Service Stores Corp.

National Labor Relations Board - Board Decisions

Jul 6, 1945

62 N.L.R.B. 1161 (N.L.R.B. 1945)

In the Matter of SERVICE STORES CORPORATION and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA
Case No. 6-R-1106.-Decided July 6, 1945
Mr. Gerald J. Reilly, of Bethlehem , Pa., for the Company.
Mr. Pat Mingarelle , of Fairmont, W. Va., for the Union.
Mr. Isadore Engle, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by District 50, United Mine Workers of
America, herein called the Union, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Service
Stores Corporation, Fairmont, West Virginia, herein called the Company,
the National Labor Relations Board provided for an appropriate hearing
upon due notice before W. G. Stuart Sherman, Trial Examiner. Said
hearing was held at Fairmont, West Virginia, on April 20, 1945. The
Company and the Union appeared and participated. All parties were
afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues. At the hearing the
Company moved to dismiss the proceeding on the grounds that (1) the
Board lacked jurisdiction because of the intrastate nature of its business
and (2) the unit sought was inappropriate. Ruling on these motions was
reserved for the Board. For reasons hereinafter stated, the motions are
denied. The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded an
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF' FACT
1. THE BUSINESS OF THE COMPANY
Service Stores Corporation, an almost totally owned subsidiary of Beth-
lehem Steel Corporation, is a Michigan corporation which operates, in all,
62 N. L. R. B., No. 149.
1161
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
four retail stores in the State of West Virginia. The stores are centrally
located within the mining camps at Barrackville, Carolina, Idamay, and
Richard, respectively, and serve primarily the miners and their families
residing in these mining camps. Adjacent to the mining camps are the coal
mines of Industrial Collieries Corporation, which is also an almost totally
owned subsidiary of Bethlehem Steel Corporation, and which supplies 80
percent of its mined coal for war production use at the plants of Bethlehem
Steel Company in Pennsylvania. At all four stores with which we ire here
concerned, the Company sells, at retail, such articles as smoked and fresh
meats, produce, groceries, canned goods, hardware, furniture, clothing, dry
goods, notions, miners' supplies, gasoline, and oil. In the conduct of its
business, the Company purchases a considerable amount of goods for sale
through a centralized purchasing agency serving the Company and the
similarly named Service Stores Corporation, a Pennsylvania corporation,
operating retail stores in the vicinity of the Bethlehem Steel Corporation
mines in Pennsylvania. As part of the purchasing arrangement, goods are,
at times, transferred between the Company's stores in West Virginia and
the stores of the Pennsylvania corporation. Both the Company and the
similarly named Pennsylvania corporation have the same general manager
who attends to the centralized purchasing, and the same president, who is
also vice president in charge of mining operations at Bethlehem Steel
Company. In addition, some of the officers of Bethlehem Steel Company
serve on the Board of Directors of the Company, and all the cashiers and
assistant cashiers of the four stores involved herein are the employees of
the accounting division of Bethlehem Steel Company and not of the
Company.
During the year 1944, the approximate value of purchases made by the
afore-mentioned stores of the Company was $600,000, over 50 percent of
which was received from points outside the State of West Virginia. During
the same year, the approximate amount of the total sales at these stores
was $780,000. Although all sales are made in West Virginia, some of the
sales are made to miners who live at nearby points in Pennsylvania and
commute daily to and from work at the Industrial Collieries Corporation
mines in West Virginia.
The Company contends that the Service Stores Corporation is not en-
gaged in interstate commerce and, therefore, is not subject to the jurisdic-
tion of the Board. We do not agree. The record shows that a large amount
of the Company's purchases is shipped to it from points outside the State
and that, at times, the Company ships some of its goods across State lines.
Although it is apparent that all of the Company's retail sales are local in
character, the courts have held that "the application of the Act does not
depend upon the magnitude of the business nor the comparative amount
of interstate sales," but upon "whether the stoppage of business by reason
SERVICE STORES CORPORATION 1163
of labor strife would tend substantially to affect commerce." 1 Applying that
test, we find that the Company' s business and operations affect commerce
within the meaning of the National Labor Relations Act."
II. THE ORGANIZATION INVOLVED
District 50, United Mine Workers of America, is a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the exclu-
sive bargaining representative of certain of the Company's employees until
the Union has been certified by the Board in an appropriate unit.
A statement of a Field Examiner, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of employees
in the unit hereinafter found appropriate'
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
r -
IV. THE APPROPRIATE UNIT
The Union seeks a unit of all clerks, butchers, truck drivers, and all
other employees engaged in and about the Company's four stores, exclud-
ing cashiers, assistant cashiers, two clerks who work almost exclusively in
United States Post Offices,' and all managers and other supervisors The
Company contends that the unit is inappropriate in that it seeks to include
salaried and hourly rated employees in the same unit. Subject to its motion
