Sears, Roebuck & Co.

National Labor Relations Board - Board Decisions

Jul 17, 1980

250 N.L.R.B. 658 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears, Roebuck and Co. and Retail, Wholesale and
Department Store Union, Southeast Council,
AFL-CIO, Petitioner. Case 10-RC-11858
July 17, 1980
DECISION ON REVIEW AND
DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On October 3, 1979,1 the Regional Director for
Region 10 of the National Labor Relations Board
isssued a Decision and Direction of Election in the
above-entitled proceeding. In accordance with Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, Peti-
tioner, Retail, Wholesale and Department Store
Union, Southeast Council, AFL-CIO, filed a
timely request for review of the Regional Direc-
tor's decision. The Employer filed a brief support-
ing the Regional Director's decision.
By telegraphic order dated October 31, 1979, the
Board granted Petitioner's request for review.
Thereafter, Petitioner and the Employer filed
briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
this case with respect to the issues under review,
including the briefs on review, and makes the fol-
lowing findings:
The Employer is a New York corporation with
an office and place of business located in Tucker,
Georgia, where it is engaged in the receipt, ware-
housing, distribution, and repair of merchandise.
The facility is called the Southern Territorial Parts
Distribution Center (hereinafter the PDC). The
PDC supplies parts to and repairs merchandise for
all the Employer's retail outlets in its southern ter-
ritory.
Petitioner herein, Retail, Wholesale and Depart-
ment Store Union, Southeast Council, AFL-CIO,
filed a petition with the Board on August 6 in
which it sought an election in a unit of all employ-
ees of the PDC, including merchandise control
clerks, customer service employees, inventory data
entry employees, mechanized inventory control
clerks, audit clerks, shipping and receiving cleri-
cals, shippers, receivers, warehousemen, order
fillers, and the switchboard operator/receptionist,
excluding the employees of the repair department,
confidential personnel department employees, con-
fidential executive secretaries, and guards and su-
I All dates herein are 1979 unless otherwise indicated
250 NLRB No. 74
pervisors as defined in the Act. There is no history
of collective bargaining for any of the Employer's
employees at the PDC.
The Regional Director determined, contrary to
Petitioner's contention, that the appropriate unit2
included employees of the repair department as
well as the other PDC employees whom the par-
ties stipulated should be included.3
In finding that only an overall unit was appropri-
ate, the Regional Director relied on his findings
that there was contact between employees of the
parts 4 and repair departments in moving merchan-
dise; 20 percent of the repair department employ-
ees had permanently tranferred from the parts de-
partment; no formal training is required for repair-
men in the repair department; the two departments
have similar work hours and mode of payment;
there are uniform labor relations and personnel
policies; and many of the job duties of certain
repair department employees parallel duties of
parts departments employees. Petitioner contends,
however, that employees in the parts department of
the PDC share a separate community of interest
distinct from that of employees in the repair de-
partment, and that a unit confined to parts depart-
ment employees is appropriate for purposes of col-
lective bargaining. We find merit in these conten-
tions.
The PDC occupies an entire two-story building.
The repair department is located on the mezzanine
or upper level, and the parties department is large-
ly located on the first floor; however, a small por-
tion of the mezzanine is used by the parts depart-
ment to store extra parts. The employees who
work in the parts department use different en-
trances and parking lots than do the employees
who work in the repair department. 5 The doors
and stairways connecting the first and mezzanine
levels are usually locked, although the employees
2 The parties stipulated that merchandise control clerks, customer serv-
ice employees, inventory data entry employees, mechanized inventory
control clerks, audit clerks, shipping and receiving clericals, shippers, re-
ceivers, warehousemen, order fillers, and the switchboard operator/re-
ceptionist should be included in any unit found appropriate
3 Petitioner initially sought to exclude employees Sandra Wheeler,
Sally Parks, Sherry Mathews, and Marge Kilpatrick from the unit on
grounds that they are office clerical and/or confidential employees. The
Regional Director found that none of these employees were office cleri-
cals, that they had no access to labor relations or confindential materials,
and that they shared a community of interest with other unit employees;
and he therefore included them in the unit
Petitioner did not request review of the Regional Director's decision to
include Wheeler, Parks, Mathews, and Kilpatrick in the unit, and, thus,
their unit placement is no longer in issue.
