Sears Roebuck & Co.

National Labor Relations Board - Board Decisions

Nov 1, 1950

91 N.L.R.B. 1411 (N.L.R.B. 1950)

In the Matter Of SEARS ROEBUCK & COMPANY, EMPLOYER and RETAIL
CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER
Oases Nos. I-RC-1446 and 1-RC-1506.-Decided November 1, 1950
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Leo J. Halloran,
hearing officer. The hearing officer's rillings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer 1 is engaged in commerce within the meaning of
the Act.2
.2. The labor organizations involved claim to represent certain
employees of the Employer.
3. Questions affecting commerce exist concerning the representation
of employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. The appropriate units :
The Petitioner, in general, requests separate units consisting of both
selling and nonselling employees of the Employer at each of the
Employer's retail stores in Boston, Cambridge, Woburn, and
Waltham, Massachusetts, including department heads and auditing
department employees. It further requests separate units of the of-
fice employees and furniture and appliance refinishers at the Dor-
chester warehouse, and of the appliance repairmen at the central
1 The name of the Employer appears in the caption as amended at the hearing.
2 At the hearing and in their briefs, the Employer and Sears Roebuck Employees' Council,
herein called the Intervenor , contended that the Board lacks jurisdiction herein because
the Massachusetts Labor Relations Commission has in the past asserted jurisdiction over
several of the stores involved in this proceeding . The Intervenor further urges that, in
any event, the Board should cede jurisdiction to that commission under Section 10 (a) of
the amended Act. The contention that the Board lacks jurisdiction is clearly without
merit as the prior exercise of jurisdiction by the State commission does not preclude the
exercise of the Board 's jurisdiction under the amended Act, where , as here , no agreement
ceding jurisdiction has been consummated. Adams Motors , Inc., 80 NLRB 1518; Punch
Press Repair Corporation, 89 NLRB 614. And as the applicable State statute is incon-
sistent with the Federal Act in certain pertinent respects , we are specifically prohibited by
the language of Section 10 (a) from now ceding jurisdiction to the State commission.
Cf. Kaiser-Frazer Parts Corp ., 80 NLRB 1050.
91 NLRB No. 216.
1411
917572-51-vol. 91-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service building, all located in Boston. While in substantial agree-
ment as to the retail store units, the Intervenor contends that the
warehouse and central service building employees should not be estab-
lished as separate units but should be included in the Boston store
unit. The Employer takes no position on the warehouse and central
service building employees, but contends that the department heads
and auditing department employees should be excluded from any unit
or units found appropriate.
Scope of the Units
As indicated above, the sole dispute with respect to the scope of
the units relates to those warehouse and central service building
employees whom the Petitioner would establish as separate units and
whom the Intervenor would include in the Boston store unit.
The Dorchester warehouse is located about 41/2 miles from the
Boston store. Its function is to store goods sold by all the Em-
ployer's stores in the area, and, in addition, it may be called upon
by any of the Employer's stores throughout the country to supply a
particular item not otherwise available. The record indicates that,
in form, the relation between the warehouse and the individual stores
is that of jobber and retailer. While the Boston store is the ware-
house's principal "customer" in the area, the employees in the ware-
house work under separate supervision, have different working hours,
are hired through a separate office, and have separate seniority. More-
over, warehouse employees are seldom interchanged with store
employees.
As to the central service building, which is situated about one-
half mile from the Boston store, the employees at this location are,
engaged in servicing merchandise sold by all the stores in the area,
the largest of which is the Boston store. They also service mer-
chandise sold by mail order. Its employees do their work principally
in the homes of the customers. They are separately hired and super-
vised. It does not appear that there is any interchange between cen-
tral service building and store employees.
It is apparent from the foregoing that the interests of the warehouse
and central service building employees are different from those of
the Boston store employees. While the Intervenor contends that ef-
fective bargaining in the past has embraced these employees in a
single unit, the record fails to substantiate this contention .3 Accord-
a The record indicates that the warehouse and central service building employees may.
have been treated as separate units for bargaining purposes with negotiations for all the
units merely handled concurrently . Moreover , the bargaining between the Employer and
the Intervenor never resulted in a contract but only in the Employer 's unilateral promul-
gation of statements of policy.
