Thalhimer Brothers, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1951

93 N.L.R.B. 726 (N.L.R.B. 1951)

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THALHIMER BROTHERS, INCORPORATED and HOTEL & RESTAURANT EM-
PLOYEES AND BARTENDERS INTERNATIONAL UNION, AMERICAN FEDERA-
TION OF LABOR, PETITIONER. Case No. 5-RC-716. March 7, 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 John J. A. Reynolds,
Jr., hearing officer. At the hearing, the Employer moved to dismiss
the petition upon various grounds stated below. The hearing officer
reserved ruling on the motion for the Board. For reasons stated
hereinafter, the motion is denied.' 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-member
panel [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer, a Virginia corporation, operates a retail depart-
ment store in Richmond, Virginia. During the fiscal year ending
January 31, 1950, the Employer purchased approximately $14,933,000
worth of goods, of which 90 percent was obtained from sources outside
the State. During the same period, the Employer's sales amounted
to $24,315,000, of which approximately 10 percent represented sales
to customers outside the State.
On these facts, we find, contrary to the Employer's contention, that
it is engaged in commerce within the meaning of the Act, and that
it will effectuate the policies of the Act to assert jurisdiction in this
case.2
2. The labor organization named below claims to represent certain
employees of the Employer.
' One of the reasons advanced by the Employer in support of its motion to dismiss is
based on the following facts : In May 1950 , several months before the instant petition
was filed, the Petitioner filed a petition for certification of representatives in a unit similar
to that here requested . The Regional Director dismissed the petition and no appeal was
taken from this action . The' instant petition was filed on August 25 , 1950 It is the
Employer 's contention that as the instant petition is the second one to have been filed by
the Petitioner within a short period , it "overburdens the Company and makes mockery of
the procedural rules of the Board " In our opinion, the Petitioner is not overburdening
the Employer by its action in filing the present petition . Furthermore , neither the Act
nor the Board 's rules place any limit on the number of petitions that may be filed con-
terning the representation of a unit of employees , although the Act limits the number of
elections which may be held within the same bargaining unit or subdivision thereof within
a period of 12 months Accordingly, we find no merit to the contention of the Employer
2 Federal Dairy Co., Inc, 91 NLRB 638 At the hearing and in its brief, the Employer
contested the Board 's jurisdiction on the ground that the employees in the unit here
requested work in departments which are not engaged in commerce . We find no merit to
this contention as the departments in question are an integral part of the Employer's
operations . Thalhimer Brothers, Incorporated , 83 NLRB 664 and 81 NLRB 1175.
93 NLRB No. 106.
THALHIMER BROTHERS , INCORPORATED 727
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.
The Petitioner seeks a unit composed of all the restaurant employees
employed at the Employer 's retail store, including waitresses , chefs,
dishwashers , salad mixers , kitchen helpers, and soda fountain workers.
The Employer opposes the establishment of a separate unit for its
restaurant employees and contends that only a store-wide unit is
appropriate.
The Employer maintains five different eating places in its store
for the convenience of customers and *employees . These are the soda
fountain in the basement ; the soda fountain on the first floor; the
soup bar on the mezzanine ; the tearoom , also known as the T-Cart on
the third floor; and the employees ' cafeteria on the sixth floor. Each
of these eating places has its own kitchen , makes its own purchases,
and prepares and cooks all the food it serves. The employees assigned
to these restaurant units, of whom there are between 60 and 70, are
classified as chefs, waitresses , dishwashers , salad mixers , kitchen
helpers, and soda fountain workers. These are the employees whom
the Petitioner is here seeking.
In a representation proceeding decided in March 1949, a request
was made by another labor organization for a separate unit of the
Employer 's restaurant employees .3 In that case , the Board held that
it was inappropriate to segregate the restaurant employees apart from
the other store employees for purposes of collective bargaining and
ordered that the petition be dismissed. The Employer contends that
the Board 's earlier decision is res judicate upon the question of
whether the Employer's restaurant employees constitute an appro-
priate unit and therefore the Board may not now reexamine the mat-
ter. We find no merit to this contention. The judicial doctrine of
res judicata has no applicability here .4 The Board, moreover, has
repeatedly held that a prior determination as to the appropriate bar-
gaining unit does not preclude a redetermination of the unit appro-
priate for the employees when a later petition may be filed.'
The Employer also contends that the restaurant employees do not
constitute a sufficiently distinct and homogeneous group to be set
apart for collective bargaining purposes . The record shows that there
is a separate manager in charge of each of the Employer's restaurant
3 81 NLRB 1175.
