NAPA New York Warehouse, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1948

76 N.L.R.B. 840 (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. 2-R-7880
ORDER DENYING EMPLOYER'S MOTION TO
DISMISS AND REQUEST FOR
ORAL ARGUMENT
March 19, 19.¢8
On February 26, 1948, the National Labor Relations Board issued
a Supplemental Decision, Order and Direction of Election in this pro-
ceeding.l In its Supplemental Decision, the Board set aside the elec-
tion of June 9, 1947, as invalid, and directed a new election, because
the Supplemental Tally of Ballots issued on February 16, 1948, by the
Regional Director for the Second Region did not conclusively estab-
lish whether the Petitioner received or failed to receive a clear majority
of the valid votes cast. On February 26, 1948, the Employer moved
to dismiss the petition on the ground (1) that, under Section 9 (c) (3)
of the Labor Management Relations Act of 1947, the Board is pre-
cluded from holding more than one election a year in any given bar-
gaining unit; and (2) that the Petitioner has failed to comply with the
filing requirements of Section 9 (f), (g), and (h) of the amended Act.
The Board is enjoined by Section 9 (c) (3) from conducting more
than one representation election per year in a bargaining unit, provided
that the first election is "valid." We are of the opinion that in so
restricting the Board's election processes, Congress intended that the
balloting in the first election be conclusive. This construction receives
affirmation in the further provision in the same section which specifi-
cally provides for a run-off election when the results of a first election
are indecisive. Here, although the Petitioner did not secure a conclu-
sive majority after counting the challenged ballots, neither can the 39
votes cast against the Petitioner be deemed decisive, because some of
these votes may have been cast by the 6 dischargees hitherto held ineligi-
' 75 N. L. R B 1269.
76 N. L.R . B,No 119.
840
NAPA NEW YORK WAREHOUSE, INC. 841
ble. The election having been inconclusive, a second election is neces-
sary to determine the question concerning representation.
The Employer's second contention, based on the alleged failure of
the Petitioner to comply with the requirements of Section 9 (f), (g),
and (h) of the amended Act, is likewise rejected, inasmuch as our rec-
ords indicate that the Petitioner is now in compliance with the afore-
mentioned sections of the Act.
Accordingly, it is hereby ordered that the said motion be, and it
hereby is, denied.' '
8 The Employer 's request for oral argument is also denied , inasmuch as the contentions
raised by the Employer and the reasons advanced in support thereof are adequately set
forth in the Employer 's .Motion to Dismiss