S. S. Kresge Co.

National Labor Relations Board - Board Decisions

Mar 30, 1967

163 N.L.R.B. 704 (N.L.R.B. 1967)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 101.17 of the Board's Statements of
Procedure provides:
If a petition is filed by a labor organization
seeking certification, . . . the petitioner must
supply, within 48 hours after filing but in no
event later than the last day on which the
petition might timely be filed, evidence of
representation . [Emphasis supplied.]
The Board has repeatedly held that representation
evidence is an administrative matter , not subject to
direct or collateral attack.' Notwithstanding the
literal wording of the aforesaid procedural
statement , the Board has, in appropriate
circumstances , accepted as adequate a showing of
interest submitted as late as during the course of a
hearing .4 Nothing in the Act or in the Board Rules
and Regulations , Series 8, as amended, requires
that the interest showing be submitted with the
petition . We have observed that Section 101.17 is
procedural only, intended for the -Board's
convenience "to screen out those cases in which
there is so little prospect of the Petitioner winning an
election, if directed, as not to warrant the Board
incurring the expense of further proceedings on the
petition . Such investigation has no bearing on the
issue of whether a representation question exists."5
In any event, we do not construe the italicized
language of Section 101.17, above, as applicable to a
situation where, as here, there is no definite date,
which is ascertainable in advance, for the timely
filing of a petition . In other words, we distinguish the
situation here from one, for example, where a
petition to be timely must be filed prior to the last
day before the insulated period of an existing
contract with another labor organization. Where, as
in the instant case , there is no existing collective-
bargaining contract and two or more unions are
simultaneously engaged in organizing the same
employees, it would obviously be at variance with
the intent and purpose of the provision to apply it in
the manner the Employer urges. Under such an
interpretation the employer and one union, by
hastily executing a collective-bargaining contract on
the day a petition by a rival union was filed, could
require the showing of interest of the rival to be
submitted simultaneously with the filing of the
petition , rather than within 48 hours, and thus
reduce the time the Board ordinarily allows a
petitioner to submit its showing of interest. And if
the petitioner were unaware of the execution of the
contract and delayed filing the supporting showing
of interest in the good-faith belief that it had 48 hours
in which to do so, the petition would become a nullity
and the employees would be deprived of an
opportunity to choose between the competing unions
in a secret election. Section 101.17 was not intended
to have this inequitable effect.
We find, therefore, that under the circumstances
the Petitioner' s submission of its showing of interest
within 48 hours of the filing of the petition was
timely. Accordingly, as the petition was timely filed
under the DeLuxe Metal rule, and as the Employer
received timely notification of the filing of the
petition before it signed the collective-bargaining
contract with the Intervenor, we find that the said
contract is not a bar to this proceeding.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees at the
Employer's Fredericksburg, Virginia, plant,
excluding office clerical employees, professional
employees, watchmen, guards, and supervisors as
defined in the Act.
[Text of Direction of Election6 omitted from
publication.]
9 Continental Carbon, Inc., 94 NLRB 1026; Standard Oil
Company (Indiana), 80 NLRB 1275.
' O. E. McIntyre, Inc., 118 NLRB 1290; Channel Master
Corporation, 114 NLRB 1486, 1487. Indeed the Board will permit
a petitioner to submit a showing of interest even after a hearing
where the Board directs an election in a unit broader than that
initially sought . National Welders Supply Company, Inc., 129
NLRB 514,517.
s The Sheffield Corporation, 108 NLRB 349, 350.
6 An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 5 within 7 days after the
date of this Decision and Direction of Election. The Regional
Director shall make the list available to all parties to the election.
No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances . Failure
to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed. Excelsior
Underwear Inc., 156 NLRB 1236.
K-Mart , A Division of S. S . Kresge Company;
Gallenkamp , Stores Co.; Mercury
Distributing Company; Holly Stores, Inc.
and Retail Clerks Union Local 770, Retail
Clerks International Association , AFL-CIO,
Petitioner . Case 31-RC-141.
MARCH 30,1967
SUPPLEMENTAL DECISION AND DIRECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
On June 13, 1966, the National Labor Relations
Board issued a Decision and Direction of Election in
the above-entitled proceeding.' The Board was
thereafter administratively advised that after the
original hearing in this case Holly Stores, Inc., had
commenced operations as another licensee of K-
Mart at the San Fernando store here involved.
