Sears, Roebuck & Co.

National Labor Relations Board - Board Decisions

Dec 19, 1967

168 N.L.R.B. 955 (N.L.R.B. 1967)

SEARS, ROEBUCK & CO.
Sears, Roebuck & Co. and Retail Store Employees
Union, Local 345, AFL-CIO. Case 3-CA-3123
December 19,1967
DECISION AND ORDER
On July 28, 1967, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in a certain unfair labor
practice and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief I
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that Respondent, Sears,
Roebuck & Co., Rochester, New York, its officers,
agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
1. Paragraph 2(a) of the Recommended Order is
amended to read as follows:
"(a) Make Grace DuBrueil whole for any loss of
earnings she may have suffered for the period
December 12 through on or about December 16,
1966, by reason of Respondent's discrimination
against her."
2. The third indented paragraph of "Appendix
B" is amended to read as follows:
WE WILL make Grace DuBrueil whole for any
loss of pay she may have suffered for the
period December 12 through on or about
December 16, 1966, by reason of our
discharge of her which has been found unlawful
by the Board.
' The Respondent's request for oral argument is hereby denied as, in
our opinion, the record, including the exceptions and brief, adequately
presents all the issues herein
F The record shows that DuBrueil announced her intention to quit prior
to the date of her discharge on December 12, effective on or about
December 16 Liability for backpay will therefore be limited to earnings
lost up to the latter date For the same reason, an offer of reinstatement by
the Respondent will not be required
168 NLRB No. 126
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
955
ARTHUR M . GOLDBERG , Trial Examiner: Upon a
charge filed on December 19, 1966 , by Retail Store Em-
ployees Union , Local 345, AFL-CIO (herein called
Local 345 or the Union), the complaint herein issued on
March 28, 1967 . The complaint alleged that Sears,
Roebuck & Co. (herein called Sears or the Respondent)
discharged Grace DuBrueil , an employee at its
Rochester , New York, store , because she had assisted
the Union or had engaged in other concerted activity.
This conduct was alleged to have violated Section 8(a)(1)
and (3 ) of the National Labor Relations Act, as amended
(herein called the Act). Respondent admitted the
discharge but denied that it was occasioned by
DuBrueil 's having engaged in activity protected by the
Act or that its actions had violated the Act.
All parties participated in the hearing conducted by
Trial Examiner Arthur M. Goldberg at Rochester, New
York, on May 17, 1967 , and were afforded full opportu-
nity to be heard , to introduce evidence, to examine and
cross-examine witnesses , to present oral argument, and
to file briefs. Respondent presented oral argument and
filed a brief. General Counsel filed a memorandum to the
Trial Examiner.
Upon the entire record in the case, my reading of
Respondent 's brief and General Counsel ' s memorandum,
and from my observation of the witnesses and their
demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I find
that Sears, Roebuck & Co. is and has been at all times
material herein engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. Sears' Rochester, New
York, store, located at 259 Monroe Avenue, is the only
facility involved in this proceeding.
H. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local 345, AFL-CIO,
is and has been at all times material herein a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union Pickets and Handbills the Monroe
Avenue Store; DuBrueilAssists the Union and is
Discharged for herActivities
Grace DuBrueil, a full-time student at the University
of Rochester, had been employed at the Monroe Avenue
store as a part-time clerical employee in the unit buying
control department. Her duties did not bring her into con-
tact with store customers. Her most recent period of em-
ployment had begun in October 1966.1 Respondent
"concede[d] freely that she was a first rate employee."
Sometime before the events herein, Local 345 was ad-
vised by its International Union that during the period
December 5 through 10 picket lines were to be
1 Unless otherwise noted all dates herein are in 1966.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established at as many Sears stores as was feasible. In
Rochester these activities were carried out only at the
Monroe Avenue store. The Union does not have a collec-
tive bargaining agreement covering that store nor was an
organizing campaign in process at the time. James S.
Colombo, secretary-treasurer of Local 345, testified that
the picket line was started on Wednesday, December 7,
and was manned by paid representatives of the Union and
unidentified volunteers. Picket signs and leaflets were
provided by the International Union. The picket sign de-
picts a little girl on a tricycle, who, while looking over her
shoulder is saying, "My Daddy Says ... Don't Shop At
Anti-Union Sears Roebuck." At the bottom of the sign
appears the statement, "Sears Roebuck Don't Play Fair."
On the tricycle itself, as if in the form of a bumper sticker,
appears a little sign reading, "STOP - Don't Shop Sears
Roebuck & Co." In small letters in the corner of the
picket sign sign is printed, "RCIA Sears Boycott Com-
mittee AFL-CIO, De Sales Bldg., Washington, D.C.
