Sears, Roebuck and Co.

National Labor Relations Board - Board DecisionsJun 30, 1970

184 N.L.R.B. 343 (N.L.R.B. 1970)

SEARS, ROEBUCK AND CO. 343 Sears , Roebuck and Co. and District 77, Interna- tional Association of Machinists and Aerospace Workers , AFL-CIO, Petitioner. Case 18-RC-7944 June 30, 1970 DECISION AND DIRECTION OF ELECTION By MEMBERS MCCULLOCH, BROWN, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Hobart M. Corning. Following the hearing, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision. Thereafter, briefs were filed by the Employer and the Petitioner and have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds no prejudicial error. The rulings are hereby affirmed. Upon the entire record in the case, the Board 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 jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Factual background. The Employer is engaged in the operation of a retail department store, an automotive center, and five branch stores at St. Paul, Minnesota. The Peti- tioner seeks a unit of all the employees at the auto center, excluding salesmen and cashiers. Defining the requested unit more precisely, the Petitioner would include in the unit, of a total of 55 em- ployees at the auto center, all mechanics, stockmen, partsmen, gas island employees, and the porter, about 43 employees in all, but would ex- clude the 9 salesmen and the 3 cashiers. The Em- ployer contends that the unit should consist of all the employees in a storewide unit, including the five branch stores, or, in the alternative, all the em- ployees of the auto center including the salesmen and cashiers. The Employer contends that, if the Board should agree with Petitioner that a less-than- storewide unit is appropriate, all salesmen should be included in the automotive center unit. Also, the Employer disagrees with the Petitioner's exclu- sion of the cashiers, as "office clericals," from the requested unit, contending that the cashiers are plant clericals with work interests similar to those of the employees the Petitioner seeks. There is no collective-bargaining history for any of the employees in issue at the St. Paul store, and no labor organization is seeking to represent these employees at this facility in a single storewide unit. However, the Petitioner stated that it would proceed with an election in any unit that the Board finds appropriate at the St. Paul store automotive center. The automotive center is located about 100 feet from the main store, and the gas island is physically attached to the center. The primary function of the auto center is to sell and install parts and accesso- ries sold by Sears. The center itself i; divided into the back shop service area, which contains a sales desk and 20 stalls for the servicing of cars, and the front sales area, which contains counters and desks for the sale of auto accessories, parts, service, and tires. Between the back shop service area and the front sales area is a center aisle, on both sides of which are located separate rooms containing parts, insurance sales and supervisors' offices, the parts department, restrooms, a customer waiting room, and the cashier's area. There are separate customer entrances to the sales as well as to the back shop area. The auto center operation is administratively or- ganized into the service division "190," which con- sists of 15 full-time and 18 part-time servicemen-in- stallers who install tires, batteries, mufflers, tail- pipes, brake linings, etc., and perform wheel align- ments and tuneups; 1 full-time and 1 part-time stockman who provide the "190" servicemen, the divisions "28" and "95" salesmen, and the "28" partsmen with stock and who spend most of their time in the basement area; and a"190" porter who cleans up the service area-36 employees in all; the automotive accessories and parts division "28," which consists of 3 full-time salesmen who sell ac- cessories, parts, and service to the customers and 1 full-time and 2 part-time partsmen who also provide the "190" servicemen with parts and. about half of their working time, sell parts to the customers; the tire sales division "95," which consists of 3 full-time salesmen who sell tires to the customers; the "28-95" salesmen, 3 in number and full-time, who sell a combination of automotive accessories, parts, tires, and service and are permanently assigned to the "190" back shop service area; the gas island 184 NLRB No. 36 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD division "100," which consists of 1 full-time and 3 part-time employees who sell gas, oil, and additives on the gas island ; and cashiers, 1 full-time and 2 part-time , who serve the entire center as cashiers. In terms of type and volume of work performed, about half of the work of the division 190 ser- vicemen consists of tire installations and about 30 percent of their work consists of battery installa- tions . The remaining 20 percent of their worktime is devoted to miscellaneous duties. About 80 per- cent of the total merchandise sold at the center is installed at the center by center employees. The sale of 60 to 70 percent of the merchandise in- stalled at the center originates in the back shop ser- vice area, where the three combination 28-95 salesmen are stationed for this purpose. However, the division 190 servicemen are also authorized and encouraged to make sales to customers, which added sales will be placed on the shop orders which were initiated by the divisions 28, 95, or the com- bination 28-95 salesmen or partsmen. An employer witness testified that the 190 servicemen may spend from 10 to 15 percent of their worktime selling the customers, often with the assistance of the salesmen , on the need for additonal services, acces- sories , or parts. In this connection, Dahlin, the auto center manager , estimated that 25 percent of