Sears, Roebuck, and Co.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 462 (N.L.R.B. 1971)

442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears, Roebuck, and Co. and International Brother-
hood of Teamsters , Local Union No. 891 , Petitioner.
Case 15-RC-4515
June 23, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Harry L. Hopkins.
Following the hearing, pursuant to Section 102.67 of
the National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, this case was transferred to the National La-
bor Relations Board for decision. Thereafter, the Em-
ployer filed a brief, which has been duly considered.
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 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 no prejudicial error. The
rulings are hereby affirmed.
Upon the entire record in the 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 Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. No question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act. _
4. Factual Background:
The Employer is engaged in the operation of a retail
department store and detached warehouse or service
building at Jackson, Mississippi. The Petitioner seeks a
unit of all employees at the service building. Defining
the requested unit more precisely, the Petitioner would
include in the unit all drivers, driver helpers, inside and
outside servicemen, warehousemen, partsmen, stock-
men, drapery shop employees, service clerical em-
ployees, and porters assigned to the service building,
about 40 employees in all. In the alternative, the Peti-
tioner seeks a unit combining all of the above em-
ployees with the following employees who are normally
assigned to the retail store: warehousemen, servicemen,
porters, shippers, tailors, advertising employees, dis-
play employees, warehouse clerical employees, mer-
chandise control clerical employees, and coffeeshop
employees. Both the primary and alternative units
sought by the Petitioner exclude all salesmen, profes-
sional and technical employees, office clerical em-
ployees, guards and watchmen, and supervisors at ei-
191 NLRB No. 85
ther the service building or retail store. The Employer
contends that the only appropriate unit is a storewide
unit consisting of all selling and nonselling employees
at the retail store and service building, excluding office
clerical employees, guards, and supervisors. Accord-
ingly, the Employer contends that, in addition to the
employees sought by the Petitioner in both its primary
and alternative unit proposals, any unit found appro-
priate must include watch repairmen, catalog sales em-
ployees, commercial sales employees, and all selling
employees in both the hardline and softline selling divi-
sions.
There is no collective-bargaining history for any of
the employees in issue at the Jackson Sears location,
and no labor organization is seeking to represent these
employees in a single storewide unit.
The Employer's retail operation in Jackson, Missis-
sippi, consists of two separate buildings approximately
1- 1/2 miles apart. The larger, a three-floor retail store,
contains areas devoted to selling, warehousing, and ser-
vice (for example, watch repair and tailor shops). The
smaller, a one-floor with mezzanine service building,
likewise contains selling, warehousing, and service
areas. A comparison between buildings of the amount
of space alloted to each activity shows that the store far
exceeds the service building in selling area and contains
approximately 54,000 square feet of warehousing space
as opposed to 21,000 square feet in the service building.
On the other hand, the store has less service activity
space. A comparison within buildings shows the selling
area greater than the warehousing area in the store,
with limited service area. Warehousing area predomi-
nates in the service building. Overall, the entire Jackson
operation is classified as a relatively small outlet in the
Sears retail complex and apparently, whenever feasible,
Sears attempts to locate outlets of this nature within a
single building. Originally, the Jackson Sears was
confined to its present retail store building but, with
growing business demands, it was expanded to its
present size. The Employer submits that this expansion
to a separate building was due to the fact that addi-
tional space adjacent to the store property was unavail-
able, and, notwithstanding, the practical functioning of
the business essentially remains as a single-building
operation.
Supervision is headed by a store manager, responsi-
ble for all phases of activity at either the store or service
building. Responsible directly to him are nine manag-
ers, including an assistant store manager who exercises
direct authority over warehousemen, warehouse clerks,
shippers, and porters wherever assigned. He divides his
time and presence approximately equally between the
two facilities. On this same supervisory level is a cus-
tomer service manager who is responsible for, among
other things, the service building's and the store's ser-
vice parts operations. He spends 30 percent of his nor-
SEARS, ROEBUCK AND CO.
mal workday at the store supervising these activities,
whether performed by employees assigned to the store
or by service building employees, particularly service-
men, who spend substantial time at the store repairing
merchandise there.
