Sears, Roebuck And Co.

National Labor Relations Board - Board Decisions

Feb 22, 1985

274 N.L.R.B. 230 (N.L.R.B. 1985)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears , Roebuck and Co. and International Union of
Electrical , Radio and Machine Workers, AFL-
CIO-CLC. Cases 16-CA-7941, 16-CA-8047,
16-CA-8218, 16-CA-8382, 16-CA-8472, and
16-CA-8551
22 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 April 1980 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, and the Respondent filed an answering
brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions as modified, and to adopt the recom-
mended Order.
The sole issue before the Board concerns the Re-
spondent's 22 May 1979 interview of employee
Larry Ward, at which the Respondent denied
Ward's request for the presence of a representative
of his own choosing.2 The judge dismissed this
aspect of the complaint, finding that the interview
was conducted only to impose predetermined disci-
pline and thus was not an interview to which
Weingarten rights applied. Texaco, 246 NLRB 1021
(1979); Baton Rouge Water Works Co., 246 NLRB
995 (1979). We agree with the judge's dismissal of
this aspect of the complaint but, as to the rationale,
we rely instead on our view that Weingarten rights
are inapplicable where, as in the case before us,
there is no certified or recognized union.3 Pursuant
to this view, we overrule the Board's contrary de-
cision in Materials Research Corp., 262 NLRB 1010
(1982).,
For purposes of our decision, the particular facts
surrounding Ward's 22 May 1979 interview are not
pertinent. Instead, the only pertinent fact is that, at
the time of Ward's interview, Ward was not repre-
sented by a recognized or certified union. Thus,
when Ward requested a representative at his inter-
view, his request was for a fellow employee or for
a representative of the Charging Party Union that
i Absent exceptions we adopt the judge's finding that the Respondent
violated Sec 8(a)(3), (4), and (1) of the Act by requiring certain employ-
ees to use vacation or personal holiday leave to attend a Board hearing
and his dismissal of other 8(a)(1) and (3) allegations
2 NLRB v J Weingarten , 420 U S 251 (1975) The complaint also al-
leged that Ward was unlawfully discharged for engaging in union activi-
ties and for giving testimony to the Board The judge found that Ward
was discharged for cause , and no exceptions were filed to that finding
3 We express no view on whether Ward's interview was the type to
which Weingarten rights would attach if a recognized or certified union
had been present
was engaged in efforts to organize the Respond-
ent's employees.
In Materials Research Corp., 262 NLRB 1010
(1982), a Board majority extended the Supreme
Court's Weingarten decision to unrepresented em-
ployees.4 Former Chairman Van de Water and
Member Hunter each filed a dissent to that expan-
sion . We agree with them that the Materials Re-
search majority was incorrect and, in so doing, we
fully endorse former Chairman Van de Water's dis-
senting opinion in that case with the following ad-
ditional observations. S
Weingarten rights stem from an employer action
(an interview) which is reasonably perceived by an
employee as affecting his or her terms and condi-
tions of employment (the potential imposition of
discipline).6 The Board and the Supreme Court
have determined that an employee should not be
required to participate in such an employer action
alone, without his or her duly designated collec-
tive-bargaining representative should such repre-
sentative be requested.
The Weingarten rule, in a unionized setting, is
wholly consistent with established principles of
labor management relations . Thus , pursuant to Sec-
tion 9 and related provisions of our Act, a duly
recognized or certified union is vested with the ex-
clusive authority to represent unit employees and
deal with the employer on all matters involving
4 The Materials Research rule was applied in E I du Pont & Co, 262
NLRB 1040 (1982) (Du Pont 1), and E I du Pont & Co, 262 NLRB 1028
(1982) (Du Pont II) The Ninth Circuit Court of Appeals denied enforce-
ment of Du Pont I on the ground that the employee 's request for repre-
sentation did not meet Sec 7's "concerted activities" requirement 707
F 2d 1076 (9th Cir 1983) The Third Circuit Court of Appeals granted
enforcement in Du Pont !! 724 F 2d 1061 (3d Cir 1983)
On 14 May 1984, the court vacated its order and remanded the case to
the Board
5 Member Hunter has raised several compelling arguments in his Mate-
rials Research dissent and his concurring opinion in this case Our major
difference with Member Hunter is that he appears to view our holding
here as a permissible interpretation of the Act , while we view the result
rendered as one the Act compels
6 The Materials Research majority sought to deny this characterization
of the Weingarten right by accusing former Chairman Van De Water of
advocating a return to "pre-Weingarten" cases where an employee's right
to representation applied only in disciplinary interviews See, e g ,
Texaco, 168 NLRB 361 ( 1967) In those cases, the Materials Research
Corp majority conceded the existence of a necessary and direct link be-
tween an employer action (an interview ) and the impact on an employ-
ee's terms and conditions of employment (discipline) They asserted,
however, that that essential linkage was abandoned in Quality Mfg Co,
195 NLRB 197 (1972), and Mobil Oil, 196 NLRB 1052 (1972), in favor of
a "`new' interpretation of Section 7 " Simply stated , the Materials Re-
search Corp majority was wrong
First, the former Chairman specifically quoted from and discussed
Quality and Mobil, setting forth the parallels between Texaco and those
cases regarding the characterization of the right involved 262 NLRB at
1017 Second , although the Board's focus did shift from disciplinary
interviews to investigatory interviews in Quality and Mobil, it retained
the essential linkage between employer action and the effect on an em-
ployee's terms and conditions by imposing the requirement that the em-
ployee reasonably believe discipline might result from the interview
Quality MJg Co, 195 NLRB 197 at in 3, and accompanying text
274 NLRB No. 55
SEARS, ROEBUCK & CO 231
terms and conditions of employment, including
wages, hours, benefits, and discipline. Accordingly,
if an employer seeks to take an action that affects
any of its employees' terms and conditions of em-
ployment, it must recognize the union's legitimate
representational rights and, therefore, it is not free
to deal with employees on an individual basis over
the employees' objections. In short, the application
of Weingarten in a union setting meshes comfort-
ably with established concepts governing dealings
among employees, management, and unions.
When no union is present, however, the imposi-
tion of Weingarten rights upon employee interviews
wreaks havoc with fundamental provisions of the
Act. This is so because the converse of the rule
that forbids individual dealing when a union is
present is the rule that, when no union is present,
an employer is entirely free to deal with its em-
ployees on an individual, group, or wholesale basis.
See Linden Lumber v. NLRB, 419 U.S. 301 (1974);
J. I. Case Co. v. NLRB, 321 U.S. 332 (1944);
NLRB v. Jones & Laughlin, 301 U.S. 1 (1937). Im-
portantly, the freedom to deal individually spans all
terms and conditions of employment, including the
potential or actual imposition of discipline. Thus,
when the Board held in Materials Research Corp.
that Weingarten rights are applicable in a nonunion
setting, it told employers, in effect, that they have
the right to act on an individual basis with respect
to an employee's terms and conditions of employ-
ment except for the conduct of an investigatory
interview. In an investigatory interview, where dis-
cipline is reasonably foreseeable, the employer
must accede to an employee's request for represen-
tation or else forgo the interview altogether. In
short, the Materials Research Corp. majority said
that, with respect to disciplinary action, the non-
union employer cannot deal with an employee on
an individual basis; it must deal on a collective
basis. Like former Chairman Van de Water, we
cannot endorse any rule that so fundamentally
alters our statutory scheme.
Nor can we accept the rationalizations of the
Materials Research Corp. majority that a nonunion
employer can be required to deal with a Weingar-
ten representative because (1) the Weingarten deci-
sion is based on Section 7, which extends its pro-
tections to represented and unrepresented employ-
ees alike; and (2) the Weingarten representative is
not cloaked with full collective-bargaining author-
ity.
Former Chairman Van de Water adequately dis-
posed of the first of these arguments in his discus-
sion of Emporium Capwell Co. v. Western Addition
Community Organization, 420 U.S. 50 (1974).7 In
Emporium Capwell union-represented employees
engaged in picketing in an effort to compel the em-
ployer to deal with them, rather than the union,
over the issue of racial discrimination. The employ-
er discharged the pickets. The Supreme Court
ruled that the discharges were lawful because the
employees' actions contravened the exclusivity pro-
visions of Section 9. Thus, even though the em-
ployees were engaged in concerted activity that, in
the absence of a union, would have been protected
by Section 7, their rights in a unionized setting
could not "be pursued at the expense of the orderly
collective-bargaining process contemplated by the
NLRA." 420 U.S. at 69. Such reasoning applies
with equal force here. The scope of Section 7's
protections may vary depending on whether em-
ployees are represented or unrepresented, and the
Section 7 rights of one group cannot be mechani-
cally transplanted to the other group at the expense
of important statutory policies.8
The second rationalization fares no better. Plain-
ly a Weingarten representative cannot engage the
employer in collective bargaining. It is clear, how-
ever, that the representative acts as a representative
for the employee being interviewed and all other em-
ployees in the unit . The Weingarten Court contem-
plated that the representative safeguard "not only
the particular employee's interest, but also the in-
See 262 NLRB at 1020 (dissenting opinion)
Additionally , while Member Dennis holds that an unrepresented em-
ployee does not have a Sec 7 right to refuse to participate in an investi-
gatory interview without the assistance of a fellow employee, she empha-
sizes that an employee does engage in protected concerted activity by re-
questing that a coworker be present The Act forbids an employer from
retaliating against an unrepresented employee for making a protected
concerted request, but it does not mandate the granting of such a request
Charleston Nursing Center, 257 NLRB 554, 555 (1981) (unrepresented em-
ployees were engaged in protected concerted activity when they request-
ed meeting with management to discuss grievances , but the employer was
under no obligation to meet with them and could refuse to deal with the
employees except on an individual basis)
In Member Dennis' opinion , a request for the presence of a coworker
is an attempt to initiate concerted activity because , if successful , two em-
ployees would together confront the employer as it considered whether
to impose discipline Member Dennis finds support for her position in the
section of Meyers Industries, 268 NLRB 493, 497 (1984), setting forth the
definition of concerted activity The Meyers Board cited with approval
the Second Circuit's decision in Ontario Knife Co v NLRB, 637 F 2d
840, 844-850 (1980), in which the court stated
Implicit, of course , in the Court 's decision in Weingarten is that the
action of an individual in requesting the assistance of a union stew-
ard met § 7's requirement of concertedness as well While by defini-
tion, an individual acting alone cannot act in concert , § 7 is not limit-
ed to concerted activity per se Instead, it protects the "right to
engage in concerted activities " If workers have the right to
engage in concerted activities and to associate freely, then, as the
Third Circuit recognized in Mushroom Transportation Co v NLRB,
330 F 2d 683 (3d Cir 1964), employers cannot obstruct an employ-
ee's efforts to exercise those rights Individual activity can be pro-
tected, therefore, if it is "looking toward group action " Mushroom
Transportation, 330 F 2d at 685
Chairman Dotson finds it unnecessary to pass on the issue discussed in
this footnote
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terests of the entire bargaining unit . . . ." 420
U.S. at 260. Further, the Board has held that the
representative must be allowed to speaks and is
free to make proposals and suggestions or to offer
alternative discipline. As former Chairman Van de
Water pointed out, such functions constitute "deal-
ing with" the employer, and "dealing with" an em-
ployer is a primary indicium of labor organization
status as well as a traditional union function See
262 NLRB at 1016 fn. 30, 1019 fn. 40, and accom-
panying text. Thus, to place a Weingarten repre-
sentative in a nonunion setting is to require the em-
ployer to recognize and deal with the equivalent of
a union representative, contrary to the Act's exclu-
sivity principle.
For the foregoing reasons, and those former
Chairman Van de Water cited in his Materials Re-
search Corp. dissent, we reverse the Board's deci-
sion in Materials Research Corp. and hold that the
right to representation at Weingarten-type inter-
views applies only to unionized employees. Be-
cause Larry Ward was not a represented employee,
we shall affirm the judge's finding that Ward's 22
May 1979 interview was not conducted in violation
of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Sears, Roe-
buck and Co., Oklahoma City, Oklahoma, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
MEMBER HUNTER , concurring.
I concur in the result reached by the majority
that the Respondent's denial of employee Ward's
request for representation at the 22 May 1979 inter-
view did not violate Section 8(a)(1) of the Act. As
previously indicated ,' I agree that Weingarten2
rights do not properly extend to unrepresented em-
ployees. Thus, I join my colleagues in the majority
in overruling Materials Research Corp.;3 however, I
disagree with their stated reasons for doing so.4
The Materials Research majority opinion adopted
the rationale that the Supreme Court 's decision in
Weingarten compels the conclusion that unrepre-
sented employees are entitled to the presence of a
coworker at an investigatory interview if request-
ed.5 Contrary to that approach, Chairman Dotson
and Members Dennis, in the majority opinion here,
have interrupted the Act so as to compel no Wein-
garten rights for unrepresented employees. I dis-
agree with both positions. Rather, I consider the
extension of the Weingarten rights to unrepresented
employees as a permissible but not a reasonable
construction of the Act for the reasons set forth
below and in my prior dissent in Materials Re-
search.
In reaching this conclusion, I start with an analy-
sis of the Weingarten decision itself. In Weingarten,
the Supreme Court upheld the Board's view of the
scope of an employee's rights to union representa-
tion provided by Section 7 of that Act. In Weingar-
ten, a Board majority had adopted the administra-
tive law judge's conclusion that, under Section 7,
an employee's right to engage in concerted activi-
ties for mutual aid or protection encompasses the
right to the presence of a union representative at
an investigatory interview which the employee rea-
sonably fears may result in discipline. As is its ad-
mitted practice, reaffirmed on several later occa-
sions,6 the Supreme Court in Weingarten indicated
it confined its inquiry to the construction of Sec-
tion 7 at hand, permitting the Board in this area to
initially define the scope of Section 7.7 As long as
the Board's construction of Section 7 was not con-
trary to the Act and was reasonable, the Court in-
dicated it would give it considerable deference,
even though the particular construction was not re-
quired by the Act."
To begin its inquiry into the reasonableness of
the Board's construction of Section 7, the Supreme
Court initially reviewed the Board's earlier deci-
sions in Quality Mfg. Co., 195 NLRB 197 (1972),
and Mobil Oil Corp., 196 NLRB 1052 (1972), where
according to the Court, the Board had first
"shaped the contours and limits of the statutory
right" under consideration.9 In Mobil Oil Corp., the
Board had stated that "[a]n employee's right to
union representation upon request is based on Sec-
tion 7 of the Act which guarantees the right of em-
ployees to act in concert for `mutual aid and [sic]
protection."'' ° The Board in Mobil thus recognized
that an employee has a general right to assistance
from his statutory representative and that the em-
ployee himself can activate the right. However, the
Board in Mobil, as preceded by its decision in
9 Southwestern Bell, 251 NLRB 612 (1980)
1 See my separate concurrence and dissent in Materials Research Corp,
262 NLRB 1010, 1021-22 (1982)
2 NLRB Y J Weingarten, 420 U S 251 (1975)
3 262 NLRB 1010 (1982)
I find the issue raised in fn 8 of the majority opinion not presented
here, and thus I do not pass on it
5 Materials Reasearch Corp , supra at 1014
6 NLRB P City Disposal Systems, 104 S Ct 1505 (Mar 21, 1984),
Easiex, Inc Y NLRB, 437 U S 556, 568 (1978), Ford Motor Co. Y NLRB,
441 U S 488 (1979)
r NLRB v, J Weingarten, supra at 266-267
8 Ibid
9 Id at 256
10 Mobil Oil Corp, supra
SEARS, ROEBUCK & CO
Quality Mfg., never lost sight of the fact that it was
dealing in those cases with a right to "union" rep-
resentation, I 1 and the Board in each case was es-
sentially being asked to delineate where the bound-
aries to this right exist. The Board had never previ-
ously endorsed any notion that an employee's right
to union representation from his statutory repre-
sentative existed in every phase of his employment.
What the Board did in Mobil and Quality Mfg. then
was to state that the boundaries of the right to
union representation extended at least as far as the
investigatory interview which the employee fears
may result in disciplinary action against him. It
clearly did not address in those decisions the ques-
tion whether that right extended to an unrepresent-
ed employee. And, as noted, in its Weingarten deci-
sion, the Supreme Court considered that those de-
cisions "shaped the contours and limits of the statu-
tory right." 12
The Supreme Court in Weingarten next noted the
specific "contours and limits" to this statutory right
to have union representation at the investigatory
interview. According to the Court's opinion, inter
alia, this right arose only in situations where the
employee requested union representation; was con-
fined to a particular confrontation between em-
ployer and employee, i.e., the investigatory inter-
view, rather than applying in all dealings between
employer and individual employee; did not unduly
hamper the employer's prerogatives in conducting
its investigations as it deems fit; and entailed a cir-
cumscribed participation by the union representa-
tive without creating a duty to bargain on the part
of the employer.
