Sears, Roebuck & Co., Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1962

139 N.L.R.B. 471 (N.L.R.B. 1962)

SEARS, ROEBUCK & CO., INC. 471
managers, assistant supervisors , assistant managers , and all other super-
visors as defined in the Act.
PEPSI-COLA LOUISVILLE BOTTLERS , A DIVISION
OF PEPSI-COLA GENERAL BOTTLERS, INC,
Employer.
Dated------------------- By---------- - --------^ --------------------
Re resentative (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Transit
Building, Fourth and Vine Streets , Cincinnati 2, Ohio, Telephone Number, Dunbar
1-1420, if they have any question concerning this notice or compliance with its
provisions.
Sears, Roebuck & Co., Inc. and Retail Department Store Em-
ployees Local 1207. Case No. 19-CA-29209. October 25, 1962
DECISION AND ORDER
On May 3, 1962, Trial Examiner Martin S. Bennett issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter the Re-
spondent, the Charging Party, and the General Counsel filed excep-
tions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
' The notice appended to the Intermediate Report Is hereby amended by deleting the
phrase "This notice must remain posted for 60 days from the date hereof ," and substitut-
ing therefor the phrase "This notice must remain posted for 60 consecutive days from the
date of posting "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard at Seattle , Washington, on September 20, 21, 22, 25 , 26, and
27, 1961 . The amended complaint i alleges that Respondent Sears, Roebuck & Co.,
1 The original complaint issued June 23, 1961, and was based upon a charge filed May 8,
1961 , alleging violations of Section 8(a) (1) and (5) of the Act An amended charge
139 NLRB No. 35.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., herein called Sears, had refused to bargain with Retail Department Store Em-
ployees Local 1207, herein called the Union, in three specified respects and had dis-
criminatorily discharged Jack Hays on June 20, 1961, thereby engaging in unfair
labor practices within the meaning of Section 8(a)(1), (3), and (5). Oral argu-
ment at the close of the hearing was waived and briefs have been submitted by all
parties. A motion by all parties to correct certain errors in the transcript of testi-
mony was later submitted and it is hereby granted.2
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Sears, Roebuck & Co, Inc., is a New York corporation which maintains its
principal offices at Chicago, Illinois, and is engaged in the sale of merchandise and
commodities in retail outlets throughout the United States. Among such outlets
are three at Seattle, Washington, the situs of the instant dispute. During the 12
months preceding are issuance of the amended complaint, Respondent's Seattle stores
enjoyed a gross volume of business in excess of $500,000; received merchandise
valued in excess of $50,000 which was shipped from points outside the State of
Washington; and shipped merchandise valued in excess of $50,000 to points outside
the State of Washington. I find that the operations of Respondent affect commerce
within the meaning of Section 2(6) and (7) of the Act and that it would effectuate
the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Department Store Employees Local 1207 is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction- the iswipc
The Union has been recognized by Sears as the representative of its retail sales
personnel at three stores in Seattle, Washington, since January 1940 and their most
recent contract expired on May 15, 1960. In February 1960, this contract was
opened. Approximately 10 bargaining meetings were held thereafter in 1960 and
approximately 20 in 1961; a new contract has not been arrived at.
The complaint alleges a refusal to bargain in good faith and specifically attacks
two facets of this collective-bargaining history. It is alleged: (1) that on or about
April 20, 1961, Sears refused to meet and negotiate with a duly designated bargain-
ing representative of the Union; and (2) that Sears has repeatedly informed repre-
sentatives of the Union that even if an agreement were reached, certain working
conditions could not be incorporated in a written collective-bargaining contract. The
latter are (a) the payment of a 1-percent commission to certain sales personnel and
(b) the handling of union membership problems. The complaint also alleges that
one Jack Hays was discriminatorily discharged on June 20, 1961, because of his
union membership and activities, within the meaning of Section 8(a)(3) of the Act.3
adding an alleged violation of Section 8(a) (3) was filed on July 13, 1961, and an amended
complaint issued on August 17, 1961
2 Respondent has moved that the brief of the Union be stricken because it was mailed on
the date briefs were due rather than received by me on such date On consideration of
the response to said motion, the motion to strike is denied and the brief has been
considered.
3 The complaint also sets forth another alleged violation of Section 8(a) (5) It states
that Sears refused to bargain in good faith at three meetings on April 26 and May 2 and 5,
1961, by taking the position that a condition prerequisite to reaching agreement on a con-
tract was the resolution of certain pending grievances in a manner prescribed by Sears
The evidence on this topic is insubstantial and inconclusive, and reflects only rejection by
the Union of Sears' proposal to settle most but not all of certain grievances on which a
court had directed the parties to negotiate and if necessary arbitrate. Moreover, if such a
position were taken by Sears, it was admittedly abandoned thereafter, as the Union con-
cedes in its brief. Furthermore, on what I understand to be an established premise that
this is a public proceeding litigating public rather than private rights with the burden
of proof on the General Counsel rather than on the Charging Party, it Is duly noted
that the General Counsel does not press or argue this topic in his brief Accordingly, it is
recommended that this allegation of the complaint be dismissed.
SEARS, ROEBUCK & CO., INC. 473
B. Refusal to bargain
1 Appropriate unit and majority representation therein
The complaint alleges, Respondent's answer admits, and I find that all retail sales
clerk employees of Sears at three Seattle, Washington, stores located at First and
Lander, Roosevelt Way, and Market Street, excluding supervisory personnel, consti-
tute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
The complaint alleges, Respondent's answer admits, and I find that the Union at
all times material herein has been and now is the representative of the employees
in the above-described appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
2. The Plopper incident
As set forth, approximately 30 meetings were held between the parties from
February 1960 up to the autumn of 1961, when negotiations were broken off. The
General Counsel contends that Sears refused on April 20, 1961, to meet with the
Union because it was represented, among others, by one Murray Plopper, an Inter-
national vice president, rather than by local personnel exclusively. It is undisputed
that this was Plopper's debut on the Seattle scene. Negotiations prior thereto had
been carried on chiefly by Sears' counsel, Eli Dorsey, and Secretary-Treasurer
Archie McLean of Local 1207, with Richard Donaldson, local counsel for the Union
participating in three mettings, those of March 1 and 24, and the one considered at
this point, that of April 20, 1961. Also present at the April 20 meeting were Jim
Austin of Sears' industrial relations department and one Horner, in charge of
industrial relations on the Pacific Coast for Sears, neither of whom testified.
International officials apparently had not previously represented Local 1207 in
negotiations and there is some evidence that Sears was averse to meeting with repre-
sentatives of the International to negotiate a contract on a national basis, rather than
on a local basis consistent with areas of recognition or certification. As will appear
hereinafter, there had been a number of previous bargaining sessions at which there
was considerable discussion of two topics, namely, whether Sears would embody in
a written contract with the Union (1) language treating with the 1-percent com-
mission paid by Sears to certain sales personnel, and (2) language treating with the
problem of union membership.
By way of background, a bargaining meeting was held on March 24 and attended
by McLean and Donaldson for the Union and Dorsey and Austin for Sears. McLean
and Donaldson are in agreement that Dorsey suggested he invite Horner to a future
negotiating meeting. According to Donaldson , a clear and meticulous witness
whose testimony I credit, the suggestion was predicated on the fact that Horner "had
the final say on these two issues." The record amply demonstrates the existing
divergence of the parties on these two issues with respect to the inclusion in the con-
tract of language bearing on these two topics.4 Later that same day, McLean tele-
phoned Dorsey and stated that he would like Murray Plopper to attend the next
meeting which Horner would attend. Plopper, a vice president of the International,
had been director of the central division of the International and had previously sat
in on unspecified negotiations with Sears officials in other areas.5
The topic was next raised at '.a meeting between McLean and Dorsey on April 4.
According to McLean, Dorsey agreed that he would have Horner appear to meet
with McLean "but he would not meet with any international representatives, no one
other than just local people." Dorsey further stated that "negotiations would re-
main on a local level, and Mr. Dorsey was not to meet with any international repre-
sentatives other than local representatives." Later that day, after a telephone talk
with Plopper, McLean telephoned Dorsey and told him, at Plopper's suggestion,
that the Union was ready to meet with anyone who could settle the disputed issues
and that an employer could not "dictate as to who was going to represent the union."
