West Virginia Law Review

Document Type



The provisions of Section 9 of the National Labor Relations Act, as amended, establish a procedure for ascertaining the identity of the representatives of employees with whom an employer will be required to engage in collective bargaining. The ultimate issue of identity involves two component questions of fact: (1) What is the appropriate unit and (2) What union, if any, do a majority of employees within that unit prefer? While the latter issue is resolved through the relatively simple process of an election, the former is more complex. It requires the NLRB to appraise a wide variety of evidential materials in order to comply with the statutory mandate that "The Board... decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by (the) Act, the unit appropriate for collective bargaining shall be the employer unit, craft unit, plant unit or subdivision thereof...” Since our national labor policy is based on the principle that a representative selected by a majority of employees is the representative of all, the appropriate unit is of great significance. From the standpoint of a union, under the majority-rule principle, victory or defeat in a representation election might turn upon the definition of the unit. Further, union bargaining power might be materially enhanced or weakened by the inclusion or exclusion of certain types of employees. Moreover, unit determinations are of major importance to employers. Whether an employer must deal with one representative or many, whether the danger of a strike in connection with contract negotiations must be faced once or several times each year, and whether a strike will totally or partially cripple plant operations, may depend largely on whether employees are grouped in a single unit or in several. Finally, the cleavage between the CIO and AFL on political and economic ideology as well as on labor organization structure indicates that NLRB unit determinations also have a political and economic impact that transcends the narrow interests of the parties to the bargaining relationship and becomes a matter of importance to the public at large. The purpose of this study is to examine the procedure under which this important finding is made, to inquire into the manner in which the Board has evaluated variant factors in making the determination and to appraise the extent to which unit designations are subject to judicial review.



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