According to the Court, the Board's construc-
tion gave recognition to the right of union repre-
sentation at the investigatory interview when it
was most useful rather than delaying its exercise or
diminishing its effectiveness until discipline actually
had been imposed and the grievance mechanisms
invoked.13 In this regard, the Court noted that the
presence of a knowledgeable union representative
might save valuable production time, avoid unnec-
essary discipline and future grievances, and coin-
cided with actual industrial practices. The Court
then concluded that this construction of Section 7
I I In Mobil, the Board held "Thus, it is a serious violation of the em-
ployee's individual right to engage in concerted activity by seeking the
assistance of his statutory representative if the employer denies the employ-
ee's request and compels the employee to appear unassisted at an inter-
view which may put his job security in jeopardy " 196 NLRB at 1052
(Emphasis added ) In Quality Mfg, it stated- "After reflection, we have
concluded that it is a serious violation of an employee 's individual right
to be represented by his union if he can only request or insist on such
representation under penalty of disciplinary action " Quality Mfg Co, 195
NLRB at 198 (Emphasis added )
I2 See fn 9
13 NLRB v J Weingarten , 420 U, S at 262-263 fn 7
233
by the Board, allowing for union representation at
investigatory interviews, effectuated the most fun-
damental purposes of the Act, i.e., permitting em-
ployees to exercise full freedom of association, self-
organization, and designation of representatives of
their own choosing for the purpose of mutual aid
or protection.14
In sum, an analysis of the Supreme Court's Wein-
garten decision leads me to the conclusion that the
decision sanctioned only the right to union repre-
sentation in a certain situation and that the Court
indicated that the Board's interpretation that an
employee's Section 7 rights included the right to
union representation at an investigatory interview
"while it may not be required by the Act, is at
least permissible under it."15 Clearly, however, to
read Weingarten, as did the majority in Materials
Research, as compelling the same construction of
Section 7-when an unrepresented employee seeks a
witness of his own choosing at investigatory inter-
views-is erroneous, and ignores the Court's own
recognized limits in reviewing the Board's con-
struction of Section 7 on the facts of the case. I
note that Justice Powell, joined by Justice Stewart,
stated as dicta in his dissenting opinion on Weingar-
ten, "While the Court speaks only of the right to
insist on the presence of a union representative, it
must be assumed that the § 7 right today recog-
nized, affording employees the right to act in con-
cert' in employer interviews, also exists in the ab-
sence of a recognized union." [Emphasis added.] 16
The Supreme Court majority in Weingarten never
addressed Justice Powell's assumption concerning
unrepresented employees. To place any reliance, as
the Materials Reasearch majority did, on this unan-
swered dissenting opinion footnote as compelling
authority for the approach taken in Materials Re-
search is to erroneously infer judicial support for a
statement made to emphasize disagreement with
the underlying decision. Rather, it indicates, if any-
thing, the narrowness of the Weingarten Supreme
Court decision and its intended application in the
represented setting only.
Thus cognizant of the narrowness of Weingarten,
I find that Weingarten does not compel broadening
Section 7 to extend Weingarten representation
rights to unrepresented employees. Moreover, I do
not view the Materials Research majority's exten-
sion of Weingarten as a reasonable construction of
Section 7 for the reasons set forth below.
First, Materials Research effectively gives repre-
sentation to employees who have not chosen to be
14 Id at 261-262
11 Id at 266-267
16 Id at 270 fn I
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented in any of their dealings with their em-
ployer That decision professes that Section 7 re-
quires that represented and unrepresented employ-
ees be placed on the same footing. Yet, the pres-
ence of an exclusive bargaining representative can
affect an employee's Section 7 rights. For example,
the presence of a bargaining representative alters
Section 7 rights of employees by prohibiting them
from bypassing their bargaining agent and dealing
directly with their employer, except as provided in
the proviso to Section 9(a) with respect to the ad-
justment of grievances. In addition, the employees'
Section 7 right to strike may be either contracted
away entirely by the bargaining representative or
become subject to the will of the majority of the
bargaining unit employees. On the other hand, the
presence of a bargaining representative can trigger
employees' Section 7 right "to bargain collectively
through representatives of their choosing" by af-
fording employees access to the process and bene-
fits of collective bargaining, including the right to
require, upon reaching an agreement, a written and
signed collective-bargaining contract. Thus, merely
because the represented employee has a Section 7
right to a Weingarten union representative does not
require a finding that unrepresented employees
should be allowed to substitute a witness of their
choice for the Weingarten union representative.
Materials Research also wrongly denigrated, con-
trary to the Supreme Court's rationale in Weingar-
ten, the knowledge, skill, and experience which the
union representative typically brings to the investi-
gatory interview.17 It further ignores the fact that
the union representative, contrary to the unrepre-
sented employee witness, is charged with the con-
cerns of the unit as a whole. 111 The union repre-
sentative ' s usefulness is evident since, as the Su-
preme Court noted, early union involvement may
achieve consistency in the employer's imposition of
discipline and may foster other means to resolve
the matter under investigation short of the imposi-
tion of discipline. In the unrepresented setting,
these benefits are less likely to occur. In the repre-
sented setting, the employer regularly deals with
the union representative on matters besides the in-
vestigatory interview. There is more likelihood that
the employer then will permit greater participation
from the union representative at the investigatory
interview because the employer knows that he may
face the union representative again on this matter
in a postdiscipline grievance or on other related
matters. In addition, with the union representative,
17 See the extensive discussion on this point at NLRB v J Weingarten,
420 U S at 272 fn 7
18 See my concurring and dissenting opinion in Materials Research
Corp, 262 NLRB at 1020, 1021
there is more impetus on the employer to make
consistent disciplinary decisions because the union
representative manifests an apparent solidarity of
the employees in the unit. The presence of the
union representative also has a beneficial effect for
employers in that his presence may discourage friv-
olous grievances and reduce the costs of nonfrivo-
lous grievances. In the unrepresented setting, all of
the above benefits are not likely to be achieved
with the ad hoc appointment of coworkers as wit-
nesses at investigatory interviews. Rather, in the
unrepresented setting, there is an unlimited pool of
potential witnesses at these interviews since the
employee can choose any coworker he likes. This
unlimited pool can hinder continuity and speedy in-
vestigations which the employer seeks.
Further, contrary to the majority opinion in this
case, I fail to see the relationship between an un-
represented employee's request for Weingarten rep-
resentation and the provisions of Section 9 of the
Act under the reasoning of Emporium Capwell Co.
v. Western Addition Community Organization.19 I
find Emporium Capwell inapplicable to the situation
at hand. In Emporium Cap well, represented em-
ployees engaged in picketing to force the employer
to bargain directly with them instead of their ex-
clusive bargaining representative. The Supreme
Court in Emporium Capwell framed the issue in-
volved as concerning whether attempts to engage
in separate bargaining are protected by Section 7
or proscribed by Section 9(a) of the Act.2 ° In the
Weingarten setting, there is, by definition, no duty
on the part of the employer to bargain with the
representative in the first instance.21 Thus, I am
unable to understand the majority's reasoning as to
how Emporium Capwell has any relevancy to the
issue presented here, which, as I have noted, has
nothing to do with collective bargaining.
In view of the above, I find that Materials Re-
search's application of Section 7 to provide a right
of representation in this one instance to a group of
employees who have not chosen a collective-bar-
gaining representative is unwarranted and unwise.
19 420 U S 50 (1975)
20 Ibid
21 NLRB P J Weingarten , 420 U S at 259
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPL1TZ, Administrative Law Judge.
These cases were tried before me at Oklahoma City,
Oklahoma, on 15 trial days between December 13, 1978,
SEARS, ROEBUCK & CO
and October 5, 1979.1 The charge and amended charge
in Case 16-CA-7941 were filed, respectively, on June 12
and July 12, 1978 by International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC, the
Union A complaint issued thereon on July 31, 1978, al-
leging that Sears, Roebuck and Co 2 the Company, vio-
lated Section 8(a)(1) of the National Labor Relations
Act
The charge in Case 16-CA-8047 was filed by the
Union on August 14, 1978.
On September 21, 1978, the Regional Director for
Region 16 of the Board issued an order consolidating
Cases 16-CA-7941 and 16-CA-8047 and a consolidated
complaint alleging that the Company violated Section
8(a)(1) of the Act. On October 11, 1978, the Union filed
a first amended charge in Case 16-CA-8047 and on No-
vember 21, 1978, the Regional Director issued a consoli-
dated amended complaint alleging that the Company vio-
lated Section 8(a)(1) and (2) of the Act. That complaint
was amended on November 30, 1978 It was further
amended when the trial opened before me on December
13, 1978.
The charge, first amended charge, and second amend-
ed charge in Case 16-CA-8218 were filed respectively
on December 4, 12, and 13, 1978, by the Union A com-
plaint issued in Case 16-CA-8218 on January 24, 1979,
alleging that the Company violated Section 8(a)(1), (3),
and (4) of the Act On January 29, 1979, I granted the
General Counsel's motion to consolidate Cases 16-CA-
7941 and 16-CA-8047 with Case 16-CA-8218 and to
consolidate the complaints in those cases
The charge and amended charge in Case 16-CA-8382
were filed respectively on March 12 and April 17, 1979,
by the Union. A complaint issued in that case on April
18, 1979, alleging that the Company violated Section
8(a)(1) and (3) of the Act. By order dated May 4, 1979, I
reopened the record in Cases 16-CA-741, 16-CA-8047,
and 16-CA-8218 (the trial in those cases had previously
been closed), consolidated those cases with Case 16-CA-
8382, and consolidated the complaints which were based
on all of those charges The complaint in Case 16-CA-
8382 was further amended at the hearing on June 5,
1979
The charges in Cases 16-CA-8472 and 16-CA-8551
were filed, respectively, on May 3 and June 15, 1979, by
the Union An order consolidating those cases and a
complaint thereon issued on July 13, 1979, alleging that
the Company violated Section 8(a)(1), (3), and (4) of the
Act. By order dated August 13, 1979, I reopened the
record in Cases 16-CA-7941, 16-CA-8047, 16-CA-8218,
16-CA-8382 (the hearing in those cases had again
closed), consolidated those cases with Cases 16-CA-8472
and 16-CA-8551 and consolidated all the complaints
The hearing was closed for the last time on October 5,
1979.
i In addition, trial began on some of those cases before a different ad-
ministrative law judge on November 30 and December 1, 1978 That
fudge disqualified himself and a trial de novo began before me on De-
cember 13, 1978
2 The original complaint named the Company as Sears, Roebuck Cen-
tral Service Center During the course of the trial an amendment was
permitted which changed the name to read as in the caption
Issues
235
The primary issues are-
1 Whether the Company through various supervisors
violated Section 8(a)(1) of the Act by coercively interro-
gating employees concerning their union activity; by of-
fering money to an employee to induce him to refrain
from supporting the Union; by threatening employees
with reprisals for engaging in union activity and for ap-
pearing to testify at an unfair labor practice hearing; by
creating the impression of surveillance of union activity;
by telling employees that the Company had not granted
wage increases in reprisal for the employees' union activ-
ity, by prohibiting an employee from talking about
wages because of that employee's union activity; by tell-
ing employees that if they engaged in a strike the Com-
pany would not be obligated to reinstate them after the
strike was over; by encouraging an employee to circulate
an antiunion petition and rewarding him for circulating
that petition, by refusing to allow employees to take
leave without pay and by requiring them to take vaca-
tion or personal holiday leave to absent themselves from
work in order to assist counsel for the Charging Party
and the General Counsel at an unfair labor practice hear-
ing; and by denying an employee's request for represen-
tation at an investigatory and disciplinary interview.
2. Whether the Company violated Section 8(a)(2) of
the act by creating and dominating a labor organization
known as the "Communications Committee."
3 Whether the Company violated Section 8(a)(3) and
(4) of the Act by giving employee Earl Perkins an unfa-
vorable work performance evaluation and by laying Per-
kins off because of his union activity and because he
gave testimony under the Act.
4 Whether the Company violated Section 8(a)(3) of
the Act by demoting and reducing the pay of employee
Shirley Segar because of her union activity
5 Whether the Company violated Section 8(a)(3) and
(4) of the Act by discharging employee Curtis Larry
Ward because of his union activity and because he gave
testimony under the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Company
On the entire record' of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a New York corporation with places
of business in Oklahoma City, Oklahoma, where it is en-
' The unoppc -i' is t, m .1 counsel for the General Counsel to correct
the transcript of she record is noted and granted However, in the ab-
sence of a further motion to correct and in view of the fact that most of
the errors are either inconsequential or apparent on their face, a volumi-
nous correction of the record will not be undertaken
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in the retail sales and service business. Though the
Company does business throughout the United States its
only facility involved in this proceeding is the one
known as The "Sears, Roebuck Central Service Center"
which is located at 1825 North Walnut Street, Oklahoma
City, Oklahoma During the past year the Company pur-
chased and received goods valued in excess of $50,000
directly from sources outside of Oklahoma and received
gross revenues in excess of $500,000 at its Oklahoma
City outlets. The Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company maintains a number of retail stores in
the Oklahoma City, Oklahoma area It also operates a
central service center in Oklahoma City which repairs
appliances that have been sold by the retail stores The
Company does not recognize any union as the represent-
ative of its employees at the central service center 4
In the fall of 1977 one of the employees at the Central
Service Center contacted the Union about the possibility
of organizing the employees. On about February 1, 1978,
Edward Gaskill, an International representative of the
Union, was assigned the responsibility of organizing the
Central Service Center Gaskill met with five or six of
the Company's employees at the house of employee
Charles Franklin about February 12, 1978. Some of those
employees signed union authorization cards At that
meeting it was decided that the employees who attended
the meeting and some five others who Gaskill had
spoken to were to make discreet inquiry among the
Company's employees to ascertain whether the employ-
ees were interested in the Union.
Gaskill held a second meeting on March 13, 1978.
Twelve or thirteen employees attended that meeting
which was held at the Red Carpet Inn They discussed
the strategy of a union campaign. Gaskill told them not
to contact any of the employees about joining the Union
until after work on March 17, 1978. Four of the employ-
ees who attended the meeting, Larry Ward, Gary Han-
shue, Donald Pruitt, and Earl Perkins, agreed that they
would work for the Union in the open. Gaskill told them
that he would send a telegram to the Company naming
them as union people.
On March 16, 1978, Gaskill met at the Red Carpet Inn
with the committee members that had been appointed at
the prior meeting for what Gaskill described as a "kick
off' committee meeting. Beginning the following day,
union authorization cards were sought from employees
by the committee people and on March 18 and 19 au-
thorization cards were handed in to the Union.
4 Unless otherwise specified, reference to "the Company" in this deci-
sion refers to the Company's operation of the Central Service Center
On the morning of March 20 Gaskill went to the Cen-
tral Service Center and demanded recognition from the
manager of the center, Richard Allen Braun.5 Braun de-
clined to recognize the Union. Later the same day Gas-
kill sent a telegram to Braun again demanding recogni-
tion. The telegram stated in part: "Service employees
Larry Ward, Gary Hanshue, Earl Perkins and Donald
Pruitt have requested that I officially inform you of their
support of the IUE in order that they be fully protected
under the law."6
Braun testified that he first became aware of the union
activity on March 18, 1978, when his assistant Jim
Jenson called to say that employee Gene Robinson had
come into Jenson's office and asked whether he was
aware that Larry Ward had been out getting authoriza-
tion cards signed
The Company concedes that it engaged in an active
campaign to dissuade the employees from joining the
Union. However, it takes the position that its campaign
was within the ambit of Section 8(c) of the Act7 and that
it did not violate the Act The General Counsel contends
that the Company violated the Act on numerous occa-
sions as specified in the various complaints.
B. The Alleged Interrogation, Threats, and Similar
Coercive Conduct
1. The alleged Interrogation of Haggard by
Fitzpatrick
Jerry Fitzpatrick, an admitted supervisor, is the Com-
pany's employee relations staff assistant . During the
week of February 21, 1978, Fitzpatrick held four meet-
ings with employees in which he discussed employee
benefits and spoke of the possibility of implementing a
communications committee . Clareon Haggard" testified
that after one of those meetings he had a conversation
with Fitzpatrick in the hallway. He averred that he told
Fitzpatrick that he did not think a grievance committee
would do any good and that he felt a union was needed;
that Fitzpatrick asked why he thought a union would do
any good and said that a grievance committee would do
just as well as a union, that he said he felt a union could
get wage increases and other benefits; and that Fitzpa-
trick said "Well, I would not say too much against
Sears' policies and things because they can make it
mighty hard on you if they want to." Haggard also testi-
fied that during the meeting with the employees Fitzpa-
trick had spoken of forming a grievance committee. A
5 Respondent admits and I find that Braun is a supervisor within the
meaning of the Act
B Subsequently , the Union filed a petition for an election in Case 16-
RC-7707 A hearing was held on the petition and the Regional Director
for Region 16 directed an election among the employees of the Company
at the Central Service Center The election was conducted on June 14,
1978, but the ballots have not been counted
r Sec 8 (c) provides "The expressing of any views , argument , or opin-
ion shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit "
a Haggard was discharged by the Company and that discharge was al-
leged to be a violation of the Act in the first amended charge in Case 16-
CA-7941 That part of the charge was dismissed and the complaint does
not allege Haggard's discharge to be violative of the Act
SEARS, ROEBUCK & CO 237
number of other employees testified as to what was said
at that meeting and all of them recalled that Fitzpatrick
spoke about a communications committee . Haggard's tes-
timony that Fitzpatrick used the expression "grievance
committee" at the meeting was not credible
Fitzpatrick in his testimony acknowledged that he had
a conversation with Haggard shortly after an employee
meeting in which the communications committee was
discussed Fitzpatrick testified that Haggard had been
manipulating the system and was not reporting his true
worktime , and that in this conversation Haggard said
that he was having a difficult time understanding compa-
ny policy with regard to filling out such items as time-
cards Fitzpatrick , in his testimony , flatly denied that
there was any mention of the Union or about the Com-
pany being rough on Haggard
As between Haggard and Fitzpatrick I credit Fitzpa-
trick At the February 12, 1978 meeting that Gaskill had
with employees he asked them to make discreet inquiry
as to union interest among employees By late February
1978 the active phase of the union campaign had not yet
begun. It is not likely that at that time Haggard would
have volunteered to a supervisor the information that he
was supporting a union . Moreover , Haggard's testimony
was inconsistent with his prior sworn statements When
the trial in this case opened before a different administra-
tive law judge , Haggard testified to the same conversa-
tion but made no mention of the Company being hard on
him. The General Counsel contends that the transcript
was in error , but even if that is so the testimony in the
trial before me was inconsistent with two affidavits that
Haggard gave to the General Counsel In the first affida-
vit Haggard averred that Fitzpatrick made a remark
about the Company being hard on him because of a con-
versation he had with the local personnel person in
which he complained about benefits . In a supplemental
affidavit he again went over his conversation with Fitz-
patrick and averred that a union was mentioned . In that
affidavit there was no mention of the Company being
hard on him . Fitzpatrick was a convincing witness and
Haggard was not. I credit Fitzpatrick.
