Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Sep 24, 1971

193 N.L.R.B. 330 (N.L.R.B. 1971)

330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears, Roebuck and Co ., Employer-Petitioner and
International Association of Machinists and Aeros-
pace Workers , AFL-CIO, District Lodge No. 95,
Local Lodge No. 1178 , Petitioner and Retail Clerks
Union, Local # 1532 Retail Clerks International
Association, AFL-CIO, Petitioner and General
Truck Drivers , Warehousemen & Helpers Union,
Local No. 980 , Petitioner . Cases 20-RM-1305,
20-RC-9493, 20-RC-9496, and 20-RC-9518
September 24, 1971
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On June 22, 1971, the National Labor Relations
Board issued a Decision and Order dismissing the
petitions filed by the Unions in the above-entitled
cases.' Thereafter, on July 12, 1971, a Motion for
Reconsideration was filed by the Retail Clerks Union.
The Employer filed a Reply to this Motion for
Reconsideration, and the Retail Clerks filed a Reply
thereto.
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 proceeding to a three-
member panel.
Upon consideration of the Petitioner Retail Clerks
motion, the Employer's reply. and the entire record,
the Board makes the following supplemental findings:
(1) A question affecting commerce exists concern-
ing 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.
As noted, the Board initially dismissed the petitions
filed by the three Unions on the ground that, on the
facts of this record, an overall unit was the appropri-
ate unit and the three units sought were not. At the
hearing held in these cases the three unions indicated
that, although they were seeking elections in the three
units sought in the respective petitions, should the
Board find an overall unit appropriate, they would
then reassess their positions. In its Motion for
Reconsideration the Petitioner Retail Clerks requests
an election in the overall unit.
(2) In the initial Decision in this case, the Board
stated that the employees of the service station,
warehouse, store dock area, and retail store at the
i 191 NLRB No 84 . The Board dismissed these petitions on the ground
that each petition sought only a segment of the overall unit which the
Board found appropriate- All employees of the service station , warehouse,
stock dock area , and retail store at the Employer's Santa Rosa, California,
location The Board also granted the Employer's request to withdraw its
petition for an election in the overall unit as no labor organization was
Employer's Santa Rosa, California, location consti-
tute a homogeneous grouping whose common super-
vision, uniform working conditions, and overlapping
job functions within the framework of a substantially
integrated set of operations require that they all be
included together in a single bargaining unit. The
Board now must consider the unit placement of
certain categories whose inclusion in or exclusion
from this unit is arguable.
Part-time employees: The total nonsupervisory work
complement of the Employer averages 150 full-time
and 110 part-time employees. Most of the part-time
employees are assigned to the store. The full-time
salespersons are paid on a commission basis as are
part-time salespersons in the shoe department and
men's clothing. The other part-time employees seem
to be paid on an hourly basis. Although the eligibility
requirements differ, both full-time and part-time
employees receive holiday pay and vacation pay.
Part-time employees must have worked 320 hours in
the prior 16 weeks to receive holiday pay and 780
hours in a 12 month period to receive vacation pay,
whereas the time requirements for full-time employ-
ees are different. As do the full-time employees, the
part-time personnel are eligible for employee dis-
counts on the date of hire, they perform the same
work as the employees they are working with, and
they are subject to the same supervision. Despite the
differences in method of payment and eligibility for
vacation and holiday pay, we find that the regular
part-time employees have a sufficient community of
interest for inclusion in the unit herein found
appropriate.
The Petitioner, however, urges that only those
regular part-time employees who meet the Employer's
eligibility requirements for vacation and holiday pay
should be included in the unit, i.e., those who average
15 hours per week for the 16 weeks prior to the
eligibility date. From January 2, 1970, to May 9, 1970,
107 part-time employees worked an average of 21.3
hours per week, and from May 29, 1970, through
August 22, 1970, 117 part-time employees worked an
average of 12.5 hours. There is also testimony that
only three to five employees work less than 9 hours on
a regular basis.