The store personnel office uniformly administers hir-
ing and employment matters for all employees. Appli-
cants, whether seeking work at the store or at the ser-
vice building, must appear there. No differentiation is
made between employees assigned to the store or to the
service building in terms of wages, hours, or other
working conditions. Store sales employees are paid on
three different bases: straight salary, salary plus com-
mission, and straight commission. Nonselling em-
ployees are paid a straight salary, with common store
and service building job classifications commanding the
same rate range. Warehousemen, porters, drapery shop
employees, and partsmen are normally paid a straight
salary which corresponds to the basis of payment for
many salesmen. Servicemen are paid a commission on
their sales which normally represents 10 to 15 percent
of their weekly rate. This commission percentage is
identical to that received by many salesmen. All em-
ployees participate in the same overtime pay program.
They are all carried on one payroll, handled by the
store cashier, and paid once a week on the same day.
Employees at both the store and service building punch
timeclocks at their respective locations using identical
timecards. Although all employees work varying
schedules, most at each location report for identical
hours. The same fringe benefit programs, including
profit sharing, are available to all employees to the
same extent and in the same manner, irrespective of
work station.
A new hires orientation program requires common
meetings of store and service building employees once
a week. Regular employee weekly meetings are also
held on a storewide basis and, at least once a month,
selling and nonselling employees participate in training
sesssions conducted at both the store and service build-
ing. All selling and nonselling employees also partici-
pate in storewide selling contests with a nonselling em-
ployee teamed with a salesman to help refer prospective
customers to him. Nonselling employees are authorized
to sell merchandise and receive commissions during
special,sales events throughout the year, too.
Although the majority of sales are consummated at
the retail store, there is extensive duplication of ware-
housing, shipping and receiving, and service functions
at the store and service building. Merchandise is con-
stantly shipped, received, stored, and serviced at both
facilities. As a' result, many job classifications are com-
mon to each, and many of the activities performed by
employees at each location are identical. For example,
assigned to the service building are eight warehouse-
men immediately supervised by a warehouse manager.
443
Assigned to the store are two warehousemen who re-
port directly to the assistant store manager; nine ware-
housemen responsible to a shipping and receiving
supervisor who in turn reports to the assistant store
manager; and two warehousemen who are supervised
directly by a hardline selling division manager. The
work performed by all these warehousemen is identical,
consisting primarily of receiving, marking, and storing
merchandise. Similar warehousing work is also regu-
larly performed by store sales employees because each
selling division is responsible for the storage and con-
tinuous inventorying of its merchandise in warehousing
portions of both the store and service building. Accord-
ingly, sales employees are in these locations daily, as-
sisting with merchandise receipt and working with
warehousemen in arranging it in proper storage bins.
Salesmen even occasionally operate forklift trucks in
performing these duties.
Employees assigned to both facilities are responsible
for all shipments leaving either the service building or
store for delivery to customers or other destinations.
Clerical employees at both handle all paperwork for
their respective facility in connection with the receiving
activity and they fill out load sheets for delivery drivers,
salesmen, and other employees making customer deliv-
eries. A job classification common to both buildings is
porter. Porters spend about half their time performing
typical janitorial activities. The remainder is occupied
by warehousemen job duties.
Servicemen are assigned to both the service building
and store and are engaged in precisely the same acti-
vites. A service shop is located in each building and
there, in addition to performing service work on previ-
ously sold items brought in by customers, servicemen
also do repair and maintenance work on merchandise
in stock. All servicemen spend large amounts of time
with repair work on store displays and, thus, those
assigned to the service building often work side-by-side
at the store with those assigned to the store. Much
service and repair work is also done in customers'
homes. Through this direct customer contact, service-
men, as well as sales employees, sell parts, maintenance
agreements, television antennas, and detergents, receiv-
ing an identical commission for their sales.
Servicemen are directly assisted in their job by cleri-
cal employees, assigned to the service building and to
the store, who are responsible for the same duties. They
man counters and telephones to receive service requests
directly from customers who may contact either place.
The clericals schedule service calls to customers'
homes; they answer customer inquiries as to the status
of repair work and parts orders; and they maintain files
at both locations, which enable them to inform a cus-
tomer as to the status of merchandise warranty periods.
These clericals also sell detergents and maintenance
agreements. Actual interchange between the two em-
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee groups is not uncommon. Clericals assigned to
the store frequently fill in at the service building. The
reverse transfer is less frequent but occurs at least
monthly.
