Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

May 20, 1970

182 N.L.R.B. 609 (N.L.R.B. 1970)

SEARS, ROEBUCK AND CO.
Sears, Roebuck and Co. and Local 299 , International
Brotherhood Of Teamsters , Chauffeurs , Warehousemen
And Helpers Of America , Ind. Petitioner. Case
7-RC-9254
May 20, 1970
DECISION ON REVIEW AND DIRECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On April 1, 1969, the Regional Director for Region
7 issued his Decision and Direction of Elections in
the above-entitled proceeding in which, inter alia, he
found appropriate the Petitioner's requested units of
automotive center employees and maintenance employ-
ees, respectively, at the Employer's Livonia, Michigan,
store, enlarging them to include all regular part-time
employees. Thereafter, in accordance with the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer filed a timely request
for review of the Regional Director's Decision on the
ground that neither Board precedent nor the record
evidence supports these findings.
By telegraphic order dated April 30, 1969, the National
Labor Relations Board denied the request for review
with respect to the Regional Director's finding of an
appropriate unit of maintenance employees and post-
poned the scheduled election among the automotive
center employees found to be a separate appropriate
unit, pending further consideration of the request for
review thereon. On June 19, 1969, the Board granted
the request for review as to such finding. Thereafter,
the Petitioner filed with the Board the brief it previously
filed with the Regional Director, and the Employer filed
a "Reply Brief."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has reviewed the entire record in this
case with respect to the issues under review, including
the briefs on review and makes the following findings:
The automotive facilities at the Livonia store function
under the supervision of an automotive manager and
consist of employees classified as mechanics, operators,
cashiers, parts room stockmen, stockmen, gas island
attendants, automotive sales employees, and an automo-
tive sales clerical. Of these, the Petitioner requested,
and the Regional Director found appropriate, a unit
including the first four categories and excluding the
last four. The Employer contends that there is an valid
basis for any of the exclusions and that, in the instant
case which involves a novel merchandising situation,'
' The Employer urges that the location in the service area of automo-
tive sales employees distinguishes this case from Montgomery Ward
& Co , Incorporated (Phoenix), 150 NLRB 598, J C Penney Company,
Store No 139, 151 NLRB 53, Bamberger's Paramus, etc., 151 NLRB
748, and Sears, Roebuck and Co , (Lincoln Park, Michigan), Case
7-RC-8885 (Unreported)
609
the smallest appropriate unit should include all employees
assigned to automotive services and the sale of automo-
tive parts and accessories. We find merit in this conten-
tion.
The Employer's Livonia operations consist of a retail
store, an attached automotive center, and a gas island
which is located approximately 1,200 feet from the main
portion of the automotive center. The automotive center
manager is responsible for all the activities relating
to the servicing and sale of parts and accessories for
automobiles, as well as the gas island. These activities
are performed by employees assigned to Department2
190, Division 28-95, and Division 100. Department 190
contains 15 mechanics, 45 operators, 3 cashiers, and
8 stockmen assigned to general automotive stock.' Of
these, the Petitioner would exclude the eight stockmen.
Division 28-95 has six tire sales employees (Division
28) and eight automotive sales employees (Division 95),
three parts room stockmen,4 and one automotive sales
clerical. Of these, the Petitioner would exclude all the
sales employees and the sales clerical employee. Division
100, not sought by the Petitioner, contains 3 full-time
and 16 part-time gas island attendants. Although each
of the various groups of employees in the automotive
center has separate immediate supervision, all are under
the common supervision of the automotive center manag-
er and there is substantial overlapping of supervision.
Of the automotive merchandise sold by the Employer,
85 to 90 percent is installed by automotive center employ-
ees. Where previously the Employer's automotive sales
employees sold tires and other automotive parts only
from the selling floor of the store for installation in
the service areas, since 1966 it has changed its method
of operations so that automotive salesmen arealso contin-
uously stationed in the service area where- they make
sales to customers who drive their vehicles to the center
itself for installation of parts or for service. Thus, the
six tire salesmen rotate assignments between the tire
display and selling area in the store and the tire display
and selling station in the service area. While at the
latter location the tire salesmen also sell other automotive
parts. The eight other automotive sales employees like-
wise rotate between the selling area in the store and
the selling station in the service area, spending almost
twice as much of their selling time in the service area
as in the store. On the average, at any given time,
five of the eight salesmen in this group are located
on the service floor. As a result, a substantial majority
of selling activities occur on the service floor.5
2 Selling units are referred to as divisions while primarily nonselling
units are called departments
9 The general automotive stockroom is located on the second floor
of the automotive center and is connected with the service area by
two-way conveyor belts which carry the requested automotive parts
There are two stairways to the second floor stockroom Also located
on the second floor near the stockroom are the locker room and lounge
available for use by all employees of the automotive center However,
it appears that salesmen do not use the facilities.
" The stockroom in which these three parts stockmen work is located
between the service area and the selling area of the store.
' Sales made on the service floor represent 65 percent of the total
tire sales, 50 percent of battery sales, 90 percent of muffler and tail
pipe sales, and 70 percent of total installed automotive sales
182 NLRB No. 100
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The sales employees sell both merchandise and labor,
as well as combined merchandise and services, and
they receive a commission on such sales. A typical
transaction begins with a customer talking to a salesman
who writes up the order and gives it to the person
responsible for filling it. If the order is for parts not
to be installed, the salesman obtains the parts from'
the parts, stockmen or from the automotive stockmen;
if the order includes services or installation the salesman
hands the order to the cashier or to one of three supervi-
sors who, after checking the order and ascertaining
the availability of parts, turns it over to the cashier
who then posts the order for completion by a mechanic
or operator, who receives a commission on the service
performed.'' Although the salesmen have basic mechani-