Accordingly, the Board, on June 22, 1966, issued an
Order amending direction of election, wherein the
Board amended its Decision and Direction of
' 159 NLRB 256.
163 NLRB No. 88
K-MART, DIV. OF S. S. KRESGE CO. 705
Election of June 13, 1966, by striking in their entirety
the first and second paragraphs on page 262, begin-
ning with the words "We find" and "All regular,"
and substituting therefor the following paragraphs:
We find, in accordance with the stipulation of
the parties, and our findings above, that the
following employees of K-Mart and its licensees
constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of
the Act:
All regular full-time and part-time employees,
including employees of K-Mart and those of its
licensees, employed at K-Mart's San Fernando,
California, store, including selling, nonselling,
and office clerical employees, but excluding
professional employees and supervisors as
defined in the Act.
Thereafter, on July 1, 1966, Holly Stores, Inc.,
filed with the Board an "objection" to the issuance
of the Board's Order of June 22, "without notice,
without a hearing, and without affording Holly
Stores, Inc., an opportunity to be heard ...."2
On July 12, 1966, the Board issued a notice
ordering Holly Stores, Inc., to show cause why its
- 'ection should not be overruled, for the reasons
..at Holly's objection did not indicate either (1) that
Holly Stores, Inc., was prejudiced in any way by the
fact that the unit finding made in this case was based
upon evidence adduced at a hearing which was held
apparently prior to the time when Holly entered into
a license agreement with K-Mart, or (2) that the facts
adduced at the hearing with respec' to the joint
employer relationship between K-Mart and the then
existing licensees differed in any material respect
from the facts relating to the relationship between K-
Mart and Holly at the San Fernando store. The
notice directed Holly to state in detail those facts
which distinguished its relationship with K-Mart
from that of the other licensees, and gave the other
parties opportunity to respond to Holly's statement.
On July 22, 1966, Holly filed with the Board a
written statement contending that Holly "has, as a
matter of law, a right to a hearing ... and ... there is
no obligation or requirement that it `show cause'
therefor." Holly did not, as directed in the notice,
specify those facts relating to the joint employer
issue . No response was filed by any other party.
After giving further consideration to the matter,
the, Board, on November 10, 1966, issued an Order
reopening record and remanding proceeding to the
Regional Director for further hearing. In its Order
the Board directed that a further hearing be held to
receive evidence on all issues pertaining to this
proceeding as it may affect Holly Stores, Inc., and
particularly on the question of whether a licensing or
joint employer relationship exists between Holly and
K-Mart.3
Pursuant thereto, a further hearing was held on
December 7, 1966, before Hearing Officer Norman
H. Greer.4 The Hearing Officer's rulings made at
the hearing are free from prejudicial error and are
hereby affirmed. A brief was filed by Holly Stores,
Inc.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
At the further hearing the parties stipulated that:
(1) the facts adduced at the hearing in K-Mart, A
Division of S. S. Kresge Company, Cases
12-RC-9128, 9130, and 9309,5 with respect to the
relationship between K-Mart and each of its
licensees, are "equally applicable to the relationship
between K-Mart and Holly Stores"; (2) the
"licensing arrangement existing between K-Mart
and Holly Stores, Inc., is of the same type as was
present in those cases"; and, (3) the day-to-day
"practice" of K-Mart and Holly with respect to
Holly's employees is "in all material respects ...
comparable to the arrangements and the practices
described in the record of those cases . . . ." The
parties also agreed that Holly Stores, Inc., is a
subsidiary of S. S. Kresge Company, but that Holly
is a separate corporate entity, and that K-Mart is a
division of S. S. Kresge Company and not a separate
corporation.
Based upon the foregoing and the entire record in
this case, we find that K-Mart is a joint employer of
Holly's employees at the San Fernando store, and
that Holly's employees are included in the unit
heretofore found appropriate in our Decision and
Direction of Election of June 13, 1966, as amended
by our Order of June 22, 1966.
