S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Nov 8, 1950

92 N.L.R.B. 15 (N.L.R.B. 1950)

In the Matter of S. H . KRESS & CO., EMPLOYER and RETAIL CLERKS
UNION, LOCAL No. 24, AFL, PETITIONER
Case No. 30-RC-339.-Decided November 8, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 4c)' of the National Labor
Relations Act, a hearing was held before H. G. Borchardt, 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-mem-
ber panel [Members Houston, Reynolds, 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
employees of the Employer.
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 consisting of all sales clerks, stock
clerks, window display employees, and janitors, but excluding office
employees, soda and lunch department employees, learners, part-time
employees, and all supervisors as defined in the Act. However, if
the Board finds that its proposed unit is inappropriate, the Petitioner
desires to proceed to an election in a unit composed of all selling and
nonselling employees of the Employer. The Employer takes the posi-
tion that a store-wide unit comprising all selling and nonselling em-
ployees is the only appropriate unit.
The Employer operates a chain of retail stores throughout the
United States, retailing low-priced variety merchandise. Only the
store located at Pueblo, Colorado, is involved in this proceeding.
'The Employer moved to dismiss the petition on the grounds that: (a) The unit, as
amended, is inappropriate , and (b ) the Petitioner 's showing of representation is not
adequate. As to ( a) the motion is denied for the reasons given below . As to (b) the
motion is denied for the reasons stated in O. D. Jennings, 68 NLRB 516.
92 NLRB No. 4.
15
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This-istore consists of a 2-story building, the main floor of which is
devoted to selling and is divided into approximately 13 departments,
including the soda and lunch department. The second floor con-
sists of a store office, a sample office, stock bins, fixture rooms, and
recreation rooms, while the basement contains a soda lunch kitchen
and a stockroom. The entire operation,is under the-general super-
vision of a store manager assisted by 5 floor ladies, each of whom
supervises several departments. There is no history of collective
bargaining affecting any of the Employer's employees.
The record shows that the Employer's employees perform func-
tions typical to the operation of the usual type of 5- and 10-cents va-
riety merchandise store. Sales clerks sell merchandise over the coup=
ter to customers,-and perform related functions. Stock clerks. receive
freight, check merchandise f,Qr breakage, prepare bin tickets, mark
,stock in preparation for resale, and`fill orders-for the sales floor. Office
employees do general office work, place change in registers each morn=
ing, read registers, count the tax collected, and assist the cashier. A
sample clerk takes care of price changes, orders merchandise, keeps
certain records, and performs other related duties. The soda and
lunch department operates under the supervision of a stewardess. It
consists of a cook, a baker, several sales clerks, a fountain boy, and
a sandwich girl, all of whom perform the duties usually incident to
their respective job classifications.
All employees of the Employer are subject. to substantially the
same schedule of hours, working conditions, and personnel policies,
including regular induction and special-on-the-job training, and en-
joy the same benefits, such as vacations, bonuses, store privileges, pen-
sions, and group insurance.
As noted above, the Petitioner and the Employer differ on the
composition of, the unit, mainly with respect to' the inchision-of- the
office employees and the soda and lunch department employees. The
Petitioner contends that these employees, whom it would exclude from
the unit, are within the jurisdiction of other labor organizations, and
that it desires to exclude these employees in order to -avoid juri.sdic-
tional disputes. However, we have frequently held that, standing
alone, a jurisdictional limitation on membership. is not a valid reason
for excluding employees from a bargaining unit if their. inclusion in
the unit would otherwise be appropriate.'
The Board has frequently pointed out the appropriateness * of a
unit embracing all selling and nonselling employees in a department
2 Denton's Inc., T/A The Robins on-Scheoe it Store, 83 NLRB 35 ; Maas Brothers, Inc.,
88 NLRB 129.
S. H. KRESS & CO. 17
store.3 In particular, we have on numerous occasions noted the strong
mutual interests which office clericals share with the sales personnel,
and have for this reason included them in the over-all store unit, when
no other union sought to represent them in a separate unit 4 We find
no reason for departing from that principle in the instant case and
shall, accordingly, include the office employees in the unit. We like-
wise find no persuasive reason for excluding the soda and lunch de-
partment employees. Their interests in collective bargaining are the
same as those of other employees in the unit and no labor organiza-
tion is seeking to represent them separately.5 We shall, therefore, also
include them in the unit .6
We find that all employees of the Employer, at its Pueblo, Colorado,
store, including regular part-time employees,7 office employees, and
soda and lunch department employees, but excluding, professional
employees, guards, floorladies, the stewardess, and assistant stew-
ardess," the learner,9 the cashier,10 and all other 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.
[Text of Direction of Election omitted from publication in this
volume.]
3 Grossman Department Store, Inc., 90 NLItB No. 275; Sears, Roebuck and Company, 90
NLRB No. 152, and cases cited therein. As in the latter case, the instant case does not
pose the question of whether a unit confined to sales employees as such is appropriate
.for neither of the alternative units proposed by the Petitioner is so confined.
4 Denton's Inc., T/A The Robinson-Schwenn Store, supra, and cases cited therein.
Cf. Allied Stores of Ohio d/b/a A, Polsky Company, 90 NLRB 1868.
Wise, Smith S Company, Inc., 83 NLRB 1019.
7 There are approximately 31 regular part-time eihployees whom the Petitioner would
exclude from the unit. However, as the record shows that the employees do the same
type of work as full-time employees, and have a regular work schedule, we shall include
these employees in the unit. Burrows ci Sanborn, Inc., 81 NLRB 1308.
s We shall exclude the stewardess and assistant stewardess as it appears from the
record that they exercise supervisory functions within the meaning of the Act.
9 The parties agree and the record shows that there is one "learner " who is in training
for the manager ' s job and exercises supervisory authority . We shall, accordingly , exclude
him from the unit.
10 We shall exclude the cashier as the record shows that she is in charge of the office
and exercises supervisory functions with respect to the office employees.
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