2. The alleged interrogation of Hanshue by
Fitzpatrick
Outside service technician Gary Hanshue testified that
on March 23, 1978, after a company meeting at which
company supervisors campaigned against the Union he
met Fitzpatrick in the hallway Hanshue averred that
Fitzpatrick asked him why he was involved in all the
union mess and that he answered that that was the way
it was Fitzpatrick denied having any conversation with
Hanshue concerning the Union and specifically denied
that he asked Hanshue why he was messed up with the
Union.
I do not believe that Hanshue was a reliable witness.
In other parts of his testimony his assertions were ex-
tremely difficult to believe . As is set forth in detail
below, one of the primary issues of this case is whether
Shirley Seger was demoted from radio dispatcher to call
taker because of her union activity or because she im-
properly used a code known as "Mr . Sylvester" in the
course of her radio dispatching . Company Manager
Braun testified that he had no knowledge of the use of
the code until shortly before the demotion and it became
important for the General Counsel's case to establish that
Braun knew of and tolerated the use of the code at an
earlier date , which was prior to Seger's union activity.
Hanshue testified that at a meeting well before the demo-
tion he heard Company Manager Braun tell employees
that they were taking up too much air time with non-
sense and that he saw Braun point to Clancy Gadd and
heard him say, "That goes for you too, Mr . Sylvester "
Gadd was the individual who originally thought up the
name Sylvester Clancy Gadd who was a fully credible
witness averred that the incident never happened. Braun
also credibly denied Hanshue's assertion. I believe that
Hanshue was inventing material to bolster Seger's case
and I therefore have grave doubts as to the reliability of
the remainder of his testimony . I credit Fitzpatrick over
Hanshue with regard to the alleged interrogation.
3 The alleged threat to Perkins and Ward by
Hancock
Ronnie Hancock , an admitted supervisor, is an inside
lead technician for the Company He was a friend of
service technician Curtis Larry Ward and often visited
Ward 's home . On March 19 , 1978, Hancock visited at
Ward 's home and had a conversation with Ward and em-
ployee Earl Perkins 9 They spoke about a number of
work -related matters and also discussed the Union Ward
testified that during the course of that discussion Han-
cock said that things were really going to get sticky with
this union thing before it was over ; that Ward asked for
whom , and that Hancock did not reply. Perkins corrobo-
rated Ward 's testimony . Hancock 's version of the inci-
dent was that he said that it would be a long, drawn out
thing.
I believe that Hancock was a more reliable witness
than either Perkins or Ward and I therefore credit Han-
cock 's version of the incident . After listening to Perkins
in detail and analyzing his testimony I have no confi-
dence whatsoever in his veracity In other parts of his
testimony he put words in the mouths of supervisors that
I simply could not believe the supervisors said Thus he
testified that on August 31, 1978, when he was given an
annual employee evaluation by Manager Braun, Braun
told him that he was getting a low rating on "adherence
to company policy" because he was handbilling , having
people sign union cards and testifying at the representa-
tion hearing . That was after the complaint in the original
case had been issued. Braun 's denial that he made such
remarks was fully credible . Other parts of his testimony
regarding the discharge of Ward were also incredible. t o
Perkins testified that during the first week of May 1979
he was standing outside the breakroom when he over-
heard Supervisor McPherson tell Supervisor Al Potts:
"so far Ward and Hanshue have slipped us every time,
but I don't know if they're going to get out of this next
9 Ward and Perkins testified that Gary Hanshue was also there
Though Hanshue testified at length he did not make any mention of that
particular conversation Hancock recalled that Ward and Perkins were
there
10 The discharge of Ward is discussed in detail below
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing we've got for them." Both McPherson and Potts
very credibly denied having such a conversation. I be-
lieve that Perkins invented the entire incident. In yet an-
other matter, with regard to an attempt to bolster the al-
legation in the complaint that he (Perkins) was laid off
for union activity he testified that on December 1, 1978,
Braun made a damaging admission to him as Braun was
leaving the courtroom. That incident will be discussed in
detail in section B,9, below and the facts will not be re-
peated here. I do not believe that Perkins was truthful in
regard to that testimony even though he was corroborat-
ed by Ward and Hanshue. Rather, I believe that Ward
and Hanshue's credibility was substantially sullied by
their demonstrated willingness to reiterate Perkins' unre-
liable testimony I'
In sum , I credit Hancock with regard to the March 19
incident.
4 The events at Ward's house on March 31, 1978
On March 31, 1978, Hancock again came to Ward's
home. Ward testified that Hancock asked him if he
(Ward) was involved with the Union and that he an-
swered that he was Ward also averred that Hancock
said that the Company knew who was behind the Union;
that he asked Ward whether Ward would tell him if he
guessed correctly; and that Ward said he would. Ac-
cording to Ward, Hancock guessed it was Ken Skala and
Ward replied that he was incorrect and that it was him-
self (Ward) and two other employees whom he would
not name Hancock's version of the incident was substan-
tially different. He testified that it was Ward who asked
him if he knew who started the Union and if he would
like to guess who started it; that he guessed it was Don
Pruitt; that Ward said it was not Pruitt; and that he said
if it was not Pruitt he did not know who it was. Han-
cock testified that Ward said that Chuck Franklin had
initially started the Union and then had walked away
from it leaving others holding the bag.
As between Hancock and Ward I credit Hancock.
Ward had been identified as a union adherent in Gaskill's
March 20 telegram to Braun . As a supervisor it was
likely that Hancock would have known of that telegram,
and it was unlikely that 11 days later he would have
asked Ward whether Ward was involved with the
Union. As set forth above I do not believe that Ward
was a credible witness. I do not credit his assertion that
Hancock asked him whether he was involved with the
Union or that Hancock said that the Company knew
who was behind the Union.
Shortly thereafter, Hanshue came to Ward's house
while Hancock was still there. Ward and Hanshue asked
Hancock a number of questions about company policy.
Hancock replied that he did not have any answers for
them and that Manager Braun would talk to them any
time they wanted to speak about such matters. Ward said
that he would talk to Braun any time that he did not
have to leave the arm chair he was sitting on in order to
do so. Hanshue suggested that Hancock call Braun up
right then. Hancock called Braun on the telephone and
Braun came to Ward's house and spoke to Ward, Han-
shue, and Hancock 12
Hanshue testified to the following- Hanshue told Braun
that they were involved in the Union and that they were
in too deep to back out so that Braun should not try to
talk them out of it; Braun asked them why they were in-
volved with the Union, Ward replied that it was because
they did not have a say in anything that went on; Braun
said that he knew who started the Union and he named
several names; Hanshue said that Braun was not correct
and that it was Franklin who had started it; Hanshue
asked about wages and Braun replied that wages were
based on an 18-month projection system and that he
could not do anything because his hands were tied with
the Union coming in; and they spoke about working con-
ditions and Braun asked what it would take to make
them happy. Ward corroborated Hanshue's testimony in
substantial part.
Braun's version of the conversation was substantially
different. Braun testified to the following: Hanshue made
critical remarks about supervisors and they discussed
those remarks; Hanshue raised the subject of the Union
and said that it was Braun 's favorite, Chuck Franklin,
who started the Union and then backed out and dumped
the whole thing on them; Hanshue said that he had
called Franklin out and if he saw Franklin stuck in
quicksand he would put a rock on his head; Hanshue
said that he was in it for the money and Hanshue quoted
some figures that General Electric and other companies
were paying, Braun said that Hanshue's figures were not
correct; and Ward mentioned something about wages
and Braun said that he was not going to talk about
wages with them.
As is set forth above, I have substantial doubts as to
the reliability of the testimony of Hanshue and Ward.
Braun on the other hand was an extremely credible wit-
ness. His demeanor was such as to inspire confidence
both in the accuracy of his memory and in his candor. I
credit Braun and I do not credit Hanshue and Ward. The
General Counsel has not established by a preponderance
of credible evidence that during this conversation Braun
interrogated those employees, created the impression of
surveillance, or told them that the Company had failed
to grant wage increases in retaliation for the employees
having sought union representation.
5. The alleged offer of money by Kerlin to Ward to
induce him to refrain from supporting the Union
Gary Kerlin, an admitted supervisor, is an employee
relations assistant for the Company. He is stationed in
Dallas, Texas, and works under the Company's manager
of employee relations Peter Kristovich. About April 7,
1978, Kerlin attended a meeting in which a number of
supervisors spoke to assembled employees. After the
meeting, Kerlin and Ward had a conversation in the hall-
way. Ward testified that he mentioned the fact that
Kerlin was spending a lot of time in Oklahoma City and
12 These findings are based on the credited testimony of Hancock To
the extent that the testimony of Ward and Hanshue differed from that of
u My observations on Hanshue's credibility are discussed above Hancock, I credit Hancock
SEARS, ROEBUCK & CO.
Kerlin responded that he had not seen his wife in 2
weeks; Ward said, "What can I say?" and Kerlin said,
"What would it take to buy you off?"; Ward said, "I
don't know. What you got?", Kerlin reached in his
pocket and Ward turned away and left
Kerlin testified that after the meeting he introduced
himself to a number of employees including Ward. He
averred that he engaged in some small talk in which
Ward said that it must be tough on him to travel all the
time and that he answered that he saw more of his
family than he did when he was in a retail store because
he had more time off He emphatically denied in his tes-
timony that he ever asked Ward what it would cost to
buy him off or that he offered Ward any monetary in-
ducement to refrain from supporting the Union . He fur-
ther averred that he remembered Ward 's name and the
incident because he had seen Ward 's name on the tele-
gram from Gaskill.
Kerlin impressed me as a reliable witness and I have
no reason to doubt his credibility other than the testimo-
ny of Ward. As stated above I am unable to place great
reliance on Ward 's testimony I credit Kerlin and I do
not credit Ward.
6 The allegation that Kristovich told employees
that if they went on strike the Company would not
be obligated to rehire them after the strike was over
Peter Kristovich is the Company's manager of employ-
ee relations in an 11 -state area which includes Oklahoma
He is stationed in Dallas, Texas. In early June 1978 Kris-
tovich went to the Central Service Center in Oklahoma
City and made a number of speeches to separate groups
of 10 or 15 employees concerning the Union's organiza-
tion drive . Haggard , Perkins, and Hanshue testified that
at meetings they attended Kristovich made certain re-
marks concerning the right of strikers Their testimony
was far from consistent
Haggard testified that at a meeting held about the first
week of June 1978, an employee asked Kristovich what
the Company could do about replacing employees who
went out on strike and that Kristovich answered that the
Company could hire replacements and after the strike
was over the Company did not have to hire any of the
striking employees back at all 13
Perkins testified that at a meeting in May an employee
asked Kristovich what would happen if there was a
strike and that Kristovich replied by saying that the em-
ployees of Montgomery Ward had gone on strike with
the same Union , that those employees had been replaced,
and that they would not get their jobs back until the
people who replaced them were either fired or quit. Per-
kins averred that he then asked Kristovich to explain the
difference between an economic strike and an unfair
labor strike and that Kristovich told him to sit down be-
cause he had already asked his share of questions.
Hanshue testified that at a meeting the first week of
June 1978 an employee asked what would happen if the
13 The complaint appears to be keyed to that testimony It alleges that
about June 7, 1978, Kristovich threatened employees by telling them in
effect that if they went on strike the Company would not be obligated to
rehire them after the strike was over
239
Union decided to strike He averred that Kristovich ex-
plained that in an economic strike replacements could be
hired and that the striker would be put on a list to return
when the replacement left but that in an unfair labor
practice strike the striker would be off the payroll and
would have no opportunity to get the job back
Kristovich in his testimony averred that he never told
the employees that the Company did not have to rehire
strikers . He also averred that no one ever asked him to
explain the difference between an economic and an
unfair labor practice strike and that he did not explain
the difference 14 Kristovich testified that he told the em-
ployees at the various meetings that strikes could happen
when a union was part of the equation . He acknowl-
edged that he spoke about striker replacements but that
he also told the employees that as the replacements left
the employer had the responsibility to notify the strikers
that there was a job vacancy for them. He averred that
he told them that when a replacement left, a striker
could come back and that he described a situation with
Montgomery Ward where that had occurred.
I credit Kristovich and I do not credit Haggard, Per-
kins, and Hanshue. I find that the General Counsel has
not established by a preponderance of the credible evi-
dence that Kristovich threatened employees that if they
went on strike the Company would not be obligated to
rehire them after the strike as alleged in the complaint.
7. The allegation that Braun prohibited an employee
from talking about wages because of that
employee's union activity
The receiving department at the Central Service
Center is restricted to parts department employees. On
August 3, 1978, when Company Manager Braun went
into the receiving department he saw Perkins sitting with
his foot on the desk . Perkins had gone there to ask parts
department employee Clara Harper if she wanted him to
pick up something for lunch. Braun asked which of them
was working . Harper said that she was and Perkins said
that he was going out to lunch Perkins then left.
Perkins testified that shortly thereafter Braun ap-
proached him and told him that his services were not re-
quired in the parts receiving area and to stay away from
his "nigger girlfriend " (Clara Harper is a black parts de-
partment employee). Braun in his testimony adamantly
denied that he ever referred to Harper as a "nigger" or
that he ever told Perkins to leave his "nigger girlfriend"
alone. I credit Braun and I do not credit Perkins
Later that day Perkins told other employees that
Braun had called Harper a "nigger" and employees re-
ported that back to Braun after a considerable disturb-
ance had occurred among the black employees in the
parts department. Braun held a number of interviews and
confronted Perkins with the matter. Braun 's investigation
led to a memorandum of deficiency interview being put
in Perkins' file which stated that Perkins had caused a
disturbance throughout the department and had upset
morale of employees as well as production On August 4
14 It is noted that the first week in June 1978 was before the first
unfair labor practice charge was filed
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Braun read that deficiency memorandum to Perkins. Per-
kins testified that Braun told him that if he was seen out
of his work area in the parts receiving area talking to
employees about wages, holding up production, and not
doing his job that he would be fired. Perkins averred
that he replied by saying that Braun was doing it because
of his union activity and that Braun said it had nothing
to do with the Union
Braun testified that he told Perkins that he (Perkins)
was not supposed to be in the receiving department
which was an unauthorized area for him and that he was
not to be in any area while other people were working;
that Perkins said that he was only there to get her a
sandwich; and that he (Braun) replied that he did not
care what Perkins was asking her, that she was working,
and he was not15 and that Perkins should not be in areas
while other people were working.
I credit Braun and I do not credit Perkins. Perkins' ac-
tivities with regard to the August 3 and 4 incident did
not involve anything related to the Union and there is no
indication that any supervisors thought they were union
related. The evidence falls far short of establishing that
Braun prohibited Perkins from talking about wages be-
cause of Perkins' union activity as alleged in the com-
plaint.
8. The incidents involving Robinson
a. Background
Eugene Robinson was employed by the Company
from August 1969 until November 14, 1978, when he
was discharged because of the Company's belief that he
falsified company records. Robinson was actively antiun-
ion. It was Robinson who about March 18, 1978, first in-
formed company management that Ward was circulating
union cards Robinson, at his own expense, went to an
attorney on about March 24 to have a petition prepared
saying that the employees did not want to be represented
by the Union. He actively circulated that petition and
sought signatures on it from employees After Robinson
was discharged for allegedly falsifying company records,
two charges were filed concerning his discharge. It ap-
pears that both were dismissed because there is no allega-
tion in the complaint that the discharge was unlawful.
He gave his testimony after the discharge and at a time
when it is likely that he felt that his loyalty to the Com-
pany had been rewarded with a termination notice. He
was obviously hostile toward the Company at the time
of his testimony. Robinson testified that in a number of
ways supervisors encouraged him to circulate the antiun-
ion petition and rewarded him for doing so.
15 Braun also averred that he referred to a prior conversation they had
a few weeks before In that incident two employees came into Braun's
office asking about wage increases and saying that Perkins had given
them some information on how the Company arrived at raises A few
days later Braun told Perkins that if employees had questions about
annual increases they could go to the personnel office and get the proper
advice because a couple of people had come to him with wrong informa-
tion that Perkins had given them
b The alleged statements of Braun and the grant of a
loan to Robinson
About March 23, 1978, Robinson came into Company
Manager Braun's office and said that he did not want the
Union Robinson asked what he could do and Braun re-
plied that he could not advise Robinson what he could
do but that Robinson did have the same rights as those
who were for the Union. Robinson testified that in the
conversation he asked Braun about getting up an anti-
union petition and that Braun replied by saying that he
could not tell Robinson what to do but that he was not
going to tell Robinson not to do it . Braun in his testimo-
ny denied that anything was said about a petition and
averred that he did not know anything about such a peti-
tion until he received a letter from Union Representative
Gaskill dated March 31, 1978, which stated that an out-
side technician had been observed circulating an anti-
union petition on company time and that the Union ex-
pected the same privileges to be given to union support-
ers.rs
Robinson testified that on March 27 Braun spoke to
him in the hall and asked him how he was doing on the
petition , and that he said it was coming along rather
well. He also averred that on March 30 he picked up the
petition and showed it to Braun who read it and said,
"Remember , I haven 't seen this ." Robinson testified that
sometime between April 3 and 7, 1978, Braun asked him
how much he paid for the petition; Robinson said $75;
and Braun said to pass the word around and maybe
somebody would help him with the expenses. He averred
that about April 20 he took the petition with about 116
signatures to Braun 's office and showed it to him and
Braun said that he had been working hard and handed
the petition back to him.'' The last conversation that
Robinson testified to concerning the petition was on May
11, 1978, when according to Robinson he asked for a
loan from the Company and Braun said that Robinson
had done him a favor and he would do one for Robin-
son.
Braun denied the substance of Robinson 's testimony
and averred in effect that he only had one conversation
with Robinson concerning the petition. According to
Braun, Robinson came into his office on April 7 and said
that it was going well; Braun at that time knew of the
petition and assumed that Robinson was talking about
the petition; and Braun said that he did not want to hear
about it and told Robinson to get out of the office.