the additional items sold in connection with tire sales are sold by the division 190 servicemen without the participation of a salesman. Similarly, according to Dahlin, the division 190 servicemen sell other items without a salesman , such as batteries, mufflers and tailpipes, front end parts, etc. While one employee testified that he only suggested, rather than sold, it does appear that the servicemen do some " selling," although they are primarily engaged in manual work and receive no commission for their sales (other than as discussed hereafter). The St. Paul store manager testified that the center is not in the repair business, that the main function of the center and the division 190 ser- vicemen is to sell and install Sears merchandise, and that, hence, there is no need for journeymen mechanics and none are employed in that capacity. The center manager , however, testified that three to four times a month complete new engines which are sold at the center are installed by the 190 ser- vicemen. Servicemen Hughes and Anderson testified that although they did not overhaul merchandisms such as transmissions, generators, or starters at the center, they did replace them and they did perform tuneups and straighten out A- frames. However, the clear import of the evidence is that the servicemen spend most of their time doing routine installation work. About 10 of the present division 190 servicemen have attended vari- ous schools such as the Sears Technical Institute, brake school, and alignment school. The center manager testified that division 190 servicemen could be trained to be competent in all the services provided by the center in about 90 days. The division 190 servicemen, like the 190 stockmen and porter, the division 28 partsmen, the division 100 gas island attendants, and the cashiers, are hourly paid and receive no commission on their sale of services or the items they install, except wheel balances, for which they receive 25 cents commission. The division 28 partsmen, whom Petitioner would also include in the unit, are permanently as- signed to the partsroom and divide their time about equally between supplying the 190 servicemen with parts and selling parts and service to the customers. They may and do initiate sales and shop orders, just as do the 28, 95, and 28-95 salesmen, but, as noted above, are only hourly paid and receive no commis- sions on such sales . The divisions 28, 95, and 28-95 salesmen , on the other hand, are paid exclusively by commission on their sales of items and shop ser- vices. The division 95 tire salesmen on the sales floor are only permitted to sell tires, and the divi- sion 28 salesmen on the sales floor sell only parts and services and may not sell tires. All these salesmen , during the peak winter months, will assist the 190 servicemen in studding and installing tires and, during busy hours, in making minor installa- tions such as radio antennas , windshield wipers, cartop carriers, seat covers, and floor mats. They also appear to work fairly closely at all times with the 190 servicemen in carrying a sale through to successful installation . Similarly, the division 100 gas island employees spend a substantial amount of time , especially in winter, in the sales area and will assist in installing items and in selling them when temporarily assigned to such duties. Although Petitioner's unit request covers only hourly paid employees, it is not complete in this respect, since it excludes the cashiers. These em- ployees work generally in a cashier's cage located off the back shop service area near the sales desk. They are often in contact with 190 servicemen and the salesmen , checking about a customer's bill or the status of his car. They also prepare the center's records, requiring numerous daily discussions with other employees. When they are absent, their du- ties are usually performed by a 28-95 salesman. As to the factor of supervision, the automotive center has its own manager , Dahlin, who is in charge of the center and supervises four subor- dinate supervisors who are the respective managers of divisions 190, 28, 95, and 100. Each of these subordinate supervisors primarily supervises his SEARS, ROEBUCK AND CO. own division employees. However, during busy periods, each manager will temporarily lend out his own employees or simply order other employees, such as the gas island attendants, to assist another busy division. There appears to be considerable cross-supervision. The division 28 manager may give instructions to 190 servicemen and others on various problems encountered in the installation of service center merchandise. Conversely, the divi- sion 190 supervisor may give directions to the 28 and 95 salesmen on problems relative to sale and installation of center merchandise. Center Manager Dahlin appears to exercise a good deal of close su- pervision over all the employees at the center. In addition to such temporary interchange of em- ployees during busy periods between the various auto center divisions, there have been permanent internal transfers between the center divisions and some external transfers between the center divi- sions and departments of the main store. During the 20-month period from November 1, 1967, to July 1, 1969, there were 24 permanent interdepartmen- tal transfers involving automotive center em- ployees. Of particular interest to us are the four in- ternal transfers from the requested service division 190 to the excluded selling divisions and cashiers, including one transfer to manager of division 28, two transfers from division 190 to the combination salesman of division 28-95, and one transfer from 190 to the center cashiers (who are assigned half to division 190 and half to divisions 28 and 95 and re- port directly to the center manager ). Thus, a moderate line of progression is indicated from the