This proviso provides that:

any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.

EMPLOYEE ELECTIONS

The Act provides for three general types of elections among employees:

1. Representation elections to determine the employees' choice of a collective-bargaining agent. These are held upon petition of an employer, employees, or a labor organization.

2. Decertification elections to determine whether or not the employees wish to withdraw the bargaining authority of a labor organization which they previously had designated as their representative. These are held upon petition of employees or labor organizations.

3. Deauthorization polls to determine whether or not the employees wish to revoke the authority of their bargaining representative to make a union-shop contract. These elections are held on petition of employees.

CONDUCT OF ELECTIONS

Elections may be held by agreement between the employer and the labor organization or individual claiming to represent the employees. Under such an agreement, the election is authorized and conducted by the NLRB regional director. If the parties are unable to reach an agreement, the Board has authority to order an election after a hearing.

The amended Act also authorizes the Board to delegate to its regional director its powers in contested cases to determine the appropriate bargaining unit, direct an election, and certify the results. The Act further provides that, upon request of an interested party, the Board may review any action of a regional director under such delegated powers, but Board review shall not operate to stay the regional director's action unless the Board specifically so orders.

Section 8(b) (7) (C) provides that, when a petition for an election is filed as a result of recognition picketing by an uncertified union, "the Board shall forthwith, without regard to the provisions of section 9(c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof."

In petitioning for an election, a labor organization or individual seeking representation rights must show that at least 30 percent of the employees involved have indicated their support of such representation. This may be shown by authorization cards, petitions, or other means. But such a showing of interest is not required for an election under the recognition picketing provision of section 8(b)(7). An individual or group of employees petitioning to decertify an incumbent bargaining agent or deauthorize a union shop must also

make a showing that 30 percent or more appear to favor decertification or deauthorization.

An employer, however, has only to show that some labor organization has made a claim to represent his employees in order to obtain a representative election.

In contested election cases, the evidence and arguments of the parties are recorded at a public hearing conducted by an agent of the Board. The Board then makes its decision upon the basis of this record.

Only one valid representation election, whether for certification or decertification, may be held in a bargaining unit within any 12-month period.

Employees engaged in an economic strike (as distinguished from a strike caused by unfair labor practices) "who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this Act in any election conducted within twelve months after the commencement of the strike." Economic strikers who have been replaced by bona fide permanent employees are not entitled to reinstatement.

UNIT OF EMPLOYEES APPROPRIATE FOR BARGAINING

The Board has the duty under the Act to determine what group of employees constitutes a unit appropriate for bargaining with their employer.

Such a unit may extend to one or more employers, or it may include one or more plants of the same employer, or it may be a subdivision of a plantwide unit such as a unit of skilled craftsmen, professional employees, plant guards, or clerical employees.

In determining whether or not a particular group of employees constitutes a proper unit for bargaining, the Board considers particularly the following factors:

1. Similarity of skills, wages, hours, and other working conditions among the employees involved.

2. Any history of collective bargaining.

3. Desires of the employees.

In addition, the Board may consider the extent to which the employees are organized, but the Act forbids the Board from making this a controlling factor.

Mutuality of interests among the employees is a prime determinant of the appropriate grouping of employees for bargaining. This is evidenced by (1) the similarity of their skills and working conditions, and (2) the unit grouping that the employees and the employer have followed in past bargaining over a substantial period, unless such units were clearly contrary to the Act or to Board rules and policies. This latter factor is known as "history of bargaining."

The Board's discretion in determining bargaining units is limited. by provisions of section 9(b) that

1. Professional employees may not be included in a unit of nonprofessional employees, unless a majority of the professional employees vote to be included.

[Broadly, the Act's definition of a professional employees covers lawyers, doctors, architects, engineers, and others who must have

completed "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 (section 2(12) (a)).]

2. No craft unit may be held inappropriate on the ground that a different unit was established by a prior Board decision.

3. Plant guards, who enforce rules for the protection of property or safety on any employer's premises, may not be included with other employees.

The Act also forbids the Board from certifying a labor organization as the representative of a unit of guards or watchmen if it admits other employees as members, or if it is "affiliated directly or indirectly" with an organization admitting other employees to membership. The Board has held that employees who do guard work only part time may qualify as guards.

PROCEDURE IN REPRESENTATION CASES

Petitions for the holding of any type of election should be filed with the nearest NLRB regional office, which will provide the required forms.