I believe that Braun was a more credible witness than
Robinson . As stated above, Braun 's demeanor on the
stand made his testimony very convincing . I had reserva-
tions concerning Robinson. He was a disgruntled former
employee who had a bias against the Company. When it
suited his interest he attempted to curry favor with the
Company by voluntarily and without being solicited in-
forming the Company about the union activities of a
fellow employee. When he felt hostile toward the Corn-
16 Braun credibly testified that he called a meeting of supervisors in
which Fitzpatrick told them that worktime was for work and no one was
to work for or against the Union or circulate for or against the Union
during work hours
17 About April 24 , 1978, Robinson took the petition to the state labor
board where he was told that the petition was worthless
SEARS, ROEBUCK & CO 241
parry he testified against it He admittedly requested a
loan for transportation money for himself and his wife
when his father died and then kept the full loan even
though his wife did not go with him. His testimony con-
cerning prior salary advances and loans was so confusing
and contradictory as to indicate an attempt at obfusca-
tion. In addition, Robinson testified concerning conversa-
tions with Fitzpatrick and McPherson as described
below which were contradicted by those two witnesses
Both Fitzpatrick and McPherson appeared to be credible
witnesses. I credit Braun and I do not credit Robinson.
The Company has a policy of granting employees
salary advances and loans. The salary advances are taken
back by the Company from the following week's salary.
Loans are granted when the employee shows that he has
a legitimate reason for wanting a loan. The loans are
paid back over a longer period of time. The company
manager has authority to grant loans up to $500 but
amounts larger than that have to be cleared by a group
office
The complaint alleges that the Company rewarded an
employee (Robinson) on May 11, 1978, for his antiunion
activity by approving a loan for him. However, that alle-
gation is refuted by company records and the credible
testimony of Braun which establishes that Robinson was
treated substantially the same with regard to loans both
before and after he engaged in antiunion activity. Robin-
son had a long history of applying for salary advances
and loans with the Company. He received loans on De-
cember 8, 1976, and June 1, and July 31, 1978. He re-
ceived salary advances on March 1, May 25, and June
13, 1977, and on March 31 and April 21, 1978 Each of
the loans and salary advances were for less than $500.
The only loan that Robinson requested that was not
granted was one for $746 on July 28, 1978. On that occa-
sion Braun told Robinson that his (Braun's) top limit for
a loan was $500 but that Robinson could talk to the unit
manager. A few days later Robinson came back and said
that he had been able to obtain $400 from friends and
that he still needed $346. The $346 loan was granted on
July 31, 1978 I find that the General Counsel has not es-
tablished that Robinson was granted a loan because of
his antiunion activity.
c. The alleged remarks by Fitzpatrick and McPherson
Robinson testified that on March 21 he had a conver-
sation with Supervisor Fitzpatrick outside of Braun's
doorway He averred that Fitzpatrick said that Robinson
had "saved everybody's ass" by telling Braun about the
cards that Ward was circulating, that the Company ap-
preciated what he had done, and that the Company
would be looking closely at him for doing it Fitzpatrick
testified that he did not have any conversation with Rob-
inson concerning the Union in 1978 and he specifically
denied making the statements attributed to him by Rob-
inson I credit Fitzpatrick and I do not credit Robinson.
Robinson testified that about April 6, 1978, he had a
conversation with Supervisor McPherson in which
McPherson asked him how the petition was coming, and
said that the Company was looking for a supervisor and
it might be a good opportunity for Robinson According
to Robinson, McPherson said that the Company was
looking for people with drive, that people who wanted
the Union just wanted to gripe and ride along with ev-
eryone else; and that the Company was looking closely
at what Robinson was doing against the Union Robinson
also averred that McPherson picked up the petition,
looked over the names, and said that Robinson was
doing a real good job and should hang in there.
McPherson in his testimony denied the remarks attrib-
uted to him by Robinson McPherson testified as follows
About March 31, 1978, Braun told McPherson that Rob-
inson was spreading an antiunion petition and that it was
not to be done on company time About a week later
McPherson, who was Robinson's direct supervisor,
spoke to Robinson on the telephone when Robinson
called in from a customer's home During that conversa-
tion Robinson told McPherson that he (Robinson) had an
antiunion petition. McPherson told Robinson in sub-
stance that he could not circulate it on company time.
McPherson averred that he never discussed the Union
with Robinson other than in that phone conversation
about the petition
McPherson did have a conversation with Robinson re-
garding supervisors Robinson, who is black, complained
about there being no minority supervisors and spoke
about an NAACP investigation. They discussed which
black employees might want to become supervisors but
Robinson did not say that he was one of them I credit
McPherson and I do not credit Robinson.
Perkins testified that about March 28 or 29, 1978, he
saw Robinson circulating the antiunion petition on com-
pany premises during working time when Supervisor Jim
Williams was about 20 feet away. Robinson also testified
that for about 5 seconds he was soliciting an employee to
sign a petition while Williams was standing less than 6
feet away. Williams credibly testified in substance that he
did not observe any such incident. The General Counsel
has not established that the Company knowingly permit-
ted Robinson to circulate the antiunion petition on com-
pany time and property
9. The alleged December 1, 1978 threat to Perkins
because he appeared to testify
Company Manager Braun together with Company Of-
ficials Kristovich and Fitzpatrick, and Company Attor-
ney Grove attended the hearing on December 1, 1978.
Perkins, Hanshue, and Ward also attended that hearing
As Braun, Kristovich, Fitzpatrick, and Grove were wait-
ing for the elevator to leave the courthouse, Perkins,
Hanshue, and Ward came out of the elevator and walked
past them Braun was the last one to get on the elevator
and as he passed Perkins there was a short conversa-
tion '8 Perkins, Hanshue, and Ward all testified in sub-
stance to the following Perkins said to Braun, "Boy,
that's round one"; Braun responded, "Yes, you'll be
sorry, smart ass", Hanshue called Braun an asshole, and
Braun walked away Braun testified that as he passed
Perkins, Perkins said, "That was round one" and that he
18 Kristovich, who had walked ahead with Fitzpatrick and Grove, tes-
tified that he did not hear the conversation Fitzpatrick and Grove did
not testify concerning it
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Braun) simply replied, "I'm sorry" He averred that
nothing else was said, that he did not say, "You'll get
yours, smart ass" and that he did not hear himself re-
ferred to as an "asshole."
Braun testified at great length throughout the hearing
and I had an opportunity to observe his demeanor for a
sustained period of time. Even under the substantial pres-
sures of the trial he was completely self-possessed It was
also apparent that he is a very intelligent individual On
March 1, 1978, he was leaving a trial at which his com-
pany was being accused of unfair labor practices He was
in the presence not only of his attorney but of high rank-
ing company officials In those circumstances he would
have had to have completely lost his composure in order
to have threatened Perkins in the presence of witnesses.
It is extremely difficult to believe that this unflappable
man so lost his composure at Perkins' reference to
"round one" that he would make a damaging admission
Also if Perkins, Hanshue, and Ward are to be believed,
Braun lost his head when Perkins mentioned "round
one" but retained his composure a second later and
merely walked away when Hanshue called him an as-
shole Perkins was being considered for layoff at that
time and he was laid off 4 days later on December 5,
1978 I simply do not believe that Braun would have
given ammunition to Perkins for an unfair labor practice
charge at that time Braun impressed me as a credible
witness and Perkins, Hanshue, and Ward did not. I credit
Braun and I do not credit Perkins, Hanshue, or Ward.
In sum, I find that the General Counsel has not estab-
lished by a preponderance of the credible evidence that
the Company violated the Act as alleged in paragraphs
8(a) through (1) of the complaint as amended in Cases
16-CA-7941 and 16-CA-8047, or in paragraph 7 of the
complaint in Case 16-CA-8212
C. The Communications Committee
As is set forth more fully above, on February 12, 1978,
Union Representative Gaskill met with 5 or 6 employees
at a meeting at which it was decided that some 10 em-
ployees would make discreet inquiries among the Com-
pany's employees to ascertain whether they were inter-
ested in the Union During the week of February 20,
1978, the Company's employee relations staff assistant
Fitzpatrick, who is stationed at the Dallas headquarters,
held a series of meetings with employees of the Central
Service Center at which he discussed various employee
benefits. At the first few meetings he mentioned the pos-
sibility of setting up a communications committee.
During that week he discussed the matter with Company
Manager Braun and Braun made the decision to institute
such a committee At the remaining meetings with em-
ployees, Fitzpatrick told them that the communications
committee would be established
Both Braun and Fitzpatrick testified that at the time
the decision to form the communications committee was
made they did not have any knowledge that there was
union activity at the Central Service Center 19 As of the
19 The Union did not hold its "kickoff' committee meeting until mid-
March 1978 and it was only after that time that employees solicited au-
thorization cards from other employees Braun testified that he was un-
date on which the decision was made to form the com-
munications committee, the Union's organizational activi-
ties were'still secretive and were intentionally being kept
from observation by the Company. Those activities were
not of such a nature as to give rise to an inference that
the Company gained knowledge of them 20 The General
Counsel attempted to establish knowledge of union activ-
ity through the testimony of employee Donald Pruitt,
who testified to the following incidents In November or
December 1977 employee Skala was talking to several
technicians in the presence of Hines2 i and Pruitt in a
coffeeshop. In the context of speaking about problems
with vacations and holidays, Skala said that if they got a
union in there they would not have to put up with what
they were having to go through Hines said something to
the effect that that was the way it was. During the week
of February 13, 1978, Pruitt had a conversation with
Hines in a restaurant Hines said that Braun had request-
ed him to get some of the technicians and find out about
some problems they had concerning vacations and days
off. They discussed those problems Then Pruitt asked
Hines what the rumors were that they heard about a
union and Hines replied that it was probably something
that Skala had stirred up but it was nothing to worry
about
I am somewhat skeptical concerning Pruitt's testimo-
ny. Pruitt was one of the early union activists and his
name was mentioned as a union adherent in Union Rep-
resentative Gaskill's telegram to Braun of March 20,
1978. It is unlikely that Pruitt would have asked a super-
visor about the status of the Union during the week of
February 13, which was shortly after Gaskill had told
the union supporters to make discreet inquiries of other
employees. Hines took the witness stand but did not
deny Pruitt's assertions and I therefore credit Pruitt's tes-
timony However, Pruitt's testimony does not establish
that Hines, Braun, or Fitzpatrick knew that there was an
active union campaign at the time the decision was made
to form the communications committee. At best it shows
that there had been some generalized talk about a union
for some time and that Hines did not take such talk seri-
ously 22
Fitzpatrick testified that he had no knowledge of any
union activity at the time the communications committee
was established and in effect that the communications
committee could not have been set up as an alternative
aware of union activity until March 18, 1978, when employee Robinson
informed Supervisor Jim Jenson that Larry Ward had been out getting
authorization cards signed Fitzpatrick testified that he had no knowledge
of union activity until after that date
20 Cf K & B Mounting, Inc, 248 NLRB 570 (1980), Maniac Corp, 231
NLRB 858 fn 2 (1977) There was no testimony as to the number of em-
ployees employed by the Company The Charging Party in the original
charge states that the number was 140
21 Hines is an admitted supervisor
22 Haggard testified that in late February 1978 Fitzpatrick said some-
thing to the effect that a grievance committee would do as well as a
union That incident is discussed above in sec B,1, and as is set forth
there I credit Fitzpatrick's denial that he made that statement Perkins
testified that at a March 20 meeting Fitzpatrick, in the context of speak-
ing about the Union, said that he realized there was a communications
breakdown and that there might be a possible solution in the formation of
the communications committee I do not credit Perkins
SEARS, ROEBUCK & CO
to union organization because the Union was not in the
picture The General Counsel spent a great deal of time
examining Fitzpatrick in an attempt to get an admission
that a communications committee can be a substitute for
unionization Fitzpatrick testified that to the extent that a
communications committee opens better channels of
communication and brings management's attention to
problems the employees have there is less need for a
labor organization. He averred in substance that the
communications committee could make union representa-
tion less attractive to employees but only in the same
sense that a good benefit and compensation program
makes a union less attractive. His testimony is clear that
the communications committee was not keyed to the
Union's activity because he did not know of that activi-
ty. The balance of his testimony, when read as a whole,
indicates that he was answering questions concerning
theoretical possibilities rather than the actual situation at
the Central Service Center. A nonunion employer does
not per se violate the Act if it provides good wages and
has effective communications with its employees, even
though it hopes that its employment policies will lead to
a satisfied work force that will not be interested in
unionization. For an employer to violate the Act, there
has to be a nexus between particular union activity and
employer action to interfere with that activity through
the manipulation of wages or similar matters. In the in-
stant case if Braun and Fitzpatrick are credited with
regard to their denial of knowledge of any union activi-
ty, the General Counsel will have failed to have estab-
lished a nexus between the union activity and the forma-
tion of the communications committee.
The timing of the decision to form the communica-
tions committee was certainly suspect It occurred about
a week after Gaskill sent employees to make discreet in-
quiry concerning the union interest of other employees.
The Company contends in substance that the timing was
purely coincidental Fitzpatrick testified that he came to
the Central Service Center at the request of local man-
agement because there had been a number of recent
changes in the profit-sharing and pension plan and that
employees had been asking questions about those matters
that local management thought he should answer He
averred that during those meetings employees asked him
a number of questions relating to local matters such as
problems between parts department and outside service
technicians and that he decided that a communications
committee could be useful. He told Braun that the em-
ployees did not understand each other's jobs and that at
other facilities they had communications committees so
that there would be more understanding when problems
arose The Company already had communications com-
mittees established in Denver, Colorado; Lincoln, Ne-
braska; Tulsa, Oklahoma; and Dallas, Texas The one in
Tulsa had recently been established. Braun decided to set
up such a communications committee and contacted a
number of other facilities where a committee existed to
obtain additional information.
Considering all the factors set forth above, I conclude
that the testimony of Brau and Fitzpatrick to the effect
that they did not know of any union activity at the time
the decision was made to establish the communication
243
committee was credible. I further find that the establish-
ment of the communications committee by the Company
was not intended to interfere with the union activities of
the Company's employees.23
Still left for consideration is the question of whether or
not the communications committee was a labor organiza-
tion within the meaning of the Act. It was created by the
Company for company purposes and if it was a labor or-
ganization then the Company violated Section 8(a)(2) of
the Act by dominating it. The structure, function, and
activities of the communications committee must there-
fore be considered
There are 10 different departments at the Central
Service Center. Braun set up the communications com-
mittee so that one employee from each of the depart-
ments would meet with him at two successive communi-
cations committee meetings. A rotating system was used
so that each employee in each department would have
an opportunity to sit in on two such meetings The em-
ployee members of the communications committee were
paid by the Company for the time they spent at the
meetings.
Fitzpatrick testified that the communications commit-
tee was established to help resolve intrahouse problems
such as difficulties which arose between the parts depart-
ment and outside technicians. Kristovich testified that
the communications committee was a vehicle to discuss
such matters as uniforms, tools, and equipment Braun
testified that the communications committee was de-
signed to help employees understand each other's jobs so
that there would be more understanding when a problem
arose.
The first communications committee was held on May
5, 1978. Six additional meetings were held between then
and March 16, 1979. Notes of those meetings were taken
by a clerk from the personnel office Those notes were
put in question and answer form and posted on the em-
ployee bulletin board. The notes of those meetings, to-
gether with the credible testimony of Braun, tend to sup-
port the testimony of Fitzpatrick, Kristovich, and Braun
concerning the purpose of the meetings Braun credibly
testified that at some of the meetings employees raised
matters relating to wages and benefits and that he con-
sistently refused to discuss such matters.24 Braun credi-
bly averred that there were discussions at the meetings
of such matters as problems related to technicians having
difficulty getting the right kind of parts and problems re-
23 The complaint does not specifically allege that the formation of the
committee was an interference with employee rights However, that
matter has been fully litigated and I have therefore considered it The test
of interference with 8(a)(1) rights turns on whether a company's conduct
reasonably tends to interfere with those rights Generally, the question of
a company's motive is immaterial Hanes Hosiery, Inc, 219 NLRB 338
(1975) However, with regard to changes in such matters as conditions of
employment an employer has a legal duty to proceed as it would have
done had the union not been in the picture McCormick Longmeadow
Stone Co, 158 NLRB 1237, 1246 (1966) As the Company made the deci-
sion with regard to the communications committee at a time when it did
not know of the Union's organizational activity, the Company must have
made that decision as if the Union had not been in the picture
24 Perkins and Ward testified concerning some of the discussions at
communications committee meetings I do not believe their testimony
was reliable and I do not credit it where it conflicts with that of Braun
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lating to the leaving of parts in such a way as to block
entrance to an office. The record of this case contains
voluminous notes of what occurred at the meetings A
typical notation is
16-CA-8047 that allege that the Company violated Sec-
tion 8 (a)(2) of the Act be dismissed
D The Evaluation of Perkins and His Layoff
Problem- Technician should have training on the
new lines of mdse Very embarrassing to tech to go
into a customer's home and not know anything on
the new line of mdse.
Solution Representatives are now beginning to
come in and familiarize techs with the new lines of
mdse.
Section 2(5) of the Act defines "labor organization" as
"any organization of any kind, or any agency or employ-
ee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or
in part, of dealing with employers concerning griev-
ances, labor disputes, wages, rates of pay, hours of em-
ployment, or conditions of work." In NLRB v. Cabot
Carbon Co., 360 U.S. 203 (1959), the Supreme Court
found that the term "dealing with" encompassed more
than the usual concept of collective bargaining. Howev-
er, in applying the Cabot Carbon decision the Board has
held that not all grievance committees or communica-
tions committees that deal with employers are labor or-
ganizations within the meaning of the Act In John As-
cuaga's Nugget, 230 NLRB 275, 276 (1977), the Board
held that an employee's council did not "deal with" man-
agement but rather performed a function for manage-
ment in resolving employee grievances In Mercy-Memo-
rial Hospital, the Board held that an employee's council
did not "deal with" management but rather performed a
function for management in resolving employee griev-
ances. In Mercy-Memorial Hospital Corp, 231 NLRB
1108 (1977), the Board held that a grievance committee
was not a labor organization when it was created to give
employees a voice in resolving the grievances of their
fellow employees at the third level of a grievance proce-
dure oy deciding the validity of the employee's com-
plaints and the appropriateness of the disciplinary reac-
tion.
