Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Mar 31, 1965

151 N.L.R.B. 1356 (N.L.R.B. 1965)

1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unemployment compensation benefits in computing back pay in not to make the-
employees more than whole .... In framing an order to reimburse employees for
their lost earnings, manifestly no consideration need be given to collateral benefits
which employees may have received."' Moss Planing Mill Co., 110 NLRB 933.2
CONCLUDING FINDINGS
Respondent, in its brief, admits, and I find, that the specifications correctly specify
"the back pay period and the method of computation of the quarterly gross back pay
due Thielen." That aggregate gross backpay for the period June 15, 1963, to May 30,
1964, amounts to $2,383.62. The specifications properly report, and credit against
that amount, Thielen's interim earnings of $300 for work at her father's plant in
March, April, and May, 1964. In addition, it has previously been found that Thielen
was physically incapacitated during the period January 21 to February 21, 1964,
during which period her gross earnings were specified in the sum of $122.51, which
amount should also be deducted from the principal sum due her. Based on the fore-
going computation, I find and conclude that there is presently due Thielen the prin-
cipal sum of $1,961.11, with interest thereon as hereafter recommended.
RECOMMENDED ORDER
On the entire record, it is recommended that the Board adopt the foregoing find-
ings and conclusions, and that Respondent be required and ordered to pay Celeste M.
Thielen the sum of $1,961.11, with interest thereon at the rate of 6 percent per annum
on each of the quarterly sums found due her from the end of each calendar quarter
as set forth in the backpay specifications (Isis Plumbing & Heating Co., 138 NLRB
716), less tax withholding as required by law.
Respondent not yet having complied with the terms of the Board's order to rehire
Thielen, it is further recommended that the Board's order in this supplementary pro-
ceeding include a reservation of her further backpay rights accruing after May 30,
1964, and that the Regional Director for Region 18 be authorized to conduct, if neces-
sary, additional backpay proceedings for the period subsequent to May 30, 1964.
2 The Board's ruling In Moss Planing Mill Co , supra, was reversed by the Circuit Court
of Appeals for the Fourth Circuit as reported in 224 F. 2d 702. With all due respect for
the views of that court, "it is not for a Trial Examiner to speculate as to what course
the Board should follow where a circuit court has expressed disagreement with its views.
On the contrary, it remains the Trial Examiner's duty to apply established Board precedent
which the Board or the Supreme Court has not reversed." Insurance Agents' Interna-
tional Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768;
Iowa Beef Packers, Inc , 144 NLRB 615.
Sears, Roebuck and Co.' and General Drivers Union, Local 332,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind.,2 Petitioner. Case No.
7-RC-6054. March 31, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a heaving was held before Hearing
Officer Joseph Bixler. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
i The name of the Employer appears as amended at the hearing
2 The name of the Petitioner appears as amended at the hearing.
151 NLRB No. 136.
SEARS, ROEBUCK AND CO. 1357
Upon the entire record in this case, including briefs filed by all
parties, the National Labor Relations Board funds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act, and it will effectuate the purposes
.of the Act to assert jurisdiction herein.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
4. Petitioner seeks to represent all employees of the Employer's
Water Street warehouse, Flint, Michigan, excluding office clerical
employees, guards, and supervisors as defined in the Act.3 The
Employer contends that the unit is too limited in scope, and that the
petition should be dismissed.
The Employer is engaged in retail department store operations in
Flint, Michigan. It conducts its business in several separate build-
ings, including a retail store, parts and service building (appliance
service center), building center building, service station (auto service
center), and two warehouses known as the Second Avenue ware-
house 4 and the Water Street warehouse.-5 The Water Street ware-
house is 41/2 blocks south of the retail store. All other buildings are
within a radius of three blocks from the retail store. While some
warehousing operations are conducted in all buildings under the
general direction of the operating superintendent, the employees at
the Water Street warehouse are under the immediate supervision of
William Sandwell, the warehouse manager. The Water Street ware-
house is used primarily for the receipt, storage, and delivery of
appliances such as refrigerators, television sets, large radios, washers,
dryers, and hot water heaters, and also furniture, roofing, carpeting,
and linoleum. Only a small amount of this merchandise is used at
the main store, principally for display purposes. More than 90 per-
cent of the merchandise received at the Water Street warehouse is
shipped directly to the customers.
The employees located at the Water Street warehouse perform the
essential tasks pertaining to the movement of goods in and out of
the warehouse, with only sporadic assistance from employees based at
'Included in the unit sought are the following classifications of employees floormen,
dochnien, furniture setup men, receiving and assistant receiving clerk, refinishers, stove
dehixing and setup men, and miscellaneous warehouse clericals
+ The Second Avenue warehouse has no employees, but is staffed, when necessary, from
the other buildings It is used for storing surplus goods and large bulk items such as
boats, trailers, display material, and Christmas goods.
