Merry Oldsmobile, Inc. And Merry Brokerage Services Corp.

MERRY OLDSMOBILE 847 Merry Oldsmobile , Inc. and Merry Brokerage Serv- ices Corporation and Local 868, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner . Case 29-RC-6744 16 September 1987 DECISION ON REVIEW AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 23 January 1987 the Regional Director for Region 29 issued a Decision and Direction of Elec- tion in the above-entitled proceeding, in which he found appropriate for the purpose of collective bar- gaining a unit consisting of all full-time and regular part-time automobile salespersons, billers, inventory persons, bookkeepers, and "after-sale" persons, at the Employer's facility, excluding all other employ- ees, guards, and supervisors as defined in the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Petitioner filed a timely request for review of the Regional Director's Decision and Direction of Election contending that "after-sale" salespersons, office clericals, and employees in- volved in fleet sales should be excluded from the appropriate unit. By telegraphic order dated 14 April 1987, the National Labor Relations Board granted the Peti- tioner's request for review of the Regional Direc- tor's decision to include these classifications in the unit. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has reviewed the entire record in this case and makes the following findings. 1. "AFTER-SALE" SALESPERSON The Employer, Merry Oldsmobile, Inc. (Merry Oldsmobile) located at 777 South Oyster Bay Road, Bethpage, New York, is engaged in the retail and nonretail sale of new and used automo- biles and automotive parts. Merry Brokerage Serv- ices Corporation (Merry Brokerage) also located at 777 South Oyster Bay Road, is engaged in the sale of "after-sale" items including financing, credit life insurance, accident and health insurance, extended warranty programs, and additional accessories. To- gether, each of these corporations functions as an integrated operation for the sale and servicing of new and used cars.' ' The record reflects that both Merry Oldsmobile and Merry Broker- age are wholly owned by Joseph Fox and Ron Pecums Fox is the presi- The Employer's operation is divided into several different departments that include a new- and used- car department, a service department,2 and a busi- ness office. The new- and used-car departments are managed by separate supervisors of the sales em- ployees within each department. These supervisors, in turn, report to the Employer's general manager, who also supervises the business office employees. In addition to these departments, Merry Brokerage employs one "after-sale" employee who works at the Employer's facility.3 This employee, Guy Rausch, constitutes the Employer's finance and in- surance department, and it is his primary responsi- bility to persuade new-car purchasers to purchase after-sales items as well. In performing this func- tion, Rausch is involved in the purchase of almost every automobile. Thus, after an automobile sales- person successfully completes a sale, he or she takes the customer to Rausch, who arranges the paperwork and delivery and attempts to sell the customer certain after-sales items including financ- ing, credit life insurance, accident and health insur- ance, alarm systems, and extended warranty pro- grams. When a customer is introduced to Rausch, Rausch is not identified as an employer of Merry Brokerage, but is instead introduced as the business manager4 of Merry Oldsmobile. When Rausch is successful in selling one of the after-sales items to a customer, he is paid a commission of 50 percent of Merry Brokerage's profits. In addition, the sales- person who referred the customer to Rausch re- ceives a percentage of the Employer's profits on the sale. As an employee of Merry Brokerage, Rausch is supervised by the Employer's general manager, Bruce Lutz. Lutz initially hired Rausch as a tempo- rary employee of Merry Oldsmobile but transferred him as a permanent employee to Merry Brokerage after 30 days. Despite this transfer, Lutz continues to oversee Rausch's work, to set and change his rate of compensation, and to determine his hours of employment. Moreover, Lutz has the authority to terminate Rausch from the Employer's employ- ment. dent of Merry Oldsmobile and Pecums is the secretary-treasurer Fox and Pecunis are also the corporate officers of Merry Brokerage The Region- al Director found, based on evidence of common ownership , officers, premises, and labor policy, as well as evidence that Merry Brokerage performs services for Merry Oldsmobile, that Merry Oldsmobile and Merry Brokerage constitute a single intergrated enterprise and a single employer He therefore found it appropriate