Partsmen at the service building deal primarily with
parts, supplying them for use by store personnel and
selling them directly to customers. Many of these parts
are also carried in retail store selling divisions and are
sold by salesmen. They are sold, too, by servicemen and
clericals at the store's customer service counter. Parts-
men wait on customers who bring merchandise to the
service building for service and repair work. Sales em-
ployees also help customers with these problems when
customers approach them directly at the store. Thus,
salesmen may personally take the customer to the ser-
vice counter and write up a service order.
Some examples have already been referred to in
which employees perform duties regularly assigned to
other job classifications. There are additional instances
which occur with greater frequency. Store sales em-
ployees often engage in delivery activities, formally as-
signed to service building delivery drivers, and in ser-
vice activities, formally assigned to servicemen.
Whenever a customer requests immediate delivery of
merchandise prior to its scheduled truck delivery date,
a salesman will personally deliver the item. Whenever
a customer calls a salesman with a merchandise com-
plaint, he will go, with regularity, to the customer's
home to make an adjustment or perhaps demonstrate
the item's proper use. If a repair which the salesman
cannot make is necessary, he might call a serviceman
out and they will, together, attempt a remedy. When
sales employees are required to make delivery and ser-
vice calls of appreciable length, they are compensated
at their average sales earnings . Compensation is also
given for the use of personal vehicles. Another instance
of job interchange is reflected by servicemen assigned
to the service building who are not formally responsible
for, but actively engaged in, repairs to stock at the retail
store. Time spent in this activity is charged to the sell-
ing division where it is performed, and, in performing
these repairs, service building servicemen are fre-
quently in contact with the division' s sales personnel,
store warehousemen assigned that location, and store
servicemen.
There is also a significant amount of employee con-
tact between numerous retail store and service building
employees due to the integration of their normal day-
to-day activities. In terms of the association of service
building employees on a regular daily basis with retail
store employees, the record discloses that service build-
ing employees work with store warehousemen and sales
personnel in unloading service building stock at the
store and then in transferring this stock to the proper
sales division and storing it there. The return of surplus
or out-of-season items from the store to the service
building occasions the same working association be-
tween the same groups of employees. Daily, service
building delivery drivers go to store selling areas where,
assisted by salesmen and store porters and warehouse-
men, they pull merchandise from the floor for delivery
to customers. Drivers or service building warehouse-
men, twice a day, pick up service orders or items for
repair at the store service counter to take to the service
building. They also bring back to the store repaired
items. Rush repair items left at the store are frequently
personally delivered to the service building by sales-
men. Service building servicemen and drivers come to
the store to pick up items needed for loan to customers
while their own television or refrigerator, for example,
is being repaired.
Service building partsmen daily bring cash receipts,
accompanied by service building warehousemen or
porters to avoid theft, to the store for deposit. They
pick up newly received parts at the store and service
orders at the service desk, and they also obtain parts
display fixtures for use at the service building. Mer-
chandise displays call for a considerable amount of
storewide employee association. Store selling division
managers are responsible for displays in their division
and supervise all employees working on displays irre-
spective of their assigned work station. Display materi-
als are housed at both the store and service building.
Service building delivery drivers and warehousemen
bring these materials to the store daily. Sales personnel
and store display shop employees frequently go to the
service building to locate and select items needed, and
they also assist service employees with loading and
bringing them to the store. All of these employees help
locate the display materials at their store destinations.
Dismantling displays again involves the cooperation of
the same store and service building employees. Me-
chanical displays require constant repair and adjust-
ment by store and service building servicemen. Dis-
plays of furniture room settings bring service building
drapery shop employees to the store to fix setting drap-
eries. These employees also come to help salesmen at
the store sell custom draperies, and salesmen go to the
service building drapery shop to check drapery order
progress. Finally, service building employees come to
the store for tools, for warehouseman and serviceman
uniforms, and for office and maintenance supplies.
The reverse daily flow of retail store employees to the
service building is of comparable magnitude. In addi-
tion to instances previously referred to, store sales per-
sonnel, responsible for the warehousing and inventory-
ing of all their stock wherever housed, go to the service
building and work with employees there in arranging
and counting merchandise and in repairing items. They
go to the service building to obtain new or repaired
items which they personally deliver to customers. Store
catalog order sales employees also go to the service
SEARS , ROEBUCK AND CO.
building to inventory and pick up catalog order mer-
chandise. Sales employees are found at the service
building parts department to determine the status of
repairs and needed parts for both store stock merchan-
dise and customer merchandise. Store servicemen like-
wise go to the parts department for parts and they may
actually repair the item at the service building, working
with its servicemen. Sales personnel go to the service
building to check its "on order" files for specific goods.