5 The building center building is also referred to as the building center warehouse.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other locations.6 These employees rarely leave their work stations to,
perform similar tasks outside the warehouse.' The general pay scale
of the Water Street warehouse employees is substantially higher than
that of employees performing somewhat similar tasks in other build-
ings of the Employer. There is no history of collective bargaining
involving the Employer and no other labor organization seeks to
represent employees of the Employer.
In A. Harris cC Co., 116 NLRB 1628, the Board reaffirmed its prior
recognition of the functional distinction between employees in the
retail department store industry who perform warehouse functions
and employees performing other functions. There the Board rejected
the contention that the employer's organizational integration of its
operations precluded the establishment of any unit less than store-
wide in scope where the operations of the unit sought were devoted
essentially to the warehousing functions of servicing the main and
branch retail stores and the employees' principal and regular duties
consisted of performing what were typically warehouse functions.
It concluded that the facts and circumstances relating to geographic
and supervisory separateness and the lack of integration with respect
to the duties performed by the warehouse employees and by the
employees in the retail stores warranted the establishment of a
separate unit of warehouse employees. Applying the principles of
A. Harris to the present case, we conclude that the primary activity
conducted at the Water Street warehouse, relating to the receiving,
preparation and direct delivery of goods to customers, has a degree
of functional difference and autonomy (including geographic and
supervisory separateness) within the overall complex of the Em-
ployer's retail operations demonstrating a community of interest
among the warehouse employees sufficient to warrant placing them
in a separate unit.
The Water Street warehouse operations are primarily devoted to
the receipt and direct delivery to customers of heavy or bulky goods.,
The employees at this locality perform their basic job functions
and regular duties in connection with these activities under the
separate immediate supervision of the warehouse manager. They
seldom leave the warehouse to perform similar or related tasks in
other buildings and only occasionally receive assistance from other
6 While servicemen from the appliance service center frequently go to the warehouse
to repair and service merchandise, they do not assist the warehouse employees in the
performance of the latter's normal duties except during preparations for monthly sales,
the quarterly warehouse sales, and the annual preinventory sales During these occasions,
two or three servicemen may spend 1 to 4 days helping the furniture and stove setup men
7 The furniture finisher may spend 30 minutes to 2 hours on occasions touching up dis-
play furniture in the main store Similarly, the appliance setup man may spend a
comparable amount of time setting up merchandise in the main store He may also
handle special orders or emergencies when the serviceman at the appliance service center
is ill or on vacation The stove deluxer and setup man has made service calls to cus-
tomers' homes
EMPIRE TERMINAL WAREHOUSE COMPANY 1359
employees in the performance of their regular duties. They are
classified as warehousemen and included in grade VII of the Em-
ployer's "Schedule of Activities (Job-Title) by Job Grade," the
highest paying labor category. The fact that both their wages and
job classification are substantially higher than the wages or classifica-
tion of employees at other locations who are engaged in other ware-
housing work is a patent indication of the Employer's recognition of
the substantive differences in their job functions and skills." Based
upon the record facts detailed above, we reject the Employer's con-
tention that its operations are so integrated as to preclude the estab-
lishment of any unit of less than storewide scope.9
In view of the foregoing, we find that the following employees of
the Employer constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act
All employees engaged in warehouse operations at the 128 East
Water Street warehouse, Flint, Michigan, excluding office clerical
employees,"' guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
'The classification of "Warehousemen " appears only in grade VII which consists of
seven types of assistant managers , furniture refinishers , installers , mechanics , and serv-
icemen. With the exceptions of maintenance engineer , grade VIII ( the next higher grade)
consists of various types of managers . Stockmen are included in grade V . An exhibit
prepared by the Employer indicates that the lowest weekly wage paid to the warehouse-
men in the Water Street warehouse was $105 per week. Five employees received $105
plus additional amounts with two employees receiving $1118 per week. In contrast, eight
other employees engaged in warehousing type work elsewhere receive from $65 to $99
per week ( three work on the dock at the retail store, two are stockmen , one receiving
and marking , the remaining two are employed at the building center building and ap-
pliance center ). Four other employees receive from $109 to $125 , including the shipping
and receiving clerk at the retail store, the receiving and marking manager, a stockman
and an employee at the automotive center.
9 The Employer apparently contends that Sears , Roebuck & Company, 117 NLRB 133,
may be read as implying a departure from the principles enunciated in A. Harris, as
delineated above . Contrary to the Employer , we do not read Sears as precluding us
from establishing a separate warehouse unit where the facts clearly demonstrate essen -
tial differences in the work and a separate community of interest of the warehouse
employees.
10 Since it appears from the Employer 's offer of proof at the hearing and its brief
that the clerical employees located at the Water Street warehouse are plant clericals we
shall include these employees in the unit.
Empire Terminal Warehouse Company and Dallas General
Drivers, Local Union 745, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America.
Case No. 16-CA-17212. March 31, 1965
DECISION AND ORDER
On May 23, 1963, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
151 NLRB No. 125.