# Amicus Curiae Brief — Encino Motorcars, LLC v. Navarro, 136 S. Ct. 890 (2016) (No. 15-415)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

No. 15-415

In THE
Supreme Court of the United States

ENcINO Motorcars, LLC,
Petitioner,
Vv.

HECTOR NAVARRO; MIKE SHIRINIAN; ANTHONY PINKINS;

KEVIN MALONE; AND REUBEN CASTRO,
Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF OF THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO AS AMICUS
CURIAE IN SUPPORT OF RESPONDENTS

MARK D. SCHNEIDER Davip A. ROSENFELD
INTERNATIONAL ASSOCIATION OF Counsel of Record

MACHINISTS AND AEROSPACE CAREN P. SENCER

Workers, AFL-CIO WEINBERG, ROGER & ROSENFELD
9000 Machinists Place 1001 Marina Village Parkway,
Upper Marlboro, MD 20772-2667 Suite 200
mschneider@iamaw.org Alameda, California 94501
Telephone: (301) 967-4500 drosenfeld@unioncounsel.net

csencer@unioncounsel.net
Telephone (510) 337-1001

Counsel for Amicus Curiae

Peake DeLancay Printers, LLC - (301) 341-4600 - Cheverly MD

i
QUESTIONS PRESENTED
Under Chevron’s two-step framework:

1. Does the Fair Labor Standards Act’s statutory
overtime-pay exemption for automobile deal-
ership “salesm|e]n, partsm[e]n, or mechanic{[s]
primarily engaged in selling or servicing auto-
mobiles,” 29 U.S.C. § 213(b)(10)(A), unambigu-
ously apply or not apply to service advisors?

2. Is the Department of Labor’s 2011 notice-and-
comment regulation, 29 C.FR. § 779.372(c),
which concluded that service advisors fall out-
side the salesman/partsman/mechanic exemp-
tion, a permissible construction of the statute?

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TABLE OF CONTENTS

QUESTIONS PRESENTED.......................2..000+:

pg Ee ee ree

I.
II.
I.

A. THE NATIONAL LABOR RELATIONS
BOARD IS TASKED WITH
DETERMINING THE APPROPRIATE
BARGAINING UNIT FOR PURPOSES
OF COLLECTIVE BARGAINING ........

B. THE FUNCTION OF SERVICE
ADVISORS IS CUSTOMER
ITTY pitieniicesncendasteniessheneiucdomsscctions

1. The Primary Function of Service
Advisors is a Communication

2. Service Advisors Do Not Sell or
Service Automobiles ......................

C. DEALERSHIPS IN THE 1960s
EMPLOYED MANY POSITIONS
IN THE SERVICE AREA BEYOND
THE TWO SPECIFIED EXEMPT
NU iieibitinichenabnsvatsnivesnbtceprnionseici

6

1]

11

13

18

iv
TABLE OF CONTENTS—Continued
Page

D. EVERY SERVICE DEPARTMENT
INCLUDES MANY NON-EXEMPT
CLASSIFICATIONS OF EMPLOYEES 21

1. Additional Classifications of
Service Department Employees ... 22

2. Classifications in the Parts
RO IUEE \istienixcotnenblgtictimmiaalioce 28

3. Classifications in the Body Shop... 30

E. THE DIVERSITY OF JOB
FUNCTIONS IN A DEALERSHIP
SUPPORTS A LIMITED AND
NARROW READING OF THE
OVERTIME EXEMPTION .................. 32

BV. . CRFUPL MENON Sins conicesnspcsrentanstebeanincsiuinnna 37

Vv

TABLE OF AUTHORITIES
CASES Page

Academy LLC d/b/a Phil Long Ford of
Chapel Hills,
27-RC-8320 (May 21, 2004) ..............:.ceeccceees 23, 27

Arbogast Buick, Pontiac, GMC Truck, Inc.,
9-RC-17854 (November 21, 2003) ............... passim

Austin Ford, Inc.,
136 N.L.R.B. 1398 (1962)....................000.. 19, 21, 29

Autonation Imports of Longwood, Inc.
d/b/a Courtesy Honda,
12-RC-083701 (August 10, 2012) .......0......... passim

Azure Auto II, LLC d/b/a Findlay N.

Volkswagen,
28-RC-160737 (October 9, 2015) ................. 18, 30

Big Valley Ford, Inc.,
32-RC-5370 (October 14, 2005) ...........0000.... passim

BMW of West Springfield,

1-RC-21908 (May 24, 2005) .................0cccce 12, 27
Bradley Chevrolet, Inc.,

25-RC-10146 (November 6, 2002) ............... 13, 31

Champion Fordland, Inc.,
4-RC-20177 (May 8, 2001) ..............0.ccccccceeee. 17

Clay Chevrolet, Inc.,
1-RC-21570 (December 20, 2002)................ 21, 22

Contemporary Cars, Inc., d/b/a
Mercedes-Benz of Orlando,
12-RC-9344 (November 14, 2008)
subsequent decisions 354 N.L.R.B. No. 72
(2009) and 355 N.L.R.B. 592 (2010),
enforced, 667 F.3d 1364 (11th Cir. 2012)..... passim

vi
TABLE OF AUTHORITIES—Continued
CASES Page

Country Ford Trucks, Inc.,
32-RC-4617 (June 16, 1999) subsequent
decision 330 N.L.R.B. 328 (1999), review

denied, 229 F.3d 1184 (D.C. Cir. 2000)......... 28
Countryway P’ship d/b/a Crown Motors,

14-RC-12430 (November 12, 2003) ........ 14, 26, 31
Crown Motor Co., Inc., d/b/a

Acura of Memphis,

26-RC-8613 (August 20, 2010) ..........0..-...... passim
Cutter Dodge, Inc.,

- | ta i & |) | 20
Dick Bullis, Inc. d/b/a Dick Bullis Chevrolet,

oy) IR 8 l,l =e 24, 25
Fairfield Ford,

9-RC-17713 (October 29, 2002) subsequent
decision 340 N.L.R.B. No. 9 (2003), review

denied, enforced, 116 Fed. Appx. 601

EE I ccdantncrensianscumeatnsniacnseatinnes 21, 23, 25, 26

Fletcher Jones Las Vegas d/b/a Fletcher
Jones Chevrolet,

300 N.L.R.B. 875 (1990)..................... 14, 23, 24, 25
Frank Buck Motors d/b/a Pocono Peterbilt,
4-RD-2121 (November 13, 2007) ................. 28, 29

Fuller Auto. Co. d/b/a Fuller Auto. Co.
& Fuller Mfg. & Supply Co.,
Jin: @ 6) 6 13, 19

Hall Chevrolet, LLC,
5-RC-126386 (May 22, 2014) .................. 21, 28, 31

vil

TABLE OF AUTHORITIES—Continued

CASES Page
Howard Orloff Imports, Inc.,

13-RC-21069 (November 10, 2003) ............ 15, 17
Jackson Ford, Inc.,

7-RC-22545 (November 17, 2003) ............... 17, 22
Junction Buick Pontiac GMC-Truck,

8-RC-16059 (June 30, 2000) .............0000.0000.. 23, 27
Keldeneri Corp. d/b/a San Leandro

Nissan Hyundai Kia,

JD(SF)-10-07 (April 5, 2007)............0..0.0...... 17
Larry Faul Oldsmobile Co., Inc.,

EE A eee 20
Life Quality Motor Sales, Inc.,

29-RC-9173 (February 23, 1999).................. passim
McRobert Motor Co. d/b/a Gresham Ford,

36-RC-6082 (July 25, 2001)... cece 12
Mercedes-Benz of Pembroke Pines,

12-RC-9290 (January 9, 2008)...................... 16, 27

Michael Stead, Inc. d/b/a Michael Stead’s
Walnut Creek Ford,

32-RC-4789 (August 11, 2000) .......... 17, 28, 29, 30
Missco, Inc.,

to} PB 4 el, | es 20
NLRB v. Action Auto., Inc.,

| tk, CR ee ene 8

NLRB v. Hearst Publ’ns, Inc.,
I 10

TABLE OF AUTHORITIES—Continued

CASES Page
N. Bay Saturn Group, Inc. d/b/a

Saturn of Marin,

20-RC-17537 (July 30, 1999)..................... 15, 23, 24
Oliver C. Joseph, Inc.,

14-RC-12830 (August 12, 2011) .........c.0.0.--. 22, 24
Packard Motor Car Co. v. NLRB,

Se Cees 10

Parker-Robb Chevrolet, Inc.,
262 N.L.R.B. 402 (1982), review denied on
other grounds, Auto. Salesmen’s Union
Local 1095 v. NLRB, 711 F.2d 383

AL RNa cre 20
Payton-Wright Ford, Inc.,

16-RC-10539 (November 24, 2003) ........ 30, 31, 34
Performance of Brentwood,

26-RC-063405 (September 29, 2011)...... passim
Pflueger Auto Group, LLC,

37-RC4120 (November 21, 2005) ............... 26, 29
Phil Long European Imports, LLC,

27-RC-8071 (August 24, 2000) .......... passim
VES Auto., LLC,

32-RC-5403 (March 3, 2006)................0cc:c00 25
Royal Gate Dodge, Inc.,

14-RC-12420 (February 24, 2003)................ 24, 31
Rush Truck Ctrs. of Cal., Inc.

d/b/a Rush Truck Ctr., Sylmar,

31-RC-8102 (April 26, 2002) ..........ccccscssseseee 14

ix

TABLE OF AUTHORITIES—Continued

CASES

Sacramento Auto. Ass'n, Valley Motor
Car Dealers Council,

193 N.L.R.B. 745 (1971) ..cccse-ccccveeccssseeeseoveees

Sexton Ford Sales, Inc.,

14-RC-068800 (December 8, 2011).............

