

thorough discussion of supervisory and nonsupervisory determinations in an educational 

institution. On the other hand, consider the effect of the Supreme Court’s Yeshiva decision, there 

regarding managerial status, on the concept of collegiality as a factor to be considered. (NLRB v. 

Yeshiva University, 444 U.S. 672 (1980).) 
STATUTORY EXCLUSIONS 223

A contention that the bargaining unit cannot consist of faculty members because they are 

supervisors and managerial employees was rejected in C. W. Post Center, supra, and in 

Manhattan College, 195 NLRB 65 (1972). The Board observed in the latter: “That faculty 

members participate, by various means, in decisions regarding the operation of the college is no 

more persuasive here than it was in the earlier cases in establishing faculty members as members 

of management or as supervisors. As in those cases we find the faculty members to be 

professional employees under the Act who are entitled to vote for or against collective-bargaining 

representation.” See also Fordham University, supra at 135. 

The relationship between a faculty member and a graduate student is basically a teacherstudent relationship which does not make the faculty member a supervisor. Fordham University, 

supra at 136. See Detroit College of Business, supra, for analysis of the effect of supervisory 

authority over nonunit clerical employees. See also section 17-510 of this chapter. 

17-511 Health Care Supervisory Issues 

177-8540-8000 

177-8560-2800 

177-8580-8000 

Health care jurisdiction has occasioned considerable litigation of a number of supervisory 

issues especially those involving charge nurses. The litigation often centered on a line drawn by 

the Board between decisions and actions taken as part of patient care and more general 2(11) 

actions. 

In Northcrest Nursing Home, 313 NLRB 491 (1993), the Board discussed at length the issue 

of whether LPN charge nurses responsibly direct nurses aides. In finding the nurses not to be 

statutory supervisors, the Board reaffirmed its “patient care” analysis, i.e., a nurse’s direction of 

less-skilled employees, in the exercise of professional judgment incidental to the treatment of 

patients, is not authority exercised “in the interest of the employer.” Northcrest, 313 NLRB at 

493–497. 

Shortly thereafter, however, in NLRB v. Health Care & Retirement Corp. of America, 511 

U.S. 571 (1994), the Supreme Court considered the Board’s patient care analysis for determining 

the supervisory status, specifically the phrase “in the interest of the employer.” In a five to four 

decision, the Court found the Board’s test to be inconsistent with the statutory criteria of Section 

2(11). Succinctly put, the Court majority found no basis for the Board’s assertion that 

supervisory authority exercised in connection with patient care is somehow not in the interest of 

the employer. “Patient care is the business of a nursing home and it follows that attending to the 

needs of the nursing home patients, who are the employer's customers, is in the interest of the 

employer.” Health Care & Retirement, supra at 577. The Court also admonished the Board for 

devising a test that was industry specific. According to the Court, the Board erred in giving such 

statutory terms as “responsibly to direct” and “independent judgment” a different meaning in the 

health care industry than it does in other industries. 

Recently the Supreme Court decided important issues of healthcare supervisory analysis on 

the independent judgment question. For more detail see, NLRB v. Kentucky River Community 

Care, 532 U.S.706 (2001), and the Oakwood trilogy discussed at section 17-502. 

For “effective recommendation” cases see Oak Park Nursing Care Center, 351 NLRB No. 9 

(2007) (filling out counseling forms is effective recommendation); Coventry Health Center, 332 

NLRB 52 (2000) (nurse role in evaluation procedure not effective recommendation); Trevilla of 

Golden Valley, 330 NLRB 1377 (2000) (nurse evaluations had direct linkage to merit pay 

increase); Third Coast Emergency Physicians, P.A., 330 NLRB 756 (2000) (physicians did not 

make effective recommendation to hire, discipline or evaluate); and Michigan Masonic Home, 

332 NLRB 1409 (2000) (recommendations for discipline not effective).
224 STATUTORY EXCLUSIONS 

In a nonnurse health care case the Board rejected a contention that a maintenance employee 

was a supervisor. The Board found that his involvement in discipline was reportorial only. 

In Harbor City Volunteer Ambulance Squad, 318 NLRB 764 (1995), the Board did find that 

that authority of assistant supervisors with respect to annual evaluations was sufficient to 

conclude that they were supervisors. 

For discussion of related supervisory issues involving the exercise vel non of independent 

judgment, see section 17-501. 

17-600 Railway Workers 

177-1683-7500 

177-2484-7500 

460-7550-3700 

Individuals employed by employers subject to the Railway Labor Act are excluded from the 

coverage of the National Labor Relations Act. 

The definition of an employer subject to the Railway Labor Act is reasonably clear, and 

individuals employed by such employers are, of course, not covered by the National Labor 

Relations Act. 

In interpreting this statutory exclusion, a question arose in relation to individuals employed 

by a labor organization which regularly acts as bargaining agent for railway workers. As the 

union was acting “in its capacity of an employer” with respect to its employees, the 

considerations appropriate to other employers under the National Labor Relations Act were 

applicable, and the union was found not to be “an employer subject to the Railway Labor Act.” 

Neither the National Mediation Board nor the National Railroad Adjustment Board had 

jurisdiction because “the Railway Labor Act is only applicable to carriers and employees of 

carriers, and does not regulate labor unions and their employees as such.” Locomotive Firemen & 

Enginemen, 145 NLRB 1521 (1964). 

For a fuller discussion of the interplay between the National Labor Relations Act and the 

Railway Labor Act, see chapter on Jurisdiction, ante. 

17-700 Employees of “Nonemployers” 

177-1683 

Individuals employed by employers who do not come within the meaning of the definition of 

“employer” in Section 2(2) of the Act are excluded from its coverage. Similarly, individuals who 

“supervise” persons who are not employees are not supervisors. See North General Hospital, 314 

NLRB 14 (1994), where attending physicians who “supervise nonemployee” residents and interns 

were held not to be supervisors. 
18. STATUTORY LIMITATIONS 

Section 9(b) of the Act limits Board unit determination in three respects. The first relates to 

professional employees, the second to craft units, and the third to guards. The first and third 

limitations are treated here. The second because of a considerable body of law and significant 

policy changes was treated separately in an earlier chapter. 

18-100 Professional Employees 

177-9300 

355-2260 

470-1700 

18-110 The Statutory Mandate 

355-2260 

401-2570-1450 

Section 9(b)(1) provides that professional employees may not be included in a bargaining unit 

with nonprofessionals unless they vote in favor of such inclusion. The term “professional 

employee” is defined in Section 2(12), as follows: 

(a) any employee engaged in work (i) predominantly intellectual and varied in character as 

opposed to routine mental, manual, mechanical, or physical work; (ii) involving the 

consistent exercise of discretion and judgment in its performance; (iii) of such a character that 

the output produced or the result accomplished cannot be standardized in relation to a given 

period of time; (iv) requiring knowledge of an advanced type in a field of science or learning 

customarily acquired by a prolonged course of specialized intellectual instruction and study 

in an institution of higher learning or a hospital, as distinguished from a general academic 

education or from an apprenticeship or from training in the performance of routine mental, 

manual, or physical processes; or 

(b) any employee, who (i) has completed the courses of specialized intellectual instruction 

and study described in clause (iv) of paragraph (a), and (ii) is performing related work under 

the supervision of a professional person to qualify himself to become a professional employee 

as defined in paragraph (a). 

In Leedom v. Kyne, 249 F.2d 490 (D.C. Cir. 1957), the District of Columbia Court of Appeals 

construed the limitation in Section 9(b)(1) as intended to protect professional employees and held 

that the professionals’ right to this benefit does not depend on Board discretion or expertise and 

that denial of this right must be deemed to result in injury. The United States Supreme Court (358 

U.S. 184 (1958)), affirmed this ruling. 

Where the Board has sufficient information to put it on notice that there is an issue as to the 

professional status of employees, it must conduct an inquiry and cannot rely on the failure of the 

parties to raise the issue. Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999). 

Section 9(b)(1) precludes the Board from deciding that any unit is appropriate which contains 

both professional employees and nonprofessional employees, unless a majority of the 

professional employees vote for inclusion in such a unit. This is done procedurally by conducting 

what has been termed a “Sonotone” election. See Sonotone Corp., 90 NLRB 1236, 1241–1242 

(1950) (discussed in more detail in the chapter on Self-Determination Elections); Barnes-Hind 

Pharmaceuticals, 183 NLRB 301 (1970); Firestone Tire Co., 181 NLRB 830 (1970); and New 

England Telephone Co., 179 NLRB 527 (1969). 

The Board requires that there be a Sonotone election each time that there is an election in 

which professionals and nonprofessionals may be included in the same unit. Thus, subsequent 

Sonotone elections are required in the same unit regardless of whether the professionals have 

225
226 STATUTORY LIMITATIONS 

already voted for inclusion in the overall unit. American Medical Response, 344 NLRB 1406 

(2005). 

18-120 Professionals Defined 

177-9325 

470-1700 

440-1760-4300 

Section 2(12)(a) defines a professional employee in terms of the work the employee 

performs, and it is the work rather than individual qualifications which is controlling under that 

section. Aeronca, Inc., 221 NLRB 326 (1975). Thus, in finding, for example, that engineering 

assistants are not professional employees, the Board did not pass on the individual qualifications 

of each engineering assistant but on the character of the work required of them as a group. 

Chesapeake Telephone Co., 192 NLRB 483 (1971); and Loral Corp., 200 NLRB 1019 (1972). 

See also Avco Corp., 313 NLRB 1357 (1994). 

This is not to say that the background of individuals within a disputed group is an irrelevant 

consideration, for background is examined for the purpose of deciding whether the work of the 

group satisfies the “knowledge of an advanced type” requirement of Section 2(12)(a). The latter 

should be compared with Section 2(12)(b) which makes personal qualifications a determinative 

factor by defining a professional employee “as any employee, who (i) has completed the courses 

of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) 

is performing related work under the supervision of a professional person to qualify himself to 

become a professional employee as defined in paragraph (a).” If a group of employees is 

predominantly composed of individuals possessing a degree in the field to which the profession is 

devoted, it may logically be presumed that the work requires knowledge of an advanced type. 

Western Electric Co., 126 NLRB 1346, 1348–1349 (1960). Such a requirement is not conclusive. 

Express News Corp., 223 NLRB 627 (1976). 

Thus, the requirement that professionals possess “knowledge of an advanced type” does not 

mean that such knowledge be acquired through academic training alone. Although the 

background of an individual is relevant, it is not the individual’s qualifications but the character 

of the work required that is determinative of professional status. Express News Corp., supra 

(journalists held not professional). A. A. Mathews Associates, 200 NLRB 250 (1972) (engineerinspectors); Syosset General Hospital, 190 NLRB 304 (1971) (pharmacists, technicians); 

Chrysler Corp., 154 NLRB 352 (1965) (manufacturing engineers); and Ryan Aeronautical Co., 

132 NLRB 1160 (1961) (engineers). Formal education is not a prerequisite for finding 

professional status where individuals perform work normally attributable to professionals. 

Robbins & Myers, Inc., 144 NLRB 295 (1963). Nor can salary be used as a test of professional 

status. E. W. Scripps Co., 94 NLRB 227, 240 (1951). See also Avco Corp., supra. 

The Board makes its finding of professional status independent of other Government 

decisions. For example, a nonprofessional classification of certain employees under the Wage and 

Hour Act does not affect a Board finding of professional status. Standard Oil Co., 107 NLRB 

1524 fn. 8 (1954). Likewise, the fact that persons acting in a professional capacity are not 

licensed to practice their profession in the State is irrelevant. Westinghouse Electric Corp., 89 

NLRB 8, 30 fn. 83 (1950). 

In addition to meeting the specific requirements of Section 9(b)(1), the petitioner must have 

an adequate showing of interest among the professional employees to warrant a selfdetermination election for them. Continental Can Co., 128 NLRB 762 (1960). 

As is true of other bargaining units, the professional unit cannot be an arbitrary segment of 

the professional employees. Pratt & Whitney, 327 NLRB 1213 (1999), and General Electric Co., 

120 NLRB 199 (1958). In Permanente Medical Group, 187 NLRB 1033 (1971), the Board called 
STATUTORY LIMITATIONS 227

for a self-determination election for professionals “on a basis coextensive with the existing 

bargaining unit.” 

The Board found the duties and responsibilities performed by a group of engineers basically 

professional in nature. Although proper performance of such work required a high degree of 

technical competence and the use of independent judgment with respect to matters of importance 

to the employer’s financial and other managerial interests, “such characteristics are typical of the 

work which Section 2(12) . . . defines as ‘professional’ work.” Westinghouse Electric Corp., 163 

NLRB 723, 726 (1967). The contention by the employer that some of the responsibilities of the 

engineers were “managerial” was therefore rejected. A review of Board precedents (fn. 19) 

supported this inclusion. In the same case, the Board noted that, in evaluating the critical record 

facts, it did not regard as relevant the title held by an engineer on any given work assignment for 

“it is clear that an individual’s status under the Act is determined by his job content and 

responsibilities rather than by his title” (fn. 18). 

Programers who were not required to have a prolonged course of specialized intellectual 

instruction and study were not regarded as professionals, although the machines they worked on 

were “more sophisticated” than those used previously. They were included in a unit of office and 

technical employees. Safeway Stores, 174 NLRB 1274 (1969). 

In the health care field, registered nurses are generally held to be professionals (Centralia 

Convalescent Center, 295 NLRB 42 (1989)), as are those waiting to pass their examinations. 

Mercy Hospitals of Sacramento, 217 NLRB 765 (1975). In Group Health Assn., 317 NLRB 238 

(1995), the Board decided to henceforth apply a rebuttable presumption that medical 

technologists are professionals. See Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999). For a 

more complete listing of professionals in health care, see General Counsel Memorandum 91-4 

(June 5, 1991), available on the Agency website. 

18-130 Previously Established Units 

347-4040-3333-6767 

The Board has held that Congress did not intend the enactment of Section 9(b)(1) to render 

inappropriate previously established units combining professional and nonprofessional employees 

and that this section does not bar parties to an earlier established bargaining relationship in such a 

unit from continuing to maintain their bargaining relationship on the same basis. See, for 

example, Corporacion de Servicios Legales, 289 NLRB 612 (1988). The sole operative effect of 

Section 9(b)(1) is to preclude the Board from taking any action that would create a mixed unit of 

professionals and nonprofessionals without according the professionals the opportunity of a selfdetermination election. Accordingly, where it was conceded in a unit clarification proceeding that 

all categories of employees whose unit status sought to be clarified were nonprofessional, the 

Board determined that some such categories were identical to those of other nonprofessional 

categories and properly belonged in that unit. Section 9(b)(1) did not, in the Board’s view, bar 

granting the relief sought in the form of unit clarification. A. O. Smith Corp., 166 NLRB 845 

(1967). Compare Lockheed Aircraft Corp., 155 NLRB 702 (1965); Lockheed Aircraft Corp., 202 

NLRB 1140 (1973); Utah Power & Light Co., 258 NLRB 1059 (1981), in which the Board 

directed an election among professionals who had not had an opportunity for self-determination; 

and Russelton Medical Group, 302 NLRB 718 (1991), an unfair labor practice case, where the 

Board declined to issue a bargaining order for a combined professional/nonprofessional unit 

because the professionals had never had a self-determination opportunity. 

For other professional employee issues, see section 21-400. 
228 STATUTORY LIMITATIONS 

18-200 Plant Guards 

401-2575-2800 

440-1760-5300 

18-210 The Statutory Mandate 

177-3950-9000 

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.” This provision takes into account potential conflicts 

of interests by requiring that a guard union be free to formulate its own policies and decide its 

own course of action, with complete independence from control by a nonguard union. 

The statutory mandate has been held to preclude the Board from ordering bargaining in a 

mixed unit as a remedy for an unfair labor practice. Temple Security, Inc., 328 NLRB 663 (1999), 

enf. denied 230 F.3d 909 (7th Cir. 2000), and Wells Fargo Corp., 270 NLRB 787 (1984). See 

also section 12-130. 

18-220 Guards Defined 

401-2575-2800 

To be a “guard” within the meaning of the Act, an employee must enforce against employees 

and other persons rules to protect the property of the employer’s premises. Petroleum Chemicals, 

121 NLRB 630 (1958). 

Several examples may be cited: 

Watchmen whose primary duty is to check for fire hazards are not “guards” within the 

meaning of the Act. Woodman Co., 119 NLRB 1784 (1958). See also Burns Security Services, 

300 NLRB 298 (1990), in which the Board in an extensive opinion reviewed its policies with 

respect to the guards status of firefighters, enf. denied 827 F.2d 32 (8th Cir. 1991). In addition, 

see Burns Security Services, 309 NLRB 989 (1992), another case remanded by the Eighth Circuit. 

But where at least 25 percent of the firemen’s time is spent performing guard duties, and it is 

apparent that enforcement of company rules is a continued part of their responsibility and is a 

significant portion of the requirements of their job, they were held to be guards within the 

meaning of the Act. Reynolds Metal Co., 198 NLRB 120 (1972). Compare Boeing Co., 328 

NLRB 128 (1999), where the Board found that property protection duties assigned to firefighters 

during a strike are not sufficient to make them guards. 

Watchmen who make plant rounds, punch clocks, enforce company rules, and prevent 

unauthorized individuals from entering plant property are “guards” within that definition. Jakel 

Motors, 228 NLRB 730, 742–743 (1988); and West Virginia Pulp & Paper Co., 140 NLRB 1160 

(1963). See also Allen Services Co., 314 NLRB 1060 (1994). 

Plant department employees at a protective service company who install and maintain 

electrical alarm devices are not “guards” as they receive no guard training, work under different 

supervision from that of the full-time guards, and are dispatched only when it is known that the 

cause of the alarm is some malfunction of the alarm device. American District Telegraph Co., 

128 NLRB 345 (1960). 

Employees performing passive monitoring of their employers customers are not guards. 

Wells Fargo Alarm Services, 218 NLRB 68 (1975), and American District Telegraph Co., 160 

NLRB 1130 (1966). 

The Third Circuit has held that Section 9(b)(3) is not limited to guards employed to protect 

property belonging to their own employer or to guards who protect against the conduct of fellow 

employees. In reaching the conclusion that Section 9(b)(3) does not confine the concept of a 

guard to one who guards the premises of his own employer, the court construed the language of 
STATUTORY LIMITATIONS 229

that section as follows: The guard to whom the statute refers is one who enforces rules to protect 

the property of “the employer”—not his employer. These rules are enforced “against employees 

and other persons,” not against fellow employees. Furthermore, the duties of a guard who comes 

within Section 9(b)(3) include the protection of “the safety of persons on the [not his] employer’s 

premises.” Finally, the court pointed out that Congress was seriously concerned with preventing 

the creation of divided loyalty by not permitting guards to join “a production workers union.” 

NLRB v. American District Telegraph Co., 205 F.2d 86 (3d Cir. 1953). 

The Board adopted the decision of the Third Circuit in agreement with its findings as to the 

legislative intent and statutory construction and has since made “guard” determinations in 

conformity with the court’s construction of Section 9(b)(3). See American District Telegraph Co., 

160 NLRB 1130 (1966). 

In a series of cases, the Board has been confronted with the guard status of courier-drivers, 

individuals responsible for the pickup and delivery of materials and freight. In Purolator Courier 

Corp., 300 NLRB 812 (1990), the Board reaffirmed the requirement that the driver must be 

responsible for protection rather than mere delivery in order to be found a guard and, in that case, 

found the courier-drivers not to be guards. 

As already noted, a distinction exists between the guards discussed above and employees who 

merely work on protective equipment maintained by ADT but do not enforce rules to protect 

property or the safety of persons on customers’ premises. See, for example, American District 

Telegraph Co., supra. 

Employees who spend 10 to 90 percent of their time engaged in guard duties at a watchman 

and janitorial service company, notwithstanding that they also do general maintenance work 

when not doing guard duty, are “guards” as they are responsible for the safety of the building and 

its contents and are required to report to the police any threat to customer’s property. 

Watchmanitors, 128 NLRB 903 (1960). See also A. W. Schlessinger Geriatric Center, 267 NLRB 

136 (1983). In Madison Square Garden, 333 NLRB 643 (2001), a divided panel concluded that 

“supervisors” who resolve disputes at civic center events are guards within the meaning of the 

Act. 

For a case distinguishing plant guards from janitors, see Meyer Mfg. Corp., 170 NLRB 509 

(1968), in which the individual involved had no authority to enforce rules to protect property or 

persons on the employer’s premises; and while he had keys to the plant and did admit employees 

without prior authorization from the plant manager, he was nonetheless not required to keep 

people out of the plant. 

In Hoffman Security, 302 NLRB 922 (1991), the Board found that receptionists were not 

guards in the circumstances of that case. Accord: 55 Liberty Owners Corp., 318 NLRB 308 

(1995); and Wolverine Dispatch, Inc., 321 NLRB 796 (1996). Gatemen and tower observers at a 

wildlife preserve were found not to be guards as their duties were directed to preserving safety 

during the normal operation of the facility. Leon County Safari, 225 NLRB 969 (1976). In J. C. 

Penney Co., 312 NLRB 32 (1993), the Board affirmed on review the decision of a Regional 

Director that chargeback clerks (persons primarily responsible for receiving, packing, and 

shipping merchandise) are not guards. The Regional Director distinguished these employees 

from the coinroom employees in Brink’s Inc., 272 NLRB 868 (1984). And in Arcus Data Security 

Systems, 324 NLRB 496 (1997), the Board affirmed a Regional Director who also distinguished 

Brinks and found inside and outside customer representatives not to be guards. Accord: 

Tac/Temps, 314 NLRB 1142 (1994) (checkers held not to be guards), and Madison Square 

Garden, 325 NLRB 971 (1998) (event staff employees not guards). 

In Crossroads Community Correctional Center, 308 NLRB 1005 (1992), the Board found the 

correctional residence counsellors who are responsible for preparing inmates for life outside 

prison were guards in the circumstances there. 

Security toll operators were in one case held to be guards within the meaning of the Act 

because they are employed to enforce, against persons seeking to use the expressway, rules to 
230 STATUTORY LIMITATIONS 

protect the property and the safety of persons on the expressway premises. It was found 

immaterial that the operators did not themselves have the ultimate power of police to compel 

compliance by violators of the expressway rules. Rather, it was sufficient that they possessed and 

exercised responsibility to observe and report infractions, as this is an essential step in the 

procedure for enforcement of highway rules. Likewise, it was not determinative that this was not 

their only function, because it was a continuing responsibility and a significant portion of the 

requirements of the job. Wackenhut Corp., 196 NLRB 278 (1972). 

Guards who have been temporarily detailed out of a nonsupervisory guard unit, to serve as 

relief foremen, but are virtually certain to return to their original unit, have a status analogous to 

that of employees in temporary layoff at the time of an election and as such are eligible to vote in 

a guard unit election. U. S. Steel Corp., 188 NLRB 309 (1971). 

18-230 Guards Unions 

339-7575-7500 

401-2575-2800 

A petition for employees found to be “guards” will be dismissed when the union which seeks 

them also admits to membership employees other than guards. A.D.T. Co., 112 NLRB 80 (1955). 

Moreover, an intervening union which represents production and maintenance employees, 

including guards sought by the petitioner, will not be included on a ballot in an election directed 

for guards. University of Chicago, 272 NLRB 873 (1984). However, the Board has expressed its 

reluctance to apply Section 9(d)(3) so strictly that guards will be deprived of representation; thus, 

the noncertifiability of an alleged mixed union must be shown by clear and definitive evidence. 

Burns Security Services, 278 NLRB 565 (1986); Rapid Armored Corp., 323 NLRB 709 (1997); 

and Children’s Hospital of Michigan, 317 NLRB 580 (1995). 

Public employees are not guards within the meaning of the Act. Dynair Services, 314 NLRB 

161 (1994). Therefore, a union which represents either guard or nonguard employees of 

municipalities is not thereby disqualified from representing statutory guards. Guardian Armored 

Assets, LLC, 337 NLRB 556 (2002); and Children’s Hospital of Michigan, 299 NLRB 430 

(1990), enfd. 6 F.3d 1147 (6th Cir. 1993). 

A petitioner may be certified as representative of a guard unit even if it has received 

assistance in organizing from a union which admitted nonguard employees to membership where 

that assistance ended at petitioner’s first meeting with the employees in the unit sought and no 

prospect was shown of further aid from the nonguard union. Inspiration Consolidated Copper 

Co., 142 NLRB 53 (1963). See also Wackenhut Corp. v. NLRB, 178 F.3d 543 (D.C. Cir. 1999), 

and Lee Adjustment Center, 325 NLRB 375 (1998). 

Retention of an attorney to represent the employer’s guards in forming the petitioner and in 

seeking a Board election, the expenditure of funds for which the petitioner is to be billed at a later 

date when it is in a more stable financial position, and other advice and acts of assistance in the 

organizational state are not enough to constitute indirect affiliation of the petitioner with the 

nonguard union. Moreover, indications in the record that the nonguard union intends to continue 

to render assistance and advice of an unspecified character to the petitioner does not warrant 

withholding from the latter the opportunity to be certified as representative of the employer’s 

guards through a Board-conducted election. Rather, in the event the petitioner is certified and is 

then shown to have accepted material assistance from the nonguard union sufficient to constitute 

indirect affiliation, the Board will entertain a motion to revoke the certification. Bonded Armored 

Carrier, 195 NLRB 346 (1972). 

Thus, where petitioner continued to accept substantial financial aid from the nonguard union 

and to permit the nonguard union to participate in its affairs, including negotiations and the 

organization and management of a strike, it was clear that the petitioner was not free to formulate 

its own policies and decide its own course of action with the complete independence from control 
STATUTORY LIMITATIONS 231

by the nonguard union which the Act requires. And the certification was accordingly revoked. 

International Harvester Co., 145 NLRB 1747 (1964). 

Where the circumstances compel a finding of indirect affiliation between a guard union and a 

nonguard union, the guard union's certification will be revoked notwithstanding the fact that the 

nonguard union does not represent employees in the same plant in which the guards involved 

were employed. In the case in question, the guard union had accepted substantial financial aid 

from the nonguard union and permitted the nonguard union to participate in its affairs, to 

negotiate with the employer on its behalf, to organize and direct its strike, and to determine the 

terms for settlement of the strike. International Harvester Co., supra. 

See also sections 6-200 and -310. 

18-240 Scope of Unit 

339-7575-7500 

401-7500 

As to scope of a guards’ unit, the Board policy is to include all of the employer’s guards in a 

single unit unless “there is a subgroup with a separate community of interest that warrants 

separate representation.” University of Tulsa, 304 NLRB 773, 774 (1991). 

For other guard issues, see section 6-200, infra. 

For a discussion of guards and contract bar see section 9-150. 
232 STATUTORY LIMITATIONS 
19. CATEGORIES GOVERNED BY BOARD POLICY 

Apart from the categories excluded by the statute, or as to which statutory limitations require 

specific treatment, several other special categories are governed by Board policy. There are 

established rules based on policy considerations which apply to these categories, which include 

confidential employees, managerial employees, plant clerical employees, office clerical 

employees, and technical employees. Another category is that of relatives of management which, 

except to the extent of the exclusion of “any individual employed by his parent or spouse” under 

Section 2(3), is also the subject of Board policy. 

All of these are treated here. 

19-100 Confidential Employees 

177-2401-6800 

460-5033-5000 

“Confidential employees” are defined as employees who assist and act in a confidential 

capacity to persons who formulate, determine, and effectuate management policies with regard to 

labor relations, or regularly substitute for employees having such duties. Under Board policy, 

they are excluded from the bargaining unit. Waste Management de Puerto Rico, 339 NLRB 262 

(2003); Ladish Co., 178 NLRB 90 (1969); Chrysler Corp., 173 NLRB 1046 (1969); Eastern 

Camera Corp., 140 NLRB 569, 574 (1963); B. F. Goodrich Co., 115 NLRB 722, 724 (1956); and 

Hampton Roads Maritime Assn., 178 NLRB 263 (1969). 

Historical note: The policy relating to confidential employees is known as the “labor nexus 

test” and was described in B. F. Goodrich Co., supra, in which the Board stated: 

Upon further reexamination our holdings in the instant connection, we are still of the 

opinion expressed in the Ford Motor Co. case [66 NLRB 1317 (1946)] that any broadening 

of the definition of the term “confidential” as adopted in that decision needlessly precludes 

employees from bargaining collectively together with other employees sharing common 

interests. Consequently it is our intention herein and in future cases to adhere strictly to that 

definition and thus to limit the term “confidential” so as to embrace only those employees 

who assist and act in a confidential capacity to persons who formulate, determine, and 

effectuate management policies in the field of labor relations. 

Affirmed: NLRB v. Hendricks County Electric Membership Corp., 454 U.S. 170 (1981). 

These considerations are to be “assessed in the conjunctive.” Weyerhaeuser Co., 173 NLRB 

1170 (1969). 

The parties’ agreement in the past to exclude clerks as confidential is not necessarily binding 

in a subsequent representation proceeding. Chrysler Corp., supra, and the party asserting 

confidential status has the burden of proof. Crest Mark Packing Co., 283 NLRB 999 (1987). 

The Board dealt with the issue of confidential status of secretaries to the employer’s 

negotiating team and to management officials responsible for formulating the employer’s contract 

proposals. Since these secretaries assisted in the preparation of and/or had access to confidential 

labor relations information such as the employer’s data in preparation for contract negotiations, 

minutes of negotiating sessions, and grievance investigation reports, they were found to be 

confidential employees. So were two other employees who substituted for the regular secretaries. 

Firestone Synthetic Latex Co., 201 NLRB 347 (1973). See also National Cash Register Co., 168 

NLRB 910, 912–913 (1968), and Bakersfield Californian, 316 NLRB 1211 (1995). 

The Board denied review of two Regional Director’s decision on cases that presented a 

number of confidential issues and listed a number of recent cases PTI Communications, 308 

NLRB 918 (1992); and Inland Steel Co., 308 NLRB 868 (1992). 

The secretaries to vice presidents and the secretary to the secretary-treasurer of the employer 

were found to be confidential employees. These employees were present on occasion when labor 

233
234 CATEGORIES GOVERNED BY BOARD POLICY 

relations matters were discussed by their supervisors, including confidential meetings between the 

officers and supervisors at which the employer’s policy as to grievances and union negotiations 

were discussed. They were also responsible for preparing orders and documents in labor relations 

matters. Grocers Supply Co., 160 NLRB 485, 488–489 (1966). See also Triangle Publications, 

118 NLRB 595 (1957); and Santa Fe Trail Transportation Co., 119 NLRB 1302 (1958). See also

Low Bros. National Market, 191 NLRB 432 (1971). 

However, secretaries to factory managers, agricultural managers, plant controllers, and sales 

managers were held not to be confidential employees. Holly Sugar Corp., 193 NLRB 1024 

(1971). The factory and agricultural managers in this case merely made administrative 

determinations with regard to the collective-bargaining agreement; they did not formulate, 

determine, and effectuate the labor relations policies of management. They participated in only a 

limited advisory way in the bargaining process. The mere fact that they were involved in the 

handling of routine grievances was not sufficient to impart confidential status to their secretaries. 

B. F. Goodrich Co., supra; Weyerhaeuser Co., supra. As the plant controllers and the sales 

managers had less responsibility in the field of labor relations than the factory and agricultural 

managers, a fortiori, their secretaries could not properly be classified as confidential employees. 

See also Greyhound Lines, 257 NLRB 477 (1981); and Waste Management de Puerto Rico,

supra. 

An employee’s access to personnel records and the fact the employee can bring information 

to the attention of management, which may ultimately lead to disciplinary action by management, 

is not enough to qualify an employee as confidential. RCA Communications, 154 NLRB 34, 37 

(1965); Ladish Co., supra; Hampton Roads Maritime Assn., supra. See also S. S. Joachim & Anne 

Residence, 314 NLRB 1191 (1994); and Lincoln Park Nursing Home, 318 NLRB 1160 (1995). 

Thus, an employee who has access to confidential matters dealing with contract negotiations 

is a confidential employee (Kieckhefer Container Co., 118 NLRB 950, 953 (1957)), but a clerk 

who prepares statistical data for use by an employer during contract negotiations is not 

confidential because the clerk cannot determine from the data prepared by him what policy 

proposals may result (American Radiator Corp., 119 NLRB 1715, 1720–1721 (1958)). 

Employees who handle material dealing only with the financial matters of the employer are 

not confidential. Dinkler-St. Charles Hotel, 124 NLRB 1302 (1959). Brodart, Inc., 257 NLRB 

380, 384 fn. 1 (1981). 

Those who may at some time in the future function as confidential employees but who are not 

doing so at the time the determination is made do not belong to this normally excluded category. 

American Radiator & Sanitary Co., supra. This is also true of employees who spend only a small 

proportion of their time substituting for those who act in a confidential capacity. Waste 

Management de Puerto Rico, supra; Meramec Mining Co., 134 NLRB 1675 (1962); and Swift & 

Co., 129 NLRB 1391, 1393 (1961). 

Single incidents of note-taking or isolated occasions of confidential duties have been held 

insufficient to exclude an employee from a bargaining unit. Crest Mark Packing Co., supra; 

International Electric Assn., 277 NLRB 1 (1985). But, generally, the amount of time devoted to 

labor relations matters is not a controlling factor in establishing confidential status. Reymond 

Baking Co., 249 NLRB 1100 (1980). 

Contentions have been made that an employee who may be in a position to overhear 

conversations relating to labor relations due to his job location in the plant or because of his 

operation of the switchboard should be excluded as a confidential employee. These contentions 

have been uniformly rejected. See, for example, Swift & Co., 119 NLRB 1556, 1567 (1958). 

The Board has not deemed “the mere possession of access to confidential business 

information by employees sufficient reason for denying such employees representation as part of 

any appropriate unit of work-related employees.” Fairfax Family Fund, 195 NLRB 306, 307 

(1972). 
CATEGORIES GOVERNED BY BOARD POLICY 235

The fact that some employees may be entrusted with business information to be withheld 

from their employer’s competitors or that their work may affect employees’ pay scales does not 

render such employees either confidential or managerial. Swift & Co., supra. 

Timekeepers were not excluded from a multiemployer unit as confidential employees where 

the record showed that, to the extent they had access to information of their employers, the 

information pertained to the performance of their duties as timekeepers and had nothing to do 

with the employers’ labor policies. Moreover, there was no evidence that the timekeepers 

otherwise participated in the formulation or effectuation of the employers’ general labor policies. 

Hampton Roads Maritime Assn., supra. 

Like employees of labor organizations who are not “confidential” unless they meet the 

standard test for confidentiality prescribed by the Board Air Line Pilots Assn., 97 NLRB 929 

(1951), only employees of a management association who act in a confidential capacity in 

relation to persons who formulate, determine, and effectuate management labor relations policy 

affecting directly the association’s own employees are excluded as “confidential.” Pacific 

Maritime Assn., 185 NLRB 780 (1970). See also Kleinberg, Kaplan, Wolff, Cohen & Burrows, 

P.C., 253 NLRB 450 (1981), in which the Board reaffirmed the requirement that the duties relate 

to the employers’ own employees (law firm), and Dun & Bradstreet, Inc., 240 NLRB 162 (1979) 

(credit reporters). 

19-110 Status of Confidentials 

460-5033-5000 

Under Board precedent, confidential employees enjoy the protection of the Act. Peavey Co., 

249 NLRB 853 (1980). But see NLRB v. Hendricks County Electric Corp., 454 U.S. 170 fn. 19 

(1981). In E & L Transport Co., 315 NLRB 303 (1994), the Board held that applicants for 

confidential positions are employees within the meaning of Section 2(3) and are protected by 

Section 8(a)(3). 

19-200 Managerial Employees 

177-2401-6700 

460-5033-7500 

Although the Act makes no specific provision for “managerial employees” under Board 

policy, this category of personnel has been excluded from the protection of the Act. See NLRB v. 

Yeshiva University, 444 U.S. 672 (1980); Ladies Garment Workers v. NLRB, 339 F.2d 116, 123 

(2d Cir. 1964); Ford Motor Co., 66 NLRB 1317 (1946); and Palace Dry Cleaning Corp, 75 

NLRB 320 (1948). 

“Managerial employees” are defined as employees who have authority to formulate, 

determine, or effectuate employer policies by expressing and making operative the decisions of 

their employer and those who have discretion in the performance of their jobs independent of 

their employer’s established policies. Tops Club, Inc., 238 NLRB 928 fn. 2 (1978), quoting Bell 

Aerospace, 219 NLRB 384 (1975), on remand from the Supreme Court’s decision 416 U.S. 267 

(1974). The decisions must be made in the interest of the employer. Allstate Insurance Co., 332 

NLRB 759 (2000), discussed supra at 17-501. 

In NLRB v. Yeshiva University, 444 U.S. 672 (1980), Supreme Court described managerial 

employees: 

Managerial employees are defined as those who “formulate and effectuate management 

policies by expressing and making operative the decisions of their employer.” These 

employees are “much higher in the managerial structure” than those explicitly mentioned by 

Congress which “regarded [them] as so clearly outside the Act that no specific exclusionary 

provision was found necessary.” Managerial employees must exercise discretion within, or 

even independently of, established employer policy and must be aligned with management. 
236 CATEGORIES GOVERNED BY BOARD POLICY 

Although the Board has established no firm criteria for determining when an employee is so 

aligned, normally an employee may be excluded as managerial only if he represents 

management interests by taking or recommending discretionary actions that effectively 

control or implement employer policy. [Id. at 682–683.] 

Thus, the duties of “final credit analysts” were compared with those of employees engaged 

as security brokers, insurance claim adjusters, bank tellers, and note collectors, whom the 

Board has found to be nonmanagerial. Fairfax Family Fund, supra at fn. 5. See also, for 

example, Dun & Bradstreet, Inc., 194 NLRB 9 (1971) (brokers); Banco Credito y Ahorro 

Ponceno, 160 NLRB 1504 (1966) (bank collectors, loan officers, loan adjusters). 

The exclusionary practice with respect to individuals found to be “managerial” within the 

confines of the definition in North Arkansas Electric Cooperative, supra, rests on the premise that 

the functions and interests of such individuals are more closely allied with those of management 

than with production workers and, therefore, they are not truly “employees” within the meaning 

of the Act. However, it should be made clear at the outset that “supervisory status is specifically 

defined in Section 2(11) of the Act and is not equitable with managerial status.” Howard Cooper 

Corp., 121 NLRB 950, 951 (1958). 

The Board in North Arkansas Electric Cooperative, supra, and Bell Aerospace Co., 190 

NLRB 431 (1971); and Bell Aerospace Co., 196 NLRB 827 (1972), had determined that 

“managerial” employees are “employees” within the meaning of the Act, and directed elections in 

units of managerial employees. However, in NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), 

the Supreme Court reversed this decision on the basis of prior Board precedent and legislative 

history. 

District supervisors responsible for dealing with newspaper circulation have in some cases 

been held to be managerial because they exercise independent judgment in entering into and 

canceling contracts as well as in determining compensation. Eugene Register Guard, 237 NLRB 

205 (1978). But see Washington Post Co., 254 NLRB 168, 183 (1981); Long Beach PressTelegram, 305 NLRB 412 (1991); and Reading Eagle Co., 306 NLRB 871 (1992). 

In NLRB v. Yeshiva University, supra, the Supreme Court concluded that university 

professors who can take or recommend discretionary actions that effectively control or implement 

employer policy were managerial employees. See Lewis & Clark College, 300 NLRB 155 (1990), 

and cases cited therein. See also University of Great Falls, 325 NLRB 83 (1997), rejecting an 

argument that the professors were management and that the college was outside the Board’s 

jurisdiction under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). 

In Carroll College, Inc., 350 NLRB No. 30 (2007), the Board, after considering all of the 

faculty’s duties, held that faculty are not managerial because they determine admission of those 

who fall below traditional admissions standards. But in LeMoyne-Owen College, 345 NLRB 

1123 (2005), the Board found the faculty to be managerial where inter alia, they control decisions 

on curriculum, courses of study and course content, degrees and degree requirements, tenure 

standards and selections, and faculty evaluation procedures. 

In finding timekeepers not to be managerial employees, the Board stated that an employee 

does not acquire managerial status by making some decisions or exercising some judgment 

“within established limits set by higher management.” A conclusion is arrived at in each case 

based on the degree of discretion and authority exercised by the disputed employee. Holly Sugar 

Corp., supra; see also Sampson Steel & Supply, 289 NLRB 481 (1988); Central Maine Power 

Co., 151 NLRB 42, 45 (1965); and American Radiator & Sanitary Corp., supra. See also Case 

Corp., 304 NLRB 939 (1991), in which the Board found industrial engineers are not managerial 

even though they participate in grievance handling and bargaining. In neither case did the record 

show that they had extensive authority to make employer policy. Accord: George L. Mee 

Memorial Hospital, 348 NLRB 327 (2006) (utilization review nurse whose duty is to insure that 

hospital provides care consistent with established utilization guidelines is not managerial). 
CATEGORIES GOVERNED BY BOARD POLICY 237

In addition see Bakersfield Californian, 316 NLRB 1211 (1995) (certain newspaper duties 

not managerial); and S. S. Joachim & Anne Residence, 314 NLRB 1191 (1994) (decision of social 

workers not those of managers). 

The definition of a managerial employee, as developed by the Board, has been urged as to 

union organizers and field representatives. The Board has held that the fact that such organizers 

do not work under close supervision but exercise wide discretion, represent their employer (which 

is the union) to the public, pledge their employer’s credit to a limited extent, and sign agreements 

on its behalf is not determinative of managerial status as they fail to meet the Board’s view that 

managerial employees are those who formulate, determine, and effectuate the employer’s 

policies. American Federation of Labor, 120 NLRB 969 (1958); and Textile Workers UTWA, 138 

NLRB 269 fn. 2 (1962). Compare Retail Clerks Local 428, 163 NLRB 431 (1967); and Retail 

Clerks Local 880, 153 NLRB 255, 258 (1965). 

19-210 Stock Ownershp 

Employee shareholders who are able to influence management policy by selecting members 

of the board of directors are managerial. See Sida of Hawaii, Inc., 191 NLRB 194 (1971); and 

Florence Volunteer Fire Department, 265 NLRB 955 (1982) (firefighter members of nonprofit 

fire company). See also Science Applications Corp., 309 NLRB 373 (1992). Compare Upper 

Great Lakes Pilots, 311 NLRB 131, 132 (1993), “stock ownership alone does not deprive an 

employee from the protection of the Act” and Centurion Auto Transport, 329 NLRB 394 (1999). 

See also Citywide Corporate Transportation, Inc., 338 NLRB 444 (2002). 

19-300 Relatives of Management 

177-2484-3700 

362-6798 

460-5033-2550-2900 et seq. 

The statutory definition of an employee in Section 2(3) of the Act specifically excludes “any 

individual employed by his parent or spouse.” This definition is clear on its face and one would 

not anticipate a need for further amplification. However, in view of developments in the cases in 

relation to this category, special consideration here is necessary. 

In Scandia, 167 NLRB 623 (1967), the Board announced a policy of excluding from 

bargaining units the children and spouses of individuals who have substantial stock interests in 

closely held corporations. See Campbell-Harris Electric, 263 NLRB 1143 (1983), and Ideal 

Elevator Corp., 295 NLRB 347 (1989). Clearly, the child of a sole shareholder is excluded. 

Bridgeton Transit, 123 NLRB 1196 (1959). So also are children of majority shareholders. Cerni 

Motor Sales, 201 NLRB 918 (1973). 

When the ownership is less than 50 percent, the Board applies a different test for determining 

eligibility. In NLRB v. Action Automotive, 469 U.S. 490 (1985), the Supreme Court affirmed the 

Board’s practice of excluding from a bargaining unit close relatives of the owners of a closely 

held corporation even in the absence of special job related benefits. The individuals involved in 

Action Automotive Inc., were the wife of the corporate president and one-third owner of the 

employer and the mother of the three brothers who owned the corporation. 

The court also endorsed the Board’s policy requiring that eligibility of relatives in a 

nonclosely held corporation depend on whether or not the employee enjoys “special status.” 

Thus, although the standard for inclusion in the bargaining unit is community of interest, in 

cases of relatives of corporate shareholders the inquiry as to community of interest is expanded to 

include consideration of the amount of stock owned by the relative shareholders, whether the 

employee is a dependent on the stockholder, and similar considerations. The individual in 

question may also be excluded if his or her job duties reflect a special relationship. See Blue Star 

Ready-Mix Concrete Corp., 305 NLRB 429 (1991), in which the Board found that the nephew of 
238 CATEGORIES GOVERNED BY BOARD POLICY 

one owner and the grandson of the another did not enjoy any special status. Compare Luce & Son, 

Inc., 313 NLRB 1355 (1994), finding special status under different circumstances than those in 

Blue Star, supra. See also R & D Trucking, 327 NLRB 531 (1999), and M. C. Decorating, 306 

NLRB 816 (1992). 

The special status test is also applied to determine the eligibility of relatives of nonowner 

managers, who are not subject to the expanded community-of-interest test. Cumberland Farms, 

272 NLRB 336 (1984); and Allen Services Co., 314 NLRB 1060 (1994). In Peirce-Phelps, Inc.,

341 NLRB 585 (2004), a divided Board found no special relationship distinguishing Novi 

American Inc.–Atlanta, 234 NLRB 421 (1978), which found special relationship. 

19-400 Office Clerical and Plant Clerical Employees 

440-1760-1900 et seq. 

440-1760-2400 

440-1760-2900 

Generally 

As a general rule, absent agreement of the parties, office clerical and plant clerical employees 

are not joined in a single unit. Kroger Co., 204 NLRB 1055 (1973); L. M. Berry & Co., 198 

NLRB 217 (1972). Fisher Controls Co., 192 NLRB 514 (1971); Weyerhaeuser Co., 173 NLRB 

1170 (1969); Rudolph Wurlitzer Co., 117 NLRB 6 (1957); Republic Steel Corp., 131 NLRB 864 

(1961); and Vulcanized Rubber & Plastics Co., 129 NLRB 1256 (1961). As noted, an exception 

is made where there is an agreement of the parties. See Eljer Co., 108 NLRB 1417, 1423–1424 

(1954); and Otis Hospital, 219 NLRB 164, 166 (1975). For the same reason, plant clerical 

employees are excluded from a unit of office clerical employees where any party objects to their 

inclusion. Mosler Safe Co., 188 NLRB 650 (1971); Copeland Refrigeration Corp., 118 NLRB 

1364 (1957). 

Under normal circumstances, a distinct difference exists between office employees and plant 

clerical employees. See, e.g., Dunham’s Athleisure Corp., 311 NLRB 175 (1993). 

19-410 Definitions 

401-7500 

440-1760-1900 

440-1760-2400 

As the Board has stated, “the distinction between office clericals and plant clericals is not 

always clear.” Hamilton Halter Co., 270 NLRB 331 (1984). The test generally is whether the 

employees’ duties are related to the production process (plant clericals) or related to general 

office operations (office clericals). The distinction is grounded in community-of-interest 

concepts. Cook Composites & Polymers Co., 313 NLRB 1105 (1994). 

Typical plant clerical duties are timecard collection, transcription of sales orders to forms to 

facilitate production, maintenance of inventories, and ordering supplies. Kroger Co., 342 NLRB 

202 (2004); Caesars Tahoe, 337 NLRB 1096 (2002); and Hamilton Halter, supra. In contrast, 

typical office clerical duties are billing, payroll, phone, and mail. Dunham’s Athleisure Corp., 

supra; Mitchellace, Inc., 314 NLRB 536 (1994); Virginia Mfg. Co., 311 NLRB 992 (1993); and 

PECO Energy Co., 322 NLRB 1074 (1997) (public utility P & M unit). 

Plant clerical employees are customarily included in a production and maintenance unit 

because they generally share a community of interest with the employees in the plantwide unit. 

Kroger Co., supra; Caesars Tahoe, supra; Raytec Co., 228 NLRB 646 (1977); and Armour & Co., 

119 NLRB 623 (1958). Brown & Root, Inc., 314 NLRB 19 (1994). For this reason, in Fisher 

Controls Co., supra, where the plant clericals were sought to be represented by a union 

recognized as the representative of the production and maintenance employees, the plant clericals 
CATEGORIES GOVERNED BY BOARD POLICY 239

were afforded a self-determination election to indicate whether or not they wished to become part 

of the existing unit. See also Columbia Textile Services, 293 NLRB 1034, 1037 (1989). Compare 

Avecor, Inc., 309 NLRB 59 (1992). 

Office clerical employees on the other hand, although they may be under the same 

supervision as plant clerical employees and share the same mode of compensation, are 

nonetheless excluded from the production and maintenance unit while the plant clerical 

employees are included. Lilliston Implement Co., 121 NLRB 868, 870 (1958); and PECO, supra. 

Although the Board has recognized that plant clericals may, in some circumstances, be 

separately represented in a unit apart from all other categories of employees, it has declined to 

establish such a unit, in the absence of agreement by the parties, in which plant clericals are 

sought to be represented by a union which enjoys recognized status as the representative of workrelated and commonly supervised production employees. This was the factual situation in 

Weyerhaeuser Co., supra. See also Swift & Co., 119 NLRB 1556 (1958); Robbins & Myers, Inc., 

144 NLRB 295, 299 (1963); Armstrong Rubber Co., 144 NLRB 1115, 1119 (1963); and Swift & 

Co., 131 NLRB 1143 (1961). In these special circumstances, observed the Board, it “has made a 

practical judgment that the interests of all concerned would best be served by adding related plant 

clericals to the established unit of production and maintenance employees if they desire to be 

represented by the same union.” 

Under Board policy, office clerical employees are customarily excluded from the production 

and maintenance unit. Hygeia Coca-Cola Bottling Co., 192 NLRB 1127, 1129 (1971); and 

Westinghouse Electric Corp., 118 NLRB 1043 (1957). 

Similarly, the Board excludes office clerical employees from a residual unit of production 

and maintenance employees (California Steel & Supply Corp., 104 NLRB 787, 789 (1953)), and 

from a previously unrepresented fringe group of production and maintenance employees which a 

labor organization seeks to add to an existing production and maintenance unit (MinneapolisHoneywell Regulator Co., 115 NLRB 344, 348 (1956). Thus, in Swift & Co., 166 NLRB 89 

(1967), the Board found appropriate a separate unit of office clericals, refusing to include them in 

a unit of currently unrepresented production employees working in the stockyards. But see 

Montgomery Ward & Co., 259 NLRB 280 fn. 4 (1981), in which the Board suggests, in the 

absence of a request for review on that issue, that it would approve inclusion of office clericals in 

a residual warehouse unit. In United Parcel Service, 258 NLRB 223 (1981), the Board designated 

separate units of office clericals and operating clericals. 

This policy holds even when a prior bargaining history on an overall basis exists. 

Westinghouse Electric Corp., supra. However, when, in addition to a long bargaining history for 

all employees in a single unit, there is also a high degree of functional integration and identity in 

terms and conditions of employment, resulting in a community of interest of all employees, a 

historical unit which includes office clerical employees is appropriate. Townley Metal &

Hardware Co., 151 NLRB 706, 708–709 (1965). 

As with production and maintenance units, the Board stressed lack of community of interest 

as the basis for including office clericals from a sales unit, despite the fact that the clericals were 

engaged in daily work tasks which necessarily brought them into contact with the sales 

employees and which were related to the sales campaign. L. M. Berry & Co., supra. See also 

Fireman’s Fund Insurance Co., 173 NLRB 982 (1969). 

19-420 Clerical Units Generally 

As is invariably the rule in unit matters, a unit limited to a segment of the office clerical 

employees or of the plant clerical employees is inappropriate. Aurora Fast Freight, 324 NLRB 20 

(1997); Olin Mathieson Chemical Corp., 117 NLRB 665 (1957); Beech Aircraft Corp., 170 

NLRB 1595 (1968); and California Blue Shield, 178 NLRB 716 (1969). 
240 CATEGORIES GOVERNED BY BOARD POLICY 

19-430 Clericals—Warehouse Units 

One difficult area concerns the placement of clericals in warehouse-type integrated 

operations. See, e.g., Esco Corp., 298 NLRB 837 (1990); cf. Scholastic Magazines, 192 NLRB 

461 (1971); Jacob Ash Co., 224 NLRB 74 (1976); and Gustave Fischer, Inc., 256 NLRB 1069 

(1981), order takers and others involved in the ordering process have proved particularly 

troublesome. ABS Corp., 299 NLRB 516 (1990); Hamilton Halter Co., 270 NLRB 331 (1984); 

Cincinnati Bronze, 286 NLRB 39 (1987); and John N. Hansen Co., 293 NLRB 63 (1989). 

Customarily, separate units of office clerical employees alone and plant clerical employees 

alone are appropriate. Carling Brewing Co., 126 NLRB 347 (1960). But see Montgomery Ward 

& Co., supra at fn. 4, in which office and plant clericals were included in a residual warehouse 

unit. See also Fleming Foods, 313 NLRB 948 (1994), involving the breadth of a warehouse 

clerical unit and a finding this petitioned unit was residual. In United Parcel Service, 258 NLRB 

223 (1981), the Board designated separate units of office clericals and operating clericals. But see 

Kalustyans, 332 NLRB 843 (2000), where office workers were included in a unit of shipping 

clerks. 

19-440 Self-Determination Elections—Clericals 

When there was only one office clerical employee in an employer’s industrial engineering 

department and the Board found that this employee did not have a sufficient community of 

interest with the industrial engineers to be included with them in a departmental unit, the Board 

gave the employee the opportunity to vote for representation by the petitioner as an indication 

that she wished to be included in the plantwide office clerical unit currently represented by the 

petitioner. Otherwise, the employee would remain unrepresented. Chrysler Corp., 194 NLRB 183 

(1972). 

Where electronic data processors were found to constitute a homogeneous and identifiable 

group, the Board called for a self-determination election because they might constitute a separate 

appropriate unit, as petitioner requested or, because of their functional integration, they might 

appropriately be part of the intervenor’s unit of office and clerical employees. Safeway Stores, 

174 NLRB 1274 (1969). 

For full discussion of self-determination elections, see chapter 21. 

19-450 Multiplant Clerical Units 

440-3300 

In a case which presented a clerical unit issue in a multiplant situation, the Board found a unit 

of office clerical employees at the employer’s three branches an appropriate unit in the following 

circumstances: The hiring and firing of clericals for all three locations was handled through a 

central personnel department; there were common policies at the three locations with respect to 

wages, hours, and working conditions; there was frequent interchange of personnel among the 

three locations, both temporary and permanent; and supervision was structured primarily along 

departmental rather than plant lines, so that an employee working at one location might be 

supervised from another location. Dean Witter & Co., 189 NLRB 785 (1971). 

See also chapter 13. 

19-460 Business Office Clerical—Health Care 

470-6700 

Business office clericals are an appropriate unit in acute care hospitals under the Board’s 

Health Care Unit Rule. 284 NLRB 1515, 1562. 

For a discussion of business office clericals, see Charter Hospital of Orlando South, 313 

NLRB 951 (1994). See also Lincoln Park Nursing Home, 318 NLRB 1160 (1995), including 

nursing department secretaries and payroll clerks in a business office unit. Note that this case also 
CATEGORIES GOVERNED BY BOARD POLICY 241

rejected the contention that these nursing department secretaries are confidential employees and 

that receptionists are business office clericals. 

See also section 15-170, Health Care Institutions. 

19-500 Technical Employees 

177-2401-2500 

440-1760-3400 

440-1760-3800 et seq. 

470-3300 

Technical employees are defined as employees who do not meet the strict requirements of the 

term “professional employees” as defined in the Act but whose work is of a technical nature, 

involving the use of independent judgment and requiring the exercise of specialized training 

usually acquired in colleges or technical schools, or through special courses. Folger Coffee Co., 

250 NLRB 1 (1980); Augusta Chemical Co., 124 NLRB 1021 (1959); Dayton Aviation Radio & 

Equipment Corp., 124 NLRB 306 (1959); Container Corp. of America, 121 NLRB 249, 251 

(1958); Design Service Co., 148 NLRB 1050 (1964); Avco Corp., 173 NLRB 1199 (1969); and 

Fisher Controls Co., 192 NLRB 514 (1971). See also Audiovox Communications Corp., 323 

NLRB 647 (1997). 

Initially, the policy had been automatic exclusion of technical employees from a production 

and maintenance unit if either party objected to their inclusion. See, for example, Litton 

Industries, 125 NLRB 722, 724–725 (1960). However, in Sheffield Corp., 134 NLRB 1101, 

1103–1104 (1962), this per se rule was eliminated. The Board concluded that automatically 

excluding all technical employees from production and maintenance units whenever their unit 

placement was in issue was not a salutary way of achieving the purposes of the Act. “To do so is 

to give primacy in unit placement to the parties’ disagreement rather than to the overriding 

consideration of the community of interests.” For a discussion of the history of Board policy on 

“technical employee” in the research and development industry, see Aerospace Corp., 331 NLRB 

561 (2000) (unit of maintenance employees at research and development facility held not to 

warrant facilitywide unit). 

The Board announced that henceforth a “pragmatic judgment” would be made in each case 

based on, among other things, the following considerations: (a) bargaining history, (b) common 

supervision, (c) similarity of skills and job functions, (d) contracts or interchange with other 

employees, (e) type of industry, (f) location of employees within the plant, (g) the desires of the 

parties, and (h) whether any union seeks to represent the technical employees separately. See also 

Virginia Mfg. Co., 311 NLRB 992 (1993). 

The Sheffield policy was applied where the petitioner did not dispute the technical status of 

“planners” and “estimators” but adduced no evidence to support the claim that these technical 

employees shared a special community of interest with the plant clerical employees. The Board 

found no warrant for combining them in the same voting group with such employees. 

Weyerhaeuser Co., supra. See also Meramec Mining Co., 134 NLRB 1675 (1962); Hazelton 

Laboratories, 136 NLRB 1609 (1962); and Robertshaw-Fulton Controls Co., 137 NLRB 85 

(1962). Compare Livingstone College, 290 NLRB 304, 306 (1988), in which the petitioner sought 

an all nonprofessional unit including technicals. 

“Systems analysts” and “programmers” were included in a unit comprised mainly of office 

clericals because most of the employees sought to be represented were data processors, the 

employer’s operations were highly integrated, equipment was shared by employees with different 

classifications, and there was frequent contact among all data processing employees. The 

demonstrated close community of interest between the disputed systems analysts and 

programmers and the other data processing employees and the absence of a labor organization 

seeking to represent the disputed employees separately outweighed the significance of the 
242 CATEGORIES GOVERNED BY BOARD POLICY 

geographical separation of the systems analysts and programmers from the other employees. 

Computer Systems, 204 NLRB 255 (1973). The same technical categories (systems analysts and 

programmers) were in issue in Ohio Casualty Insurance Co., 175 NLRB 860 (1969). They were 

excluded from a requested unit consisting mostly of office clerical employees because of 

significant differences between them and the latter in regard to “job functions, responsibilities, 

use of initiative, and independent judgment, immediate supervision, wages, and hours.” See also 

Postal Service, 210 NLRB 477 (1974); and Lundy Packing Co., 314 NLRB 1042 (1994), 

involving timestudy employees/industrial engineers. 

When community of interest exists among all the employer’s technical employees, a unit 

including some, but not all, of such employees is inappropriate. Whitehead & Kales Co., 196 

NLRB 111 (1972); General Electric Co., 173 NLRB 399 (1969); Boeing Co., 169 NLRB 916 

(1968); Bendix Corp., 150 NLRB 718, 720–721 (1965); Allis-Chalmers Mfg. Co., 117 NLRB 749 

(1957); and Solar Aircraft Co., 116 NLRB 200 (1957). See also Pratt & Whitney, 327 NLRB 

1213 (1999). But if, in the more unusual case, there are several independent, identifiable groups 

of technical employees, separate units may be appropriate. Federal Electric Corp., 157 NLRB 

1130 (1966). In that case, the petitioner’s unit request, which the Board granted, limited the 

technical employees in the proposed unit to those working aboard ships as distinguished from 

those who were land based. 

A unit of technical, plant clerical, and office clerical employees will be found appropriate if 

no party objects. Otis Elevator Co., 116 NLRB 262 (1957). But even where several factors 

support such a unit finding, a unit of technical employees alone is found where these employees 

have a community of interest in terms and conditions of employment separate from the other 

employees. Worthington Corp., 155 NLRB 59 (1965). See also American Motors Corp., 206 

NLRB 287 (1973); and Fisher Controls Co., supra. See also Siemens Corp., 224 NLRB 1579 

(1976), in which the Board permitted a self-determination election in which office clerical 

employees could vote for inclusion in a technical unit. 

19-510 Technical Employees—Health Care 

470-3300 

Technical employees are an appropriate unit in acute care hospitals under the Rule, 284 

NLRB 1515, 1553. For a discussion of technical units under the health care Rule see Park Manor 

Care Center, 305 NLRB 872 (1991); Meriter Hospital, 306 NLRB 598 (1992); and Faribault 

Clinic, 308 NLRB 131 (1992). See also San Juan Regional Medical Center, 307 NLRB 117 

(1992), in which a divided panel found biomedical technicians not to be technical employees. 

Accord: Mercy Health Services North, 311 NLRB 1091 (1993). 

In Hallandale Rehabilitation Center, 313 NLRB 835 (1994), the Board found a diet 

technician to be a technical employee. Citing Sheffield, supra, for the need to make “pragmatic 

judgments,” the Board included that technician is a unit that included, inter alia, all dietary 

employees. 

In Virtua Health, Inc., 344 NLRB 604 (2005), the Board found that a unit of the employer’s 

paramedics was too limited and that the paramedics should be included in a technical unit. The 

employer was a health care institution and the employer contended that it was an acute care 

facility and, thus, within the Board’s Health Care Unit Rule. The Board found it unnecessary to 

decide coverage under the Rule because even under the broader standard of Park Manor Care 

Center, 305 NLRB 872 (1991), the community-of-interest test, a paramedic unit was not 

appropriate. 

For a discussion of a technical employees’ unit in a psychiatric hospital, see Brattleboro 

Retreat, 310 NLRB 615 (1993). 

Whether or not technical employees will be included in a nontechnical unit depends on the 

facts of the case. In Hillhaven Convalescent Center, 318 NLRB 1017 (1995), the Board excluded 
CATEGORIES GOVERNED BY BOARD POLICY 243

technicals from an overall nonprofessional unit distinguishing a contrary holding in Brattleboro

Retreat, supra. Accord: Lincoln Park Nursing Home, supra. 

19-600 Quality Control Employees 

401-7500 

440-1760-0500 et seq. 

Quality control employees are generally included in a production and maintenance unit based 

on traditional community-of-interest standards. Blue Grass Industries, 287 NLRB 274 (1987). 

See also Lundy Packing Co., supra, where a divided Board excluded those employees from a 

production and maintenance unit. 
244 CATEGORIES GOVERNED BY BOARD POLICY 
20. EFFECT OF STATUS OR TENURE ON UNIT 

PLACEMENT AND ELIGIBILITY TO VOTE 

In both unit placement and eligibility to vote, the status of employees and their tenure are 

major considerations. The job classifications of employees do not always determine whether or 

not they will be included in a unit. Treated here are questions which pertain to (1) part-time 

employees; (2) temporary employees; (3) seasonal employees; (4) student workers; (5) dualfunction employees; and (6) probationary employees, including trainees and clients in 

rehabilitation settings. 

20-100 Part-Time Employees 

20-110 Generally 

362-6712 

460-5067-4200 

Part-time employees are included in a unit with full-time employees whenever the part-time 

employees perform work within the unit on a regular basis for a sufficient period of time during 

each week or other appropriate calendar period to demonstrate that they have a substantial and 

continuing interest in the wages, hours, and working conditions of the full-time employees in the 

unit. New York Display & Die Cutting Corp., 341 NLRB 930 (2004); Arlington Masonry Supply, 

Inc., 339 NLRB 817 (2003); and Fleming Foods, 313 NLRB 948 (1994). Pat’s Blue Ribbons, 286 

NLRB 918 (1987); and Farmers Insurance Group, 143 NLRB 240, 245 (1979). Such part-time 

employees are described as “regular part-time employees.” 

In Arlington Masonry Supply, Inc., supra at 819, the Board described its policy for 

determining part-time eligibility: 

The test to determine whether one is a regular part-time employee versus a casual 

employee “takes into consideration such factors as regularity and continuity of employment, 

tenure of employment, similarity of work duties, and similarity of wages, benefits, and other 

working conditions.” Muncie Newspapers, Inc., 246 NLRB 1088, 1089 (1979). “In short, 

the individual’s relationship to the job must be examined to determine whether the employee 

performs unit work with sufficient regularity to demonstrate a community of interest with 

remaining employees in the bargaining unit.” Pat’s Blue Ribbons, 286 NLRB 918 (1987). 

The standard frequently used by the Board to determine the regularity of part-time 

employment is to examine whether the employee worked an average of 4 or more hours a 

week in the quarter preceding the eligibility date. See Davison-Paxon [Co., 185 NLRB 21 

(1970), infra at sec. 20-120]. 

Thus, where the number and identity of drivers and other employees fluctuated from week to 

week but a substantial number reported and worked fairly regularly over a period of several 

months, and during an 8-month period 70 of approximately 120 to 125 drivers worked in three or 

more consecutive weekly pay periods, with many more working in 10 or more consecutive 

weeks, the Board concluded that this “is scarcely the pattern of a temporary, part-time or casual 

work force.” Fresno Auto Auction, 167 NLRB 878 (1967). The brevity of the employee’s tenure 

may be a factor in determining part-time status, but it is not dispositve. In New York Display & 

Die Cutting Corp., supra, the Board found regular part-time status for an employee who was hired 

9 days before the election. 

The Board in this case made the further comment that “[i]n determining the relative regularity 

or permanence of the employment in the proposed unit, we believe this fact outweighs those 

considerations having to do with the individual’s freedom to determine his own work schedule or 

to report for work intermittently.” The fact that they were carried on the payroll as part-time 

workers did not “alter the character of the work force as a cohesive group of individuals with a 

245
246 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

strong mutual interest in their working conditions.” Id. See also Henry Lee Co., 194 NLRB 1107 

(1972). 

Following this principle, part-time employees who worked principally on weekends 

performing the same work as full-time workers were included in a unit of full-time employees. 

Bob’s Ambulance Service, 178 NLRB 1 (1969). And where for a representative 2-week payroll 

period each employee averaged 33 hours of work, they were found to be regular part-time 

employees. Shannon & Luchs, 166 NLRB 1011 (1967). 

As has been noted, the similarity of interests between full-time and part-time employees is a 

determinative factor. Newburgh Mfg. Co., 151 NLRB 763 (1965); Berea Publishing Co., 140 

NLRB 516 (1963); and Great Atlantic & Pacific Tea Co., 119 NLRB 603 (1957). In evaluating 

the part-time status of employees, consideration is given to regularity and continuity of 

employment, the similarity of duties and functions to those of full-time employees, the similarity 

of wages, benefits, and other working conditions, and the supervision of the part-time employees. 

V.I.P. Movers, 232 NLRB 14 (1977); L & A Investment Corp., 221 NLRB 1206, 1207 (1975); 

Lancaster Welded Products, 130 NLRB 1478 (1961); and Mensh Corp., 159 NLRB 156, 158 

(1966). The work history of the employees in question is also considered (Columbus Plaza Hotel, 

148 NLRB 1053 (1964)), as is the turnover rate among that classification of employees (Lewis & 

Coker Supermarkets, 145 NLRB 970 (1964); and Vindicator Printing Co., 146 NLRB 871 

(1964)). 

Various standards, such as hours worked per day or week, or days worked per calendar 

period, have been applied in different industries to determine whether a part-time employee is 

regular or casual. Davison-Paxon Co., 185 NLRB 21, 23–24 (1970); C. T. L. Testing 

Laboratories, 150 NLRB 982 (1965); and Motor Transport Labor Relations, 139 NLRB 70 

(1962). 

Examples of such determinations follow: 

In retail department stores, part-time employees who worked a minimum of 15 days in the 

calendar quarter before the eligibility date were considered regular part time. Scoa, Inc., 140 

NLRB 1379 (1963). 

Part-time taxi drivers working 1 or 2 days a week were included in the unit found 

appropriate. Jat Transportation Corp., 128 NLRB 780 (1960); Cab Operating Corp., 153 

NLRB 878 (1965); and Checker Cab Co., 141 NLRB 583 (1963). 

All part-time employees who worked at least 8 hours per week were included (Chester 

County Beer Distributors, 133 NLRB 771 (1961)), as were employees who worked 20 hours 

per week. (Farmers Insurance Group, supra.) 

Part-time blood collectors who work an average of 5 to 25 hours per week and whose 

hours are scheduled in advance were included in the unit. St. Luke’s Episcopal Hospital, 222 

NLRB 674, 678 (1976). See also Leaders Nameoki, Inc., 237 NLRB 1269 (1978) (4 hours for 

department store personnel). 

Employees who regularly averaged 4 hours a week for the last quarter prior to the 

eligibility date were regarded as having a sufficient community of interest to warrant 

inclusion. V.I.P. Movers, supra; Allied Stores of Ohio, 175 NLRB 966 (1969). 

Part-time employees working approximately one-quarter of the available workdays in the 

quarter of a year preceding an election were included in a production and maintenance unit of 

a newspaper printer and publisher. Suburban Newspaper Group, 195 NLRB 438 (1972). 

An annuitant working regularly but limited in hours and pay so as not to decrease his annuity 

was included in the unit. Consolidated Supply Co., 192 NLRB 982, 986 (1971). 

Where there is a wide disparity in the numbers of hours worked by part-time employees, the 

Board may fashion an appropriate standard to assure an equitable formula. Compare Marquette 

General Hospital, 218 NLRB 713 (1975), with Sisters of Mercy Health Corp., 298 NLRB 483 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 247

(1990), and Northern California Nurses Assn., 299 NLRB 980 (1990). See also Beverly Manor 

Nursing Home, 310 NLRB 538 (1993). 

Regular part-time employees are characteristically included in a retail store unit. Where all 

part-time selling employees worked a regular and substantial amount of time and had a sufficient 

community of interest with full-time employees, the Board dismissed a petition for a proposed 

unit which was restricted to so-called regular sales employees. Sears, Roebuck & Co., 172 NLRB 

1266 (1968). 

The fact that an employee has a regular full-time position elsewhere does not destroy his 

community of interest with employees at his part-time employment if the other criteria are met. 

Tri-State Transportation Co., 289 NLRB 356 (1988); and Joclin Mfg. Co., 144 NLRB 778 

(1963). But where such an employee will only work at his part-time job as his full-time position 

allows, and there is therefore no established working pattern, the employee may be considered 

irregular and casual. Haag Drug Co., 146 NLRB 798 (1964). Compare V.I.P. Radio, 128 NLRB 

113 (1960). 

See also section 20-120 and 140. 

20-120 “On-Call” Employees 

362-6734 

460-5067-8200 

“On-call” employees may or may not be considered regular part-time employees, depending 

on the specific nature of their employment. Where they are employed sporadically, with no 

established pattern of regular continuing employment, they are excluded from the unit. Piggly 

Wiggly El Dorado Co., 154 NLRB 445, 451 (1965); and G. C. Murphy Co., 128 NLRB 908 

(1960). 

But where “on-call” employees have a substantial working history, with a substantial 

probability of employment and regular hiring, and meet any other criteria established by the 

Board, they are considered regular part-time employees. Davison-Paxon Co., supra; Wadsworth 

Theater Management, 349 NLRB 122 (2007); and Steppenwolf Theatre Co., 342 NLRB 69 

(2004), applying the Davison–Paxon formula and distinguishing the Julliard School, 208 NLRB 

153 (1974), formula; Berlitz School of Languages, 231 NLRB 766 (1977); Newton-Wellesley 

Hospital, 219 NLRB 699, 703 (1975); Columbus Plaza Motor Hotel, supra; and Bailey 

Department Stores Co., 120 NLRB 1239 (1958). See also Saratoga County Chapter NYSARC, 

314 NLRB 609 (1994). 

The Board applies the Davison-Paxon formula in determining eligibility of part-time 

employees absent special circumstances. See Columbus Symphony Orchestra, Inc., 350 NLRB 

523 (2007), where the Board reaffirmed and described the “special circumstances” test. 

The Board used “dual-function” analysis in determining whether employees were eligible to 

vote in an election of parking lot employees where the individuals worked full time for the 

employer in other positions. The Board rejected the “on-call” analysis of the Regional Director. 

Syracuse University, 325 NLRB 162 (1997). 

When a contract specifically covered in one bargaining unit all the employer’s film servicing 

locations, the on-call technicians performed the same work as the full-time technicians, and the 

contract also specifically provided for the employment of on-call technicians and for their 

remuneration on a flight-serviced basis, the on-call technicians were included in the unit. Bell & 

Howell Airline Service Co., 185 NLRB 67 (1970). 

In determining the number of working hours, the Board counted time spent by home health 

care workers in completing paperwork and in delivering mandatory paperwork to the office. It did 

not count time spent consulting with other personnel. Five Hospital Homebound Elderly 

Program, 323 NLRB 441 (1997). 

For related discussion see Irregular Part-Time Employees, section 20-140 below. 
248 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

For a discussion of “on-call” nurses, see the health care cross listed in section 20-110 above. 

For a related discussion of “on-call employees,” see section 23-450. 

20-130 Part-Time Faculty Members 

460-5067-4200 

The Board determined in New York University, 205 NLRB 4 (1973), that the differences 

between members of the full-time and members of the part-time faculty are so substantial in most 

colleges and universities that it would no longer adhere to the principle announced in University 

of New Haven, 190 NLRB 478 (1971), of including regular, part-time faculty in the same unit 

with full-time faculty. Thus, the Board now “excludes adjunct professors and part-time faculty 

members who are not employed in ‘tenure track’ positions.” Also see Catholic University of 

America, 205 NLRB 130 (1973). However, the Board has found a separate unit of part-time 

faculty members to be appropriate when the employees sought to share a community of interest. 

University of San Francisco, 265 NLRB 1221 (1982). Cf. Goddard College, 216 NLRB 457 

(1975). 

20-140 Irregular Part-Time Employees 

362-6730 

460-5067-7700 

We turn now to part-time employees whose work periods are sporadic or casual. These are 

normally termed “irregular part-time employees.” Within the framework of the basic rationale 

which delineates the dichotomy between “regular” and “irregular,” close cases often arise. The 

absence of the required factors for finding regular part-time status inevitably leads to a finding of 

“casual” status. Royal Hearth Restaurant, 153 NLRB 1331 (1965). Considerations such as the 

ability of an employee to accept or reject employment or to vary the number of hours worked 

according to personal choice are relevant to the determination. Thus, the option of employees on 

a list subject to call to reject or accept employment is relevant to but not determinative of casual 

employment. Pat’s Blue Ribbons, 286 NLRB 918 (1987); Tri-State Transportation Co., 289 

NLRB 356, 357 (1988); and Manncraft Exhibitors Services, 212 NLRB 923 (1974). Infrequent 

employment also leads to such a finding. Callahan-Cleveland, Inc., 120 NLRB 1355, 1357 

(1958); and Colombia Music & Electronics, 196 NLRB 388 (1972). 

In Mercury Distribution Carriers, 312 NLRB 840 (1993), the Board held that an employee’s 

option to turn down work and the fact that the employee did not call in every day does not 

preclude a finding of regular part-time employee. 

For related discussion, see On-Call Employees, section 20-120 above. 

20-200 Temporary Employees 

362-6718 

460-7000 

The test for determining the eligibility of individuals designated as temporary employees is 

whether they have an uncertain tenure. Marian Medical Center, 339 NLRB 127 (2003). If the 

tenure of the disputed individuals is indefinite and they are otherwise eligible, they are permitted 

to vote. Personal Products Corp., 114 NLRB 959 (1955); Lloyd A. Fry Roofing Co., 121 NLRB 

1433 (1958); United States Aluminum Corp., 305 NLRB 719 (1991); and NLRB v. New England 

Lithographic Co., 589 F.2d 29 (1st Cir. 1978). On the other hand, where employees are employed 

for one job only, or for a set duration, or have no substantial expectancy of continued 

employment and are notified of this fact, and there have been no recalls, such employees are 

excluded as temporaries. Indiana Bottled Gas Co., 128 NLRB 1441 fn. 4 (1960); Owens-Corning 

Fiberglas Corp., 140 NLRB 1323 (1963); Sealite, Inc., 125 NLRB 619 (1959); and E. F. Drew & 

Co., 133 NLRB 155 (1961). 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 249

A permanent and regular nonunit employee who is temporarily transferred to a unit position 

is not eligible to vote if the assignment is finite and reasonably ascertainable. Marian Medical 

Center, supra. 

Temporary employees who have achieved permanent status prior to the eligibility date are 

eligible to vote. Gulf States Telephone Co., 118 NLRB 1039, 1041 (1957). Thus, where 

employees were hired to fill full-time or part-time jobs with the understanding that their 

employment may be terminated at any time but remained in continuous service for a period 

longer than 1 year and under company policy achieved permanent status, they were found eligible 

to vote. It is the employee’s status as of the eligibility date that is determinative. Events occurring 

after the eligibility date are irrelevant to such a determination. Pen Mar Packaging Corp., 261 

NLRB 874 (1982); and St. Thomas-St. John Cable TV, 309 NLRB 712 (1992). See also Apex 

Paper Box, 302 NLRB 67 (1991), concerning laid-off employees recalled after the eligibility date 

but prior to the election, and WDAF Fox 4, 328 NLRB 3 (1999) , where a divided Board found 

that the employer changed what had been a fixed termination date 

Where the employer calls back a substantial number of the same employees, even though 

they are described as “temporary,” each year, they are included in the unit. Tol-Pac, Inc., 128 

NLRB 1439 (1960). Compare Recipe Foods, 145 NLRB 924 (1964); and LaRonde Bar & 

Restaurant, 145 NLRB 270 (1963). 

Temporary employees, who, despite that characterization, are retained beyond their original 

term of employment, and whose employment is thereafter for an indefinite period, are included in 

the unit. MJM Studios of New York, 336 NLRB 1255 (2001); and Orchard Industries, 118 NLRB 

798 (1957). Also included are so-called temporary employees who have worked for substantial 

periods where there is no likelihood that their employment will end in the immediate foreseeable 

future. Horizon House 1, Inc., 151 NLRB 766 (1965). See also Textile Workers UTWA, 138 

NLRB 269 fn. 3 (1962); Lloyd A. Fry Roofing Co., 121 NLRB 1433 (1958); and Personal 

Products Corp., 114 NLRB 959 (1955). Even when an employee knows that a replacement is 

being sought, the employee remains eligible to vote if no definite date is set for the termination of 

employment. NLRB v. New England Lithographic, supra. 

Temporary employees drawn from the same labor force each year, employed every year in 

substantial numbers for substantial periods of time, composed primarily of former employees, and 

working with and doing the same kind of work as the permanent employees have a sufficient 

interest in the conditions of employment to be included despite difference in working conditions, 

remuneration, and the temporary nature of the work. F. A. Bartlett Tree Expert Co., 137 NLRB 

501 (1962). 

Employees in a labor pool who are hired out to employer’s customers on a day-to-day basis 

are casual laborers similar to stevedores and are entitled to the protection of the Act even though 

the employer does not exercise control over the entire employment relationship. All-Work, Inc., 

193 NLRB 918 (1971). Eligibility, however, was limited to employees who had worked at least 7 

days in the 90-day period preceding the Board’s decision and direction of election at least 1 of 

which days was in the 30-day period preceding the decision. 

In Evergreen Legal Services, 246 NLRB 964 (1979), the Board found that employees 

working under Comprehensive Employment and Training Act programs (CETA) were not 

temporary and should be included in a unit with regular full-time employees. See section 20-620 

for a discussion of Trainees. 

In one post-M.B. Sturgis case (see sec. 14-600) (M.B. Sturgis, Inc., 331 NLRB 1298 (2000)) 

(the Board included the contingent employees supplied by a staffing agency in the unit of user 

employees. In doing so the Board found a “strong” community of interest. The Board did not 

however analyze the case under traditional temporary analysis even though the employees 

worked for a maximum of 15 months. Outokumpu Copper Franklin, Inc., 334 NLRB 263 (2001). 

Although Sturgis has been overruled by Oakwood Care Center, 343 NLRB 659 (2004), on the 
250 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

issue of consent for inclusion in multiemployer units, presumably, community-of-interest 

standards apply where that consent is given. 

For a discussion of students or temporary employees, see section 20-400, infra. 

20-300 Seasonal Employees 

460-5067-5600 

Regular seasonal employees are those who have a reasonable expectation of reemployment in 

the foreseeable future; they are included in the bargaining unit. L & B Cooling, 267 NLRB 1 

(1983); P. G. Gray, 128 NLRB 1026 (1960); Musgrave Mfg. Co., 124 NLRB 258 (1959); 

California Vegetable Concentrate, 137 NLRB 1779 (1962); Baumer Foods, 190 NLRB 690 

(1971); and Knapp-Sherrill Co., 196 NLRB 1072 fn. 2 (1972). 

For discussion of students or temporary employees, see section 20-400, infra. 

Temporary or casual seasonal employees are excluded. L & B Cooling, supra; Post Houses, 

161 NLRB 1159, 1172–1173 (1966); Root Dry Goods Co., 126 NLRB 953 fn. 10 (1960); and 

F. W. Woolworth Co., 119 NLRB 480 (1957). 

It is Board policy that unit placement and voting eligibility are inseparable issues; any 

employee who may be represented as the result of an election has the right to vote in the election. 

This policy, restated in Post Houses, supra; Sears, Roebuck & Co., 112 NLRB 559 fn. 28 (1955), 

is applicable not only to seasonal employees but to all employees who are entitled to be included 

in the bargaining unit. 

Factors which militate in favor of finding employees regular seasonal employees warranting 

inclusion are: 

20-310 Same Labor Force 

460-5067-5600 

The employer draws from the same labor force each season. Seneca Foods Corp., 248 NLRB 

1119 (1980); Maine Apple Growers, Inc., 254 NLRB 501 (1981); Kelly Bros. Nurseries, 140 

NLRB 82 (1962); Carol Management Corp., 133 NLRB 1126 (1961); and Baumer Foods, supra. 

20-320 Former Employees 

460-5067-5600 

Former employees are given preference in rehiring or recall, whether the employer uses a 

preferential hiring list or not. Bogus Basin Recreation Assn., 212 NLRB 833 (1974); Aspen Skiing 

Corp., 143 NLRB 707 (1963); Brown Cigar Co., 124 NLRB 1435 (1959); and Micro Metalizing

Co., 134 NLRB 293 (1962). 

20-330 Similarity of Duties, etc. 

460-5067-5600 

Duties, working conditions, supervision, and/or benefits are substantially similar for both 

permanent and seasonal employees. Kelly Bros. Nurseries, supra; California Vegetable 

Concentrate, supra. 

20-340 Transition 

460-5067-5600 

The ability to go from seasonal to permanent employment. California Vegetable 

Concentrates, supra; Micro Metalizing, supra. Where there is a relatively stabilized demand for, 

and dependence on, such employees by the employer, and there is likewise reliance by a 

substantial number of the employees on a return to the employer each year, the employees in 

question have a sufficient community of interest with the permanent employees to be included in 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 251

the unit. Maine Apple Growers, supra; Kelly Bros. Nurseries, supra; California Vegetable 

Concentrates, supra. 

Factors which militate against finding employees regular seasonal employees may be found 

in the following cases: 

Where there is a high turnover rate among seasonal employees, the employer does not follow 

a recall policy, and the seasonals rarely become permanent employees and do not share in the 

benefits received by the permanent employees, the employees are temporary or irregular seasonal 

employees without sufficient interests to be included in the unit. Freeman Loader Corp., 127 

NLRB 514 (1960). 

“Christmas extras,” who do not generally return each year and have no expectation of 

continued employment, are excluded from the unit. Root Dry Goods Co., supra at fn. 10. 

Where at the time of the hearing there had been only 1 recall of laid-off employees and a total 

of 75 temporary seasonal employees were hired, but there was no precise evidence as to what 

percentage of this number was returning from prior layoffs, the Board could not, on the basis of 

the 1 recall alone, find that “a sufficiently large number of temporary seasonal employees has a 

demonstrable expectation of being rehired.” They were therefore excluded from the unit and 

deemed ineligible to vote in the election. Maine Sugar Industries, 169 NLRB 186 (1968). 

Where employees hired during a seasonal peak are uncertain of reemployment, receive no 

fringe benefits, receive less pay than the regular employees in the unit, and have permanent fulltime employment elsewhere, they are excluded from the unit. Georgia Highway Express, 150 

NLRB 1649 fn. 4 (1965). See also Candy Shops, 202 NLRB 538 (1973), and L & B Cooling, 

supra. 

Where a year-round operation had a fluctuating need for extra or on-call employees in a 

seasonal pattern, and the timing of the election may tend to exclude employees with substantial 

records of employment during peak periods, the Board included in the unit employees who 

worked a minimum of 15 days in either of the two 3-month periods immediately preceding the 

date of issuance of the direction of election. Daniel Ornamental Iron Co., 195 NLRB 334 (1972). 

As the Board will not give controlling weight to bargaining history to the extent that it 

departs from clearly established Board policy, seasonal employees were included in the 

bargaining unit where they worked for a substantial portion of the year, had a near certain 

expectation of reemployment from year to year, worked alongside year-round employees under 

the same supervision, and where the employer under its new owners had undertaken new policies 

tending to eliminate distinctions previously existing between seasonal and year-round employees. 

William J. Keller, Inc., 198 NLRB 1144 (1972). 

20-350 Timing of Seasonal Elections 

370-0750-4900 

Board policy is to direct elections involving seasonal employees at as near the peak of the 

season in order to provide as many voters as possible with the opportunity to cast their ballots. 

Libby, McNeill & Libby, 90 NLRB 279, 281 (1950); Brooksville Citrus Growers Assn., 112 

NLRB 707 (1955); and Bogus Basin Recreation Assn., supra. On the other hand, circumstances 

may be such that the highest peak is not required. Elsa Canning Co., 154 NLRB 1810 (1965); and 

Fall River Dyeing Corp., 272 NLRB 839 (1984), enfd. 775 F.2d 435 (1st Cir. 1985), affd. 482 

U.S. 27 (1987). See also Saltwater, Inc., 324 NLRB 343 ( 1997). 

If the employer, despite hiring some employees seasonally, is engaged in virtually year-round 

production operations, and the number of employees in the year-round complement is relatively 

substantial, the employer’s operation may be deemed “cyclical” and an immediate election 

directed. Aspen Skiing Corp., supra; Baugh Chemical Co., 150 NLRB 1034 (1965); See Candy

Shops, supra. 

The delay in conducting the election will not require a new showing of interest. Bogus Basin 

Recreation Assn., supra. 
252 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

20-400 Student Workers 

362-6736 

460-5067-4500 

The voting eligibility of students presents a number of issues. In St. Clare’s Hospital, 229 

NLRB 1000 (1977), the Board described four categories of cases in which the issue of student 

eligibility to vote is presented: 

1. Students employed by a commercial employer in a capacity unrelated to the student’s 

course of study are eligible to vote if they otherwise meet the community-of-interest test. 

2. Students employed by their own educational institution in a capacity unrelated to their 

course of study are generally excluded from voting on the view that their relationship to the 

unit is normally viewed as transitory. But they will be included if they share a community of 

interest with the unit employees. University of West Los Angeles, 321 NLRB 61 (1996). 

3. Students employed by a commercial employer in a capacity that is related to the 

student’s course of study are excluded from the unit because the students’ relationship is 

primarily educational. 

4. Students who perform services at their educational institution that are directly related to 

their educational program. Examples of this kind of relationship are medical interns and 

residents. In Boston Medical Center, 330 NLRB 152 (1999), the Board overruled CedarsSinai Medical Center, 223 NLRB 251 (1976), and held that interns and residents are 

employees under the Act. In Brown University, 342 NLRB 483 (2004), the Board found that 

graduate assistants are not employees who are eligible for collective bargaining. 

Similar tests are applied to students employed on a part-time or temporary basis as are 

applied to all nonpermanent employees. Thus, for example, students who worked for a constant 

number of hours each weekend as night telephone operators, performing duties regularly required 

by the employer during these hours, were held to be regular part-time employees and included in 

the unit. Fairfax Family Fund, 195 NLRB 306 (1972). See also Mount Sinai Hospital, 233 NLRB 

507, 508 (1977), and System Auto Park & Garage, 248 NLRB 948 (1980). 

Student firefighters were excluded from a craft-type unit sought because they did not possess 

the skills or exercise the responsibility typically associated with firefighters. Leland Stanford Jr. 

University, 194 NLRB 1210 (1972). 

Although the Board generally excludes summer employees from the appropriate unit, such 

employees nonetheless are deemed eligible to vote if, upon returning to school, their employment 

evidences regular part-time status. This should be distinguished from “a pattern of intermittent, 

sporadic employment.” Crest Wine & Spirits, Ltd., 168 NLRB 754 (1968). See also Beverly 

Manor Nursing Home, 310 NLRB 538 fn. 3 (1993). 

In another case, a student who continued to work on Saturdays on a regular part-time basis 

when school began was found to be a regular part-time employee, but another student, as to 

whom there was no evidence that he continued his employment after resuming school on a fulltime basis, was excluded from the unit. Sandy’s Stores, 163 NLRB 728, 729 (1967). See also 

Giordano Lumber Co., 133 NLRB 205, 207 (1961). 

Where summer students were hired to fill seasonal vacancies, did not enjoy the same fringe 

benefits, and had no commitment for rehire during subsequent summers, they were held to be 

temporary employees and excluded from the unit. J. K. Pulley Co., 338 NLRB 1152 (2003); and 

Fisher Controls Co., 192 NLRB 514 (1971). See also Walgreen Louisiana Co., 186 NLRB 129, 

130 (1970); Hygeia Coca-Cola Bottling Co., 192 NLRB 1127 (1971); and Georgia-Pacific Corp., 

201 NLRB 831 (1973). 

In Saga Food Service, 212 NLRB 786 fn. 9 (1974), the Board declined to find appropriate a 

separate unit of student cafeteria employees. 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 253

20-500 Dual-Function Employees 

177-8501-7000 

362-6790 

460-5067-4900 

For the most part, the same community-of-interest tests are applied to dual-function 

employees as are applied to part-time employees. Berea Publishing Co., 140 NLRB 516 (1963); 

and Wilson Engraving Co., 257 NLRB 333 (1980). 

In enunciating this policy, the Board pointed out that the policies of the Act are best 

effectuated by according to each employee the same rights and privileges in the selection of the 

majority representative for the unit in which he works. It would perceive “no distinction between 

the part-time employee, who may work for more than one employer, and the employee who 

performs dual functions for the same employer.” (140 NLRB at 519.) Thus, employees who 

perform more than one function for the same employer may vote, even though they spend less 

than a majority of their time on unit work, if they regularly perform duties similar to those 

performed by unit employees for sufficient periods of time to demonstrate that they have a 

substantial interest in working conditions in the unit. See Harold J. Becker Co., 343 NLRB 51 

(2004); Medlar Electric, Inc., 337 NLRB 796 (2003); Ansted Center, 326 NLRB 1208 (1998); 

and Air Liquide America Corp., 324 NLRB 661 (1997). Continental Cablevision, 298 NLRB 973 

(1990); Alpha School Bus Co., 287 NLRB 698 (1987); and Oxford Chemicals, 286 NLRB 187 

(1987); but see Benson Contracting Co. v. NLRB, 941 F.2d 1262 (D.C. Cir. 1991), in which the 

circuit court denied enforcement of a Board Order inasmuch as Board determination that dualfunction employees were entitled to vote in two separate units would require such employees to 

join two different unions to maintain their employment with the employer. Berea was reaffirmed 

in Avco Corp., 308 NLRB 1045 (1992). In KCAL-TV, 331 NLRB 323 (2000), the Board 

concluded that the dual-function employee there had sufficient interest in each of the two units in 

which she worked as to permit her to vote in both elections. 

In Columbia College, 346 NLRB 690 (2006), the Board stated: 

. . . the touchstone of dual-function employee status is the fact that a single employee 

performs multiple job functions covered by one or more of the employer’s job 

classifications. 

However, in a situation where alleged dual-function employees had only 3 percent or less of 

their time devoted to the type of work done by the employees in the unit, they had no such 

community of interest with them that would warrant their inclusion in the unit. They did not 

spend a substantial period of their time performing “identical” functions. Davis Transport, 169 

NLRB 557 (1968). Moreover, where an employee, who was primarily involved in running a parts 

department and performing mechanic’s duties, did some truck driving on all or part of only 20 

days in a year but without regularity, pattern, or consistent schedule, the Board found that he did 

not perform a sufficient amount of work in the truckdriver unit to demonstrate that he had a 

substantial interest in the unit to warrant inclusion. Mc-Mor-Han Trucking Co., 166 NLRB 700, 

702 (1967). See also Arlington Masonry Supply, Inc., 339 NLRB 817 (2003); Martin Enterprises, 

325 NLRB 714 (1998); W. C. Hargis & Sons, Inc., 164 NLRB 1042 (1967); Continental 

Cablevision of St. Louis, supra; Landing Construction Co., 273 NLRB 1288 (1984); and U.S. 

Pollution Control, 278 NLRB 274 (1986). In Pacific Lincoln-Mercury, 312 NLRB 901 fn. 4 

(1993), the Board noted that 5 to 10 percent of an employee’s time doing unit work was 

insufficient to include him in the unit under the Berea standard. Compare Medlar Electric, supra 

(25 to 30 percent of time sufficient for dual-function status). See also WLVI Inc., 349 NLRB No. 

63 fn. 5 (2007), noting that there is no bright line rule but suggesting a 25-percent guideline, and 

Bredero Shaw, 345 NLRB 782, 786 (2005) (“sufficient periods of time to demonstrate substantial 

interest”). 
254 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

The inclusion of a dual-function employee within a particular unit does not require a showing 

of community-of-interest factors in addition to the regular performance of a substantial amount of 

unit work. Fleming Industries, 282 NLRB 1030 fn. 1 (1987). The Board has stated that dualfunction analysis is a variant of the community-of-interest test and is not applied where the 

parties agree on exclusion. Halsted Communications, 347 NLRB 225 (2006). 

Historical note: The Berea decision overruled Denver-Colorado Spring-Pueblo Motor Way, 

129 NLRB 1184 (1961), which required that an employee spend over 50 percent of his time in 

unit work to be included in the unit, and restored the “sufficient interest” test and the equation of 

dual-function and part-time employees initially used in Ocala Star Banner, 97 NLRB 384 (1951). 

While Grocers Supply Co., 160 NLRB 485 fn. 2 (1966), cited the Denver case, the result reached 

was consistent with the Berea rule. 

The dual-function issue is also presented in situations where the employees have out-of-unit 

supervisory responsibilities. In Adelphi University, 195 NLRB 639 (1972), the Board included an 

individual in a unit of faculty members even though he had supervisory authority over his 

secretary. See also New York University, 221 NLRB 1148, 1156 (1975). 

Later in Detroit College of Business, 296 NLRB 318 (1989), the Board rejected what had 

become the 50-percent rule—“any individual who supervises nonunit employees less than 50 

percent of his time is not a supervisor.” Instead, the Board stated that determinations of 

supervisory status would be made on the basis of a “complete examination of all the factors 

present to determine the nature of the individual’s alliance with management.” See also Rite Aid

Corp., 325 NLRB 717 (1998), and Legal Aid Society of Alameda County, 324 NLRB 796 (1997). 

Note—Contract bar—In Otasco, Inc., 278 NLRB 376 (1986), the Board held that contractbar principles preclude the inclusion of dual-function employees in a petitioned-for unit where 

they are already included in a unit covered by the contract. Similarly, the Berea principle cannot 

work to result in two units where otherwise there would be one. Sunray Ltd., 258 NLRB 517 

(1981). 

In Meadow Valley Contractors, 314 NLRB 217 (1994), the Board rejected a dual-function 

analysis where the employee had ceased performing nonunit work by the election eligibility date. 

20-600 Probationary Employees, Trainees, and Clients (Rehabilitation) 

20-610 Probationary Employees 

460-5067-2100 

“Probationary employees . . . receive and hold their employment with a contemplation of 

permanent tenure, subject only to the satisfactory completion of an initial trial period.” National 

Torch Tip Co., 107 NLRB 1271, 1273 (1954); Vogue Art Ware & China Co., 129 NLRB 1253 

(1961); and Johnson Auto Spring Service, 221 NLRB 809 (1975). Where their general conditions 

of work and their employment interests are like those of the regular employees (Rust Engineering 

Co., 195 NLRB 815 (1972)), and they have a reasonable expectation of continued employment 

(Afro Jobbing & Mfg. Corp., 186 NLRB 19 (1970)), probationary employees are included in the 

unit. The requirement of the completion of a probationary period does not militate against a 

finding that the employees are permanent. Pacific Tile & Porcelain Co., 137 NLRB 1358 (1962); 

and Sheffield Corp., 123 NLRB 1454 (1959). 

20-620 Trainees 

460-5067-1400 

Trainees may or may not be included in the bargaining unit, depending on an evaluation of 

the interests of such employees compared to those of the regular employees. Present duties and 

interests are determinative, not future assignments. Heckett Engineering Co., 117 NLRB 1395 

(1957). Thus, an employee who was engaged in a training program which might lead to a 

supervisory position at some indefinite time in the future was included in the bargaining unit. 
EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE 255

Cumberland Shoe Corp., 144 NLRB 1268 (1963). See also Big “N,” Department Store No. 307, 

200 NLRB 935 (1972); and Johnson Auto Spring Service, 221 NLRB 809 (1975), and discussion 

of “management trainees” in chapter on Statutory Exclusions (supervisors), section 17-506. 

Beginners with a reasonable expectancy of permanent employment, having a community of 

interest with other employees, are likewise eligible. Gulf States Telephone Co., 118 NLRB 1039 

(1957); see also Data Technology Corp., 281 NLRB 1005, 1006 fn. 3 (1986). However, where 

trainees have different backgrounds from the employee in the unit and have a good probability of 

achieving supervisory status, their interests are different from production and maintenance 

employees and they are excluded from such a unit. Cherokee Textile Mills, 117 NLRB 350 

(1957); and WTOP, Inc., 115 NLRB 758 (1956). See also M. O’Neil Co., 175 NLRB 514, 517 

(1969). 

Even where the Board would exclude a group of trainees from the unit if it were making the 

unit determination, the parties may agree to their inclusion. Montgomery Ward & Co., 123 NLRB 

135 (1959). 