to assert jurisdiction over Merry Brokerage 2 The Employer's service department employees are already organized a Merry Brokerage also employs additional employees who work at other dealerships 4 Although Rausch is given the title "business manager" the record is clear that he has no managerial or supervisory authority 287 NLRB No. 86 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Petitioner- contends that Rausch is not an employee of either `Merry Oldsmobile or Merry Brokerage but is rather an independent contractor. In support of its position, the Petitioner relies on record 'testimony in which Lutz characterized Rausch as a contract employee. Thus, Lutz testi- fied that he had negotiated an employment 'con- tract for Rausch. Lutz, further testified, however, that this contract was strictly an oral, ongoing agreement subject to termination by either party without notice, and covered only Rausch's rate of pay and job responsibilities. In determining whether an individual is an inde- pendent contractor as defined by the Act, the Board has long applied the common law "right of control" test. Under this test, if the recipient of the services in question has the right to control not only the end to be achieved but also the means to be used in reaching the result, an employer-em- ployee relationship,exists as a matter of law; other- wise there exists an independent contractor rela- tionship. National Freight, 146 NLRB 144 (1964); Air Transit, 248 NLRB 1302 fn. 30 (1`980); Comedy Store, 265 NLRB, 1422, 1439-(19,82). Applying the "right of. control" test to the facts of this case, the record as a whole convinces • us that the Employer retains sufficient control over Rausch's terms and conditions of employment to warrant a finding of the, existence of an employer- employee relationship. In reaching this determina- tion, we particularly note that no formal - contract exists between Rausch and either Merry Oldsmo- bile or Merry Brokerage, that Rausch's work is performed, on the Employer's premises and that his hours are set by the Employer's management in ac- cordance with its hours of operation. In addition, we note that Rausch's earnings are, ultimately de- pendent on the customers referred by,the Employ- er's salespeople and that Rausch sells after-sales items from the Employer's inventory. Accordingly, in these circumstances, we, find an absence of the basic entrepreneurial or proprietary. characteristics inherent in true independent contractor relation- ships and conclude instead that Rausch is an em- ployee. Regarding the community-of-interest question, the record reflects that, like the automobile sales- persons, Rausch receives a commission on the products he sells, plus benefits, although the sales- people also receive a nominal salary. Rausch and the salespersons also work similar hours and re- ceive the use of demonstrator automobiles.5 Fur- 5 In this regard, the record reflects that although Rausch was offered the use of a demonstrator vehicle, he instead chose to receive reimburse- ment for the use of his own automobile ther, Rausch attends sales meetings along with the automobile salespersons, and 'reports directly to Fred Wank, the Employer's new-car sales` manager. On the whole record, we agree with the Region- al Director's finding that Rausch shares a sufficient community, oof., interest with the automobile sales- persons to require his inclusion in the appropriate unit. Both Rausch and the salespersonsare primari- ly engaged in selling, and even though they sell different products, their selling functions are' inter- related, requiring a coordinated effort. In addition, Rausch and the automobile salespersons work in constant contact with each other, share common supervision, receive similar benefits, and have simi- lar working conditions. Given these similarities, as well as the substantial integration of operations be- tween Rausch and the automobile salespersons, we find that a unit limited to automobile salespersons but excluding after-sale employee Rausch would be inappropriate. See Larry Foul Oldsmobile Co., 262 NLRB 370 (1982); Coca-Cola Bottling Co., 229 NLRB 553, 554-555 (1977); Walker Roemer Dairies, 196 NLRB 20 (1972). Accordingly, we shall in- clude Rausch in the appropriate unit. II. OFFICE EMPLOYEES The Employer also desires, the inclusion of four office employees because -their clerical functions are part of a fully integrated operation. The Peti- tioner specifically seeks to exclude these employ- ees, contending first that they are office clericals and should be excluded on that basis and, alterna- tively, that, the area practice has been to , exclude such employees from units of automobile salesper- sons.6 The record discloses that each of