service division 190 to the selling division 28 and 95. There were seven external transfers, in both directions, between the requested service divisions in the center and various departments in the main store. In addition, there were three external trans- fers between the center selling division 28-95 and main store selling divisions. The main store and the automotive center have common overall supervision; centralized personnel and recordkeeping procedures and control; com- mon sales contests in which all the employees, sales and supporting, participate; common employee parking areas; common storewide meetings; com- mon store publications; and common supporting departments, such as security, maintenance, and receiving and shipping. All employees in the main store and auto center work basically the same stag- gered scheduled hours. There is a common sug- gestion program for the entire store. There are also facilities used only by employees of the auto center, such as the timeclock, lunchroom, and washrooms. 345 Such fringe benefits as vacations, paid holidays, and insurance are provided for all the full-time em- ployees of the St. Paul store and auto center on the same basis, and all part-time employees receive some of these benefits on the same basis irrespec- tive of whether they work in the main store or at the center. Contentions of the Parties First, the Employer contends that since a store- wide unit in retail establishments is the basically ap- propriate or "optimum unit" and there are no "u- nusual circumstances" present here, a main-store- and-auto-center (as well as all five branches) unit should be found appropriate. This contention, the Employer argues, is supported by the evidence of common overall supervision, common supporting services, common working conditions and benefits, and the occasional interchange between the main store and the center. Second, the Employer contends that if an auto center unit is thought to be appropriate, it should consist of all the center employees, both service and sales. The Employer asserts that the same fac- tors of common benefits and working conditions, described above, which arguably support a store- wide unit, also support an auto center unit of all employees. Moreover, all the center employees share a variety of additional working conditions, such as use of the same timeclock and the same lunchroom and washrooms, attending the same center meetings, and attending the same demon- strations and lectures. The Employer points out that the hourly rate-of-pay factor, which Petitioner partially relies on to determine the scope of the unit, also applies to the cashiers whom the Peti- tioner would exclude. The Employer further argues that the primary factors of separate supervision, separate functions, lack of interchange, and a nucleus of craft employees, which were the bases for separate auto center service units, excluding salesmen, in prior Board cases,' are absent in the present case. Also, the Employer notes that the Petitioner seeks to include the division 28 part- smen , who are engaged in selling activities, are ad- ministratively organized in division 28 with the ex- cluded accessories and service salesmen, and are supervised by the division 28 sales manager. The Employer complains that the Petitioner overlooks the extensive supervision exercised by the center mangager over all the employees of the center and his unique function "to coordinate the activities [of the center] so that they operate as a team...." Ac- ' Montgomery Ward & Co , Incorporated, 150 NLRB 598, Bomberger's Paramus, 151 NLRB 748, and J C Penney Company, 151 NLRB 53 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to the Employer, the Petitioner also over- looks the considerable crossover supervision of ex- cluded employees by managers of included divi- sions , and vice versa. The primary factor of separate function as a basis for a fragmented service unit is not present in this case, the Employer contends, because the division 190 servicemen additionally perform a selling func- tion in that they spend 10 to 15 percent of their worktime making sales directly to customers, ad- ding such sales to shop orders, and working together with the salesmen in selling the customer on the need for additional items and service. Finally, the Employer contends that there is no nucleus of craft employees at the center on which to base a distinction between service and selling employees , as in prior Board cases .2 Service em- ployees, just as selling employees at the center, are frequently hired without prior experience or with only gas station experience and within about 3 months can acquire enough expertise to perform the basic services of the center satisfactorily. The Petitioner contends that the 190 installers are craftsmen who can form the nucleus of a group of service employees in a separate unit . Petitioner argues that the requested unit enjoys a separate and identifiable community of interest in many respects, based on the following factors: the 190 installers and division 100 gas island attendants wear uniforms; all employees in the requested unit are hourly paid, while the various excluded full-time salesmen are paid on a straight commission;' some of the 190 installers furnish their own tools; and the 190 employees generally attend company-spon- sored meetings separate from those held for the various salesmen and can and do attend the various Sears-sponsored training schools. The Petitioner, therefore, contends that the requested employees are like the thousands of ser- vice employees who work in hundreds of automo- tive service centers and garages throughout the country and are entitled to the same type of service unit representation which the Board has found ap- propriate in such cases . The salesmen at the center, the Petitioner 's argument concludes, are