Where “sales trainees” were paid 12 percent more than the beginning rate for warehouse 

employees, received bonuses for which the latter were not eligible, did not punch the clock, if 

successful as “sales trainees” were to become inside salesmen, and, if unsuccessful, terminated, 

but under no circumstances were they to become permanent warehouse employees, they were 

excluded from the unit. Garrett Supply Co., 165 NLRB 561, 562 (1967). 

Similarly, where a former shop employee had become a sales trainee and his current duties 

and conditions of employment indicated that his community of interest lay with the sales 

engineers rather than with the rank-and-file employees in the bargaining unit, he was excluded 

from the unit. East Dayton Tool Co., 194 NLRB 266 (1972). 

But where the purpose of a training program was to train employees to become capable of 

performing a variety of functions throughout the plant and many of them, although not all, are 

assigned to production classifications on completion of the program, they were included in the 

unit. UTD Corp., 165 NLRB 346 (1967). See also General Electric Co., 131 NLRB 100, 104–

105 (1961). 

See section 20-200 in this chapter concerning employees working under Comprehensive 

Employment and Training Act (CETA) programs. 

20-630 Clients (Rehabilitation) 

177-2478 

460-5067-9500 

Handicapped individuals who perform services for a social service organization as part of a 

rehabilitation program are not statutory employees. See Goodwill Industries of Tidewater, 304 

NLRB 767 (1991), and cases cited therein. As the Board indicated in Goodwill, the touchstone for 

this determination is the nature of the relationship between the employer and the individual. If it 

is a typical industrial relationship, Section 2(3) employee status is found. Alternatively, a 

rehabilitative relationship with working conditions that are not typical of the private sector will 

not result in a finding of employee status. 

Where the Board has found that client/trainees and client/employees are not statutory 

employees and therefore excluded from the unit, it has held that the remaining nonhandicapped 

individuals, employed under conditions typical of the private sector, are employees and directed 

an election limited to these employees. Goodwill Industries of Denver, 304 NLRB 764 (1991). 

In Brevard Achievement Center, 342 NLRB 982 (2004), the Board (3 to 2) reaffirmed “the 

primarily rehabilitative standard” applied in Goodwill Industries of Denver and Goodwill 

Industries of Tidewater. The burden of establishing a “primarily rehabilitative” relationship rests 

with the employer and in Goodwill Industries of North Georgia, 350 NLRB No. 5 (2007), the 

Board found that the employer did not meet its burden. 
256 EFFECT OF STATUS OR TENURE ON UNIT PLACEMENT AND ELIGIBILITY TO VOTE

In Davis Memorial Goodwill Industries, 318 NLRB 1044 (1995), the Board found that a 

group of handicapped workers are employees as their relationship with the employer “is 

characterized by business considerations more typical of service employment in the private 

sectors.” Accord: Huckleberry Youth Programs, 326 NLRB 1272 (1998). 

For a discussion of jurisdiction over these facilities generally, see section 1-319. 
21. SELF-DETERMINATION ELECTIONS 

355-2201-5000 

There are circumstances in which no final determination is made in the decision and direction 

of election, but instead voting groups are established and the finding of an appropriate unit is 

deferred pending ascertainment of the wishes of the employees as reflected by a “selfdetermination” election. This practice had its origin early in the Board’s history (Globe Machine 

& Stamping Co., 3 NLRB 294 (1937), and has continued since then, taking on more varied forms 

as time goes on. See also Armour & Co., 40 NLRB 1333 (1942). For a discussion of the history 

of Armour-Globe elections see NLRB v. Raytheon Co., 918 F.2d 249 (1st Cir. 1990), and 

Syracuse University, 325 NLRB 162 (1997). See also CHM section 11091. 

A self-determination election is typically held where (1) the several units proposed by 

competing labor organizations are equally appropriate, as in the case of a separate unit vis-a-vis a 

comprehensive unit; (2) craft or traditional departmental severance is involved; (3) such an 

election is instrumental in effectuating a statutory requirement as in the case of an election under 

Section 9(b)(1) involving professional employees; or (4) the issue is the inclusion of a group in an 

existing unit as against continued nonrepresentation. 

“Globed” employees do not automatically come under the terms of a preexisting collectivebargaining agreement. UMass Memorial Medical Center, 349 NLRB 369 (2007); Wells Fargo 

Armored Service Co., 300 NLRB 1104 (1990); and Federal-Mogul Corp., 209 NLRB 343 

(1974).. 

Examples of each type of self-determination election will be found below. The decisions 

selected should be consulted for the specific language explaining the various eventualities 

possible under the self-determination procedure. The subject of “pooling” is considered 

separately. 

21-100 Several Units Equally Appropriate 

355-2201 

355-2220-8000 

420-7360 et seq. 

When a comprehensive unit is appropriate but a smaller unit is also appropriate, and one 

union seeks the larger unit and another seeks the smaller unit a self-determination election may be 

directed. 

Where a petitioner sought a three-location unit and intervening unions requested three 

separate units, one for each location, the direction of election provided for three voting groups 

with the understanding that if a majority of the employees in each group voted for the petitioner, 

an overall unit would be certified, but in all other circumstances each group would constitute an 

appropriate unit for purposes of certification. City Electric, 225 NLRB 325 (1976), and MartinMarietta Corp., 139 NLRB 925 (1962). 

A comprehensive unit of all the employer’s production, distribution, and maintenance 

employees was found appropriate, but also appropriate, in the light of a bargaining history of 

separate representation for two specialized groups (plant maintenance and vehicle maintenance 

employees), were separate units of the latter. In these circumstances, the Board established three 

voting groups: (1) vehicle maintenance employees, (2) plant maintenance employees, and (3) 

production and distribution employees. The direction of election provided that, if a majority of 

the employees in groups (1) and (2) voted for separate representation, and a majority of group (3) 

voted for representation by the union seeking the larger unit, the three unions would be certified; 

but if a majority of the employees in groups (1) or (2) did not vote for the union seeking to 

represent them in a separate unit their votes would be “pooled” with those in group (3). Whiting 

Milk Co., 137 NLRB 1143 (1962). 

257
258 SELF-DETERMINATION ELECTIONS 

Separate groups of lithographic employees, photoengravers, and production and maintenance 

employees were accorded self-determination elections. If a majority of the first and/or second 

group selected the union seeking to represent them separately, they would be taken to have 

expressed a desire for a separate unit, but if a majority in either or both did not vote for the union 

seeking separate representation, that group would be appropriately included in the plantwide unit 

and their votes “pooled” with those in the third voting group. Court Square Press, 151 NLRB 

861, 865–866 (1965). See section 21–600 below for discussion of “pooling.” 

21-200 Craft and Traditional Departmental Severance 

355-2240 

Self-determination elections are directed where craft or traditional departmental severance is 

granted. Where a petitioner sought to sever a unit of powerhouse employees from an overall 

production and maintenance unit, severance was granted, particularly in view of the short history 

of bargaining on a more comprehensive basis. In these circumstances, and on the basis of 

additional factors present in the case, a finding was made that a powerhouse unit constituted an 

appropriate grouping for a severance election. Accordingly, no final unit finding was made but an 

election was directed in a powerhouse voting group, and provision was made as follows: If a 

majority in that group voted in favor of the petitioner, they would constitute an appropriate unit 

and a certification would issue to that effect, but if they voted for the intervenor they would 

remain part of the existing unit and a certification signifying that fact would issue. Towmotor 

Corp., 187 NLRB 1027, 1029 (1971). 

See also Eaton Yale & Towne, Inc., 191 NLRB 217 (1971) (tool-and-die makers); Memphis 

Furniture Mfg. Co., 259 NLRB 401 (1981) (over-the-road truckdrivers); Mason & Hanger-Silas 

Mason Co., 180 NLRB 467 (1970) (tool-and-die makers and machinists). 

Attention is specifically directed to the rule in elections involving severance only to the effect 

that the choices on the ballot are limited to the unions involved. The employees sought to be 

severed have the option of voting for severance or remaining in the plantwide unit. In other 

words, a severance election cannot result in a no-union choice. General Dynamics Corp., 140 

NLRB 1286 (1963); Allan, Lane & Scott, 137 NLRB 223 (1962); and American Tobacco Co., 

115 NLRB 218 (1956). 

In certain circumstances a union is precluded from seeking to represent a severed craft unit 

and the unit from which it was severed. F. N. Burt Co., 130 NLRB 1115 (1961), and see B. P. 

Alaska, Inc., 230 NLRB 986 (1977). 

21-300 Self-Determination Election for Craft or Traditional Department 

Employees Where no Prior Plantwide Bargaining History Exists 

355-2201 et seq. 

When no prior bargaining history on a plantwide basis exists, but separate craft or traditional 

departments are sought as well as a plantwide unit, the issue is not one involving severance. 

Nonetheless, a self-determination election is held in the respective voting groups. 

Where one union sought a production and maintenance unit and another, in a cross-petition, a 

unit of plumbing-pipefitting employees, including instrument repairmen and welders, elections 

were directed in three voting groups: (1) plumber-pipefitters and welders, (2) instrument 

repairmen, and (3) production and maintenance employees, excluding employees in the first two 

groups. The direction of election set out the respective choices, including the selection of a 

representative in the plantwide unit. Thus, if a majority in group (1) or (2) selected the union 

seeking the separate units, they would be taken to have indicated their desire to constitute a 

separate bargaining unit. But if a majority in either of these groups did not vote for that union that 

group would be included in the production and maintenance unit and their ballots “pooled” with 

those for the third group. Finally, if a majority in the third group, including any “pooled” group, 

voted for the union seeking the comprehensive unit, that union would be certified as the 
SELF-DETERMINATION ELECTIONS 259

representative in that unit. Union Carbide Corp., 156 NLRB 634 (1966). (See sec. 21–600 below 

for discussion of pooling.) 

21-400 Professional Employees 

355-2260 et seq. 

440-1760-4300 

Section 9(b)(1) of the Act prohibits the inclusion of professional employees in a unit with 

employees who are not professional, unless a majority of the professional employees vote for 

inclusion in such a unit. To carry out the statutory requirement, the Board has adopted a special 

type of self-determination procedure in an election known as a Sonotone election, so named after 

the lead case. Sonotone Corp., 90 NLRB 1236 (1950). 

In that case, the Board found that a unit comprising 9 professionals and 15 nonprofessionals 

may be appropriate, but, because of the proscription contained in Section 9(b)(1), elections had 

to be directed in two voting groups. The first group included all employees excluding 

professionals; the second, the professional employees alone. The ballots for the professionals 

were different from those used in other self-determination elections in that the professional 

employees were asked two questions: (1) whether they desired to be included in a group 

composed of nonprofessional employees, and (2) their choice with respect to a bargaining 

representative. If the professionals answered “Yes” to the first question, their votes were to be 

counted with those of nonprofessionals. If the answer was “No” their votes would be counted 

separately to decide which labor organization, if any, they wish to select to represent them in a 

separate unit. See also Corporacion de Servicios Legales, 289 NLRB 612 fn. 1 (1988), and 

Centralia Convalescent Center, 295 NLRB 42 (1989). 

The Board requires that there be a Sonotone election each time that there is an election in 

which professionals and nonprofessionals may be included in the same unit. Thus, there may be 

subsequent Sonotone election in the same unit regardless of whether the professionals have 

previously voted for inclusion in the overall unit. American Medical Response,344 NLRB 1406 

(2006). 

In Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999), the Board overruled a hearing 

officer who declined to take evidence in a postelection hearing on the professional status of 

medical technologists because the employer had not raised the issue before the election. Finding 

that the Region had sufficient information prior to the election to have been put on notice of the 

issue, the Board found that the Region should have investigated the alleged professional status of 

the technologists before the election. The Board ordered the hearing officer to take evidence on 

the professional status in order to determine whether a Sonotone election should have been held. 

An election was directed among industrial engineers, on the basis of a stipulation, with the 

same type of ballot, i.e. (1) whether they desired to be included in a unit of technical employees, 

and (2) whether they desired to be represented by the petitioner. Thus, if a majority in the voting 

group vote for the petitioner and for inclusion in the existing technical union, that will be the 

appropriate unit. If a majority vote for the petitioner but against inclusion in the existing unit, they 

will constitute a separate unit. Finally, if they vote against the petitioner, they will remain 

unrepresented irrespective of the outcome of the first question. Chrysler Corp., 192 NLRB 1208 

(1971). 

Elections based on an RM petition were directed among the professional employees of an art 

gallery in one voting group and among the other employees in another voting group. The 

employees in the nonprofessional voting group were polled whether or not they wished to be 

represented by the union. The employees in the professional voting group were asked two 

questions: (1) did they desire to be included in a unit of all employees, and (2) did they desire to 

be represented by the union. If a majority of the professionals expressed a desire to be included 

with the nonprofessionals, they would be so included and their votes counted together with those 
260 SELF-DETERMINATION ELECTIONS 

of the nonprofessionals. But if they voted against inclusion, their votes would be separately 

counted to determine whether they wished to be represented by the union. Minneapolis Society of 

Fine Arts, 194 NLRB 371 (1972). See also St. John of God Hospital, 260 NLRB 905 (1982), in 

which the employer argued successfully that the professional unit complement was not 

representative or substantial. 

For a situation where a Sonotone election was directed involving more than one union, see 

Permanente Medical Group, 187 NLRB 1033, 1035–1036 (1971). 

A variation on a theme occurred in an election among members of a law school faculty. 

Finding that they were “oriented more closely with their chosen field than to the academic or 

university world,” their particular interests were recognized by granting them a special kind of 

Sonotone election. Since either separate university and law school units or an overall unit would 

be appropriate, in the Board’s view, and the desires of the law faculty being critical on this issue, 

elections were directed in two voting groups. Voting group (a) consisted of all full-time law 

faculty, excluding all other full-time faculty. Voting group (b) consisted of all full-time faculty 

except those in group (a). The employees in group (a) were asked (1) whether they desired to be 

included in the same unit with the remainder of the faculty; (2) if so, whether they wished to be 

represented by AAUP; and (3) if they preferred a separate unit, whether they wished to be 

represented by AAUP, LFA, or neither. Depending on their choice, directions were given in the 

decision for tallying their votes. Syracuse University, 204 NLRB 641 (1973). These elections are 

sometimes referred to as “Armour” Globes, after Armour & Co., 40 NLRB 1333 (1942). 

For a discussion of the appropriate procedures in a decertification election where the 

professionals were never given a separate opportunity to vote in a Sonotone )election see Utah 

Power & Light Co., 258 NLRB 1059 (1981). See also Corporacion de Servicios Legales, supra. 

Compare Group Health Assn., 317 NLRB 238 (1995). 

For other professional employee issues, see section 18–100, supra. 

21-500 Inclusion of Unrepresented Groups 

355-2220 

420-7384 

440-1780-4000 et seq. 

When the incumbent union seeks to add a group of previously unrepresented employees to its 

existing unit, and no other labor organization is involved, the Board conducts another type of selfdetermination election. In such an election, if a majority of the employees vote against 

representation, they are considered as indicating a desire to remain unrepresented, but if a 

majority vote for the petitioner they are deemed to have indicated their desire to become part of 

the existing unit, represented by the incumbent union. Warner-Lambert Co., 298 NLRB 993 

(1990); and Mount Sinai Hospital, 233 NLRB 507 (1977) (regular part-time employees). See also 

St. John’s Hospital, 307 NLRB 767 (1992). In these circumstances the voting group may be one 

employee, inasmuch as the certified bargaining unit would be more than a one employee unit. 

In University of Pittsburgh Medical Center, 313 NLRB 1341 (1994), the Board ordered a 

self-determination election in a voting group of telecommunication specialists where it found the 

already represented group to be an appropriate unit, rejecting a contention that other employees at 

a related facility should be added. 

An employer filed an RM petition alleging a representation question in a unit of employees, 

hitherto unrepresented, engaged in camera and related work. The union represented all the other 

employees. Finding that the employees named in the petition were not an accretion, the Board 

directed an election in a voting group of these employees, according them an opportunity by a 

self-determination election to express their desires with respect to being included in the existing 

bargaining unit currently represented by the union. If a majority cast their ballots for the union, 

they were to be taken to have indicated their desire to constitute a part of the existing unit, but if a 
SELF-DETERMINATION ELECTIONS 261

majority voted against the union they were to be taken to have indicated a desire to remain 

outside the existing unit. NLRB v. Raytheon Co., 918 F.2d 249 (1st Cir. 1990); Photype, Inc., 145 

NLRB 1268 (1964); and Carr-Gottstein Foods Co., 307 NLRB 1318 (1992). 

In UMass Memorial Medical Center, 349 NLRB 369 (2007), the Board affirmed a Regional 

Director’s order of an Armour-Globe election for a unit of per diem paramedics. The union 

already represented the regular paramedics and the parties had discussed the per diem paramedics 

during negotiations. The union did not request recognition at that time. Later, during the term of 

the agreement, the union filed a petition for a self-determination election to determine whether 

the per diem paramedics wished to be included in the unit. The Board agreed that a selfdetermination election was appropriate, that it was not barred by the contract and that policy 

against unit classification petitions during the term of an agreement was not applicable to a selfdetermination election because it is “meaningfully distinct from an accretion.” 

In a more complex case, an employer and a union, through collective bargaining, created two 

units: (1) “cold mold” employees, and (2) residual “hot mold” employees. As to the latter, both 

employer and the incumbent union agreed that they should not have the same representation as 

the “cold mold” employees. Either unit was found appropriate depending on the desires of the 

employees in a self-determination election, the second unit being a clearly defined group of 

employees who constituted the only unrepresented production and maintenance employees in the 

plant. Accordingly, the voters in the “hot mold” group were permitted to express their desires to 

be represented in a separate unit, or to be included in the existing unit, or to remain 

unrepresented. Rostone Corp., 196 NLRB 467 (1972). 

Under certain circumstances, however, the Board directs a single election among the 

employees in both the existing historical unit and an unrepresented fringe group at the same plant. 

These circumstances are when (1) a question of representation exists in the historical unit; (2) the 

incumbent union seeks to add a previously unrepresented fringe group whom no other union is 

seeking to represent on a different basis; and (3) the exclusion derives from historical accident 

rather than from any real difference in functions or status, creating a fringe defect in the historical 

unit. “To grant a self-determination election to this group would, in practical effect, be to permit 

them to perpetuate that fringe defect by voting to maintain their unrepresented status.” D. V. 

Displays Corp., 134 NLRB 568, 571 (1962). See also reference in Rostone Corp., supra. 

Thus, employees who were excluded from the existing unit “through historical accident rather 

than upon the basis of any real difference in or interests from those of the production and 

maintenance employees” were appropriately a part of the comprehensive unit and on proper 

request will be included in such unit without being granted a self-determination election. Century 

Electric Co., 146 NLRB 232, 243–244 (1964). 

It follows, of course, that employees found to constitute an accretion to an existing unit are 

not granted a self-determination election. Instead, the existing unit is “clarified” by their 

inclusion. Radio Corp. of America, 141 NLRB 1134, 1137 (1963); and Locomotive Firemen & 

Enginemen, 145 NLRB 1521, 1526 fn. 6 (1964). 

It is also apparent, in the light of this reasoning, that when the unrepresented employees 

constitute an appropriate unit by themselves, the above rule, as enunciated in D. V. Displays 

Corp., supra, does not apply since “no true fringe group” is involved. A self-determination 

election is therefore in order in such circumstances. Ward Baking Co., 139 NLRB 1344, 1350 

(1962). For an example of a nonaccretion finding and a resulting self-determination election, see 

Almacs Inc., 176 NLRB 670 (1969). 

When, however, an incumbent union does not join in the petitioner’s request to add 

unrepresented fringe employees to the existing unit, the Board directs separate elections for the 

existing unit and for the fringe group. The purpose is to allow the employees in the existing unit 

to continue to be represented by the incumbent union, if they wish. Felix Half & Brother, Inc., 

132 NLRB 1523 (1961). This situation is distinguishable from the case of unrepresented 

employees who are in a separate plant, and therefore not a fringe group, and the incumbent is 
262 SELF-DETERMINATION ELECTIONS 

willing to go on the ballot for whatever larger unit the Board finds appropriate. Ward Baking Co., 

supra. Compare Lydia E. Hall Hospital, 227 NLRB 573 (1976), in which the Board rejected this 

procedure because of the danger of proliferating bargaining units in health care. 

Board policy precludes the establishment of a separate unit of plant clerical employees where 

the union petitioning for them currently represents a unit of the production and maintenance 

employees. For that reason, in such a situation the Board directs an election among the plant 

clericals. If a majority votes for the petitioner, they are deemed to constitute a part of the existing 

production and maintenance unit. Robbins & Myers, Inc., 144 NLRB 295 (1963). See also 

Armstrong Rubber Co., 144 NLRB 1115, 1119 (1963), in which a second union sought to 

represent the plant clericals separately. For a discussion of the effects of such an election on a 

later filed decertification petition see Beloit Corp., 310 NLRB 637 (1993). 

When a group of employees have been excluded from a unit by agreement of the parties and 

may otherwise under Board precedent be an appropriate unit, they may either constitute, as we 

have seen earlier, an appropriate “residual” group as the “only remaining unrepresented 

employees,” or may appropriately be added to the existing unit. This occurred where 

conveyermen were the only remaining unrepresented group aboard the employer’s ships, having 

been excluded by agreement of the parties. An election was directed among the conveyermen 

who were permitted to decide whether to constitute (1) a separate unit represented by the 

petitioner, (2) become part of the intervenor’s existing unit of unlicensed seamen, or (3) remain 

unrepresented. U. S. Steel Corp., 137 NLRB 1372 (1962). 

21-600 Pooling of Votes 

355-2280 

420-7396 

The “pooling of votes”in self-determination elections was first used in the American Potash 

Corp., 107 NLRB 1418 (1954). The rationale for pooling was stated initially in the dissenting 

opinion in Pacific Intermountain Express Co., 105 NLRB 480, 482–485 (1953), later adopted by 

the Board majority in American Potash). It was subsequently spelled out in greater detail in Felix 

Half & Brother, Inc., supra. 

In Felix Half, two unions sought elections in different units. The incumbent union sought an 

election only in the existing unit which it currently represented; it did not seek an election among 

a residual group of previously unrepresented employees. A second union sought an overall unit, 

thus, in effect, seeking to merge into a single unit the previously unrepresented employees and the 

existing unit of employees currently represented by the incumbent. 

In these circumstances, elections were directed in two voting groups: (1) the existing unit, 

and (2) the group of unrepresented employees. In the event that a majority of the employees in the 

existing unit selected the incumbent, and a majority of the unrepresented employees chose the 

petitioner, the Board would certify separate appropriate units. If, however, a majority of the 

employees in the existing unit did not vote for the incumbent, the Board would include the 

employees in the two voting groups in a single overall unit and would pool their votes. Thus, the 

votes for the union seeking the separate unit (the intervenor) would be counted as valid votes, but 

neither for nor against the union seeking to represent the more comprehensive unit (the 

petitioner). All other votes would be accorded their face value, whether for representation by the 

union seeking the comprehensive group or for no union. See also Pasha Services, 235 NLRB 871 

(1978); Sherwin-Williams Co., 173 NLRB 316 fn. 5 (1969); Parke Davis & Co., 173 NLRB 313 

fn. 11 (1969); and Penn-Keystone Realty Corp., 191 NLRB 800 fn. 24 (1971). 
22. REPRESENTATION CASE PROCEDURES 

AFFECTING THE ELECTION 

We have seen that an election may be conducted pursuant to an agreement for consent 

election, stipulation for certification upon consent election, Regional Directors’ decision and 

direction of election, Board’s decision and direction of election, or an expedited election under 

Section 8(b)(7)(C). The arrangements and voting procedure in all elections are the same. 

A summary of the normal procedures involving the election itself follows. In the interest of 

clarity, we list first the procedural steps seriatim without reference at this point to the substantive 

rulings which grow out of the procedural stages and usually are raised in objections cases. These 

will be discussed in the chapter on Interference With the Conduct of Elections. 

See NLRB Casehandling Manual (CHM), sections 11300 through 11478, and the Board’s 

Rules and Regulations, Sections 102.69 and 102.70. This chapter is designed to provide a general 

overview of representation case procedures. The user of this manual should refer to the cited 

provisions of CHM for guidance on specific procedural matters. 

22-101 The Election Date 

370-0700 

The selection of the time of an election is generally left to the discretion of the Regional 

Director. Manchester Knitted Fashions, 108 NLRB 1366 (1954), However, an election may not 

be held sooner than 10 days after the Regional Director has received the list of names and 

addresses of the eligible voters (see CHM sec. 11302.1). The rescheduling of an election is not in 

and of itself grounds for setting aside the election. Superior of Missouri, Inc., 338 NLRB 570 

(2002). But see section 22-106, infra, concerning notice of election in cases of rescheduling. 

22-102 The Ballot 

370-3533-5000 

370-7000 

The ballots are furnished by the Agency. No one, other than a Board agent and the individual 

voter, is permitted to handle the ballots (see CHM sec. 11306). All elections are by secret ballot 

(see Rules 102.69(a)). 

22-103 The Question and Choices on the Ballot 

The question on the ballot accords with the consent agreement or direction of election (see 

CHM sec. 11306.2). Where a self-determination election is held in which professionals are 

involved, see discussion in chapter 21 dealing with such elections. The choices on the ballot, like 

the question, accord with the agreement or direction. For the choices on the ballot in a selfdetermination election, see chapter 21. 

22-104 Withdrawal From the Ballot 

332-5000 

Whenever two or more labor organizations are included as choices in an election, either may 

on prompt request to and approval by the Regional Director have its name removed. In an RM or 

RD proceeding, timely written notice of such request must be given to all parties and to the 

Regional Director (see Rules 102.69(a)). See also chapter 8, Disclaimer of Interest and 

Withdrawal of Petition. 

263
264 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION

22-105 The Polling Place 

370-1400 

370-3567 

370-7033 

Elections are generally held on the employer’s premises in the absence of good cause to the 

contrary. The decision to conduct an election on or off the employers’ premises or by mail or 

manual ballot is within the discretion of the Regional Director. San Diego Gas & Electric, 325 

NLRB 1143 (1998). If an election is held away from the employer’s premises, the initial 

suggestion of a place is normally made by the party proposing it, but final arrangements are made 

by the Board agent. The size of a polling place depends on the nature of the election, with the 

number of voters and the length of the voting period being controlling factors. See CHM section 

11316, et seq. and section 24-421. 

22-106 The Notice of Election 

370-2800 

A standard notice of election form (NLRB-707) is used to inform eligible voters of the 

balloting details. The notice contains a sample ballot with the names of the parties inserted, a 

description of the bargaining unit, the date, place, and hours of election, and a statement of 

employee rights under the Act. Other relevant details are inserted whenever that is necessary. 

Copies of the notice must be posted in conspicuous places by the employer at least 3 working 

days before the election. Rules 103.20. See also CHM section 11314, et seq. and section 24-423. 

In the case of rescheduled elections, the Board prefers that where applicable the notice state 

that the election has been rescheduled for administrative reasons beyond the control of the parties. 

Builders Insulation, Inc., 338 NLRB 793 (2003). 

22-107 Voting Eligibility 

362-6708 

Voting eligibility is discussed in the chapter on that subject. The Excelsior rule is treated in 

the chapter on Preelection Campaign Interference. (Excelsior Underwear, 156 NLRB 1236 

(1966.) For other significant details, see CHM section 11312. 

22-108 Observers 

370-4900 

Each party is permitted to be represented at the polling place by an equal predesignated 

number of observers, who are nonsupervisory employees of the employer. This privilege is 

extended to parties, not to nonparticipating unions, nor to alleged representatives of “no union” 

groups. (See CHM sec. 11310; Board’s Rules 102.69(a); and sec. 24-424.) 

22-109 Closing of the Polls 

370-9167-8800 

The polls should be declared closed at the scheduled time. All in the voting line at the time 

scheduled for closing should be permitted to vote. At the close of the election, each observer is 

asked to sign the certification on the conduct of election. If a party had no observer, that fact is 

noted. (See CHM sec. 11324 and sec. 24-422.) 
REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION 265

22-110 Mail Ballots 

370-6300 

370-6375 

Voting in appropriate instances may be conducted by mail, in whole or in part. Mail balloting 

is used, if at all, in unusual circumstances, particularly where eligible voters are scattered either 

because of their duties or their work schedules or in situations where there is a strike, picketing, 

or lockout in progress. In these situations the Regional Director considers mail balloting taking 

into consideration the desires of the parties, the ability of voters to understand mail ballots, and 

the efficient use of Board personnel. San Diego Gas & Electric, 325 NLRB 1143 (1998). See 

also Willamette Industries, 322 NLRB 1120 (1997); London’s Farm Dairy, 323 NLRB 1057 

(1997); and Reynolds Wheels International, 323 NLRB 1062 (1997). 

In mixed manual-mail elections, mail ballots are sent to those eligibles who cannot vote in 

person. They are not sent to employees who, although eligible to vote, are ill or on vacation, or 

are members of the armed services. Mail ballots are not sent to employees in temporary layoff 

status unless all parties agree; if the parties do not agree, only the notice of election is mailed to 

such employees. CHM section 11336, et seq. 

For a discussion of eligibility in mail-ballot elections see Dredge Operators, 306 NLRB 924 

(1992). See also T & L Leasing, 318 NLRB 324 (1995), where the Board found that the Regional 

Director is without authority absent special circumstances to vary the terms of a Stipulated 

Election Agreement by conducting a mail ballot election. 

Ballots received after the due date but before the ballot count should be counted. Watkins 

Construction Co., 332 NLRB 828 (2000). 

For further discussion of mail ballots, see section 24-427. 

The Board does not permit absentee ballots. Cedar Tree Press, Inc., 324 NLRB 26 (1997), 

enf. 169 F.3d 794 (3d Cir. 1999). In its early days, the Board allowed absentee ballot by military 

personnel, but it discontinued the practice in 1941. Wilson & Co., 37 NLRB 944 (1941). The 

policy was reiterated in Atlantic Refinery Co., 106 NLRB 1268 (1953). 

22-111 Challenges 

370-5600 

Any observer has the right to challenge for cause. The Board agent must challenge anyone 

whose name is not on the eligibility list, and should challenge anyone the agent knows or has 

reason to believe is ineligible to vote. “The Board agent is not obligated to challenge a voter 

merely because this agent is aware of an eligibility dispute.” Solvent Services, 313 NLRB 645, 

646 (1994). The failure of the observor to make a timely and proper challenge is not a basis to set 

aside an election. Laidlaw Transit, Inc., 322 NLRB 895 (1997). See also Lakewood Engineering 

& Mfg. Co., 341 NLRB 699 (2004), for a summary of Board agent challenge ballot duties. 

Challenges are handled as they come up. The merit of the challenge should not be argued. 

Persons in job classifications specifically excluded by the decision and direction of election are 

refused a ballot, even under challenge unless there have been changed circumstances. See Rules 

102.69(a); CHM section 11338, et seq. Occasionally, a Regional Director or the Board may 

direct that employees vote by challenged ballot. Silver Cross Hospital, 350 NLRB No. 11 

(2007). 

Generally postelection challenges are not permitted. The exception is where the party knows 

of the ineligibility, suppressed the facts, and would otherwise benefit from its actions. See 

Lakewood Engineering & Mfg., supra; Solvent Services, supra; and Atlantic Industrial 

Constructors, Inc., 324 NLRB 355 (1997). 

A Board agent’s failure to challenge the ballot of a late arriving voter should be handled as an 

objection, not as a postelection challenge. Laidlaw Transit, Inc., 327 NLRB 315 (1998). 
266 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION

22-112 The Count 

370-7700 

For the details of the counting of ballots, see CHM section 11340, et seq. 

22-113 The Tally of Ballots 

370-7737 

The tally of ballots is on Form NLRB-760. A sample tally of ballots is reproduced in CHM 

section 11340, together with instructions on how to prepare and serve it. 

22-114 Runoff Elections 

355-1167 

362-3375 

Where there are three or more choices on the ballot, and in the election none of the choices 

receives a majority of the valid votes cast, the results are deemed “inconclusive,” and the 

Regional Director conducts a runoff election between the choices on the original ballot receiving 

the highest and the next highest number of votes. See CHM section 11350 and the examples 

contained therein. Note the “Exception” discussion to this policy. CHM section 11350.1, also 

Rules 102.70. 

See also section 23-220. 

22-115 Resolution of Challenges 

370-7750 

393-7022 

393-7033, et seq. 

Challenges are investigated if made before the questioned ballots were dropped into the ballot 

box and must have been sufficient in number to affect the results of the election. Postelection 

challenges are not permitted. NLRB v. Tower Co., 329 U.S. 324 (1946); and Poplar Living 

Center, 300 NLRB 888 (1990). There is a limited exception to this rule in situations where the 

party benefiting from its application knew of the ineligibility of the voter and supressed the facts. 

Solvent Services, supra, and Atlantic Industrial Constructors, Inc., supra. Although the Board 

requires specificity in challenges, it will accept as valid a challenge that is sufficient to raise the 

eligibility issue and deals with the duties that prompt the challenge. See Nichols House Nursing 

Home, 332 NLRB 1428, 1429 fn. 6 (2000). 

The investigation is nonadversary, insofar as the Agency is concerned. The Regional Director 

has the authority to conduct a hearing or to have one conducted. Resolution of the challenges by 

agreement is permitted. At the conclusion of the investigation, the Regional Director issues a 

report or decision, whichever is appropriate, setting forth fully the basis for the findings. A report 

is used where the election was held pursuant to a consent agreement or stipulation, and may be 

used where the election has been directed. A supplemental decision may be used where the 

election was directed by the Regional Director or by the Board. In a consent agreement, the report 

contains a final determination. In a stipulation for certification, the Regional Director may either 

issue a report containing a recommendation to the Board or issue a notice of hearing thereby 

transferring the case to the Board, or a combination of these. In directed elections, the Regional 

Director may either issue a supplemental decision containing a determination or a report 

containing recommendations and transferring the case to the Board. See Rules 102.69; CHM 

section 11360, et seq. For a discussion of Agency guidelines for handling challenge ballots see 

Paprikas Fono, 273 NLRB 1326 (1984). 

Generally, a challenged ballot envelope cannot be opened until eligibility is determined. But 

there are very limited circumstances in which the Board may permit opening without such a 
REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION 267

determination. Compare Ladies Garment Workers, 137 NLRB 1681 (1962); and Monarch 

Federal Savings & Loan, 236 NLRB 874 (1978). See also United Insurance Co. of America, 325 

NLRB 341 (1998). For further discussion of this procedure, see section 24-426. 

Review of reports on challenged ballots is obtained by filing exceptions within 14 days with 

the Board or by filing a request for review if the Regional Director has issued a supplemental 

decision Rules 102.69 (c)(2) and (c)(4). Provisions are made for decisions after hearing on 

challenges (CHM sec. 11376), a count of overruled challenged ballots (CHM sec. 11378), and for 

a revised tally of ballots (CHM sec. 11378.1). 

In Pine Shores, Inc., 321 NLRB 1437 (1996), the petitioner filed objections and there were 

also determinative challenges. Consistent with its practice, the Board resolved the challenges 

first, holding that it would only direct a new election if the petitioner won the election. See also 

Skyline Builders, Inc., 340 NLRB 109 (2003). 

22-116 Objections to Election–Filing Requirements 

393-7011 

Generally, the validity of an election may be questioned by filing objections to the conduct of 

an election or to conduct affecting the results of an election. Both types are discussed seriatim at 

some length in the chapters which follow. Objections may have the effect of invalidating an 

election. If this occurs, the election may be “rerun” and the 1-year rule of Section 9(c)(3) will not 

run against the invalidated election. 

Objections must be filed within 7 days after the tally of ballots has been made available. 

Service requirements are set out at section 102.114(a) of the Rules. See also Medtrans, 326 

NLRB 925 fn. 2 (1998). For other details, see CHM section 11392.1. Objections may be filed 

only by the following: the employer involved, the petitioner, or any labor organization whose 

name appears on the ballot as a choice. They must contain a statement of the reasons therefor, 

couched in specific, as distinguished from conclusionary terms. The objections must provide 

“meaningful notice” of the conduct alleged. Factor Sales, Inc., 347 NLRB 747 (2006). 

The party filing objections must furnish evidence sufficient to provide a prima facie case in 

support therefor before the Region is required to investigate the objections. Howard Johnson Co.,

242 NLRB 1284 (1979). This includes a list of the witnesses and a brief description of the 

testimony of each. See CHM section 11392, et seq. and Rules 102.69. See also Heartland of 

Martinsburg, 313 NLRB 655 (1994); and Holladay Corp., 266 NLRB 621 (1983). This evidence 

must be filed within 7 days of filing objections unless the Regional Director allows additional 

time. Craftmatic Comfort Mfg. Corp., 299 NLRB 514 (1990); and Goody’s Family Clothing, 308 

NLRB 181 (1992). 

In one unusual case, the Board accepted as objections unfair labor practice charges that were 

filed within 7 days of the election. The Board found that the employer acted consistent with an 

intent to file objections. Avis Rent-A-Car, 324 NLRB 445 (1997). 

See section 24-100, et seq. for further discussion of objections procedures. 

22-117 Investigation of Objections 

393-7022 

As part of the investigation of a representation question, the investigation of objections is 

nonadversarial, insofar as the Agency is concerned. Where the investigation reveals 

circumstances which were not alleged by the objecting party but which were or reasonably could 

have been within its knowledge, the objections are overruled on procedural grounds. But if, in the 

Regional Director’s discretion, the additional circumstances reveal matters that are related to the 

alleged objectionable conduct (Renco Electronics, 325 NLRB 1196 (1998)) or which raise 

substantial and material issues affecting the conduct of the election, this aspect is included in the 

report or decision. Rhone-Poulenc, Inc., 271 NLRB 1008 (1984); and Burns Security Services, 
268 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION

256 NLRB 959 (1981). The Regional Director issues a report or supplemental decision, 

whichever is appropriate, at the conclusion of the investigation. See CHM section 11394, et seq. 

22-118 Hearing on Objections 

393-7033 

Where an election was held either pursuant to an election agreement or direction of election, 

the Regional Director is authorized to conduct a hearing or to have one conducted if there are 

substantial and material factual issues. (Rules 102.6 9(d).) See also Regal Dodge, 324 NLRB 665 

(1997). If a hearing is held pursuant to a stipulation for certification election, the Regional 

Director is permitted to direct a hearing subject to special permission to appeal. Rules 

102.69(i)(1); CHM section 11396.1. This preserves the right of any party to object. Special 

permission to appeal should be requested promptly. Objections may be adjusted by voluntary 

agreement of the parties. 

Where, in the same case, there are determinative challenges as well as objections, the hearing 

generally covers both aspects. If there are objections and unfair labor practice charges, both of 

which cover, in whole or in part, the same grounds, the practice, except in special circumstances, 

generally is to consolidate both for hearing before an administrative law judge. Framed Picture 

Enterprise, 303 NLRB 722 (1991). Appropriate recommendations are then made in the decision 

and, except in the case of an election held pursuant to a consent-election agreement, the case is 

transferred to the Board. Where a consent agreement is involved, the cases are severed and the 

representation case is transferred to the Regional Director for further processing. 

The objections/challenges hearing is conducted by a hearing officer or an administrative law 

judge. The Regional Director may assign an attorney as counsel for the Region at the hearing. 

The functions and duties of the official conducting the hearing are spelled out in CHM section 

11424.3, and that of counsel for the Region, if there is one, in CHM section 11424.4. Questions 

of postponements are handled in CHM section 11427, and hearing procedures are detailed in 

CHM section 11428, et seq. Where necessary, the Board will provide interpreter services at 

Agency cost in representation hearings. George Joseph Orchard Siding, Inc., 325 NLRB 252 

(1998). 

For a discussion of the authority of the hearing officer to consider unalleged conduct see, 

Precision Products Group, 319 NLRB 640 (1995). Compare Pacific Beach Hotel, 342 NLRB 372 

(2004), distinguishing Precision Products Group.

The hearing procedure calls for a report on objections and/or challenges. The order directing 

a hearing specifies, as a rule, that, within 14 days of the issuance of the report, any party may file 

exceptions with the Board or with the Regional Director. See CHM section 11434. 

Occasionally, a refusal-to-bargain case based on a certification will be remanded to the Board 

by the court of appeals for the purpose of holding a hearing on a representation case issue. For a 

discussion of the approriate procedure in such a case, see Salem Village I, Inc., 263 NLRB 704 

(1982). 

a. Subpoenas 

Subpoenas are available to the parties subject to the standards set out in Rules 102.66(c). 

They are available from the Regional Director or the hearing officer. Upon proper motion they 

may be revoked. In at least one case, the board approved the hearing officer’s refusal to supply a 

subpoena. Millsboro Nursing & Rehabilitation Center, 327 NLRB 879 fn. 2 (1999). See Best 

Western City View Motor Inn, 325 NLRB 1186 (1998), and 327 NLRB 468 (1999), for a 

discussion of service and enforcement of “R” case hearing subpoenas. In Associated Rubber Co., 

332 NLRB 1588 (2000), a divided panel affirmed the decision of the hearing officer not to 

require enforcement of the subpoena. 

In Marian Manor for the Aged, 333 NLRB 1084 (2001), the Board affirmed a hearing officer 

who refused to seek enforcement of a subpoena in a preelection hearing. In doing so, the Board 
REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION 269

found the evidence sought was relevant and necessary but noted that there was no showing that 

the information could not be obtained from the employer’s own employees and that preelection 

hearings are investigatory, do not permit credibility resolutions, and require expeditious handling. 

Accord: Skyline Builders, Inc., 340 NLRB 109 (2003). 

b. Board agent testimony 

Parties seeking the testimony of a Board agent in a representation case hearing must request 

General Counsel approval for the testimony. See Rules 102.118. See Millsboro Nursing & 

Rehabilitation Center, supra, fn. 2 and the cases cited there for discussion of the Board policies 

with respect to requests for such testimony. 

c. Witness statements 

Under the Board’s Rules (Sec. 102.118(b)(1)), parties to a postelection hearing may request 

copies of witness statements for purposes of cross-examinaiton. These statements must be 

returned by the end of the hearing. See Wal-Mart Stores, 339 NLRB 64 (2003), an unfair labor 

practice case. 

22-119 The Decision 

393-7077 

A decision is made by the Board, or the Regional Director, whichever is appropriate, after 

having considered the hearing officer’s or administrative law judge’s report on objections and/or 

challenges and the exceptions thereto. 

While the matter is pending, and after briefs are filed, a party may call the Board’s attention 

to cases that have come to the parties’ attention after filing a brief. Reliant Energy, 339 NLRB 66 

(2003). 

The Board’s decision may sustain or overrule the objections, in whole or in part. If the 

objections are sustained in any part, the original election is set aside, and the direction of a 

“rerun” election provides for a new election to be held at such time as the Regional Director 

deems appropriate. The “eligibility period” is customarily the latest completed payroll period 

preceding the issuance of the notice of rerun election. See CHM section 11436. 

22-120 Rerun Elections 

355-1133 

393-7077-6050 

A rerun election is conducted when the original election is a nullity by virtue of its results or 

because it is set aside either by the Regional Director or by the Board. Neither the passage of time 

nor employee turnover between the time of the first and a rerun election are sufficient basis to 

withhold direction of a rerun election. Sheraton Hotel Waterbury, 316 NLRB 238 (1995); and 

Vemco, Inc., 315 NLRB 200 (1994), or to require a new showing of interest. River City Elevator 

Co., 339 NLRB 616 (2003). 

The timing and conditions for a rerun election are described in CHM section 11452. The 

standard notice of election, where modified to explain why the original election was set aside, is 

found in CHM section 11452.3. The voting procedures are the same, as are the count, tally, and 

other details, except that the tally indicates that the election was a rerun. There can be no “runoff” 

(see sec. 22-114, above) of a runoff or severance election, although otherwise the results of a 

rerun may call for a runoff (see CHM sec. 11456). The usual objections procedures apply. 

Ordinarily, information not provided prior to the decision is not considered. See Gannett 

Satellite Information Network, 330 NLRB 315 (1999). 

The Board will not permit a new party to intervene and appear on the ballot in a rerun or 

runoff election. Waste Management of New York, 326 NLRB 1126 (1998). 
270 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION

See also section 23-230. 

22-121 The Certification 

393-7077-2060 

393-7077-6067 

393-7077-6083 

If a union receives a majority of the valid votes cast, a certification of representative is issued. 

If not, a certification of results is issued. A certification issued by the Regional Director has the 

same force and effect as one issued by the Board. In all cases of elections conducted pursuant to a 

consent agreement, the certification is issued by the Regional Director. CHM section 11470. 

Where an election is conducted pursuant to a stipulation for certification of election, the 

Regional Director issues the certification where no objections are filed and challenges are not 

determinative of the results; the Board issues the certification where objections are filed or 

challenges are determinative. For an exception to the latter, see CHM section 11472.2(b). 

Where an election is directed by the Regional Director or the Board, the certification is issued 

by the Regional Director where no objections are filed and challenges are not determinative. 

Where objections are filed or the challenges are determinative, a certification may be issued by 

the Regional Director based on the administrative investigation or hearing, or by the Board after 

consideration of the Regional Director’s report or the report of a hearing officer or administrative 

law judge. See CHM section 11470, et seq. 

22-122 Expedited Elections Under Section 8(b)(7)(C) 

355-5500 

578-8050-6000 

578-8075-6000 

Under Section 8(b)(7)(C) the Board is required to conduct expedited elections when a petition 

is on file and the union is engaging in 8(b)(7)(C) picketing for less than 30 days. The rationale, as 

well as 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. Picketing beyond 30 days is an unfair labor practice. the filing of a petition stays a 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 

organizational picketing. Thus, on the commencement of such picketing, an employer may file an 

8(b)(7)(C) charge and an RM petition, thereby setting in motion the proviso’s expedited election 

machinery. Or, an employer may, if it prefers, endure 30 days of picketing and then seek 

injunctive relief by filing 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 where a timely petition is filed, i.e., no more than 30 days after the 

start of picketing for an 8(b)(7)(C) object. Neither a showing of interest nor an Excelsior list is 

required for an expedited election. Excelsior Underwear, 156 NLRB 1236, 1242 fn. 14 (1966). 
REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION 271

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); and Moore Laminating, 137 NLRB 729, 732 fn. 6 (1962). 

For other material on Expedited Elections, see sections 5-610 and 7-150. 
272 REPRESENTATION CASE PROCEDURES AFFECTING THE ELECTION
23. VOTING ELIGIBILITY 

Questions affecting the eligibility of employees to vote in a Board election arise either at the 

initial hearing, if one is held, or in the context of an election agreement, or, in any event, by way 

of challenges at the polling place at the time of the election. 

We shall treat here voting eligibility in general. The rules governing eligibility are spelled out 

and illustrations are given of special formulas used in industries and situations that are not 

susceptible to the application of these rules. The subject of eligibility lists, including the NorrisThermador rule (Norris-Thermador Corp., 119 NLRB 1301 (1958)), is also discussed. Other 

eligibility questions are treated in the chapter on Categories Governed by Board Policy, because 

these pertain basically to unit inclusion or exclusion issues, and there is therefore no reason for 

repeating this subject matter here. 

23-100 Eligibility in General 

23-110 The General Rule 

362-3312 

362-6706 

362-6772-6700 

362-6766 

Voters must be employees within the meaning of the Act. Applicants are considered 

employees (Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941)), but unpaid volunteers are not. 

Seattle Opera Assn., 331 NLRB1072 (2000); and WBAI Pacifica Foundation, 328 NLRB 1273 

(1999). Aliens, whether legally or legally in the United States are eligible to vote. Sure Tan v. 

NLRB, 467 U.S. 883 (1984). 

The burden of proof rests on the party asserting ineligibility to vote. Sweetener Supply Corp., 

349 NLRB 1122 (2007). 

To be eligible to vote in a Board election, the employee must be in the appropriate unit (1) on 

the established eligibility date, which is normally during the the payroll period immediately 

preceding the date of the direction of election, or election agreement, and (2) in employee status 

on the date of the election. See, for example, Plymouth Towing Co., 178 NLRB 651 (1969); 

Greenspan Engraving Corp., 137 NLRB 1308 (1962); Gulf States Asphalt Co., 106 NLRB 1212 

(1953); Reade Mfg. Co., 100 NLRB 87 (1951); Bill Heath, Inc., 89 NLRB 1555 (1949); Macy’s 

Missouri-Kansas Division v. NLRB, 389 F.2d 835 (8th Cir. 1968); and Beverly Manor Nursing 

Home, 310 NLRB 538 fn. 3 (1993). Individudals who were scheduled to become supervisors after 

the date of the election were eligible to vote because they were employees during the eligibility 

period. Nichols House Nursing Home, 332 NLRB 1428 (2000). 

As a general rule, the Board does not determine eligibility based on events occurring after an 

election. Dean & Deluca New York, Inc., 338 NLRB 1046 (2003); and Arlington Masonry 

Supply, Inc., 339 NLRB 817, 820 fn. 15 (2003). 

The employee must be employed and working on the established eligibility date, unless 

absent for reasons specified in the direction of election. See, for example, Roy N. Lotspeich 

Publishing Co., 204 NLRB 517 (1973). Those reasons are illness, vacation, temporary layoff 

status, and military service. See also NLRB v. Dalton Sheet Metal Co., 472 F.2d 257 (5th Cir. 

1973); Agar Supply Co., 337 NLRB 1267 (2002) (transfer to light-duty work did not remove 

eligibility); Amoco Oil Corp., 289 NLRB 280 (1988); Schick, Inc., 114 NLRB 931 (1956); and 

Barry Controls, 113 NLRB 26 (1955). In Jam Productions, Ltd., 338 NLRB 1117 (2003), the 

Board overruled challenges to voters based on loss of business after the elibility date. The Board 

rejected the employers’ contention that the employees become casual and thus ineligible. 

273
274 VOTING ELIGIBILITY

The general rule is qualified by exceptions applicable to certain classes or groups of 

employees and to special circumstances. These are treated under separate headings. 

23-111 Newly Hired or Transferred Employees 

362-6766-6000 

In order to be eligible to vote, an employee must be “hired and working.” Thus, employees 

who are hired on the eligibility date but do not report for work until a later date are ineligible to 

vote. Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973); and Greenspan Engraving Corp., 

137 NLRB 1308, 1311 (1962). Similarly, employees who have been hired and are participating in 

“training, orientation, and other preliminaries” are not considered to be working and are 

ineligible. NLRB v. Tom Wood Datsun, 767 F.2d 350 (7th Cir. 1985); Speedway Petroleum, 269 

NLRB 926 fn. 1 (1984); and F & M Importing Co., 237 NLRB 628 (1978). But see CWM, Inc.,

306 NLRB 495 (1992). But employees doing unit work on “on-the-job training” are eligible to 

vote. Sweetener Supply Corp., supra. 

An employer who is transferred from nonunit work to unit work prior to the eligibility date is 

eligible to vote. Meadow Valley Contractors, 314 NLRB 217 (1994). But an employee transferred 

out of the unit before the election and who has no reasonable expectancy of returning to the unit 

is not eligible. Mrs. Baird’s Bakeries, 323 NLRB 607 (1997). 

See Dynacorp/Dynair Services, 320 NLRB 120 (1995), for a recent summary of the cases on 

the eligibility of recently hired employees. See also Pep Boys–Manny, Moe & Jack, 339 NLRB 

421 (2003). 

An employee hired to work at facility A but being trained at facility B was not included in the 

unit at facility B. Renal Care of Buffalo, Inc., 347 NLRB 1284 (2006). 

23-112 Voluntary Quits 

362-6706 

362-6772 

An employee employed on the date of the election is eligible to vote despite an intention to 

quit after the election. St. Elizabeth Hospital v. NLRB, 708 F.2d 1436 (9th Cir. 1983); NLRB v. 

Hillview Health Care Center, 705 F.2d 1461, 1471 (7th Cir. 1983); Harold M. Pitman Co., 303 

NLRB 655 (1991); Personal Products Corp., 114 NLRB 959 (1955); and Whiting Corp., 99 

NLRB 117 (1951), revd. on other grounds 200 F.2d 43 (7th Cir. 1952). 

Employees who quit their employment, and stop working on a date prior to the date of the 

election, are not eligible to vote. Dakota Fire Protection Inc., 337 NLRB 92 (2001); Orange 

Blossom Manor, 324 NLRB 846 (1997), and Birmingham Cartage Co., 193 NLRB 1057 (1971). 

Compare NLRB v. General Tube Co., 331 F.2d 751 (6th Cir. 1964), in which employee eligibility 

was grounded on the employees actually having performed work on the day of the election. See 

also Grange Debris Box & Wrecking Co., 344 NLRB 1004 (2005) (employee eligible who gave 

notice but was working on day of election). 

In Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973), an employee who did not work 

on election day was held ineligible to vote, even though he was paid for the day and was 

considered to be on the payroll and to be employed on election day. Where an employee 

terminated his employment in the middle of the payroll period of eligibility, but was rehired and 

working before the election date, the Board found him to be an eligible voter. But see Apex Paper 

Box, 302 NLRB 67 (1991). Payroll eligibility is conferred by some work during the payroll 

eligibility period. Leather by Grant, 206 NLRB 961 (1973). 
VOTING ELIGIBILITY 275

23-113 Discharged Employees 

362-6766-7000 

362-6766-8000 

In Choc-Ola Bottlers, 192 NLRB 1247 (1971), an employee had been discharged for cause 

on the day of the election. The Board, applying the general rule described at the beginning of this 

chapter, found the requirements of the rule satisfied and ruled that he was eligible to vote. The 

Seventh Circuit disagreed, holding that on the employee’s removal for cause “he was no longer 

sufficiently concerned with the terms and conditions of employment in the unit to warrant his 

participation in the representation election.” Choc-Ola Bottlers v. NLRB, 478 F.2d 461 (7th Cir. 

1973). Compare Fairview Hospital, 174 NLRB 924 (1969), enfd. 75 LRRM 2839 (7th Cir. 

1970), in which the Board ruled ineligible an employee whose discharge was effected on the day 

of the election. See also Nichols House Nursing Home, supra at 23 (individual scheduled to be 

supervisor found eligible). See also Plymouth Towing Co., 178 NLRB 651 (1969); compare Ely 

& Walker, 151 NLRB 636 (1965). See also Walter Packing, 241 NLRB 131 (1979), in which the 

Board applied the Lotspeich and Choc-Ola rules in a discharge case. 

In Community Action Commission, 338 NLRB 664 (2003), the Board sustained the challenge 

to a ballot of an employee who was discharged after the eligibility date but before the election 

even though there was a “theoretical possibility” that the discharge might be reversed. 

An employee whose leave had expired and was, thus, terminated pursuant to company policy 

was considered terminated and ineligible to vote. J. C. Penny Corp., 347 NLRB 127 (2006) 

Employees allegedly discharged for discriminatory reasons in violation of Section 8(a)(3) 

who, pursuant to an informal settlement agreement, are placed on a preferential hiring list and can 

be said to have a reasonable prospect of recall during the next season are eligible to vote. 

Koehring Co., 193 NLRB 513 (1971). As a general rule, a discharge is presumed to be for cause 

unless a charge has been filed and is pending concerning the discharge. In such a case, the 

employee votes under challenge. Dura Steel Co., 111 NLRB 590 (1955). This same policy 

applies with respect to pending grievances, Pacific Tile & Porcelain Co., 137 NLRB 1358 

(1962), and other litigation where reinstatement is possible. Machinists (IAM Representatives 

Assn.), 159 NLRB 137 (1966). See also Curtis Industries, 310 NLRB 1212 (1993), applying this 

same principle in the case of strikers who the employer contends are permanently replaced but 

who are the subject of litigation. The Board noted in Curtis and reaffirmed in Morgan Services, 

339 NLRB 463 (2003); and Mono-Trade Co., 323 NLRB 298 (1997), that it would wait a 

reasonable period of time for completion of the litigation or arbitration. 

See also section 23-300. 

23-114 Employees on Sick Leave 

362-6766-2000 et seq. 

An employee who at the time of the election had the status of an employee on sick leave was 

regarded as sharing and retaining a substantial interest in the terms and conditions of 

employment, particularly since the employer considered him an employee by accepting his health 

insurance premiums and by not removing his name from the payroll records and seniority list. 

Delta Pine Plywood Co., 192 NLRB 1272 fn. 1 (1971). The general rule regarding employees on 

sick leave is that they are presumed to remain in that status until recovery, and a party seeking to 

overcome that presumption must make an affirmative showing that the employee has resigned or 

been discharged. Edward Waters College, 307 NLRB 1321 (1992); Atlantic Dairies Cooperative, 

283 NLRB 327 (1987); Red Arrow Freight Lines, 278 NLRB 965 (1986); Sylvania Electric 

Products, 119 NLRB 824 (1958); and Wright Mfg. Co., 106 NLRB 1234 (1953). Recently in a 

series of cases, a divided Board reaffirmed the general rule. Home Care Networks, Inc., 347 

NLRB 859 (2006); Agar Supply Co., 337 NLRB 1267 (2002); Super Valu, Inc., 328 NLRB 52 

(1999); Pepsi-Cola Co., 315 NLRB 1322 (1995); Associated Constructors, 315 NLRB 1255 
276 VOTING ELIGIBILITY

(1995); Vanalco, Inc., 315 NLRB 618 (1994); and Thorn Americas, Inc., 314 NLRB 943 (1994). 

See also A & J Cartage, 309 NLRB 263 (1992), which requires that the employee have done unit 

work before going on sick leave. 

23-115 Laid-Off Employees 

The test applicable to the eligibility of laid-off employees is “whether there exists a 

reasonable expectancy of employment in the near future.” Pavilion at Crossing Pointe, 344 

NLRB 582 (2005); Higgins, Inc., 111 NLRB 797 (1955); and Madison Industries, 311 NLRB 

865 (1993). Thus, although an employee’s termination notice stated that the layoff was temporary 

and the employee considered herself subject to recall, an absence of objective evidence in support 

of a finding of temporary layoff and the presence of countervailing evidence resulted in a finding 

that the employee had no reasonable expectancy of returning to work and was therefore ineligible 

to vote in the election. Sierra Lingerie Co., 191 NLRB 844 (1971). In Apex Paper Box, , supra, 

the Board sustained the challenges to ballots of three employees who were laid off prior to the 

payroll eligibility date and were recalled after that date but prior to the election. Note that this 

case summarizes the case law on the laid-off issue. See also MJM Studios of New York, 338 

NLRB 980 (2003); and Dredge Operators, 306 NLRB 924 (1992), where the temporary layoff 

rule was applied in the context of a mail ballot election. 

Eligibility is assessed based on the facts existing on or before the eligibility date, not on the 

date of the election. Thus, employees who had been recalled before the election were considered 

ineligible because as of the eligibility date, the Board found that they did not have a reasonable 

expectancy of recall. Osram Sylvania, Inc., 325 NLRB 758 (1998). 

A mere assertion of permanent layoff, in the absence of any supporting evidence or a specific 

offer of proof, and especially in the face of subsequent recall, may be insufficient to rebut the 

presumption that layoffs are temporary. Intercontinental Mfg. Co., 192 NLRB 590 (1971). 

See Nordam, Inc., 173 NLRB 1153 (1969), for a factual analysis of evidence in determining 

whether at the time of layoff the employees in question “had a reasonable expectancy of 

reemployment in the near future.” See also D. H. Farms Co., 206 NLRB 111 (1973); and 

Tomadur, Inc., 196 NLRB 706 (1972). 

23-116 Retirees/Social Security Annuitants 

Retired employees are not employees within the meaning of the Act. See Allied Chemical 

Workers v. Pittsburgh Plate Glass, 404 U.S. 157 (1971), and Mississippi Power Co., 332 NLRB 

530 (2000). However, employees who are collecting a Social Security annuity and limit their 

working term so as not to decrease that annuity are not, solely for that reason, ineligible to vote in 

an election. Holiday Inns of America, 176 NLRB 939 (1969). 

23-120 Economic Strikers, Locked Out Employees, and Replacements 

362-6766-4500 

362-6778-6700 

362-6780 

362-6784-6700 

Section 2(3) of the Act provides that an individual whose work has ceased as a consequence 

of a labor dispute continues to be an employee if he or she has not obtained regular and 

substantially equivalent employment. That cessation must be in concert with other employees. Lin 

Rogers Electrical Contractors, 323 NLRB 988 (1997). The status of economic strikers as eligible 

voters was dealt with in the 1959 amendments to the Act by adding the following provision to 

Section 9(c)(3): 

Employees engaged in an economic strike who are not entitled to reinstatement shall be 

eligible to vote under such regulations as the Board shall find are consistent with the 
VOTING ELIGIBILITY 277

purposes and provisions of this Act in any election conducted within twelve months after the 

commencement of the strike. 

The effect of this amendment was to eliminate the former voting disability of economic 

strikers and, at the same time, to preserve the concurrent eligibility of permanent replacements for 

such strikers. W. W. Wilton Wood, Inc., 127 NLRB 1675 (1960); and Kingsport Press, 146 NLRB 

1111 (1964); see also 105 Cong.Rec. 6396 (1959). The Board may expedite the processing of the 

petition in order to conduct the election within the 12 months. Kingsport Press, supra; Northshore 

Fabricators & Erectors, 230 NLRB 346 (1977). 

The rules with respect to the voting rights of economic strikers may be summarized as 

follows: 

a. Strikers are presumed to be “economic strikers” unless they are found by the Board to be 

on strike because of unfair labor practices on the part of the employer. Bright Foods, 126 NLRB 

553 (1960); see also Times Square Stores Corp., 79 NLRB 361 (1948). 

b. Economic strikers are presumed to continue in that status and thus are eligible to vote 

under Section 9(c)(3). To rebut the presumption of eligibility, the party challenging must 

affirmatively show by objective evidence that the economic strikers have abandoned their interest 

in their struck jobs. Pacific Tile & Porcelain Co., 137 NLRB 1358 (1962). The nature of the 

evidence which might rebut the presumption, said the Board in that case, would he determined on 

a case-by-case basis, but it cautioned that “acceptance of other employment, even without 

informing the new employer that only temporary employment is sought, would not of itself be 

evidence of abandonment of the struck job so as to render the economic striker ineligible to vote.” 

See also National Gypsum Co., 133 NLRB 1492 (1961). See also Omahaline Hydraulics Co., 

340 NLRB 916 (2003) (employer bears burden of establishing that jobs have been eliminated and 

did not do so here). 

In Globe Molded Plastics Co., 200 NLRB 377 (1972), economic strikers had been engaged in 

their strike for 3 months before the election. Notwithstanding an alleged depressed condition in 

the plastics industry, there was no contention or evidence that their work had been permanently 

abolished or that they had abandoned interest in their jobs. The fact that the employer had lost 

certain work or that obtaining new customers was difficult, possibly because of the effectiveness 

of the strike, was not the type of permanent abolition or elimination of jobs for economic reasons 

which warranted disenfranchising strikers otherwise eligible to vote. Compare Lamb-Grays 

Harbor Co., 295 NLRB 355 (1989), in which the elimination of jobs was predicated on valid 

substantial nonstrike-related economic reasons. In these circumstances the affected strikers were 

found ineligible. See also St. Joe Minerals Corp., 295 NLRB 517 (1989). 

In Roylyn, Inc., 178 NLRB 197 (1969), the issue was whether the action of certain employees 

in signing a quit slip in order to obtain vacation pay was sufficient to show that economic strikers 

abandoned their interest in their struck jobs and thus lost their status of economic strikers for 

purposes of eligibility. The Board found on the facts in the case that the strikers did not abandon 

their employee status and did not sign the quit slips with that intent, and the presumption that an 

economic striker remains in that status had therefore not been rebutted. See also P.B.R. Co., 216 

NLRB 602 (1975); and Virginia Concrete Co., 316 NLRB 261 (1995). 

Mere acceptance of a job with better benefits does not establish that a striker has forfeited his 

eligibility. Akron Engraving Co., 170 NLRB 232 (1968); and Pacific Tile & Porcelain Co., , 

supra at 1362–1363. 

For thorough treatment of individual issues revolving around the question whether the 

presumption of eligibility has or has not been rebutted in the light of the principles here under 

discussion, see Q-T Tool Co., 199 NLRB 500 (1972). See also NLRB v. Woodview Calabasa 

Hospital, 702 F.2d 184 (9th Cir. 1983). 

c. Replaced strikers are not eligible to vote in an election held more than 12 months after the 

commencement of an economic strike. Conversely, if they have not been replaced they are 
278 VOTING ELIGIBILITY

eligible to vote. Erman Corp., 330 NLRB 95 (1999). Similarly, where the election directed will 

be conducted more than a year from the commencement of the economic strike, only those 

replaced former economic strikers who are actually reinstated by the eligibility date of the 

election are entitled to vote. Wahl Clipper Corp., 195 NLRB 634 (1972); and Gulf States Paper 

Corp., 219 NLRB 634 (1975). Wahl Clipper was reaffirmed by a divided Board in ThoresonMcCosh, Inc., 329 NLRB 630 (1999). But, if the election is a rerun, the replaced strikers may 

vote even if it is being conducted more than 12 months after the strike began. Jeld-Wen of 

Everett, Inc., 285 NLRB 118 (1987). 

In Brooks Research & Mfg,, Inc., 202 NLRB 634 (1973), the Board rejected a contention that 

economic strikers should be equated with laid-off employees. “The reinstatement rights of 

economic strikers under [NLRB v.] Fleetwood Trailer [Co., 389 U.S. 375 (1967)], and Laidlaw

Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), are statutory as distinguished 

from the rights of laid-off employees. A layoff constitutes a discontinuance of work for an 

employer which does not rise to the level of a lawful economic strike, participation in which is 

protected under Sections 7 and 13 of the Act.” Distinguishing Wahl Clipper, supra, the Board 

pointed out that there it held only that economic strikers were not eligible to vote in a Board 

election after 1 year from the commencement of an economic strike and its decision was 

grounded on a “construction of specific language in Section 9(c)(3) concerning the voting 

eligibility of economic strikers.” Making this distinction, the Board declined to place a time limit 

on the reinstatement rights of economic strikers. 

In Curtis Industries, 310 NLRB 1212 (1993), the Board held that strikers who are 

permanently replaced but who are contesting that action in litigation, shall vote by challenge 

ballot. For a related discussion, see section 23-113, supra. 

d. The Board frequently does not resolve eligibility questions of this type unless the ballots 

are determinative. Universal Mfg. Co., 197 NLRB 618 (1972). 

e. Replaced former economic strikers are eligible to vote in an election conducted within 12 

months of the commencement of the strike whether or not the strike has terminated. Tractor 

Supply Co., 235 NLRB 269 (1978). 

f. The Board presumes that replacements hired for strikers are temporary employees in all 

Board cases—representation and unfair labor practice. O. E. Butterfield, Inc., 319 NLRB 1004 

(1995). Employees hired subsequent to a strike and who are told by the employer when hired that 

his job is “permanent” are permanent replacements unless the presumption of permanence is 

rebutted. Akron Engraving Co., supra; Pacific Tile & Porcelain Co., supra. 

g. Permanent replacements are eligible to vote where a strike is called after the eligibility date 

and they are employed on the date of the election. Macy’s Missouri-Kansas Division, 173 NLRB 

1500 (1969). 

In St. Joe Minerals Corp., 295 NLRB 517 (1989), the Board found that “cross overs” (former 

strikers who return to work) are considered permanent replacements if they are returned to 

positions other than those they held prior to the strike. 

Note—Temporary replacements are not eligible to vote. See Harter Equipment, 293 NLRB 

647 (1989), involving replacements for locked out employees. 

Permanent replacements hired subsequent to the eligibility period to replace economic 

strikers who have gone on strike after the direction of the election are eligible to vote. Tampa 

Sand & Material Co., 129 NLRB 1273 (1961). However, permanent replacements who are hired 

subsequent to the eligibility period to replace economic strikers who have gone on strike prior to 

the direction of election are not eligible to vote. Greenspan Engraving Corp., 137 NLRB 1308 

(1962). In both cases, the Board emphasized that the “timing of the strike” was the controlling 

factor in determining whether permanent replacements for economic strikers were entitled to vote 

in an election. See also Famous Industries, 220 NLRB 484 (1975). 
VOTING ELIGIBILITY 279

h. Issues as to voting eligibility of strikers and replacements are normally deferred until the 

election for disposition by way of challenges. Bright Foods, 126 NLRB 553 (1960); and Pipe 

Machinery Co., 76 NLRB 247 (1948). 

i. In the unique situation where economic strikers and seasonal employees are involved the 

Board approved bifurcated election which assured that the strikers could vote before the 12-

month period expired and the seasonal employees could vote later. Diamond Walnut Growers, 

308 NLRB 933 (1992). Note also that the Board will bypass the blocking charge rule in order to 

hold an election within 12 months of the onset of an economic strike so as not to exclude strikers. 

American Metal Products, 139 NLRB 601 (1962). 

j. The 12-month restriction also applies in union deauthorization (UD) elections. Carol Cable 

Co. West, 309 NLRB 326 (1992). 

23-125 Prisoners and Work Release Inmates 

Jailed prisoners on work release programs have been found to share a sufficient community 

of interest with employees in the bargaining unit to vote. Winsett-Simmonds Engineers, Inc., 164 

NLRB 611 (1967). See also Speedrack Products Group Limited, 325 NLRB 609 (1998). See also 

section 12-210. 

23-200 Eligibility Dates 

23-200 

362-3312 

As noted above, the general rule is that an employee must be employed both on the eligibility 

date and the date of the election. The eligibility date is usually described in terms of an 

employer’s payroll period which ends on a date sometime prior to the election. In at least one 

case the Board has directed a second election where the eligibility date used was not the date 

previously established. The Board noted that the error resulted in an ineligible ballot being cast 

that could have affected the results. Active Sportswear Co., 104 NLRB 1057 (1953). In Jam 

Productions, Ltd., 338 NLRB 1117 (2003), the Board indicated that the hearing officer in a 

postelection hearing on challenged ballots could consider a loss of business arising after the 

eligibility date in determining whether the challenged employees status had changed from part 

time to casual. The Board however overruled the challenge. 

23-210 Initial Elections 

362-3312 

The eligibility period for an election being conducted pursuant to an election agreement 

should be for the payroll period ending before the date of approval of the election agreement or 

the Decision and Direction of Election. CHM sections 11086.3 and 11312.1 

23-220 Runoff Elections 

355-1167-2500 

In a runoff election, eligibility is based on the same eligibility date as that used in the original 

election, but employee status is required on the date of the runoff. See Rules 102.70 and Lane 

Aviation Corp., 221 NLRB 898 (1975). Where, however, there has been a substantial increase in 

the employee complement since the original election was conducted, the current payroll is used 

for eligibility purposes. Interlake Steamship Co., 178 NLRB 128 (1969). Moreover, where there 

is a long passage of time after the payroll eligibility date used in a prior runoff election, the 

eligibility payroll period is the one immediately preceding the date of issuance of the latest notice 

of election. Caribe General Electric, 175 NLRB 773 (1969); and Interlake Steamship Co., 174 

NLRB 308 (1969). 

The Board holds that it is an unfair labor practice for an incumbent union to continue to 

accept recognition between the initial election and a runoff election where it, the incumbent, did 
280 VOTING ELIGIBILITY

not garner enough votes to be on the runoff ballot. Wayne County Legal Services, 333 NLRB 146 

(2001). 

See also section 22-114, supra. 

23-230 Rerun Elections 

362-3362-5000 

Where the Board sets aside a prior election and directs a repeat election, the eligibility period, 

in the absence of unusual circumstances, is the one immediately preceding the date of the repeat 

election and not the one established for the first election. Wagner Electric Corp., 127 NLRB 1082 

(1960); and Great Atlantic & Pacific Tea Co., 121 NLRB 38 (1958). 

See also section 22-120, supra. 

23-240 Seasonal Operations 

362-3350-2000 

370-0750-4900 

Where the employer’s operations are seasonal, the voting franchise is made available to the 

largest number of eligible voters by holding the election at or near the seasonal peak among the 

employees who are employed during the payroll period immediately preceding the issuance of the 

notice of election. Kelly Bros. Nurseries, 140 NLRB 82 (1962); and Toledo Marine Terminals, 

123 NLRB 583 (1959). See also Dick Kelchner Excavating Co., 236 NLRB 1414, 1416 (1978); 

and Bogus Basin Recreation Assn., 212 NLRB 833 (1974). Where, however, an employer 

operates on a year-round basis, is not in a seasonal industry, and its business has several 

employment peaks, the Board weighs the advantage of an early election, the possibility that more 

employees may vote at a higher peak of employment, and the relative interest of those employed 

during the various peaks as determined by their rate of return. Accordingly, the election in such 

circumstances is held during “the next representative period.” Elsa Canning Co., 154 NLRB 

1810, 1812–1813 (1965); cf. Baugh Chemical Co., 150 NLRB 1034 (1965). Seasonal employees 

must share a community of interest in order to be included in a unit of permanent employees and 

the mere happenstance of employment on the eligibility date is not sufficient to permit them to 

vote. Seneca Foods Corp., 248 NLRB 1119 (1980). 

The Board has also deferred elections in cases involving universities and colleges until the 

commencement of fall classes where many unit employees would not be present on campus 

during the summer months. See, e.g., Tusculum College, 199 NLRB 28 (1972). 

23-300 Alleged Discriminatees 

362-6766-7000 

Employees who are the subject of pending unfair labor practice proceedings alleging their 

unlawful discharge are permitted to vote subject to challenge. Machinists (IAM Representatives 

Assn.), 159 NLRB 137 (1966); and Tetrad Co., 122 NLRB 203 (1959). See also Curtis Industries, 

310 NLRB 1212 (1993), involving permanently replaced strikers who are litigating that action 

under another statute and sections 23-110 and -120, supra. 

23-400 Special Formulas for Specific Industries 

Some industries do not have the kind of steady employment that is characteristic of the 

mainstream of industrial enterprise. It is therefore necessary to devise an eligibility formula in 

those industries which will best be tailored to their special needs. Examples, by industry, of 

special formulas follow. 
VOTING ELIGIBILITY 281

23-410 Longshore 

362-3350-4000 

A formula geared to the specific circumstances was evolved based not on the usual payroll 

period but rather on the basis of employees who worked a specific number of hours during a 

given year. The formula was predicated on eligibility requirements in connection with fringe 

benefits; i.e., entitlement to vacation pay and welfare benefits. New York Shipping Assn., 107 

NLRB 364, 374 (1954); and E. W. Coslett & Sons, 122 NLRB 961 (1959). 

23-420 Construction 

362-3350-6000 

Eligibility to vote in the construction industry elections is determined by the use of the Daniel

formula. This formula was announced in two Daniel Construction Co. cases, Daniel Construction 

Co., 133 NLRB 264 (1961), as modified at 167 NLRB 1078 (1967). In 1991, the Board made 

additional changes in the construction industry formula. 

In 1992, the Board reconsidered its Whitty decision (S. K. Whitty & Co., 304 NLRB 776 

(1991)), and, with slight modification, returned to its Daniel policy. See Steiny & Co., 308 NLRB 

1323 (1992). See also Atlantic Industrial Constructors, Inc., 324 NLRB 355 (1997); Brown & 

Root, Inc., 314 NLRB 19 (1994); Delta Diversified Enterprises, 314 NLRB 946 (1994); and 

Johnson Controls, Inc., 322 NLRB 669 (1996). The Board applied this formula where the 

employer did more than a de minimis amount of construction work. Turner Industries Group, 

LLC, 349 NLRB 428 (2007). See also Cajun Co., 349 NLRB 1031 (2007). 

As the Board noted in Steiny, the Daniel formula does not affect core employees who would 

be eligible to vote under traditional standards nor does it preclude the parties from a stipulation 

not to use the Daniel formula (fn. 16). Ellis Electric, 315 NLRB 1187 (1994). Nor is the formula 

used for showing-of-interest purposes. Pike Co., 314 NLRB 691 (1994). See also section 5-210, 

supra. But the formula is used in all construction industry elections unless the parties stipulate not 

to use it. Signet Testing Laboratories, 330 NLRB 1 (1999). 

In Wilson & Dean Construction Co., 295 NLRB 484 (1989), the Board applied the Daniel 

Construction formula in the face of a contention that former employees would not be given 

preference for jobs under the employer’s decision to no longer use the union hiring hall. 

Although the Board has utilized special eligibility formulas in the construction industry, the 

usual requirements are used where the parties do not raise any eligibility issues and the record is 

insufficient concerning the work history of the employees. However, in this type of situation, 

former employees who do not qualify under these eligibility requirements may be permitted to 

vote by challenged ballots. Queen City Railroad Construction, 150 NLRB 1679 fn. 3 (1965). 

In one unusual case the Board set aside the election because the Region had set out an 

incomplete Steiny formula prompting the employer to provide an erroneous Excelsior list 

(Excelsior Underwear, 156 NLRB 1236 (1966)), and resulting in two eligible employees, not 

voting. Atlantic Industrial Constructors, 324 NLRB 355 (1997). 

23-430 Oil Drilling 

362-3350-8000 

In the oil drilling industry, a voting eligibility formula of 10 days or more work a year had 

formerly been used. See Sprecher Drilling Corp., 139 NLRB 1009 (1962); Trade Winds Drilling 

Co., 139 NLRB 1012 (1962); and Fitzpatrick Drilling Co., 139 NLRB 1013 (1962). But in 

Hondo Drilling Co., 164 NLRB 416, 418 (1967), eligibility was limited to all “roughnecks” who 

had been employed by the employer for a minimum of 10 working days during the 90-calendarday period preceding the issuance of the direction of election. See also Loffland Bros. Co., 235 

NLRB 154 (1978); Carl B. King Drilling Co., 164 NLRB 419, 421 (1967); and NLRB v. Rod-Ric 

Corp., 428 F.2d 948 (5th Cir. 1970). 
282 VOTING ELIGIBILITY

23-440 Taxicabs 

Part-time taxicab drivers who worked at least 2 or more days a week were deemed to have 

sufficiently substantial interests in the general working conditions of all drivers to justify their 

eligibility to vote in an election, but part-time drivers who worked 1 day a week or less were held 

essentially casual and therefore ineligible to vote. Cab Operating Corp., 153 NLRB 878, 883–

884 (1965). Compare Jat Transportation Corp., 128 NLRB 780 (1960). 

23-450 On-Call Employees 

362-6734 

On-call employees—those with no regular schedule of work—are generally considered 

eligible to vote if they regularly average 4 or more hours of work per week for the last quarter 

prior to the eligibility date. See Davison-Paxon Co., 185 NLRB 21 (1970); and Saratoga County 

Chapter NYSARC, 314 NLRB 609 (1994). See also Trump Taj Mahal Casino, 306 NLRB 86 

(1992), which summarizes the case law as to on-call employees. 

For a discussion of appropriate formulae for on-call nurses, see Sisters of Mercy Health 

Corp., 298 NLRB 483 (1990); and S. S. Joachim & Anne Residence, 314 NLRB 1191 (1994). 

For a related discussion of on-call employees, see section 20-120. 

23-460 Entertainment Industry 

362-6734 

Stagehands are on-call employees and the irregular pattern of their employment in the 

entertainment industry prompted the Board to fashion a specific formula for those who have a 

reasonable expectancy of further employment with the employer. Thus, in Medion, Inc., 200 

NLRB 1013 (1972), employees who were employed on at least two productions for a minimum 

of 5 working days in the year preceding the decision were deemed eligible to vote. See also 

Julliard School, 208 NLRB 153 (1974). In American Zoetrope Productions, 207 NLRB 621 

(1973), the Board eliminated the 5-day requirement on a showing that at that employer most unit 

jobs lasted only 1 or 2 days. Compare the differing approach to on-call formula to two employers 

in the entertainment industry─Julliard School, supra, an educational institution that conducts 

performances and Steppenwolf Theatre Co., 342 NLRB 69 (2004), a professional theater 

company. Accord: Wadsworth Theatre Management, 349 NLRB 122 (2007). The Board has a 

flexible approach to developing formulas suited to the conditions in different areas of the 

entertainment industry. See DIC Entertainment, L.P., 328 NLRB 660 (1999) (storyboard 

supervisors in television animation industry). 

23-470 On-Call Teachers 

362-3350-7000 

362-6734 

In Berlitz School of Languages, 231 NLRB 766 (1977), the Board devised a formula for 

eligibility of teachers who are called occasionally to teach foreign languages. Drawing on its 

experience with stagehands, the Board set the standard as being at least 2 days’ work during the 

preceding year. 

The above examples are, of course, illustrative only, and by no means exhaustive. They are 

given to indicate how eligibility formulas are tailored. Different enterprises, even in the same 

general industry, may be the subject of different formulas. Moreover, there are special formulas 

for industries not mentioned here which are adapted to the special needs of those operations. 
VOTING ELIGIBILITY 283

23-500 Eligibility Lists and Stipulations 

23-510 Voting List (Excelsior) 

362-6708 

393-6081-6075-5000 

The list of employees who are considered eligible to vote in the election is called the 

Excelsior list. This list is prepared by the employer and is given to the Regional Director within 7 

days after the approval of an election agreement or issuance of a decision and direction of 

election. Excelsior Underwear, 156 NLRB 1236 (1966); and NLRB v. Wyman-Gordon Co., 394 

U.S. 759 (1969). This list is in turn provided to all parties to the election. (CHM sec. 11312.2.) 

The list must include the full first and last names of the employees as well as their addresses. 

North Macon Health Care Facility, 315 NLRB 359 (1994); and Weyerhaeuser Co., 315 NLRB 

963 (1994). 

The procedures for the production and handling of the Excelsior list are contained in the 

CHM section 11312. Failure to comply with the Excelsior rule is grounds for setting aside the 

election when proper objections are filed. A summary of the case law dealing with Excelsior

objections is contained in section 24-324. 

Lists of eligible voters, normally the same lists as constitute the Excelsior list, are made 

available to the parties for inspection and possible challenges. These do not purport to be a final 

list of all eligibles; challenge procedures guarantee the right of every possible voter to cast a 

ballot. In these circumstances, the inadvertent omission of a small number of employees from the 

eligibility list is not a sufficient basis for invalidating an election. Jat Transportation Corp., 131 

NLRB 122 (1961). The burden of checking the accuracy of the list rests with the participating 

union. Kennecott Copper Corp., 122 NLRB 370 (1959). The mere preparation and checking of 

such a list does not constitute an agreement that precludes the possibility of challenges at the 

election, either as to names appearing on, or names omitted from, such list. It is regarded as “a 

guide or a tool the use of which is to facilitate the election procedure.” O. E. Szekely & 

Associates, 117 NLRB 42, 44–45 (1957). See also Cavanaugh Lakeview Farm, 302 NLRB 921 

(1991). 

See also section 24-324. 

23-520 Stipulated Eligibility Lists (Norris Thermador) 

362-6703 

370-3533-4000 

737-7078-5000 

To codify its policy, the Board, in Norris-Thermador, adopted the policy that parties to a 

representation proceeding should be permitted definitively to resolve as between themselves 

issues of eligibility prior to the election if they clearly evidence their intention to do so in writing. 

Therefore, where parties enter into a written and signed agreement which expressly provides that 

issues of eligibility resolved therein shall be final and binding upon the parties, “such an 

agreement, and only such an agreement,” is considered a final determination of the eligibility 

issues “unless it is, in part or in whole, contrary to the Act or established Board policy.” This is 

known as the Norris-Thermador rule since it was adopted in Norris-Thermador Corp., 119 

NLRB 1301 (1958). A list is sufficient even if the stipulation does not include an on actual unit 

description. Riveredge Hospital, 251 NLRB 196 (1980). 

Thus, where the parties incorporated an eligibility list in an election agreement which met the 

Norris-Thermador requirements, the Board found that the parties intended the list as prepared to 

be final and binding, and it deemed irrelevant the fact that an employee had been excluded from 

the list through “inadvertence and not as a result of discussion and agreement on his eligibility.” 

Pyper Construction Co., 177 NLRB 707 (1969). 
284 VOTING ELIGIBILITY

The Norris-Thermador rule has been strictly applied and the Board has only permitted one 

“narrow exception” to it. Thus, in Banner Bedding, 214 NLRB 1013 (1974), the Board 

announced that it will accept an oral agreement only where both parties agree to its contents. See 

discussion of this exception in NLRB v. Westinghouse Broadcasting & Cable, 849 F.2d 15 (1st 

Cir. 1988). Compare Giummarra Electric, 291 NLRB 37 (1988), in which one party to the 

alleged agreement denied its existence. In St. Peters Manor Care Center, 261 NLRB 1161 

(1982), the Board rejected an oral stipulation where it came just prior to the election and was 

inconsistent with the election agreement. 

Where, however, there was nothing in the stipulation for certification which indicated that 

there was an agreed-upon addition stipulated to be final and binding on the parties, the document, 

as it stood, did not sufficiently reveal an intent on the part of the parties to be bound within the 

meaning of the Norris-Thermador rule. Cooper Mattress Mfg. Co., 225 NLRB 200 (1976). 

The Board does not honor stipulations, whether under Banner Bedding or Norris-Thermador

as to statutory exclusions. Rosehill Cemetery Assn., 262 NLRB 1289 (1982); and Judd Valve Co., 

248 NLRB 112 fn. 3 (1980). Thus, as clearly enunciated in the statement of the NorrisThermador rule itself, the election agreement is final and binding unless it is contrary to the Act 

or established Board policy. Where ballots were challenged on the ground of supervisory status 

and consequent statutory exclusion, the party was not, under Norris-Thermador, precluded from 

raising the issue as to their eligibility. It would have contravened the statutory policy “if by 

agreement of the parties supervisors were irrevocably rendered eligible to vote.” Fisher-New 

Center Co., 184 NLRB 809 (1970). 

A distinction has been drawn between the rule just stated and the one set out in Cruis Along 

Boats, 128 NLRB 1019 (1960). The policy applied in Cruis Along “was intended to apply to 

stipulations as to unit placement made at representation hearings and was not intended to modify 

the policy applicable to agreements as to eligibility made in consent election cases.” Lake Huron 

Broadcasting Corp., 130 NLRB 908, 909–910 (1961). See also Laymon Candy Co., 199 NLRB 

547 (1972), and in particular footnote 2 which addresses itself to the Cruis Along distinction and 

also raises a question concerning the nature of the stipulation. 

Nor will the Board permit the Norris-Thermador agreement to permit an ex-employee to 

vote. In Inacomp America, Inc., 281 NLRB 271 (1986), an employee whose name was included 

on a Norris-Thermador list but who resigned and left the employer before the election, was not 

permitted to vote. Compare Trilco City Lumber Co., 226 NLRB 289 (1976), in which an 

employee was permitted to vote who was included on the list but had not yet begun active work. 

23-530 Construing Stipulations of the Parties in Representation Cases 

393-6054-6750 

401-5000 

420-7312 

737-7078-5000 

The Board will accept stipulations of parties unless they are contrary to record evidence, the 

Act, or Board policy. Carl’s Jr., 285 NLRB 975 (1987). Compare Hollywood Medical Center, 

275 NLRB 307 (1985), in which rejection of the stipulation would have resulted in a postelection 

challenge as to agreed-upon professional employees, and Cabrillo Lanes, 202 NLRB 921, 923 fn. 

12 (1973), in which a stipulation that would have excluded regular part-time employees was 

rejected prior to the election. 

In Caesars Tahoe, 337 NLRB 1096 (2002), the Board formally adopted the three-prong test 

for analyzing stipulations articulated in Associated Milk Producers, Inc. v. NLRB, 193 F.3d 539 

(D.C. Cir. 1999). Under this test, the Board must first determine whether the stipulation is 

ambiguous. If the objective intent of the parties is expressed in clear and unambiguous terms in 

the stipulation, the Board simply enforces the agreement. If, however, the stipulation is 
VOTING ELIGIBILITY 285

ambiguous, the Board must seek to determine the parties’ intent through normal methods of 

contract interpretation, including examination of extrinsic evidence. See Halsted 

Communications, 347 NLRB 225 (2006); McFarling Foods, Inc., 336 NLRB 1140 (2001); South 

Coast Hospice, 333 NLRB 198 (2000); and Royal Laundry, 277 NLRB 820, 821 (1985). A 

classification will be deemed to be excluded if it is not mentioned in the inclusions and “all other 

employees”are specifically excluded. Bell Convalescent Hospital, 337 NLRB 191 (2001).

If the parties’ intent still cannot be discerned, then the Board determines the bargaining unit 

by employing its normal community-of-interest test. 

For a description of the Board’s approach to ascertaining the parties’ intent, see Viacom 

Television, 268 NLRB 633 (1984). See also Southwest Gas Corp., 305 NLRB 542 (1991); 

Business Records Corp., 300 NLRB 708 (1990); and S & I Transportation, 306 NLRB 97 (1992). 

An employer who stipulates to the inclusion of a classification is later barred from raising the 

inclusion as a defense in a refusal-to-bargain case. Premier Living Center, 331 NLRB 123 

(2000). In Red Lion, 301 NLRB 33 (1991), the Board was confronted with a hearing officer’s 

rejection of a stipulation that had no factual basis. In light of the due-process problems 

surrounding the hearing officer’s initial acceptance of the stipulation, the Board permitted the 

parties to proffer supplemental evidence. 

For a discussion of policies concerning the effect of Stipulated Election Agreements, see 

T & L Leasing, 318 NLRB 324 (1995) (Regional Director cannot vary terms of agreement absent 

special circumstances); Grant’s Home Furnishings, 229 NLRB 1305 (1977) (alleged breach of 

agreement by Regional Director because of Board agent tardiness); Sunnyvale Medical Clinic, 

241 NLRB 1156 (1979); Dynair Services, 314 NLRB 161 (1994) (changed circumstances caused 

by intervening labor organization); and Consolidated Print Works, 260 NLRB 978 (1982) 

(consequences of failing to object to changed circumstances). 

Where the intent of the parties is unclear or ambiguous, the Board will apply a communityof-interest test. Laneco Construction Systems, 339 NLRB 1048 (2003); and Kalustyans, 332 

NLRB 843 (2000). If the stipulation is clear and unambiguous, the Board will not examine the 

intent of the parties. South Coast Hospice, and Kalustyans, supra. Space Mark, Inc., 325 NLRB 

1140 (1998). But a stipulation cannot override a mandate of the statute. Pontiac Osteopathic 

Hospital, 327 NLRB 1172 (1999) (stipulation to include medical technologists cannot override 

mandate that Board conduct Sonotone elections). 

In a series of cases, the Board reaffirmed its longstanding practice to follow the objective 

intent of stipulating parties where the stipulation does not violate Board law. Caesars Tahoe,

supra; G & K Services, 340 NLRB 722 (2003); Peirce-Phelps, Inc., 341 NLRB 585 (2004); Bell 

Convalescent Hospital, 337 NLRB 191 (2001); Northwest Community Hospital, 331 NLRB 307 

(2000); Cleveland Indians Baseball Co., 333 NLRB 579 (2001); National Public Radio, 328 

NLRB 75 (1999); Highlands Regional Medical Center, 327 NLRB 1049 (1999); Venture 

Industries, 327 NLRB 918 (1999); Laidlaw Transit, Inc., 322 NLRB 895 (1997) (stipulated 

election agreement is a contract); Pacific Lincoln-Mercury, 312 NLRB 901 (1993); Windham 

Community Memorial Hospital, 312 NLRB 54 (1993); and Gala Food Processing, 310 NLRB 

1193 (1993). See also Dunham’s Athleisure Corp., 311 NLRB 175 (1993), distinguishing Vent 

Control, Inc., 126 NLRB 1134 (1960). 

The Board in Los Angeles Water & Power Employees’ Assn., 340 NLRB 1232 (2003), stated: 

In applying the first prong of the Caesars Tahoe analysis, the Board must determine whether 

the stipulated unit is ambiguous. In doing so, the Board compares the “express language of 

the stipulated unit with the disputed classifications.” Northwest Community Hospital, 331 

NLRB 307, 307 (2000) (citing Viacom Cablevision, 268 NLRB 633 (1984)). The Board 

will find that the parties have “a clear intent to include those classifications matching the 

description and a clear intent to exclude those classifications not matching the stipulated unit 

description.” Id. Accord: Bell Convalescent [Hospital], 337 NLRB 191 (2001). 
286 VOTING ELIGIBILITY

Once a stipulation has been approved, a party may withdraw only by agreement or by 

showing unusual circumstances. Hampton Inn & Suites, 331 NLRB 238 (2000). Accord: NLRB 

v. MEMC Electronic Materials, Inc., 363 F.3d 705 (8th Cir. 2004). 

The Board does not consider itself bound by a bargaining history resulting from a stipulated 

unit in a consent election. See section 12-221, supra. 
24. INTERFERENCE WITH ELECTIONS 

Introduction 

Board elections are conducted on a basis of high standards designed to make certain that the 

employees in the voting unit or voting group enjoy the opportunity to exercise their franchise in a 

free and untrammeled manner in the choice of a bargaining representative. 

We have already described the procedure (ch. 22) in the handling of objections to elections. 

We now turn to the substantive case law which deals with preelection campaign interference. 

This is discussed prior to our treatment of matters that affect the actual conduct of the election 

because it concerns the campaign which, of course, occurs in the period preceding the election, 

and is therefore a type of conduct quite different from that which occurs at or near the polling 

place on the day of the election. There is considerable overlap between 8(a)(1) conduct and 

preelection campaign interference. Because this is a text on representation case law, there will be 

only limited discussion of unfair labor practice case law. 

24-100 Objections Procedures 

Before discussing the law on what is and is not objectionable conduct, it is important that we 

summarize the procedural rules with respect to objections. See also CHM sections 11390–11406. 

24-110 Objections Period 

378-0180 

As a general rule, the period during which the Board will consider conduct as objectionable—

often called the “critical period”—is the period between the filing of the petition and the date of 

the election. Ideal Electric Mfg. Co., 134 NLRB 1275 (1961). It is the objecting parties burden to 

show that the conduct occurred during the critical period. Accubuilt, Inc., 340 NLRB 1337 

(2003); Gibraltar Steel Corp., 323 NLRB 601 (1997); and Dollar Rent-A-Car, 314 NLRB 1089 

fn. 4 (1994). The critical period begins on the date of the petition filing and covers all conduct 

occurring on that date even if it occurs before the time of the day when the petition was filed. 

West Texas Equipment Co., 142 NLRB 1358, 1360 (1963). The critical period for a second 

election commences as of the date of the first election. Star Kist Caribe, Inc., 325 NLRB 304 

(1998). 

Prepetition conduct may be considered where it “adds meaning and dimension to related 

postpetition conduct.” Dresser Industries, 242 NLRB 74 (1979), and Cedars-Sinai Medical 

Center, 342 NLRB 596 (2004). While generally such prepetition conduct cannot, standing alone, 

be a basis for an objection, Data Technology Corp., 281 NLRB 1005, 1007 (1986), the Board has 

found clearly proscribed prepetition activity likely to have a significant impact on the election. 

See Royal Packaging Corp., 284 NLRB 317 (1987); and Gibson’s Discount Center, 214 NLRB 

221 (1974), in which promises of benefit in violation of the Savair Mfg Co. doctrine—(Savair 

Mfg. Co.,414 U.S. 270 (1973))—was found to be objectionable prepetition conduct. See also 

National League of Professional Baseball Clubs, 330 NLRB 670 (2000); and Yuma Coca-Cola 

Bottling Co., 339 NLRB 67 (2003) 

In Harborside Healthcare, Inc., 343 NLRB 906 (2004), the Board affirmed the Gibson 

Discount exception to the Ideal Electric Mfg. Co. rule (134 NLRB 1275 (1961)) in the context of 

supervisor coercion to employees to sign union cards. The Board also commented in Harborside, 

supra at fn. 21: 

Ideal Electric notwithstanding, the Board will consider prepetition conduct that is sufficiently 

serious to have affected the results of the election. 

Accord: Madison Square Garden, Ct., LLC, 350 NLRB 117 (2007). 

287
288 INTERFERENCE WITH ELECTIONS 

In two cases the Board dealt with the appropriate objections period in cases where there are 

two petitions. In R. Dakin & Co., 191 NLRB 343 (1971), and 207 NLRB 521 (1973), the Board 

held that conduct occurring prior to the operative petition was not to be considered even though it 

occurred after the filing of an earlier petition for the same unit, and the later withdrawal of that 

petition. A different result obtained, however, when the first and second petition were on file at 

the same time and the conduct occurred before the second petition. There, the conduct was 

considered as objectionable even though the first petition was withdrawn. Monroe Tube Co., 220 

NLRB 302, 305 (1975); and Carson International, 259 NLRB 1073 (1982). 

Postelection conduct by parties will not ordinarily be grounds for valid objections. 

Mountaineer Bolt, 300 NLRB 667 (1990). 

24-120 Time for Filing Objections 

393-7011 

Objections to the election must be filed with the Regional Director within 7 days after the 

tally of ballots has been prepared. See Rule 102.69(a). Filing of objections is achieved by 

personal service in the Regional Office by close of business on the due date or by deposit of the 

objections in the mail prior to the due date. John I. Haas, Inc., 301 NLRB 300 (1991). However, 

delivery of a document to a delivery service on the due date will not excuse late delivery even 

where same day delivery is promised. The doctrine of “excusable neglect” can not apply in 

representation cases. Section 102.111(c) of the Rules. 

The Regional Director is responsible for service of the objections on the other parties to the 

case. The objecting party is, however, required to provide the Regional Director with an original 

and five copies of the objections. Rule 102.69(a). 

24-130 Duty to Provide Evidence of Objections 

393-7011-5000 

The burden is on the objecting party to provide evidence that the election should be set aside. 

Daylight Grocery Co. v. NLRB, 678 F.2d 905, 909 (11th Cir. 1982); Lamar Advertising of 

Janesville, 340 NLRB 979 (2003); and Consumers Energy Co., 337 NLRB 752 (2002). 

Within 7 days of the filing of objections, the objecting party must furnish the Regional 

Director with the evidence available to it in support of the objections. Rule 102.69(a). Although 

this period may be extended by the Regional Director, it is, in the absence of an extension, strictly 

enforced. StarVideo Entertainment L.P., 290 NLRB 1010 (1988); and Goody’s Family Clothing, 

308 NLRB 181 (1992). See Public Storage, 295 NLRB 1034 (1989), in which the Board 

overruled a Regional Director’s decision to accept late filed evidence, and Koons Ford of 

Annapolis, 308 NLRB 1067 (1992). Compare Kano Trucking Service, 295 NLRB 514 (1989), in 

which the Board accepted the evidence after the due date on a showing of good-faith reasonable 

effort to comply with the rule. Evidence mailed to the Regional Office before the due date is 

considered timely filed. See Rules, Section 102.111(b), and Bi-Lo Foods, 315 NLRB 695 (1994). 

