NAPA New York Warehouse, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1948

75 N.L.R.B. 1269 (N.L.R.B. 1948)

In the Matter of NAPA NEw YORK WAREHOUSE, INC., EMPLOYER and
LOCAL 1146,. RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL,
PETITIONER
Case No. I-R-7880.Decided February G, 1948
Kaye, Sch,oler, Fierman and Hays by Mr. Beryl H. Levy, of New
York City , for the Employer.
Mr. Hiram G. Shields , of New York City , for the Petitioner.
DECISION
AND
DIRECTION
Upon a petition duly filed, the National Labor Relations Board on
June 9, 1947, conducted a prehearing election among the employees
of the Employer in the alleged appropriate unit, to determine whether
or not they desired to be represented by the Petitioner for the purposes
of collective bargaining.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that there are approximately 89 eligible
voters and that 82 ballots were case, of which 43 were for the Peti-
tioner, 35 were against the Petitioner, and 4 were challenged.
Thereafter, hearings were held at New York City on July 18,
August 4 and 5, 1947, before Daniel Baker, hearing officer. The hear-
ing officer's rulings made at the hearings are free from prejudicial
error and are hereby affirmed. - -
At the hearing the Employer moved to dismiss the petition on the
ground that the Petitioner's jurisdiction does not extend to any of the
lines of work in which the Employer is presently engaged. In the
absence of evidence that the Petitioner will not accord, adequate repre-
sentation to all employees within the union hereinafter found ap-
propriate, we see no reason to dismiss the petition.' Accordingly the
motion to dismiss is hereby denied.
Upon the entire record in the case, the National Labor Relations
Board makes the following.:
1 See Matter of Federation Publications , Inc, et al , 74 N. L R. B. 1054 and cases cited
,therein
75 N. L. R. B., No. 154.
1269
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
NAPA New York Warehouse, Inc., a New York corporation with its
principal office and only place of business at New York City, is'engaged
in the purchase and distribution of automotive parts. The Employer
annually purchases automotive parts valued in excess of $500,000, of
which 85 percent is obtained from points outside the State of New
York. The Employer's annual sales of these parts exceed $500,000
in value, of which 35 percent is-shipped to points outside the State.
The Employer admits, and we find, that it. is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the
Employer .2
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act.
IV. THE APPROPRIATE UNIT
Nye find, substantially in accordance with the agreement of the
parties, that all employees of the Employer's warehouse located at 109
West 64th Street, New York City, but excluding confidential secre-
taries, outside salesmen, foremen, foreladies, assistant foremen, assist-
ant foreladies, and all other supervisors, constitute a unit appropriate
for the purposes of collective bargaining,within the meaningFof Sec-
tion 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Employer objects to the conduct of the election and seeks to
have it set aside on the grounds (1) that a prehearing election held
prior to the effective date of the amendments to the Act, in a then
pending representation proceeding, is. invalid under the Act as
amended; (2) that the Petitioner employed coercive and intimidating
2 Although the Employer contends that the Petitioner is not a bona fide labor organization
because (1) it has collected no initiation tees from its members and, (2) it has asked the
Emploi er to pay these fees, no evidence was presented to support this contention The
Petitioner is unquestionably a labor organization as defined by Section 2 (5) of the Act, as
amended.
NAPA NEW TORK WAREHOUSE, INC. 1271
tactics which exceeded the permissible area of union campaign activ-
ity; (3) that a group of employees sought unsuccessfully to repudiate
the Petitioner's claim to representation by appealing to the New York
State Labor Relations Board to conduct an election; and (4) that the
Board's agent was derelict in failing to challenge or segregate the bal-
lots of certain individuals who had been discharged before the date of
the election, but who voted as a special exception under the terms of a
settlement agreement and who were later found to be ineligible to vote
in the election.
(1) The validity of the prehearing election
In a supplement'to its brief dated October 20, 1947, the Employer
refers to Section 9 (c) (1) and 9 (c) (4) of the Act, as amended, from
which it argues that the Board practice of conducting an election
before hearing is no longer valid with respect to prehearing elections
held before the effective date of the amendment. There is no merit
in this contention. The Board has recently- held that the validity
of a prehearing election conducted before the effective date of the
amendments to the Act is not affected thereby.3 The objection is
accordingly overruled.