In the instant case the communications committee dis-
cussed matters related to work performance Many of
those matters could have a direct impact on working
conditions. The ease with which a technician could
obtain parts could affect his working condition as could
the question of training technicians However, the evi-
dence in the record establishes that the communications
committee was used as a management tool that was in-
tended to increase company efficiency The communica-
tions committee was not an employee representative or
advocate The committee did not deal with the Company
on behalf of the employees. The employees on the com-
mittee were not 'selected by their fellow employees and
they did not represent their fellow employees. All the
employees, on a rotation basis, were to participate in
meetings with management to give input in order to help
solve management problems. I therefore find that the
communications committee was not a labor organization
within the meaning of the Act and I recommend that
those parts of the complaint in Case 16-CA-7041 and
1. Perkins' union activity
Earl Perkins was active on the Union's organizational
committee since late February 1978. He solicited authori-
zation cards for the Union, openly distributed campaign
literature for the Union, and testified on behalf of the
Union in the representation case and the unfair labor
practice cases. He was one of the four employees who
were identified as union adherents in Union Representa-
tive Gaskill's March 30, 1978 telegram to Company
Manager Braun The Company acknowledges that it
knew since March 20, 1978, that Perkins was an active
union adherent.
2. Perkins' work history
Perkins was first hired in August 1971. After some
time he left the Company's employ and then resumed
employment in February 1973 when he became a lawn-
mower repair technician. Thereafter he worked in the
Company's gasoline engine shop and for some periods of
time in a mini service center Sometime between January
and early February 1978 he was an acting supervisor. He
received some limited formal training from the Company
but he signed up for several courses that he never com-
pleted. He occasionally accompanied outside technicians
but his skills in their type of work was limited and his
primary function was to help move things. He received a
number of pay raises during the course of his employ-
ment. On some occasions he received praise for his work
and on others criticism but the Company does not con-
tend that on an overall basis he was other than a satisfac-
tory employee.
In an affidavit he gave to the General Counsel, Per-
kins averred that the only time he received any discipli-
nary action was on August 3, 1978, when he was given a
written reprimand. While on the witness stand he testi-
fied that he never received a deficiency memo prior to
that date. Both the affidavit and the testimony are palpa-
bly untrue On March 26, 1975, he received a memo con-
cerning his being tardy eight times in January and Febru-
ary and warning him that such conduct could lead to
dismissal. About December 20, 1976, he received a
memorandum of deficiency interview relating to an inci-
dent in which he did not return to work after leaving for
lunch and did not notify the Company. On December 11,
1976, or 1977,25 he received a timecard violation for
checking in late or leaving early without writing on his
timecard. On February 5, 1977, he received another
timecard violation for the same offense
On August 4, 1978, Perkins received a memorandum
of deficiency interview for causing a disturbance
throughout the department and upsetting the morale of
the employees as well as production. That incident re-
25 The company records concerning this incident did not indicate the
year but Perkins testified that the incident occurred while he was at the
mini service center which would be 1976 or 1977
SEARS, ROEBUCK & CO
lates to Perkins' statement to employees that Braun had
told him to leave his "nigger girlfriend" alone It is dis-
cussed in detail in section B,7, above As found there, the
deficiency memo was not related to any protected activi-
ty of Perkins.
3. The evaluation of Perkins on August 31, 1978
The complaint in Case 16-CA-8218 alleges that in
August 1978 the Company issued an unfavorable work
performance evaluation to Perkins because of his union
activity.
The Company gives an annual employee review to its
employees It uses a form which lists seven separate per-
formance elements. A numerical rating system is used
which ranges from 1 for poor performance to 7 for out-
standing performance, except for the category of adher-
ence to company policies where the rating system goes
from 1 through 4 (meets requirements of the job). In ad-
dition, written comments are made on the form. Compa-
ny records show employee reviews were given to Per-
kins in August 1972, August 1973, May 1975, August
1976, August 1977, and August 1978. A different num-
bering system was used prior to 1976. Five rating items
were listed which were production, work quality, per-
sonal presentation, relations with others and dependabil-
ity. The numbering system went from I for outstanding
to 5 for poor In 1972 Perkins was rated 3 which was
average on all rating categories His supervisor made the
comment on the report that Perkins had done a very
good job and that the supervisor expected to give him
more responsibility as time went on. The report for 1973
again listed Perkins as 3-average in all categories, the
comment by his supervisor was that Perkins had been
taking care of quick service at the stores in the summer
as a gas engine technician and they had talked about pro-
duction and other phases of service The 1975 review did
not list any numbers to rate Perkins and the supervisor's
comment was that Perkins was working quick service on
mowers and had done a good job but needed improve-
ment on paper work. The 1976 rating was on the new
form. Perkins was given a 5 (partially exceeds require-
ments of the job) on job knowledge, quality of work,
public contact/service to others, working relations, and
response to work demands. He was given a 6 (outstand-
ing performance) on productivity and a 3 (partially meets
requirements of job) on adherence to company policies.
The comments on all of the elements other than adher-
ence to company policies were laudatory With regard to
adherence to company policies, the comment was made
that Perkins was lacking in that area but that after a little
talk he was about average again and improving. The
overall comment by the supervisor on the evaluation was
that the supervisor felt that Perkins had a lot of hidden
potential and that he should take more training courses
and show more initiative in other matters In the 1977
review Perkins dropped from a "6" to a "5" on produc-
tivity and was given the same ratings he had received in
1976 on all the other performance elements The com-
ments on the performance elements were all favorable.
The supervisor's overall comment was that Perkins had a
lot of good ideas but somehow lacked the initiative to
put them in action.
245
For a substantial time in 1978 Perkins worked in a
mini service unit and he was reviewed by Supervisor
Lock. That was the second occasion on which Perkins
had been reviewed by Lock All the other reviews had
been given by different supervisors The first review by
Lock was in 1973 and as stated above Lock rated Per-
kins average on all of the rating categories and comment-
ed that he had spoken to Perkins about production and
other phases of service. The 1978 rating was quite con-
sistent with Lock's opinion of Perkins as expressed in the
1973 review.
Lock rated Perkins with a 4 (meets requirements of
the job),26 on job knowledge, quality of work, and
public contact/service to others With regard to job
knowledge Lock commented that Perkins had the neces-
sary knowledge to repair gasoline equipment but that he
needed training in other areas by way of cross-training.
With regard to quality of work Lock commented that
Perkins could improve the quality by concentrating.
With regard to public contact Lock noted that Perkins
needed to apply himself to a greater degree.
Lock rated Perkins with a 3 (partially meets require-
ments of the job)27 on productivity and response to
work demands. With regard to productivity Lock noted
that Perkins needed to improve to bring out the potential
that he was capable of. With regard to response to work
demands Lock noted that Perkins had the capability to
handle the area but needed to apply himself
Lock rated Perkins 2 (below requirement of the job)28
on working relations and adherence to policies. With
regard to working relations Lock noted that Perkins
seemed to have problems and had to improve his atten-
tion and concentration to bring him to potential. With
regard to adherence to company policies Lock noted
that Perkins needed to improve in various areas. He
mentioned attendance, breaks, and tardiness.
Perkins discussed the employee evaluation with Lock
on August 31, 1978. Lock told Perkins that the evalua-
tion was made before his transfer from the mini service
department in July 1978 and that if Perkins felt the eval-
uation was not accurate he could discuss it with Braun.
Perkins said that he felt that he was graded too low on
productivity and response to work demands. Lock sug-
gested he talk to Braun. That afternoon Perkins com-
plained to Braun about the evaluation Braun reviewed
the evaluation with him line by line, With regard to job
knowledge and quality of work Perkins had no com-
plaint with the rating. Perkins said that he was not satis-
fied with the 3 rating for productivity and he pointed out
that supervisors gave him various jobs to do. Braun said
that he thought Perkins had a point and he changed the
rating from 3 to 4. Perkins appeared satisfied with that.
26 The explanation of this comment on the form is "consistently satis-
factory, acceptable, adequate on all aspects of the element No particular
problems on the element, generally no cause for concern, though im-
provement is desirable "
27 The explanation of 3 was generally satisfactory, but sometimes
below, below job requirements on some , but not most, aspects of the ele-
ment, some slight improvement is necessary to meet job requirements
28 The explanation states generally less than satisfactory, below job re-
quirements on most aspects of the element, considerable improvement is
necessary to meet job requirements
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perkins was also satisfied on the rating for public
contact/service to others. The next item discussed was
working relations. They discussed the fact that Perkins
complained in front of others about management's deci-
sions and Braun said that if Perkins did not agree with
management decisions that he should complain to him
(Braun) and not to disturb the whole group. They went
on to response to work demand and Perkins said in effect
that it was not fair. Braun changed the rating from 3 to
4 The last item discussed was adherence to company
policies Braun reminded Perkins of his attendance sheets
and his long breaks and Perkins agreed with the rating.
These findings are based on the credited testimony of
Braun. Where the testimony of Perkins conflicts with
that of Braun I do not credit Perkins. Perkins testified
that in discussing adherence to company policy Braun
said that it was pretty obvious that Perkins did not agree
to company policy, that he had been handbilling the
place, supporting outside interference and "stuff like
that." Later in his testimony Perkins testified that Braun
also spoke about Perkins' handbilling, having people sign
union cards and testifying at the representation hearing
as examples of Perkins not showing loyalty to the Com-
pany. Yet further in his testimony he added that Braun
said that Perkins and the three men on the telegram were
not adhering with company policy because they ex-
pressed support for an outside party This interview oc-
curred 2-1/2 months after the original charge in Case
16-CA-7941 was filed. Braun knew that Perkins was a
key union supporter because Perkins had been named in
Gaskill's telegram. He also must have known that Per-
kins would likely be a key witness against the Company
I find Perkins' testimony to be totally incredible. I credit
Braun 's version of the conversation.
The review form contains a space for employee com-
ments. In that space Perkins wrote and signed the fol-
lowing comment: "When first briefed on these ratings, I
did not agree with some of them but was given a fair op-
portunity to discuss these and I feel that these are fair."
Perkins was an employee with a somewhat mixed em-
ployment record. In 1973, prior to any union activity, his
supervisor gave him what can only be described as a me-
diocre rating . He was next rated by the same supervisor
in 1978 when he worked for a long period under that su-
pervisor. Again the supervisor gave him a mediocre
rating. Perkins complained to Manager Braun about the
rating and Braun raised the ratings in two major catego-
ries. Braun appeared to be giving Perkins the benefit of
any doubt rather than attempting to punish him for his
known union activity. At that time Perkins expressed sat-
isfaction with the final rating. Considering all of the fac-
tors set forth above I find that the General Counsel has
not established by a preponderance of the credible evi-
dence that the Company gave Perkins a poor rating be-
cause of his union activities and I recommend that that
allegation of the complaint be dismissed.
4. The layoff of Perkins
a. Facts
Perkins was laid off on December 5, 1978. On March
19, 1979, he was recalled to the same job with the same
rate of pay and benefits. The complaint in Case 16-CA-
8218 alleges that Perkins was laid off because of his
union activity and because he gave testimony under the
Act.29 The Company contends that a series of layoffs
were required by business considerations and that Per-
kins was selected because he had the lowest seniority in
the gasoline engine shop. There is no contention that
Perkins' work record or the evaluations of his work had
anything to do with the layoff.
The Central Service Center is in the business of repair-
ing appliances which have been sold by the company
stores. During 1977 the stores had engaged in a very ex-
tensive promotional program that resulted in a large sales
volume with an extremely poor profit picture. The
system was changed in early 1978 but it took a number
of months to implement the change and by July 1978 the
Company was experiencing serious sales decreases. As
early as February 1978 Company Group Operating Man-
ager William Martin met with Braun and discussed the
need to cut expenses and save payroll costs. By July
1978 sales were down almost 9 percent relative to the
same month the previous year at the three stores whose
products the Central Service Center worked on. In
August the sales decrease was 11 percent, in September
14 percent, October 18 percent, November 22 percent,
December 21-1/2 percent, and January 1979 17.28 per-
cent in those stores
In mid-October 1978 Martin received a poor profit
report concerning the service department for the prior
month. He met with Braun on October 18 and reviewed
the previous month's performance and expenses. He told
Braun that Braun was going to have to cut expenses im-
mediately and that a minimum of $10,000 to $12,000 a
month was going to have to be cut from his Central
Service payroll so that they could continue the operation
without going too much into the red At the same time
that he was asking Braun to reduce payroll, payroll was
being reduced in the retail stores. A reduction in force
was put into effect throughout the Company's entire op-
eration. The procedure was discussed with Braun begin-
ning about February 1978 and at least twice a week
during March, April, and May 1978 30
By late July 1978 Braun began to take action to cut
costs. At that time there was a mint service unit located
at the Sequoia store where Perkins was repairing lawn-
mowers on a full-time basis. Braun decided that the same
job could be done with a part-time person and he
brought Perkins back to the Central Service Center. An
electronic repairman who worked at the mini service
unit retired and that repairman was not replaced. By the
first part of October Braun knew that he had to take fur-
ther action to reduce expenses and the heaviest expense
the Company had was payroll. He adjusted his work
staff and reassigned a number of employees who had
29 Perkins was present in the courtroom and was ready to give testi-
mony at the hearing on November 30 and December 1, 1978 He did not
actually take the stand on those days He did testify at the representation
case hearing in Case 16-RC-7707 on April 25, 1978
10 Reductions in force were not common at the Central Service
Center However, there was a substantial reduction in force at the Cen-
tral Service Center in 1977 before Braun became manager At that time
14 employees were laid off from the Central Service Center
SEARS, ROEBUCK & CO.
multiple skills Two service technicians were placed in
the installation department. Two other employees who
had been in the drapery installation department were re-
assigned to that department. By the latter part of 1978
the decline in the retail store sales was seriously affecting
the service business, as the major portion of the service
income came from the maintenance of service agree-
ments. In mid-October when Martin instructed him to
cut payroll costs, Braun looked over his entire operation
to see where the cut would least hurt the business for the
winter and spring months He cut back one clerical in
the maintenance agreement office One employee was
laid off from the dispatching area An employee was cut
back who worked on heating or furnaces and one em-
ployee from the outside electronics operation. One air-
conditioning employee was laid off. One of the two tech-
nicians in the small appliance repair shop was laid off.
He reviewed the gasoline engine shop and decided that
they could do without two full-time individuals as they
were going into the light season for that type of repair.
With all of the cutbacks he reviewed the service dates of
the employees and the job duties of each individual. He
considered seniority and whether an employee had skills
that could be shifted to a different department. The lay-
offs were on a continuing basis. Six employees were laid
off on October 31, 1978. One was laid off November 6,
one on November 14, and the last on December 5, 1978.
Perkins was the one that was laid off on December 5.
About November 20, 1978, Martin told Braun to see
who else he could do without for the winter. Braun
looked over his total operation and decided that they
still had too many full -time individuals in the gasoline
engine shop. Two employees had already been laid off
from the gasoline engine shop . Perkins had no skills that
were needed in any other department at that time and he
was the least senior employee remaining in the gasoline
engine shop. Perkins had more than 5 years' seniority
and in accordance with company policy Braun had to
obtain clearance from headquarters to lay off any em-
ployee with that much seniority . Braun sought and ob-
tained that clearance and Perkins was laid off on Decem-
ber 5, 1978.31
Perkins was on layoff status from December 5, 1978,
to March 19, 1979. During that time the Company did
not hire any full-time employees in the gasoline engine
shop even though some employees from different depart-
ments were occasionally assigned there on a short-term
basis. Three employees (Hart , Hague, and Hopkins) all of
whom had less seniority than Perkins were reassigned
into the gasoline engine shop on February 26, 1979,
which was about 3 weeks before Perkins was recalled on
March 19, 1979. Employees Hart, Hague, and Hopkins
were moved into the gasoline engine shop on a part-time
basis in July 1978. All had less seniority than Perkins but
they were all part - time employees. None of them worked
in that shop between October 14, 1978, and February 26,
1979, when they were transferred back into the shop.
s There was work to be done in the gasoline engine shop at the time
Perkins was laid off and there is no contention that the layoff was caused
by a lack of work at such The Company 's contention is that a further
layoff in that shop was deemed to be most appropriate in view of the
Company's overall operation
247
Braun credibly testified that the situation changed
about the last week in February with regard to the lawn-
mower business because there was a break in the weather
and a number of lawnmowers started coming in from dif-
ferent stores He also credibly averred that he called
part-timers to work and then offered Perkins his job
back
Perkins was not given any advance notice of his layoff
but that was standard operating procedure for the Com-
pany. None of the laid-off employees received advance
notice. At the time of his layoff Perkins was told by
Braun that the layoff was caused by a reduction in force
b. Conclusions
As is more fully set forth in section D,1, above, Per-
kins was a key union supporter. The Company knew of
Perkins' union sympathies as early as March 20, 1978. On
December 5, 1978, some 8-1/2 months after the Compa-
ny obtained knowledge of Perkins ' union sympathies,
Perkins was laid off. He remained on layoff status for
about 3-1/2 months and he was then recalled.
The Company did not want its employees to be orga-
nized and it engaged in a campaign to dissuade them
from joining the Union. However, the Company had a
right to express its views and arguments concerning
unionization and under Section 8(c) of the Act such ex-
pressions cannot constitute or be evidence of an unfair
labor practice if they contain no threat of reprisal or
force or promise of benefit. The many efforts of the
General Counsel to prove that the company expressions
did contain threats of reprisal or force or promise of ben-
efit have fallen short of the mark as is set forth in detail
above. The General Counsel has not established that the
Company harbored the type of union animus that would
make it reasonable to believe that it was motivated to get
rid of union adherents. Moreover, the General Counsel's
case must be considered in the light of the Company's
defense The Company has established by credible evi-
dence that economic circumstances required it to engage
in a substantial reduction in force, that Perkins was one
of a number of employees caught up in that reduction of
force, that Perkins was the least senior employee in his
department ; that during that time of retrenchment Per-
kins' skills were not needed in any other department;
and, in sum, that the layoff of Perkins was related to or-
dinary business considerations rather than to his union
activity or his giving of testimony. I find that Perkins'
layoff was not causally connected to his union activity or
to the fact that he gave testimony under the Act and I
recommend that those allegations of the complaint be
dismissed.
