Sears, Roebuck and Co.

SEARS, ROEBUCK & CO. 577 Sears, Roebuck and Co. and The Commission Sales Association , Petitioner. Case 6-RC-4873 September 23, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a petition duly filed on December 5, 1968, under Section 9(c) of the National Labor Relations Act, as amended, a hearing in this case was held on April 7 through April 11, 1969, and on April 29 through May 1, 1969, before Harold J. Datz, Hearing Officer. Pursuant to Section 102 67 of the National Labor Relations Board Rules and Regulations, the above-entitled matter was duly transferred by the Regional Director for Region 6 to the Board for decision. The Petitioner and Employer filed briefs. Pursuant to the provisions of Section 3(b) of the Act, as amended, the 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 that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this 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 labor organization involved claims to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The Employer has approximately 1,766 full-time and regular part-time sales people employed in the 12 retail stores characterized as the Pittsburgh group. These employees are generally compensated on one of the following bases: (1) commission of 6 percent or more against a weekly draw of $100; (2) salary plus commission of 1 percent; (3) straight time hourly rates without commission. The Petitioner seeks to represent all full-time commission salesmen' in the Employer's Pittsburgh group who are compensated in accord with category (1) noted previously. Alternatively, it would also represent both full and part-time commission salesmen who number approximately 465 employees. The Employer contends that there is no statutory or decisional basis for the Petitioner to seek a unit limited to certain sales people and seeks to include all selling employees in the Pittsburgh group in the 'For purposes of this decision the term commission salesmen is utilized to to designate those salesmen who are on a commission draw basis and who normally receive a 6-percent commission or more for selling big ticket items. unit . Of the remaining sales people whom the Petitioner would exclude and the Employer would include, there are approximately 315 full-time salesmen compensated by a salary plus 1-percent commission, and the remaining 968 sales people are part-time employees who are compensated on an hourly basis. The salary plus 1-percent commission and part-time employees enjoy a number of the same benefits and conditions of employment as the employees sought by the Petitioner. The Petitioner has clearly indicated that it does not seek to represent sales people who are compensated on other than a commission basis, nor those compensated on a salary plus I-percent commission bases. At issue, therefore, is whether the Pittsburgh group commission salesmen, as previously defined, constitute an appropriate unit for purposes of representation. The Board has held that the storewide unit in retail establishments, while "basically appropriate" or the "optimum" unit, is not necessarily the only appropriate unit in such an establishment.' Indeed, the Board has made it clear that, under the Act, a unit of less than all of the employees in a mercantile operation may be appropriate.' These decisions rest on the long established principle that the appropriate unit for self-organization among the employees of a given employer is generally based upon a community of interest in their occupation. Such interest is normally demonstrated, inter alia, by the employees' common experiences, duties, organization, supervision, and conditions of employment. The commission salesmen primarily sell "big ticket" merchandise, although it appears from the record that they also sell the low-priced merchandise in the divisions or departments in which they work. Approximately 314 commission salesmen work in the Employer's so-called big ticket divisions 4 and another 11 work in combined divisions which, in addition, sell such things as toys. garden accessories, hardware, and bedding accessories. Some divisions are manned only by commission salesmen,' but other divisions include substantial numbers of salary plus l percent and hourly paid sales employees.' The remaining commission salesmen (approximately 140) 'Stern's Paramus, 150 NLRB 799, 803 'Arnold Constable Corporation , 150 NLRB 788, Lord & Taylor, a Division of Associated Drv Goods Corp. 150 NLRB 812 'These divisions sell furniture, sewing machines , vacuum cleaners, floor polishers, stoves, draperies , slip covers, custom decorating, washers, dryers, fencing, farm machinery and equipment, floor coverings, water heaters, plumbing, retrigeration equipment , venetian blinds, awnings and shades, radios, television sets, building materials , and kitchen modernization 'When broken down on a store-to-store basis, approximately 178 commission salesmen out of a total of 465 work in such divisions 'These divisions sell draperies , slip covers, custom decorating , fencing, farm machinery and equipment , water heaters, plumbing, radios and television sets, building materials and kitchen modernization In isolated stores, only commission salesmen may be employed in a given division, such as the salesmen in the radio and television division at the Employer's Baden store 178 NLRBNo.91 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work in divisions other than the traditional "big ticket" divisions, in some instances being the only salesmen so employed.' In most of these divisions, however, it appears that the commission salesmen represent a relatively small percentage of the total sales complement and that other sales employees sell the same merchandise as the commission salesmen. It appears further that some commission salesmen (approximately 178) do some outside selling in the major appliance divisions or perform other outside duties in connection with home-installed merchandise. Such salesmen are required to have automobiles and to carry liability insurance. Commission salesmen usually share common supervision and work with other types of sales people except in those divisions where they constitute the entire sales force. Furthermore, the record shows that the practice may vary from store to store in assigning commission salesmen to handling particular items. l,rom the foregoing, and the record as a whole. we are not persuaded that these commission salesmen are a homogenous group of employees who may constitute an appropriate unit. While the 'These divisions sell, among other things, jewelry, hearing aids, cosmetics , wigs, hardware, shoes, automotive accessories , men's suits, monuments, and truck and automobile tires The Employer has other divisions , where no commission salesmen are employed , which also sell high-priced merchandise such as electric typewriters, boats, ski equipment , luggage, paint sprayers, and mink coats The catalog and commercial sales divisions, in which no commission salesmen are employed , have sales running as high as $4,000 and $50,000, respectively commission salesmen are employed to sell big ticket merchandise, other selling employees sell such merchandise, frequently the same type as that sold by the commission salesmen. Although the training of the commission salesmen tends to be specialized and related to the merchandise sold, it appears that other sales employees receive specialized training on a comparable level, particularly in those areas where they sell high-priced merchandise. Further. while some of the commission salesmen work separately under separate supervision, a majority work with other sales people under common supervision. Some of the commission salesmen do outside selling or perform other outside duties that require them to have automobiles and insurance, but a majority do not. The one consistently discernible difference between the group of commission sales employees here sought and other sales employees is their method of compensation. In light of the previously enumerated factors, we conclude that this alone does not constitute sufficient grounds for establishing a separate unit of such employees." Accordingly, we find that the requested unit is inappropriate, and we shall dismiss the petition herein. ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed. 'See Bullock 's Inc. 119 NLRB 642, 643