The evidence must establish a prima facie case in support of its objections. See Park 

Chevrolet-Geo, 308 NLRB 1010 (1992). The Board does not, however, require that the objecting 

party submit signed affidavits. It is sufficient if the party submits a summary of the evidence and 

the names of the witnesses who can provide testimony. Daily Grind, 337 NLRB 655 (2002), and 

Heartland of Martinsburg, 313 NLRB 655 (1994). The submission must be in writing. Compare 

Sacramento Steel & Supply, 313 NLRB 730 (1994). 
INTERFERENCE WITH ELECTIONS 289

24-l40 Scope of Investigation of Objections 

393-7033-1100 

393-7022-1700 et seq. 

393-7077-2090 

Under Section 102.69(d), the Regional Director may conduct either an administrative 

investigation of objections or set them for hearing or both. A hearing is held only when there are 

substantial and material issues of fact. Care Enterprises, 306 NLRB 491 (1992); and Speakman

Electric Co., 307 NLRB 1441 (1992). See also Kerr-McGee Chemical Corp., 311 NLRB 447 

(1993), in which a divided Board directed a hearing to “aid us in determining on which side of the 

line drawn by our case law this case falls.” 

The Board will not consider allegations of misconduct unrelated to the objections unless the 

“objecting party demonstrates by clear and convincing proof that the evidence is not only newly 

discovered but was also previously unavailable.” Rhone-Poulenc, Inc., 271 NLRB 1008 (1984). 

This restriction does not apply to evidence discovered by the Regional Director. In fact, the Board 

will permit the Regional Director to set aside an election based on evidence uncovered during the 

investigation by the Regional Office even though it was not the subject of a specific objection. 

American Safety Equipment Corp., 234 NLRB 501 (1978). See also Burns Security Services, 256 

NLRB 959 (1981). 

For an excellent discussion of various aspects of the problem of unalleged objections, see 

White Plains Lincoln Mercury, 288 NLRB 1133 (1988). See also Framed Picture Enterprise, 

303 NLRB 722 (1991). The Board distinguished the authority of a hearing officer from a 

Regional Director in Precision Products Group, 319 NLRB 640 (1995). Thus, the hearing officer 

is constrained to consider the issues encompassed by the Regional Director’s order setting matter 

for hearing. The Board compared Iowa Lamb Corp., 275 NLRB 185 (1985), with American 

Safety Equipment, supra. Accord: Fleet Boston Pavilion, 333 NLRB 655 (2001). J. K. Pulley 

Co., 338 NLRB 1152 (2003), the Board applied a similar restriction to the hearing officer in a 

challenge ballot proceeding.

See section 22-119 for a discussion of the nature of the record on appeal to the Board from a 

decision of the Regional Director or hearing officer. 

24-150 Estoppel in Objection Cases 

A party to an election case is ordinarily estopped from relying on its own misconduct as 

objectionable. B. J. Titan Service Co., 296 NLRB 668 (1989), and Republic Electronics, 266 

NLRB 852 (1983). The exception to this rule is the situation where the party causes an employee 

to miss the election, the employee’s vote is determinative, there is no evidence of bad faith, and 

the employee is disenfranchised through no fault of his or her own. Republic Electronics, supra 

at 853. 

In Virginia Concrete Corp., 338 NLRB 1182 (2003), the Board overruled Ellicott Machine 

Corp., 54 NLRB 732 (1944), a rather old case in which the Board had held that it would treat the 

withdrawal of a charge without prejudice as an automatic waiver by the petitioning union of the 

right to use the subject matter of that charge as a basis for objections to the election. In the Great 

Atlantic & Pacific Tea Co., 101 NLRB 1118 (1952), the Board abandoned the theory of waiver 

on which Ellicott Machine was decided holding that the policies of the Act would best be 

effectuated by considering on the merits any alleged interference which occurs during the crucial 

period before an election “whether or not charges have been filed.” 101 NLRB at 1120–1121. A 

“request to proceed” is not a waiver of a right to file objections. Graham Architectural Products 

Corp., 259 NLRB 1174, 1181 (1982); Ed Chandler Ford, 241 NLRB 1201 (1979); and Bernel 

Foam Products Co., 146 NLRB 1277 (1964).
290 INTERFERENCE WITH ELECTIONS 

24-200 Legal Background of the “Free Speech” Issue 

378-2885 

501-2825 

501-2862 et seq. 

24-210 The Early Cases 

The Board’s early decisions, at least until 1941, were predicated on two major concepts. First, 

that every appeal by an employer in opposition to unions violated the Wagner Act provision 

against interference, restraint, and coercion because it inevitably created a fear in the minds of 

employees that the employer would use economic power against those who disregarded the 

employer’s expressed desires. Second, that the choice of a bargaining representative was the 

exclusive concern of the employees and that the employer did not possess an interest sufficient to 

permit to intrusion. See Cox & Bok, Labor Law Cases and Materials, 170 et seq. (7th ed., 1969). 

There was some conflict in the court of appeals and as is not infrequently the case when a 

conflict of principles becomes sharp enough in a significant area of law which by its nature is 

prone to a high emotional boiling point, the highest court of the land inevitably has to pass on it. 

This happened here. In 1941, in NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941), 

the United States Supreme Court was presented with the opportunity. The Court decided that the 

National Labor Relations Act did not prohibit employers from expressing their views about labor 

organizations, and this, for all practical purposes, marked the death knell of the so-called 

neutrality or enforced-silence requirement which had prevailed during the first 6 years. “The 

employer in this case,” said the Court, “is as free as ever to take any side it may choose on this 

controversial issue.” 

This did not come as too great a surprise, for about a year earlier in Thornhill v. Alabama, 

310 U.S. 88 (1940), the Supreme Court had made it clear that in the circumstances of our times 

“the dissemination of information concerning the facts of a labor dispute must be regarded as 

within the area of free discussion that is guaranteed by the Constitution” and that “labor relations 

are not matters of mere local or private concern.” Indeed, added the Court, “free discussion 

concerning the conditions in industry and the causes of labor disputes appears to us indispensable 

to the effective and intelligent use of the processes of popular government to shape the destiny of 

industrial society.” 

Looking deeper into Virginia Electric, supra, which is our principal authority in the realm of 

free speech under the National Labor Relations Act, we find further guidance. Free as the 

employer is to express his views, the Court nonetheless admonished that “conduct, though 

evidenced in part by speech, may amount, in connection with other circumstances, to coercion 

within the meaning of the Act. If the total activities of an employer restrain or coerce his 

employees in their free choice, then those employees are entitled to the protection of the Act. And 

in determining whether a course of conduct amounts to restraint or coercion, pressure exerted 

vocally by the employer may no more be disregarded than pressure exerted in other ways.” Id. at 

477. 

The case itself was remanded to the Board which subsequently held that the speech, not 

alone, but in the context of other conduct found coercive, amounted to an unfair labor practice, a 

finding which was ultimately upheld. Virginia Electric & Power Co. v. NLRB, 132 F.2d 390 (4th 

Cir. 1942), affd. 319 U.S. 533 (1943). 

However, although Virginia Electric & Power Co. v. NLRB, supra, effectively ruled out the 

neutrality per se requirement and its correlative theory that every employer appeal inevitably 

created fear of economic reprisal in the minds of his employees, it did not answer all the 

questions, and some, even at this late date, are still with us. 

Following the mandate of the Supreme Court, the Second Circuit in NLRB v. American Tube 

Bending Co., 134 F.2d 993 (2d Cir. 1943), cert. denied 320 U.S. 708 (1943), formally erected a 
INTERFERENCE WITH ELECTIONS 291

tombstone to the memory of the “complete neutrality” doctrine. This is interesting since Judge 

Learned Hand wrote the opinion in American Tube Bending but also had given an exposition of 

the former rule in the earlier case of NLRB v. Federbush Co., 121 F.2d 954 (2d Cir. 1941), 

including his much quoted “words are not pebbles in alien juxtaposition” paragraph in that 

opinion. 

The host of Board and court findings in unfair labor practice cases in the 1941–1947 period 

suggested that anything short of coercion, threats, or promises of economic benefits was 

privileged speech so long as the employer’s activities did not interfere with employees’ rights as 

guaranteed by the Act. But despite this implementation of the Supreme Court’s decision, agitation 

during the consideration of the Taft-Hartley Amendments in 1947 was potent enough to lead to 

the inclusion of a new provision in the form of Section 8(c), which reads as follows: 

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in 

written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor 

practice under any of the provisions of this Act, if such expression contains no threat of 

reprisal or force or promise of benefit. 

The experts differ both as to the necessity and the effect of this provision, although all seem 

to agree that the legislative history surrounding its enactment is confusing. See Cox, Some 

Aspects of the Labor-Management Revisions Act, Harv. L. Rev. 1620 (1947); Wollett & Rowen, 

Employer Speech and Related Issues, 16 Ohio State L.J. 384 (1955). The prevailing view, it 

would appear, is that Section 8(c) was simply a codification of the rule laid down by the Supreme 

Court and is supported by the statement of Senator Taft, who, in opening the debate in the Senate, 

declared that the provision guaranteeing free speech to employers “carries out approximately the 

present rule laid down by the Supreme Court of the United States. It freezes that rule into law 

itself rather than to leave employers dependent on future decisions.” 93 Cong.Rec. 3953 (Apr. 4, 

1947). During the interval between NLRB v. Virginia Electric & Power Co., supra, and the TaftHartley Amendments, it seems clear that this was the rule followed by the Board and the courts. 

See Bloom, Freedom of Communication Under the Labor Relations Act (Proceeding of New 

York University Eighth Annual Conference on Labor, p. 222 (1955)). 

24-220 Intervening Period and Gissel (Sinclair) 

378-2835 

378-2885 

501-2875 et seq. 

During the 22-year period that intervened between 1947, the year Section 8(c) was enacted, 

and the year 1969, serious questions had been posed in an area which inexorably appeared headed 

for a showdown: When is a statement a mere prophecy or prediction, and therefore not actionable 

as a basis for an 8(a)(1) violation or as ground for invalidating an election, and when is it a threat, 

and therefore both a statutory violation as well as objectionable preelection conduct? 

Again, a crucial controversy in the “free speech” area, arriving several decades after Virginia 

Electric and its codifying statutory counterpart Section 8(c), reached the United States Supreme 

Court. The year was 1969 and the case was Gissel Packing Co., 395 U.S. 575 (1969). More 

specifically, it was that portion of Gissel which dealt with an appeal from the holding of the 

Board and the First Circuit in NLRB v. Sinclair Co., 397 F.2d 157 (1st Cir. 1968), a companion 

case, on first amendment grounds. 

The First Circuit had enforced a Board order which, in pertinent part, was based on a finding 

that the employer’s communications with the employees reasonably tended to convey the belief 

that selection of the union in a forthcoming election could lead the employer to close the plant or 

to transfer the weaving production, with a resultant loss of jobs. The First Circuit also affirmed 
292 INTERFERENCE WITH ELECTIONS 

the Board’s invalidation of the election because the activities in question interfered with the 

exercise of a free choice. 

The Supreme Court, with specific reference to the “free speech” issue, stated that an 

employer is free to communicate views on unionism or about a specific union, so long as the 

communications do not contain a threat of reprisal or force or promise of benefit. “He may even 

make a prediction,” added the Court, “as to the precise effects he believes unionization will have 

on his company. In such a case, however, the prediction must be carefully phrased on the basis of 

objective fact to convey an employer’s belief as to demonstrably probable consequences beyond 

his control or to convey a management decision already arrived at to close the plant in case of 

unionization.” 

Pinpointing the distinction between a threat and a prediction, the Court went on to say (395 

U.S. at 618).): 

If there is any implication that an employer may or may not take action solely on his own 

initiative for reasons unrelated to economic necessities and known only to him, the statement 

is no longer a reasonable prediction based on available facts but a threat of retaliation 

based on misrepresentation and coercion, and as such without the protection of the First 

Amendment. [Emphasis added.]

The Supreme Court found equally valid the findings by the First Circuit and the Board that 

the employer’s statements and communications were not cast as a prediction of demonstrable 

economic consequences, but rather as a threat of retaliatory action. It relied on the findings that 

the employer’s communications conveyed the following message: that the company was in a 

precarious financial condition; that the “strike-happy” union would in all likelihood have to 

obtain its potentially unreasonable demands by striking, the probable result of which would be a 

plant shutdown, as the past history of labor relations in the area indicated; and that the employees 

in such case would have great difficulty finding employment elsewhere. 

In these circumstances, concluded the Court (395 U.S. at 619): 

The Board could reasonably conclude that the intended and understood import of that 

message was not to predict that unionization would inevitably cause the plant to close but to 

threaten to throw employees out of work regardless of the economic realities. [Emphasis 

added.] 

In arriving at this conclusion, the Court pointed out that (1) the employer had no support for 

his basic assumption that the union, which had not yet even presented any demands, would have 

to strike to be heard, and (2) the Board has often found that employees, who are particularly 

sensitive to rumors of plant closings, take such hints “as coercive threats rather than honest 

forecasts.” See, for example, Kolmar Laboratories, 159 NLRB 805 (1966), enfd. 387 F.2d 833 

(7th Cir. 1967); and Suprenant Mfg. Co., 144 NLRB 507 (1963), enfd. 341 F.2d 756 (6th Cir. 

1965). 

Significantly, in responding to the argument that the line between permitted predictions and 

proscribed threats is too vague to stand up under the traditional first amendment analysis and the 

further argument that the Board’s discretion to curtail free speech rights is correspondingly too 

uncontrolled, the Supreme Court (395 U.S. at 620) acknowledged, in effect, the Board’s 

competence “to judge the impact of utterances made in the context of the employer-employee 

relationship,” and added the pointed comment that 

an employer, who has control over that relationship and therefore knows it best, cannot be 

heard to complain that he is without an adequate guide for his behavior. He can easily make 

his views known without engaging in “`brinkmanship”’ when it becomes all too easy to 

“overstep and tumble over the brink.” [Emphasis added.] Wausau Steel Corp. v. NLRB, 377 

F.2d 389 (7th Cir. 1967). 
INTERFERENCE WITH ELECTIONS 293

24-230 The Later Cases 

378-2835 

378-2885 

501-2875-7000 

Following the Supreme Court’s pronouncement on the “free speech” issue, the Board and the 

courts have had occasion to decide cases in which the Gissel (Sinclair) decision was the 

touchstone. 

In NLRB v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969), the First Circuit observed that it 

read the Supreme Court’s decision as indicating two ways in which an employer’s “predictions” 

as to possible unhappy consequences of unionization might transgress: (1) the employer might 

indicate that unnecessary consequences would be deliberately inflicted, i.e., a threat of retaliation, 

or (2) it might indicate consequences not within its control but described as probable or likely, 

when in fact there was no objective evidence of any such likelihood; i.e., a threat, albeit not 

retaliatory, but nonetheless improper. 

The Board found employer conduct actionable which conveyed the following message: It had 

determined the wage and benefit increases it could afford to grant; and that if the anticipated 

demands of the union were exorbitant, it would not only reject these demands, thus precipitating a 

strike, but would close its plant before giving in to the union; that it could afford to do this 

because it had other plants to which work had been shifted in the past and could be again, or, 

alternatively, that the strikers would be permanently replaced, losing their jobs. While an 

employer has the right to present in a rational context its views on the potential disadvantages of 

unionism, conjuring up the vision of a strike as inevitable, “a fact which he is certainly in the best 

position to appreciate,” the Board reasoned, created an obvious potential for interference with 

free choice. Setting aside the election, the Board cited the comment of the Supreme Court in 

Gissel that an employer “can easily make his views known without engaging in brinkmanship.” 

Unitec Industries, 180 NLRB 51 (1970). And, critically, the statements or predictions of the 

possible adverse consequences of union organization must be based on objective facts. Southern 

Labor Services, 336 NLRB 710 (2001), and AP Automotive Systems, 333 NLRB 581 (2001).

In a series of cases beginning with Eagle Comtronics, 263 NLRB 515 (1982), the Board set 

out the standard for assessing employer remarks about the consequences of a strike. In Eagle the 

Board found that the statement that a striker could be replaced by applicants on file was not a 

threat of job loss. But, where employees are told “you could lose your job to a permanent 

replacement” the Board found a threat of reprisal. Larson Tool & Stamping Co., 296 NLRB 895 

(1989). See also Warren Manor Nursing Home, 329 NLRB 3 (1999); Baddour, Inc., 303 NLRB 

275 (1991); and Fiber-Lam, Inc., 301 NLRB 94 (1991). See also Warren Manor Nursing Home, 

supra. Compare Novi American, Inc., 309 NLRB 544 (1992). 

Remarks about high labor costs in the context of earlier distributed literature pertaining to the 

removal of the parent company’s operations to Mexico were found veiled threats to close this 

plant should the union be selected. Sprague Ponce Co., 181 NLRB 281 (1970). See also Penland 

Paper Converting Corp., 167 NLRB 868 (1967). 

On the other hand, “in the total context of the Employer’s noncoercive conduct during the 

election campaign,” the Board found no actionable threat in a Spanish letter to voters, which 

varied from the English version, and which contained the following: 

These organizers will invite you to meetings, meals and perhaps even to have a drink, they 

will make promises which they will never keep, they will hurt your Employer, they will go 

on strike, etc. etc. And this will affect you, since you will lose days of work and will risk 

your stable position out of irresponsibility, and it will affect you also in an economic sense, 

since you will be paying your dues minus your regular wages, that is to say money will be 

missing as it always is during these demonstrations and absences from work. 
294 INTERFERENCE WITH ELECTIONS 

The Board concluded that the above paragraph of the Spanish version was no more than a 

statement of opinion predicting events that might occur should the union win the election. Desert 

Laundry, 192 NLRB 1032 (1971). For a discussion of employer statements concerning strikes as 

a consequence of unionism, see Fred Wilkinson Associates, 297 NLRB 737 (1990). Compare 

Novi American, Inc., supra. 

The Board’s test regarding statements is whether a remark can reasonably be interpreted by 

an employee as a threat. The test is not the actual effect on the listener. Smithers Tire, 308 NLRB 

72 (1992), and Teamsters Local 299 (Overnite Transportation Co.), 328 NLRB 1231 fn. 2 

(1999). 

The Ninth Circuit, in NLRB v. Electric Co., 438 F.2d 1102 (1971), recapitulated the Supreme 

Court’s holding by stating that “an employer may not impliedly threaten retaliatory consequences 

within his control, nor may he, in an excess of imagination and under the guise of prediction, 

fabricate hobgoblin consequences outside his control which have no basis in objective fact.” But, 

contrary to the Board, the court found nothing in expressions by a company supervisor which 

would constitute either an express or implied threat of retaliatory action. The statements, said the 

Ninth Circuit, must be considered “in the context of the factual background in which they were 

made, and in view of the totality of employer conduct.” Thus, the statements were, at most, 

“predictions of possible disadvantages which might arise from economic necessity or because of 

union demands or union policies.” Moreover, added the court, there was a factual basis for all the 

predictions made. Compare NLRB v. Raytheon Co.,, 445 F.2d 272 (9th Cir. 1971), 445 F.2d 272 

(9th Cir. 1971) 445 F.2d 272 (9th Cir. 1971). See also Boaz Spinning Co. v. NLRB, 439 F.2d 876 

(6th Cir. 1971). Churchill’s Restaurant, 276 NLRB 775 (1985). 

However, in NLRB v. Taber Instruments, 421 F.2d 642 (2d Cir. 1970), the Second Circuit 

enforced a Board order predicated, inter alia, on statements such as these: “The men don’t realize 

what they could lose in this election. If Teledyne chooses to, they could phase out these 

operations throughout their other plants”; and “there was a possibility that in the event that the 

union was successful that the Company, if they thought it in their best interest, could move some 

of the departments into other plants of the Teledyne Corporation.” Roskin Bros., Inc., 274 NLRB 

413 (1985); and Southwire Co., 277 NLRB 377 (1985), enfd. 820 F.2d 453 (D.C. Cir. 1987). 

In Mohawk Bedding Co., 204 NLRB 277 (1973), the Board found that the employer’s 

campaign speeches and literature, as well as certain statements, taken as a whole, created “an 

atmosphere of apprehension in the minds of the voters.” Among the statements found 

objectionable was one, couched in the language of a disclaimer, which, the Board found, 

underscored the threat: “Well, I don’t want to threaten you, but it’s very important for you to 

understand something. If the union wins the election tomorrow, and if in bargaining with us they 

really try to make good on the fantastic figures mentioned in the leaflets, then we could all be in 

for serious trouble.” He continued by stating that “there would be a question as to whether the 

company could remain in business here.” Moreover, it was the Board’s view that, by the 

employer’s repeated reference to the union causing other plants to close and the high 

unemployment situation locally, the employees could reasonably infer that their employment 

would be jeopardized if they supported the union. See also General Electric Wiring Devices, 182 

NLRB 876 (1970). Compare Kawasaki Motors Mfg. Corp., 280 NLRB 491 (1986), finding 

protected 8(c) speech. 

In Renton Issaquah Freightlines, 311 NLRB 178 (1993), the Board found as objectionable an 

employer’s statement that the question of whether the plant would reopen depended on whether 

the employees voted to decertify the union. The Board adopted the Regional Director’s finding 

that the prediction of dire consequences if the employees did not decertify the union interfered 

with the election. See also Madison Industries, 290 NLRB 1226 (1988), cited by the Board in 

Renton as well as the cases cited by the Regional Director in Renton. See also two recent plant 

closure threat cases Dominion Engineered Textiles, 314 NLRB 571 (1994); Shelby Tissue, Inc., 

316 NLRB 646 (1995); and a case involving a threat of loss of a 401(k) plan. Hertz Corp., 316 
INTERFERENCE WITH ELECTIONS 295

NLRB 672 (1995). Compare TCI Cablevision of Washington, 329 NLRB 700 (1999) (statement 

that represented employees do not get 401(k) plan was not objectionable), and CPP Pinkerton, 

309 NLRB 723 (1992), where a caution that jobs could be lost if the employer did not remain 

competitive was found unobjectionable. 

In Glasgow Industries, 204 NLRB 625 (1973), despite a general manager’s avowal that he 

wanted to win the election but to run “a clean campaign that was entirely within the law,” and the 

use of a “checklist” of “do’s and dont’s” to guide supervisory conduct, statements were made 

which required the Board to invalidate the election. Thus, a foreman told an employee that “if the 

Union comes in, the order will be cancelled and you will have no work”; another foreman stated 

that “if you all vote this Union in, this plant could move to Mexico.” The Seventh Circuit, in 

NLRB v. Roselyn Bakeries, 471 F.2d 165 (7th Cir. 1972), , summarized this area of the law in the 

following statement of principles: 

If there is any implication that employer may or may not take action solely on his own 

initiative for reasons unrelated to economic necessity and known only to him, the statement 

is no longer a reasonable prediction based on available facts, but is a threat of retaliation 

based on misrepresentation and coercion and, as such, without the protection of the First 

Amendment. Gissel, supra, p. 618. Any balancing of the rights of the employees under §7, 

as protected by §8(a)(1) and the proviso in §8(c), must take into account the economic 

dependence of the employees on the employers and the necessary tendency of the former, 

because of that relationship, to be alerted to intended implications of the latter that might be 

more promptly dismissed by one who was entirely disinterested. Beyond question, 

employees are particularly sensitive to rumors of plant closing and view such rumors as 

coercive threats, rather than honest forecasts. 

In SPX Corp., 320 NLRB 219 (1995), the Board rejected the employer’s contention that its 

statement that its customers would not use union contractors was unobjectionable. The Board 

relied on the absence of any record support for the employer’s statement. 

In Georgia-Pacific Corp., 325 NLRB 867 (1998), a divided Board found objectionable an 

employer preelection announcement that being represented by the Union would make the 

employees ineligible for the bonus plan. Accord: Cooper Tire & Rubber Co., 340 NLRB 958 

(2003). 

For an analysis of the views of two circuits which have rejected Board positions and found 

conduct to be predictions based on objective facts, see NLRB v. Shenanigans, 723 F.2d 1360 (7th 

Cir. 1983); and Patsy Bee, Inc. v. NLRB, 654 F.2d 515 (8th Cir. 1981). Compare Zim’s Foodliner 

v. NLRB, 495 F.2d 1131 (7th Cir. 1974). 

24-300 Preelection Campaign Interference 

378-2862 

In an area characterized by a myriad of different factual situations, involving all kinds of 

nuances and shades of difference, any attempt at a ready-reference primer is doomed to failure. 

Nonetheless, it is possible to cull general principles from specific cases and to attempt to extract 

the reasons which brought these principles into being. Moreover, despite the large number of 

variations, it is also reasonably possible to group areas which have much in common under 

separate headings. Thus, for example, preelection campaign interference may be the subject both 

of unfair labor practice proceedings and objections to the election; it may consist of conduct of 

the General Shoe Corp., 77 NLRB 124 (1948), type which does not, for one reason or another, 

also violate the unfair labor practice provisions of the Act; it may be conduct attributable to a 

third party; or it may involve the infringement of a per se rule. With the exception of conduct 

which is an unfair labor practice (see sec. 24-310), all of these areas are considered in this 

chapter. 

In Taylor Wharton Division, 336 NLRB 157 (2001), the Board stated: 
296 INTERFERENCE WITH ELECTIONS 

[The] proper test for evaluating conduct of a party is an objective one—whether it has “the 

tendency to interfere with the employees’ freedom of choice.” Cambridge Tool & Mfg. 

[Co.], 316 NLRB 716 (1995). In determining whether a party’s misconduct has the tendency 

to interfere with employees’ freedom of choice, the Board considers: (1) the number of 

incidents; (2) the severity of the incidents and whether they were likely to cause fear among 

the employees in the bargaining unit; (3) the number of employees in the bargaining unit 

subjected to the misconduct; (4) the proximity of the misconduct to the election; (5) the 

degree to which the misconduct persists in the minds of the bargaining unit employees; (6) 

the extent of dissemination of the misconduct among the bargaining unit employees; (7) the 

effect, if any, of misconduct by the opposing party to cancel out the effects of the original 

misconduct; (8) the closeness of the final vote; and (9) the degree to which the misconduct 

can be attributed to the party. See, e.g., Avis Rent-a-Car System, 280 NLRB 580, 581 

(1986). 

Accord: Cedars-Sinai Medical Center, 342 NLRB 596 (2004). 

24-310 Interference Which may also Violate the Unfair Labor Practice Provisions 

378-1401-2500 et seq. 

378-2862 

Conduct which by statutory proscription constitutes unfair labor practice violations may also 

be, as we shall soon see, the basis for invalidating an election, if merit is found in the objections 

in which they are alleged. As the Board commented in Playskool Mfg. Co., 140 NLRB 1417 

(1963), “conduct of this nature which is violative of Section 8(a)(1) is, a fortiori, conduct which 

interferes with the exercise of a free and untrammeled choice in an election.” See also IRIS 

U.S.A., Inc., 336 NLRB 1013 (2001); and Diamond Walnut Growers, Inc., 326 NLRB 28 (1998). 

This is so “because the test of conduct which may interfere with the “laboratory conditions’ for an 

election is considerably more restrictive than the test of conduct which amounts to interference, 

restraint, or coercion which violates Section 8(a)(1).” Dal-Tex Optical Co., 137 NLRB 1782 

(1962). See also Overnite Transportation Co., 158 NLRB 879 (1966); and Excelsior Underwear, 

156 NLRB 1236 (1966). 

Earlier editions of this text included considerable discussion of unfair labor practice cases 

which arose during election campaigns and thus became the basis for election objections. This 

material duplicated unfair labor practice texts and did not add significantly to a study of 

representation case law. Accordingly, the material has not been included in this edition and the 

researcher is directed to those research tools which index unfair labor practice case law. 

It is important, however, to add a caveat to the a fortiori statements cited above. That caveat 

is that not all unfair labor practice conduct will warrant setting aside an election. In Caron 

International, 246 NLRB 1120 (1979), the Board rejected a per se approach to the a fortiori 

language of Playskool. Instead, the Board announced that it would examine the unfair labor 

practice conduct to determine whether it was extensive enough to interfere with the election. See 

also Video Tape Co., 288 NLRB 646 (1989); Metz Metallurgical Corp., 270 NLRB 889 (1984); 

and General Felt, 269 NLRB 474 (1984). See also Recycle America, 310 NLRB 629 (1993), in 

which the Board found that the unfair labor practices were not sufficient to set aside the election. 

The test is an objective one—whether the conduct has a tendency to interfere with employee 

free choice. Hopkins Nursing Care Center, 309 NLRB 958 (1992). 

In one interesting case, the Board found that an assertion by a union that employees would 

lose their jobs if they voted against the union was not objectionable. The Board likened this 

statement to that in Janler Plastic Mold Corp., 186 NLRB 540 (1970), and characterized it as 

illogical. The Board compared that situation with that in NLRB v. Valley Bakery, 1 F.3d 769 (9th 

Cir. 1993); and Underwriters Laboratories, 323 NLRB 300 (1997). 
INTERFERENCE WITH ELECTIONS 297

In addition, the Board has held that certain unfair labor practice conduct does not pose a 

threat of restraint and coercion of employees and therefore is not a fortiori objectionable conduct. 

Thus, in Holt Bros., 146 NLRB 383 (1964), the Board found that the entering into of a contract 

which contained a clause prohibited by Section 8(e) of the Act was not objectionable. See also 

ARA Living Centers, 300 NLRB 888 (1990), in which the Board reached a similar result with 

respect to picketing in violation of Section 8(g) of the Act which occurred at another facility of 

the employer and which was publicized to the employees by the employer. Compare Curtin 

Matheson Scientific, 310 NLRB 1090 (1993), finding an unlawful no-solicitation rule to be 

objectionable. 

24-311 De Minimis or Isolated Conduct 

As discussed more fully in section 24-310, supra, the Board does not find that any unfair 

labor practice conduct warrants setting aside an election. It goes without saying, therefore, that 

not all otherwise unlawful conduct will set aside the election. 

As the Board noted in Airstream, Inc., 304 NLRB 151, 152 (1991): 

A violation of Section 8(a)(1) found to have occurred during the critical election period is, 

a fortiori, conduct which interferes with the results of the election unless it is so de minimis 

that it is “virtually impossible to conclude that [the violation] could have affected the results 

of the election.” Enola Super Thrift, 233 NLRB 409 (1977). 

The Board has applied the “virtually impossible” standard in consolidated unfair labor practice 

and representation cases in which conduct found to violate Section 8(a)(1) is also alleged in 

election objections. That standard does not apply in representation proceeding where there are no 

unfair labor practice allegation or finding. NYES Corp., 343 NLRB 791 fn. 2 (2004). Instead the 

Board applies the standard set forth in Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995), viz., 

whether the misconduct, taken as a whole, warrants a new election because it has “the tendency to 

interfere with the employees’ freedom of choice” and “could well have affected the outcome of 

the election.” Metaldyne Corp., 339 NLRB 443 (2003). See also Waste Management of 

Pennsylvania, 314 NLRB 376 (1994). See also Mercy General Hospital, 334 NLRB 100 (2001). 

In Bon Appetit Management Co., 334 NLRB 1042 (2001), the Board described the test for 

determining whether conduct is de minimis. See also Sir Francis Drake Hotel, 330 NLRB 638 

(2000) (margin of election results can be a factor); and Chicagoland Television News, 330 NLRB 

630 (2000). 

In Double J. Services, 347 NLRB No. 58 (2006) (not reported in Board volumes), a divided 

Board overruled the hearing officer who had found certain changes in work policies to be de 

minimus. The Board noted that these changes were announced without explanation shortly 

before the election and that they had a greater effect on the unit than the hearing officer found.

24-312 Litigation of Unfair Labor Practice Issues in Representation Cases 

The general rule is that the Board will not permit the litigation of unfair labor practice cases 

in representation proceedings. See section 3-920 of this text. 

This does not mean of course that the Board will not consider unfair labor practice findings in 

deciding objection cases. Rather, as discussed more fully, supra (sec. 24-310), unfair labor 

practice conduct that is litigated in an unfair labor practice case can also be found to be 

objectionable conduct. 

But, in the absence of a complaint, the Board will not consider some unfair labor practice 

issues in objections or challenge proceedings especially those involving Section 8(a)(3). Texas 

Meat Packers, 130 NLRB 279 (1961), and McLean Roofing Co., 276 NLRB 830 fn. 1 (1985). 

On the other hand, conduct which amounts to interference and might otherwise constitute 8(a)(1) 

conduct will generally be considered in an objection proceeding. See section 24-310, supra. The 

fact that an unfair labor practice charge alleging the same conduct as in the objections was 
298 INTERFERENCE WITH ELECTIONS 

dismissed does not require pro forma dismissal of the objections ADIA Personnel Services, 322 

NLRB 994 fn. 2 (1997). See section 14-700 for discussion of alter ego litigation. 

In Gaylord Bag Co., 313 NLRB 306 (1993), the Board rejected an employer’s contention that 

settlement of unfair labor practice charges against a union precluded its ability to establish that a 

petition should be dismissed. The Board, in doing so, noted that these are independent matters. 

24-313 Narrowness of the Election Results 

As indicated, the narrowness of the vote in an election is a relevant consideration. Robert 

Orr–Sysco Food Services, 338 NLRB 614 (2002). It is not, however, dispositive and as the Board 

noted in Accubuilt, Inc., 340 NLRB 1337 (2003), it will assess the general atmosphere at the 

location “rather than comparing the number of employees subject to any sort of the threats against 

the vote margin.” See also Lamar Advertising of Janesville, 340 NLRB 979 (2003). 

24-314 Dissemination 

In assessing whether conduct interfered with the election “the Board considers the number of 

incidents, their severity, the extent of dissemination, the size of the unit and other revelant 

factors,” Archer Services, 298 NLRB 312 (1990). See also Gold Shield Security & Investigations, 

306 NLRB 20 (1992); and Peppermill Hotel Casino, 325 NLRB 1202 fn. 2 (1998) (dissemination 

to even one voter could have affected results of election that ended in a tie vote). 

In Crown Bolt, Inc., 343 NLRB 776 (2004), a divided full Board reversed Springs Industries, 

332 NLRB 40 (2000), and “all other decisions in which the Board has presumed dissemination of 

plant-closure threats or other kinds of coercive statements.” The Board stated that such threats 

are “very severe” but that “severity of a threat is one factor, among several, to be considered in 

deciding whether to set aside an election. See Caron International, supra (noting the factors the 

Board considers in deciding whether misconduct affected the results of an election; factors 

include the number of violations, their severity, the extent of dissemination and the size of the 

unit).” (Supra at 779.) See also MB Consultants, Ltd., 328 NLRB 1089 (1999); Eric Brush & 

Mfg. Corp., 338 NLRB 1100 (2003); and Hollingsworth Management Service, 342 NLRB 556 

(2004).

In Freund Baking Co., 336 NLRB 847 (2001), a divided panel concluded that a 

security/confidential information provision in an employee handbook was both unlawful and 

objectionable. The provision limited discussion among employees of inter alia, wages, hours, and 

conditions of employment. Compare Safeway, Inc., 338 NLRB 528 (2003).

24-320 Types of Interference Under the General Shoe Doctrine 

378-1401-5000 

1401-6700 

We turn now to conduct, often the relevant basis for setting aside an election, which is not 

also violative of any of the unfair labor practice provisions of the Act. Broadly speaking, the areas 

of interference with elections we shall now consider stem out of the General Shoe doctrine, 

formulated by the Board in 1948 (General Shoe Corp., 77 NLRB 124 (1948)). Enunciated shortly 

after the 1947 amendments when Section 8(c) was already on the books, it suggests itself as a 

good beginning for a phase of preelection campaign interference which, being confined to 

representation proceedings, merits even more emphasis in a volume such as this. 

The General Shoe doctrine holds that conduct which creates an atmosphere which renders 

improbable a free choice will warrant invalidating an election, even though that conduct may not 

constitute an unfair labor practice. In adopting this rule, the Board rejected the contention that the 

criteria applied by the Board in a representation case to decide whether an election was interfered 

with need necessarily be identical to those used to determine whether an unfair labor practice had 

been committed. 
INTERFERENCE WITH ELECTIONS 299

In General Shoe itself, a consolidated complaint and representation proceeding, although the 

respondent’s activities immediately before the election were not held to constitute unfair labor 

practices, certain of these activities were nonetheless found to have created “an atmosphere 

calculated to prevent a free and untrammeled choice by the employees.” 

The Board summarized the doctrine in the following language: 

In election proceedings, it is the Board’s function to provide a laboratory in which an 

experiment may be conducted, under conditions as nearly ideal as possible, to determine the 

uninhibited desires of the employees. It is our duty to establish those conditions; it is also 

our duty to determine whether they have been fulfilled. When, in the rare extreme case, the 

standard drops too low, because of our fault or that of others, the requisite laboratory 

conditions are not present and the experiment must be conducted over again. [77 NLRB at 

127.] 

At the same time, the Board noted that Congress only applied what was then the new Section 

8(c) to unfair labor practice cases. 

Years later, when this dichotomy was again examined by the Board, it reaffirmed its original 

view by stating that “Congress specifically limited Section 8(c) to the adversary proceedings 

involved in unfair labor practice cases and it has no application to representation cases,” 

reversing specifically several of its decisions during an intervening period which suggested the 

contrary. The Board added, however, that the “strictures of the first amendment, to be sure, must 

be considered in all cases.” Dal-Tex Optical Co., 137 NLRB 1782 fn. 11 (1962). 

Under the General Shoe heading, it is also important to again emphasize what we have done 

before—that the test of conduct which may interfere with the “laboratory conditions” for an 

election is considerably more restrictive than the test of conduct amounting to interference, 

restraint, or coercion which violates Section 8(a)(1). See, for example, the decision in Edward J. 

DeBartolo Corp., 313 NLRB 382 (1993), where the Board found that the refusal of the union to 

leave the employer’s premise did not interfere with the election distinguishing the Supreme 

Court’s decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), relied on by the employer. 

An Exception—In Showell Poultry Co., 105 NLRB 580 (1953), the Board decided against 

setting aside an election where the employer engaged in objectionable conduct as to two unions, 

one of whom won the election. See also Flat River Glass Co., 234 NLRB 1307 (1978), Mercy 

Hospital Mercy Southwest Hospital, 338 NLRB 545 (2003); and Randall Rents of Indiana, 327 

NLRB 867 fn. 6 (1999), and section 24-325 of this chapter. Compare President Container, Inc., 

328 NLRB 1277 (1999) (misconduct directed at only one union). 

For a summary of the factors which the Board evaluates in deciding whether the employees 

could freely and fairly exercise free choice in the election. See Phillips Chrysler Plymouth, 304 

NLRB 16 (1991). Compare Station Operators, 307 NLRB 263 (1992); and Champaign 

Residential Services, 325 NLRB 687 (1998), distinguishing Phillips. See also Yale Industries, 

324 NLRB 848 (1997) (timing of announcement of benefit increase objectionable), and American 

Freightways, 327 NLRB 832 (1999) (single instance does not establish past practice of soliciting 

grievances). 

A few cases reflect the Board’s policy on types of objectionable conduct. See, for example, 

Sun Mart Foods, 341 NLRB 161 (2004) (promises to remodel store); Deaconess Medical Center, 

341 NLRB 589 (2004) (promise to restore wages); STAR, Inc., 337 NLRB 962 (2002) (grant of 

wage increase); Petrochem Insulation, Inc., 341 NLRB 473 (2004) (threat of reduced wages); 

Waste Management, Inc., 330 NLRB 634 (2000) (discriminatory bulletin board policy); Network 

Ambulance Services, 329 NLRB 1 (1999) (holiday benefits granted during critical period, not 

objectionable); United Methodist Home of New Jersey, 314 NLRB 687 (1994); Kauai Coconut 

Beach Resort, 317 NLRB 996 (1995) (timing of pay raises); Steeltech Mfg., 315 NLRB 213 

(1994) (promulagation of rules during critical period); Lutheran Retirement Village, 315 NLRB 

103 (1994); ADIA Personnel Services, .supra (promise of benefits); Ameraglass Co., 323 NLRB 
300 INTERFERENCE WITH ELECTIONS 

701 (1997) (acceleration of benefits); Comet Electric, 314 NLRB 1215 (1994) (failure to pay 

employees for attendance at captive audience speech); JTJ Trucking, 313 NLRB 1240 (1994) 

(union statement of no health coverage if employees vote against union found not objectionable); 

Lalique N.A., Inc., 338 NLRB 986 (2003) (union promise of medical benefits if it won election 

not objectionable); and Nestle Dairy Systems, 311 NLRB 987 (1993), enf. denied 46 F.3d 578 

(6th Cir. 1995) (filing RICO lawsuit, not objectionable). Washington National Hilton Hotel, 323 

NLRB 222 (1997), offering to put employees in contact with a news reporter who was doing a 

story on organizing, not objectionable. MacDonald Machinery Co., 335 NLRB 319 (2001). 

Compare Majestic Star Casino, LLC, 335 NLRB 407 (2001). For an extensive discussion of 

whether or not an employer breach of its own no-solicitation rule is objectionable, see Hale Nani 

Rehabilitation & Nursing, 326 NLRB 335 (1998). 

In two other cases, the Board found that added security measures after the filing of the 

petition including an additional armed guard on the day of the election was not 

objectionable─Quest International, 338 NLRB 856 (2003), and that an employer memorandum 

to employees indicating the possible loss of benefits in negotiations if the union won the election 

was not a basis for setting aside the election. Manhattan Crowne Plaza Town Park Hotel Corp., 

341 NLRB 619 (2004). 

In one interesting case, the Board found that the employer did not engage in objectionable 

conduct when it posted a letter from a customer indicating that unionization by the employees 

might occasion the customer making other business arrangements. Eagle Transport Corp., 327 

NLRB 1210 (1999). 

Frequently the issue is the timing of the grant of benefit. The general rule is that “the 

employer is required to proceed with projected wage or benefit improvements as if the union 

were not on the scene.” Niblock Excavating, Inc., 337 NLRB 53 (2001); Network Ambulance 

Services, 329 NLRB 1 (1999); and Waste Management of Palm Beach, 329 NLRB 198 (1999). 

Compare Tinius Olsen Testing Machine Co., 329 NLRB 351 (1999) (change required by contract 

not objectionable). See also Onan Corp., 338 NLRB 913 (2003); and Mercy Hospital Mercy 

Southwest Hospital, supra. 

As the Board explained more fully in United Airlines Services Corp., 290 NLRB 954 (1988): 

It is well established that the mere grant of benefits during the critical period is not, per se, 

grounds for setting aside an election. Rather, the critical inquiry is whether the benefits 

were granted for the purpose of influencing the employees’ vote in the election and were of 

a; type reasonably calculated to have that effect. NLRB v. Exchange Parts Co., 375 U.S. 405 

(1964). As a general rule, an employer’s legal duty in deciding whether to grant benefits 

while a representation proceeding is pending is to decide that question precisely as it would 

if the union were not on the scene. R. Dakin, [& Co., 284 NLRB 98, 98 (1987)], quoting 

Reds Express, 268 NLRB 1154, 1155 (1984). In determining whether a grant of benefits is 

objectionable, the Board has drawn the inference that benefits granted during the critical 

period are coercive, but it has allowed the employer to rebut the inference by coming 

forward with an explanation, other than the pending election, for the timing of the grant or 

announcement of such benefits. Uarco, Inc., 216 NLRB 1, 2 (1974). See, e.g., Singer Co.,

199 NLRB 1195 (1972). [Footnote omitted.] 

The Board will permit an employer to describe and make a comparison of its benefits for its 

unrepresented employees provided that this is not accompanied by an implied promise of benefit. 

Langdale Forest Products Co., 335 NLRB 602 (2001); Suburban Journals of Greater St. Louis,

343 NLRB 157 (2004), distinguishing Etna Equipment & Supply Co., 243 NLRB 596 (1979). 

With respect to union promises of benefit, the Board has held that “[e]mployees are generally 

able to understand that a union cannot obtain benefits automatically by winning an election but 

must seek to achieve them through collective bargaining. Union promises . . . are easily 

recognized by employees to be dependent on contingencies beyond the union’s control and do not 
INTERFERENCE WITH ELECTIONS 301

carry with them the same degree of finality as if uttered by an employer who has it within his 

power to implement promises of benefits.” Smith Co., 192 NLRB 1098, 1101 (1971). See also 

Lalique N.A., Inc., supra. 

Alyeska Pipeline Service Co., 261 NLRB 125 (1982), represents a limited exception to this 

general rule. In Alyeska, the union controlled “all access to construction jobs in Alaska for the 

employees participating in the election. Therefore, when the union suggested that the only way 

employees could obtain a union card was by voting for the union in the upcoming election and 

that “those fortunate enough to possess a Local 1547 membership card would be in an extremely 

favorable priority position [when it came to hiring] compared with those lacking a card, it was 

clear not only that the union was promising to grant members an advantage over nonmembers in 

obtaining jobs, but also that the union had the power to effectuate that promise.” In Station 

Operators, 307 NLRB 263 fn. 1 (1992), the Board made clear that the holding in Alyeska was tied 

to its special facts. 

For discussion of supervisory prounion conduct, see section 24-328. 

24-321 Assembly of Employees at a Focal Point of Authority and Home Visitations 

378-2816 

378-4242 

Among the issues that the Board has had to determine in this area of law is the one that deals 

with the assembly of employees by the employer at a focal point of authority. Indeed, in General 

Shoe itself this was a question for the Board to decide. 

On the day before the election the employer had the employees brought to his office in 25 

groups of 20 to 25 and, in the language of that decision, “in the very room which each employee 

must have regarded as the locus of final authority in the plant, read every small group the same 

intemperate anti-union address.” In the same case, the employer instructed his supervisors “to 

propagandize employees in their homes.” The Board found that this went “so far beyond the 

presently accepted custom of campaigns directed at employees’ reasoning faculties that we are 

not justified in assuming that the election results represented the employees’ own true wishes.” 

These were not unfair labor practice findings. They were determinations based on the policy that 

matters which may not be available to prove a violation, but may still be pertinent, “if extreme 

enough”—to borrow a Board phrase—in deciding whether an election satisfies the Board’s own 

administrative standards. 

In Economic Machinery Co., 111 NLRB 947 (1955), “the technique of calling the employees 

into the Employer’s office individually to urge them to reject the Union,” the Board held, “is, in 

itself, conduct calculated to interfere with their free choice in the election.” The employer had 

privately interviewed all employees in his office. In some instances the interviews were as long as 

3 hours. The Board reasoned that this was interference with the election “regardless of the noncoercive tenor of an employer’s actual remarks.” 

Where company officials and supervisors called at employees’ homes, the Board found that 

the cumulative effect of the interviews in these circumstances, which admittedly established the 

company’s disapproval of the petitioning union, interfered with their free choice. In this posture, 

too, the election was set aside despite the absence of actual coercion. The Board reiterated the 

rule which consistently condemns the technique of calling all or a majority of the employees in 

the unit into the employer’s office individually or calling on them at their homes to urge them to 

reject a union as their bargaining representative. Peoria Plastic Co., 117 NLRB 545 (1957); see 

also Hurley Co., 130 NLRB 282 (1961). 

In NVF Co., 210 NLRB 663 (1974), the Board concluded that cases involving the technique 

of calling employees either individually or in small groups into private areas to urge them to vote 

against the union was not per se objectionable. Rather, each case will be considered on its facts to 
302 INTERFERENCE WITH ELECTIONS 

determine whether the election represents the employee’s wishes. See also Flex Products, 280 

NLRB 1117 (1986). 

“The unique effectiveness of speeches addressed to employees assembled during working 

hours at the locus of their employment,” the Board noted, “has received congressional and 

judicial recognition and has been substantiated by research studies.” See H. W. Elson Bottling 

Co., 155 NLRB 714, 716 fn. 7 (1965); also NLRB v. United Aircraft Corp., 324 F.2d 128 (2d Cir. 

1963), cert. denied 376 U.S. 951 (1964). It would seem that a vital factor in the Board’s reasoning 

is that when individual employees are taken from their workplaces and subjected to antiunion 

propaganda at the hands of a supervisor in the privacy of a company office or in an isolated area 

away from other employees, there is a “likelihood that outright fear or uneasiness tinged with fear 

as to the consequences of unionism will be created in the mind of the employee thus singled out 

for special attention.” Great Atlantic & Pacific Tea Co., 140 NLRB 133, 134 (1963). 

The rationale for invalidating elections involving the assembly of employees is not unlike the 

rationale in cases involving home visitations by officials and supervisors of the employer. In the 

latter situation the Board has made it clear that, whether or not the remarks during such visitations 

were coercive in character, the technique of visiting employees at their homes to urge them to 

reject the union as their bargaining representative is a ground for setting aside an election. See, 

for example, F. N. Calderwood, Inc., 124 NLRB 1211 (1959). The crux of that rationale is in the 

fact that the employer has “the position of control over tenure of employment and working 

conditions which imparts the coercive effect to systematic individual interviews” that it conducts. 

Plant City Welding & Tank Co., 119 NLRB 131, 133–134 (1957). 

The Board does not use a mechanistic approach but gives full consideration to all the 

circumstances. Thus, where 2 days before an election, several nurses aides were appealed to for a 

no-vote in noncoercive terms by the employer’s executive director at a meeting in the nursing 

director’s office, this incident was held not to justify setting aside the election under the General 

Shoe Corp., 77 NLRB 124 (1948), “locus of managerial authority” doctrine, since the office was 

the regular place of work of the admissions nurse and had been used for training sessions. Three 

Oaks, Inc., 178 NLRB 534 (1969). 

A significant exception to the rule relating to employee interviews at the plant is found in 

Mall Tool Co., 112 NLRB 1313 (1955). In that case, the employer spoke to about half of its 

employees at their workbenches. The interviews lasted no more than 3 minutes. In these 

circumstances, the interviews were distinguished from the Economic Machinery Co., 111 NLRB 

947 (1955), type and found not to constitute a basis for upsetting the election. See also Frito Lay, 

Inc., 341 NLRB 515 (2004) (use of “ride-alongs”─management representatives who rode with 

unit drivers to discuss working conditions─not objectionable). 

Before leaving this line of cases, it should be explained that the Board has not drawn an 

analogy between home visitations by union representatives in the preelection period and home 

visitations by supervisors. “There is a substantial difference,” the Board pointed out, “between the 

employment of the technique of individual interviews by employers on the one hand and by the 

union on the other. Unlike employers, unions often do not have the opportunity to address 

employees in assembled or informal groups, and never have the position of control over tenure of 

employment and working conditions which imparts the coercive effect to systematic individual 

interviews conducted by employers. Thus, not only do unions have more need to seek out 

individual employees to present their views, but, more important, lack the relationship with the 

employees to interfere with their choice of representatives thereby.” Plant City Welding, supra at 

133–134. See also Teamsters Local 705 (K-Mart), 347 NLRB 439 (2006). 

24-322 Misrepresentation 

378-2885 

In 1982, the Board decided to abandon its policy of regulating misrepresentations in election 

campaigns. Thus, in Midland National Life Insurance Co., 263 NLRB 127, 130 (1982), the Board 
INTERFERENCE WITH ELECTIONS 303

held that it would “no longer probe into the truth or falsity of the parties’ campaign statements.” 

This decision ended the debate of many years as to what role the Board should take as to 

misleading campaign statements. Compare Hollywood Ceramics, 140 NLRB 222 (1962); and 

Shopping Kart Food Market, 228 NLRB 1311 (1977). In Phoenix Mechanical, 303 NLRB 888 

(1991), a Board majority found no basis for setting aside elections on the basis of 

misrepresentations by third parties. Accord: Carry Cos. of Illinois, 310 NLRB 860 (1993); and 

Nestle Dairy Systems, 311 NLRB 987 (1993), enf. denied 46 F.3d 578 (6th Cir. 1995) (alleged 

misrepresentation by union in RICO lawsuit, not objectionable). See also Gormac Custom Mfg., 

324 NLRB 423 (1997), and Champaign Residential Services, 325 NLRB 687 (1998) (union flyer 

with photocopied signatures of employees supporting the union). 

The Sixth Circuit has a somewhat modified view of the Board’s Midland policy. See Van 

Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984). The Board has continued to 

apply its Midland policy but will often analyze a case using the Sixth Circuit test where the case 

arises in that circuit. See, e.g., UNISERV, 340 NLRB 199 (2003); and U-Haul Co. of Nevada, 

Inc., 341 NLRB 195 (2004). 

Midland National did, however, indicate a continued Board concern over “forged documents 

which render the voters unable to recognize propaganda for what it is.” Thus, if the deceptive 

manner used renders it unlikely that the voters will be able to assess the documents as forgeries, 

the Board will set aside the election. Mt. Carmel Medical Center, 306 NLRB 1060 (1992). See 

also United Aircraft Corp., 103 NLRB 102 (1953). 

Similarly, the Board will set aside elections where Board documents are altered in a way that 

indicates Board endorsement of a party to the election. See Allied Electric Products, 109 NLRB 

1270 (1954). For a complete discussion of the altered Board document policy in light of Midland 

National Life Insurance Co., 263 NLRB 127 (1982), see Ryder Memorial Hospital, 351 NLRB 

No. 26 (2007), and SDC Investment, 274 NLRB 556 (1985), and sections 24-423 and -441. 

In AWB Metal, Inc., 306 NLRB 109 (1992), the Board distinguished between a document that 

allegedly misrepresented wage rates and forgery. See also Care Enterprises, 306 NLRB 491 

(1992). Compare Riveredge Hospital, 264 NLRB 1094 (1982), in which the Board applied the 

Midland rule to misrepresentations about Board actions. The Board distinguished Riveredge in a 

case involving a flyer saying that the NLRB wants workers to have a union. TEG/LVI 

Environmental Services, 326 NLRB 1469 (1998). 

A misstatement of the law is not objectionable conduct. Thus, in John W. Galbreath & Co., 

288 NLRB 876 (1988), the Board overruled objections to an election where an employer stated 

that an employee who is expelled from the union could be fired here is a union-security 

agreement in effect. Accord: Seven-Up/Royal Crown Bottling Cos., 323 NLRB 579 (1997). See 

also Virginia Concrete Corp., 338 NLRB 1182 (2003). 

See Pacific Southwest Container, 283 NLRB 79 (1987), in which the Board, distinguishing 

Midland National set aside an election because of confusion over the identity of the union. 

Nevada Security Innovations, 337 NLRB 1108 (2002). 

24-323 Racial Appeals 

378-2885-8000 

Campaign propaganda calculated to inflame racial prejudice of employees, deliberately 

seeking to overemphasize and exacerbate racial feeling by irrevelant, inflammatory appeals, is a 

basis for setting aside an election. Sewell Mfg. Co., 138 NLRB 66 (1962); and YKK (USA) Inc., 

269 NLRB 82 (1984). For further background, see P. D. Gwaltney, Jr., & Co., 74 NLRB 371 

(1947); Bibb Mfg. Co., 82 NLRB 338 (1949); Empire Mfg. Corp., 120 NLRB 1300, 1317 (1958); 

Petroleum Carrier Corp., 126 NLRB 1031 (1958); and cf. Sharnay Hosiery Mills, 120 NLRB 

750 (1958). See also Sovern, The National Labor Relations Board and Racial Discrimination, 62 

Columbia Law Review 563, 626 (1962). 

This rule was applied in Sewell Mfg. in these factual circumstances. 
304 INTERFERENCE WITH ELECTIONS 

An election was scheduled at two small Georgia towns. Two weeks before the election, the 

employer mailed to its employees a picture showing a closeup of an unidentified black man 

dancing with an unidentified white woman, and a caption underneath in bold letters: “The C.I.O. 

Strongly Pushes and Endorses the F.E.P.C.” The employer included a reprint from a Mississippi 

newspaper with a picture captioned: “Union Leader James B. Carey Dances With A Lady 

Friend,” and a story headed: “Race Mixing Is An Issue as Vickers Workers Ballot” This mailing 

was followed by a letter calling attention to the union’s support of NAACP and CORE. During 

the 4 months preceding the election, the employer distributed to its employees copies of “Militant 

Truth,” a South Carolina monthly, containing statements of which the following is a fairly 

representative sampling: “It isn’t in the interest of our wage earners to tie themselves to 

organizations that demand racial integration, socialistic legislation, and free range of communist 

conspirators.” The Board concluded that the employer’s propaganda directed to race “so inflamed 

and tainted the atmosphere in which the election was held that a reasoned basis for choosing or 

rejecting a bargaining representative was an impossibility,” and therefore overstepped the bounds 

of permissible campaigning by so lowering the standards that the uninhibited desires of the 

employees could not be determined in the election. The Board acknowledged that “standards 

must be high, but they cannot be that high that for practical purposes elections could not 

effectively be conducted.” It continued, however, by stating that: 

[A]ppeals to racial prejudice on matters unrelated to the election issues or to the union’s 

activities are not mere “prattle” or puffing. They have no place in Board electoral 

campaigns. The Board does not intend to tolerate as “electoral propaganda” appeals or 

arguments which can have no purpose except to inflame the racial feeling of voters in the 

election. 

That is not to say that a relevant campaign statement is to be condemned because it may 

have racial overtones. [138 NLRB at 71.] 

On the same day the Board decided Sewell Mfg. Co., 138 NLRB 66 (1962), case, it also 

decided Allen-Morrison Sign Co., 138 NLRB 73 (1962), which arose in another region and in 

which the injection of “the extraneous issue of race hatred” in the context of a Board election was 

also raised. In that case, the Board concluded that the employer’s letter was “temperate in tone 

and advised the employees as to certain facts concerning union expenditures to help eliminate 

segregation,” adding that it was “not able to say that the Employer in this case resorted to 

inflammatory propaganda on matters in no way related to the choice before the voters.” The 

election was upheld. From both decisions the following standard for determination emerges. 

So long as a party limits itself to setting forth truthfully another party’s position on racial 

matters and does not deliberately seek to exacerbate racial feelings by irrelevant, inflammatory 

appeals, the election will stand, but the burden is on the party making use of a racial message to 

establish that it was truthful and germane, and where there is doubt as to whether the total 

conduct of such party is within the described bounds, the doubt will be resolved against the party. 

For example, the Board applied the Sewell rule where it found handbill references, which 

may have satisfied the standard of truthfulness, but were “irrelevant to any aspect of the IBEW’s 

campaign.” It also took into consideration the coupling of the irrelevant statement with a cartoon 

which appeared on the front page of the two area newspapers under the headline of an IBEW 

publication, depicting Blacks and Whites marching together with arms linked and carrying a 

banner entitled “We Shall Overcome.” Captions under the cartoon read “Where did the above 

slogan originate?” and “Just a Reminder!” The Board concluded that the employees were 

inhibited by appeals to their sentiments as civic minded individuals, by the injection of the fear of 

personal economic loss, and by playing on racial prejudice, the full-page ads, the editorials, the 

cartoon, and the handbills were calculated to convince them that a vote for the union meant the 

betrayal of the community’s best interests. While there was no evidence that the employer was 

responsible for this propaganda, the result achieved was nonetheless the same. Universal Mfg. 
INTERFERENCE WITH ELECTIONS 305

Corp., 156 NLRB 1459 (1966). The Sewell rule, as this case illustrates, is therefore also 

applicable where the objectionable conduct is engaged in by third parties. Compare El Fenix 

Corp., 234 NLRB 1212, 1213 (1978), where a single ethnic slur by an employee nonagent was 

not considered objectionable. See also Benjamin Coal Co., 294 NLRB 572 (1989), in which the 

Board found that the union was not responsible for the racial and ethnic statements of some of its 

committee members when the union discouraged such statements. See also Brightview Care 

Center, 292 NLRB 352 (1989), where isolated remarks by an unidentified employee were not 

objectionable; and S. Lichtenberg & Co., 296 NLRB 1302 (1989). 

In NLRB v. Schapiro & Whitehouse, Inc., 356 F.2d 675 (4th Cir. 1966), the Fourth Circuit 

applied Sewell to union propaganda. The court found that campaign literature distributed by a 

union on two occasions shortly before a consent election which urged employees, most of whom 

were Blacks, to consider and act on race as a factor in the election was so irrelevant and 

inflammatory as to invalidate the election. In doing so, the court specifically approved the Sewell

standards (at 679). 

As in the case of employer inflammatory racial appeals (for example, Allen-Morrison Sign 

Co., 138 NLRB 73 (1962)), so in union inflammatory appeals, factual distinctions may call for a 

different result. Thus, while the theme in Archer Laundry Co., 150 NLRB 1427 (1965), was 

admittedly based on a racial issue, distinguishing implications were found. Instead of racial 

appeals designed to engender race hatred, the appeals in Archer were regarded as designed to 

engender “racial self-consciousness.” For further discussion of the distinction between 

“consciouness raising” and racial prejudice see NLRB v. Sumter Plywood, 535 F.2d 917 (5th Cir. 

1977), concerted action aimed at addressing themselves to the larger issue of the advantages and 

disadvantages of a union for the Archer laundry workers who were predominantly Black, and 

concerted action in the form of a union was another way by which the Blacks could strive to 

achieve equality in American society. The racial appeals in that context were therefore not 

considered irrelevant within the meaning of the criteria under discussion here. See also Aristocrat 

Linen Supply Co., 150 NLRB 1448 (1965); Coca-Cola Bottling Co. of Memphis, 273 NLRB 444 

(1984); and Dai-Ichi Hotel Saipan Beach, 326 NLRB 458 (1998). 

This distinction was also emphasized in another case in which the Board stressed the fact that 

in Sewell the campaign arguments were inflammatory in character, “setting race against race,” an 

appeal to animosity rather than to consideration of “economic and social conditions and of 

possible actions to deal with them.” This constrasts with the situation in which the union 

argument is not unreasonable, or irrelevant, or intemperately presented to the electorate. 

Baltimore Luggage Co., 162 NLRB 1230 (1967) (which includes a thorough rationale of the 

principles which govern this phase of the law). See also Hobco Mfg. Co., 164 NLRB 862 (1967). 

Although in another case a racial appeal, as such, was not made in the preelection campaign, 

a rumor had been circulated throughout the plant 5 days before the election to the effect that the 

company’s president had stated at a laundry association meeting that if the union lost the election 

he would discharge the Black employees. However, the Board found that the impact of the rumor 

was sufficiently neutralized and dissipated before the election by repeated disclaimers by both the 

union and the company. The union disassociated itself from the rumor and urged the employees 

to disregard it at two union meetings, and the company in oral denials and in a letter to all 

employees denounced the rumor as “poisonous.” Thus, in the Board’s view, the combined 

disclaimers were sufficient to transform it into the type of propaganda which the employees were 

capable of evaluating. Staub Cleaners, 171 NLRB 332 (1968). See also Kresge-Newark, Inc., 112 

NLRB 869, 871 (1955). 

The Sewell rule requires that race or ethnicity must be a significant and sustained aspect of 

the campaign for the Board to find objectionable conduct. In Honeyville Grain, Inc. v. NLRB, 

444 F.3d 1269 (10th Cir. 2006), the court agreed with the Board that it was not. See also Beatrice 

Grocery Products, 287 NLRB 302 (1987); Brightview Care Center, 292 NLRB 352 (1989); 

Zartic, Inc., 315 NLRB 495 (1994); and Dai-Ichi Hotel Saipan Beach, supra. Compare 
306 INTERFERENCE WITH ELECTIONS 

Catherine’s, Inc., 316 NLRB 186 (1995). See also Singer Co., 191 NLRB 179 (1979) (limited 

remark found not objectionable). 

The Board reached a similar result in KI (USA) Corp., 309 NLRB 1063 (1992), where in a 

divided opinion the Board found that the union’s reproduction of letter from a Japanese official 

concerning American workers was not objectionable. 

24-324 The Excelsior Rule 

378-2878 

a. Submission of the list 

The Excelsior rule requires the employer to file with the Regional Director an election 

eligibility list containing the names and addresses of all eligible voters within 7 days after 

approval by the Regional Director of an election agreement or after a direction of election, and 

this information must be made available by the Regional Director to all parties in the election 

proceeding. Excelsior Underwear, 156 NLRB 1236 (1966). See also J. P. Phillips, Inc., 336 

NLRB 1279 (2001) (duty to send Excelsior list to the parties lies squarely with the Region). 

In Trustees of Columbia University, 350 NLRB 574 (2007), the Board declined to require that 

the employer provide the e-mail addresses of the unit employees in compliance with the Excelsior 

rule. The Board majority stated that it was unwilling to extend Excelsior “without the benefit of 

amicus briefing and a fully developed record.” 

Compliance requires that the employer provide the full first and last name of the employees. 

Laidlaw Waste Systems, 321 NLRB 760 (1996); North Macon Health Care Facility, 315 NLRB 

359 (1994); and Weyerhaeuser Co., 315 NLRB 963 (1994). 

To be timely, the eligibility list must be received by the Regional Director within the required 

time; no extension of time is granted except in extraordinary circumstances. The filing of a 

petition for review does not stay this requirement. If the payroll period for eligibility purposes is 

subsequent to the election agreement or direction of election, the list must be filed within 7 days 

after the close of the determinative eligibility period. Failure to comply with this rule is deemed 

interference with the election and a ground, on proper objection, for invalidating the election. 

Where the employer filed the list 11 days late without offering any reason for the delay other 

than that it was due to an “unintentional oversight,” the Board held that the employer had not 

complied with the Excelsior requirement and set the election aside. Rockwell Mfg. Co., 201 

NLRB 356 (1973). In doing so, it distinguished U.S. Consumer Products, 164 NLRB 1187 

(1967), in which the delay was due to the parties’ negotiations in attempting to resolve the 

representation issue so as to make the Excelsior list unnecessary. Compare also, Taylor 

Publishing Co., 167 NLRB 228 (1967), where the unit was large and the list only 1 day late. See 

also Wedgewood Industries, 243 NLRB 1190 (1979); and Red Carpet Building Maintenance 

Corp., 263 NLRB 1285 (1982). See also Alcohol & Drug Dependency Services, 326 NLRB 519 

(1998). 

More recently, the Board had occasion to discuss late filings of the list and reach different 

conclusions where the list was late and incomplete, Special Citizens Futures Unlimited, 331 

NLRB 160 (2000) (election set aside), and where it was only 1 day late but was complete, Bon 

Appetit Management Co., 334 NLRB 1042 (2001) (election not set aside). See also Mod Interiors, 

324 NLRB 164 (1997). 

In Teamsters Local 705 (K-Mart), 347 NLRB 439 (2006), the Board overruled the objection 

of an RD petitioner who received the list 17 hours after the union. 

Even in situations where the employer has fully complied with Excelsior, there may be a 

basis for rerunning the election because the touchstone is “the degree of prejudice to the channels 

of communication.” See, e.g., Avon Products, 262 NLRB 46 (1982), in which a grant of a request 

for review expanded the unit and Coca-Cola Co. Foods Division, 202 NLRB 910 (1973), where 

the Regional Office misaddressed the envelope sending the list to the union. See also American 
INTERFERENCE WITH ELECTIONS 307

Laundry Machinery Division, 234 NLRB 630 (1978). Compare Red Carpet Building 

Maintenance Corp., 263 NLRB 1285 (1982). In J. P. Phillips, Inc., supra, the Board found 

predjudice to one of the two unions because it received an incomplete copy from the Region. 

The Excelsior rule applies to all election cases, including decertification and revocation of 

union-security authorization, consented to or directed, but it does not apply to expedited elections 

held pursuant to Section 8(b)(7)(C) of the Act. In Gerland’s Food Fair, 272 NLRB 294 (1984), 

the Board set aside the election where the Regional Office failed to provide the RD petitioner 

with a copy of the list. 

In adopting the Excelsior rule, the Board noted that disclosure under it will maximize the 

likelihood that all voters will be exposed to arguments for, as well as against, union 

representation; that it will permit the employees to make a more fully informed and reasoned 

choice; that it will tend to eliminate challenges to voters based solely on lack of knowledge of 

their identity; that many objections to elections will be settled well in advance of the election; and 

that the public interest will be furthered in obtaining more prompt resolutions of questions of 

representation. 

In Fenfrock Motor Sales, 203 NLRB 541 (1973), the Board found that providing the 

Excelsior list to a third party under court order was not objectionable where there was no 

evidence that extensive questioning of employees before and after the election had an effect on 

employee free choice. 

The Excelsior case was decided at the same time as General Electric Co., 161 NLRB 618 

(1966); and McCulloch Corp., 156 NLRB 1247 (1966), in which it was urged that the Board 

should overrule Livingston Shirt Corp., 107 NLRB 400 (1954), and return to Bonwit Teller, Inc., 

96 NLRB 608 (1951) (citation omitted). In Bonwit Teller, the Board held that, regardless of the 

breadth of an employer’s no-solicitation rule, an antiunion speech on company time and premises, 

combined with a denial of a union request to reply, is a basis for setting aside a subsequent 

representation election and finding an unfair labor practice. In General Electric and McCulloch, 

supra at 1251, the Board declined to overrule Livingston Shirt and return to Bonwit Teller. The 

assumptions made on behalf of a policy change were not valid, said the Board, because under 

Excelsior in all elections, except an expedited election under Section 8(b)(7), all parties will have 

available to them, within a few days the names and addresses of all eligible voters. 

b. Erroneous or incomplete lists 

As noted earlier, compliance requires that the employer provide the full first and last name of 

the employees. Laidlaw Waste Systems, 321 NLRB 760 (1996), and an employer is estopped, 

absent unusual circumstances from relying on its own failure to comply with Excelsior. George 

Washington University, 346 NLRB 155 (2005). 

In the period following the adoption of the Excelsior rule, the Board has had occasion to 

consider a variety of fact situations in which employers have made some attempt, but failed, to 

comply strictly with the requirements of that rule. In deciding whether the noncompliance was 

sufficient to warrant another election, the Board stated that there is “nothing in Excelsior which 

would require the rule stated therein to be mechanically applied.” Telonic Instruments, 173 

NLRB 588 (1969). See also General Time Corp., 195 NLRB 343 (1972); Program Aids Co., 163 

NLRB 145 (1967); and Thrifty Auto Parts, 295 NLRB 1118 (1989). 

Thus, although the submission of an inaccurate, incomplete, or late list may provide a basis 

for invalidating an election, it nonetheless depends on the specific factual circumstances. In 

Telonic, for example, the omissions were confined to 4 of about 111 eligible voters and the 

employer acted with alacrity in informing the Region and the union that the list was incomplete. 

The Board found substantial compliance with the rule. “Generally, the Board will not set an 

election aside because of an insubstantial failure to comply with the Excelsior rule if the 

employer has not been grossly negligent and has acted in good faith.” Lobster House, 186 NLRB 

148 (1970). See also Fountainebleu Hotel Corp., 181 NLRB 1134 (1970); Gamble Robinson Co., 
308 INTERFERENCE WITH ELECTIONS 

180 NLRB 532 (1970); Program Aids Co., supra; and Valley Die Cast Corp., 160 NLRB 1881 

(1966). Where the employer obtained the addresses from W-4 forms but omitted one name 

because he thought the employee was not in the unit and left the name of another off because he 

was on temporary leave of absence and believed to be ineligible to vote, the Board held that these 

mistakes did not constitute gross negligence or indicate bad faith. West Coast Meat Packing Co., 

195 NLRB 37 (1972). See also Women in Crisis Counseling, 312 NLRB 589 (1993), where a 

divided Board found the number of inaccuracies not to be substantial. 

The Board takes more seriously the omission of names than inaccuracies in addressees.

Women in Crisis Counseling, supra. See also Washington Fruit & Produce Co., 343 NLRB 1215 

(2004). This distinction is grounded in the fact that an employee’s name provides “a key piece of 

information which can be used to identify and communicate with the person by means other than 

mail.” Women in Crisis Counseling, supra at 589. 

In Washington Fruit & Produce Co., supra, the Board declined to set aside the election where 

the union was given a list that had inaccurate addresses for 28 percent of the unit. Because the 

union was able to obtain correct addresses from other souces for 90 percent of the unit, the Board, 

relying on Women in Crisis Counseling, supra, found substantial compliance with the Excelsior

rule. 

Note that even where the employer provides the union with the only addresses it has, it will 

be found to have been grossly negligent in supplying the list where it knew that many of its 

addresses were incorrect and, as a result, had even ceased mailing W-2 forms to its employees. 

Merchants Transfer Co., 330 NLRB 1165 (2000).

In Meadow Valley Contractors, 314 NLRB 217 (1994), the Board rejected an attempt to set a 

permissible omission rate of 9.5 percent. And in Fountainview Care Center, 323 NLRB 990 

(1997), the Board concluded that an employer’s decision not to exclude the names of a little more 

than 5 percent of the unit was not a good-faith mistake and was therefore not in substantial 

compliance with the Excelsior rule. The Board further noted that evidence of bad faith or gross 

negligence is not a required element in finding a failure to comply with Excelsior but either can 

be a relevant consideration. 

In one unusual case the Board found noncompliance with Excelsior when the employer 

provided the union with a list that contained 81 names of ineligible voters in a unit of 146 

employees. Idaho Supreme Potatoes, 218 NLRB 38 (1975). 

In Nathan’s Famous of Yonkers, 186 NLRB 131 (1970), an exception was made because of 

an unusual factual situation: The exception was grounded on the employer’s flagrant unfair labor 

practices which were designed to defeat the winning union. There was no evidence that any union 

was prejudiced more than another by the withholding of the Excelsior list. It was therefore 

concluded that a literal application of the Excelsior rule would permit the employer to benefit 

from its illegal actions by providing it, with another opportunity to defeat the winning union. But, 

as the Board pointed out, this was an unusual situation. See also Thiele Industries, 325 NLRB 

1122 (1998) (Board rejected employer objections based on its falure to provide Excelsior list). 

Clearly, where the employer furnished a list which omitted the names and addresses of nearly 

half of the eligible voters, supplied a supplemental list itself deficient by the continued omission 

of the names and addresses of certain eligibles, and furnished it at a time when its use in the 

campaign was limited to only 6 days before the election, the election was invalidated. Blue 

Onion, 175 NLRB 9 (1969). 

While the Board stated in Telonic Instruments, supra, that nothing in Excelsior would require 

a mechanical application of the rule, it stated later in Ponce Television Corp., 192 NLRB 115, 

116 (1971), that it is not its policy “to vest the Employer with unlimited discretion with respect to 

the content of the eligibility list.” Thus, elections were set aside where the employer omitted the 

names of five eligible employees from the list, as a failure of substantial compliance (Sonfarrel, 

Inc., 188 NLRB 969 (1971)); where 22 percent of the electorate was omitted from the list (Ponce 

Television Corp., supra); where more than 11 percent of the eligible voters had been omitted 
INTERFERENCE WITH ELECTIONS 309

(Gamble Robinson Co., supra); and where there had been a failure to supply addresses of 

employees in addition to names (British Auto Parts, 160 NLRB 239 (1966)). Compare LeMaster 

Steel Erectors, 271 NLRB 1391 (1984), where a deletion of 9 percent of the voters was held 

insufficient to set aside the election with Thrifty Auto Parts, supra, where 9.5 percent was 

considered sufficient. See also Mod Interiors, 324 NLRB 164 (1997), where the employer 

immediately corrected errors brought to its attention but the union did not have the fully corrected 

list for the full 10 days, and Bear Truss, Inc., 325 NLRB 1162 (1998), where the Board overruled 

objections finding that the employer acted in good faith in preparing and transmitting the list to 

the Region. 

While the percentage of errors remains a factor in deciding Excelsior compliance matters, the 

Board in Woodman’s Food Markets, 332 NLRB 503, 504–505 (2000), specifically eschewed the 

percentage of error as the only factor to be considered: 

We find that this approach—which focuses solely on the percentage of omissions relative 

to the number of employees in the unit—fails to adequately effectuate the purposes of the 

Excelsior rule. Accordingly, while we will continue to consider the percentage of omissions, 

we will consider other factors as well, including whether the number of omissions is 

determinative, i.e., whether it equals or exceeds the number of additional votes needed by the 

union to prevail in the election, and the employer’s explanation for the omissions. 

. . . . 

With respect to the employer’s explanation for the omissions, we note that omissions may 

occur, notwithstanding an employer’s reasonable good-faith efforts to comply, due to 

uncertainties about who is an eligible unit employee or other factors. Thus, we will consider 

the employer’s explanation for the omissions. 

It follows that, where the employer submitted no list at all, even though the union received 

only 8 out of the 215 ballots cast, the election should be set aside since “to make the election 

results the controlling factor in determining whether to excuse the lack of compliance with the 

rule subverts one of its very purposes, viz, ‘to provide the Union [or unions as the case may be] 

with the opportunity to inform the employees of its position in order that the employees may 

intelligently exercise their right to vote.”’ Fuchs Baking Co., 174 NLRB 720 (1969). 

The issues of a union’s actual access to employees, or the extent to which employees omitted 

from the Excelsior list are aware of the election issues and arguments, are not litigable matters in 

applying the Excelsior rule. Sonfarrel, Inc., supra. “To look beyond the question of substantial 

completeness of the lists,” said the Board in that case, “and into the further question of whether 

employees were actually ‘informed’ about the election issues despite their omission from the list, 

would spawn an administrative monstrosity.” 

The Board has rejected the contention that the petitioner did not need the list and therefore 

was not entitled to a complete and correct one. Rite-Care Poultry Co., 185 NLRB 41 (1970). This 

was discussed in detail in Murphy Bonded Warehouse, 180 NLRB 463 (1970), in which the 

Board affirmed a hearing officer’s ruling at the initial representation case hearing, declining to 

permit an inquiry concerning the necessity of requiring submission of the list. 

In invalidating the election in Rite-Care, the Board distinguished its rulings in Singer Co., 

175 NLRB 211 (1969), and in Telonic Instruments, supra, in which it upheld the elections. In 

Singer, the list provided only surname and forename initials, and other inadvertent omissions but 

had correct addresses, and in Telonic the employer had inadvertently omitted four eligibles, but 

supplied them before the election. 

Procedural note: In NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), the United States 

Supreme Court upheld the substantive validity of the Excelsior rule, stating that the “objections 

that the respondent raises to the requirement of disclosure were clearly and correctly answered by 

the Board in its Excelsior decision.” Thus, as in Wyman-Gordon, the employer himself is 
310 INTERFERENCE WITH ELECTIONS 

specifically directed by the Board to submit a list of names and addresses of his employees for 

use by the union in connection with the election, this direction is “unquestionably valid.” The 

Court held further, however, that, insofar as the Board purported to promulgate a new rule 

applicable to future cases, it violated the rulemaking processes of the Administrative Procedure 

Act. 

After the Supreme Court’s decision in Wyman-Gordon, a case arose in which the employer 

argued that the parties by executing an election agreement waived an “adjudicatory proceeding” 

pursuant to which the Excelsior list may be validly directed. But the Board, rejecting this 

contention, explained that the election agreements expedite elections by obviating the need for 

formal hearings and directions of election. The parties’ waiver of these statutory requirements is 

itself statutorily permitted by Section 9(c)(4) of the Act and does not render inapplicable other 

statutory obligations and Board policies, “nor does it denude the representation proceeding of its 

adjudicatory nature.” Formfit Rogers Co. v. NLRB, 71 LRRM 2456 (D.C.Tenn. 1969). Thus, 

where an election agreement is involved, the procedure is essentially similar to that followed in 

NLRB v. Wyman-Gordon Co., supra, except that the parties are able to stipulate to certain facts 

and execute an election agreement instead of pursuing the more formal route to a direction of 

election. As in Wyman-Gordon, the employer is specifically directed to furnish the Excelsior list. 

The fact that the direction is made by a Regional Director in a separate letter accompanying the 

copy of the agreement does not make the direction less valid. “To hold otherwise,” concluded the 

Board, “would be to invite unnecessary litigation in situations where the parties would otherwise 

stipulate to the relevant facts.” Bishop-Hansel Ford Sales, 180 NLRB 987 (1970). 

See also section 23-510. 

24-325 The Peerless Rule 

378-2100 

378-4242 

378-8420 

378-8480 

a. Speeches 

The Peerless Plywood rule, applicable to employers and unions alike, forbids election 

speeches on company time to massed assemblies of employees within 24 hours before the 

scheduled time for an election. Violation of this prohibition is a ground for setting aside the 

election whenever valid objections are filed. Peerless Plywood Co., 107 NLRB 427, 429 (1954). 

“Such a speech,” said the Board in its rationale, “because of its timing, tends to create a mass 

psychology which overrides arguments made through other campaign media and gives an unfair 

advantage to the party, whether employer or union, who in this manner obtains the last most 

telling word.” The Board adverted to its longstanding rule prohibiting electioneering by either 

party at or near the polling place. “We have previously prescribed space limitations,” said the 

Board, “now we prescribe time limitations as well.” 

The Peerless Plywood rule was held inapplicable in the case of a casual solicitation of three 

employees, only one of whom was eligible to vote, the night before the election by a union agent. 

This, said the Board, cannot be characterized as a “speech” to a “massed assembly of employees.” 

“That rule was not intended to nor, in our opinion, does it prohibit every minor conversation 

between a few employees and a union agent or supervisor for a 24-hour period before an 

election.” The election was sustained. Business Aviation, Inc., 202 NLRB 1025 (1973). See also 

Electro Wire Products, 242 NLRB 960 (1979), where the employer president spoke individually 

to each employee on the day of the election asking them to vote “no”; Associated Milk Producers, 

237 NLRB 879 (1978), and Comcast Cablevision of New Haven, 325 NLRB 833 (1998) (brief 

remarks by union to a noncaptive audience did not violate rule). Neither does distribution of 
INTERFERENCE WITH ELECTIONS 311

propaganda with paychecks immediately before the election fall within the prohibition of the rule. 

Conroe Creosoting Co., 149 NLRB 1174 (1964). Where an election extends over 2 days, with 

employees voting at separate sites, the rule requires only that no speeches be given on company 

time to massed assemblies of employees who are scheduled to vote within 24 hours. Thus, where 

there was no evidence of any speech made to employees at one site within 24 hours of the 

scheduled polling time for the employees at that site, the election was upheld. Shop Rite Foods, 

195 NLRB 133 (1972). See also Dixie Drive-It-Yourself System Nashville Co., 120 NLRB 1608 

(1958). 

This rule does not interfere with the rights of unions and employers to circulate campaign 

literature on or off the premises at any time prior to an election (see General Electric Co., 161 

NLRB 618 (1966), and Andel Jewelry Corp., 326 NLRB 507 (1998)), nor does it prohibit the use 

of any other legitimate campaign propaganda or media. It forbids speeches, whether coercive or 

not (see Excelsior Laundry Co., 186 NLRB 914 (1970)), during the prescribed 24-hour period on 

company time and property, but it does not “prohibit an employer from making (without granting 

the union an opportunity to reply) campaign speeches on company time prior to the 24-hour 

period, provided, of course, such speeches are not otherwise violative of Section 8(a)(1).” The 

Board added that the rule does not prohibit employers and unions from making campaign 

speeches on or off company premises during the 24-hour period “if employee attendance is 

voluntary and on the employees’ own time.” Peerless Plywood Co., .supra at 430. See also 

Nebraska Consolidated Mills, 165 NLRB 639 (1967). 

The rule can be violated by the use of sound trucks, broadcasting short messages or union 

songs to employees during a change in shifts. U.S. Gypsum Co., 115 NLRB 734 (1956). See also 

Purolite, 330 NLRB 37 (1999), overruling Bro-Tech Corp., 315 NLRB 1014 (1994), where the 

Board found that broadcast of union songs from a sound truck was not conduct proscribed by the 

Peerless rule. 

The Peerless Plywood rule is not limited to “a formal speech in the usual sense,” but is 

designed to bar, for example, a question and answer session. Montgomery Ward & Co., 124 

NLRB 343, 344 (1959). “Massed assemblies,” as used in Peerless Plywood, is not to be construed 

as limited to all or most of the unit employees, or to any certain percentage of them, or to an 

assemblage of such employees whose votes would be sufficient in number to affect the outcome 

of the election. Great Atlantic & Pacific Tea Co., 111 NLRB 623, 625–626 (1955). See also 

Honeywell, Inc., 162 NLRB 323 (1967), where the fact that only one section of the employees 

was involved was no warrant for an exception, nor that a relatively small percentage of 

employees constituted the “captive audience.” Compare Business Aviation Inc., supra. 

Where on the day before the election, company representatives addressed meetings of 

employees on all three shifts in the production areas of the plant during working time, and, 

although purportedly called for the purpose of advising employees that the election would not be 

postponed as told the employees in a prior letter, they nonetheless engaged in campaign speeches 

expressing opposition to the union, the Peerless Plywood rule was held violated. Mallory 

Capacitator Co., 167 NLRB 647 (1967). But it was not breached where a speech or discussion 3 

hours before the election by union representatives started on the employees’ own time, was 

extemporaneous, was voluntarily attended with no member of management present, and at best 

ran over into company time for no more than approximately 5 minutes. Nebraska Consolidated 

Mills, supra. 

A more unusual situation was presented where meetings were called on company time with 

150 to 200 employees in attendance within 24 hours of the election and, although the meetings 

were antipetitioner in tenor, the petitioner won the election despite the meetings. The Board cited 

Showell Poultry Co., 105 NLRB 580 (1953), and applied the rationale of that case which was that 

the Board will not set aside an election because of employer interference where the only union 

involved wins the election, because to do so would permit the wrongdoer to profit by its illegal 

acts. To uphold the objection of the intervenor would not only not effectuate the purposes of the 
312 INTERFERENCE WITH ELECTIONS 

Peerless Plywood Co., 107 NLRB 427 (1954), rule but would invite “collusion in future cases” 

by suggesting “to any employer who favors one competing union whose chances in the election 

do not appear to be bright, deliberately to violate the Peerless Plywood rule in the assurance that 

the favored minority union can successfully file objections and be given a second opportunity to 

woo the voters.” Packerland Packing Co., 185 NLRB 653 (1970). See also Flat River Glass Co., 

234 NLRB 1307 (1978). 

A speech otherwise permissible by Peerless was found objectionable because the employees 

were required to attend without full compensation and without receiving their regular paychecks 

until after the meeting. Comet Electric, 314 NLRB 1215 (1994). 

A prounion poster affixed to a tree not visible from the property site was found not to be a 

Peerless violation. American Medical Response, 339 NLRB 23 (2003). Similarly, a text message 

sent to drivers in their trucks was not found to violate the Peerless rule. Virginia Concrete Corp., 

338 NLRB 1182 (2003). 

b. Peerless and mail-ballot elections 

Where an election is conducted by mail, the Regional Director must give all parties 24 hours’ 

notice of the date when the ballots are to be mailed. Employers and unions alike are prohibited 

from making speeches on company time to massed assemblies from the time and date the ballots 

are scheduled to be sent out by the Region until the time and date set for their return. Oregon 

Washington Telephone Co., 123 NLRB 339 (1959); and San Diego Gas & Electric, 325 NLRB 

1143 (1998). See also Interstate Hosts, 130 NLRB 1614 (1961). In American Red Cross Blood 

Services, 322 NLRB 401 (1996), the Board set aside an election where the employer gave two 

speeches after the Regional Office had mailed the mail ballots. The Board rejected the employer’s 

defense that the Region had failed to notify the parties of the time and date of mailing. In doing 

so, the Board noted that that information was contained in the stipulated election agreement. 

c. Peerless and paychecks 

In Kalin Construction Co., 321 NLRB 649 (1996), a divided Board applied the 24-hour rule 

to prohibit any changes in the paycheck process during this period. In the view of the majority, a 

paycheck 

cannot be equated to an ordinary piece of campaign literature exempt from the Peerless 

Plywood rule. An employee’s paycheck is a singular document. 

Accord: United Cerebral Palsy Assn. of Niagara County, 327 NLRB 40 (1998). See 

Chicagoland Television News, 328 NLRB 367 (1999), distinguishing a nonelectioneering party 

from the Kalin rule. 

24-326 Third-Party Conduct 

378-1401 

378-5625-6700 

378-7000 

712-5014-0190 

Generally, the Board applies the common law principles of Agency including principles of 

apparent and actual authority in determining responsibility for misconduct. Mar-Jam Supply Co., 

337 NLRB 337 (2001); Cooper Industries, 328 NLRB 145 (1999); and Fieldcrest Cannon, Inc., 

318 NLRB 470 (1995). See also Culinary Foods, Inc., 325 NLRB 664 (1998). See Cornell Forge 

Co., 339 NLRB 733 (2003), for a summary of agency law as it relates to unit employees as agents 

of the union. 

Elections, however, are not only invalidated because of the conduct of the parties and their 

agents but also because of third-party conduct which interferes with the right of employees to a 

free and uninhibited choice in the selection of a bargaining representative to such extent that it 
INTERFERENCE WITH ELECTIONS 313

renders “a free election impossible.” Westwood Horizons Hotel, 270 NLRB 802 (1984); U.S. 

Electrical Motors, 261 NLRB 1343 (1982); Phoenix Mechanical, 303 NLRB 888 (1991); and 

O’Brien Memorial, 310 NLRB 943 (1993). See also Lamar Advertising of Janesville, 340 NLRB 

979 (2003); and Duralam, Inc., 284 NLRB 1419 (1987). 

Note: For analyses of third electioneering viz, conduct at or around the polls, see The 

Milchem Rule 24-442, infra. (Milchem, Inc., 170 NLRB 362 (1968). 

For a discussion of racially or ethnically derogatory remarks by third parties, see M & M 

Supermarket v. NLRB, 818 F.2d 1567 (11th Cir. 1987). 

a. Nature of conduct 

The Board set out the standards for assessing the nature of third-party conduct in its 

Westwood Horizons Hotel decision, 270 NLRB 802 (1984). More recently it repeated those 

standards in PPG Industries, 350 NLRB 225 (2007): 

In assessing the seriousness of such threats, the Board considers (1) the nature of the threat itself; 

(2) whether the threat encompassed the entire bargaining unit; (3) whether reports of the threat 

were widely disseminated within the unit; (4) whether the person making the threat was capable 

of carrying it out, and whether it is likely that the employees acted in fear of his capability of 

carrying out the threat; and (5) whether the threat was “rejuvenated” at or near the time of the 

election. 

One of the earliest cases to establish these principles was P. D. Gwaltney, Jr., & Co., 74 

NLRB 371 (1947). In that case, the Board enunciated fully its rationale. It pointed out that a 

representation proceeding is in effect an investigation to ascertain employee wishes concerning 

their choice of a bargaining representative. For this reason, in appraising the facts and 

determining the Board’s duty in this context, more is involved than the mere determination of 

whether or not the employer was responsible for the antiunion conduct which immediately 

preceded the election. Rather, the issue before the Board is whether the election was held in an 

atmosphere conducive to the kind of free and untrammeled choice contemplated by the Act. CalWest Periodicals, 330 NLRB 599 (2000), citing Westwood Horizons Hotel, supra. See also 

Robert Orr–Sysco Food Services, 338 NLRB 614 (2002); and Associated Rubber Co., 332 NLRB 

1588 (2000). And as the Board stated in a later case: “The election was held in such a general 

atmosphere of confusion and fear of reprisal as to render impossible the rational, uncoerced 

selection of a bargaining representative. It is not material that the fear and disorder may have 

been created by individual employees and nonemployees and that their conduct cannot be 

attributed either to the Employer or to the unions. The important fact is that such conditions 

existed and that a free election was thereby rendered impossible.” Diamond State Poultry Co., 

107 NLRB 3, 6 (1954). See also Rheem Mfg. Co., 309 NLRB 459 (1992), which overruled an 

objection based on one employee campaigning outside the polls distinguishing Pepsi-Cola 

Bottling Co., 291 NLRB 578 (1988). Lamar Advertising of Janesville, supra. Compare Q. B. 

Rebuilders, 312 NLRB 1141 (1993), where the Board found a sufficient level of fear to set aside 

the election based on a third-party (employee) threat to call the INS to report any employee who 

voted against the union. For a discussion of third-party conduct where the Board did not set the 

election aside because of alleged confusion rather than fear, see Phoenix Mechanical, 303 NLRB 

888 (1991); Teamsters Local 299 (Overnite Transportation Co.), 328 NLRB 1231 fn. 1 (1999); 

Stannah Stairlifts, Inc., 325 NLRB 572 fn. 2 (1998); and Culinary Foods, Inc., supra. 

The Second Circuit punctuated the principle here under consideration by pointing out that 

certain elements, regardless of their course, may make an impartial choice impossible, thus 

invalidating an election. NLRB v. Staub Cleaners, 357 F.2d 1 (2d Cir. 1966). 

“Realistically speaking, and in order to near if not arrive at the highly desired laboratory 

conditions for an election, this is the most workable approach. Parties to an election and their well 

wishers are thus put on notice that prohibited conduct engaged in by anyone may forfeit an 
314 INTERFERENCE WITH ELECTIONS 

election. This then will serve to put a premium on proper deportment by all parties.” Teamsters 

Local 980 (Landis Morgan), 177 NLRB 579, 584 (1969). 

In Dean Industries, 162 NLRB 1078 (1967), the company was not held responsible for 

certain of the conduct alleged as unfair labor practices by reason of activities on the part of 

persons not in its employ or management whom it did not clothe with the apparent authority to 

act for it. At the minimum, the employer must have acquired knowledge of the activities for 

which it is sought to be charged and the circumstances must have been such as to place the 

employer under an obligation to disavow said activities (at 1093). Nonetheless, it was concluded 

that much of the antiunion activities engaged in by the townspeople—spelled out in some detail 

in the decision—rendered impossible the rational, uncoerced selection of a bargaining 

representative. See also James Lees & Sons, Co., 130 NLRB 290 (1961). 

The dichotomy between responsibility on the part of a party as a necessary element in an 

unfair labor practice finding and third party conduct as a ground for invalidating an election, even 

if the activities of the third party cannot be attributed to an actual party, was considered in 

Louisburg Sportswear Co., 173 NLRB 678, 693 (1969). Even if the activities by the local 

citizenry were not attributed to the company, the election held in the face of conduct of outside 

persons required setting the election aside. Where, of course, responsibility on the part of a party 

is established, as in General Metal Products Co., 164 NLRB 64 (1967), the outside individuals 

having acted “on behalf and in the interest of the Respondent with the latter’s knowledge and 

approval,” no distinction exists between the finding in the complaint case and the result in the 

objections case. See also Colson Corp. v. NLRB, 347 F.2d 128, 137 (8th Cir. 1965). 

Third-party conduct becomes actionable not only as a basis for objections filed by unions but 

also for those filed by employers where the latter allege conduct rendering impossible a rational, 

uncoerced choice in a Board election. For example: An election was conducted in the face of an 

often violent and emotion-filled strike. Events occurring during the critical period (between the 

filing of the petition and the election) included extensive property destruction, anonymous 

telephone threats to eligible voters, the report of a bomb threat and subsequent police 

investigation which compelled the automobile dealership to close down on the Saturday 

preceding the election, and apparently unruly conduct on the picket line which resulted in the 

stationing of full-time police and a police car in front of the dealership. The Board concluded that 

the election was held in an atmosphere of confusion, violence, and threats of violence, such as 

might reasonably be expected to generate anxiety and fear of reprisal, and to prevent an 

uncoerced choice. The Board added: “It is not material that fear and disorder may have been 

created by individual employees or nonemployees and that their conduct cannot probatively be 

attributed either to the Employer or to the Union. The significant fact is that such conditions 

existed and that a free election was thereby rendered impossible.” Al Long, Inc., 173 NLRB 447, 

448 (1969). 

b. Who is a third party 

“Third parties,” a survey of this category of cases shows, include members of the community 

(James Lees & Sons Co., 130 NLRB 290 (1961)); the mayor of the city (Kelsey-Hayes Co., 145 

NLRB 1717 (1964)); citizens’ committees (Myrna Mills, 133 NLRB 767 (1961)); members of the 

police force (Great Atlantic & Pacific Tea Co., 120 NLRB 765 (1958)); employees or 

nonemployees (Cal-West Periodicals, supra; Associated Rubber Co., supra; Al Long, Inc., supra). 

Compare Culinary Foods, supra; Windsor House C & D, 309 NLRB 693 (1992); and Q. B. 

Rebuilders, supra; employees from neighboring plants (Diamond State Poultry Co., 107 NLRB 3 

(1954)); banks (Kelsey-Hayes Co., supra); community leaders (Dean Industries, 162 NLRB 1078 

(1967)); businessmen (Benson Veneer Co., 156 NLRB 781 (1966); editors (Universal Mfg. Corp., 

156 NLRB 1459 (1966)); chief of police (Lifetime Door Co., 158 NLRB 13 (1966)); and 

industrial advisory committee (Proctor-Silex Corp., 159 NLRB 598 (1966)). 
INTERFERENCE WITH ELECTIONS 315

For an interesting third-party case involving a State government official and the issue of 

whether the voters were confused, see Columbia Tanning Corp., 238 NLRB 899 (1978). 

Compare Ursery Cos., 311 NLRB 399 (1993); Saint-Gobain Abrasives, Inc., 337 NLRB 82 

(2001); and Chipman Union, Inc., 316 NLRB 107 (1995) (letter from U.S. Congressman not 

objectionable). See also Trump Plaza Hotel & Casino, 352 NLRB No. 71 (2008). 

The conduct of prounion employees who have no actual or apparent authority to act for the 

union is evaluated under third-party conduct standard. Corner Furniture Discount Center, 339 

NLRB 1122 (2003). For a discussion of in-plant organizers as agents or as third parties, see 

Cornell Forge Co., supra. See also Tyson Fresh Meats, Inc., 343 NLRB 1335 (2004) (union 

stewards found to be agents with actual and apparent authority). 

The arrest of the union’s principal organizer in the presence of a number of eligible voters 

only minutes before they were scheduled to vote served as a meritorious objection to the election. 

Great Atlantic & Pacific Tea Co., 120 NLRB 765 (1958). But the mere presence of police during 

an election does not warrant its invalidation where it appeared that the police did not speak to any 

of the voters. Vita Food Products, 116 NLRB 1215, 1219 (1957). 

While, as has been reiterated above, conduct not attributable to either party to an election may 

be grounds for setting the election aside, the Board has held that it “accords less weight to such 

conduct than to conduct of the parties.” Orleans Mfg. Co., 120 NLRB 630, 633 (1958); and 

Dunham’s Athleisure Corp., 315 NLRB 689 (1994). The explanation for this is that the Board 

believes that the conduct of third parties tends to have less effect upon the voters than similar 

conduct attributable to the employer who has, or the union which seeks, control over the 

employees’ working conditions. See Ottenbacher Mfg., 279 NLRB 1167 (1986). 

In Bells Trans, 297 NLRB 280 (1989), the Board overruled objections based on a third-party 

threat. In doing so, it distinguished both the nature of the threat and the frequency from those in 

Picoma Industries, 296 NLRB 498 (1989). 

In Cross Baking Co., 191 NLRB 27 (1971), despite an employee’s conduct consisting of 

alleged “threats to and assault upon members of the electorate” and alleged assaults, the Board 

found that this conduct was too remote in time from the election, which was conducted 2 months 

later, to warrant upsetting the election on the ground of atmosphere of fear. The Board cited 

Orleans, supra, and distinguished Diamond State Poultry Co., 107 NLRB 3 (1954), in that in 

Diamond the threats were made on the day of the election. The First Circuit agreed with the 

Board’s ultimate conclusion on this issue in view of the Board’s finding that the employee was 

discharged shortly after the assault, did not return to the plant, and there were no further incidents 

during the 2 months remaining before the election. But the court disagreed with some of the 

Board’s reasoning, emphasizing that the question was not the culpability of the union but whether 

an atmosphere of fear and coercion was created, as that “fear would be less effective if it had an 

unofficial origin.” Cross Baking Co. v. NLRB, 453 F.2d 1436 (1st Cir. 1971). 

To like effect, see Owens-Corning Fiberglas Corp., 179 NLRB 219, 223 (1969). While 

recognizing that some heated statements may be made by individual employees and that such 

conduct should be considered in determining whether employees were precluded from exercising 

a free choice, even absent employer or union responsibility, consideration should be given as to 

whether the conduct complained of was committed by the parties as distinguished from third 

persons, as conduct by the latter “tends to have less effect.” See also Lamar Advertising of 

Janesville, 340 NLRB 979 (2003). 

In this connection, in Foremost Dairies of the South, 172 NLRB 1242 (1968), the Board, on 

remand from the Fifth Circuit (Home Town Foods, Inc. v. NLRB, 379 F.2d 241 (1967)), 

interpreted the court’s opinion “as dispensing with a showing of responsibility by one of the 

parties only where the conduct involved is of so serious a nature that it could only result in 

widespread confusion and fear of reprisal which would render impossible a rational, uncoerced 

choice by employees.” In Foremost Dairies, the Board found (at 1247) that the incidents which 

exceeded permissible bounds were merely three, “of which all were very limited in nature and 
316 INTERFERENCE WITH ELECTIONS 

only one was known to two other employees.” Compare Crown Coach Corp., 284 NLRB 1010 

(1987), where threats of deportation by fellow employees warranted setting the election aside. 

In Monroe Auto Equipment Co., 186 NLRB 90 (1970), on remand from the Fifth Circuit, the 

Board referred to Foremost Dairies (379 F.2d 241 (1967)), and summarized “as the law of the 

case” the frame of reference laid down by the court, as follows: (1) consideration of the 

objections or incidents cumulatively rather than as isolated individual incidents; (2) consideration, 

in addition to the objective evaluation normally employed, of subjective evidence of fear and 

coercion in determining whether interference sufficient to warrant setting aside the election 

occurred; and (3) a determination not only whether the conduct complained of was coercive but 

also whether it was so related to the election as to have a probable effect on the employees’ 

actions at the polls or created an environment of tension so as to preclude employees from 

exercising free choice. See NLRB v. Monroe Auto Equipment Co., 406 F.2d 177 (5th Cir. 1969); 

and Foremost Dairies of the Foremost Dairies of the South v. NLRB, 416 F.2d 392 (5th Cir. 

1969). Among the facts the Board examines in analyzing threats not attributable to a party is the 

person making the threats to carry them out. See Bell Security, 308 NLRB 80 (1992). See also 

Lamar Advertising of Janesville, supra.

Spirited campaigning, “far from constituting unlawful interference with the Board’s election 

processes, may produce a more informed polarization of employee sentiment and therefore 

constitute a more accurate gauge of employees’ true representation desires.” Emerson Electric 

Co., 177 NLRB 75, 100 (1969). In that case, a plant unionization effort met with active 

opposition by other employees in the form of an “Emerson Royal Employees Club.” It was not 

ascribable to the employer, not found improper as such, and, in the circumstances, the employer 

was under no obligation to disavow it or any association with it. 

c. Disavowal 

In terms of the necessity for “disavowal,” the Board has held that an employer is not 

necessarily under a duty to disavow a preelection statement by an employee. American Molded 

Products Co., 134 NLRB 1446, 1448 (1962); see also Northrop Aircraft, 106 NLRB 23, 25 

(1953). In like vein, the conduct of rank-and-file employees is not generally imputed to their 

organization unless there is ratification. As a rule, it is considered in the same way as conduct of a 

third party. But a union is held accountable for statements of its committeemen when the latter 

are the responsible representatives of the union in the plant and play a central role in the election 

campaign. Vickers, Inc., 152 NLRB 793 (1965). Compare Bio-Medical of Puerto Rico, 269 

NLRB 827 (1984), with United Builders Supply Co., 287 NLRB 1364 (1988). Conduct of union 

activists is not per se imputed to the union. See Advance Products Corp., 304 NLRB 436 (1991); 

and Crestwood Convalescent Hospital, 316 NLRB 1057 (1995). For example of conduct by a 

nonemployee who was not found to have apparent authority, see Midland Processing Services, 

304 NLRB 770 (1991); and Cornell Forge Co., 339 NLRB 733 (2003). 

Third-party conduct which is otherwise actionable, it should be made clear, may be 

neutralized by an employer’s specific public disavowal. For example: News stories and a 

statement by a development group which leased space to the employer had suggested that the 

firm might move if the union won the election. Nonetheless, “the Employer’s specific public 

disavowals of any intention to relocate, coupled with the Petitioner’s republication and 

distribution to employees of such disavowals, tended to neutralize any atmosphere of fear and 

confusion that otherwise might have been engendered” by third-party (the development group) 

conduct. Electra Mfg. Co., 148 NLRB 494 (1964). See also Bristol Textile Co., 277 NLRB 1637 

(1986). 

Similar preelection activity was found not to have interfered with the election in the light of 

the give-and-take of the campaign, the employer’s disavowal of rumors about the plant’s closing, 

the absence of any showing by the petitioner that it was dissatisfied with the disavowal, and the 

employer’s “straight-forward assurance” to the employees that it had dealt fairly with them, 
INTERFERENCE WITH ELECTIONS 317

hoped to do better, and intended to keep the plant going regardless of the outcome of the election. 

Claymore Mfg. Co. of Arkansas, 146 NLRB 1400 (1964). 

d. Rumors 

On the subject of “rumor,” the Board, in General Housing Industries, 197 NLRB 24 (1972), 

found that in that case the rumors stood “revealed to the employees as nothing more than election 

propaganda,” and the various rumors neutralized and dissipated the possible coercive effect of the 

others. So, too, in Staub Cleaners, 171 NLRB 332, 333 (1968), the various statements by both the 

union and the respondent were sufficient to “neutralize and dissipate the rumor’s coercive edge.” 

The Board took into consideration the possibility that by repeating the rumor the respondent 

would spread it or misquote it, and thereby start a new rumor; it was therefore unnecessary for the 

respondent to risk quoting the rumor in order to deny it. 

It is apparent, of course, that these cases we have been discussing turn on their particular 

facts, not on legal niceties. Thus, third party conduct not attributable to the petitioner, but actually 

attributed by the employees to former employees who had previously been discharged, could not 

possibly have had any coercive or disruptive effect on the election. ITT Consumer Services Corp., 

202 NLRB 65 (1973). 

See also Englewood Hospital, 318 NLRB 806 (1995), where a divided Board found 

unobjectionable an employer’s reference to and denunciation of an anonymous bigoted letter. The 

Board majority found that the employer’s conduct “did not rise to the level of a sustained appeal 

to racial prejudice of the type condemned in Sewell and its progeny.” 

e. Unidentified wrongdoers 

On occasion the Board will not be able to identify the persons engaging in misconduct. In 

those circumstances, the Board will not routinely set aside the election until there is final tally. 

The reason for this policy is that the Board does not wish to benefit the wrongdoers in 

circumstances where the election was not in their favor. See Pine Shores, Inc., 321 NLRB 1437 

(1996). 

See also 24-442. The Milchem Rule for discussion of party electioneering conduct as 

objectionable. 

24-327 Offers to Waive Union Initiation Fees 

378-4270-6705 

378-4284-5000 

712-5042-6767 

In 1973, the Supreme Court ruled that a union’s offer to waive initiation fees can be grounds 

for setting aside an election. Such a waiver is objectionable if it is limited to employees who sign 

a union authorization card before the election. Where, however, the offer is not so limited and is 

also available to those who sign up after the election, such an offer would not be objectionable. 

NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973); L. D. McFarland Co., 219 NLRB 575 (1975); 

and Lau Industries, 210 NLRB 182 (1974). 

It is not objectionable conduct for a union to advise employees that if the union is voted in, 

they will continue to have an opportunity at the waiver or that employees who have paid initiation 

fees at other places of employment, do not have to pay again. De Jana Industries, 305 NLRB 

294 (1991). Rather, Savair requires that objectionable conduct is that which requires an “outward 

manifestation of support” such as signing an authorization card or joining the union. Compare Nu 

Skin International, 307 NLRB 223 (1992), in which the Board found Savair inapplicable to the 

union’s distribution of T-shirts conditioned on signing of a prounion petition. 

Where the union’s offer is ambiguous, the doubt will be resolved against the union and the 

statement may be held objectionable. S.T.A.R., Inc., 347 NLRB 82 (2006); Smith & Co. of 

California, 266 NLRB 172 (1983); and Town & Country Cadillac, 266 NLRB 172 (1983). 
318 INTERFERENCE WITH ELECTIONS 

Remarks of employee solicitors as to waiver may be attributable to the union and thus 

become the basis for election objections. When a union makes authorization cards available to 

employees as solicitors and does not publicly disavow these solicitors as agents, the union will be 

deemed to have authorized “a special agency relationship for the limited purpose of card 

solicitation.” University Towers, 285 NLRB 199 (1987); and Davlan Engineering, 283 NLRB 

803 (1987). 

In Hollingsworth Management Service, 342 NLRB 556, 559 (2004), the Board repeated the 

“safe harbor” provisions for its Davlan policy: 

[A] union may avoid responsibility for the improper fee-waiver statements of its solicitors 

 . . . by clearly publicizing a lawful fee-waiver policy in a manner reasonably calculated to 

reach unit employees before they sign cards. Such publicity may take any number of forms 

including, for example, an explanation of the fee-waiver policy printed on the authorization 

card itself.” [Davlan, supra at 805.] 

In a somewhat related case, the Board concluded that a union’s promise of a card which 

would make employees eligible for referral from the hiring hall was not objectionable because 

there was no showing that the employees were not otherwise qualified to receive the referral card. 

Electrical Workers Local 103 (Drew Electric), 312 NLRB 591 (1993). 

24-328 Prounion Supervisory Conduct 

378-2889 

Efforts of supervisors on behalf of the union may be objectionable. In Harborside 

Healthcare, Inc., 343 NLRB 906, 909 (2004), the Board majority stated its two part test for 

assessing objectionable conduct: 

(1) Whether the supervisor’s prounion conduct reasonably tended to coerce or interfere 

with the employees’ exercise of free choice in the election. 

This inquiry includes: (a) consideration of the nature and degree of supervisory authority 

possessed by those who engage in the prounion conduct; and (b) an examination of the 

nature, extent, and context of the conduct in question. 

(2) Whether the conduct interfered with freedom of choice to the extent that it materially 

affected the outcome of the election, based on factors such as (a) the margin of victory in the 

election; (b) whether the conduct at issue was widespread or isolated; (c) the timing of the 

conduct; (d) the extent to which the conduct became known; and (e) the lingering effect of 

the conduct. 

The alleged objectionable conduct by a supervisor in Harborside included prediction of job 

loss, advising employees that they had to attend union meetings, and soliciting employees to sign 

union authorization cards. In finding the solicitation objectionable, the Board noted the 

solicitation of a signature is more than speech. Rather it places employees in a situation where 

they could be reasonably concerned about giving the “right” or “wrong” response to their 

supervisors. Thus, the Board overruled Millsboro Nursing & Rehabilitation Center, 327 NLRB 

879, 880 (1999), on this point. 

The Board’s Harborside decision holds that the employer’s antiunion stance continues to be 

part of its test and may “mitigate the coercive effect of impermissible prounion supervisory 

conduct.” 

The Board majority also noted that recent cases that suggest that prounion supervisory 

conduct is not objectionable unless it involves a threat or promise, “represent a departure from 

established precedent.” 

The Board applied Harborside to set aside elections in Madison Square Garden, Ct., LLC, 

350 NLRB 117 (2007), and SNE Enterprises, 248 NLRB 1041 (2006). It overruled Harborside 
INTERFERENCE WITH ELECTIONS 319

objections in two other cases, Fidelity Healthcare & Rehab Center, 349 NLRB No. 120 (2007), 

and Northeast Iowa Telephone Co., 346 NLRB 465 (2006). 

Supervisory solicitation is not objectionable where the soliciting supervisor has no authority 

over the employee being solicited, Glen’s Market, 344 NLRB 294 (2005). 

24-329 Videotaping 

378-4263 

a. Employer taping

Absent proper justification, photographing or videotaping employees as they engage in 

protected concerted activity violates Section 8(a)(1) of the Act. F. W. Woolworth Co., 310 NLRB 

1197, 1197 (1993); Saia Motor Freight Line, 333 NLRB 784, 785 (2001), and constitutes 

objectionable conduct, Mercy General Hospital, 334 NLRB 100, 104–105 (2001). These rules 

apply not only where a videotape is shot with a handheld camera, but also where the videotape is 

created with a rotatable security camera purposefully directed at protected concerted activity. 

See, e.g., Mercy General Hospital, supra; and U.S. Ecology Corp., 331 NLRB 223, 233 (2000). 

At the same time, however, the Board “recognize[s] that an employer has the right to maintain 

security measures necessary to the furtherance of legitimate business during the course of union 

activity.” National Steel & Shipbuilding Co., 324 NLRB 499, 501 (1997), enfd. 156 F.3d 1268 

(D.C. Cir. 1998). Thus, it is neither unlawful nor objectionable when a rotatable security camera, 

operating in its customary manner, happens to record protected concerted activity on videotape. 

Cf. Mercy General Hospital, supra at 105 (finding no justificaton for videotaping where direction 

security camera was pointing “did not result from the established way in which the camera was 

operating”). Frontier Hotel & Casino, 323 NLRB 815, 837 (1997) (finding no justification for 

videotaping where security camera focused on union activity and did not rotate to scan parking 

lot “as was customarily the case”). 

In Saia Motor Freight Line, supra, the Board accepted an employer’s concern about traffic 

safety as a legitimate justification for photographing employees engaged in handbilling. But in 

Robert Orr-Sysco Food Services, 334 NLRB 977 (2001), the Board distinguished Saia finding no 

such justification. 

b. Union taping 

In Randell Warehouse of Arizona, 328 NLRB 1034 (1999), the Board found that union 

videotaping of the distribution of literature to employees as they accepted or rejected the literature 

is not objectionable. In doing, so, a divided Board overruled Pepsi-Cola Bottling Co., 289 NLRB 

736 (1988), and reaffirmed Mike Yurosek & Son, 292 NLRB 1074 (1989). Mike Yurosek was a 

case in which the photographing was accompanied by statements that “could reasonably put 

employees in fear that the pictures would be used for future reprisals.” 

Randell Warehouse was decided by the Board after oral argument with a second case that was 

settled prior to decision. That second case dealt with the issue of employer videotaping. The 

Board’s Randell decision includes the views of the minority and concurring Members on the 

majority holding that it would make a distinction between union and employer videotaping. 

See also Nu Skin International, 307 NLRB 223 (1992), in which photographing employees 

attending the union’s picnic luncheon was not found to be objectionable. 

24-400 Interference with the Conduct of Elections 

393-6081 

393-7022 

In chronological order, having dealt with preelection campaign activities in their several 

aspects, we come now to the issues which arise as a result of conduct at the actual time of the 

election. As in the case of preelection conduct, so in conduct at or near the polls, full regard is 
320 INTERFERENCE WITH ELECTIONS 

accorded to the rights of eligible voters in the exercise of their franchise. As the Board put it in 

New York Telephone Co., 109 NLRB 788, 790–791 (1954): 

The Board is responsible for assuring properly conducted elections and its role in the 

conduct of elections must not be open to question. Where . . . the irregularity concerns an 

essential condition of an election, and such irregularity exposes to question a sufficient 

number of ballots to affect the outcome of the election, in the interest of maintaining our 

standards there appears no alternative but to set this election aside and to direct a new 

election. 

This principle has been stated and restated in a countless number of cases and, in keeping 

with it, the Board tests the many types of procedural objections to an election which come before 

it. Elections may be set aside on procedural grounds or because of the conduct, deliberate or 

inadvertent, of the parties themselves or, as we have seen in the preceding chapter, even of third 

parties, of election observers or of others at the polls, or of Board agents if they fail to live up to 

the Agency’s high standards of impartiality and fairness. Accord: Sawyer Lumber Co., 326 NLRB 

1331 (1998). 

The Regional Director has broad discretion in making election arrangements, and in the 

absence of objective evidence that this discretion has been abused, the election is upheld. See, for 

example, Milham Products Co., 114 NLRB 1544, 1546 (1955); and Independent Rice Mill, 111 

NLRB 536 (1955). The Regional Director’s discretion in conducting an election includes, among 

others, the extension of voting time (Glauber Water Works, 112 NLRB 1462 (1955)); 

determining the date of the election (Comfort Slipper Corp., 112 NLRB 183 (1955)); and the use 

of IBM voting cards as an additional means of identification of voters (New York Shipping Assn., 

109 NLRB 310 (1954)). 

Where the Regional Director’s investigation of timely filed objections uncovers a matter 

relating to the conduct of a Board agent or the functioning of Board processes sufficient to cause 

the election to be set aside, the Board will consider such matter even if not within the scope of 

those objections. Richard A. Glass Co., 120 NLRB 914 (1958). 

Alert attention to the proprieties and regularity of a Board election, like charity, starts at 

home. We will therefore begin our analysis of conduct affecting the election by turning our 

attention to Board agent conduct. 

24-410 Board Agent Conduct 

370-9100 

378-9067 

The conduct of Board agents must be beyond reproach and “must not tend to destroy 

confidence in the election process.” Athbro Precision Engineering Corp., 166 NLRB 966 (1967). 

For an extensive discussion of Board agent conduct by a divided Board, see Sonoma Health Care 

Center, 342 NLRB 933 (2004). 

a. Ballot box security 

Leaving an unsealed package of blank ballots unprotected during a period when access to the 

ballot box was possible is regarded as a serious irregularity on the part of the Board agent, even in 

the absence of evidence that any ballots had been removed or that improper voting had occurred, 

or that any person had attempted to put more than one ballot in the ballot box. Hook Drugs, 117 

NLRB 846 (1957); and Tidelands Marine Services, 116 NLRB 1222 (1956). 

“We do not believe,” said the Board, “that we should speculate on whether something did or 

did not occur while the ballot box was left wholly unattended. The Board, through its entire 

history, has gone to great lengths to establish and maintain the highest standards possible to avoid 

any taint of the balloting process; and where a situation exists, which, from its very nature, casts a 
INTERFERENCE WITH ELECTIONS 321

doubt or cloud over the integrity of the ballot box itself, the practice has been, without hesitation, 

to set aside the election.” Austill Waxed Paper Co., 169 NLRB 1109 (1968). 

In Austill the ballot box became unattended when an altercation which developed during the 

voting period outside the polling place drew attending officials away. A later case, Anchor 

Coupling Co., 171 NLRB 1196 (1968), was distinguished from Austill to the significant extent 

that “the ballot box was not left wholly unattended” and both the employer’s observers—the 

employer was the one who filed objections to the election—certified that the ballot box was 

protected in the interest of a fair and secret election. See also General Electric Co., 119 NLRB 

944 (1957), where it had been established that at no time did anyone other than a Board agent 

touch any blank ballots which, along with the ballot box, were in the polling area in full view of 

all the observers. As there was no possibility of impropriety the election was upheld. 

In Ashland Chemical Co., 295 NLRB 1039 (1989), the Board overruled objections based on 

the Board agent opening the ballot box before the arrival of the observer. The Board found no 

evidence of a violation of the integrity of the ballot box. Queen Kapiolani Hotel, 316 NLRB 655 

(1995). 

A Board agent’s leaving the polling place to notify the employees that it was time to vote, if 

he carries the ballot box and blank ballots with him and does not let them out of his possession 

and is accompanied by observers, is no ground for invalidating the election. S. S. Kresge Co., 121 

NLRB 374 (1958). Even removal of a ballot from the box to explain to observers how a valid 

ballot should be marked is not objectionable if secrecy has not been impaired and the ballot is 

returned to the ballot box. O. K. Van & Storage Co., 122 NLRB 795 (1958). But see Jakel, Inc., 

293 NLRB 615 (1989), where a ballot was retrieved from the box in order to complete a 

challenge. The Board found the conduct affected the integrity of the election. Compare K. Van 

Bourgondien & Sons, 294 NLRB 268 (1989); and Rheem Mfg. Co., 309 NLRB 459 (1992) 

(ballots not determinative). See also Madera Enterprises, 309 NLRB 774 (1992). 

There are no absolute guidelines, however, as clearly stated in Polymers, Inc., 174 NLRB 282 

(1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970): 

Election procedures prescribed by the General Counsel or a Regional Director are obviously 

intended to indicate to field personnel those safeguards of accuracy and security thought to 

be optimal in typical election situations. These desired practices may not always be met to 

the letter, sometimes through neglect, sometimes because of the exigencies of circumstance. 

The question which the Board must decide in each case in which there is a challenge to 

conduct of the election is whether the manner in which the election was conducted raises a 

reasonable doubt as to the fairness and validity of the election. 

Thus, looking to the facts of each case, the Board will not set aside the election unless it finds 

a reasonable possibility of a breach in security. An objection relating to the integrity of the 

election process requires an assessment of whether the facts indicate that “a reasonable possibility 

of irregularity inhered” in the conduct of the election. Peoples Drug Stores, 202 NLRB 1145 

(1973) (in which the Board examined the theoretical possibility as against the improbabilities of 

the factual circumstances); Indeck Energy Services, 316 NLRB 300 (1995); and Dunham’s 

Athleisure Corp., 315 NLRB 689 (1994). A simple mistake in the tally of ballots, later corrected, 

is not a basis for a new election. Allied Acoustics, 300 NLRB 1183 (1990). 

The Board also pointed out in Polymers, Inc., supra, that, in a given case, even literal 

compliance with all of the rules, regulations, and guidelines would not satisfy the Board that the 

integrity of the election was not compromised. Conversely, the failure to achieve absolute 

compliance with these rules does not necessarily require that a new election be ordered, 

“although, of course, deviation from standards formulated by experts for the guidance of those 

conducting elections will be given appropriate weight in our determination.” In resolving issues 

based on allegations of security breach, the Board looks at all the facts and the inferences drawn 

from such facts. Thus, in Polymers, although the Board agent did not retain personal physical 
322 INTERFERENCE WITH ELECTIONS 

custody of the sealed ballot box and the blank ballots at all times, the facts indicated an “extreme 

improbability” of any violation of the ballot box. See also Benavent & Fournier, Inc., 208 NLRB 

638 (1974), in which the Board declined to set aside the election even though the Board agent left 

the polling area for 5 minutes, leaving unmarked ballots and the unsealed ballot box with the 

observers. There was no evidence that anyone touched the ballots in his absence. See also Kirsch 

Drapery Hardware, 299 NLRB 363 (1990); Trico Products Corp., 238 NLRB 380 (1978); and 

Niagara Wires, 237 NLRB 1347 (1978). 

b. Other conduct 

Although the fact of the Board agent’s drinking beer with a union representative did not 

affect the votes of the employees, the Board nevertheless set the election aside to protect the 

integrity of its processes. Athbro Precision Engineering Corp., supra; principle enfd. 423 F.2d 

571 (1970). Compare Newport News Shipbuilding Co., 239 NLRB 82, 87 (1978), where a Board 

agent allegedly accepted an observer’s request that he come to the agent’s room with liquor. As 

no employees were present, the Board did not set the election aside. The Board also noted that 

there were a large number of Board agents at this election and this was the only such incident. 

See also Rheem Mfg. Co., supra, where the Board did not set the election aside when the Board 

agent walked through the plant with the union observer and Indeck Energy Services, supra. 

The Board rejected as grounds for setting aside an election the fact that the Board agent at the 

election had appeared as one of two counsels for the General Counsel at an unfair labor practice 

proceeding held more than 2 weeks prior to the election, at a location substantially distant from 

employer’s plant, and where only rank-and-file employees were in attendance. Footnote 1 of the 

decision did note, however, that wherever feasible, in order to keep the conduct of elections 

completely separate from the investigation or trial of contemporaneous unfair labor practice 

charges involving the same parties, the Regional Director should designate as election agent 

someone other than one of the trial attorneys involved in the unfair labor practice case. Kimco 

Auto Products, 184 NLRB 599 (1970). 

It was argued in another case that an election be set aside because of the Board agent’s 

conduct in investigating unfair labor practice charges against the employer between shifts of a 

split election. The Board declined to do so since only three employees were interviewed, all away 

from the employer’s premises, and there was no evidence that other employees witnessed the 

interviews or became aware of them. Amax Aluminum Extrusion Products, 172 NLRB 1401 

(1968). See also McCarty-Holman Co., 114 NLRB 1554 (1955). The Board made the comment in 

Amax, however, that it would be “better practice for the board agent conducting an election to 

refrain from investigating unfair labor practices charges between shifts of the election.” In Sparta 

Health Care Center, 323 NLRB 526 (1997), the Board rejected the argument that there was any 

impropriety in the representation case hearing officer later serving as counsel for the General 

Counsel in an 8(a)(5) “test of certification” proceeding. See also S. Lichtenberg & Co., 296 

NLRB 1302 (1989), where a newspaper article quoting a Board agent concerning a pending 

unfair labor practice complaint was not a basis for setting the election aside. 

The Board has consistently held that a primary consideration in the conduct of any election is 

whether the employees are given adequate notice and sufficient opportunity to vote. Cities 

Service Oil Co., 87 NLRB 324 (1949); and Wilson Athletic Goods Mfg. Co., 76 NLRB 315 

(1948). Thus, while an election proceeding was processed with dispatch (the field examiner set 

the election for November 13, and mailed notices of the election to the employer on November 

5), the Board agent had not acted arbitrarily in not conducting a longer investigation before 

issuing the notice of hearing. The Board held that as nearly 95 percent of the eligible employees 

voted in the election and there was no showing that any employee was foreclosed from voting 

because of the alleged haste in holding the hearing and the election, the objection to the election 

was without merit. Arnold Stone Co., 102 NLRB 1012 (1953). Similarly, a Board agent’s inquiry 

as to whether two employees had voted was not considered to reflect bias where the Board agent 
INTERFERENCE WITH ELECTIONS 323

did not know that there were two other employees similarly situated. Pacific Grain Products, 

309 NLRB 690 (1992). 

The Board found no basis for setting aside the election in Foremost Dairies of the South, 172 

NLRB 1242 (1968), stating that the presence of challenged voters waiting to cast a ballot cannot 

be equated with the unjustified presence of uninterested persons, even if one of them was a 

former supervisor, and that the presence of a former supervisor who is no longer on the 

employer’s payroll cannot be equated with the presence of a management representative. 

Compare Harry Lunstead Designs, 270 NLRB 1163 (1984), where the Board agent gave 

erroneous instructions as to the challenged ballot procedure and the Board set aside the election. 

Where a Board agent permitted the union’s observer, without objection from the employer’s 

observer, to give the only Spanish-speaking employee direction on how to vote, in Spanish, but 

there was no evidence of electioneering, the election was upheld. Regency Hyatt House, 180 

NLRB 489 (1969). But see Alco Iron & Metal Co., 269 NLRB 590 (1984). 

Although it was impossible to determine whether an irregularity in the course of an election 

affected its outcome, the election was set aside where certain ballots were temporarily mislaid. 

This decision was based on the long-established principle that “the Board is responsible for 

assuring properly conducted elections, and its role in the conduct of elections must not be open to 

question” New York Telephone Co., supra at 790. In this case, the employer contended that the 

premature closing, in the presence of employees waiting to vote, gave rise to rumors that the 

Board agent favored the employer and created an atmosphere of confusion, bias, and prejudice 

against the employer which affected votes cast in the afternoon session. Kerona Plastics 

Extrusion Co., 196 NLRB 1120 (1972). See also B & B Better Baked Foods, 208 NLRB 493 

(1974). 

A Board agent’s comment to other agents, “You’ve got yourself a winner,” made after all 

ballots had been cast, was no basis for invalidating the election. The Board considered the choice 

of language “unfortunate,” but interpreted it in context as indicating that, in the view of the Board 

agent, new colleagues were participating in an election presenting unusual complications, rather 

than as a prejudgment of challenged ballots yet to be resolved. Wald Sound, Inc., 203 NLRB 366 

(1973). In a similar vein, the mere statement by a Board agent that the polls were open and the 

employees could, if they desired, “now vote for your union representative” was not a sufficient 

basis to set aside the election. Wabash Transformer Corp., 205 NLRB 148 (1973), enfd. 509 F.2d 

647 (8th Cir. 1975). But in Renco Electronics, 330 NLRB 368 (1999), the Board found an 

unacceptable breach of neutrality when the Board interpreter asked an employee, “Do you know 

where to put your yes vote?” 

In Sonoma Health Care Center, 342 NLRB 933 (2004), the Board agent, in response to a 

question from the union observer about the attitude of companies toward unions, said, 

“Companies don’t like unions because they cannot fire or hire anyone and they cannot take 

benefits from the staff.” A divided Board found the statement “intemperate and inappropriate” but 

not a bases for setting aside the election. 

A Board agent who periodically asked voters waiting in line to stop talking was not remiss 

because some unspecified conversations nevertheless took place. As stated by the administrative 

law judge and upheld by the Board, “There never has been a rule requiring absolute silence 

among voters waiting to vote.” Dumas Bros. Mfg. Co., 205 NLRB 919, 929 (1973). In Pacific 

Grain Products, 309 NLRB 690 (1992), the Board refused to set aside an election where 

management representatives walked into the polling area where it was not marked. Their 

entrance allegedly resulted in a verbal altercation between the Board agent and the managers. 

Dismantling of the election booth before the agreed upon closing time was not found 

objectionable where no employee was disenfranchised. Sawyer Lumber Co., 326 NLRB 1331 

(1998). 
324 INTERFERENCE WITH ELECTIONS 

Premature disclosure of the Regional Director’s unit determination over a month before the 

election was not a basis for setting aside an election. Kleen Brite Laboratories, 292 NLRB 747 

(1989). 

The fact that Board agents are in a collective-bargaining unit does not affect their neutrality. 

Monmouth Medical Center, 234 NLRB 328, 331 (1978). Monmouth also involved an allegation 

that literature referring employees to the Board was objectionable. The Board rejected that 

contention, but enforcement was denied 604 F.2d 820 (3d Cir. 1979). The Board has since cited 

Monmouth with approval. Dave Transportation Services, 323 NLRB 562 (1997). 

See also Fresenius USA Mfg., Inc., 352 NLRB No. 86 (2008), the Board set aside election 

based on the Board agent’s failure to display ballots for inspection during count and mistakes in 

ballot identification during election. 

See section 22-106, Concerning content of Notice of Election in cases where election is 

rescheduled for adminstrative reasons. 

24-420 Mechanics of the Election 

While in a real sense the mechanics of a Board election are inextricably tied in with Board 

agent conduct, it seems more logical to separate the two, to the extent possible, for the sake of 

clarity in the analysis of conduct-of-election issues. 

24-421 The Polling Place 

370-1425 

370-1450 

370-1475 

Elections are generally on the employer’s premises in the absence of good cause shown to the 

contrary. If an election is held away from the employer’s premises, the initial suggestion of a 

place is normally made by the party proposing it, but final arrangements are made by the Board 

agent. The size of a polling place depends on the nature of the election, the number of voters, and 

the length of the voting period being pertinent factors. 

The choice of a place for holding an election is within the Regional Director’s discretion, and 

failure to consult with the parties in this regard is not per se prejudicial. Korber Hats, Inc., 122 

NLRB 1000 (1959). Nor is the failure to post signs designating the polling area. Sawyer Lumber 

Co., 326 NLRB 1331 (1998). Holding an election at the employer’s place of business or near a 

place of management responsibility does not require that the election be invalidated. Jat 

Transportation Corp., 131 NLRB 122 (1961); and Cupples-Hesse Corp., 119 NLRB 1988 

(1958). “Mere location of the polling place behind a picket line is not of itself prejudicial to the 

fair conduct of an election. . . . [without a showing] that the Union was in fact prejudiced or that 

the secrecy of the election was impaired because of the location of the polling place.” Korber 

Hats, supra at 1001. For those unable to come to the polling place, balloting may be held 

elsewhere, if attended by appropriate safeguards and the request is timely made, although such 

action is discretionary with the Board agent and quite unusual. Growers Warehouse Co., 114 

NLRB 1568 (1955). 

In Robert F. Kennedy Medical Center, 336 NLRB 765 (2001), a divided panel overruled an 

objection to the election because one of two entries to the polling area became locked after the 

polling began. 

See also section 24-525. 
INTERFERENCE WITH ELECTIONS 325

24-422 Opening and Closing of the Polls 

370-9167-4800 

370-9167-8800 

370-9167-9500 

Where the opening of the polls is delayed and the number of employees possibly 

disenfranchised thereby is sufficient to affect the election, the election is set aside, whether or not 

those voters or any voters at all were actually disenfranchised. The test is an objective one. Pea 

Ridge Iron Ore Co., 335 NLRB 161 (2001). See also Jim Kraut Chevrolet, 240 NLRB 460 

(1979), and Bonita Ribbon Mills, 87 NLRB 1115 (1949). Additional voting time provided on the 

day of the election does not in and of itself generally remedy the uncertainty caused by starting 

late. G.H.R. Foundry Division, 123 NLRB 1707 (1959). “Proper election procedure requires 

every reasonable precaution that a full opportunity to vote be given those eligible. That 

opportunity is best assured where the means of determining [opening and] closing time in the 

most accurate way available is included in the election arrangements made before the election 

occurs.” Repcal Brass Mfg. Co., 109 NLRB 4 (1954). For two cases in which late opening of 

polls which reached different results, see Jobbers Meat Packing Co., 252 NLRB 41 (1980); and 

Nyack Hospital, 238 NLRB 257 (1978) (election set aside). See also Midwest Canvas Corp., 326 

NLRB 58 (1998). 

In Arbors at New Castle, 347 NLRB 544 (2006), the Board rejected objections to a late 

opening of the polls based on the parties stipulation that the five eligible employees who did not 

vote, had not appeared at the polls “at anytime during the scheduled polling hours.” 

In Rosewood Care Center, 315 NLRB 746 (1994), the Board refused to fault the Board agent 

for not making arrangements for late voters because the voters never showed up. An unscheduled 

mid-session closing of the polls warranted setting aside the election where the number of voters 

possibly disenfranchised could have affected the election results. Wolverine Dispatch, Inc., 321 

NLRB 796 (1996). 

An objection to an election was sustained where the Board agent refused to permit two 

eligible voters to cast their ballots after the polls had closed in view of the “special 

circumstances” of the case; i.e., a brief 15-minute voting period and the facts that the Board agent 

was aware that the two employees had tried to vote earlier and again sought to vote only minutes 

after the polls had closed, the ballot box had not been opened nor the tally of ballots yet started, 

and the addition of two valid ballots may have affected the election results. Hanford Sentinel, 163 

NLRB 1004 (1967). Compare Atlantic International Corp., 228 NLRB 1308 (1977). See also 

Consumers Energy Co., 337 NLRB 752 (2002); Kerrville Bus Co., 257 NLRB 176 (1981);, and 

American Driver Service, 300 NLRB 754 (1990) (late mail ballots). 

An objection that the voting began after the announced time and that the polls were closed 

ahead of time was overruled when it appeared that the polls were only 2 or 3 minutes late in 

opening due to a delay in setting up the polling place, all eligible voters present cast ballots, and 

there were no prospective voters waiting in line to cast ballots when the polls were closed. Of the 

two eligible voters who did not vote, one was on leave of absence and the other absent because of 

illness. Smith Co., 192 NLRB 1098, 1102 (1971). See also Dominguez Valley Hospital, 251 

NLRB 842 (1980). However, in Monte Vista Disposal Co., 307 NLRB 531 (1992), and Pruner 

Health Services, 307 NLRB 529 (1992), the Board announced a “bright-line rule terminating the 

balloting at the conclusion of the voting period” absent extraordinary circumstances or agreement 

of the parties. Rosewood Care Center, supra. In Rosewood, the Board approved an agreement 

permitting an early arrival to vote. Compare Kerona Plastics Extrusion Co., supra. See also 

Argus-Press Co., 311 NLRB 24 (1993); Taylor Cadillac, 310 NLRB 639 (1993); and Visiting 

Nurses Assn., 314 NLRB 404 (1994). 
326 INTERFERENCE WITH ELECTIONS 

It is the Board agent’s responsibility to challenge the ballot of a late arriving voter in the 

absence of agreement of the parties that the individual can vote. See Laidlaw Transit, Inc., 327 

NLRB 315 (1998). 

An election is not set aside because a voting booth is dismantled before closing time unless it 

is shown that this conduct deprived any eligible voter of the opportunity to vote. O. K. Van & 

Storage Co., 122 NLRB 795 (1958). Accord: Sawyer Lumber Co., supra. 

For related discussion, see section 24-425, infra. 

24-423 Notice of Election 

370-2800 

A standard notice of election (form NLRB-707) is used to inform eligible voters of the 

balloting details. The notice contains a sample ballot with the names of the parties inserted, a 

description of the bargaining unit, the date, place, and hours of election, and a statement of 

employee rights under the Act. Other relevant details are inserted where necessary. In Penske 

Dedicated Logistics, 320 NLRB 373 (1995), the Board affirmed the election results where the 

notices were timely posted in a place where notices were customarily maintained even though the 

area was locked on Saturday and Sunday pursuant to the employer’s regular practice. 

In 1987, the Board announced that henceforth the procedures for posting notices of election 

would be governed by a rule (Sec. 103.20 of the Rules). Under this rule the notice must be 

(1) posted for 3 full working days in advance of the election. 

(2) a party responsible for misposting is estopped from objecting to the nonposting. 

(3) an employer is conclusively deemed to have received the notices unless it notifies the 

Regional Office at least 5 full working days before the election of its nonreceipt. 

See Club Demonstration Services, 317 NLRB 349 (1995); and Ruan Transport Corp., 315 

NLRB 592 (1994), holding that Saturdays, Sundays, and holidays are not working days within the 

meaning of the Rules. Compare Cleveland Indians Baseball Co., 333 NLRB 579 (2001), where 

the Board refused to set aside a stipulated election where no employees were scheduled to work 

during most of the posting period. 

(4) failure to post the notices as required is ground for a new election when objections 

are filed. 

See also Sugar Food, 298 NLRB 628 (1990), for a discussion of the rule and the policy with 

respect to defaced notices. 

The rule is strictly enforced. Smith’s Food & Drug, 295 NLRB 983 (1989). 

But in Madison Industries, 311 NLRB 865 (1993), the Board did not set aside an election 

where an amended notice was posted for a portion of the time. The Board found that the change 

in the notice (eligibility) did not affect the notice to employees of the election that is the purpose 

of the Rule. Neither was the election set aside in a two union election where the circumstances 

could “invite collusion” by any employer who might favor one of the competing unions. The 

employer’s failure to post in such circumstances would provide an unsuccessful favored union 

with a basis to set aside the election. Maple View Manor, Inc., 319 NLRB 85 (1995). 

Compare Terrace Gardens Plaza, 313 NLRB 571 (1993), where a divided panel of the Board 

strictly enforced the rule in a mail ballot situation even where, although the posting was not 

timely received by the employer, copies of the notice were sent to employees with the ballots. 

See section 24-441 for discussion of policy as to defaced notices and section 22-106 

concerning contest of notice in cases where election is rescheduled for administrative reasons. 
INTERFERENCE WITH ELECTIONS 327

24-424 Observers 

370-4900 

Each party is normally permitted to be represented at the polling place by an equal 

predesignated number of observers, usually employees of the employer who are not in the unit or 

in the voting group. Best Products Co., 269 NLRB 578 (1984). Compare Frontier Hotel v. NLRB, 

625 F.2d 293 (9th Cir. 1980). 

The use of observers at a directed election is a privilege, not a right, and the presence of 

observers other than Board agents is not required by the Act and may be waived. Best Products, 

supra. See Breman Steel Co., 115 NLRB 247, 249 (1956); and Simplot Fertilizer Co., 107 NLRB 

1211 (1954). In a consent election, however, the use of observers, if incorporated in the 

agreement, is a matter of right since it is a material term of the “consent-election agreement,” and, 

if this right is not waived, the election is subject to invalidation. Breman Steel Co., supra, and 

Asplundh Tree Export Co., 283 NLRB 1 (1987). See also, for example, Semi-Steel Casting Co. v. 

NLRB, 160 F.2d 388 (8th Cir. 1947), cert. denied 332 U.S. 758 (1947). In Northern Telecom 

Systems, 297 NLRB 256 (1989), the Board held that a waiver of an observer by one party cannot 

be an objection to the election by another party. 

The standard procedure, as already indicated, is to allow the parties to use employees as 

observers, it being unusual to use outside observers. It is therefore no abuse of a Regional 

Director’s discretion to decline the use of outside observers at some of several polling places. Jat 

Transportation Corp., , supra at 125–126. However, in San Francisco Bakery Employers Assn., 

121 NLRB 1204 (1958), a nonemployee observer was used, the election was nonetheless upheld 

since the observer was not shown to have been guilty of any misconduct or that any prejudice 

resulted as a consequence. See also Reflector Hardware Corp., 121 NLRB 1544, 1547 (1958); 

and Kelly & Huber, 309 NLRB 578 (1992), where the use of a nonemployee who had been a 

supervisor was held to be a minor breach of the stipulation and not a basis for setting aside the 

election. No objection was filed based on the former supervisory status. 

In Embassy Suites Hotel, 313 NLRB 302 (1993), the Board affirmed that a nonemployee can 

be used as an observer absent evidence of prejudice to the interests of the other party or 

misconduct by the observer. In doing so, the Board stated that this policy applies even when the 

nonemployee is an ex-employee whose discharge is not being litigated, distinguishing 

Correctional Health Care Solutions, 303 NLRB 835 (1991), where the Board held that exemployees whose status is being litigated retain per se eligibility to act as observers. 

Objections to particular persons acting as observers must be made at the preelection 

conference or they are waived. Liquid Transporters, Inc., 336 NLRB 420 (2001); Monarch 

Building Supply, 276 NLRB 116 (1985); and St. Joseph Riverside Hospital, 224 NLRB 721 

(1976). Compare Bosart Co., 314 NLRB 245 (1994), where the union was unaware of the 

supervisory status of the observer until after the election. 

And in Browning-Ferris Industries of California, 327 NLRB 704 (1999), the Board found 

objectionable a Board agent’s decision to conduct an election without union observers where the 

union proposed to use former employees as observers. It also described the procedure that Board 

agents should follow when made aware of a party’s intent to use an observer who may be 

objectionable. The agent is to advise all parties of the consequences of the choice and should do 

so openly. See also Detroit East, Inc., 349 NLRB 935 (2007). 

It is general Board policy, in the interest of free elections, that persons closely identified with 

management may not act as observers either for the employer, see, e.g., Sunward Materials, 304 

NLRB 780 (1991); Mid-Continent Spring Co., 273 NLRB 884 (1985); Peabody Engineering Co., 

95 NLRB 952, 953 (1951); and Union Switch & Signal Co., 76 NLRB 205 (1948), or the union. 

Family Services Agency, San Francisco, 331 NLRB 850 (2000). 

The Board will not allow union officials to serve as observers in decertification proceedings. 

Butera Finer Foods, 334 NLRB 43 (2001). The Board had allowed union representatives to serve 
328 INTERFERENCE WITH ELECTIONS 

prior to Butera. See, e.g., E-Z Davies Chevrolet, 161 NLRB 1380 (1966); Carl Simpson Buick, 

161 NLRB 1389 (1966), enfd. 395 F.2d 191 (9th Cir. 1968); and Standby One Associates, 274 

NLRB 952 (1985). The Board in Butera specifically declined to rule on whether it would allow 

union officials in nondecertification cases. See footnote 7. But see Fleet Boston Pavilion, 333 

NLRB 655 (2001), where the Board overruled an objection to the use of a union president as an 

observer, noting that he had worked for the employer, had been injured on the job, and was 

obtaining medical treatment that would allow him to return. The Board further noted that the 

observer was not involved in the referral of employees from the union’s hiring hall. 

Holding an election without the observers of one party present does not invalidate an election 

if both parties are given an equal and adequate opportunity to have observers present. Manhattan 

Adhesives Corp., 123 NLRB 1096 (1959). See also Inland Waters Pollution Control, 306 NLRB 

342 (1992), where the Board agent did not allow late arriving observer to assume duties. Nor is 

an election set aside if an employer denies an employee permission to leave work to serve as an 

observer, where the employee had inadvertently made no arrangements for release. San Francisco 

Bakery Employers Assn., 121 NLRB 1204 (1958). An employee whose discharge is the subject of 

an unfair labor practice proceeding is entitled to serve as an observer as he is considered an 

“employee” during the pendency of the charge. Correctional Health Care Solutions, 303 NLRB 

835 (1991); and Soerens Motor Co., 106 NLRB 1388 (1953). This is equally true of persons 

whose eligibility to vote as employees in layoff status is still in question, even if they are later 

found ineligible. Thomas Electronics, 109 NLRB 1141 (1954). Being a union official does not 

disqualify a person from being an observer. Bordo Products Co., 119 NLRB 79, 80 (1957). 

An employer is not required to treat its own observers the same as union observers with 

respect to pay and leave during the election. In American Red Cross Missouri-Illinois Blood 

Services Region, 347 NLRB 347 (2006), the Board permitted the employer to compensate its own 

observers for time spent observing the election while requiring the union observers to use 

accumulated paid time off. Nor did the Board find objectionable the employer’s preelection 

meeting with its own observers to explain the observers’ role in the election process even though 

the union observers were not invited to the meeting. 

For cases dealing with the conduct of observers at an election, see Sir Francis Drake Hotel, 

330 NLRB 638 (2000) (innocuous comments by observer, not objectionable); compare Brinks 

Inc., 331 NLRB 46 (2000); Tom Brown Drilling Co., 172 NLRB 1267 (1968); Hallandale 

Rehabilitation Center, 313 NLRB 835 (1994) (alleged to have kept a list and checked off the 

names of voters after they voted); and Fibre Leather Mfg. Corp., 167 NLRB 393 (1967) (role of 

observers in election involving foreign-language voters). In Brinks, Inc., supra, a divided Board 

found a union observer’s “vote union” comment and thumbs up sign to be improper 

electioneering. Compare U-Haul Co. of Nevada, Inc., 341 NLRB 195 (2004) (observer thumbs 

ups not linked to campaigning). 

The conduct or circumstances surrounding the duties of an observer may be a basis for 

election objections. In Easco Tools, 248 NLRB 700 (1980), the payment to observers of a rate 

substantially in excess of their employment wage could have affected the results of the election 

and the election was set aside. See also S & C Security, 271 NLRB 1300 (1984). Compare Young 

Men’s Christian Assn., 286 NLRB 1052 (1987). Note that Young Men’s was overruled in Sunrise 

Rehabilitation Hospital, 320 NLRB 212 (1995). For further discussion of Sunrise see section 24-

430. See also Pacific Grain Products, 309 NLRB 690 (1992), where the conduct of the observer 

involved only one employee and would not have affected the results of the election. 

The wearing of insignia or buttons by observers, while discouraged, is not prohibited. See 

CHM section 11310; and Larkwood Farms, 178 NLRB 226 (1969). 

More recently, the Board affirmed the importance of the observer when it refused to overrule 

challenges to purported ballots of employees who later testified they had not voted. The Board 

discussed the role of observers and indicated that overruling the challenges would undermine the 

role of the observers. Monfort, Inc., 318 NLRB 209 (1995). 
INTERFERENCE WITH ELECTIONS 329

Observers may not keep lists of those voting, but may keep a list of those they intend to 

challenge. Cerock Wire & Cable Group, 273 NLRB 1041 (1984). See also Avante at Boca Raton, 

Inc., 323 NLRB 555 (1997). In Mead Southern Wood Products, 337 NLRB 497 (2002), the 

Board suggested that it is preferable that a duplicate Excelsior list not be used as a challenge list. 

The duties of an observer include making challenges for cause. The Board agent will not 

normally make challenges on behalf of the parties even if no observer is present. CHM section 

11338; and Solvent Services, 313 NLRB 645 (1994). Balfre Gear & Mfg. Co., 115 NLRB 19, 22 

(1956). Compare Laubentein & Portz, Inc., 226 NLRB 804 (1976), where the Board agent was 

held responsible to challenge in order to implement an unfair labor practice settlement. See also H 

& L Distributing Co., 206 NLRB 169 fn. 1 (1973), suggesting that there may be other 

circumstances in which the Board agent could challenge at the request of a party. See also 

Lakewood Engineering & Mfg. Co., 341 NLRB 699 (2004), for a summary of Board agent’s 

challenge duties. 

For further discussion of lists by observers, see section 24-445, and for discussion of 

challenges and postelection challenges, see sections 22-111 and -115, supra. 

24-425 Opportunity to Vote and Number of Voters 

370-3533-2000 et seq. 

370-7787 

370-9167-6100 et seq. 

The Board regards it as its responsibility to establish the proper procedure for the conduct of 

its elections. This procedure requires that all eligible employees be given an opportunity to vote. 

Yerges Van Liners, 162 NLRB 1259, 1260 (1967); and Alterman-Big Apple, Inc., 116 NLRB 

1078 (1956). 

Thus, where, as in Yerges, an employee had no opportunity to vote through no fault of his but 

because at the time of the election he was away from the plant in the normal course of his duties 

for the employer, and his vote would have been determinative of the results—the unit had only 

two eligible voters—the election was set aside. Accord: Acme Bus Corp., 316 NLRB 274 (1995). 

Compare Daniel Construction Co., 145 NLRB 1397, 1412 (1964), which involved the 

opportunity for voting on the part of individuals whose status as “employees” was in doubt. We 

have already mentioned Hanford Sentinel, 163 NLRB 1004 (1967), where voters were unable to 

vote under unusual circumstances and the election was set aside. 

In Sahuaro Petroleum & Asphalt Co., 306 NLRB 586, 586–587 (1992), the Board 

summarized its policy: 

Where the conduct of a party to the election causes an employee to miss the opportunity to 

vote, the Board will find that to be objectionable if the employee’s vote is determinative and 

the employee was disenfranchised through no “fault” of his own. Versail Mfg., 212 NLRB 

592, 593 (1974). When an employee is prevented from voting by reason of sickness or some 

other unplanned occurrence beyond the control of a party or the Board, the inability to vote 

is not a basis for setting aside the election. Id. The burden is on the objecting party, in this 

case, the Union, to come forward with evidence in support of its objection. Campbell 

Products Dept., 260 NLRB 1247 (1982). 

See also Glenn McClendon Trucking, 255 NLRB 1304 (1981), and Cal Gas Redding, Inc., 

241 NLRB 290 (1979), in which the election was set aside because the eligible voters were 

prevented from voting because of assignments performed in the normal course of their duties. 

Compare Coast North America (Trucking) Ltd., 325 NLRB 980 (1998), enf. 207 F.3d 994 (7th 

Cir. 2000) (employee on vacation was not prevented from voting by either party); and Waste 

Management of Northwest Louisiana, 326 NLRB 1389 (1998) (directive to report to work at 8 

a.m. did not prevent employee from arriving earlier in order to vote). 
330 INTERFERENCE WITH ELECTIONS 

In one rather interesting case the actions of a third party in inadvertently locking the doors of 

the polling area may have contributed to some employees not voting. Accordingly, the election 

was set aside. Whatcom Security Agency, 258 NLRB 985 (1981). Compare Robert F. Kennedy 

Medical Center, 336 NLRB 765 (2001), and Coast North America, supra. 

In Rett Electronics, 169 NLRB 1111 (1968), an objection alleged that (1) in view of weather 

conditions employees who tardily presented themselves to vote should have been allowed to cast 

a ballot, and (2) permitting a union observer to vote under challenge after other employees not 

closely identified with the petitioner were denied ballots prevented a fair election. The Board held 

(1) there was no disfranchisement of a determinative group of eligibles, only one of whom at best 

appeared after the closing of the polls, and (2) even assuming, arguendo, that the observer was 

permitted to cast “a challenged nondeterminative ballot” after the timely closing of the polls, this 

occurred concededly at a time when it would not have affected the free atmosphere of the 

election. 

Employer conduct which confuses employees, and their confusion manifests itself in their 

spontaneous protests as soon as they learn that the election is over and they were denied an 

opportunity to vote, is a basis for setting an election aside. Wagner Electric Corp., 125 NLRB 

834, 836 (1959). The confusion was created by the doors having been locked, the employees were 

told no one could go to the back room, and they were under the impression they would be told as 

to their voting opportunity. 

In the case of a stipulation for a consent election, which provides for a manual election at a 

designated location, if no timely request is made for other arrangements, the late request may 

properly be rejected and a contention based on failure to provide an opportunity to vote may be 

found to be without merit. Franklin’s Stores Corp., 117 NLRB 793, 795–796 (1957); and Red 

Owl Stores, 114 NLRB 176 (1955). See also Community Care Systems, 284 NLRB 1147 (1987), 

where the Board rejected an objection based on the failure to hold an election on a training date 

because the parties had stipulated to the date and no party objected before the election. 

The requirement that employees be given an adequate opportunity to vote may not be waived 

by the parties to an election. Alterman-Big Apple, Inc., 116 NLRB 1078 (1956); and Active 

Sportswear Co., 104 NLRB 1057 (1953). 

In Lemco Construction, 283 NLRB 459 (1987), the Board announced that it was abandoning 

any analysis which was “dependent on a numerical test to determine the validity of a 

representation election.” Thus, the Board overruled prior precedent which considered whether the 

number of voters actually voting in the election was a representative group. See also Community 

Care Systems, supra. Then, in Glass Depot, 318 NLRB 766 (1995), a Board plurality 

distinguished Lemco, supra, indicating that a different result might obtain if that lack of a 

representative complement was caused by an extraordinary event, e.g., severe weather. 

Later, however, in Baker Victory Services, 331 NLRB 1068 (2000), the Board announced: 

We conclude that the proper standard to be applied to the issue here is contained in V.I.P. 

Limousine [V.I.P. Limousine, 274 NLRB 641 (1985)], i.e., an election should be set aside 

where severe weather conditions on the day of the election reasonably denied eligible voters 

an adequate opportunity to vote and a determinative number did not vote. Accordingly, we 

reaffirm that standard today, and we reject the “representative complement” standard set 

forth in the plurality opinion in Glass Depot. 

Although the number of voters voting in a Board election will not ordinarily affect the 

validity of a Board election, a union obtaining recognition by private means must be supported by 

a majority of the unit employees whether that support is shown by authorization cards or by a 

private election. Autodie International, Inc., 321 NLRB 688, 691 (1996) (recognititon unlawful 

where votes cast for labor organization were not a majority of the unit); and Komatz 

Construction, Inc., v. NLRB, 458 F.2d 317, 322–323 (8th Cir. 1972) (unlawful recognition where 

union won majority of votes cast but not majority of total unit). 
INTERFERENCE WITH ELECTIONS 331

For discussion of late voters, see section 24-422, supra. See also 24-421 (The Polling 

Place). 

24-426 Secrecy of the Ballot 

370-7000 

370-7750 

Complete secrecy of the ballot is required by the Act and is observed in all Board-conducted 

elections. Conduct which tends to destroy or adversely affect such secrecy constitutes a ground 

for election invalidation. There must, of course, be reasonable doubt that the secrecy was 

affected. Bare assertions will not suffice. Avante at Boca Raton, Inc., 323 NLRB 555 (1997). 

The Board’s duty to preserve the secrecy of the ballot is statutory and a matter of public 

concern, rather than a personal privilege subject to waiver by the individual voter. To give effect 

to such waivers would, as a practical matter, remove any protection of employees from pressures, 

originating with either employers or unions, to prove the way in which their ballots had been cast, 

and thereby detract from the laboratory conditions which the Board strives to maintain in 

representation elections. J. Brenner & Sons, Inc., 154 NLRB 656, 659 fn. 4 (1965). See also 

Space Mark, Inc., 325 NLRB 1140 (1998) (mail ballot completed by voter’s wife was properly 

voided). 

The Board has characterized its role in the conduct of elections as one which “must not be 

open to question.” New York Telephone Co., 109 NLRB 788, 790 (1954). Thus, where, for 

example, improvised voting arrangements were in its opinion “entirely too open and too subject 

to observation to secure secrecy of the ballot,” it set aside the election. Imperial Reed Furniture 

Co., 118 NLRB 911, 913 (1957). See also Columbine Cable Co., 351 NLRB No. 65 (2007). 

Where, however, the voting booths were located at one end of a warehouse, and after voting some 

of the eligibles went to another part of the warehouse where they remained until the polls closed, 

the election was upheld. The Board noted the absence of electioneering or interference with 

voting. Choctaw Provision Co., 122 NLRB 474, 475 (1958); see also, for example, G. F. Lasater, 

118 NLRB 802, 804 (1957). See also Sewell Plastics, 241 NLRB 887 (1979), where the Board 

analyzed allegations that observers could see voters voting in terms of the effect on the election, 

not secrecy of the ballot. 

Circumstances may be such that a voter’s identity may unavoidably become known. Thus, 

where a single professional employee constitutes one voting group while all the other employees 

constitute a second voting group, in a “Sonotone”(Sonotone Corp., 90 NLRB 1236 (1950)) (or 

professional employees election), and the ballot in one group is different from those of the other, 

the ballot of the single professional employee is, of course, distinguishable but unavoidable. 

Triple J Variety Drug Co., 168 NLRB 988, 989–990 (1967) (Hearing Officer’s Report on 

Objections and Challenged Ballots). For similar reasons, where a ballot was challenged as invalid 

in that, because of a tie vote, it lacked secrecy, the Board held that the fact that “a voter’s identity 

may be publicly known as an unavoidable result of the challenge procedure, does not invalidate 

his vote in the determination of the election results.” Marie Antoinette Hotel, 125 NLRB 207, 208 

(1959). See also De Vilbiss Co., 115 NLRB 1164, 1169 (1956). Compare J. C. Brock Corp., 318 

NLRB 403 (1995), where the Board found that a limited use of foreign language ballots was 

insufficient to destroy the secrecy of the ballot. 

While secrecy of the ballot is of primary concern, the Board is also responsible for expediting 

questions concerning representation. In balancing these two goals, the Board has, in narrow 

circumstances, permitted challenged ballots to be opened and counted prior to a determination of 

voter eligibility. Ladies Garment Workers, 137 NLRB 1681 (1962). These circumstances are (1) 

the challenged ballots were cast by individuals who are alleged discriminatees in a pending unfair 

labor practice case; (2) the individuals have clearly waived their right to secrecy and requested 

that their ballots be opened; and (3) the circumstances are such that if some or all of the 
332 INTERFERENCE WITH ELECTIONS 

challenged ballots have been cast for the union, the union will receive a majority regardless of 

how the challenges are ultimately determined. See, e.g., Garrity Oil Co., 272 NLRB 158 (1984), 

and Premium Fine Coal, 262 NLRB 428 (1982). Compare El Fenix Corp., 234 NLRB 1212 

(1978), in which the Board appears to suggest that all the determinative challenges must be the 

subject of the unfair labor practice case. See also United Insurance Co. of America, 325 NLRB 

341 (1998), and JCL Zigor Corp., 274 NLRB 1477 (1985), and section 22-115 of this text. 

A voter is not permitted to withdraw his ballot, once cast. Great Eastern Color Lithographic 

Corp., 131 NLRB 1139 (1961). Nor can the parties be allowed to do so. Thus, the Board rejected 

a stipulation by the parties that a challenged but comingled ballot be considered as cast for the 

petitioner. “Acceptance of such an agreement,” said the Board, “is not consistent with the Board’s 

purpose of preserving the secrecy of the ballot and providing sufficient safeguards to prevent 

possible abuses of the election processes.” T & G Mfg., 173 NLRB 1503, 1504 (1969). In that 

case, the ballot itself was not identifiable and the choice had been recorded in the tally of votes. 

There was no way of ascertaining how the vote was cast. The Board added: “We will not permit 

solicitation of such information from the voter, nor allow the parties to stipulate how a voter 

exercised his franchise, for this would create the very opportunity for collusion, coercion, and 

election abuse the Board is committed to prevent.” 

In City Stationery, Inc., 340 NLRB 523 (2003), the Board rejected a contention that a 

settlement of unfair labor practice charges waived employees’ rights to have their ballots counted. 

For a discussion of cases in which a ballot is returned from the ballot box, see section 24-410 

of this chapter. 

Where several voters enter an election booth at the same time, an election is susceptible to 

invalidation. Case Egg & Poultry Co., 293 NLRB 941 (1989). However, the Board agent may 

remedy the situation by destroying the ballots marked under such circumstances and allowing 

each employee to vote again, thus, safeguarding the secrecy of the ballot. Deeco, Inc., 116 NLRB 

990, 991 (1956). Moreover, “where . . . the impugned votes do not appear to be more than 

isolated instances and are not sufficient to affect the results of the election, the Board will not set 

the election aside.” Machinery Overhaul Co., 115 NLRB 1787, 1788 (1956). Accord: St. 

Vincent Hospital, 344 NLRB 586 (2005). 

Ballots which have been signed or marked so that the identity of the voter would or could be 

revealed are invalid. Such a situation occurred, for example, in Ebco Mfg. Co., 88 NLRB 983 

(1950). In that case, the Board agent during the counting of ballots discovered a capital “R” with 

a circle drawn around it outside the voting boxes on the ballot. The Board held that distinguishing 

or identifying markings on ballots render such ballots void because to count such ballots “clearly 

would open the door to the exertion of influences such as to prevent the exercise of the voter’s 

free choice,” and would be inconsistent with the principle of a secret election. It is not necessary 

to establish the identity of the voter who cast the disputed ballot; it is sufficient that, upon an 

examination of the ballot, the markings in question appear to have been made deliberately, rather 

than accidentally or inadvertently, and that it may serve to reveal the identity of the voter. See 

also Eagle Iron Works, 117 NLRB 1053 (1957); and Standard-Coosa-Thatcher Co., 115 NLRB 

1790 (1956), which hold that it is the policy of the Board to invalidate a ballot if it contains marks 

identifying the voter. This rule is equally applicable to invalidate ballots which might give “rise to 

the possibility of revealing the identity of the voter” (Standard-Coosa-Thatcher Co., supra at 

1792). “In the absence of evidence indicating that the ballot was deliberately marked for the 

purpose of identification, we will not disenfranchise a voter.” F. Strauss & Son, Inc., 195 NLRB 

583 fn. 2 (1972). See Sorenson Lighted Controls, 286 NLRB 969 (1987), invalidating a ballot 

that was shown by the voter to another voter. In General Photo Products, 242 NLRB 1371 

(1979), the voter who revealed his ballot could not vote again. 

The question of the validity of a ballot, as distinguished from a challenge to the eligibility of 

the person casting the ballot, may properly be raised by a timely objection after the count and is 
INTERFERENCE WITH ELECTIONS 333

not considered a postelection challenge. F. J. Stokes Corp., 117 NLRB 951, 954 (1957); and 

Sorenson Lighted Controls, Inc., supra. 

24-427 Mail Ballots 

370-6325 et seq. 

370-6350 et seq. 

370-6375 et seq. 

Voting in appropriate instances may be conducted by mail, in whole or in part. Mail balloting 

is used, if at all, generally in unusual circumstances, particularly where eligible voters are 

scattered because of their duties or where long distances are involved. The Regional Director has 

discretion to authorize balloting by mail when appropriate. Pacific Gas & Electric Co., 89 NLRB 

938 (1950); and Southwestern Michigan Broadcasting Co., 94 NLRB 30 (1951). See Shepard 

Convention Services, 314 NLRB 689 (1994), finding an abuse of discretion in the failure to direct 

a mail ballot election. In mixed manual mail elections, mail ballots are only sent to those eligibles 

who cannot vote in person. They are not sent to employees who, although eligible to vote, are ill, 

on vacation, or members of the armed services. Nor are they sent to the in-temporary layoff status 

unless all parties agree, but a notice of election may nonetheless be sent to these employees. 

Enforcement was denied in Shepard by the D.C. Circuit, Shepard Convention Services v. NLRB, 

85 F.3d 671 (D.C. Cir. 1996). 

In a series of cases in 1997, the Board ruled on the appropriateness of a mail-ballot election in 

a series of circumstances. See Willamette Reynolds Wheels International, 323 NLRB 1062 

(1997). 

Thereafter, in San Diego Gas & Electric, 325 NLRB 1143 (1998), the Board announced the 

factors it expected its Regional Directors to consider in deciding whether or not to direct a mailballot election: 

1. Where eligible voters are “scattered” because of their job duties, over a wide geographic 

area; 

2. Where eligible voters are “scattered” in the sense that their work schedules vary 

significantly so that they are not present at a common location and common times; and 

3. Where there is a strike, a lockout or picketing in progress. 

Since then the Board has reaffirmed the abuse of discretion standard under which it reviews 

decisions of Regional Directors to conduct mail, manual, or mixed elections. See GPS Terminal 

Services, Inc., 326 NLRB 839 (1998); North American Plastics Corp., 326 NLRB 835 (1998); 

Masiongale Electrical-Mechanical, 326 NLRB 493 (1998); Nouveau Elevator Industries, 326 

NLRB 470 (1998); and Diamond Walnut Growers, Inc., 326 NLRB 28 (1998). 

The Board does not regard mail balloting as a “general course and method by which its 

functions are channeled and determined” within the meaning of Section 3(a)(2) of the 

Administrative Procedure Act. Consequently, a contention that an election was invalid because of 

the Board’s alleged noncompliance with that provision was rejected. F. W. Woolworth Co., 96 

NLRB 380, 381–382 (1951). 

Illustrative of circumstances susceptible to mail balloting is where, because of the nature of 

their widespread over-the-road driving duties, eligible voters had places of employment and 

residences which were scattered throughout the United States. National Van Lines, 120 NLRB 

1343 (1958). Mail balloting is also used at times in the maritime industry. J. Ray McDermott v. 

NLRB, 571 F.2d 852 (5th Cir. 1978). In Pacific Maritime Assn., 112 NLRB 1280 (1955), for 

example, the Regional Director described in full detail the many precautions taken to insure that a 

proper and secret ballot was taken, providing for the presence of delegates from each of the 

participating unions when the ballots were distributed. In two possible instances when the secrecy 

of the ballots might conceivably have been affected, the Board found that the number of ballots 
334 INTERFERENCE WITH ELECTIONS 

involved would not have been sufficient to affect the results of the election. Also, in another case 

involving the maritime industry, the Board held that the fact a manual election had been 

conducted previously does not preclude the Regional Director, in his broad discretion, from 

conducting an election by mail. Shipowners’ Assn. of the Pacific Coast, 110 NLRB 479 (1954); 

see also Continental Bus System, 104 NLRB 599, 601 (1953). 

See Brink’s Armored Car, 278 NLRB 141 (1986), and Mission Industries, 283 NLRB 1027 

(1987), in which the Board describes the precaution necessary in these cases. See also Club 

Demonstration Services, 317 NLRB 349 (1995), for discussion of the rule on election notice 

posting in a mail ballot election; Daves Newcomer Elevator Co., 315 NLRB 715 (1994), for 

discussion of the Regional Officer’s obligation to send duplicate election kits to employees who 

do not sign identification stub when returning mail ballots; and Watkins Construction Co., 332 

NLRB 828 (2000), for a discussion of the policy on late arrival of mail ballots. In Sadler Bros. 

Trucking & Leasing Co., 225 NLRB 194 (1976), the Board ordered the Regional Director to 

accept a stipulation to waive the due date for two ballots. In J. C. Brock Corp., 318 NLRB 403 

(1995), the Board rejected a contention that the use of foreign language ballots for some 

employees, destroyed the secrecy of the ballot. See Northwest Packing Co., 65 NLRB 890 

(1946), for an interesting case involving allegations that the procedures affected the secrecy of the 

ballot. In that case the Board found that the ballots could not be opened with the proper protection 

for secrecy. 

In Aesthetic Designs, LLC, 339 NLRB 395 (2003), a divided Board counted as valid a sample 

ballot that had been in the mail-ballot election kit. 

In Human Development Assn., 314 NLRB 821 (1994), the Board ordered the employer to pay 

the costs of a second election where the employer was found to have interfered with the voting 

process in a mail-ballot election. 

In Fessler & Bowman, Inc., 341 NLRB 932 (2004), the Board unanimously agreed that it is 

objectionable for a party to collect mail ballots for submission to the Board, but divided evenly 

over whether solicitation for collection is objectionable and over whether to set aside the election 

only if the collected ballots would be determinative. 

See also section 22-110. For a discussion of mail ballot elections and Peerless Plywood, see 

section 24-325(b). 

24-428 Foreign Language Voters 

370-2817-6700 

370-4270 

370-7067-2067-3300 

Due regard must be given in Board elections to the needs of foreign language voters who are 

unable to read English. Where there is a showing of need for a foreign language translation on the 

notice of election, the Board will require such translation. See Rattan Art Gallery, 260 NLRB 255 

(1982). 

In Kraft, Inc., 273 NLRB 1484 (1985), the Board found that a ballot that attempted to 

indicate four languages was set up in such a way as to avoid confusion. Specifically, the Spanish 

and English translations which were typed seemed “lost or overshadowed” by the Vietnamese 

and Laotian translations. In the Board’s view this created “high potential for voter confusion” and 

the notices of election do not cure defective ballots. Compare Bridgeport Fittings, 288 NLRB 124 

(1988), where a ballot in three languages was laid out in such a way as avoid confusion. 

Moreover, the Board noted that there were only three or four voters affected by a poor Laotian 

translation and the election was decided by a margin of 72 votes. The Board approved the use of 

English on the ballot listing the name of the union. 
INTERFERENCE WITH ELECTIONS 335

A party who is aware of a foreign language problem among the voters is required to put the 

Board on notice as to the problem. See Unibilt Industries, 278 NLRB 825 (1986), and the cases 

cited therein. 

It is the responsibility of the Board agent to assure that the election is conducted fairly and 

impartially. In Alco Iron & Metal Co., 269 NLRB 590 (1984), the Board set aside an election 

because the Board agent virtually turned over to the union observer the running of the election as 

it related to Spanish-speaking voters. Compare Regency Hyatt House, 180 NLRB 489 (1969), 

which is discussed at footnote 2 of Alco, supra, and San Francisco Sausage Co., 291 NLRB 384 

(1988). 

Board policy permits the use of foreign language notices of election and English ballots. See 

CHM section 11315. This policy was approved by the Seventh Circuit in NLRB v. Precise 

Castings, 915 F.2d 1160 (7th Cir. 1990). The court did so, however, noting that there was no 

“evidence of actual confusion.” See Flo-Tronic Metal Mfg., 251 NLRB 1546 (1980), where the 

failure to include essential election information in the notice of election in Spanish was the basis 

for setting the election aside. In Avante at Boca Raton, Inc., 323 NLRB 555 (1997), the Board 

rejected a contention that the election should be set aside because the word “affiliated” was not 

translated for foreign language voters. The Board concluded that this did not affect voting 

decisions of the employees. See Superior Truss & Panel, Inc., 334 NLRB 916 (2001) (RD’s 

refusal to provide ballots in Spanish not objectionable; Spanish translation of notice 

understandable). 

24-429 Ballot Count 

370-7700 

370-7725 

The Board agent conducting the election also conducts the ballot count. The determination of 

the Board agent can be challenged and in that case, the ballot is segregated in a challenge 

envelope and counted as a challenged ballot (CHM sec. 11340.7(a)). 

In Aesthetic Designs, LLC, 339 NLRB 395 (2003), a divided Board counted as valid a sample 

ballot that had been provided in the mail ballot election kit. 

In making the determination as to the ballot markings, the Board agent is to give effect to the 

unambiguous voter intent even though it may be an irregular marking or may be on the back of 

the ballot. Hydro Conduit Corp., 260 NLRB 1352 (1982). Accord: Wackenhut Corp. v. NLRB, 

666 F.2d 464, 467 (11th Cir. 1982), and cases cited therein. Thus, for example, in Horton 

Automatics, 286 NLRB 1413 (1987), the Board found the proper voter intent to vote against the 

union when the voter wrote “non” across a ballot which was in both English and Spanish. See 

also Kaufman’s Bakery, 264 NLRB 225 (1982), where the Board disregarded irregular markings 

made over the original “X”; and Columbia Textile Services, 293 NLRB 1034 fn. 4 (1989), where 

the voter had punched a hole through the “yes” box. See also Brooks Bros., Inc., 316 NLRB 176 

(1995). In Bishop Mugavero Center, 322 NLRB 209 (1996), a divided Board found that a ballot 

marked with a single diagonal line in the “yes” box and “X” in the “no” box was a void ballot. 

Accord: TCI West, Inc., 322 NLRB 928 (1997). Compare Osram Sylvania, Inc., 325 NLRB 758 

(1998), and Thiele Industries, 325 NLRB 1122 (1998). 

In Daimler-Chrysler Corp., 338 NLRB 982 (2003), the full Board divided over a ballot 

marked by an X in the “yes” box that also contained a handwritten question mark (?) immediately 

adjacent to the “yes” square. There were no markings on the “no” box. The majority found that 

the markings evinced the voters’ intent to vote “yes” and that the question mark did not negate 

this expressed preference. 

24-430 Payments to Off-Duty Employees to Encourage Voting 

In Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995), a divided Board held that 

monetary payments offered to employees as a reward for coming to a Board election that exceed 
336 INTERFERENCE WITH ELECTIONS 

actual transportation expenses is objectionable. Accord: Lutheran Welfare Services, 321 NLRB 

915 (1996); Perdue Farms, Inc., 320 NLRB 805 (1996); and Rite Aid Corp., 326 NLRB 924 

(1998). Compare Good Shepard Home, 321 NLRB 426 1996), finding that the payments 

amounted to actual expenses. Allen’s Electric Co., 340 NLRB 1012 (2003). See also section 24-

443 for discussion of the Board’s policy of barring raffles that are in any way tied to voting in the 

election. Atlantic Limousine, 331 NLRB 1025 (2000).

The Board does not find payments for transportation or pay objectionable where the 

employees did not know of payments before voting. Indiana Hospital, Inc., 326 NLRB 1399 

(1998), and J.R.T.S. Limited, Inc., 325 NLRB 970 (1998). 

24-440 Electioneering 

370-9167-5400 

378-8400 

The Board considers itself responsible for assuring properly conducted elections, and where 

irregularities concern essential conditions of the election and expose to question a number of 

ballots sufficient to affect the outcome of the election, there is no alternative in light of the high 

election standards maintained by the Board but to set aside the election. The effectuation of this 

principle is a serious factor in many and varied types of procedural objections to elections with 

which the Board is confronted. 

The specific types of issues relating to this principle may either precede the date of the 

election or occur at or near the polls and involve conduct affecting the results of the election. 

Although the Board has traditionally declared its intention not to censor or police preelection 

campaign propaganda by parties to elections, it must, in order to preserve an atmosphere of 

impartiality, impose, certain limitations or methods on campaigning. United Aircraft Corp., 103 

NLRB 102 (1953). See Pearson Education, Inc., 336 NLRB 979 (2001). See Chrill Care, Inc., 

340 NLRB 1016 (2003) (picketing at site of election, not objectionable).

For a discussion of the Board’s policy with respect to electioneering and the factors to be 

considered in determining whether specific conduct is objectionable. 

24-441 Ballot Reproduction 

370-2850 

378-2885-4093 

378-2885-6050 

378-4270-3300 

4270-6775 

The reproduction of a document which purports to be a copy of the Board’s official secret 

ballot, but which in fact is altered for campaign purposes, tends to suggest to the voters, directly 

or indirectly, that this Agency endorses a particular choice. Allied Electric Products, 109 NLRB 

1270 (1954). 

After Allied Electric, the Board tended to follow a per se rule that an altered ballot or other 

Board material which tended to undermine the Board’s neutrality would cause the election to be 

set aside. In SDC Investment, 274 NLRB 556 (1985), the Board reexamined this policy in light of 

its decisions in Midland National Life Insurance Co., 263 NLRB 127 (1982), and Riveredge 

Hospital, 264 NLRB 1094 (1982), and found that the “crucial question” in resolving issues of 

sample ballot alteration is whether the document “is likely to have given voters the misleading 

impression that the Board favored one of the parties to the election.” 274 NLRB at 557. In two 

cases decided recently, the Board decided that the document involved clearly indicated that it was 

not a government document. See Ursery Cos., 311 NLRB 399 (1993), involving a letter from a 
INTERFERENCE WITH ELECTIONS 337

state representative, and Taylor Cadillac, 310 NLRB 639 (1993), involving a defaced sample 

ballot. 

Thus, if the ballot or other material indicates that the source of the material is one of the 

parties, then the election will not be set aside. See Comcast Cablevision of New Haven, 325 

NLRB 833 (1998); C. J. Krehbiel Co., 279 NLRB 855 (1986); Worths Stores Corp., 281 NLRB 

1191 (1986); and Baptist Home for Senior Citizens, 290 NLRB 1059 (1988). The Board will 

examine extrinsic evidence to determine whether the document is misleading. See Baptist Home, 

supra at fn. 4, which implicitly overruled cases to the contrary, 3-Day Blinds, Inc., 299 NLRB 

110 (1990). 

In Archer Services, 298 NLRB 312 (1990), and 3-Day Blinds, supra, the Board found that the 

document was misleading and that there was no extrinsic evidence which indicated it was fromn a 

partisan source. Accordingly, the elections were set aside. 

The Board has pointed out that the policy here is easily complied with by simply identifying 

on the document what its source is. 3-Day Blinds, Inc., supra; Professional Care Centers, 279 

NLRB 814 (1986); and Rosewood Mfg. Co., 278 NLRB 722 (1986). 

Note: In Brookville Healthcare Center, 312 NLRB 594 (1993), the Board announced that 

because it has included language in its Notices of Election stating that there is no Board 

involvement in any defacement of notice, the SDC Investment, 274 NLRB 556 (1985), analysis is 

no longer required. Accord: Wells Aluminum Corp., 319 NLRB 798 (1995), and Dakota Premium 

Foods, 335 NLRB 228 (2001). Brookville Healthcare involved defacement of the official notice 

of election. Where the defacement was of a separate sample ballot, so that the Brookville 

Healthcare Center disclaimer was not readily available to the employees receiving the defaced 

ballot, the Board set the election aside. Sofitel San Francisco Bay, 343 NLRB 769 (2004). 

The Board continues to experience objections based on altered ballots even after Brookville 

Healthcare, supra. See, e.g., Oak Hill Funeral Home, 345 NLRB 532 (2005). As a result, it 

announced a new policy in Ryder Memorial Hospital, 351 NLRB No. 26 (2007), whereby the 

disclaimer language will also be included on the ballot itself. Thus, NLRB ballots now state: 

The National Labor Relations Board does not endorse any choice in this election. Any markings 

that you may see on any sample ballot have not been put there by the National Labor Relations 

Board. 

See also section 24-423, supra, for a discussion of the requirements for posting of the Notice 

of Election. 

24-442 The Milchem Rule 

370-4975 

370-9167-5450 

378-4242 

378-8420 

Adverting to the fact that, in prior decisions dealing with the effects of conversations between 

parties to the election and employees preparing to vote, no clear standard had been enunciated 

against which to measure such conduct, the Board established a rule prohibiting such conduct, 

“without inquiry into the nature of the conversations.” Milchem, Inc., 170 NLRB 362 (1968). In 

Rheem Mfg. Co., 309 NLRB 459 (1992), the Board reaffirmed the applicability of Milchem to 

parties only and not to third-party conduct. See also Lamar Advertising of Janesville, 340 NLRB 

979 (2003); Yukon Mfg. Co., 310 NLRB 324 (1993); and Crestwood Convalescent Hospital, 316 

NLRB 1057 (1995). 

The Milchem rule applies only to conduct by a party to the election, not to employee conduct. 

Tyson Fresh Meats, Inc., 343 NLRB 1335 (2004). 
338 INTERFERENCE WITH ELECTIONS 

The facts in Milchem were simple. During the voting period, a union official stood for several 

minutes near the line of employees waiting to vote, engaging them in conversation. While the 

union official said that his remarks concerned the weather and like topics, the Board found that 

“the sustained conversation with prospective voters waiting to cast their ballots, regardless of the 

content of the remarks exchanged, constitutes conduct which, in itself, necessitates a second 

election.” 

Applying the Milchem rule, an election was set aside where an individual, acting on behalf of 

the union, engaged in electioneering activities in close proximity to the polls during a substantial 

part of the voting period, notwithstanding the Board agent’s instructions, on three separate 

occasions, that he leave the area and the admonition that he could not electioneer within 50 feet of 

the polls. The Board viewed this conduct as “a serious breach” of its rule against electioneering at 

or near the polls. Star Expansion Industries Corp., 170 NLRB 364 (1968). Distinguishable were 

Sewanee Coal Operators’ Assn., 146 NLRB 1145 (1964), where, among other things, there was 

no specification by the Board agent of a “no electioneering” area; and Intertype Co., 164 NLRB 

770 (1967), where the electioneering consisted of but one isolated remark to an employee at the 

end of the voting line. 

Social pleasantries or chance remarks are not considered objectionable under the Milchem

rule absent more. See Sawyer Lumber Co., 326 NLRB 1331 (1998), and Dubovsky & Sons, 324 

NLRB 1071 (1997). 

The Milchem rule was applied to a situation in which a supervisor went from person to person 

in the voting line, which varied from 15 to 50 employees, and engaged in conversational and 

handshaking activity. Volt Technical Corp., 176 NLRB 832 (1970). 

In another case, where a single vote was determinative of the election and the conversations 

of petitioner’s observer, already criticized by the Board agent, “culminated in his gratuitious offer 

of a loan to a prospective voter”; the election was set aside. Modern Hard Chrome Service Co., 

187 NLRB 82 (1970). 

Milchem is applicable to conversations between observers and voters and must be 

“prolonged.” Longs Drug Stores of California, 347 NLRB 500 (2008), and Lowe’s HIW, Inc., 

349 NLRB 478 (2007). Where the conversation is initiated by the voter or amounts to no more 

than mere social pleasantries, the Board has declined to set aside elections under Milchem, and 

Modern Hard Chrome, supra. In Midway Hospital Medical Center, 330 NLRB 1420 (2000), a 

divided panel distinguished between remarks directed at fellow voters, which are covered by the 

Milchem rule, and those directed at Board agents, union, and management officials, which were 

not considered covered by Milchem.

Thus, in Angelica Healthcare Services, 280 NLRB 864 (1986), enfd. sub nom. Clothing & 

Textile Workers v. NLRB, 815 F.2d 225 (2d Cir. 1987), a voter initiated a conversation with the 

union’s observer by asking him how he was and by initiating further conversation on the subject 

of her recent surgery, when the observer responded, “Fine, how are you?” In Oesterlen Services 

for Youth, 243 NLRB 563 (1979), enfd. 649 F.2d 399 (6th Cir. 1981), cert. denied 454 U.S. 1031 

(1981), the observer exchanged brief “pleasantries” with voters, answered one voter’s question 

about turnout at the polls with the remark that more might vote at the shift change, told another 

that the observer would be at union meeting later that month, and spoke about work schedules 

with a voter who initiated the conversation by coming behind the observers’ table to talk. In Vista 

Hill Hospital, 239 NLRB 667 (1978), enfd. 639 F.2d 479 (9th Cir. 1980), the case that comes 

closest to the line separating objectional conduct under Milchem, Inc., 170 NLRB 362 (1968), 

there were six very brief conversations, four consisting of innocuous greetings and comments on 

the weather, one involving a brief reply to an employee’s question, and one (found by the court to 

be close to the kind of conduct condemned by Milchem) consisting of the observer’s comment 

that if the employee voted for the union, he (the observer) would not be in so much trouble with 

the hospital. In Brinks Inc., 331 NLRB 46 (2000), a divided Board found a union observer’s “vote 
INTERFERENCE WITH ELECTIONS 339

union” comment and thumbs up sign to be improper electioneering. Compare U-Haul Co. of 

Nevada, Inc., 341 NLRB 195 (2004) (observers “thumbs up” not linked to companying). 

In Hollingsworth Management Service, 342 NLRB 556 (2004), the Board found improper 

electioneering where employees were manhandled in front of the others by individuals who came 

to the polling area “for the apparent purpose of systematically targeting voters with last minute 

campaigning.” 

Where during the balloting, two union representatives alternated in positioning themselves 

for conversation with voters at the foot of an outside stairway, 10 feet in length, leading to the 

second floor of a two-story building, and the polling area was in a conference room 20 to 25 feet 

down a hallway from the second floor entrance, the area outside this entrance was deemed 

beyond the “no electioneering” area established by the Board agent. The alleged conversations, 

the Board reasoned, did not take place with voters while the latter were in the polling area or in 

line waiting to vote, and therefore did not violate the Milchem rule. The establishment of a 

nonelectioneering area is left to the informed judgment of the Regional Director’s agents 

conducting the election since they are on the scene and familiar with the physical circumstances 

surrounding the location of the polls. Marvil International Security Service, 173 NLRB 1260 

(1968). See also Faulhaber Co., 191 NLRB 326 (1971). 

For similar reasons, the Milchem rule was not applied in the context of the following factual 

situation: The election was conducted in a warehouse building, the voting area being located 

about 30 feet from the entrance. Conversations between three union representatives and several 

employees took place on a parking lot outside the warehouse. The Board held that the Milchem

rule does not apply to conversations with prospective voters unless the voters are in the polling 

area or in line waiting to vote. U-Haul Co. of Nevada, supra; Golden Years Rest Home, 289 

NLRB 1106 (1988); Boston Insulated Wire Co., 259 NLRB 1118 (1982); and Harold W. Moore 

& Son, 173 NLRB 1258 (1968). See also American Medical Response, 339 NLRB 23 (2003), and 

Stevenson Equipment Co., 174 NLRB 865 (1969) . The same reasoning was used in Lach-Simkins 

Dental Laboratories, 186 NLRB 671 (1970), where the union held a luncheon before and during 

the time the polls were open, but it was held outside of the polling area; employees were not 

compelled to attend; those who chose to attend had to go out of their way, past the entrance to the 

polling area; and the value of the sandwiches and soft drinks was not considered sufficient to 

influence the voting. 

A single isolated violation Milchem, Inc., 170 NLRB 362 (1968), of Milchem was held 

insufficient to set aside the election where the vote of the employee addressed was not dispositive 

of the election. Mead Corp., 189 NLRB 190 (1971). Compare Bio-Medical of Puerto Rico, 269 

NLRB 827 (1984). 

It should also be noted that an election will not be set aside where the rule was violated by the 

observer for the losing party in the election. General Dynamics Corp., 181 NLRB 874 (1970). 

In Pearson Education, Inc., 336 NLRB 979 (2001), the Board found that the posting of an 

antiunion poster near the polling site was objectionable. Accord: American Medical Response, 

supra. 

For discussion of the third party conduct, see section 24-326. 

24-443 Raffles, Gifts, and Contests 

378-2897 

378-4284 

a. Raffles

In Atlantic Limousine, 331 NLRB 1025 (2000), the Board adopted a new rule barring 

“employers and unions from conducting a raffle if (1) eligibility to participate in the raffle or win 

prizes is in any way tied to voting in the election or being at the election site on election day or 

(2) the raffle is conducted at any time during a period beginning 24 hours before the scheduled 
340 INTERFERENCE WITH ELECTIONS 

opening of the polls and ending with the closing of the polls.” Accord: Ryder Student 

Transportation Services, 332 NLRB 1590 (2000) (conditioning a raffle on a certain number of 

employees voting); and Allenbrook Healthcare Center, 331 NLRB 1065 (2000) (raffle conducted 

during balloting). 

The Board in Atlantic Limousine also concluded, however, that election raffles held outside 

of the 24-hour period would be scrutinized to determine whether “they involve promises or grants 

of benefit that would improperly affect employee free choice; or whether they allow the employer 

to identify employees who might or might not be sympathetic, and thus to learn were to direct 

additional pressure or campaign efforts. Applying this test, the Board set aside the election in BFI 

Waste Systems, 334 NLRB 934 (2001).

b. Gifts

Gifts may not be given to employees as an inducement to secure employee support of a Board 

election. General Cable Corp., 170 NLRB 1682 (1968. 

In B & D Plastics, 302 NLRB 245 (1991), the Board summarized its test for determining 

whether benefits or gifts amount to objectional conduct: 

Gulf States Canners, 242 NLRB 1326 (1979). To determine whether granting the benefit 

would tend unlawfully to influence the outcome of the election, we examine a number of 

factors, including: (1) the size of the benefit conferred in relation to the stated purpose for 

granting it; (2) the number of employees receiving it; (3) how employees reasonably would 

view the purpose of the benefit; and (4) the timing of the benefit. In determining whether a 

grant of benefits is objectionable, the Board has drawn the inference that benefits granted 

during the critical period are coercive. It has, however, permitted the employer to rebut the 

inference by coming forward with an explanation, other than the pending election, for the 

timing of the grant of announcement of such benefits. See Speco Corp., 298 NLRB 439 fn. 2 

(1990); United Airlines Services Corp., 290 NLRB 954 (1988); May Department Stores Co., 

191 NLRB 928 (1971). 

In B & D), the Board found that the grant of a day off 2 days after the election was 

objectionable. See also Shore & Ocean Services, 307 NLRB 1051 (1992), in which the granting 

of two benefits, a change in overtime computation and the providing of uniforms, within a short 

time after learning the petition was filed was objectionable. But see Emery Worldwide, 309 

NLRB 185 (1992), in which the outcome of a bonus competition was announced the day before 

the election. The Board found that timing alone is insufficient to make an otherwise 

unobjectionable announcement objectionable. Generally speaking, the distribution of inexpensive 

pieces of campaign propaganda such as buttons, stickers, or T-shirts is not objectionable. 

Compare R. L. White Co., 262 NLRB 575 (1982), and Nu Skin International, 307 NLRB 223 

(1992) (T-shirts not objectionable), with Owens-Illinois, Inc., 271 NLRB 1235 (1984) (free 

jackets found objectionable). Similarly announcement of a postelection victory party was not 

deemed objectionable. Raleigh County Commission on Aging, 331 NLRB 924 (2000). 

In Comcast Cablevision-Taylor, 338 NLRB 1089 (2000), the Board set aside an election after 

an adverse decision by the Sixth Circuit. The Circuit found that a union promise of a trip to 

Chicago after the election (a $50 value) was objectionable. 

Elimination of a benefit (access to bulletin board) during the election campaign was 

objectionable. Bon Marche, 308 NLRB 184, 185 fn. 7 (1992), and dissent. See also Chicagoland 

Television News, 328 NLRB 367 (1999); River Parish Maintenance, 325 NLRB 815 (1998); and 

Chicago Tribune, 326 NLRB 1057 (1998) (paying for attendance at party found objectionable). 

c. Contests

In a series of cases, the Board has found that contests in which a prize is awarded for 

answering questions about the election campaign where employees are required to sign their 

names is objectionable. See Melampy Mfg. Co., 303 NLRB 845 (1991), and cases cited therein. 
INTERFERENCE WITH ELECTIONS 341

See also Sea Breeze Health Care Center, 331 NLRB 1131 (2000) (questionnaire amounted to 

polling). 

The Board evaluates all the circumstances surrounding raffles that are held in connection with 

an election in deciding whether or not they are objectionable. These circumstances are described 

in Grove Valve & Regulator Co., 262 NLRB 285 (1982). See also Sony Corp of America, 313 

NLRB 420 (1993), where the Board found that the value of the prize was not sufficiently high to 

be objectionable. See Bionetics Corp., 323 NLRB 639 (1997), for a discussion of late filed 

contention concerning an employer request that an employee distribute raffle tickets. See also 

Arizona Public Service Co., 325 NLRB 723 (1998), distinguishing B & D (payment cases) from 

Sony (raffles). 

24-444 Campaign Insignia 

378-2847-8400 et seq. 

378-8440 

The wearing at the polls by observers of buttons or other insignia merely bearing the name of 

their union is not prejudicial to the fair conduct of an election. Electric Wheel Co., 120 NLRB 

1644, 1646 (1958). And viewing the identity and special interests of employer observers as not 

reasonably presumed to be less well known than that of union observers, the Board holds that the 

impact on voters is not materially different “whether the observers wear prounion or antiunion 

insignia of this kind. (A hat with the words ‘Vote No.’)” Larkwood Farms, 178 NLRB 226 

(1969), and Fiber Industries, 267 NLRB 840, 850 (1983). 

Factual situations differ in many instances. In Mar-Jac Poultry Co., 123 NLRB 1571 (1959), 

the employer closed down its operations one-half hour before voting on election day, and some 

employees walked around the plant at such time wearing handmade paper hats lettered with 

words “Vote No.” An objection to the election on this ground was found to be without merit. In 

Delaware Mills, 123 NLRB 943 (1959), an employee, whose vote had been challenged, was 

required to sit at the polling place. She wore a coat, which was unbuttoned, revealing a T-shirt 

which bore the printed letters “TWUA,” and on her coat she wore a button with words “Vote 

Yes.” An objection primarily based on this behavior was overruled, the Board finding that her 

presence, “even if she in fact waved and smiled at the voters,” did not tend to so influence the 

voters as to warrant setting aside the election. In Sewanee Coal Operators’ Assn., 146 NLRB 

1145 (1964), the Board held that the presence of a crowd or a massing of voters at the entrance to 

the polling place and placard electioneering by unidentified persons on behalf of a union in the 

area outside the polls, standing alone, did not impair the exercise of free choice in the election. 

The wearing of T-shirts by union observers, bearing the union name and emblem in such a 

manner as to be visible to the voters, and the congregating of persons in an area of the polls 

during the election wearing the same type shirts were raised by way of objection in R. H Osbrink 

Mfg. Co., 114 NLRB 940 (1955), but found without merit. The Board has consistently held that 

wearing stickers, buttons, and similar campaign insignia by participants as well as observers at an 

election is, without more, not prejudicial. See also Furniture City Upholstery Co., 115 NLRB 

1433 (1956). See CHM section 11310.4 indicating that no insignia is preferred but not required of 

observers. 

A significant distinction should be drawn between the situation involved in the above cases 

and one in which the employer makes badges or other campaign insignia available to employees. 

Illustrative of the latter is Macklanburg-Duncan Co., 179 NLRB 848 (1969), where the 

employer not only utilized its supervisory personnel in furtherance of its campaign by having 

them wear buttons and T-shirts displaying proemployer and antiunion propaganda, but intended 

via the supervisors to make the antiunion materials readily available to employees who, by 

electing whether or not to wear them, would disclose their respective choices. The Board found 

such tactics constituted unlawful interference with the election. See also Garland Knitting Mills, 
342 INTERFERENCE WITH ELECTIONS 

170 NLRB 821 (1968), enfd. in material part 414 F.2d 1214 (D.C. Cir. 1969); and Chas. V. Weise 

Co., 133 NLRB 765 (1961). Compare Black Dot, Inc., 239 NLRB 929 (1978), in which the Board 

found the availability of such buttons was not objectionable as long as supervisors were not 

involved in distribution. See also Columbia Alaska Regional Hospital, 327 NLRB 876 (1998). 

But see Gonzales Packing Co., 304 NLRB 805 (1991); Barton-Nelson, Inc., 318 NLRB 712 

(1995); and Circuit City Stores, 324 NLRB 147 (1997), where the material—vote no stickers in 

Gonzales, antiunion hats in Barton, and mugs in Circuit City—was distributed by supervisors. 

24-445 Checking Off Names of Voters 

370-3533-4050-2500 

378-2857 

378-4260 

378-5625-7000 

As already indicated, Board policy prohibits the keeping of a list, apart from the official 

voting list, of persons who have voted in the election. International Stamping Co., 97 NLRB 921 

(1951). Thus, where one of the union representatives had a sheet of paper in his hand and, as 

employees passed him to enter the store where a Board election was being conducted, he made 

notations of the names of employees who had voted, the election was set aside. Piggly-Wiggly 

#011, 168 NLRB 792 (1967). Although it is the policy of the Board to prohibit the keeping of a 

list of persons who have voted in the election, it is necessary to affirmatively show or to infer 

from the circumstances that the employees knew that their names were being recorded. See Days 

Inn Management Co., 299 NLRB 735 (1992); and Hallandale Rehabilitation Center, 313 NLRB 

835 (1994). Where no such affirmative evidence of this exists or where it cannot be inferred from 

the circumstances of the case, the election is sustained. A. D. Juilliard & Co., 110 NLRB 2197, 

2199 (1954). See also Cross Pointe Paper Corp., 330 NLRB 658 (2000); Southland Containers, 

312 NLRB 1087 (1993), the cases cited therein; and Textile Service Industries, 284 NLRB 1108 

(1987), “in which the Board found unobjectionable an observer’s writing, in addition to hash 

marks, ‘unknown words’ and recognized as names while attempting to conceal the paper.” CrossPointe Corp., 315 NLRB 714 (1994). 

For example, an observer for the employer, during the morning voting session at one of the 

polling places, used a copy of the voting list to determine whether the voters as they appeared to 

vote were among those he had been instructed to challenge. Although he began by checking off 

voters on his list, doing so only as to the first few voters, he discontinued such practice when 

warned against it by the Board agent, nor was it clear that any voter was aware his name was 

being checked off. The Board concluded that any breach of the rule which may have occurred 

was de minimis and did not constitute a basis for invalidating the election. Tom Brown Drilling 

Co., 172 NLRB 1267 (1968). 

Lists of those to be challenged are of course permitted. See Cerock Wire & Cable Group, 273 

NLRB 1041 (1984), and CHM section 11338.2, but the Board prefers that the observer not use a 

duplicate Excelsior list, Mead Southern Wood Products, 337 NLRB 497 (2002). 

In two rather interesting cases, the Board did permit the employer to maintain lists where they 

were unrelated to the actual polling itself. American Nuclear Resources, 300 NLRB 567 (1990) 

(list maintained for security reasons); and Red Lion, 301 NLRB 33 (1991) (list maintained for 

payroll reasons). 

See also the discussion of Observers at section 24-424, supra. 

24-446 Filing Lawsuits 

In Novotel New York, 321 NLRB 624 (1996), a divided Board found that in the circumstances 

there the union did not engage in objectionable conduct in filing a FLSA lawsuit prior to an 

election. In doing so the Board analyzed the case in light of the court’s two-part test of Nestle 
INTERFERENCE WITH ELECTIONS 343

Dairy Systems, 311 NLRB 987 (1993), enf. denied 46 F.3d 578 (6th Cir. 1995). The elements of 

that test are: 

(1) Whether the articles offered employees are sufficiently valuable to have potential to 

 influence the vote. 

(2) Whether the potential to influence votes is without relation to the merits of the election. 

In Superior Truss & Panel, Inc., 334 NLRB 916 (2001), the Board overruled employer 

objections to a union lawyer’s comment at a union meeting that the union would file unfair labor 

practice charges after the election based on employee concerns about supervisory harassment. In 

overruling the objection, the Board noted that the “benefit” here was the filing of an unfair labor 

practice charge. In doing so, the Board noted that its decision was consistent with the rationale of 

the D.C. Circuit in Freund Baking Co., 165 F.3d 928 (D.C. Cir. 1999), which had distinguished 

filing charges from filing lawsuits. 

24-500 The Lufkin Rule 

370-2817-3366 

In Lufkin Rule Co., 147 NLRB 341 (1964), at the request of the party whose objections to 

election conduct had been sustained, the Board directed its Regional Director to include in the 

notice of the repeat election the fact that a new election would be conducted because the 

employer’s preelection conduct had interfered with the employees’ exercise of a free and 

reasoned choice and thus warranted setting aside the original election. Fieldcrest Cannon, Inc., 

327 NLRB 109 (1998). 

The employer, in opposition to the union’s request, contended that to grant the motion would 

unduly prejudice it because such a statement, having the imprimatur of the Board, would suggest 

to the employees that in view of the employer’s misconduct the Board favored a vote for the 

petitioner in the second election. The Board rejected this contention, stating that it did “not 

believe that the notice in any way indicated that the Board favors the petitioner in the second 

election” and that the “primary purpose of the notice is to provide official notification to all 

eligible voters, without detailing the specific conduct involved, as to the reason why the elections 

were set aside.” 

Prior to Lufkin Rule Co., supra, Board had “seldom heretofore exercised its discretion to 

incorporate in the election notice any language which might explain the basis for the holding of a 

new election.” 29 NLRB Ann. Rep. 63 (1964). As a result of Lufkin, the Board may, in 

appropriate circumstances, exercise this discretion. 

The notice reads as follows: 

NOTICE TO ALL VOTERS 

The elections conducted on [insert date] were set aside because the National Labor Relations 

Board found that certain conduct or the Employer [Union] interfered with the employees’ 

exercise of a free and reasoned choice. Therefore, new elections will be held in accordance 

with the terms of this notice of election. All eligible voters should understand that the 

National Labor Relations Act, as amended, gives them the right to cast their ballots as they 

see fit, and protects them in the exercise of this right, free from interference by any of the 

parties. 

For an application to this rule, see, for example, Snap-On Tools, Inc., 342 NLRB 5 (2004); 

and Bush Hog, Inc., 161 NLRB 1575 (1966). See also Monfort of Colorado, 298 NLRB 73 

(1990); and SDC Investment, 274 NLRB 556 (1985). In Miller Industries, 342 NLRB 1047 fn. 4 

(2004), the Board denied a request for a special notice but did direct a notice of election in 

accordance with Lufkin rule.
344 INTERFERENCE WITH ELECTIONS 

If the Lufkin language is not used, the notice of election should be modified to the extent that 

it should explain that the election being announced is a “rerun of the election held on [insert date 

of original election].” 

See section 22-106, for discussion of Board policy of including statement of reasons for 

rescheduling elections in the Notice of Election. 

24-600 Postelection Unit Modifications 

Under certain circumstances, the Second Circuit has held that a postelection unit modification 

may affect the outcome of an election. 

For a discussion of the cases, see section 3-880. 
TABLE OF CASES DISCUSSED

 “M” System, 115 NLRB 1316 (1956) ................................................................................................. 57, 135 

220 Television, Inc., 172 NLRB 1304 (1968) ............................................................................ 120, 121, 124 

3 Beall Bros. 3, 110 NLRB 685 (1954) ........................................................................................................ 73 

30 Sutton Place Corp., 240 NLRB 752 (1979) ............................................................................................. 11 

3-Day Blinds, Inc., 299 NLRB 110 (1990)................................................................................................. 337 

55 Liberty Owners Corp., 318 NLRB 308 (1995) ...................................................................................... 229 

A & J Cartage, 309 NLRB 263 (1992) ....................................................................................................... 276 

A & M Trucking, 314 NLRB 991 (1994) ..................................................................................................... 81 

A A Electric Co., 177 NLRB 504 (1969), 435 F.2d 1296 (8th Cir.), 404 U.S. 821 (1971), 

80 LRRM 3055 (1972)................................................................................................................................ 7 

A. A. Mathews Associates, 200 NLRB 250 (1972).................................................................................... 226 

A. C. Pavement Striping Co., 296 NLRB 206 (1989)................................................................................. 167 

A. D. Juilliard & Co., 110 NLRB 2197, 2199 (1954)................................................................................. 342 

A. Harris & Co., 116 NLRB 1628 (1957)........................................................................................... 191, 192 

A. J. Schneider & Associates, 227 NLRB 1305 (1977).............................................................................. 116 

A. L. Mechling Barge Lines, 192 NLRB 1118 (1971) ............................................................................... 132 

A. O. Smith Automotive Products Co., 315 NLRB 994 (1994).................................................................. 221 

A. O. Smith Corp. 

 166 NLRB 845 (1967) ........................................................................................................ 124, 128, 227 

 195 NLRB 955 (1972) ........................................................................................................................ 171 

A. Paladini, Inc., 168 NLRB 952 (1967) .................................................................................................... 212 

A. Russo & Sons, Inc., 329 NLRB 402 (1999)........................................................................................... 191 

A. S. Abell Co. 

 185 NLRB 144 (1970) ........................................................................................................................ 210 

 224 NLRB 425 (1976) .......................................................................................................................... 68 

A. W. Schlessinger Geriatric Center, 267 NLRB 136 (1983)..................................................................... 229 

A. Werman & Sons, 114 NLRB 629 (1956)................................................................................................. 47 

A.D.T. Co., 112 NLRB 80 (1955) ........................................................................................................ 55, 230 

A-1 Linen Service, 227 NLRB 1469 (1977)................................................................................................. 83 

AAA Cab Services, 341 NLRB 462 (2004)........................................................................................ 209, 211 

Aardvark Post, 331 NLRB 320 (2000) ....................................................................................................... 218 

ABS Corp., 299 NLRB 516 (1990)............................................................................................................. 240 

Absorbent Cotton Co., 137 NLRB 908 (1962) ....................................................................................... 64, 86 

Accetta Millwork, 274 NLRB 141 (1985) .................................................................................................. 154 

Accubuilt, Inc., 340 NLRB 1337 (2003)............................................................................................. 287, 298 

Ace Doran Hauling Co. v. NLRB, 462 F.2d 190 (6th Cir. 1972) ............................................................... 208 

Acme Brewing Co., 72 NLRB 1005 (1947) ................................................................................................. 93 

Acme Bus Corp., 316 NLRB 274 (1995).................................................................................................... 329 

Acme Markets, Inc., 328 NLRB 1208 (1999)............................................................................... 28, 128, 145 

Action Automotive; NLRB v., 469 U.S. 490 (1985) .................................................................................. 237 

Active Sportswear Co., 104 NLRB 1057 (1953) ................................................................................ 279, 330 

Adelphi University, 195 NLRB 639 (1972)........................................................................ 188, 221, 222, 254 

ADIA Personnel Services, 322 NLRB 994 (1997) ....................................................................... 39, 298, 299

Advance Electric, 268 NLRB 1001 (1984)................................................................................................. 162 

Advance Pattern Co., 80 NLRB 29 (1949) ................................................................................................... 63 

Advance Products Corp., 304 NLRB 436 (1991) ....................................................................................... 316 

Advanced Architectural Metals, Inc., 347 NLRB 1279 (2006) ............................................................ 65, 124 

Aerojet-General Corp. 

 144 NLRB 368 (1963) ........................................................................................................................ 117 

 163 NLRB 890 (1967) ........................................................................................................................ 200 

 185 NLRB 794 (1970) ........................................................................................................................ 142 

345
346 TABLE OF CASES DISCUSSED

Aeronca, Inc., 221 NLRB 326 (1975)......................................................................................................... 226 

Aerospace Corp., 331 NLRB 561 (2000).................................................................................... 131, 193, 241 

Aesthetic Designs, LLC, 339 NLRB 395 (2003)................................................................................ 334, 335 

Aetna Freight Lines, 194 NLRB 740 (1972) ................................................................................................ 60 

Aetna Iron & Steel Co., 35 NLRB 136 (1941) ........................................................................................... 135 

AF of L v. NLRB, 308 U.S. 401 (1940) ....................................................................................................... 38 

Afro Jobbing & Mfg. Corp., 186 NLRB 19 (1970) .................................................................................... 254 

AG Communication Systems Corp., 350 NLRB 168 (2007)...................................................................... 161 

Agar Supply Co., 337 NLRB 1267 (2002) ......................................................................................... 273, 275 

AGI Klearfold, Inc., LLC, 350 NLRB No. 50 (2007)................................................................................. 181 

Agrigeneral L.P., 325 NLRB 972 (1998)............................................................................................ 205, 206 

Air California, 170 NLRB 18 (1968)............................................................................................................ 19 

Air Cargo Transport, 289 NLRB 176 (1980)................................................................................................ 19 

Air Conditioning Contractors, 110 NLRB 261 (1955) ............................................................................... 167 

Air Lacarte, Florida, Inc., 212 NLRB 764 (1974)......................................................................................... 28 

Air Line Pilots Assn., 97 NLRB 929 (1951)............................................................................................... 235 

Air Liquide America Corp., 324 NLRB 661 (1997) ................................................................................... 253 

Air Transit, 271 NLRB 1108 (1984)................................................................................................... 208, 211

Airborne Express, 338 NLRB 597 (2002) .................................................................................................. 162 

Airborne Freight Corp., 142 NLRB 873 (1963)............................................................................................ 80 

Airco, Inc., 273 NLRB 348 (1984) ..................................................................................................... 128, 169 

Aircraft Turbine Service, 173 NLRB 709 (1969) ......................................................................................... 91 

Airstream, Inc., 304 NLRB 151 (1991) ...................................................................................................... 297 

Akron Cablevision, 191 NLRB 4 (1971) .................................................................................................... 113 

Akron Engraving Co., 170 NLRB 232 (1968).................................................................................... 277, 278 

Al J. Schneider & Associates, 227 NLRB 1305 (1977).............................................................................. 125 

Al Long, Inc., 173 NLRB 447 (1969)......................................................................................................... 314 

Alabama Metal Products, 280 NLRB 1090 (1986)..................................................................................... 161 

Aladdin Hotel, 179 NLRB 362 (1969)........................................................................................................ 173 

Aladdin Hotel, 270 NLRB 838 (1984)........................................................................................................ 219 

Alamo Rent-A-Car, 330 NLRB 897 (2000).................................................................. 50, 145, 148, 149, 150 

Alanis Airport Services, 316 NLRB 1233 (1995)......................................................................................... 59 

Alaska Salmon Industry, 90 NLRB 168 (1950).......................................................................................... 107 

Alaska Steamship Co., 172 NLRB 1200 (1968) ................................................................................. 121, 122 

Albany Medical College, 239 NLRB 853 (1978) ......................................................................................... 13 

Albert Lea Creamery Assn., 119 NLRB 817 (1957)................................................................................... 211 

Albertson’s Inc. 

 270 NLRB 132 (1984) ........................................................................................................................ 160 

 273 NLRB 286 (1984) .......................................................................................................................... 71 

 307 NLRB 338 (1992) .................................................................................................................... 71, 96 

Albertson’s/Max Food Warehouse, 329 NLRB 410 (1999) ............................................................... 108, 126 

Albuquerque Insulation Contractor, 256 NLRB 61 (1981)........................................................................... 67 

Alco Iron & Metal Co., 269 NLRB 590 (1984).................................................................................. 323, 335 

Alcohol & Drug Dependency Services, 326 NLRB 519 (1998)................................................................. 306 

Alexander Bistrikzky, 323 NLRB 524 (1997) .................................................................................... 161, 162 

ALJUD Licensed Home Care Services, 345 NLRB 1089 (2005)................................................................. 96 

All County Electric Co., 332 NLRB 863 (2000)................................................................................... 39, 162 

Allan, Lane & Scott, 137 NLRB 223 (1962) .............................................................................................. 258 

Allegheny Pepsi-Cola Bottling Co., 222 NLRB 1298 (1976)..................................................................... 108

Allen B. Dumont Laboratories, 88 NLRB 1069 (1950)................................................................................ 58 

Allen Health Care Services, 332 NLRB 1308 (2000)........................................................................... 36, 128 

Allen Services Co., 314 NLRB 1060 (1994) ...................................................................... 212, 213, 228, 238 

Allen’s Electric Co., 340 NLRB 1012 (2003)............................................................................................. 336 

Allen-Bradley Co., 168 NLRB 15 (1968)................................................................................................... 198 

Allenbrook Healthcare Center, 331 NLRB 1065 (2000) ............................................................................ 340 

Allen-Morrison Sign Co., 138 NLRB 73 (1962) ................................................................................ 304, 305 
TABLE OF CASES DISCUSSED 347

Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998) ............................................................... 68 

Allied Acoustics, 300 NLRB 1183 (1990).................................................................................................. 321 

Allied Beverage Distributing Co., 143 NLRB 149 (1963)...................................................................... 93, 95 

Allied Chemical Corp. 

 165 NLRB 235 (1967) ............................................................................................................ 43, 47, 197 

 196 NLRB 483 (1972) .................................................................................................................... 88, 89 

Allied Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157 (1971)................................................. 276 

Allied Electric Products, 109 NLRB 1270 (1954).............................................................................. 303, 336 

Allied Gear & Machine Co., 250 NLRB 679 (1980) .................................................................................. 130 

Allied Mechanical Services, 352 NLRB No. 83 (2008)........................................................................ 70, 119 

Allied Stores of Ohio, 175 NLRB 966 (1969) ............................................................................................ 246 

Allied Super Markets, 167 NLRB 361 (1967) .................................................................................... 113, 185 

Allied Trades Council, 342 NLRB 1010 (2004)........................................................................................... 65 

Allis-Chalmers Mfg. Co. 

 117 NLRB 749 (1957) ........................................................................................................................ 242 

 179 NLRB 1 (1969) .............................................................................................................................. 99 

Allstate Insurance Co. 

 171 NLRB 142 (1968) ........................................................................................................................ 178 

 176 NLRB 94 (1969) .......................................................................................................................... 108 

 191 NLRB 339 (1971) ........................................................................................................................ 177 

 332 NLRB 759 (2000) ................................................................................................................ 214, 235 

All-Work, Inc., 193 NLRB 918 (1971)....................................................................................................... 249 

Almacs Inc., 176 NLRB 670 (1969) ..................................................................................................... 85, 261 

Alois Box Co., 326 NLRB 1177 (1998) ............................................................................................. 213, 217 

Alpha School Bus Co., 287 NLRB 698 (1987)........................................................................................... 253 

Alterman Transport Lines, 178 NLRB 122 (1969)............................................................................. 170, 171 

Alterman-Big Apple, Inc., 116 NLRB 1078 (1956) ........................................................................... 329, 330 

Alto Plastics Mfg. Corp., 136 NLRB 850 (1962) ......................................................................................... 54 

Alton Box Board Co., 164 NLRB 919 (1967) ............................................................................................ 197 

Alyeska Pipeline Service Co. 

 261 NLRB 125 (1982) ........................................................................................................................ 301 

 348 NLRB 808 (2006) ........................................................................................................................ 183 

AM Property Holding Corp., 350 NLRB No. 80 (2007) ............................................................................ 162 

Amalgamated Bank of New York, 92 NLRB 545 (1951)............................................................................... 4 

Amax Aluminum Extrusion Products, 172 NLRB 1401 (1968) ................................................................. 322 

Ameraglass Co., 323 NLRB 701 (1997)..................................................................................................... 300 

Ameri Health HMO, 326 NLRB 509 (1998) .............................................................................................. 212 

American Arbitration Assn., 225 NLRB 291 (1976) .................................................................................... 60 

American Automobile Assn. 

 172 NLRB 1276 (1968) ...................................................................................................................... 177 

 242 NLRB 722 (1979) ........................................................................................................................ 178 

American Beef Packers, 169 NLRB 215 (1968)......................................................................................... 103 

American Bosch Arma Corp., 163 NLRB 650 (1967)................................................................................ 197 

American Bread Co., 170 NLRB 91 (1968) ................................................................................................. 39 

American Broadcasting Co. 

 114 NLRB 7 (1956) .............................................................................................................................. 82 

 153 NLRB 259 (1965) ........................................................................................................................ 187 

American Building Maintenance Co., 126 NLRB 185 (1960).................................................................... 129 

American Commercial Barge Line Co., 337 NLRB 1070 (2002)............................................... 212, 216, 220 

American Concrete Pipe of Hawaii, 128 NLRB 720 (1960) ................................................................ 85, 109 

American Cyanamid Co., 131 NLRB 909 (1961)....................................................................................... 201 

American District Telegraph Co. 

 128 NLRB 345 (1960) ........................................................................................................................ 228 

 160 NLRB 1130 (1966) .............................................................................................................. 228, 229 

American District Telegraph Co.; NLRB v., 205 F.2d 86 (3d Cir. 1953)................................................... 229 

American Driver Service, 300 NLRB 754 (1990) ...................................................................................... 325 
348 TABLE OF CASES DISCUSSED

American Dyewood, 99 NLRB 78 (1952) .................................................................................................... 80 

American Federation of Labor, 120 NLRB 969 (1958).............................................................................. 237 

American Freightways, 327 NLRB 832 (1999).......................................................................................... 299 

American Laundry Machinery Division, 234 NLRB 630 (1978) ............................................................... 307 

American Lawn Mower Co., 108 NLRB 1589 (1954) ................................................................................. 63 

American League of Professional Baseball Clubs, 180 NLRB 190 (1970) .................................................. 15 

American Lung Assn., 296 NLRB 12 (1989) ............................................................................................... 23 

American Medical Response 

 339 NLRB 23 (2003) .................................................................................................................. 312, 339 

 344 NLRB 1406 (2005) .............................................................................................................. 226, 259 

 346 NLRB 1004 (2006) .............................................................................................................. 110, 116 

American Metal Products, 139 NLRB 601 (1962) ............................................................................. 116, 279 

American Molded Products Co., 134 NLRB 1446 (1962).......................................................................... 316

American Motors Corp., 206 NLRB 287 (1973) ........................................................................................ 242 

American Nuclear Resources, 300 NLRB 567 (1990)................................................................................ 342 

American Oil Co., 188 NLRB 438 (1971).................................................................................................. 211 

American Potash Corp., 107 NLRB 1418 (1954) ....................................................................... 195, 196, 262

American Publishing Corp., 121 NLRB 115 (1958)........................................................................... 155, 156 

American Radiator Corp. 

 114 NLRB 1151 (1956) ...................................................................................................................... 138 

 119 NLRB 1715 (1958) .............................................................................................................. 234, 236 

American Red Cross Blood Services, 322 NLRB 401 (1996).................................................................... 312 

American Red Cross Missouri-Illinois Blood Services Region, 347 NLRB 347 (2006)............................ 328 

American River Transportation Co., 347 NLRB 925 (2006)...................................................................... 216 

American Safety Equipment Corp., 234 NLRB 501 (1978) ....................................................................... 289 

American Sunroof Corp., 243 NLRB 1128 (1979)................................................................................. 73, 91 

American Thoro-Clean Ltd., 283 NLRB 1107 (1987)................................................................................ 106 

American Tobacco Co. 

 9 NLRB 579 (1938) ............................................................................................................................ 135 

 115 NLRB 218 (1956) ........................................................................................................................ 258 

American Totalisator Co., 264 NLRB 1100 (1982)...................................................................................... 21 

American Tube Bending Co.; NLRB v., 134 F.2d 993 (2d Cir. 1943), cert. denied 

320 U.S. 708 (1943)........................................................................................................................ 290, 291 

American Zoetrope Productions, 207 NLRB 621 (1973) ........................................................................... 282 

American-Republican, 171 NLRB 43 (1968) ............................................................................................. 181 

Americare-Lexington Health Care Center, 316 NLRB 1226 (1995) .......................................................... 109 

Amerihealth Inc./Amerihealth HMO 

 326 NLRB 509 (1998) .......................................................................................................................... 35 

 329 NLRB 870 (1999) ........................................................................................................................ 208 

Ameron, Inc., 288 NLRB 747 (1988) ......................................................................................................... 143 

AMF Inc., 193 NLRB 1113 (1971)............................................................................................................. 123 

Amoco Oil Corp., 289 NLRB 280 (1988)................................................................................................... 273 

Amperex Electric Corp., 109 NLRB 353 (1954) .......................................................................................... 67 

Anchor Coupling Co., 171 NLRB 1196 (1968).......................................................................................... 321 

Anchortank, Inc., 233 NLRB 295 (1977) ....................................................................................................... 2 

Andel Jewelry Corp., 326 NLRB 507 (1998) ............................................................................................. 311 

Andes Fruit Co., 124 NLRB 781 (1959)......................................................................................................... 4 

Andrews Industries, 105 NLRB 946 (1953) ............................................................................................... 135 

Angelica Healthcare Services 

 280 NLRB 864 (1986) ........................................................................................................................ 338 

 315 NLRB 1320 (1995) ........................................................................................................................ 35 

Angelus Furniture Mfg. Co., 192 NLRB 992 (1971).................................................................................. 147 

Anheuser-Busch, Inc. 

 170 NLRB 46 (1968) .......................................................................................................................... 202 

 246 NLRB 29 (1979) ............................................................................................................................ 66 

Animated Film Producers Assn., 200 NLRB 473 (1973) ........................................................................... 199 
TABLE OF CASES DISCUSSED 349

Ankh Services, 243 NLRB 478 (1979)....................................................................................................... 207 

Ansted Center, 326 NLRB 1208 (1998) ..................................................................................................... 253 

AP Automotive Systems, 333 NLRB 581 (2001)....................................................................................... 293 

Apex Paper Box, 302 NLRB 67 (1991)...................................................................................... 249, 274, 276 

Apex Tankers Co., 257 NLRB 685 (1981) ....................................................................................... 58, 80, 91 

APF Carting, Inc., 336 NLRB 73 (2001).................................................................................................... 162 

Appalachian Shale Products Co., 121 NLRB 1160 (1958)............................................. 77, 78, 79, 81, 82, 97 

ARA Living Centers, 300 NLRB 888 (1990) ............................................................................................. 297 

Aramark Corp. v. NLRB, 156 F.3d (10th Cir. 1998).................................................................................... 12 

Aramark School Services, 337 NLRB 1063 (2002)................................................................................ 38, 92 

Aramark Sports & Entertainment Services, 327 NLRB 47 (1998)................................................... 37, 79, 82 

Arbor Construction Personnel, Inc., 343 NLRB 257 (2004)....................................................................... 154 

Arbors at New Castle, 347 NLRB 544 (2006)............................................................................................ 325 

Arcata Plywood Corp., 120 NLRB 1648 (1958)......................................................................................... 132 

Archer Daniels Midland Co., 333 NLRB 673 (2001) ........................................................................... 69, 122 

Archer Laundry Co., 150 NLRB 1427 (1965) ............................................................................................ 305 

Archer Services, 298 NLRB 312 (1990)............................................................................................. 298, 337 

Architectural Contractors Trade Assn., 343 NLRB 259 (2004).................................................................. 154

Arcus Data Security Systems, 324 NLRB 496 (1997)................................................................................ 229 

Argix Direct, Inc., 343 NLRB 1017 (2004)................................................................................................ 209 

Argus-Press Co., 311 NLRB 24 (1993) ...................................................................................................... 325 

Aristocrat Linen Supply Co., 150 NLRB 1448 (1965) ............................................................................... 305 

Arizona Public Service Co. 

 325 NLRB 723 (1998) ........................................................................................................................ 341 

 256 NLRB 400 (1981) ........................................................................................................................ 142 

 310 NLRB 477 (1993) ........................................................................................................................ 214 

 349 NLRB 1040 (2007) ...................................................................................................................... 210 

Arlington Electric, 332 NLRB 845 (2000) ................................................................................................. 217 

Arlington Hotel Co., 126 NLRB 400 (1960) .............................................................................................. 176 

Arlington Masonry Supply, Inc., 339 NLRB 817 (2003) ................................................... 216, 245, 253, 273 

Armco Steel Co., 312 NLRB 257 (1993).............................................................................. 42, 123, 125, 144 

Armour & Co. 

 40 NLRB 1333 (1942) .......................................................................................................... 80, 257, 260 

 119 NLRB 122 (1958) ........................................................................................................................ 134 

 119 NLRB 623 (1958) ........................................................................................................................ 238 

Armstrong Cork Co., 80 NLRB 1328 (1949) ............................................................................................. 200 

Armstrong Machine Co., 343 NLRB 1149 (2004).............................................................................. 215, 217 

Armstrong Rubber Co. 

 144 NLRB 1115 (1963) ...................................................................................................... 138, 239, 262 

 180 NLRB 410 (1970) ........................................................................................................................ 142 

Arnold Constable Corp., 150 NLRB 788 (1965) ........................................................................................ 184 

Arnold Stone Co., 102 NLRB 1012 (1953) ................................................................................................ 322 

Arrow Co., 147 NLRB 829 (1964) ......................................................................................................... 80, 84 

Arrow Rock Materials, 284 NLRB 1 (1987) .................................................................................................. 3 

Arrow Uniform Rental, 300 NLRB 246 (1990)................................................................................... 71, 160 

Artcraft Displays, 262 NLRB 1233 (1982)........................................................................................... 79, 154 

Arthur C. Logan Memorial Hospital, 231 NLRB 778 (1977)..................................................................... 122 

Asamera Oil (U.S.) Inc., 251 NLRB 684 (1980) ........................................................................................ 125 

ASG Industries, 190 NLRB 557 (1971)...................................................................................................... 199 

Ashland Chemical Co., 295 NLRB 1039 (1989) ........................................................................................ 321 

Aspen Skiing Corp., 143 NLRB 707 (1963)................................................................................... 9, 250, 251 

Asplundh Tree Export Co. 

 283 NLRB 1 (1987) ............................................................................................................................ 327 

 336 NLRB 1106 (2001) ........................................................................................................................ 21 

Assn. For Retarded Citizens (Opportunities Unlimited), 327 NLRB 463 (1999)....................................... 101 

Associated Constructors, 315 NLRB 1255 (1995)...................................................................................... 276 
350 TABLE OF CASES DISCUSSED

Associated Dry Goods Corp. 

 117 NLRB 1069 (1957) ........................................................................................................................ 58 

 150 NLRB 812 (1965) .......................................................................................................................... 59 

Associated General Contractors, 201 NLRB 311 (1973)............................................................................ 208 

Associated Grocers, 142 NLRB 576 (1963) ............................................................................................... 136 

Associated Milk Producers 

 237 NLRB 879 (1978) ........................................................................................................................ 310 

 250 NLRB 1407 (1970) ...................................................................................................................... 130 

Associated Milk Producers, Inc. v. NLRB, 193 F.3d 539 (D.C. Cir. 1999) ............................................... 284 

Associated Rubber Co., 332 NLRB 1588 (2000)........................................................................ 268, 313, 314 

AT Systems West, Inc., 341 NLRB 7 (2004) ............................................................................................. 117 

Athbro Precision Engineering Corp., 166 NLRB 966 (1967), enfd. 423 F.2d 571 (1970) ................. 320, 322 

Atlanta Hilton & Towers, 273 NLRB 87 (1984) ................................................................................ 130, 177 

Atlantic Dairies Cooperative, 283 NLRB 327 (1987)................................................................................. 275 

Atlantic Industrial Constructors, Inc., 324 NLRB 355 (1997).................................................... 265, 266, 281 

Atlantic International Corp., 228 NLRB 1308 (1977) ................................................................................ 325 

Atlantic Limousine, 331 NLRB 1025 (2000) ..................................................................................... 336, 339 

Atlantic Refinery Co., 106 NLRB 1268 (1953).......................................................................................... 265 

Atlantic-Pacific Mfg. Corp., 121 NLRB 783 (1958) .................................................................................... 68 

Atlas Sheet Metal Works, 148 NLRB 27 (1964) ........................................................................................ 159 

Atlas Transit Mix Corp., 323 NLRB 1144 (1997) ...................................................................................... 159 

ATS Acquisition Corp., 321 NLRB 712 (1996) ................................................................................. 123, 143 

Auburn Rubber Co., 140 NLRB 919 (1963)................................................................................................. 98 

Auciello Iron Workers, 317 NLRB 364, 374 (1995) .................................................................................... 69 

Audiovox Communications Corp., 323 NLRB 647 (1997) ........................................................................ 241 

Augusta Chemical Co., 124 NLRB 1021 (1959) ................................................................................ 219, 241 

Aurora Fast Freight, 324 NLRB 20 (1997)................................................................................................. 239 

Aurora Moving & Storage Co., 175 NLRB 771 (1969).................................................................................. 4 

Austal USA, L.L.C., 349 NLRB No. 51 (2007).......................................................................................... 216 

Austell Natural Gas System, 186 NLRB 280 (1970).................................................................................... 18 

Austill Waxed Paper Co., 169 NLRB 1109 (1968)..................................................................................... 321 

Austin Powder Co., 201 NLRB 566 (1973).................................................................................................. 78 

Austin Tupler Trucking, 261 NLRB 183 (1983)......................................................................................... 209 

Auto Workers (Fanelli Ford), 133 NLRB 1468 (1961) ................................................................................ 74 

Autodie International, Inc., 321 NLRB 688 (1996) .................................................................................... 330 

Autohaus-Bugger, Inc., 173 NLRB 184 (1969)............................................................................................ 74 

Automated Business Systems, 189 NLRB 124 (1971) ........................................................................... 91, 92 

Automatic Heating Co. 

 100 NLRB 571 (1951) ........................................................................................................................ 167 

 194 NLRB 1065 (1972) .................................................................................................................. 45, 61 

Avante at Boca Raton, Inc. 

 323 NLRB 555 (1997) ........................................................................................................ 329, 331, 335 

 334 NLRB 381 (2001) .................................................................................................................. 70, 120 

 348 NLRB 1056 (2006) ...................................................................................................................... 216 

Avco Corp. 

 173 NLRB 1199 (1969) ...................................................................................................................... 241 

 308 NLRB 1045 (1992) ...................................................................................................................... 253 

 313 NLRB 1357 (1994) ...................................................................................................................... 226 

Avecor, Inc., 309 NLRB 59 (1992) ............................................................................................................ 239 

Averill Plumbing Corp., 153 NLRB 1595 (1965)....................................................................................... 156 

Aviation Safeguards, 338 NLRB 770 (2003)................................................................................................ 19 

Avis Rent-A-Car, 324 NLRB 445 (1997)................................................................................................... 267 
TABLE OF CASES DISCUSSED 351

Avis Rent-A-Car System 

 173 NLRB 1366 (1968) ...................................................................................................................... 212 

 173 NLRB 1368 (1968) ...................................................................................................................... 212 

 280 NLRB 580 (1986) ........................................................................................................................ 296 

Avon Products, 262 NLRB 46 (1982)......................................................................................................... 306 

Avondale Shipyards, 174 NLRB 73 (1969).................................................................................................. 48 

AWB Metal, Inc., 306 NLRB 109 (1992)................................................................................................... 303 

Awning Research Institute, 116 NLRB 505 (1957)...................................................................................... 58 

Azusa Ranch Market, 321 NLRB 811 (1996)..................................................................................... 213, 217 

B & B Beer Distributing Co., 124 NLRB 1420 (1960)........................................................................... 88, 90 

B & B Better Baked Foods, 208 NLRB 493 (1974) ................................................................................... 323 

B & D Plastics, 302 NLRB 245 (1991)....................................................................................................... 340 

B. Brody Seating Co., 167 NLRB 830 (1967) .................................................................................... 154, 158 

B. F. Goodrich Co., 115 NLRB 722 (1956)........................................................................................ 233, 234 

B. J. Titan Service Co., 296 NLRB 668 (1989) .......................................................................................... 289 

B. P. Alaska, Inc., 230 NLRB 986 (1977) .................................................................................................. 258 

Baddour, Inc., 303 NLRB 275 (1991)......................................................................................................... 293 

Baggett Bulk Transport, 193 NLRB 287 (1971)........................................................................................... 85 

Bailey Department Stores Co., 120 NLRB 1239 (1958)............................................................................. 247 

Baker Victory Services, 331 NLRB 1068 (2000) ....................................................................................... 330 

Bakersfield Californian 

 152 NLRB 1683 (1965) ...................................................................................................................... 181 

 316 NLRB 1211 (1995) .............................................................................................. 217, 218, 233, 237 

Baldwin Auto Co. 

 178 NLRB 88 (1969) ............................................................................................................................ 99 

 180 NLRB 488 (1970) .......................................................................................................................... 78 

Baldwin Co., 81 NLRB 927 (1949) ........................................................................................................ 93, 95 

Balfre Gear & Mfg. Co., 115 NLRB 19 (1956) .......................................................................................... 329 

Bally’s Atlantic City, 338 NLRB 443 (2002) ............................................................................................. 116 

Bally’s Park Place 

 255 NLRB 63 (1981) .......................................................................................................................... 173 

 259 NLRB 829 (1982) ........................................................................................................................ 173 

Baltimore Gas & Electric, 330 NLRB 3 (1999)............................................................................................ 75 

Baltimore Luggage Co., 162 NLRB 1230 (1967)....................................................................................... 305 

Baltimore Sun Co. v. NLRB, 257 F.3d 419 (4th Cir. 2001) ....................................................................... 139 

Baltimore Sun Co., 296 NLRB 1023 (1989)............................................................................................... 123 

Bama Co., 145 NLRB 1141 (1964) ............................................................................................................ 221 

Bamberger’s Paramus, 151 NLRB 748 (1965) ........................................................................................... 127 

Bambury Fashions, 179 NLRB 447 (1969) .................................................................................................. 59 

Banco Credito y Ahorro Ponceno v. NLRB, 390 F.2d 110 (1st Cir. 1968) ................................................ 165 

Banco Credito y Ahorro Ponceno, 160 NLRB 1504 (1966) ....................................................... 165, 166, 236 

Bank of America National Trust & Savings Assn.; NLRB v., 130 F.2d 624 (9th Cir. 1942)......................... 4 

Bank of America, 196 NLRB 591 (1972)................................................................................... 130, 148, 165 

Banner Bedding, 214 NLRB 1013 (1974) .................................................................................................. 284 

Baptist Home for Senior Citizens, 290 NLRB 1059 (1988) ....................................................................... 337 

Barber-Colman Co., 130 NLRB 478 (1961)................................................................................. 47, 147, 149 

Bargain City, U.S.A., 131 NLRB 803 (1961)............................................................................................... 79 

Bargain Town U.S.A., 162 NLRB 1145 (1967) ......................................................................................... 180 

Barnes-Hind Pharmaceuticals, 183 NLRB 301 (1970)............................................................................... 225 

Barre-National, Inc., 316 NLRB 877 (1995) ................................................................................................ 35 

Barron Heating & Air Conditioning, Inc., 343 NLRB 450 (2004) ..................................................... 131, 166 

Barry Controls, 113 NLRB 26 (1955)......................................................................................................... 273 

Bartlett Collins Co., 334 NLRB 484 (2001) ....................................................................................... 127, 134 

Barton-Nelson, Inc., 318 NLRB 712 (1995)............................................................................................... 342 

Bashas’, Inc., 337 NLRB 710 (2002).......................................................................................................... 146 

Batesville Casket Co., 283 NLRB 795 (1987)............................................................................................ 143 
352 TABLE OF CASES DISCUSSED

Batley Janss Enterprises, 195 NLRB 310 (1972)........................................................................................ 206 

Baton Rouge Water Works Co., 170 NLRB 1183 (1968)........................................................................... 140

Baugh Chemical Co., 150 NLRB 1034 (1965)............................................................................. 66, 251, 280 

Baumer Foods, 190 NLRB 690 (1971)....................................................................................................... 250 

Bausch & Lomb Optical Co., 108 NLRB 1555 (1954)........................................................................... 59, 61 

Bayside Enterprises v. NLRB, 429 U.S. 298 (1977)........................................................................... 205, 206 

Beacon Journal Publishing Co., 188 NLRB 218 (1971) ............................................................................. 210 

Beacon Photo Service, 163 NLRB 706 (1967) ............................................................................................. 84 

Bear Truss, Inc., 325 NLRB 1162 (1998)................................................................................................... 309 

Beatrice Grocery Products, 287 NLRB 302 (1987) .................................................................................... 305 

Beaunit Corp., 224 NLRB 1502 (1976)...................................................................................... 196, 197, 198 

Beck Engraving Co.; NLRB v., 487 U.S. 735 (1988)................................................................................. 101 

Beco Industries, 197 NLRB 1105 (1972) ................................................................................................... 184 

Bedford Gear & Machine Products, 150 NLRB 1 (1964)........................................................................... 120 

Beech Aircraft Corp., 170 NLRB 1595 (1968)........................................................................................... 239 

Bekaert Steel Wire Corp., 189 NLRB 561 (1971) ...................................................................................... 114 

Bell & Howell Airline Service Co., 185 NLRB 67 (1970) ................................................................... 71, 247

Bell Aerospace, 219 NLRB 384 (1975)...................................................................................................... 235 

Bell Aerospace Co. 

 190 NLRB 431 (1971) ........................................................................................................................ 236 

 190 NLRB 509 (1971) ........................................................................................................................ 114 

 196 NLRB 827 (1972) ........................................................................................................................ 236 

Bell Aerospace Co.; NLRB v., 416 U.S. 267 (1974) .................................................................................. 236 

Bell Aerospace; NLRB v., 416 U.S. 267 (1974)......................................................................................... 235 

Bell Convalescent Hospital, 337 NLRB 191 (2001)................................................................................... 285 

Bell Glass Co., 293 NLRB 700 (1989) ......................................................................................................... 24 

Bell Industries, 139 NLRB 629 (1962)....................................................................................................... 137 

Bell Security, 308 NLRB 80 (1992) ........................................................................................................... 316 

Belleville Employing Printers, 122 NLRB 350 (1959)................................................................. 14, 155, 156

Belleville News Democrat, 185 NLRB 1000 (1970) .................................................................................. 158 

Bells Trans, 297 NLRB 280 (1989)............................................................................................................ 315 

Beloit Corp., 310 NLRB 637 (1993)........................................................................................................... 262 

Benavent & Fournier, Inc., 208 NLRB 638 (1974) .................................................................................... 322 

Benchmark Mechanical Contractors, Inc., 327 NLRB 829 (1999)............................................. 213, 218, 219 

Bendix Corp. 

 150 NLRB 718 (1965) ........................................................................................................................ 242 

 168 NLRB 371 (1968) ........................................................................................................................ 123 

Benjamin Coal Co., 294 NLRB 572 (1989)................................................................................................ 305 

Benjamin Franklin Paint Co., 124 NLRB 54 (1959)..................................................................................... 86 

Bennett Industries, 313 NLRB 1363 (1994) ................................................................................................. 36 

Bennett Stone Co., 139 NLRB 1422 (1962) ................................................................................. 92, 154, 155 

Benson Contracting Co. v. NLRB, 941 F.2d 1262 (D.C. Cir. 1991) .......................................................... 253 

Benson Veneer Co., 156 NLRB 781 (1966) ............................................................................................... 314 

Berea Publishing Co., 140 NLRB 516 (1963) ...................................................................... 14, 129, 246, 253 

Bergen Knitting Mills, 122 NLRB 801 (1959) ............................................................................................. 67 

Berlitz School of Languages, 231 NLRB 766 (1977)......................................................................... 247, 282 

Bernel Foam Products Co., 146 NLRB 1277 (1964) .................................................................................. 289 

Bernson Silk Mills, 106 NLRB 826 (1953) .................................................................................................. 70 

Berry Schools, 234 NLRB 942 (1978)........................................................................................................ 222 

Best Products Co., 269 NLRB 578 (1984).................................................................................................. 327 

Best Western City View Motor Inn 

 325 NLRB 1186 (1998) ...................................................................................................................... 268 

 327 NLRB 468 (1999) ........................................................................................................................ 268 
TABLE OF CASES DISCUSSED 353

Bethlehem Steel Corp. 

 329 NLRB 241 (1999) ........................................................................................................................ 123 

 329 NLRB 243 (1999) ................................................................................................................ 121, 123 

 329 NLRB 245 (1999) ........................................................................................................................ 123 

Bethlehem’s Globe Publishing Co., 74 NLRB 392 (1947)......................................................................... 181 

Better Electric Co., 129 NLRB 1012 (1961)................................................................................................... 3 

Beverly Farm Foundation, 218 NLRB 1275 (1975) ..................................................................................... 13 

Beverly Health & Rehabilitation Services, 335 NLRB 635 (2001) ............................................................ 216 

Beverly Manor Health Care Center, 322 NLRB 881 (1997) ...................................................................... 109 

Beverly Manor Nursing Home, 310 NLRB 538 (1993).............................................................. 247, 252, 273 

Beverly Manor-San Francisco, 322 NLRB 968 (1997) .............................................................................. 140 

BFI Waste Systems, 334 NLRB 934 (2001)............................................................................................... 340 

Bibb Mfg. Co., 82 NLRB 338 (1949) ......................................................................................................... 303 

Biewer Wisconsin Sawmill, 312 NLRB 506 (1993)........................................................................... 214, 218 

Big “N,” Department Store No. 307, 200 NLRB 935 (1972) ............................................................... 57, 255 

Big East Conference, 282 NLRB 335 (1986) ............................................................................................. 208 

Big Rivers Electric Corp., 266 NLRB 380 (1983)...................................................................................... 214 

Big Three Industries, 201 NLRB 197 (1973).............................................................................................. 115 

Big Y Foods 

 238 NLRB 855 (1978) .................................................................................................................. 47, 132 

 238 NLRB 860 (1978) ........................................................................................................................ 183 

Big Y Supermarkets, 161 NLRB 1263 (1966)............................................................................................ 185 

Bill Heath, Inc., 89 NLRB 1555 (1949)...................................................................................................... 273 

Billows Electric Supply, 311 NLRB 878 (1993) ................................................................................ 218, 219 

Bi-Lo Foods, 315 NLRB 695 (1994) .......................................................................................................... 288 

Bio-Medical of Puerto Rico, 269 NLRB 827 (1984).......................................................................... 316, 339 

Bio-Medical of San Diego, 216 NLRB 631 (1975) ...................................................................................... 13 

Bionetics Corp., 323 NLRB 639 (1997) ..................................................................................................... 341 

Birmingham Cartage Co., 193 NLRB 1057 (1971) .................................................................................... 274 

Birmingham Fabricating Co., 140 NLRB 640 (1963) ........................................................................ 213, 219

Bishop Mugavero Center, 322 NLRB 209 (1996) ...................................................................................... 335 

Bishop-Hansel Ford Sales, 180 NLRB 987 (1970)..................................................................................... 310 

Bi-States Co., 117 NLRB 86 (1957) ............................................................................................................. 59 

BKN, Inc., 333 NLRB 143 (2001).............................................................................................................. 208 

Black & Decker Mfg. Co., 147 NLRB 825 (1964)..................................................................................... 150 

Black Dot, Inc., 239 NLRB 929 (1978)...................................................................................................... 342 

Bloch Enterprises, 172 NLRB 1678 (1968).............................................................................................. 7, 24 

Blue Grass Industries, 287 NLRB 274 (1987) ............................................................................................ 243 

Blue Onion, 175 NLRB 9 (1969)................................................................................................................ 308 

Blue Star Ready-Mix Concrete Corp., 305 NLRB 429 (1991)................................................... 214, 221, 237 

Bluff City Transfer Co., 184 NLRB 604 (1970)........................................................................................... 90 

Blumenfeld Theatres Circuit, 240 NLRB 206 (1979)................................................................................. 161 

Board of Education; Brown v., 349 U.S. 294 (1955).................................................................................. 103 

Boaz Spinning Co. v. NLRB, 439 F.2d 876 (6th Cir. 1971)....................................................................... 294 

Bob’s Ambulance Service, 178 NLRB 1 (1969)..................................................................................... 3, 246 

Bob’s Big Boy Family Restaurant 

 235 NLRB 1227 (1978) .................................................................................................................. 81, 96 

 259 NLRB 153 (1981) .......................................................................................................................... 93 

Bob’s Big Boy Family Restaurant; NLRB v., 625 F.2d 850 (9th Cir. 1980)................................................ 81 

BOC Group, 323 NLRB 1100 (1997)......................................................................................................... 112 

Bodine Produce Co., 147 NLRB 832 (1964) .............................................................................................. 205 

Boeing Airplane Co., 86 NLRB 368 (1949) ................................................................................................. 49 
354 TABLE OF CASES DISCUSSED

Boeing Co. 

 169 NLRB 916 (1968) ........................................................................................................................ 242 

 328 NLRB 128 (1999) ........................................................................................................................ 228 

 337 NLRB 152 (2001) ........................................................................................................................ 127 

 349 NLRB 957 (2007) ................................................................................................................ 140, 142 

Bogus Basin Recreation Assn., 212 NLRB 833 (1974)........................................................ 50, 250, 251, 280 

Boise Cascade Corp., 178 NLRB 673 (1969) ............................................................................................... 93 

Bolivar-Tees, Inc., 349 NLRB 720 (2007) ................................................................................................. 161 

Bon Appetit Management Co., 334 NLRB 1042 (2001) .................................................................... 297, 306 

Bon Harbor Nursing & Rehabilitation Center, 348 NLRB 1062 (2006) ...................................................... 39 

Bon Marche, 308 NLRB 184 (1992) .......................................................................................................... 340 

Bond Stores, 99 NLRB 1029 (1951)........................................................................................................... 184 

Bonded Armored Carrier, 195 NLRB 346 (1972) .............................................................................. 129, 230 

Bonita Ribbon Mills, 87 NLRB 1115 (1949).............................................................................................. 325 

Bonwit Teller, Inc., 96 NLRB 608 (1951).................................................................................................. 307 

Borden Co., 120 NLRB 1447 (1958)............................................................................................................ 49 

Bordo Products Co., 119 NLRB 79 (1957)................................................................................................. 328 

Borg-Warner Corp., 113 NLRB 152 (1955) ............................................................................................... 140 

Bosart Co., 314 NLRB 245 (1994) ............................................................................................................. 327 

Boston Cab Assn., 177 NLRB 64 (1969)........................................................................................................ 4 

Boston College, 187 NLRB 133 (1971)........................................................................................................ 10 

Boston Insulated Wire Co., 259 NLRB 1118 (1982).................................................................................. 339 

Boston Medical Center, 330 NLRB 152 (1999) ......................................................................................... 252 

Boston University, 281 NLRB 798 (1986) ................................................................................................. 188 

Boston University v. NLRB, 575 F.2d 301 (1st Cir. 1978) ........................................................................ 189 

Bowie Hall Trucking, 290 NLRB 41 (1988) .............................................................................. 146, 148, 170 

Bowling Green Foods, 196 NLRB 814 (1972) ............................................................................................. 95 

Bowman Dairy Co., 123 NLRB 707 (1959) ................................................................................................. 83 

Bowman Transportation 

 120 NLRB 1147 (1958) .................................................................................................................. 44, 50 

 142 NLRB 1093 (1963) ........................................................................................................................ 67 

Bradford College, 211 NLRB 565 (1974)................................................................................................... 189 

Bradford-Robinson Printing Co., 193 NLRB 928 (1971)........................................................................... 123 

Bradley Steel, Inc., 342 NLRB 215 (2004)................................................................................................. 130 

Branch Cheese, 307 NLRB 239 (1992) ........................................................................................................ 79 

Brand Precision Services, 313 NLRB 657 (1994) ...................................................................................... 131 

Brannan Sand & Gravel 

 289 NLRB 977 (1988) ........................................................................................................................ 106 

 308 NLRB 922 (1992) ........................................................................................................................ 116 

Brattleboro Retreat, 310 NLRB 615 (1993)........................................................................................ 175, 242 

Brazeway, Inc., 119 NLRB 87 (1958) .......................................................................................................... 75 

Bredero Shaw, 345 NLRB 782 (2005)................................................................................................ 253, 254 

Breman Steel Co., 115 NLRB 247 (1956) .................................................................................................. 327 

Brennan’s Cadillac, 231 NLRB 225 (1977)................................................................................................ 113 

Brescome Distributors Corp., 197 NLRB 642 (1972) .................................................................................. 78 

Brevard Achievement Center, 342 NLRB 982 (2004)................................................................................ 255 

Bridgeport Brass Co., 110 NLRB 997 (1955)............................................................................................... 87 

Bridgeport Fittings, 288 NLRB 124 (1988)................................................................................................ 334 

Bridgestone/Firestone, Inc. 

 331 NLRB 205 (2001) .......................................................................................................................... 96 

 337 NLRB 133 (2001) ........................................................................................................................ 110 

Bridgeton Transit, 123 NLRB 1196 (1959) ................................................................................................ 237 

Briggs Indiana, 63 NLRB 1270 (1945)......................................................................................................... 99 

Bright Foods, 126 NLRB 553 (1960) ................................................................................................. 277, 279 

Brightview Care Center, 292 NLRB 352 (1989) ........................................................................................ 305 

Brink’s Armored Car, 278 NLRB 141 (1986) ............................................................................................ 334 
TABLE OF CASES DISCUSSED 355

Brink’s Inc. 

 272 NLRB 868 (1984) .......................................................................................................... 56, 124, 229 

 274 NLRB 970 (1985) .......................................................................................................................... 56 

 281 NLRB 468 (1986) .......................................................................................................................... 56 

Brinks Inc., 331 NLRB 46 (2000)....................................................................................................... 328, 338 

Bristol Textile Co., 277 NLRB 1637 (1986)............................................................................................... 316 

British Auto Parts, 160 NLRB 239 (1966).................................................................................................. 309 

Brockton Taunton Gas Co., 178 NLRB 404 (1969) ................................................................................... 123 

Brodart, Inc., 257 NLRB 380 (1981) .......................................................................................................... 234 

Brookdale Hospital Medical Center, 313 NLRB 592 (1993).............................................................. 123, 162 

Brooklyn Bureau of Community Service, 320 NLRB 1148 (1996).............................................................. 23 

Brooklyn Gas Co., 110 NLRB 18 (1955) ..................................................................................................... 47 

Brooklyn Piers, Inc., 88 NLRB 1364 (1950) ................................................................................................ 56 

Brooklyn Union Gas Co. 

 123 NLRB 441 (1959) ........................................................................................................................ 183 

 129 NLRB 361 (1961) ........................................................................................................................ 140 

Brooks Bros., Inc., 316 NLRB 176 (1995) ................................................................................................. 335 

Brooks Research & Mfg., Inc., 202 NLRB 634 (1973) .............................................................................. 278 

Brooks v. NLRB, 348 U.S. 96, 103 (1954)................................................................................................. 109 

Brooksville Citrus Growers Assn., 112 NLRB 707 (1955) ........................................................................ 251 

Brookville Healthcare Center, 312 NLRB 594 (1993) ............................................................................... 337 

Bro-Tech Corp., 315 NLRB 1014 (1994) ................................................................................................... 311 

Broward County Launderers Assn., 125 NLRB 256 (1960)....................................................................... 156 

Brown & Root Braun, 310 NLRB 632 (1993)............................................................................................ 167 

Brown & Root, Inc. 

 258 NLRB 1002 (1981) ...................................................................................................................... 167 

 314 NLRB 19 (1994) .......................................................................... 214, 217, 218, 219, 220, 238, 281 

Brown Cigar Co., 124 NLRB 1435 (1959)................................................................................................. 250 

Brown Transport Corp., 296 NLRB 1213 (1989) ............................................................................. 44, 50, 93 

Brown University, 342 NLRB 483 (2004).......................................................................................... 188, 252 

Brown-Ely Co., 87 NLRB 27 (1950)............................................................................................................ 44 

Browning-Ferris Industries of California, 327 NLRB 704 (1999).............................................................. 327 

Browning-Ferris Industries; NLRB v., 691 F.2d 1117 (3d Cir. 1982)........................................ 153, 160, 161 

Brunswick Pulp Co., 152 NLRB 973 (1965) ................................................................................................ 58 

Brunswick Quick Freezer, 117 NLRB 662 (1957) ....................................................................................... 50 

Bryant Infant Wear, 235 NLRB 1305 (1978) ............................................................................................. 142 

Brylane, L.P., 338 NLRB 538 (2002) ........................................................................................................... 68 

Buckeye Cellulose Corp., 184 NLRB 606 (1970) ........................................................................................ 90 

Buckeye Village Market, 175 NLRB 271 (1969) ....................................................................................... 185 

Buckhorn, Inc., 343 NLRB 201 (2004)....................................................................................................... 202 

Budd Co., 154 NLRB 421 (1965)................................................................................................. 99, 100, 138 

Buddy L. Corp., 167 NLRB 808 (1967) ............................................................................................. 198, 199 

Budget Rent A Car Systems, 337 NLRB 884 (2002) ......................................................... 145, 146, 147, 148 

Builders Emporium, 97 NLRB 1113 (1952)................................................................................................. 83 

Builders Insulation, Inc., 338 NLRB 793 (2003)........................................................................................ 264 

Building Construction Employers Assn., 147 NLRB 222 (1964)....................................................... 136, 138 

Bunker Hill Co. 

 165 NLRB 730 (1967) ........................................................................................................................ 198 

 197 NLRB 334 (1972) ........................................................................................................................ 120 

Burnett Construction Co., 149 NLRB 1419 (1964), enfd. 350 F.2d 57 (10th Cir. 1965) ........................... 110 

Burns & Roe Services Corp., 313 NLRB 1307 (1994)....................................................... 167, 195, 196, 200 

Burns International Detective Agency, 134 NLRB 451 (1962).................................................................... 81
356 TABLE OF CASES DISCUSSED

Burns Security Services 

 256 NLRB 959 (1981) ................................................................................................................ 268, 289 

 257 NLRB 387 (1981) .................................................................................................................. 81, 157 

 278 NLRB 565 (1986) ........................................................................................................................ 230 

 300 NLRB 298 (1990) ........................................................................................................................ 228 

 309 NLRB 989 (1992) ........................................................................................................................ 228 

Burns Security Services; NLRB v., 406 U.S. 272 (1972)............................................................................. 85 

Bush Hog, Inc., 161 NLRB 1575 (1966) .................................................................................................... 343 

Bush Terminal Co., 121 NLRB 1170 (1958)................................................................................................ 44 

Business Aviation Inc., 202 NLRB 1025 (1973) ................................................................................ 310, 311 

Business Records Corp., 300 NLRB 708 (1990) ........................................................................................ 285 

Bussey-Williams Tire Co., 122 NLRB 1146 (1959)....................................................................................... 3 

Butera Finer Foods, 334 NLRB 43 (2001).................................................................................................. 327 

Butler Mfg. Co., 167 NLRB 308 (1967)....................................................................................................... 53 

Byers Engineering Corp., 324 NLRB 740 (1997)............................................................................... 214, 217 

C & M Construction Co., 147 NLRB 843 (1964)....................................................................................... 159 

C. A. Blinne Construction Co., 135 NLRB 1153 (1963) ...................................................................... 67, 270 

C. C. Eastern, Inc., 309 NLRB 1070 (1992)............................................................................................... 209 

C. G. Willis, Inc., 119 NLRB 1677 (1958)................................................................................................... 80 

C. Hager & Sons Mfg. Co., 80 NLRB 163 (1949)...................................................................................... 105 

C. J. Krehbiel Co., 279 NLRB 855 (1986).................................................................................................. 337 

C. J. Pearson Co.; NLRB v., 420 F.2d 695 (1st Cir. 1969)......................................................................... 293 

C. P. Clare & Co., 191 NLRB 589 (1971) .................................................................................................... 21 

C. T. L. Testing Laboratories, 150 NLRB 982 (1965)................................................................................ 246 

C. W. Post Center, 189 NLRB 904 (1971) ......................................................................... 188, 189, 222, 223 

Cab Operating Corp., 153 NLRB 878 (1965) ............................................................................. 154, 246, 282 

Cab Service & Parts Corp., 114 NLRB 1294 (1956).................................................................................... 45 

Cabot Carbon Co.; NLRB v., 360 U.S. 203 (1959) ...................................................................................... 53 

Cabrillo Lanes, 202 NLRB 921 (1973)................................................................................................. 96, 284 

Cadmium & Nickle Plating, 124 NLRB 353 (1959);.................................................................................... 65 

Caesar’s Palace 

 194 NLRB 818 (1972) .......................................................................................................................... 55 

 209 NLRB 950 (1974) ........................................................................................................................ 121 

Caesars Tahoe, 337 NLRB 1096 (2002)..................................................................................... 238, 284, 285 

Cajun Co., 349 NLRB 1031 (2007) ............................................................................................................ 281 

Cal Gas Redding, Inc., 241 NLRB 290 (1979) ........................................................................................... 329 

Cal-Central Press, 179 NLRB 162 (1969) .................................................................................................. 142 

Calco Plating, 242 NLRB 1364 (1979)............................................................................................... 168, 169 

California Blue Shield, 178 NLRB 716 (1969) .................................................................................. 192, 239 

California Gas Transport, Inc., 347 NLRB 1313 (2006)............................................................................... 21 

California Institute of Technology, 192 NLRB 582 (1971)................................................................ 189, 190

California Labor Industries, 249 NLRB 600 (1980) ..................................................................................... 83 

California Offset Printers, 181 NLRB 871 (1970)........................................................................................ 96 

California Parts & Equipment, 196 NLRB 1108 (1972)............................................................................... 95 

California Steel & Supply Corp., 104 NLRB 787 (1953)........................................................................... 239 

California Vegetable Concentrate, 137 NLRB 1779 (1962)............................................................... 250, 251 

Callahan-Cleveland, Inc., 120 NLRB 1355 (1958)..................................................................................... 248 

Cal-Maine Farms, 307 NLRB 450 (1992) .................................................................................................. 206 

Cal-West Periodicals, 330 NLRB 599 (2000)..................................................................................... 313, 314 

Cal-Western Van Storage Co., 170 NLRB 67 (1968)................................................................................... 78 

Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995)......................................................................... 296, 297

Camden Regional Legal Services, 231 NLRB 224 (1977) ........................................................................... 13 

Cameron Iron Works, 195 NLRB 797 (1972) ............................................................................................ 199 

Campbell Products Dept., 260 NLRB 1247 (1982) .................................................................................... 329 
TABLE OF CASES DISCUSSED 357

Campbell Soup Co. 

 111 NLRB 234 (1955) .................................................................................................................. 71, 197 

 175 NLRB 452 (1969) .......................................................................................................................... 92 

Campbell-Harris Electric, 263 NLRB 1143 (1983) .................................................................................... 237 

Campbells Fresh, 298 NLRB 432 (1990) ................................................................................................... 206 

Camsco Produce Co., 297 NLRB 905 (1990)............................................................................................. 206 

Canal Carting, Inc., 339 NLRB 969 (2003).......................................................................................... 80, 131 

Candy Shops, 202 NLRB 538 (1973) ......................................................................................................... 251 

Canonie Transportation, 289 NLRB 299 (1988)......................................................................................... 219 

Canter’s Fairfax Restaurant, 309 NLRB 883 (1992) .................................................................................... 59 

Canterberry of Puerto Rico, Inc., 225 NLRB 309 (1976) ........................................................................... 115 

Cape Girardeau Care Center, 278 NLRB 1018 (1986) ................................................................................. 18 

Capital Bakers, 168 NLRB 904 (1968)....................................................................................................... 127 

Capital Coors Co., 309 NLRB 322 (1992).......................................................................................... 145, 150 

Capitol EMI Music, 311 NLRB 997 (1993) ............................................................................................... 162 

Capitol Market No. 1, 145 NLRB 1430 (1964) ............................................................................................ 74 

Capitol Records, 118 NLRB 598 (1957)....................................................................................................... 39 

Capri Sun, Inc., 330 NLRB 1124 (2000) .................................................................................................... 201 

Cardinal McCloskey Services, 298 NLRB 434 (1992)............................................................................... 212 

Care Enterprises, 306 NLRB 491 (1992)............................................................................................ 289, 303 

Carey Mfg. Co., 69 NLRB 224 (1946) ......................................................................................................... 47 

Carey Transportation, 119 NLRB 332 (1958) .............................................................................................. 59 

Cargill Nutrena, Inc., 344 NLRB 1125 (2005) ................................................................................. 92, 94, 95 

Caribe General Electric, 175 NLRB 773 (1969)......................................................................................... 279 

Caribe Lumber & Trading Corp., 148 NLRB 277 (1964)............................................................................... 6 

Carl B. King Drilling Co., 164 NLRB 419 (1967)...................................................................................... 281 

Carl Buddig & Co., 328 NLRB 929 (1999)................................................................................................ 138 

Carl Simpson Buick, 161 NLRB 1389 (1966), enfd. 395 F.2d 191 (9th Cir. 1968) ................................... 328 

Carl’s Jr., 285 NLRB 975 (1987)................................................................................................................ 284 

Carling Brewing Co., 126 NLRB 347 (1960)............................................................................................. 240 

Carlisle Engineered Products, 330 NLRB 1359 (2000).............................................................. 217, 219, 221 

Carlson Furniture Industries, 157 NLB 581 (1966) .................................................................................... 116 

Carol Cable Co. West, 309 NLRB 326 (1992) ........................................................................................... 279 

Carol Management Corp., 133 NLRB 1126 (1961).............................................................................. 15, 250 

Carolina Supplies & Cement Co., 122 NLRB 88 (1959).......................................................................... 3, 16 

Caron International, 246 NLRB 1120 (1979) ..................................................................................... 296, 298 

Carpenter Baking Co., 112 NLRB 288 (1955) ....................................................................................... 24, 75 

Carpenter Trucking, 266 NLRB 907 (1983)............................................................................................... 171 

Carpenters District Council (Fairmount Construction), 95 NLRB 969 (1951)............................................. 24 

Carr-Gottstein Foods Co., 307 NLRB 1318 (1992)............................................................................ 140, 261 

Carroll Associates, 300 NLRB 698 (1990)................................................................................................... 23 

Carroll College, Inc. 

 345 NLRB 254 (2005), reaffirmed at 350 NLRB No. 30 (2007).................................................... 20, 22 

 350 NLRB No. 30 (2007) ........................................................................................................... 188, 236 

Carroll-Naslund Disposal, 152 NLRB 861 (1965).......................................................................................... 3 

Carry Cos. of Illinois, 310 NLRB 860 (1993) ............................................................................................ 303 

Carson Cable TV; NLRB v., 795 F.2d 879 (9th Cir. 1986) ........................................ 127, 130, 145, 146, 151 

Carson International, 259 NLRB 1073 (1982)............................................................................................ 288 

Carter Camera Shops, 130 NLRB 276 (1961) .................................................................................... 135, 148 

Carter Hawley Hale Stores, 273 NLRB 621 (1984).................................................................................... 170 

Carter Machine Co., 133 NLRB 247 (1961)................................................................................................. 97 

Carteret Towing Co., 135 NLRB 975 (1962) ................................................................................................. 4 

Carter-Lee Lumber Co., 119 NLRB 1374 (1958)......................................................................................... 29 

Casa Italiana Language School, 326 NLRB 40 (1998)........................................................................... 20, 22 

Casale Industries, 311 NLRB 951 (1993)..................................................................................... 50, 106, 113 

Case Corp., 304 NLRB 939 (1991)............................................................................................................. 236 
358 TABLE OF CASES DISCUSSED

Case Egg & Poultry Co., 293 NLRB 941 (1989)........................................................................................ 332 

Casey-Metcalf Machinery Co., 114 NLRB 1520 (1956) ............................................................................ 110 

Casino Aztar, 349 NLRB 603 (2007) ................................................................................................. 130, 186 

Casting -Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971) ............................................................... 30 

Castle Instant Maintenance/Maid, Inc., 256 NLRB 130 (1981)...................................................................... 5 

Catalina Island Sightseeing, 124 NLRB 813 (1959)....................................................................................... 1 

Catalytic Industrial Maintenance, 209 NLRB 641 (1974) ............................................................................ 60 

Caterair International, 322 NLRB 64 (1996) .............................................................................................. 111 

Catherine’s, Inc., 316 NLRB 186 (1995).................................................................................................... 306 

Catholic Bishop of Chicago; NLRB v., 440 U.S. 490 (1979)................................................. 10, 20, 189, 236 

Catholic Cemeteries, 295 NLRB 966 (1989)............................................................................................... 10 

Catholic Community Services, 254 NLRB 763 (1981) ................................................................................ 46 

Catholic University of America 

 201 NLRB 929 (1973) .................................................................................................................... 5, 189 

 205 NLRB 130 (1973) ........................................................................................................................ 248 

Cavanaugh Lakeview Farm, 302 NLRB 921 (1991) .................................................................................. 283 

Cavendish Record Mfg. Co., 124 NLRB 1161 (1959)................................................................................ 157 

CCI Construction Co., 326 NLRB 1319 (1998) ........................................................................................... 54 

Cedar Tree Press, Inc., 324 NLRB 26 (1997), enf. 169 F.3d 794 (3d Cir. 1999) ....................................... 265 

Cedars-Sinai Medical Center 

 223 NLRB 251 (1976) ........................................................................................................................ 252 

 342 NLRB 596 (2004) ................................................................................................................ 287, 296 

Celotex Corp., 180 NLRB 62 (1970).......................................................................................................... 114 

Centennial Development Co., 218 NLRB 1284 (1975) .......................................................................... 44, 93 

Centennial Turf Club, 192 NLRB 698 (1971) .............................................................................................. 21 

Centerville Clinics, 181 NLRB 135 (1970) .................................................................................................. 61 

Central Coat, Apron & Linen Service, 126 NLRB 958 (1960)............................................................. 63, 136 

Central Illinois Construction, 335 NLRB 717 (2001)................................................................................. 105 

Central Maine Power Co., 151 NLRB 42 (1965)........................................................................................ 236 

Central Parking System, 335 NLRB 390 (2001)................................................................................... 65, 100 

Central Plumbing Specialties, 337 NLRB 973 (2002)........................................................................ 217, 220 

Central Power & Light Co., 195 NLRB 743 (1972) ................................................................................... 137 

Central Services, 202 NLRB 862 (1973) ........................................................................................................ 6 

Central Soya Co., 281 NLRB 1308 (1986)................................................................................................... 69 

Central Supply Co. of Virginia, 217 NLRB 642 (1975) ............................................................................... 94 

Central Taxi Service, 173 NLRB 826 (1969) ................................................................................................. 7 

Central Transport, Inc. 

 299 NLRB 5 (1990) ............................................................................................................................ 209 

 328 NLRB 407 (1999) ........................................................................................................................ 154 

Central Valley National Bank, 154 NLRB 995 (1965)............................................................................... 165 

Centralia Convalescent Center, 295 NLRB 42 (1989)........................................................................ 227, 259 

Centr-O-Cast Engineering Co., 100 NLRB 1507 (1951)............................................................................ 109 

Centurion Auto Transport, 329 NLRB 394 (1999)..................................................................... 145, 161, 237

Century Electric Co., 146 NLRB 232 (1964) ..................................................................................... 134, 261 

Cerni Motor Sales, 201 NLRB 918 (1973) ................................................................................................. 237 

Cerock Wire & Cable Group, 273 NLRB 1041 (1984) ...................................................................... 329, 342 

Cessna Aircraft Co., 123 NLRB 855 (1959)................................................................................................. 99 

CF&I Steel Corp., 196 NLRB 470 (1972) .................................................................................................. 142 

CGE Caresystems, Inc., 328 NLRB 748 (1999) ......................................................................................... 175 

CGLM, Inc., 350 NLRB No. 77 (2007)...................................................................................................... 216 

Champaign Residential Services, 325 NLRB 687 (1998)................................................................... 299, 303 

Charles D. Bonnano Linen Service 

 243 NLRB 1093 (1979), affd. 454 U.S. 404 (1982) ........................................................................... 160 

 454 U.S. 404 (1982)............................................................................................................................ 159 

Charleston Transit Co., 123 NLRB 1296 (1959) .......................................................................................... 16 

Charrette Drafting Supplies, 275 NLRB 1294 (1985) ................................................................................ 192 
TABLE OF CASES DISCUSSED 359

Charter Hospital of Orlando South, 313 NLRB 951 (1994) ............................................................... 175, 240 

Chas. S. Winner, Inc., 289 NLRB 62 (1988) .............................................................................................. 120 

Chas. V. Weise Co., 133 NLRB 765 (1961)............................................................................................... 342 

Checker Cab Co. v. NLRB, 367 F.2d 692 (6th Cir. 1966).......................................................................... 161 

Checker Cab Co. 

 141 NLRB 583 (1963) .................................................................................................................... 6, 246 

 141 NLRB 583 (1963), enfd. 367 F.2d 692 (6th Cir. 1966) ................................................................... 7 

Chel LaCort, 315 NLRB 1036 (1994)......................................................................................................... 159 

Chelsea Catering Corp., 309 NLRB 822 (1992) ..................................................................................... 17, 19 

Chelsea Industries, 331 NLRB 1648 (2000)............................................................................................... 109 

Cheney Bigelow Wire Works, 197 NLRB 1279 (1972)............................................................... 83, 130, 148 

Cherokee Textile Mills, 117 NLRB 350 (1957) ......................................................................................... 255 

Cherry Lane Farms, 190 NLRB 299 (1971) ............................................................................................... 206 

Chesapeake Telephone Co., 192 NLRB 483 (1971)................................................................................... 226 

Chester County Beer Distributors, 133 NLRB 771 (1961)......................................................................... 246 

Chevron Shipping Co., 317 NLRB 379 (1995)................................................................................... 213, 214 

Chicago Bridge Co., 88 NLRB 402 (1950)................................................................................................... 93 

Chicago Daily News, 98 NLRB 1235 (1951) ............................................................................................. 181 

Chicago Health Clubs, 251 NLRB 140 (1980) ........................................................................................... 110 

Chicago Home Builders Assn., 119 NLRB 1184 (1958)............................................................................ 157 

Chicago Metropolitan Home Builders Assn., 119 NLRB 1184 (1958) ...................................................... 154 

Chicago Pottery Co., 136 NLRB 1247 (1962).............................................................................................. 55 

Chicago Tribune, 326 NLRB 1057 (1998) ................................................................................................. 340 

Chicago Truck Drivers Local 101 (Bake-Line Products), 329 NLRB 247 (1999) ..................................... 126 

Chicagoland Television News 

 328 NLRB 367 (1999) ................................................................................................................ 312, 340 

 330 NLRB 630 (2000) ........................................................................................................................ 297 

Child & Family Service, 315 NLRB 13 (1994) ............................................................................................ 23 

Child’s Hospital, 307 NLRB 90 (1992) ...................................................................................................... 174 

Children’s Farm Home, 324 NLRB 61 (1997) ........................................................................................... 218 

Children’s Hospital of Michigan 

 299 NLRB 430 (1990) .................................................................................................................... 56, 57 

 299 NLRB 430 (1990), enfd. 6 F.3d 1147 (6th Cir. 1993) ................................................................. 230

 317 NLRB 580 (1995) ............................................................................................................ 56, 57, 230 

Children’s Village, 197 NLRB 1218 (1972)................................................................................................. 18 

Chin Industries, 232 NLRB 176 (1977)...................................................................................................... 168 

Chipman Union, Inc., 316 NLRB 107 (1995)............................................................................................. 315 

Choc-Ola Bottlers v. NLRB, 478 F.2d 461 (7th Cir. 1973)........................................................................ 275 

Choc-Ola Bottlers, 192 NLRB 1247 (1971) ............................................................................................... 275 

Choctaw Provision Co., 122 NLRB 474 (1958) ......................................................................................... 331 

Chrill Care, Inc., 340 NLRB 1016 (2003) .................................................................................................. 336 

Chrome Deposit Corp. 

 323 NLRB 177 (1997) ........................................................................................................................ 213 

 323 NLRB 961 (1997) ........................................................................................................................ 220 

Chrysler Corp. 

 119 NLRB 1312 (1958) ...................................................................................................................... 132 

 153 NLRB 578 (1965) .......................................................................................................................... 98 

 154 NLRB 352 (1965) ........................................................................................................................ 226 

 173 NLRB 1046 (1969) .............................................................................................................. 139, 233 

 192 NLRB 1208 (1971) ...................................................................................................................... 259 

 194 NLRB 183 (1972) ........................................................................................................................ 240 

Churchill’s Restaurant, 276 NLRB 775 (1985) .......................................................................................... 294 

CID-SAM Management Corp., 315 NLRB 1256 (1995)............................................................................ 7, 9 

Cincinnati Bronze, 286 NLRB 39 (1987) ................................................................................................... 240 

Cind-R-Lite Co., 239 NLRB 1255 (1979) .................................................................................................... 86 

Circuit City Stores 324 NLRB 147 (1997) ................................................................................................. 342 
360 TABLE OF CASES DISCUSSED

Cities Service Oil Co. 

 87 NLRB 324 (1949) .......................................................................................................................... 322 

 200 NLRB 470 (1972) ........................................................................................................................ 138 

Citizen-News Co., 97 NLRB 428 (1951).................................................................................................... 210 

City Cab of Orlando, 285 NLRB 1191 (1987)............................................................................................ 211 

City Electric, 225 NLRB 325 (1976) .......................................................................................................... 257 

City Line Open Hearth, 141 NLRB 799 (1963)............................................................................................ 15 

City Markets, Inc., 266 NLRB 1020 (1983) ....................................................................................... 108, 126 

City Public Service Board of San Antonio, 197 NLRB 312 (1972) ............................................................. 18 

City Stationery, Inc., 340 NLRB 523 (2003)........................................................................................ 50, 332 

City Stores Co., 152 NLRB 719 (1965)...................................................................................................... 191 

City Wide Insulation, 307 NLRB 1 (1992)........................................................................................... 70, 120 

Citywide Corporate Transportation, Inc., 338 NLRB 444 (2002) .............................................................. 237 

Claremont University Center, 198 NLRB 811 (1972) ................................................................................ 189 

Clark Concrete Construction Corp., 116 NLRB 321 (1965)........................................................................... 2 

Clark Machine Corp., 308 NLRB 555 (1992)............................................................................................. 213 

Clark Oil & Refining Corp., 129 NLRB 750 (1960) .................................................................................. 211 

Clarostat Mfg. Co., 88 NLRB 723 (1950) .................................................................................................... 51 

Claymore Mfg. Co. of Arkansas, 146 NLRB 1400 (1964) ......................................................................... 317

Clayton & Lambert Mfg. Co., 128 NLRB 209 (1960).................................................................................. 88 

Clement-Blythe Cos., 182 NLRB 502 (1970)............................................................................................. 114 

Cleveland Cliffs Iron Co., 117 NLRB 668 (1957)........................................................................................ 47 

Cleveland Indians Baseball Co., 333 NLRB 579 (2001) .................................................................... 285, 326

Clohecy Collision, 176 NLRB 616 (1969) ................................................................................................... 71 

Clothing & Textile Workers v. NLRB, 815 F.2d 225 (2d Cir. 1987) ......................................................... 338 

Club Cal-Neva, 194 NLRB 797 (1972) ...................................................................................................... 173 

Club Demonstration Services, 317 NLRB 349 (1995) ....................................................................... 326, 334

Clyde J. Merris, 77 NLRB 1375 (1948)........................................................................................................ 70 

CMT Inc., 333 NLRB 1307 (2001)............................................................................................................... 60 

Coast North America (Trucking) Ltd., 325 NLRB 980 (1998), enf. 207 F.3d 994 (7th Cir. 2000)............ 329 

Coatings Application Co., 307 NLRB 806 (1992)...................................................................................... 121 

Coca-Cola Bottling Co. of Baltimore, 156 NLRB 450 (1966) ................................................................... 131 

Coca-Cola Bottling Co. of Buffalo 

 299 NLRB 989 (1990) ........................................................................................................................ 143 

 325 NLRB 312 (1998) ........................................................................................................................ 144 

Coca-Cola Bottling Co. of Memphis, 273 NLRB 444 (1984) .................................................................... 305 

Coca-Cola Bottling Co. of Wisconsin, 310 NLRB 844 (1993)................................................... 121, 123, 143 

Coca-Cola Co. Foods Division, 202 NLRB 910 (1973) ............................................................................. 306 

Cockatoo, Inc., 145 NLRB 611 (1964)......................................................................................................... 74 

Coinmach Laundry Corp., 337 NLRB 1286 (2003)...................................................................................... 54 

College of English Language, 277 NLRB 1065 (1985)................................................................................ 10 

College of Pharmaceutical Sciences, 197 NLRB 959 (1972) ..................................................................... 189

Collins & Aikman Corp., 143 NLRB 15 (1963)........................................................................................... 29 

Collins Mart, 138 NLRB 383 (1962) .......................................................................................................... 180 

Collyer Insulated Wire, 192 NLRB 837 (1971)............................................................................................ 65 

Colombia Music & Electronics, 196 NLRB 388 (1972)............................................................................. 248 

Colonial Catering Co., 137 NLRB 1607 (1962) ............................................................................................. 5 

Colonial Williamsburg Foundation, 224 NLRB 718 (1976)........................................................................... 9 

Colorado Interstate Gas Co., 202 NLRB 847 (1973).......................................................................... 181, 183 

Colson Corp. v. NLRB, 347 F.2d 128 (8th Cir. 1965)................................................................................ 314 

Columbia Alaska Regional Hospital, 327 NLRB 876 (1998)..................................................................... 342 

Columbia College, 346 NLRB 690 (2006) ................................................................................................. 253 

Columbia Park Assn., 289 NLRB 123 (1988) .............................................................................................. 18 

Columbia Records, 125 NLRB 1161 (1960)................................................................................................. 51 

Columbia Tanning Corp., 238 NLRB 899 (1978) ...................................................................................... 315 

Columbia Textile Services, 293 NLRB 1034 (1989).......................................................................... 239, 335 
TABLE OF CASES DISCUSSED 361

Columbia University, 97 NLRB 424 (1951)........................................................................................... 10, 14 

Columbine Cable Co., 351 NLRB No. 65 (2007)....................................................................................... 331 

Columbus Plaza Hotel, 148 NLRB 1053 (1964)......................................................................... 176, 246, 247 

Columbus Symphony Orchestra, Inc., 350 NLRB 523 (2007) ................................................................... 247 

Combined Century Theatres, 120 NLRB 1379 (1959) ................................................................................... 2 

Combustion Engineering, 195 NLRB 909 (1972) .............................................................................. 140, 141 

Comcast Cablevision of New Haven, 325 NLRB 833 (1998) ............................................................ 310, 337 

Comcast Cablevision-Taylor, 338 NLRB 1089 (2000) .............................................................................. 340 

Comet Electric, 314 NLRB 1215 (1994) ............................................................................................ 300, 312 

Comfort Slipper Corp., 112 NLRB 183 (1955) .......................................................................................... 320 

Commercial Fleet Wash, 190 NLRB 326 (1971)........................................................................................ 218 

Commonwealth Gas Co., 218 NLRB 857 (1975) ......................................................................................... 65 

Community Action Commission, 338 NLRB 664 (2003) .......................................................................... 275 

Community Affairs, Inc., 326 NLRB 311 (1998)......................................................................................... 51 

Community Bus Lines, 341 NLRB 474 (2004) .......................................................................................... 207 

Community Care Systems, 284 NLRB 1147 (1987)................................................................................... 330 

Community Drug Co., 180 NLRB 525 (1970) ........................................................................................... 185 

Community Service Publishing, 216 NLRB 997 (1975) .............................................................................. 57 

Community Services Planning Council, 243 NLRB 798 (1979) .................................................................... 5 

Compania Naviera Hidalgo, S.A.; Benz v., 353 U.S. 138 (1957)................................................................. 21

Computer Sciences Raytheon, 318 NLRB 966 (1995) ................................................................................. 21 

Computer Systems, 204 NLRB 255 (1973) ................................................................................................ 242 

Comtel Systems Technology, 305 NLRB 287 (1991) ........................................................................ 157, 160 

Comvac International, 297 NLRB 853 (1991)............................................................................................ 108 

Coney Island, Inc., 140 NLRB 77 (1963) ....................................................................................................... 9 

Connecticut Light & Power Co. 

 121 NLRB 768 (1958) ........................................................................................................................ 218 

 222 NLRB 1243 (1976) ...................................................................................................................... 182 

Conroe Creosoting Co., 149 NLRB 1174 (1964)........................................................................................ 311 

Consolidated Fibres, Inc., 205 NLRB 557 (1973) ........................................................................................ 84 

Consolidated Freightway Corp., 196 NLRB 807 (1972) ............................................................................ 216 

Consolidated Novelty Co., 186 NLRB 197 (1970)....................................................................................... 83 

Consolidated Packaging Corp., 178 NLRB 564 (1969).............................................................................. 171 

Consolidated Papers, 220 NLRB 1281 (1975)............................................................................................ 137 

Consolidated Print Works, 260 NLRB 978 (1982)..................................................................................... 285 

Consolidated Services, 321 NLRB 845 (1996)........................................................................................... 217 

Consolidated Supply Co., 192 NLRB 982 (1971) ...................................................................................... 246 

Consumers Energy Co., 337 NLRB 752 (2002) ................................................................................. 288, 325 

Container Corp. of America, 121 NLRB 249 (1958).................................................................................. 241 

Container Research Corp., 188 NLRB 586 (1971) ..................................................................................... 169 

Continental Bus System, 104 NLRB 599 (1953)........................................................................................ 334 

Continental Cablevision, 298 NLRB 973 (1990)........................................................................................ 253 

Continental Can Co. 

 116 NLRB 1202 (1956) ...................................................................................................................... 219 

 128 NLRB 762 (1960) ........................................................................................................................ 226 

 145 NLRB 1427 (1964) ................................................................................................................ 98, 134 

Continental Hotel, 133 NLRB 1694 (1961).................................................................................................. 13 

Continental Packaging Corp., 327 NLRB 400 (1998). ................................................................................. 23 

Cook Composites & Polymers Co., 313 NLRB 1105 (1994) ..................................................................... 238 

Cooper Industries, 328 NLRB 145 (1999).................................................................................................. 312 

Cooper International, Inc., 205 NLRB 1057 (1973) ................................................................................... 115 

Cooper Mattress Mfg. Co., 225 NLRB 200 (1976) .................................................................................... 284 

Cooper Supply Co., 120 NLRB 1023 (1958)................................................................................................ 39 

Cooper Tanks & Welding Corp., 328 NLRB 759 (1999) ....................................................................... 78, 79 
362 TABLE OF CASES DISCUSSED

Cooper Tire & Rubber Co. 

 340 NLRB 958 (2003) ........................................................................................................................ 295 

 181 NLRB 509 (1970) .......................................................................................................................... 86 

Cooper Union of Science & Art, 273 NLRB 1768 (1985).......................................................................... 188 

Cooperativa Azucarera Los Canos, 122 NLRB 817 (1959).................................................................... 94, 96 

Cooperative Milk Producers Assn., 127 NLRB 785 (1960) ....................................................................... 168

Copeland Refrigeration Corp., 118 NLRB 1364 (1957)............................................................................. 238 

Copier Care Plus, 324 NLRB 785 (1997) ................................................................................................... 134 

Coplay Cement Co., 288 NLRB 66 (1988)................................................................................................. 151 

Corcoran Gallery of Art, 186 NLRB 565 (1970).......................................................................................... 10 

Cornell Forge Co., 339 NLRB 733 (2003) ................................................................................. 312, 315, 316 

Cornell University 

 183 NLRB 329 (1970) .................................................................................................. 10, 187, 189, 190 

 202 NLRB 290 (1973) ........................................................................................................................ 190 

Corner Furniture Discount Center, 339 NLRB 1122 (2003)....................................................................... 315 

Corporacion de Servicios Legales, 289 NLRB 612 (1988)................................................... 81, 227, 259, 260 

Corporate Express Delivery System, 332 NLRB 1522 (2000) ................................................................... 209 

Correction Corp. of America v. NLRB, 234 F.3d 1321 (D.C. Cir. 2000)..................................................... 18 

Correctional Health Care Solutions, 303 NLRB 835 (1991) .............................................................. 327, 328 

Correctional Medical Systems, 299 NLRB 654 (1990) ................................................................................ 23 

Corrections Corp. of America, 327 NLRB 577 (1999)................................................................................. 81 

Cortland Transit, 324 NLRB 372 (1997) .................................................................................................... 111 

Country Lane Food Store, 142 NLRB 683 (1963).................................................................................... 7, 24 

Courier Dispatch Group, 311 NLRB 728 (1993)................................................................................ 148, 149 

Court Square Press, 151 NLRB 861 (1965)................................................................................................ 258 

Covenant Aviation Security, LLC, 349 NLRB 699 (2007) ............................................................ 47, 48, 125 

Coventry Health Center, 332 NLRB 52 (2000) .......................................................................................... 223 

Cox’s Food Center, 164 NLRB 95 (1967).................................................................................................... 24 

CPA Trucking Agency, 185 NLRB 452 (1970).................................................................................. 205, 206 

CPP Pinkerton, 309 NLRB 723 (1992)....................................................................................................... 295 

CPS Chemical Co., 324 NLRB 1021 (1997) .............................................................................................. 120 

Craftmatic Comfort Mfg. Corp., 299 NLRB 514 (1990) ............................................................................ 267 

Crawford Door Sales Co., 226 NLRB 1144 (1976).................................................................................... 162 

Credit Bureau of Greater Boston, 73 NLRB 410 (1947) .............................................................................. 12 

Credit Union National Assn., 199 NLRB 682 (1972)................................................................................. 122 

Crenulated Co., 308 NLRB 1216 (1992) .................................................................................................... 222 

Crest Mark Packing Co., 283 NLRB 999 (1987)................................................................................ 233, 234 

Crest Wine & Spirits, Ltd., 168 NLRB 754 (1968) .................................................................................... 252 

Crestwood Convalescent Hospital, 316 NLRB 1057 (1995) .............................................................. 316, 337 

Crittenton Hospital, 328 NLRB 879 (1999)........................................................................................ 174, 217 

Croft Metals, Inc. 

 337 NLRB 688 (2002) .......................................................................................................................... 35 

 348 NLRB 717 (2006) ........................................................................................................ 215, 216, 217 

Crompton Co., 260 NLRB 417 (1982).............................................................................................. 85, 87, 94 

Cross Baking Co. v. NLRB, 453 F.2d 1436 (1st Cir. 1971) ....................................................................... 315 

Cross Baking Co., 191 NLRB 27 (1971) .................................................................................................... 315 

Cross Pointe Paper Corp., 330 NLRB 658 (2000) ...................................................................................... 342 

Cross-Pointe Corp., 315 NLRB 714 (1994)................................................................................................ 342 

Crossroads Community Correctional Center, 308 NLRB 1005 (1992) ...................................................... 229 

Crothall Hospital Services, 270 NLRB 1420 (1984) .................................................................................... 79 

Crown Bolt, Inc., 343 NLRB 776 (2004).................................................................................................... 298 

Crown Cafeteria, 135 NLRB 1153 (1962)............................................................................................ 67, 271 

Crown Coach Corp., 284 NLRB 1010 (1987) ............................................................................................ 316 

Crown Cork & Seal Co., 203 NLRB 171 (1973)........................................................................................ 122 

Crown Nursing Home Associates, 299 NLRB 512 (1990)..................................................................... 47, 49 

Crown Simpson Pulp Co., 163 NLRB 796 (1967)...................................................................................... 201 
TABLE OF CASES DISCUSSED 363

Crown Zellerbach Corp., 246 NLRB 202 (1980)................................................................................ 132, 133 

Cruis Along Boats, 128 NLRB 1019 (1960)............................................................................................... 284 

Crystal Bay Club, 169 NLRB 838 (1968)................................................................................................... 173 

CTS, Inc., 340 NLRB 904 (2003)....................................................................................................... 158, 160 

Culinary Foods, Inc., 325 NLRB 664 (1998).............................................................................. 312, 313, 314 

Cumberland Farms, 272 NLRB 336 (1984)................................................................................................ 238 

Cumberland Shoe Corp., 144 NLRB 1268 (1963)...................................................................................... 255 

Cuneo Eastern Press, 106 NLRB 343 (1953).............................................................................................. 135 

Cupples-Hesse Corp., 119 NLRB 1988 (1958) .......................................................................................... 324 

Curcie Bros., Inc., 146 NLRB 380 (1964) .................................................................................................. 135 

Curtin Matheson Scientific, 310 NLRB 1090 (1993) ................................................................................. 297 

Curtis Industries, 310 NLRB 1212 (1993).................................................................................. 275, 278, 280 

Cushman’s Sons, Inc., 88 NLRB 121 (1950)................................................................................................ 98 

Custom Bronze & Aluminum Corp., 197 NLRB 397 (1972) ............................................................. 213, 216 

Custom Color Contractors, 226 NLRB 85 (1976) ...................................................................................... 155 

Custom Mattress Mfg., 327 NLRB 111 (1998) .................................................................................. 218, 220 

CWM, Inc., 306 NLRB 495 (1992) ............................................................................................................ 274 

D & B Contracting Co., 305 NLRB 765 (1991) ......................................................................................... 163 

D & T Limousine Service, 320 NLRB 859 (1996)................................................................................. 12, 19 

D&F Industries, 339 NLRB 618 (2002) ..................................................................................................... 221 

D&L Transportation, 324 NLRB 160 (1997) ..................................................................................... 148, 150 

D. A. Nolt, Inc., 340 NLRB 1279 (2004) ................................................................................................... 159 

D. H. Farms Co., 206 NLRB 111 (1973).................................................................................................... 276 

D. V. Displays Corp., 134 NLRB 568 (1962)............................................................................................. 261 

D’Arrigo Bros. Co. of California, 171 NLRB 22 (1968).................................................................... 205, 206 

Dai-Ichi Hotel Saipan Beach, 326 NLRB 458 (1998) ................................................................................ 305 

Daily Grind, 337 NLRB 655 (2002) ........................................................................................................... 288 

Daily Press, 112 NLRB 1434 (1955) .......................................................................................................... 181 

Daimler-Chrysler Corp., 338 NLRB 982 (2003) ........................................................................................ 335 

Dakota Fire Protection Inc., 337 NLRB 92 (2001)..................................................................................... 274 

Dakota Premium Foods, 335 NLRB 228 (2001)......................................................................................... 337 

Dale’s Super Valu, 181 NLRB 698 (1970)................................................................................................... 51 

Dal-Tex Optical Co., 137 NLRB 1782 (1962).................................................................................... 296, 299 

Dalton Sheet Metal Co.; NLRB v., 472 F.2d 257 (5th Cir. 1973) .............................................................. 273 

Dan’s Star Market, 172 NLRB 1393 (1968)............................................................................................... 147 

Dana Corp., 351 NLRB No. 28 (2007) ............................................................................................... 100, 113 

Daniel Construction Co. 

 133 NLRB 264 (1961) ........................................................................................................ 166, 167, 281 

 145 NLRB 1397 (1964) ...................................................................................................................... 329 

 167 NLRB 1078 (1967) ...................................................................................................................... 281 

Daniel Ornamental Iron Co., 195 NLRB 334 (1972).................................................................................. 251 

Dart Container Corp., 294 NLRB 798 (1989).............................................................................................. 47 

Data Technology Corp., 281 NLRB 1005 (1986)............................................................................... 255, 287 

Dattco, Inc., 338 NLRB 49 (2002)...................................................................................... 145, 147, 148, 149 

Dave Transportation Services, 323 NLRB 562 (1997). .............................................................................. 324 

Davenport Lutheran Home; NLRB v., 244 F.3d 660 (8th Cir. 2001) ........................................................... 75 

Daves Newcomer Elevator Co., 315 NLRB 715 (1994)............................................................................. 334 

Davey McKee Corp., 308 NLRB 839 (1992) ............................................................................................. 115 

David Buttrick Co., 167 NLRB 438 (1967).................................................................................................. 60 

Davis Cafeteria, 160 NLRB 1141 (1966) ................................................................................................... 136 

Davis Grain Corp., 203 NLRB 319 (1973)......................................................................................... 205, 206 

Davis Memorial Goodwill Industries, 318 NLRB 1044 (1995).................................................................. 256 

Davis Transport, 169 NLRB 557 (1968)..................................................................................................... 253 

Davison-Paxon Co., 185 NLRB 21 (1970) ......................................................................... 245, 246, 247, 282 

Davlan Engineering, 283 NLRB 803 (1987) .............................................................................................. 318 

Daylight Grocery Co. v. NLRB 678 F.2d 905 (11th Cir. 1982) ................................................................. 288 
364 TABLE OF CASES DISCUSSED

Days Inn Management Co., 299 NLRB 735 (1992) ................................................................................... 342 

Dayton Aviation Radio & Equipment Corp., 124 NLRB 306 (1959)......................................................... 241 

Dayton Newspapers, 119 NLRB 566 (1958) .............................................................................................. 181 

Dayton Transport Corp., 270 NLRB 1114 (1984) ...................................................................................... 170 

De Coster Egg Farms, 325 NLRB 350 (1998),............................................................................................. 23 

De Jana Industries, 305 NLRB 294 (1991)................................................................................................. 317 

De Paul Adult Care Communities, 325 NLRB 681 (1998)........................................................................... 78 

De Vilbiss Co., 115 NLRB 1164 (1956)..................................................................................................... 331 

Deaconess Medical Center, 341 NLRB 589 (2004).................................................................................... 299 

Dean & Deluca New York, Inc., 338 NLRB 1046 (2003).................................................. 216, 219, 221, 273 

Dean Industries, 162 NLRB 1078 (1967) ................................................................................................... 314 

Dean Witter & Co., 189 NLRB 785 (1971)........................................................................................ 130, 240 

Deeco, Inc., 116 NLRB 990 (1956) ............................................................................................................ 332 

Dejana Industries, 336 NLRB 1202 (2001). ................................................................................................. 46 

Delaware Mills, 123 NLRB 943 (1959)..................................................................................................... 341 

Delaware Park, 325 NLRB 156 (1997)......................................................................................................... 12 

Del-Mont Construction Co., 150 NLRB 85 (1965) .................................................................................... 167 

Delta Diversified Enterprises, 314 NLRB 946 (1994)................................................................................ 281 

Delta Mills, 287 NLRB 366 (1987) ............................................................................................................ 143 

Delta Pine Plywood Co., 192 NLRB 1272 (1971)...................................................................................... 275 

Deluxe Metal Furniture Co., 121 NLRB 995 (1958) ................................................ 92, 93, 94, 95, 96, 97, 98 

DeMarco Concrete Block Co., 221 NLRB 341 (1975)................................................................................... 3 

Denart Coal Co., 315 NLRB 850 (1994) .................................................................................................... 161 

Dennis Chemical Co., 196 NLRB 226 (1972) .............................................................................................. 95 

Denny’s Restaurant 

 177 NLRB 702 (1969) .......................................................................................................................... 15 

 186 NLRB 48 (1970) ............................................................................................................................ 73 

Denver & Contractors Assn., 99 NLRB 251 (1951)................................................................................... 167 

Denver Athletic Club, 164 NLRB 677 (1967) ............................................................................................ 190 

Denver Building Trades Council; NLRB v., 341 U.S. 675 (1954) ................................................................. 1 

Denver Post, 196 NLRB 1162 (1972)......................................................................................................... 210 

Denver Publishing Co., 238 NLRB 207 (1978)............................................................................................ 75 

Denver-Colorado Spring-Pueblo Motor Way, 129 NLRB 1184 (1961) ..................................................... 254 

Denzel S. Alkire, 259 NLRB 1323 (1982).................................................................................................. 162 

Deposit Telephone Co. 

 328 NLRB 1029 (1999) .............................................................................................................. 181, 182 

 349 NLRB 214 (2007) .......................................................................................................................... 70 

Desert Laundry, 192 NLRB 1032 (1971) ................................................................................................... 294 

Design Service Co., 148 NLRB 1050 (1964) ............................................................................................. 241 

Desilu Productions, 106 NLRB 179 (1953).................................................................................................. 46 

Detective Intelligence Service, 177 NLRB 69 (1969) ................................................................................ 124 

Detroit College of Business, 296 NLRB 318 (1989) .......................................................... 217, 221, 223, 254 

Detroit East, Inc., 349 NLRB 935 (2007) ................................................................................................... 327 

Detroit Institute of Arts, 271 NLRB 285 (1984)........................................................................................... 18 

Detroit News, 119 NLRB 345 (1958)......................................................................................................... 155 

Detroit Newspaper Publishers Assn., 372 F.2d 569 (6th Cir. 1967)...............................................................6 

Detroit Newspapers, 330 NLRB 505 (2000)................................................................................................. 59 

Devco Diamond Rings, 146 NLRB 556 (1964)............................................................................................ 25 

Developmental Disabilities Institute, 334 NLRB 1166 (2001)............................. 69, 121, 124, 140, 141, 142 

Devil’s Lake Sioux Mfg. Corp., 243 NLRB 163 (1979)................................................................................. 8 

Dezcon, Inc., 295 NLRB 109 (1989) .................................................................................... 66, 127, 166, 167 

DHL Worldwide Express, 340 NLRB 1034 (2003)...................................................................................... 18 

Dial-A-Mattress Operating Corp., 326 NLRB 884 (1998) ......................................................................... 209 

Diamond Cab, 164 NLRB 859 (1967) ........................................................................................................ 208 

Diamond L Transportation, 310 NLRB 630 (1993).................................................................................... 209 

Diamond State Poultry Co., 107 NLRB 3 (1954) ....................................................................... 313, 314, 315 
TABLE OF CASES DISCUSSED 365

Diamond Walnut Growers, Inc. 