State College Ford Lincoln Mercury, Inc.,

6-RC-12215 (June 11, 2008) ...........scesseeesees

Thomas Motors of Joliet, Inc.,

13-RC-21966 (September 10, 2010)............

Tinley Park J. Imports, Inc.,

13-RC-21270 (November 24, 2004) ............

Trevellyan Oldsmobile Co.,

133 N.L.R.B. 1272 (1961 )...cccccccccccessssveeseseee

UAG-Steven Creek II, Inc. d/b/a
Audi Stevens Creek,

32-RC-108320 (July 29, 2013) ...cc.ccccccsseeooee

Wiers Int'l Trucks,
25-RC-10389 (May 21, 2007) subsequent

decision 353 N.L.R.B. 475 (2008)...............

W. R. Shadoff,

Fe Pee OS (CD ceciccccrnscessnsensevctnesssce

STATUTES

AR See ctienheeccebaconasveinnnpuinineiaitiiosansecinnaitinie
TE | enone

EM se I

Page

17

19

x

TABLE OF AUTHORITIES—Continued

STATUTES Page
DO U.S.C. $ 15O(C).......ccceccsecsssersecesessceseesseees 6
DO U.S.C. 8 160.....0..ecrcsccccsesscorsvssressessseenccnessenns 10
DO U.S.C. $§ 201-219.........cccscsssreseeeeeesecesnerseeses 2
29 U.S.C. § 213(b)(10)(A)......-.0c0eeseeee 2. 14, 21, 36
Cal. Bus. & Prof. Code § 9884.9............-:+:+ 15
REGULATIONS

D9 C.ER. § 10] ........ccccescsosssssseresncsescosersseeenensens i)
DD C.BR. & 108 .....c.ccecooresvessrcevesscvcsosenscssesceoveresees i)
29 C.ER. § 102.60-72 ..........ccceccceseeeeeeenesneensnnenees i)
DD CER. § 108 ......00....cceccscccssossroresssossevsssssenseones iS)
29 C.ER. § 779.372 C)(1) ...cceecceeeeeeeeeernnenseenenees 4

OTHER AUTHORITIES & MATERIALS
26 Fed. Reg. 3885 (May 4, | as g
26 Fed. Reg. 3911 (May 4, | ER g

79 Fed. Reg. 74,308 (December 15, 2014)
(codified at 29 C.F-R. pts. 101, 102, and 103) 9

NLRB, An Outline of Law and Procedure in
Representation Cases (2012),
https://www.nlirb.gov/sites/default/
files/attachments/basic-page/
node-1727/representation_case_outline_

Of law _4-16-13.pdf...........ceccceeeeeeerenneneeeenens 8

xi
TABLE OF AUTHORITIES—Continued
OTHER AUTHORITIES & MATERIALS Page

Robert A. Gorman & Matthew W. Finkin,
Basic Text on Labor Law: Unionization
and Collective Bargaining (2u ed. 2004) ... 8

Robert A. Gorman & Matthew W. Finkin, Labor Law
Analysis And Advocacy (2013) ..............00 8, 10

l

BRIEF OF THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO AS

AMICUS CURIAE IN SUPPORT OF
RESPONDENTS

INTEREST OF AMICUS CURIAE

The INTERNATIONAL ASSOCIATION OF MA-
CHINISTS AND AEROSPACE WORKERS, AFL-CIO
(“IAM”) is a labor organization of nearly 600,000
members, representing workers across the United
States.' It represents employees in various indus-
tries including manufacturing, aerospace and ship-
yards. Its particular interest in this case is that it
has long represented employees in service depart-
ments of automobile dealerships, going back to at
least the 1940s. As of this date, the Union repre-
sents over 35,000 employees in automotive indus-
tries, mainly automobile dealerships, across the
country.

The Union’s primary representation of employees
in automobile dealerships has been service mechan-
ics. Its representation, however, has also included
partsmen, service advisors, parts runners, dispatch-
ers, bodymen, lot persons and the many additional
classifications who work in the varying configura-
tions in the service departments of different dealers
throughout the country.

' No counsel for a party authored this amicus brief in whole
or in part, and no person or entity, other than the amicus,
made a monetary contribution to the preparation or submis-
sion of this brief.

2

The Union has been in the forefront of organizing
employees inservice departments. Asaresult, through
its affiliated District and Local Lodges, the LAM has
participated in hundreds of National Labor Relations
Board (NLRB) proceedings involving unit determina-
tions concerning mechanics, service advisors and oth-
er job classifications in service departments.

The Union’s interest in this case is ensuring that
service advisors whom it currently represerits, as
well as those whom it seeks to organize, are not ex-
empt from overtime under the Fair Labor Standards
Act, 29 U.S.C. § § 201-219. The LAM is also concerned
that any expanded reading of the exemption would
affect the many other classifications of employees it
represents in service departments. The narrow ap-
plication of the overtime exemption in 29 U.S.C.
§ 213(b)(10)(A) is particularly important to this long-
term goal of organizing and representation.

Amicus Curiae brings a specific perspective to this
Court. Rather than present argument about the
meaning of the Fair Labor Standards Act, we detail
and explain how the National Labor Relations Board
(NLRB), in representation proceedings, has treated
service advisors, mechanics and the other members
of service departments in various dealerships over
the last seventy-five years of reported decisions.
While these decisions do not deal with the precise
issue before the Court, they provide an even-handed
view of the work performed in service departments,
how that work is divided amongst classifications, the
layout of dealerships, the wages and methods of
compensation for various classifications and, of par-
ticular interest, the work of service advisors. This

3
review should assist the Court in understanding the
nature of service advisor work and why it makes
sense that they are not within the exemption from

overtime of the Fair Labor Standards Act (FLSA) that
is at issue.

I. STATEMENT OF THE CASE

Respondents brought an action under the Fair La-
bor Standards Act, claiming that they were entitled
to overtime under federal law. The district court dis-
missed their claim, and the Ninth Circuit reversed,
holding that the exemption in the Fair Labor Stan-
dards Act did not apply to service advisors in auto-
mobile dealerships. This decision relied, in part, on
an interpretation of the Department of Labor.

This case is before the Court without any factual re-
cord of what service advisors do in dealerships across
the country. The record is limited to the bare allega-
tions of the complaint concerning one dealership.

Under the provisions of the National Labor Rela-
tions Act, 29 U.S.C. § 151, the NLRB is authorized to
determine appropriate bargaining units for the pur-
poses of collective bargaining. See 29 U.S.C. § 159(b).

In making these unit determinations, the NLRB has
issued numerous decisions describing the job duties
and working conditions of service advisors and other
classifications employed in the service departments
of automobile dealers. We present analysis from
these decisions in support of the Respondents’ argu-
ments that the exemption cannot reasonably apply
to service advisors and that the Department of La-
bor’s regulation excluding service advisors from the

4

exemption makes sense both historically as well as
within the current configuration of automobile deal-
erships. See 29 C.F-R. § 779.372(c)(1).

Il. SUMMARY OF ARGUMENT

Decisions of the NLRB and Decisions and Direc-
tions of Elections of Regional Directors, present a
thorough review of job duties and working conditions
of employees in automobile dealerships. Because the
NLRB is required by statute to make individualized
unit determinations each time a question of represen-
tation is raised, there is an extensive administrative
record examining the operations in automotive ser-
vice departments from the 1940s to present.

