Underwriters Salvage Co. of New York

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.