Automobile Club of Missouri

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Automobile Club of Missouri I and Teamsters Local Union No. 688, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Petitioner. Case 14-RC-7331 March 13, 1974 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Peter J. Salm. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by direction of the Regional Director of Region' 14 the case was transferred to the Board for decision. Thereafter, the Employer filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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 the case, the Board makes the following findings: 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. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a unit composed of all insurance salesmen employed in the general area of the St. Louis, Missouri, district office. There is no disagreement between the parties as to the geograph- ic scope of the unit. The Petitioner contends that the district secretaries and switchboard operators are office clerical employ- ees, do not share sufficient community of interest with the insurance salesmen, and should be excluded from any unit of insurance salesmen found appropri- ate. The Employer, on the contrary, contends that they should be included. The Petitioner contends that the sales trainer, whose office is at the Employer's Lindell Boulevard facility, does not share a sufficient community of interest with the insurance salesmen to be included in any unit of insurance salesmen found appropriate; the Employer contends to the contrary. The Employer contends that any insurance sales- men who supervise the activities of telephone sales solicitors should be excluded from any unit of salesmen found appropriate. The Petitioner would include all insurance salesmen. The Employer's main witness, St. Louis Division Manager John Lienhop, gave extensive testimony respecting the functions, duties, and terms of employment of the insurance salesmen, district secretaries, switchboard operators, the sales trainer, and the telephone sales solicitors. With some exceptions during their initial training period, all of the insurance salesmen receive their compensation through commissions. In addition to their training in company underwriting policies and procedures, they receive training in preparation for the state insurance examination; only those licensed by the State may sell insurance. The salesmen spend the great majority of their time outside of the office making calls on customers to sell both club membership and insur- ance. They may spend approximately 2 hours per day in the offices, completing paperwork on mem- bership and insurance applications, keeping their membership files current, soliciting appointments by telephone, etc. They are eligible for benefits not available to other employees, e.g., discounts on club memberships and partial payment by the club of their auto liability insurance premiums; and they participate in promotional and incentive programs open only to salesmen. Under Board precedent these salesmen constitute an appropriate unit for collective bargaining. Telephone sales solicitors are hired by some of the salesmen to work during early evening hours, prospecting for sales appointments. The telephone solicitors work on a part-time basis and receive no benefits from the club other than social security. Their salary is paid by the insurance salesmen using them, who take turns approximately once every 2 weeks in being at the office after 5 p.m. when the telephone solicitors are present. Sometimes one solicitor will work for two salesmen. The telephone sales solicitors normally work 15-20 hours per week. Using a preset speech, they make calls from a prepared list to set up sales appointments for the insurance salesmen. Most of the insurance salesmen do their own telephone prospecting or have their wives do it. All, however, have the option, if they wish, of hiring a telephone sales solicitor, or obtaining one in conjunction with another salesman. Approximately one-third of the salesmen now utilize I The name of the Employer appears as amended at the heanng. 209 NLRB No. 89 AUTOMOBILE CLUB OF MISSOURI the services of telephone solicitors. Neither party has contended, nor does the record indicate, that these telephone solicitors should be included in any unit of insurance salesmen found appropriate. As we said in Adelphi University: The issue of supervisory status arises where authority is regularly exercised on the employer's behalf, over employees sought by the union, such as foremen in a production and maintenance unit. To include in such a unit persons who exercise statutory supervisory authority would clearly create the conflict of interest which Congress intended to avoid. This does not mean, however, that a similar conflict of interest is necessarily created whenever persons occasionally exercise some authority over other employees of the employer.2 In that case we found the authority of the director of admissions to recruit, select, and effectively recom- mend hire of a full-time secretary insufficient to constitute him a supervisor and exclude him from a faculty unit. If the telephone solicitors here were in fact employees of the club,3 then not only would they not be in the salesmen's unit, but the supervision exercised over them by salesmen is so infrequent that it would not ally the salesmen with management "to create a more generalized conflict of interest of the type envisioned by Congress in adopting Section 2(11) of the Act." See Adelphi University at 644. Accordingly, we shall include in the unit those insurance salesmen who utilize the services of telephone solicitors.' Our dissenting colleague maintains that "who" is supervised is unimportant, that the "mere existence" of supervisory power determines whether an individ- ual is an employee or a supervisor, citing Jas. H. Matthews & Co. v. N. L R. B. 5 That case involved a unit of production and maintenance employees from which leadmen with supervisory powers within the unit were excluded. We believe that reliance on the Matthews language is misplaced where the supervi- sion is a part- time endeavor with respect to nonunit employees, as in Adelphi University. The Board there 2 Adelphi University, 195 NLRB 639, 644. 