DIRECTION
It is hereby directed that the Regional Director for
Region 31 open and count the ballots impounded
pursuant to our Order of July 7, 1966, and in
accordance with our Decision and Direction of
Election of June 13, 1966 , as amended , by our Order
Y On July 7, 1966, the Board issued a telegraphic order
directing the Regional Director (1) to proceed with the election
pursuant to the Board 's Decision and Direction of Election of
June 13, as amended on June 22 , 1966, (2) to permit the
employees in the department operated by Holly Stores, Inc , to
vote subject to challenge , and (3) to impound all ballots cast in the
election.
' In this Order the Board also stated that in deciding that a
further hearing was warranted "in the special circumstances of
this case" it was not holding that an employer who becomes a
licensee subsequent to a Board hearing has, as was contended by
Holly, a "right " to a hearing as a "matter of law "
' After the hearing and pursuant to the Board 's Order of
November 10, 1966, the case was transferred to the Board for
decision
5 The Board' s Decision and Direction of Election of June 13,
1966, in the instant proceeding was based , in part, upon evidence
adduced at the hearing in Cases 21-RC-9128, 9130, and 9309. See
K-Mart, A Division ofS S Kresge Company, 159 NLRB 256, fn 3
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of June 22, 1966, and by this Supplemental Decision
and Direction, and that he proceed further in
accordance with the National Labor Relations Board
Rules and Regulations and Statements of
Procedure, Series 8, as amended.
Beacon Photo Service, Inc., Employer-
Petitioner and Blueprint , Photostat &
Photo Employees Union , Local249,
International Jewelry Workers Union,
AFL-CIO. Case 29-RM-107.
March 30, 1967
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Richard J.
Weisberg. 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 National Labor Relations Board has
delegated its powers in connection with this case to a
three-member panel.
Upon the entire record in this case, including the
briefs filed by the Employer-Petitioner and the
Union, 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 employees of the Employer.
3. The Union contends that the Board should
defer to the arbitration procedure of the collective-
bargaining contract to which the Employer and the
Union are parties and dismiss the petition.
The Employer is engaged in the business of
developing and processing photographic film for the
general public. For many years, it has been a
member of an employer association which has
bargained with the Union on a multiemployer basis.
The collective-bargaining contract presently in
effect provides:
Article I, Section 1:
The Association recognizes that the Union
represents a majority of all the employees
employed by the Employer members of the
Association, individually and collectively. The
Association on behalf of itself and all of its
members hereby recognizes the Union as the
i Pullman Industries , Inc, 159 NLRB 580
sole collective-bargaining agent for all
employees of the Employers who are members
of the Association.
Article II, Section 1 G:
The term "plant" or "shop" as used herein
means each separate photo finishing plant or
plant doing work connected with photo
finishing, maintained by an_Employer in New
York Metropolitan Area, and this collective
agreement shall apply to such "plants" or
"shops".
Article VII, Section 3:
Any disputes, differences or grievances which
may arise concerning the terms of this
agreement or the performance of the terms of
this agreement or any other disputes,
differences or grievances connected with this
agreement, shall be settled by arbitration which
said arbitration must commence within five
days after written demand therefor.
Until the summer of 1965, the Employer had only
one plant which was located in Brooklyn, New York.
In July 1965, it opened a second plant in Rockville
Centre, Long Island, New York, about 25 miles from
the Brooklyn plant. In May 1966 the Union
requested the Employer to recognize it as the
bargaining representative of the Rockville Centre
plant employees, asserting that recognition was
required by the terms of the existing collective-
bargaining contract. The Employer refused the
request upon the ground that the Union did not
represent a majority of employees at the Rockville
Centre plant. Thereafter, the Union initiated
proceedings to compel arbitration of a grievance
based on the Employ.:r's refusal to grant the
recognition requested, and the Employer filed the
present petition.
There are two issues presented by this case:
(1) whether the multiemployer collective-bargaining
contract relied upon by the Union was intended to
cover the subsequently established Rockville Centre
plant; and (2) whether, assuming the first question is
answered in the affirmative, the contracting parties
could so extend the contract to the Rockville Centre
plant without the consent of the latter's employees.
The first question can be answered by an arbitrator,
but the second question is only for the Board. Even if
an arbitrator should decide that the existing contract
was intended to cover employees to be hired after
the execution of the contract at new facilities of the
Employer, the Board will nevertheless refuse to find
the contract a bar to a petition seeking to resolve a
question of representation at the new facilities
unless these are an accretion to the contract unit.'
163 NLRB No. 98