Sears Roebuck and Co.

National Labor Relations Board - Board Decisions

Dec 3, 1954

110 N.L.R.B. 1162 (N.L.R.B. 1954)

1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her, to March 1 , 1954, the date of her reemployment by the Respondent Company,
less her net earnings during this period . Back pay shall be computed in accord-
ance with the formula stated in F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 1116, Retail Clerks International Association , A. F. L., is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Floraann
Kozlosky, thereby encouraging membership in the Respondent Union , the Respond-
ent Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and 8 ( a) (1) of the Act.
3. By causing the Respondent Company to discriminate against Floraann Kozlosky
in violation of Section 8 (a) (3) of the Act , the Respondent Union has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (b) (2)
and 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
SEARS ROEBUCK AND COMPANY and SEARS ROEBUCK EMPLOYEES
COUNCIL LOCAL 1635, RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL. Cases Nos. 1-CA-1562 and 1-CA-1577. December 3, 1954
Decision and Order
On July 16, 1954, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices with respect to the discharge of Roy W. Webber and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in any unfair labor practices alleged. in the com-
plaint with respect to the discharge of Bernice R. King and recom-
mended that such allegations be dismissed. Thereafter, the Respond-
ent and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Sears Roebuck
110 NLRB No. 187.
SEARS ROEBUCK AND COMPANY 1163
and Company, Boston, Massachusetts, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Sears Roebuck Employees Coun-
cil Local 1635, Retail Clerks International Association, AFL, or any
other labor organization of its employees, by discriminating in
regard to hire or tenure of employment of its employees.
(b) Discharging or otherwise discriminating against any employee
because he has given testimony under the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist Sears Roebuck Employees Council Local 1635,
Retail Clerks International Association, AFL, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid and protection, or to
refrain from engaging in such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Roy W. Webber immediate and full reinstatement to
his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole
for any loss of pay suffered, both in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Post, at all of its stores in the greater Boston area, copies of
the notice attached hereto and marked "Appendix." i Copies of said
notice, to be furnished by the Regional Director of the First Region,
shall, after being duly signed by the Respondent, be posted imme-
diately upon receipt thereof and be maintained for a period of at
least sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records, and all other
reports and records necessary to analyze the amount of back pay
due and the right of reinstatement under the terms of this Decision
and Order.
(d) Notify the Regional Director of the First Region, in writing,
within ten (10) days of the date of this Order what steps the Respond-
ent has taken to comply herewith.
1 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discharged Bernice R.
King in violation of the Act.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Sears Roebuck Em-
ployees Council Local 1635, Retail Clerks International Associa-
tion, AFL, or any other labor organization, by the discharge of
any of our employees or by discrimination in any other manner
in regard to their hire or tenure of employment or any term or
condition of their employment.
WE WILL NOT discharge or otherwise discriminate against any
employee because he has given testimony under the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to join or assist Sears Roebuck Employees Council Local
1635, Retail Clerks International Association, AFL, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Roy W. Webber full reinstatement to his
former or substantially equivalent position without prejudice
to any seniority or other rights and privileges previously enjoyed,
and make him whole for any loss of pay suffered as a result of
the discrimination against him.
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
SEARS ROEBUCK AND COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
SEARS ROEBUCK AND COMPANY 1165
Intermediate Report
STATEMENT OF THE CASE
On charges duly filed against Sears Roebuck and Company, herein called Respond-
ent, charging that it has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1), (3), and (4) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act, the Regional Director of the
Board for the First Region (Boston, Massachusetts) issues a consolidated complaint
against Respondent alleging that the latter has engaged in and was engaging in un-
fair labor practices within the meaning of the section of the Act above mentioned.
With respect to the unfair labor practices, the complaint alleged, in substance,
that on or about October 26, 1953, and on or about November 12, 1953, Respondent
discharged Bernice R. King and Roy W. Webber, respectively, because they joined
or assisted Sears Roebuck Employees Council Local 1635, Retail Clerks Interna-
tional Association, AFL, herein called the Union or AFL, or because they engaged
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection. The complaint also alleged that Webber was discharged for the
further reason that he gave testimony under the Act. By its answer duly filed, Re-
spondent admitted it had discharged the two employees aforementioned, denied
that the terminations were made for the reasons alleged in the complaint, and pleaded
further that both employees were discharged for cause.
Pursuant to notice, a hearing was held between February 17, 1954, and March
3, 1954, at Boston, Massachusetts, before the duly designated Trial Examiner.
The General Counsel, Respondent, and the Union appeared, were represented by
counsel, afforded full opportunity to be heard, and to examine and cross-examine
witnesses. Since the close of the hearing, briefs have been received from the Gen-
eral Counsel, Respondent, and the Union, all of which have been duly considered.
On the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation duly organized under and existing by virtue of the
laws of the State of New York. At all times material herein, it has maintained
its principal offices in Chicago, Illinois, and a store at 201 Brookline Avenue, Bos-
ton, Massachusetts, hereinafter called the Boston or Fenway store, at which premises
and its other stores throughout the United States it has been continually engaged in
the business of retail and mail-order merchandising. At its Boston store, annual
purchases exceed $400,000, of which approximately 80 percent is shipped directly
to said store from points outside the Commonwealth of Massachusetts; at said store,
annual sales exceed $2,000,000, of which approximately 5 percent represents ship-
ments made directly to points outside Massachusetts. Respondent admits it is
engaged in commerce within the meaning of the Act both as to the totality of its
operations, and as to the operations of its Boston store, and I so find.
II. THE LABOR ORGANIZATIONS INVOLVED
Sears Roebuck Employees Council Local 1635, Retail Clerks International Asso-
ciation, AFL, herein called the Union or AFL, Sears Roebuck Employees Council,
unaffiliated, herein called the Council, and Sears Roebuck Employees Council, Lo-
cal No. 1, are labor organizations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
The first organizational activity among Respondent's employees in its Fenway
store, where both of the alleged discriminatees with which we are concerned were
employed, occurred in 1938 with the organization of the Council, an unaffiliated
labor organization. At that time, Roy W. Webber, one of the alleged discriminatees
herein and a commission salesman in the furniture department of that store, was
elected as representative of all commission sales' employees. Sometime in 1939,
he was elected vice chairman of the Council and later in the same year became its
(chairman, which office he occupied continuously thereafter until January 13, 1953.
