J. C. Penney Co., Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1972

196 N.L.R.B. 708 (N.L.R.B. 1972)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. C. Penney Company , Inc. Store Number 1302 and
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Au-
tomotive Chauffeurs, Parts and Garage Employees
Local 926, Petitioner. Case 6-RC-5905
April 28, 1972
DECISION ON REVIEW AND DIRECTION
By MEMBERS FANNING , JENKINS , KENNEDY, AND
PENELLO
On November 4, 1971, the Regional Director for
Region 6 issued his Decision and Direction of Election
in the above-entitled proceeding in which he found
appropriate a unit of all full-time and regular part-
time employees in the service department of the auto
center, including all servicemen, service specialists,
diagnosticians, stock clerks, and gas island attend-
ants, but excluding all store employees and all auto
center sales clerks, sales specialists, merchandise rec-
ords clerk, and the maintenance man. Thereafter, in
accordance with the National Labor Relations Board
Rules and Regulations, the Employer filed a timely
request for review of the Regional Director's Decision
on grounds that neither Board precedent nor the rec-
ord evidence supports these findings. On November
19, 1971, the Union filed a timely statement in oppos-
tion.
By telegraphic order dated January 6, 1972, the
National Labor Relations Board granted the request
for review to the extent that it related to the composi-
tion of the auto center unit and denied review with
respect to the other issues raised in the request. There-
after, the Employer filed a brief on review with the
Board and the Union filed the brief it previously filed
with the Regional Director.
The Board has reviewed the entire record in this
case with respect to the issues under review, including
the briefs on review and affirms the Regional
Director's Decision and Direction of Election except
as modified herein.
The Employer is engaged in the operation of a retail
department store and an auto service center in the
Monroeville Mall, Monroeville, Pennsylvania. The
auto center is a one-story building located approxi-
mately 200 yards from the main store, separated by
the Mall parking lot. The center is physically divided
into a separate air-conditioned selling area, a stock
room, a service area, a diagnostic center, and an adja-
cent gas island. Its function is to sell and install parts
and accessories, to provide basic auto services such as
lubrication, oil change, and refueling and to perform
automotive repairs exclusive of major internal engine
and transmission work.
The Petitioner's basic unit request is limited to
those employees employed in the service department,
as distinguished from the sales department of the cen-
ter. Thus, it seeks to represent (a) six service specialists
who make mechanical repairs, replace malfunction-
ing parts, perform tune-ups, install air-conditioners
and align front ends; (b) nine servicemen who per-
form some mechanical repairs, install replacement
parts, lubricate and change oil; (c) three diagnosti-
cians who operate the special diagnostic lane for
checking 212 various items on a car; (d) four full-time
stock clerks who receive, ticket, and process merchan-
dise and pull parts from storage pursuant to written
work orders; (e) full-time and regular part-time gas
island attendants who pump gas and check oil levels
and batteries; and (g) a maintenance man who is re-
sponsible for cleaning the sales area, and auto center
windows, and restrooms.' The Petitioner would ex-
clude, while the Employer would include, (a) six full-
time sales specialists who work on the sales floor,
selling to customers auto parts, batteries, tires, and
accessories ; (b) three full-time sales clerks who are
essentially cashiers on the gas islands; (c) a merchan-
dise records clerk who maintains inventory control
sheets and the active order files and performs other
clerical and bookkeeping functions for the auto cen-
ter. The Regional Director found the unit sought by
the Petitioner to be appropriate except he would ex-
clude the maintenance man.
The auto center is headed by a departmental super-
visor, an assistant manager and two service supervi-
sors, the latter presumably are in charge of the service
department. All employees are governed by the same
rules and regulations, fill out timesheets, and receive
the same fringe benefits. The sales specialists, unlike
the other employees who are paid an hourly rate,
receive a draw against comission. All employees re-
ceive on-the-job training and attend training sessions
conducted by the personnel department. Servicemen
and service specialists, however, also attend a formal
training school operated by the Employer on a year-
round basis to train service employees. All service
employees are furnished uniforms whereas sales per-
sonnel are required to wear shirts and ties or dresses.
When the gas island is extremely busy, sales spe-
cialists, like all other employees, may pitch in and help
the island attendants pump gas and, on rare occa-
sions, mount tires and install accessories on custom-
ers' automobiles. The island attendants occasionally
work in the sales area dusting merchandise on display
and work in the stockroom or service area providing
assistance of a general nature. The sales clerks or
cashiers normally work on the gas island except dur-
1 He is supervised by a maintenance department supervisor and does not
perform any duties in the service area
196 NLRB No. 67
J. C. PENNEY COMPANY, INC. 709
ing inclement weather when they move their equip-
ment to the sales floor.