(2) The propriety of the Petitioner's pre-election activities
The Employer contends that the pre-election campaign activity of
the Petitioner was improper and urges that the election be voided
oil the ground that its employees were coerced and intimidated by
union sympathizers. We do not agree. The Board has declared
that where coercion is charged it must be shown that an employee
was prevented from exercising a free choice at the polls by conduct
which was both "coercive in character and so related to the election
in time or otherwise as to have had a probable effect upon the em-
ployee's action at the poll." 4 More recently, the Board has held that
remarks uttered a week or more before an election were made at a date
too remote from the time of the election to have any coercive effect
thereon.5 In the present instance, the alleged coercive and intimidat-
ing remarks of the Petitioner were uttered about 3 to 4 weeks before
the date of the election, and indeed, even before an election was agreed
upon by the parties .6 Furthermore, even if these remarks could be
3 Matter of Lehigh Rib.er Mills, 75 N L R B 280. Matter of Farmers Feed Co, et at,
75 N L R B 617 . We note that the election heiem was held before the enactment of
the amendments to the Act , and not merely before the effective date thereof
4 See Matter of Maywood Ifostery Mills, 64 N L R B. 146.
5 Matter of Kroder-Roubel Company , Inc . 72 N L R B 240
6It further appears that it slight amount of violence accompanied the alleged coercion,
but it , also, was too remote in time to have affected the results of the election.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found to have been made at a time not too remote from the date of the
election, it is clear that they could not be construed as coercive in the
sense required for invalidating the election. In this connection, the
record reveals that union adherents told non-striking employees, in
substance, that if the union should will the election, those who did not
join the union would lose their jobs. We have held that such state-
ments are in the nature of legitimate campaign propaganda and do
not preclude employees from exercising a free choice at the polls.'
Accordingly, we find this objection to be without merit and it is hereby
overruled.
( 3) The effect of the alleged revocation by certain employees of the
Petitioner 's authority to represent them
The Employer offered to prove that on or about April 28, 1947, a
group of the employees herein concerned , appeared at the New York
State Labor Relations Board for the purposes of revoking the
Petitioner 's authority to represent them 8 and petitioning the State
Board to conduct an election ; and that the State Board, after declining
to accept their petition on the ground that it lacked jurisdiction,
neglected to advise the group that recourse should be sought through
the National Labor Relations Board . The hearing officer rejected the
offer of proof on the grounds that is was irrelevant and immaterial to
any issue in this proceeding . The hearing officer further ruled that
these employees merely sought an opportunity to vote for or against
the petitioning union; and that, as a chance to vote on this question
was afforded the members of this group in a Board -conducted election,
they were not deprived of any of their rights guaranteed by Section 7
of the Act , as amended . The Petitioner took exception to this ruling.
This Board has repeatedly declared that a prima facie showing of
-interest is not open to collateral attack by an opposing party, and that
an issue concerning representation can best be resolved by an election.9
Accordingly , the hearing officer's rulings cited above were proper and
the exception thereto is hereby overruled.
(4) The alleged error of the Board agent in failing to challenge or
segregate the ballots of "employees " whose eligibility was in doubt
The record discloses that on May 27, 1947 , an agreement in settle-
ment of a strike begun on April 28,1947 , was executed by the Employer
' Matter of Southeastern Clay Company , 73 N L. R B. 614.
These employees had previously signed membership cards with the petitioning union.
9 Matter of Yellow Transit Company, 72 N. L. R. B . 401; Matter of Falcon Manufacturing
Company, 73 N. L. R B 467, see Matter of Potosi Tie t Lumber Company , 73 N. L. R. B.
590.
NAPA NEW YORK WAREHOUSE, INC. 1273
and the Petitioner. The settlement agreement provided inter alia
that a consent election should be held by the Regional Director 1° in a
unit consisting of warehouse and clerical employees on the Employer's
pay roll for the period ending April 28, 1947; that the Employer
would not challenge the ballots of six "employees" 11 allegedly dis-
charged for union activity on April 9, 1947; that, in the event the
Petitioner should win the election, the parties should submit to arbitra-
tion the question whether these employees were properly discharged;
that, however, in the event it should lose the election there would be no
arbitration and the Petitioner would not bring any unfair labor prac-
tice charge against the Employer; and that upon the termination of
the strike the Employer would rehire, as its need required, all
employees who were on the pay roll as of April 28, 1947. As a result
of this agreement, the petition herein was filed on May 28, 1947.
The Employer urges that the election be set aside on the ground that
the six discharged persons who voted without challenge"were not
employees of the Employer on the agreed eligibility date of April 28,
1947, since they were found later, in accordance with the conditions set
forth in the settlement agreement, to have been properly discharged on
April 9, 1947.12 The Employer argues that, in view of the uncertainty
which existed before the election regarding the eligibility of these
voters and the Board agent's knowledge thereof, it was incumbent upon
the latter to have challenged or to have segregated their ballots pend-
ing a final determination of their status, and that failure to do so
nullifies the election.13 The Employer's position, in effect, amounts
to a plea that the election be set aside because the Board agent failed
to do what the Employer had agreed not to do. In entering into the
agreement not to challenge these voters and in adhering to such agree-
ment, the Employer waived any right it might have thereafter to attack
their status as eligible voters.14 Clearly, it is in no position to question
the conduct of the Board agent in failing to challenge their ballots.
