Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Jul 23, 1968

172 N.L.R.B. 1266 (N.L.R.B. 1968)

1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears, Roebuck and Co . and District 65, Retail,
Wholesale and Department Store Union,
AFL-CIO, Petitioner . Case 2-RC-14736
July 23, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Nathaniel
H. Janes. The Employer and the Petitioner have
filed briefs. The Employer also filed a Motion to
Dismiss the Petition.
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 that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this 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 labor organization involved claims to
represent certain employees of the Employer.
3. No question affecting commerce exists con-
cerning the representation of certain employees of
the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act.
While the Board has regarded a single com-
prehensive unit in retail establishments as "basi-
cally appropriate" or the "optimum" unit, it has
held that this is not necessarily the only appropriate
unit in such an establishment.' And other cases
have made it clear that, under the Act, a unit of less
than all of the employees in a mercantile operation
may be appropriate.' Such cases have applied the
long-established principle that the appropriate unit
for self-organization among the employees of a
given employer is generally based upon a communi-
ty of interest in their occupation as manifested,
' Stern's Paramus, 150 NLRB 799, 803
' Arnold Constable Corporation, 150 NLRB 788, Lord & Taylor, a Divi-
sion of Associated Dry Goods Corp, ISO NLRB 812
inter alia , by their common experiences, duties, or-
ganization, supervision, and conditions of employ-
ment.
In the instant case, we believe that a unit of em-
ployees engaged in selling the Employer's merchan-
dise could be an appropriate unit. However, the
threshold issue here presented concerns the
propriety of a unit limited to some of the employees
engaged in traditional selling. The Petitioner
requests a unit of "regular sales" employees, i.e.,
"salesmen who sell to the customer on the selling
floor and who receive commissions for their sales."
The Employer, on the other hand, argues that the
Petitioner's attempt to limit its request to such per-
sons has no basis in logic or in Board precedent.
The Employer seeks, inter alia, to include all "part-
time sales" employees. The Petitioner has clearly
indicated that its petition does not encompass part-
time employees. The record shows that there are
approximately 100 employees in this category as
compared to 105 full-time "regular sales" em-
ployees. The record further shows that the part-
time employees regularly work from 18 to 30 hours
a week in departments all over the store and enjoy
a number of the same benefits and conditions of
employment as do the employees sought by the
Petitioner.
It appears from the foregoing that all part-time
selling employees work a regular and substantial
amount of time and have a sufficient community of
interest with full-time employees sought by the
Petitioner, and it does not appear that any of these
employees have employment interests materially
different from full-time sales employees. Ac-
cordingly, we believe that an appropriate bargain-
ing unit must at least include all those employees
whose work functions are identical , in this case the
selling, on the sales floor, of the Employer's
merchandise. Because the unit proposed by Peti-
tioner falls short of this minimal requirement we
find that it is inappropriate. For the above reasons,
we shall not direct an election among the em-
ployees in the requested unit, but shall dismiss the
petition herein.3
ORDER
It is hereby ordered that the petition herein be,
and it hereby is, dismissed.
3 In view of our Decision herein, we need not decide the unit placement
of the other categories placed in issue by the Employer
172 NLRB No. 132