McLean is also supported by the extensive notes he took during various meetings and
these were produced at this hearing. While Donaldson attended only three meetings, he
testified, contrary to Dorsey and I so find, that McLean did make notes during the
respective meetings rather than thereafter . While Dorsey also made notes, they were less
extensive.
5 Dorsey testified that in this conversation McLean stated that Plopper had proposed the
meeting I deem it immaterial whether this be so or whether McLean initiated the idea,
in response to Dorsey's suggestion earlier that day. What is pertinent here is the fact,
as I find, that McLean expressed his wish to have Plopper appear for the Charging Party
at a future bargaining session.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dorsey disputed the charge of dictation, but said that Horner would not appear at
any meeting attended by Plopper; that Plopper's presence would be a mistake in
view of an existing boycott of Sears by the International Union; that he, Dorsey,
was the representative of Sears in negotiations; and that he, Dorsey, would meet
with any union representative.
A subsequent meeting was set for April 20, with Horner to be in attendance. The
union officials arranged to have Plopper attend, but did not communicate their
plan to Dorsey or any other Sears representative. There was prior agreement that
McLean would submit written proposals at this time on the 1-percent commission
and union membership issues. The meeting was held as scheduled at Dorsey's law
office. McLean and Donaldson, accompanied by Plopper, made their entry and
were introduced to Dorsey, Austin, and Horner who were already present. The
testimony as to this meeting is presented by McLean, Donaldson, and Plopper on
the one hand and by Dorsey on the other, as noted, the other Sears personnel did
not testify herein.
There is substantial agreement between McLean, Donaldson, and Plopper as to
what took place. According to Donaldson, and I so find, Dorsey immediately ex-
pressed surprise over Plopper being "brought into the negotiations"; stated that
Plopper should not be present; and said that Horner had been brought in from
Los Angeles "not to negotiate but only to explain the Company's policy on certain
things." Donaldson immediately responded that Plopper was present at the re-
quest of Local 1207 solely to assist in the negotiations "and there was no intent
on the union's part to enlarge the scope of negotiations." 6
Donaldson then stated that he understood the parties were in agreement on all
major issues with the exception of the 1-percent commission and union membership.
Dorsey immediately responded that this was not accurate and that agreement had
not been reached on all other issues, but that they could be disposed of "if the two
specific issues" were resolved. Dorsey asked if McLean had brought the union
proposals on the 1-percent commission and union membership. McLean produced
two typewritten drafts of these proposals, each on a single sheet of paper and
that with the 1-percent issue taking up but five lines; these proposals are discussed
hereinafter.
Dorsey took the proposals and stated that the company representatives wanted
"to take a look at these. We would like a caucus." The three union representatives
left the room and went to the reception room. After some minutes Dorsey entered,
asked to speak privately with Donaldson, and the two men went to another office.
According to Donaldson, Dorsey stated that he had a "sticky" problem in that both
he and Horner had been instructed by Sears officials at Chicago headquarters, in-
cluding one Tudor, not to participate "in any meetings with any representatives of
the International." This policy allegedly stemmed from an attempt by General
Counsel Lippman of the International to contact Sears personnel in Chicago, an
attempt which had been rebuffed.
Dorsey then proposed that he ask Homer to return to his hotel and that Donald-
son instruct Plopper to do likewise. Donaldson replied that Horner's presence was
the reason for the meeting on that date, that the Union believed Plopper's experience
could be helpful in the negotiations, and that it would not send Plopper away. He
pointed out to Dorsey That Dorsey had "a legal obligation to meet." Dorsey re-
sponded that he was aware of this, but was confronted with a policy matter and
would see what he could do.
Donaldson then rejoined his colleagues in the reception room and the trio
proceeded to the men's room. While in the corridor on their return trip to Dorsey's
office, Horner passed by, rang for an elevator, and departed without making any
comment. The trio reentered Dorsey's office and Dorsey again asked to confer
privately with Donaldson. Dorsey told him that he regretted things had to work
out in this manner, that he "was obliged to do it this way," and that he would have
a counterproposal ready for McLean the following week. The union representatives
then left.?
a Dorsey claimed that McLean announced that International objectives were inseparable
from local objectives This was specifically denied by both McLean and Donaldson, and
Plopper's version of the incident is silent as to any comment of this nature Other evi-
dence discloses that the existing boycott by the International Union caused Sears personnel
in Chicago headquarters to react to the appearance of International personnel or repre-
sentatives on the scene as to a burr under the saddle Be that as it may, I am convinced
on a preponderance of the evidence that Dorsey was in error on this point
, Dorsey admitted most of the foregoing and that he said Plopper should not be present
at local negotiations He also admitted telling Donaldson that Tudor and his assistant,
SEARS, ROEBUCK & CO., INC. 475
The record will not support a contention that Plopper's presence represented an
attempt by the Union to inject national issues into local negotiations. In fact, ex-
cept for introductions, Plopper did not say a word. Nor will the record support
the claim that the meeting broke up because company officials wanted to study the
two brief proposals by McLean. I am fully convinced that the meeting was broken
up because Sears officials refused to conduct a bargaining meeting with the local
union if an International official sat in as part of the union bargaining team. Horner
was present at this meeting at Dorsey's suggestion and Dorsey knew that McLean
was to submit these two written proposals to the meeting for discussion with Homer
participating. And, as noted, Donaldson did state his willingness, in the alternative,
to continue the conference without Horner's presence, but with that of Plopper,
this was unacceptable and the meeting forthwith ended. I further find that Dorsey's
hands were tied by Sears' national policy.
It is well established that an employer may not dictate to a labor organization who
is to represent its employees for bargaining purposes, aside from special circumstances
not present herein. The record discloses only that Plopper was there to assist the
local in its negotiations. The fact that another representative of the International
was persona non grata to Sears is beside the point. I find that by refusing on
April 20, 1961, to meet with a designated union representative, and specifically with
an International official participating in local negotiations as a member of the local
bargaining team, Respondent has refused to bargain in good faith within the mean-
ing of Section 8(a)(5) and has thereby also violated Section 8(a)(1) of the Act.
NL.R.B. v. Prudential Insurance Company of America, 278 F. 2d 181 (CA. 3);
N L R.B. v. Deena Artware, Inc., 198 F. 2d 645 (C.A. 6), cert. denied 345 U.S.
906, Westinghouse Electric Corporation, 132 NLRB 406, Deeco, Inc., 127 NLRB
666, and Oates Bros., Inc., 135 NLRB 1295.
3. Refusal to incorporate agreements in writing
a. The 1-percent commission
At issue here is whether Sears violated Section 8(a) (5) of the Act by maintaining
the position throughout bargaining negotiations that it would not include in a
written contract or in a written bilateral agreement any meeting of the minds that
might be reached on two specific issues, namely, the payment of 1-percent commis-
sion to certain salesmen and language treating with the union membership problem.
A preponderance of the evidence supports the position of the General Counsel.
By way of background the following is noted. Sears ' counsel, Eli Dorsey, also
represents other Seattle department stores in collective-bargaining negotiations with
labor organizations. In recent years prior to 1958, Sears did not participate di-
rectly in these negotiations which are conducted on an associationwide basis. The
procedure followed was for Dorsey to send both Sears and the Union a letter
describing the agreement between Sears and the Union. These letters are de-
scribed as "third party" memorandums. Apparently one reason for this procedure
was Sears' desire to avoid the union shop negotiated by the other Seattle stores.
In 1958, Sears returned to a former practice of participating in association negotia-
tions and, in September 1958, a contract resulted from an exchange of letters. There-
after, Sears contended that no contract had actually been arrived at, but the United
States District Court for the Western District of Washington held otherwise in an
oral opinion handed down in November 1960. Retail Department Store Em-
ployees Union, Local No. 1207, etc, AFL-CIO v. Sears Roebuck & Company,
Inc , 47 LRRM 2354
Part of the foregoing disagreement was the fact that the Union challenged the
method whereby Sears computed a wage increase. Sears for a long period had
uniformly paid to its sales employees a commission of 1 percent on all personal net
sales. This did not include so-called "big ticket" salesmen of costly items as furni-
ture, large appliances, and refrigerators, where the salesmen were paid on a 5- or
6-percent commission basis. The practice had never been spelled out in any agree-
ment or side letter, but it is undisputed that it had been undeviatingly followed by
Sears, and that it was a condition of employment. See Electric Steam Radiator
Corporation, A Subsidiary of Landers, Frary and Clark, 136 NLRB 923.
one Neely, had telephoned and instructed him not to embarrass Sears by negotiating an
International contract under the guise of local negotiations. He testified that in the
second talk he told Donaldson that Respondent had not had adequate time to consider
the two proposals and would come up with a contract proposal the next week Signifi-
cantly, Dorsey admitted that it was "correct" that Horner left the meeting because
Plopper was present
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In 1959, Sears also discontinued its participation in the so-called "Dorsey Plan,"
a device of many years' standing whereby Sears and the Union had initially coped
with the Union's desires for a union-security plan, or a not too dissimilar facsimile
thereof. It is a fair statement that Sears, as disclosed in the record, had some cause
for concern after adverse national publicity during certain congressional hearings.
