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August 11, 1948


The opinion of the court was delivered by: RYAN

Two separate suits have been brought arising from an order of the National Labor Relations Board (hereinafter referred to as the Board), directing that an election of a collective bargaining representative for employees of Oppenheim Collins & Co., Inc., (hereinafter referred to as the Company), be held on August 2, 1948.

One complaint is filed by Belle White. This plaintiff sues as an employee of the Company and as a 'collective bargaining representative' alleged to have been 'designated by a substantial number of her fellow employees.'

 The second complaint is filed by the Retail, Wholesale and Department Store Union (hereinafter referred to as the International), a labor organization and Samuel Wolchok, 'as President thereof.'

 Both complaints seek identical relief and pray that a temporary and permanent injunction issue restraining the holding of the election, the tallying and announcement of the results and the issuance of any certification based thereon; they further ask that the Board be directed to hold a hearing under Section 9(c) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq., affording plaintiffs and 'all other interested parties an opportunity to appear and participate in such hearing;' and that, in the event of the subsequent holding of an election, a judicial direction be made in each action that plaintiff's name be placed on the ballot.

 The Company was under contract with Local 1250. Local 1250, a local union of the International was until July 31, 1948, the collective bargaining representative for employees of the Company and was so recognized by the Company and the Board.

 Local 1250 has failed to comply with Section 9(f) of the Act.

 In the early part of July, 1948, the Retail Clerks International Association (hereinafter referred to as the Association), filed apetition seeking its certification as bargaining representative. Thereafter, the Association and the Company by stipulation pursuant to Section 9(c)(4) waived the hearing required by Section 9(c)(1) for the purpose of a consent election. Upon this petition and stipulation, on July 25, 1948 the Board ordered an election to be held on July 29, 1948. On July 27, 1948, the attorney for plaintiff Belle White asked the Board that she be granted permission to 'intervene.' A hearing was held by the Board on that day; the attorney for plaintiff White attended, presented some cards signed by employees authorizing her to represent them and entered objection to the holding of the election. The election was then postponed indefinitely. Later, on July 29, 1948, the Board set the date of the election for August 2, 1948, having determined after investigation that Belle White was a 'front' for the non-complying Local 1250.

 It is complained that this investigation was 'an ex parte inquiry without notice to the attorney for plaintiff' Belle White and that no opportunity was afforded either her or her attorney to examine and cross-examine witnesses.

 An application was made by attorney for plaintiff White on July 30, 1948, for a temporary restraining order, in connection with the order to show cause which brings on this hearing for an injunction pendente lite. The temporary restraining order sought, staying the election ordered for August 2, 1948, was denied.

 On August 2, 1948 -- the date of the election -- the International filed its complaint and also applied for and was denied a temporary restraining order. It was granted an order to show cause similar to that issued to the other plaintiff. The International also alleges that it was designated 'by a substantial number of the employees of the Company as their collective bargaining representative.' These employees number 93, but it does not appear whether they are the same employees who are alleged to have designated Belle White.

 Now, on the return of both orders to show cause the Company and the Association, who were not joined as parties to either suit, ask for an order permitting them to intervene as parties defendant.

 On considering the merits of these applications we find that the election ordered by the Board for August 2, 1948 has in fact been held and that it is now a fait accompli. The employees of the Company were on that day presented with ballots prepared by the Board, in form substantially as follows --

 'Do you wish to be represented for purposes of collective bargaining by Retail Clerks International Association, AFL. Yes . . . No . . . The tally and canvas made by the Board of the ballots cast show the following: Approximate number of eligible voters -- 475 Void ballots -- 2 Votes for Retail Clerks International Association -- 276 Votes against Retail Clerks International Association -- 108 Ballot votes counted -- 384 Challenged ballots -- 9 Valid votes counted & ballots challenged -- 393

 From this canvas it appears that of the valid votes cast the Association received approximately 72 percent. Weighing the number of votes cast in favor of it in conjunction with those eligible to vote, we find that the Association received a total of 58 percent of the total number of eligible voters. The ...

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