Oppenheim Collins & Co., Inc.

rr^ In the Matter Of OPPENHEIM COLLINS & Co., INC., EMPLOYER and RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. or L., PETITIONER Case No. 2-RC--562.Decided September 1, 1948 DECISION AND CERTIFICATE OF REPRESENTATIVES On July 19 and 23, 1948, respectively, Retail Clerks International Association, A. F. of L., filed a petition and an amended petition alleg- ing, that a question affecting commerce existed concerning the repre- sentation of employees of Oppenheim Collins & Co., Inc.' On July 29, 1948, the Petitioner, the Employer, and the Regional Director entered into a "Stipulation for Certification upon Consent Election." On August 2, 1948, an election by secret ballot was conducted among the employees in the stipulated unit, in accordance with the Stipulation and the Rules and Regulations of the Board .2 Upon the conclusion of the election, a Tally of Ballots was furnished to the parties. The Tally shows that there were 475 eligible voters, and that, of' these, 393 cast ballots, of which 287 were for the Petitioner, 108 against, the Petitioner and 9 were challenged. ' The original petition named " Retail Clerks International Association , A. F L. on behalf' of Retail Dept Store Employees Union , Local 1601 ," as the petitioner . The amended petition named only "Retail Clerks International Association , A F of L " as the petitioning union Upon the basis of the Regional Director 's investigation and upon the entire iecord- in the case, it appears that Local 1601 is not in existence as a functioning organization , it has no officers or charter . Under these circumstances , we conclude that "Local 1601" is merely the name under which the Petitioner may at some future time establish a local' union for the Employer 's employees . As Local 1601 has not been established as a function- ing local union and particularly since it has no officers , it is patently incapable of complying with the filing requirements of the Act as amended Therefore , whether or not a local union will be established , and whether or not its officers will comply with the Act is con-- jectural Accordingly, we find that the Petitioner , Retail Clerks International Association, A F of L , is the real party in interest in this proceeding If, however, changing circum- stances should give rise to a situation in which the Board for policy reasons would not issue a certification in the first instance , it has the power, either on its own.motion or that of the Employer, to recall the certificate hereinafter issued to the Petitioner . See Matter- of Lane-ll%ells Company, 79 N L R. B, 252 2 It appears that before the election , Department Store Employees Union , Local 1250, C I. 0, herein called Local i250, Retail, Wholesale, and Department Store Union, C I. 0., Local 1250 's parent organization which is herein referred to as the International , and Belle White, an individual employee of the Employer, each moved to intervene in this proceeding for the purpose of having their respective names placed on the ballot For reasons herein- after discussed , the Regional Director denied these motions. The only name, therefore, to, appear on the ballot was that of the Petitioner. 79 N. L. R. B., No. 59. 435 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following the election, Local 1250, the International, and Belle White, each filed objections to the conduct of the,election and to con- duct affecting the results of the election. Thereafter, on August 11, 1948, the Regional Director issued a Report on Objections, in which he refused to consider the merits of the objections because none of the objectors had been allowed to intervene and, therefore, none of them was a proper party to file objections. Thereafter, Belle White and Local 1250 each filed Exceptions to the Report on Objections. The International did not file exceptions. On August 18 and 23, 1948, the Employer and the Petitioner, respectively, requested the Board to dis- miss the Exceptions filed to the Report on Objections. In their respective objections, Local 1250, the International, and Belle White contend, inter alia, that the Regional Director erred in excluding each of them from this proceeding by arbitrarily denying their respective motions to intervene for the purpose of having their names placed on the ballot, without first according them a hearing as provided by Section 9 (c) of the Act and as required by the Con stitutional guarantee of due process of law. The Regional Director's ruling in this.respect was based ilpon the Board's construction of Section 9 (f) and (h) of the Act" as pre- eluding it from granting a hearing under Section 9 (c) to a labor organization that has not complied with the requirements of these sub-sections and does not have a contractual interest:' Thus, before denying the objectors' motions to intervene, the Regional Director conducted an administrative investigation in the course of which he ascertained, through his agents, the following facts with respect to each of the objectors : (1) Local 1250 has not complied with the filing requirements of Section 9 (f), (g), and (h) of the Act; (2) the International is the parent body of Local 1250; the con- stitution of the International at Article 8, Section 1 provides that its membership shall function through local unions; Local 1250 has until recently been the bargaining agent of the Employer's employees; and the International has not revoked the charter of Local 1250 nor taken any steps to set up another local union to represent the Employer's employees ; (3) Belle White has been an active member of Local 1250 and a member of its negotiating committee; the authorization cards sub- 3 Section 9 (f) and (h) of the Act, as amended, preclude the Board flout investigating any question concerning representation raised by a labor organization , unless that labor organization has fulfilled certain registration and filing requirements and has furnished to its members copies of financial reports required to be filed 4 Matter of Precision Castings, 77 N L R B 261: Matter of hash wile Cot partition, 77 N L. R B 145. Mattel of Remington Rand . Inc . 