The district court, in the above decision, found that this Dorsey plan operated in
the following manner:
1. All new employees would be advised by the Sears personnel office that
certain unions held bargaining rights at the Sears stores, and that a "steward"
would contact them.
2 "Stewards" who were employees of Sears, and who were usually selected
by Sears' Management with the approval of plaintiff union, would contact the
new employees, explain the union to them and ask them to join. "Stewards"
would also contact those employees who had become delinquent in the pay-
ment of their union dues.
3. If the employees failed to join, or failed to take care of their dues de-
linquencies, representatives of Sears Management, as well as the executive
secretary of the defendant Association, held conferences with these employees
and expressed to them the fact that Sears and the various unions with which it
dealt, including the plaintiff union, had had a satisfactory and harmonious rela-
tionship and would then urge them to join or to satisfy their dues delinquencies,
as the case may be.
It may be noted that Sears did not appeal this decision which also held that the
"steward system" described above was an implied condition of employment during
the previous contract. The record also discloses that in the spring of 1959, Dorsey
advised the Union that because of adverse publicity in congressional hearings, Sears
would discontinue management participation in the operation of this plan.
Turning to the most recent negotiations under consideration herein, the record
discloses that in February 1960, the Union submitted a proposal to Sears for a new
agreement to be effective at the termination of the previous agreement in May 1960.
This original proposal, it is to be noted, provided specifically for the payment of the
1-percent commission, stating after each wage classification within the bargaining
unit "plus 1 percent commission on personal net sales."
This proposal proved to be a constant problem in negotiations because, as will
appear, Sears never specifically agreed to put this or a similar clause in writing.
Indeed, Dorsey admitted on the witness stand that he did not want to put this clause
in writing. This original proposal also, it may be noted, called for a standard union
shop. Several meetings were unproductive and, on March 14, Sears sent a counter-
proposal, as later amended, to the Union. Negotiations resumed in May and June
and continued well into 1961.
The record well warrants the conclusion that Dorsey, most probably because he
(1) was hamstrung by Sears policy from Chicago and (2) was confronted with the
problem of other Seattle department stores, obfuscated the issue and frustrated the
collective-bargaining process by insisting that even if agreement were reached on
these two issues, viz, the 1-percent commission and the membership problem, they
could not be placed in a written collective-bargaining contract.
Turning to the 1-percent commission issue, McLean testified, and I find, that at the
February 15, 1961, meeting, Dorsey proposed that this item be handled by a side
letter between the parties. At a meeting on February 28, Dorsey accepted the
1-percent commission clause in principle, but stated that he wished to treat with it
solely in a letter from Dorsey to Counsel Donaldson of the Union. McLean replied,
as he uncontrovertedly testified, that only a written clause in a signed agreement was
acceptable to the Union. Dorsey replied that he could handle this only through
the side letter technique. On March 20, as McLean uncontrovertedly testified, and
I so find, Dorsey again proposed that the 1-percent commission item be handled by
a side letter. McLean again adhered to the union position that any agreement
between the parties should be in a written contract between them.
On March 24, Donaldson and Austin were also present and this topic received
primary attention. Donaldson pointed out that the 1-percent commission was a
condition of employment and expressed surprise that Sears objected to its incorpo-
ration in a written contract. Donaldson uncontrovertedly testified, and I so find,
that Austin interposed at this point. Austin stated that the union proposal differed
from existing conditions of employment in that the union proposal called for the pay-
ment of the 1-percent commission to employees of the so-called 200 desk or catalog
department, whereas, in fact, Sears by custom paid these employees but one-half of
1 percent McLean replied that all he desired was to have the contract accurately
reflect the existing company program and that if this was the fact with respect to the
SEARS, ROEBUCK & CO., INC. 477
200 desk, as indeed it was, the language should be amended accordingly and this was
acceptable to him.
Austin then got down to basics, as Donaldson uncontrovertedly testified and 1 so
find. He stated that Sears did not wish to incorporate the 1-percent commission in
the contract because Sears did not wish it to be used as a precedent which could be
seized upon by other labor organizations in the State and readily utilized against
Sears. Dorsey also acknowledged that this would create a problem as well as an
undesirable precedent capable of utilization against him in negotiations with the
other Seattle department stores. He insisted that he would "not stand for it."
The union representatives repeated that any agreement arrived at should be put
in a written contract, but offered to settle for a side agreement, if it was a bilateral
one. Dorsey insisted that he could not put it in writing as part of a contract. Ac-
cording to McLean, Dorsey mentioned the possibility of spelling out the 1-percent
commission program in a letter from Dorsey to Donaldson to be kept in the former's
files, because publicity concerning its contents would be embarrassing to Sears; he
maintained further that he would not put it in a contract even if his refusal resulted
in litigation. This, it may be noted, was the meeting at which Dorsey suggested that
Horner meet with the union representatives because Horner had the "final say"
on the issues in dispute.
The April 20 meeting with Homer and Plopper has been previously described.
McLean brought the following proposal to this meeting:
Proposal on one percent
Employees in Division 200 shall be paid one-half percent commission on
personal net sales weekly in addition to their guarantee weekly wage.
Employees in all other Divisions , excluding "big ticket" employees who are
paid a commission charged against a guaranteed draw, shall receive one percent
commission on personal net sales paid weekly in addition to their guaranteed
weekly wages.
The language concerning the 200 department receiving one-half of 1-percent
commission represented a modification of the Union 's original proposal and resulted
from Austin 's comment at the March 24 meeting . As indicated , Horner's abrupt
departure aborted the April 20 meeting.
On April 26, Dorsey met with McLean and exhibited a proposal which he al-
legedly was authorized to present in behalf of Sears. Dorsey pointed out the
following section as allegedly disposing of the 1-percent problem:
. since the offer from other employers accepted by Local No. 1207 of six
and one-quarter ( 61/4) cents per hour was in keeping with the contractual
minimum concept of bargaining as applied in settlements prior to 1958, Sears
intends to apply the 61/40 per hour increase in the same manner increases were
applied prior to 1958... .
Quite understandably , McLean expressed the view that this language was diffi-
cult to understand ; he might well have responded , more to the point, that this
language did not specifically treat with the 1 -percent commission issue. Nor does
it specifically provide for the continuation of past practices.
At a May 5 meeting , McLean asked again to be shown the language in Dorsey's
April 26 proposal and Dorsey promptly obliged . McLean read it and again
commented that the language lacked specificity . Dorsey offered only to send a
certificate to the union attorney dealing with this topic . On May 18, Dorsey mailed
to McLean a copy of the proposal which he had exhibited to McLean at the
April 26 meeting . The letter is in evidence and I find that although the proposal
made no reference to the 1-percent commission issue , Dorsey asked that it be
submitted to the Sears employees involved.
The record discloses no more recent position by Sears on this issue, or any
suggestion of more specific language. There is one footnote to the following in
that Dorsey wrote McLean on June 27 and expressed Sears' willingness to reduce
to writing and sign an agreement containing all issues agreed upon. I deem it
significant that this belated and self-serving document does not express Sears'
willingness to incorporate in a bilateral and signed agreement the two specific issues
under consideration herein.
Respondent has contended that the union proposal on the 1-percent issue is not
consistent with Sears' actual practice in three respects . The record demonstrates
otherwise . The first is the 200 desk or catalogue department whose employees
receive but one-half of 1 percent ; it has been shown that when Sears raised the
matter, the Union immediately modified its demand to conform its request to the
existing practice with respect to this desk . Secondly, Sears has contended that the
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union erroneously sought to include certain division heads under the plan. The
record discloses that the Union' s original contract proposal specifically excluded this
group from coverage and Dorsey, in effect, so admitted on the witness stand.