E The Demotion of Shirley Seger
1. Background
The complaint in Case 16-CA-8382 alleges that Shir-
ley Seger was demoted and reduced in pay because of
her union activity and that she was coercively interro-
gated by Supervisor McPherson The Company denies
that the interrogation took place . It contends that Seger
had a long history of abusing air time in her capacity as
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
radio dispatcher and that the straw that broke the
camel's back and caused the demotion was her use of an
unauthorized code on the radio
Seger was employed by the Company on August 16,
1977, as a parts clerk. She remained in the parts depart-
ment until October 16, 1978, when she was transferred to
the radio dispatch office where she was assigned the
duty of talking to customers on the telephone and filling
in for the head dispatcher on the radio communication
with outside technicians Seger was regularly on the
radio one full day each week and about 1-1/2 hours each
day. Seger was given regular raises both while she was
in the parts department and while she worked in the
radio dispatch office. However, she had some difficulties
with both jobs. On August 29, 1978, while she was
working in the parts department she was given a memo-
randum of deficiency interview for disrupting the work
of others. She was told in the memorandum that she was
not to assume the duties of a supervisor or take correc-
tive action against fellow employees and that she had to
realize that the only job assignment she had was to be
concerned about her own assignment. She also was told
that improvement would have to be made or she would
no longer remain a company employee. Later her work
improved and she was taken off the deficiency memo
In October 1978 Assistant Service Manager Jenson
spoke to Seger about a job as a caller on the newly es-
tablished radio operation. He considered her for the job
because she did a good mechanical job in the parts de-
partment even though she had problems with her fellow
employees. When Jenson offered her the job he told her
that if she took it she would have to behave herself and
that if she had problems with other employees she would
have to come to supervisors about them.
After Seger assumed her new duties in the radio dis-
patch office she received both praise and criticism from
supervisors She received a number of pay raises. She
was told that she had a very good speaking voice for the
radio. However, she continually laughed and joked on
the radio and she was constantly criticized by her super-
visors about her misuse of air time. Braun spoke to her
about such matters about 20 times and other supervisors
also criticized her about such matters. Company Office
Manager Terry Brennen credibly testified that on 10 or
15 separate occasions he had conversations with Seger
between November 1978 and March 1, 1979, in which he
complained about her excessive language on the radio,
unprofessional transmission of jokes, failure to give sup-
port to the head dispatcher, failure to clock order cards
properly, failure to properly maintain logs of break and
lunch hours, and the general disorderly atmosphere in
the dispatch office. He further credibly averred that he
told Manager Braun that he had counseled Seger about
such matters. Some of those criticisms were put in writ-
ing and placed in her personnel file
On February 12 Braun placed this note in Seger's per-
sonnel file-
Talked with Shirley about professionalism on the
radio and following outlined procedure. Too much
air time and it so had become part of the problem
instead of controlling the problem Laughing on the
radio-joking on radio and background noise.
During the week of February 19, 1979, Braun's assist-
ant Jenson placed this memo in Seger's personnel file:
I've have [sic] talked to Shirley numerous times for
her conduct on the radio, i.e., excessive laughing,
using unauthorized verbalizing, not keeping the
radio time free, letting the tecks have too much
leeway on the radio, not keeping the tecks busy
Shirley has been talked to her about tardiness and
absenteeism She has also been talked to about the
cleanliness of her area, also the organization of the
dispatch function.
On February 23 Braun placed this note in Seger's per-
sonnel file.
Talked with Shirley about what was said to a cus-
tomer about a tech being in trouble. This was not
professional in anyway and was none of the custom-
er's business. I again reiterated to Shirley to do her
job as instructed-nothing more & nothing less.
All these incidents took place before Seger signed the
union card.
2. Seger's union activity, company knowledge, and
the alleged interrogation
On March 20, 1978, Seger was approached by an em-
ployee to sign a union authorization card. She refused to
sign it and she made a point of telling various supervisors
that she was against the Union. Later she changed her
mind about the Union and on February 25, 1979, she
signed a union authorization card
On the evening of February 28, 1979, technician
Johnny Frost told Supervisor McPherson that Seger had
joined the Union and that Seger was using a secret code
"Sylvester" on the radio to tell technicians that they
were to call her on the telephone About 7:45 a.m. the
following day, March 1, 1979, McPherson went to
Braun 's office and informed him of what the technician
had said McPherson left Braun's office about 8:05 a.m.
and at that time Braun's assistant Jenson came into the
office. Braun told Jenson to check into the matter of the
use of an unauthorized code and he asked Jenson to have
Seger come to his office. Jenson left about 8:15 a.m. and
a few moments later Seger came into Braun 's office. As
is set forth in more detail below they discussed the use of
the unauthorized code
The above findings are based on the credited testimo-
ny of Braun, Jenson, and McPherson. Seger testified that
the conversation with Braun occurred in the afternoon of
March 1 after she told Supervisors Bradbury and
McPherson that she had signed a union card. About 10
a.m. on March 1, 1979, Seger went into Supervisor Brad-
bury's office and told him that she wanted him to know
that she had signed a union card because it might cause
trouble. Bradbury told her to follow her own beliefs and
that he was not permitted to discuss it with her. Seger
testified that between noon and 2 p.m. on that day she
SEARS, ROEBUCK & CO
went into Supervisor McPherson's office and told him
that she had signed a union card and that she had decid-
ed to give full support to the Union. She averred that
McPherson asked her why she signed a union card and
also asked her what she thought the Union could do for
her 32 According to her testimony she replied that she
felt the Company was discriminating against certain
people who supported the Union and that she could not
stand behind that. McPherson, in his testimony, acknowl-
edged that Seger came into his office and told him that
she wanted to say that she had joined the Union He
averred that he responded that whatever she had to do
was her business and it was none of his business. He spe-
cifically denied asking her why she thought she needed a
union or asking her what a union could do for her. I do
not believe that Seger was a reliable witness and I credit
McPherson I believe that she reversed the order of the
meetings in order to make her case more plausible and
that her testimony in that regard shed substantial doubt
on her veracity in general She knew that the Company
had been charged with violations of the Act and she
claimed to have believed that the Company was discrimi-
nating against employees because of union activity How-
ever, she asserts that she volunteered to two supervisors
the fact that she was a union adherent. Her testimony
would indicate that she told the two supervisors about
her union activity and shortly thereafter Braun called her
into his office and talked about the unauthorized code. I
believe what actually happened was that Braun called
her in and told her about the code, that she was afraid
that she would lose her job because of that, and that she
then went out and told supervisors about her union ac-
tivity in order to create the impression that the knowl-
edge of her union activity was the reason that Braun
called her into the office. In fact there was no need for
Seger to falsify her testimony in order to establish that
Braun knew about her union activity before he called
her into the office on March 1, 1979. Braun acknowl-
edged on the stand that he was informed of her union
activity before 8 am on March 1, and that was before
he called her into the office In view of that admission
Braun would have no reason to falsify the chronology.
However, Seger could not have known that at the time
she testified, and I believe she falsified the chronology to
make sure that company knowledge was established In
view of that false testimony I do not think that Seger
was a reliable witness and I credit McPherson's version
of his conversation with Seger. I therefore recommend
that the allegation of the complaint relating to the inter-
rogation of Seger be dismissed.
3. The radio dispatch system
Before November 1978 the Company dispatched its
outside service technicians by use of the telephone The
first service order that a technician was to make was
given to him the night before After making his first call
the technician would telephone into the dispatch office
32 It is noted that Seger referred to the March 1, 1979 conversation in
an affidavit she gave to the General Counsel but there is no mention in
that affidavit of McPherson's asking her why she signed a card or what
the Union could do for her
249
for further assignments . The first or second week of No-
vember 1978 the Company instituted a radio dispatch
system Ordinarily the Federal Communications Commis-
sion only grants one system for such radio dispatch The
Company anticipated a high level of use of the radio dis-
patch and therefore applied to the FCC for two separate
systems . In order to justify the use of the second system
the Company had to prove to the FCC through usage
time studies that one system would be over utilized and
that a second system was needed. The Company's appli-
cation was granted and two separate systems were au-
thorized and put into operation The FCC monitors the
use of the systems and if it were ascertained that the
Company was using air time needlessly or for nonbusi-
ness matters the conclusion could be reached that the
second system was not needed.
The Company has a list of codes that are to be used
by the dispatchers to save airtime For example, when a
technician calls in to the dispatch office on the radio and
says "ten-thirty" the dispatcher knows that the techni-
cian is asking for his next work call and gives him the
necessary information. All of the people involved have
been instructed in the use of the codes and a list of the
codes that are to be used are stapled above the dispatch
microphone. The dispatchers and the technicians were
all instructed that no telephone communications were to
be had with the technicians unless the technicians had to
talk to their supervisors. The telephone is used to call
customers before the technician goes to the customer's
home and if the telephone were used by the technicians
it would limit the capacity of the Company to call out
on the telephone to the customers. The radio is used in
communications between the dispatchers and the techni-
cians. When employees were being trained in the use of
the radio they were instructed that the authorized codes
were to be used and that nothing was to be added or de-
leted. The use of unknown terms simply confused
people.
Company supervisors closely monitored the use of the
radio. Braun kept a radio in both his office and his car,
and the office radio was generally left on Braun often
cut into the radio himself and told dispatchers or techni-
cians to watch their air time. Part of Supervisor McPher-
son's job was to monitor the conversations between the
dispatchers and the technicians and it was his responsibil-
ity to see to it that there was no misuse of air time
4. Seger's use of an unauthorized code and her
demotion
Sometime after Seger began to work in the dispatch
office she had a conversation with outside electronics
technician Clancy Gadd. She asked Gadd how they
could work out a system whereby a technician would
know to call dispatch without drawing undue attention
from management Gadd suggested that they use an un-
common name like "Sylvester J. Pussycat" on the radio
to let a technician know that he was to call dispatch on
the telephone without causing undue concern by anyone
who might be listening on the radio Gadd testified that
the code was devised not really to deceive but to main-
tain a low profile and not draw undue attention from
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management because management had the ability to
monitor the radio.
Seger told some but not all of the technicians that
when she used the worn "Sylvester" or "customer Syl-
vester" on the radio the technician was to call her on a
land line (telephone). Neither Gadd nor Seger said any-
thing about the code to management , as the purpose of
the code was to allow communications between Seger
and certain technicians without the knowledge of the
Company.33
Management first learned of the use of code "Sylves-
ter" on the evening of February 28, 1979, when techni-
cian Johnny Frost told Supervisor McPherson about it.
McPherson informed Manager Braun about the code
early the following morning and Braun took immediate
action .34 Within the hour he called Seger into his office
and she admitted that she had used a secret code He
told her that she had been talked to on numerous occa-
sions about following instructions, that she had built her
own system contrary to management, and that he would
get back to her about the situation 35 The following day,
March 2, 1979, between 9 and 9.30 a in Braun again
called Seger to his office He told her that she had elect-
ed not to follow management instructions and proce-
dures, and that she had previously had difficulties con-
cerning following instructions. He told her that there
was an opening in the call-taking section and that she
could either take that or resign. She told him that she
would take the call-taking job He informed her that she
was no longer on the radio and he warned her that she
was going to have to follow instructions as a call-taker
and not invent her own system He read her a deficiency
report, which stated:
MEMORANDUM OF DEFICIENCY
INTERVIEW
NAME Shirley Seger - ACTIVITY Dispatcher
The following matters which require correction
have been fully discussed with the above employee:
Re: Misconduct
Shirley has been talked with on numerous occasions
concerning her conduct on the radio as well as nu-
merous reminders of following outlined procedures,
set forth by Territory and local management.
33 Seger testified that she used the code "customer Sylvester" to cut
down air time and to keep the technicians from getting into little argu-
ments on the radio Gadd, in substance, testified that the code was used
to circumvent management's monitoring of the radio I credit Gadd and I
do not credit Seger
34 The General Counsel sought to establish that Braun knew about
code "Sylvester" at an earlier date As is set forth in more detail in sec.
B, 2, above, Hanshue testified that well before the demotion of Seger he
heard Braun refer to Clancy Gadd as "Mr Sylvester " Both Braun and
Gadd, in their testimony, denied that assertion For the reasons set forth
above I credit Braun and Gadd and do not credit Hanshue Seger testi-
fied that she told Supervisor Hines about the code Hines testified that he
did not know about the use of the code before March 1, 1979 I credit
Hines and I do not credit Seger
35 These findings are based on the testimony of Braun Where the tes-
timony of Seger is inconsistent with Braun 's testimony regarding this
conversation and the one on March 2 , 1 credit Braun
Shirley has elected to allow or perpetrated
among some Technicians secret codes for calling
her by phone in the dispatch or whatever and has
admitted such.
Shirley has not been instructed to do such, did
not acquire permission from anyone about this. She
not only violated local procedures by using unac-
cepted codes or procedures, but, also those proce-
dures that Sears told the FCC we would use. It is
possible that our license could be revoked for non-
compliance Shirley is being taken out of the dis-
patch office effective today She is being offered a
position as Service Clerical as a call taker if she
elects.
Shirley must understand the job entails the same
outline . . . that procedures outlined to her must be
followed and must be in compliance with local
policy and company policy. Decisions outside of
her job are to be left to management. Any deviation
from the above or other policies will mean termina-
tion with Sears.
This memorandum will be reviewed in thirty days.
The memorandum was signed by Seger and Braun
March 2, 1979, was a Friday. Effective the following
Monday, March 5, 1979, Seger was demoted from a dis-
patcher with a wage rate of $4 25 an hour to a service
clerical with a wage rate of $3 50 an hour.
5. Conclusions
When the active phase of the union campaign began in
March 1978 Segar was vocally antiunion. She later
changed her mind and, on February 25, 1979, she signed
a union authorization card. Braun learned of Seger's
union activity early in the morning of March 1, 1979,
and on the same morning he called her into his office
and criticized her for using an unauthorized code in the
course of her radio dispatch work The following day he
demoted her and reduced her salary Though the Gener-
al Counsel has failed to establish that the Company en-
gaged in the alleged violations of Section 8(a)(1) of the
Act as described in sections B and E,2, above, the Com-
pany admittedly campaigned against the Union and did
not want the employees to be represented by a union
The timing of the demotion with relation to the Compa-
ny's obtaining knowledge of Seger's union activity gives
rise to a strong suspicion that there was a causal connec-
tion between that knowledge and the demotion. Howev-
er, the Company's defense must also be considered.
Seger had a long history of difficulties with regard to
following company instructions. She was often criticized
in that regard and specifically for improperly using air
time. Other employees also misused air time but none of
the other employees did anything comparable to Seger's
use of an unauthorized code to intentionally circumvent
the ability of management to monitor the use of the
radio. Seger was not demoted until management learned
of that misuse and the demotion followed immediately
after the Company learned of it. Though the Company
did consider Seger's entire employment history before
the demotion, the precipitating event was the use of the
SEARS, ROEBUCK & CO
secret code. As none of the other employees engaged in
that type of conduct there is no basis for claiming dispar-
ate treatment against Seger The Company had set up a
system whereby it could control and monitor the use of
the radio and Seger's actions with regard to the secret
code undermined that system The Company's reaction
was quite measured with regard to Seger's offense. It did
not discharge Seger as it might have done if it wanted to
get rid of a union adherent It took her off the radio and
placed her in another job where she could not under-
mine the radio system. I credit Braun's assertion that
Seger was demoted for work-related reasons
I find that the General Counsel has not established by
a preponderance of the credible evidence that Seger was
demoted and had her salary reduced because of her
union activity and I therefore recommend that that alle-
gation of the complaint be dismissed
F. The Discharge of Ward
1. Background
The complaint in Cases 16-CA-8472 and 16-CA-8551
alleges that Curtis Larry Ward was discharged on May
22, 1979, because of his union activities and because he
gave testimony under the Act.
Ward was hired by the Company as a service techni-
cian in February 1971 He remained in that position until
his discharge on March 22, 1979, for allegedly falsifying
company records. During his term of service with the
Company he received a number of pay increases. He also
received a number of certificates of praise from the
Company when the Company received laudatory letters
from customers about him The last such award he re-
ceived was in 1976. On a number of occasions Ward got
into substantial difficulties with the Company because of
problems relating to his paperwork and his apparent dis-
appearances when he was supposed to be working.
Those matters are discussed in detail below.
Ward was one of the early union adherents. He was a
member of the organizing committee and he solicited
union authorization cards as well as distributed handbills
for the Union The Company first became aware of
Ward's union activity on March 18, 1978, when employ-
ee Robinson informed supervisors that Ward had been
out getting authorization cards signed. Ward was one of
the four employees named as union adherents in Union
Representative Gaskill's March 20, 1978 telegram to
Braun. Ward testified on behalf of the Union in the rep-
resentation case and in the instant unfair labor practice
case On May 22, 1979, 1 year and 2 months after the
Company learned that Ward was a union activist, Ward
was discharged.
