Underwriters Salvage Co. of New York

National Labor Relations Board - Board Decisions

Mar 4, 1948

76 N.L.R.B. 601 (N.L.R.B. 1948)

In the Matter Of UNDERWRITERS SALVAGE COMPANY OF NEW YORK,
EMPLOYER and EDWIN BAISLEY, AN EMPLOYEE, PETITIONER and
WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, C. I. 0.,
UNION
Case No. O-RD-2.Decided March 4, 1948
Dr. Herbert S. Minot, of New York City, for the Employer.
Mr. Edwin Baisley, of New York City, for the Petitioner.
Messrs. Victor Rabinowitz and Bernard Tolkow, and Miss Bello
Seligman, of New York City, for the Union.
DECISION
AND
ORDER
Upon a petition for decertification duly filed on September 8, 1947,
by employee Edwin Baisley, a hearing was held in New York City on
October 16, 1947, before Paul S. Kuelthau, hearing officer. A prior
request by Petitioner Baisley for leave to withdraw his petition had
been administratively denied by the Regional Director, for reasons that
,do not appear in the record.
The hearing officer declined to receive evidence, which the Union
sought to elicit from the Regional Director as a witness, concerning
the circumstances surrounding the original attempt to withdraw the
petition. That ruling is unanimously affirmed. The hearing officer
declined to permit counsel for the Employer to interrogate individual
employees as to their desires concerning representation by the Union.
That ruling is likewise affirmed. The hearing officer received testi-
mony, elicited by the Union, to the effect that counsel for the Employer
recommended that the Petitioner retain an attorney with whom he
shared office space. That testimony is ordered stricken from the record,
as having no place in a representation proceeding.
The hearing officer's other rulings are free from prejudicial error
and are hereby affirmed, with one exception. That exception is his
ruling, during the hearing, that it was "too late" for the Petitioner to
withdraw his petition. That ruling is reversed, and leave to withdraw
is granted, for the reasons appearing below.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
76 N L. B B., No. 91.
601
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Underwriters Salvage Company of New York, owned and operated
by various insurance companies , is engaged in the business of salvag-
ing and reselling damaged merchandise. It does from $8,000,000 to
$10,000,000 worth of business annually, and has warehouses located
in different parts of the United States. We are here concerned only
with the Employer's New York City warehouse. More than 10 per
cent of the stock handled by the New York City warehouse is shipped
to it from sources outside the State of New York. The Employer's
annual sales of salvaged materials from this warehouse amount to
over $100,000, of which about 50 percent represents shipments from
this warehouse to points outside the State.
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE PARTIES INVOLVED
The Petitioner, an employee of the Employer, asserted that the
Union was no longer the representative of the Employer's employees,
as defined in Section 9 (a) of the amended Act.
The Union is a labor organization affiliated with United Retail,
Wholesale and Department Store Employees Unioii of America,
C. I. O. At the time of the hearing, it held a collective bargaining
contract with the Employer, executed in 1946, which has since expired.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
On December 17, 1946, the Employer and the Union signed a 1-year
collective bargaining contract to terminate on December 17, 1947. On
September 8,1947, the individual Petitioner filed a petition to decertify
the Union as bargaining representative. Before the hearing, the Peti-
tioner asked leave to withdraw his petition. The Regional Director
refused this request. At the hearing, the Petitioner renewed the re-
quest, which was denied by the hearing officer. The Union thereupon
moved to dismiss the petition, on the ground that the request for
withdrawal of the petition had extinguished any question concern-
ing representation previously raised by the Petitioner. The hearing
officer reserved decision.,
In its brief to the Board, the Employer now asserts that the Union
coerced the Petitioner into requesting withdrawal of the petition for
decertification . However, neither the Employer, the Petitioner, nor
any other person filed an unfair labor practice charge alleging coer-
UNDERWRITERS SALVAGE COMPANY OF NEW YORK 603
cion, although Section 8 (b) of the amended Act expressly permits
such a charge to be filed. Were facts supporting such a charge before
us, on a record, following issuance of a complaint by the General
Counsel, the majority' s ultimate disposition of this case might well
be different.
A e believe that the hearing officer erred in denying the Petitioner's
request for leave to withdraw his petition. Pursuant to the Rules,'
Regional Directors and the Board have traditionally permitted peti-
tioners to withdraw representation petitions in the absence of a show-
ing that prejudice will result, as in situations where a second union
is an intervenor. No such showing has been made here. Nor could
evidence supporting the Employer's contention of Union coercion be
received in this proceeding, if offered . Under well-established prin-
ciples, such evidence is inadmissible in any unconsolidated representa-
tion case.2 For over a decade, the Board has refused to pern}it unions
to offer proof of employer coercion in any preelection hearing con-
ducted in a representation case. This practice has made for orderly
proceedings, undisturbed by collateral issues more appropriately tried
in an unfair labor practice case. We see no reason to overturn or
qualify such a salutary rule, nor does it appear that our dissenting
colleagues would do so.
Indeed, this Board has already unanimously excluded evidence of
unfair labor practice from the record in decertification proceedings.
In the recent Matter of Magnesium Casting Company,3 our colleagues
approved the action of another hearing officer in excluding evidence
offered by a union to support its contention that the employer instigated
the decertification petition and also in denying the union's request that
the record incorporate material relating to alleged employer unfair
