The War and Navy Departments have adopted similar policies with respect to Government-owned arsenals. The adoption of this policy has tended to promote industrial stability by insuring that in any closed-shop agreement the union does at least represent the choice of the majority, and therefore conforms with the historic principle of American jurisprudence that taxation must rest on the consent of the governed.

In the light of these considerations, it is hoped that Congress will see fit to remove a recent restriction upon the Board's appropriation (to be discussed more fully hereafter in this Chapter) which to some extent has prevented it from giving full effect to this policy.

Although the Board has made changes in its procedures which have shortened the time involved in handling individual cases, its ability to perform its functions has been handicapped by decreased appropriations combined with a tremendous loss of experienced personnel. The handicap of large turn-over in the staff, involving the loss to the armed forces of approximately 28 percent of the number of male employees at the beginning of the year, or 38 percent of the number on October 30, 1943, has been accentuated by a total reduction of staff from 889 on July 1, 1942, to 736 on October 30, 1943. Nevertheless, there has been a substantial reduction in the time between the filing of charges and petitions and the opening of hearings, the time between the close of hearing and the issuance of Intermediate Reports, and the time involved in the review of cases and the preparation of decisions. It has accordingly been able to close 9,722 cases, or 78.8 percent of all on docket during the year. The backlog of pending unfair labor practice cases has been reduced, but the number of representation cases on docket at the close of the year showed an increase over the previous year.

During the 12 months ending June 30, 1943, a total of 9,543 new cases were filed with the Board, the third largest number filed in the Board's history. Representation cases numbered 6,140, the largest number received in any of the 8 years of the Board's activity. Unfair labor practice cases decreased, however, to 3,403 cases, or only 36 percent of all filed during the year, and were fewer in number than in any of the 5 preceding years. Their decline reflects the extent to which the purposes of the Act have been accepted in the industrial practices of employers.

The continued increase in representation cases, on the other hand, reflects chiefly the expansion of labor organization into new fields. More than three-fourths of all elections during the year involved only a choice for or against a single union. In these cases, as well as in the minority involving a contest between two or more unions, the custom of using the Board's machinery is well established. Thus, most disputes over the right to recognition are settled by orderly

• See Ch. II.

See Ch. III, and Appendix tables.

processes under the auspices of the Board, rather than by the oldfashioned method of the organizing strike.

The new cases filed were widely distributed, representing all 48 States, Alaska, Hawaii, and Puerto Rico. Unfair labor practice cases declined in number in all but 7 States-Massachusetts, Florida, North Carolina, South Carolina, Nevada, Mississippi, North Dakota, and Puerto Rico. The percentage decline was greatest in the Pacific coast and Mountain areas, and least in the East South Central States. Representation cases dropped in number in 23 States, including New York, California, Michigan, and Massachusetts, but had unusually large increases in 20 States, among them Ohio, New Jersey, Kentucky, Washington, and Oregon. The largest percentage increase in a group of States was in the East South Central area, the largest percentage decrease in the West South Central.

The significance of the Board's activity in relation to war production is seen from the fact that 50 percent of the new cases were concentrated in 7 industries, all essential to the war-iron and steel, machinery, aircraft, food, shipbuilding, chemicals, and electrical machinery. Aircraft alone had 553 cases; shipbuilding, 475 cases; and iron and steel, 1,512 cases. Manufacturing industries were involved in nearly 80 percent of the new cases.

Of the 9,772 cases closed during the fiscal year, the great majority, 77.7 percent, were closed promptly in the informal stages of administration, as in previous years. However, 14.0 percent of the unfair labor practice cases, and 27.5 percent of the representation cases required formal action, in both groups an increase over the previous year. In spite of the decrease in new cases filed, the number of formal actions by the Board increased substantially. The number of complaints issued increased 11.4 percent over the fiscal year 1942, the number of cases heard, 27.6 percent, and the number of decisions issued, 42.5 percent.