All customer-returned merchandise is taken to the
service building, and salesmen must go there to check
it and determine its disposition. This involves working
with service building warehousemen and servicemen
depending on whether the item can be resold or needs
repair first. Newly received but damaged merchandise
at the service building or store requires similar sales-
man inspection.
Some items, such as carpeting and central heating
and air conditioning, are installed by independent con-
tractors. Salesmen must work with service building
personnel to see that the complete customer order is
assembled for pick up by the contractor. Salesmen
check out special custom merchandise, for example,
roofing and fencing, at the service building prior to
delivery to see that it meets customer specifications.
Advertising material is housed at the service building,
and store advertising employees check it there and ar-
range for the correct materials to be taken to the post
office at the proper time. Whenever a store employee is
in the service building at work, he takes his usual
breaks there and utilizes service building recreation
facilities along with all service building personnel.
Contentions of the Parties
The Employer contends that both the primary and
alternate units sought by the Petitioner represent arbi-
trary grouping of employees based on either the extent
of organization or, more likely, an unawareness of the
interrelationship between employees in this type of
Sears operation. The Employer further contends that
the only unit appropriate for purposes of collective
bargaining is a storewide unit consisting of all selling
and nonselling employees, excluding office clerical em-
ployees, guards, and supervisors.
The Petitioner is apparently seeking, in its requested
primary unit, to include all employees at the detached
service building with the usual exclusions. In its re-
quested alternate unit, the Petitioner appears to include
all employees at either the service building or retail
store engaged in warehousing and sales supporting ac-
tivities.
We agree with the Employer's position that the only
appropriate unit should consist of all selling and non-
selling employees. The record in this case indicates that
among Jackson Sears retail store and service building
445
employees there is a strong community of interest
based on common and direct supervision, uniform
working conditions, common job functions, temporary
interchange of job duties, and integration of normal
work activities between the two facilities. As Section
9(c) of the Act directs the Board to make appropriate
unit determinations which will "assure to employees
the fullest freedom in exercising the rights" of self-
organization and collective bargaining, we conclude
that employees exhibiting commonality to this extent
can only exercise their organizing and bargaining rights
in the fullest measure through a single, overall unit.
In terms of supervision, it is not established that
service building employees are separately supervised,
nor that warehousing and sales supporting employees
assigned to the retail store are also. Moreover, consist-
ent with the degree of integration of activities in this
retailing operation, there periodically appears to exist
common supervision of requested and excluded em-
ployees. Working conditions are commonly shared and
uniformly applied to the same extent at both the store
and service building. Warehousing job functions are
extensively duplicated at both locations, thereby almost
conclusively eliminating the possibility of a separate
service building unit. And, in addition, there is some
duplication of job functions between included and ex-
cluded employees as delineated in the alternate unit
request. Among these included and excluded em-
ployees, too, the evidence shows a fairly consistent pat-
tern of the assumption of some duties regularly as-
signed other job classifications.
Of decided significance in this case is the nature and
degree of operational integration between the daily ac-
tivities of all store and service building employees. Fac-
tually, it is difficult to delineate in some instances
whether a given job classification should be categorized
as selling or nonselling. In the latter category even the
term "warehousing" holds little meaning as evinced by
the specific job classifications listed in the unit requests
herein. Thus, while the primary unit request for such
employees as service building drivers and helpers,
warehousemen, and stockmen unarguably represents
the traditional warehouse employee complement, ser-
vicemen and drapery shop employees obviously repre-
sent activities of expanded scope. The tailors, advertis-
ing employees, display employees, and coffeeshop
employees included in the alternate unit request also do
not qualify as "warehousing" employees. More impor-
tantly, it is impossible to say, on the evidence presented
to the Board, that classifications such as these represent
the Employer's nonselling work force. When these ob-
servations are added to the evidence that this Em-
ployer's selling employees are engaged, to a substantial
degree, in various kinds of nonselling activities, we are
impelled to find that, in all these circumstances, only a
storewide unit is appropriate.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case , we conclude that ORDER
employees of the retail store and service building at the
It is hereby ordered that the petition herein be, andEmployer 's Jackson, Mississippi, location constitute a
homogeneous grouping such as to require that they all it hereby is, dismissed.
be included together in a single bargaining unit. As no
labor organization seeks to represent the overall unit,
we shall dismiss the petition.