These cases fully explore the job duties of service
advisors. The work of service advisors is regularly
described as the communication link between cus-
tomers and the mechanics who service their vehicles.
Service advisors are uniformly described as having
neither the skills nor tools to perform the servicing
function. This undermines the argument of Petition-
er that service advisors are engaged in the servicing
of vehicles. Pet. Br. 22-35.

Review of NLRB decisions from the 1960s forward
show service advisors work in dealerships perform-
ing non-mechanic work, managing the process of au-
tomobile repair for customers and ensuring that cus-
tomers are advised of the status of needed repairs
and costs associated with the repairs, and all paper-
work is completed properly. This undermines the
argument of Petitioner that service advisors are
salesmen. Pet. Br. 23.

5

These same decisions describe, in detail, the nu-
merous job classifications in use in service depart-
ments and the scope of the job duties associated
with these classifications. Lube technicians, lot at-
tendants, car washers, detailers, cashiers, warranty
clerks, parts drivers, parts runners, body shop em-
ployees and many other job classifications are used
in addition to mechanics and partsmen in most deal-
erships. These job classifications, and the scope of
associated duties, do not fit within the FLSA exemp-
tion at issue, and these individuals currently enjoy
the overtime protections of the FLSA. This under-
mines the argument of Petitioner that the exemp-
tion is meant to be inclusive of all classifications of
the parts and service departments engaged in the
servicing of vehicles. See Pet. Br. 29-31, 36-38 and
39-40.

Given the scope of job classifications used in deal-
erships in the 1960s, which continues to the pres-
ent, it is clear that the exemption was not intended
to include service advisors. If accepted, the Peti-
tioner’s argument regarding the functional integra-
tion of service advisors in the servicing of vehicles
would result in a de facto return to the blanket ex-
emption of 1961 since all employees in the service
department are, in some way, part of the servicing
process. Contrary to the Petitioner’s position, it
would be more disruptive to expand the exemption
to include more classifications.

Our argument outlines the framework used by the
NLRB, the job duties regularly assigned to service ad-
visors, the duties of other employees in service depart-
ments and explains why the Department of Labor's

6
limited reading of the FLSA exemption is consistent
with the daily operations of automobile dealerships.

il. ARGUMENT

A. THE NATIONAL LABOR RELATIONS
BOARD IS TASKED WITH DETERMINING
THE APPROPRIATE BARGAINING UNIT
FOR PURPOSES OF COLLECTIVE
BARGAINING.

Through the NLRB representation process, a
wealth of administrative decisions have been issued
outlining the job titles, job duties, working condi-
tions and supervisory structures of automotive deal-
erships. These decisions provide a neutral factual
review of dealerships over time.

Under the provisions of 29 U.S.C. § 159(b), the
NLRB “shall decide in each case whether, in order to
assure the employees the fullest freedom in exercis-
ing their rights guaranteed by this subchapter, the
unit appropriate for the purposes of collective bar-
gaining shall be the employer unit, craft unit, plant
unit or subdivision thereof. ”

The procedure by which these unit determinations
are made is also established in the statute. “[T]he
Board shall investigate such [representation] peti-
tion and if it has reasonable cause to believe that a
question of representation affecting commerce ex-
ists shall provide for an appropriate hearing upon
due notice.” 29 U.S.C. § 159(c).

Although the National Labor Relations Act sets out
certain restrictions on determinations of appropriate

7

bargaining units, the NLRB has historically employed
a community of interest standard in determining the
appropriateness of any particular unit.

The leading treatise describes the Board’s function
as follows:

The Board draws upon the criterion of community
of interest in order to determine whether, for ex-
ample, employees with special craft skills and
training should be separated out for purposes of
voting and bargaining or whether they should be
grouped along with semi-skilled and unskilled em-
ployees in an “industrial” unit; whether “produc-
tion and maintenance” employees should be
grouped in a single unit with “white-collar employ-
ees” doing technical or clerical work; whether the
unit should include only employees working in a
single plant, store or office of the employer or
whether there should be a grouping of employees
in several—or indeed all—of the employer's plants,
stores or offices; and whether it is sound to go even
beyond the employees of a single employer and to
group those employees with persons employed by
other employers in the same industry in the same
competitive market. In making judgments about
“community of interest” in these different settings,
the Board will look at such factors as: (1) similar-
ity in the scale and manner of determining earn-
ings; (2) similarity in employment benefits, hours
of work and other terms and conditions of em-
ployment; (3) similarity in the kind of work per-
formed; (4) similarity in the qualifications, skills
and training of the employees; (5) frequency of
contact or interchange among the employees; (6)

8

geographical proximity; (7) continuity or integra-
tion of production processes; (8) common super-
vision and determination of labor-relations poli-
cy; (10) history of collective bargaining; (11)
desires of the affected employees; (12) extent of
union organization.

Robert A. Gorman & Matthew W. Finkin, Labor Law
Analysis And Advocacy § 5.2, at 103 (2013).? See
also NLRB v. Action Auto., Inc., 469 U.S. 490, 494
(1985); NLRB, An Outline of Law and Procedure in
Representation Cases 135-38 (2012).°

As a result of consistent application of this estab-
lished test, nearly all unit determination decisions
review the work of the employees in each job classi-
fication, the methods of compensation, integration
of work, interchange between classifications, hours
of work, required uniforms, and other criteria that
fall into the traditional multi-factor test.

Prior to 1961, the hearings used to gather the infor-
mation necessary to make unit determinations were
conducted by the Regional Director, and then the re-
cord was submitted directly to the Board in Washing-
ton for the issuance of a decision. After 1961, the deci-
sions were issued by the Regional Directors subject to
review by the Board. The process has been modified
recently to speed up and simplify the process but still

* This is the third edition of the text previously known as
Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor
Law: Unionization and Collective Bargaining (2d ed. 2004).

* Available at https://www.nirb.gov/sites/default/files/attach-
ments/hasic-page/node-1727/representation_case_outline_of_
law_4-16-13.pdf

Y

requires a determination to be made in each case based
on its unique facts. 79 Fed. Reg. 74,308 (December 15,
2014) (codified at 29 C.F-R. pts. 101, 102, and 103).

The Board has thus, through its Regional Directors
and decisions of the Board on review, considered the
placement of service advisors in or out of potential
bargaining units sought by unions as part of the rep-
resentation process. These cases provide a body of
concrete facts regarding the work of service advisors
and other service department employees. The simi-
larities and differences between service advisors and
other employees and the general working conditions
of service departments have been described in a
manner that should offer some stability and accuracy
to an understanding of the work of service advisors.

The records relied on below are the Regional Di-
rector decisions and, in some cases, Board decisions
involving service advisors and service departments
in general.‘ In a few cases, these issues arise in the
context of unfair labor practice proceedings involv-

‘ Before 1961, there are no Regional Director decisions. All
cases before May 15, 1961, are decisions of the Board because
all hearing records were submitted directly to the Board, which
then issued a decision after review of the record. In 1961, the
Board delegated the power to hold hearings and issue deci-
sions to the Regional Directors. 29 U.S.C. § 153(b); 26 Fed.
Reg. 3885 and 3911 (1961). Thereafter, Regional Directors is-
sued decisions subject to the right of any party to seek review.
If review was granted, the Board would then issue a decision.
Thus, this brief cites Board decisions before 1961 and primar-
ily Regional Director decisions after 1961. Unless otherwise
indicated, those Regional Director decisions were not chal-
lenged by way of exceptions to the Board, test of certification,
or otherwise. See 29 C.F-R. § 102.60-72.

10

ing service advisors and other members of service
departments. These cases are resolved by decisions
issued by Administrative Law Judges, which are then
reviewed directly by the NLRB. See 29 U.S.C. § 160.°

In some cases, the Board’s determinations as to
the appropriateness of a unit have been reviewed by
the courts of appeals where employers challenged
the bargaining unit in what is called a test of certifi-
cation. See Robert A. Gorman & Matthew W. Finkin,
Labor Law Analysis And Advocacy § 4.10, at 90-92
(2013). This Court has granted particularly wide dis-
cretion to the Board's determination of the appropri-
ate bargaining unit. See Packard Motor Car Co. v.
NLRB, 330 U.S. 485, 491 (1947); NLRB v. Hearst
Publ’ns Inc., 322 U.S. 111 (1944),

As will be evident from these cases, employers and
unions, primarily the International Association of
Machinists, have litigated the scope of bargaining
units in service departments because service depart-
ments contain many different classifications and vary
from dealership to dealership. In some cases, the pe-
titioning union has sought to include service advisors
in a unit of service department employees with me-
chanics. In other cases, the union sought to exclude
service advisors. In other cases, the employer has

° We cite to cases that are available on the NLRB’s website.
The Regional Director decisions after 1961 were not published
in the official volumes of NLRB Decisions. Regional Director's
Decisions and Directions of Election are available through the
Board's website at https://www.nirb.gov/search/cases. Report-
ed NLRB Decisions are available on the Board’s website at
https://www.nirb.gov/cases-decisions/board-decisions in addi-
tion to Westlaw and Lexis.

ll

sought to include the service advisors when the union
has resisted it, or the employer sought to exclude
them when the Union has sought to include them.
Regardless of which party has taken which position,
the result is a decision analyzing the job duties, com-
pensation methods and daily operations in the par-
ticular service department.