Sometime after 1938, similar organizations were formed in other retail stores
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operated by Respondent in the greater Boston area. The Fenway organization
then became known as Local No. 1, the Cambridge and Waltham units comprised
Local No. 2, and the Quincy employees were organized as Local No. 3. Mem-
bership in a local automatically conferred membership in the Council. In 1941,
the supreme governing board of the Council was created and organized consisting
of the chairman and treasurer of each local together with two other delegates elected
by the executive committee of each local. Webber served as chairman of Local No.
1 until 1950, and as chairman of the Supreme Governing Board of the Council
until January 13, 1953, prior to which time he announced that he would not be a
candidate for reelection. Officers for each local were elected annually in Novem-
ber while the annual convention of the Council was held in January at which time
its officers were elected. Bargaining negotiations with Respondent concerning
wages, terms, and conditions of employment for the three locals were carried on by
the Council.
In 1942, Webber was made "backup" man in the furniture department or divi-
sion and as such was responsible for its operations during the absence of the divi-
sion manager. For this added responsibility he was given a salary of $20 a week.
in 1944, Jardin, group manager of all of Repondent's stores in the Boston area, com-
plained to Webber that every time that he went through the furniture department
"some one [was] buzzing [his] ear." Webber explained that the disruptions com-
plained of were occasioned by employees coming to him with complaints and prob-
lems in regards to the Council. To minimize confusion, he was provided with a
desk in the department at which location he carried on his activities thereafter
until May 1952 when the division manager ordered it removed because "it was
cluttering up the floor."
About the same time, a movement was started to grant authority to each of the
locals, apparently not previously possessed by them, to affiliate with an "outside"
union. Webber called a special convention of the Council to consider an amend-
ment to its constitution which would "allow the locals more freedom" to make such
affiliation. The motion was rejected by the Council. On January 13, 1953, new
officers of the Council were elected at which time Webber sang his "swan song"
and was elected honorary chairman of the Council.
A meeting of the full membership of the Council was called and attended by
approximately 300 members, at the Hotel Lennox, the evening of January 21, 1953.1
Webber was on the platform, addressed the assembly, and recommended that the
Council affiliate with the American Federation of Labor. In the course of his re-
marks, he criticized Mr. McDermott, the then group manager of all of Respondent's
stores in the Boston area, for having interfered in the affairs of the Council and
strongly recommended affiliation with the American Federation of Labor in order
to strengthen the employees' bargaining position. The motion to affiliate was "over-
whelmingly" adopted
On the following day, January 22, Gannon, employed in Respondent's Cambridge
store, met at a hotel with McDermott and the latter was then advised by Gannon
of the exact vote of each of the locals at the meeting of the previous night. About
7.30 p. in. of the same day, Webber was called to the office of Fick, the Fenway
store manager, and there advised by Fick that he was being removed as backup
man with the resultant loss of the $20 weekly salary he had previously enjoyed.
In the course of the conversation, Fick asked Webber why he had "gone over" to
the American Federation of Labor the previous night. When Webber answered
that he had recommended affiliation, Fick stated: "You did more than recommend
it. You led it." Webber explained he "was not going to sit idly by and see the
Council fall to pieces bit by bit," and that Fick knew what happened in the Quincy
and Cambridge stores.
On February 1, when W. T. Romizer assumed management of the Fenway store
as successor to Fick, he "was aware that there was an effort by the Employees
Council to affiliate with the AFL and sought legal advice on the matter, and was
advised that the unaffiliated Council was still the official bargaining agent and the
one with whom [he] was to bargain." He has acted on that advice ever since. On
February 9, the AFL filed a charge with the Board (1-CA-1402) alleging that
from on or about February 5, Respondent refused the Union's demand to bargain as
the collective-bargaining representative of Respondent's employees in the Fenway
store.
Early in February, Respondent began a dual campaign to strengthen and per-
petuate the Council as an unaffiliated organization, and against the AFL. On Feb-
ruary 12, employees Hession, Larsen, and Hanson were instructed by management
1 Unless otherwise specifically noted, all references to dates herein are to the year 1953
SEARS ROEBUCK AND COMPANY 1167
to report at the office of the store superintendent. Present in behalf of manage-
ment were Supervisor Gillespie and Grue, a division manager. Gillespie stated
that the employees had been called to the meeting "because they were loyal, trusted
employees of the Company" and that they would be asked to form a part of a
committee concerning which more information would be given them at a later date.
When Larsen and Hanson stated that they had already committed themselves to
the AFL, Grue advised them that their future rested with management and the un-
affiliated Council, and that the AFL could do nothing for them. Gillespie asked
Hession how many years he had been with Sears and when he replied that he had
a service record of 17 years, Gillespie said: "That's an awful lot of profit sharing.
You and I have been good friends a long time. I want you to go along with me and
see if you can get some employees in the store to go along with the Council."
Gillespie also told him that he could not belong to the AFL and that manage-
ment was his only protection. He further said- "There's a fellow here from Chi-
cago . . . I want you to speak to him. He'll be your friend for life." The three
employees were directed to go to the Braymore Hotel at 9 a. in. the following morn-
ing and to confer with one Jim Guffey, a representative of the "parent organiza-
tion," who was coming from Chicago to meet them, and that they would be given
additional information at that time as to what their duties were to be.
The three employees reported to Guffey at the Braymore Hotel on the following
morning as directed. Gulley informed the group that "the Company would never
tolerate the AFL as bargaining agent of the employees; they would spend countless
sums of money to keep them out, they would fight for years, if necessary, to keep
them out of the Company." He also stated that the AFL was "communist domi-
nated," and that the election by which affiliation with the AFL was effectuated was
illegal and that Bailey, another leader in the movement for affiliation, was an "im-
moral" man and not fit to lead the organization. At that meeting Guffey distrib-
uted declaration-of-right cards bearing the name of "Sears Roebuck Employees
Council (unaffiliated)" and affirming membership in the Council "in spite of any
conflicting claims or representations." Guffey asked the employees to sign these
cards and to secure the signatures of other employees thereto.