77 N I, R B 200 OPPENHEIM COLLINS & CO., INC. i 437 mitted by Belle White were-signed in an office used by Local 1250 upon the request of its officials; and the employees who signed such cards believed that Belle White and Local 1250 were in effect one and the same. The Regional Director concluded that the International and Belle White were acting on behalf of Local 1250 and, as Local •1250 was a noncomplying union, none of the three objectors would, therefore, under established Board policy, be entitled to participate in this pro- ceeding or in any election which the Board conducted. He further concluded that there was no necessity for a hearing, in this proceeding and that no obstacles existed to the conduct of a consent election as desired by the Petitioner and the Employer. He, therefore, overruled the motions of the respective objectors to intervene an'd'proceeded to conduct the election with only the Petitioner on the ballot. We hereby sustain the Regional Director's ruling in this respect for the following reasons : Local 1250 has failed to comply with the filing requirements of Sec- tion 9 (f), (g), and (h) of the Act. Furthermore, it does not allege a contractual interest. Accordingly, it is not entitled to a hearing under Section 9 (c) ; 5 nor may it,participate in any election conducted by the Board under Section 9 (c).e The International has not excepted to the Regional Director's deter- minations of fact with respect to it. Under such circumstances, we find that the Regional Director properly denied the International's motion to intervene and to be accorded a place on the ballot.' Belle White has not excepted to the administrative determinations of the Regional Director that she was an official of Local 1250 and that she used an office room of Local 1250 at the request of its officers for the purpose of soliciting employees of the Employer to sign cards designating her as their bargaining representative. Upon the basis of these uncontested findings of fact administratively determined by the Regional Director, and, without passing upon his determination that the employees "believed" Belle White and Local 1250 were, in effect, i See cases cited under footnote 2 See also Fail v. Douds, 79 F. Supp 582 (D. C , N. Y.), wherein the Court held that the Board properly construed Section 9 (f) as per- mitting it to deny a hearing under Section 9 (c) to a non -complying union , stating, And if 9 (f), does justify exclusion from the ballot , I see no persuasive reason why it does not justify excluding it [a non-complying union] from the Board's facilities at the very threshold of the proceedings - Contrary to the contentions of the objectors , the Constitutional guarantee of due process of law does not always require that a hearing be held. Switchmen's Union v. National Medi- ation Board, 320 U. S 297 , 304, United States v. Babcock, 250, U. S. 328 ; Buttfield v. Stranhan, 192 U S 470,497; Commonwealth v. Cionin, 336 Pa 469, 9 Atl. 2d 408, State Board of Equalization v. Superior Court, 5 Col . 2d 374, 42 P . 2d 1076. National Maritime Union V. Herzog, ,78 F Supp 146 ( D. C DC ) affirmed by the Supreme Court of the United Status, June 21, 1948, 334 U S. 854 i Matter ot.-Lane-Wells Company, 77 N L R B 1051 , Matter of U S Gypsum Co, 77 N. L R B 1098 809095-49-vol. 79-29 438 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD one and the same, we find that the Regional Director properly con- cluded that she was in fact acting as a "front" for Local 1250. As such, she was not, under established Board policy, entitled to partici- pate in this proceeding, ab initio 8 Accordingly, the Regional Director properly denied Belle White's motion to intervene herein and to be placed on the ballot. We further find, as did the Regional Director, that inasmuch as none of the objectors was entitled to participate herein ab initio, neither do they have any standing to file objections to the conduct af- fecting the results of the election since only parties to a representation proceeding may object to the conduct of the election .9 Upon the basis of the entire record in the case, the Board makes the following findings of fact : 1. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act, as amended. 2. All sales employees including part-time employees who work every day or a portion of the day; all employees in the Bureau of Adjustments and Will Call Department, Mail Order Department, General Accounting Department, Auditing Department, Accounts Payable Department, Accounts Receivable Department, Credit Office, Cashiers Department, Buyers' Clericals, Stock Help (Delivery, Re- ceiving and Packing Department employees in the Brooklyn store only), Matrons, Alteration Department, Display Department Trim- mers, Addressograph and Advertising employees in the New York Store only, but excluding shoe clerks in the Women's Shoe Department in the New York store, the secretary to the Advertising Manager, the copywriter, lay-out man, artists, production manager and manager of the Advertising Department, executives, all those employed in a con- fidential capacity and their secretaries, all pay office employees, all delivery, receiving, and packing department employees in the New York store only, all store detectives and other protective employees, all maintenance employees, porters, elevator operators, electricians, car- penters, and painters, all switchboard employees, all buyers and assist- ant buyers, all section managers, those heads 'of stock who spend a major portion of their time in performing supervisory duties, all dis- play department employees except trimmers, stylists, tube room super- visor, personnel department employees, employees of all departments operated by independent contractors or under lease, and all extras, contingents, and seasonal employees, also guards, watchmen, profes- sional employees and supervisors, constitute a unit appropriate for the s lMatter of Campbell Soup Company, 76 N. L. R. B. 950. 9 Matter of Westinghouse Electrzc Corporation, 78 N. L. R. B. 315. OPPENHEIM COLLINS & CO., INC. 439 purposes of collective bargaining within the meaning of Section 9 (b) bf the Act. As the Petitioner has won the election, we shall certify it as the collective bargaining representative of the employees in the appro- priate unit. CERTIFICATION OF REPRESENTATIVES, IT IS HEREBY CERTIFIED that Retail Clerks International Association, A. F. of L., has been designated and selected by a majority of the em- ployees of the above-named Employer, in the unit hereinabove found by the Board to be appropriate, as their representative for the pur- poses of collective bargaining, and that, pursuant to Section 9 (a) of the Act, as amended, the said organization is the exclusive representa- tive of all the employees of such unit for the purposes of collective bar- gaining with the respect to rates of pay, wages, hours of employment, and other conditions of employment. ' CHAIRMAN HERZOG took no part in the consideration of the above Decision and Certification of Representatives.