As to the third, it was contended that the union proposal deviated from past
practice in that it did not exclude extra holiday personnel . But it is undisputed
that this group is not within the bargaining unit, as Dorsey admitted, and the proposal
manifestly could not have been applicable to them. And, in any event, the union
representatives made it crystal clear that they were willing to incorporate in a
written agreement the Sears practice with respect to the 1 percent precisely as it
existed.
I find, as the General Counsel contends, that during the 1960-61 negotiations
through May 18, Sears rigidly adhered to and at no time abandoned the position
that it would continue its 1-percent commission program, might stretch to treat
it in a side letter from Sears' counsel to the parties, but would not include this
commission program in a bilateral signed agreement between Sears and the Union.
Under established principle, this constituted a failure to bargain in good faith
within the meaning of Section 8(a)(5) and was also violative of Section 8(a)(1)
of the Act. I so find . H. J. Heinz Company v. N.L.R.B., 311 US. 514; N L.R.B.
v. Feed & Supply Center, Inc, 294 F. 2d 650 (C.A. 9); N.L.R.B. v. Berkley Machine
Works Foundry Company, Inc., 189 F 2d 904 (C.A. 4); N.L.R.B. v. Todd Com-
pany, Inc., 173 F. 2d 705 (C.A. 2); Oregon Coast Operators Association, et al., 113
NLRB 1338, enfd. 246 F. 2d. 280 (C.A. 9); N.L.R.B. v. Tower Hosiery Mills,
Inc., 180 F. 2d 701 (CA. 4); Southwestern Porcelain Steel Corporation, 134 NLRB
1733; The Usadel Trophy Manufacturers, Inc., 131 NLRB 1347; and James C. Ellis,
sole owner, d/b/a James C. Ellis (Oil Production), .102 NLRB 497.
b. Union membership
As set forth, Sears had discontinued management participation in 1959 in the
"Dorsey Plan," although the plan continued unchanged in all other respects. In
February 1960, the Union opened negotiations with a request for a standard union-
shop clause, met resistance, and later abandoned this request.
The first significant meeting in 1961 was held on February 15, with McLean and
Dorsey present. According to McLean, Dorsey proposed "a very similar operation
to the old Dorsey plan with some minor variations"; the details were lacking and
McLean insisted that it would have to be in writing. Dorsey substantially concurred,
testifying that the minor variations he proposed were "The elimination of manage-
ment participation."
A meeting on March 1 was attended by Dorsey, McLean, and Donaldson; the
latter attended at McLean's request because McLean anticipated discussion of the
legality of the old Dorsey plan. According to Donaldson, and I so find, he and
McLean stated a preference for returning to the old Dorsey plan as described by the
district court, supra. Dorsey replied that Sears would never return to this program
and Donaldson replied that he was convinced that the original Dorsey system was not
illegal .8
Dorsey agreed that he too believed it to be legal, but stated that Sears' opposition
was not based upon legal concepts; that he could not return to the old system be-
cause Sears would no longer permit its officials to participate "in a union program";
and that he had with him a memorandum to read. He produced a memorandum
and stated that Sears could offer this as a program. Dorsey then presented the fol-
lowing features of the plan:
(1) At the time of hiring, new employees would be given a statement that Sears
recognized the Union as their bargaining representative and that a union representa-
tive would contact them in the future and explain the ramifications of such
recognition.
(2) The right of the Union was recognized to appoint stewards to carry on union
business during the free time of the employees and, on occasion, during company
time with the permission of department managers.
(3) Department stewards would be furnished the names of new hires.
(4) Union representatives could visit company premises during nonworking time
and also, with management approval, during working time.
(5) A final point, not in the memorandum, but stated by Dorsey, was that a room
would be set aside for the use of business agents.
Dorsey stated that another labor organization in the area had accepted this pro-
posal by Sears. McLean then asked if these points, if agreed to, could be included
in a written document. Dorsey replied that "while he personally thought it should
111 deem it unnecessary to pass upon this factor.
SEARS, ROEBUCK & CO., INC. 479
be included in a written document, [he] did not have the authority to offer it as
part of a written document. Chicago would not authorize it." Dorsey did add that
he would attempt to get authority from Sears to offer this program in writing.9
Another meeting was held on March 20 between McLean and Dorsey. McLean
uncontrovertedly testified, and I so find, that Dorsey offered on this occasion to em-
body the essentials of the proposals he had read at the previous meeting in a letter
to "our attorney," presumably Donaldson. McLean replied that "anything that was
agreed to should be reduced to writing in a signed contract." [Emphasis supplied.]
On March 21, as McLean uncontrovertedly testified, he held a telephone conversa-
tion with Dorsey during which Dorsey told McLean that he had met with Horner
and one Neely of Sears' Chicago office, that he had discussed with them the Union's
request for placing a union membership plan in a written contract, and that Neely
would take the request back to Chicago.
The next meeting on March 24 was attended by McLean, Donaldson, Dorsey, and
Austin, and was devoted largely to a discussion of the 1 percent commission issue.
In addition, Donaldson and McLean proposed that the findings of fact by the United
States district judge concerning the Dorsey plan be incorporated in the contract.
Dorsey replied that this could not be done in writing. The question was then asked
whether Sears would incorporate any other arrangements on this topic in writing,
and the answer was negative According to McLean, Dorsey on this occasion pro-
posed a meeting of the union representatives with Horner. Donaldson stressed the
point that the Union did not ask that any agreement reached on this issue, as well as
the 1-percent issue, be in any particular collective-bargaining contract, but that it at
least be in some bilateral signed agreement . Dorsey stated that he could not put it
in writing, but would see to it that the Union was "protected." io
McLean uncontrovertedly testified that he met with Dorsey on April 4, and that
the latter then stated that he "could probably" get authorization to put something on
the membership program in writing. Shortly thereafter, Dorsey asked McLean to
submit written proposals on the 1 percent and on the union membership issues.
McLean did so and appeared with the two separate proposals at the April 20 meet-
ing, discussed above, when Horner made his abrupt departure immediately after
McLean had presented the two proposals but prior to discussion of them. The con-
tent of the 1-percent proposal has previously been set forth. That treating with
union membership states as follows:
The Company will cooperate with the Union in advising its employees that a
contract exists between the Company and the Union , so that all employees under
the jurisdiction of Local 1207 may be properly informed and thereby afforded
a suitable opportunity to join the Union within the specified time and to remain
therein in good standing during the life of this agreement.
Each newly hired or rehired employee will be given a copy of the contract
by the personnel department at time of hiring.
A weekly list of hires and resigns will be furnished by the Employer to a
Steward, appointed by the Company, who will assist the proper Union Repre-
sentative in contacting such employees in regard to union membership.
In order to carry out the intent of the above policy the Employer will instruct
its employment office and supervisory personnel to advise all applicants
selected for employment that the interests of the employees and the employer
are best served by their becoming members of the Union because they are
receiving the benefits of the Contract.
It is further agreed that the Employer will make suitable office space available
at reasonable times where the proper Union Representative may interview em-
ployees in regard to union membership.
The Union agrees that neither officers, representatives or members of the
Union will intimidate or coerce employees into membership in the Union.
O The testimony of McLean substantially corroborates that of Donaldson Dorsey did
not deny tho testimony that be stated he would attempt to get authority from Sears to
make a written proposal on this issue . He did claim that he told the union representatives
he had a legal obligation to put any agreement in writing , but McLean and Donaldson
specifically dispute this assertion . The Union alleges that Dorsey's recollection is demon-
strably inferior because he contradicted herein his testimony in the Federal court on the
method of appointing union stewards And, as noted , the testimony of McLean , in this
instance , as well as that of Donaldson , is supported by extensive notes Accordingly, the
testimony of Donaldson is credited herein.
1o Findings on this meeting are based on the uncontroverted testimony of Donaldson
and McLean which is in substantial agreement
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 26, McLean met with Dorsey in the latter 's office. Dorsey displayed
a proposed letter from Horner to Dorsey which Horner was willing to sign and mail
to Dorsey for placement in Dorsey's files. It may be noted that this was merely
presented to McLean to read and not for retention . McLean asked if these proposals
were to be incorporated in a written contract and Dorsey replied in the negative.
McLean then asked that Dorsey give further consideration to the Union's proposal
of April 20. The letter to be signed by Horner consisted of three pages and em-
braced a membership program similar but not identical to that Dorsey had offered
on March 1. It is undisputed that this letter from Horner was intended solely
for placement in Dorsey 's files and not for submission to the Union; moreover, it was
strictly a unilateral document. Dorsey also exhibited to the Union a proposal by
Sears which was dated April 26. It was silent on the union membership issue and
was ultimately mailed to McLean on May 18.