Under these circumstances we see no reason to
deviate from the eligibility standards which the Board
has followed in other similar cases .2 Accordingly, we
find that, except for those whose exclusion is required
by established Board policy, such as temporary or
casual employees, any part-time employee who
then seeking to represent that unit As the Board noted in its decision, the
Employer, however , did not abandon its position that the overall unit is the
only appropriate unit.
Y Allied Stores of Ohio, Inc, 175 NLRB No. 162; The M O'Neil
Company, 175 NLRB No 97; G C Murphy Company, 171 NLRB No. 45;
and S G. Tilden, Incorporated 129 NLRB 1096
193 NLRB No. 48
SEARS, ROEBUCK AND CO.
regularly averaged 4 hours or more per week for the
last quarter prior to the eligibility date has a sufficient
community of interest for inclusion. Any employee
meeting this requirement will be included in the unit
and will be eligible to vote.
Personnel clerical: The Petitioner would have the
Board exclude the "assistant to the personnel manag-
er." Besides a part-time employee assigned to timek-
eeping, there are only two persons in the personnel
department, the personnel manager and a "personnel
clerical ," who is also referred to as an "assistant." We
assume that the Petitioner is referring to the latter as
the "assistant to the personnel manager." The
personnel clerical interviews applicants for employ-
ment , makes notations on applications which may
result in the applicant's rejection, and grades tests
given to the applicants. She also posts records on the
employees' history cards, fills out insurance papers,
coordinates the part-time employees to the schedules
turned in by the division managers, and does other
clerical and typing work related to the functions of the
personnel office. We find that the personnel clerical
(or assistant) acts in a confidential and managerial
capacity and shall therefore exclude her from the
unit.3
Secretary to the store manager and assistant store
manager: The same person serves as secretary to both
these officials. The Petitioner urges that she be
excluded as a confidential employee. On the state of
the record we are unable to determine whether or not
she acts in a confidential capacity to persons who
formulate, determine, and effectuate labor policies,
and we shall, accordingly, permit her to vote subject
to challenge.
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 -time and part-time employees at
3 Hotel Employers Association ofSan Francisco, 159 NLRB 143 at 151
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 L R B v. Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
331
the Employer's Santa Rosa, California, location
including those of the service station, warehouse,
store dock area, and retail store but excluding the
personnel clerical (or assistant), professional
employees, casual employees, temporary employ-
ees, guards, confidential employees, managerial
employees, and supervisors as defined by the Act.
(3) The Employer opposes an election in the overall
unit which the Board has found appropriate and has
requested the Board to make a determination as to the
showing of interest by the Retail Clerks in the larger
unit. The showing of interest is a matter of administra-
tive determination not litigable by the parties. We are,
however, administratively advised that the Retail
Clerks has submitted an adequate showing in the
expanded unit in which we are directing an election.
(4) The Petitioner Retail Clerks has stated in its brief
that the International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No.
95, Local Lodge No. 1178, Petitioner in Case
20-RC-9493, and General Truck Drivers, Ware-
housemen & Helpers Union, Local No. 980, Petition-
er in Case 20-RC-9518, have informed it that they
have no objection to the Retail Clerks proceeding to
an election in the overall unit and do not desire to
appear on the ballot.
We shall, accordingly, leave them off the ballot. If,
however, they do wish in fact to participate in the
election, we shall consider them as intervenors and
they may appear on the ballot upon giving prompt
notice to the Regional Director that they wish to do
so.
ORDER
It is hereby ordered that the dismissal of the petition
in Case 20-RC-9496, previously ordered, is vacated
and the petition reinstated.
[Direction of Election4 omitted from publication.]
containing the names and addresses of all the eligible voters , must be filed
by the Employer with the Regional Director for Region 20 within 7 days of
the date of this Direction of Election The Regional Director shall make
the list available to all parties to the election 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