S. H. Kress & Co.

In the Matter of S. H. KRESS & COMPANY and RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL Case No. 10-CA-720.Decided January 26,1950 DECISION AND ORDER On October 28, 1949, Trial Examiner David London issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions, the Respondent's brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, S. H. Kress & Company, New York, New York, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain with Retail Clerks International Associa- tion, AFL, as the exclusive representative of all employees of its Elizabethton, Tennessee, store, including regular part-time sales em- ployees, but excluding the manager, assistant manager, cashier, assist- ant cashier, floorladies, office clerical employees, part-time sales ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [ Chairman Herzog and Members Houston and Murdock]. 88 NLRB No. 79. 292 S. H. KRESS & COMPANY 293 employees who are hired only for the Easter and Christmas seasons, and all guards, professional employees, and supervisors; (b) In any other manner interfering with the efforts of Retail Clerks International Association, AFL, to negotiate for or represent the employees in the aforesaid unit as exclusive bargaining agent. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Retail Clerks Interna- tional Association, AFL, as the exclusive bargaining representative of all employees in the bargaining unit described herein, with respect to wages, rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached embody such under- standing in a signed agreement; (b) Post at its Elizabethton, Tennessee, store, copies of the notice attached to the Intermediate Report, marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region (Atlanta, Georgia) in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. John E. Carey, Jr., for the General Counsel. Mr. John J. Larkin, of New York, N. Y., for Respondent. Mr. tiVn. E. Harvey, of Roanoke, Va., for the Union. STATEMENT OF THE CASE Upon a charge duly filed on May 23, 1949 , by Retail Clerks International Asso- ciation, AFL, the National Labor Relations Board, by its Regional Director for the Tenth Region, (Atlanta, Georgia ), issued its complaint dated July 27, 1949, against S . H. Kress & Company, alleging that the latter had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 (a) (1) and ( 5), and Section 2 (6) and ( 7) of the National Labor 2 Said notice, however , shall be, and it hereby is, amended by striking from line 3 thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, 61 Stat. 136.' Copies of the complaint , together with copies of the charge and notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices , the complaint, as amended at the hearing, alleged in substance : ( 1) That all employees of Respondent 's Elizabeth- ton, Tennessee, store, including regular part-time sales employees , but exclud- ing the manager , assistant manager, cashier, assistant cashier, floorladies, office clerical employees, part-time sales employees who are hired only for the Easter and Christmas seasons, and all guards, professional employees , and 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 ; (2) that on August 27, 1948, a majority of the employees in said unit designated and selected the Union as their representative for the purpose of collective bargaining and that the Union ever since that date has been their exclusive representative for such purpose; (3) that on or about May 4, 1949, and at all times thereafter , though requested by the Union to do so, the Respondent refused and has ever since refused to bargain collectively with the Union as such representative , and by such action has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) and (5) of the Act. In its answer, as amended at the hearing, the Respondent admitted its corpo- rate existence, that it engaged in interstate commerce, that the unit above de- scribed is a proper one, that the Director on August 27, 1948, had reported that in an election conducted by him, a majority of the employees at Respondent's Elizabethton store designated the Union as its bargaining representative, and that on April 7, 1949, the Board issued a certificate "purporting" to certify the Union as bargaining representative of the aforedescribed employees . The answer denied the commission of any unfair labor practices and pleaded three separate affirmative defenses with respect to the election and the subsequent certification by the Board , which defenses Respondent in its brief summarizes as follows : "(1) Certain conduct of the Regional Director was arbitrary , capricious and unrea- sonable and in violation of the Administrative Procedure Act, that such conduct of the Union and its members prevented a free choice of bargaining representa- tive, destroyed the standards essential for an election , that the Board and its representatives acted arbitrarily and illegally in the conduct of the election, and that said election and the certification issued thereon are invalid , and that the Union does not have majority status; (2) the arbitrary, capricious and unrea- sonable denials of Respondent's application for postponement of the election prevented Respondent from participating in the arrangements and conduct of the election ; and (3 ) the arbitrary conduct of the Regional Director in investi- gating Respondent's objections to the election , the Board's denial of a hearing and due process to the