At a meeting on May 5, McLean asked Dorsey if the membership program
previously outlined by the Union could be put in a contract. Dorsey refused, saying
that he could only offer the letter to be signed by Horner, as described above.
Later that day, Dorsey telephoned McLean and told him that he had informed
Homer the oral offer was unacceptable to the Union. McLean told Dorsey that he.
Dorsey, should submit a written proposal to him on union membership, consistent
with his oral proposal of April 26. Dorsey replied that "he could not" do so.
On May 18, Dorsey mailed McLean a copy of the written proposal which he had
brought to the meeting on April 26. As indicated, it was silent concerning union
membership.
To sum up, it is manifestly clear , and I so find , that Dorsey consistently took
the position through May 18, 1961, from which he never retreated, that any agree-
ment on a program for handling union membership would have to be on an oral
basis only and could not be included in a bilateral written agreement between the
parties. The most that he came up with was a proposal that a Sears official, Horner,
write a letter concerning an oral membership handling program to Dorsey, the
counsel for Sears, for placement in Dorsey's files.
I find that Dorsey never submitted a written proposal treating specifically with
the union membership issue for inclusion in a bilateral agreement. Stated other-
wise, Sears discussed proposals which it might or would accept on an oral basis
only, but rejected the Union's proposal that these be put in an agreement to be signed
by both parties. Needless to say, a letter in the files unilaterally signed by Sears'
attorney could hardly constitute a bilateral collective-bargaining agreement I find
that Sears refused in advance, as well as during negotiations , to incorporate any
agreement on union membership, even in the event of ultimate agreement thereon,
in a contract . In fact , it would not reduce to writing the proposals on which it
would agree for insertion in a written contract. I am convinced and find that this
position made agreement on a written contract clause dealing with the union mem-
bership issue impossible and constituted a failure to bargain in good faith within
the meaning of Section 8(a)(5) and was also violative of Section 8(a)(1) of the
Act. See H. J. Heinz Company v. N.L.R B., supra, and other cases cited above.
C. The discharge of Jack Hays
Jack Hays was employed as a salesman of plumbing and heating equipment at
the Seattle store located on First Avenue for approximately 14 years prior to his dis-
charge on June 20, 1961. The General Counsel contends that Hays was discharged
because of his union activities, whereas Respondent contends that he was dis-
charged for continuously violating company rules and that the discharge did not
result from any one incident but rather from a cumulative total of incidents over a
period of several years.
The plumbing and heating department is under the supervision of Division or
Department Manager Rudolph Purse, who is assisted by Assistant Manager Paul
Hauschild. Dan Wandell and Otto Lawrence are assistant store manager and store
manager, respectively; all testified herein except Lawrence The number of full-
time salesmen in this department varied during the period material herein from
seven to nine.
The General Counsel relies herein on Hays' position with the Union as well as
certain statements by management officials allegedly indicating hostility to Hays.
While this portion of his case is not strong, he relies further on the fact that most
of Respondent's witnesses gave inconsistent and confused testimony concerning
times and places. Counsel for Respondent, with realistic candor, concedes this in his
brief. The General Counsel has acknowledged in his brief that his burden goes
beyond a mere discrediting of Respondent's reasons for the discharge, in order to
establish that the assigned reasons were a pretext for a discriminatory motive. It is
SEARS, ROEBUCK & CO., INC. 481
a fair statement that the General Counsel does not rely on Hays' union membership,
as such, but rather on his alleged prominence in union activities; indeed, it appears
that all his fellow salesmen were union members.
1. Union activities
Hays had been a member of the Union for 14 years. In January 1960 he was
elected first vice president for a 3-year term. The record discloses that Respondent's
officials either knew of his title or knew that he was active in union affairs, although
Department Manager Purse testified that he knew only of his membership in the
Union, inasmuch as all his salesmen belonged. There is no evidence that Hays
participated in the collective-bargaining negotiations heretofore discussed and it
would seem that he did not.
(1) The General Counsel has adduced evidence of a number of incidents to
support his claim of discriminatory motivation. The first is the so-called bumper
strip incident. In March 1960, some 15 months before Hays' discharge, Sears opened
a new store in Renton, a suburb just outside Seattle. The Union decided to publicize
the fact that this store had opened on a nonunion basis. It picketed the store and
also distributed bumper strips for automobiles. These strips referred to the fact
that the store was a nonunion operation and Hays placed one of these on his car.
On the following day, Department Manager Purse noted the strip and advised
Hays to remove it, which he did. One day later, Store Manager Lawrence called
Hays to his office and asked, if be had a bumper strip on the car. Hays replied
that he originally did, but that he had removed it. Lawrence explained that the
wording on the strip was such as to give the impression that Sears in its entirety
was nonunion, whereas the complaint of the Union allegedly was that only the new
Renton store was nonunion. This was manifestly the case and, as Hays testified,
"I agreed with him."
Lawrence then asked Hays what position he held in the Union and Hays informed
him thereof. Lawrence asked what position employee Ed Hardy held in the Union.
Hays told him that Hardy was a member of the executive board and also was one
of the stewards who contacted new employees under the Dorsey plan to promote
union membership. Lawrence replied that he had no objection to Sears employees
joining unions, but that Sears paid the prevailing union wage scales or better
and he therefore did not consider it necessary for Sears employees to join a
union. There appears to have been a hiatus in Sears' attention to Hays as a
union official, for no evidence has been adduced concerning Hays in this respect
until May 1961.
(2) On or about May 18, 1961, Sears held a number of employee meetings at this
store which were presided over and addressed by one Donogh, in charge of a group
of Sears stores in this area. Nine groups varying from 25 to 30 in number were
brought in for these meetings which lasted approximately 45 minutes each. Accord-
ing to Hays, Donogh, who did not testify, commented about the Union's attitude
in the current negotiations and advised the employees to contact the Union and ask
to be permitted to vote on the current proposal by Sears to the Union, stating that
the employees of the Tacoma store were "very happy" about the similar proposal
which they had accepted. He commented on the Union's request for a union-
security clause and stated that Sears believed a union should not be able to dictate
to an employee whether or not he could work. He referred to Secretary-Treasurer
McLean of the Union as being indoctrinated by the International. Donogh pointed
out that Sears was not opposed to unions because the store had been organized
since 1937 and that Sears stores throughout the State were organized. He ex-
plained the various company benefit programs that were in existence.
At the end he asked for questions. Hays testified that he asked "a couple."
Hays asked why, if Sears were not antiunion, it had screened almost 4,000 prospec-
tive employees in staffing the Renton store and why Sears had prevented the Union
from contacting employees at the store. Donogh replied that "maybe I made
a mistake by opening the Renton store nonunion. If I had it to do over again, I
would probably do it differently. However, I do take full responsibility for doing
it. As far as keeping the union away, at that time, anything went."
Hays then asked why Sears had withdrawn from the Seattle Department Store
Association and Donogh replied that Sears still belonged to it. Hays commented,
"By that, you mean they have the same attorney, Mr. Dorsey." I-Hays went on to ask
why, if Sears belonged to the association, it had not signed a contract as the
other stores had. Donogh replied that Sears was in litigation with the Union at
the time. Hays added that immediately after the meeting he encountered Purse who
asked him what he had thought about the meeting. Hays replied, ": never heard
so much [profanity deleted] in my life."
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hays was asked if anyone else had asked questions at this meeting. He recalled
that a girl had asked a question about including the 1-percent commission in the
contract and Donogh replied that he personally would see that it was done if it
was the only thing holding up a contract.
Wandell was present at all these meetings that day. He testified that there were
at least 15 to 20 questions at each session , that he did not recall the identity of the
persons asking the questions, and that he did not recall whether Hays did or did
not ask any. His version was similar but not identical to that of Hays concerning
the remarks by Donogh. He contended that none of the questions asked stuck in
his mind as hostile questions, contrary to the claim of the General Counsel here
with respect to those asked by Hays. He further characterized the meetings as in-
finitely friendly in nature. Respondent expressly contends, and I concur, that the
record will not support this characterization of the questions asked by Hays, or that
Hays alone asked hostile questions.
(3) Within a few days of the Donogh talks, Hays encountered Department
Manager Jim Stevenson of the floor covering department at a nearby coffeeshop.