to dismiss the Union's petition on this ground, the Company agrees, in
general, with the unit sought except that it would also include in the unit
the two clerks who act as secretaries to the store managers.
There are a total of approximately 65 employees at the Company's four
stores in West Virginia. Of these employees, about 35 percent are on a
salary basis while the rest are hourly rated. The record shows that there is
very little ground for distinguishing between hourly rated and salaried
employees. Employees are hired on the hourly rate and are changed to the
1 See J L Brandeis & Sons v. N. L. R B , 142 F. (2d) 977 (C C X. 8), enf'g 53 N L. R B.
352, 323 U. S. 751, cert . denied.
See Matter of Santa Rita Store Company, 62 N L R B 804, Matter of Whiting-Mead Company,
45 N L R B. 987, Matter of The May Depahnent Stoics Company d/b/a The May Company,
39 N L R B. 471
1 The Field Examiner reported that the Union submitted 49 application for membership cards,
that the names of 38 persons appearing on the cards were listed on the Company 's pay roll of March
1, 1945, which contained the names of 58 employees in the appropriate unit; and that, of these
cards, 46 were dated in January 1945, 2 in February 1945, and 1 was undated
* The petition was amended at the hearing to exclude from the unit cashiers, assistant cashiers,
and these two clerks , described as above set forth It would appear that the two clerks spend very
little time in the actual employ of the Company.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salary mode of payment on the basis of merit and length of service. The
terms and conditions of employment are quite similar throughout all four
stores, the only substantial difference being that salaried employees receive
a somewhat longer vacation period than the hourly rated employees, and
also receive sick leave annually which is not available to the hourly rated
employees.
We have previously considered similar contentions to the one made by
the Company opposing the inclusion of salaried employees-in the same unit
with hourly paid employees and have found them to be without merit. It
is well established that, in determining the appropriateness of a unit, the
Board will refuse to distinguish between employees solely on the ground
of difference in mode of payment, but will look to their general interests,
duties, nature of work, and working conditions.' Accordingly, since the
salaried and hourly paid employees in the unit sought by the Union have
substantially the same general interests, duties, and working conditions, we
find no merit in the Company's contention. Moreover, since the unit sought
is, in general, a functionally coherent one consisting of all the rank and file
employees of the Company devoted to the retail merchandising operations
and is the one normally found appropriate in such a retail business, we are
of the opinion that the employees therein may. function together for the
purposes of collective bargaining.
There remains for consideration the dispute between the parties as to
the inclusion of the two clerks who act as secretaries to the store managers.
The Union would include these employees, while the Company would ex-
clude them as confidential secretaries. One of them, Lorena Lowther, works
at the Barrackville store, and the other, Emma Horvath, works at the
Carolina store. Most of their work consists of keeping records and invoices,
taking orders over the phone, preparing rationing records, maintaining the
files of the store in the manager's office, and tabulating time records. In
connection with this work, they have access to files relating to labor rela-
tions and also prepare letters and memoranda pertaining to such confiden-
tial labor relations matters as the hiring, disciplining, and discharging of
employees. We shall, accordingly, exclude them from the unit as confiden-
tial employees.
We find that all clerks, butchers, truck drivers, and all other employees
in and around the stores, but excluding cashiers, assistant cashiers,' the
clerks who work almost exclusively in United States Post Offices,' the
clerks who act as confidential secretaries to the store managers, and all
5 See Matter of Jones and Laughlin Steel Co,po, atson, Pittsburgh Works, 57 N L R B. 357,
Matter of Edgewater Steel Company, 56 N. L R B 1778
6 As already noted, all cashiers and assistant cashiers of the four stores involved herein are the
employees of the accounting division of Bethlehem Steel Company and not of the Company. The
parties have agreed to exclude them.
7 Adelle Alkire at the Carolina store and William F Reger at the Idamay store are the employees
involved. The parties aie in agreement as to the propriety of their exclusion.
SERVICE STORES CORPORATION 1165
managers or any other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which has
arisen be resolved by an election by secret ballot among the employees in
the appropriate unit who were employed during the pay-roll period imme-
diately preceding the date of the Direction of Election herein, subject to
the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National'Labor Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with Service Stores Corporation,
Fairmont, West Virginia, an election by secret ballot shall be conducted as
early as possible, but not later than thirty (30) clays from the date of this
Direction, under the direction and supervision-of the Regional Director for
the Sixth Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period imme-
diately preceding the date of this Direction, including employees who did
not work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but excluding
any who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, to determine whether
or not they desire to be represented by District 50, United Mine Workers of
America, for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.