However, under the particular circumstances here present, we shall
nevertheless consider the objection raised by the Employer.
In support of its objection the Employer relies on the Board's de-
cisions in the Wayne Hale and Beggs & Cobb cases,15 which are excep-
10 This agreement was not implemented because the Regional Director disapproved of the
unit contemplated by the stipulation. However, he scheduled a pre-hearing election for
June 9, 1947
11 Although the, Employer believed that these employees were lawfully discharged, to
effectuate a settlement , it agreed not to challenge their ballots.
12 The arbitration award dated July 15, 1947, declared that the individuals in issue were
properly severed flour the Employer's employ on April 9, 1947.
13 N. L R. B., v. A. J. Tower Company, 329 U. S 324 affirming Matter o f A. J. Tower
Company, 60 N. L. R. B 1414; of Matter of Beggs t Cobb , Inc., 62 N. L. R. B. 193;
Matter of Wayne Hale, 62 N L R. B. 1393.
14 See Matter of Crucible Steel Company of America, 71 N. L. R. B . 1480, 1490.
' See footnote 13, supra.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions to the doctrine announced in the A. J. Tower case.16 In the latter
proceeding, the Board declared that it would not accept post-election
challenges respecting the eligibility of voters." However, under the
exception to the rule of the A. J. Tower case the Board has held that
where the ineligibility of a voter is known to the Board's agent before
the election and he fails to challenge the ballot of such voter, it will,
in such instance, sustain an objection to the election provided it appears
that the ballot in issue necessarily affects the results thereof 18 In the
present case it is clear from the undisputed testimony that the Board
agent did not know these voters were ineligible. On the other hand,
he did have reasonable grounds to doubt their eligibility. Under the
circumstances, we are of the opinion that their ballots should have been
segregated, thereby making it possible for us to rule on their validity
at a later date in accordance with our usual practice.19 Because this
was not done, the ballots cast by these persons, whom we now find to
be ineligible, were commingled with those of the eligible voters and
hence can not be identified.
We disagree with the Employer's contention that the inclusion of
the ballots of the six ineligible voters necessarily renders.the election
invalid. However, since it is now impossible to determine which of
these ballots were cast for and which were cast against the Petitioner,
we shall not certify the Petitioner unless, after deducting the six in-
valid votes from the total number of ballots cast for the Petitioner, it
appears that the latter has received a majority of all valid votes cast.2O
As the Petitioner's majority status may be affected, after the deduc-
tion of these ballots, by a consideration of the four challenged ballots,
the challenges to which have since been withdrawn,2' we shall direct
that these ballots, which we now find to have been cast by eligible
voters, be opened and counted. If, upon the counting of the challenged
ballots, the Tally shows that two or more of such ballots were validly
cast for the Petitioner, the latter will have received it majority of the
valid votes cast in the election, in which event we shall certify the
Petitioner as the bargaining representative. If, on the other hand,
it appears that less than two of the challenged ballots were validly
cast for the Petitioner, the resulting vote will not conclusively indi-
36 See footnote 1 3, sups a
11 The Employer 's objection is directed against a patent defect in the election pi ocedure
which existed before the election itself , and is , therefore , not in the nature of a post-election
challenge
18 See Matter of Knox Metal Products, Inc , 75 N L R B 277
19 See Matter of Knape and Vogt Manufacturing Co., 65 N L R. B 200 ; Mattes of Pohs-
Ring-Green, Inc , 68 N. L R B. 37.
m See Matter of Cooperseille Cooperative Elevator Company , 73 N. L R B. 480
^ All challenges were by the Petitioner , which withdrew its challenges at the hearing.
NAPA NEW YORK WAREHOUSE, INC. 1275
cate that the Petitioner has received a majority of the valid ballots
cast. In that event, we shall set aside the election as invalid, and
thereafter direct that a new election be conducted by the Regional
Di rector.
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with NAPA New York Warehouse,
Inc., New York City, the Regional Director for the Second Region
shall, pursuant to the Rules and Regulations of the Board, within
ten (10) days from the date of this Direction, open and count the
ballots of Harry Lunsford, Joseph McCully, Dayrel Giel, and James
H. Schmidt, and thereafter prepare and cause to be served upon the
parties to this proceeding a Supplemental Tally of Ballots and an
Election Report, embodying therein his findings and recommenda-
tions as to the result of the ballot.