Guffey held further hotel meetings with Larsen, Hanson, and 2 or 3 other em-
ployees on February 18, 25, and March 4. During these meetings, Gulley asked
for progress reports and for the return of signed declaration-of-rights cards to him-
self, Gillespie, or employee Giammasi, who was then leading the movement for
the unaffiliated Council. A similar meeting was held at the Kenmore Hotel on
March 11 with one Melnick in attendance in behalf of Respondent's Chicago office
in place of Gulley. During the course of these meetings approximately 50 signed
declaration-of-rights cards were delivered to Guffey or Melmck. At the March 4
meeting Guffey reported that great progress was being made, that it was just a matter
of time before the AFL was "out and finished," and asked those in attendance to
consider means of punishing those employees who were "outspokenly opposed to
the Unaffiliated Council." 2
About March 15, while the Fenway store was being picketea by the AFL, Kirk,
manager of the furniture department, told Webber the pickets were hurting Re-
spondent's business and that he "wouldn't want to be in [Webber's] shoes." When
Webber asked him what he meant, Kirk replied: "Just what I said, I wouldn't want
to be in your shoes."
On June 16, the General Counsel issued a complaint against Respondent in Case
No. 1-CA-1402 (110 NLRB 226) alleging that though the Union was the majority
representative of Respondent's employees in an appropriate unit of its Fenway
store, Respondent has since January 22 refused to bargain with it as required by
the Act. The complaint further alleged that since January 23, Respondent domi-
nated, assisted, contributed to the support of, and interfered with the administration
of the unaffiliated Council and its Local No. 1. By its answer, Respondent denied
the allegations of the complaint and specifically pleaded that the unaffiliated Council
and its Local No. I were the exclusive representative of the employees aforemen-
tioned. A hearing on the issues so joined was held before Trial Examiner Thomas
2 The finding contained in this and the preceding two paragraphs are based, in part, on
testimony given by McDermott and Larsen in Case No. 1-CA-1402, hereafter mentioned,
and of whose testimony I have taken official notice Both the Board and the courts have
held that such notice may be taken of prior proceedings before the Board. N. L. R B. v.
M L. Townsend, 185 F. 2d 378 (C. A. 9), cert. denied 341 U. S. 909; International Long-
shoremen's and Warehousemen 's Union, Local 10, ILWU ( Pacific Maritime Association),
102 NLRB 907; J. 8 Abercrombie Company, 83 NLRB 524, enfd. 180 F 2d 578 (C. A. 5).
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson from July 7 to July 23, 1953 , at which hearing Webber testified on July
8 and 9.3
On October 26 and November 12, Respondent discharged Bernice R. King and
Roy W . Webber, respectively , under circumstances hereafter detailed.
B. The discharge of Webber
It is the position of the General Counsel that Webber was discharged because
of his activity in behalf of the AFL and because he gave testimony under the Act.
Respondent denies such a discriminatory motive and contends instead that he was
discharged because of his poor sales record.
As previously pointed out , Webber, since 1930 to the date of his discharge on
November 12, 1953, was employed in Respondent 's Fenway store as a commission
salesman in its furniture department . His services during that entire period are
likened by Respondent in its brief to those of an employee who has rendered "long
and loyal service to his employer ." No competent evidence was offered that , except
for the low volume of sales, any substantial criticism was ever made of the way in
which Webber conducted himself or performed his duties during his long period
of employment . Indeed, on several occasions , division managers complimented
him on the "clean" nature of his sales thereby avoiding the adjustment of customer
complaints that followed sales by other salesmen in the same department.
The record is undisputed that prior to the time Webber assumed the chairman-
ship of the Council in 1939 he was consistently among the leaders in sales volume
for his division Commencing with that activity, however, and continuing to the
time that the Council voted to affiliate with AFL, he began spending a substantial
part of his working time on council affairs, in contract negotiations with manage-
ment , and in the adjustment of employee complaints and grievances . The time
so consumed varied but , as the activities increased after World War II, they de-
manded and received "up to 50 percent" of his working time. His sales gradually
declined until , by 1946 or 1947, his volume was the lowest of all of the men in the
department, a rating which he continued to occupy to the end of 1952 when he
announced to management and the employees his intention to relinquish all of his
official duties with the Council , effective January 13 , 1953. Notwithstanding this
gradual decline which began in 1939, he was promoted in 1942 to the position of
backup man with a salary of $20 a week , a stipend which he continued to receive
while his sales volume was steadily declining . Nor was any criticism made by
management because of his council activities until, in the words of the store man-
ager , Webber "led" the movement to have the Council affiliate with the AFL in
January 1953. Indeed, those activities were facilitated when, in 1944 , the store
manager provided Webber with space for a desk where he could carry on the affairs
of the Council and its members.
Except for a diversionary remark by Store Manager Fick in the spring of 1951,
when Webber complained to him about the transfer of another employee because
of low sales ,4 the first meaningful discussion with Webber concerning his low sales
occurred on or about April 17, 1953, in an interview with Miss Binder, personnel
manager at the Fenway store. The latter had been employed by Respondent in
personnel work for 13 years and as personnel manager of the Fenway store since
July 17, 1950 . In March and April 1953 , at the direction of Romizer, the store
manager, she was engaged in conferences with employees throughout the store
whose sales volume was consistently low for the purpose of improving their per-
formance . Such a conference , lasting "5 or 10 minutes at the most," was held with
Webber on or about April 17, during Respondent 's third accounting period,5 at
which time Webber told her that because he was no longer an officer of the Council
he felt that there should be a definite improvement in his sales volume.
Webber's low sales were next discussed in an interview on June 9, during the
fifth period, with William Nicoll , the store superintendent since October 1952 and
second in command only to Romizer . Nicoll had direct charge of personnel, in-
cluding the sales performance of all employees , with authority to hire and fire.