2 The incidents preceding the discharge
Ward had had problems relating to following his route
well before Braun became manager in June 1977. A
memorandum of deficiency interview dated March 19,
1974, spoke of Ward's numbering his route sheets and
following the route strictly, as well as Ward's following
through on promises made to customers. 'That memo
stated that it had been explained to Ward that his current
performance was totally inadequate and that immediate
251
improvement was necessary if he was to continue work-
ing for the Company. A memorandum of deficiency
interview in the fall of 1975 referred to problems relating
to numbering his route sheets and making the calls in ac-
cordance with the route sheet. The memo stated that the
Company would not tolerate a casual attitude with
regard to the deficiencies and that Ward was to under-
stand that improvement was necessary if he was to con-
tinue working for the Company
In early January 1979 the Company's dispatcher came
to Manager Braun and told him that they could not find
Ward and could not contact him on his route. On Janu-
ary 15, 1979, Braun learned that Ward had disappeared
for 1-1/2 or 2 hours when he was supposed to have been
working. His route sheet indicated that he was supposed
to be at a certain place and he could not be located
there. Ward was 2 hours late in returning to the Central
Service Center and Braun questioned him about it when
he returned Ward at first said that he had stopped for
gas and then said that he had stopped to help someone
out Braun told him the proper procedures had not been
followed and that it should not happen again. In early
February Ward disregarded company policy by failing to
turn in some orders from his route sheet. Braun spoke to
him about it Later a complaint was made that Ward had
gone into a customer's house with a technician from
Montgomery Ward 36 These and other items led to a
memorandum of deficiency interview against Ward dated
March 1, 1979. On that day Braun read the memoran-
dum of deficiency to Ward in its entirety and Ward ad-
mitted that he had done improper paperwork and said
that he would try to correct it. In that interview Braun
mentioned that he had spoken to Ward several times
before about paperwork. The memorandum read:
MEMORANDUM OF DEFICIENCY
INTERVIEW
NAME Larry Ward - ACTIVITY Service Tech-
nician
The following matters which require correction
have been fully discussed with the above employee:
Re: Falsification of Route Sheet - Time Card
and Service Order, Misconduct of Service Tech-
nician on Duty
Upon confronting Larry with attached complaint.
Larry admitted that he had a Ward's Technician in
our customers home with him
Larry also admits that his route sheets, service
orders and time card were not accurate as to the
times stated. Larry did go to the dentist on his
lunch hour and said he was there an "hour or so."
He also said he did not put "personal" on his time
card which would result in Sears paying him for
personal time
86 These findings are based on the credited testimony of Braun Where
Ward's testimony differs from that of Braun concerning the various disci-
plinary interviews I credit Braun and do not credit Ward
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also on Larry's call to customer Kitchen of 2/20.
Larry called disptach at 10 50 from customers
home. Dispatch called customers house at 10.53 and
customer said he left twenty minutes prior. Larry
could not be reached on the radio at 10:45 He
showed a time of 11.35 to 12:45 on the order.
His customer order for Mayse shows no entry time
- dispatch clocked it at 10:26.
Mr. Ward has signed an agreement with Sears on
8/18/78 that covers accuracy of recording times
and paperwork.
Mr. Ward was given a prior warning on 1/5/79 for
loss of time. Accuracy of paperwork was covered
with him then
In November of 78, Mr Ward was warned of not
following the procedures outlined to him.
Mr. Ward has other history of improper procedure
of paperwork and dispatching procedure and is
fully aware of procedure handling.
The company is making one final attempt to help
Mr. Ward perform the total job required, if there is
any further violation of this type occurrence, i.e.,
his failure to follow proper Route Sheets, Service
Orders, and time card procedures, Mr. Ward will
immediately be released from employment with
Sears, Roebuck and Company.
Also, to include any further occurrences of miscon-
duct on Larry's part while in a customers home.
A copy of Larry's Serviceman's Agreement with
Sears is attached for his review, to refresh his
memory of his responsibilities as a Sears Technician.
This memorandum will be reviewed in thirty (30)
days.
Ward signed the memorandum of deficiency interview.
Ward was scheduled to be reinterviewed on April 2,
1979. Shortly before that date Braun asked Ward's super-
visor McPherson whether Ward had corrected his prob-
lems and whether they should take him off the deficien-
cy memo. McPherson said that he would check into it
and get back to Braun. Because of that the reinterview
was delayed On April 12, 1979, McPherson reported
back to Braun and told him that Ward had engaged in
serious errors in paperwork and that they still had prob-
lems with him.37 After examining all the paperwork
37 The Company has a detailed procedure with regard to recordkeep-
mg The technician makes entries on a route sheet, a timecard, and serv-
ice orders The technician enters information about all the dispatches as
well as starting time, lunchtime, breaktime, and quitting time on those
records In addition, a hard copy of the service order is kept in the dis-
patch office and is used for dispatching The dispatcher enters the dis-
patch information and the information being radioed-in by the technician
on the hard copy of the dispatch orders The times are also entered At
the end of every day, the hard copy of the service orders are sent to the
cashier where they are matched up with the paperwork coming in from
the technician The dispatcher's entries should correspond with the infor-
mation the technician writes on his paperwork and by a comparison of
those reports some insight can be obtained into whether the technician's
paperwork is erroneous or whether the dispatcher made mistakes
McPherson gave Braun a written list of discrepancies
concerning Ward's work. It contained discrepancies re-
lating to 15 separate days between March 1 and March
31, 1979. Braun reviewed the list and decided that some
of the items were merely nitpicking He crossed out a
number of the items. He concluded, however, that some
of the matters were serious and that they would extend
Ward's review for another 30 days to see if they were
corrected by then. On the same day Braun told Ward
that they had come up with additional problems that
needed correcting and he reviewed with Ward each of
the items on McPherson's list that had not been crossed
out. He also showed Ward the actual paperwork on
which the list was based. Ward admitted that he made
mistakes and that he had to correct them. Braun then
told Ward that they would extend the review for an-
other 30 days. Braun made a note on the deficiency
memo which said that Ward had improved but still had
to take more time and be more accurate. The note stated
that the time recording had to be improved and there
would be a review again in 30 days.
About May 17, 1979, McPherson reported back to
Braun and gave him a four-page list of errors in Ward's
paperwork. Multiple errors were noted for each of 20
separate days between April 16 and May 12, 1979. Many
of those items related to times that Ward should have
been but was not working. McPherson told Braun that
Ward was disappearing on them, was not doing the work
he should have been doing, and was screwing the Com-
pany. Braun told McPherson that he would handle it
from there.
On the same day, Braun told Company Security Man-
ager Charles Hinderliter that Ward might not be record-
ing his paperwork properly He said that he wanted Hin-
derliter to put a radio in his car, to listen to all the radio
communications to and from Ward, to go to the places
where Ward was supposed to be, to observe when Ward
arrived at and left the homes of customers, and to record
all that information.38
On Friday, May 18, 1979, Hinderliter followed his in-
structions and at the end of the day he told Braun that
he would have a report ready on the following Monday,
May 21
Hinderliter submitted his report on May 21. Braun
then made lists which compared the information from
Hinderliter's report with the information from the dis-
patch office and the information Ward submitted in his
paperwork. He collated those reports to show the arriv-
al, departure, and travel times as shown by Ward, the
dispatch office, and Hinderliter. That compilation
showed major discrepancies between the times Ward ar-
rived at customers, left customers, and called dispatch as
se This was the first time that Braun had had an employee followed at
the Central Service Center He had, however, done similar things at
other locations where he worked including Springfield, Missouri, Fort
Smith, Arkansas, and Tulsa, Oklahoma There were no union campaigns
going on at those other places Hinderliter had engaged previously in
similar surveillance of employees in other aspects of the company's busi-
ness About a month before the Ward incident, he had, at the request of
one of the managers, engaged in a surveillance to verify how long it took
certain truckdrivers to make their run In the course of his work he en-
gaged in some sort of surveillance about once a month
SEARS, ROEBUCK & CO
observed by Hinderliter and those times on records kept
by Ward. Braun's analysis showed him that the total of
Ward's worktime, travel time, breaktime, and lunchtime
for that day was about 3-3/4 hours Over 4 hours were
unaccounted for even though Ward was paid for the
entire day
Shortly after making his evaluation, Braun called the
Company's manager of employee relations Kristovich at
the Dallas headquarters He called Kristovich for advice
because he knew that any action against Ward, who was
a known union activist, would likely lead to litigation.
Braun told Kristovich that Ward was flagrantly stealing
time from the Company and he described the evidence
he had of that. Kristovich said that he would think it
over and call back Later that afternoon, Kristovich
called Braun and suggested that to avert the possibility
that there could be some error that two people witness
what was happening. Braun then contacted Hinderliter
and Ward's supervisor, McPherson, and told them that
on the following day they were to repeat what Hinder-
liter did on May 18.
On May 22, 1979, McPherson and Hinderliter carried
out the instructions that had been given to them by
Braun until about 2.30 p.m when McPherson called
Braun and said that Ward had not arrived at a particular
call He told Braun that Ward had been making errors
that morning Braun told McPherson to come back to
the Central Service Center. When McPherson arrived he
gave Braun a report that had been written while the
events were occurring.
Braun then called Kristovich and told him that Ward
was stealing time and that as far as he was concerned
Ward was no longer working for him. He contacted the
group personnel office and told them what he was plan-
ning to do He had the personnel department make out
the paperwork for the release of Ward.
About 4.10 p.m when Ward returned to the Central
Service Center, Braun called him into his office Ward's
route sheet and timecard were brought in. Supervisor
McPherson was present. Braun reminded Ward that he
was still on probation for falsification of routes in March
and he asked Ward about each of the calls that Ward
had made that day For each item the timecards and
route sheets were compared against the activities that
McPherson had actually observed that morning 39 It was
apparent that there were serious discrepancies 40 There
was also a prolonged discussion concerning Ward's
whereabouts on May 18 After showing Ward all the
documents and all the falsified records Braun asked him
what Ward would do if he were a manager and Ward
replied that he would fire him Braun then told Ward
that Ward was released from the Company for falsifying
company records after prior warnings. Ward replied by
39 During the course of this discussion Ward said that he was not
going to stand for the harassment and he asked to have a witness or a
representative of the Union present That matter is discussed in more
detail below
40 Ward testified that on occasions there were transmission problems
and that radios in certain areas could not receive calls from dispatch
However, that could not have been a problem on May 18 or 22 because
Hinderliter or McPherson were at the same locations as Ward and they
heard all the radio communications
253
calling Braun a "son-of-a-bitch " Braun asked Ward why
he had falsified the company records and Ward replied
that Sears owed it to him Braun asked him what he
meant by that and he replied that he did the work that
other technicians were not capable of doing and that he
was getting the same as the others for doing twice as
much work
The General Counsel contends that the Company took
a lenient policy toward employees falsifying records and
stealing time That contention has not been established
None of the incidents pointed to by the General Counsel
are comparable in degree to the type of conduct that
Ward engaged in 41 The only comparable situation was
one relating to Eugene Robinson. The Company be-
lieved that Robinson had falsified his timecards and route
sheets and he could not be found by dispatchers where
he was supposed to be. Robinson was the individual who
circulated an antiunion petition as is described in section
B, 8, above and the Company knew that he was hostile
toward the Union. Robinson, a known antiunion employ-
ee, was discharged for the same type of conduct that
Ward had engaged in 42
3. Conclusions
Ward was one of the early union adherents He was
named as one of the union adherents in Union Represent-
ative Gaskill's March 20, 1978 telegram to Braun As de-
scribed above, his union activity was extensive and was
visible to the Company. He was discharged 1 year and 2
months after the Co.npany learned of his union sympa-
thies As is set forth in detail above, the General Counsel
has not established that the Company has engaged in the
type of unlawful conduct that would warrant an infer-
ence that it was motivated to discharge employees be-
cause of their union activity. The General Counsel has
not established that the Company treated Ward in a dis-
parate manner43 with relation to similarly situated em-
ployees who had not engaged in protected activity. The
Company has established that it had very good reason
for believing that Ward had engaged in substantial falsifi-
cation of records to cover up his repeated disappearance
from jobs when he was supposed to be working The
Company has also shown that it made a very patient
effort to correct Ward's problem and that Ward contin-
ued to engage in the same type of misconduct.
In sum, I find that the General Counsel has not estab-
lished by a preponderance of the credible evidence that
there was any causal connection between Ward's union
activity or his giving testimony under the Act and his
discharge. I recommend that the allegations of the com-
4i Ward and Perkins testified that they were told at various times by
supervisors to falsify work records That testimony was patently incredi-
ble Company witnesses credibly testified that the falsification of compa-
ny records was never knowingly tolerated
42 Another employee, Mark Oliver, was also discharged for falsifying
company records However, that incident involved the theft of money
from a register and the falsification of records related to it Oliver's situa-
tion was not fully comparable to Ward's
43 As set forth in sec B,3, above, Perkins' testimony that he overheard
Supervisors McPherson and Potts plotting against Ward was not cred-
ited
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint which allege Ward's discharge to be a violation of
the Act be dismissed.
G The Refusal to Allow Ward to be Represented at
The Interview in Which He Was Terminated
1. Facts
On May 21, 1979, Company Manager Braun reviewed
the information that had been obtained concerning
Ward's May 18 activities He came to the conclusion that
on May 18 Ward had spent less than half the day work-
ing and had falsified company records in an attempt to
cover up that fact. On the same day he called company
headquarters in Dallas and told Kristovich that Ward
was flagrantly stealing time from the Company. Kristo-
vich,suggested that Braun have two people witness what
Ward was doing and Braun arranged to have Hinderliter
and McPherson follow Ward the following day. On May
22 McPherson called Braun and told him that Ward had
been making errors that morning. When McPherson
came back to the Central Service Center that afternoon
he gave Braun a written report which showed further
transgressions by Ward. Braun contacted Kristovich and
told him that as far as he was concerned Ward was no
longer working for him. He had personnel prepare the
discharge papers.
Later that afternoon when Ward returned to the Cen-
tral Service Center, he was told to report to Braun's
office. Ward's paperwork for that day was also brought
to the office. Braun started the conversation by remind-
ing Ward that he was still on probation for prior warn-
ing. At that point it was clear to Ward that the interview
related to a disciplinary matter. Ward testified that he
said to Braun: "Before you go any further, I'd like to re-
quest Mr. Ed Gaskill, my union representative, or a wit-
ness of my choosing to be present." Ward averred that
Braun answered by saying there was not a union there
and never had been and that McPherson was a witness.
Braun testified that Ward asked to have a witness
present, a representative of the Union present. He
averred that he answered that they did not have a union
and it was strictly between the Company and Ward.
Braun acknowledged that he told Ward that there was
not going to be anyone else present. Later in his testimo-
ny Braun testified that he did not recall Ward using the
word "witness" but that he assumed that "witness" and a
"union representative" amounted to the same thing In
view of Braun's lack of a clear recollection, I credit
Ward.
An extended interview followed in which the various
documents were reviewed and in which Ward's where-
abouts for that and the previous workday were dis-
cussed. The interview ended with Ward being dis-
charged.
2. Conclusions
In NLRB v. J. Weingarten, 420 U.S 251 (1975), the
United States Supreme Court held that an employer vio-
lated Section 8(a)(1) of the Act by denying an employ-
ee's request to have a union representative present at an
investigatory interview, which the employee reasonably
believed might result in disciplinary action. The Court,
citing relevant language in Quality Mfg. Co., 195 NLRB
197 (1972); and Mobil Oil Corp., 196 NLRB 1052 (1972),
found that
1. The right inheres in Section 7's guarantee of
the right of employees to act in concert for mutual
aid and protection.
2. The right arises only in situations where the
employee requests representation.
3. The employee's right to request representation
as a condition of participation in an interview is lim-
ited to situations where the employee reasonably be-
lieves the investigation will result in disciplinary
action.
4. Exercise of the right may not interfere with le-
gitimate employer prerogatives The employer has
no obligation to justify his refusal to allow union
representation, and despite refusal, the employer is
free to carry on his inquiry without interviewing
the employee, and thus leave to the employee the
choice between having an interview unaccompanied
by his representative, or having no interview and
foregoing any benefits that might be derived from
one.
5. The employer has no duty to bargain with any
union representative who may be permitted to
attend the investigatory interview.
In Certified Grocers, 227 NLRB 1211 (1977), enf.
denied 587 F.2d 449 (9th Cir. 1978), the Board held that
an employer's statutory right to representation applied to
both investigatory and disciplinary interviews if the em-
ployee reasonably believed that disciplinary action might
result. The Certified Grocers case was partially overruled
by the Board in Baton Rouge Water Works Co, 246
NLRB 995, 997 (1979). Two members of the Board44
held,
In Certified Grocers, the Board concluded that the
Supreme Court's decision in Weingarten applied to
any interview, whether labeled investigatory or dis-
ciplinary, which the employee reasonably believes
may result in disciplinary action being taken against
him The United States Court of Appeals for the
Ninth Circuit denied enforcement of the Board's
Order, as in its opinion Weingarten did not require a
right to representation when the purpose of the
interview was merely to inform the employee that
he was being disciplined. We have reexamined our
decision in Certified Grocers and now think that case
was wrongly decided on its facts. To that extent, it
is overruled. We now hold that, under the Supreme
Court's decision in Weingarten, an employee has no
Section 7 right to the presence of his union repre-
sentative at a meeting with his employer held solely
for the purpose of informing the employee of, and
acting upon, a previously made disciplinary deci-
sion.
44 The third Board member concurred in the result, but made a dis-
tinction between "investigatory interviews" and "disciplinary actions "
Two members of the Board dissented
SEARS, ROEBUCK & CO
We stress that we are not holding today that there is
no right to the presence of a union representative at any
"disciplinary" interview. Indeed, if the employer engages
in any conduct beyond merely informing the employee
of a previously made disciplinary decision, the full pano-
ply of protections accorded the employee under Wein-
garten may be applicable. Thus, for example, were the
employer to inform the employee of a disciplinary action
and then seek facts or evidence in support of that action,
or to attempt to have the employee admit his alleged
wrongdoing or to sign a statement to that effect, or to
sign statements relating to such matters as workmen's
compensation, such conduct would remove the meeting
from the narrow holding of the instant case, and the em-
ployee's right to union representation would attach. In
contrast, the fact that the employer and employee there-
after engaged in a conversation at the employee's behest
or instigation concerning the reasons for the previously
determined discipline will not, alone, convert the meet-
ing to an interview at which the Weingarten protections
apply.
A majority of the Board amplified the Baton Rouge case
in Texaco, Inc., 246 NLRB 1021 (1979), which held.
The pivotal question in such instances is whether,
on the one hand, an employer, in summoning an
employee to appear before management, is con-
cerned solely with the administration of discipline
or, on the other hand, seeks additionally to obtain
facts, evidence, or an admission in support of the
disciplinary action taken.
