Sears, Roebuck and Co.

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