When Nicoll informed Webber that he was "low man on the totem pole" for the
fourth period, Webber remonstrated that he had nevertheless shown considerable
3 That proceeding is presently pending before the Board on exceptions to the Trial
Examiner 's Intermediate Report and Recommended Order.
4 At that time Fick said to Webber, " If I want to get tough , I will get tough with you
and your low sales "
6 Respondent 's fiscal year begins on February 1 and its sales accounting records are
computed on the basis of 13 periods of 4 weeks each
SEARS ROEBUCK AND COMPANY 1169
improvement over the previous year. Nicoll answered that the increase was not
sufficient and that management expected him to be "up at the top or very close
to it," and asked him whether he did not think it was time he was "looking for
another job." 6 Webber replied that he was not resigning , that he would not accept
a transfer, and accused Nicoll of "trying to put the finger on [him]." He reminded
Nicoll that while at one time he was top man in the department, he was now a much
older man but promised, nevertheless, to do his best to increase sales. On the after-
noon of the same day, Webber had a conversation with Paul Rohrdenz, group per-
sonnel manager for all of Respondent's Boston stores. Rohrdenz informed him
that he had overheard Nicoll's conversation with Webber that morning and that he,
Rohrdenz, did not approve of the way Nicoll had talked. When Webber stated
that he would do the best he could with respect to sales, Rohrdenz answered:
"That is all the company expects of you."
Sometime in June, the same month in which the complaint in Case No. 1-CA-
1402 was served on Respondent, Romizer called Webber at his home on the
latter's day off and told him that Caldwell, Respondent's vice president in charge
of personnel , was at the Sheraton-Plaza Hotel and wanted to see him at 3 o'clock
that afternoon. When the two men met, their first meeting after an interval of 12
years, Caldwell informed Webber that he had called him "to try to find out why
[Respondent had] to have this union trouble in Boston." After some discussion as
to whether or not the Union provided the employees with the security they desired,
Caldwell asked Webber whether he would be interested in a position as labor rela-
tions man in one of Respondent's factories. Webber replied that he was one of
the leaders in the fight with the Company and that he "would rather cut cordwood
... than leave the people in the fight." Caldwell asked him to think the matter
over and to give his answer to one of Caldwell' s men who would contact him in
about 2 weeks. At the latter time, Webber was interviewed by a representative of
Caldwell and was asked whether he had thought further about Caldwell's offer.
Webber replied that his answer "was the same."
Webber heard nothing further from management concerning his sales performance
until he was discharged on November 12. At about 10:30 a. in. of that day, he
was called to Romizer's office. Romizer told him that he wanted to review his
sales and informed him that he was "low man." Webber remonstrated that he had
not been low in the last period and that he had shown considerable increase over
the preceding year. Romizer replied that the increase was not satisfactory and
that he was being discharged for that reason. Romizer directed him not to return
to the department and that his paycheck would be made up within an hour.
At the time Romizer discharged Webber, he had before him a tabulation showing
the sales volume of all of the salesmen in the furniture department commencing
with the first period in 1952 and concluding with the ninth period in 1953 ending
on October 8, 1953, a total of 22 periods. Romizer testified that this "record of
almost 22 months was sufficient to establish the fact that [Webber] was sub-
standard." The tabulation discloses that Webber's aggregate sales for the entire
period were lower than that of any of the 7 or 8 other salesmen employed in the
department. It also demonstrates conclusively, however, that Webber's sales were
substantially higher in the 9 periods of 1953 covered by the tabulation than in the
corresponding 9 months in 1952. A further analysis of Webber's sales performance
is detailed below.
The law is well settled that an employer has an unfettered right to discharge any
employee with or without cause, except only that such discharge can not be effectu-
ated because the employee has engaged in activities protected by the Act. Absent
such a discriminatory motive, an employer's right to fire is absolute, regardless of
how long and faithful the employee may have served him. It is not the function of
the Board to sit in moral judgment on an employer who discharges an employee
under such circumstances. My only duty with respect to Webber's discharge is to
find whether or not he was discharged for the reasons alleged in the complaint. And,
in the resolution of that issue the burden of proving such a discriminatory motive
rests upon the General Counsel throughout the entire proceeding. Nevertheless,
where, as here, an active union proponent is discharged after approximately 25 years
of loyal service, it becomes my duty to carefully scrutinize the reasons given by
9 Nicoll's version of the latter part of the foregoing conversation was that he 1^'ced
Webber "if he thought he was suited for selling, if he were in the right place in selling
big tickets " The term "selling big tickets" has reference to salesmen employed on a
commission basis in the sales of higher priced items such as furniture, rugs, refrigerators,
building materials, etc
338207-55-vol 110-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employer for that discharge. If that analysis discloses that the reason so as-
signed was a mere pretext to cover a discriminatory motive, or that Webber' s "union
activity weighed more heavily in the decision to fire him than did dissatisfaction
with his performance," 7 I can only conclude that the termination was in violation
of Section 8 (a) (3) of the Act.
It is Respondent's contention that Webber was discharged because of his low
sales record in 1952-1953. While the record establishes that from 1939 to the
date of his discharge in November 1953 Webber devoted a very substantial part of
his working time to council affairs, and in the discussion of personnel problems with
store employees 8 no claim was , or is, made that he was discharged for that reason.
In its brief, Respondent contents itself with the limited statement that time spent with
other employees is one of two "probable reason[s] for Webber's poor performance "
[Emphasis supplied.] It is only because of that suggestion, that Webber's "talking"
becomes relevant for consideration herein.
On this phase of the case, however, the testimony of Respondent's own super-
visory personnel establishes conclusively that it condoned such conduct by Webber,
and the fact that he devoted a substantial part of his working time to talking with
other employees was not the reason that he was discharged.
Romizer testified that he walked through the furniture department daily, "occa-
sionally" observed Webber talking to other employees, and that Kirk, manager of
the furniture department after November 1952, told him that Webber "always seemed
to have other people there talking to him . probably about union activities "
Notwithstanding the knowledge so acquired, Romizer testified he was "indifferent"
about the matter for "if [he] had felt that [Webber] was spending too much time
[talking to other employees, he would] have had it brought to his attention."