I For convenience, the term "parts department" herein refers collec-
tively to all PDC departments other than the repair department.
I In this regard, we note that two parts department employees testified
without contradiction that they had been warned by their supervisors to
stay out of the repair department and to not use the parking or entrance
facilities there
658
SEARS, ROEBUCK AND CO.
on both levels have propped open the doors with
hoses and cables to gain access between the two
floors.
Allen Creagh, manager of the PDC, has overall
responsibility for the entire facility. All PDC man-
agers report to him. However, the repair depart-
ment manager, W. Ziprik, reports both to Creagh
and to a Mr. Jernigan, a management official at the
Employer's Atlanta, Georgia, headquarters. No
other department manager reports to officials at the
Atlanta office.
The records shows that Ziprik hires and fires
employees for his department. The record also
shows that the personnel department, which serves
the entire PDC, is responsibile for hiring all other
employees, and there is no indication in the record
that any PDC department managers other than
Ziprik hire and fire employees for their respective
departments. 6 In fact, the record is silent as to the
nature and degree of the authority possessed by
other department managers.
It is clear from the record that 50 percent of the
repair department employees are repairmen, who
earn approximately 20 percent more than other em-
ployees and perform work of a more highly skilled
nature than that of other employees. Although
Creagh testified that he was uncertain whether re-
pairmen were required to have any special training
to perform their jobs, most repairmen have special-
ized mechanical and electrical knowledge gained
from similar repair experience in previous jobs. It is
especially noteworthy that all of the repairmen
have attended the Employer's special training
center in Atlanta for specialized courses; there was
no evidence that other employees had attended the
special training center. Accordingly, we find that,
although the Regional Director's finding that "no
formal training is required of repairmen" may be
correct as far as it goes, it is clear that in fact the
repairmen have received specialized training which
other employees do not have.
In addition to using separate entrances to the
PDC facility and separate parking lots, parts de-
partment and repair department employees have
separate recreation rooms and social functions,
such as Christmas parties and picnics. The two de-
partments are also treated as separate entities for
accounting purposes. In this regard, Creagh testi-
fied, and it is undisputed, that the repair depart-
a Parts department employees l.ee Plledgler and David Morrow testi-
fted without contradiction that in a meeting of parts department employ-
ees held on July 23, 1979, Greagh told the group that he could not
change their salaries to the higher hourly rate paid to employees in the
repair department because that department was under separate manage-
ment. The Regional Director did not discuss this testimony. which we
find supports the conclusions that Ziprik's authority was greater than that
ofr other department managers and, more significantly, that the repair de-
partment employees share a distinct identity.
ment pays the PDC for the rental value of the
space it occupies and for the parking lots used by
repair department employees. It further appears
that the repair department reimburses the PDC for
the cost of other services as well: parts department
maintenance man Alton Beyers testified without
contradiction that whenever he performed mainte-
nance work in the repair department he was re-
quired by his supervisors to keep records of the
amount of time spent performing his duties so that
the repair department could pay for his services.
Furthermore, although the Regional Director
found that the parts and repair department employ-
ees work similar hours, Creagh's undisputed testi-
mony establishes that the repair department em-
ployees not only worked a different schedule from
the parts department employees, but also were af-
forded a longer lunch break.
In these circumstances, we conclude, in agree-
ment with Petitioner, that the record establishes
that the parts department employees possess a sepa-
rate and distinct community of interest from em-
ployees in the repair department, and that a bar-
gaining unit limited to parts department employees
is appropriate. In doing so, we have taken into ac-
count the factors relied upon by the Regional Di-
rector in concluding that the overall unit is appro-
priate, in particular his findings that receivers, ship-
pers, order fillers, and customer service clericals in
the other PDC departments perform analogous
functions to assemblers, shippers, receivers, and
customer service clericals in the repair department,
and that 20 percent of the current repair depart-
ment employees transferred from the parts depart-
ment. 7 However, there was no evidence in the
record of temporary transfers or interchange be-
tween the parts and repair departments; and, in
these circumstances, we find that the existence of
permanent transfers alone does not establish suffi-
cient community of interest to warrant a finding
that only a PDC-wide unit is appropriate. Similar-
ly, although the record supports the Regional Di-
rector's findings that certain jobs in the repair de-
partment are similar to jobs in the parts depart-
ment, and that repair and parts department employ-
ees have some on-the-job contacts with each other,
these factors do not establish that the unit request-
ed by Petitioner is inappropriate.