labor practices. Moreover, in this very case, by joining us in approv-
ing or disapproving certain rulings of the hearing officer, specified
above,4 our colleagues indicate that they also desire to exclude such
testimony from the present record. They recognize , we assume, that
having rejected offers to prove employer coercion in a representation
case, it would be discriminatory to accept similar offers to prove union
coercion.
But their proposal, limited as it is to decertification proceedings,
seems to us infinitely more discriminatory, and inconsistent with the
Anglo-American presumption of innocence. They would refuse, as
I Section 203 52 of the Board ' s Rules and Regulations, Series 5 (Approved August 19,
1947 )
2 Matter of Ciinnell Company of the Pacific, 71 N. L R B 1370.
76 N L. R. B. 251 See also Matter of Federal Shipbuilding and Dry Dock Co , 76
N L. R B 413, decided by the full Board on February 26, 1948.
4 Page 1, supra
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a matter of general policy , to accept any withdrawals of decertifica-
tion petitions at any time , because of the ,possibility-not susceptible
of proof or disproof in such a proceeding-that such withdrawals
might be brought about by union coercion. We, however, are unwill-
ino to join in creating an irrebuttable presumption that once a petition
for decertification has been filed , subsequent efforts to withdraw it
are necessarily induced by coercion or other improper means. That
would be the practical effect of holding that decertification petitions-
and they alone-can never be withdrawn, while excluding evidence
concerning the circumstances surrounding a withdrawal . Thus, with-
out allowing ourselves to ascertain any facts , we would always be
assuming that the facts point in a certain direction . We can find
no legislative or other support for making such an assumption. This
record, we repeat, contains absolutely no evidence of coercion.
If in fact a withdrawal has not been spontaneous , but restraint or
coercion has been exercised on employees in this or any other case, those
asserting it are not without recourse. They can file charges of unfair
labor practice-not only under Section 8 ( b) (1), but also under
Section 8 ( b) (2) if a union -security contract is in existence and re-
taliation by expulsion and discharge is feared . The dissenting opinion
suggests that employees who are coerced into withdrawing a petition
might fear the consequences of filing a charge. We cannot agree that
this Board should permit its rulings to be governed by the possibility
that men may occasionally succeed in pressing other men not to invoke
the processes of government . Here the Petitioner asserts that he de-
sires the Board to relinquish jurisdiction . We are ready to take him
at his word.
The Petitioner's request to withdraw this petition is granted and the
case will be closed , pursuant to the rules applicable to such situations.,
ORDER
IT IS HEREBY ORDERED that the Petitioner 's request for leave to with-
draw the petition for decertification in the above-entitled matter be,
and it hereby is, granted , and the case is hereby closed.
MEMBERS REYNOLDS and GRAY , dissenting :
We are of the opinion that the purposes of the statute , as amended,
can be best effectuated by a denial of the request for withdrawal of the
petition before us . We feel that once a decertification petition, prop-
erly supported by evidence of interest sufficient to meet the statutory
requirement of Section 9 (e) (2), has been filed with the Board, it
Of course , the Petitioner is always free to file a new petition.
UNDERWRITERS SALVAGE COMPANY OF NEW YORK 605
should be processed to ultimate resolution of the question in the pro-
tected atmosphere of the ballot box. If, indeed , the employees whose
evidence of interest provides the supporting material for the petition
undergo a change of mind between the date of its actual filing and the
Bolding of the election , such change of mind can be expressed through
the medium of the ballot. We are of the opinion it is only in this man-
ner that the Board can, with certainty, render abortive any, attempts
by interested parties to coerce and threaten the petitioning employees
to the end that they abandon their efforts to accomplish a protected
expression of their dissatisfaction with the current bargaining repre-
sentative.
It may be argued that the proper channel for correcting the effects
of any coercive conduct which may be indulged in is through the
utilization of Sections 8 (a) and ( b) of the law . This argument, in
our opinion, avoids the realistic appraisal of any situation in which
effective coercion has resulted in the actual request for withdrawal of a
decertification petition for if such coercion is sufficiently vigorous to
result in such a request for withdrawal, it very likely would be equally
effective in dissuading the employees involved from the filing of any
unfair labor practice charges.
The majority indicates in its decision that its action is encouraged
by the long-established practice of permitting the withdrawal of rep-
resentation petitions . In our opinion , the circumstances which permit
the withdrawal of a representation petition are quite different from
those which motivate the withdrawal of a decertification petition.
Representation petitions are for the most part filed by labor organiza-
tions thoroughly familiar through long usage with the utilization of
Board machinery, not only for the immediate attainment of a Board
certification but also for the purpose of employing the Board's proc-
esses as strategic devices in organizational campaigns. On the other
hand, in a decertification proceeding, we are concerned with petitions
filed by loosely formed groups of dissatisfied employees who are seek-
ing to attain the accomplishment of the right guaranteed them in Sec-
tion 7 to refrain from belonging to labor organizations . It does not
seem likely that such petitions are filed for any purpose other than the
simple desire to divest themselves of a bargaining representative in
whom they no longer repose confidence . Once having filed a petition,
even the remote possibility of effective coercion can be eliminated by
the insistence on the part of the Board that the issue go to a final
decision through a Board-conducted election.