Superintendent Nicoll testified that he went through the furniture department from 2
to 10 times a day and observed Webber talking to employees. He further testified,
however, that he did not "believe that Mr. Webber devoted an unusual amount of
time in 1953 in meetings or discussions on the floor that would affect his sales,"
or that his "union activities were affecting his sales record." And, when he inter-
viewed Webber on June 9 for the purpose of improving the latter's low sales, he
made no mention of the time consumed by Webber in conferring with other em-
ployees, nor did he instruct, or even suggest, that Webber avoid such conferences in
the future. It is thus apparent from the testimony of both Romizer and Nicoll that
the time devoted by Webber to conferences with fellow employees was neither
the motivating factor for his discharge nor that, in the opinion of management, was
it responsible for Webber's low sales .9
The other "probable reason for Webber's poor performance" assigned by Re-
spondent was his alleged "lethargic, disinterested attitude." In support of such a
contention Nicoll testified that Webber's demeanor, and the expression on his face
"without a smile," had left him with the "feeling" that Webber "didn't have the
first element of a [commission ] salesman." 10 However , when Nicoll had his
corrective interview with Webber on June 9 no mention was made of such a,
"lethargic, disinterested attitude" nor, as has previously been pointed out, did Nicoll
make any suggestions for the improvement of Webber 's approach to or handling
of customers.
Miss Binder, the store personnel manager, testified that in January 1953 when
she asked Webber during a casual conversation how he was doing with sales, he
answered: "Oh, just medium. I am not going to kill myself running after customers."
Though she further testified that she did not "want an employee who tells [her]
that," when asked what she did about it, her answer was "Nothing." Significant, too
is the fact that though she was engaged in April in a program designed by Romizer
to find out why the low man in each department could not increase his sales and
subsequently reported on that task to Romizer, she never told either Romizer or
Nicoll that Webber had told her he would not "kill himself" running after customers,
s N. L. R. B. v. Whitin Machine Works, 204 F. 2d 883 (C. A. 1) ; see also St. Louis Car
Company, 108 NLRB 1523
8 Notwithstanding his retirement from council office in January 1953, employees con-
tinued to come to him in about the same numbers to discuss personnel problems.
° Unquestionably, if Webber had devoted part of his working time to council affairs, or
in the discussion of personnel problems with other employees , after having been instructed
by Respondent not to do so, his discharge thereafter for not abiding by that instruction
would not have been violative of the Act. Here, however, no claim is made that any
such instruction was ever given
1° Whether Webbei's demeanor oi facial expressions were different in 1953 than in
prior years was not disclosed by the recoid
SEARS ROEBUCK AND COMPANY 1171
nor did she make any memorandum or notation thereof in Webber's personnel file.
Indeed , when questioned at the hearing whether at the time she interviewed Webber
in April she had any opinion or belief as to why Webber was low in sales her answer
was: "No , I did not ." On the entire record and my observation of the witnesses,"
and notwithstanding the fact that Webber did not again take the stand to admit or
deny the statement attributed to him by Miss Binder , I cannot find that he made that
remark, or that he was lethargic or disinterested in his work or that he was dis-
charged for that reason.ia
Notwithstanding the findings just announced , the crucial question in connection
with Webber 's discharge is whether he was discharged because of his union activites
or because of low sales, without regard to the reason for the latter.
The decision to discharge Webber was made by Romizer after the preparation of
a tabulation , General Counsel 's Exhibit No. 3, showing the sales performance of
all of the furniture salesmen from the 1st period in 1952 to and including the 9th
period in 1953 ending on October 8. It was then , Romizer testified , that he "con-
cluded that there was such a record going so far back , and the other steps that had
been taken in an effort to improve his performance , there was little for [him] to
do" but to discharge Webber . While Romizer 's testimony does not disclose pre-
cisely how "far back" he went in his appraisal of Webber 's record , consideration of
all the testimony offered by Respondent , and its brief, makes it clear that Respond-
ent relies on Webber 's record for 1952 and 1953 as justification for his discharge.
Unquestionably , Webber 's aggregate sales in 1952-1953 , collectively and sev-
erally , were the lowest of all the salesmen in the furniture department . But if it
is Webber's record for those two periods upon which Respondent relied as justifica-
tion for his discharge , consideration of the remainder of the record compels the con-
clusion that he was not in fact discharged for that reason.
First , why was Webber 's low sales volume in 1952 used as a factor in arriving at
the decision to discharge him? Respondent knew during 1952, indeed, during the
6 or 7 preceding years, that Webber was low man in the department during that en-
tire period . Not only was he never criticized or disciplined during those 7 or 8
years but, on the contrary , Respondent augmented his commissions by allowing him
to continue as backup man in the department during that entire period at a salary
of $20 per week. Accordingly , it is reasonable to infer that so long as Webber's
activities were in behalf of the unaffiliated Council, which Respondent was actively
seeking to retain as bargaining representative of its employees , he stood in its good
graces. It was only when, against Respondent 's wishes and campaign , he led the
movement for affiliation with the AFL that complaint was voiced over his 1952
sales.
Second , what standards were used by Romizer in arriving at the conclusion that
Webber's low sales justified his discharge ? Though Romizer's testimony is replete
with statements that Webber was discharged because he did not come up to "average,"
and Respondent 's brief contains tabulations showing the disparity between Webber's
sales and the average for the department , that medium was not invoked to justify
the dismissal of two other salesmen in the furniture division who were below aver-
age, or indeed , any other regular salesman below average in other departments.
Thus, Romizer admitted that employees "consistently below the average " were not
discharged because, by the nature of things , "approximately half of them have to be
below the average ." Nevertheless , with respect to Webber , Romizer "expected him
to be average as the minimum standard ." Nicoll , who refused to speak to Webber
or acknowledge his greeting after the latter testified in Case No . 1-CA-1402 in July,
had even a higher standard for Webber . According to Nicoll , management expected
Webber "to be up at the top or very close to it."