The variety of positions taken by the parties to
these unit determination proceedings makes these
decisions helpful and trustworthy to the issue before
this Court. In effect, they constitute a neutral record
of service department operations and should be
treated as an accurate historic description of the
work of service departments in general and service
advisors in particular. These conclusions are gener-
alized from well over one hundred cases that con-
cern various classifications in dealerships that differ
significantly in size, organization and operations.

B. THE FUNCTION OF SERVICE ADVISORS
IS CUSTOMER RELATIONS.

1. The Primary Function of Service
Advisors is a Communication Link.

A service advisor is a customer service position.
The primary duties are to record customer concerns
regarding their vehicle on a repair order, to provide
an estimate and to keep customers informed on the
status of their vehicle’s repair or maintenance.

Service advisors:

greet in-coming customers, prepare repair orders,
and assign the repair orders to individual [mechan-

12

ics] Service advisors are required to have good
communication skills and receive special training in
dealing with customers _ The ‘advisor’ part of their
title deals with their relationship with the customer.
They do not ‘advise’ or counsel the mechanics on
how to diagnose a problem, what cause to eliminate

first, or other technical aspects they merely serve
as the link between customers and mechanic.

McRobert Motor Co. d/b/a Gresham Ford, 36-RC-
6082, at p. 2 (July 25, 2001). The primary responsibil-
ity of a service advisor is “to greet customers, to find
out what problems the customers are experiencing
with their vehicles, and to keep the customers in-
formed about the status of their vehicles during the
repair process.” Phil Long European Imports, LLC,
27-RC-8071, p. 5 (August 24, 2000).

The service advisor position is also described as “a
liaison” between the customer and the mechanic.
Autonation Imports of Longwood, Inc. d/b/a Cour-
tesy Honda (“Courtesy Honda”), 12-RC-083701, p. 5
(August 10, 2012); Performance of Brentwood LP,
26-RC-063405, p. 24 (September 29, 2011); Crown
Motor Co., Inc., d/b/a Acura of Memphis (“Acura of
Memphis”), 26-RC-8613, p. 15 (August 20, 2010). As
such, it is not surprising that “customer service is a
critical aspect of the service advisor job.” Big Valley
Ford, Inc., 32-RC-5370, p. 7 (October 14, 2005). The
job requires “customer-facing skills” to explain re-
pairs that will be performed to the vehicle. BMW of
West Springfield, 1-RC-21908, p. 4 (May 24, 2005).

The duties of the service advisor are generally to
generate the necessary paperwork for a repair to start,

13

commonly referred to as a “repair order,” and to as-
certain the estimated time and cost to complete a re-
pair. Arbogast Buick, Pontiac, GMC Truck, Inc.,
9-RC-17854, p. 3 (November 21, 2003). A mechanic
diagnoses any problems with a vehicle and conducts a
multi-point inspection in the hope of generating addi-
tional potential repairs. Performance of Brentwood,
26-RC-063405, p. 24. Based on the findings of the me-
chanic (and not the service advisor), the service advi-
sor contacts the customer and recommends additional
repairs. Big Valley Ford, 32-RC-5370, pp. 12-13. The
customer either accepts or rejects the proposed addi-
tional repairs, and either way, the appropriate repair
order is generated by the service advisor and provid-
ed to the mechanic. Courtesy Honda, 12-RC-083701,
pp. 7-8. Once the repair is completed, the service
advisor contacts the customer to advise that the ve-
hicle is ready for pick-up. /d., p. 8. The completed
repair order is then used to compute the billing, and
a copy is provided to the customer for her records.

This is generally seen, in modern dealerships, as a
customer relations function. Bradley Chevrolet, Inc.,
25-RC-10146, p. 4 (November 6, 2002). Even earlier,
in 1950, some took the position that service advisors
were essentially “clerical workers.” Fuller Auto. Co.
d/b/a Fuller Auto. Co. & Fuller Mfg. & Supply Co.
(“Fuller Auto. Co.”), 88 N.L.R.B. 1452, 1457 (1950).

2. Service Advisors Do Not Sell or Service
Automobiles.

The scope of a service advisor’s duties does not
include mechanic work or automobile sales. Em-
ployers have regularly argued to the NLRB that the

14

only appropriate bargaining unit is the entirety of
the service department because “employees are in-
tegrally related to the single function of servicing
and repairing automobiles.” Fletcher Jones Las Ve-
gas d/b/a Fletcher Jones Chevrolet (“Fletcher Jones
Chevrolet”), 300 N.L.R.B. 875, 876 (1990); Country-
way P’ship d/b/a Crown Motors (“Crown Motors”),
14-RC-12430, pp.1-2 (November 12, 2003) (employer
argues that all employees in service, body shop,
parts and detail departments are all part of the “ve-
hicle repair process”); Rush Truck Ctrs. of Cal.,
Inc. d/b/a Rush Truck Ctr., Sylmar, 31-RC-8102, p. 9
(April 26, 2002). This is parallel to the gloss Peti-
tioner raises in the pending case. Pet. Br. 23. The
NLRB regularly rejects this argument and finds dis-
tinct units within the service department. Similarly,
this Court should reject adding an additional classifi-
cation of employee to the 29 U.S.C. § 213(b)(10)(A)

exemptions.

As found in many decisions, “advisors do not per-
form vehicle maintenance and repairs.” Courtesy
Honda, 12-RC-083701, p. 36. Service advisors are not
qualified to perform servicing work. Phil Long Eu-
ropean Imports, 27-RC-8071, p. 5. And, “ability to
perform repair or mechanical work” is not a job re-
quirement for service advisors. Sexton Ford Sales,
Inc., 14-RC-068800, p. 7 (December 8, 2011).

The service advisor is responsible for securing con-
sent from a customer that a recommended additional
repair should be performed. This is sometimes re-
ferred to as “up-selling.” See Contemporary Cars,
Inc., d/b/a Mercedes-Benz of Orlando (“Mercedes-
Benz of Orlando”), 12-RC-9344, p. 17 (November 14,

15

2008) subsequent decisions 354 N.R.L.B. No. 72 (2009)
and 355 N.L.R.B. 592 (2010), enforced, 667 F.3d 1364
(11th Cir. 2012). In some states, like California, a deal-
ership contacts a customer to provide an estimate of
costs and receive explicit authorization for a repair
before performing any work beyond that which was
stated on the original repair order. This is required by
statute. See Cal. Bus. & Prof. Code § 9884.9.

In most dealerships, service advisors perform no me-
chanic work. However, in some dealerships, a service
advisor may perform minor service work, like testing a
vehicle's battery, replacing a wiper blade or changing a
license plate bulb as a courtesy to a customer. Acura of
Memphis, 26-RC-8613, pp. 15-16; N. Bay Saturn Group,
Inc. d/b/a Saturn of Marin (“Saturn of Marin”), 20-RC-
17537, p. 5 (July 30, 1999). To the extent a service advi-
sor performs minor mechanical work it “is incidental to
their primary duties of greeting customers and prepar-
ing the R[epair] O[rder].” Sexton Ford Sales, 14-RC-
068800, p. 14; Courtesy Honda, 12-RC-083701, p. 27. A
service advisor would not have the tools or skills to per-
form more than this incidental work. Further, this time
is neither tracked by the dealership nor charged to the
customer. Sexton Ford Sales, 14-RC-068800, p. 7; State
College Ford Lincoln Mercury, Inc., 6-RC-12215, p. 7
(June 11, 2003).