A total of 3,848 unfair labor practice cases were closed during the year, 53.6 percent by withdrawal or dismissal. The remedies in the 1,776 cases closed by adjustment or by compliance with Intermediate Report, Board order, or court order, were varied. Notices were posted in 1,110 cases. Company-dominated unions were disestablished in 205 cases. A total of 7,111 workers were reinstated to remedy discriminatory discharges, while 1,250 in addition were reinstated after strikes caused by unfair labor practices. Back pay amounting to $2,284,593 was paid to a total of 5,115 workers who had been the victims of discriminatory practices. Collective bargaining began, as part of the remedy, in 493 cases.

Representation cases numbering 5,924 were closed during the year, 50.5 percent of them by informal adjustment. Consent elections or pay-roll checks took place in 46.8 percent of all cases closed. Stipulated elections, the results of which by agreement of the parties are certified by the Board, were conducted in 4.0 percent of the cases

closed. Elections were ordered by the Board in 19.3 percent of the

cases.

A total of 4,153 elections and pay-roll checks were conducted by the Board during the year. Valid votes were cast by 1,126,501 workers, 80 percent of those eligible to participate in the choice of their bargaining representatives in these cases. Votes cast for a union were 82 percent of the valid votes. A union was chosen as representative for collective bargaining in all but 13.8 percent of the elections and pay-roll checks.

The liaison procedures with other Federal agencies established since the declaration of war have been extended. War production and the letting of war contracts brought to the Board many requests from other Federal departments and agencies for expeditious disposition of cases. The multiplicity of agencies also rendered essential exchange of pertinent information between the Board and other agencies concerning labor relations in hundreds of war plants. Among the agencies with which the Board has exchanged information and with which it has had most frequent occasion to confer are the War and Navy Departments, the War Production Board, the War Shipping Administration, the National War Labor Board, and the Conciliation Service of the Department of Labor.

Machinery has been established under which constant relationships are maintained with the National War Labor Board and the Department of Labor, for the purpose of exchanging information and integrating closely efforts for the maintenance of industrial peace. Essentially the Board's function in relation to war plants in which other agencies are interested is to act with speed, whether the case involved is a question concerning representation or a charge of unfair labor practice. The Board has considered cases involving such plants to be of first importance and has given them priority. Wherever cooperation with the other agencies in adjusting cases by informal methods has been possible, consistent with the rights of the employees under the Act, the Board has sought to establish genuine coordination. In general the Board's Decisions and Orders during the year have continued to interpret, in their application to the great variety of individual situations, the concrete meaning of the rights of selforganization and collective bargaining, and of unfair labor practices, as declared in the Act. The most significant developments in decisions of the year, with analysis of the trend of decisions on certain points which have come to be of particular importance, are presented in Chapters IV and V.

6

Litigation for enforcement or review of the Board's orders has continued the successful record of earlier years. The decline in the number of cases set aside continued. During the fiscal year 1943, of 96 decisions by the circuit courts of appeals upon petition to enforce or review Board orders, 60 or about 63 percent enforced orders in full, 27, or 28 percent, modified orders, and 9 set orders aside. In See Ch. VII, and list of cases in Appendix D.

addition, 4 cases reached the Supreme Court during the fiscal year. One case was remanded to the Board for further action. In 3 cases, orders of the Board were enforced in full. A cumulative total of 41 enforcement or review cases had reached the Supreme Court by the end of the fiscal year. Of these, 30 Board orders, or 73.2 percent, were enforced in full; 8 or 19.5 percent were enforced with modifications; 2 or 4.9 percent were set aside; and 1 case was remanded to the Board for further proceedings.

The number of contempt actions filed by the Board for failure to comply with court decrees enforcing Board orders decreased.

Only 10 new petitions were filed in the year. Of 20 petitions on docket, 17 were concluded. Compliance prior to a court decision was obtained in 8 cases. In 7 there was an adjudication in contempt, while in 2 the Board's petition was denied.

The issues of major importance in the application of the Act, decided by the courts in 1943, are discussed in Chapter VII.

The Board has begun this year a program of study of the effects of its activities. The aim is to learn so far as possible the results of particular policies and practices, in order that the Board may constantly revise its administration of the Act in the light of experience. Several of the studies completed are summarized in Chapter VIII. These first studies on the whole found encouraging evidence that the work of the Board has been successful in eliminating unfair labor practices, securing compliance with the Act, and making possible the establishment of collective bargaining and stable labor relationships based upon recognition of the bargaining agents chosen by a majority of employees.