In cases where the employer and the representative of the employees are unable to agree on conduct of the election, the regional director may order a public hearing. If the regional director declines to order such a hearing or dismiss the petition for election, any party may appeal directly to the Board in Washington, D.C.

THE UNION SHOP

The Act permits a union and an employer to make an agreement requiring all employees to join the union in order to retain their jobs, except in States where such agreements are forbidden by State law (section 8(a) (3) and section 14(b)).

The maximum form of such a union-security agreement permitted by the Act is a requirement that employees in the contract unit acquire membership in the contracting union within a "grade period" of 30 days following (1) their employment, or (2) the effective date of the contract, whichever is later, except in the building and construction industry. An agreement which provides a grace period of less than 30 days is invalid, but the Board has held that employees who are already members of the union need not be extended the 30 days' grace. In the building and construction industry, contracts may require employees to join the union after 7 days, counting from the beginning of their employment or the effective date of the contract, whichever is later.

For a union-security agreement to be valid, all of the following requirements must be met:

1. The contracting union must be free from employer domination or assistance within the meaning of section 8(a) (2).

2. The agreement must cover employees in an appropriate unit who have legally designated the contracting union as their representative, except in the building and construction industry.

3. The union's authority to make the agreement must not have been revoked by the employees voting in a union-shop deauthorization poll within the preceding year.

4. The agreement must contain an appropriate 30-day grace period for all employees who are not members of the union when it takes effect. The required grade period in the building and construction industry is 7 days.

However, under a valid union-security agreement, an employee may be discharged for lack of union membership only when it results in his failure to tender on time "the periodic dues and the initiation fees uniformly required."

"PRE-HIRE CONTRACTS" AND UNION SHOP IN CONSTRUCTION INDUSTRY

Section 8(f) provides that:

It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because

(1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreement, or

(2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or

(3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or

(4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area:

Provided, That nothing in this subsection shall set aside the final proviso to section 8(a)(3) of this Act:

Provided further, 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).

(Section 9(c) provides for representation elections upon the petition of employees or a union or an employer. Section 9(e) provides for a referendum to rescind a union shop.)

LIMITATION ON DISCRIMINATION

The "final proviso" to section 8(a)(3) referred to in the first proviso above provides that

no employer shall justify any discrimination against an employee for nonmembership in a labor organization

(A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or

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(B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.

UNION-SHOP DEAUTHORIZATION

If a majority of employees wish to revoke a union shop, they may do so through a secret-ballot deauthorization referendum conducted by the Board. Section 9(e)(1) provides for the Board to conduct such a referendum whenever a petition is filed by 30 percent or more of the employees in a bargaining unit covered by a union-shop agreement.

NLRB STANDARDS FOR ASSERTING JURISDICTION

The standards in effect on August 1, 1959, were that the Board asserts jurisdiction over enterprises affecting interstate commerce which had the following annual business dealings:

1. Nonretail: $50,000 outflow and inflow, direct or indirect.

2. Office buildings: Gross revenue of $100,000 of which $25,000 or more is derived from organizations which meet any of the standards except the indirect outflow and indirect inflow standards.

3. Retail concerns: $500,000 gross volume of business.

4. Instrumentalities, links, and channels of interstate commerce: $50,000 from interstate (or linkage) part of enterprise, or from services performed for employers in commerce.

5. Public utilities: $250,000 gross volume, or meet standard 1 (nonretail).

6. Transit systems: $250,000 gross volume. [Except taxicabs, as to which the retail test ($500,000 gross volume of business) applies.] 7. Newspapers and communication systems: Radio, television, telegraph, and telephone: $100,000 gross volume. Newspapers: $200,000 gross volume.

8. National defense: Substantial impact on national defense.

9. Hotel-motel industry: Establishments with gross revenues of $500,000 a year, other than permanent or residential ones.

10. Business in the Territories and District of Columbia: D.C.Plenary. Territories Standards apply.

11. Associations: Regarded as single employer.

12. Employers who decline to furnish jurisdictional data if their operations affect interstate commerce to any extent.

Direct outflow refers to goods shipped or services furnished by the employer outside the State. Indirect outflow includes sales within the State to users meeting any standard except solely an indirect inflow or indirect outflow standard. Direct inflow refers to goods or services furnished directly to the employer from outside the State in which the employer is located. Indirect inflow refers to the purchase of goods or services which originated outside the employer's State but which he purchased from a seller within the State. Direct and indirect outflow may be combined and direct and indirect inflow may also be combined to meet the $50,000 requirement. However, outflow and inflow may not be combined.