S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 132 (N.L.R.B. 1974)

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. H. Kress & Company and Poor People's Union of
America, Petitioner . Case 10-RC-9687
June 27, 1974
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Bernard L. Middle-
ton of the National Labor Relations Board. Following
the close of the hearing and the filing of a brief by the
Employer, the Regional Director for Region 10 trans-
ferred this case to the Board for decision.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In agreement with the stipulation of the parties,
we find that the following employees of the Employer
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(c)
of the Act:
All selling and non-selling employees at the
Employer's West End Mall Store at 803 Gordon
Street, S.W., Atlanta, Georgia, including office
clerical employees, but excluding professionals,
guards and supervisors as defined in the Act.
5. The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
The Employer contested Petitioner's status as a labor
organization within the meaning of the Act. The re-
cord reveals that Petitioner is an organization in
which employees participate and exists for the pur-
poses, in whole or in part, of bargaining with employ-
ers concerning grievances, labor disputes, wages, rates
of pay, hours, or working conditions. The Hearing
Officer took official notice of the Regional Director's
decision in Nursecare International' in which Peti-
tioner was held to be a labor organization within the
statutory definition. An organizer for Petitioner testi-
fied that employees participated. Finally, Petitioner's
constitution and bylaws, which included provisions
for the holding of meetings and the election of offi-
cers, was introduced into evidence. Organizations
with less formal structures have consistently been held
to be labor organizations within the meaning of the
Act.' Accordingly, we find that Petitioner is a labor
organization.
The Employer sought to introduce evidence to
show that the Petitioner would not or could not meet
its obligations as a labor organization to provide full
representation for employees. The Hearing Officer ex-
cluded evidence of this type. The Board has held that
inquiries such as those raised by the Employer with
respect to the Petitioner's alleged discriminatory poli-
cies 3 and its alleged violation of various Federal stat-
utes ' are outside the scope of a preelection hearing.
Accordingly, we affirm the Hearing Officer's rulings
excluding evidence of such matters.
The supervisory status of the Employer's office
manager was contested by the Petitioner. The record
shows that she effectively recommended the hiring of
seven employees, scheduled and supervised the work
of two office employees, handled the grievances of
these employees on behalf of the Employer, received
higher pay than other employees, and received the
same benefits as other supervisors. Accordingly, we
find that the Employer's office manager is a supervi-
sor within the meaning of Section 2(11) of the Act and
therefore excluded from the unit.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
reptresentative
See, e .g, N L R B v Cabot Carbon Company and Cabot Shops, Inc, 360
U S 203 (1959), North American Rockwell Corporation, 191 NLRB 833,
Midland Broadcasters, Inc, 176 NLRB 107
3 Bekins Moving and Storage Company of Florida, Inc, 211 N LRB No 7
As noted therein, Chairman Miller and Member Jenkins would consider
objections to a labor organization 's capacity to fairly represent employees
only upon the postelection filing of properly substantiated objections to the
issuance of a certification Member Kennedy concurs substantially with that
postelection procedure but would limit consideration to the issue of alleged
discrimination on the basis of "race, alienage , or national origin ." Members
Fanning and Penello affirm the Hearing Officer's rulings for the reasons
stated in their dissenting opinion in Bekins They would not consider allega-
tions of discrimination practices by labor organizations in a precertification
proceeding but would "leave such questions as they may raise, with respect
to the Petitioner ' s willingness or capacity to represent fairly all employees in
the bargaining unit , to be resolved in other proceedings under the Act"
° Hotel Properties, Inc, d/b/a/ The Landmark Hotel and Casino, 194 NLRB
815, Alto Plastics Manufacturing Corporation, 136 NLRB 850
'Case 10-RC-9610 We do not attach any weight in this proceeding to the
Regional Director 's determination in that case since we have long held that
Regional Director 's decisions do not have precedential value : however, we
believe this case relevant in establishing that petitioner has, prior to this
proceeding , held itself out to employees as an available collective -bargaining
212 NLRB No. 12