J. C. Penney Co., Store No.139

National Labor Relations Board - Board Decisions

Feb 15, 1965

151 N.L.R.B. 53 (N.L.R.B. 1965)

J. C. PENNEY COMPANY, STORE NO. 139 53
J. C. Penney Company, Store No. 139 and District Lodge No. 160,
International Association of Machinists, AFL-CIO, Petitioner.
Case No. 19-RC-3394. February 15, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer
Patrick C. Murphy. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.' Briefs
were filed by both the Employer and the Petitioner.
Upon the entire record in this case, the National Labor Relations
Board 2 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 jurisdic-
tion herein.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
The Employer is a member of Olympia Retail Store Association
which had a collective agreement with the Intervenor effective from
June 1, 1963, until June 1, 1964. The petition for a unit of all em-
ployees engaged in automotive repair including apprentices and help-
ers at the Employer's store, was filed on February 20, 1964. The
Employer contends, contrary to the Petitioner and Intervenor, that
its automotive service or repair department is an accretion to the
unit covered by the Association contract and that this contract is
therefore a bar to the petition. The Association contract does not in-
clude a description of the bargaining unit. Under the "wages" sec-
tion, the minimum rates for men and women in department stores are
set out without any listing of specific salaries for employees in par-
ticular departments. The record shows that the parties intended that
sales people and merchandise, stockroom, and receiving clerks be cov-
ered by the contract. However, Pemberton, Penney's store manager,
testified that there was no discussion of auto service job classifications
during the contract negotiations because, at the time of the negotia-
tions in early September 1963, its auto service department was not yet
1 Retail Clerks International Association, Local Union No. 309, AFL-CIO, hereinafter
called Intervenor, was allowed to intervene at the hearing on the basis of its contract with
the Employer and for the purpose of protecting its rights thereunder.
2 Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Fanning and Brown].
151 NLRB No. 11.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in existence . Actual construction of the auto service area did not
begin until the latter part of September 1963, and the auto service
department did not open for business until November 21, 1963. The
Intervenor has indicated that it does not wish to represent the em-
ployees in question and has not bargained for them heretofore. In
view of the above, and of our holding made hereinafter that the auto
repair department constitutes a functionally distinct, homogeneous
unit separate from other selling and nonselling.employees, ' we find
that the auto repair department is not an accretion to the unit repre-
sented by the Intervenor and that the Association contract is there-
fore not a bar to the petition.'
4. The Petitioner seeks to represent the automotive repair em-
ployees in the Employer's auto service department. The Employer
contends that only a storewide unit is appropriate.
The Employer's Olympia operation consists of a retail store and
an annex situated adjacent to the main store's parking lot, about a
block from the maul store. The annex houses the automotive service
department, an ,into sales center where tires, batteries, and auto ac-
cessories and parts are sold, a sporting goods department, and a hard-
ware and paint department. The auto service department is separated
from the selling areas in the annex by offices and a fire wall.
Nine individuals regularly work in the annex. Smith, department
manager of the auto center, and another employee sell automotive sup-
plies. Under separate supervision are two employees in the hard-
ware department, and one in the sporting goods department. These
employees may occasionally sell in departments other than the one
to which they are regularly assigned. The TAM petition. seeks a unit
limited to the employees who work in the auto service department,
under Smith's supervision.' At the time of the hearing there were
four such employees. Two of the four, Gipe and Langebach, are
journeymen mechanics, who have completed State-approved ap-
prenticeship programs and who are classified by the Employer as serv-
ice specialists. They are responsible for training the two less ex-
perienced auto service employees who are classified as servicemen.
All four service employees mount and balance tires, do lubrication
and brake repair jobs, work on front-end alignment, and install muf-
flers, tailpipes, shock absorbers, and radios. The employees also do
engine tuneups which include cleaning, renewing, and adjust ing spark
plugs, testing batteries, checking engine compression, cleaning termi-
nals, renewing and adjusting distributor points and carburetor points,
setting ignition timing, and adjusting carburetor idle speed and fan
3 See General Electric Supply Co)poiation , 83 NLRB 1135
4 The parties have agreed to exclude Smith as a supervisor
J. C. PENNEY COMPANY, STORE NO. 139 55
belt. In the course of this work, the auto service employees may re-
place carburetors, generators, and starters, but they do not repair them.