In all of the above cases an employee was denied rep-
resentation by a union where the union was the collec-
tive-bargaining agent of the employees. In the instant
case the Union was not the bargaining representative of
a majority of the employees and the Company had no
duty to bargain with it. The industrial stability that
would result from a union's presence during interviews
that might lead to discipline would not be enhanced
where there is no collective-bargaining representative. In
theory, a hundred different employees who are subject to
such an interview might each ask for a different union to
represent them and the Company would have to deal
with a hundred different unions.
The situation where there is no collective-bargaining
representative was discussed in Glomack Plastics, 234
NLRB 1309 (1978), enf denied in part 592 F.2d 94 (2d
Cir. 1979). In that case the Board held that the employ-
ees were without union representation as a result of their
employer's unlawful refusal to bargain and that the ab-
sence of union representation under such circumstances
did not deprive employees of their Section 7 rights
There, the Board held that an employer violated the Act
by refusing an employee's request that a witness be
present at a disciplinary interview. The witness requested
was a member of the union's negotiating committee.
In Anchortank, Inc., 239 NLRB 430 (1978) the Board
held that an employee was entitled to the presence of a
union representative where the union had won an elec-
tion but had not yet been certified. The Board held
255
Here, employees Charles and Kittley requested
union representation at a time when the Union had
been selected by a majority of employees in a
Board-conducted election, but had not yet been cer-
tified as bargaining representative. Their request
was an exercise of the right guaranteed to them by
Section 7 to act in concert for mutual aid and pro-
tection. In these circumstances, the status of the re-
quested representative, wjiether it be that of union
not yet certified or simply that of fellow employee,
does not operate to deprive the employees of the
rights which they enjoy by virtue of the plain man-
date in Section 7
A persuasive argument can be made that an employee in
a disciplinary interview should not have the right to
union representation where the union is not the collec-
tive-bargaining representative of the majority of the em-
ployees unless there are special circumstances such as
that which existed in Glomack or Anchortank, Inc How-
ever, the Board's dicta in Anchortank, in which a fellow
employee is equated to a majority union representative,
appears to indicate that an employee is entitled to union
representation at a disciplinary interview by a union that
is not the collective-bargaining agent of a majority of the
employees Until the Board clarifies that dicta I feel con-
strained to follow its apparent meaning.4e
The law applicable to the instant case is not clear cut.
Braun did engage in an extensive interview of Ward at
which documents were analyzed and Ward's alleged fal-
sification of documents and stealing of time were dis-
cussed in detail. The records that Ward kept that day
were reviewed for the first time by Braun during the
interview . In a sense Braun was attempting to obtain
facts and evidence However, the decision to discharge
Ward was made and appeared to be irrevocable even
before the interview. It is difficult to see how the pres-
ence of a union representative during the interview
would have changed the situation That is particularly so
when the union representative was not the collective-
bargaining representative of the employees, had no bar-
gaining power, and had no contract machinery to
invoke On May 21 Braun had told Kristovich that Ward
was stealing time. Braun received further information re-
garding errors from McPherson on May 22. Also before
the interview he called Kristovich and said that as far as
he was concerned Ward was no longer working for him.
Personnel had already made up the discharge papers
before the interview The interview can be looked at as a
courteous gesture by Braun rather than a meaningful step
in the discharge process. Some of the language in
Texaco, Inc., 246 NLRB 1021 (1979), appears to apply to
the instant case. The Board held:
There is no evidence that Respondent needed or
desired to obtain admissions of misconduct by the
employees disciplined nor can such a purpose be in-
ferred from the evidence. As previously mentioned,
4$ For a contrary view see Administrative Law Judge James F Mor-
ton's decision in Materials Research Corp, 262 NLRB 1010, 1022-26
(1980)
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Administrative Law Judge concluded that all
employees were offered an opportunity to explain
or defend themselves. This offer, however, was not
designed to obtain information to support Respond-
ent's disciplines Rather, it constituted an essential
part of the communication process during which an
effort was made by Respondent to determine
whether the employees understood the reasons for
disciplinary action, their concurrence therewith
aside Whether called "counseling" as Respondent
urges, or by some other term, such conduct does
not demonstrate, nor are we persuaded, that Re-
spondent went beyond the parameters established in
our Baton Rouge decision so as to warrant the pro-
tection accorded employees by Weingarten.6
Accordingly, we hold that the employees in this
case were not entitled to representation at the disci-
plinary meetings here in question and, therefore,
that Respondent did not violate the Act by compel-
ling their presence at those meetings without benefit
of the representation they requested.
In view of the above, we shall dismiss the com-
plaint herein in its entirety.
5 Member Jenkins does not rely on the principle expressed in
this sentence
6 Member Murphy agrees that the meetings herein were not in-
vestigatory interviews at which the employees were entitled to the
presence of a union representative See her concurring opinion in
Baton Rouge Water Works Company, supra
Problems are also presented both by Ward's rather am-
biguous request for representation and by the fact that
the Union lists its address as Garland, Texas, a consider-
able distance from Oklahoma City. Ward asked for the
presence at the interview of Gaskill, his union represent-
ative, or a witness of his choice. If he were merely seek-
ing a witness as distinguished from a representative, it is
difficult to see how his right to representation was
denied. There is no indication in the record that any
union representative other than Gaskill was involved
with the organizational drive. There is also no evidence
in the record to indicate whether or not Gaskill or any
other union representative was physically in the Oklaho-
ma City area or was available to attend the interview.
Where a union is a collective-bargaining agent of one of
the employees it ordinarily has representatives on the
premises or nearby who are available to represent the
employees when called on to do so. That was not the sit-
uation in the instant case. There is no collective-bargain-
ing representative and there is no evidence that Gaskill
or any other union representative was in a position
where they could have been available to attend the inter-
view within a reasonable time. An employer is not re-
quired to unduly delay a disciplinary or investigatory
interview because of the unavailability of an employee's
representative. Coca-Cola Bottling Co., 227 NLRB 1276
(1977).
Under all these circumstances, I find that Ward was
not unlawfully deprived of union representation or of a
representative of his choosing at a disciplinary interview
as alleged in the complaint, and I therefore recommend
that that allegation of the complaint be dismissed 46
H. The Requirement that Employees Who Assisted the
General Counsel and the Charging Party During the
Trial Take Vacation or Personal Holiday Leave
Rather Than Leave Without Pay
1. The facts
The complaint in Cases 16-CA-8472 and 16-CA-8551
alleges in substance that the Company violated Section
8(a)(1), (3), and (4) of the Act by requiring employees
Hanshue, Cole, Perkins, and Ward to take vacation or
personal holiday leave rather than leave without pay
when they were absent from work to assist counsel for
the Charging Party and the General Counsel in the pres-
entation of this case
Hanshue, Cole, Perkins, and Ward were absent from
work on various days to attend the trial of this case.
They did so at the request of counsel for the General
Counsel and for the Charging Party Counsel repeatedly
conferred with those employees with regard to the pres-
entation of the case and I am satisfied that counsel did so
in good faith and not in an attempt to harass the Compa-
ny by depleting its work force
The Company utilizes three different types of leave.
One is leave without pay where the Company permits an
employee to take off from work without pay. It is also
referred to as an excused absence The second is vaca-
tion leave and the third is personal holiday leave. With
personal holiday leave an employee can designate for
himself the holiday. Both vacation and personal holiday
leave are paid for by the Company
There is no issue in this case with regard to rights of
subpoenaed witnesses The only matter in litigation re-
lates to the treatment of employees who left work to
assist the Charging Party and the General Counsel in the
presentation of this case At the trial on March 20, the
Company took the position that leave without pay would
not be granted to such employees and that if they left
work to assist counsel for the Charging Party or the
General Counsel the time spent away from work would
be counted as vacation or personal holiday leave time.
The Company took the same position with regard to the
time that employees remained at the trial to assist coun-
sel after they completed their testimony. Braun told Han-
shue, Cole, Perkins, and Ward that they could not have
leave without pay for appearing at the trial in a capacity
other than as a witness and that they would have to take
vacation leave or personal holiday leave. On March 19,
1980, Union Representative Gaskill sent a telegram to
Braun and Braun's attorney requesting that those four
employees be released from work to assist the General
46 Even if the Company had violated the Act by refusing Ward repre-
sentation , I believe that a "cease and desist" rather than a "reinstatement
with backpay" remedy would have been appropriate in view of the ser-
ous nature of Ward's misconduct and the fact that a final decision to dis-
charge him had been made prior to the interview A remedy must put an
employee back into the position he would have been in but for the un-
lawful conduct and the evidence establishes that Ward would have been
discharged whether or not he had a representative present during the
interview
SEARS, ROEBUCK & CO.
Counsel and the Union on March 20 through 23, 1980
The telegram stated that if the Company maintained its
previous position with regard to requiring them to take
vacation time and/or sick leave in order to participate in
the hearings that additional unfair labor practice charges
would be filed.47
The Company reduced the accrued vacation and per-
sonal holiday leave of employees for being absent for
work to assist counsel for the General Counsel and the
Charging Party as follows Gary Hanshue-March 20,
1979 personal holiday .9 hours, March 21 personal holi-
day 8 hours; Dorothy Cole-March 20 vacation 5.7
hours, March 20 vacation 8 hours; Earl Perkins-March
20 vacation 7.5 hours, March 21 vacation 8 hours and
March 22 vacation 8 hours, Curtis Ward-March 20 per-
sonal holiday 4 5 hours, March 21 personal holiday 8
hours, and March 22 personal holiday 8 hours
Braun testified as to the reason the Company took the
position it did with regard to employee absences as fol-
lows The Company did not intend to penalize the four
employees for assisting counsel at the trial. The compa-
ny's business is traditionally seasonal The peak workload
is during the summer because of the need for air-condi-
tioner and lawnmower repair. That peak season is the
time employees normally want their vacations. If em-
ployees take their vacations in March during the slack
season it means that there are more employees available
during the busy summertime. By requiring the employees
to take holiday or vacation leave in March, Braun was
creating a situation where those employees would be
available at a later date for work when they were needed
even more. If he granted leave without pay in March
those employees would be absent not only on the days of
the hearing but again on the vacation and personal holi-
day days In addition, all four employees were needed at
work during the time in question Cole was answering
calls from customers and handling the cash register, and
the office was shorthanded for that type of work. Han-
shue and Ward were outside technicians and the Compa-
ny was running 4 or 5 days behind on outside repairs.
Perkins was repairing lawnmowers and the Company
was running 7 days behind in that type of work Perkins
had been called back to work on March 19 because his
services were needed
2. Conclusions
As the Board held in Earringhouse Imports, 227 NLRB
1107, 1108 (1977), enf denied 600 F.2d 930 (D C. Cir.
1979). "[T]here can be little question but that an employ-
ee has a right protected by Section 8(a)(4) and (1) to
attend a Board hearing or otherwise participate in vari-
ous stages of the Board's processes "48 In that case the
47 Braun testified that he did not receive that telegram However, it
was sent in the regular course of business and an inference is warranted
that the telegram was received by some management official in the Com-
pany
48 The circuit court denied enforcement after noting that the exodus of
employees from work closed the employer's entire production line and
that there was no important need for the employees to attend the hear-
ing
257
Board found that the employees had that protection even
though they did not testify at the hearing. The Board
noted that several employees made comments and passed
notes to union counsel and that the hearing concerned
them 49 In the instant case as in Earringhouse the em-
ployees left work to attend a Board hearing which in-
volved their own job interest Also in the instant case the
employees engaged in a much more substantial role in as-
sisting counsel for the Union than did the employees in
Earringhouse. In the circumstances of this case Hanshue,
Cole, Perkins, and Ward were engaging in a protected
activity when they absented themselves from work to
attend the Board hearing. However, the Company did
have a legitimate interest in operating its business with-
out interruption. As the Board held in Earringhouse:
"[T]he resolution of the dispute before us requires the
making of a proper accommodation between an employ-
ee's right to attend a hearing during working hours and
an employer's legitimate interest in operating his business
without interruption." Unlike Earringhouse the instant
case involves a situation where the Company did release
the employees from work to attend the hearing. The
only question presented related to the type of leave that
the employees should be charged with. As the employees
were released by the Company there is no need to bal-
ance the immediate needs of the Company's production
against the right of the employees to attend the hearing.
The Company contends that future needs that would
arise during the summer warranted the imposition of va-
cation or personal holiday leave rather than leave with-
out pay so that the employees would not be absent both
during the time of the hearing and later in the year when
their services would be needed at work However, we
are concerned here with a small number of employees
and a limited number of hours. The Company's prospec-
tive needs during the summer months are too remote and
uncertain to justify the Company's actions in terms of its
legitimate interest in operating its business without inter-
ruption.
The Board considered a situation similar to the instant
one in Western Clinical Laboratory, 225 NLRB 725
(1976), enfd. in pertinent part 571 F 2d 457 (9th Cir
1978) In that case an employee was subpoenaed to testi-
fy at a Board hearing. After he completed his testimony,
he remained at the hearing The employer refused to
grant him leave without pay for the time he spent at the
hearing after he completed his testimony and required
that he take paid vacation for that time On the day the
witness actually testified he was paid as if he had worked
and it was not charged against his vacation. The Board
held (225 NLRB at 726):
In order for the Board to fulfill its obligation to
adequately administer the Act, it is necessary that
its processes not be unjustifiably fettered by any-
thing that precludes parties from participating in
such processes free from coercion or restraint In
49 Cf Home Lumber & Supply Co, 245 NLRB 358 (1979), where the
Board held that employees were not engaging in a protected activity
where they left work to vote in a Board-conducted election in which
those employees were not part of the bargaining unit
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our opinion, forcing an employee who attends a
Board hearing as a witness under subpoena to use
his accrued vacation time, when he would prefer to
take leave without pay, amounts to such a restraint
regardless of the motive behind such action. In our
judgment, potential witnesses will be reluctant to
take the time to testify at Board hearings if they
fear the loss of their accrued vacation time by doing
so. Thus, the mere existence of such an apprehen-
sion would have an adverse effect upon the Board's
ability to conduct fair and complete proceedings.
Though the Board specifically found that the employer's
actions were not in reprisal for the employee having
given testimony and were not calculated to discourage
him from participating in the Board hearing,50 it con-
cluded that the company's requirement that the employ-
ee use his vacation time for attendance at the hearing
violated Section 8(a)(3), (4), and (1) of the Act.
In the instant case the employees attended the hearing
to assist counsel for the General Counsel and the Charg-
ing Party in the presentation of the case rather than as
potential witnesses However, I believe that the same
logic that the Board applied to potential witnesses also
applied to employees who participate in the presentation
of a case as the employees did herein. I therefore find
that the Company's requirement that the four employees
use vacation or personal holiday leave for attendance at
the hearing was violative of Section 8(a)(3), (4), and (1)
of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with the operations of
the Company described in section I, above, have a close,
intimate, and substantial relationship 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 the Company has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that the Company violated Section
8(a)(3), (4), and (1) of the Act by requiring Hanshue,
Cole, Perkins, and Ward to use vacation or personal hol-
iday leave for attendance at the Board hearing, I recom-
mend that the Company be ordered: to provide Hanshue
with 8.9 hours of leave without pay and to cancel the
deduction of that number of hours from his personal hol-
iday leave; to provide Cole with 13.7 hours of leave
without pay and to cancel the deduction of that number
of hours from her vacation leave; and to provide Perkins
50 The same situation is present in the instant case The General Coun-
sel has not established that the Company's actions were made in reprisal
for the employees having given testimony or that they were calculated to
discourage participation in the Board hearing
with 23 5 hours of leave without pay and to cancel the
deduction of that number of hours from his vacation
leave, This order will allow Hanshue, Cole, and Perkins
to take their full vacation or personal holiday leave at
the time it ordinarily would have been granted Howev-
er, Hanshue has already been paid personal holiday pay
for the 8.9 hours, Cole has already been paid vacation
pay for the 13.7 hours, and Perkins has already been paid
vacation pay for the 23.5 hours Unless those employees
refund to the Company the vacation or holiday pay for
those hours the Company will not be required to pay va-
cation or holiday pay for those hours when the normal
vacation or holiday is taken. Otherwise, the Company
would be required to pay double vacation or holiday pay
for those hours Such payment would be a penalty rather
than a remedy.51
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Company violated Section 8(a)(3), (4), and (1)
of the Act by requiring Hanshue, Cole, Perkins, and
Ward to use vacation or personal holiday leave to attend
a Board hearing.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Except as is set forth above, the General Counsel
has not established by a preponderance of the credible
evidence that the Company has violated the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed52
ORDER
The Respondent, Sears, Roebuck and Co., Oklahoma
City, Oklahoma, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Requiring employees to use vacation or personal
holiday leave while attending and giving assistance to
counsel for the General Counsel or the Charging Party
at a National Labor Relations Board hearing
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act
(a) Provide Gary Hanshue with 8.9 hours of leave
without pay and cancel the deduction of that number of
hours from his personal holiday leave.
51 Ward is no longer working for the Company The granting of leave
without pay and the cancellation of the deduction from vacation leave
for him would be meaningless There is no more vacation that he can
take and he has already received vacation pay for the time in question
52 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
SEARS, ROEBUCK & CO
(b) Provide Dorothy Cole with 13 7 hours of leave
without pay and cancel the deduction of that number of
hours from her vacation leave.
(c) Provide Earl Perkins with 23 5 hours of leave
without pay and cancel the deduction of that number of
hours from his vacation leave.
(d) Post at Central Service Center copies of the at-
tached notice marked "Appendix "53 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found are
dismissed.
53 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
259
WE WILL NOT require employees to use vacation or
personal holiday leave while attending and giving assist-
ance to counsel for the General Counsel or the Cliarging
Party at a National Labor Relations Board hearing.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WE WILL provide Gary Hanshue with 8.9 hours of
leave without pay and WE WILL cancel the deduction of
that number of hours from his personal holiday leave.
WE WILL provide Dorothy Cole with 13.7 hours of
leave without pay and WE WILL cancel the deduction of
that number of hours from her vacation leave.
WE WILL provide Earl Perkins with 23.5 hours of
leave without pay and WE WILL cancel the deduction bf
that number of hours from his vacation leave
SEARS, ROEBUCK AND CO.