not dif- ferent from the salesmen in the garages and service centers who have been excluded by the Board from such service units. We do not agree with the Employer 's initial con- tention that the appropriate unit should consist of all the employees of the main store and the auto center . We note that no labor organization is seek- ing to represent these employees at the St. Paul store in a single storewide unit. Although a store- wide unit is presumptively appropriate for the pur- poses of collective bargaining and there are factors in the instant case , such as common benefits for all the employees at the St. Paul location and scattered instances of contact and interchange among the employees and supervisors of the auto center and the main store, which might justify a storewide unit, Section 9(b) of the Act directs the Board to make appropriate unit determinations which will "assure to employees the fullest freedom in exercising the rights" of self-organization and collective bargain- ing, and does not compel labor organizations to seek representation in the most comprehensive grouping of employees unless such grouping con- stitutes the only appropriate unit . Here , it is clear that the employees at the auto service center are sufficiently removed from the main store, engage in sufficiently different work, and enjoy sufficiently different facilities and supervision to warrant the finding that a store-and-center unit is not the only appropriate one. Thus, the question narrows to whether the ser- vice center unit, excluding salesmen and cashiers, as requested by Petitioner, is an appropriate unit, or whether only a unit composed of all service center employees is appropriate. The evidence of record leads us to conclude that only a voting unit which includes all employees of the center would be appropriate. As we have discussed, all of the center employees are under the supervision of a single manager. His subordinate managers, while entrusted with primary responsibility for separate divisions, engage in considerable crossover supervi- sion of employees in other divisions. The installers, who are included in the unit requested, work close- ly with the salesmen, who are not included, and en- gage in some selling of their own. The salesmen often assist the installers by doing installation work. The partsmen, who are included in the Petitioner's unit request, are assigned to sales division 28, spend half of their time selling items , and are supervised by the same manager who supervises the division 28 salesmen . Some of the salesmen are per- manently stationed in the back shop area where the installers work and , consequently , have a close and continual working relationship with the latter. The functions of the installers and the salesmen comple- ment each other; most sales are not successfully consummated until there has been a successful in- stallation of the item sold. As to the interchange factor, the record shows that there is some in- terchange between the center service and selling ' Fn l,supra ' The same, however, may not be said of the excluded cashiers, who are hourly paid SEARS, ROEBUCK AND CO. divisions and that some of the servicemen have progressed from their 190 servicemen jobs to salesmen and sales manager positions . As to the ar- gument that there is here a nucleus of craft em- ployees, a factor relied on in prior Board cases to find center service units excluding salesmen, ap- propriate, the Employer has not established any formal training requirement for the serviceman-in- staller positions and the center manager testified that it takes only about 90 days to acquire sufficient skill and proficiency to handle the variety of ser- vices performed. In regard to the other employees at the center, it is clear from the evidence that the center is a close- ly knit, functionally integrated organization in which all employees work together and frequently are required to perform, or assist in performing, each other's duties. The cashiers, whom the Peti- tioner seeks to exclude from the unit, appear to be plant clerical employees who have substantial con- tact and work interests in common with the ser- vicemen- installers and the salesmen, and should be grouped with them in any unit determination. The same considerations are applicable to the other ser- vice center employees. Sears, Roebuck and Co , 182 NLRB 609 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Un- derwear Inc, 156 NLRB 1236, N L R B v Wyman -Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, con- 347 Upon the entire record in this case, we conclude that all the employees of the auto center, including the servicemen-installers, the stockmen and the porter in division 190, the partsmen and the salesmen in divisions 28 and 95, the combination salesmen in division 28-95, the gas island em- ployees in division 100, and the cashiers, constitute a homogeneous and identifiable grouping whose common location, functions, interests, and facilities require that they all be included together in a single bargaining unit.' Accordingly, we shall direct an election in the following unit: All full-time and regular part-time employees employed at the automotive center of the Em- ployer's St. Paul, Minnesota, store, including all servicemen-installers, stockmen, porters, salesmen, combination salesmen, partsmen, gas island attendants, and cashiers, excluding guards and supervisors as defined in the Act and all other employees. [Direction of Election 5 omitted from publica- tion. ] taming the names and addresses of all the eligible voters, must be riled by the Employer with the Regional Director for Region 18 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to- file this list shall be granted by the Regional Director except in extraordina- ry circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed