fits between its two plants; making changes at both plants at about the same time. One located at Cleveland had collective bargaining and the other at Chicago did not. The Board ruled that the increases were not intended, or reasonably calculated, to interfere with the employees' freedom of choice in the election held at the Chicago plant because "the announcement of the wage increases and insurance benefits to the Chicago employees followed almost immediately after the formal conclusion of collective-bargaining negotiations at the Cleveland plant, at a time when it had been customary to grant such benefits, and when the Chicago employees could, on the basis of past practice, have reasonably expected that adjustments in the terms and conditions of their employment would be made." In this case, the Board explicitly declined to hold that the granting of increases in wages or other benefits while an election petition is pending constitutes grounds per se for setting an election aside.

Similarly, in another case, the Board found no undue interference where an employer granted a general wage increase at approximately the same time that it had been giving such increases for 5 years, even though the increase came less than 2 weeks before the election.78

However, where an employer's prior practice had been to grant only individual merit increases, the Board set aside the election because of the announcement of a general wage increase immediately before the election.79

In certain cases, however, it has been held that the union had waived its right to protest an election on the basis of an increase made shortly before an election. The Board found such waiver where a wage increase was granted more than 2 months prior to the election and the union neither protested the holding of the election nor filed unfair labor practice charges.80 In another case in which the waiver theory was applied, the Board said

The wage increase was announced 2 weeks before the Board's decision issued, and more than a month before the election. It is clear that the Petitioner was aware of the increase; it characterized it as illegal, and, as part of the election campaign, contended that the increase was not enough to meet the rising cost of living. Although it accused the Employer of impropriety, it did not throughout this period protest that the wage increase made a fair election impossible. Nor did it file any unfair labor practice charges based upon the announcement. Instead, it took its chances, preferring to await the result of the election. Without passing upon the question as to whether the Employer's activity here objected to might, in other circumstances, be deemed to have constituted interference with the election, we conclude on all the facts here, and more particularly because of the

Elener Grocery Co., 93 NLRB 1614.

"Direct Laboratories, Inc., 94 NLRB No. 75.

"Cherry and Webb Co., Providence, 94 NLRB No. 105.

Petitioner's past acquiescence, that there is no warrant in this case for setting aside the election.81 (Citing cases.)

F. The Union-Shop Referendum

Before the amendment of 1951, a referendum by secret ballot under section 9 (e) of the act was necessary for employees to authorize their bargaining agent to enter into the type of union-security agreement permissible under the proviso to section 8 (a) (3). This type of referendum was abolished by the 1951 amendment after the close of the fiscal year.

However, section 9 (e) still provides for a referendum among employees who have indicated a desire to revoke their bargaining agent's authority to make a union-shop agreement. This type of referendum, which is known as a deauthorization poll, may be obtained at appropriate times upon a showing that 30 percent of the employees have indicated a desire to revoke the authorization.2

The following discussion of cases arising under section 9 (e) during the 1951 fiscal year is based upon the provisions of the section before amendment.

Before amendment, section 9 (e) of the Act required that a union seeking a union-security referendum first had to make a showing that at least 30 percent of the employees involved had indicated a desire to grant it such an authorization. In addition, the section precluded the Board from conducting a union-security referendum if a question of representation existed. These were the only statutory prerequisites for the holding of a union-shop authorization poll.3

To bar a union-shop poll, the question concerning representation had to be validly raised. In a complaint proceeding, the Board dealt with the problem of "good faith" on the part of the employer in raising a question concerning representation. The employer failed to avail itself fully of Board processes to contest the validity of the unionshop authorization proceeding. The Board said that it "has entertained and administratively sustained objections to a union authoriza

81 Denton Sleeping Garment Mills, Inc., 93 NLRB 329 (Board Member Murdock dissenting). Subse quently, in a refusal-to-bargain case, a majority of the Board had occasion to point out that the "waiver" principle applies only where a bona fide question concerning representation exists; if no representation ques tion was in fact present, an election will be set aside, regardless of the fact that the petitioning union participated in the election with knowledge of improper preelection conduct of the employer. M. H. Davidson Co., 94 NLRB No. 34.

1 Public Law No. 189, approved by the President October 22, 1951. Under this amendment, a union must first obtain from the Board a notice of compliance with the non-Communist affidavit and filing requirements of the act [sec. 9 (f), (g), and (h)] in order to make a valid union-security agreement. Moreover, the agree ment still must conform to the provisions of 8 (a) (3).

See sec. 9 (e), Text of Amended Act, appendix C.

3 Sec. 9 (e) of the act before amendment; Kay and Burbank Co., 92 NLRB 224.

• United States Gypsum Co., 90 NLRB 964.

tion election, filed by an employer, which alleged that a question of representation existed at the time the union authorization election was conducted."5 However, in the instant case, the employer did not file such objections, or request a revocation of the certification of results of the election, or move to dismiss the proceedings. Further, the employer did not participate in the proceeding even for the limited purpose of challenging the ballots of employees who, the employer asserted, were not properly included in the unit. This failure of the employer to contest the validity of the union-authorization election by the available processes contributed to the Board's conclusion that the employer did not, in good faith, raise a question concerning representation.

In addition, a union-shop referendum proceeding was generally governed by the rules which the Board applies to certification and decertification election proceedings under section 9 (c), insofar as identical or related matters are concerned. Thus, the Board held that, in the absence of extraordinary circumstances, a unit appropriate for a representation election is also appropriate for a union-shop referendum.7

In another case, the Board set aside a union-shop authorization poll where the employer, through notice to its employees, rendered "improbable a free and untrammeled choice" on the part of the employees in making their decision as to whether they wished membership in a union to be a condition of continued employment. In this case, the employer published a notice stating categorically that employer "will not sign or enter into any agreement, oral or written, with a Union requiring [my employees] to join the Union." The Board said that the notice "could very well have been the cause of the small number of votes cast."

G. The 12-Month Limitation

The Board's administrative judgment that a certification should not be disturbed for at least a year is paralleled by section 9 (c) (3) which specifically provides that—

No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.

'Board cited American Products Co., 18 UA-1104, January 31, 1949 (not printed).

In General Motors Corp., 92 NLRB 1752, for instance, the Board followed an earlier case (Lima Hamilton Corp., 87 NLRB 65; Fifteenth Annual Report, p. 86) and determined that the mere possession of contractual seniority rights does not entitle a laid-off employee to vote in a union-security poll. The voting eligibility of such employees depends rather on whether they have a reasonable expectation of reemployment in the near future.

'See Giant Food Shopping Center, Inc., 77 NLRB 791, and Kingsley Stamping Machine Co., 93 NLRB 1266, for such extraordinary circumstances.

F. W. Woolworth Co., 93 NLRB 992.

In construing this section, the Board has held that either a certification or decertification will bar another representation election during the next 12 months, but the section does not preclude the holding of both a representation election and union-shop referendum ' in the same unit during the same period. However, the Board has

ruled that this section does not limit the Board's discretion as to when a direction of election may be issued, so long as the election itself is not to be held sooner than the statute allows. The 12-month period is computed from the date of the conclusion of the balloting in the last valid representation election.3

Since the statute provides that any valid election bars a second election during the same 12-month period, the outcome of the election is immaterial and a decertification election resulting in a tie vote is a bar.

The question of whether an election is barred arises at times where a craft union seeks to represent a craft group which during the preceeding 12 months participated in an election either as a separate group or as part of a larger group. In one such case, it was held that a union which had petitioned for, and had lost, an election in a craft unit could not intervene less than 12 months later in a representation proceeding involving a different unit for the purpose of getting a new election in the same craft unit. In another case, however, an election in a craft unit was held not to be barred by an election held 5 months earlier in a plant-wide unit including the craft, because of the following circumstances: The craft petition was filed after the plant-wide election was directed but before it was held; the ballots of the craft group in that election were impounded and did not affect the results of the election which the union lost; and certification of the results of the plant-wide election was to be withheld until after the separate election in the craft group.

In one case, during the past year, the Board had occasion to hold that section 9 (c) (3) limited only the number of elections which may be held, but not the number of petitions which may be filed as to the same bargaining unit within a 12-month period." In the same case, the Board rejected the contention that repeated petitions during a short period impose an undue burden on the employer.

1 The union-shop referendum, except to revoke a bargaining agent's authority to make a union-shop agrement, was abolished by Public Law No. 189, signed by the President October 22, 1951. See sec. 9 (e), Text of Amended Act, appendix C.

C. K. Williams & Co., 20-RC-1102 (not printed).

Fifteenth Annual Report, pp. 75-76.

4 C. K. Williams & Co., cited above.

Westinghouse Air Brake Co., 6-RC-534 (not printed).

• Colorado Builders Supply Co., 90 NLRB 2002.

'Thalhimer Bros., Inc., 93 NLRB 726.

The Board also was confronted again with the contention that a present election was barred by a previous election conducted by a State board less than 12 months earlier. The Board pointed out that the prohibition of section 9 (c) (3) against more than one representation election per year in the same unit is directed only against elections conducted by the National Labor Relations Board; it is not concerned with elections conducted by other agencies or persons.

Waterways Engineering Corp., 93 NLRB 794.