Just as the job duties of service advisors do not in-
clude servicing or maintaining vehicles, the duties
similarly do not include selling either service or vehi-
cles. The primary function of the job is to serve as the
communication link between mechanics and custom-
ers. Howard Orloff Imports, Inc., 13-RC-21069, p. 2
(November 10, 2003). Although there is undoubtedly

16

a sales component, no reported cases describing the
job duties of service advisors designate sales as the
primary responsibility of the position. In addition, the
sales portion of the function has limited discretion.
The service advisor does not diagnose a vehicle. See
Mercedes-Benz of Orlando, 12-RC-9344, p. 16. The
service advisor records the customer concerns as a
guide to the mechanic, who diagnoses the problem to
determine precisely what work is needed and/or sug-
gests repairs or maintenance. The information neces-
sary to make these suggestions comes from two sourc-
es: repairs identified by the mechanic or manufacturer
provided maintenance menus or service schedules,
such as service menus for specified mileages. Cowr-
tesy Honda, 12-RC-083701, p. 15; Thomas Motors of
Joliet, Inc., 13-RC-21966, p. 2 (September 10, 2010);
Mercedes-Benz of Pembroke Pines, 12-RC-9290, pp.
9-10 (January 9, 2008). As a result, the service advisor
serves a reporting function conveying to the customer
the diagnosis of the mechanic or the recommendation
of the manufacturer.

Although many service advisors are paid on a draw
against commission system, the pay plan itself is not
determinative since individuals in many classifications
in a dealership receive a portion of compensation
based on either individual, department or dealership-
wide performance. This includes not only mechanics,
partsmen and salesmen but also, on occasion, includes
dispatchers, detailers, parts drivers, warranty clerks,
and bookers.® See Mercedes-Benz of Pembroke Pines,

6 The duties associated with these positions are addressed
below.

17

12-RC-9290, p. 11 (bookers paid on commission); Tin-
ley Park J. Imports, Inc., 13-RC-21270, p. 6 (Novem-
ber 24, 2004) (detailers responsible for recondition
the appearance of vehicles paid on flat rate); Howard
Orloff Imports, 13-RC-21069, p. 4 (dispatchers paid by
commission); Jackson Ford, Inc., 7-RC-22545, pp. 5-6
(November 17, 2003) (lube technicians may receive
commission); Champion Fordland, Inc., 4-RC-20177,
p. 4 (May 8, 2001) (warranty clerk earns salary and
commissions); Michael Stead, Inc. d/b/a Michael
Stead’s Walnut Creek Ford (“Michael Stead’s Walnut
Creek Ford”), 32-RC47839, p. 3 (August 11, 2000) (parts
driver and clerical participate in bonus program based
on department-wide sales).

Similarly, some of the classifications that are usu-
ally thought to be paid on productivity based systems
or as a percentage of sales, may be paid hourly. See,
e.g., Sexton Ford Sales, 14-RC-068800, p. 9 (some
body shop repairmen paid hourly, those with higher
skill levels paid flat rate); Wiers Int'l Trucks, 25-RC-
10389, p. 5 (May 21, 2007) subsequent decision 353
N.L.R.B. 475 (2008) (service technicians, service ad-
visors and parts associates all paid on an hourly ba-
sis); Michael Stead’s Walnut Creek Ford, 32-RC-4789,
p. 3 (service advisors paid hourly with ability to par-
ticipate in department-wide bonus program).

Additionally, many dealerships have an internal
service advisor who only writes repair orders on
new cars (the pre-delivery inspection process) or
used cars that are being readied for sale. See, e.g.,
Thomas Motors of Joliet, 13-RC-21966, p. 3; Aelden-
eri Corp. d/b/a San Leandro Nissan Hyundai Kia,
JD(SF)-10-07 (April 5, 2007). They do not have

18

contact with any external customers and do not
“sell” as the sole “customer” is the dealership it-
self. Mercedes-Benz of Orlando, 12-RC-9344, p. 16.
Similarly, if the dealership has an express oil
change process, there may be a service advisor as-
signed only to that part of the operation. Big Val-
ley Ford, 32-RC-5370, p. 3. In some cases, the in-
ternal service advisor and express lane service
advisors may be paid hourly as compared to on a
commission basis. Azure Auto II, LLC d/b/a Find-
lay N. Volkswagen (“Findlay N. Volkswagen”), 28-
RC-160737, p. 3 (October 9, 2015).

C. DEALERSHIPS IN THE 1960s EMPLOYED
MANY POSITIONS IN THE SERVICE AREA
BEYOND THE TWO SPECIFIED EXEMPT
POSITIONS.

The term “service advisor” is not new to the auto-
motive services lexicon. Although the title “service
salesman” had been used in the 1940s and 1950s, us-
age of that term reduced dramatically by the 1960s
and is rarely, if ever, used in dealerships, as reflected
in more recent current case law. When Congress was
debating the scope of the FLSA exemption, service
advisor was a known service department position.

The history and practice of job title usage in NLRB
cases supports the position that if Congress intended
to include individuals performing the work of service
writers or advisors into the scope of the overtime ex-
emption, the language would have included the clas-
sification. Dealerships in the 1960s used multiple job
titles when referring to their service department em-
ployees, and the job title of service writer/advisor

19

was already in wide-spread use. See Trevellyan Olds-
mobile Co., 133 N.L.R.B. 1272 (1961).

For example, in 1965, the Board found the titles of
“service writer, line mechanics, new car get ready
and new car detail mechanics, used-car mechanics,
body-and-fender men, painters and helpers, parts
department men, and lubrication, pickup, and deliv-
ery men” each to be in use in a single dealership.
See W. R. Shadoff, 154 N.L.R.B. 992, 993 (1965). Simi-
larly, in 1962, the job titles of service writer, dispatch-
er, automotive line mechanics, porters, paint and body
shop mechanics, new car get-ready, used car make-
ready, and parts department were in use. See Austin
Ford, Inc., 136 N.L.R.B. 1398, 1399-1400 (1962).

As demonstrated above, through the 1960s, more
than just mechanics and partsmen “servicing and re-
pairing customers’ automobiles” were working in
service departments, and similarly, more than just
salesmen were “preparing cars for sale to the public”
in either service or sales departments. See W. R.
Shadoff, 154 N.L.R.B. at 994. The Petitioner’s argu-
ment that these broad functions define the scope of
the FLSA exemption should be rejected. Pet. Br. 28-
31. To accept the position would be a return to the
1961 blanket exemption.

The historical use of a variety of job classifications
is recorded more than a decade before the 1961 ex-
emption was enacted. In Fuller Automobile Co., 88
N.L.R.B. at 1453, job titles of control clerk, new and
used car and truck salesmen, parts panel salesmen,
office clerical employees, body shop employees,
foremen, service writers, watchman, swing man and

20
car jockeys were identified as part of the sales and
servicing organization.

As the description above shows, the use of multi-
ple classifications, above and beyond those specified
in the FLSA exemption, is not limited to the service
area. In new car sales, a dealership may employ fi-

nance and insurance salesmen in addition to auto-
mobile salesmen. Parker-Robb Chevrolet, Inc., 262
N.L.R.B. 402, 410 (1982) (excluding finance and in-
surance salesmen from unit of automobile salesmen),
review denied on other grounds, Auto. Salesmen’s
Union Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir.
1983); Larry Faul Oldsmobile Co., Inc., 262 N.L.R.B.
370 (1982) (finance and insurance salesmen who are
in new car, used car and lease departments included
in unit of automobile salesmen); see also Cutter
Dodge, Inc., 278 N.L.R.B. 572, 575 (1986) (excluding
outside parts salesmen).

The same analysis can be applied outside of auto-
mobile dealerships. Reported cases related to farm
implement dealerships are scarce although there are
cases dealing with farm implement manufacturers
who also sold their implements. In one of the few
farm implement dealership cases, the Board had an
opportunity to determine the appropriate bargaining
unit at acompany that was engaged in the “retail sale,
service and repair of farm machinery and farm imple-
ments.” Missco, Inc., 116 N.L.R.B. 1213 (1956). In
that case, the only job titles sought by the union were
“mechanics, helpers, assemblers, parts employees,
truckdrivers, painters, and janitors.” Jd. at 1214. The
employer sought to add the bookkeeper and sales-
men. /d. There were no service advisors, presum-

21
ably because the position is not necessary at a facil-
ity repairing farm implements.

D. EVERY SERVICE DEPARTMENT INCLUDES
MANY NON-EXEMPT CLASSIFICATIONS
OF EMPLOYEES.

A modern auto dealership’s service and parts de-
partment includes many classifications beyond those
specifically listed in 29 U.S.C. § 213(b)(10)(A). A re-
view shows the regular usage of at least twenty job
titles or functions in a well-staffed service depart-
ment. Other than mechanics and partsmen, each is
outside the FLSA exemption. Dealerships often have
other departments, such as lease departments, fleet
sales and used car departments, that encompass ad-
ditional non-exempt classifications.