THE LIMITATION ON THE APPROPRIATION

By means of an amendment to the Labor-Federal Security Appropriation Act of 1944, Congress imposed a serious limitation upon the use by the Board of the funds allotted it thereunder to administer the National Labor Relations Act during the current fiscal year. The amendment provides as follows:

No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement between management and labor which has been in existence for three months or longer without complaint being filed: Provided, That hereafter, notice of such agreement shall have been posted in the plant affected for said period of three months, said notice containing information as to the location at an accessible place of such agreement where said agreement shall be open for inspection by any interested person."

The above amendment does not purport to change the substantive provisions of the National Labor Relations Act. Nevertheless, it operates as effectively in some instances as would a direct amendment to the Act to prohibit the Board from enforcing the principles of the Act. This is accomplished by forbidding the Board to expend its

'Labor-Federal Security Appropriation Act, 1944. 57 Stat. 494.

8

current funds in connection with "a complaint case arising over an agreement between management and labor which has been in existence for 3 months or more without complaint being filed." "

The legislative history of the amendment shows that the purpose of its original sponsors was to prevent the Board from proceeding to issue a Decision and Order in the Kaiser Shipbuilding cases.10 These cases involved complaints based upon charges that the respondent corporations had discriminatorily discharged certain employees pursuant to closed-shop contracts which were alleged to be illegal. Upon the passage of the amendment, therefore, the Board took immediate action to terminate the Kaiser cases and all similar cases.

But while the original purpose was to preclude the Board from proceeding in the Kaiser cases and cases of a similar nature, the prohibition contained in the amendment reaches beyond the kind of situation presented in the Kaiser cases. Although many questions concerning the interpretation of the amendment have not yet been settled, the broad outline of its coverage has been established. And it is now clear that the broad and unqualified language of the amendment operates to preclude the Board from taking action to prevent unfair labor practices in any complaint case where there is involved an agreement between management and labor which has been in existence for 3 months or longer without charges being filed, wholly without regard to the illegality of the contract or the nature of the unfair labor practices which have been committed.

That this is true was plainly demonstrated by an opinion of the Comptroller General of the United States on October 21, 1943, in which he passed upon the question of the application of the amendment to cases involving company-dominated unions, which are prohibited by Section 8 (2) of the Act. In response to a request by the Board for a decision on that question, the Comptroller General ruled that, since the necessary effect of the normal 8 (2) order is to abrogate any contract which may exist between the company-dominated union and the employer, the amendment precludes the Board from proceeding in any such case in which there exists a contract which has been in effect for 3 months or more without a charge being filed. In such a case, as the Comptroller General pointed out, it is not necessary that the execution of the contract constitute the crux of the unfair labor practice, the prohibition being applicable however incidentally or casually the agreement in question may be involved.

In a decision issued on July 29, 1943, the Comptroller General ruled that "a complaint case" refers to a case in the complaint stage; i. e., the stage preceding issuance of a Board Decision and Order, and consequently that it does not preclude the Board from expending its funds in connection with enforcement proceedings in the courts in cases decided by the Board prior to July 1, 1943. This view has been sustained by the courts in National Labor Relations Board v. Elvine Knitting Mills (C. C. A. 2), decided October 26, 1943, and in National Labor Relations Board v. Baltimore Transit Company (C. C. A. 4), decided without opinion October 5, 1943. In his decision issued on July 29, 1943, the Comptroller General ruled that the phrase "without complaint being filed" limits the use of funds to those cases in which charges have been filed with the Board within 3 months of the execution of an agreement, but prescribes no limitation as to the time within which a complaint may be issued by the Board.

10 Matter of Oregon Shipbuilding Corporation and Industrial Union of Marine and Shipbuilding Workers of America; Matter of Oregon Shipbuilding Corporation and William King, an individual; and Matter of Kaiser Company, Inc., and Industrial Union of Marine and Shipbuilding Workers of America et al.; cases Nos. XIXC-997; XIX-C-1055; XIX-C-1101.