In an ensuing conversation Stevenson stated that in view of the prevailing company
benefits for employees, unionization was unnecessary and employees would be
wasting their money, presumably dues and initiation fees. Hays disputed this, point-
ing out that the Union had improved working conditions He further stated that
Sears' profit-sharing program was a most effective antiunion scheme because any
employee with 5 years' tenure was reluctant to speak up for fear he would be termi-
nated and lose out on the profit-sharing plan; there is no such evidence in this record.
There is also no direct evidence that Stevenson, who did not testify herein and with
whose department Hays had no connection, relayed these comments to any other
management officials.ii
(4) Hays testified concerning the circulation of a petition in the store during
May 1961, shortly after the Donogh talk. He testified that three were circulated
but that he had personally seen only one. A television set salesman named Ryder
approached Hays one morning, displaying a petition prepared in triplicate, wherein,
according to Hays, the Union was urged to call a meeting so that employees could
vote on management's current proposal to the Union. Hays asked Ryder why there
were three copies and Ryder, who did not testify, "had no answer for that." Hays
asked who prepared the petition and Ryder "had no answer." Hays informed Ryder
that a union meeting held less than a week before had treated with this issue and
that a letter had been sent to the membership to inform them thereof.
Hays refused to sign the petition and claimed that similar petitions had been
circulated in two other Washington stores and that when the meetings were called,
local store management officials together with Jim Austin of the Sears industrial
relations department appeared on the scene. Hays further claimed that the petition
was something "the store had dreamed up, and not the members of the union." Hays
further testified that he did not volunteer his opinions about this petition to em-
ployees, but, when asked, advised them against signing it. He claimed that of the
130 signers to this petition none, so far as he knew, were members of his department
or of the adjacent building materials department.'2 There is nothing in the record
to show management knowledge of Hays' remarks to Ryder concerning the petition.
(5) The General Counsel also relies on the following incident. As indicated,
Edgar Hardy is a member of the executive board of the Union, a shop steward, and
is a salesman of boats and marine supplies at this store. On May 27. according
to Hardy's uncontroverted testimony, he was asked to report to Wandell's office.
There, Wandell, after discussing fishing, asked Hardy what his union duties were.
Hardy replied that he was a member of the executive board and also spoke to new
hires. Wandell replied that Sears "didn't like that." This last statement by Wandell
would appear to reflect Sears' or his views on the operation of the steward system.
In fact, Hardy so construed it, as his subsequent remarks disclose; furthermore,
Wandell's later remarks warrant an identical inference.
Hardy stated that Dorsey had written McLean approving such activity and Wandell
replied that Sears had undergone a "change in mind" because of subsequent events.
Wandell then asked if anyone else in the store "was to do this also." Hardy replied
li Employee Ed Hardy testified hereinafter about statements made to him by Assistant
Manager Wandell with reference to a similar but not identical conversation between Hays
and "another employee in the store" in this or a similar coffeeshop. There was no identi-
fication at that time of this order "employee " Stevenson, it may be noted, is a superviwr
on a par with Purse, the head of Hays' Department
]3I do not read his testimony as claiming that no one in these two departments sieved
the petition.
SEARS, ROEBUCK & CO., INC. 483
that in addition to the normal steward, Wiley, employees Hays, Blackburn, and
several female employees also did this work. Wandell pointed out that Hays and
Blackburn, the latter not otherwise identified, "weren't in too good standing" with
Sears, and that one of the reasons for the meeting was to warn Hardy against getting
himself in the same category as these two employees.
Wandell elaborated on what he meant, pointing out that "he felt the reason that
Hays was in the position he was was that he didn't have enough responsibility at
home, being that his wife worked and he wasn't the sole wage earner in the family
that he didn't have to keep his nose to the grindstone as much as he would if he
were the only wage earner in the family."
Wandell also referred to a conversation in the coffeeshop where Hays had told
an employee that the profit-sharing plan was no longer an incentive. He also com-
mented on a grievance filed by Hardy concerning unpaid commissions; this was one
of the grievances treated in the court decision, supra. He suggested that Hardy
bring future grievances directly to him rather than to the Union. Wandell added
that Sears was not antiunion, but would not do the Union's work by giving the
Union a union shop. He expressed his dislike for unions as dating back 20 years
when union supporters or officials had beaten up several employees in an effort
to persuade them that unionization was desirable and beneficial.
Respondent, in turn, argues that after Wandell disclosed less than an abundance
of affection for labor organizations, the tenor of his remarks discloses an attack
upon Hays which is predicated upon factors other than union activities. Specifically,
Respondent argues that it is directed to an absence of responsibility on the part of
Hays because his wife worked and he therefore did not have the responsibility and
pressure of being the sole wage earner in the family. It may be noted that there is
no evidence of discrimination against Hardy, Blackburn, or the unidentified female
stewards. Also to be noted is the fact that there is no evidence as to how active,
if at all, Hays was in the stewardship program. Moreover, while there is ample
evidence that Wandell did not hesitate to speak to Hays about matters of which he
disapproved, the record discloses no statements to Hays by Wandell or other man-
agement representatives concerning the stewardship program.
2. Respondent's contentions
This case may be characterized as one out of the ordinary. On the one hand, an
employee of 14 years' seniority who is a union official has been discharged. Re-
spondent contends, and I am inclined to concur, that a concern such as Sears,
organized by labor organizations for many years and fully familiar with the field
of labor relations, as indeed the prior discussion of the refusal to bargain allegation
discloses, would hardly be incapable of a carefully worked out explanation, if Hays
had been deliberately discharged for reason of his union activity. A realistic ap-
proach to the field of industrial relations lends weight to this contention and it is
substantially reflected in the many volumes of Board decisions.
On the other hand, Respondent concedes that its witnesses gave inconsistent tes-
timony, were confused, and were inept. Be that as it may, this still calls for a close
scrutiny of the circumstances of the discharge and Respondent's reasons therefor
Respondent's appraisal of its witnesses is indeed correct, but that is not the issue.
This is not an arbitration case where a penalty less than that inflicted by the employer
may well commend itself to the arbitrator. Of primary concern here is Respondent's
motivation in terminating Hays. If Wandell on behalf of Sears had wished, justi-
fiably or otherwise, to eliminate Hays from the employ of Sears, this is not neces-
sarily to be equated with motivation based upon his union activities, which as dem-
onstrated, were not prominent. As will appear, Wandell for some years had been
hostile to Hays and this substantially antedates the more recent period on which
the General Counsel places reliance.
Hays was discharged on June 20, 1961. It is Respondent's basic contention that
Hays was discharged because of a continued disregard of company rules including
rules concerning reporting on time, making out records of sales , and leaving early
without permission and the so-called Kipper incident. The latter reflects the name
of a customer whom Hays visited on Saturday, June 10, after which he did not return
to the sales floor prior to the 5:30 p.m. closing hour.
Initially, it is to be noted that Assistant Store Superintendent Wandell had been
attempting to discharge Hays as far back as 1957, at which time Hays had been
in the employ of Sears for 10 years and under Purse in the plumbing and heating
department for approximately 5 years.
The record discloses that the discharge of a Sears employee with 4 years' tenure
must be approved by Pacific Cost headquarters at Los Angeles. It is also the policy
672010-63-voi 139 32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Sears that where an employee is deficient his department head will confer with
him several times. If this is not productive , he is referred to the assistant store
manager, in this case Wandell , for a so-called corrective interview . The record
discloses the first such interview of Hays by Wandell in September 1957 , predicated
upon his poor sales performance at that time . Shortly thereafter , Wandell recom-
mended his discharge for this reason , but the Los Angeles office refused to approve.
Thereafter , Hays' sales performance improved noticeably to the point where he was
among the better producers on the staff of this department.
I am reasonably convinced that Wandell , apparently of a meticulous nature, re-
sented and disliked Hays thereafter and kept close tabs upon him. However, con-
trary to the position of the General Counsel , the record amply discloses that his
hostility toward Hays was predicated upon personal factors unrelated to his union
activities . Indeed , the General Counsel does not contend , nor could he on this rec-
ord, that the 1957 recommendation was predicated upon the union activities of Hays.