e Petitioner offered testimony by employee Lee Pledger that employ-
ees who transferred from the parts department to the repair department
could not transfer their seniority from one department to another, and
thus any employee who transferred had to go to the bottom of the repair
department's seniority list. Creagh testified that he had no knowledge of
anyone ever having lost seniority when transferring from parts to repair
The Regional Director did not discuss either l'ledgers or Creagh's lesti-
mony on this issue in his decision
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board held recently in Montgomery Ward &
Co., Inc., 230 NLRB 366 (1977), that similar intra-
warehouse contact between employees of separate
departments does not, standing alone, require inclu-
sion of repair department employees in a unit of
parts storage or warehouse employees. Thus, in
Montgomery Ward, the Board affirmed the Region-
al Director's unit finding of a separate unit of the
warehouse employees, excluding employees of the
repair and drapery departments. There, as in the in-
stant case, employees of the repair and warehouse
departments engaged in the "routine movement of
merchandise within the facility." The Board con-
cluded, in agreement with the Regional Director,
that such movement of merchandise from ship-
ping/receiving to the repair department constituted
minimal contact between the two departments.
Similarly, in the instant case the minimal contacts
between the parts department and the repair de-
partment employees do not require their inclusion
in a single unit. lWe recognize that the unit in
which the Regional Director directed an election
may be appropriate for purposes of collective bar-
gaining. However, it is well settled that an election
need not be held in the most appropriate unit, but
only in an appropriate unit.8 Having found that a
unit limited to employees of the parts department is
appropriate, we need not and do not pass on
whether a unit including repair department em-
ployees is also appropriate.
In summary, we conclude that a unit of employ-
ees at the Employer's Southern Territorial Parts
Distribution Center, excluding repair department
employees, is appropriate for purposes of collective
bargaining. In reaching this conclusion, we rely es-
pecially on the fact that the two departments are
separately supervised and treated for many pur-
poses as separate entities; the different work loca-
N The National Cash Register Company, 166 NLRB 173, 174 (1967).
tion of employees in the repair department; the
lack of interchange or temporary tranfers; the
higher skills possessed by repairmen; the separate
facilities used by the repair department employees;
and the different working hours and lunch periods
of the two groups.
Accordingly, we find the following unit appro-
priate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act:
All employees of the Employer's Southern
Territorial Parts Distribution Center, including
merchandise control clerks, customer service
employees, inventory data entry employees,
mechanized inventory control clerks, audit
clerks, shipping and receiving clericals, ship-
pers, receivers, warehousemen, order fillers,
and the switchboard operator/receptionist, but
excluding the employees of the repair depart-
ment, confidential personnel department em-
ployees, confidential executive secretaries, and
guards and supervisors as defined in the Act.
DIRECTION 9
It is hereby directed that the Regional Director
for Region 10 shall open and count only the ballots
cast by the parts department employees in the elec-
tion conducted in this proceeding on November 1,
1979, and issue a tally of ballots thereon. Thereaf-
ter, the provisions of Section 102.69 of the Board's
Rules and Regulations, Series 8, as amended, shall
be applicable.
9 We have been administratively advised that an election was conduct-
ed among the unit found appropriate by the Regional Director on No-
vember I. 1979. We have been further advised that the ballots from the
election were impounded, with the ballots for the employees of the repair
department being separated from those of the parts department employ-
ees. Accordingly, there is no need to direct an election herein, and we
shall therefore direct that the ballots of the employees in the unit found
appropriate be opened and counted.
660