Elsewhere in the record , however , Romizer, as well as Nicoll and Miss Binder, all
testified that they were principally concerned in 1953 with what they could do to
improve Webber's performance . However, none of the three offered any con-
structive criticism or remedial suggestions . Notwithstanding their failure to do so,
11 Miss Binder 's entire testimony , and her attitude and demeanor , left me with the
impression that she was more concerned with being helpful to the establishment of Re-
spondent 's defense than being a truthful and frank witness.
' Of significance in rejecting Respondent ' s contention that Webber was lethargic, and
disinterested in his work , is Respondent 's failure to call as a witness air Kirk manages
of the fuinituie department in 1953 Its failure to do so warrants "drawing an infer-
ence that [the testimony of Kirk ], it adduced , would not have been favorable to Respond-
ent" N L. R. B. v. Wallick and Schwalm Company, et at, 198 F 2d 477, 483 (C A 3) ,
Interstate Ccrcust v United States , 306 U . S 208 , 225-226; Wigmore , Evidence , Section
285, 288 ( 3rd edition , 1940).
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Webber's sales in 1953 improved most substantially over the comparable periods in
1952 as the following statistics, found in the tabulation relied on by Romizer in
arriving at the decision to discharge Webber, conclusively establish.
Webber's Sales
Period 1952 1953 Dates 1953
$1,294 $6, 287 2-1 to 2-26
2,216 5, 462 2-27 to 3-26
3,718 5, 794 3-27 to 4-23
---------------- -4 --------------------------------------- 6,946 6,053 4-24 to 5-21
5-------------------------------------------------------- 2, 998 6,132 5-22 to 6-18
6-------------------------------------------------------- 6, 579 7,031 6-19 to 7-16
7---------------------------------------------------------- 3, 188 14,361 7-17 to 8-13
8---------------------------------------------------------- 4,612 9, 074 8-14 to 9-10
8---------------------------------------------------------- 1, 210 6,083 9-11 to 10- 8
Total----------------------------------------------- 32, 761 56,277
I While the tabulation shows sales of only $4,361 during the 7th period, that was the period in which
Webber was absent on a vacation of 2 weeks. If his 2 weeks' sales were projected, the aggregate for that
period would be $8,722.
Examination of the tabulation discloses that Webber's sales for the first 9 periods
in 1953 exceeded his 1952 sales during the same periods'by the sum of $23,516,
equivalent to an increase of 71.8 percent. It also establishes that commencing with
the 3rd period, during which the Binder interview occurred, Webber's sales during
each succeeding period, through the 8th, showed an increase over the preceding
period,13 and mounted from $5,462 during the 2nd period to $9,074 in the 8th.
In the latter period he ranked 3rd in the staff of 8. And, though Romizer testified
that in August or September "it was evident that [they] were not going to be able
to improve his production," and that the decision to discharge him was made soon
thereafter, it was during that period, the 8th, that Webber reached his highest vol-
ume-$9,074, while the average sales in the department were only $8,313.
We turn now from Webber's sales record to consider the alleged futility of the
"steps that had been taken in an effort to improve his performance" and which,
Romizer testified, left him no other alternative but to discharge Webber. On this
phase of the defense, I find not a scintilla of evidence indicating that Respondent
took a single constructive "step" to increase Webber's sales.
Romizer testified that shortly after he assumed the management of the Fenway
store on February 1, 1953, he directed his supervisory staff to engage in a survey
and program designed to improve the performance of the entire store. The meas-
ures invoked to improve the standing of those employees whose sales were deemed
unsatisfactory were threefold-first, to conduct corrective interviews by Miss Binder
and Nicoll; second, to have Miss Binder make arrangements with the department
manager to observe the salesman in question and to make constructive criticism
for improvement; lastly, if the other steps failed, to transfer the salesman to another
department or other job.
The "corrective" interview Webber was given by Miss Binder in April has already
been described. It lasted only 5-10 minutes and the testimony is conclusive that
she made no suggestion for his improvement. Miss Binder did, however, testify
that after she conducted corrective interviews with other salesmen in other depart-
ments whose sales were low, she made arrangements with their department mana-
gers to work with them, and to observe how they were doing. No such action
was taken in the case of Webber, notwithstanding she was unable to arrive at a belief
as to why Webber's sales were low.
Nicoll, as has previously been detailed, attributed Webber's low sales primarily
to his demeanor and absence of a smile. Notwithstanding this conclusion, his own
testimony establishes that he made no corrective suggestions when he interviewed
Webber on Juue 9. His only contribution to a solution of the problem was to in-
quire of Webber whether he did not think it was time he was "looking for another
job."
rs Ibid.
SEARS ROEBUCK AND COMPANY 1173
Though Respondent was disturbed in the spring of 1953 over the poor record of
the entire Fenway Store and engaged in the aforementioned program to improve
the sales of every department , no salesman in any other department employed be-
yond the established 6-month probationary period was discharged because of low
sales. Indeed , it was uncontradicted that since 1939 no regular commission sales-
man was fired "for being consistently low man " in his department . 14 While several
who were in that category resigned, 1 find that such resignations were voluntary
and not "forced" as suggested by Respondent. On the other hand, in the case of at
least one employee , McLaughlin , whose sales were deemed unsatisfactory and who
ranked last, or next to last, in 20 out of the last 25 periods, was transferred to an-
other position where he had an opportunity to make as much money, "and prob-
ably more."
Consideration of the entire record has brought me to the conclusion that Webber
was discharged for the reasons alleged in the complaint and not for that assigned
by Respondent. Hostility towards Webber because of his leadership in behalf of
the AFL manifested itself almost immediately after the membership of the Council,
on January 21, voted to affiliate with that organization, which action Respondent
sought to nullify by the means heretofore detailed. It will be recalled that on
January 22 Respondent's store manager complained to Webber not only because
the latter had talked in favor of AFL at the meeting the night before, but that he
had gone further and actually "led" the movement in favor of affiliation . During
the same interview Webber was advised, without further explanation or reason, that
he was being removed as backup man in his department and would suffer the loss
of the $20 weekly salary he had previously received. A further portent of the fate
awaiting Webber was exposed on or about March 15, while the AFL was picketing
Respondent's premises at which time Kirk, manager of the furniture department,
warned Webber "he wouldn't want to be in [his] shoes."
