Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Jan 17, 1969

174 N.L.R.B. 941 (N.L.R.B. 1969)

SEARS, ROEBUCK & CO. 941
Sears, Roebuck and Co. and District 65, Retail,
Wholesale and Department Store Union,
AFL-CIO, Petitioner . Case 2-RC-14736
January 17, 1969
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On July 23, 1968, the National Labor Relations
Board issued a Decision and Order dismissing the
petition in the above-entitled case.' Thereafter, on
August 15, 1968, the Board received the Petitioner's
Motion for Reconsideration of the Board's Order
dismissing the petition. The Employer filed an
Answer to Petitioner's Motion for Reconsideration
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
Upon consideration of the Petitioner's motion, the
Employer's answer, and the entire record herein, the
Board makes the following supplemental findings:
(1) A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Sections
9(c)(1) and 2(6) and (7) of the Act.
As noted, supra, the Board initially dismissed the
petition in this case upon the ground that the unit
limited to regular salesmen was inappropriate
because the Petitioner did not want to include, inter
alia, regular part-time sales employees. However, it
is now clear that the Petitioner has changed its
position and is willing to include part-time
employees. In addition, Petitioner also requests that
the petition be reinstated to consider further the
question of whether other disputed categories of
employees should be included in the unit.
(2) The Employer is engaged in the operation of
retail stores. The parties agree that the geographic
scope of the unit should include employees in the
Fordham Road and West 31st Street stores in New
York City and the Gramaton Avenue store in
Mount Vernon, New York. The Employer, contrary
to the Petitioner, primarily contends that all the
employees in each store, including non-selling
employees, should be included in the unit.
In the initial Decision in this case, the Board
stated that a unit of employees engaged in selling
the Employer's merchandise could be an appropriate
unit. The record in this case clearly indicated that
the regular and part-time sales employees perform a
selling function and that their interests and
conditions of employment are sufficiently different
from non-selling employees to warrant a finding that
a unit of selling employees is appropriate.
We find that all full-time and regular part-time
employees classified as salesmen are to be included
in the unit. We turn now to consider those
classifications, arguably includible within the selling
unit, which are in dispute.
Catalog sales employees - these employees take
orders from customers in the store who order from
the catalog in consultation with the employees. At
some subsequent time, these employees deliver the
merchandise across the counter to the customer.
They collect money for the merchandise and ring up
the sale. We find that they are sales employees and
include them in the unit.
Customer service employees - these employees
are engaged, inter alia, in selling a great variety of
parts for appliances, such as parts for radio and
television sets, washing machines, and plumbing and
heating systems. The record is clear that a
substantial amount of their time is devoted to selling
merchandise directly to customers. Since they
perform duties identical to those duties performed
by employees sought by the Petitioner, we shall
include them in the unit.
Telephone sales employees - these employees
take orders for merchandise from customers by
telephone In performing this function, they have no
personal contact with the person calling from
outside the store. Their function is essentially one of
a clerical nature, lacking many of the characteristics
of a sales function. The Board has held that the
duties of persons in this classification are sufficiently
different from a sales function to warrant finding
that they are not sales employees.' We shall
therefore exclude them from the unit.
Area cashiers, second floor cashiers, service
station employees - the area cashiers are assigned
to booths located in the midst of various self-service
departments on the sales floors. Their job is to
accept payment for merchandise selected by
customers who carry it to a booth for wrapping We
find that their duties are primarily in the nature of a
clerical or a service function rather than a selling
function, and we shall exclude them from the unit.3
The second floor cashiers are responsible for
depositing money in each cash register around the
store to facilitate the making of change to
customers. They also take money from each register
and make an accounting This is clearly not a sales
function, and we shall exclude them from the unit.
The service station employees are primarily engaged
in servicing and maintaining automobiles. They
install various parts and accessories on cars, items
that have been sold to the customer by an^rher
salesman in the store. The record is clear that
1172 NLRB No 132 The Board dismissed the petition because both at
the hearing in this proceeding and in its brief, the Petitioner clearly
indicated that its petition for a unit of "regular sales employees" did not
encompass regular part- time sales employees
'Arnold Constable Corporation, 150 NLRB 788, 791, A Victor & Co,
116 NLRB 319, 320-321
'Stern's, Paramus , 150 NLRB 799, 800, 806.
174 NLRB No. 28
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part or the performance of a wheel alignment or
brake adjustment, they do not "sell" to customers.
Accordingly, we shall exclude them from the unit.
The Employer would have the Board include in
the unit- the display department employees, receivers,
shippers, stockmen, unit control employees, auditing
department, and credit department employees.
However, the record is clear that these employees do
no selling, and we shall exclude them from the unit.
Accordingly, we find that the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:'
All regular full and part-time sales employees,
customer service employees, and catalog sales
employees at the Employer's retail stores located
at 400 East Fordham Road, Bronx, New York,
360 West 31st Street, New York, New York, and
Gramaton Avenue, Mount Vernon, New York,
but excluding telephone sales employees, area
cashiers, second floor cashiers, service station
employees, display department employees,
receivers, shippers, stockmen, unit control
employees, auditing department and credit
department employees, guards, supervisors as
defined in the Act, and all other employees
'Although the Employer alleges that there is a significant and substantial
amount of interchange between employees who are claimed by the Union
and those not claimed , the record shows that over a period of 20 years
there have been only about 80 instances of transfer between departments
and an unknown , but apparently insignificant , number of employees who
allegedly interchange on a regular basis We find that such evidence of
interchange is not a sufficient basis to warrant a finding that only a
storewide unit would be appropriate
The unit found appropriate is larger than that
sought by the Petitioner and the exact interest of the
Petitioner in the unit is not clear from the record
before us. Accordingly, the Regional Director will
proceed with the election herein directed only after
he shall have first determined that the Petitioner has
made an adequate and timely showing of interest
among the employees in the appropriate unit who
are eligible to vote in the election.
In the event the Petitioner does not wish to
participate in an election in such a unit, we shall
permit it to withdraw its petition upon notice to the
Regional Director.
ORDER
It is hereby ordered that the dismissal of the
petition herein, previously ordered, is vacated and
the petition reinstated.
[Direction of Elections omitted from publication.]
'An election eligibility list, containing the names and addresses of all the
eligible voters, must be filed by the Employer with the Regional Director
for Region 2 within 7 days after the date of this Supplemental Decision,
Order, and Direction of Election This list may initially be used by the
Regional Director to assist in determining an adequate showing of interest
The Regional Director shall make this list available to all parties to an
election when he shall have determined that an adequate showing of
interest among the employees in the unit found appropriate has been
established No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed Excelsior Underwear Inc , 156 NLRB
1236