20036."
The leaflet distributed by the Union at the Monroe
Avenue store carries on one side the picture of the little
girl who in this case is saying, "My Daddy Says ...
`Sears Roebuck don't play fair!"' The reverse side of the
handbill2 discusses the Union's consumer boycott
directed against Respondent. The leaflet gives examples
of support the Union has received from various unnamed
persons across the country and ends with the following
statement of the purposes of the consumer boycott:
The consumer boycott will continue until:
1. Sears agrees to recognize the right of its em-
ployees to join or not to join a labor union, without
interference, restraint, discrimination, or coercion by
the company.
2. And until Sears agrees to bargain in good faith
where the union has won the right to represent its
employees. This must include no less than the form
of union security provisions found in Retail Clerk
agreements with Montgomery Ward, Sears' largest
competitor.
DuBrueil first learned of the union picket and hand-
billing on Tuesday, December 6, from a Sears' office
memo issued by William J. Sweeney, operating superin-
tendent and assistant manager of the Monroe Avenue
store. On Thursday, December 8, she left the store at
6:45 p.m. after completing her regularly assigned hours of
work for that day. At the picket line DuBrueil stopped to
talk with an acquaintance and was introduced to Colom-
bo. DuBrueil testified that she had heard of Sears' antiu-
nion policy and asked Colombo what specific instances
were involved. The Union's secretary-treasurer told her
of a case some years back in San Francisco involving the
discharge of Sears' selling personnel who had honored a
Machinists Union picket line. Colombo testified that he
cited the San Francisco incident as "only a climax of the
anti-labor policy Sears had adopted and has been follow-
ing." Colombo explained to DuBrueil that the general
boycott of the Sears' stores was a result of Respondent's
policy. Thereafter DuBrueil received a supply of hand-
bills from Colombo which she distributed, staying at the
picket line until 8:30 p.m.
The following day, Friday, December 9, after complet-
ing her work for Sears at 5 p.m., DuBrueil again assisted
the Union. That evening she wore a picket sign and again
distributed handbills. On Friday, DuBrueil was on the
picket line for about 3 hours. During that time she was
observed by David S. Blanch, manager of the store unit
buying control department.
Other than DuBrueil, no Sears' employees participated
in the Union's activities at the Monroe Avenue store.
DuBrueil's next scheduled day of work was Tuesday,
December 12, at which time she was taken to Sweeney's
office and there discharged. Sweeny said he understood
DuBrueil had joined a picket line "advocating a seconda-
ry boycott of Sears" and asked her motives. DuBrueil ex-
plained that she believed in labor unions, had looked into
the situation, and agreed with the action taken by the
Union. Sweeney replied that he felt hers was a disloyal
act and she was being discharged for that conduct.
Sweeney testified that he had learned on Saturday of
DuBrueil's activities, had determined to discharge her,
but had first received approval from Respondent's Labor
Department, which had in turn cleared Sweeney's
proposal with Sears' labor counsel.
B. Conclusions and Findings
The Board has recently held3 that an employer may not
discharge an employee for picketing the employer's
establishment during off hours while otherwise continu-
ing to perform the duties of employment. In that case the
dischargees were waitresses whose duties brought them
into regular daily contact with customers of the establish-
ment and were well known to patrons. If the discharge of
such employees was a violation of the Act, a fortiori, the
discharge of DuBrueil, a nonselling, office clerical em-
ployee who had no contact with customers, was a denial
of her statutorily protected rights.4
Respondent contends that it was privileged to
discharge DuBrueil because it is not required "to finance
a boycott against" itself and that the dispute with the
Union did not concern DuBrueil and therefore was not
one to which Section 7 rights adhered. Further, Sears ar-
gues that, assuming her conduct was otherwise protected
by the Act, the language contained in the handbills she
distributed "exceed [s ] the legitimate bounds of
propaganda" and its use deprives her of the Act's protec-
tion.