Respondent in connection with said objections, all of which constituted a violation of the Act, the Administrative Procedure Act and Respondent's constitutional rights thereby invalidating the election and the certification." Pursuant to notice , a hearing was held at Johnson City , Tennessee, on August 10, 1949, before the undersigned Trial Examiner duly designated by the Chief 'For purposes of convenience , the following contractions and symbols will be observed in later portions of this Report : Retail Clerks International Association, AFL, will be designated as the Union ; the National Labor Relations Board as the Board and Its Regional Director for the Tenth Region as the Director ; S. H. Kress & Company as the Respondent ; the National Labor Relations Act, as amended, as the Act. S. H. KRESS & COMPANY 295 Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by its representative, and all three participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses and introduce evidence pertinent to the issues, was afforded all parties.' Respondent's motion to dismiss the complaint, made at the close of the General Counsel's case, was denied. A motion to conform the pleadings to the proof in matters not of substance was granted without objection. On September 12, Respondent filed a brief with the undersigned. On the basis of the foregoing, the entire record, and the Examiner's observation of the witnesses at the hearing, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation, maintaining principal offices in New York, New York, and Los Angeles, California, and operates a chain of retail stores throughout the United States, including a store at Elizabethton, Tennessee, where it is engaged in the business of retailing low price variety merchandise. It annually purchases for resale at its Elizabethton store merchandise of a value in excess of $100,000, approximately 90 percent of which is purchased outside the State of Tennessee and shipped to the Elizabethton store. It annually sells such goods valued in excess of $100,000, all of which is sold within the State of Tennessee. Respondent admits, and the undersigned finds, that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Retail Clerks International Association, AFL, is a labor organization ad- mitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit; representation by the Union of a majority therein On July 27, 1948, after the usual proceedings, the Board issued a Decision and Direction of Election,' in which it found that "all employees of the Elizabeth- ton, Tennessee, store, including regular part time sales employees, but excluding the manager, assistant manager, cashier, assistant cashier, floorlady supervisors,' office clerical employees, part time sales employees who are hired only for the Easter and Christmas seasons, and all guards, professional employes and su- pervisors 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. On August 6, 1948, Respondent filed with the Board its "Motion to Reconsider and to Amend the Decision and Direction of Election" alleging inter alia, that it has no classification "floorlady supervisors" and that the correct classification should be "floorladies," who are supervisory employees within the meaning of the Act. Accordingly, it requested, inter alia, that the Decision and Direction 2 At the hearing, the Examiner reserved ruling on the admissability of Respondent's Exhibits 2, 3, 7, 8 and 9. Said Exhibits are hereby admitted in evidence. 2 Unpublished. 4 Emphasis supplied. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Election be so amended. On August 23, 1948, the Board ordered that the substitution requested by Respondent be granted and that the Decision and Direction of Election issued on July 27, 1948, be accordingly amended. An election pursuant to said Direction was held on August 27, 1948. Of the 23 employees who participated therein, 19 cast votes for the Union, 3 against, and I. ballot was challenged. On September 3, 1948, the Respondent filed "objections to the conduct of the election and to conduct affecting the results of the election." The Director investigated the objections and on November' 9, 1948, issued his report recommending that the Board find that the objections do not raise sub- -stantial and material issues with respect to the election, that the same should be overruled, and that the Union be certified as the exclusive representative of the employees in the unit certified by the Board. On November 30, 1948, ite- spondent filed its exceptions to said report and thereafter submitted a brief to the Board. On April 7, 1949, the Board, by a Supplemental Decision and Certification of Representative,' overruled all of said objections and again cer- tified the Union as the representative of a majority of the employees of Respond- ent in the unit theretofore found by the Board to be appropriate. The undersigned therefore finds that all employees of Respondent's Elizabeth- ton, Tennessee, store, including regular part-time sales employees, but excluding the manager, assistant manager, cashier, assistant cashier, floorladies, office clerical employees, part-time sales employees who are hired only for the Easter and Christmas seasons, and all guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. It is further found that on, and at all times after April 7, 1949, the Union was, and now is, the duly designated bargaining representative of all of the employees in the appropriate bargaining unit for the purposes of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other conditions of employment. 