S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Mar 2, 1951

93 N.L.R.B. 614 (N.L.R.B. 1951)

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intervenor and China Dry Goods, quoted above in connection with
the discussion of Case No. 20-RC-1013, and includes the same lan-
guage as the emphasized portion of that quotation. That language
requires the application to certain categories of employees-i. e.,
classifications other than freight handlers and general warehousemen
in the grocery group-of the closed-shop hiring practices established
by the prior contract between Coast Dakota and the Intervenor. As
Coast Dakota's 1950 contract, therefore, contains an illegal union-
security provision, we find that it does not bar the petition in this
case.12 Accordingly we find that a question affecting commerce exists
concerning the representation of employees of the Employer within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find, in accordance with the agreement of the parties, that
all warehouse employees 13 at the Employer's San Francisco, Cali-
fornia, plant, excluding office and clerical employees, salesmen, and
supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act. We will direct a separate election in the unit.
[Text of Direction of Elections omitted from publication in this
volume.]
11 In view of this disposition of the case, it is not necessary to determine whether the
"hiring hall" provisions of Section 3 (b) of the foregoing contract are illegal
13 In accordance with the agreement of the parties, we exclude the bakery serviceman
from the unit.
S H. KRESS & COMPANY and INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL 30, AFL, PETITIONER . Case No. 2-RC-2473.
March 2, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Lloyd S. Greenidge, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-meniber
panel [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
93 NLRB No. 86.
S. H. KRESS & COMPANY 615
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit composed of all the boiler and engine
room employees employed at the Employer's store at 444 Fifth Ave.,
Mew York, New York. It would also include the head maintenance
man or chief engineer and his assistant. The Employer contends that
only a store-wide unit is appropriate.
The Employer, a New York corporation with its principal offices
in New York, operates retail variety stores in 29 States. This proceed-
ing is concerned only with the Employer's store at 444 Fifth Ave.,
New York City, which is a 12-storied structure with 4 basements. This
store is under the over-all supervision of a store manager and employs
a total of about 550 employees. The group here requested consists
of the employees who as part of their duties, operate, maintain, and
repair the boiler and engine room equipment and the air-circulating
and air-conditioning systems. There are 5 employees who perform
these functions, of whom 1 has a steam engineer's license,' 3 have
refrigeration licenses or permits, and 1, a marine license. These em-
ployees maintain a 24-hour schedule with 2 employees on the first
shift, 2 on the second shift, and 1 on the third shift. They make
the rounds every 2 hours, checking the boiler and engine room equip-
ment and keep log sheets of their findings. Their pay scales are the
same as those prevailing in the surrounding area for operating engi-
neers. However, they devote less than one-half their time to power-
house duties. According to exhibits introduced into evidence, such
duties consume about 40 percent of their time, of which 20 percent is
spent tending the boiler and engine room equipment and 20 percent
tending the air-conditioning and air-circulating systems. The re-
maining 60 percent of their working time is spent doing miscellaneous
repair and maintenance work throughout the store. This work con-
sists of repairing and maintaining, among other things, the plumbing
and electrical systems, fire protection equipment, elevators, type-
writers, dollies, and the equipment in the kitchen and laundry.
The record shows that the five employees here sought are carried
on the Employer's payroll as part of its maintenance department or
group. In addition to these five individuals, the maintenance depart-
ment contains the following six employees : One painter, one car-
penter, one upholsterer, one porter-helper, and two night watchmen-
'Although the New York Municipal Code requires that engineers tending steam boilers
be licensed , the Employer 's engineers are not obliged to meet this requirement because they
tend the boilers for only about 30 days of the year. The balance of the time, the boilers
are operated by the New York Steam Company, under a lease arrangement with the
Employer.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porters? The painter and carpenter perform the usual duties associ-
ated with their respective crafts. The upholsterer upholsters and
paints furniture and store equipment. The porter-helper acts as a
helper to the group here requested and in addition does clean-up work.