cal knowledge and are familiar with the stock and with
the functions performed by the mechanics and opera-
tors,7 the salesmen "very frequently" call a mechanic
or operator to assist in a joint diagnosis of the parts
and work needs on a particular car brought into the
center. This diagnosis is usually done in the customer's
presence. In about 15 percent of the cases, the customer
remains around the service area to watch the mechanic
or operator perform his duties. If, in the course of
completing the work order, the mechanic or operator
discovers additional work or part needs, he will consult
with both the salesperson, if available, and the customer,
if available, or make an effort to contact the customer
by telephone to obtain permission to perform such other
services or to install additional parts. Once the custom-
er's permission is secured, the mechanic or operator
completes the sale without contacting a salesman, using
the same order form used by the salesman. This occurs
in approximately 20 percent of the orders involving
mechanics. The operators sell 15 percent of the wheel
balancing work. The mechanics and operators obtain
the parts required from either the nearby parts stockroom
or the general automotive stockroom. Approximately
80 percent of all parts are distributed to the mechanics
and operators. Upon completion of the order, the
mechanic or operator gives it to the cashier for filing.
Although not required to do so, the salesmen frequently
inspect the job before contacting the customer to claim
a car.
The sales clerical employee maintains stock records
and prepares the necessary reports, incorporating data
received from the records of the cashiers needed for
computing the commission for the salesmen. She orders
merchandise, initiates and processes price changes with
respect thereto, arranges for the repair of gas island
merchandise, and relieves cashiers during lunch, other
breaks, or absences. In addition, she handles the corre-
spondence for the managers of Divisions 28-95 and
100, and Department 190. The cashiers ring up sales
of merchandise and service, handle cash transactions
and arrange for credit, prepare reports, maintain commis-
sion reports for mechanics and operators, and file records
of service work performed. The tire and automotive
salesmen receive a commission on all sales, whether
of merchandise or labor or both.
The gas island employees sell gasoline and perform
other typical service station functions, such as checking
the oil levels and the batteries in customer's automobiles.
Some gas island employees have transferred from stock-
man jobs, and some have been promoted to sales or
other positions or in the automotive facility.
The automotive center has one timeclock used by
the employees of Department 190 and Divisions 100
and 28-95, including salesmen when they are working
on the service floor.
Upon the foregoing and the entire record in this
case, we conclude that the requested unit must be broad-
ened to include all employees of the automotive center
and gas island. The automotive facilities employees as
a group have little contact with other store employees
and constitute a functionally integrated group working
in a recognized product line-automotive services and
sales-under supervision separate from other employees.
We believe that the record in this case establishes that
the mechanics and operators are substantially engaged
in selling functions. Moreover, the fact that tire and
automotive salesmen perform their selling activities in
the service area and that all of them sell there on
a rotational basis is further evidence of the close commu-
nity of interest between the salesmen involved and the
mechanics and operators. The general automotive stock-
men are likewise closely linked in interest with the
parts stockmen in the service area and the sales and
service employees. The gas island employees likewise
have skills and work interests so closely allied with
those of other automotive center employees that their
exclusion is unwarranted. By the same token the sales
clerical employee is analogous to a plant clerical employ-
ees and must be included in the unit.
Accordingly, we shall remand the case to the Regional
Director in order that he may, in the event the Petitioner
demonstrates to him within 10 days that it has an ade-
quate showing of interest in the broader unit found
appropriate herein, conduct an election in accordance
with his Decision and Direction of Elections, as modified
herein," except that the eligibility date therefor shall
be that immediately preceding the date below.
DIRECTION
" The mechanics perform installation (as opposed to repair) activities
consisting primarily of installing brakes, air-conditioners, remanufactured
engines , and "hangon" parts such as carburetors, water pumps, and
fuel pumps The operators also perform installation activities, consisting
primarily of installing lubricants, tires, seat covers, batteries, accessories
and like items , as well as unloading tires and batteries
' The salesmen attend some, but not all, of the training sessions
for mechanics and operators and the latter attend at least 20 percent
of the sales' training sessions Store Manager Arthur E Cone testified
that salesmen could be used to perform operator's functions
The case is hereby remanded to the Regional Director
for Region 7 for the purpose of conducting an election
pursuant to his Decision and Direction of Election in
" As the unit found appropriate is broader than that requested, the
Petitioner may withdraw its petition without prejudices upon written
notice to the Regional Director within 10 days from the date of this
Decision on Review and Direction
SEARS, ROEBUCK AND CO. 611
Unit A, as modified herein, subject to the Petitioner's Gordon Company, 394 U S 759. Accordingly, it is hereby directed
presentation of an adequate showing of interest among that a corrected election eligibility list, containing the names and address-
the employees in the appropriate unit. The eligibility
es of all the eligible voters, must be filed with the Regional Director
for Region 7 within 7 days of the date of this Decision on Review
date shall be the payroll period immediately preceding and Direction The list may initially be used by the Regional Director
the date below." to assist in determining an adequate showing of interest The Regional
Director shall make the list available to all parties to the election
when he shall have determined that an adequate showing of interest
In order to assure that all eligible voters may have the opportunity has been established among the employees in the unit found appropriate
to be informed of the issues in the exercise of their statutory right No extension of time to file this list shall be granted by the Regional
to vote, all parties to the election should have access to a list of Director except in extraordinary circumstances Failure to comply with
voters and their addresses which may be used to communicate with this requirement shall be grounds for setting aside the election whenever
them Excelsior Underwear Inc , 156 NLRB 1236, N.L R B v Wyman- proper objections are filed