In view of what has been noted, if Webber had been discharged early in 1953, the
reasonable inference to be drawn from such a succession of events would be that
he was discharged as a means of retribution for his activity in behalf of the AFL.
No meaningful complaint had ever been made to him during the preceding 6-7
years during which he was consistently low man among the 8-9 salesmen during that
long period. His discharge, early in 1953, consideied in light of Respondent's then
current campaign to avoid the entrance of AFL as bargaining representative of its
employees, could only lead to the conclusion just stated.
A similar inference of guilt would have been drawn if Webber had been dis-
charged shortly after he had testified in Case No. 1-CA-1402 in July 1953. During
that time, the seventh and eighth periods (July 17-September 10), Webber showed
his most marked improvement. Notwithstanding that improvement, Webber's re-
lationship worsened after he testified in that proceeding. Thus, though his relation-
ship with Nicoll had never been too friendly , after Webber appeared as a witness
against Respondent Nicoll ignored him completely , and refused even to acknowledge
his greeting when the two men encountered each other in the store . On the entire
record I can only characterize this change in relationship as a further manifestation
of Nicoll's and Respondent's displeasure over Webber's testimony before Trial
Examiner Wilson.
Admittedly, the lapse of time from the last apparent disclosure of Respondent's
hostility to Webber because of his leadership in the drive for the AFL and the days
on which he appeared as a witness against it, to the date of his discharge, has
caused me pause before concluding that he was discharged for those reasons. How-
ever , I am convinced that this lapse of time, when viewed in light of the entire
record , cannot dispel my ultimate conclusion . Rather , I find that the interval was
purposely tolerated by Respondent to add an aura of plausibility to its defense that
neither his activity in behalf of AFL, nor his testimony aforementioned , were the
motivating factors for his discharge . Webber's substantial improvement in 1953,
coupled with the disparate treatment accorded him as compared to other low sales-
men and that he was the only regular commission salesman ever discharged for low
sales volume , convince me that the warnings of January and March , the change in
attitude in July, and his discharge in November , "were all motivated by the same
unlawful consideration and must be viewed together as part and parcel of a prede-
termined plan to penalize [Webber] for his union activities ," 15 and because he had
14 Miss Binder testified that since she assumed the position of personnel manager of
the Fenway store on July 17, 1950, " no commission salesman who had worked for more
than 6 months was ever discharged because of low sales."
15 El Mundo, Inc, 92 NLRB 724.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified against it in the prior proceeding . By that discharge , Respondent violated
Section 8 (a) (1), (3), and (4) of the Act.
C. The discharge of Bernice R. King
Mrs. King was employed by Respondent in the customer service department of
the Fenway store from April 1946 until her discharge on October 26, 1953. Until
the end of September 1953, she devoted most of her time to correspondence and
personnel interviews involved in the adjustment of general customer complaints.
It is undisputed that she was regarded by management as a highly competent em-
ployee and that she was possessed of pleasing personality and appearance. At the
end of September, Guild, manager of the department, asked her if she wanted to
take over the handling of furniture and credit complaints. She was told that if
she did a "good job" for 3-4 weeks her pay would be raised to that of the girl she
was to succeed. Mrs. King accepted the offer and entered on her new post.
On October 22, she was called to Miss Binder's office and informed that she had
been selected for a position at the "Catalog 200" desk. Her duties there would be
to find out from customers making purchases through the catalog order desk "if
they had an account and check up and see if they were in arrears . . . and if they
wanted to open an account, [she] was to open the account." Miss Binder told
her that she had been selected as the most qualified person in the store for the
position, that she would receive 3-4 weeks' training in the credit office and that a
substantial raise would follow after she was on the new job. Mrs. King replied
that she "didn't like credit work, . was happy in [her] present job . . . and
didn't wish to be transferred." Miss Binder asked her to think the matter over
and to give her answer on the following workday, Saturday.
On the latter day, she was called to Nicoll's office where he emphasized to her
the importance of the job and the increased volume that Respondent expected in
that department during the coming season . As he concluded, she informed him
that she had decided against the transfer. He replied that he would not accept
"no" as an answer and would transfer her anyway . She challenged his right to do
so, asserting that Respondent 's agreement with the Council protected her against
a forced transfer . Nicoll denied there was any such agreement . She raised the
question of the pay raise that Guild had promised her about a month earlier and
Nicoll answered that he knew nothing about the matter. Guild was called into
conference and questioned about the raise. He informed Nicoll that though he
had not promised her any specific amount , he had told Mrs. King that he would
see about getting her a raise after she had been on the job for 3-4 weeks. Nicoll
then told Mrs. King that he would "put through" the raise on her present job im-
mediately, that an additional substantial raise would follow after she was in the
new job, and that he expected her to report to the credit office for training on the
following Monday morning. She thanked him for the raise but remained adamant
in her refusal to accept the new assignment . Nicoll again summarized the im-
portance of the job and that her store seniority, in the event of layoffs in the
Catalog 200 department, was protected by the contract with the Council and, in
addition, by his personal assurance which he had previously given. She stated, in
the presence of Guild, that she did not believe him. When Nicoll asked whether
she was questioning his personal integrity, she answered affirmatively. He repeated
his instruction that she report to the credit office for training on the following
Monday and informed her that he was not putting through the raise on her present
job because of her "attitude."
On the following Monday morning, October 26, Mrs. King reported at her old
job and not at the credit office as she had been instructed. When Guild questioned
her about this, she told him that she was not going to the credit office. At 11 a. m.
she was called to Nicoll's office. Mrs. King testified that Nicoll at that time im-
plored, indeed "begged," her to reconsider her decision. She nevertheless declined
to accept the new assignment. He then informed her that, though "he hated to do
it," he was compelled to discharge her for insubordination . In her presence, he
called Miss Binder and told her to prepare the necessary dismissal papers. As he
turned away from the telephone, he again "begged" her to reconsider but she
remained unmoved. After once more repeating his regrets over the action she was
compelling him to take, Mrs. King was dismissed.