As noted, I find that the Board's decision in Edir
controls this case and makes a finding of violation neces-
sary. In arguing that it is not obligated to finance a
boycott against itself Respondent looks to cases5 where
the boycott was found either to be illegal or unrelated to
the labor dispute from which it arose. It cannot be said
here that the boycott was unlawful, did not arise from a
labor dispute,6 or that the appeals contained in the picket
signs and handbills failed to provide a nexus between the
labor dispute and the public reaction requested. Nor do
I accept the argument that the instant dispute between
The full text of the handbill appears as Appendix A to this Decision Standard), 346 U.S 464 , 471-472 , The Hoover Company v N.L.R B.,
Edir, Inc., d/b/a Wolfie's, 159 NLRB 686 191 F 2d 380 (C.A. 6)
4 See Tanner Motor Livery , Ltd, 148 NLRB 1402, 1409 , remanded on 6 Marine Cooks v. Panama S.S Co, 362 U S. 365 ; Cedar Crest Hats,
other grounds 349 F.2d I (C.A. 9) Inc., et al. V. United Hatters, Cap and Millinery Workers International
5 N L.R.B . v Local Union No. 1229, Electrical Workers (Jefferson Union , AFL-CIO, 362 F 2d 32 (C.A. 5)
SEARS, ROEBUCK & CO. 957
Sears and the Union was of no concern to DuBrueil.7The
purpose of the boycott stated in the handbills was to in-
duce a change in Sears' opposition to organization of its
employees and to insure good-faith bargaining where
union orgnanizing efforts were successful. As a Sears em-
ployee DuBrueil could reasonably anticipate that the
benefits of such a union campaign would inure to her as
it would to all other of Respondent's working force.8
Thus, although DuBrueil alone among the Monroe
Avenue employees assisted Local 345 in its picketing and
handbilling of the store her conduct constituted concerted
activity as she was "seeking to induce action from a
group." Salt River Valley Water Users' Assn. v.
N.L.R.B., 206 F.2d 325,328 (C.A. 9);Mushroom Trans-
portation Co., Inc., 142 NLRB 1150, 1158, enforcement
denied 330 F.2d 683 (C.A. 3); Indiana Gear Works v.
N.L.R.B., 371 F.2d 273,276 (C.A. 7).
Finally, I am not persuaded by Respondent's argument
that the allegedly intemperate language of the boycott
handbill (Appendix A) denied, to DuBrueil the protection
of the Act, First, I do not find that the handbill was akin
to "physical sabotage" of Respondent's business.
Jefferson Standard Broadcasting Company, 94 NLRB
1507, 1511-12. The Board there went on to say, "the Act
protects employees against employer resprisal when they
speak freely `on organization matters' ... and in one way
or another denounce their employer for his conduct of
labor relations or affairs germane to the employment rela-
tionship." Jefferson Standard, supra, 1511-12. Because
the attack on their employer in Jefferson Standard was
unrelated to "his conduct of labor relations" the Board
found no violation of the Act in their discharge and the
Supreme Court sustained the Board's findings. Cf. The
Patterson-Sargent Company, 115 NLRB 1627, 1628.
Here, the picket sign and handbill are clearly addressed
to Respondent's labor policy. Equally clear, the protec-
tion enunciated by the Board attaches to DuBrueil's cons
duct.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above , occurring in connection with the interstate
operations of Respondent , found in section I, above, have
a close , intimate , and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead
to labor disputes obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent unlawfully discharged
Grace DuBrueil, I shall recommend that Respondent be
ordered to reinstate her to her former or a substantially
equivalent position of employment, without prejudice to
her seniority and other rights and privileges, and to make
her whole for any loss of earnings suffered as a result of
Respondent's unlawful conduct. Backpay shall be com-
puted in the manner set forth in F. W. Woolworth Com-
pany, 90 NLRB 289, with interest added thereto in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
the Act.
2. Retail Store Employees Union , Local 345,
AFL-CIO, is a labor organization within the meaning of
the Act.
3. By engaging in the conduct described in section III,
above , Respondent discriminated against Grace
DuBrueil in regard to her tenure of employment , in order
to discourage activities protected by Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
The Respondent, Sears, Roebuck & Co., its officers,
agents, successors , and assigns , shall;
1. Cease and desist from:
(a) Discouraging or coercing its employees in the exer-
cise of rights guaranteed by Section 7 of the Act by the
discharge of Grace DuBrueil.
(b) In any like or related manner interfering with,
restraining; or coercing its employees in their right to self-
organization , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the
Act, or to refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Offer to Grace DuBrueil immediate and full rein-
statement to her former or a substantially equivalent posi-
tion, without prejudice to her seniority and other rights
and privileges, and make her whole for any loss of
earnings she may have suffered by reason of Respond-
ent's discrimination against her as set forth in that sec-
tion of this Trial Examiner's Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports , and all other
records necessary to analyze and compute the amount of
backpay due and all other rights under the terms of this
Recommended Order.
