Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Sep 23, 1969

178 N.L.R.B. 577 (N.L.R.B. 1969)

SEARS, ROEBUCK & CO. 577
Sears, Roebuck and Co. and The Commission Sales
Association , Petitioner . Case 6-RC-4873
September 23, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROW N, AND JENKINS
Upon a petition duly filed on December 5, 1968,
under Section 9(c) of the National Labor Relations
Act, as amended, a hearing in this case was held on
April 7 through April 11, 1969, and on April 29
through May 1, 1969, before Harold J. Datz,
Hearing Officer. Pursuant to Section 102 67 of the
National Labor Relations Board Rules and
Regulations, the above-entitled matter was duly
transferred by the Regional Director for Region 6 to
the Board for decision. The Petitioner and Employer
filed briefs.
Pursuant to the provisions of Section 3(b) of the
Act, as amended, the 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
affirmed.
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
concerning 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.
The Employer has approximately 1,766 full-time
and regular part-time sales people employed in the
12 retail stores characterized as the Pittsburgh
group. These employees are generally compensated
on one of the following bases: (1) commission of 6
percent or more against a weekly draw of $100; (2)
salary plus commission of 1 percent; (3) straight
time hourly rates without commission.
The Petitioner seeks to represent all full-time
commission salesmen' in the Employer's Pittsburgh
group who are compensated in accord with category
(1) noted previously. Alternatively, it would also
represent both full and part-time commission
salesmen who number approximately 465 employees.
The Employer contends that there is no statutory
or decisional basis for the Petitioner to seek a unit
limited to certain sales people and seeks to include
all selling employees in the Pittsburgh group in the
'For purposes of this decision the term commission salesmen is utilized
to to designate those salesmen who are on a commission draw basis and
who normally receive a 6-percent commission or more for selling big ticket
items.
unit . Of the remaining sales people whom the
Petitioner would exclude and the Employer would
include, there are approximately 315 full-time
salesmen compensated by a salary plus 1-percent
commission, and the remaining 968 sales people are
part-time employees who are compensated on an
hourly basis. The salary plus 1-percent commission
and part-time employees enjoy a number of the
same benefits and conditions of employment as the
employees sought by the Petitioner. The Petitioner
has clearly indicated that it does not seek to
represent sales people who are compensated on
other than a commission basis, nor those
compensated on a salary plus I-percent commission
bases.
At issue, therefore, is whether the Pittsburgh
group commission salesmen, as previously defined,
constitute an appropriate unit for purposes of
representation.
The Board has held that the storewide unit in
retail establishments, while "basically appropriate"
or the "optimum" unit, is not necessarily the only
appropriate unit in such an establishment.' Indeed,
the Board has made it clear that, under the Act, a
unit of less than all of the employees in a mercantile
operation may be appropriate.' These decisions rest
on the long established principle that the
appropriate unit for self-organization among the
employees of a given employer is generally based
upon a community of interest in their occupation.
Such interest is normally demonstrated, inter alia,
by the employees' common experiences, duties,
organization, supervision, and conditions of
employment.
The commission salesmen primarily sell "big
ticket" merchandise, although it appears from the
record that they also sell the low-priced merchandise
in the divisions or departments in which they work.
Approximately 314 commission salesmen work in
the Employer's so-called big ticket divisions 4 and
another 11 work in combined divisions which, in
addition, sell such things as toys. garden accessories,
hardware, and bedding accessories. Some divisions
are manned only by commission salesmen,' but
other divisions include substantial numbers of salary
plus l percent and hourly paid sales employees.' The
remaining commission salesmen (approximately 140)
'Stern's Paramus , 150 NLRB 799, 803
'Arnold Constable Corporation , 150 NLRB 788, Lord & Taylor, a
Division of Associated Drv Goods Corp. 150 NLRB 812
'These divisions sell furniture , sewing machines , vacuum cleaners, floor
polishers, stoves, draperies , slip covers , custom decorating , washers, dryers,
fencing, farm machinery and equipment, floor coverings , water heaters,
plumbing, retrigeration equipment , venetian blinds, awnings and shades,
radios, television sets, building materials , and kitchen modernization
'When broken down on a store-to-store basis, approximately 178
commission salesmen out of a total of 465 work in such divisions
'These divisions sell draperies , slip covers, custom decorating , fencing,
farm machinery and equipment , water heaters, plumbing , radios and
television sets, building materials and kitchen modernization In isolated
stores, only commission salesmen may be employed in a given division,
such as the salesmen in the radio and television division at the Employer's
Baden store
178 NLRBNo.91
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work in divisions other than the traditional "big
ticket" divisions, in some instances being the only
salesmen so employed.' In most of these divisions,
however, it appears that the commission salesmen
represent a relatively small percentage of the total
sales complement and that other sales employees sell
the same merchandise as the commission salesmen.
It appears further that some commission salesmen
(approximately 178) do some outside selling in the
major appliance divisions or perform other outside
duties in connection with home-installed
merchandise. Such salesmen are required to have
automobiles and to carry liability insurance.
Commission salesmen usually share common
supervision and work with other types of sales
people except in those divisions where they
constitute the entire sales force. Furthermore, the
record shows that the practice may vary from store
to store in assigning commission salesmen to
handling particular items.
l,rom the foregoing, and the record as a whole.
we are not persuaded that these commission
salesmen are a homogenous group of employees who
may constitute an appropriate unit. While the
'These divisions sell, among other things, jewelry, hearing aids,
cosmetics , wigs, hardware , shoes, automotive accessories , men's suits,
monuments , and truck and automobile tires
The Employer has other divisions , where no commission salesmen are
employed , which also sell high-priced merchandise such as electric
typewriters , boats, ski equipment , luggage, paint sprayers, and mink coats
The catalog and commercial sales divisions , in which no commission
salesmen are employed , have sales running as high as $4,000 and $50,000,
respectively
commission salesmen are employed to sell big ticket
merchandise, other selling employees sell such
merchandise, frequently the same type as that sold
by the commission salesmen. Although the training
of the commission salesmen tends to be specialized
and related to the merchandise sold, it appears that
other sales employees receive specialized training on
a comparable level, particularly in those areas where
they sell high-priced merchandise. Further. while
some of the commission salesmen work separately
under separate supervision, a majority work with
other sales people under common supervision. Some
of the commission salesmen do outside selling or
perform other outside duties that require them to
have automobiles and insurance, but a majority do
not. The one consistently discernible difference
between the group of commission sales employees
here sought and other sales employees is their
method of compensation. In light of the previously
enumerated factors, we conclude that this alone does
not constitute sufficient grounds for establishing a
separate unit of such employees." Accordingly, we
find that the requested unit is inappropriate, and we
shall dismiss the petition herein.
ORDER
It is hereby ordered that the petition herein be,
and it hereby is, dismissed.
'See Bullock 's Inc. 119 NLRB 642, 643