Dealerships have varying structures of manage-
ment. There may be a service department head (now
often called fixed operations) and various depart-
ment heads, including in the parts department or
even among the service advisors. See Hall Chevrolet,
LLC, 5-RC-126386 pp. 2-3 (May 22, 2014); Mercedes-
Benz of Orlando, 12-RC-9344, p. 3; Clay Chevrolet,
Inc., 1-RC-21570, p. 2 (December 20, 2002). In gen-
eral, a service department may be divided into sub-
departments: for example, automotive servicing,
parts, and body shop. See Big Valley Ford, 32-RC-
5370, p. 3; Arbogast Buick, Pontiac, GMC Truck,
9-RC-17854, p. 2. A fourth sub-department of “new
car get-ready” may also be designated. See Austin
Ford, Inc., 136 N.L.R.B. at 1399. Some dealerships
have service, sales, parts and body shop departments,
each with their own supervisor. Fairfield Ford, 9-RC-

22
17713, p. 2 (October 29, 2002) subsequent decision

340 N.L.R.B. No. 9 (2003) review denied, enforced,
116 Fed.Appx. 601 (6th Cir. 2004).

As a result of these various organizational struc-
tures, it is difficult to apply a “one size fits all” ap-
proach to the variety of ways in which a dealership
may be organized or job duties divided.

1. Additional Classifications of Service
Department Employees

A service department requires a multitude of jobs
to be performed for a customer to have a positive
experience and a vehicle to be repaired efficiently.
Most of these jobs are unskilled and well outside the
scope of any FLSA exemption.

The most common classification inside the service
department is a mechanic, frequently referred to as a
service technician. Phil Long European Imports, 27-
RC-8071, p. 3, n. 3. The mechanic is responsible for ve-
hicle repair and maintenance. This is a skilled position,
and, under Board law, the mechanics on their own may
form a craft unit, distinct from other dealership employ-
ees basec. on their skill and training. Courtesy Honda,
12-RC-083701, pp. 25-26. However, over time, the skills
and function of mechanics have changed. Now, most
parts are replaced rather than repaired. Clay Chevro-
let, Inc., 1-RC-21570, p. 3. Also, based on the increase in
electronic components in vehicles, one of the most fre-
quently used “tools” for a mechanic is a diagnostic com-
puter. Courtesy Honda, 12-RC-083701, p. 11. Mechan-
ics usually have their own tools and tool boxes. The
value of these tools and box can exceed $50,000. Jack-
son Ford, 7-RC-22545, p. 4; Oliver C. Joseph, Inc., 14-

23

RC-12830, p. 8 (August 12, 2011). Mechanics earn certi-
fications from either the manufacturer or the National
Institute for Automotive Service Excellence (ASE).
Fletcher Jones Chevrolet, 300 N.L.R.B. at 875; Perfor-
mance of Brentwood, 26-RC-063405, p. 10; Big Valley
Ford, 32-RC-5370, p. 6; Saturn of Marin, 20-RC-17537,
p. 4. No one else in the dealership does the work of the
mechanic, and the mechanic does not do the work of
any other classification. Fairfield Ford, 9-RC-17713, p.
3. This makes sense because of the skill sets involved
and the higher wages of mechanics.

In addition to highly-trained mechanics, there are
likely to be lesser skilled technicians known as lubri-
cators, lube technicians, express techs, or lube and oil
technicians. These individuals do not bring their own
tools to work. Their work is frequently limited to oil
and other fluid changes, changing belts or filters, ro-
tating tires or other simple servicing work. Fletcher
Jones Chevrolet, 300 N.L.R.B. at 876; Courtesy Honda,
12-RC-083701, p. 14; Arbogast Buick, Pontiac, GMC
Truck, 9-RC-17854, p. 3. Lube technicians are gener-
ally paid on an hourly basis and are not exempt from
overtime. Fletcher Jones Chevrolet, 300 N.L.R.B. at
876; Junction Buick Pontiac GMC-Truck, 8-RC-
16059, p. 4 (June 30, 2000). These employees are of-
ten employed in “quick lane” or “quick service”
areas, geographically separate from the rest of the
service department. Academy LLC d/b/a Phil Long
Ford of Chapel Hills (“Phil Long Ford of Chapel
Hills”), 27-RC-8320, p. 4 (May 21, 2004).

There may also be pre-delivery inspection techni-
cians who do not perform mechanical work but sim-
ply inspect and prepare new vehicles for customers to

24

pick up. Royal Gate Dodge, Inc., 14-RC-12420, pp. 6-7
(February 24, 2003). This includes inspecting the ve-
hicle upon its arrival, removing any protective coat-
ings used in shipping, placing floor mats in vehicles,
installing dealer logo license plate holders and the
like. This position is sometimes referred to as a “get
ready technician” or “new car cleanup employee.”
Fletcher Jones Chevrolet, 300 N.L.R.B. at 876; Dick
Bullis, Inc. d/b/a Dick Bullis Chevrolet (“Dick Bullis
Chevrolet”), 176 N.L.R.B. 158, 158 (1969); Performance
of Brentwood, 26-RC-063405, p. 23; Arbogast Buick,
Pontiac, GMC Truck, 9-RC-17854, p. 4. In some deal-
erships, this function is filled by an “internal techni-
cian” who performs pre-delivery inspections on new
cars and used cars acquired by the dealership. Acura
of Memphis, 26-RC-8613, p. 13.

The pre-delivery inspection work may also be per-
formed by a “detailer.” Tinley Park J. Imports, 13-
RC-2127C, p. 6. But a detailer may also refer to an
individual who provides a deep clean and wash to a
vehicle and repairs minor paint scratches for either
existing customers or in preparation for selling a pre-
owned vehicle. Performance of Brentwood, 26-RC-
063405, p. 19; Mercedes-Benz of Orlando, 12-RC-9344,
p. 14; Saturn of Marin, 20-RC-17537, p. 4. Detailers
are paid on an hourly basis. Oliver C. Joseph, 14-RC-
12830, p. 12; Saturn of Marin, 20-RC-17537, p. 7
There may also be a car washer or wash rack em-
ployee who washes cars that have been serviced be-
fore the vehicle is returned to the customer. Sexton
Ford Sales, 14-RC-068800, p. 8.

Some dealerships will have a dispatcher who keeps
track of the work and assigns the work to the me-

25
chanics depending on the nature of the work and the
skills of the mechanics. Fairfield Ford, 9-RC-17713,
p. 4. In older parlance, they were known as “tower-
men,” inherited from other settings where some sat
in a tower to monitor the flow of work. See Dick
Bullis Chevrolet, 176 N.L.R.B. at 158. Other dealer-
ships may call this position a “workflow coordina-
tor.” Performance of Brentwood, 26-RC-063405, p.
26. This individual may have no mechanical certifi-
cations but may earn commission off of the total la-
bor sold in the service department. Sexton Ford
Sales, 14-RC-068800, p. 8. In some dealerships, the
service advisors may serve this function. Sacramen-
to Auto. Ass’n, Valley Motor Car Dealers Council,
193 N.L.R.B. 745, 746 (1971); Q&S Auto., LLC, 32-RC-
5403, p. 10 (March 3, 2006).

A dealership may also employ a quality control per-
son. This person reviews repaired vehicles to ensure
the work was performed correctly. He does not usu-
ally perform his own repair work and may have limit-
ed mechanical knowledge. Fletcher Jones Chevrolet,
300 N.L.R.B. at 875. This individual can be paid hourly
and receive overtime. Life Quality Motor Sales, Inc.,
29-RC-9173, pp. 26-28 (February 23, 1999).

Some dealerships employ an appointment taker,
also known as a service appointment coordinator
or scheduler. Courtesy Honda, 12-RC-083701, p. 17;
Mercedes-Benz of Orlando, 12-RC-9344, p. 5; Life
Quality Motor Sales, 29-RC-9173, p. 11. Like the
name suggests, an appointment taker schedules
service appointments for customers calling the ser-
vice department. This is mainly a clerical function.
It is paid on an hourly basis and entitled to overtime

26

compensation. Life Quality Motor Sales, 29-RC-
9173, p. 12.

A service department may have clerks and cashiers.
The cashiers accept payment from customers and may
file documents and/or pick up phones for the service
department. Phil Long European Imports, 27-RC-
8071, p. 2, n. 2; Arbogast Buick, Pontiac, GMC Truck,
9-RC-17854, p. 4. Clerks process paperwork associat-
ed with repairs. Some clerks are warranty clerks,
which means they administer warranty payments
from manufacturers. Arbogast Buick, Pontiac, GMC
Truck, 9-RC-17854, p. 4. This may also be referred to
as a warranty administrator. Courtesy Honda, 12-RC-
083701, p. 2. Both clerks and cashiers are generally
hourly, non-exempt positions but occasionally are sal-
aried. Acura of Memphis, 26-RC-8613, pp. 17-18 (hour-
ly); Crown Motors, 14-RC-12430, p. 6 (same); Life
Quality Motor Sales, 29-RC-9173, pp. 29-31 (cashiers
and warranty clerks both hourly, non-exempt); but see
Fairfield Ford, 9-RC-17713, p. 3 (salaried).

