J. C. Penney Co., Store No.139

National Labor Relations Board - Board DecisionsFeb 15, 1965

151 N.L.R.B. 53 (N.L.R.B. 1965)

J. C. PENNEY COMPANY, STORE NO. 139 53 J. C. Penney Company, Store No. 139 and District Lodge No. 160, International Association of Machinists, AFL-CIO, Petitioner. Case No. 19-RC-3394. February 15, 1965 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 Hearing Officer Patrick C. Murphy. The Hearing Officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed.' Briefs were filed by both the Employer and the Petitioner. Upon the entire record in this case, the National Labor Relations Board 2 finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. The Employer is a member of Olympia Retail Store Association which had a collective agreement with the Intervenor effective from June 1, 1963, until June 1, 1964. The petition for a unit of all em- ployees engaged in automotive repair including apprentices and help- ers at the Employer's store, was filed on February 20, 1964. The Employer contends, contrary to the Petitioner and Intervenor, that its automotive service or repair department is an accretion to the unit covered by the Association contract and that this contract is therefore a bar to the petition. The Association contract does not in- clude a description of the bargaining unit. Under the "wages" sec- tion, the minimum rates for men and women in department stores are set out without any listing of specific salaries for employees in par- ticular departments. The record shows that the parties intended that sales people and merchandise, stockroom, and receiving clerks be cov- ered by the contract. However, Pemberton, Penney's store manager, testified that there was no discussion of auto service job classifications during the contract negotiations because, at the time of the negotia- tions in early September 1963, its auto service department was not yet 1 Retail Clerks International Association, Local Union No. 309, AFL-CIO, hereinafter called Intervenor, was allowed to intervene at the hearing on the basis of its contract with the Employer and for the purpose of protecting its rights thereunder. 2 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 McCulloch and Members Fanning and Brown]. 151 NLRB No. 11. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in existence . Actual construction of the auto service area did not begin until the latter part of September 1963, and the auto service department did not open for business until November 21, 1963. The Intervenor has indicated that it does not wish to represent the em- ployees in question and has not bargained for them heretofore. In view of the above, and of our holding made hereinafter that the auto repair department constitutes a functionally distinct, homogeneous unit separate from other selling and nonselling.employees, ' we find that the auto repair department is not an accretion to the unit repre- sented by the Intervenor and that the Association contract is there- fore not a bar to the petition.' 4. The Petitioner seeks to represent the automotive repair em- ployees in the Employer's auto service department. The Employer contends that only a storewide unit is appropriate. The Employer's Olympia operation consists of a retail store and an annex situated adjacent to the main store's parking lot, about a block from the maul store. The annex houses the automotive service department, an ,into sales center where tires, batteries, and auto ac- cessories and parts are sold, a sporting goods department, and a hard- ware and paint department. The auto service department is separated from the selling areas in the annex by offices and a fire wall. Nine individuals regularly work in the annex. Smith, department manager of the auto center, and another employee sell automotive sup- plies. Under separate supervision are two employees in the hard- ware department, and one in the sporting goods department. These employees may occasionally sell in departments other than the one to which they are regularly assigned. The TAM petition. seeks a unit limited to the employees who work in the auto service department, under Smith's supervision.' At the time of the hearing there were four such employees. Two of the four, Gipe and Langebach, are journeymen mechanics, who have completed State-approved ap- prenticeship programs and who are classified by the Employer as serv- ice specialists. They are responsible for training the two less ex- perienced auto service employees who are classified as servicemen. All four service employees mount and balance tires, do lubrication and brake repair jobs, work on front-end alignment, and install muf- flers, tailpipes, shock absorbers, and radios. The employees also do engine tuneups which include cleaning, renewing, and adjust ing spark plugs, testing batteries, checking engine compression, cleaning termi- nals, renewing and adjusting distributor points and carburetor points, setting ignition timing, and adjusting carburetor idle speed and fan 3 See General Electric Supply Co)poiation , 83 NLRB 1135 4 The parties have agreed to exclude Smith as a supervisor J. C. PENNEY COMPANY, STORE NO. 139 55 belt. In the course of this work, the auto service employees may re- place carburetors, generators, and starters, but they do not repair them. Parts and auto accessories