3 We have assumed this fact for the purposes of this decision . However, we disagree with our dissenting colleague's assertion that the record permits no other conclusion than that the telephone solicitors are Club employees The Club's division manager admitted that the salesmen have been told the telephone solicitors are "their" employees, not the Club' s Salesmen have the option of using such solicitors and need no prior authorization to hire them, and set hours and wages Those wages. in turn, though paid by Club check , are charged back to the salesmen, who later deduct them from their own income taxes as a business expense . In effect, the Club relieves the insurance salesmen of filing social security returns and income tax withholding forms for these solicitors, but, as the Employer's evidence shows, the "bulk" of the financial expense of using telephone solicitors is 615 examined this issue in detail and specifically declined to segregate faculty employees whose principal duties were of the same character as those of other members of the faculty unit merely because they exercised some supervision over nonunit employees.6 Thus we are puzzled by our dissenting colleague's conclusion here to deny collective bargaining in a traditional unit of insurance salesmen to those salesmen who supervise nonunit telephone solicitors incidental to their basic selling activities, activities which consume well in excess of 50 percent of their working time. The telephone switchboard operators work normal daytime hours and perform the duties associated with that position. They answer the telephone, transfer calls to the proper department or individual, take messages, and relay information either orally or in writing. Insurance salesmen who are out in the field normally call in to the office during the day to check on any messages, relay their schedule to the switchboard operator, and receive any cancellations of appointments by prospective customers. The switchboard operators also open mail and distribute copies of paperwork. They do no selling. Their duties are those customarily considered clerical work. Accordingly, we shall exclude them from the unit. The district secretaries spend all of their time in the office. They are not licensed to sell insurance but are trained in use and preparation of insurance forms. They keep records of direct mail used and purchased, fill out forms, give customers receipts for money, try to answer customers' queries when salesmen are not present in the office, and process application forms. They attend district sales meetings in a clerical role as secretaries. Each also serves as secretary to the district manager and types his correspondence. In order to be hired the district secretaries must have clerical skills such as shorthand, speedwriting, and typing. There are three district secretaries. The person in the St. Charles office who performs essentially the same functions is classified by the Company as a clerical and is considered a clerk- typist. We find the district secretaries to be clerical employees; accordingly, we shall exclude them from the unit. The sales trainer is based at the Company's 3917 paid by the salesmen and no instance of a solicitor being discharged by anyone other than a salesman could be recalled. 4 See also Eureka Newspapers, Inc, 154 NLRB 1181, 1183, 1185, where carrier boys hired and paid by "dealers" were found not to be employees of the newspaper though it administered a special insurance fund for the boys and stood the loss if they failed to pay for papers The Board concluded that supervision of nonemployee carrier boys did not keep the dealers from being employees bargainable for as a unit 354 F 2d 432,434 (C. A. 8, 1965) s Adelphi, supra 644, 645, citing Wetttnghouse Electric Corporation, 163 NLRB 723, 726-727, and repeating the same caveat that, if a bargaining representative were selected , it would not represent such employees with respect to their supervisory duties. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lindell Avenue address. He does not sell club membership or insurance, nor is he licensed to sell insurance. He conducts 3-week training programs for new salesmen, and also conducts retraining programs in various divisions when needed. He organizes and conducts the agenda for general sales meetings. He also does some training of the Company's claims personnel. Unlike the salesmen, he is provided with a company car and is paid a monthly salary, which is about two-thirds that of the average sales representa- tive. He normally spends his day at the club headquarters, and attends management meetings at which sales quotas and policies are discussed and set. On the evidence adduced in the record, we find that the sales trainer's duties and functions are distinct from those of insurance salesmen, and that he does not possess a like community of interest. According- ly, we shall exclude the sales trainer from the unit. In view of the foregoing, we find that the following employees of the Employer constitute a separate appropriate unit for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All insurance salesmen (also called sales repre- sentatives) employed at the Employer's facilities at 9169 West Florissant, Ferguson, Missouri (North County); 8135 Forsyth, Clayton, Missouri (West County); 8330 Watson Road, Marlboro, Missouri (South County); and St. Charles, Mis- souri, excluding the sales trainer, telephone switchboard operators, district secretaries, office