Parts and auto accessories installed by the service employees are pur-
chased by customers in the auto center. No major engine overhaul or
rebuilding work is performed for the general public, although at least
two of the service employees are qualified to do such work, and have
done so in a few instances for employees of Penney. No electrical,
transmission, or power steering work is done by these employees for
the public.
In the course of their work, the auto service employees utilize about
$10,000 worth of equipment, including two tire machines that "break
down" the tire; a front-end alignment machine, the most complicated
piece of equipment in the shop; a brake machine; two hoists; a volt-
meter; a battery charger; two hydraulic jacks; and hand tools. The
procedures for using this equipment and for performing the above-
mentioned repairs (with the exception of tuneup work) are set out in a
service manual published by Penney. No printed procedure is given
for tuneup work, as the employees are expected to draw on their own
knowledgeand experience.
Auto service employees do not ordinarily mark, price, or store auto-
motive parts or equipment, nor do they ordinarily go outside of the
service area to obtain parts. They do not regularly sell parts or sup-
plies in the selling areas of the annex.' The extent of their selling duties
is apparently to suggest to a customer that he needs a new part. The
actual order slip is written up by Gipe, but he does not ordinarily
handle cash or ring up sales. There are no salesmen stationed in the
auto service area. Sales personnel and auto service employees do not
interchange, and none of the sales people is qualified to perform the
full gamut of service jobs.
Gipe and Langenbach were hired at a rate which is a dollar higher
than the highest starting rate in the Clerks' contract, while the service-
men were also hired at more than the Clerks' highest starting rate.
The auto service employees wear coveralls while the selling employees
in the annex wear coats. The annex opens for business a half hour
before the main store. Personnel and merchandise records for the
annex are kept in the main store. All employees enjoy the same fringe
benefits,' attend store meetings, and use the same lunchrooms.
In hiring the auto service employees, the store manager testified that
he was looking for well-qualified men who could operate the type of
equipment used and who had a general, broad background as auto
6 The record indicates that auto service employees might sell in the selling areas of the
annex when there is no salesman around and a customer requests their helps, but this
would be unusual.
6 Only the auto service employees are covered by State industrial insurance.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mechanics. When the department opened the Company advertised
that it had "skilled mechanics" available. Prior to the opening, classes
were conducted by a specialist from New York on the use of the various
machines. This specialist still visits every few months for several days
of on-the-job training.
The store manager could not say whether the auto service depart-
ment might later be expanded to include other types of repair work.
An IAM• representative testified that with the equipment in the shop
the service employees could do any major overhaul job. He also testi-
fied that IAM represents auto service employees in other department
stores in the area having similar equipment, although with a broader
operation. No other member of the employer association to which
Penney belong has an auto service department.
Recently, in Montgomery Ward d Co., Incorporated, 150 NLRB
598, we held that a separate service department unit of mechanics,
tire mounters, seat cover installers, stockmen, and gas island attendants
was appropriate in a retail department store. In so doing, we relied
upon the facts that the department contained a nucleus of skilled em-
ployees, the mechanics, and that the record indicated there was no close
relationship between the work of the requested employees and other
employees at the store.
The record in this case likewise persuades us that the automotive
repair employees are a homogeneous and identifiable grouping, depart-
mental in character and sufficiently distinct from the other depart-
ments in the store to warrant their separate representation. The four
service employees, two of them journeymen mechanics, spend much of
their time doing mechanical work, such as automotive tuneups, brake
repair, and front-end alignments, which involves the exercise of sub-
stantial skills. They work in a separate area of the annex and have
little contact with sales personnel. No interchange exists between them
and sales personnel. They receive a higher wage than the employee
who sells automotive supplies, and dress differently from the salesmen
in the annex. We note also that the Intervenor already represents the
sales employees and does not wish to represent the automotive repair
employees.
Accordingly, we find that the following employees of the Employer
at its Olympia, Washington, store constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
All employees engaged in automotive repair work, including appren-
tices and helpers, but excluding all other employees, office clerical em-
ployees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]