Servicemen and service specialists are required to
perform mechanical work such as fixing brakes, align-
ing front-ends, installing mufflers and exhaust sys-
tems , and repairing and changing tires. The sales
specialists are not trained nor required to perform
such work. The extent to which service employees sell
is limited to pointing out things which need repair or
replacement. This is accomplished by the
serviceman's notation on the service work order
which is turned over to the service supervisor who
discusses it with the customer, or by the serviceman
pointing these things out to the customer if the cus-
tomer is in the service area. Recently the Company
instituted a new policy which prohibits customers
from entering the service areas because of the dangers
involved, thus it would appear that in the future the
service supervisor would do most of the consultation
with customers. The servicemen do not receive any
commission or additional compensation for sales re-
sulting therefrom.
Service personnel perform a safety check known as
the "Pit Boss Check" which includes filling out a pre-
printed form which indicates areas needing attention.
A copy is provided that customer and there is testimo-
ny that approximately 75 percent of the customers
authorize the work to be performed. With respect to
this check the Company is capable of providing all the
parts and services covered. Servicemen performing
this check do not receive any commission or addition-
al compensation from sales resulting therefrom.
In addition to the "Pit Boss Check," the Company
offers customers a more comprehensive check in its
diagnostic center . This checklist covers 212 points and
the results are discussed with the customer either by
the diagnostician or a service supervisor. The Compa-
ny is capable of performing service on approximately
70 percent of the items covered by the test. Again, no
commission or addtional compensation is paid for
sales or service resulting therefrom.
The gas island attendants are primarily engaged in
pumping gasoline but also sell and install antifreeze,
oil, and wiper blades at the island, for which they
receive no additional compensation.
The record does not show any interchange or per-
manent transfers between the service employees and
selling employees at the center. There does not appear
to be any bargaining history at this location, nor is
there any other union seeking to represent these em-
ployees as part of a broader unit. There is also testi-
mony in the record that area practice supports the
service unit sought.
It is clear that there are factors here present which
would render appropriate the overall auto center unit,
including the sales specialists , as urged by the Em-
ployer. But it does not necessarily follow that the
smaller service department unit sought by the Peti-
tioner is inappropriate, as our dissenting member
would hold. In Montgomery Ward & Co., 150 NLRB
598, where in circumstances similar to those here pre-
sent, a service department unit was found appropri-
ate, the Board stated:
... Section 9(b) of the Act not only empowers the
Board to decide in each case "the unit appropri-
ate for the purposes of collective bargaining," but
also directs it to make appropriate unit deter-
minations which will "assure to employees the
fullest freedom in exercising the rights guaran-
teed by this Act," i.e., the rights of self-organiza-
tion and collective bargaining. In effectuating
this mandate, the Board has recently reempha-
sized that the Act does not compel labor organi-
zations to seek representation in the most
comprehensive grouping of employees unless
such grouping constitutes the only appropriate
unit. Although a unit consisting of all employees
of the Employer at its Thomas Mall operations
may be appropriate for the purposes of collective
bargaining, there is no bargaining history cover-
ing such a unit. In such circumstances, the Board
has held that the appropriateness of an overall
unit does not establish that a smaller unit is inap-
propriate. Thus, the issue here is simply whether
a unit consisting of only employees of the service
department is appropriate in the circumstances
of this case and not whether another unit consist-
ing of ... all employees employed in the automo-
tive service center would also be appropriate,
more appropriate, or most appropriate.
Applying those principles to the facts here, we are
satisfied that the service employees constitute an iden-
tifiable and homogenous grouping, with a community
of interest sufficiently distinct from the sales special-
ists to warrant separate representation? Thus, the
sales specialists are primarily salesmen who work in a
separate air-conditioned enclosure, are paid a draw
against commissions, have little contact with the
service employees, and there is no interchange be-
tween the two groups of employees. The service em-
ployees perform manual work in connection with the
repair and maintenance of automobiles exercising
varying degrees of mechanical skills. They are hourly
paid, work in uniforms, receive special training at the
Employer's school, and perform no substantial selling
function? Finally, it appears that bargaining on the
2 J C Penney Company, Store No. 139, 151 NLRB 53; Montgomery Ward
& Co., Inc., supra, J C. Penney Company, 196 NLRB No. 63. Cf. Sears
Roebuck & Co., 184 NLRB No. 36, and 182 NLRB 609, wherein we included
sales personnel in an auto center unit.
3 While the record indicates that service employees and gas island attend-
Continued
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis of separate service department units is the area
practice; and that no labor organization is here seek-
ing a more comprehensive unit.
The gas island cashiers render clerical support to,
and have close contact with, the included gas island
attendants and therefore, contrary to the Regional
Director's finding, should be included in the unit.
In agreement with the Regional Director, we find
that as the maintenance man is under the separate
supervision of the maintenance department supervi-
sor of the main store and performs janitorial functions
only in the sales area and has little or no contact with
the unit employees, we shall exclude him from the
unit.
As we are unable to clearly determine from the
record the unit placement of the merchandise records
clerk, we shall permit her to vote subject to challenge.