2. The refusal to bargain On September 8, 1948, following the election among Respondent's employees, one Albert W. Gossett, a representative of the Union, mailed to the Respondent a "copy of proposed contract" for the Elizabethton store, and requested an ap- pointment "for negotiation of the contract." Respondent acknowledged receipt of the contract on September 13 and advised the Union that because Respondent bad "filed objections with the [Board] issuing a certification based on the results of the election" that it would be "pleased to arrange a conference for the purpose of contract discussion" after "the question of representation is properly deter- mined." On April 20, 1949, after the Board's Supplemental Decision and Cer- tification of Representative, the Union telegraphed Respondent advising it of the Board's action, and asked to be notified if Respondent desired to confer for the purpose of contract negotiations. A conference was arranged and at- tended by William E. Harvey, union representative, and John J. Larkin, Re- spondent's employee relations representative, at Johnson City, Tennessee, on May 4, 1949. Larkin at that time advised Harvey that he had checked the last payroll of Respondent at the Elizabethton store on the previous day and discovered that of the "forty employees now in the unit-only seven-still remained from the 5 Unpublished. S. H. KRESS & COMPANY 297 election pay roll," and that, therefore , the Union was not then a representative of a majority of Respondent's employees. He further stated that Respondent was still objecting to the manner and method of the election, and that the election was improperly and unfairly con- ducted. He advised Harvey, however , that the foregoing was merely his per- sonal opinion , that he wanted to consult the executives of the Company in New York before taking a definite position on further bargaining negotiations, and that if the time for negotiations could be extended to May 16 or 17, he would let Harvey know what the position of Respondent 's executives was. Har- vey agreed to such an arrangement. Both men testified that there was no attempt to discuss definitively any of the terms of the proposed contract . Indeed, the contract submitted by Gossett was not before them, as neither man had a copy thereof in the hotel where the conference took place. It was agreed, however, that the Gossett contract was to be considered as having been resubmitted as of May 4, with Harvey, according to Larkin's own testimony, reserving "the right to make changes [at ] the first bargaining conference." At the hearing, Respondent for the first time took the position that, because the proposed contract had a wider employee coverage' than the unit certified by the Board , Respondent was justified in abandoning the negotiations and could not be found guilty of a refusal to bargain. Though there was general talk between Larkin and Harvey on May 4 about the wisdom of including floorladies and office clerical employees in bargaining units for stores such as Respondent was operating, both were in agreement at the hearing that Harvey made no demand' that such floorladies or office clerical employees be covered by any contract that might be negotiated.' Whatever con- versation there was between them on the desirability of a more expansive unit was engendered by Larkin . Both men stated at the conference that insofar as negotiations with Respondent were concerned , the question of coverage and the appropriateness of the unit was settled by the Board 's certification . Nothing that was said by Harvey could possibly be construed as a demand to bargain for any other unit for wider employee coverage than that certified by the Board. Indeed, at the hearing, Larkin was specifically asked on two different occasions whether Harvey ever demanded bargaining rights for employees who had not been in- cluded in the unit certified by the Board , and on each occasion his answer was an unequivocal "No." If any doubt existed as to whether or not Respondent 's refusal to bargain on and after May 4, was, even in part, due to the Union 's alleged demand to bargain in an appropriate unit, such doubt is completely dispelled by Respondent 's letter of May 16 to Harvey, which letter Larkin promised would reflect "the official position of the Company." That letter reads as follows : Article II, section 1 of that contract is entitled "Recognition" and reads as follows : The employer recognizes the Union as the exclusive bargaining agency for all its employees covered by this contract , to wit: employed regular part -time sales people, full-time sales people , and office employees. 7 Other than Respondent ' s present contention that the resubmission of the Gossett contract constituted such a demand. 8 The answer not having pleaded that the inappropriateness of the unit requested by the Union constituted a defense to the present proceeding , the Examiner inquired of counsel whether it then relied on that position . Respondent 's counsel answered , "That will be one of the grounds for a refusal to bargain although it wasn't outlined or treated in that light to Dir. Harvey that is now up here , but it is one of our defenses to the charge of refusal to bargain." 