 308 NLRB 933 (1992) ........................................................................................................................ 279 

 326 NLRB 28 (1998) .................................................................................................................. 296, 333 

DIC Entertainment, L.P., 328 NLRB 660 (1999) ....................................................................................... 282 

Dick Bros., Inc., 110 NLRB 451 (1955)..................................................................................................... 111 

Dick Kelchner Excavating Co., 236 NLRB 1414 (1978).................................................................... 167, 280 

DiLapi; Irving v., 600 F.2d 1027 (2d Cir. 1979)........................................................................................... 51 

Dinah’s Hotel & Apartments, 295 NLRB 1100 (1989) .............................................................................. 177 

Dinkler-St. Charles Hotel, 124 NLRB 1302 (1959).................................................................................... 234 

Direct Press Modern Litho, Inc., 328 NLRB 860 (1999)........................................................................ 87, 99 

Disco Fair Stores, 189 NLRB 456 (1971)........................................................................................... 179, 180 

Display Sign Service, 180 NLRB 49 (1970)............................................................................................... 113 

Dittler Bros., Inc., 132 NLRB 444 (1961) ............................................................................................ 29, 159 

Ditto, Inc., 126 NLRB 135 (1960)................................................................................................................ 57 

Dixie Belle Mills, 139 NLRB 629 (1962)........................................................................................... 149, 150 

Dixie Drive-It-Yourself System Nashville Co., 120 NLRB 1608 (1958)................................................... 311 

Dixie Gas, Inc., 151 NLRB 1257 (1965) .................................................................................................... 111 

Dixie-Portland Flour Mills, 186 NLRB 681 (1970).................................................................................... 199 

Dobbs Houses v. NLRB, 443 F.2d 1066 (6th Cir. 1971).............................................................................. 19 

Dobbs International Services, 323 NLRB 1159 (1997) ................................................................................ 85 

Dodge City of Wauwatosa, 282 NLRB 459 (1986).................................................................................... 202 

Dole Fresh Vegetables, 339 NLRB 785 (2003) ............................................................................................ 30 

Dole Fresh Vegetables, Inc., 339 NLRB 785 (2003) .................................................................................. 213 

Dollar Rent-A-Car, 314 NLRB 1089 (1994) .............................................................................................. 287 

Dominguez Valley Hospital 

 251 NLRB 842 (1980) ........................................................................................................................ 325 

 287 NLRB 149 (1987) ........................................................................................................................ 110 

Dominican Santa Cruz Hospital, 307 NLRB 506 (1992)............................................................................ 174 

Dominion Engineered Textiles, 314 NLRB 571 (1994) ............................................................................. 294 

Don Bass Trucking, 275 NLRB 1172 (1985) ............................................................................................. 209 

Don Davis Pontiac, 233 NLRB 853 (1977) .................................................................................................. 74 

Donald Carroll Metals, 185 NLRB 409 (1970) .......................................................................... 130, 134, 169 

Donaldson Traditional Interiors, 345 NLRB 1298 (2005).................................................................. 106, 154 

Dorado Beach Hotel, 144 NLRB 712 (1963).................................................................................... 58, 88, 91 

Double J. Services, 347 NLRB No. 58 (2006) (not reported in Board volumes)........................................ 297 

Douglas Aircraft Co., 53 NLRB 486 (1943)................................................................................................. 58 

Douglas Motors Corp., 128 NLRB 307 (1960)........................................................................................... 115 

Douglas Oil Co., 197 NLRB 308 (1972) ...................................................................................................... 59 

Douglas Randall, Inc., 320 NLRB 431 (1995)............................................................................................ 112 

Dow Chemical Co., 326 NLRB 288 (1998)................................................................................................ 161 

Dow Jones & Co., 142 NLRB 421 (1963).................................................................................................. 180 

Downingtown Paper Co., 192 NLRB 310 (1971)....................................................................... 130, 171, 199 

Dr. Pepper Bottling Co., 228 NLRB 1119 (1977) ...................................................................................... 172 

Draper Valley Farms, 307 NLRB 1440 (1992)........................................................................................... 206 

Dredge Operators, 306 NLRB 924 (1992).......................................................................................... 265, 276 

Dredge Operators, Inc.; NLRB v., 19 F.3d 206 (5th Cir. 1994) ................................................................... 21 

Dresser Industries, 242 NLRB 74 (1979) ................................................................................................... 287 

Drexel Home, 182 NLRB 1045 (1970)....................................................................................................... 175 

Drummond Coal Co., 249 NLRB 1017 (1980)........................................................................................... 207 

DST Industries, 310 NLRB 957 (1993) ...................................................................................................... 215 

Dubo Mfg. Corp., 142 NLRB 431 (1963)..................................................................................................... 65 

Dubovsky & Sons, 324 NLRB 1071 (1997) ............................................................................................... 338 

Duke Power Co. 

 173 NLRB 240 (1969) .......................................................................................................................... 63 

 191 NLRB 308 (1971) ...................................................................................................... 48, 71, 92, 132 
366 TABLE OF CASES DISCUSSED

Duke University 

 194 NLRB 236 (1972) ........................................................................................................................ 190 

 200 NLRB 81 (1973) .......................................................................................................................... 190 

 306 NLRB 555 (1992) .......................................................................................................... 13, 172, 190 

Dumas Bros. Mfg. Co., 205 NLRB 919 (1973) .......................................................................................... 323 

Dun & Bradstreet, Inc. 

 194 NLRB 9 (1971) ...................................................................................................................... 12, 236 

 240 NLRB 162 (1979) ........................................................................................................................ 235 

Dundee’s Seafood, Inc., 221 NLRB 1183 (1976)............................................................................... 136, 137 

Dunham’s Athleisure Corp. 

 311 NLRB 175 (1993) ................................................................................................................ 238, 285 

 315 NLRB 689 (1994) ................................................................................................................ 315, 321 

Dupont Dow Elastomers LLC, 332 NLRB 1071 (2001)............................................................................. 162 

Duquesne University, 261 NLRB 587 (1982)............................................................................................. 188 

Dura Steel Co., 111 NLRB 590 (1955)....................................................................................................... 275 

Dura-Containers, 164 NLRB 293 (1967).................................................................................................... 199 

Duralam, Inc., 284 NLRB 1419 (1987) ...................................................................................................... 313 

Du-Tri Displays 231 NLRB 1261 (1977) ................................................................................................... 220 

Dynacorp/Dynair Services, 320 NLRB 120 (1995).................................................................................... 274 

Dynair Services, 314 NLRB 161 (1994)............................................................................................. 230, 285 

Dynamic Science, Inc., 334 NLRB 391 (2001) .................................................................................. 216, 217 

E & L Transport Co., 315 NLRB 303 (1994) ............................................................................................. 235 

E Center, Yuba Sutter Head Start, 337 NLRB 983 (2002) ................................................................... 76, 107

E. Anthony & Sons, 147 NLRB 204 (1964) ......................................................................................... 58, 172 

E. F. Drew & Co., 133 NLRB 155 (1961) .................................................................................................. 248 

E. H. Koester Bakery Co., 136 NLRB 1006 (1962)............................................................................ 168, 169 

E. I. du Pont & Co. 

 162 NLRB 413 (1966) ................................................................................................................ 196, 200 

 192 NLRB 1019 (1971) ...................................................................................................................... 200 

E. I. Du Pont, Inc., 341 NLRB 607 (2004) ......................................................................... 121, 139, 140, 143 

E. W. Coslett & Sons, 122 NLRB 961 (1959)............................................................................................ 281 

E. W. Scripps Co., 94 NLRB 227 (1951).................................................................................................... 226 

Eagle Aviation, 290 NLRB 1149 (1988) ...................................................................................................... 19 

Eagle Comtronics, 263 NLRB 515 (1982).................................................................................................. 293 

Eagle Iron Works, 117 NLRB 1053 (1957)................................................................................................ 332 

Eagle Transport Corp. 327 NLRB 1210 (1999).......................................................................................... 300 

Early California Industries, 195 NLRB 671 (1972)...................................................................................... 53 

Earthgrains Co., 334 NLRB 1131 (2001) ........................................................................................... 140, 142 

Easco Tools, 248 NLRB 700 (1980)........................................................................................................... 328 

East Dayton Tool Co., 194 NLRB 266 (1972)...................................................................................... 53, 255 

East Division, Federal Credit Union, 193 NLRB 682 (1971)....................................................................... 11 

East Mfg. Corp., 242 NLRB 5 (1979)..................................................................................................... 73, 91 

East Oakland Health Alliance, 218 NLRB 1270 (1975)............................................................................... 12 

East Side Sanitation Service, 230 NLRB 632 (1977) ..................................................................................... 3 

Eastern Camera Corp. 

 140 NLRB 569 (1963) ........................................................................................................................ 233 

 141 NLRB 991 (1963) .................................................................................................................. 67, 270 

Eastern Container Corp., 275 NLRB 1537 (1985)...................................................................................... 138 

Eastman West, 273 NLRB 610 (1984) ....................................................................................................... 150 

Eastwood Nealley Co., 169 NLRB 604 (1968)............................................................................................. 79 

Eaton Yale & Towne, Inc., 191 NLRB 217 (1971) ............................................................................ 199, 258 

Ebco Mfg. Co., 88 NLRB 983 (1950)......................................................................................................... 332 

Ecclesiastical Maintenance Services 

 320 NLRB 70 (1995) ............................................................................................................................ 22 

 325 NLRB 629 (1998) .......................................................................................................................... 22 

Economic Machinery Co., 111 NLRB 947 (1955) ............................................................................. 301, 302 
TABLE OF CASES DISCUSSED 367

Economic Security Corp., 299 NLRB 562 (1990)........................................................................................ 18 

Ed Chandler Ford, 241 NLRB 1201 (1979)................................................................................................ 289 

Edenwal Construction Co., 294 NLRB 297 (1989) .................................................................................... 161 

Edison Sault Electric Co., 313 NLRB 753 (1994) ...................................................................................... 122 

Edward G. Budd Mfg. Co.; NLRB v., 169 F.2d 571 (6th Cir. 1948), cert. denied 335 U.S. 908 (1948).... 212 

Edward J. DeBartolo Corp. 

 313 NLRB 382 (1993) ........................................................................................................................ 299 

 315 NLRB 1170 (1994) .............................................................................................................. 110, 111 

Edward Waters College, 307 NLRB 1321 (1992) ...................................................................................... 275 

El Cerrito Mill & Lumber Co., 316 NLRB 1005 (1995) ............................................................................ 159 

El Conquistador Hotel, 186 NLRB 123 (1970) .......................................................................................... 173 

El Dorado Club, 151 NLRB 579 (1965) ....................................................................................... 12, 172, 173 

El Fenix Corp., 234 NLRB 1212 (1978)............................................................................................. 305, 332 

El Mundo, Inc. 

 127 NLRB 538 (1960) ........................................................................................................................ 186 

 167 NLRB 760 (1967) ........................................................................................................................ 210 

El San Juan Hotel, 179 NLRB 516 (1969).................................................................................................. 173 

El Torito-La Fiesta Restaurants, 295 NLRB 493 (1989) .............................................................................. 84 

Elec-Comm, Inc., 298 NLRB 705 (1990)............................................................................................. 67, 162 

Electra Mfg. Co., 148 NLRB 494 (1964).................................................................................................... 316 

Electric Boat Division, 158 NLRB 956 (1966)............................................................................................. 94 

Electric Co.; NLRB v., 438 F.2d 1102 (1971) ............................................................................................ 294 

Electric Wheel Co., 120 NLRB 1644 (1958).............................................................................................. 341 

Electrical Workers Local 48 (Kingston Constructors), 332 NLRB 1492 (2000)............................................ 5 

Electrical Workers Local 58 (Steinmetz Electrical), 234 NLRB 633 (1978)................................................ 73 

Electrical Workers Local 103 (Drew Electric), 312 NLRB 591 (1993)...................................................... 318 

Electrical Workers Local 257 (Osage Neon Plastics), 176 NLRB 424 (1969) ............................................... 8 

Electrical Workers Local 444 (Paramax Systems), 311 NLRB 1031 (1993)...................................... 100, 101 

Electrical Workers Local 453 (Southern Sun), 242 NLRB 1130 (1979) ...................................................... 74 

Electro Wire Products, 242 NLRB 960 (1979)........................................................................................... 310 

Electromation, Inc., 309 NLRB 990 (1992).................................................................................................. 54 

Electrospace Corp., 189 NLRB 572 (1971).................................................................................................. 84 

Elite Limousine Plus, 324 NLRB 992 (1997)..................................................................................... 208, 211 

Elite Protective & Security Services, 300 NLRB 832 (1990)............................................................... 56, 129

Eljer Co., 108 NLRB 1417 (1954).............................................................................................................. 238 

Ellicott Machine Corp., 54 NLRB 732 (1944)............................................................................................ 289 

Elliott-Williams Co., 143 NLRB 811 (1963).............................................................................................. 217 

Ellis Electric, 315 NLRB 1187 (1994)........................................................................................................ 281 

Ellis-Klatcher & Co., 79 NLRB 183 (1948) ............................................................................................... 112 

Ellison Bros. Oyster Co., 124 NLRB 1225 (1959) ....................................................................................... 97 

Elmhurst Extended Care Facilities, 329 NLRB 535 (1999)........................................................................ 213 

Elmira College, 309 NLRB 842 (1992) ...................................................................................................... 188 

Elsa Canning Co., 154 NLRB 1810 (1965) ........................................................................................ 251, 280 

Ely & Walker, 151 NLRB 636 (1965)........................................................................................................ 275 

Embassy Suites Hotel, 313 NLRB 302 (1993) ........................................................................................... 327 

Emerson Electric Co., 177 NLRB 75 (1969) .............................................................................................. 316 

Emery Worldwide, 309 NLRB 185 (1992)................................................................................................. 340 

Empire Dental Co., 219 NLRB 1045 (1975) ................................................................................................ 63 

Empire Insurance Co., 195 NLRB 284 (1972) ........................................................................................... 178 

Empire Mfg. Corp., 120 NLRB 1300, 1317 (1958).................................................................................... 303 

Empire Screen Printing, 249 NLRB 718 (1980)........................................................................................... 77 

Employing Plasterers Assn., 118 NLRB 17 (1957) .................................................................................... 167 

Endicott Johnson de Puerto Rico, 172 NLRB 1676 (1968) ........................................................................ 113 

Engineer Constructors; NLRB v., 756 F.2d 464 (6th Cir. 1985) ................................................................ 115

Engineered Storage, 334 NLRB 1063 (2001) ............................................................................................. 162 

Englewood Hospital, 318 NLRB 806 (1995).............................................................................................. 317 
368 TABLE OF CASES DISCUSSED

Enola Super Thrift, 233 NLRB 409 (1977) ................................................................................................ 297 

Enrichment Services Program, Inc., 325 NLRB 818 (1998),........................................................................ 18 

Entergy Systems & Service, 328 NLRB 902 (1999) .................................................................................. 217 

Eric Brush & Mfg. Corp., 338 NLRB 1100 (2003) .................................................................................... 298 

Erman Corp., 330 NLRB 95 (1999)............................................................................................................ 278 

Ernst & Ernst National Warehouse, 228 NLRB 590 (1977)......................................................................... 12 

Esco Corp., 298 NLRB 837 (1990)............................................................................. 146, 149, 191, 192, 240 

Esgro Anaheim, Inc., 150 NLRB 401 (1965) ............................................................................................. 179 

Esgro Valley, Inc., 169 NLRB 76 (1968) ................................................................................................... 180 

Essbar Equipment Co., 315 NLRB 461 (1994)........................................................................................... 220 

Essex Wire Corp., 130 NLRB 450 (1961) .................................................................................................. 141 

Esso Standard Oil Co., 124 NLRB 1383 (1959)........................................................................................... 50 

Etiwan Fertilizer Co., 113 NLRB 93 (1955)................................................................................................... 4 

Etna Equipment & Supply Co. 

 236 NLRB 1578 (1978) ...................................................................................................................... 154 

 243 NLRB 596 (1979) ........................................................................................................................ 300 

Eugene Register Guard, 237 NLRB 205 (1978) ......................................................................................... 236 

Evans Pipe Co., 121 NLRB 15 (1958)........................................................................................................ 156 

Evening News Assn., 154 NLRB 1482 (1966) ............................................................................................... 6 

Evening News, 308 NLRB 563 (1992)............................................................................................... 181, 210 

Evergreen Aviation Ground Logistics, 327 NLRB 869 (1999) .................................................................... 19 

Evergreen Legal Services, 246 NLRB 964 (1979) ..................................................................................... 249 

Excel Corp. (Excel I), 311 NLRB 710 (1993) .............................................................................................. 43 

Excel Corp. (Excel II), 313 NLRB 588 (1993)............................................................................................. 43 

Excelsior Laundry Co., 186 NLRB 914 (1970) .......................................................................................... 311 

Excelsior Underwear, 156 NLRB 1236 (1966)............264, 270, 281, 283, 296, 306, 307, 308, 309, 329, 342 

Exchange Parts Co.; NLRB v., 375 U.S. 405 (1964).................................................................................. 300 

Executive Cleaning Services, 315 NLRB 227 (1994)................................................................................. 162 

Executive Resources Associates, 301 NLRB 400 (1991) ........................................................................... 146 

Exeter Hospital, 248 NLRB 377 (1980) ....................................................................................................... 59 

Express News Corp., 223 NLRB 627 (1976).............................................................................................. 226 

E-Z Davies Chevrolet, 161 NLRB 1380 (1966) ......................................................................................... 328 

F & A Food Sales, 325 NLRB 513 (1998).................................................................................................. 143 

F & M Importing Co., 237 NLRB 628 (1978)............................................................................................ 274 

F. & M. Schafer Brewing Co., 198 NLRB 323 (1972) ............................................................................... 201 

F. A. Bartlett Tree Expert Co. 

 137 NLRB 501 (1962) ........................................................................................................................ 249 

 325 NLRB 243 (1997) ........................................................................................................................ 218 

F. J. Stokes Corp., 117 NLRB 951 (1957).................................................................................................. 333 

F. N. Burt Co., 130 NLRB 1115 (1961)...................................................................................................... 258 

F. N. Calderwood, Inc., 124 NLRB 1211 (1959)........................................................................................ 302 

F. Strauss & Son, Inc., 195 NLRB 583 (1972) ........................................................................................... 332 

F. W. Woolworth Co. 

 96 NLRB 380 (1951) .......................................................................................................................... 333 

 107 NLRB 671 (1954) ........................................................................................................................ 125 

 119 NLRB 480 (1957) ........................................................................................................................ 250 

 144 NLRB 307 (1963) ........................................................................................................................ 186 

 310 NLRB 1197 (1993) ...................................................................................................................... 319 

F.H.E. Services, 338 NLRB 1095 (2003) ............................................................................................ 69, 124 

Facchina Construction Co., 343 NLRB 886 (2004).................................................................................... 221 

Facilities Management Corp., 202 NLRB 1144 (1973) .................................................................................. 6 

Factor Sales, Inc., 347 NLRB 747 (2006)................................................................................................... 267 

Fainblatt; NLRB v., 306 U.S. 601 (1939)....................................................................................................... 1 

Fairfax Family Fund, 195 NLRB 306 (1972) ............................................................................. 234, 236, 252 

Fairview Hospital, 174 NLRB 924 (1969), enfd. 75 LRRM 2839 (7th Cir. 1970)..................................... 275 

Faith Center-WHCT Channel 18, 261 NLRB 106 (1982) ...................................................................... 11, 22 
TABLE OF CASES DISCUSSED 369

Fall River Dyeing Corp., 272 NLRB 839 (1984), enfd. 775 F.2d 435 (1st Cir. 1985), 

affd. 482 U.S. 27 (1987) ......................................................................................................................... 251 

Fall River Savings Bank, 246 NLRB 831 fn. 4 (1979) ................................................................................. 36 

Fallon-Williams, Inc., 336 NLRB 602 (2001) ............................................................................................ 162 

Family Services Agency, San Francisco, 331 NLRB 850 (2000)............................................................... 327 

Famous Industries, 220 NLRB 484 (1975)................................................................................................. 278 

Famous-Barr Co., 153 NLRB 341 (1965)................................................................................................... 192 

Faribault Clinic, 308 NLRB 131 (1992) ..................................................................................................... 242 

Farmers Insurance Group 

 143 NLRB 240 (1979) ................................................................................................................ 245, 246 

 164 NLRB 233 (1967) ........................................................................................................................ 178 

Farmers Reservoir Irrigation Co. v. McComb, Wage & Hour Administrator, 337 U.S. 755 (1949) .......... 205 

Faulhaber Co., 191 NLRB 326 (1971)........................................................................................................ 339 

Fayette Mfg. Co., 193 NLRB 312 (1971) ................................................................................................... 169 

Fayetteville-Lincoln County Electric System, 183 NLRB 101 (1970) ......................................................... 18 

Federal Electric Corp., 157 NLRB 1130 (1966) ................................................................................. 127, 242 

Federal Express Corp., 317 NLRB 1071 (1995)........................................................................................... 18 

Federal Mogul Corp., 176 NLRB 619 (1969)............................................................................................. 102 

Federal Stores, 91 NLRB 647 (1950) ............................................................................................................. 6 

Federal-Mogul Corp., 209 NLRB 343 (1974) ............................................................................................ 257 

Federbush Co.; NLRB v., 121 F.2d 954 (2d Cir. 1941).............................................................................. 291 

Felix Half & Brother, Inc., 132 NLRB 1523 (1961)........................................................................... 261, 262 

Felton Oil Co., 78 NLRB 1033 (1948) ................................................................................................... 49, 75 

Fenfrock Motor Sales, 203 NLRB 541 (1973)............................................................................................ 307 

Fernandes Super Markets, 171 NLRB 419 (1968)...................................................................................... 171 

Fessler & Bowman, Inc., 341 NLRB 932 (2004)........................................................................................ 334 

Fiber Industries, 267 NLRB 840 (1983) ..................................................................................................... 341 

Fiber-Lam, Inc., 301 NLRB 94 (1991) ....................................................................................................... 293 

Fibre Leather Mfg. Corp., 167 NLRB 393 (1967)...................................................................................... 328 

Fidelity Healthcare & Rehab Center, 349 NLRB No. 120 (2007) .............................................................. 319 

Fidelity Telephone, 221 NLRB 1335 (1976) .............................................................................................. 182 

Fieldcrest Cannon, Inc. 

 318 NLRB 470 (1995) ........................................................................................................................ 312 

 327 NLRB 109 (1998) ........................................................................................................................ 343 

Financial Institution Employees; NLRB v., 475 U.S. 192 (1986) (Seattle-First) ................................. 69, 119 

Fireman’s Fund Insurance Co., 173 NLRB 982 (1969).............................................................. 177, 178, 239 

Firemen & Oilers, 145 NLRB 1521 (1964) ........................................................................................ 121, 133 

Firestone Synthetic Fibers Co., 171 NLRB 1121 (1968)................................................ 80, 96, 134, 140, 142 

Firestone Synthetic Latex Co., 201 NLRB 347 (1973)............................................................................... 233 

Firestone Tire Co. 

 156 NLRB 454 (1966) ........................................................................................................................ 135 

 181 NLRB 830 (1970) ........................................................................................................................ 225 

 185 NLRB 63 (1970)................................................................................................................... 109, 123 

 223 NLRB 904 (1976) ................................................................................................................ 196, 198 

First Security Services Corp., 329 NLRB 235 (1999) ........................................................................ 148, 149 

Firstline Transportation Security, 347 NLRB 447 (2006) ........................................................................ 5, 22 

Fish Engineering & Construction, 308 NLRB 836 (1992) ......................................................................... 115 

Fish Industry Committee, 98 NLRB 696 (1951)............................................................................................. 6 

Fisher Controls Co., 192 NLRB 514 (1971)....................................................................... 238, 241, 242, 252 

Fisher-Friedman Associates, 192 NLRB 925 (1971).............................................................................. 9, 165 

Fisher-New Center Co. 

 170 NLRB 909 (1968) .......................................................................................................................... 72 

 184 NLRB 809 (1970) ........................................................................................................................ 284 

Fitzpatrick Drilling Co., 139 NLRB 1013 (1962)....................................................................................... 281 

Five Hospital Homebound Elderly Program, 323 NLRB 441 (1997)......................................................... 247 

FiveCap, Inc., 331 NLRB 1165 (2000)......................................................................................................... 18 
370 TABLE OF CASES DISCUSSED

Flat River Glass Co., 234 NLRB 1307 (1978).................................................................................... 299, 312 

Flatbush Manor Care Center, 313 NLRB 591 (1993)................................................................................. 162 

Fleet Boston Pavilion, 333 NLRB 655 (2001).................................................................................... 289, 328 

Fleetwood Trailer Co.; NLRB v., 389 U.S. 375 (1967).............................................................................. 278 

Fleming Cos., 330 NLRB 277 (1999);........................................................................................................ 217

Fleming Foods, 313 NLRB 948 (1994) ...................................................................................... 138, 240, 245 

Fleming Industries, 282 NLRB 1030 (1987) .............................................................................................. 254 

Fletcher Jones Chevrolet, 300 NLRB 875 (1990)............................................................................... 196, 202 

Flex Products, 280 NLRB 1117 (1986) ...................................................................................................... 301 

Flight Safety, Inc., 171 NLRB 146 (1986).................................................................................................... 19 

Flint Steel Corp., 168 NLRB 271 (1968)...................................................................................................... 84 

Florence Volunteer Fire Department, 265 NLRB 955 (1982) .................................................................... 237 

Florida Casino Cruises, 322 NLRB 857 (1997).................................................................................. 173, 180 

Florida Tile Industries, 130 NLRB 897 (1961)............................................................................................. 61 

Floridan Hotel of Tampa, 124 NLRB 261 (1959)................................................................................. 13, 176 

Flo-Tronic Metal Mfg., 251 NLRB 1546 (1980)........................................................................................ 335 

Foley, Hoag & Eliot, 229 NLRB 456 (1977)........................................................................................ 13, 178 

Folger Coffee Co. 

 250 NLRB 1 (1980) ............................................................................................................................ 241 

 251 NLRB 1 (1980) ............................................................................................................................ 138 

Food & Commercial Workers Local 120 (Weber Meats), 275 NLRB 1376 (1985)....................................... 2 

Food & Commercial Workers Local 300 v. McCulloch, 428 F.2d 396 (5th Cir. 1970) ............................. 206 

Food & Commercial Workers Local 1996 (Visiting Nurse Health System), 336 NLRB 421 (2001)..... 38, 63 

Food Fair Stores, 204 NLRB 75 (1973)........................................................................................................ 71 

Food Haulers, 136 NLRB 395 (1962)................................................................................................. 104, 105 

Food Marts, 200 NLRB 18 (1973).............................................................................................................. 183 

Foodland of Ravenswood, 323 NLRB 665 (1997) ..................................................................................... 183 

Ford Center for the Performing Arts, 328 NLRB 1 (1998)......................................................................... 113 

Ford Motor Co., 66 NLRB 1317 (1946) ............................................................................................. 233, 235 

Fordham University, 193 NLRB 134 (1971) ...................................................................... 188, 189, 222, 223

Foreign & Domestic Car Service, 333 NLRB 96 (2001).............................................................................. 19 

Foreign Car Center, 129 NLRB 319 (1961)................................................................................................ 134 

Foreman & Clark, Inc., 97 NLRB 1080 (1951) .......................................................................................... 185 

Foremost Appliance Corp., 128 NLRB 1033 (1960).................................................................................... 83 

Foremost Dairies of the South v. NLRB, 416 F.2d 392 (5th Cir. 1969) ..................................................... 316 

Foremost Dairies of the South, 172 NLRB 1242 (1968) .................................................................... 315, 323

Formfit Rogers Co. v. NLRB, 71 LRRM 2456 (D.C.Tenn. 1969) ............................................................. 310 

Fort Apache Timber Co., 226 NLRB 503 (1976) ........................................................................................... 8 

Fort Houston Beauty Shop, 270 NLRB 1006 (1984)...................................................................................... 5 

Fountainebleu Hotel Corp., 181 NLRB 1134 (1970).................................................................................. 307 

Fountainview Care Center, 323 NLRB 990 (1997) .................................................................................... 308 

Four Seasons Solar Products Corp., 332 NLRB 67 (2000)................................................................. 102, 105 

Four Winds Services, 325 NLRB 632 (1998)............................................................................................. 134 

FPA Medical Management, 331 NLRB 936 (2000). .................................................................................... 38 

Framed Picture Enterprise, 303 NLRB 722 (1991)............................................................................. 268, 289 

Francis Building Corp., 327 NLRB 485 (1998).......................................................................................... 161 

Frank Becker Towing Co., 151 NLRB 466 (1965)..................................................................................... 111 

Frank Hager, Inc., 230 NLRB 476 (1977) .................................................................................................... 77 

Franklin Mint Corp., 254 NLRB 714 (1981) .............................................................................................. 201 

Franklin’s Stores Corp., 117 NLRB 793 (1957) ......................................................................................... 330 

Franz Food Products, 137 NLRB 340 (1962) ............................................................................................... 74 

Fraser & Johnston Co., 189 NLRB 142 (1971) .......................................................................................... 131 

Fraser-Brace Engineering Co., 38 NLRB 1263 (1942)............................................................................... 115 

Fred Meyer Alaska, Inc., 334 NLRB 646 (2001)........................................................................................ 213 

Fred Wilkinson Associates, 297 NLRB 737 (1990) ................................................................................... 294 

Frederick Confer & Associates, 193 NLRB 910 (1971)............................................................................. 165 
TABLE OF CASES DISCUSSED 371

Freedom WLNE-TV, 295 NLRB 634 (1989)..................................................................................... 111, 117 

Freeman Decorating Co., 330 NLRB 1143 (2000) ..................................................................................... 217 

Freeman Loader Corp., 127 NLRB 514 (1960) .......................................................................................... 251 

Freemont Hotel, 168 NLRB 115 (1968) ..................................................................................................... 173 

Fresenius USA Mfg., Inc., 352 NLRB No. 86 (2008) ................................................................................ 324 

Fresno Auto Auction, 167 NLRB 878 (1967)............................................................................................. 245 

Freuhauf Trailer Co., 87 NLRB 589 (1949) ................................................................................................. 78 

Freund Baking Co. 

 165 F.3d 928 (D.C. Cir. 1999) ............................................................................................................ 343 

 330 NLRB 17 (1999) ...................................................................................................................... 38, 47 

 336 NLRB 847 (2001) ........................................................................................................................ 298 

Frisch’s Big Boy Ill-Mar, Inc., 147 NLRB 551 (1964)....................................................................... 146, 147 

Frisch’s Restaurants, 182 NLRB 544 (1970).............................................................................................. 192 

Frito Lay, Inc., 341 NLRB 515 (2004) ....................................................................................................... 302 

Frito-Lay, Inc. v. NLRB, 385 F.2d 180 (7th Cir. 1967)...................................................................... 207, 208 

Frolic Footwear, 180 NLRB 188 (1970)..................................................................................................... 114 

Frontier Hotel & Casino, 323 NLRB 815 (1997)........................................................................................ 319 

Frontier Hotel v. NLRB, 625 F.2d 293 (9th Cir. 1980) .............................................................................. 327 

Frostco Super Save Stores, 138 NLRB 125 (1962) .................................................................... 162, 179, 180

Frye & Smith, Ltd., 151 NLRB 49 (1956).................................................................................................... 87 

Fuchs Baking Co., 174 NLRB 720 (1969).................................................................................................. 309 

Fullview Industries, 149 NLRB 427 (1965) ................................................................................................. 99 

Furniture City Upholstery Co., 115 NLRB 1433 (1956) ............................................................................ 341 

FWD Corp., 138 NLRB 386 (1962) ............................................................................................................. 48 

G & K Services, Inc., 340 NLRB 722 (2003)............................................................................................. 285 

G. C. Murphy Co. 

 80 NLRB 1072 (1949) .......................................................................................................................... 81 

 128 NLRB 908 (1960) ........................................................................................................................ 247 

G. F. Lasater, 118 NLRB 802 (1957).......................................................................................................... 331 

G. Wes Ltd. Co., 309 NLRB 225 (1992) .................................................................................................... 162 

G.E. Maier Co., 349 NLRB No. 98 (2007)................................................................................................. 221 

G.H.R. Foundry Division, 123 NLRB 1707 (1959).................................................................................... 325 

G.L. Milliken Plastering, 340 NLRB 1169 (2003) ............................................................................... 80, 138 

G.T.A. Enterprises, 260 NLRB 197 (1982) ................................................................................................ 221 

Gala Food Processing, 310 NLRB 1193 (1993) ......................................................................................... 285 

Gamble Robinson Co., 180 NLRB 532 (1970)................................................................................... 307, 308 

Gannett Satellite Information Network, 330 NLRB 315 (1999)................................................................. 269 

Garden Island Publishing Co., 154 NLRB 697 (1965) ............................................................................... 181 

Garden Manor Farms, Inc., 341 NLRB 192 (2004)................................................................................ 73, 75 

Garland Junior College, 188 NLRB 358 (1971) ........................................................................................... 10 

Garland Knitting Mills, 170 NLRB 821 (1968), enfd. in material part 414 F.2d 1214 (D.C. Cir. 1969) ... 342 

Garlock Equipment Co., 288 NLRB 247 (1988) ........................................................................................ 120 

Garrett Supply Co., 165 NLRB 561 (1967) ........................................................................................ 192, 255 

Garrison Nursing Home, 293 NLRB 122 (1989).......................................................................................... 59 

Garrity Oil Co., 272 NLRB 158 (1984) ...................................................................................................... 332 

Gartner-Harf Co., 308 NLRB 531 (1992)................................................................................................... 163 

Gary Enterprises, 300 NLRB 1111 (1990) ................................................................................................. 208 

Gary Steel Products Corp. 

 127 NLRB 1170 (1960) .................................................................................................................. 47, 63 

 144 NLRB 1160 (1963) ........................................................................................................................ 46 

Gary Steel Supply Co., 144 NLRB 470 (1963) .............................................................................. 78, 91, 103 

Gas Pipeline Co. of America, 223 NLRB 1439 (1976) .............................................................................. 183 

Gas Service Co., 140 NLRB 445 (1963)..................................................................................................... 136 

Gate City Optical Co. 

 173 NLRB 1709 (1969) ........................................................................................................................ 91 

 175 NLRB 1059 (1969) ........................................................................................................................ 73 
372 TABLE OF CASES DISCUSSED

Gaylord Bag Co., 313 NLRB 306 (1993) ............................................................................................. 50, 298 

Gaylord Broadcasting, 250 NLRB 198 (1980) ....................................................................................... 78, 79 

Gazette Printing Co., 175 NLRB 1103 (1969)........................................................................................ 73, 74 

Gebhardt-Vogel Tanning Co., 154 NLRB 913 (1965)................................................................................ 111 

Gemex Corp., 120 NLRB 46 (1958)............................................................................................................. 57 

General Aniline Corp., 89 NLRB 467 (1950)............................................................................................. 136 

General Box Co., 82 NLRB 678 (1949) ....................................................................................................... 63 

General Cable Corp. 

 139 NLRB 1123 (1962) ........................................................................................................................ 85 

 170 NLRB 1682 (1968........................................................................................................................ 340 

 173 NLRB 251 (1969) ........................................................................................................................ 114 

General Dynamics Corp. 

 140 NLRB 1286 (1963) ...................................................................................................................... 258 

 144 NLRB 908 (1963) .................................................................................................................... 94, 97 

 148 NLRB 338 (1964) .......................................................................................................................... 63 

 175 NLRB 1035 (1969) ............................................................................................................ 43, 47, 86 

 181 NLRB 874 (1970) ........................................................................................................................ 339 

 213 NLRB 851 (1974) .......................................................................................................................... 46 

General Electric Co. 

 89 NLRB 726 (1950) ............................................................................................................................ 49 

 100 NLRB 1489 (1951) ...................................................................................................................... 133 

 119 NLRB 944 (1957) ........................................................................................................................ 321 

 120 NLRB 199 (1958) ........................................................................................................................ 226 

 123 NLRB 1193 (1959) ...................................................................................................................... 133 

 131 NLRB 100 (1961) ........................................................................................................................ 255 

 148 NLRB 811 (1964) ........................................................................................................................ 169 

 161 NLRB 618 (1966) ................................................................................................................ 307, 311 

 170 NLRB 1272 (1968) ........................................................................................................................ 83 

 170 NLRB 1277 (1968) ........................................................................................................................ 83 

 173 NLRB 399 (1969) ........................................................................................................................ 242 

 173 NLRB 511 (1969) ........................................................................................................................ 103 

 180 NLRB 1094 (1970) ........................................................................................................................ 71 

 185 NLRB 13 (1970) .............................................................................................................. 66, 83, 133 

 204 NLRB 576 (1973) ........................................................................................................................ 141 

General Electric Wiring Devices, 182 NLRB 876 (1970) .......................................................................... 294 

General Engineering, 123 NLRB 586 (1959) ............................................................................................. 115 

General Extrusion Co., 121 NLRB 1165 (1958)....................................................................... 82, 83, 85, 113 

General Felt, 269 NLRB 474 (1984) .......................................................................................................... 296 

General Foods Corp., 166 NLRB 1032 (1967) ........................................................................................... 200 

General Housing Industries, 197 NLRB 24 (1972)..................................................................................... 317 

General Instrument Corp. v. NLRB, 319 F.2d 420 (4th Cir. 1963), cert. denied 375 U.S. 966 (1964) ...... 128 

General Metal Products Co., 164 NLRB 64 (1967).................................................................................... 314 

General Motors, 373 U.S. 734 (1963)......................................................................................................... 101 

General Photo Products, 242 NLRB 1371 (1979)....................................................................................... 332 

General Security Services Corp., 326 NLRB 312 (1998) ................................................................... 217, 220

General Shoe Corp. 

 113 NLRB 905 (1955) .......................................................................................................................... 45 

 114 NLRB 381 (1956) .......................................................................................................................... 51 

 77 NLRB 124 (1948) .......................................................................................... 295, 298, 299, 301, 302 

General Telephone & Electronics Communications, 160 NLRB 1192 (1966)............................................. 11 

General Time Corp. 

 195 NLRB 343 (1972) ........................................................................................................................ 307 

 216 NLRB 9 (1975) .............................................................................................................................. 95 

General Tube Co., 141 NLRB 441 (1963).................................................................................................... 30 

General Tube Co.; NLRB v., 331 F.2d 751 (6th Cir. 1964)........................................................................ 274 

Genesco Inc. v. Clothing & Textile Workers, 341 F.2d 482, 489 (2d Cir. 1966) ....................................... 156 
TABLE OF CASES DISCUSSED 373

George Joseph Orchard Siding, Inc., 325 NLRB 252 (1998) ............................................................... 36, 268 

George L. Mee Memorial Hospital, 348 NLRB 327 (2006)....................................................................... 236 

George Schuworth, 146 NLRB 459 (1964) .................................................................................................... 2 

George V. Hamilton, Inc., 289 NLRB 1335 (1988).................................................................................... 161 

George Washington University 

 191 NLRB 151 (1971) ........................................................................................................................ 190 

 346 NLRB 155 (2005) ........................................................................................................................ 307 

Georgetown University, 200 NLRB 215 (1972)......................................................................................... 190 

Georgia Highway Express, 150 NLRB 1649 (1965) .......................................................................... 171, 251

Georgia Kaolin Co., 287 NLRB 485 (1987)................................................................................................. 89 

Georgia Kraft Co., 120 NLRB 806 (1958) ................................................................................................... 51 

Georgia Purchasing, 230 NLRB 1174 (1977)............................................................................................... 78 

Georgia-Pacific Corp. 

 201 NLRB 831 (1973) ........................................................................................................................ 252 

 325 NLRB 867 (1998) ........................................................................................................................ 295 

Gerlach Meat Co., 192 NLRB 559 (1971).................................................................................................. 114 

Gerland’s Food Fair, 272 NLRB 294 (1984).............................................................................................. 307 

German School of Washington, 260 NLRB 1250 (1982)............................................................................. 21 

Giant Eagle Markets, 308 NLRB 206 (1992) ..................................................................................... 140, 142 

Gibbs & Cox, Inc. 

 168 NLRB 220 (1968) ........................................................................................................................ 124 

 280 NLRB 953 (1986) .......................................................................................................................... 71 

Gibson Discount Center, 191 NLRB 622 (1971)........................................................................................ 219 

Gibson Electric, 226 NLRB 1063 (1976) ................................................................................................... 115 

Gibson’s Discount Center, 214 NLRB 221 (1974)..................................................................................... 287 

Gilbraltar Steel Corp., 323 NLRB 601 (1997)............................................................................................ 287 

Gilchrist Timber Co., 76 NLRB 1233 (1948) ............................................................................................. 108 

Gillette Motor Transport, 137 NLRB 471 (1962)....................................................................................... 141 

Gino Morena Enterprises, 181 NLRB 808 (1970) .................................................................................. 54, 57 

Giordano Lumber Co., 133 NLRB 205 (1961) ........................................................................................... 252 

Girton Mfg. Co., 129 NLRB 656 (1961) ...................................................................................................... 63 

Gissel Packing Co., 395 U.S. 575 (1969) ........................................................................... 291, 292, 293, 295 

Gissel Packing Co.; NLRB v., 395 U.S. 575 (1969)..................................................................................... 72 

Gitano Distribution Center, 308 NLRB 1172 (1992).......................................................................... 123, 143 

Giummarra Electric, 291 NLRB 37 (1988)................................................................................................. 284 

Glasgow Industries, 204 NLRB 625 (1973) ............................................................................................... 295 

Glass Bottle Blowers Local 106 (Owens-Illinois), 210 NLRB 943 (1974) .................................. 55, 104, 135 

Glass Depot, 318 NLRB 766 (1995)........................................................................................................... 330 

Glauber Water Works, 112 NLRB 1462 (1955) ......................................................................................... 320 

Glen’s Market, 344 NLRB 294 (2005) ....................................................................................................... 319 

Glenn McClendon Trucking, 255 NLRB 1304 (1981) ............................................................................... 329 

Globe Aviation Services, 334 NLRB 278 (2001). ........................................................................................ 19 

Globe Discount City, 171 NLRB 830 (1968) ............................................................................................. 179 

Globe Furniture Rentals, 298 NLRB 288 (1990)................................................................................ 148, 149 

Globe Iron Foundry, 112 NLRB 1200 (1955) .............................................................................................. 51 

Globe Machine & Stamping Co., 3 NLRB 294 (1937)......................................................................... 80, 257 

Globe Molded Plastics Co., 200 NLRB 377 (1972) ................................................................................... 277 

Glosser Bros., Inc., 93 NLRB 1343 (1951)................................................................................................. 128 

Gluck Bros., 119 NLRB 1848 (1958) ......................................................................................................... 171 

Goddard College, 216 NLRB 457 (1975)................................................................................................... 248 

Goddard Riverside Community Center, 351 NLRB No. 84 (2007)............................................................ 122 

Goethe House New York, 288 NLRB 257 (1988)........................................................................................ 21 

Gold Medal Baking Co., 199 NLRB 895 (1972) ........................................................................................ 208 

Gold Shield Security & Investigations, 306 NLRB 20 (1992).................................................................... 298 
374 TABLE OF CASES DISCUSSED

Goldblatt Bros. 

 118 NLRB 643 (1957) .......................................................................................................................... 51 

 86 NLRB 914 (1949) .......................................................................................................................... 185 

Golden Crest Healthcare Center, 348 NLRB 727 (2006) ........................................................................... 215 

Golden West Electric, 307 NLRB 1494 (1992) .......................................................................................... 106 

Golden Years Rest Home, 289 NLRB 1106 (1988).................................................................................... 339 

Golf Course Inns, 199 NLRB 541 (1972)..................................................................................................... 15 

Gonzales Packing Co., 304 NLRB 805 (1991) ........................................................................................... 342 

Good Shepard Home, 321 NLRB 426 1996) .............................................................................................. 336 

Goodbody & Co., 182 NLRB 81 (1970)....................................................................................................... 16 

Goodless Electric Co., 321 NLRB 64 (1996) ............................................................................................. 105 

Goodwill Industries of Denver, 304 NLRB 764 (1991)........................................................................ 14, 255 

Goodwill Industries of North Georgia, 350 NLRB No. 5 (2007) ............................................................... 255 

Goodwill Industries of Southern California, 231 NLRB 536 (1977)............................................................ 14 

Goodwill Industries of Tidewater, 304 NLRB 767 (1991) ......................................................................... 255 

Goody’s Family Clothing, 308 NLRB 181 (1992) ............................................................................. 267, 288 

Goodyear Tire Co. 

 147 NLRB 1233 (1964) ...................................................................................................................... 140 

 165 NLRB 188 (1967) ........................................................................................................................ 200 

Gordon Electric Co., 123 NLRB 862 (1959) .................................................................................................. 6 

Gormac Custom Mfg., 324 NLRB 423 (1997) ........................................................................................... 303 

Gould-National Batteries, Inc., 157 NLRB 679 (1966) .............................................................................. 123 

GPS Terminal Services, Inc., 326 NLRB 839 (1998)................................................................................. 333 

Graham Architectural Products Corp., 259 NLRB 1174 (1982)................................................................. 289 

Grainger Bros. Co., 146 NLRB 609 (1964).................................................................................................. 85 

Grand Central Liquors, 155 NLRB 295 (1965) .......................................................................................... 179 

Grand Union Co. 

 176 NLRB 230 (1969) ........................................................................................................................ 148 

 193 NLRB 525 (1971) ........................................................................................................................ 220 

Grange Debris Box & Wrecking Co., 344 NLRB 1004 (2005) .................................................................. 274 

Granite City Steel Co., 137 NLRB 209 (1962)........................................................................... 140, 141, 142 

Grant’s Home Furnishings, 229 NLRB 1305 (1977).................................................................................. 285 

Grass Valley Grocery Outlet, 332 NLRB 1449 (2000)............................................................................... 161 

Graver Construction Co., 118 NLRB 1050 (1957) ..................................................................................... 167 

Gray Drug Stores, 197 NLRB 924 (1972) .................................................................................. 130, 146, 148 

Great Atlantic & Pacific Tea Co. 

 101 NLRB 1118 (1952) ...................................................................................................................... 289 

 111 NLRB 623 (1955) ........................................................................................................................ 311 

 119 NLRB 603 (1957) ........................................................................................................................ 246 

 120 NLRB 765 (1958) ................................................................................................................ 314, 315 

 121 NLRB 38 (1958) .......................................................................................................................... 280 

 123 NLRB 1005 (1959) ...................................................................................................................... 111 

 126 NLRB 580 (1960) .......................................................................................................................... 89 

 130 NLRB 226 (1961) .......................................................................................................................... 49 

 140 NLRB 133 (1963) ........................................................................................................................ 302 

 153 NLRB 1549 (1965) ........................................................................................................ 80, 131, 146 

 162 NLRB 1182 (1967) ...................................................................................................................... 185 

 197 NLRB 922 (1972) .......................................................................................................................... 85 

Great Eastern Color Lithographic Corp., 131 NLRB 1139 (1961) ............................................................. 332 

Great Falls 331 NLRB 1663 (2000).............................................................................................................. 20 

Great Lakes Industries, 124 NLRB 353 (1959) ............................................................................................ 66 

Great Lakes Pilots, 311 NLRB 131 (1993)................................................................................................. 237 

Great Scott Supermarkets, 156 NLRB 592 (1966) ..................................................................................... 108 

Great Western Sugar Co., 137 NLRB 551 (1962) ...................................................................................... 218 

Greater Syracuse Printing Employers’ Assn., 140 NLRB 217 (1963)............................................................ 6 

Green Acres Country Care Center, 327 NLRB 257 (1998) ........................................................................ 218
TABLE OF CASES DISCUSSED 375

Greenhoot, Inc., 205 NLRB 250 (1973) ..................................................................................................... 162 

Greenhorne & O’Mara, Inc., 326 NLRB 514 (1998).......................................................... 145, 148, 149, 217 

Greenpoint Sleep Products, 128 NLRB 548 (1960)...................................................................................... 94 

Greenspan Engraving Corp., 137 NLRB 1308 (1962)........................................................................ 273, 274

Green-Wood Cemetery, 280 NLRB 1359 (1986) ......................................................................................... 71 

Greyhound Airport Services, 189 NLRB 291 (1971) ................................................................................. 214 

Greyhound Corp.; Boire v., 376 U.S. 473 (1964) ................................................................................. 38, 162 

Greyhound Lines, 257 NLRB 477 (1981)................................................................................................... 234 

Greyhound Terminal, 137 NLRB 87 (1962)................................................................................................... 4 

Griffin Wheel Co., 80 NLRB 1471 (1949) ................................................................................................. 134 

Grocers Supply Co., 160 NLRB 485 (1966)....................................................................................... 234, 254 

Groendyke Transport, 171 NLRB 997 (1968) .................................................................................... 136, 170 

Group Health Assn., 317 NLRB 238 (1995)................................................................................. 72, 227, 260 

Grove Valve & Regulator Co., 262 NLRB 285 (1982) .............................................................................. 341 

Growers Warehouse Co., 114 NLRB 1568 (1955) ..................................................................................... 324 

Grower-Shipper Vegetable Assn., 112 NLRB 807 (1955) ........................................................................... 50 

Guardian Armored Assets, LLC, 337 NLRB 556 (2002) ............................................................... 55, 56, 230 

Guardian Container Co., 174 NLRB 34 (1969) ............................................................................................ 54 

Gulf Building Corp., 159 NLRB 1621 (1966) .............................................................................................. 14 

Gulf Oil Corp., 109 NLRB 861 (1954)....................................................................................................... 120 

Gulf States Asphalt Co., 106 NLRB 1212 (1953)....................................................................................... 273 

Gulf States Canners, 242 NLRB 1326 (1979) ............................................................................................ 340 

Gulf States Paper Corp., 219 NLRB 634 (1975)......................................................................................... 278 

Gulf States Telephone Co., 118 NLRB 1039 (1957) .......................................................................... 249, 255 

Gunzenhauser Bakery, 137 NLRB 1613 (1962) ......................................................................................... 172 

Gustave Fischer, Inc., 256 NLRB 1069 (1981)........................................................................... 129, 130, 240 

Guy H. James Construction Co., 191 NLRB 282 (1971).............................................................................. 83 

H & L Distributing Co., 206 NLRB 169 (1973) ......................................................................................... 329 

H. A. Rider & Sons, 117 NLRB 517 (1957)................................................................................................. 73 

H. L. Klion, Inc., 148 NLRB 656 (1964).................................................................................. 83, 84, 99, 102 

H. M. Patterson, Inc.; NLRB v., 636 F.2d 1014 (5th Cir. 1981)................................................................. 172 

H. P. Hood & Sons 

 167 NLRB 437 (1967) (Hood I) ........................................................................................................... 60 

 182 NLRB 194 (1970) (Hood II) .......................................................................................................... 60 

 187 NLRB 404 (1971) ........................................................................................................................ 130 

H. P. Wasson & Co., 153 NLRB 1499 (1965)............................................................................................ 192 

H. W. Elson Bottling Co., 155 NLRB 714 (1965)...................................................................................... 302 

H.Y. Floors, & Gameline Painting, 331 NLRB 304 (2000)........................................................................ 106 

Haag Drug Co. 

 146 NLRB 798 (1964) ........................................................................................................................ 247 

 169 NLRB 877 (1968) ................................................................................................................ 146, 183 

Hafadai Beach Hotel, 321 NLRB 116 (1996)............................................................................................... 29 

Halben Chemical Co., 124 NLRB 1431 (1959)................................................................................ 44, 50, 58 

Hale Nani Rehabilitation & Nursing, 326 NLRB 335 (1998)..................................................................... 300

Hallandale Rehabilitation Center, 313 NLRB 835 (1994).......................................................... 242, 328, 342 

Halliburton Services, 265 NLRB 1154 (1982) ............................................................................................. 28 

Hall-Scott, Inc., 120 NLRB 1364 (1958).................................................................................................... 125 

Halsted Communications, 347 NLRB 225 (2006).............................................................................. 254, 285 

Hamburg Industries, 193 NLRB 67 (1971)..................................................................................................... 7 

Hamilton Halter Co., 270 NLRB 331 (1984)...................................................................................... 238, 240 

Hamilton Park Health Care Center, 298 NLRB 608 (1990) ......................................................................... 93 

Hamilton Test Systems v. NLRB, 743 F.2d 136 (2d Cir. 1984) ................................................................... 37

Hamilton Test Systems, 265 NLRB 595 (1982) ......................................................................................... 130 

Hamilton Tool Co., 190 NLRB 571 (1971) ........................................................................................ 119, 120 

Hammond Publishers, 286 NLRB 49 (1987)........................................................................................ 70, 119 

Hampton Inn & Suites, 331 NLRB 238 (2000) .......................................................................................... 286 
376 TABLE OF CASES DISCUSSED

Hampton Roads Broadcasting Corp., 100 NLRB 238 (1951)..................................................................... 186 

Hampton Roads Maritime Assn., 178 NLRB 263 (1969)........................................................... 233, 234, 235 

Handy Andy, Inc., 228 NLRB 447 (1977)............................................................................................ 55, 136 

Hanford Sentinel, 163 NLRB 1004 (1967)......................................................................................... 325, 329 

Hanna Boys Center, 284 NLRB 1080 (1987) ............................................................................................... 20 

Harbor City Volunteer Ambulance Squad, 318 NLRB 764 (1995) .................................................... 214, 224 

Harborside Healthcare, Inc. 

 330 NLRB 1334 (2000); ..................................................................................................................... 212 

 343 NLRB 906 (2004) ................................................................................................................ 287, 318 

Harlem River Consumers Cooperative, 191 NLRB 314 (1971) ............................................................. 55, 60 

Harold J. Becker Co., 343 NLRB 51 (2004)............................................................................................... 253 

Harold M. Pitman Co., 303 NLRB 655 (1991)........................................................................................... 274 

Harold W. Moore & Son, 173 NLRB 1258 (1968)..................................................................................... 339 

Harold’s Club, 194 NLRB 13 (1972).......................................................................................................... 173 

Harrah’s Club 

 150 NLRB 1702 (1965), enfd. 362 F.2d 425 (9th Cir. 1966), cert. denied 386 U.S. 915 (1967).......... 12 

 187 NLRB 810 (1971) ........................................................................................................................ 173 

Harrah’s Marina Hotel, 267 NLRB 1007 (1983) .......................................................................................... 54 

Harron Communications, 308 NLRB 62 (1992)......................................................................................... 130 

Harry Lunstead Designs, 270 NLRB 1163 (1984)...................................................................................... 323 

Harte & Co., 278 NLRB 947 (1986)............................................................................................................. 84 

Harter Equipment, 293 NLRB 647 (1989)............................................................................................ 70, 278 

Harvard College, 269 NLRB 821 (1984).................................................................................................... 190 

Hausner Hard Chrome of KY, Inc., 326 NLRB 426 (1998) ....................................................... 217, 218, 221 

Hawaii National Bank, 212 NLRB 576 (1974)........................................................................................... 165 

Hawaiian Telephone Co., 186 NLRB 1 (1970)................................................................................... 214, 217 

Hazelton Laboratories, 136 NLRB 1609 (1962)................................................................................... 57, 241 

HCL, Inc., 343 NLRB 981 (2004) .............................................................................................................. 156 

Health Care & Retirement Corp. of America; NLRB v., 511 U.S. 571 (1994) .......................... 212, 215, 223 

Health Care Unit Rules 

 284 NLRB 1515 (1989) .............................................................................................................. 240, 242 

 284 NLRB 1516 (1989) ...................................................................................................... 172, 173, 175 

 284 NLRB 1527 (1989) ...................................................................................................................... 152 

 284 NLRB 1580 (1989) ...................................................................................................................... 139 

Health Center of Boulder County, 222 NLRB 901 (1976) ......................................................................... 108 

Health Resources of Lakeview, 332 NLRB 878 (2000) ............................................................................. 217 

Hearst Corp. 

 174 NLRB 934 (1969) ........................................................................................................................ 210 

 200 NLRB 475 (1973) ........................................................................................................................ 171 

Heartland of Beckley, 328 NLRB 1056 (1999) .......................................................................................... 214 

Heartland of Martinsburg, 313 NLRB 655 (1994).............................................................................. 267, 288 

Hebrew Home & Hospital, 311 NLRB 1400 (1993) .......................................................................... 175, 203 

Heckett Engineering Co., 117 NLRB 1395 (1957)..................................................................................... 254 

Hegins Corp., 255 NLRB 1236 (1981) ....................................................................................................... 128 

Helen Clay Frick Foundation, 217 NLRB 1100 (1975).................................................................................. 9 

Hendricks County Electric Corp.; NLRB v., 454 U.S. 170 (1981)............................................................. 235 

Henry Bierce Co., 328 NLRB 646, 650 (1999), enfd. in relevant part 234 F.3d 1268 (6th Cir. 2000)......... 69 

Henry Lee Co., 194 NLRB 1107 (1972)..................................................................................................... 246 

Herald Co., 181 NLRB 421 (1970), enfd. 444 F.2d 430 (2d Cir. 1971) ..................................................... 210 

Herbert Harvey, Inc., 171 NLRB 238 (1968) ............................................................................................... 21 

Herdon Rock Products, 97 NLRB 1250 (1951) ............................................................................................ 92 

Herlin Press, 177 NLRB 940 (1969)................................................................................................. 77, 79, 97 

Herman Bros., Inc., 264 NLRB 439 (1982).................................................................................................. 83 

Hershey Chocolate Corp., 121 NLRB 901 (1958)................................................................ 88, 89, 90, 91, 92 

Hershey Chocolate Corp.; NLRB v., 297 F.2d 286 (3d Cir. 1961)............................................................... 88 

Hershey Foods Corp., 208 NLRB 452 (1974) .............................................................................................. 65 
TABLE OF CASES DISCUSSED 377

Hertz Corp. 

 265 NLRB 1127 (1982) ........................................................................................................................ 97 

 316 NLRB 672 (1995) ........................................................................................................................ 295 

Hertz Equipment Rental Corp., 328 NLRB 28 (1999)................................................................................ 117 

Hertzka & Knowles, 192 NLRB 923 (1971) .............................................................................................. 165 

Heublein, Inc., 119 NLRB 1337 (1958)...................................................................................................... 132 

Hexton Furniture Co., 111 NLRB 342 (1955) .............................................................................................. 77 

Hialeah Race Course, 125 NLRB 388 (1960)............................................................................................... 22 

Hickory Farms of Ohio, 180 NLRB 755 (1970) ........................................................................................... 24 

Higgins, Inc., 111 NLRB 797 (1955).................................................................................................... 50, 276 

Highland Hospital, 288 NLRB 750 (1988)................................................................................................... 59 

Highland Telephone Cooperative, 192 NLRB 1057 (1971) ....................................................................... 218 

Highlands Regional Medical Center, 327 NLRB 1049 (1999)................................................................... 285 

Hilander Foods, 348 NLRB 1200 (2006)............................................................................ 145, 146, 147, 148 

Hill & Sanders-Wheaton, Inc., 195 NLRB 1137 (1972)............................................................................... 95 

Hillhaven Convalescent Center, 318 NLRB 1017 (1995)........................................................................... 242 

Hillview Health Care Center; NLRB v., 705 F.2d 1461 (7th Cir. 1983) .................................................... 274 

Hilton Hotel, 287 NLRB 359 (1987) .......................................................................................................... 177 

Hinds County Human Resource Agency, 331 NLRB 1404 (2000), ............................................................. 17 

Hispanic Federation for Development, 284 NLRB 500 (1987) .................................................................... 16 

Hi-Way Billboards 

 191 NLRB 244 (1971) ........................................................................................................ 131, 154, 158 

 206 NLRB 22 (1973) .......................................................................................................................... 159 

Hobart Crane Rental, Inc., 337 NLRB 506 (2002) ......................................................................................... 3 

Hobco Mfg. Co., 164 NLRB 862 (1967) .................................................................................................... 305 

Hoffman Security, 302 NLRB 922 (1991).................................................................................................. 229 

Hogan Mfg., 305 NLRB 861 (1991)................................................................................................... 214, 218 

Holiday Hotel, 134 NLRB 113 (1962)........................................................................................................ 173 

Holiday Inn City, 332 NLRB 1246 (2000) ................................................................................................. 162 

Holiday Inn of Providence-Downtown, 179 NLRB 337 (1969) ................................................................... 73 

Holiday Inn Restaurant, 160 NLRB 927 (1966) ......................................................................................... 176 

Holiday Inn, 225 NLRB 1092 (1976) ........................................................................................................... 78 

Holiday Inns of America, 176 NLRB 939 (1969)............................................................................... 135, 276 

Holladay Corp., 266 NLRB 621 (1983)...................................................................................................... 267 

Hollingsworth Management Service, 342 NLRB 556 (2004)..................................................... 298, 318, 339 

Holliswood Hospital, 312 NLRB 1185 (1993) ........................................................................................... 175 

Holly Farms Corp. v. NLRB, 116 S.Ct. 1396 (1996) ......................................................................... 205, 206 

Holly Sugar Corp. 

 193 NLRB 1024 (1971) .............................................................................................................. 234, 236 

 94 NLRB 1209 (1951) .......................................................................................................................... 50 

Hollywood Ceramics, 140 NLRB 222 (1962) ............................................................................................ 303 

Hollywood Medical Center, 275 NLRB 307 (1985)................................................................................... 284 

Holmberg, Inc., 162 NLRB 407 (1967) ...................................................................................................... 197 

Holt Bros., 146 NLRB 383 (1964).............................................................................................................. 297 

Home Care Networks, Inc., 347 NLRB 859 (2006).................................................................................... 275 

Home Depot USA, 331 NLRB 1289 (2000)............................................................................................... 170 

Home Town Foods, Inc. v. NLRB, 379 F.2d 241 (5th Cir. 1967) .............................................................. 315 

Hondo Drilling Co., 164 NLRB 416 (1967) ............................................................................................... 281 

Honeyville Grain, Inc. v. NLRB, 444 F.3d 1269 (10th Cir. 2006) ............................................................. 305 

Honeywell, Inc., 162 NLRB 323 (1967)..................................................................................................... 311 

Hook Drugs, 117 NLRB 846 (1957)........................................................................................................... 320 

Hopkins Nursing Care Center, 309 NLRB 958 (1992)............................................................................... 296 

Horizon House 1, Inc., 151 NLRB 766 (1965) ................................................................................... 102, 249 

Horseshoe Hotel, 172 NLRB 1703 (1968).................................................................................................. 173 

Horton Automatics, 286 NLRB 1413 (1987).............................................................................................. 335 
378 TABLE OF CASES DISCUSSED

Hot Shoppes, Inc. 

 130 NLRB 138 (1961) ........................................................................................................................ 149 

 143 NLRB 578 (1963) ........................................................................................................................ 138 

Hotel & Restaurant Employees Local 595 (Arne Falk), 161 NLRB 1458 (1966) .......................................... 8 

Hotel Employers Assn. of San Francisco, 159 NLRB 143 (1966).......................................................... 78, 79 

Hotel La Concha, 144 NLRB 754 (1963) ................................................................................................... 172 

Hotel Services Group, 328 NLRB 116 (1999)............................................................................ 130, 134, 177 

Hotel Tropicana, 176 NLRB 375 (1969...................................................................................................... 173 

Houck Transport Co., 130 NLRB 270 (1961)............................................................................................... 79 

Houston Corp., 124 NLRB 810 (1959)....................................................................................................... 183 

Houston Div. of the Kroger Co., 219 NLRB 388 (1975)............................................................................ 100 

Howard A. Friedman & Associates, 192 NLRB 919 (1971) ...................................................................... 214 

Howard Cooper Corp., 121 NLRB 950 (1958)........................................................................................... 236 

Howard Johnson Co., 242 NLRB 1284 (1979)........................................................................................... 267 

Howard University, 224 NLRB 385 (1976).................................................................................................. 10 

HPO Service, 122 NLRB 394 (1959) ............................................................................................................. 4 

Huckleberry Youth Programs, 326 NLRB 1272 (1998) ............................................................. 128, 138, 256 

Hughes Tool Co., 147 NLRB 1573 (1964)................................................................................................... 55 

Human Development Assn., 314 NLRB 821 (1994) .................................................................................. 334 

Humboldt General Hospital, 297 NLRB 258 (1989) .................................................................................... 23 

Hunts Point Recycling Corp., 301 NLRB 751 (1991) ................................................................................ 154 

Hurley Co., 130 NLRB 282 (1961)............................................................................................................. 301 

Huron Portland Cement Co., 115 NLRB 879 (1956).................................................................................. 100 

Hyatt House Motel, 174 NLRB 1009 (1969)................................................................................................ 80 

Hydro Conduit Corp. 

 254 NLRB 433 (1981) ........................................................................................................................ 217 

 260 NLRB 1352 (1982) ...................................................................................................................... 335 

Hydro Constructors, 168 NLRB 105 (1968)............................................................................................... 167 

Hydrolines, Inc., 305 NLRB 416 (1991)..................................................................................................... 161 

Hygeia Coca-Cola Bottling Co., 192 NLRB 1127 (1971) .......................................................... 218, 239, 252 

Hygienic Sanitation Co., 118 NLRB 1030 (1957)........................................................................................ 24 

Hyster Co., 72 NLRB 937 (1947)................................................................................................................. 93 

I. C. Refrigeration Service, 200 NLRB 687 (1972) .................................................................................... 160 

I. Magnin & Co., 119 NLRB 642 (1958).................................................................................................... 184 

I.O.O.F. Home of Ohio, Inc., 322 NLRB 921 (1997)........................................................................... 30, 122 

Ice Cream Council, 145 NLRB 865 (1964) ................................................................................................ 159 

Idaho Power Co., 179 NLRB 22 (1969) ............................................................................................. 182, 183 

Idaho Supreme Potatoes, 218 NLRB 38 (1975).......................................................................................... 308 

Ideal Chevrolet, 198 NLRB 280 (1972)........................................................................................................ 85 

Ideal Electric Mfg. Co., 134 NLRB 1275 (1961)........................................................................................ 287 

Ideal Elevator Corp., 295 NLRB 347 (1989).............................................................................................. 237 

Ideal Laundry & Dry Cleaning Co., 152 NLRB 1130 (1955)..................................................................... 137 

Ideal Laundry & Dry Cleaning Co.; NLRB v., 330 F.2d 712 (10th Cir. 1964) .......................................... 137 

IFS Virgin Island Food Service, 215 NLRB 174 (1974) .............................................................................. 59 

Illini Steel Fabricators, 197 NLRB 303 (1972)........................................................................................... 216 

Illinois Bell Telephone Co., 77 NLRB 1073 (1948)..................................................................................... 93 

Illinois Canning Co., 125 NLRB 699 (1960)................................................................................................ 72 

Illinois Grain Corp., 222 NLRB 495 (1976)................................................................................................. 58 

Illinois Power Co., 155 NLRB 1097 (1965) ............................................................................................... 219 

Illinois School Bus Co., 231 NLRB 1 (1977) ............................................................................................. 125 

Illinois Veterans Home at Anna L.P., 323 NLRB 890 (1997) .................................................................... 213

Imperial Garden Growers, 91 NLRB 1034 (1950) ..................................................................................... 205 

Imperial House Condominiums, 279 NLRB 1225 (1986) ............................................................................ 11

Imperial House Condominiums; NLRB v., 831 F.2d 999 (11th Cir. 1987)................................................ 207 

Imperial Reed Furniture Co., 118 NLRB 911 (1957) ................................................................................. 331 

Imperial Rice Mills, 110 NLRB 612 (1955) ................................................................................................. 24 
TABLE OF CASES DISCUSSED 379

Inacomp America, Inc., 281 NLRB 271 (1986).......................................................................................... 284 

Indeck Energy Services, 316 NLRB 300 (1995)................................................................................. 321, 322 

Independent Rice Mill, 111 NLRB 536 (1955) .......................................................................................... 320 

Indiana Bottled Gas Co., 128 NLRB 1441 (1960).................................................................................. 7, 248 

Indiana Broadcasting Corp., 121 NLRB 111 (1958) .................................................................................. 187 

Indiana Hospital, Inc., 326 NLRB 1399 (1998).......................................................................................... 336 

Indiana Refrigerator Lines, 157 NLRB 539 (1966) ............................................................................ 218, 220 

Indianapolis Light Co., 76 NLRB 136 (1948) .............................................................................................. 80 

Ingalls Hospital, 309 NLRB 393 (1992)..................................................................................................... 203 

Inland Steel Co., 308 NLRB 868 (1992)..................................................................................................... 233 

Inland Waters Pollution Control, 306 NLRB 342 (1992) ........................................................................... 328 

Inspiration Consolidated Copper Co., 142 NLRB 53 (1963)................................................................ 56, 230 

Insulation Contractors of Southern California, 110 NLRB 638 (1955) .......................................................... 6 

Interboro Chevrolet Co., 111 NLRB 783 (1955) ........................................................................................ 108 

Intercontinental Mfg. Co., 192 NLRB 590 (1971)...................................................................................... 276 

Interlake Steamship Co. 

 174 NLRB 308 (1969) ........................................................................................................................ 279 

 178 NLRB 128 (1969) ........................................................................................................................ 279 

International Aluminum Corp., 117 NLRB 1221 (1957).............................................................................. 49 

International Aviation Services, 189 NLRB 75 (1971)................................................................................. 19 

International Electric Assn., 277 NLRB 1 (1985)....................................................................................... 234 

International General Electric, 117 NLRB 1571 (1957) ............................................................................. 219 

International Harvester Co. 

 81 NLRB 374 (1949) ............................................................................................................................ 56 

 111 NLRB 276 (1955) .......................................................................................................................... 91 

 145 NLRB 1747 (1964) ................................................................................................................ 56, 231 

International Maintenance Corp., 337 NLRB 705 (2002)............................................................................. 38 

International Paper Co. 

 96 NLRB 295 (1951) .......................................................................................................................... 130 

 172 NLRB 933 (1968) .......................................................................................................................... 58 

 294 NLRB 1168 (1989) ........................................................................................................................ 82 

International Paper, 325 NLRB 689 (1998).................................................................................................. 73 

International Silver Co., 203 NLRB 221 (1973)......................................................................................... 123 

International Stamping Co., 97 NLRB 921 (1951) ..................................................................................... 342 

International Tag & Business Forms Co., 170 NLRB 35 (1968)................................................................ 198 

International Telephone Corp., 159 NLRB 1757 (1966) ............................................................................ 124 

Inter-Neighborhood Housing Corp., 311 NLRB 1342 (1993) ...................................................................... 23 

Inter-Ocean Steamship Co., 107 NLRB 330 (1954) ........................................................................... 150, 180 

Interstate Brick Co., 167 NLRB 831 (1967)............................................................................................... 111 

Interstate Hosts, 130 NLRB 1614 (1961) ................................................................................................... 312 

Intertype Co., 164 NLRB 770 (1967) ......................................................................................................... 338 

Inyo Lumber Co., 92 NLRB 1267 (1951)................................................................................................... 132 

Iowa Lamb Corp., 275 NLRB 185 (1985) .................................................................................................. 289 

Iowa Packing Co., 125 NLRB 1408 (1960).................................................................................................. 57 

IRIS U.S.A., Inc., 336 NLRB 1013 (2001)................................................................................................. 296 

Island Construction Co., 135 NLRB 13 (1962) .................................................................................. 105, 106 

ITT Canteen Corp., 187 NLRB 1 (1971) .................................................................................................... 190 

ITT Consumer Services Corp., 202 NLRB 65 (1973) ................................................................................ 317 

J & R Tile, 291 NLRB 1034 (1988)............................................................................................................ 106 

J&L Plate, 310 NLRB 429 (1993) .............................................................................................. 145, 148, 150 

J. A. Jones Construction Co., 84 NLRB 88 (1949)..................................................................................... 136 

J. Brenner & Sons, Inc., 154 NLRB 656 (1965) ......................................................................................... 331 

J. C. Brock Corp. 

 314 NLRB 157 (1994) ........................................................................................................................ 213 

 318 NLRB 403 (1995) ................................................................................................................ 331, 334 
380 TABLE OF CASES DISCUSSED

J. C. Penney Co. 

 151 NLRB 53 (1965) ............................................................................................................................ 85 

 182 NLRB 708 (1970) ........................................................................................................................ 184 

 196 NLRB 446 (1972) ........................................................................................................................ 186 

 196 NLRB 708 (1972) ........................................................................................................................ 186 

 312 NLRB 32 (1993) .......................................................................................................................... 229 

 328 NLRB 766 (1999) ........................................................................................................................ 130 

 347 NLRB 127 (2006) ........................................................................................................................ 275 

J. I. Case Co.; NLRB v., 201 F.2d 597 (9th Cir. 1953)................................................................................. 43 

J. J. Crosetti Co., 98 NLRB 268 (1951)........................................................................................................ 50 

J. K. Pulley Co., 338 NLRB 1152 (2003) ........................................................................................... 252, 289 

J. L. Hudson Co., 103 NLRB 1378 (1953) ................................................................................................. 185 

J. M. Abraham, M.D., 242 NLRB 839 (1979)................................................................................................ 1 

J. P. Phillips, Inc., 336 NLRB 1279 (2001) ........................................................................................ 306, 307 

J. P. Sand & Gravel Co., 222 NLRB 83 (1976) ............................................................................................ 77 

J. Ray McDermott v. NLRB, 571 F.2d 852 (5th Cir. 1978)........................................................................ 333 

J. W. Mays, Inc., 147 NLRB 968 (1964) .................................................................................................... 148 

J. W. Robinson Co., 153 NLRB 989 (1965) ............................................................................................... 191 

J.E.L. Painting & Decorating, 303 NLRB 1029 (1991)................................................................................ 24 

J.R.T.S. Limited, Inc., 325 NLRB 970 (1998)............................................................................................ 336 

Jack Frost, Inc., 201 NLRB 659 (1973).............................................................................................. 205, 206 

Jack L. Williams, DDS, 219 NLRB 1045 (1975) ......................................................................................... 13 

Jackson Engineering Co., 265 NLRB 1688, 1701 (1982)............................................................................. 65 

Jackson Terrace Associates, 346 NLRB 180 (2005)............................................................................... 78, 79 

Jacksonville Urban League, 340 NLRB 1303 (2003) ................................................................................... 12 

Jacob Ash Co., 224 NLRB 74 (1976) ......................................................................................................... 240 

Jakel Motors, 228 NLRB 730 (1988).......................................................................................................... 228 

Jakel, Inc., 293 NLRB 615 (1989).............................................................................................................. 321 

Jam Productions, Ltd., 338 NLRB 1117 (2003) ................................................................................. 273, 279 

James Julian, Inc., 310 NLRB 1247 (1993)................................................................................................ 106 

James Lees & Sons, Co., 130 NLRB 290 (1961)........................................................................................ 314 

Janler Plastic Mold Corp., 186 NLRB 540 (1970)...................................................................................... 296 

Jarvis Cafeteria, 200 NLRB 1141 (1972) ....................................................................................................... 4 

JASCO Industries, 328 NLRB 201 (1999) ................................................................................................. 110 

Jat Transportation Corp. 

 128 NLRB 780 (1960) .......................................................................................................... 58, 246, 282 

 131 NLRB 122 (1961) ........................................................................................................ 283, 324, 327 

Jay Kay Metal Specialties Corp., 163 NLRB 719 (1967)........................................................................... 199 

JCL Zigor Corp., 274 NLRB 1477 (1985).................................................................................................. 332 

Jefferson City Cabinet Co., 120 NLRB 327 (1958)...................................................................................... 64 

Jefferson Hotel, 309 NLRB 705 (1992)...................................................................................................... 112 

Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987) ...................................................................................... 278 

Jervis Public Library Assn., 262 NLRB 1386 (1982) ................................................................................... 17 

Jet-Pak Corp., 231 NLRB 552 (1977)......................................................................................................... 101 

Jewel Tea Co., 162 NLRB 508 (1967)........................................................................................................ 179 

Jewish Day School of Greater Washington, 283 NLRB 757 (1987) ............................................................ 20 

Jewish Hospital of St. Louis, 305 NLRB 955 (1991) ................................................................................. 202 

Jim Kraut Chevrolet, 240 NLRB 460 (1979).............................................................................................. 325 

Jobbers Meat Packing Co., 252 NLRB 41 (1980)....................................................................................... 325 

Jocie Motor Lines, 112 NLRB 1201 (1955) ............................................................................................... 171 

Joclin Mfg. Co., 144 NLRB 778 (1963) ..................................................................................................... 247 

John Bagwell Farms, 192 NLRB 547 (1971).............................................................................................. 206 

John C. Stalfort & Sons, 156 NLRB 84 (1965) .......................................................................................... 217 

John Deklewa & Sons, 282 NLRB 1375 (1987)............................................... 44, 67, 82, 105, 113, 114, 166 

John I. Haas, Inc., 301 NLRB 300 (1991) ............................................................................................ 94, 288 

John J. Corbett Press Corp., 172 NLRB 1124 (1968)................................................................................. 154 
TABLE OF CASES DISCUSSED 381

John Liber & Co., 123 NLRB 1174 (1959) .................................................................................................. 59 

John N. Hansen Co., 293 NLRB 63 (1989) ................................................................................................ 240 

John Sundwall & Co., 149 NLRB 1022 (1964) .................................................................................. 136, 137 

John Vilicich, 133 NLRB 238 (1961)......................................................................................................... 111 

John W. Galbreath & Co., 288 NLRB 876 (1988)...................................................................................... 303 

John Wanamaker Philadelphia, 195 NLRB 452 (1972).............................................................................. 185 

John’s Bargain Stores Corp., 160 NLRB 1519 (1966) ............................................................................... 191 

Johnson Auto Spring Service, 221 NLRB 809 (1975)........................................................................ 254, 255 

Johnson Controls, Inc., 322 NLRB 669 (1996) .................................................................................. 167, 281 

Johnstown Corp., 322 NLRB 818 (1997) ................................................................................................... 163 

Joint Council of Teamsters Local 42, 248 NLRB 808 (1980) .................................................................... 102 

Jones & Laughlin Steel Corp., 130 NLRB 259 (1961) ................................................................................. 84 

Jordan Marsh Co., 174 NLRB 1265 (1969)........................................................................................ 185, 199 

Jos. Schlitz Brewing Co. 

 192 NLRB 553 (1971) ........................................................................................................................ 140 

 206 NLRB 928 (1973) ........................................................................................................................ 132 

Joseph Cory Warehouse, 184 NLRB 627 (1970)........................................................................................ 141 

Joseph E. Seagram & Sons, Inc., 101 NLRB 101 (1953) ........................................................................... 132 

Josephine Furniture Co., 172 NLRB 404 (1968) .................................................................................. 75, 113 

JTJ Trucking, 313 NLRB 1240 (1994) ....................................................................................................... 299 

Judd Valve Co., 248 NLRB 112 (1980)...................................................................................................... 284 

Judge & Dolph, Ltd., 333 NLRB 175 (2001) ..................................................................................... 141, 142 

Julliard School, 208 NLRB 153 (1974) .............................................................................................. 247, 282 

K. Van Bourgondien & Sons, 294 NLRB 268 (1989) ................................................................................ 321 

K.G. Knitting Mills, 320 NLRB 374 (1995)....................................................................................... 130, 213 

Kaiser Foundation Health Plan of Colorado, 333 NLRB 557 (2001) ......................................................... 139 

Kaiser Foundation Hospitals 

 312 NLRB 933 (1993) ........................................................................................ 175, 195, 196, 197, 203 

 337 NLRB 1061 (2002) .............................................................................................................. 121, 123 

Kalamazoo Paper Box Corp., 136 NLRB 134 (1962)......................................................................... 129, 171 

Kalin Construction Co., 321 NLRB 649 (1996) ......................................................................................... 312 

Kalustyans, 332 NLRB 843 (2000)..................................................................................................... 240, 285 

Kanawha Stone Co., 334 NLRB 235 (2001)............................................................................................... 218 

Kano Trucking Service, 295 NLRB 514 (1989) ......................................................................................... 288 

Kansas City Power & Light Co., 75 NLRB 609 (1948) ............................................................................. 134 

Kansas Color Press, 158 NLRB 1332 (1962) ............................................................................................... 39 

Kauai Coconut Beach Resort, 317 NLRB 996 (1995) ................................................................................ 299 

Kaufman’s Bakery, 264 NLRB 225 (1982) ................................................................................................ 335 

Kawasaki Motors Mfg. Corp., 280 NLRB 491 (1986) ............................................................................... 294 

KCAL-TV, 331 NLRB 323 (2000)............................................................................................................. 253 

KCW Furniture Co., 247 NLRB 541 (1980)................................................................................................. 96 

Keller Plastics Eastern, Inc., 157 NLRB 583 (1966) .......................................................................... 112, 113 

Kelly & Huber, 309 NLRB 578 (1992) ...................................................................................................... 327 

Kelly Bros. Nurseries, 140 NLRB 82 (1962).............................................................................. 250, 251, 280 

Kelsey-Hayes Co., 145 NLRB 1717 (1964) ............................................................................................... 314 

Ken-Crest Services, 335 NLRB 777 (2001) ....................................................................................... 218, 220 

Kendall Co., 184 NLRB 847 (1970) ................................................................................................... 130, 145

Kendall School of Design, 279 NLRB 281 (1986) ..................................................................................... 188 

Kenedy Compress Co., 114 NLRB 634 (1956) .............................................................................................. 4 

Kenilworth Delivery Service, 140 NLRB 1190 (1963) .................................................................................. 4 

Kennametal, Inc., 132 NLRB 194 (1961)..................................................................................................... 48 

Kennebec Mills Corp., 115 NLRB 1483 (1956) ........................................................................................... 82 

Kennecott Copper Corp. 

 98 NLRB 75 (1951) .............................................................................................................................. 58 

 122 NLRB 370 (1959) ........................................................................................................................ 283 

Kent Corp., 272 NLRB 735 (1984)............................................................................................................... 91 
382 TABLE OF CASES DISCUSSED

Kent Plastics Corp., 183 NLRB 612 (1970) ............................................................................................... 145 

Kentucky River Community Care; NLRB v., 532 U.S. 706 (2001) ................................... 213, 215, 216, 223 

Kerona Plastics Extrusion Co., 196 NLRB 1120 (1972) .................................................................... 323, 325

Kerr-McGee Chemical Corp., 311 NLRB 447 (1993)................................................................................ 289 

Kerrville Bus Co., 257 NLRB 176 (1981) .................................................................................................. 325 

Key Research & Development Co., 176 NLRB 134 (1969)....................................................................... 114 

Keystone Coat Supply Co., 121 NLRB 880 (1958).................................................................................... 100 

Keystone Shipping Co., 327 NLRB 892 (1999) ................................................................................. 150, 180 

KFDA-TV Channel 10, 308 NLRB 667 (1992).......................................................................................... 187 

KGTV-TV, 329 NLRB 454 (1999)............................................................................................................. 216 

KGW-TV, 329 NLRB 378 (1999) .............................................................................................................. 216 

KI (USA) Corp. 

 309 NLRB 1063 (1992) ...................................................................................................................... 306 

 310 NLRB 1233 (1993) ...................................................................................................................... 126 

Kieckhefer Container Co., 118 NLRB 950 (1957) ..................................................................................... 234 

Kimball Systems, 164 NLRB 290 (1967)................................................................................................... 202 

Kimberly-Clark Corp., 197 NLRB 1172 (1972)................................................................................. 197, 199 

Kimco Auto Products 

 183 NLRB 993 (1970) .......................................................................................................................... 90 

 184 NLRB 599 (1970) ........................................................................................................................ 322 

King Brooks, Inc., 84 NLRB 652 (1949)...................................................................................................... 47 

Kingsbury Electric Cooperative, 138 NLRB 577 (1962).............................................................................. 15 

Kingsport Press 

 146 NLRB 1111 (1964) ...................................................................................................................... 277 

 150 NLRB 1157 (1965) ........................................................................................................................ 68 

Kirkhill Rubber Co., 306 NLRB 559 (1992)........................................................................................ 109, 123 

Kirksville College, 274 NLRB 794 (1985)................................................................................................... 13 

Kirsch Drapery Hardware, 299 NLRB 363 (1990)..................................................................................... 322 

KJAZ Broadcasting Co., 272 NLRB 196 (1984)........................................................................................ 186 

Kleen Brite Laboratories, 292 NLRB 747 (1989)....................................................................................... 324 

Kleinberg, Kaplan, Wolff, Cohen & Burrows, P.C., 253 NLRB 450 (1981)...................................... 178, 235 

Kleins Golden Manor, 214 NLRB 807 (1974).............................................................................................. 83 

KMBZ/KMBR Radio, 290 NLRB 459 (1988) ........................................................................................... 142 

KMTR Radio Corp., 85 NLRB 99 (1949) .................................................................................................. 187 

Knapp-Sherrill Co., 196 NLRB 1072 (1972).............................................................................................. 250 

Knox Glass Bottle Co., 101 NLRB 36 (1953) .............................................................................................. 47 

Kodiak Island Hospital, 244 NLRB 929 (1979) ........................................................................................... 57 

Koehring Co., 193 NLRB 513 (1971)......................................................................................................... 275 

Kold Kist, Inc., 149 NLRB 1449 (1964)..................................................................................................... 172 

Kolmar Laboratories, 159 NLRB 805 (1966), enfd. 387 F.2d 833 (7th Cir. 1967) .................................... 292 

Komatz Construction, Inc., v. NLRB, 458 F.2d 317 (8th Cir. 1972).......................................................... 330 

Koons Ford of Annapolis, 308 NLRB 1067 (1992).................................................................................... 288 

Korb’s Trading Post, 232 NLRB 67 (1977).................................................................................................. 28 

Korber Hats, Inc., 122 NLRB 1000 (1959)................................................................................................. 324 

Kostel Shoe Co., 124 NLRB 651 (1959) ...................................................................................................... 24 

K-P Hydraulics Co., 219 NLRB 138 (1975)................................................................................................. 66 

Kraco Industries, 39 LRRM 1236 (Feb. 20, 1957) ..................................................................................... 107 

Kraft, Inc., 273 NLRB 1484 (1985)............................................................................................................ 334 

Kresge-Newark, Inc., 112 NLRB 869 (1955) ............................................................................................. 305 

Krist Gradis, 121 NLRB 601 (1958)................................................................................................... 154, 156 
TABLE OF CASES DISCUSSED 383

Kroger Co. 

 148 NLRB 569 (1964) ................................................................................................ 154, 155, 156, 158 

 155 NLRB 546 (1965) .......................................................................................................................... 83 

 173 NLRB 397 (1969) .......................................................................................................................... 95 

 204 NLRB 1055 (1973) ...................................................................................................................... 238 

 219 NLRB 388 (1975) .......................................................................................................................... 85 

 342 NLRB 202 (2004) ........................................................................................................................ 238 

L & A Investment Corp., 221 NLRB 1206 (1975) ..................................................................................... 246 

L & B Cooling, 267 NLRB 1 (1983) .................................................................................................. 250, 251 

L. A. Benson Co., 154 NLRB 1371 (1965) .................................................................................................. 46 

L. D. McFarland Co., 219 NLRB 575 (1975)............................................................................................. 317 

L. M. Berry & Co., 198 NLRB 217 (1972)......................................................................................... 238, 239 

La Prensa, Inc., 131 NLRB 527 (1961) ...................................................................................................... 211 

Labor Relations Commission of Massachusetts, 138 NLRB 381 (1962) ....................................................... 2 

Laboratory Corp. of America Holdings, 341 NLRB 1079 (2004) .............................................. 131, 145, 148 

Laborers Local 133 (Whitaker & Sons), 283 NLRB 918 (1987)................................................................ 134 

Lach-Simkins Dental Laboratories, 186 NLRB 671 (1970) ....................................................................... 339

Ladies Garment Workers v. NLRB, 339 F.2d 116 (2d Cir. 1964).............................................................. 235 

Ladies Garment Workers, 137 NLRB 1681 (1962) ............................................................................ 267, 331 

Ladish Co., 178 NLRB 90 (1969)....................................................................................................... 233, 234 

Laerco Transportation & Warehouse, 269 NLRB 324 (1984).................................................................... 162 

Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969)............................................... 278 

Laidlaw Transit, Inc. 

 322 NLRB 895 (1997) ................................................................................................................ 265, 285 

 327 NLRB 315 (1998) ........................................................................................................................ 265 

Laidlaw Waste Systems, 321 NLRB 760 (1996) ................................................................................ 306, 307 

Lake County Assn. for the Retarded; NLRB v., 128 F.3d 1181 (7th Cir. 1997)......................................... 127 

Lake Huron Broadcasting Corp., 130 NLRB 908 (1961) ........................................................................... 284 

Lakes Pilots Assn., 320 NLRB 168 (1995)......................................................................................... 208, 212 

Lakewood Engineering & Mfg. Co., 341 NLRB 699 (2004).............................................................. 265, 329 

Lalique N.A., Inc., 338 NLRB 986 (2003) ......................................................................................... 300, 301 

Lamar Advertising of Janesville, 340 NLRB 979 (2003) ................................... 288, 298, 313, 315, 316, 337 

Lamar Hotel, 137 NLRB 1271 (1962) ........................................................................................................ 110 

Lamb-Grays Harbor Co., 295 NLRB 355 (1989) ....................................................................................... 277 

Lampcraft Industries, 127 NLRB 92 (1960) ................................................................................................. 59 

Lancaster Welded Products, 130 NLRB 1478 (1961)................................................................................. 246 

Land Title Guarantee & Trust Co., 194 NLRB 148 (1972) ................................................................ 132, 135 

Landing Construction Co., 273 NLRB 1288 (1984)................................................................................... 253 

Lane Aviation Corp., 221 NLRB 898 (1975) ............................................................................................. 279 

Lane Wells Co., 79 NLRB 252 (1948) ......................................................................................................... 55 

Laneco Construction Systems, 339 NLRB 1048 (2003)............................................................................. 285 

Langdale Forest Products Co., 335 NLRB 602 (2001) ............................................................................... 300 

Larkwood Farms, 178 NLRB 226 (1969)........................................................................................... 328, 341 

LaRonde Bar & Restaurant, 145 NLRB 270 (1963)........................................................................... 176, 249 

Larson Plywood Co., 223 NLRB 1161 (1976) ........................................................................................... 115 

Larson Tool & Stamping Co., 296 NLRB 895 (1989)................................................................................ 293 

Las Vegas Review Journal, 223 NLRB 744 (1976).................................................................................... 210 

Latas de Alumino Reynolds, 276 NLRB 1313 (1985)................................................................................ 218 

Latin Business Assn., 322 NLRB 1026 (1997)............................................................................................. 23 

Lau Industries, 210 NLRB 182 (1974) ....................................................................................................... 317 

Laubentein & Portz, Inc., 226 NLRB 804 (1976)....................................................................................... 329 

Laundry Owners Assn. of Greater Cincinnati, 123 NLRB 543 (1959)................................................... 6, 155 

Laundry Workers Local 26, 129 NLRB 1446 (1961) ..................................................................................... 6 

Laura Modes Co., 144 NLRB 1592 (1963.............................................................................................. 39, 61 

Laurel Baye Healthcare of Lake Lanier, 346 NLRB 159 (2007).................................................................. 70 

Lawson Mardon U.S.A., 332 NLRB 1282 (2000) ...................................................................... 150, 161, 201 
384 TABLE OF CASES DISCUSSED

Lawson Milk Co., 143 NLRB 916 (1963) .................................................................................................. 213 

Laymon Candy Co., 199 NLRB 547 (1972)............................................................................................... 284 

La-Z-Boy Chair Co., 235 NLRB 77 (1978)................................................................................................ 199 

Leaders Nameoki, Inc., 237 NLRB 1269 (1978) ........................................................................................ 246 

Leaf Chronicle Co., 244 NLRB 1104 (1979).............................................................................................. 181 

Lear Siegler, Inc., 287 NLRB 372 (1987)................................................................................................... 132 

Leather by Grant, 206 NLRB 961 (1973) ................................................................................................... 274 

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) .......................................................................................... 299 

Lee Adjustment Center, 325 NLRB 375 (1998) ................................................................................... 56, 230 

Lee Hospital, 300 NLRB 947 (1990).......................................................................................................... 162 

Lee Lumber & Building Material Corp. 

 322 NLRB 175 (1996). ....................................................................................................................... 117 

 334 NLRB 399 (2001) ................................................................................................................ 117, 118 

Leedom v. Kyne 

 249 F.2d 490 (D.C. Cir. 1957), affd. 358 U.S. 184 (1958) ................................................................. 225 

 358 U.S. 184 (1958)...................................................................................................................... 38, 128 

Lee-Mark Metal Mfg. Co., 85 NLRB 1299 (1949)....................................................................................... 72 

Lee-Rowan Mfg. Co., 129 NLRB 980 (1961) ............................................................................................ 214 

Legal Aid Society of Alameda County, 324 NLRB 796 (1997) ......................................................... 222, 254 

Legal Services for the Elderly Poor, 236 NLRB 485 (1978) ...................................................................... 178 

Leland Stanford Jr. University, 194 NLRB 1210 (1972).............................................................. 10, 189, 252 

LeMaster Steel Erectors, 271 NLRB 1391 (1984)...................................................................................... 309 

Lemco Construction, 283 NLRB 459 (1987).............................................................................................. 330 

LeMoyne-Owen College, 345 NLRB 1123 (2005)............................................................................. 188, 236

Lennox Industries, 308 NLRB 1237 (1992) ............................................................................................... 143 

Leon County Safari, 225 NLRB 969 (1976)............................................................................................... 229 

Leonard Wholesale Meats, 136 NLRB 1000 (1962)............................................................................... 95, 97 

Leone Industries, 172 NLRB 1463 (1968).............................................................................................. 79, 83 

Levine Hospital of Hayward, 219 NLRB 327 (1975)................................................................................. 139 

Levitz Furniture Co. 

 192 NLRB 61 (1971) .......................................................................................................... 169, 184, 191 

 333 NLRB 717 (2001) .................................................................................................................... 41, 68 

Lewis & Clark College, 300 NLRB 155 (1990) ................................................................................. 188, 236 

Lewis & Coker Supermarkets, 145 NLRB 970 (1964)............................................................................... 246 

Lewis University, 265 NLRB 1239 (1983)................................................................................................. 188 

Lewiston Orchards Irrigation District, 186 NLRB 827 (1970), enf. denied 

469 F.2d 698 (9th Cir. 1972)..................................................................................................................... 18 

Lexington House, 328 NLRB 894 (1999)..................................................................................................... 99 

Lexus of Concord, Inc., 343 NLRB 851 (2004).......................................................................................... 111 

Libbey-Owens-Ford Glass Co. 

 169 NLRB 126 (1968) ........................................................................................................................ 124 

 189 NLRB 869 (1971) ........................................................................................................................ 124 

Libby, McNeill & Libby 

 90 NLRB 279 (1950) .......................................................................................................................... 251 

 159 NLRB 677 (1966) ........................................................................................................................ 142 

Liberty Fabrics, 327 NLRB 38 (1998)........................................................................................................ 112 

Liberty House, 225 NLRB 869 (1976) ......................................................................................................... 78 

Lifeline Mobile Medics, 308 NLRB 1068 (1992)....................................................................................... 175 

Lifetime Door Co., 158 NLRB 13 (1966)................................................................................................... 314 

Liggett & Meyers Tobacco Co., 91 NLRB 1145 (1950) ............................................................................ 132 

Lilliston Implement Co., 121 NLRB 868 (1958)........................................................................................ 239 

Lin Rogers Electrical Contractors, 323 NLRB 988 (1997)......................................................................... 276 

Lincoln Park Nursing Home, 318 NLRB 1160 (1995)............................................................... 234, 240, 243 

Lindsay Newspapers, 192 NLRB 478 (1971) ............................................................................................. 135 
TABLE OF CASES DISCUSSED 385

Liquid Transporters, Inc. 

 250 NLRB 1421 (1980) ...................................................................................................................... 134 

 336 NLRB 420 (2001) ........................................................................................................................ 327 

Little Rock Hardboard Co., 140 NLRB 264 (1962).................................................................... 213, 220, 221

Litton Business Systems, 199 NLRB 354 (1972) ................................................................................... 53, 95 

Litton Industries, 125 NLRB 722 (1960).................................................................................................... 241 

Livingston Shirt Corp., 107 NLRB 400 (1954) .......................................................................................... 307 

Livingstone College 

 286 NLRB 1308 (1987) ................................................................................................................ 20, 188 

 290 NLRB 304 (1988) ................................................................................................................ 190, 241 

Lloyd A. Fry Roofing Co., 121 NLRB 1433 (1958)........................................................................... 248, 249 

Lobster House, 186 NLRB 148 (1970)....................................................................................................... 307 

Lockheed Aircraft Corp. 

