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WHITE v. HERZOG

September 28, 1948

WHITE et al.
v.
HERZOG et al.



The opinion of the court was delivered by: TAMM

The matter before the Court arose on motion of plaintiffs for a preliminary injunction and on cross-motion of defendants to dismiss the complaint. The Court, having heard argument of counsel and duly considered the matter, makes the following

Findings of Fact

 1. Plaintiffs are and were at all times material hereto employees of Oppenheim Collins & Company, Inc. (hereinafter called the Company), a corporation which owns and operates a retail department store in New York, New York. Plaintiff Belle White brings the action because of her inability to have the defendants place her name upon a collective bargaining election ballot for an election conducted by the National Labor Relations Board and plaintiffs Dorothy Belgrade and Addie Cohen join Belle White as employees desiring plaintiff White to represent them for collective bargaining purposes.

 3. In July 1948, the Retail Clerks International Association, A.F. of L. (hereinafter called the Association), filed a petition with the Regional Director of the Board for the Second Region, seeking certification by the Board as the exclusive bargaining representative of the employees of the Company. Thereafter, on or about July 22, 1948, the Company and the Association, by stipulation, waived a formal hearing and agreed to the holding of a consent election to determine the exclusive bargaining representative of the employees of the Company.

 4. Prior to the holding of said election and on July 27, 1948, plaintiff Belle White, through her attorney, advised the Regional Director of the National Labor Relations Board that she represented a substantial number of employees of the Company and asked that she be permitted to intervene in the proceeding initiated by the Association. Shortly thereafter, plaintiff White submitted to the Regional Director cards signed by approximately 25 percent of the employees of the Company which designated her as their bargaining representative. Plaintiff White also requested the Regional Director to hold a formal hearing in accordance with Section 9(c) of the Act.

 5. The Regional Director thereupon postponed the consent election. Thereafter, the Regional Director ordered that the consent election be held on August 2, 1948.

 6. On July 29, 1948, an agent of the Regional Director orally advised that attorney for plaintiff White that, on the basis of an administrative investigation conducted by the Regional Director, it had been determined that Plaintiff Belle White was acting as a 'front' for Retail, Wholesale and Department Store Employees Union, Local 1250, which union had failed to comply with Sections 9(f), (g) and (h) of the Act, and that accordingly her name would not appear on the ballot in the scheduled election and her request for a hearing would be denied. Retail, Wholesale and Department Store Employees Union, has in fact failed to comply with Sections 9(f), (g) and (h) of the Act and is not eligible for participation in collective bargaining elections under the Act.

 7. On August 2, 1948, the consent election was held as scheduled, with only the Association on the ballot. The Association received a majority of the votes cast at said election.

 8. On August 7, 1948, Plaintiff White filed with the Regional Director objections to the conduct of the election, in which she denied that she was a 'front' for Local 1250.

 9. As appears from 'Decision and Certification of Representatives', issued by the Board on September 1, 1948, in Matter of Oppenheim Collins & Co., Board Case No. 2-RC-562, reported in 79 N.L.R.B.,No. 59, 22 L.R.R.M. 1402:

 (a) On August 11, 1948, the Regional Director issued a Report on Objections, in which he refused to consider the merits of plaintiff White's objections on the ground that she had properly been denied leave to intervene and therefore did not have standing to file objections. In support of the conclusion that plaintiff White was a 'front' for local 1250 and was therefore properly denied leave to intervene, the Regional Director set forth in said report the following facts which had been determined in the administrative investigation previously conducted by him:

 (1) Plaintiff White has been an active member of Local 1250 and a member of its negotiating committee;

 (2) The authorization cards submitted by her were signed in an office used by Local 1250 upon the ...


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