Accordingly, we find the following employees of
the Employer constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time employees en-
gaged in automotive service work employed in the
auto center of the Employer's Store Number 1302 at
the Monroeville Mall, Monroeville, Pennsylvania, op-
erations, including all service specialists, servicemen,
diagnosticians , stock clerks, sales clerks (cashiers
working on gas islands), and gas island attendants but
excluding all store employees, all auto center sales
specialists, the maintenance man, office clerical em-
ployees, guards, professional employees and supervi-
sors as defined in the Act.
DIRECTION
The case is hereby remanded to the Regional Di-
rector for Region 6 for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, except that the eligibility
date therefor shall be that immediately preceding the
date below .4
MEMBER KENNEDY, concurring in part and dissenting
in part:
ants do suggest the sale of certain items to customers when servicing their
cars , we do not regard this as establishing that these employees are engaged
in a selling function . Bomberger's Paramus, 151 NLRB 748.
4 In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all parties
to the election should have access to a list of voters and their addresses which
may be used to communicate with them . Excelsior Underwear Inc. 156
NLRB 1236; N LR B. v Wyman-Gordon Co, 394 U.S. 759. Accordingly, it
is hereby directed that a corrected election eligibility list, containing the
names and addresses of all the eligible voters, must be filed with the Regional
Director for Region 6 within 7 days of the date of this Decision on Review
and Direction. The Regional Director shall make the list available to all
parties to the election . No extension of time to file the list shall be granted
by the Regional Director except to extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
I concur with the decision of my colleagues that a
unit of automotive center employees at the
Employer's Monroeville, Pennsylvania, store is ap-
propriate for collective bargaining. As in J. C. Penney
Company, Inc., 196 NLRB No. 63, I would find, con-
trary to my colleagues, that the smallest appropriate
unit should encompass all employees assigned to the
automotive center, including the sales employees. In
my opinion, the Board should follow in this case its
recent decisions in Sears, Roebuck & Co., 184 NLRB
No. 36 and 182 NLRB 609. In those cases the Board
concluded that only a unit which included the sales
people would be appropriate. The Board noted that
the "installers and the salesmen complement each
other; most sales are not successfully consummated
until there has been a successful installation of the
item sold."5 The Board recognized in both of the cited
Sears cases that automotive center employees consti-
tute a "functionally integrated group working in a
recognized product line-automotive services and
sales."
Plainly, the service employees of the automotive
center do not comprise the nucleus of craft employ-
ees. The service employees do not perform the skills
of journeymen automotive mechanics. The Employer,
according to record evidence, has a firm policy
against its employees performing mechanical work
inside of engines and transmissions; they never open
engines to do any repairs. The service employees are
essentially parts changers. They replace parts such as
shock absorbers, mufflers, and ball joints, but they do
not repair parts. Service employees are sometimes
hired without prior experience. The Employer pro-
vides them with limited training for a short duration
which gives the employees sufficient skill and profi-
ciency to perform the service work. The initial train-
ing consists "of a tape with slides and reading
material" under the direction of a personnel clerk.
The Employer does maintain a training center to
which employees are sent for courses which "run from
a five day period or a three day period, depending on
the type of school that it is ." By attending the training
center, the employee becomes a service specialist.
All 50 sales and service employees in the automo-
tive center work under the direction and supervision
of the department manager. The record establishes
that there is a functional integration of the work of the
sales and service employees. When traffic is heavy at
the gas islands, all personnel, including both service
and sales employees, assist the island personnel.
Petitioner's own witness established that service em-
ployees "do quite a bit of selling" and agreed that
"service specialists should get a commission on the
items that they sell." The witness testified that when
S 184 NLRB No. 36.
J. C. PENNEY COMPANY, INC. 711
he talked to customers about needing various replace-
ment parts the customer would "tell you to do the
work right there" about 75 percent of the time. An-
other witness for Petitioner testified that the service
specialist comes "into contact with the sales people
very often" and that he often had contact with the
customer. The diagnosticians, whom my colleagues
include in the unit, are clearly engaged in selling work.
After the tests have been conducted, they talk to cus-
tomers, quote prices, and give estimates.
The island attendants, who are included in the unit,
sell merchandise such as antifreeze, chemicals, lubri-
cants, and wiper blades. If a customer wants an item
not stocked at the island, the island attendant would
go to the sales area, remove the merchandise from the
shelf, and deliver it to the customer on the island. In
the wintertime, the cash registers are moved inside to
the sales floor. Gas island attendants mount tires and
work in the shop area when business is slack at the gas
island.
The sales employees do not do the work that the
service employees normally perform, although they
may, on rare occasions, install a battery or help a
customer with a small problem. It is clear, however,
that on major items sold in the automotive center,
such as tires, batteries, and other accessories, the in-
stallation is a constituent part of the transaction, re-
quiring close coordination between the sales and
service personnel.
In my view,the lackof craft skills and the functional
integration militates against finding a segment of the
automotive department to constitute an appropriate
unit. As I see it, there is a clear community of interest
between the sales and service employees. According-
ly, I would broaden the unit to include all employees
in the automotive center.