 155 NLRB 702 (1965) ................................................................................................................ 124, 227 

 202 NLRB 1140 (1973) .............................................................................................................. 128, 227 

Locomotive Firemen & Enginemen, 145 NLRB 1521 (1964)...................................................... 42, 224, 261 

Loffland Bros. Co., 235 NLRB 154 (1978) ................................................................................................ 281 

London’s Farm Dairy, 323 NLRB 1057 (1997).......................................................................................... 265 

Lone Star Gas Co., 194 NLRB 761 (1972)................................................................................................. 131 

Lone Star Industries, 193 NLRB 80 (1971)................................................................................................ 199 

Lonergan Corp., 194 NLRB 742 (1972) ..................................................................................................... 169 

Long Beach Press-Telegram, 305 NLRB 412 (1991) ......................................................................... 210, 236

Long Island University, 189 NLRB 909 (1971) ................................................................................. 188, 189 

Long Transportation Co., 181 NLRB 7 (1970)............................................................................................. 81 

Longcrier Co., 277 NLRB 570 (1985)........................................................................................................ 166 

Long-Lewis Hardware Co., 134 NLRB 1554 (1962).................................................................................... 97 

Longs Drug Stores of California, 347 NLRB 500 (2008)........................................................................... 338 

Longshoremen ILWU (Catalina Island Sightseeing), 124 NLRB 813 (1960)................................................ 3 

Loral Corp., 200 NLRB 1019 (1972).......................................................................................................... 226 

Lord & Taylor, 160 NLRB 812 (1966)....................................................................................................... 184 

Lord Baltimore Press, 144 NLRB 1376 (1963) ............................................................................................ 97 

Loree Footwear Corp., 197 NLRB 360 (1972) ............................................................................................. 91 

Lorimar Productions; NLRB v., 771 F.2d 1294 (9th Cir. 1985)................................................................... 37 

Los Alamitos Medical Center, 287 NLRB 415 (1987) ................................................................................. 46 

Los Angeles Statler Hilton Hotel, 129 NLRB 1349 (1961)........................................................................ 139 

Los Angeles Turf Club, 90 NLRB 20 (1950) ............................................................................................... 22 

Los Angeles Water & Power Employees’ Assn., 340 NLRB 1232 (2003)......................... 130, 217, 218, 285 

Los Angeles-Yuma Freight, 172 NLRB 328 (1968)................................................................................... 158 

Louis Rosenberg, Inc., 122 NLRB 1450 (1959) ......................................................................................... 134 

Louisburg Sportswear Co., 173 NLRB 678 (1969) .................................................................................... 314 

Louisiana Gas Service Co., 126 NLRB 147 (1960).................................................................................... 181 

Louisville Railway Co., 90 NLRB 678 (1950) ............................................................................................. 90 

Love’s Wood Pit Barbeque Restaurant, 209 NLRB 220 (1974)..................................................................... 3 

Loveman, Joseph & Loeb, 147 NLRB 1129 (1964) ................................................................................... 185 

Low Bros. National Market, 191 NLRB 432 (1971) .................................................................................. 234 

Lowe’s HIW, Inc., 349 NLRB 478 (2007) ................................................................................................. 338 

Lowell Sun Publishing Co., 132 NLRB 1168 (1961) ................................................................................. 180 

Lower Bucks Cooling & Heating, 316 NLRB 16 (1995)............................................................................ 110 

Loyola University Medical Center, 194 NLRB 234 (1972)........................................................................ 190 

LTD Ceramics, Inc., 341 NLRB 86 (2004) ........................................................................................ 109, 117 

LTV Aerospace Corp., 170 NLRB 200 (1973)........................................................................................... 124 

Luce & Son, Inc., 313 NLRB 1355 (1994)................................................................................................. 238 

Ludlow Typograph Co., 108 NLRB 1463 (1954)....................................................................................... 111 

Lufkin Foundry & Machine Co., 174 NLRB 556 (1969) ........................................................................... 123

Lufkin Rule Co., 147 NLRB 341 (1964) .................................................................................................... 343 

Lundy Packing Co., 314 NLRB 1042 (1994) ..................................................................................... 242, 243 
386 TABLE OF CASES DISCUSSED

Lutheran Retirement Village, 315 NLRB 103 (1994)................................................................................. 299 

Lutheran Welfare Services, 321 NLRB 915 (1996)................................................................................... 336 

Lydia E. Hall Hospital, 227 NLRB 573 (1976) .......................................................................................... 262 

Lynwood Manor, 350 NLRB 489 (2007) ................................................................................................... 216 

M & M Supermarket v. NLRB, 818 F.2d 1567 (11th Cir. 1987)................................................................ 313 

M. B. Farrin Lumber Co., 117 NLRB 575 (1957) ........................................................................................ 85 

M. B. Kahn Construction Co., 210 NLRB 1050 (1974) ............................................................................. 115 

M. B. Sturgis, Inc., 331 NLRB 1298 (2000)....................................................................................... 121, 162 

M. C. Decorating, 306 NLRB 816 (1992) .................................................................................................. 238 

M. K. Parker Transport, 332 NLRB 547 (2000) ......................................................................................... 162 

M. O’Neil Co., 175 NLRB 514 (1969)....................................................................................... 182, 219, 255 

M. S. Ginn & Co., 114 NLRB 112 (1956)...................................................................................................... 5 

M. V. Dominator, 162 NLRB 1514 (1967)................................................................................................... 85 

M.B. Sturgis, Inc., 331 NLRB 1298 (2000)................................................................................................ 249 

M.C.P. Foods, 311 NLRB 1159 (1993) ............................................................................................ 86, 97, 99 

MacDonald Machinery Co., 335 NLRB 319 (2001)................................................................................... 300 

Machinery Overhaul Co., 115 NLRB 1787 (1956)..................................................................................... 332 

Machinists (IAM Representatives Assn.), 159 NLRB 137 (1966) ..................................................... 275, 280 

Machinists, 159 NLRB 137 (1966)............................................................................................................... 53 

Mack Mfg. Corp., 107 NLRB 209 (1954) .................................................................................................... 56 

Mack Trucks, 209 NLRB 1003 (1974) ......................................................................................................... 73 

Macklanburg-Duncan Co., 179 NLRB 848 (1969)..................................................................................... 341 

Macy’s Missouri-Kansas Division v. NLRB, 389 F.2d 835 (8th Cir. 1968) .............................................. 273 

Macy’s Missouri-Kansas Division, 173 NLRB 1500 (1969)...................................................................... 278 

Macy’s San Francisco, 120 NLRB 69 (1958)..................................................................................... 131, 157 

Macy’s West, Inc., 327 NLRB 1222 (1999) ............................................................................... 148, 149, 201 

Madelaine Chocolate Novelties, 333 NLRB 1312 (2001) ................................................................ 79, 87, 99 

Madera Enterprises, 309 NLRB 774 (1992) ............................................................................................... 321 

Madison Industries 

 290 NLRB 1226 (1988) ...................................................................................................................... 294 

 311 NLRB 865 (1993) ................................................................................................................ 276, 326 

Madison Square Garden 

 325 NLRB 971 (1998) ........................................................................................................................ 229 

 333 NLRB 643 (2001) ........................................................................................................................ 229 

Madison Square Garden, Ct., LLC, 350 NLRB 117 (2007) ............................................................... 287, 318 

Magic Mountain, Inc., 123 NLRB 1170 (1959)............................................................................................ 24 

Magna Corp., 261 NLRB 104 (1982) ......................................................................................................... 124 

Magnavox Co., 97 NLRB 1111 (1951)......................................................................................................... 56 

Maine Apple Growers, Inc., 254 NLRB 501 (1981)........................................................................... 250, 251 

Maine Sugar Industries, 169 NLRB 186 (1968) ......................................................................................... 251 

Majestic Star Casino, LLC, 335 NLRB 407 (2001).................................................................................... 300 

Major League Rodeo, Inc., 246 NLRB 743 (1979) ................................................................................ 15, 23 

Mall Tool Co., 112 NLRB 1313 (1955)...................................................................................................... 302 

Mallinckrodt Chemical Works 

 84 NLRB 291 (1949) .......................................................................................................................... 107 

 162 NLRB 387 (1967) .................................................................128, 176, 195, 196, 197, 200, 202, 203

 200 NLRB 1 (1972) .............................................................................................................................. 43 

Mallory Capacitator Co., 167 NLRB 647 (1967)........................................................................................ 311 

Man Products, 128 NLRB 456 (1960) ............................................................................................................ 7 

Management Training Corp., 317 NLRB 1355 (1995)................................................................................. 12 

Manchester Knitted Fashions, 108 NLRB 1366 (1954)........................................................................ 28, 263 

Manhattan Adhesives Corp., 123 NLRB 1096 (1959)................................................................................ 328 

Manhattan College, 195 NLRB 65 (1972).................................................................................................. 223 

Manhattan Crowne Plaza Town Park Hotel Corp., 341 NLRB 619 (2004)................................................ 300 

Manitowoc Shipbuilding, 191 NLRB 786 (1971)............................................................................... 121, 142 

Manncraft Exhibitors Services, 212 NLRB 923 (1974).............................................................................. 248 
TABLE OF CASES DISCUSSED 387

Manor Healthcare Corp., 285 NLRB 224 (1987)........................................................................................ 152 

Mansion House Management Corp.; NLRB v., 473 F.2d 471 (8th Cir. 1973) ............................................. 55 

Maple View Manor, Inc., 319 NLRB 85 (1995)......................................................................................... 326 

Maramount Corp., 310 NLRB 508 (1993).................................................................................. 153, 156, 157 

Margaret-Peerless Coal Co., 173 NLRB 72 (1969) ...................................................................................... 54 

Margate Bridge Co., 247 NLRB 1437 (1980)................................................................................................. 4 

Mariah, Inc., 322 NLRB 586 (1996)............................................................................................................. 35 

Marian Manor for the Aged, 333 NLRB 1084 (2001) .......................................................................... 36, 268 

Marian Medical Center, 339 NLRB 127 (2003) ......................................................................................... 248 

Marie Antoinette Hotel, 125 NLRB 207 (1959) ......................................................................................... 331 

Mariemont Inn, 145 NLRB 79 (1964) ................................................................................................ 176, 177 

Marinor Inns; NLRB v., 445 F.2d 538 (5th Cir. 1971), enfg. 181 NLRB 467 (1970).................................... 7 

Mario Saikhon, Inc., 278 NLRB 1289 (1986) ............................................................................................ 206 

Marion Power Shovel Co., 230 NLRB 576 (1977)....................................................................................... 65 

Mar-Jac Poultry Co. 

 123 NLRB 1571 (1959) ...................................................................................................................... 341 

 136 NLRB 785 (1962) ................................................................................................................ 110, 111 

Mar-Jam Supply Co., 337 NLRB 337 (2001)............................................................................................. 312 

Mark Aero, Inc., 200 NLRB 304 (1972)....................................................................................................... 19 

Mark Burnett Productions, 349 NLRB 706 (2007)..................................................................................... 116 

Mark Farmer Co., 184 NLRB 785 (1970)..................................................................................................... 66 

Marks Oxygen Co., 147 NLRB 228 (1964)........................................................................ 128, 131, 168, 169 

Marquette General Hospital, 218 NLRB 713 (1975).................................................................................. 246 

Marquette Transportation/Bluegrass Marine, 346 NLRB 449 (2006) ........................................................ 216 

Marriott Hartford Downtown Hotel, 347 NLRB 865 (2006)........................................................................ 68 

Marriott In-Flite Services v. NLRB, 652 F.2d 202 (1981).......................................................................... 137 

Martin Enterprises, 325 NLRB 714 (1998)................................................................................................. 253 

Martin Marietta Co., 270 NLRB 821 (1984) ................................................................................................ 69 

Martin-Marietta Corp., 139 NLRB 925 (1962)..................................................................................... 43, 257 

Martino’s Home Furnishings, 145 NLRB 604 (1964) .................................................................................. 74 

Marty Levitt, 171 NLRB 739 (1968) .......................................................................................................... 6, 9 

Marvil International Security Service, 173 NLRB 1260 (1968) ................................................................. 339

Mary Carter Paint Co., 148 NLRB 46 (1964)............................................................................................. 147 

Maryland Cup Corp., 182 NLRB 686 (1970) ............................................................................................. 220 

Mascot Stove Co., 75 NLRB 427 (1948).................................................................................................... 112 

Masiongale Electrical-Mechanical, 326 NLRB 493 (1998)........................................................................ 333 

Mason & Hanger-Silas Mason Co. 

 142 NLRB 699 (1963) ........................................................................................................................ 107 

 180 NLRB 467 (1970) ................................................................................................................ 199, 258 

Massachusetts Electric Co., 248 NLRB 155 (1980) ............................................................... 65, 83, 140, 142 

Massachusetts Society for the Prevention of Cruelty to Children v. NLRB, 

297 F.3d 41 (1st Cir. 2002)....................................................................................... 60, 147, 148, 151, 152 

Master Slack Corp., 271 NLRB 78 (1984) ................................................................................................. 117 

Mastic Tile Corp., 122 NLRB 1528 (1959) .................................................................................................. 67 

Mathieson Alkali Works, 51 NLRB 113 (1943)........................................................................................... 80 

Matson Terminals, 321 NLRB 879 (1996) ................................................................................................. 117 

May Department Stores Co. 

 97 NLRB 1007 (1951) ........................................................................................................................ 184 

 191 NLRB 928 (1971) ........................................................................................................................ 340 

Mayfield Holiday Inn, 335 NLRB 38 (2001).............................................................................................. 143 

MB Consultants, Ltd., 328 NLRB 1089 (1999).......................................................................................... 298 

MCA Distribution Corp., 288 NLRB 1173 (1988) ..................................................................................... 120 

McCann Steel Co., 179 NLRB 635 (1969)................................................................................................. 130 

McCarty-Holman Co., 114 NLRB 1554 (1955) ......................................................................................... 322 

McClintock Market, 244 NLRB 555 (1979)..................................................................................... 73, 74, 75 

McCollough Environmental Services, 306 NLRB 565 (1992) ................................................................... 213 
388 TABLE OF CASES DISCUSSED

McCormack Lines, 139 NLRB 796 (1962)................................................................................................. 180 

McCoy Co., 151 NLRB 383 (1965)............................................................................................................ 147 

McCulloch Corp. 

 149 NLRB 1020 (1964) ...................................................................................................................... 147 

 156 NLRB 1247 (1966) ...................................................................................................................... 307 

McDonald’s, 192 NLRB 878 (1971) .......................................................................................................... 146 

McDonnell Douglas Astronautics Co., 194 NLRB 689 (1972) .................................................................. 141 

McFarland & Hullinger, 131 NLRB 745 (1961)............................................................................................. 5 

McFarling Foods, Inc., 336 NLRB 1140 (2001)......................................................................................... 285 

McGraw-Edison Co., 199 NLRB 1017 (1972) ....................................................................................... 57, 64 

McLean County Roofing, 290 NLRB 685 (1988) ........................................................................................ 87 

McLean Hospital Corp. 

 309 NLRB 564 (1992) ........................................................................................................................ 175 

 311 NLRB 1100 (1993) ...................................................................................................................... 175 

McLean Roofing Co., 276 NLRB 830 (1985) ............................................................................................ 297 

Mc-Mor-Han Trucking Co., 166 NLRB 700 (1967)........................................................................... 169, 253

Mead Corp., 189 NLRB 190 (1971) ........................................................................................................... 339 

Mead Southern Wood Products, 337 NLRB 497 (2002) .................................................................... 329, 342 

Meadow Stud, Inc., 130 NLRB 1202 (1961)................................................................................................ 21 

Meadow Valley Contractors, 314 NLRB 217 (1994) ................................................................. 254, 274, 308 

Medion, Inc., 200 NLRB 1013 (1972)........................................................................................................ 282 

Medlar Electric, Inc., 337 NLRB 796 (2003) ............................................................................................. 253 

Medtrans, 326 NLRB 925 (1998) ............................................................................................................... 267 

Meijer Supermarkets, 142 NLRB 513 (1963)..................................................................................... 151, 218 

Melampy Mfg. Co., 303 NLRB 845 (1991)................................................................................................ 340 

Melbet Jewelry Co., 180 NLRB 107 (1970)................................................................................. 85, 140, 142 

MEMC Electronic Materials, Inc.; NLRB v., 363 F.3d 705 (8th Cir. 2004) .............................................. 286 

Memphis Furniture Mfg. Co., 259 NLRB 401 (1981) ................................................................ 136, 171, 258 

Mensh Corp., 159 NLRB 156 (1966) ......................................................................................................... 246 

Meramec Mining Co., 134 NLRB 1675 (1962).......................................................................... 115, 234, 241

Merchants Transfer Co., 330 NLRB 1165 (2000) ...................................................................................... 308 

Mercury Distribution Carriers, 312 NLRB 840 (1993)............................................................................... 248 

Mercy General Health Partners, 331 NLRB 783 (2000)............................................................................. 161 

Mercy General Hospital 

 334 NLRB 100 (2001) ................................................................................................................ 297, 319 

 336 NLRB 1047 (2001) ........................................................................................................................ 75 

Mercy General Partners, 331 NLRB 783 (2000) .......................................................................................... 37 

Mercy Health Services North 

 311 NLRB 1091 (1993) ...................................................................................................................... 242 

 311 NLRB 367 (1993) ................................................................................................................ 144, 152 

Mercy Hospital Mercy Southwest Hospital, 338 NLRB 545 (2003) .................................................. 299, 300 

Mercy Hospital of Buffalo, 336 NLRB 1282 (2001) .................................................................................. 161 

Mercy Hospitals of Sacramento, 217 NLRB 765 (1975)............................................................................ 227 

Mercywood Health Building, 287 NLRB 1114 (1988)............................................................................... 152 

Merico, Inc., 207 NLRB 101 (1973)............................................................................................................. 82 

Meriter Hospital, 306 NLRB 598 (1992).................................................................................................... 242 

Metal Sales Mfg., 310 NLRB 597 (1993)............................................................................................... 44, 47 

Metal Textile Corp., 88 NLRB 1326 (1950)............................................................................................... 135 

Metaldyne Corp., 339 NLRB 443 (2003) ................................................................................................... 297 

Metropolitan Life Insurance Co. v. NLRB 

 327 F.2d 906 (1st Cir. 1964)............................................................................................................... 151 

 328 F.2d 820 (3d Cir. 1964)................................................................................................................ 151 

 330 F.2d 62 (6th Cir. 1964)................................................................................................................. 151 

 380 U.S. 438 (1965).................................................................................................... 129, 137, 151, 177 
TABLE OF CASES DISCUSSED 389

Metropolitan Life Insurance Co. 

 156 NLRB 1408 (1966) .............................................................................................. 137, 152, 177, 182 

 172 NLRB 1257 (1968) ........................................................................................................................ 96 

Metropolitan Opera Assn., 327 NLRB 740 (1999)..................................................................................... 196 

Metropolitan Taxicab Board of Trade, 342 NLRB 1300 (2004) ................................................................ 211 

Metropolitan Transportation Services, 351 NLRB No. 43 (2007).............................................................. 216 

Metro-Taxicab Co., 341 NLRB 722 (2004)........................................................................................ 209, 211 

Metta Electric, 349 NLRB 1088 (2007)...................................................................................................... 110 

Metz Metallurgical Corp., 270 NLRB 889 (1984)...................................................................................... 296 

Meyer Mfg. Corp., 170 NLRB 509 (1968) ................................................................................................. 229 

Mfg. Woodworkers Assn., 194 NLRB 1122 (1972)................................................................................... 132 

MGM Grand Hotel, 329 NLRB 464 (1999)................................................................................................ 113 

MGM Studios of New York, 336 NLRB 1255 (2001) ............................................................................... 115

Michael Reese Hospital, 242 NLRB 322 (1979) ........................................................................................ 172 

Michigan Bell Telephone Co. 

 182 NLRB 632 (1970) .................................................................................................................... 53, 98 

 192 NLRB 1212 (1971) .............................................................................................................. 130, 182 

Michigan Cartagemen’s Assn., 117 NLRB 1778 (1957) ............................................................................ 167 

Michigan Masonic Home, 332 NLRB 1409 (2000).................................................................................... 223 

Michigan Wisconsin Pipe Line Co. 

 164 NLRB 359 (1967) ........................................................................................................................ 182 

 194 NLRB 469 (1972) ................................................................................................................ 130, 182 

Micro Metalizing Co., 134 NLRB 293 (1962)............................................................................................ 250 

Micromedia Publishing, 289 NLRB 537 (1988)........................................................................................... 73 

Micronesian Telecommunications Corp., 273 NLRB 354 (1984) .................................................................. 6 

Mid American Health Services, 247 NLRB 752 (1980)............................................................................... 13 

Mid-Continent Spring Co., 273 NLRB 884 (1985) .................................................................................... 327 

Midland National Life Insurance Co., 263 NLRB 127 (1982) ................................................... 302, 303, 336 

Midland Processing Services, 304 NLRB 770 (1991) ................................................................................ 316 

Mid-South Drywall Co., 339 NLRB 480 (2002) ........................................................................................ 221 

Mid-South Packers, 120 NLRB 495 (1958).................................................................................................. 45 

Mid-State Fruit, Inc., 186 NLRB 51 (1970)................................................................................................ 216 

Midstate Telephone Co., 179 NLRB 85 (1969).......................................................................................... 110 

Midvale Co., 114 NLRB 372 (1956) ............................................................................................................ 56 

Midway Hospital Medical Center, 330 NLRB 1420 (2000)....................................................................... 338 

Midway Lincoln-Mercury, 180 NLRB 58 (1969)......................................................................................... 96 

Mid-West Abrasive Co., 145 NLRB 1665 (1964) .............................................................................. 133, 147 

Midwest Canvas Corp., 326 NLRB 58 (1998)............................................................................................ 325 

Mike Basil Chevrolet, 331 NLRB 1044 (2000) .......................................................................................... 120 

Mike Yurosek & Son, 292 NLRB 1074 (1989) .......................................................................................... 319 

Milchem, Inc., 170 NLRB 362 (1968)........................................................................ 313, 317, 337, 338, 339 

Milham Products Co., 114 NLRB 1544 (1955) .......................................................................................... 320 

Miller & Miller Motor Freight Lines, 101 NLRB 581 (1953) ............................................................ 132, 149 

Miller Industries, 342 NLRB 1047 (2004).................................................................................................. 343 

Miller Road Dairy, 135 NLRB 217 (1962)................................................................................................. 208 

Millord Refrigeration Services, 326 NLRB 1437 (1998)............................................................................ 217 

Millsboro Nursing & Rehabilitation Center, 327 NLRB 879 (1999).................................... 51, 268, 269, 318 

Milwaukee Meat Packers Assn., 223 NLRB 922 (1976).................................................................... 154, 158 

Mine Workers, 205 NLRB 509 (1973) ....................................................................................................... 118 

Ming Quong Children’s Center, 210 NLRB 899 (1974) .............................................................................. 14 

Minidoka Irrigation District, 175 NLRB 880 (1969).................................................................................. 207 

Minn-Dak Farmers Cooperative, 311 NLRB 942 (1993) ........................................................................... 120

Minneapolis Society of Fine Arts, 194 NLRB 371 (1972) ................................................................... 17, 260

Minneapolis Star & Tribune Co., 222 NLRB 342 (1976)........................................................................... 180 

Minneapolis-Honeywell Regulator Co., 115 NLRB 344 (1956) ................................................................ 239 

Mirage Casino-Hotel, 338 NLRB 529 (2002)..................................................................................... 200, 202 
390 TABLE OF CASES DISCUSSED

Miratti’s, Inc., 132 NLRB 699 (1961) .......................................................................................................... 73 

Mission Industries, 283 NLRB 1027 (1987)............................................................................................... 334 

Mississippi Power & Light Co., 328 NLRB 965 (1999)............................................................................. 214 

Mississippi Power Co., 332 NLRB 530 (2000) .......................................................................................... 276 

Missouri Beef Packers, 175 NLRB 1100 (1969) ........................................................................................ 120 

Mistletoe Express Service, 268 NLRB 1245 (1984)................................................................................... 116 

Mistletoe Operating Co., 122 NLRB 1534 (1959)........................................................................................ 14 

Mitchellace, Inc., 314 NLRB 536 (1994) ................................................................................................... 238 

MJ Metal Products, 325 NLRB 240 (1997)................................................................................................ 218 

MJM Studios of New York 

 336 NLRB 1255 (2001) ...................................................................................................................... 249 

 338 NLRB 980 (2003) ........................................................................................................................ 276 

Mo’s West, 283 NLRB 130 (1989)............................................................................................................... 71 

Mobil Oil Corp., 169 NLRB 259 (1968)..................................................................................................... 198 

Mod Interiors, 324 NLRB 164 (1997) ................................................................................................ 306, 309 

Modern Hard Chrome Service Co. 

 124 NLRB 1235 (1959) .................................................................................................................. 59, 70 

 187 NLRB 82 (1970) .......................................................................................................................... 338 

Mohawk Bedding Co., 204 NLRB 277 (1973) ........................................................................................... 294 

Mohawk Flush Doors, 281 NLRB 410 (1986).............................................................................................. 54 

Moloney Electric Co., 169 NLRB 464 (1968)............................................................................................ 200 

Mon Valley United Health Services, 227 NLRB 728 (1977) ......................................................................... 5 

Monarch Building Supply, 276 NLRB 116 (1985)..................................................................................... 327 

Monarch Federal Savings & Loan, 236 NLRB 874 (1978) ........................................................................ 267 

Monfort of Colorado, 298 NLRB 73 (1990)............................................................................................... 343 

Monfort, Inc., 318 NLRB 209 (1995)......................................................................................................... 328 

Monmouth Medical Center 

 247 NLRB 508 (1980) .......................................................................................................................... 45 

 234 NLRB 328 (1978), enf. denied 604 F.2d 820 (3d Cir. 1979)....................................................... 324 

Monongahela Power Co., 176 NLRB 915 (1969)....................................................................................... 182 

Mono-Trade Co., 323 NLRB 298 (1997).................................................................................................... 275 

Monroe Auto Equipment Co., 186 NLRB 90 (1970).................................................................................. 316 

Monroe Auto Equipment Co.; NLRB v., 406 F.2d 177 (5th Cir. 1969) ..................................................... 316 

Monroe Tube Co., 220 NLRB 302 (1975).................................................................................................. 288 

Monsanto Chemical Co. 

 108 NLRB 870 (1954) .......................................................................................................................... 81 

 147 NLRB 49 (1964) .......................................................................................................................... 108 

Monsanto Co., 172 NLRB 1461 (1968)...................................................................................................... 202 

Monsanto Research Corp., 185 NLRB 137 (1970)..................................................................................... 130 

Montana-Dakota Utilities Co., 115 NLRB 1396 (1956)..................................................................... 181, 182

Monte Vista Disposal Co., 307 NLRB 531 (1992)..................................................................................... 325 

Montgomery Ward & Co. 

 123 NLRB 135 (1959) ........................................................................................................................ 255 

 124 NLRB 343 (1959) ........................................................................................................................ 311 

 137 NLRB 346 (1962) .................................................................................................................. 86, 100 

 143 NLRB 587 (1963) .......................................................................................................................... 87 

 150 NLRB 598 (1965) ................................................................................................................ 147, 186 

 193 NLRB 992 (1971) ........................................................................................................................ 186 

 195 NLRB 1031 (1972) ...................................................................................................................... 141 

 225 NLRB 547 (1976) ........................................................................................................................ 184 

 259 NLRB 280 (1981) ................................................................................................................ 239, 240 

Montville Warehousing Co., 158 NLRB 952 (1966).................................................................................... 84 

Moore Business Forms, Inc., 204 NLRB 552 (1973); ................................................................................ 128 

Moore Drop Forging Co., 168 NLRB 984 (1967) .................................................................................. 91, 97 

Moore Laminating, 137 NLRB 729 (1962) .......................................................................................... 67, 271 
TABLE OF CASES DISCUSSED 391

Moore-McCormack Lines 

 139 NLRB 796 (1962) ........................................................................................................................ 150 

 181 NLRB 510 (1970) .......................................................................................................................... 80 

Morand Bros. Beverage Co., 91 NLRB 409 (1950), enfd. 190 F.2d 576 (7th Cir. 1951)........................... 127 

Morgan Linen Service, 131 NLRB 420 (1961) .......................................................................................... 154 

Morgan Manor Nursing & Rehabilitation Center, 319 NLRB 552 (1995)................................................... 37 

Morgan Services, 339 NLRB 463 (2003) ............................................................................................. 65, 275 

Morganton Hosiery Co.; NLRB v., 241 F.2d 913 (4th Cir. 1957) .............................................................. 129 

Mosler Safe Co. 

 188 NLRB 650 (1971) ................................................................................................................ 137, 238 

 216 NLRB 9 (1975) .............................................................................................................................. 95 

Motherhouse of Sisters of Charity, 232 NLRB 318 (1977) .......................................................................... 13 

Motor Transport Labor Relations, 139 NLRB 70 (1962) ........................................................................... 246 

Motts Shop Rite of Springfield, 182 NLRB 172 (1970) ............................................................................. 129 

Mount Airy Psychiatric Center, 253 NLRB 1003 (1981) ........................................................................... 174 

Mount Sinai Hospital 

 233 NLRB 507 (1977) ................................................................................................................ 252, 260 

 325 NLRB 1136 (1998). ..................................................................................................................... 218 

Mountain States Telephone Co. v. NLRB, 310 F.2d 478 (10th Cir. 1962)......................................... 128, 182 

Mountain States Telephone Co. 

 126 NLRB 676 (1960) ........................................................................................................................ 182 

 136 NLRB 1612 (1962) ........................................................................................................................ 29 

 175 NLRB 553 (1969) ........................................................................................................................ 123 

Mountaineer Bolt, 300 NLRB 667 (1990) .................................................................................................. 288 

Mountaineer Park, Inc., 343 NLRB 1473 (2004)................................................................................ 215, 217 

Moveable Partitions, 175 NLRB 915 (1969) ........................................................................................ 80, 154 

Mower Lumber Co., 276 NLRB 766 (1985)............................................................................................... 217 

MPE, Inc., 226 NLRB 519 (1976)................................................................................................................ 85 

Mrs. Baird’s Bakeries, 323 NLRB 607 (1997) ........................................................................................... 274 

Mrs. Tucker’s Products, 106 NLRB 533 (1953)........................................................................................... 50 

Mt. Carmel Medical Center, 306 NLRB 1060 (1992) ................................................................................ 303 

Mueller Energy Services, 323 NLRB 785 (1997)......................................................................................... 35 

Muncie Newspapers, Inc., 246 NLRB 1088 (1979).................................................................................... 245 

Murphy Bonded Warehouse, 180 NLRB 463 (1970) ................................................................................. 309 

Musgrave Mfg. Co., 124 NLRB 258 (1959)............................................................................................... 250 

MV Transportation, 337 NLRB 770 (2002) ............................................................................................... 113 

Myrna Mills, 133 NLRB 767 (1961) .......................................................................................................... 314 

N. Sumergrade & Sons, 121 NLRB 667 (1958) ........................................................................................... 81 

NAPA Columbus Parts Co., 269 NLRB 1052 (1984)................................................................................. 183 

NAPA New York Warehouse, 75 NLRB 1269 (1948)................................................................................. 57

Naples Community Hospital, 318 NLRB 272 (1995)................................................................................. 220 

Nathan Katz Realty v. NLRB, 251 F.3d 981 (D.C. Cir.2001) ...................................................................... 38 

Nathan’s Famous of Yonkers, 186 NLRB 131 (1970)................................................................................ 308 

National Brassiere Products Corp., 122 NLRB 965 (1959).......................................................................... 94 

National Broadcasting Co. 

 104 NLRB 587 (1953) .......................................................................................................................... 92 

 202 NLRB 396 (1973) ........................................................................................................................ 187 

 231 NLRB 942 (1977) ........................................................................................................................ 169 

National Can Corp., 170 NLRB 926 (1968) ............................................................................................... 123 

National Carloading Corp., 167 NLRB 801 (1967).............................................................................. 69, 124 

National Cash Register Co. 

 166 NLRB 173 (1967) ................................................................................................................ 127, 145 

 168 NLRB 910 (1968) ........................................................................................................................ 233 

 201 NLRB 846 (1973) .................................................................................................................... 83, 94 

National Detective Agencies, 237 NLRB 451 (1978)................................................................................... 21 

National Freight, 153 NLRB 1536 (1965) .................................................................................................. 208 
392 TABLE OF CASES DISCUSSED

National Gypsum Co., 133 NLRB 1492 (1961).......................................................................................... 277 

National League of Professional Baseball Clubs, 330 NLRB 670 (2000) .................................................. 287 

National Licorice Co., 85 NLRB 140 (1949).............................................................................................. 134 

National Posters, 289 NLRB 468 (1988) .................................................................................................... 120 

National Public Radio, 328 NLRB 75 (1999)............................................................................................. 285 

National Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998) .......... 319 

National Torch Tip Co., 107 NLRB 1271 (1954)....................................................................................... 254 

National Transportation Service, 240 NLRB 565 (1979) ............................................................................. 12 

National Van Lines 

 117 NLRB 1213 (1957) ........................................................................................................................ 55 

 120 NLRB 1343 (1958) ...................................................................................................................... 333 

National Welders Supply Co., 145 NLRB 948 (1964) ................................................................................. 63 

Nationsway Transport Service, 316 NLRB 4 (1995).................................................................................. 220 

Natural Gas Utility District of Hawkins County 

 167 NLRB 691 (1967) .......................................................................................................................... 18 

 167 NLRB 691 (1967), enfd. 427 F.2d 312 (6th Cir. 1970), affd. as to applicable 

 standard only 402 U.S. 600 (1971) ...................................................................................................... 17 

Navajo Tribe v. NLRB, 288 F.2d 162 (D.C. Cir. 1961), cert. denied 366 U.S. 928 (1961) ........................... 8 

NCR Corp., 236 NLRB 215 (1978) ............................................................................................................ 130 

Nebraska Consolidated Mills, 165 NLRB 639 (1967)................................................................................ 311 

Necedah Screw Machine Products, 323 NLRB 574 (1997)........................................................................ 218 

Neighborhood Legal Services, 236 NLRB 1269 (1978)............................................................................. 178 

Neiser Supermarkets, 142 NLRB 513 (1963) ............................................................................................... 55 

Neisner Bros., Inc., 200 NLRB 935 (1972) ................................................................................................ 219 

Nelson Name Plate Co., 122 NLRB 467 (1959)........................................................................................... 94 

Nestle Dairy Systems, 311 NLRB 987 (1993), enf. denied 46 F.3d 578 (6th Cir. 1995) ........... 300, 303, 343 

Network Ambulance Services, 329 NLRB 1 (1999)........................................................................... 299, 300 

Nevada Club, 178 NLRB 81 (1969) ..................................................................................................... 91, 173 

Nevada Security Innovations, 337 NLRB 1108 (2002) .............................................................................. 303 

New Britain Transportation Co., 330 NLRB 397 (1999)............................................................ 145, 148, 150 

New Deal Cab Co., 159 NLRB 1838 (1966) .............................................................................. 104, 132, 135 

New England Lead Burning Co., 133 NLRB 863 (1961)............................................................................. 97 

New England Lithographic Co.; NLRB v., 589 F.2d 29 (1st Cir. 1978) ............................................ 248, 249 

New England Power Co., 120 NLRB 666 (1958)....................................................................................... 137 

New England Telephone Co. 

 179 NLRB 527 (1969) ........................................................................................................................ 225 

 179 NLRB 531 (1969) .......................................................................................................................... 97 

 242 NLRB 793 (1979) ........................................................................................................................ 182 

 280 NLRB 162 (1986) ........................................................................................................................ 150 

New Enterprise Stone Co., 172 NLRB 2157 (1968)................................................................................... 167 

New Hotel Monetelone, 127 NLRB 1092 (1960)......................................................................................... 45 

New Jersey Natural Gas Co., 101 NLRB 251 (1953) ................................................................................... 83 

New Jersey Newspapers, 322 NLRB 394 (1996) ....................................................................................... 213 

New Laxton Coal Co., 134 NLRB 927 (1961). ............................................................................................ 48 

New Otani Hotel & Garden, 331 NLRB 1078 (2000), ................................................................................. 67 

New York Center for Rehabilitation Care, 346 NLRB 447 (2006) .............................................................. 70 

New York Display & Die Cutting Corp., 341 NLRB 930 (2004)............................................................... 245 

New York Hilton, 193 NLRB 313 (1971) .................................................................................................... 56 

New York Shipping Assn. 

 107 NLRB 364 (1954) ........................................................................................................................ 281 

 109 NLRB 310 (1954) ........................................................................................................................ 320 

New York Telephone Co., 109 NLRB 788 (1954) ..................................................................... 320, 323, 331 

New York University 

 205 NLRB 4 (1973) .................................................................................................................... 189, 248 

 221 NLRB 1148 (1975) ...................................................................................................................... 254 

 332 NLRB 1205 (2000) ...................................................................................................................... 188 
TABLE OF CASES DISCUSSED 393

Newburgh Mfg. Co., 151 NLRB (1965)..................................................................................................... 246 

Newport News Shipbuilding Co., 239 NLRB 82 (1978) ............................................................................ 322 

News Syndicate Co., 164 NLRB 422 (1967).............................................................................................. 210 

News/Sun-Sentinel Co., 290 NLRB 1171 (1988)....................................................................................... 120 

News-Journal Co., 185 NLRB 158 (1970), enfd. 447 F.2d 65 (3d Cir. 1971)............................................ 210 

News-Press Publishing Co., 145 NLRB 803 (1964)..................................................................................... 91 

Newton-Wellesley Hospital, 219 NLRB 699 (1975) .................................................................................. 247 

Niagara University, 227 NLRB 313 (1977)................................................................................................ 189 

Niagara Wires, 237 NLRB 1347 (1978) ..................................................................................................... 322 

Niblock Excavating, Inc., 337 NLRB 53 (2001)......................................................................................... 300 

Nichols House Nursing Home, 332 NLRB 1428 (2000) ............................................................ 266, 273, 275 

Nordam, Inc., 173 NLRB 1153 (1969) ....................................................................................................... 276 

Norfolk Southern Bus Corp., 76 NLRB 488 (1948) ............................................................................. 45, 135 

Norris-Thermador Corp., 119 NLRB 1301 (1958) ..................................................................... 273, 283, 284 

North American Aviation, 162 NLRB 1267 (1967) ................................................................................... 200 

North American Plastics Corp., 326 NLRB 835 (1998) ............................................................................. 333 

North American Rockwell Corp., 193 NLRB 985 (1971) .......................................................................... 132

North American Van Lines, 288 NLRB 38 (1988)..................................................................................... 209 

North Arkansas Electric Cooperative, 185 NLRB 550 (1970) ................................................................... 236 

North Carolina Life Insurance Co., 109 NLRB 625 (1954)........................................................................ 178 

North General Hospital, 314 NLRB 14 (1994)........................................................................................... 224 

North Hills Office Services, 342 NLRB 437 (2004)................................................................................... 145 

North Macon Health Care Facility, 315 NLRB 359 (1994)................................................................ 283, 306 

North Manchester Foundry, Inc., 328 NLRB 372 (1999)............................................................................. 35 

North Medical Center, 224 NLRB 218 (1976) ........................................................................................... 172 

North Shore Club, 169 NLRB 854 (1968).................................................................................................. 173 

North Shore Weeklies, Inc., 317 NLRB 1128 (1995)......................................................................... 210, 220 

Northcrest Nursing Home, 313 NLRB 491 (1993)..................................................................................... 223 

Northeast Iowa Telephone Co. 

 341 NLRB 670 (2004) .......................................................................................................................... 37 

 346 NLRB 465 (2006) ........................................................................................................................ 319 

Northern California Nurses Assn., 299 NLRB 980 (1990)......................................................................... 247 

Northern Pacific Sealcoating, 309 NLRB 759 (1992) ............................................................................ 70, 99 

Northern States Beef, 311 NLRB 1056 (1993)............................................................................................. 29 

Northern Telecom Systems, 297 NLRB 256 (1989)................................................................................... 327 

Northern Trust Co., 69 NLRB 652 (1946).................................................................................................... 47 

Northgate Cinema, Inc., 233 NLRB 586 (1977)........................................................................................... 24 

Northrop Aircraft, 106 NLRB 23 (1953) .................................................................................................... 316 

Northshore Fabricators & Erectors, 230 NLRB 346 (1977......................................................................... 277 

Northwest Community Hospital, 331 NLRB 307 (2000) ........................................................................... 285

Northwest Florida Legal Services, 320 NLRB 92 (1995)........................................................................... 213 

Northwest Packing Co., 65 NLRB 890 (1946) ........................................................................................... 334 

Northwest Steel, 200 NLRB 108 (1972)..................................................................................................... 214 

Nouveau Elevator Industries, 326 NLRB 470 (1998)................................................................................. 333 

Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003) ................................................................. 106 

Nova Southeastern University, 325 NLRB 728 (1998) .............................................................................. 188 

Novato Disposal Services 

 328 NLRB 820 (1999) ................................................................................................ 145, 147, 148, 149 

 330 NLRB 632 (2000) ........................................................................................................................ 170 

Novi American Inc.–Atlanta, 234 NLRB 421 (1978)................................................................................. 238 

Novi American, Inc., 309 NLRB 544 (1992)...................................................................................... 293, 294 

Novotel New York, 321 NLRB 624 (1996)................................................................................................ 342 

Nu Skin International, 307 NLRB 223 (1992)............................................................................ 317, 319, 340 

Nursing Center at Vineland Concrete, 318 NLRB 337 (1995) ..................................................................... 38

NVF Co., 210 NLRB 663 (1974)................................................................................................................ 301 

Nyack Hospital, 238 NLRB 257 (1978) ..................................................................................................... 325 
394 TABLE OF CASES DISCUSSED

NYES Corp., 343 NLRB 791 (2004).......................................................................................................... 297 

NYP Acquisition Corp., 332 NLRB 1041 (2001)....................................................................................... 162 

O & T Warehousing Co., 240 NLRB 386 (1979) ......................................................................................... 45 

O. D. Jennings & Co., 68 NLRB 516 (1946)................................................................................................ 43 

O. E. Butterfield, Inc., 319 NLRB 1004 (1995).......................................................................................... 278 

O. E. Szekely & Associates, 117 NLRB 42 (1957) .................................................................................... 283 

O. K. Van & Storage Co., 122 NLRB 795 (1958) .............................................................................. 321, 326 

O’Brien Memorial 

 308 NLRB 553 (1992) ................................................................................................................ 145, 148 

 310 NLRB 943 (1993) ........................................................................................................................ 313 

O’Connor Motors, 100 NLRB 1146 (1951).................................................................................................. 75 

O’Sullivan, Muckle, Kron Mortuary, 246 NLRB 164 (1980)..................................................................... 162 

Oak Hill Funeral Home, 345 NLRB 532 (2005)......................................................................................... 337 

Oak Park Nursing Care Center, 351 NLRB No. 9 (2007)................................................................... 217, 223 

Oakland G. R. Kinney Co., 136 NLRB 335 (1962)...................................................................................... 39 

Oakwood Care Center, 343 NLRB 659 (2004)................................................................................... 162, 249 

Oakwood Healthcare, Inc., 348 NLRB 686 (2006)............................................................. 213, 215, 218, 223 

Ocala Star Banner, 97 NLRB 384 (1951) ................................................................................................... 254 

Odibrecht Contractor of Florida, 326 NLRB 33 (1998)................................................................................ 28 

Oesterlen Services for Youth, 243 NLRB 563 (1979), enfd. 649 F.2d 399 (6th Cir. 1981), cert. denied 454 U.S. 1031 

(1981)...................................................................................................................................................... 338 

Offshore Express, 267 NLRB 378 (1983)................................................................................................. 6, 21 

Ogden Enterprises, 248 NLRB 290 (1980)................................................................................................... 73 

Ogden Ground Services, 339 NLRB 869 (2003) .......................................................................................... 19 

OHD Service Corp., 313 NLRB 901 (1994)............................................................................................... 219 

Ohio Casualty Insurance Co., 175 NLRB 860 (1969) ................................................................................ 242 

Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir 1949), cert. denied 338 U.S. 899 (1949) ...................... 212 

Ohio Public Interest Campaign, 284 NLRB 281 (1987)............................................................................... 14 

Okeh Caterers, 179 NLRB 535 (1969) ....................................................................................................... 212 

Oklahoma Installation Co. 

 305 NLRB 812 (1991) .......................................................................................................... 66, 145, 166 

 325 NLRB 741 (1998) ........................................................................................................................ 106 

Olin Mathieson Chemical Corp. 

 115 NLRB 1501 (1956) ...................................................................................................................... 108 

 117 NLRB 665 (1957) ........................................................................................................................ 239 

Olinkraft, Inc., 179 NLRB 414 (1969)........................................................................................................ 199 

Olympia Auto Dealers Assn., 243 NLRB 1086 (1979) .............................................................................. 160 

Omahaline Hydraulics Co., 340 NLRB 916 (2003),................................................................................... 277 

Omni International Hotel, 283 NLRB 475 (1987) ...................................................................................... 177 

Onan Corp., 338 NLRB 913 (2003)............................................................................................................ 300 

Open Taxi Lot Operation, 240 NLRB 808 (1979).......................................................................................... 4 

Operating Engineers Local 181 (Steel Fab), 292 NLRB 354 (1989).......................................................... 134 

Operating Engineers Local 428 (Bee Slurry), 169 NLRB 184 (1968)............................................................ 7 

Operating Engineers Local 701 (Cascade Employer), 132 NLRB 648 (1961)........................................... 155 

Orange Blossom Manor, 324 NLRB 846 (1997) ........................................................................................ 274 

Orchard Industries, 118 NLRB 798 (1957)................................................................................................. 249 

Ore Ida Foods, 313 NLRB 1016 (1994)...................................................................................................... 201 

Oregon Labor Management Relations Board, 163 NLRB 17 (1967) ............................................................. 3 

Oregon Macaroni Co., 124 NLRB 1001 (1959)............................................................................................ 89 

Oregon Teamsters’ Security Plan Office, 119 NLRB 207 (1958) ............................................................ 6, 61 

Oregon Washington Telephone Co., 123 NLRB 339 (1959)...................................................................... 312 

Oritz Funeral Home Corp., 250 NLRB 730 (1981) .................................................................................... 172 

Orleans Mfg. Co., 120 NLRB 630 (1958) .................................................................................................. 315 

Orr-Sysco Food Services, 334 NLRB 977 (2001) ...................................................................................... 319 

Orson E. Pontiac-GMC Trucks, Inc., 328 NLRB 688 (1999)....................................................................... 37

Osram Sylvania, Inc., 325 NLRB 758 (1998)..................................................................................... 276, 335 
TABLE OF CASES DISCUSSED 395

Otasco, Inc., 278 NLRB 376 (1986) ........................................................................................................... 254 

Otis Elevator Co., 116 NLRB 262 (1957)................................................................................................... 242 

Otis Hospital, 219 NLRB 164 (1975) ......................................................................................................... 238 

Ottawa Machine Products Co., 120 NLRB 1133 (1958) .............................................................................. 64 

Ottenbacher Mfg., 279 NLRB 1167 (1986)................................................................................................ 315 

Outokumpu Copper Franklin, Inc., 334 NLRB 263 (2001) ........................................................................ 249

Overhead Door Co., 178 NLRB 481 (1969) ................................................................................................. 78 

Overnite Transportation Co. 

 141 NLRB 384 (1963) ........................................................................................................................ 137 

 158 NLRB 879 (1966) ........................................................................................................................ 296 

 322 NLRB 347 (1996) ........................................................................................................................ 170 

 322 NLRB 723 (1996) ........................................................................................................ 127, 129, 170 

 325 NLRB 612 (1998) ........................................................................................................ 129, 169, 170 

 331 NLRB 662 (2000) ........................................................................................................ 127, 130, 168 

 333 NLRB 472 (2001) .................................................................................................................... 39, 61 

 333 NLRB 1392 (2001) ...................................................................................................................... 117 

 337 NLRB 131 (2001) ........................................................................................................................ 116 

Overnite Transportation Co. (Dayton, Ohio Terminal), 334 NLRB 1074 (2001)......................................... 61 

Owens-Corning Fiberglas Corp. 

 140 NLRB 1323 (1963) ...................................................................................................................... 248 

 179 NLRB 219 (1969) ........................................................................................................................ 315 

Owens-Illinois, Inc., 271 NLRB 1235 (1984)............................................................................................. 340 

Oxford Chemicals, 286 NLRB 187 (1987)................................................................................................. 253 

P. Ballantine & Sons, 141 NLRB 1103 (1963)........................................................................................... 127 

P. D. Gwaltney, Jr., & Co., 74 NLRB 371 (1947) .............................................................................. 303, 313 

P. G. Gray, 128 NLRB 1026 (1960) ........................................................................................................... 250 

P. J. Dick Contracting, 290 NLRB 150 (1988) ................................................................................... 136, 166 

P.B.R. Co., 216 NLRB 602 (1975) ............................................................................................................. 277 

Pacific Beach Hotel, 342 NLRB 372 (2004) .............................................................................................. 268 

Pacific Coast Assn. of Pulp & Paper Mfrs., 121 NLRB 990 (1958)....................................................... 85, 87 

Pacific Coast Shipbuilders Assn., 157 NLRB 384 (1966) .................................................................. 120, 121

Pacific Gas & Electric Co. 

 89 NLRB 938 (1950) .......................................................................................................................... 333 

 97 NLRB 1397 (1951) .......................................................................................................................... 51 

Pacific Grain Products, 309 NLRB 690 (1992) .................................................................................. 323, 328 

Pacific Intermountain Express Co., 105 NLRB 480 (1953)........................................................................ 262 

Pacific Lincoln-Mercury, 312 NLRB 901 (1993)....................................................................... 132, 253, 285 

Pacific Maritime Assn. 

 112 NLRB 1280 (1955) ...................................................................................................................... 333 

 185 NLRB 780 (1970) ........................................................................................................................ 235 

Pacific Motor Trucking Co., 132 NLRB 950 (1961) .................................................................................... 87 

Pacific Northwest Telephone Co., 173 NLRB 1441 (1969) ....................................................................... 182

Pacific Southwest Container, 283 NLRB 79 (1987)................................................................................... 303 

Pacific States Steel Corp., 121 NLRB 641 (1958)........................................................................................ 63 

Pacific Tile & Porcelain Co., 137 NLRB 1358 (1962)....................................................... 254, 275, 277, 278 

Pacifica Foundation-KPFA, 186 NLRB 825 (1970)..................................................................................... 10 

Packerland Packing Co. 

 181 NLRB 284 (1970) .......................................................................................................................... 90 

 185 NLRB 653 (1970) ........................................................................................................................ 312 

Palace Dry Cleaning Corp, 75 NLRB 320 (1948) ...................................................................................... 235 

Pall Biomedical Products Corp., 331 NLRB 1674 (2000).......................................................................... 100 

Palmer Mfg. Corp., 105 NLRB 812 (1953) ................................................................................................ 134 

Pan American Airways, 188 NLRB 121 (1971) ........................................................................................... 70 

Panda Terminals, 161 NLRB 1215 (1966) ................................................................................................... 83 

Panorama Air Tour, 204 NLRB 45 (1973) ................................................................................................... 19 

Pan-Oston Co., 336 NLRB 305 (2001)....................................................................................................... 221 
396 TABLE OF CASES DISCUSSED

Paper Mfrs. Co.; NLRB v., 786 F.2d 163 (3d Cir. 1986)............................................................................ 129 

Paprikas Fono, 273 NLRB 1326 (1984) ..................................................................................................... 266 

Paragon Products Corp., 134 NLRB 662 (1962) ........................................................................ 100, 101, 103 

Paramount Metal & Finishing Co., 223 NLRB 1337 (1976) ...................................................................... 110 

Paris Mfg. Co., 163 NLRB 964 (1967)....................................................................................................... 197 

Park Chevrolet-Geo, 308 NLRB 1010 (1992) ............................................................................................ 288 

Park Manor Care Center, 305 NLRB 872 (1991) ....................................................................... 174, 175, 242

Parke Davis & Co., 173 NLRB 313 (1969) ................................................................................................ 262 

Parker Jewish Geriatric Institute, 304 NLRB 153 (1990)........................................................................... 122 

Parkview Gardens, 166 NLRB 697 (1967)............................................................................................... 9, 13 

Parson School of Design; NLRB v., 793 F.2d 503 (2d Cir. 1986)................................................................ 37

Parsons Investment Co., 152 NLRB 192 (1965)................................................................................. 127, 148 

Pasha Services, 235 NLRB 871 (1978)....................................................................................................... 262 

Passavant Health Center, 313 NLRB 1216 (1994) ....................................................................... 69, 140, 145 

Pat’s Blue Ribbons, 286 NLRB 918 (1987)........................................................................................ 245, 248 

Pathology Institute, 320 NLRB 1050 (1996) ...................................................................................... 115, 174 

Patsy Bee, Inc. v. NLRB, 654 F.2d 515 (8th Cir. 1981) ............................................................................. 295 

Pavilion at Crossing Pointe, 344 NLRB 582 (2005)................................................................................... 276 

Paxton Wholesale Grocery Co., 123 NLRB 316 (1959)............................................................................. 136 

Pay Less Drug Stores, 127 NLRB 160 (1960)............................................................................................ 128 

Payless, 157 NLRB 1143 (1966) ................................................................................................................ 185 

Pea Ridge Iron Ore Co., 335 NLRB 161 (2001)......................................................................................... 325 

Peabody Coal Co., 197 NLRB 1231 (1972) ............................................................................................... 101 

Peabody Engineering Co., 95 NLRB 952 (1951)........................................................................................ 327 

Pearl Packing Co., 116 NLRB 1489 (1957)............................................................................................ 47, 51 

Pearson Education, Inc., 336 NLRB 979 (2001)................................................................................. 336, 339 

Peavey Co., 249 NLRB 853 (1980) ............................................................................................................ 235 

PECO Energy Co., 322 NLRB 1074 (1997)....................................................................... 182, 183, 213, 238 

Peco, Inc., 204 NLRB 1036 (1973) .............................................................................................................. 35 

Peerless Plywood Co., 107 NLRB 427 (1954) ................................................................... 310, 311, 312, 334 

Peerless Products Co., 114 NLRB 1586 (1956).......................................................................................... 130 

Peerless Publications, 190 NLRB 658 (1971)............................................................................................. 121 

Peirce-Phelps, Inc., 341 NLRB 585 (2004) ........................................................................................ 238, 285 

Pen Mar Packaging Corp., 261 NLRB 874 (1982) ..................................................................................... 249 

Penland Paper Converting Corp., 167 NLRB 868 (1967)........................................................................... 293 

Penn Color, Inc., 249 NLRB 1117 (1980) .......................................................................................... 128, 149 

Penn Tank Lines, Inc., 336 NLRB 1066 (2001) ......................................................................................... 117 

Pennisula General Tire Co., 144 NLRB 1459 (1963) ............................................................................. 73, 74 

Penn-Keystone Realty Corp., 191 NLRB 800 (1971)..................................................................... 13, 97, 262

Pennsylvania Academy of the Fine Arts, 343 NLRB 846 (2004)....................................................... 209, 211 

Pennsylvania Garment Mfrs. Assn., 125 NLRB 185 (1959)......................................................... 63, 133, 136 

Pennsylvania Labor Relations Board v. Butz, 411 Pa. 360, 192 A.2d 707 (1963) ................................. 28, 30 

Pennsylvania State Assn., 267 NLRB 71 (1983) .......................................................................................... 18 

Pennsylvania Truck Lines, 199 NLRB 641 (1972)............................................................................. 213, 220 

Penske Dedicated Logistics, 320 NLRB 373 (1995) .................................................................................. 326 

Pentagon Barber Shops, 255 NLRB 1248 (1981)........................................................................................... 5 

Pentagon Plaza, 143 NLRB 1280 (1963)...................................................................................................... 28 

People Care, Inc. 

 311 NLRB 1075 (1993) ...................................................................................................................... 212 

 314 NLRB 1188 (1994) ........................................................................................................................ 38 

Peoples Drug Stores, 202 NLRB 1145 (1973)............................................................................................ 321 

Peoria Journal Star, 117 NLRB 708 (1957)................................................................................................ 180 

Peoria Plastic Co., 117 NLRB 545 (1957).................................................................................................. 301 

Peoria Union Stock Yards Co., 116 NLRB 263 (1956) .................................................................................. 4 

Pep Boys–Manny, Moe & Jack, 339 NLRB 421 (2003)............................................................................. 274

Peppermill Hotel Casino, 325 NLRB 1202 (1998)..................................................................................... 298 
TABLE OF CASES DISCUSSED 397

Pepsi-Cola Bottling Co. 

 154 NLRB 490 (1965) ................................................................................................................ 160, 214 

 289 NLRB 736 (1988) ........................................................................................................................ 319 

 291 NLRB 578 (1988) ........................................................................................................................ 313 

Pepsi-Cola Co. 

 315 NLRB 1322 (1995) ...................................................................................................................... 275 

 327 NLRB 1062 (1999) .............................................................................................................. 212, 222 

Pepsi-Cola General Bottlers, 173 NLRB 815 (1969).................................................................................... 84 

Perdue Farms, Inc. 

 320 NLRB 805 (1996) ........................................................................................................................ 336 

 328 NLRB 909 (1999) .......................................................................................................................... 51 

Pergament United Sales, 296 NLRB 333 (1989) ........................................................................................ 179 

Permaneer California Corp., 175 NLRB 348 (1969) .................................................................................... 83 

Permanente Medical Group, 187 NLRB 1033 (1971) .................................................................. 79, 226, 260 

Perry Broadcasting, 300 NLRB 1140 (1990).............................................................................................. 186 

Personal Products Corp., 114 NLRB 959 (1955)........................................................................ 248, 249, 274 

Pet Inn’s Grooming Shoppe, 220 NLRB 828 (1975).................................................................................... 24 

Peter Kiewit Sons’ Co., 231 NLRB 76 (1977)............................................................................................ 161 

Peterein & Greenlee Construction Co., 172 NLRB 2110 (1968).................................................................... 2

Petrochem Insulation, Inc., 341 NLRB 473 (2004) .................................................................................... 299 

Petroleum Carrier Corp., 126 NLRB 1031 (1958)...................................................................................... 303 

Petroleum Chemicals, 121 NLRB 630 (1958) ............................................................................................ 228 

Pharmaseel Laboratories, 199 NLRB 324 (1972)......................................................................................... 78 

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) .................................................................................. 273 

Philadelphia Building Trades Council (Altemose Construction), 222 NLRB 1276 (1970).......................... 74 

Philadelphia Co., 84 NLRB 115 (1949)...................................................................................................... 108 

Philadelphia Daily News, 113 NLRB 91 (1955)......................................................................................... 181 

Philadelphia Electric Co., 110 NLRB 320 (1955) ...................................................................................... 182 

Philco Corp., 146 NLRB 867 (1964) .......................................................................................................... 169 

Phillips Chrysler Plymouth, 304 NLRB 16 (1991)..................................................................................... 299 

Phillips Petroleum Co., 130 NLRB 895 (1961) ............................................................................................ 51 

Phipps Houses Services, 320 NLRB 876 (1996) ........................................................................................ 7, 9 

Phoenician, 308 NLRB 826 (1992)..................................................................................................... 130, 202 

Phoenix Mechanical, 303 NLRB 888 (1991)...................................................................................... 303, 313 

Phoenix Systems & Technologies, 321 NLRB 1166 (1996)......................................................................... 19

Photographers of the Motion Picture Industries, 197 NLRB 1187 (1972).................................................. 155 

Photype, Inc., 145 NLRB 1268 (1964) ............................................................................................... 140, 261 

Pickle Bill’s, Inc., 229 NLRB 1091 (1977) .................................................................................................... 8 

Picoma Industries, 296 NLRB 498 (1989).................................................................................................. 315 

Pictsweet Mushroom Form, 329 NLRB 852 (1999)................................................................................... 206 

Piggly Wiggly California Co., 144 NLRB 708 (1963) ............................................................................... 132 

Piggly Wiggly El Dorado Co., 154 NLRB 445 (1965)............................................................................... 247 

Piggly-Wiggly #011, 168 NLRB 792 (1967).............................................................................................. 342 

Pike Co., 314 NLRB 691 (1994)............................................................................................... 43, 44, 50, 281 

Pikeville United Methodist Hospital of Kentucky v. NLRB, 109 F.3d 1146 (6th Cir. 1997)....................... 12 

Pillsbury Mills, 92 NLRB 172 (1951) .......................................................................................................... 81 

Pine Brook Care Center, 322 NLRB 740 (1996) ........................................................................................ 213 

Pine Shores, Inc., 321 NLRB 1437 (1996) ......................................................................................... 267, 317 

Pine Transportation, 197 NLRB 256 (1972)............................................................................................... 102 

Pineville Kraft Corp., 173 NLRB 863 (1969)............................................................................................. 113 

Pioneer Bus Co., 140 NLRB 54 (1963) .............................................................................................. 103, 135 

Pipe Machinery Co., 76 NLRB 247 (1948) ................................................................................................ 279 

Pit Stop Markets, 279 NLRB 1124 (1986).................................................................................................... 24 

Plains Cooperative Oil Mill, 123 NLRB 1709 (1959) ............................................................................ 51, 63 

Planned Parenthood Assn., 217 NLRB 1098 (1975) .................................................................................... 13 

Plant City Welding & Tank Co., 119 NLRB 131 (1957)............................................................................ 302 
398 TABLE OF CASES DISCUSSED

Playskool Mfg. Co., 140 NLRB 1417 (1963) ............................................................................................. 296 

Plaza Provision Co., 134 NLRB 910 (1962)....................................................................................... 168, 171 

Plimpton Press, 140 NLRB 975 (1963) ........................................................................................................ 80 

Plough, Inc., 203 NLRB 818 (1973)................................................................................................... 123, 141 

Plumbers Local 460 (L. J. Construction), 236 NLRB 1435 (1978) ................................................................ 8 

Plumbers Local 669 (Lexington Fire Protection Group), 318 NLRB 347 (1995) ...................................... 159 

Plumbing Contractors Assn., 93 NLRB 1081 (1951) ......................................................................... 136, 166 

Plumbing Distributors, 248 NLRB 413 (1980)................................................................................... 140, 141 

Plymouth Shoe Co., 185 NLRB 732 (1970) ................................................................................. 66, 115, 133 

Plymouth Towing Co., 178 NLRB 651 (1969)................................................................................... 273, 275 

Point East Condominium Owners Assn., 193 NLRB 6 (1971)..................................................................... 11 

Polar Ware Co., 139 NLRB 1006 (1962)................................................................................................ 90, 91 

Polish National Alliance v. NLRB, 332 U.S. 643 (1944) ............................................................................... 1 

Poly-America, Inc., 328 NLRB 667 (1999)................................................................................................ 221 

Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), 

cert. denied 396 U.S. 1010 (1970) .......................................................................................................... 321 

Ponce Television Corp., 192 NLRB 115 (1971)......................................................................................... 308 

Pontiac Ceiling & Partition Co., 337 NLRB 120 (2001) ............................................................................ 106 

Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999)................................................ 35, 225, 227, 259, 285 

Poole Foundry & Machine Co., 95 NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 

(1952)...................................................................................................................................................... 111 

Poplar Living Center, 300 NLRB 888 (1990)............................................................................................. 266 

Portage Transfer Co., 204 NLRB 787 (1973) ............................................................................................. 208 

Post Houses 

 161 NLRB 1159 (1966) ...................................................................................................................... 250 

 173 NLRB 1320 (1969) ................................................................................................................ 81, 101 

Postal Service 

 210 NLRB 477 (1974) ........................................................................................................................ 242 

 348 NLRB 25 (2006) .................................................................................................................... 65, 100 

Post-Newsweek Stations, 203 NLRB 522 (1973)....................................................................................... 187 

Potato Growers Cooperative Co., 115 NLRB 1281 (1956) .......................................................................... 24 

Potlatch Forests, 94 NLRB 1444 (1951)....................................................................................................... 82 

Potomac Electric Co., 111 NLRB 553 (1955) ........................................................................................ 44, 46 

Potters Medical Center, 289 NLRB 201 (1988).......................................................................................... 120 

Power Equipment Co., 135 NLRB 945 (1962) ............................................................................................. 29 

Power Piping Co., 291 NLRB 494 (1988) .................................................................................................... 58 

Powerful Gas No. 1, 181 NLRB 104 (1970)................................................................................................. 24 

PPG Industries 

 180 NLRB 477 (1969) ........................................................................................................................ 124 

 350 NLRB 225 (2007) ........................................................................................................................ 313 

Prairie Meadows Racetrack & Casino, 324 NLRB 550 (1997) .............................................................. 12, 22 

Pratt & Whitney, 327 NLRB 1213 (1999).................................................................................... 37, 226, 242 

Pratt Institute, 339 NLRB 971 (2003)........................................................................................................... 35 

Precise Castings; NLRB v., 915 F.2d 1160 (7th Cir. 1990)........................................................................ 335 

Precision Bulk Transport, 279 NLRB 437 (1986) ...................................................................................... 209 

Precision Products Group, 319 NLRB 640 (1995) ............................................................................. 268, 289 

Premcor, Inc., 333 NLRB 1365 (2001)......................................................................... 69, 124, 140, 141, 142 

Premier Living Center, 331 NLRB 123 (2000) ................................................................ 30, 35, 38, 121, 285 

Premier Plastering, Inc., 342 NLRB 1072 (2004) .............................................................................. 138, 166 

Premium Fine Coal, 262 NLRB 428 (1982) ............................................................................................... 332 

President Container, Inc., 328 NLRB 1227 (1999)..................................................................................... 299 

Price National Corp., 102 NLRB 1393 (1953) ............................................................................................. 82 

Prince Telecom, 347 NLRB 789 (2006) ............................................................................................. 146, 147 

Printing Industry of Seattle, 202 NLRB 558 (1973) ........................................................................... 140, 141 

Private Medical Group, 218 NLRB 1315 (1975).......................................................................................... 13 

Proctor & Gamble Paper Products Co., 251 NLRB 492 (1980) ................................................................. 202 
TABLE OF CASES DISCUSSED 399

Proctor-Silex Corp., 159 NLRB 598 (1966) ............................................................................................... 314 

Produce Magic, Inc. 

 311 NLRB 1277 (1993) ...................................................................................................................... 206 

 318 NLRB 1171 (1995) .......................................................................................................................... 2 

Professional Care Centers, 279 NLRB 814 (1986)..................................................................................... 337 

Professional Facilities Management, 332 NLRB 345 (2000) ..................................................................... 162

Program Aids Co., 163 NLRB 145 (1967) ................................................................................................. 307 

Progressive Transportation Services, 340 NLRB 1019 (2003)................................................................... 215

Providence Television, 194 NLRB 759 (1972)............................................................................................. 97 

Prudential Insurance Co., 106 NLRB 237 (1978)......................................................................................... 90 

Pruner Health Services, 307 NLRB 529 (1992).......................................................................................... 325 

PSM Steel Construction, 309 NLRB 1302 (1992)........................................................................................ 67 

PTI Communications, 308 NLRB 918 (1992) ............................................................................................ 233 

Public Service Co., 190 NLRB 350 (1971)........................................................................................... 84, 140 

Public Storage, 295 NLRB 1034 (1989)..................................................................................................... 288 

Publix Super Markets, Inc., 343 NLRB 1023 (2004).......................................................................... 130, 169 

Puerto Rico Cement Corp., 97 NLRB 382 (1951) ........................................................................................ 64 

Pullman Industries, 159 NLRB 580 (1966) ................................................................................................ 116 

Pullman, Inc., 221 NLRB 954 (1975)................................................................................................... 66, 115 

Purity Baking Co., 121 NLRB 75 (1958) ..................................................................................................... 89 

Purity Food Stores 

 150 NLRB 1523 (1965) ...................................................................................................................... 149 

 160 NLRB 651 (1966) ........................................................................................................................ 127 

Purity Supreme, Inc., 197 NLRB 915 (1972) ..................................................................................... 130, 147 

Purolator Courier Corp., 300 NLRB 812 (1990) ........................................................................................ 229 

Purolite, 330 NLRB 37 (1999).................................................................................................................... 311 

Pyper Construction Co., 177 NLRB 707 (1969)......................................................................................... 283 

Q. B. Rebuilders, 312 NLRB 1141 (1993).......................................................................................... 313, 314 

Q-T Tool Co., 199 NLRB 500 (1972)......................................................................................................... 277 

Quadrex Environmental Co., 308 NLRB 101 (1992) ................................................................................. 213 

Quaker City Life Insurance Co.; NLRB v., 319 F.2d 690 (4th Cir. 1963).......................................... 137, 151 

Quality Inn Waikiki, 297 NLRB 497 (1989) .............................................................................................. 120 

Quality Limestone Products, 143 NLRB 589 (1963).......................................................................... 155, 156 

Quantum Resources Corp., 305 NLRB 759 (1991) .................................................................................... 162 

Queen City Railroad Construction, 150 NLRB 1679 (1965)................................................................ 66, 281 

Queen Kapiolani Hotel, 316 NLRB 655 (1995) ......................................................................................... 321 

Queen Mary, 317 NLRB 1303 (1995) ........................................................................................................ 212 

Quest International, 338 NLRB 856 (2003)................................................................................................ 300 

R & D Trucking, 327 NLRB 531 (1999) ............................................................................ 145, 147, 148, 238 

R. B. Butler, Inc., 160 NLRB 1595 (1966)................................................................................................. 167 

R. Dakin & Co. 

 191 NLRB 343 (1971) ........................................................................................................................ 288 

 207 NLRB 521 (1973) ........................................................................................................................ 288 

 284 NLRB 98 (1987) .......................................................................................................................... 300 

R. H Osbrink Mfg. Co., 114 NLRB 940 (1955).......................................................................................... 341 

R. L. White Co., 262 NLRB 575 (1982)..................................................................................................... 340 

R. W. Bozel Transfer, 304 NLRB 200 (1991) ............................................................................................ 209 

Radio & Television Station WFLA, 120 NLRB 903 (1958) ...................................................................... 186 

Radio Corp. of America 

 141 NLRB 1134 (1963) .............................................................................................................. 140, 261 

 173 NLRB 440 (1969) ........................................................................................................................ 198 

 89 NLRB 699 (1950) ............................................................................................................................ 51 

Radio Union Local 1264 v. Broadcast Service, 380 U.S. 255 (1965)......................................................... 161 

Raleigh County Commission on Aging, 331 NLRB 924 (2000) ................................................................ 340 

Raley’s, 336 NLRB 374 (2001) .................................................................................................................. 100 

Raley’s Supermarket, 143 NLRB 256 (1963)............................................................................................... 65 
400 TABLE OF CASES DISCUSSED

Ramada Beverly Hills, 278 NLRB 691 (1986)........................................................................................... 177 

Rancho Los Coyotes Country Club, 170 NLRB 1773 (1968) ...................................................................... 15 

Randall Rents of Indiana, 327 NLRB 867 (1999)....................................................................................... 299 

Randell Warehouse of Arizona, 328 NLRB 1034 (1999)........................................................................... 319 

Randolph Metal Works, 147 NLRB 973 (1964)......................................................................................... 107 

Range Systems Emergency Support, 326 NLRB 1047 (1998) ..................................................................... 21 

Rapera, Inc., 333 NLRB 1287 (2001)..................................................................................................... 30, 68

Rapid Armored Corp., 323 NLRB 709 (1997) ..................................................................................... 55, 230 

Rappahannock Sportswear Co., 163 NLRB 703 (1967) ......................................................................... 43, 93

Raritan Valley Broadcasting Co., 122 NLRB 90 (1959) .............................................................................. 11 

Rattan Art Gallery, 260 NLRB 255 (1982)................................................................................................. 334 

Raven Government Services, 331 NLRB 651 (2001)................................................................................... 68 

Rawson Contractors, 302 NLRB 782 (1991).............................................................................................. 162 

Ray Brooks v. NLRB, 348 U.S. 96 (1954) ........................................................................................... 71, 126 

Ray, Davidson & Ray, 131 NLRB 433 (1961) ............................................................................................... 9 

Ray’s Sentry, 319 NLRB 724 (1995).......................................................................................................... 186 

Raymond F. Kravis Center for the Performing Arts, 351 NLRB No. 19 (2007) .................................. 70, 119 

Raymond F. Schweitzer, Inc., 165 NLRB 675 (1974).................................................................................. 74 

Raymond’s, Inc., 161 NLRB 838 (1966)...................................................................................................... 78 

Raytec Co., 228 NLRB 646 (1977)............................................................................................................. 238 

Raytheon Co.; NLRB v. 

 445 F.2d 272 (9th Cir. 1971)............................................................................................................... 294 

 918 F.2d 249 (1st Cir. 1990)....................................................................................................... 257, 261 

RB Associates, 324 NLRB 874 (1997)............................................................................................... 145, 148 

RBE Electronics of S.D., 320 NLRB 80 (1995) ......................................................................................... 161 

RCA Communications, 154 NLRB 34 (1965)........................................................................................ 6, 234 

RCA Del Carribe, 262 NLRB 965 (1982) .................................................................................................... 93 

RCA OMS, Inc., 202 NLRB 228 (1973) ...................................................................................................... 21 

Reade Mfg. Co., 100 NLRB 87 (1951)....................................................................................................... 273 

Reading Eagle Co., 306 NLRB 871 (1992) ................................................................................................ 236 

Ready Mix USA, Inc., 340 NLRB 946 (2003) ........................................................................... 131, 132, 133 

Ready Mix, Inc., 337 NLRB 1189 (2002) .................................................................................................. 221 

Ready Mixed Concrete & Materials, 122 NLRB 318 (1959) ......................................................................... 5

Recana Solutions, 349 NLRB No. 109 (2007).............................................................................................. 12 

Recipe Foods, 145 NLRB 924 (1964)......................................................................................................... 249 

Recycle America, 310 NLRB 629 (1993)................................................................................................... 296 

Red & White Airway Cab Co., 123 NLRB 83 (1959) .................................................................................. 16 

Red Arrow Freight Lines, 278 NLRB 965 (1986) ...................................................................................... 275 

Red Carpet Building Maintenance Corp., 263 NLRB 1285 (1982).................................................... 306, 307 

Red Coats, Inc., 328 NLRB 205 (1999)...................................................................................................... 131 

Red Hook Telephone, 108 NLRB 260 (1967) ............................................................................................ 182 

Red Lion, 301 NLRB 33 (1991) ......................................................................................................... 285, 342 

Red Lobster, 300 NLRB 908 (1990)................................................................................................... 147, 148 

Red Owl Stores, 114 NLRB 176 (1955) ..................................................................................................... 330 

Redieh’s Interstate, 255 NLRB 1073 (1980) .............................................................................................. 209 

Redman Industries, 174 NLRB 1065 (1969) .............................................................................................. 114 

Reds Express, 268 NLRB 1154 (1984)....................................................................................................... 300 

Reed & Rattan Furniture Co., 117 NLRB 495 (1957) .................................................................................. 57 

Reflector Hardware Corp., 121 NLRB 1544 (1958)................................................................................... 327 

Regal Dodge, 324 NLRB 665 (1997) ......................................................................................................... 268 

Regency Hyatt House 

 171 NLRB 1347 (1968) ...................................................................................................................... 177 

 180 NLRB 489 (1969) ................................................................................................................ 323, 335 

Regional Medical Center at Memphis, 343 NLRB 346 (2004) .................................................................... 18 

Reichenbach Ceiling & Partition Co., 337 NLRB 125 (2001).................................................................... 106

Reliance Insurance Cos., 173 NLRB 985 (1969)................................................................................ 178, 192 
TABLE OF CASES DISCUSSED 401

Reliant Energy, 339 NLRB 66 (2003) ........................................................................................................ 269 

Renal Care of Buffalo, Inc., 347 NLRB 1284 (2006) ................................................................................. 274 

Renco Electronics 

 325 NLRB 1196 (1998) ...................................................................................................................... 267 

 330 NLRB 368 (1999) ........................................................................................................................ 323 

Renton Issaquah Freightlines, 311 NLRB 178 (1993)................................................................................ 294 

Renzettis Market, 238 NLRB 174 (1978)................................................................................................... 149 

Repcal Brass Mfg. Co., 109 NLRB 4 (1954).............................................................................................. 325 

Republic Aviation Corp., 122 NLRB 998 (1959) ......................................................................................... 97 

Republic Electronics, 266 NLRB 852 (1983) ............................................................................................. 289 

Republic Steel Corp., 131 NLRB 864 (1961) ............................................................................................. 238 

Republican Co., 169 NLRB 1146 (1968)............................................................................................ 138, 198 

Res-Care, Inc., 280 NLRB 670 (1986) ......................................................................................................... 12 

Research Foundation of the City University of New York 

 337 NLRB 965 (2002) .......................................................................................................................... 17 

 350 NLRB 201 (2007) ........................................................................................................................ 188 

Research Foundation-SUNY, 350 NLRB 197 (2007) ................................................................................ 188 

Resort Nursing Home v. NLRB, 389 F.3d 1262 (D.C. Cir. 2004).............................................................. 159 

Retail Associates, 120 NLRB 388 (1958)............................................................................................. 73, 158 

Retail Clerks Local 324 (Vincent Drugs), 144 NLRB 1247 (1963)............................................................ 124 

Retail Clerks Local 428, 163 NLRB 431 (1967) ........................................................................................ 237 

Retail Clerks Local 880, 153 NLRB 255 (1965) ........................................................................................ 237 

Retail Store Employees Local 692 (Irvins, Inc.), 134 NLRB 686 (1961)................................................... 107 

Rett Electronics, 169 NLRB 1111 (1968)................................................................................................... 330 

Revere Copper & Brass, 172 NLRB 1126 (1968) ...................................................................................... 114 

Rexall Drug Co. 

 89 NLRB 683 (1950) .......................................................................................................................... 135 

 156 NLRB 1099 (1966) ...................................................................................................................... 192 

Reymond Baking Co., 249 NLRB 1100 (1980).......................................................................................... 234 

Reynolds Metal Co., 198 NLRB 120 (1972) .............................................................................................. 228 

Reynolds Wheels International, 323 NLRB 1062 (1997) ........................................................................... 265 

Rheem Mfg. Co. 

 188 NLRB 436 (1971) .......................................................................................................................... 83 

 309 NLRB 459 (1992) ................................................................................................ 313, 321, 322, 337 

Rhode Island Hospital, 313 NLRB 343 (1993)................................................................................... 174, 176 

Rhone-Poulenc, Inc., 271 NLRB 1008 (1984).................................................................................... 267, 289 

Rich’s, Inc., 147 NLRB 163 (1964)............................................................................................................ 185 

Richard A. Glass Co., 120 NLRB 914 (1958) ............................................................................................ 320 

Richmond Dry Goods Co., 93 NLRB 663 (1951)....................................................................................... 138 

Ridgely Mfg. Co., 198 NLRB 860 (1972) .................................................................................................. 220 

Rinker Materials Corp., 294 NLRB 738 (1989).......................................................................................... 133 

Rite Aid Corp. 

 325 NLRB 717 (1998) ................................................................................................................ 222, 254 

 326 NLRB 924 (1998) ........................................................................................................................ 336 

Rite-Care Poultry Co., 185 NLRB 41 (1970) ............................................................................................. 309 

River City Elevator Co., 339 NLRB 616 (2003)................................................................................... 43, 269 

River Parish Maintenance, 325 NLRB 815 (1998)..................................................................................... 340 

Riverdale Manor Home for Adults, 189 NLRB 176 (1971) ......................................................................... 93

Riverdale Manor Owners Corp., 311 NLRB 1094 (1993)........................................................................ 9, 11

Riveredge Hospital 

 251 NLRB 196 (1980) ........................................................................................................................ 283 

 264 NLRB 1094 (1982) .............................................................................................................. 303, 336 

Riverside Chapels, 226 NLRB 2 (1976) ..................................................................................................... 172 

Riverside Church, 309 NLRB 806 (1992) .................................................................................................... 22 

R-N Market, 190 NLRB 292 (1971)................................................................................................... 130, 185 

Road & Rail Services, 344 NLRB 388 (2005).............................................................................................. 78 
402 TABLE OF CASES DISCUSSED

Road Materials, 193 NLRB 990 (1971)........................................................................................................ 91 

Roadway Package System 

 288 NLRB 196 (1988) ........................................................................................................................ 209 

 326 NLRB 842 (1998) ................................................................................................................ 209, 211 

Robbins & Myers, Inc., 144 NLRB 295 (1963).......................................................................... 226, 239, 262 

Roberds, Inc., 272 NLRB 1318 (1984)....................................................................................................... 191 

Robert F. Kennedy Medical Center, 336 NLRB 765 (2001) .............................................................. 324, 330 

Robert Greenspan, D.D.S., P.C., 318 NLRB 70 (1995)...................................................................... 214, 218 

Robert Orr–Sysco Food Services, 338 NLRB 614 (2002).................................................................. 298, 313 

Robert Wood Johnson University Hospital 

 192 NLRB 58 (1971) .......................................................................................................................... 123 

 328 NLRB 912 (1999) ........................................................................................................................ 121 

Robertshaw-Fulton Controls Co., 137 NLRB 85 (1962) ............................................................................ 241 

Robertson Bros. Dept. Store, 95 NLRB 271 (1951) ................................................................................... 108 

Rochelle’s Restaurant, 152 NLRB 1401 (1965) ........................................................................................... 73 

Rock Bottom Stores, 312 NLRB 400 (1993), enfd. 51 F.3d 366 (2d Cir. 1995) .................................. 84, 144 

Rock Springs Retail Merchants Assn., 188 NLRB 261 (1971)........................................................... 153, 155 

Rockingham Poultry Cooperative, 174 NLRB 1278 (1969)....................................................................... 171 

Rock-Tenn Co., 274 NLRB 772 (1985)...................................................................................................... 143 

Rockwell Mfg. Co. 

 89 NLRB 1434 (1950) ........................................................................................................................ 136 

 201 NLRB 356 (1973) ........................................................................................................................ 306 

Rocky Mountain Hospital, 289 NLRB 1347 (1988)..................................................................................... 91 

Rod-Ric Corp.; NLRB v., 428 F.2d 948 (5th Cir. 1970)............................................................................. 281 

Roland Electrical Co. v. Walling, 326 U.S. 657 (1946).................................................................................. 3 

Rollins-Purle, Inc., 194 NLRB 709 (1972)................................................................................................. 142 

Romac Containers, Inc., 190 NLRB 238 (1971)......................................................................................... 125 

Roman Catholic Archdiocese of Baltimore, 216 NLRB 249 (1975) ............................................................ 10 

Roman Catholic Orphan Asylum, 229 NLRB 251 (1977).......................................................................... 134 

Ron Wiscombe Painting Co., 194 NLRB 907 (1972)................................................................................. 143 

Ronrico Corp. Co., 53 NLRB 1137 (1943)..................................................................................................... 5 

Roosevelt Memorial Park, 187 NLRB 517 (1970) ................................................................................. 77, 78 

Root Dry Goods Co., 126 NLRB 953 (1960) ..................................................................... 184, 185, 250, 251 

Roper Corp., 186 NLRB 437 (1970)........................................................................................................... 123 

Rose Metal Products, 289 NLRB 1153 (1988) ................................................................................... 125, 216 

Rosehill Cemetery Assn., 262 NLRB 1289 (1982)..................................................................................... 284 

Roselyn Bakeries; NLRB v., 471 F.2d 165 (7th Cir. 1972)........................................................................ 295 

Rosenberg Library Assn., 269 NLRB 1173 (1984) ...................................................................................... 17 

Rosewood Care Center, 315 NLRB 746 (1994) ......................................................................................... 325 

Rosewood Mfg. Co., 278 NLRB 722 (1986).............................................................................................. 337 

Roskin Bros., Inc., 274 NLRB 413 (1985) ................................................................................................. 294 

Ross-Meehan Foundries, 147 NLRB 207 (1964)........................................................................................ 136 

Rostone Corp., 196 NLRB 467 (1972) ............................................................................................... 138, 261 

Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973).......................................................... 273, 274, 275 

Royal Coach Lines, 282 NLRB 1037 (1987).............................................................................................. 113 

Royal Crown Cola Bottling Co., 150 NLRB 1624 (1964)............................................................................ 95 

Royal Dean Coal Co., 177 NLRB 700 (1969) .............................................................................................. 95 

Royal Hearth Restaurant, 153 NLRB 1331 (1965)..................................................................................... 248 

Royal Laundry, 277 NLRB 820 (1985) ...................................................................................................... 285 

Royal Packaging Corp., 284 NLRB 317 (1987) ......................................................................................... 287 

Roylyn, Inc., 178 NLRB 197 (1969) .......................................................................................................... 277 

RPM Products, 217 NLRB 855 (1975)......................................................................................................... 80 

Ruan Transport Corp. 

 234 NLRB 241 (1978) ........................................................................................................................ 155 

 315 NLRB 592 (1994) ........................................................................................................................ 326 

Rudolph Wurlitzer Co., 117 NLRB 6 (1957).............................................................................................. 238 
TABLE OF CASES DISCUSSED 403

Rural Fire Protection Co., 216 NLRB 584 (1975) ........................................................................................ 12 

Russ Toggs, Inc., 187 NLRB 134 (1971)...................................................................................................... 60 

Russelton Medical Group, 302 NLRB 718 (1991) ............................................................................. 128, 227 

Rust Engineering Co., 195 NLRB 815 (1972)............................................................................................ 254 

Rusty Scupper, 215 NLRB 201 (1974)................................................................................................... 67, 74 

Rutland Free Library, 299 NLRB 245 (1990)................................................................................................. 9 

Ryan Aeronautical Co., 132 NLRB 1160 (1961)........................................................................................ 226 

Ryder Integrated Logistics, Inc., 329 NLRB 1493 (1999).......................................................................... 140 

Ryder Memorial Hospital, 351 NLRB No. 26 (2007)......................................................................... 303, 337 

Ryder Student Transportation Services, 332 NLRB 1590 (2000)............................................................... 340 

Ryder Truck Rental, 326 NLRB 1386 (1998)..................................................................................... 217, 218 

S & C Security, 271 NLRB 1300 (1984) .................................................................................................... 328 

S & I Transportation, 306 NLRB 97 (1992) ............................................................................................... 285 

S. Abraham & Sons, 193 NLRB 523 (1971) .............................................................................................. 113 

S. B. Rest. of Huntington, Inc., 223 NLRB 1445 (1976)............................................................................ 125 

S. D. Warren Co. 

 114 NLRB 410 (1956) ........................................................................................................................ 138 

 150 NLRB 288 (1965) .......................................................................................................................... 61 

 164 NLRB 489 (1967) ........................................................................................................................ 141 

S. H. Kress & Co., 137 NLRB 1244 (1962) ..................................................................................... 43, 47, 51 

S. J. Graves & Sons Co., 267 NLRB 175 (1983)........................................................................................ 167 

S. K. Products Corp., 230 NLRB 1211 (1977) ............................................................................................. 21 

S. K. Whitty & Co., 304 NLRB 776 (1991) ......................................................................................... 66, 281 

S. Lichtenberg & Co., 296 NLRB 1302 (1989) .................................................................................. 305, 322 

S. S. Burford, Inc., 130 NLRB 1641 (1961) ................................................................................. 82, 105, 106 

S. S. Joachim & Anne Residence, 314 NLRB 1191 (1994)................................................ 108, 234, 237, 282 

S. S. Kresge Co. 

 121 NLRB 374 (1958) ........................................................................................................................ 321 

 161 NLRB 1127 (1966) ...................................................................................................................... 179 

S.A.G.E., Inc., 146 NLRB 325 (1964)........................................................................................................ 179 

S.D.I. Operating Partners, L.P., 321 NLRB 111 (1996) ..................................................................... 217, 220 

S.T.A.R., Inc., 347 NLRB 82 (2006).......................................................................................................... 317

Sac & Fox Industries, 307 NLRB 241 (1992)................................................................................................. 8 

Sacramento Publishing Co., 57 NLRB 1636 (1944)................................................................................... 181 

Sacramento Steel & Supply, 313 NLRB 730 (1994) .................................................................................. 288 

Sacramento Union, 160 NLRB 1515 (1966)............................................................................................... 210 

Sadler Bros. Trucking & Leasing Co., 225 NLRB 194 (1976)................................................................... 334 

Safety Cabs, Inc., 173 NLRB 17 (1969) ............................................................................................. 104, 135 

Safety Carrier, Inc., 306 NLRB 960 (1992)........................................................................................ 139, 141 

Safeway Stores 

 174 NLRB 1274 (1969) .............................................................................................................. 227, 240 

 178 NLRB 412 (1969) ........................................................................................................................ 199 

 256 NLRB 918 (1981) ................................................................................................................ 139, 142 

Safeway, Inc., 338 NLRB 528 (2003)......................................................................................................... 298 

Saga Food Service, 212 NLRB 786 (1974) ................................................................................................ 252 

Saginaw Furniture Shops, 97 NLRB 1488 (1951) ........................................................................................ 88 

Sahuaro Petroleum & Asphalt Co., 306 NLRB 586 (1992)........................................................................ 329

Saia Motor Freight Line, 333 NLRB 784 (2001)........................................................................................ 319 

SAIA Motor Freight, Inc., 334 NLRB 979 (2001)...................................................................................... 221 

Saint Gobain Abrasives, Inc., 342 NLRB 434 (2004) ................................................................................ 117 

Saint Marys Hospital, 260 NLRB 1237 (1982) ............................................................................................ 13 

Saint-Gobain Abrasives, Inc., 337 NLRB 82 (2001) .................................................................................. 315 

Saks & Co., 204 NLRB 24 (1973).............................................................................................................. 184 

Salem Hospital, 333 NLRB 560 (2001)...................................................................................................... 176 

Salem Village I, Inc., 263 NLRB 704 (1982) ............................................................................................. 268 

Salt & Pepper Nursery School, 222 NLRB 1295 (1976) .............................................................................. 11 
404 TABLE OF CASES DISCUSSED

Salt Lake Tribune Publishing Co., 92 NLRB 1411 (1951)......................................................................... 180 

Saltwater, Inc., 324 NLRB 343 ( 1997) ...................................................................................................... 251 

Sampson Steel & Supply, 289 NLRB 481 (1988) ...................................................................................... 236 

Samuel B. Gass, 154 NLRB 728 (1965)..................................................................................................... 205 

San Diego Gas & Electric, 325 NLRB 1143 (1998)........................................................... 264, 265, 312, 333 

San Francisco Bakery Employers Assn., 121 NLRB 1204 (1958) ..................................................... 327, 328 

San Francisco Sausage Co., 291 NLRB 384 (1988) ................................................................................... 335 

San Jose Mercury & San Jose News, 200 NLRB 105 (1973)..................................................................... 122 

San Juan Medical Center, 307 NLRB 117 (1992) ...................................................................................... 202 

San Juan Regional Medical Center, 307 NLRB 117 (1992) ....................................................................... 242

San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), enfd. 475 F.3d 1306 (D.C. Cir. 2007) .... 8, 18 

Sanborn Telephone Co., 140 NLRB 512 (1963)................................................................................. 182, 214 

Sands Point Nursing Home, 319 NLRB 390 (1995)................................................................................... 154 

Sandy’s Stores, 163 NLRB 728 (1967)....................................................................................................... 252 

Santa Barbara Distributing Co., 172 NLRB 1665 (1968) ........................................................................... 154 

Santa Fe Trail Transportation Co. 

 119 NLRB 1302 (1958) ...................................................................................................................... 234 

 139 NLRB 1513 (1962) .......................................................................................................... 86, 92, 102 

Saratoga County Chapter NYSARC, 314 NLRB 609 (1994)............................................................. 247, 282 

Sarkes Tarzian, 115 NLRB 535 (1956)....................................................................................................... 187 

Savair Mfg. Co.; NLRB v., 414 U.S. 270 (1973)................................................................................ 287, 317 

Sav-On Drugs, 138 NLRB 1032 (1962) ............................................................................................. 146, 183 

Sawyer Lumber Co., 326 NLRB 1331 (1998) ............................................................ 320, 323, 324, 326, 338 

Saylor’s, Inc., 338 NLRB 330 (2002)......................................................................................................... 106

Scandia, 167 NLRB 623 (1967).................................................................................................................. 237 

Scepter Ingot Castings, Inc., 331 NLRB 1509 (2000) .................................................................................. 69 

Schapiro & Whitehouse, Inc.; NLRB v., 356 F.2d 675 (4th Cir. 1966)...................................................... 305 

Schaus Roofing, 323 NLRB 781 (1997)..................................................................................................... 196 

Schick, Inc., 114 NLRB 931 (1956) ........................................................................................................... 273 

Scholastic Magazines, 192 NLRB 461 (1971).................................................................................... 192, 240 

Science Applications Corp., 309 NLRB 373 (1992)................................................................................... 237 

Scoa, Inc., 140 NLRB 1379 (1963) ............................................................................................................ 246 

Scolari’s Warehouse Markets, 319 NLRB 153 (1995) ............................................................................... 186 

Scrantonian Publishing Co., 215 NLRB 296 (1974)................................................................................... 136 

SDC Investment, 274 NLRB 556 (1985)............................................................................ 303, 336, 337, 343 

Sea Breeze Health Care Center, 331 NLRB 1131 (2000)........................................................................... 341 

Seaboard Machinery Corp., 98 NLRB 537 (1951) ....................................................................................... 49 

Seaboard Marine Ltd., 327 NLRB 556 (1999) ........................................................................................... 130 

Seaboard Warehouse Terminals, 129 NLRB 378 (1961).............................................................................. 63 

Sealite, Inc., 125 NLRB 619 (1959) ................................................................................................... 131, 248 

Sears, Roebuck & Co. 

 112 NLRB 559 (1955) .................................................................................................................. 58, 250 

 151 NLRB 1356 (1965) ...................................................................................................................... 191 

 152 NLRB 45 (1965) .......................................................................................................................... 192 

 160 NLRB 1435 (1966) ...................................................................................................................... 186 

 172 NLRB 1266 (1968) ...................................................................................................................... 247 

 180 NLRB 862 (1965) ........................................................................................................................ 191 

 182 NLRB 777 (1970) ........................................................................................................................ 184 

 191 NLRB 398 (1971) ................................................................................................................ 130, 184 

 194 NLRB 321 (1972) ........................................................................................................................ 185 

 201 NLRB 1057 (1973) ...................................................................................................................... 191 

 261 NLRB 245 (1982) ........................................................................................................................ 184 

 292 NLRB 753 (1989) ................................................................................................................ 214, 220 

 304 NLRB 193 (1991) ................................................................................................................ 214, 215 

 319 NLRB 607 (1995) ................................................................................................................ 130, 184 

Seattle Mariners, 335 NLRB 563 (2001) .................................................................................................... 113 
TABLE OF CASES DISCUSSED 405

Seattle Opera Assn. 

 323 NLRB 641 (1997) .......................................................................................................................... 36 

 331 NLRB1072 (2000) ....................................................................................................................... 273 

Seattle-First National Bank, 290 NLRB 571 (1988)................................................................................... 120 

Seaway Food Town, 171 NLRB 729 (1968) .............................................................................................. 121 

Security Aluminum Co., 149 NLRB 581 (1964) ........................................................................................ 107 

Security Guard Service, 154 NLRB 8 (1965) ............................................................................................. 218 

See Laidlaw Transit, Inc., 327 NLRB 315 (1998) ...................................................................................... 326 

Sefton Fibre Can Co., 109 NLRB 360 (1954) .............................................................................................. 98 

Semi-Steel Casting Co. v. NLRB, 160 F.2d 388 (8th Cir. 1947), cert. denied 332 U.S. 758 (1947).......... 327 

Seneca Foods Corp., 248 NLRB 1119 (1980) .................................................................................... 250, 280 

Sentry Investigation Corp., 198 NLRB 1074 (1972) ............................................................................ 56, 102 

Service America Corp., 307 NLRB 57 (1992)...................................................................................... 70, 120 

Service Employees Local 402 (San Diego Facilities Corp.), 175 NLRB 161 (1969)................................... 17 

Servicemaster Aviation Services, 325 NLRB 786 (1999) ............................................................................ 19 

Servicios Correccionales De Puerto Rico, 338 NLRB 452 (2002) ............................................................. 115 

Seton Hill College, 201 NLRB 1026 (1973)............................................................................................... 189 

Seton Medical Center, 317 NLRB 87 (1995).......................................................................................... 77, 78 

Seven Up Bottling Co., 222 NLRB 278 (1976) ............................................................................................ 64 

Seven-Up/Royal Crown Bottling Cos., 323 NLRB 579 (1997)............................................................ 33, 303 

Seville-Sea Isle Hotel Corp., 125 NLRB 299 (1960).................................................................................. 200 

Sewanee Coal Operators’ Assn., 146 NLRB 1145 (1964).................................................................. 338, 341 

Sewell Mfg. Co., 138 NLRB 66 (1962).............................................................................. 303, 304, 305, 317 

Sewell Plastics, 241 NLRB 887 (1979) ...................................................................................................... 331 

Shadow Broadcast Services, 323 NLRB 1002 (1997) .................................................................................. 38 

Shannon & Luchs, 166 NLRB 1011 (1967)................................................................................................ 246 

Share Group, Inc., 323 NLRB 704 (1997).................................................................................................... 50 

Shares, Inc., 343 NLRB 455 (2004)............................................................................................................ 114 

Sharnay Hosiery Mills, 120 NLRB 750 (1958) .......................................................................................... 303 

Shattuck School, 189 NLRB 886 (1971) ...................................................................................................... 10 

Shaw, Inc., 350 NLRB 354 (2007) ............................................................................................................. 216 

Shaw’s Supermarkets 

 343 NLRB 963 (2004) .................................................................................................................. 65, 100 

 350 NLRB 585 (2007) .......................................................................................................................... 86 

Sheets & Mackey, 92 NLRB 179 (1951)...................................................................................................... 84 

Sheffield Corp. 

 108 NLRB 349 (1954) .......................................................................................................................... 43 

 123 NLRB 1454 (1959) .............................................................................................................. 131, 254 

 134 NLRB 1101 (1962) ........................................................................................................ 47, 241, 242 

Shelburne Shirt Co., 86 NLRB 1308 (1949)............................................................................................... 220 

Shelby Tissue, Inc., 316 NLRB 646 (1995)................................................................................................ 294 

Shenanigans; NLRB v., 723 F.2d 1360 (7th Cir. 1983).............................................................................. 295 

Shen-Valley Meat Packers, 261 NLRB 958 (1982)................................................................................ 86, 97 

Shepard Convention Services v. NLRB, 85 F.3d 671 (D.C. Cir. 1996)...................................................... 333 

Shepard Convention Services, 314 NLRB 689 (1994) ............................................................................... 333 

Sheraton Hotel Waterbury, 316 NLRB 238 (1995) ........................................................................ 47, 72, 269 

Sheraton Universal Hotel, 350 NLRB 1114 (2007).................................................................................... 216 

Sheridan Creations, Inc., 148 NLRB 1503 (1964), enfd. 357 F.2d 245 (2d Cir. 1966) .............................. 158 

Sherwin-Williams Co., 173 NLRB 316 (1969)........................................................................................... 262 

Shipowners’ Assn. of the Pacific Coast, 110 NLRB 479 (1954) ................................................................ 334 

Shop Rite Foods 

 195 NLRB 133 (1972) ........................................................................................................................ 311 

 247 NLRB 883 (1980) ........................................................................................................................ 122 

Shopping Kart Food Market, 228 NLRB 1311 (1977) ............................................................................... 303 

Shore & Ocean Services, 307 NLRB 1051 (1992) ..................................................................................... 340 

Showell Poultry Co., 105 NLRB 580 (1953)...................................................................................... 299, 311 
406 TABLE OF CASES DISCUSSED

Sida of Hawaii, Inc., 191 NLRB 194 (1971) .............................................................................................. 237 

Sidney Farber Cancer Institute, 247 NLRB 1 (1980).................................................................................... 58 

Siemens Corp., 224 NLRB 1579 (1976)..................................................................................................... 242 

Siemons Mailing Service, 122 NLRB 81 (1959) .................................................................................. 2, 3, 24 

Sierra Lingerie Co., 191 NLRB 844 (1971)................................................................................................ 276 

Sierra Vista Hospital, 241 NLRB 631 (1979)............................................................................................... 58 

Signet Testing Laboratories, 330 NLRB 1 (1999) ...................................................................................... 281 

Silver Cross Hospital, 350 NLRB No. 11 (2007) ......................................................................... 37, 203, 265 

Silver Spur Casino 

 192 NLRB 1124 (1971) ...................................................................................................................... 173 

 270 NLRB 1067 (1984) ........................................................................................................................ 46 

Simmons Co., 126 NLRB 656 (1960)........................................................................................................... 80 

Simplot Fertilizer Co., 107 NLRB 1211 (1954) ......................................................................................... 327 

Sinclair Co.; NLRB v., 397 F.2d 157 (1st Cir. 1968) ......................................................................... 291, 293 

Singer Co. 