(1) Respondent has adduced evidence that Hays received approximately seven
corrective interviews during his tenure with Sears.13 These include two in March
1955 predicated upon his unsatisfactory performance , and a third in September 1957
for the same reason which led to the unsuccessful attempt of Wandell to discharge
him. A fourth corrective interview was held in May 1959 and reflects criticism for
leaving early . Specifically , Hays did not check out upon leaving early and Wandell
interviewed him for "irregularity of in and out time." As will appear , Wandell disap-
proved consistently of Hays because he checked in late and left early , albeit by small
margins. The next corrective interview is dated May 17, 1960 . Hays was criticized
for arriving later than the scheduled 8:40 a.m. hour because he had stopped for a
haircut.14
The last two corrective interviews prepared on June 20, 1961 , reflect Hays' con-
duct on June 10 and 19, 1961 . The former is the so-called Kipper incident, dis-
cussed below , when Hays received permission at 3:55 p.m. on Saturday , June 10, to
visit a customer , Kipper, located several blocks from the store in order to complete
the details of a sale. He is criticized for not returning to the store to complete the
day and also for "Repeated irregularities in tardiness , leaving early , and failure to
complete all detail on proper leaving time ." The other treats with his leaving at
5:17 p .m. on June 19 , 1961 , without permission ; in fact , this was done after he knew
that another employee had been refused such permission.
The record warrants the inference that Sears was reluctant to discharge any em-
ployee. This is disclosed by the fact that Wandell was unable to obtain permission
to discharge Hays in 1957 , a time when Hays had 10 years of tenure . Nevertheless,
according to Wandell's uncontroverted testimony , out of a total of 650 employees in
the store , he had but 3 corrective interviews with employees in the year preceding
the discharge of Hays and but 6 or 7 during the year before that.
While Purse testified that he had never referred another employee for such a cor-
rective interview , Respondent concedes in its brief that the record discloses that one
other employee was referred for such an interview in 1958. I find therefore that
Hays' record for such interviews was, to say the least, well in excess of the norm.
(2) It is undisputed herein that Hays ' sales record was above reproach for several
years. By the same token , it is clear that both Purse and Wandell disapproved of
what they deemed Hays ' lackadaisical approach to store routine . This in fact is re-
flected in Wandell's talk with Hardy , as set forth above. Hays received annual rating
reviews where he was regularly criticized for tardiness and lack of punctuality.
Wandell testified that on May 20 , 1961, he personally told Hays that he was again
breaking a store rule by leaving early without permission . It is undisputed that Wan-
dell reviews the timecards each Monday morning and personally talks with any
employee who has been tardy or has left early.15
( 3) Sears maintains what is referred to in the record as a big ticket user book.
All sales over $50 in this department are recorded in this book so as to make up
customer solicitation lists for future contacts and sales, as well as to have a quick
v All these corrective interviews were by Wandell , a supervisor of long tenure As
indicated , each of these follows two or three reprimands . Thereafter, the department
head , Purse , referred Hays to Wandell who in turn prepared a written memorandum for
the employee 's personnel file. These memorandums are in evidence and, but for Hays'
contrary testimony, their authenticity is unassailed
14 Hays recalled the incident although he placed it as 6 to 12 months before his dis-
charge He testified that Wandell told him that Purse did not object to his getting a
haircut on company time , but that he did object to his doing it the first thing in the
morning. I do not credit Hays as to the date.
15 Hays recalled no warnings between 1959 and 1961 . In fact, he did not recall the 1959
corrective interview which is in evidence.
SEARS, ROEBUCK & CO., INC. 485
reference to the sale should a customer call in. According to Wandell, and I so find,
Purse complained to him at least three times that Hays had not recorded such sales
in the book, and after at least two of these complaints Wandell called in Hays and
requested him to comply with Purse's wishes in this regard. The first complaint
was 60 to 90 days before June 10, 1961, and the second shortly before the latter date.
The third was on June 12 when Purse sent Wandell a memorandum stating "Jack
Hays left Sat. [June 10] before his work was complete. I have trouble with him
constantly with regard to entering his sales in the big ticket user book-the attached
sale was not entered. He took off three weeks ago early on Sat., after I had gone on
a call." Attached to the memorandum was a sales slip reflecting a heater sold to a
named customer for an amount in excess of $100. Hays admitted being interviewed
by Wandell at least once concerning his failure to comply with the store rule in this
respect.
Hays claimed that this system had been abandoned at least a year prior to his dis-
charge in lieu of having names and addresses supplied by the credit department.
Wandell, in his testimony, treats the system as a current one and so does Purse. In-
deed, on June 12, as described below, Purse specifically complained about Hays in
this respect. That compliance with the rule was regarded seriously is shown in other
testimony by Hays that he had heard Purse reprimand other salesmen for failure to
make such entries. On this entire picture, I do not credit Hays' testimony that the
system had been abandoned.
(4) One incident developed in the record by Respondent might best be character-
ized as being as remote as the bumper strip incident relied upon by the General Coun-
sel. Sears had a very firm rule prohibiting employees from parking in areas reserved
for customers rather than in areas specifically designated for use by employees. A
memorandum distributed in September 1960, warned employees that failure to com-
ply with this regulation warranted immediate dismissal. According to Wandell, he
found it necessary to take this up with Hays on two occasions, the last in September
1960, although he elsewhere testified that the problem had been discussed with
Hays on numerous occasions.
(5) Wandell testified that in his terminal interview with Hays at approximately
4 p in. on June 2'0, he reviewed the entire situation of the previous 5 to 7 years, in-
cluding his lack of cooperation, poor attitude, constant breaking of store rules, sev-
eral warnings by Purse, the corrective interviews, his whereabouts on June 10, and
his early departure on June 19, stating that "it was his entire past performance and
turning right around on June 19, leaving the store with nobody's permission prior to
the end of the schedule." Later in his testimony, Wandell also referred to the fact
that he had brought up with Hays his improper use of the parking lot.
Hays placed the terminal interview at 3:30 p.m. that day. Wandell brought up the
Kipper incident and discussed whether Hays had first called on Kipper or on one
Schultze on June 10.16 Hays brought up the fact that he had on several occasions
requested a transfer from Purse's department and had been refused. Putting aside
the fact that this, on Hays' version, discloses an unsatisfactory relationship unrelated
to union activities, Wandell replied that this was academic because "I am going to
let you go." Hays expressed surprise and Wandell stated that although Hays had
not broken any rules, he "had bent some." Hays accused Wandell of discharging
him for union activities and Wandell denied this. Hays insisted that Wandell was
scraping the bottom of the barrel to find reasons for his termination. He insisted
that his early punch-out on June 19 was a common practice and asked why he had
been singled out. Wandell replied that he was interested in Hays and not in anyone
else
(6) Wandell's reference to the tardiness of Hays is supported by the testimony of
Department Head Purse and to some extent by Hays. Purse testified that he criti-
cized Hays' work habits a number of times between September 1957 and June 1961.
Once, in early spring 1961, Hays arrived for work an hour late. He had not called
in and when asked as to his whereabouts, he told Purse that he had been shopping
for a set of automobile tires. He added that he had simply forgotten to call in, de-
spite a store rule requiring this.
(7) Purse made numerous comments to Hays about being late for Saturday
morning sales meetings which were scheduled for 8:30 a.m. As Purse put it, Plays
was an excellent salesman at times and lacking as a salesman at others. His
tardiness was quite general as were his early departures without permission and "I
didn't have a fraction of such problems with the other employees." Hays admitted
being 10 to 15 minutes late for work on one occasion prior to September 1950,
because he was negotiating for a set of tires at a service station, other than that at
10 Hays, as will appear, admitted that he had lied about making a call to Schultze on
June 10 in an effort to put an end to Wandell's repeated questioning.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears. He previously admitted, however, that he had been called to task by Purse
for being late at sales meetings on Saturday mornings "Possibly on several occasions."
He claimed that other salesmen were also late on occasion for these meetings.
He came forward with a rather lame excuse here, claiming that Purse insisted on
these meetings starting at 8:30 a.m. whereas the timeclock was not open until
8:35 a.m and Purse wished them to punch in before the meeting. However, there
is ample evidence that when salesmen left early or arrived late with justifiable
cause, they were permitted to write in the appropriate time on their timecards
I credit Purse and Wandell herein In so doing, I am impressed by Hays' evasive-
ness as to the June 19 incident discussed below.
(8) Another matter relied upon by Respondent is the fact that it had cause
to believe that Hays falsely took a day off on sick leave. Purse uncontrovertedly
testified that Tuesday, March 28, was Hays' day off. On Wednesday, March 29,
Purse received a telephone call from the personnel office that Hays was home ill.