the four em- ployees at issue,performs clerical tasks directly re- lated to the sale of the Employer's automobiles. It is undisputed, however, that none of these employ- ees works on the showroom floor or actually par- ticipates in making a sale. Thus, the record reflects that after Rausch arranges financing and insurance and initiates the necessary paperwork, it is then transmitted .to the Employer's office employees for processing and completion. In this regard the record shows that Marsha Phillips is the Employ- er's "biller," and it is her responsibility to secure vehicle title, registration, and license plates for all vehicles sold by the Employer. Phillips also pre- pares or processes various other documents neces- sary for delivery of the vehicle to the customer. These documents, which include the final sales in- 6 In light of our conclusion that the office clericals are not appropriate- ly included in the unit, we find it unnecessary to pass on the Petitioner's contention that employee Joni Byers acts in a confidential capacity to the Employer's president, Joseph Fox MERRY OLDSMOBILE 849 voice, the manufacturer's statement of origin, odometer statement, warranty book, and owner's manual, are then put together in a "deal envelope" for delivery by the salesperson to the customer. Kathy Wozniak and Joy Guida are the Employ- er's bookkeepers. Wozniak's primary function is to facilitate the negotiation of the retail sales contract with the various lending institutions. This function accounts for approximately 50 percent of her time, with bookkeeping accounting for most of the bal- ance. Guida spends the majority of her time doing bookkeeping work, but is also responsible for cus- tomer refunds on canceled sales. Joni Byers, the most senior of the Employer's office employees, is a licensed insurance broker who arranges collision and comprehensive insur- ance for the Employer's customers who want it. Byers acts as secretary to Joseph Fox, the Employ- er's president, and sells extended warranty policies. In addition to the salary Byers is paid, she receives a flat-rate commission on any insurance or warran- ty policy she sells. Although the record establishes that the office employees are engaged in daily work tasks which necessarily bring them into contact with the sales employees and that they perform clerical tasks re- lated to the sales of the Employer's vehicles, we find, contrary to the Regional Director, that their employment interests are not sufficiently similar to those of the sales employees to require their inclu- sion in the sales unit. In arriving at this conclusion, we note that it is the normal practice of the Board not to include clericals in other units7 and we find no special cir- cumstances to warrant a departure from this prac- tice in the instant case. Thus, the record reflects that the office employees generally work 8-hour days, Monday through Friday, between 8 a.m. and 6 p.m. By contrast, the sales employees work rotat- ing shifts of either 9 a.m. to 6 p.m. or 1 p.m. to 9 p.m., Monday through Friday, and a single shift of 9 a.m. to 6 p.m. on Saturday. A small sales crew also works each Sunday from 11 a.m. to 5 p.m. Moreover, the office employees are supervised by the Employer's general manager, Bruce Lutz, and their offices are located off the showroom floor, adjacent to Lutz' office. By comparison, the sales employees are supervised by either the new-car or used-car managers, and their offices are either on or adjacent to the showroom floor. Finally, with the exception of Joni Byer, the office employees are paid a straight salary, whereas the salespersons receive a nominal salary, commissions on the sales they complete, and use of a demonstrator vehicle. 7 L M Berry & Co, 198 NLRB 217, 219 (1972), and Tipton Electric Co, 242 NLRB 202, 213-214 (1979) Because of the disparity in working conditions and compensation between the sales and clerical em- ployees and their different skills, we find that these four office employees do not share a community of interest with the sales employees, which would re- quire their inclusion in the unit, and we shall ex- clude them. III. INVENTORY CONTROL CLERK Fran Micale is employed in the sales department as an inventory control clerk. She works at a desk located on the Employer's showroom floor and spends a small portion of her time answering the phone and typing correspondence for Lutz, Wank, or one of the salespersons when asked. The majori- ty of Micale's time is spent maintaining inventory records used by the salespersons, ordering vehicles to replenish the inventory on an ongoing basis, spe- cial ordering vehicles to accommodate customer orders, answering questions of salespersons regard- ing the inventory, and