installed by the service employees are pur- chased by customers in the auto center. No major engine overhaul or rebuilding work is performed for the general public, although at least two of the service employees are qualified to do such work, and have done so in a few instances for employees of Penney. No electrical, transmission, or power steering work is done by these employees for the public. In the course of their work, the auto service employees utilize about $10,000 worth of equipment, including two tire machines that "break down" the tire; a front-end alignment machine, the most complicated piece of equipment in the shop; a brake machine; two hoists; a volt- meter; a battery charger; two hydraulic jacks; and hand tools. The procedures for using this equipment and for performing the above- mentioned repairs (with the exception of tuneup work) are set out in a service manual published by Penney. No printed procedure is given for tuneup work, as the employees are expected to draw on their own knowledgeand experience. Auto service employees do not ordinarily mark, price, or store auto- motive parts or equipment, nor do they ordinarily go outside of the service area to obtain parts. They do not regularly sell parts or sup- plies in the selling areas of the annex.' The extent of their selling duties is apparently to suggest to a customer that he needs a new part. The actual order slip is written up by Gipe, but he does not ordinarily handle cash or ring up sales. There are no salesmen stationed in the auto service area. Sales personnel and auto service employees do not interchange, and none of the sales people is qualified to perform the full gamut of service jobs. Gipe and Langenbach were hired at a rate which is a dollar higher than the highest starting rate in the Clerks' contract, while the service- men were also hired at more than the Clerks' highest starting rate. The auto service employees wear coveralls while the selling employees in the annex wear coats. The annex opens for business a half hour before the main store. Personnel and merchandise records for the annex are kept in the main store. All employees enjoy the same fringe benefits,' attend store meetings, and use the same lunchrooms. In hiring the auto service employees, the store manager testified that he was looking for well-qualified men who could operate the type of equipment used and who had a general, broad background as auto 6 The record indicates that auto service employees might sell in the selling areas of the annex when there is no salesman around and a customer requests their helps, but this would be unusual. 6 Only the auto service employees are covered by State industrial insurance. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mechanics. When the department opened the Company advertised that it had "skilled mechanics" available. Prior to the opening, classes were conducted by a specialist from New York on the use of the various machines. This specialist still visits every few months for several days of on-the-job training. The store manager could not say whether the auto service depart- ment might later be expanded to include other types of repair work. An IAM• representative testified that with the equipment in the shop the service employees could do any major overhaul job. He also testi- fied that IAM represents auto service employees in other department stores in the area having similar equipment, although with a broader operation. No other member of the employer association to which Penney belong has an auto service department. Recently, in Montgomery Ward d Co., Incorporated, 150 NLRB 598, we held that a separate service department unit of mechanics, tire mounters, seat cover installers, stockmen, and gas island attendants was appropriate in a retail department store. In so doing, we relied upon the facts that the department contained a nucleus of skilled em- ployees, the mechanics, and that the record indicated there was no close relationship between the work of the requested employees and other employees at the store. The record in this case likewise persuades us that the automotive repair employees are a homogeneous and identifiable grouping, depart- mental in character and sufficiently distinct from the other depart- ments in the store to warrant their separate representation. The four service employees, two of them journeymen mechanics, spend much of their time doing mechanical work, such as automotive tuneups, brake repair, and front-end alignments, which involves the exercise of sub- stantial skills. They work in a separate area of the annex and have little contact with sales personnel. No interchange exists between them and sales personnel. They receive a higher wage than the employee who sells automotive supplies, and dress differently from the salesmen in the annex. We note also that the Intervenor already represents the sales employees and does not wish to represent the automotive repair employees. Accordingly, we find that the following employees of the Employer at its Olympia, Washington, store constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. All employees engaged in automotive repair work, including appren- tices and helpers, but excluding all other employees, office clerical em- ployees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.]