Montgomery Ward & Co., Inc.

MONTGOMERY WARD & CO., INC 547 Montgomery Ward & Co., Incorporated and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 87, Lodge No. 1309, Petitioner. Case 20-RC-13232 June 30, 1976 DECISION ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On January 23, 1976, the Regional Director for Region 20 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which she found appropriate the Petitioner's requested unit lim- ited to tire mounters and mechanics employed in the auto service center at the Employer's 5740 N. Black- stone, Fresno, California, retail store. Thereafter, in accordance with Section 102.67 of the National La- bor Relations Act, Series 8, as amended, the Employ- er filed a timely request for review of the Regional Director's decision on the ground, inter aka, that in failing to find that only an overall unit of auto ser- vice center employees is appropriate, she departed from officially reported Board precedent. By telegraphic order dated February 25, 1976, the Board granted the request for review and stayed the election pending decision on review. 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 au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issue under review and makes the following findings: The Employer is engaged in the operation of a re- tail department store and an auto service center at its 5740 N. Blackstone, Fresno, California, location. The function of the auto service center is to sell and in- stall automotive parts and accessories and to perform basic auto services and repairs. The center consists of an automotive sales area located in the northeast cor- ner of the sales floor of the retail department store, and an auto service shop which is attached to the main store. The service shop is accessible through a double door leading to the automotive sales area and through two large garage doors leading to the park- ing lot. The service shop itself contains stalls, in which auto repairs and installations are performed, and a mezzanine storage area, in which tires and auto accessories, as well as other retail store mer- chandise, are stored. Essentially, the Regional Director found appropri- ate the Petitioner's requested unit limited to those employees employed in the service shop as distin- guished from those employees engaged in the sale of automotive merchandise. As Indicated, the Employer contended that the smallest appropriate unit herein is an overall unit of auto service center employees. Thus, it would include in the unit the automotive salesmen, a detail clerk and a parts employee; also a stock helper whose duties and unit placement were not discussed by the Regional Director. For the following reasons, we shall affirm the Re- gional Director's decision, except we shall exclude the stock helper from the unit found appropriate. The record discloses that the auto service center is headed by an auto service manager, Abrahamson, who supervises the three tire mounters and six me- chanics, and an automotive department manager, Heidbrecht, who supervises the approximately five automotive salesmen and a parts employee. Abra- hamson and Heidbrecht jointly supervise the detail clerk. Also employed at the auto service center is an assistant auto service manager who reports to Abra- hamson and a stock helper who is supervised by the warehouse department manager. The record discloses that the mechanics and tire mounters perform their repair and installation duties exclusively in the service shop of the auto service center. They rarely, if ever, enter the sales floor of the center and, as they are not assigned a sales number, do not sell parts or supplies to customers. Rather, their selling duties appear to be limited to referring a customer to an automotive salesman. In addition, tire mounters and mechanics cannot write up service orders. Mechanics and tire mounters, unlike other auto service center employees, are skilled or knowledgable in the performance of installations and mechanical work on automobiles. Several of the mechanics are licensed by the State of California. Mechanics are paid an hourly wage plus a commission of 15 percent of all labor billings over 150 percent of their re- spective weekly wages. Tire mounters are paid on an hourly basis. Mechanics and tire mounters use a sep- arate timeclock I and wear uniforms which are differ- ent from those worn by other store employees. The primary function of the automotive salesmen is to sell automotive merchandise I to customers in the automotive sales area of the retail store.' Howev- 1 The record reveals that the timeclock has been broken for some time and the tire mounters and mechanics presently fill out their own timecards 2 The automotive salesmen are also empowered to "ring up" sales for merchandise from other departments in the retail store, as are all retail store selling employees 3 While the record is not entirely clear on this point, it appears that the Employer has, in the past, intermittently stationed an automotive salesman in the service shop area to make "add on" sales to customers with autos Continued 225 NLRB No. 71 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er, in the course of performing their selling duties, they take work orders to the service shop, escort cus- tomers there who wish to inspect their automobiles, and check on the availability of merchandise, espe- cially during sales. The automotive salesmen are not skilled or knowledgable in performing repairs on au- tomobiles and they do not perform any mechanical work. While the record discloses a limited number of instances when automotive salesmen have mounted tires, or even installed batteries, it is clear that such activities are solely confined to emergency situations. It appears that the automotive salesmen are paid on a commission basis. They do not use a timeclock and, unlike the tire mounters and mechanics, wear business attire while at work. The parts department is presently comprised of a detail clerk 4 and an individual referred to as a parts employee. The