The night watchmen-porters divide their time between watchmen
duties and polishing brass rails and showcases. All the maintenance
department employees including those here sought receive their as-
signments from and are answerable to either the head maintenance
man or the store manager. There has been no collective bargaining
at the store here involved since 1945.
The Employer contends that the facts in this case do not warrant
the establishment of a separate unit for the five employees in question
apart from the other employees in its maintenance department. We
agree. Although the Board has frequently found appropriate a unit
of boiler room and powerhouse employees, it has required as a con-
dition for finding such a unit appropriate that the employees therein
devote the majority of their working time to powerhouse duties.3 As
the group sought by the Petitioner are not engaged for the greater
part of their time in the performance of such duties, they do not
satisfy the conditions necessary for an appropriate unit. These em-
ployees are, however, part of the Employer's maintenance department
and like the other employees in this department, their main duties are
concerned with store maintenance. In these circumstances, and be-
cause maintenance department employees have been found by the
Board to be sufficiently homogeneous and identifiable to warrant estab-
lishing them in separate units,4 we find that the requested employees
may, together with the other maintenance department employees,
constitute an appropriate unit. As the Petitioner has a sufficient
showing of interest among the employees in the maintenance depart-
ment, we shall order that an election be held among them.
There remains for consideration the question of the inclusion of
the head maintenance man, or chief engineer, and his assistant, the
latter being referred to at the hearing as the electrician. The record
shows that the head maintenance man, or chief engineer, exercises
supervisory authority over all' the maintenance department employees
except the two night watchmen-porters. He assigns them their work
and has the power to effect changes in their status. His workday,
however, ends at 1: 30 p. m. His assistant, on the other hand, is on
2 In enumerating the members of its maintenance department at the hearing, the
Employer also included the head maintenance man, or chief engineer, and his assistant.
These individuals are separately discussed infra.
2 Broadway Department Stores, rue, 82 NLRB 176; Worthy Paper Coin pang Assocta-
taon, 80 NLRB 19
4 Afontgomery Ward & Co , Incorporated , 87 NLRB 254 ; Thalhimer Brothers, Incorpo-
rated, 83 NLRB 664, and cases cited therein.
S. H. KRESS & COMPANY 617
duty until 5 p. in. After the head maintenance man leaves the store,
his assistant acts as supervisor of the maintenance department until
his workday ends. During these hours, the assistant's authority over
the maintenance department employees is the same as that of the head
maintenance man. The assistant also takes over the powers of the
head maintenance man during the latter's other absences from the
store. We are of the opinion that both the head maintenance man
and his assistant, the electrician, are supervisors within the meaning
of the Act. We shall therefore exclude them.
During the course of the hearing, a question arose as to whether
the upholsterer should be permitted to vote in any election ordered
herein. The record shows that this individual was engaged on a
temporary basis to reupholster the chairs in the Employer's cafeteria
and perform other sundry maintenance work. At the time of the
hearing, his work at the store was near completion. As it is clear
that the upholsterer will leave the Employer's service shortly, we find
that he is a temporary employee and therefore ineligible to vote .5
We find that all the employees employed in the maintenance depart-
ment of the Employer's store at 444 Fifth Avenue, New York, New
York, including the boiler and engine room employees or engineers,
the painter, the carpenter, the porter-helper, and the night watchmen-
porters,6 but excluding the head maintenance man and his assistant,
the electrician, and all other supervis"Ors as defined in the Act consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
As the unit found appropriate is broader than the unit sought by
the Petitioner, the Petitioner may, if it desires, withdraw its petition
in this proceeding, provided that it notify the Regional Director for
the Second Region to that effect within ten (10) days from the date
of issuance of this Decision and Direction of Election.7
[Text of Direction of Election omitted from publication in this
volume.]
s Rounds and Kilpatrick Lumber Company, 89 NLRB 1643.
° We have included the night watchmen-porters because the record does not indicate that
they devote more than 50 percent of their time to guard duties. However, if these indi-
viduals do in fact spend more than one-half their time in the performance of guard duties,
they shall be deemed to be excluded as guards.
7 Spaek Shoe Company, 86 NLRB 701.