clericals, professional employees, guards and supervisors as defined in the Act, and all other employees. [Direction of Election and Excelsior footnote omitted from publication.] MEMBER KENNEDY, concurring in part and dissenting in part: While I agree with my colleagues that the tele- phone switchboard operators, district sales secretar- ies, and sales trainer should be excluded from the unit, I disagree with their conclusion that the 17 insurance salesmen who supervise telephone sales solicitors may properly be included. In my view, we are required by the Act to exclude them. The record permits no conclusions to be drawn other than that the solicitors are employees of the club and that the 17 insurance salesmen in question exercise superviso- ry authority over them. Thus, with regard to the solicitors' status as employees of the club, the evidence shows that the 8 See also Sec. 14(a) of the Act which provides in pertinent part that "no employer subject to this Act shall be compelled to deem individuals defined solicitors generally work between 5 and 9 p.m. and average between 15 and 20 hours of work per week. The club's district sales managers frequently inter- view and approve their hiring, approve adjustments in their hours of work, participate in their training, and discharge those who engage in misconduct. While the compensation received by solicitors is ultimately charged to the salesmen for whom they work, the solicitors are carried on the club's payroll, are paid from club accounts, and annually receive club-issued W-2 forms. Finally, the solicitors are considered employees of the club for purposes of computing its liability for social security and unem- ployment taxes, as well as for workmen's compensa- tion insurance premiums. It is likewise clear on the record that the solicitors are supervised by the insurance salesmen for whom they were hired. They are hired either directly by, or upon the effective recommendation of, an insurance salesman, and are then assigned to that salesman and charged with the responsibility of arranging sales appointments for him over the telephone and performing other routine tasks in accordance with his instructions. In their efforts to schedule sales appointments over the telephone, it is not uncommon for the solicitors to read from a text prepared for them by their salesman. In addition, the insurance salesmen have primary responsibility for training their solicitors, and have authority to set and adjust wages, reschedule hours of work following notice to the district sales manager, grant time off, and issue reprimands. Finally, each insurance salesman has absolute authority to discharge his solicitor. I am convinced that the telephone sales solicitors are employees of the club who are supervised on a daily basis by I or more of the 17 insurance salesmen. My colleagues' justification for including the 17 insurance salesmen in the unit, I gather, is twofold: (1) the insurance salesmen do not supervise bargaining unit employees, and (2) the supervision which they do exercise "is so infrequent that it would not ally [them] . . . with management." In my view, neither test justifies inclusion of supervisors in a bargaining unit. The exclusion of supervisors from the Section 2(3) definition of "employee" rests upon whether an individual qualifies as a Section 2(11) supervisor, and not upon who he supervises. The mere existence of the power determines whether an individual is an employee or a supervisor. Jas. H. Matthews & Co. v. N. L. R. B., 354 F.2d 432, 434 (C.A. 8, 1965).8 Since the definitions of "employee" and "supervisor" are mutually exclusive, and since only employees are afforded the right to engage in collective bargaining herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining." AUTOMOBILE CLUB OF MISSOURI 617 under our Act, it follows that statutory supervisors -no matter who they supervise-may not appropri- ately be included in a bargaining unit determined by this Board. Accordingly, I view the result reached by my colleagues as being statutorily impermissible. My colleagues should not be "puzzled" by my reliance upon the statute rather than upon Board decisions which I have not signed. Westinghouse Electric Corporation, 163 NLRB 723, issued March 31, 1967, some 3 years before my appointment to the Board . Adelphi University, 195 NLRB 639, issued after my appointment to the Board, but I issued a dissent in that case on the status of the members of the personnel and grievance committees . Unlike some of my dissents , I did not concur in any portions of the majority opinion and I did not sign the majority opinion . Generally, I hesitate to depart from officially reported precedent, but, when that precedent is at odds with the express language of the Act, I feel compelled to follow the statute. Nor do I agree that inclusion of the salesmen may be justified on the ground that their exercise of supervision is "infrequent." While frequency of supervision may be relevant for purposes of deter- mining whether an individual's exercise of superviso- ry authority is so irregular or sporadic that the statutory definition of supervisor has not been met, e.g., Meyer Supermarkets, Inc., 142 NLRB 513, 517, fn. 8, no claim has been made here that the insurance salesmen fail to qualify as statutory supervisors on these grounds. Indeed, the record would not support such a finding. Accordingly, the salesmen's alliance with management has been established and the frequency of their supervision is irrelevant in determining the appropriateness of including them in the unit. Since this Board is prohibited by statute from granting representation rights under our Act to supervisors, I dissent from my colleagues' determina- tion that a unit which includes insurance salesmen exercising supervisory authority over the telephone sales solicitors is appropriate for purposes of collec- tive bargaining.