parts department itself is located ad- jacent to the sales floor, separated from the latter by a rail. A parts counter is readily accessible to the customers of the store. There is also a window con- necting the parts storage area with the service shop where mechanics and tire mounters obtain the parts which are necessary for the performance of their du- ties. The parts department employees determine which parts are in stock, order merchandise, and dis- tribute the parts to mechanics and tire mounters. The detail clerk also records the labor output of the me- chanics. Both parts department employees, unlike tire mounters and mechanics, write up service orders and sell parts to customers coming into the store. In this regard, it appears from the record that the parts department employees must meet certain sales quo- tas and, in fact, perform selling duties on the sales floor itself. If either of the parts department employ- ees is absent, his job is performed by a salesman or on occasion by the assistant auto service manager. Parts department employees are paid on an hourly basis. The record also reveals that there is a stock helper who is permanently assigned to the auto service cen- ter. As indicated, he is supervised by the warehouse department manager. The stock helper receives auto- motive and nonautomotive merchandise, signs bills of lading, and transports the merchandise to the mez- zanine storage area of the service shop. He is some- times assisted by a tire mounter or a mechanic, and it appears that the latter employee substitutes for him in his absence. The stock helper is hourly paid; the already in the service shop It is not clear on this record that there was a back shop salesman for the 3 months prior to the heating it does appear, however, that the assistant service manager was performing this function at least temporarily at the time of the hearing 4 The payroll shows the salary of the detail clerk in charge to be on an equal basis to that of the automotive accessories department and the service shop minimum rate of pay for his classification is 90 cents per hour less than that received by the tire mounters. Upon the foregoing, we find, in agreement with the Regional Director, that a unit limited to the auto service employees of the auto service center is appro- priate herein.' While there are factors here present which would render appropriate an overall auto ser- vice center unit, other factors, also present here, per- suade us that the unit sought by the Petitioner is an appropriate unit.6 Thus, it is significant that the tire mounters and mechanics are separately supervised by the auto service manager; their duties are for the most part limited to performing manual work on au- tomobiles, requiring varying degrees of skill; and their duties are confined to an area which is separate from the automotive sales area of the retail store. The function of the automotive salesmen, on the other hand, is basically limited to selling automotive mer- chandise on the sales floor of the retail store. They are not knowledgable in auto repair skills and their duties are considerably different from and not inter- changeable with those of the mechanics and tire mounters. We note also that there is no bargaining history at this location, nor is there any other union seeking to represent these employees as part of a broader unit. We also find that the functions of the parts depart- ment employees are more closely related to those performed by the automotive salesmen than to the functions performed by the employees in the request- ed unit. Thus, despite the facts that the detail clerk is partially supervised by the auto service manager and both department employees supply parts to the me- chanics and tire mounters, it is clear that both of these employees are engaged in the sale of automo- tive merchandise to customers and perform some of their selling duties on the sales floor of the auto ser- vice center. Accordingly, we shall affirm the Region- al Director's decision to exclude them from the unit. Finally, on the basis of the record before us, we find that the stock helper is properly excluded from the unit limited to auto service employees. Although he is permanently stationed at the auto service center and from time to time is assisted by service center 5 See J C Penney Company Store No 1345, Honolulu, Hawaii, 196 NLRB 446 (1972), and J C Penney Company, Inc Store Number 1302, 196 NLRB 708 (1972) 6 We view as distinguishable the cases relied on by the Employer in sup- port of its contention that only an overall unit of auto service center em- ployees is appropriate In Sears, Roebuck and Co, 182 NLRB 609 (1970), the mechanics and operators, sought to be included, were substantially engaged in selling functions In addition, a majority of the automotive salesmen and certain tire salesmen, sought to be excluded , were located on the service floor at any given time and, consequently , a substantial majority of selling activities occurred there Similarly , in Sears, Roebuck and Co, 184 NLRB 343 (1970), installers and partsmen, sought to be included, engaged in sell- ing duties, and the salesmen, sought to be excluded, often assisted the instal- lers in performing installation work Further , there was evidence of consid- erable crossover supervision between included and excluded employees MONTGOMERY WARD & CO., INC. employees, it is clear that he performs typical ware- house functions, is supervised by the warehouse de- partment manager, and is paid an hourly rate com- mensurate with that received by other warehouse employees. Therefore, we shall exclude him from the unit. Accordingly, the case is hereby remanded to the 549 Regional Director in order that she may conduct an election in the unit found appropriate herein, pur- suant to her Decision and Direction of Election, ex- cept that the payroll period for determining eligibility shall be that ending immediately before the date of issuance of this Decision on Review. [Excelsior foot- note omitted from publication.]