(c) Post at its Monroe Avenue store in Rochester,
New York, copies of the attached notice marked "Ap-
' Respondent established that DuBrueil was a member of the Students
for a Democratic Society (SDS) and, under the sponsorship of a different
union and after the events herein, had participated in picketing the pre-
sident of the University of Rochester because of his stand concerning
hospital workers . Respondent appears to equate DuBrueil's activity in
this case with her campus actions and thus place them under the aegis of
SDS rather than within the protection Section-7 affords employees in their
job-related activities . I do not believe these facts have any bearing on the
issues herein.
' Cf. N.L.R B. v. Peter Cailler Kohler Swiss Chocolates Company,
Inc., 130 F.2d 503 (C A 2).
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendix B."9 Copies of said notice, on forms provided by
the Regional Director for Region 3, after being duly
signed by the Respondent's authorized representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith. 10
s In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith."
APPENDIX A
A MATTER OF PRINCIPLE
Please Don't Shop At Anti-Union SEARS
The consumer boycott against Sears, Roebuck and
Company is a direct application of the highest trade union
principles. Its basis is very simple: A corporation
dedicated to anti-union practices does not deserve the
patronage of union members.
Whether the store is one of those actually picketed at
the time, the consumer boycott places an "invisible picket
line" around each one of the company's retail and mail
order outlets.
The continuing success of the consumer boycott de-
pends upon whether individual union members and sym-
pathetic friends are true to their principles.
Many inspiring letters of support for the objectives of
the battle to secure a "bill of rights" for employees of the
corporate giant have been received over the months. A
recent one from Philadelphia points out the importance of
each of us as individuals:
"Perhaps you could emphasize that no one is too small
to help, as I feel that even a person as small as myself has
succeeded in frustrating sales possibly amounting to over
$1,200, ranging from kitchen cabinets, hi-fi sets, down to
work clothes."
A letter from East St. Louis states, "You have my
whole support in this matter. My insurance with Sears'
Allstate is due next month. I am not going to renew it
until Sears' attitude toward labor is changed."
A housewife from Arlington, Virginia, has sent us a
carbon of a letter written to the chairman of the board of
Sears saying she had just moved into a new house and
needed a number of appliances, but that she refused to
buy them at Sears because, "Unfortunately, I am unable
to patronize a company which resorts to unethical prac-
tices in order to influence the organization of their em-
ployees. Although we are not union members ourselves,
we defend the right of free choice on the part of the Sears
Roebuck employees."
A member of the Oil, Chemical, and Atomic Workers
Union says, "I haven't bought anything at Sears since the
boycott began, and I have talked about ten of my friends
out of shopping there."
Unfortunately, on the other hand, there may be a
number of persons of good will who are aiding the cause
of anti-unionism by default, by making purchases at Sears
for one reason or another.
No matter how casual or sporadic, shopping at Sears is
a denial of trade union ideals and an expression of
disloyalty to fellow union members.
The consumer boycott against Sears, Roebuck and
Company has the active endorsement of the AFL-CIO
and the International Confederation of Free Trade
Unions.
Its goal is acceptance by Sears of the principles of fair
play towards its employees.
The consumer boycott will continue until:
1. Sears agrees to recognize the right of its employees
to join or not to join a labor union, without interference,
restraint, discrimination, or coercion by the company.
2. And until Sears agrees to bargain in good faith
where the union has won the right to represent its em-
ployees. This must include no less than the form of union
security provisions found in Retail Clerk agreements with
Montgomery Ward, Sears' largest competitor.
The Consumer Boycott Committee asks the support of
the buying public, of every union member, his or her fami-
ly and friends until the goal is achieved.
SEARS
Consumer Boycott Committee
RCIA, AFL-CIO, DeSales Bldg., Washington, D.C. 20036
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT Discourage or coerce our em-
ployees in the exercise of their right to engage in con-
certed activity, including lawful picketing and hand-
billing, by the discharge of Grace DuBrueil.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of their right to self-organization, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the
Act, or to refrain from any and all such activities, ex-
cept to the extent that such right may be affected by
an agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as amended.
WE WILL offer Grace DuBrueil immediate and full
reinstatement to her former or a substantially
equivalent position, without prejudice to her seniori-
ty or other rights and privileges, and make her whole
SEARS , ROEBUCK & CO. 959
for any loss of pay which she may have suffered by This notice must remain posted for 60 consecutive
reason of our having wrongfully discharged her. days from the date of posting and must not be altered,
defaced, or covered by any other material.
SEARS , ROEBUCK & Co . If employees have any question concerning this notice
(Employer) or compliance with its provisions, they may communicate
directly with the Board's Regional Office , Fourth Floor,
Dated By The 120 Building , 120 Delaware Avenue, Buffalo, New
(Representative) (Title) York 14202 , Telephone 842-3100.