There may be a “booker” who “books” or closes
repair orders and ensures that technicians are prop-
erly paid under the flat rate pay system. See Mer-
cedes-Benz of Orlando, 12-RC-9344, pp. 7, 20. This
job may be referred to as a “flagger” in reference to
the flat rate hours “flagged” by a mechanic. Sexton
Ford Sales, 14-RC-068800, p. 8. There may even be a
file clerk responsible for the retention of paperwork.
Arbogast Buick, Pontiac, GMC Truck, 9-RC-17854, p.
4; Life Quality Motor Sales, 29-RC-9173, p. 32.

There are also porters, lot porters, valets, or car
jockeys. Pflueger Auto Group, LLC, 37-RC-4120, p.

27

7 (November 21, 2005); Arbogast Buick, Pontiac,
GMC Truck, 9-RC-17854, p. 3. Their main function
is to move vehicles either from the customer ser-
vice entrance of the dealership to a mechanic's stall
or a lot, or from the lot to a stall or back to the cus-
tomer. These employees also help to maintain
cleanliness in the service area. Phil Long Ford of
Chapel Hills, 27-RC-8320, p. 10. A porter may also
top off fluids, such as windshield wiper fluid or anti-
freeze. Courtesy Honda, 12-RC-083701, p. 6. They
are paid on an hourly basis and are eligible for over-
time. BMW of West Springfield, 1-RC-21908, p. 7;
Junction Buick Pontiac GMC-Truck, 8-RC-16059, 4.
A car may also be moved by a car cleaner or washer
to facilitate the cleaning of the car. Regardless of
the scope of these utility people, this is generally an
hourly, non-exempt position. Acura of Memphis,
26-RC-8613, p. 17; Life Quality Motor Sales, 29-RC-
9173, pp. 10-11.

The dealership may also employ a “shuttle driver”
or “courtesy driver” who is responsible for transport-
ing customers to and from the facility. Courtesy
Honda, 12-RC-083701, p. 2; see Mercedes-Benz of Or-
lando, 12-RC-9344, p. 22. This is an hourly position.
Mercedes-Benz of Pembroke Pines, 12-RC-9290, p.
11. In a large dealership, there may also be a service
greeter who directs customers to the appropriate
service advisor. See Mercedes-Benz of Orlando, 12-
RC-9344, p. 5.

Although mechanics are generally required to keep
their own work areas clean, most dealerships either
employ janitorial staff or contract with an outside
agency to provide on-going cleaning services. If em-

28

ployed directly by the dealership, the janitor is usu-
ally housed within the service department even if her
duties extend into the sales areas. See Country Ford
Trucks, Inc., 32-RC-4617, p. 3 (June 16, 1999) swbse-
quent decision 330 N.L.R.B. 328 (1999), review de-
nied, 229 F.3d 1184 (D.C. Cir. 2000). This job is
hourly and non-exempt. In some dealerships, the
individual performing this work may be called a
maintenance employee, and the job may also include
facilities or machinery maintenance. Frank Buck
Motors d/b/a Pocono Peterbilt (“Frank Buck Mo-
tors”), 4-RD-2121, p. 4 (November 13, 2007).

2. Classifications in the Parts Department

The service department may or may not include
the parts department. The modern parts department
is generally staffed by partsmen. The partsman may
be called a retail or wholesale parts counter employ-
ee or aparts advisor. Courtesy Honda, 12-RC-083701,
p. 2; Phil Long European Imports, 27-RC-8071, p. 7.
A partsman generally works at one of two counters:
the back counter, which opens to the shop where the
mechanics work or the front counter, which opens
into the dealership to an area where customers may
purchase accessories or parts that will not be in-
stalled by the dealership. Michael Stead’s Walnut
Creek Ford, 32 2C-4789, pp. 2-3. These individuals
take parts orders from mechanics, members of the
public or outside companies (including body shops
and independent repair shops) and provide the parts
to the requesting party. Courtesy Honda, 12-RC-
083701, p. 20. In dealerships that maintain a body
shop, there may be a third counter specific to the
parts necessary for the body shop. Hall Chevrolet,

29

5-RC-126386, p. 14. Historically, partsmen may have
had mechanical responsibilities in repairing parts,
but recent unit determination decisions do not refer-
ence any mechanical tasks associated with the job.
Compare Austin Ford, 136 N.L.R.B. at 1400 with
Courtesy Honda, 12-RC-083701, pp. 19-20.

In a large parts department, there are other em-
ployees in addition to traditional partsmen. The
stocker, stockroom clerk, or shipping and receiving
employee, confirms receipt of ordered parts, stores
incoming parts and re-packages used parts for recy-
cling, return to the manufacturer or other disposal.
See Arbogast Buick, Pontiac, GMC Truck, 9-RC-
17854, p. 4; Michael Stead’s Walnut Creek Ford, 32-
RC-4789, pp. 2-3. In some dealerships, the shipping
and receiving clerk is required to operate a forklift
for the storage of parts. Courtesy Honda, 12-RC-
083701, p. 20. These individuals may also be called
warehouse employees. Frank Buck Motors, 4-RD-
2121, p. 5. This is generally an hourly paid position.
Pflueger Auto Group, 37-RC-4120, p. 11; Life Quality
Motor Sales, 29-RC-9173, p. 8.

A parts delivery driver is used when a part is not in
stock at the dealership. The parts driver may pick up a
needed part from an offsite warehouse maintained by
the employer, another dealership or a parts retailer.
Similarly, the driver may deliver parts to another dealer
or repair shop. Courtesy Honda, 12-RC-083701, p. 21.
This is an hourly position. Sexton Ford Sales, 14-RC-
068800, p. 11; Pfleuager Auto Group, 37-RC4120, p. 11.

Some dealerships employ a parts runner who deliv-
ers parts inside the shop from the partsman to the me-

30

chanic. In some dealerships, this individual is the “parts
inventory control associate.” See Mercedes-Benz of Or-
lando, 12-RC-9344, p. 7. This is an hourly position. See
Findlay N. Volkswagen, 28-RC-160737, p. 3.

Some dealerships employ an administrative assis-
tant, cashier or clerical dedicated to the parts depart-
ment. See, e.g., Michael Stead’s Walnut Creek Ford,
32-RC-4789, p. 3. Alternatively, there may be a parts
warranty clerk. Payton-Wright Ford, Inc., 16-RC-
10539, p. 7 (November 24, 2003). The parts driver,
runner, clerk and administrative assistant are hourly,
non-exempt positions. Michael Stead’s Walnut Creek
Ford, 32-RC-4789, p. 3.

3. Classifications in the Body Shop

Some dealerships maintain a body shop as part of
the service department. A body shop, generally in a
separate area, is used for painting, frame adjustment,
and cosmetic repairs. Arbogast Buick, Pontiac,
GMC Truck, 9-RC-17854, p. 6. This may also be re-
ferred to as a collision center. Payton-Wright Ford,
16-RC-10539, p. 1. Employees of the body shop re-
pair vehicles but do not service vehicles within the
terms of the FLSA exemption. Some of the job titles
are parallel to the traditional service department, but
the function is different.

A body shop technician will do collision and paint
repair work. They straighten metal, utilize body filler
and grinders to repair damage, smooth and sand re-
paired areas, and match paint. These employees may
be paid on a flat rate basis or receive hourly pay. Ar-
bogast Buick, Pontiac, GMC Truck, 9-RC-17854, p. 6
(flat rate pay); Life Quality Motor Sales, 29-RC-9173,

31
p. 6 (hourly pay). This is a different skill set and craft

from the automotive mechanic. Big Valley Ford, 32-
RC-5370, p. 13.

The body shop may include an automotive painter
to re-paint those sections of the vehicle that have
been repaired. This work can be performed in a paint
booth and completed with a spray gun. Sexton Ford
Sales, 14-RC-068800, p. 10. This individual may also
repair sheet metal and match paint. This position
may be paid based on revenue produced. /d.; Arbo-
gast Buick, Pontiac, GMC Truck, 9-RC-17854, p. 7 It
could also be paid as an hourly wage with an incen-
tive for work produced. Royal Gate Dodge, 14-RC-
12420, p. 10. The painter may have an hourly paid
assistant. Sexton Ford Sales, 14-RC-068800, p. 11.