corresponding with custom- ers after each retail sale. Micale also participates in interdealership swaps. In performing these func- tions, Micale is in constant contact with the sales- persons and is directly supervised by New-Car Sales Manager Fred Wank. Micale's hours correspond with the hours of the Employer's office employees and, like the office employees, she receives a straight salary without commissions. Unlike the salespersons, Micale does not attend Saturday sales meetings, and does not receive the use of demonstrator vehicles. On the above facts, we find that Micale's em- ployment interests are more closely aligned with those of the office employees, as they lack signifi- cant characteristics and incentives of the sales func- tion. Accordingly, we conclude that Micale does not share a sufficient community of interest with the other sales employees and exclude her from the unit. IV. FLEET SALES LIMITED, INC. Fleet Sales Limited, Inc. (Fleet Sales) is a third corporate entity located on the Employer's prem- ises. It appears from the record that it is primarily engaged in the nonretail sale of automobiles to fleets. Unlike the situation with Merry Brokerage, there is no common ownership of Fleet Sales and the Employer. Rather, Fleet Sales is solely owned by Al Pollack, who is neither an owner or officer of the Employer or Merry Brokerage. The record reflects that Fleet Sales employs three employees who operate out of a partitioned area located between the Employer's sales floor and its used-car sales office. These three employ- ees, two of whom are Pollack's daughters, general- 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ly handle multiple sales, but on occasion make retail sales similar to the Employer's sales employ- ees. Although the terms and conditions of employ- ment of these three employees are set by Fleet Sales, one of these employees, Dorothy Brannigan, is carried on the payroll of the Employer . The Em- ployer is then reimbursed by Fleet Sales for her salary. The record further reflects that there is nothing that would identify these individuals to the public as a separate group of employees working for Fleet Sales. Rather, the Employer and Merry Brokerage perform services for Fleet Sales and Fleet Sales performs services for the Employer and Merry Brokerage. In the course of this exchange, and in making retail sales, the Fleet Sales employees have regular contact with the employees of both the Employer and Merry Brokerage . Moreover, while the terms and conditions of employment of these employees are set by Pollack, the Employer's gen- eral manager, Lutz, testified that he can recom- mend their discharge and removal from the prem- ises. The Regional Director found , relying particular- ly on evidence of common control of labor rela- tions, that Fleet Sales may be a joint employer of its three sales employees, together with the Em- ployer and Merry Brokerage . The Regional Direc- tor further noted, however, that it does not appear from the record that Fleet Sales was given notice of, or participated in,' the instant proceedings. He accordingly concluded that because there is no common ownership between the three corporate entities, a finding of a joint employer relationship based on the existing record would be inappropri- ate. Notwithstanding this conclusion , the Regional Director determined the unit placement of these Fleet Sales employees. He found that Pollack's daughters are exempt from coverage of the Act, but the Employer has sufficient control over Bran- nigan's terms and conditions of employment to be considered an employing entity. He therefore in- cluded Brannigan in the unit found appropriate. As the Regional Director initially observed, Fleet Sales neither received notice of nor partici- pated in the instant proceeding. In these circum- stances, we shall direct that Brannigan be permit- ted to vote under challenge. Accordingly, we find, contrary to the Regional Director, that the following employees constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All full-time and regular part time salesper- sons, and "after-sale" persons, employed by Merry Oldsmobile, Inc. and Merry Brokerage Services Corporation, at the facility located at 777 South Oyster Bay Road, Bethpage, New York, excluding all other employees, and guards and supervisors as defined in the Act. DIRECTION IT IS DIRECTED that this proceeding be remanded to the Regional Director for the purpose of con- ducting an election pursuant to his Decision and Direction of Election, as modified herein , except that the payroll period for determining eligibility will be that immediately preceding the date of issu- ance of this decision. [Direction of Election omitted from publication.]