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NAY 16, 1949. Re : S. H. Kress & Co., Elizabethton , Tenn. Store MR. WILLIAM E. HARVEY, Secretary-Treasurer, Retail Clerks Union Local No. 278, P. O. Bow 870, Roanoke 5, Va. DEAR MR. HARVEY : Thank you for your letter of May 5th, receipt of which I delayed acknowledging until I could clear with our executives the matters which we discussed on May 4th. [Emphasis supplied.] The Company considers itself to have received a proposal as of May 4, 1949 from your Local 278 to form the basis of collective bargaining negotia- tions. It is understood you reserved the right to make changes or corrections in this proposal at the first bargaining conference. Upon careful consideration , the Company decided that it cannot accept the National Labor Relations Board certification dated April 7, 1949 based upon the results of the election held August 27, 1948. We maintain that stand- ards essential to the conduct of a valid election were not observed by the Board in the election ; that the election was conducted improperly and un- fairly ; that the results did not represent the freely expressed desires of the employees of our Elizabethton store . Furthermore, the Company cannot accept the National Labor Relations Board's certification as evidence that the R. C. I. A. represents a majority of our employes because, as I informed you, the Union did not represent a majority of employes in the appropriate unit on April 7, 1949 and does not now represent such a majority. In view of this position of the Company, I am not now suggesting a time and place for a meeting in Johnson City. Regards. Very truly yours, S. H. KREss & Co., (S) John J. Larkin, JOHN J. LARKIN, Employe Relations Represent. Larkin's letter makes no reference to a demand by the Union to bargain in an inappropriate unit. Respondent 's objection on this ground was motivated not by a sincere conviction that the Union had made an illegal demand, but by its desire to delay collective bargaining. Its contention that the Union demanded bargaining rights for an inappropriate unit, or a unit larger than the Board had certified , is ungrounded. Equally without merit are the defenses specifically pleaded in Respondent's answer. All of the issues so tendered except "that the Union does not have a majority status," were either acted on by the Board in its Supplemental Decision or pertained to conduct of the Board and the Director prior to the Board's Supplementary Decision. Respondent at the hearing specifically ad- mitted that at no time did the Board-or the Director refuse to receive any and all evidence tendered by Respondent pertaining to the election or the conduct of the Director in making the investigation which preceded his report. Nor did Respondent claim that evidence which it sought to introduce at the hearing pertaining to matters ruled on by the Board was not available to it while the representation proceeding was pending. For the foregoing reasons, the under- signed excluded evidence which either admittedly was in existence , known and available to the Respondent at the time of the representation proceeding, or pertained to matters specifically ruled on by the Board . It is well settled that S. H. KRESS & COMPANY 299 issues which have been fully litigated in a prior representation proceeding may not be relitigated thereafter in a complaint proceeding unless it can be shown that facts not then know had subsequently become available and were of sub- stantial materiality to the resolution of the issues involved. Pittsburgh Plate Glass Company v. N. L. R. B., 313 U. S. 146, 161-162; N. L. R. B. v. West Ken- tucky Coal Company, 152 F. 2d 198, 200-201 (C. A. 6), cert. denied 328 U. S. 866; Allis-Chalmers Manufacturing Company v. N. L. R. B., 162 F. 2d 435 (C. A. 7). Respondent further urged at the hearing "that the Union's majority, . . . as of the present time, as of the time of certification, as of the time of the de- mand . . . is pertinent to this hearing, this proceeding." It was on this theory that Respondent attempted to prove an alleged loss of majority by questioning Harvey as to whether or not, at the time of the hearing, there was "a union member left in the store." The General Counsel's objection to the question was sustained. Respondent's motion for a subpoena to produce "the books and records and membership reports of the Union," apparently to prove a loss of union majority status was granted, as was the General Counsel's motion to quash the same.0 Even if it be assumed that there was an offer of competent proof to show a loss of majority, a view which the Examiner does not enter- tain, "the Board has consistently held that when a Union has been certified after a Board-directed election as the only designated bargaining represent- ative of employees in an appropriate unit, its status as such representative continues for a reasonable time thereafter, normally a year." Webster Manu- facturing Inc., 60 NLRB 163. During that time neither a substantial turn-over among the employees in the bargaining unit, and not even an attempt on their part to revoke their designation of representative is sufficient to justify an employer in refusing to bargain with a duly designated representative. Joe Hearin Lumber, 66 NLRB 1276; Lancaster Foundry Corp., 82 NLRB 1255.10 Here, Respondent chose, as was its legal right, to withhold recognition of the Union until the Board officially certified the Union in an appropriate unit. This occurred on April 7, 1949. To permit Respondent to challenge such a certification within a month of its issuance, would "make chaos out of the administration of the statute and prevent the protection of the very rights which it aimed to secure." N. L. R. B. v. Botany Worsted Mills, 133 F. 2d 876 (C. A. 3). The undersigned therefore finds that the Respondent on May 16, 1949, and at all times thereafter, has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 0 The subpoena was not actually issued. It was deemed to have been issued so as to permit the General Counsel to make a motion to quash. See McMullen-Leavens Co., 83 NLRB 948, Fn. 2. 