S. H. Kress & Co.

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