 175 NLRB 211 (1969) ........................................................................................................................ 309 

 191 NLRB 179 (1979) ........................................................................................................................ 305 

 199 NLRB 1195 (1972) ...................................................................................................................... 300 

Sioux City Foundry, 323 NLRB 1071 (1997), enfd. 154 F.3d 832 (8th Cir. 1998).................................... 120 

Sioux Valley Empire Electric Assn., 122 NLRB 92 (1959) ......................................................................... 15 

Sir Francis Drake Hotel, 330 NLRB 638 (2000) ................................................................................ 297, 328 

Sis-Q Flying Service, 197 NLRB 195 (1972)............................................................................................... 18 

Sisters of Mercy Health Corp., 298 NLRB 483 (1990) ...................................................................... 247, 282 

SKC Electric, Inc., 350 NLRB 857 (2007) ................................................................................................. 221 

Skidmore, Owings & Merrill, 192 NLRB 920 (1971) ............................................................................ 9, 165 

Skyline Builders, Inc., 340 NLRB 109 (2003).................................................................................... 267, 269 

Skyway Aviation, 194 NLRB 555 (1972)..................................................................................................... 19 

Slay Transportation Co., 331 NLRB 1292 (2000) ...................................................................................... 209 

Smith & Co. of California, 266 NLRB 172 (1983)..................................................................................... 317 

Smith Co., 192 NLRB 1098 (1971) .................................................................................................... 301, 325 

Smith’s Food & Drug Centers, 320 NLRB 844 (1996) .................................................................. 43, 51, 113 

Smith’s Food & Drug, 295 NLRB 983 (1989) ........................................................................................... 326 

Smithers Tire, 308 NLRB 72 (1992) .......................................................................................................... 294 

Snap-On Tools, Inc., 342 NLRB 5 (2004).................................................................................................. 343 

SNE Enterprises, 248 NLRB 1041 (2006).................................................................................................. 318 

So. Prairie Construction v. Operating Engineers Local 627, 425 U.S. 800 (1976)..................................... 127 

Sociedad Nacional de Marineros de Honduras (United Fruit Co.); McCulloch v., 372 U.S. 10 (1963)....... 21 

Soerens Motor Co., 106 NLRB 1388 (1953) .............................................................................................. 328 

Sofitel San Francisco Bay, 343 NLRB 769 (2004)..................................................................................... 337 

Solar Aircraft Co., 116 NLRB 200 (1957).................................................................................................. 242 

Solar International Shipping Agency, 327 NLRB 369 (1998)...................................................................... 36 

Solvent Services, 313 NLRB 645 (1994).................................................................................... 265, 266, 329 

Some Industries, 204 NLRB 1142 (1973)................................................................................................... 114 

Sonfarrel, Inc., 188 NLRB 969 (1971) ............................................................................................... 308, 309 

Sonoma Health Care Center, 342 NLRB 933 (2004).......................................................................... 320, 323 

Sonoma-Marin Publishing Co., 172 NLRB 625 (1968).............................................................................. 134 

Sonotone Corp., 90 NLRB 1236 (1950) ..................................................................... 225, 259, 260, 285, 331

Sony Corp of America, 313 NLRB 420 (1993) .......................................................................................... 341 

Sorenson Lighted Controls, 286 NLRB 969 (1987) ........................................................................... 332, 333 

Soule Glass & Glazing Co., 246 NLRB 792 (1980), enfd. 652 F.2d 1055 (1st Cir. 1981)......................... 161 

Sound Contractors Assn., 162 NLRB 364 (1967)....................................................................................... 113 

South Alabama Plumbing, 333 NLRB 16 (2001) ....................................................................................... 102 

South Coast Hospice, 333 NLRB 198 (2000)............................................................................................. 285 

South Coast Terminals, 221 NLRB 197 (1976).......................................................................................... 119 

South Hills Health System Agency, 330 NLRB 653 (2000)....................................................................... 176

South Mountain Healthcare & Rehabilitation Center, 344 NLRB 375 (2005) ............................................. 86 
TABLE OF CASES DISCUSSED 407

South Prairie Construction Co. v. Operating Engineers Local 627, 425 U.S. 800 (1976) .......................... 161 

Southeastern Newspapers, 129 NLRB 311 (1961) ....................................................................................... 46 

Southern Bakeries Co., 139 NLRB 62 (1962) ............................................................................................ 172 

Southern Cab Corp., 159 NLRB 248 (1966)............................................................................................... 208 

Southern California Gas Co., 178 NLRB 607 (1969) ................................................................................... 79 

Southern California Water Co., 220 NLRB 482 (1975) ............................................................................. 182 

Southern Indian Health Council, 290 NLRB 436 (1988)................................................................................ 8 

Southern Labor Services, 336 NLRB 710 (2001)....................................................................................... 293 

Southern Metal Services; NLRB v., 606 F.2d 512 (5th Cir. 1979)............................................................. 168 

Southern Mfg. Co., 144 NLRB 784 (1963) ................................................................................................ 110 

Southern Minnesota Supply Co., 116 NLRB 968 (1957) ........................................................................... 108 

Southern Moldings, 219 NLRB 119 (1975)................................................................................................ 113 

Southern Permanente Services, 172 NLRB 1399 (1968).............................................................................. 93 

Southern Radio & Television Equipment Co., 107 NLRB 216 (1954)......................................................... 49 

Southland Containers, 312 NLRB 1087 (1993).......................................................................................... 342 

Southwest Gas Corp. 

 199 NLRB 486 (1972) ........................................................................................................................ 182 

 305 NLRB 542 (1991) ........................................................................................................................ 285 

Southwestern Michigan Broadcasting Co., 94 NLRB 30 (1951)................................................................ 333 

Southwestern Portland Cement Co., 126 NLRB 931 (1960) .................................................................. 86, 88 

Southwire Co., 277 NLRB 377 (1985), enfd. 820 F.2d 453 (D.C. Cir. 1987) ............................................ 294 

Space Mark, Inc., 325 NLRB 1140 (1998)................................................................................. 132, 285, 331 

Sparta Health Care Center, 323 NLRB 526 (1997) .................................................................................... 322 

Spartan Department Stores, 140 NLRB 608 (1963) ................................................................... 132, 151, 179 

Speakman Electric Co., 307 NLRB 1441 (1992)........................................................................................ 289 

Special Citizens Futures Unlimited, 331 NLRB 160 (2000)....................................................................... 306 

Special Machine & Engineering, 282 NLRB 1410 (1987) ........................................................................... 69 

Speco Corp., 298 NLRB 439 (1990)........................................................................................................... 340 

Speedee 7-Eleven, 170 NLRB 1332 (1968)................................................................................................ 211 

Speedrack Products Group Limited, 325 NLRB 609 (1998) .............................................................. 131, 279 

Speedrack Products Group, Ltd., 321 NLRB No. 143 (1996) (not reported in Board volumes), 

enf. denied 114 F.3d 1276 (D.C. Cir. 1997) ........................................................................................... 131 

Speedway Petroleum, 269 NLRB 926 (1984)............................................................................................. 274 

Spencer Foods, 268 NLRB 1483 (1984)....................................................................................................... 85 

Spentonbush/Red Star Cos., 319 NLRB 988 (1995), enf. denied 106 F.3d 484 (2d Cir. 1997) ................. 213 

Spirit Construction Services, 351 NLRB No. 56 (2007)............................................................................. 221 

Sprague Ponce Co., 181 NLRB 281 (1970)................................................................................................ 293 

Sprecher Drilling Corp., 139 NLRB 1009 (1962)....................................................................................... 281 

Springs Industries, 332 NLRB 40 (2000) ................................................................................................... 298 

SPX Corp., 320 NLRB 219 (1995)............................................................................................................. 295 

Square D Co., 169 NLRB 1040 (1968)....................................................................................................... 198 

St. Aloysius Home, 224 NLRB 1344 (1977) ................................................................................................ 14 

St. Clare’s Hospital, 229 NLRB 1000 (1977)............................................................................................. 252 

St. Edmund’s High School, 337 NLRB 1260 (2002).............................................................................. 20, 22 

St. Elizabeth Hospital v. NLRB, 708 F.2d 1436 (9th Cir. 1983) .......................................................... 13, 274 

St. Elizabeth Manor, 329 NLRB 341 (1999) .............................................................................................. 113 

St. Francis Hospital, 282 NLRB 950 (1987)............................................................................................... 122 

St. Francis Medical Center-West, 323 NLRB 1046 (1997)........................................................ 217, 219, 220 

St. Francis Pie Shop, 172 NLRB 89 (1968).................................................................................................... 2 

St. Joe Minerals Corp., 295 NLRB 517 (1989)................................................................................... 277, 278 

St. John of God Hospital, 260 NLRB 905 (1982)............................................................................... 114, 260 

St. John’s Hospital, 307 NLRB 767 (1992) ........................................................................................ 139, 260 

St. Joseph News-Press, 345 NLRB 474 (2005) .......................................................................................... 210 

St. Joseph Riverside Hospital, 224 NLRB 721 (1976) ............................................................................... 327 

St. Joseph’s College, 282 NLRB 65 (1986).................................................................................................. 20 

St. Louis Bakery Labor Council, 121 NLRB 1548 (1958) ........................................................................... 89 
408 TABLE OF CASES DISCUSSED

St. Louis Cordage Mills, 168 NLRB 981 (1968) .................................................................................. 98, 101 

St. Louis Packing Co., 169 NLRB 1106 (1968) ........................................................................................... 45 

St. Louis Post-Dispatch, 205 NLRB 316 (1973)......................................................................................... 210 

St. Luke’s Episcopal Hospital, 222 NLRB 674 (1976)............................................................................... 246 

St. Luke’s Hospital, 234 NLRB 130 (1978) ....................................................................................... 154, 157 

St. Luke's Health Care Assn., 312 NLRB 139 (1993)................................................................................. 203 

St. Lukes Health System, Inc., 340 NLRB 1171 (2003)............................................................................. 152 

St. Margaret Memorial Hospital, 303 NLRB 923 (1991) ........................................................................... 174 

St. Mary’s Duluth Clinic Health System, 332 NLRB 1419 (2000)............................................................. 139 

St. Mary’s Hospital, 317 NLRB 89 (1995)................................................................................................... 78 

St. Mary’s Medical Center, 322 NLRB 954 (1997)...................................................................................... 65 

St. Paul Ramsey Medical Center, 291 NLRB 755 (1988)............................................................................. 22 

St. Peter More-4, 327 NLRB 878 (1999)...................................................................................................... 51 

St. Peters Manor Care Center, 261 NLRB 1161 (1982).............................................................................. 284 

St. Thomas-St. John Cable TV, 309 NLRB 712 (1992).............................................................................. 249 

St. Vincent Hospital, 344 NLRB 586 (2005).............................................................................................. 332 

Stackhouse Oldsmobile, 140 NLRB 1239 (1963)....................................................................................... 102 

Stage Employees IATSE Local 330 (Western Hills Theatres), 204 NLRB 1057 (1973) ............................. 24 

Stamford Taxi, Inc., 332 NLRB 1372 (2000) ............................................................................................. 211 

Standard Brands, 214 NLRB 72 (1974)........................................................................................................ 89 

Standard Molding Corp., 137 NLRB 1515 (1962)...................................................................................... 102 

Standard Oil Co. 

 107 NLRB 1524 (1954) ...................................................................................................................... 226 

 119 NLRB 598 (1958) .......................................................................................................................... 79 

 147 NLRB 1226 (1964) ...................................................................................................................... 169 

 230 NLRB 967 (1977) ................................................................................................................ 208, 209 

Standard-Coosa-Thatcher Co., 115 NLRB 1790 (1956)............................................................................. 332 

Standby One Associates, 274 NLRB 952 (1985)........................................................................................ 328 

Stanford Park Hotel, 287 NLRB 1291 (1988) ............................................................................................ 177 

Stannah Stairlifts, Inc., 325 NLRB 572 (1998)........................................................................................... 313 

Star Brush Mfg. Co., 100 NLRB 679 (1951)................................................................................................ 70 

Star Expansion Industries Corp., 170 NLRB 364 (1968) ........................................................................... 338 

Star Kist Caribe, Inc., 325 NLRB 304 (1998)............................................................................................. 287 

Star Video Entertainment L.P., 290 NLRB 1010 (1988) ............................................................................ 288 

STAR, Inc., 337 NLRB 962 (2002)............................................................................................................ 299 

State Bank of India, 229 NLRB 838 (1977) ................................................................................................. 21 

State Bar of New Mexico, 346 NLRB 674 (2006)........................................................................................ 17 

State Farm Mutual Automobile Insurance Co., 158 NLRB 925 (1966) ..................................... 152, 177, 178 

Staten Island University Hospital, 308 NLRB 58 (1992) ........................................................................... 143 

Station Operators, 307 NLRB 263 (1992) .......................................................................................... 299, 301 

Staub Cleaners, 171 NLRB 332 (1968) .............................................................................................. 305, 317 

Staub Cleaners; NLRB v., 357 F.2d 1 (2d Cir. 1966)................................................................................. 313 

Stay Security, 311 NLRB 252 (1993)........................................................................................................... 81 

Steel Fabricators, 197 NLRB 303 (1972) ................................................................................................... 220 

Steeltech Mfg., 315 NLRB 213 (1994)....................................................................................................... 299 

Steelworkers Local 392 (BP Minerals), 293 NLRB 913 (1989)................................................................. 121 

Steelworkers Local 1070 (Columbia Steel & Shafting Co.), 171 NLRB 945 (1968) ................................. 102 

Steelworkers Local 7912 (U.S. Tsubaki), 338 NLRB 29 (2002) ................................................................ 123 

Steiny & Co., 308 NLRB 1323 (1992) ................................................................................................. 44, 281 

Steppenwolf Theatre Co., 342 NLRB 69 (2004) ................................................................................ 247, 282 

Sterilon Corp., 147 NLRB 219 (1964)........................................................................................................ 123 

Stern’s Paramus, 150 NLRB 799 (1965) ............................................................................................ 138, 184 

Stevens Trucking, 226 NLRB 638 (1976) .................................................................................................... 61 

Stevenson Equipment Co., 174 NLRB 865 (1969)..................................................................................... 339 
TABLE OF CASES DISCUSSED 409

Stewart-Warner Corp. 

 123 NLRB 447 (1959) .................................................................................................................... 53, 94 

 273 NLRB 1736 (1985) ........................................................................................................................ 56 

Stickless Corp., 213 NLRB 851 (1956) ........................................................................................................ 45 

Stock Building Supply, 337 NLRB 440 (2002) ............................................................................................ 75 

Stockton Roofing Co., 304 NLRB 699 (1991) ............................................................................................. 44 

Stormont-Vail Healthcare, Inc., 340 NLRB 1205 (2003) ........................................................... 149, 152, 175 

Stox Restaurant, 172 NLRB 1474 (1968)..................................................................................................... 97 

Strand Theatre, 235 NLRB 1500 (1978)....................................................................................................... 24 

Stroock, Stroock & Lavan, 253 NLRB 447 (1981)..................................................................................... 178 

Stubnitz Greene Corp., 116 NLRB 965 (1957)............................................................................................. 98 

Stur-Dee Health Products, 248 NLRB 1100 (1980) ............................................................................... 77, 79 

Suburban Electrical Engineers/Contractors, 351 NLRB No. 1 (2007) ....................................................... 221 

Suburban Journals of Greater St. Louis, 343 NLRB 157 (2004) ................................................................ 300 

Suburban Newspaper Group, 195 NLRB 438 (1972) ................................................................. 214, 217, 246 

Suburban Newspaper Publications 

 226 NLRB 154 (1976) ........................................................................................................................ 181 

 230 NLRB 1215 (1977) ........................................................................................................................ 45 

Suburban Yellow Taxi Co. v. NLRB, 721 F.2d 366 (D.C. Cir. 1983)........................................................ 211 

Suffolk Banana Co., 328 NLRB 1086 (1999)....................................................................................... 93, 102 

Sugar Food, 298 NLRB 628 (1990)............................................................................................................ 326 

Sullivan & Sons Mfg. Corp., 105 NLRB 549 (1953) ................................................................................... 77 

Summer’s Living Center, 332 NLRB 275 (2000)....................................................................................... 108 

Summit Express, Inc., 350 NLRB No. 51 (2007) ....................................................................................... 163 

Sumter Plywood; NLRB v., 535 F.2d 917 (5th Cir. 1977) ......................................................................... 305 

Sun Mart Foods, 341 NLRB 161 (2004)..................................................................................................... 299 

Sun, 329, NLRB 854 (1999 .......................................................................................................................... 69 

Sunar Hauserman, 273 NLRB 1176 (1984)................................................................................................ 123 

Sunnyvale Medical Clinic, 241 NLRB 1156 (1979)................................................................................... 285 

Sunoco, Inc., 347 NLRB 421 (2006) .......................................................................................................... 123 

Sunray Ltd., 258 NLRB 517 (1981) ........................................................................................................... 254 

Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995) .................................................................... 328, 335 

Sunward Materials, 304 NLRB 780 (1991) ................................................................................................ 327 

Super K Mart Center (Broadview, Illinois), 323 NLRB 582 (1997)........................................................... 186 

Super Valu, Inc., 328 NLRB 52 (1999) ...................................................................................................... 275 

Super Value Stores, 283 NLRB 134 (1987).................................................................................. 65, 141, 142 

Superior Bakery, 294 NLRB 256 (1989) .................................................................................................... 216 

Superior of Missouri, Inc., 338 NLRB 570 (2002) ..................................................................................... 263 

Superior Protection Inc., 341 NLRB 267 (2004) ........................................................................................ 142 

Superior Travel Service, Inc, 342 NLRB 570 (2004) ..................................................................................... 5 

Superior Truss & Panel, Inc., 334 NLRB 916 (2001)......................................................................... 335, 343 

Supermercados Pueblo, 203 NLRB 629 (1973).................................................................................. 185, 199 

Supershuttle of Orange County, 330 NLRB 1016 (2000)........................................................................... 112 

Supreme, Victory & Deluxe Cab Co., 160 NLRB 140 (1966) ..................................................................... 24 

Suprenant Mfg. Co., 144 NLRB 507 (1963), enfd. 341 F.2d 756 (6th Cir. 1965)...................................... 292 

Sure Tan v. NLRB, 467 U.S. 883 (1984).................................................................................................... 273 

Sutter Mutual Water Co., 160 NLRB 1139 (1966)..................................................................................... 207 

Swedish Medical Center, 325 NLRB 683 (1998) ....................................................................................... 141 

Sweetener Supply Corp., 349 NLRB 1122 (2007).............................................................................. 273, 274 
410 TABLE OF CASES DISCUSSED

Swift & Co. 

 101 NLRB 33 (1951) .......................................................................................................................... 134 

 119 NLRB 1556 (1958) ...................................................................................................... 234, 235, 239 

 124 NLRB 50 (1959) ............................................................................................................................ 59 

 129 NLRB 1391 (1961) .............................................................................................................. 129, 234 

 131 NLRB 1143 (1961) ...................................................................................................................... 239 

 145 NLRB 756 (1963) .............................................................................................................. 87, 89, 91 

 166 NLRB 89 (1967) .......................................................................................................................... 239 

 213 NLRB 49 (1974) ............................................................................................................................ 82 

Swift Cleaners, 191 NLRB 597 (1971)........................................................................................................... 4 

Sylvania Electric Products, 119 NLRB 824 (1958) .................................................................................... 275 

Syosset General Hospital, 190 NLRB 304 (1971) ...................................................................................... 226 

Syracuse Region Blood Center, 302 NLRB 72 (1991) ................................................................................. 13 

Syracuse University 

 204 NLRB 641 (1973) .......................................................................................................... 10, 189, 260 

 325 NLRB 162 (1997) ................................................................................................................ 247, 257 

 350 NLRB 755 (2007) .......................................................................................................................... 54 

System Auto Park & Garage, 248 NLRB 948 (1980)................................................................................. 252 

T & G Mfg., 173 NLRB 1503 (1969) ......................................................................................................... 332 

T & L Leasing, 318 NLRB 324 (1995)................................................................................... 28, 29, 265, 285 

T. H. Rogers Lumber Co., 117 NLRB 1932 (1957)...................................................................................... 24 

Taber Instruments; NLRB v., 421 F.2d 642 (2d Cir. 1970)........................................................................ 294 

Tac/Temps, 314 NLRB 1142 (1994) .......................................................................................................... 229 

Tajon, Inc., 269 NLRB 327 (1984)............................................................................................................. 113 

Tallahassee Coca-Cola Bottling Co. v. NLRB, 409 F.2d 201 (5th Cir. 1969)............................................ 169 

Tallahassee Coca-Cola Bottling Co., 168 NLRB 1037 (1968) ................................................................... 169 

Tampa Sand & Material Co., 129 NLRB 1273 (1961) ............................................................................... 278 

Taylor Baking Co., 143 NLRB 566 (1963)..................................................................................................... 3 

Taylor Cadillac, 310 NLRB 639 (1993) ............................................................................................. 325, 337 

Taylor Publishing Co., 167 NLRB 228 (1967) ........................................................................................... 306 

Taylor Wharton Division, 336 NLRB 157 (2001) ...................................................................................... 295 

TCI Cablevision of Washington, 329 NLRB 700 (1999) ........................................................................... 295 

TCI West, Inc., 322 NLRB 928 (1997)....................................................................................................... 335 

TDK Ferrites Corp., 342 NLRB 1006 (2004) ............................................................................................. 202 

Teamsters Local 89 (United Parcel Service), 346 NLRB 484 (2006)................................................. 125, 142 

Teamsters Local 115 (Vila-Barr Co.), 157 NLRB 588 (1966) ................................................................... 134 

Teamsters Local 249, 139 NLRB 605 (1962)............................................................................................... 60 

Teamsters Local 295 (Emery Air Freight Corp.), 255 NLRB 1091(1981) ................................................... 19 

Teamsters Local 299 (Overnite Transportation Co.), 328 NLRB 1231 (1999) .................................. 294, 313 

Teamsters Local 449 (Buffalo Linen); NLRB v., 353 U.S. 87 (1957)........................................................ 153 

Teamsters Local 554 (McAllister Transfer), 110 NLRB 1769 (1955)............................................................ 8 

Teamsters Local 705 (K-Mart), 347 NLRB 439 (2006) ..................................................................... 302, 306 

Teamsters Local 776 (Rite Aid), 305 NLRB 832 (1991).............................................................................. 65 

Teamsters Local 980 (Landis Morgan), 177 NLRB 579 (1969)................................................................. 314 

Teamsters Local 2000, 321 NLRB 1383 (1996)................................................................................. 6, 19, 60 

TEG/LVI Environmental Services, 326 NLRB 1469 (1998)...................................................................... 303 

Teledyne Economic Development v. NLRB, 108 F.3d 56 (4th Cir. 1997)................................................... 12 

Television Artists AFTRA, 222 NLRB 197 (1976)...................................................................................... 23 

Television Film Producers, 126 NLRB 54 (1960) ...................................................................................... 156 

Telonic Instruments, 173 NLRB 588 (1969) .............................................................................. 307, 308, 309 

Temple Security, Inc., 328 NLRB 663 (1999), enf. denied 230 F.3d 909 (7th Cir. 2000) ................. 129, 228 

Temple University, 194 NLRB 1160 (1972) ................................................................................................ 10 

Temptations, 337 NLRB 376 (2001) .............................................................................................................. 3 

Tennessee Gas Pipeline, 254 NLRB 1031 (1981)....................................................................................... 183 

Terminal System, 127 NLRB 979 (1960)..................................................................................................... 58 

Terrace Gardens Plaza, 313 NLRB 571 (1993) .......................................................................................... 326 
TABLE OF CASES DISCUSSED 411

Terri Lee, Inc., 103 NLRB 995 (1953) ....................................................................................................... 131 

Tetrad Co., 122 NLRB 203 (1959) ............................................................................................................. 280 

Texas Bus Lines, 277 NLRB 626 (1985)...................................................................................................... 75 

Texas Cartage Co., 122 NLRB 999 (1959)................................................................................................. 155 

Texas Eastman Co., 175 NLRB 626 (1969) ................................................................................................. 66 

Texas Empire Pipe Line Co., 88 NLRB 631 (1950) ................................................................................... 131 

Texas Meat Packers, 130 NLRB 279 (1961) ........................................................................................ 39, 297 

Texas-Zinc Minerals Corp., 126 NLRB 603 (1960) ....................................................................................... 8 

Textile Service Industries, 284 NLRB 1108 (1987) ................................................................................... 342 

Textile Workers UTWA, 138 NLRB 269 (1962) ............................................................................... 237, 249 

Textron, Inc., 173 NLRB 1290 (1969).......................................................................................................... 84 

T-H Products Co., 113 NLRB 1246 (1955) ................................................................................................ 108 

The Sun, 329 NLRB 854 (1999)................................................................................................................. 122 

Thiele Industries, 325 NLRB 1122 (1998) ......................................................................................... 308, 335 

Thiokol Chemical Corp., 123 NLRB 888 (1959)........................................................................................ 108 

Third Coast Emergency Physicians, P.A., 330 NLRB 756 (2000) ............................................................. 223 

Thomas Electronics, 109 NLRB 1141 (1954)............................................................................................. 328 

Thompson Ramo Wooldridge, Inc., 128 NLRB 236 (1960)....................................................................... 148 

Thoreson-McCosh, Inc., 329 NLRB 630 (1999) ........................................................................................ 278 

Thorn Americas, Inc., 314 NLRB 943 (1994) ............................................................................................ 276 

Thornhill v. Alabama, 310 U.S. 88 (1940) ................................................................................................. 290 

Thos. de la Rue, Inc., 151 NLRB 234 (1965) ............................................................................................... 96 

Threads-Inc., 191 NLRB 667 (1971) .......................................................................................................... 130 

Three Oaks, Inc., 178 NLRB 534 (1969).................................................................................................... 302 

Thriftway Supermarket, 276 NLRB 1450 (1985) ....................................................................................... 221 

Thrifty Auto Parts, 295 NLRB 1118 (1989) ............................................................................................... 307 

Tidelands Marine Services, 116 NLRB 1222 (1956).................................................................................. 320 

Timber Products Co., 164 NLRB 1060 (1967) ........................................................................................... 202 

Times Herald Printing Co., 94 NLRB 1785 (1951) .................................................................................... 181 

Times Square Stores Corp., 79 NLRB 361 (1948) ............................................................................... 39, 277 

Tinius Olsen Testing Machine Co., 329 NLRB 351 (1999) ....................................................................... 300

TLI, Inc., 271 NLRB 798 (1984)................................................................................................................ 162 

TNT Skypack, 311 NLRB 62 (1993)............................................................................................................ 19 

Toledo Hospital, 312 NLRB 652 (1993)..................................................................................................... 202 

Toledo Marine Terminals, 123 NLRB 583 (1959) ..................................................................................... 280 

Tol-Pac, Inc., 128 NLRB 1439 (1960)........................................................................................................ 249 

Tom Brown Drilling Co., 172 NLRB 1267 (1968)............................................................................. 328, 342 

Tom Wood Datsun; NLRB v., 767 F.2d 350 (7th Cir. 1985) ..................................................................... 274 

Tom’s Monarch Laundry & Cleaning Co., 168 NLRB 217 (1968) ............................................................ 154 

Tomadur, Inc., 196 NLRB 706 (1972)........................................................................................................ 276 

Tops Club, Inc., 238 NLRB 928 (1978)...................................................................................................... 235 

Toto Industries (Atlanta), 323 NLRB 645 (1997)....................................................................................... 115 

Tower Co.; NLRB v., 329 U.S. 324 (1946) ................................................................................................ 266 

Towmotor Corp. 

 182 NLRB 774 (1970) .......................................................................................................................... 84 

 187 NLRB 1027 (1971) .............................................................................................................. 199, 258 

Town & Country Cadillac, 266 NLRB 172 (1983)..................................................................................... 317 

Town & Country, 194 NLRB 1135 (1972)........................................................................................... 53, 116 

Towne Ford Sales, 270 NLRB 311 (1984) ......................................................................................... 140, 141 

Townley Metal & Hardware Co., 151 NLRB 706 (1965)........................................................................... 239

Townley Sweeping Service, 339 NLRB 301(2003)...................................................................................... 23 

Tracinda Investment Corp., 235 NLRB 1167 (1978).................................................................................. 115 

Tractor Supply Co., 235 NLRB 269 (1978)................................................................................................ 278 

Trade Winds Drilling Co., 139 NLRB 1012 (1962) ................................................................................... 281 

Training School of Vineland, 332 NLRB 1412 (2000)............................................................................... 220 

Trane, 339 NLRB 866 (2003)............................................................................................. 145, 146, 148, 149 
412 TABLE OF CASES DISCUSSED

Trans-American Video, 198 NLRB 1247 (1972).................................................................................. 85, 169 

Transcontinental Bus System 

 119 NLRB 1840 (1958) ........................................................................................................................ 47 

 178 NLRB 712 (1969) ........................................................................................................................ 132 

Trans-East Air, Inc., 189 NLRB 185 (1971)........................................................................................... 17, 19 

Transerv Systems, 311 NLRB 766 (1993).................................................................................................. 130 

Transportation Maintenence Services, 328 NLRB 691 (1999)............................................................... 71, 75 

Transportation Promotions, 173 NLRB 828 (1969).................................................................................... 6, 7 

Tree-Fiber Co., 328 NLRB 389 (1999)............................................................................................... 217, 218 

Trenton Foods, 101 NLRB 1769 (1953)....................................................................................................... 50 

Trevilla of Golden Valley, 330 NLRB 1377 (2000) ........................................................................... 214, 223 

Triangle Publications, 118 NLRB 595 (1957) ............................................................................................ 234 

Tribune Co., 190 NLRB 398 (1971) ........................................................................................................... 132 

Tri-City Motor Co., 284 NLRB 659 (1987)................................................................................................ 220 

Trico Disposal Service, 191 NLRB 104 (1971)........................................................................................ 5, 23 

Trico Products Corp. 

 169 NLRB 287 (1968) ........................................................................................................................ 198 

 238 NLRB 380 (1978) ........................................................................................................................ 322 

Trident Seafoods, Inc., 318 NLRB 738 (1995)........................................................................................... 131 

Trilco City Lumber Co., 226 NLRB 289 (1976)......................................................................................... 284 

Trinity Lutheran Hospital, 218 NLRB 199 (1975) ....................................................................................... 95 

Triple J Variety Drug Co., 168 NLRB 988 (1967) ..................................................................................... 331 

Tri-State Aero, Inc., 262 NLRB 998 (1982) ................................................................................................. 19 

Tri-State Transportation Co. 

 179 NLRB 310 (1969) .................................................................................................................... 78, 81 

 289 NLRB 356 (1988) ................................................................................................................ 247, 248 

Tropicana Products, 122 NLRB 121 (1959) ................................................................................................. 23 

Truckee-Carson Irrigation District, 164 NLRB 1176 (1967)...................................................................... 207 

Trumbull Memorial Hospital, 338 NLRB 900 (2003) ................................................................................ 130 

Trump Plaza Hotel & Casino, 352 NLRB No. 71 (2008) ........................................................................... 315 

Trump Taj Mahal Casino 

 306 NLRB 86 (1992) .......................................................................................................................... 282 

 329 NLRB 256 (1999) ........................................................................................................................ 126 

Trusev Corp., 349 NLRB 227 (2007) ......................................................................................................... 112

Trustees of Columbia University, 350 NLRB 574 (2007) .......................................................................... 306 

Tryon Trucking, 192 NLRB 764 (1971)............................................................................................... 60, 170 

Tulane University, 195 NLRB 329 (1972) ................................................................................................. 190 

Tung-Sol Electric, 120 NLRB 1674 (1958).................................................................................................. 51 

Turner Industries Group, LLC, 349 NLRB No. 42 (2007) ......................................................... 166, 202, 281 

Tusculum College, 199 NLRB 28 (1972)................................................................................................... 280 

Tweedle Litho, Inc., 337 NLRB 686 (2002)................................................................................................. 65 

Twentieth Century Fox Film Corp., 234 NLRB 172 (1978)....................................................................... 178

Twenty-First Century Restaurant, 192 NLRB 881 (1971).................................................................. 146, 147 

Tyson Fresh Meats, Inc., 343 NLRB 1335 (2004).............................................................................. 315, 337 

U. S. Coal Co., 3 NLRB 398 (1937)........................................................................................................... 115 

U.S. Baking Co., 165 NLRB 951 (1967) .................................................................................................... 135 

U.S. Bedding Co., 52 NLRB 382 (1943) .................................................................................................... 135 

U.S. Consumer Products, 164 NLRB 1187 (1967)..................................................................................... 306 

U.S. Ecology Corp., 331 NLRB 223 (2000)............................................................................................... 319 

U.S. Electrical Motors, 261 NLRB 1343 (1982)......................................................................................... 313 

U.S. Gypsum Co. 

 93 NLRB 91 (1951) ............................................................................................................................ 213 

 115 NLRB 734 (1956) ........................................................................................................................ 311 

 157 NLRB 652, 656 (1966) .................................................................................................................. 68 

 178 NLRB 85 (1969) .......................................................................................................................... 220 

U.S. Lingerie Corp., 170 NLRB 750 (1968)............................................................................................... 158 
TABLE OF CASES DISCUSSED 413

U.S. Pillow Corp., 137 NLRB 584 (1962).................................................................................................... 96 

U.S. Plywood-Champion Papers, 174 NLRB 292 (1969)........................................................................... 201

U.S. Pollution Control, 278 NLRB 274 (1986) .......................................................................................... 253 

U.S. Radium Corp., 122 NLRB 468 (1958)................................................................................................ 218 

U. S. Steel Corp. 

 137 NLRB 1372 (1962) ...................................................................................................................... 262 

 156 NLRB 1216 (1966) ...................................................................................................................... 107 

 188 NLRB 309 (1971) ........................................................................................................................ 230 

 187 NLRB 522 (1971) ................................................................................................................ 123, 142 

 192 NLRB 58 (1971) .................................................................................................................. 128, 129 

U.S. Tsubaki, Inc., 331 NLRB 327 (2000) ................................................................................................. 144 

U.S. v. John, 437 US 634 (1978). ................................................................................................................... 8 

U.S. West Communications, 310 NLRB 854 (1993).................................................................................. 141 

Uarco, Inc., 216 NLRB 1 (1974) ................................................................................................................ 300 

U-Haul Co. of Nevada, Inc., 341 NLRB 195 (2004) .................................................................. 303, 328, 339 

Ukiah Valley Medical Center, 332 NLRB 602 (2000) ........................................................................... 20, 22 

UMass Memorial Medical Center, 349 NLRB 369 (2007)..................................................... 80, 99, 257, 261 

Underwriters Laboratories, 323 NLRB 300 (1997) .................................................................................... 296 

Unibilt Industries, 278 NLRB 825 (1986) .................................................................................................. 335 

Union Bag Corp., 110 NLRB 1631 (1955)................................................................................................... 87 

Union Carbide Corp. 

 156 NLRB 634 (1966) ................................................................................................................ 201, 259 

 190 NLRB 191 (1971) .................................................................................................................... 86, 98 

 205 NLRB 794 (1973) ........................................................................................................................ 199 

Union Electric Co., 217 NLRB 666 (1975) ................................................................................................ 121 

Union Envelope Co., 10 NLRB 1147 (1939).............................................................................................. 135 

Union Fish Co., 156 NLRB 187 (1966)................................................................................................ 86, 158 

Union Mfg. Co., 123 NLRB 1633 (1959)..................................................................................................... 70 

Union Square Theatre Management, 326 NLRB 70 (1998), affd. 327 NLRB 618 (1999) ........... 30, 218, 222 

Union Steam Pump Co., 118 NLRB 689 (1957)......................................................................................... 200 

Union Switch & Signal Co., 76 NLRB 205 (1948) .................................................................................... 327 

Uniroyal, Inc., 194 NLRB 268 (1972) ........................................................................................................ 120 

UNISERV, 340 NLRB 199 (2003)............................................................................................................. 303 

Unitec Industries, 180 NLRB 51 (1970)..................................................................................................... 293 

United Aircraft Corp., 103 NLRB 102 (1953).................................................................................... 303, 336 

United Aircraft Corp.; NLRB v., 324 F.2d 128 (2d Cir. 1963), cert. denied 376 U.S. 951 (1964)............. 302 

United Airlines Services Corp., 290 NLRB 954 (1988) ..................................................................... 300, 340 

United Boat Service Corp., 55 NLRB 671 (1944) ........................................................................................ 47 

United Broadcasting, 223 NLRB 908 (1976) ............................................................................................... 99 

United Builders Supply Co., 287 NLRB 1364 (1988) ................................................................................ 316 

United Cerebral Palsy Assn. of Niagara County, 327 NLRB 40 (1998)............................................. 126, 312 

United Dairies; NLRB v., 337 F.2d 283 (10th Cir. 1964)............................................................................. 30 

United Gas, 190 NLRB 618 (1971) ............................................................................................................ 182 

United Health Care Services, 326 NLRB 1379 (1998)........................................................................... 30, 82 

United Hospitals, 249 NLRB 562 (1980) ..................................................................................................... 64 

United Hydraulics Corp., 205 NLRB 62 (1973) ......................................................................................... 120 

United Insurance Co. of America, 325 NLRB 341 (1998) ................................................................. 267, 332 

United Insurance Co.; NLRB v., 390 U.S. 254 (1968) ....................................................................... 207, 208 

United Metal Trades Assn., 172 NLRB 410 (1968) ................................................................................... 154 

United Methodist Home of New Jersey, 314 NLRB 687 (1994)................................................................ 299 

United Methodist Hospital of Kentucky v. NLRB, 109 F.3d 1146 (6th Cir. 1997)...................................... 12 

United Operations, Inc., 338 NLRB 123 (2002)......................................................................................... 130 
414 TABLE OF CASES DISCUSSED

United Parcel Service 

 258 NLRB 223 (1981) ................................................................................................................ 239, 240 

 303 NLRB 326 (1991) ................................................................................................................ 121, 143 

 318 NLRB 778 (1995) .......................................................................................................................... 19 

 325 NLRB 37 (1997) .................................................................................................................. 139, 143 

United Rentals, Inc., 341 NLRB 540 (2004) ...................................................................................... 130, 138 

United States Aluminum Corp., 305 NLRB 719 (1991)............................................................................. 248 

United States Pipe Co., 223 NLRB 1443 (1976) ........................................................................................ 124 

United Supermarkets, 287 NLRB 119 (1987)............................................................................................. 109 

United Telephone Co. of Ohio, 179 NLRB 732 (1969).......................................................................... 79, 80 

United Trucks & Bus Service Co., 257 NLRB 343 (1982)........................................................................... 57 

United Warehouse & Terminal Corp., 112 NLRB 959 (1955)....................................................................... 4 

United Way of Howard County, 287 NLRB 987 (1988) .............................................................................. 16 

Universal Enterprises, 291 NLRB 670 (1988)............................................................................................ 159 

Universal Form Clamp Co., 163 NLRB 184 (1967)................................................................................... 197 

Universal Metal Products Corp., 128 NLRB 442 (1960)............................................................................ 147 

Universal Mfg. Co., 197 NLRB 618 (1972) ............................................................................................... 278 

Universal Mfg. Corp., 156 NLRB 1459 (1966) .................................................................................. 304, 314 

Universidad Central de Bayamon; NLRB v., 793 F.2d 383 (1st Cir. 1986) ............................................... 189 

University of Chicago, 272 NLRB 873 (1984)..................................................................................... 56, 230 

University of Detroit, 193 NLRB 566 (1971)............................................................................................. 222 

University of Dubuque, 289 NLRB 349 (1988).................................................................................. 122, 188 

University of Great Falls 

 325 NLRB 83 (1997) .................................................................................................................. 188, 236 

 331 NLRB 1663(2000........................................................................................................................... 22 

University of New Haven 

 190 NLRB 478 (1971) ........................................................................................................................ 248 

 267 NLRB 939 (1983) ........................................................................................................................ 188 

University of Pittsburgh Medical Center, 313 NLRB 1341 (1994) .................................................... 202, 260 

University of San Francisco, 265 NLRB 1221 (1982)................................................................................ 248 

University of Tulsa, 304 NLRB 773 (1991) ............................................................................................... 231 

University of Vermont 

 223 NLRB 423 (1976) .................................................................................................... 11, 17, 188, 222 

 297 NLRB 291 (1989) .............................................................................................................. 11, 17, 22 

University of West Los Angeles, 321 NLRB 61 (1996) ............................................................................. 252 

University Towers, 285 NLRB 199 (1987)................................................................................................. 318 

Upstate Home for Children, 309 NLRB 986 (1992)................................................................................... 175 

Up-To-Date Laundry, 124 NLRB 247 (1959) .............................................................................................. 45 

Ursery Cos., 311 NLRB 399 (1993) ................................................................................................... 315, 336 

US Reinforcing, Inc., 350 NLRB No. 41 (2007) ........................................................................................ 163 

USM Corp., 256 NLRB 996 (1981)........................................................................................................ 78, 79 

Utah Power & Light Co., 258 NLRB 1059 (1981) ............................................................... 72, 128, 227, 260 

UTD Corp., 165 NLRB 346 (1967) ............................................................................................................ 255 

Utilco Co., 197 NLRB 664 (1972)................................................................................................................ 95 

Utility Appliance Corp., 106 NLRB 398 (1953)......................................................................................... 136 

U-Tote-Em Grocery Co., 185 NLRB 52 (1970) ......................................................................................... 185 

V. J. Elmore 5 Stores, 99 NLRB 1505 (1951) ............................................................................................ 149 

V.I.M. Jeans, 271 NLRB 1408 (1984)................................................................................................ 146, 148 

V.I.P. Limousine, 274 NLRB 641 (1985)................................................................................................... 330 

V.I.P. Movers, 232 NLRB 14 (1977).......................................................................................................... 246 

V.I.P. Radio, 128 NLRB 113 (1960) .......................................................................................................... 247 

Valley Bakery; NLRB v.; 1 F.3d 769 (9th Cir. 1993)................................................................................. 296 

Valley Die Cast Corp., 160 NLRB 1881 (1966)......................................................................................... 308 

Valley Forge Flag Co., 152 NLRB 1550 (1965)......................................................................................... 131 

Valley Harvest Distributing, 294 NLRB 1166 (1989) .................................................................................. 64 

Valley West Welding Co., 265 NLRB 1997 (1982). .................................................................................... 60 
TABLE OF CASES DISCUSSED 415

Value Village, 161 NLRB 603 (1966) ................................................................................................ 179, 180 

Van Camp Seafood Co., 212 NLRB 537 (1974)............................................................................................. 6 

Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984)................................................. 303 

Van Dorn Plastic Machinery Co., 300 NLRB 278 (1990) .......................................................................... 110 

Van Eerden Co., 154 NLRB 496 (1965)..................................................................................... 153, 154, 155 

Van Lear Equipment, Inc., 336 NLRB 1059 (2001)........................................................................... 148, 149 

Vanadium Corp. of America, 117 NLRB 1390 (1957)................................................................................. 61 

Vanalco, Inc., 315 NLRB 618 (1994)......................................................................................................... 276 

Vanity Fair Mills, 256 NLRB 1104 (1981)................................................................................................... 95 

Variety Artists (Golden Triangle Restaurant), 155 NLRB 1020 (1965) ......................................................... 6 

Vemco, Inc., 315 NLRB 200 (1994)........................................................................................................... 269 

Vencare Ancillary Services, 334 NLRB 965 (2001)..................................................................................... 53 

Vent Control, Inc., 126 NLRB 1134 (1960) ......................................................................................... 47, 285 

Venture Industries, 327 NLRB 918 (1999)................................................................................. 214, 216, 285 

Verizon Information Systems, 335 NLRB 558 (2001) ......................................................................... 65, 100 

Verizon Wireless, 341 NLRB 483 (2004)................................................................................... 146, 181, 186 

Verkler, Inc., 337 NLRB 128 (2001) .......................................................................................................... 106 

Versail Mfg., 212 NLRB 592 (1974).......................................................................................................... 329 

VFL Technology Corp. 

 329 NLRB 458 (1999) ...................................................................................................... 66, 73, 82, 105 

 332 NLRB 1443 (2000) ........................................................................................................................ 73 

Viacom Cablevision, 268 NLRB 633 (1984).............................................................................................. 285 

Viacom Television, 268 NLRB 633 (1984)................................................................................................ 285 

Vickers, Inc. 

 124 NLRB 1051 (1959) .............................................................................................................. 107, 128 

 152 NLRB 793 (1965) ........................................................................................................................ 316 

Video Tape Co., 288 NLRB 646 (1989)..................................................................................................... 296 

Vindicator Printing Co., 146 NLRB 871 (1964)................................................................................. 210, 246 

Virgin Isles Hotel, 110 NLRB 558 (1955)...................................................................................................... 5 

Virginia Concrete Co., 316 NLRB 261 (1995) ........................................................................................... 277 

Virginia Concrete Corp., 338 NLRB 1182 (2003)................................................................ 39, 289, 303, 312 

Virginia Electric & Power Co. v. NLRB, 132 F.2d 390 (4th Cir. 1942), affd. 319 U.S. 533 (1943).......... 290 

Virginia Electric & Power Co.; NLRB v., 314 U.S. 469 (1941)......................................................... 290, 291 

Virginia Mason Medical Center, 350 NLRB No. 73 (2007)....................................................................... 109 

Virginia Mfg. Co., 311 NLRB 992 (1993).................................................................................. 213, 238, 241 

Virtua Health, Inc., 344 NLRB 604 (2005) ........................................................................................ 175, 242 

Visitainer Corp., 237 NLRB 257 (1978)....................................................................................................... 79 

Visiting Nurses Assn. of Central Illinois, 324 NLRB 55 (1997) ................................................................ 152 

Visiting Nurses Assn. 

 188 NLRB 155 (1971) .......................................................................................................................... 59 

 314 NLRB 404 (1994) ........................................................................................................................ 325 

Vista Hill Hospital, 239 NLRB 667 (1978), enfd. 639 F.2d 479 (9th Cir. 1980) ....................................... 338 

Vita Food Products, 116 NLRB 1215 (1957) ............................................................................................. 315 

Vitro Corp., 309 NLRB 390 (1992)............................................................................................................ 192 

Vogue Art Ware & China Co., 129 NLRB 1253 (1961)............................................................................. 254 

Volair Contractors, Inc., 341 NLRB 673 (2004)......................................................................... 213, 214, 218 

Volt Technical Corp., 176 NLRB 832 (1970)............................................................................................. 338 

Voyager 1000, 202 NLRB 901 (1973).......................................................................................................... 19 

Vulcanized Rubber & Plastics Co., 129 NLRB 1256 (1961)...................................................................... 238

W & J Sloane, Inc., 173 NLRB 1387 (1969).............................................................................................. 185 

W. C. Hargis & Sons, Inc., 164 NLRB 1042 (1967) .................................................................................. 253 

W. Horace Williams Co., 130 NLRB 223 (1961)................................................................................... 44, 87 

W. T. Grant Co., 179 NLRB 670 (1969) ...................................................................................................... 71 

W. W. Wilton Wood, Inc., 127 NLRB 1675 (1960)................................................................................... 277 

W.M.P. Security Service Co., 309 NLRB 734 (1992).................................................................................. 23 

Wabash Transformer Corp., 205 NLRB 148 (1973), enfd. 509 F.2d 647 (8th Cir. 1975).......................... 323 
416 TABLE OF CASES DISCUSSED

Wackenhut Corp. v. NLRB 

 178 F.3d 543 (D.C. Cir. 1999) ...................................................................................................... 56, 230 

 666 F.2d 464 (11th Cir. 1982)............................................................................................................. 335 

Wackenhut Corp. 

 169 NLRB 398 (1968) .......................................................................................................................... 55 

 196 NLRB 278 (1972) ................................................................................................................ 129, 230 

Wadsworth Theater Management, 349 NLRB 122 (2007) ................................................................. 247, 282 

Wagner Electric Corp. 

 125 NLRB 834 (1959) ........................................................................................................................ 330 

 127 NLRB 1082 (1960) ...................................................................................................................... 280 

Wagoner Transportation Co., 177 NLRB 452 (1969)................................................................................... 97 

Wah Chang Albany Corp., 171 NLRB 385 (1968)..................................................................................... 200 

Wahiawa Transport System, 183 NLRB 991 (1970) .............................................................................. 72, 92 

Wahl Clipper Corp., 195 NLRB 634 (1972)............................................................................................... 278 

Waiters & Bartenders Local 500 (Mission Valley), 140 NLRB 433 (1963)................................................. 74 

Wakefield’s Deep Sea Trawlers, 115 NLRB 1024 (1956).......................................................................... 125 

Wald Sound, Inc., 203 NLRB 366 (1973) .................................................................................................. 323 

Walgreen Co., 198 NLRB 1138 (1972) ...................................................................................................... 146 

Walgreen Louisiana Co., 186 NLRB 129 (1970)........................................................................................ 252 

Walker Boat Yard, 273 NLRB 309 (1984) ................................................................................................. 199 

Walker-Roemer Dairies, 196 NLRB 20 (1972) .......................................................................................... 172 

Wallace Shops, 133 NLRB 36 (1961)........................................................................................................... 27 

Wallace-Murray Corp., 192 NLRB 1090 (1971) ........................................................................................ 122 

Wal-Mart Stores 

 328 NLRB 904 (1999.......................................................................................................................... 186 

 335 NLRB 1310 (2001) ...................................................................................................................... 216 

 339 NLRB 64 (2003) .......................................................................................................................... 269 

 340 NLRB 220 (2003) ........................................................................................................................ 216 

Walnut Hills Country Club, 145 NLRB 81 (1964) ....................................................................................... 15 

Walt’s Broiler, 270 NLRB 556 (1984) ............................................................................................... 154, 158 

Walter A. Kelley, 139 NLRB 744 (1962)..................................................................................................... 21 

Walter Kidde & Co., 191 NLRB 10 (1971)................................................................................................ 138 

Walter Packing, 241 NLRB 131 (1979)...................................................................................................... 275 

WAPI-TV-AM-FM, 198 NLRB 342 (1972)........................................................................................... 71, 72 

Ward Baking Co., 139 NLRB 1344 (1962) ........................................................................................ 159, 261 

Warner-Lambert Co., 298 NLRB 993 (1990)............................................................................................. 260 

Warren Manor Nursing Home, 329 NLRB 3 (1999) .................................................................................. 293 

Warwick Caterers, 269 NLRB 482 (1984) ................................................................................................... 39 

Wasatch Oil Refining Co., 76 NLRB 417 (1948)....................................................................................... 213 

Washington Beef Producers, 264 NLRB 1163 (1982)........................................................................ 220, 221

Washington Fruit & Produce Co., 343 NLRB 1215 (2004)........................................................................ 308 

Washington National Hilton Hotel, 323 NLRB 222 (1997) ....................................................................... 300

Washington Palm, Inc., 314 NLRB 1122 (1994)........................................................................................ 186 

Washington Post Co., 254 NLRB 168 (1981)............................................................................. 122, 131, 236 

Waste Management de Puerto Rico, 339 NLRB 262 (2003).............................................................. 233, 234 

Waste Management Northwest, 331 NLRB 309 (2000)............................................................. 145, 147, 148 

Waste Management of Maryland, 338 NLRB 1002 (2003).............................................................. 77, 78, 79 

Waste Management of New York 

 323 NLRB 590 (1997) .......................................................................................................................... 51 

 326 NLRB 1126 (1998) ...................................................................................................................... 269 

Waste Management of Northwest Louisiana, 326 NLRB 980 (1998) ........................................................ 329 

Waste Management of Palm Beach, 329 NLRB 198 (1999) ...................................................................... 300 

Waste Management of Pennsylvania, 314 NLRB 376 (1994) .................................................................... 297 

Waste Management, Inc., 330 NLRB 634 (2000)....................................................................................... 299 

Watchmanitors, 128 NLRB 903 (1960)...................................................................................................... 229 

Water Tower Inn, 139 NLRB 842 (1962)................................................................................... 138, 176, 177 
TABLE OF CASES DISCUSSED 417

Waterbed World, 286 NLRB 425 (1987)............................................................................................ 220, 221 

Watkins Construction Co., 332 NLRB 828 (2000)............................................................................. 265, 334 

Wausau Steel Corp. v. NLRB, 377 F.2d 389 (7th Cir. 1967) ..................................................................... 292 

Wave Hill, Inc., 248 NLRB 1149 (1980)........................................................................................................ 9 

Wayland Distributing Co., 204 NLRB 459 (1973) ..................................................................................... 170 

Wayne County Legal Services 

 229 NLRB 1023 (1977) ................................................................................................................ 13, 178 

 333 NLRB 146 (2001) ........................................................................................................................ 280 

Wayne Oakland Bank v. NLRB, 462 F.2d 666 (6th Cir. 1972).................................................................. 165 

WBAI Pacifica Foundation, 328 NLRB 1273 (1999)................................................................................. 273 

WDAF Fox 4, 328 NLRB 3 (1999) ............................................................................................................ 249 

We Transport, Inc., 198 NLRB 949 (1972) ................................................................................................ 108 

Weather Vane Outerwear Corp., 233 NLRB 414 (1977)........................................................................ 66, 93

Weaver Motors, 123 NLRB 209 (1959) ..................................................................................................... 219 

Wedgewood Industries, 243 NLRB 1190 (1979)........................................................................................ 306 

Welfare & Pension Funds, 178 NLRB 14 (1969) ......................................................................................... 61 

Wells Aluminum Corp., 319 NLRB 798 (1995)......................................................................................... 337 

Wells Fargo Alarm Services, 218 NLRB 68 (1975) ................................................................................... 228 

Wells Fargo Armored Service Co., 300 NLRB 1104 (1990)...................................................................... 257 

Wells Fargo Corp., 270 NLRB 787 (1984)................................................................................. 124, 129, 228 

Wells Fargo Guard Services, 236 NLRB 1196 (1978) ................................................................................. 56 

Welsh Farms Ice Cream, 161 NLRB 748 (1966)........................................................................................ 220 

West Coast Meat Packing Co., 195 NLRB 37 (1972) ................................................................................ 308 

West India Mfg. Co., 195 NLRB 1135 (1972) ............................................................................................. 95 

West Indian Co., 129 NLRB 1203 (1961) .................................................................................................. 108 

West Jersey Health System, 293 NLRB 749 (1989)................................................................................... 152 

West Lawrence Care Center, 305 NLRB 212 (1991) ..................................................................... 71, 96, 157 

West Penn Power v. NLRB, 337 F.2d 993 (3d Cir. 1964).......................................................................... 212 

West Texas Equipment Co., 142 NLRB 1358 (1963)................................................................................. 287 

West Virginia Pulp & Paper Co. 

 120 NLRB 1281 (1958) ...................................................................................................................... 131 

 122 NLRB 738 (1958) ........................................................................................................................ 220 

 140 NLRB 1160 (1963) ...................................................................................................................... 228 

Westchester Corp., 124 NLRB 194 (1959)..................................................................................................... 5 

Western & Southern Life Insurance Co., 163 NLRB 138 (1967) , enfd. 391 F.2d 119 (3d Cir. 1968) ...... 177 

Western Baptist Hospital, 246 NLRB 170 (1980) ........................................................................................ 59 

Western Cartridge Co., 134 NLRB 67 (1962) ............................................................................................ 141 

Western Colorado Power Co., 190 NLRB 564 (1971) ............................................................................... 122 

Western Commercial Transport, 288 NLRB 214 (1988)...................................................................... 70, 119 

Western Electric Co. 

 126 NLRB 1346 (1960) ...................................................................................................................... 226 

 98 NLRB 1018 (1951) ........................................................................................................................ 133 

Western Freight Assn., 172 NLRB 303 (1968)............................................................................................. 82 

Western Light Telephone Co., 129 NLRB 719 (1961) ............................................................................... 182 

Western Meat Packers, 148 NLRB 444 (1964) .......................................................................................... 108 

Western Pennsylvania Carriers Assn., 187 NLRB 371 (1971) ................................................................... 171 

Western Pipeline, Inc., 328 NLRB 925 (1999)............................................................................................. 67 

Western Roto Engravers, 168 NLRB 986 (1968) ................................................................................... 78, 79 

Western Saw Mfrs., 155 NLRB 1323 (1965) ............................................................................................. 214 

Western Union Corp., 224 NLRB 274 (1976) ............................................................................................ 161 

Western Wirebound Box Co., 191 NLRB 748 (1971)................................................................................ 141 

Westin Hotel, 277 NLRB 1506 (1986) ....................................................................................................... 177 

Westinghouse Broadcasting & Cable; NLRB v., 849 F.2d 15 (1st Cir. 1988)............................................ 284 

Westinghouse Broadcasting Co. 

 188 NLRB 157 (1971) ........................................................................................................................ 213 

 195 NLRB 339 (1972) ................................................................................................................ 213, 216 
418 TABLE OF CASES DISCUSSED

Westinghouse Electric Corp. v. NLRB, 440 F.2d 7 (2d Cir. 1971), cert. denied 404 U.S. 853 (1971) ...... 128 

Westinghouse Electric Corp. 

 89 NLRB 8 (1950) .............................................................................................................................. 226 

 114 NLRB 1515 (1956) ...................................................................................................................... 111 

 115 NLRB 185 (1956) ........................................................................................................................ 110 

 115 NLRB 530 (1956) .......................................................................................................................... 72 

 118 NLRB 1043 (1957) .............................................................................................................. 132, 239 

 129 NLRB 846 (1961) .......................................................................................................................... 67 

 144 NLRB 455 (1963) .................................................................................................................. 75, 133 

 163 NLRB 723 (1967) ........................................................................................................................ 227 

 173 NLRB 310 (1969) ........................................................................................................................ 123 

Westinghouse; Carey v., 375 U.S. 261 (1964).............................................................................................. 65 

Weston Biscuit Co., 117 NLRB 1206 (1955) ............................................................................................. 107 

Weston Paper & Mfg. Co., 100 NLRB 276 (1951)..................................................................................... 133 

Westwood Health Care Center, 330 NLRB 935 (2000).............................................................................. 217 

Westwood Horizons Hotel, 270 NLRB 802 (1984)............................................................................ 312, 313 

Weyerhaeuser Co. 

 142 NLRB 702 (1963) .................................................................................................................. 28, 102 

 166 NLRB 299 (1967) ........................................................................................................................ 153 

 173 NLRB 1170 (1969) ...................................................................................... 233, 234, 238, 239, 241 

 315 NLRB 963 (1994) ................................................................................................................ 283, 306 

Weyerhaeuser Timber Co., 93 NLRB 842 (1951) ........................................................................................ 70 

Whatcom Security Agency, 258 NLRB 985 (1981) ................................................................................... 330 

White Cap Inc., 323 NLRB 477 (1997) ...................................................................................................... 111 

White Cross Discount Centers, 199 NLRB 721 (1972) .............................................................................. 185 

White Front Stores, 192 NLRB 240 (1971)................................................................................................ 142 

White Plains Lincoln Mercury, 288 NLRB 1133 (1988)............................................................................ 289 

White River Lumber Co., 88 NLRB 158 (1950)........................................................................................... 51 

Whitehead & Kales Co., 196 NLRB 111 (1972) ........................................................................................ 242 

White-Westinghouse Corp., 229 NLRB 667 (1977)..................................................................................... 71 

Whiting Milk Co., 137 NLRB 1143 (1962)............................................................................................... 257 

Whiting Corp., 99 NLRB 117 (1951), revd. on other grounds 200 F.2d 43 (7th Cir. 1952)....................... 274 

Wickes Corp. 

 201 NLRB 610 (1973) ........................................................................................................................ 191 

 201 NLRB 615 (1973) ........................................................................................................................ 191 

 231 NLRB 154 (1977) ........................................................................................................................ 184 

 255 NLRB 545 (1981) ........................................................................................................................ 191 

Wickly, Inc., 131 NLRB 467 (1961) ............................................................................................................ 78 

Wigwam Stores, 166 NLRB 1034 (1967)........................................................................................... 191, 192 

Wilkes-Barre Publishing Co., 245 NLRB 929 (1979) .................................................................................. 23 

Willamette Industries v. NLRB, 144 F.3d 877 (D.C. Cir. 1998) ................................................................ 202

Willamette Industries, 322 NLRB 1120 (1997).......................................................................................... 265 

Willamette Reynolds Wheels International, 323 NLRB 1062 (1997) ........................................................ 333 

William J. Keller, Inc., 198 NLRB 1144 (1972)......................................................................................... 251 

Williamette Industries, 336 NLRB 743 (2001)........................................................................... 214, 218, 221 

Williams Transportation Co., 233 NLRB 837 (1977)............................................................. 64, 65, 122, 123 

Williamson Co., 244 NLRB 953, 955 (1979) ............................................................................................. 120 

Willis Shaw Frozen Food Express, 173 NLRB 487 (1968)........................................................................ 217

Wilson & Co., 37 NLRB 944 (1941) .......................................................................................................... 265 

Wilson & Dean Construction Co., 295 NLRB 484 (1989) ........................................................... 66, 166, 281 

Wilson Athletic Goods Mfg. Co., 76 NLRB 315 (1948) ............................................................................ 322 

Wilson Engraving Co., 257 NLRB 333 (1980)........................................................................................... 253 

Wilson Packing & Rubber Co., 51 NLRB 910 (1943)................................................................................ 136 

Wilson Wholesale Meat Co., 209 NLRB 222 (1974) ................................................................................. 172 

Windee’s Metal Industries, 309 NLRB 1074 (1992) ........................................................................ 68, 73, 75 

Windham Community Memorial Hospital, 312 NLRB 54 (1993).............................................................. 285 
TABLE OF CASES DISCUSSED 419

Windsor House C & D, 309 NLRB 693 (1992).......................................................................................... 314 

Windsor School, 200 NLRB 991 (1972)....................................................................................................... 10 

Winsett-Simmonds Engineers, Inc., 164 NLRB 611 (1967)............................................................... 131, 279 

Wisconsin Bell, 283 NLRB 1165 (1987)...................................................................................................... 71 

Witteman Steel Mills, 253 NLRB 320 (1981) ............................................................................................ 114 

WLNE-TV, 259 NLRB 1224 (1982) .......................................................................................................... 187 

WLVI Inc., 349 NLRB No. 63 (2007)........................................................................................................ 253 

Wm. H. Block Co., 151 NLRB 318 (1965) ................................................................................................ 186 

Wm. L. Hoge & Co., 103 NLRB 20 (1953)................................................................................................ 115 

Wm. P. McDonald Corp., 83 NLRB 427 (1949) .......................................................................................... 45 

Wm. Wolf Bakery, 122 NLRB 1163 (1959)................................................................................................. 89 

Wolfe Metal Products Corp., 119 NLRB 659 (1958) ................................................................................... 46 

Wolverine Dispatch, Inc., 321 NLRB 796 (1996) .............................................................................. 229, 325 

Wolverine World Wide, 196 NLRB 410 (1972)................................................................................. 216, 221 

Women & Infants’ Hospital of Rhode Island, 333 NLRB 479 (2001) ......................................................... 99 

Women in Crisis Counseling, 312 NLRB 589 (1993) ................................................................................ 308 

Woodbury County Community Action Agency, 299 NLRB 554 (1990) ..................................................... 18 

Woodland Hills Country Club, 146 NLRB 330 (1964) ................................................................................ 15 

Woodman Co., 119 NLRB 1784 (1958), enf. denied 827 F.2d 32 (8th Cir. 1991)..................................... 228 

Woodman’s Food Markets, 332 NLRB 503 (2000).................................................................................... 309 

Woods Hole Oceanographic Institution, 143 NLRB 568 (1963).................................................................... 5 

Woods Quality Cabinetry Co., 340 NLRB 1355 (2003)............................................................................... 45 

Woodview Calabasa Hospital; NLRB v., 702 F.2d 184 (9th Cir. 1983)..................................................... 277 

Woolwich, Inc., 185 NLRB 783 (1970)................................................................................................ 64, 123 

World Theatre Corp., 316 NLRB 969 (1995) ............................................................................................. 218 

Worthington Corp., 155 NLRB 59 (1965).................................................................................................. 242 

Worths Stores Corp., 281 NLRB 1191 (1986)............................................................................................ 337 

WPVI TV, 194 NLRB 1063 (1972)............................................................................................................ 187 

Wright City Display Mfg. Co., 183 NLRB 881 (1970) ...................................................................... 171, 199

Wright Mfg. Co., 106 NLRB 1234 (1953).................................................................................................. 275 

WTAR Radio-TV Corp., 168 NLRB 976 (1968)........................................................................................ 186 

WTMJ Inc., 222 NLRB 1111 (1976).......................................................................................................... 187 

WTMJ-AM-FM-TV, 205 NLRB 36 (1973)................................................................................................ 186 

WTOP, Inc., 115 NLRB 758 (1956)........................................................................................................... 255 

WTVJ, Inc., 120 NLRB 1180 (1958).......................................................................................................... 187 

Wurster, Bernardi & Emmons, Inc., 192 NLRB 1049 (1971) ................................................................ 9, 165 

Wyandotte Savings Bank, 245 NLRB 943 (1979)...................................................................................... 165 

Wyman-Gordon Co.; NLRB v., 394 U.S. 759 (1969) ................................................................ 283, 309, 310 

Yale Industries, 324 NLRB 848 (1997) ...................................................................................................... 299 

Yale University, 184 NLRB 860 (1970)....................................................................................... 53, 130, 190 

Yellow Cab of Quincy, 312 NLRB 142 (1993) .......................................................................................... 211 

Yellow Cab, 131 NLRB 239 (1961) ............................................................................................................. 78 

Yellow Taxi of Minneapolis, 262 NLRB 1108 (1982) ............................................................................... 211 

Yellowstone International Mailing, 332 NLRB 386 (2000) ....................................................................... 114 

Yerges Van Liners, 162 NLRB 1259 (1967) .............................................................................................. 329 

Yeshiva University; NLRB v., 444 U.S. 672 (1980) .......................................................... 188, 222, 235, 236 

YKK (USA) Inc., 269 NLRB 82 (1984)..................................................................................................... 303 

Young & Rubicam International, 226 NLRB 1271 (1976)......................................................................... 211

Young Men’s Christian Assn., 286 NLRB 1052 (1987)............................................................................. 328 

Youville Health Care Center, Inc., 326 NLRB 495 (1998)................................................................. 213, 217

Yuengling Brewery Co. of Tampa, 333 NLRB 893 (2001)........................................................................ 201 

Yukon Kuskokwim Health Corp. 

 328 NLRB 761 (1999) ...................................................................................................................... 8, 18 

 340 NLRB 1171 (2004) ........................................................................................................................ 18 

 341 NLRB 1075 (2004) .......................................................................................................................... 8 

Yukon Mfg. Co., 310 NLRB 324 (1993).................................................................................................... 337 
420 TABLE OF CASES DISCUSSED

Yuma Coca-Cola Bottling Co., 339 NLRB 67 (2003)................................................................................ 287 

Zartic, Inc., 315 NLRB 495 (1994)............................................................................................................. 305 

Ziegler, Inc., 333 NLRB 949 (2001)..................................................................................................... 64, 122 

Zim’s Foodliner v. NLRB, 495 F.2d 1131 (7th Cir. 1974) ......................................................................... 295 
 SUBJECT MATTER INDEX 

(References are to Sections of the Outline) 

A 

Abandonment of bargaining unit (see disclaimer) 

Absentee ballots................................................................................................................................................22-110 

Accounting firms, jurisdiction ............................................................................................................................1-312 

Accretion............................................................................................................................................. 11-220, 12-500 

Actors and actresses, eligibility formula............................................................................................. 23-450, 23-460 

Advisory Opinions..............................................................................................................................................1-601 

Administrative Procedure Act................................................................................................................. 1-602, 2-100 

Affiliation changes, union.......................................................................................................... 4-600, 7-240, 11-100 

After-acquired clauses ........................................................................................................................................9-620 

AFL–CIO – no-raid procedures ..........................................................................................................................7-133 

Age....................................................................................................................................................................12-233 

Agency issues: 

 Managerial employees........................................................................................................................19-200 

 Prounion supervisory conduct ............................................................................................................24-328 

 Supervisors ..............................................................................................................................17-500 et seq. 

 Third-party conduct – objections........................................................................................................24-326 

Agreement for consent election ............................................................................................................ 3-700, 23-530 

Agricultural workers .........................................................................................................................................17-100 

Airlines - jurisdiction ..........................................................................................................................................1-402 

Aliens................................................................................................................................................................23-110 

Alter ego ...........................................................................................................................................................14-700 

Amendment to certification, AC petition for ........................................................................................ 4-600, 11-100 

Amendment of petition .......................................................................................................................................9-520 

American Indians................................................................................................................................................1-404 

American Samoa.................................................................................................................................................1-206 

Apartments..........................................................................................................................................................1-303 

Applicants for employment...............................................................................................................................23-100 

Appropriate bargaining unit (see Unit for bargaining) 

Arbitration: 

 Representation issues............................................................................................................................7-131 

 Voter eligibility where discharge under arbitration ............................................................................23-113 

Architects............................................................................................................................................................1-301 

Art museums.......................................................................................................................................................1-304 

Assemblage of employees.................................................................................................................................24-321 

Assumption of contract.......................................................................................................................................9-224 

Authority of Regional Directors (see Table of Contents, Chapter 2) 

Authority, supervisory ..........................................................................................................................17-500, et seq. 

Authorization cards: 

 Showing of interest (see Chapter 5) 

 Supervisory solicitation ......................................................................................................................24-328 

B 

Ballots (see representation elections) 

Banking industry...............................................................................................................................................15-120 

Bars to election (see Table of Contents, Chapters 9 and 10) 

Bargaining history: 

 Contract bar, impact on rival petitions..................................................................................................9-560 

 Multiemployer units ...................................................................................................................14-320, 330 

421
422 SUBJECT MATTER INDEX

 Multi-location units ............................................................................................................................13-900 

 Retail industry ....................................................................................................................................15-243 

Unit determinations ................................................................................................................12-220, et seq. 

Bargaining orders, bar to election.............................................................................................................10-300, 400 

Bargaining unit, see unit for bargaining 

Baseball, jurisdiction...........................................................................................................................................1-322 

Basketball, jurisdiction .......................................................................................................................................1-322 

Blocking charge rule.........................................................................................................................................10-800 

Blood banks, jurisdiction. ...................................................................................................................................1-315 

Board agent, conduct and testimony of, making challenges .................................................. 22-118, 24-410, 24-424 

Bona fide labor organization, under FLSA. ......................................................................................................11-500 

Briefs...................................................................................................................................................................3-860 

Broadcasting industry .........................................................................................................................................1-308 

Building and construction industry 

 Bargaining units..................................................................................................................................15-130 

Prehire agreements, Section 8(f), contract bar....................................................................................9-1000 

Showing of interest...............................................................................................................................5-210 

Voting eligibility formula...................................................................................................................23-420 

Business office clericals, generally.......................................................................................................19-400, et seq. 

 Health care institutions.. ....................................................................................................... 15-170, 19-460 

Buttons and Insignia. ........................................................................................................................................24-444 

C 

Captive audience speeches................................................................................................................................24-325 

Card check 

 Showing of interest (see Chapter 5) 

 Recognition bar. .................................................................................................................................10-500 

Casinos; jurisdiction ...........................................................................................................................................1-313 

 Units appropriate for...........................................................................................................................15-160 

Casual employees .............................................................................................................................................20-140 

Ceding jurisdiction, Board authority...................................................................................................................1-100 

Certification: 

 Amendment of ....................................................................................................................................11-100 

 Clarification of....................................................................................................................................11-200 

 Comity to state agency certification.. .................................................................................................10-120 

 Decertification .............................................................................................................. 4-200, 7-300, et seq. 

 Issuance after election.. ......................................................................................................................22-121 

 Judicial review......................................................................................................................................3-910 

 One-year rule ..............................................................................................................................10-200, 210 

 Revocation of............................................................................................................................ 2-200, 6-130 

Cessation of Operations ...................................................................................................................................10-700. 

Challenge ballots...................................................................................................................................22-111, et seq. 

Charge nurses...................................................................................................................................... 15-170, 17-512 

Charitable institutions, jurisdiction.....................................................................................................................1-319 

Children: 

 Day care facilities, jurisdiction.............................................................................................................1-311 

Church - affiliation/church operated organizations, jurisdiction............................................................. 1-403, 1-503 

Clerical employees: 

 Plant - office ...........................................................................................................................19-400 et seq. 

 Health care institutions.. .....................................................................................................................19-460 

Collective bargaining: 

 History, see bargaining history 

 Unit, see unit for bargaining 

Collective-bargaining agreements: 

 Contract bar (see Table of Contents, Chapter 9) 
SUBJECT MATTER INDEX 423

 Prehire agreements, Section 8(f).........................................................................................................9-1000 

 Premature extension doctrine ...............................................................................................................9-580 

 Racial discrimination in........................................................................................................................9-800 

 Unlawful provisions: 

Union security ........................................................................................................................9-700 

Unlawful under Section 8(e) ..................................................................................................9-900 

Colleges and universities: 

 Bargaining units..................................................................................................................................15-260 

 Faculty ................................................................................................................................................15-261 

 Other unit issues .................................................................................................................................15-262 

 Jurisdiction ...........................................................................................................................................1-307 

 Managerial employees, faculty...........................................................................................................19-200 

 Religious affiliation .................................................................................................................. 1-403, 1-503 

 Supervisory issues. .............................................................................................................................17-511 

Comity to State elections ..................................................................................................................................10-120 

Community of Interest .. ..................................................................................................................................12-210. 

Condominiums, jurisdiction................................................................................................................................1-309 

Confidential employees ............................................................................................................................19-100, 110 

Conflicts of interest 

 Union as business rival.........................................................................................................................6-350 

 Union as employer................................................................................................................................6-360 

Consent election agreements, generally..............................................................................................................3-700 

 Construing stipulation of parties.........................................................................................................23-530 

 Regional Director authority as to (see Chapter 2) 

Construction industry, see Building and Construction Industry 

Contract bar doctrine (see Table of Contents, Chapter 9) 

Contracting Units/Cessation of Operations.......................................................................................................10-700 

Country Clubs, jurisdiction.................................................................................................................................1-321 

Courts: 

 NLRB final orders, review and enforcement............................................................................3-900, et seq. 

Craft units (see 12-120 and Table of Contents, Chapter 16) 

Credit unions, jurisdiction...................................................................................................................................1-310 

Cultural Centers ..................................................................................................................................................1-304 

D 

Dates: 

of election.. .........................................................................................................................................22-101 

for filing petition............................................................................................................ 3-100, 9-510, et seq 

for computing showing of interest........................................................................................................5-800 

for eligibility of voters............................................................................................................23-200, et seq. 

Day Care centers, jurisdiction.............................................................................................................................1-311 

Deauthorization of union security authority .......................................................................................................4-400 

Decertification elections. ............................................................................................................ 4-200, 7-300, et seq. 

Declaratory orders...............................................................................................................................................1-602 

Deferral 

to arbitration .............................................................................................................................7-130, et seq. 

to No-Raid agreements .........................................................................................................................7-133 

Defunct unions....................................................................................................................................................9-420 

Delay and turnover - effect on petition ...............................................................................................................7-400 

Delegation to Regional Directors........................................................................................................................2-100 

De Minimis conduct, objections. ......................................................................................................................24-311 

Department chairpersons. .................................................................................................................................17-511 

Direction of election, generally...............................................................................................................3-880, et seq. 

 Authority of Regional Directors to issue - See Chapter 2 

Disability - Sick leave.......................................................................................................................................23-114 
424 SUBJECT MATTER INDEX

Disaffiliation .......................................................................................................................................................7-240 

Discipline and discharge: 

Effect on right to vote.................................................................................................................23-113, 300 

Disclaimer of interest - See Table of Contents, Chapter 8 and 9-420 

Discrimination: 

 Allegations of/by petitioning union.. ....................................................................................................6-130 

 Appeals to racial prejudice as objection .............................................................................................24-323 

 Discrimination in contracts...................................................................................................................9-800 

 Race, unit considerations....................................................................................................................12-235 

Dissemination ...................................................................................................................................................24-314 

District of Columbia, jurisdiction .......................................................................................................................1-205 

Doctors: 

 Interns and residents, eligibility of.. ...................................................................................................20-400 

 Units for bargaining............................................................................................................................15-170 

Dog racing, jurisdiction ......................................................................................................................................1-502 

Domestic servants .............................................................................................................................................17-200 

Dual function employees.. ................................................................................................................................20-500 

Dues and initiation fees: 

 Unlawful contractual provisions...........................................................................................................9-700 

 Waiver of, as objectionable conduct...................................................................................................24-327 

E 

Education institutions, see Colleges and Universities: 

 Religious affiliation of, jurisdiction..............................................................................................1-403, 503 

Section 8(a)(4), jurisdiction. ...............................................................................................................................1-211 

Election campaigns (see Representation Elections) 

Election of representatives (see Representation Elections 

Election petitions (see Representation Petitions) 

Electioneering.. .........................................................................................................................................24-440, 442 

Eligibility of voters (see Table of Contents, Chapter 23) 

Employee Benefits: 

 Community of interest factor..............................................................................................................12-232 

 Filing lawsuit on behalf of employees as benefit................................................................................24-446 

 Misleading information in election campaigns...................................................................................24-322 

 Preelection promise or grant...............................................................................................................24-320 

 Supervisory status factor ....................................................................................................................17-508 

Employees: 

 Agricultural.........................................................................................................................................17-100 

 Casual. ................................................................................................................................................20-140 

 Clients (Rehabilitation).......................................................................................................................20-630 

 College faculty (see Colleges and Universities) 

 Confidential ................................................................................................................................19-100, 110 

 Domestic servants...............................................................................................................................17-200 

 Dual-function......................................................................................................................................20-500 

 Duty to furnish names of (see Excelsior List) 

 Family members ................................................................................................................... 17-300, 19-300 

 Former employees. .................................................................................................................23-112, et seq. 

 Government employees. ...............................................................................................................1-314, 401 

 Guards .....................................................................................................................................18-200 et seq. 

 Health care (see Health Care Institutions). 

 Independent Contractors (see Independent contractors) 

 Laid off.. .............................................................................................................................................23-115 

 Managerial..........................................................................................................................................19-200 

 Medical residents and interns .............................................................................................................20-400 

 New hires............................................................................................................................................23-111 
SUBJECT MATTER INDEX 425

 Part-time .................................................................................................................................20-100, et seq. 

 Prisoners and work release inmates....................................................................................................23-125 

 Probationary.. .....................................................................................................................................20-610 

 Professional .............................................................................................................. 18-100, et seq., 21-400 

 Residual, units of ................................................................................................................................12-400 

 Seasonal..............................................................................................................................................20-300 

 Sick leave............................................................................................................................................23-114 

 Strikers’ and Replacements ................................................................................................................23-120 

 Students ..............................................................................................................................................20-400 

 Supervisors (see Supervisors) 

 Technical ............................................................................................................................................19-500 

 Temporary ..........................................................................................................................................20-200 

 Trainees ..............................................................................................................................................20-620 

Employer associations: 

 Jurisdiction..........................................................................................................................................1-208 

 Units for bargaining (see Table of Contents Chapter 14) 

Employer petitions........................................................................................................... 4,300, 5-630, 7-200, et seq. 

Employers: 

 Independent contractors as .....................................................................................................17-400, et seq. 

 Joint employers (see Chapter 14) 

 Labor organizations as.............................................................................................................. 1-207, 6-360 

 Multiemployer groups (see Chapter 14) 

 Single-employer status (see Chapter 14) 

 Statutory definition (see Chapter 14) 

Employment applicants.....................................................................................................................................23-100 

Entertainment industry, jurisdiction standard. ............................................................................................1-302, 305 

Eligibility formulas.............................................................................................................................23-460 

Evidence, Rules of.. ................................................................................................................... 3-800,et seq., 22-118 

 Submissions, of in objections cases....................................................................................................24-130 

Excelsior list ........................................................................................................................... 23-500, et seq., 24-324 

Expanding unit..................................................................................................................................................10-600 

Expedited elections .........................................................................................................4-700, 5-610, 7-150, 22-122 

Extent of Organization ........................................................................................................ 12-140, 12-300, 13-1000 

F 

Faculty (see Colleges and Universities) 

Fair Labor Standards Act..................................................................................................................................11-500 

False allegations in election campaigns .............................................................................................. 24-322, 24-441 

Family relationships: 

 Bargaining unit, exclusion from ........................................................................................... 17-300, 19-300 

Federal Sector: 

 Government contractors .......................................................................................................................1-314 

 Postal Service. ......................................................................................................................................1-210 

 Federal funds (jurisdiction)...................................................................................................................1-204 

Filing lawsuits as an objection..........................................................................................................................24-446 

Final offer elections. .........................................................................................................................................11-400 

Firefighters........................................................................................................................................................18-220 

First amendment: 

 Free speech, Section 8(c )...................................................................................................................24-200 

 NLRB jurisdiction, religious organizations. .................................................................................1-403, 503 

Foreign employers, jurisdiction. .........................................................................................................................1-501 

Foreign language voters and witnesses................................................................................................. 3-840, 24-428 

Forged documents............................................................................................................................... 24-322, 24-441 

Free Speech (see First Amendment) 

Funeral homes, units of.....................................................................................................................................15-150 
426 SUBJECT MATTER INDEX

G 

Gambling/gaming, jurisdiction ...........................................................................................................................1-313 

 Units of gaming employees ................................................................................................................15-160 

Gifts, as objections............................................................................................................................................24-443 

Good-faith doubt as to union majority.....................................................................................................7-200 et seq. 

Government: 

 Contractors. ..........................................................................................................................................1-314 

 Political subdivisions............................................................................................................................1-401 

Graduate students................................................................................................................................ 15-261, 20-400 

Grievances ..........................................................................................................................................................7-131 

Guards: 

 Definition of.. .....................................................................................................................................18-220 

 Unions of ............................................................................................................................................18-230 

 Units of ................................................................................................................................. 12-130, 18-240 

H 

Handicapped workers........................................................................................................................................20-630 

Head nurses.......................................................................................................................................................17-512 

Health Care Institutions: 

 Bargaining units..................................................................................................................................15-170 

 Business office clericals. ...................................................................................................... 15-170, 19-460 

 Drivers ................................................................................................................................................15-146 

 Guards.. ..............................................................................................................................................15-170 

 Maintenance employees......................................................................................................................16-300 

 Medical residents and interns .............................................................................................................20-400 

 NLRB jurisdiction. ...............................................................................................................................1-315 

 Other professionals.............................................................................................................................15-170 

 Physicians...........................................................................................................................................15-170 

 Psychiatric institutions........................................................................................................................15-170 

 Registered nurses.................................................................................................................. 15-170, 17-512 

 Supervisors. ........................................................................................................................................17-512 

 Technical employees.. ........................................................................................................................19-510 

Hearings: 

 Preelection ............................................................................................................................................3-800 

 Post-election.. .....................................................................................................................................22-118 

History (see Bargaining History) 

Home visits .......................................................................................................................................................24-321 

Horse racing........................................................................................................................................................1-502 

Hospitals (see Health Care Institutions) 

Hotels 

 Jurisdiction ...........................................................................................................................................1-316 

 Bargaining units..................................................................................................................................15-180 

Housestaff (Medical Residents and Interns) .....................................................................................................20-400 

I 

Impasse in bargaining, withdrawal from multiemployer bargaining relationship.............................................14-430

Independent Contractors.. ......................................................................................................................17-400 et seq. 

Indian Tribes.......................................................................................................................................................1-404 

Intervention.........................................................................................................................................................3-830 

Insurance industry, units for bargaining............................................................................................................15-190 

Investigation of objections................................................................................................................................22-117 

Isolated conduct, objections..............................................................................................................................24-311 
SUBJECT MATTER INDEX 427

J 

Job classification as unit factor .........................................................................................................................12-530 

Joint employers.................................................................................................................................................14-600 

Jurisdiction of courts/judicial review (see Courts) 

Jurisdiction of NLRB (see Table of Contents, Chapter 1) 

L 

Labor Management Reporting and Disclosure Act.............................................................................................6-120 

Labor organizations (see Unions) 

“Laboratory conditions”....................................................................................................................................24-320 

Laid-off employees, eligibility of.... .................................................................................................................23-115 

Last Offer election.. ..........................................................................................................................................11-400 

Law firms: 

 Jurisdiction.. .........................................................................................................................................1-317 

 Units ...................................................................................................................................................15-200 

Lawsuits............................................................................................................................................................24-446 

Leave; voter eligibility......................................................................................................................................23-114 

Libraries, jurisdiction..........................................................................................................................................1-304 

Legal clinics (see law firms) 

Licensed practical nurses (LPNs) ....................................................................................................... 15-170, 17-512 

Location of election. .........................................................................................................................................22-105 

Locked out employees, eligibility of.................................................................................................................23-120 

Longshore, eligibility formula. .........................................................................................................................23-410 

Ludlow Exception.. ...........................................................................................................................................10-222 

Lufkin Rule........................................................................................................................................................24-500 

M 

Mail ballots.. ....................................................................................................................................... 22-110, 24-427 

Maintenance employees, generally.. .................................................................................................................16-130 

 Skilled maintenance, health care.. ......................................................................................................16-300 

Managerial employees ......................................................................................................................................19-200 

Maritime units...................................................................................................................................................15-280 

Medical schools ..................................................................................................................................................1-315 

Members only contracts......................................................................................................................................9-160 

Mental retardation, institutions for....................................................................................................................15-170 

Mergers.............................................................................................................................................................11-220 

Milchem Rule....................................................................................................................................................24-442 

Minority unions - Prehire Agreements..............................................................................................................9-1000 

Misrepresentation of information........................................................................................................ 24-322, 24-441 

Motels (see Hotels) 

Multiemployer bargaining units (see Table of Contents, Chapter 14) 

Multilocation employer units (see Table of Contents, Chapter 13) 

Museums, jurisdiction.........................................................................................................................................1-304 

Musicians (see Entertainment Industry) 

N 

Name and address lists (see Excelsior List) 

Narrowness of Election Results ........................................................................................................................24-313 

National Defense.................................................................................................................................................1-204 

National Emergency Disputes Election ............................................................................................................11-400 

National Mediation Board...................................................................................................................................1-401 
428 SUBJECT MATTER INDEX

National Security ................................................................................................................................................1-504 

Neutrality agreements .........................................................................................................................................9-620 

Newspapers: 

Jurisdiction. ..........................................................................................................................................1-318 

Bargaining units..................................................................................................................................15-220 

Independent contractor issues.............................................................................................................17-420 

Nonemployers, employees of............................................................................................................................17-700 

Nonprofit organizations, jurisdiction ..................................................................................................................1-319 

Nonretail enterprises, jurisdiction.. .....................................................................................................................1-201 

No-Raid agreements............................................................................................................................................8-100 

Notice: 

 of election.. ........................................................................................................................... 22-106, 24-423 

 of election set aside (Lufkin)...............................................................................................................24-500 

of union affiliation vote ......................................................................................................................11-100 

of withdrawal from multiemployer bargaining ..................................................................................14-410 

Nurses. ................................................................................................................................................ 15-170, 17-512 

Nursing homes: 

Jurisdiction... ........................................................................................................................................1-315 

Bargaining units..................................................................................................................................15-170 

O 

Objections to elections.........................................................................22-116, et seq., Table of Contents Chapter 24 

Observers of elections......................................................................................................................... 22-108, 24-424 

Off duty employees, payment for voting.. ........................................................................................................24-430 

Office buildings, jurisdiction ..............................................................................................................................1-320 

Office clericals (see Clerical Employees) 

Organizational and recognitional picketing (see Expedited Elections) 

Owner-operators (Independent contractor issues): 

 taxicab drivers ....................................................................................................................................17-430 

 truckdrivers.........................................................................................................................................17-410 

P 

Part-time employees..............................................................................................................................20-100, et seq. 

Part-time supervisors ........................................................................................................................................17-504 

Pensions and retirement: 

 retirees, “employee” status. ................................................................................................................23-116 

Physicians (see Doctors) 

Picketing (see Expedited Elections) 

Plant guards (see Guards) 

Political subdivisions ..........................................................................................................................................1-401 

Postal Service......................................................................................................................................................1-210 

Posting notices (see Notice) 

Private agreements..............................................................................................................................................9-620 

Probationary employees....................................................................................................................................20-610 

Professional employees 

 health care institutions........................................................................................................................15-170 

 bargaining unit....................................................................................................................................18-100 

 definition.............................................................................................................................................18-120 

Professional sports, jurisdiction ..........................................................................................................................1-322 

Public sector (see Government) 

Public utilities: 

 Jurisdiction. ..........................................................................................................................................1-323 

 Bargaining units..................................................................................................................................15-230 

Puerto Rico, jurisdiction.. ...................................................................................................................................1-206 
SUBJECT MATTER INDEX 429

Q 

Quality control employees ................................................................................................................................19-600 

Quantitative Sufficiency - Showing of Interest...................................................................................................5-600 

Question concerning representation (QCR) (see Table of Contents Chapter 7) 

Quits..................................................................................................................................................................23-112 

R 

Racial discrimination (see Discrimination) 

Radio stations: 

 Jurisdiction ...........................................................................................................................................1-308 

 Bargaining unit. ..................................................................................................................................15-250 

Railway Labor Act (RLA) ..................................................................................................................................1-402 

Raffles...............................................................................................................................................................24-443 

RC petitions.. ......................................................................................................................................................4-100 

RD petitions (see Decertification Elections) 

RM Petitions (see Employer Petitions) 

Reasonable period of time ................................................................................................................ 10-500, 10-1000 

Recognition Bar ................................................................................................................................................10-500 

Registered nurses (see Nurses) 

Religiously oriented organizations..............................................................................................................1-403, 503 

Relocation of operations (Contract Bar) .............................................................................................................9-223 

Replacements for strikers, eligibility ................................................................................................................23-120 

Representation elections 

 Affiliation/merger elections................................................................................................................11-100 

 Amendment to Certification.. .............................................................................................................11-100 

 Ballot box, integrity of........................................................................................................................24-410 

 Ballots 

 count of.................................................................................................................................24-429 

challenge (see Challenge Ballots) 

 mail ballots (see Mail Ballots) 

reproduction of. ....................................................................................................................24-444 

secrecy of .............................................................................................................................24-426 

Certification of representative/results (see Certification) 

Consent agreements (see Consent Agreements) 

Contract bar (see Contract-bar) 

Craft-severance elections (see Craft Units) 

Date (see Date) 

Deauthorization of union-security authority (see Deauthorization) 

Direction of Election. ...........................................................................................................................3-880 

 Expedited elections (see Expedited Election) 

 Hearings (see Hearings) 

 “Laboratory conditions” standards (see Laboratory Conditions) 

 NLRB agents: 

 conduct of.............................................................................................................................24-410 

 testimony of..........................................................................................................................22-118 

 Notice of election (see Notice) 

 Objections to election (see Objections to Election) 

 Observers (see Observers) 

 One-year rule. .............................................................................................................................10-200, 210 

 Place of election..................................................................................................................................22-105 

 Question concerning representation (QCR) - (see Questions 

 Concerning Representation) 

Recognitional picketing (see Expedited Elections) 
430 SUBJECT MATTER INDEX

Rerun election.....................................................................................................................................23-230 

Runoff election ...................................................................................................................................23-220 

 Time of election (see Date) 

 Unfair labor practice charge - (see Unfair Labor Practice) 

 Voluntary recognition bar (see Recognition Bar) 

 Voter eligibility (see Table of Contents Chapter 23) 

Representation petitions 

 Among fluctuating work force..................................................................................10,600, 10-700, 12-226 

 Clarification of units...............................................................................................................11-200, et seq. 

 Contract bar (see Contract-bar doctrine) 

 Employers (see Employer Petitions) 

 Filing requirements: 

 Petition ........................................................................................................... 3-100, 9-510, et seq. 

 Joint union petitions.. .............................................................................................................6-370 

 Review of dismissed petition.. ...............................................................................................3-900 

Expedited elections .........................................................................................................4-700, 5-610, 7-150, 22-122 

Representative complement. ............................................................................................................... 10-600, 10-700 

Rerun elections. ................................................................................................................................................23-230 

Residents and interns (see Doctors) 

Residual employees/units..................................................................................................................................12-400 

Resignation from employment (see Quits) 

Restaurants, jurisdiction......................................................................................................................................1-324 

Retail trade, jurisdiction......................................................................................................................................1-202 

RM petitions (see Employer Petitions) 

Runoff elections................................................................................................................................................23-220 

S 

Schism in bargaining representative .......................................................................................................9-410, et seq. 

Schools (see Colleges and universities) 

Seasonal employees (see Employees) 

Servants (see Employees) 

Service and maintenance employees (see Maintenance Employees) 

Severance elections (see Craft Units) 

Sex, unit factor..................................................................................................................................................12-234 

Sex discrimination (see Discrimination) 

Shopping centers, jurisdiction.............................................................................................................................1-325 

Sick leave..........................................................................................................................................................23-114 

Single-plant units .............................................................................................................................................12-100 

Social Security, eligibility of annuitants... ........................................................................................................23-116 

Social service organizations, jurisdiction............................................................................................................1-326 

Speech right - Section 8(c)................................................................................................................................24-200 

Sports, jurisdiction ..............................................................................................................................................1-322 

State governments and political subdivisions (see Government) 

State elections, comity to ..................................................................................................................................10-120 

Stipulated units (see Consent Election Agreements) 

Stipulation for Certification of Consent Election (see Consent Election Agreements) 

Stipulation, Construing .....................................................................................................................................23-530 

Stock ownership................................................................................................................................................19-210 

Strikers and Replacements (see Employees) 

Students (see Employees) 

Subpoenas.. ........................................................................................................................................... 1-603, 22-118 

Substantial and Representative Complement...................................................................................... 10-600, 10-700 

Successors...........................................................................................................................................................9-224 

Summer employees (see Employees, Students) 
SUBJECT MATTER INDEX 431

Supervisors 

 agency law...............................................................................................................................17-500 et seq. 

 effect on organization's status as “labor organization”.. .......................................................................6-330 

 educational institutions .......................................................................................................................17-511 

 as election observers...........................................................................................................................24-424 

 health care institutions........................................................................................................................17-512 

 part time ..............................................................................................................................................17-504 

 promotion to position of .....................................................................................................................17-506 

 substitution for....................................................................................................................................17-505 

Symphony orchestras, jurisdiction......................................................................................................................1-328 

T 

Taxicab companies, jurisdiction .........................................................................................................................1-329 

Taxicab drivers .................................................................................................................................................17-430 

Teachers (see Colleges and universities) 

Technical employees.................................................................................................................................19-500, 510 

Television stations (see Radio) 

Temporary employees (see Employees) 

Territories, NLRB jurisdiction over....................................................................................................................1-206 

Third-party preelection conduct........................................................................................................................24-326 

Time of election (see Date) 

Timing of objectionable conduct ......................................................................................................................24-110 

Trainees.............................................................................................................................................................17-506 

Transit systems, jurisdiction. ..............................................................................................................................1-330 

Tribal enterprises ................................................................................................................................................1-404 

Tropicana Rule ...................................................................................................................................................1-603 

Trucking industry: 

 Jurisdiction ...........................................................................................................................................1-203 

 Bargaining units......................................................................................................... 15-140 et seq., 17-410 

Trusteeships ........................................................................................................................................................6-320 

“24” hour “rule,” captive audience speeches ....................................................................................................24-325 

U 

UC petitions .......................................................................................................................................... 4-500, 11-200 

UD petitions (see Deauthorization) 

Unfair labor practice 

 pendency of charge (blocking charge)................................................................................................10-800 

 representation election, effect on........................................................................................................24-310 

 litigation in representation cases............................................................................................. 3-920, 24-312 

 settlement of.. .....................................................................................................................................10-300 

Union security/Union shop 

 contract bar ...............................................................................................................................9-700, et seq. 

 deauthorization (see Deauthorization) 

Unions 

 bona fide .............................................................................................................................................11-500 

 conflict of interest/business rival.. ........................................................................................................6-350 

 constitution and bylaws of....................................................................................................................6-310 

 discrimination by (see Discrimination) 

 as employers ............................................................................................................................. 1-207, 6-360 

 labor organization, definition....................................................................................................6-100, et seq. 

Unit for bargaining 

 Accretion (see Accretion) 

 appropriate unit (see Table of Contents, Chapters 12 and 15) 

 bargaining history (see Bargaining History) 
432 SUBJECT MATTER INDEX

 clarification of (see Certification, Clarification of) 

 community of interest factor...............................................................................................................12-210 

 changes in ... ............................................................................................................ 10-600, 10-700, 12-226 

 confidential employees (see Confidential) 

 construction industry (see Building and Construction Industry) 

 continuity of, representative ...............................................................................................................11-100 

 contracting units. ................................................................................................................................10-700 

 craft (see Table of Contents, Chapter 16 

 desires of employees...........................................................................................................................12-239 

 expanding units...................................................................................................................................10-600 

 extent of organization (see Extent of Organization) 

 fluctuations in size................................................................................................... 10-600, 10-700, 12-226 

 health care industry (see Health care institutions) 

 insurance industry...............................................................................................................................15-190 

 merger or consolidation of units .........................................................................................................11-220 

 multiemployer (see Table of Contents, Chapter 14) 

 multiplant units (see Table of Contents, Chapter 13) 

 professional employees (see Employees) 

 residual employees (see Employees) 

severance (see Table of Contents, Chapter 16) 

 substantial and representative complement.. ........................................................................ 10-600, 10-700 

 single-plant units.................................................................................................................................12-100 

 supervisor, exclusion from (see Supervisors) 

 technical employees (see Employees) 

 universities (see Colleges and universities) 

 warehouse units ..................................................................................................................................15-270 

V 

Videotaping of concerted activity.....................................................................................................................24-329 

Violence, effect of on Board certification............................................................................................... 3-930, 6-380 

Voting (see Representation elections) 

 pooling of votes.. ................................................................................................................................21-600 

Voting lists................................................................................................................. 23-500, et seq., 24-324, 24-424 

W 

Wages 

 increase during election campaign......................................................................................................24-320 

 misleading information during election campaigns............................................................................24-322 

Weather affecting election ................................................................................................................................24-425 

Withdrawal 

 from multiemployer bargaining relationship ......................................................................................14-400 

Work force, fluctuating............................................................................................................ 9-210, 10-600, 10-700