4 Ahlberg Bearing Company, 56 NLRB 1794 ; Pacific - Greyhound Lines , 9 NLRB 557.
6Inter- City Advertising Company of Greensboro , N C, :Inc ., 89 NLRB 1103 ; Owens-
Corning Fiberglas Corporation , 81 NLRB 441 ; Thompson Products , Inc, 73 NLRB 548;
Endicott Johnson Corporation , 67 NLRB 1342 ; General Motors Corporation, 64 NLRB
688. We also note in this connection , that the Board 's earlier decision was subsequently
overruled in the Allied Stores cjse, discussed supra.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units to whom the employees are directly responsible. These man-
agers are accountable to the divisional merchandise manager who in
addition has authority over the supervisors in the following six sales
departments : Candy, bakery, delicatessen, frozen foods, optical, and
camera and photo reflex. Although dealing with foodstuffs, the
candy, bakery, delicatessen, and frozen foods departments appear to
be operated like the Employer's other sales departments with the
bulk of the personnel consisting of salesclerks. They neither make
their foodstuffs except for the salads sold in the delicatessen depart-
ment nor prepare them for consumption on the Employer's premises.
It further appears that all the Employer's store employees, both
selling and nonselling, are hired under the same processing procedure,
are carried on a single payroll, and receive the same vacation, pension,
insurance, and discount benefits. Unlike the other employees, however,
the restaurant employees receive their noonday meals as part of their
compensation, and two 30-minute relief periods during the day, instead
of a full hour lunch period. Their working schedules, moreover, are
dependent upon the hours which the various restaurant units are open
rather than upon the opening and closing of the store as is the case
of the sales and office employees.6
Recently in Allied Stores of Ohio,' the Board had occasion to con-
sider the appropriateness of a separate unit for restaurant employees
in a retail department store and concluded that such employees were
entitled to separate representation. In that case, the Board observed
that restaurant workers had among themselves a mutuality of em-
ployment interests not shared by other retail stores, selling or nonsell-
ing employees, and that this mutuality existed by reason of their
singularly different work and training skills. In accordance with
its findings, the Board in that case overruled its earlier decision
involving the Employer's restaurant workers. As we do not believe
that the record here warrants a departure from the Board's decision
in the Allied Stores case, we shall establish a separate unit for the
Employer's restaurant employees."
We find that all the restaurant employees employed at the Em-
ployer's store in Richmond, Virginia, including waitresses, chefs,
dishwashers, salad mixers, kitchen helpers, and soda fountain workers,
but excluding guards, professional employees, and supervisors as
6 Although the store opens at 9 a in except on Mondays, the basement soda fountain
opens at 8 a in while the soup bar, the tearoom, and the employee cafeteria do not
open until 11 a. in.
4 Allied Stores of Ohio, d/b/ry A. Polsky Company, 90 NLRB 1868
8 Board Member Murdock, who did not participate in the Allied Stores decision although
agreeing in principle with the unit determination made therein, is of the opinion that the
petition in that case sh^uld have been dismissed for reasons not material to the issues
involved in this case Therefore, his concurrence in the upit finding made herein does not
imply that he agrees that the Allied Stores case was properly decided.
BELK'S DEPARTMENT STORE OF SAVANNAH, GA., INC. 729
defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
BELK'S DEPARTMENT STORE OF SAVANNAH, GA., INC. and RETAIL CLERKS
INTERNATIONAL ASSOCIATION, LOCAL UNION 1604, AFL , PETITIONER.
Case No. 10-RC-1079. March 7,1951
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 Clarence D. Musser,
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-member
panel [Chairman Herzog and Members Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is a Georgia corporation which operates a depart-
ment store in Savannah, Georgia. During the year 1950, the Em-
ployer purchased approximately $400,000 worth of goods for resale,
more than 50 percent of which was shipped to it from outside the State
of Georgia. All sales were local.
More than 50 percent of the capital stock of the Employer is owned
by the Employer's president, W. H. Belk, and his children, who also
hold substantial, and in some cases, controlling amounts of stock in
more than 250 separately incorporated retail stores located throughout
the southern States?
W. H. Belk and two members of his family also are the officers and
part owners of two North Carolina corporations, Belk's Stores Buy-
ing Service, Inc., and Belk Brothers' Company of Charlotte, North
Carolina. These corporations operate buying services, the former in
Charlotte, North Carolina, the latter in New York City, for the use
of the many retail stores in which the Belk family has an interest.
Each of the service corporations has offices and display rooms where
samples of manufacturers' merchandise are on display. Goods are
bought only by store managers or buyers in the name of the individ-
1 At the hearing the Employer moved to dismiss the petition on the ground that it is
not engaged in commerce within the meaning of the Act. For the reasons given in
paragraph 1, bel°w, the motion is denied
2 There are 64 stores in North Carolina, South Carolina, Georgia, and Virginia alone,
in which the Belk family owns a controlling interest
93 NLRB No. 110.