10 See also Franks Bros. Co. v. N. L. R. B., 321 IT. S. 702; Prudential Insurance Com- pany v. N. L. R. B,, 154 F. 2d 385. (C. A. 6) ; N. L. R. B. v. Highland Park Manufacturing Co., 110 F. 2d 632, 640 (C. A. 4). 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. For that purpose, the undersigned will recommend that the Respondent cease and desist from the unfair labor practices found and from any other acts in any manner interfering with the efforts of the Union to negotiate for or represent the employees as exclusive bargaining agent in the unit herein found appropriate. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Retail Clerks International Association, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All em- ployees of the Respondent's Elizabethton, Tennessee, store, including regular part-time sales employees, but excluding the manager, assistant manager, cashier, assistant cashier, floorladies, office clerical employees, part-time sales employees who are hired only for the Easter and Christmas seasons, and all guards, profes- sional employees, and supervisors as defined in the Act. 3. Retail Clerks International Association, AFL, was on April 7, 1949, and at all times thereafter has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on May 16, 1949, and at all times thereafter, to bargain collec- tively with Retail Clerks International Association, AFL, as the exclusive repre- sentative of all its employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said acts, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7), of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the Respondent, S. H. Kress & Company, of New York, New York, and its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain with Retail Clerks International Association, AFL, as the exclusive representative of all employees of its Elizabethton, Tennessee, store, including regular part-time sales employees, but excluding the manager, assistant manager, cashier, assistant cashier, floorladies, office clerical em- ployees, part-time sales employees who are hired only. for the Easter and Christ- mas seasons, and all guards, professional employees, and supervisors. S. H. KRESS & COMPANY 301 (b) Engaging in ,any other acts in any manner interfering with the efforts of Retail Clerks International Association, AFL, to negotiate for or represent the employees in the aforesaid unit as exclusive bargaining agent. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Retail Clerks International Asso- ciation, AFL, as the exclusive bargaining representative of all employees in the bargaining unit described herein, with respect to wages, rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached embody such understanding in a signed agreement ; (b) Post at its Elizabethton, Tennessee, store, copies of the notice attached to this Intermediate Report, marked Appendix A. Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being -duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) File a written report with the Regional Director for the Tenth Region (Atlanta, Georgia) on or before twenty (20) clays from the date of the receipt of this Intermediate Report, setting forth in detail the manner and form in which the Respondent has complied with the foregoing recommendations. It is further recommended that unless on or before twenty (20) days from the receipt of the Intermediate Report the Respondent notifies said Regional Direc- tor in writing that it has complied with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period , file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or brief, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and, if mimeo- graphed, shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transfer- ring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, and recommendations herein con- tained shall, as provided, in Section 203.48 of said Rules and Regulations, be 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 28th day of October 1949. DAVID LONDON, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT engage in any acts in any manner interfering with the efforts Of RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, to negotiate for or represent the employees in the bargaining unit described below. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described below with respect to wages, rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: 1. All employees of the Elizabethton, Tennessee, store, including regular part-time sales employees, but excluding the manager, assistant manager, cashier, assistant cashier, floorladies, office clerical employees, part-time sales employees who are hired only for the Easter and Christmas seasons, and all guards, professional employees, and supervisors as defined in the Act. S. H. KRESS & COMPANY, Employer. By ----------------------------- (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.