The body shop may employ a detailer who cleans,
washes, waxes and buffs cars but does not perform
body work. Life Quality Motor Sales, Inc., 29-RC-9173,
p. 7. This detailer would be separate from the service
department detailer or car washer. Bradley Chevrolet,
25-RC-10146, pp. 5, 6.

Body shops have an “estimator” who performs
some of the functions of a service advisor. Payton-
Wright Ford, 16-RC-10539, p. 3. The estimator pro-
vides an estimate on the cost of body repair and the
expected date of the return of the car to a customer.
Hall Chevrolet, 5-RC-126386, p. 12. Frequently, these
estimates are prepared for insurance companies.
Royal Gate Dodge, 14-RC-12420, p. 9. There is no
sales function in preparing estimates.

There may be a separate porter and secretary des-
ignated for the body shop department. Crown Mo-

32
tors, 14-RC-12430, p. 6. Both of these are hourly posi-
tions. /d. at p. 7

E. THE DIVERSITY OF JOB FUNCTIONS IN A
DEALERSHIP SUPPORTS A LIMITED AND
NARROW READING OF THE OVERTIME
EXEMPTION.

Dealerships vary dramatically, and the roles of me-
chanics and partsmen are some of the few constants.
Because of the diversity of functions of other classi-
fications employed in a dealership, the exemption
should be read as written, including only the speci-
fied classifications of mechanics and partsmen. Any
other approach would exclude many classifications
from the FLSA protections they now enjoy.

The justification provided for partsmen and me-
chanics to be exempted from the FLSA overtime re-
quirements stem from a potential for on-call work to
be performed at the site of a disabled vehicle includ-
ing trucks and farm implements. See Resp. Br. 32-35.
This is particularly true in the legislative history con-
nected to partsmen and their role in maintaining farm
implements. /d. Putting aside changes in the auto-
motive, truck and farm implement industries and the
question of whether the rationale for the exemption
still holds true, the rationale never was applied and
would not hold true for service advisors, lube techni-
cians, warranty clerks, lot porters, detailers, parts
stockmen, parts runners, bodymen, painters or any
other employee in a service department. Nonethe-
less, the Petitioner argues that service advisors be
read into the statute based on either their functional
integration in the servicing of vehicles or their work

33
selling the servicing of vehicles. Pet. Br. 25,27 Many

of the above classifications would be swept into the
exemption by adopting that rationale.

Contrary to the Petitioner's suggestion, designat-
ing service advisors as exempt is not necessary to
maintain simplicity in pay plans for the service de-
partment. Service departments already have a multi-
tude of pay plans to address the various categories of
employees. Mechanics and body shop technicians
can be paid on varying flat rate plans, but a different
flat rate plan applies to the service shop than the
body shop. Some employees, including parts run-
ners, warranty clerks and dispatchers may receive a
bonus based on department-wide sales. Some war-
ranty clerks receive a monthly salary. Some bonuses
are based on customer satisfaction in addition to
gross or net sales of parts, labor or both.

These complex pay systems are managed electroni-
cally and are frequently outsourced to payroll compa-
nies such as ADP and PeopleSoft. Regardless of the
exemption status of service advisors, a typical dealer-
ship will continue to employ a multitude of exempt
and non-exempt employees in the service department.
See UAG-Steven Creek II, Inc. d/b/a Audi Stevens
Creek, 32-RC-108320, p. 4 (July 29, 2013) (service de-
partment employs service technicians, service advi-
sors, greeter/porters, dispatcher, warranty clerk, car
washer/detailers, and shuttle drivers); Courtesy Hon-
da, 12-RC-083701, pp. 1-2 (parts and service depart-
ment includes service technicians, lube technicians,
service advisors, appointment taker, cashier, service
porter, warranty administrator, service support indi-
vidual, retail parts counter employee, wholesale parts

34

counter employee, parts shipping and receiving em-
ployee, parts floater employee and parts driver); Pay-
ton-Wright Ford, 16-RC-10539, p. 1 (body shop, parts
and service department includes service technicians,
quick lube technicians, service advisors, body or colli-
sion center technicians, parts back counter employ-
ees, stocker, warranty parts employee, parts driver,
parts warranty clerk, bookers, aftermarket sales, parts
front counter employees).

Petitioner’s legal position expands the three ex-
emptions into many disparate classifications. An es-
timator serves as the functional equivalent of a ser-
vice advisor in the body shop. The estimator serves
as the go-between for the customer (or the insurance
company) with the body shop technician. The esti-
mator neither works on the vehicle itself nor does
the position have an explicit sales component: there
is usually no work to “up-sell.” Either the dent or
damage is going to be fixed or not. If the service ad-
visor is read into the exemption, does the estimator
get shoehorned into the exemption as well based on
the similarities to service advisors?

A lube technician has neither the earning potential of
the mechanic (as she is generally paid hourly without a
production bonus) nor the skill set that would result in
being required to perform work away from the dealer-
ship. A broad reading of the exemption would encom-
pass this lower skilled position which, while engaged in
service on vehicles, is not a true “mechanic.”

A warranty clerk may earn a portion of his com-
pensation based on overall sales of service. The clerk
does not service vehicles nor does he have direct

35

communication with the customer to sell additional
service. A bonus is calculated on the total warranty
work that is ultimately approved by the manufactur-
er. In that sense, he is selling the service that has
been performed to the manufacturer. No rational
reading of the exemption, however, should include
the warranty clerk.

Similarly, the term “partsman” is applicable only
to the parts advisor/parts counter person. To ex-
pand the exemption to include the parts warehouse-
man, parts driver or parts runner, or parts cashier/
clerk strays from the original meaning of the lan-
guage. The legislative history shows that partsmen
were included in response to concerns regarding
maintenance of farm implements, where a part may
have to be fabricated for a quick repair. Resp. Br.
36-37. It would be exceedingly rare for a partsman
in an automobile or truck dealership and repair fa-
cility to encounter a similar circumstance. It is un-
heard of for a parts warehouseman to be dragged
out of bed to find a part in a department that is open
for set hours during the day. Nonetheless, if all per-
sons integral to the servicing of an automobile were
covered under the exemption, the parts warehouse-
man would lose the benefit of the overtime to which
he is currently entitled.

A dispatcher is essentially a middleman between
the service advisor and the mechanic, determining
which available mechanic is best suited to perform a
particular repair. If the service advisor is included in
the exemption and the mechanic is included in the
exemption, the dispatcher, as the functionally inte-
grated Jink between advisor and mechanic, would be

36

similarly included notwithstanding the dispatcher’s
lack of work servicing a vehicle or selling services to
customers.

In some dealerships, an individual may hold mul-
tiple positions. For example, at the Ford dealership
in State College, Pennsylvania, one employee was
found to spend 25% of her time as a service advisor,
50% of her time performing quality checks and the
remaining 25% of her time processing warranty
claims. State College Ford Lincoln Mercury, 6-RC-
12215, pp. 7-8. Unlike the remaining service advisors
at the dealership, who were paid salary with a bonus
based on parts sold, she was paid hourly for her ser-
vice advisor work and only earned a bonus based on
the number of satisfied customers to whom she
spoke. Jd. Under the Petitioner's analysis, this indi-
vidual would be excluded from the FLSA protection
of overtime based on her service advisor work.

These examples highlight the slippery slope of ex-
panding the limited language of 29 U.S.C. § 213(b)
(10)(A) to include job titles beyond salesman, parts-
man and mechanic. Given the variations in structure
and job duties between dealerships found in all of
these NLRB cases, a narrow reading is required. The
Department of Labor has the mandate, expertise and
knowledge to review job duties in a broad number of
dealerships. Rather than the Court relying on one
isolated workplace, the DOL, which is better suited
for the task, should be setting policy on this matter
and its interpretation should be honored.

37
IV. CONCLUSION

The Court should affirm the judgment of the court
of appeals.

Respectfully Submitted,
Mark D. SCHNEIDER Davip A. ROSENFELD
INTERNATIONAL ASSOCIATION OF Counsel of Record
MACHINISTS AND AEROSPACE CAREN P. SENCER
Workers, AFL-CIO WEINBERG, ROGER & ROSENFELD
9000 Machinists Place 1001 Marina Village Parkway,
Upper Marlboro, MD 20772-2667 Suite 200
mschneider@iamaw.org Alameda, California 94501
Telephone: (301) 967-4500 drosenfeld@unioncounsel.net
csencer@unioncounsel.net
Telephone (510) 337-1001

Counsel for Amicus Curiae

April 5, 2016

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0617%3A12. Public record. Not legal advice.