SEARS ROEBUCK & COMPANY 1413
ingly, we are of the opinion that the Dorchester warehouse and central
.service building employees should not be included in the Boston store
unit.
As previously noted, the Petitioner has requested that the ware-
house and central service building employees be established as sep-
arate units. However, the Petitioner lacks 'a sufficient showing of
interest to warrant elections in such units, and, accordingly we shall
not direct elections therein 4
Composition of Units
There remains for consideration the question of whether department
.heads and auditing department employees are to be included in the
retail store units.•
Department heads: The Employer contends that department heads
:should be excluded as supervisors or managerial employees.
The Employer's retail stores are divided into departments, each
;selling a different type of merchandise. In each department there is
an individual known as the department head, whose duties relate gen-
erally. to merchandising matters and sales. In connection with mer-
chandising, it appears to be the responsibility of the department head
to determine such matters as what items will be carried, where they
will be bought, what inventories will be maintained, what markups
and prices will be effected, when refunds may be granted, and when,
and on what items, special sales may be run. However, the record
indicates that the Employer's published rules on all these matters are
so detailed that little but routine application thereof is actually dele-
gated to the department head. In connection with sales, the depart-
ment head is expected to spend a large part of his time engaging in
actual sales work, and indeed, in several of the stores, the department
heads constitute over one-half of the entire sales personnel.
Some department heads have one or more sales persons regularly
assigned to their departments. These department heads have the
authority responsibly to direct the work of their subordinates, and
the power to recommend transfer or dismissal of such employees with
the expectation that such recommendations will be accorded great
weight. However, in a number of instances, the department head is
the sole worker in the department at all times; and in others, the de-
partment head is the only regularly assigned worker, with subordi-
nates detailed only 'during short periods of seasonal activity.
We do not agree with the contention of the Employer that the de-
partment heads are managerial employees. We are of the opinion,
4 Jax Beer Company of Houston, Texaa, 89 NLRB 1233; R. L. Polk & Co., 91 NLRB
443.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, that those department heads who regularly have salesper-
sons in their departments are supervisors, and, as such, should be
excluded from the units. With respect to the remaining department
heads, who at no time or only occasionally have other salespersons
in their departments, we do not believe that these department heads
are supervisors within the contemplation of the Act, and accordingly
we shall include them in the units as selling employees 5
Auditing department employees: The Employer contends that au-
diting department employees in, the Boston and Cambridge stores
should be excluded as confidential employees. These employees per-
form duties connected primarily with the analyses of sales records,
which are the bases of employee compensation. However, they have
no duties in connection with labor relations.
Under all the circumstances, we find that the auditing department
employees are not confidential employees, and shall include them in
the units herein found appropriate."
We therefore find that at each of the Employer's stores in Boston,
Cambridge, Waltham, and Woburn, the following unit is appropriate
for the purposes of collective bargaining :
All selling and nonselling employees, including auditing depart-
ment employees, but excluding group office personnel, executives, per-
sonnel department employees, leased department employees, employee
cafeteria personnel, service station employees, drivers and helpers,
guards, professionals and supervisors as defined in the Act.
5. The parties stipulated that all regular part-time employees work-
ing 20 or more hours per week who have worked 720 hours as of the
eligibility date established herein, be eligible to vote. As the record
does not disclose any reason for the use of such a stringent formula to
identify the Employer's regular part-time employees,8 we reject this
stipulation. Accordingly, we shall adhere to our customary practice
of permitting all regular part-time employees to vote.9
[Text of Direction of Elections omitted from publication in this
volume.]
5 Cf. Bonwit Teller, Inc ., 84 NLRB 414; Leger Mill Company, Nelson Crain Company
Branch, 85 NLRB 382; Block and Kuhl Co., 90 NLRB No. 258.
8 Sears Roebuck & Company, 90 NLRB No. 152; Grossman Department Store, Inc., 90
NLRB No. 275.
4 In accordance with the agreement of the parties, we shall exclude these employees, who,
although located at the Boston store , perform work attributable to all the stores in the
area.
8 Cf. Sani-Aqua Shower Curtains , Inc., 88 NLRB 1289.
8 See Florsheim Retail Boot Shop, 80 NLRB 1312; F. W. Woolworth Company, 83 NLRB
439 ; J. C, Penney Company, 86 NLRB 920.