Automobile Club of Missouri

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 614 (N.L.R.B. 1974)

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.