On November 30 Romizer wrote her a letter asking her to accept the new assign-
ment . She replied on December 2 declining the position and characterized the
transfer as discriminatory in nature , and imposed because of her "union affiliation."
Mrs. King and Webber had been "keeping company" since 1947. About 2 years
before her discharge , both told some of their fellow employees that they intended
SEARS ROEBUCK AND COMPANY 1175
to marry, but no formal announcement of their engagement was made until after
both had been discharged by Respondent. In the interval, Webber had taken her
to lunch every day, and at the store social gatherings had introduced her to repre-
sentatives of management as his "friend." She held no union office but, commenc-
ing about a month before she was discharged, collected dues from approximately
_12-employees in the customer service department.
The same general considerations heretofore detailed in connection with the dis-
charge of Webber and relating to the rights of an employer to hire and fire are
applicable to the employer's right to make such work assignments as he deems
appropriate. It is only if an onerous assignment is made for the purpose of en-
couraging or discouraging membership in a labor organization that such action runs
afoul of Section 8 (a) (3) of the Act.
Whether or not Respondent had an established practice of not transferring em-
ployees over their objection is the subject of conflicting evidence in the record
which, however, I find it unnecessary to resolve. Assuming, without deciding, that
such a practice existed, it would not be dispositive of the issue before me. Such
alleged disparate treatment of Mrs. King is only one among all the other factors
and circumstances to be considered in the resolution of the ultimate issue. In that
posture of the case, and assuming that the disputed practice existed, consideration
of the remainder of the record compels the conclusion that the General Counsel has
not sustained the burden of proving by a preponderance of the evidence that Mrs.
King was discharged for the reasons pleaded in the complaint.
Except for the collection of union dues for a period of about a month in her
small department, Mrs. King was not otherwise active in union affairs. While that
activity and her friendly relationship with Webber cannot be ignored, they are not
sufficient to find that she was discharged because of union activity, or in retribution
against Webber as a means of discouraging membership in the AFL. If the evidence
had established that the tendered position was in fact more onerous, or that its
physical surroundings were not as desirable, a more difficult problem would be
presented. The record, however forecloses such a finding. Her only stated objec-
tion to the transfer was that she "didn't like credit work, . interviewing people
and asking them all sorts of personal questions and finding out if they are in arrears."
But both of her former jobs were in the same field and required action by her in
connection with delinquent accounts. In any event, I am not convinced that the
nature of the tendered assignment was in fact the reason for her refusal to accept it.
By her own admission, if she had been "offered any other job in the store," she
would have refused the assignment.
With appropriate regard for her union activity and her relationship with Webber,
I find that Mrs. King's services were not terminated therefore but conclude, instead,
that she was discharged for insubordination. The protection afforded her by the
Act does not include the right to prescribe her own work assignment, or grant her
license to indulge in insubordination. N. L R. B. V. Kopman-Woracek Shoe Mfg.
Co., 158 F. 2d 103 (C. A. 8); N. L. R. B. V. Montgomery Ward f Co., 157 F. 2d 486
(C. A. 8), Spud's Laundry, 95 NLRB 1231. It will accordingly be recommended
that the allegations of the complaint pertaining to the discharge of Mrs. King be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
Respondent's activities, set forth in section III, above, occurring in connection
with Respondent's operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Respondent having discharged Roy W. Webber because of his union activities
and because he testified under the Act, I recommend that Respondent offer him
immediate and full reinstatement to his former or a substantially equivalent posi-
tion without prejudice to his seniority and other rights and privileges, and make him
whole for any loss of pay he may have suffered by reason of Respondent's dis-
crimination against him, by payment to him of a sum of money equal to that which
he normally would have earned as wages from November 12, 1953, the date of
the discrimination against him , to the date when, pursuant to the recommendations
herein contained , Respondent shall offer him reinstatement, less his net earnings
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during said period.16 Loss of pay shall be determined by deducting from a sum
equal to that which he would normally have earned for each quarter or portion
thereof, his net earnings , if any, in other employment during that period. Earn-
ings in one particular quarter shall have no effect upon the back-pay liability for
any other quarter. The quarterly periods described herein shall begin with the first
day of January, April, July, and October.17
It is recommended further that Respondent make available to the Board upon
request payroll and other records, in order to facilitate the checking of the amount
of back pay due.18
Because of Respondent 's unlawful conduct and its underlying purpose and tend-
ency, I find that the unfair labor practices found are persuasively related to other
unfair labor practices proscribed and that danger of their commission in the future
is to be anticipated from the course of the Respondent's conduct in the past. The
preventative purpose of the Act will be thwarted unless the order is coextensive
with the threat . In order, therefore , to make effective the interdependent guarantee
of Section 7, to prevent a recurrence of unfair labor practices , and thereby to mini-
mize industrial strife which burdens and obstructs commerce , and thus effectuate
the policies of the Act, I will recommend that Respondent cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Sears Roebuck and Company is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Sears Roebuck Employees Council Local 1635, Retail Clerks International
Association , AFL, is a labor organization within the meaning of Section 2 (5) of
the Act.
3. By discriminating in regard to the hire and tenure of employment of Roy W.
Webber because of his union activities thereby discouraging membership in the
Union named in paragraph numbered 2 above, and because he gave testimony under
the Act, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1), (3), and (4) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not violated the Act by discharging Bernice R. King.
[Recommendations omitted from publication.]
16 Crossett Lumber Company, 8 NLRB 440 , 497-8; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
17F. W. Woolworth Company, 90 NLRB 289.
Is Ibid.
REDA PUMP COMPANY and THE EMPLOYEES FEDERATION OF THE REDA
PUMP COMPANY, PETITIONER . Case No. 16-RC-15927. December 3
1954
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before J. Howard Stark,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
International Union of Operating Engineers , Local Union No. 641, intervened at the
hearing on the basis of a contract interest.
110 NLRB No. 186.