It later became necessary to contact him that day and Purse attempted to telephone
him four times as late as 4 p.m. with no response. On the following day, Hays
insisted to Purse that he had been at home.
(9) Purse testified, as noted, that Hays frequently left the store early without
permission from January 1961 up to the date he was discharged. Wandell testified
that during the week ending May 20 he had reprimanded Hays for so doing. Hays, in
turn, claimed that leaving early was a custom and practice on days when the store
was open late.17 Hays claimed that a practice existed for the first shift to leave
early after the second shift returned from lunch at 4 or 4:30 p.m.
This was categorically denied by Purse and by his assistant, Hauschild, who insisted
that permission had to be granted under such circumstances. Indeed, Hauschild
testified that employee McConnaughey, who did not testify herein, asked for permis-
sion to leave early on Monday, June 19-. Hauschild replied in the negative, but
stated that he would see what he could do. He then asked Store Manager Lawrence
if this could be done and the latter replied that no one could leave before 5:30
p.m. because they were short handed that day. Hauschild returned to the department
to speak with McConnaughey, and encountered him talking with Hays. He then
told McConnaughey, in the presence of Hays, that "Lawrence said no one was to
leave early." Later that afternoon, a telephone call came in for Hays and it was
discovered when he could not be located that he had punched out at 5:17 p.m.18
Hays presented what I deem to be weak testimony concerning this episode. He
fully suported Hauschild's version of the conversation with McConnaughey. He
claimed, however, that Hauschild stated only that "he [McConnaughey) couldn't
take off early that day; but as far as actually telling me or anyone else they couldnt'
leave, he did not do that." He claimed that the statement made to McConnaughey
was not addressed to him, Hays; obviously it was not and I so find, although I
deem it to be a feeble attempt to evade knowledge of the situation. Be that as it
may, I find that Hays was on notice that Lawrence had forbidden an early departure
on May 19 and Hays chose to leave early at 5:17 p.m. despite this fact.
The record is replete with contradictory testimony concerning the Kipper incident.
Wandell contradicted himself, as did Kipper; moreover, Hays invented testimony
at two points concerning this episode. In barest outline, however, I find that Hays
was visited at the store on Friday, June 9, by customer Kipper. He sold Kipper
a new furnace, but the deal was left in abeyance until an estimator called at the
Kipper home and determined which of two furnaces was more appropriate.
On Saturday morning, June 10, at Hays' request, an independent heating con-
tractor, Hilyard, visited the Kipper home and thereafter called on Kipper at his office.
Hilyard then telephoned Hays shortly after lunch and suggested that he get in
touch with Kipper to close the deal on a specific furnace. Hays telephoned Kipper
and agreed to see him sometime that afternoon Department Manager Purse was
out of the store that afternoon. Accordingly, Hays went to Wandell at approximately
3:55 p.m. and obtained permission to visit Kipper. Wandell, it may be noted, was
acquainted with Kipper. This call was to be made at Kipper's office, some three or
four blocks distant from the store and not over a 5-minute drive
Hays testified that he told Assistant Department Manager Hauschild where he
was going and that he did not sign out in the sign-out book 19 Hays conceded that
"On such days the day shift ends at 5 30 p in and the late shift starts at noon and
works into the evening
IA I am not unaware that the confused testimony of Wandell places his request to Los
Angeles to terminate Hays prior to this episode Nevertheless, it does shed light on Hays'
truthfulness as well as Respondent's overall motivation herein
19 Hauschild was not questioned concerning this conversation
SEARS, ROEBUCK & CO., INC. 487
"as a rule" under such circumstances one would place in the sign-out book the
customer's name and telephone number so that the salesman could be reached if
necessary. The General Counsel also concedes in his brief that "it was customary"
to do this. Hays testified that he saw no need for recording this information inasmuch
as he had orally advised Wandell and Hauschild where he was going.
Hays claimed that he arrived at Kippers' office at 4.05 p.m. and remained there
for 40 to 45 minutes . Kipper had some questions and Hays made out two docu-
ments, a payment form and a credit application form. He received a check for
10 percent of the purchase amount and left. Hays had intended to proceed to his
home but realized that he was not due at the store until noon on Monday. He there-
fore went directly to the credit department at the store and allegedly turned in the
credit application at "about 9 o'clock."
There were two girls in this department, Frances Johnson and Marie Spitz.
Spitz normally handles this work, but Hays was explicit in his testimony that he
turned in the application to Johnson. In fact, he went on in his testimony and
testified how Johnson explained to him that there had been some recent changes
in the handling of these credit applications. When Johnson later testified that she
was not at work that day, Hays was recalled as a witness and testified that he was
in error and had turned the papers in to Spitz. There is also evidence, although not
directly so from Spitz,,that Spitz processed such applications only during mornings.
This entire incident did not come into focus until June 12, as described below.
It may be noted, at this point, that Hays places himself in the store at 5 p.m. As
found, permission to leave early is required, contrary to Hays' version. He even
conceded that Saturday was "one of our busier days." Joseph Zaffino, formerly
assistant manager prior to Hauschild, testified for the General Counsel concerning
Hays' ability as a salesman . But even he testified, contrary to Hays, that if a sales-
man out on a sales trip was not too far distant from the store, he was to return to
the store and stay on the sales floor until 5:30 p.m. He further noted that a majority
of store business is generated on the floor and, "at least eighty percent of the
[salesman's] time is spent on the floor because that's where prospects were."
I find, therefore, that Hays was 3 blocks from the store, returned at 5 p.m. to
the credit department of the store, and did not return to the sales floor. In addition,
his testimony discloses that the sign-out book was used regularly and that permis-
sion to leave was regularly requested. There is no indication in the testimony
of Zaffino, contrary to Hays, that the signout book was not used when the salesman
disclosed the name of the customer to his superior.
I therefore do not accept Hays' testimony that salesmen would customarily not
return from a Saturday call when they had left after 3:30 p.m. And, while he
further testified that on nearby calls they would not return to the store if but one-
half or 1 hour of time remained, the fact is that he was already in the store at 5 p.m.
This view is buttressed by the fact, as will appear, that Hays found it necessary to
lie to Wandell and invent a fictitious call later that afternoon to a customer named
Schultze. And this was done in the face on his own testimony placing himself in
the store at 5 p.m., in which respect he was further vulnerable.
This also gives considerable weight to Respondent' s claim that Hays did not
return to the store that day and that he turned in the credit report to Spitz on
another occasion.20
On June 12, as indicated, Department Manager Purse sent a note to Wandell com-
plaining that Hays had left on Saturday, June 10 , "before his work was complete."
Purse stated that he had "trouble with him" constantly for failure to record sales in
the big ticket user book, and attached a copy of a sale in the amount of $124.54
which had not been recorded . He also complained that Hays had left early three
Saturdays before, apparently May 20, when Purse was out on a sale.
While Wandell somewhat inaccurately concluded that this note asked him to
check Hays' activity on June 10, he considered the note broad enough in its
implications to check the sign-out book on June 10, and he ascertained that Hays
had not signed out. He also called in Purse' s assistant , Hauschild, to ascertain
why this sale had not been recorded in the big ticket user book. Wandell claimed
that he telephoned Purse at his home that afternoon 2i They reviewed the early
2" While Spitz did not testify, a memorandum from her provided to Wandell is in evi-
dence and discloses Hays as turning in the sales slip on the morning of June 10. On the
other hand, Kipper's testimony makes reference to the credit form being made out on the
afternoon of June 10 by Havs Still another possibility, not explored, is that Havs
brought in the fo,m on another morning. because Spitz is otherwise engaged after lunch.
21 According to Wandell, Purse was preparing for his vacation commencing the week
of June 12 Purse claimed that he started his vacation on June 19
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departure 3 weeks before and Wandell concluded that Hays was unwilling to accept
corrections for not following store rules. All this brought to Wandell's mind the
possibility that Hays might have gone elsewhere than to visit Kipper that afternoon.
He asked Purse to contact Kipper, but Purse was unable to reach him. Wandell
stated that he would take over the matter. As indicated, there is much confusion in
the testimony of Kipper, as well as that of Wandell, as to the timing and sequence of
these calls to Kipper and as to what was said. There is evidence that Kipper may
have told Wandell that Hays made the call on Saturday morning, confusing him with
the estimator.
Hays claims that he was not spoken to by Wandell during the week of June 12
and not before June 20. While Wandell, on June 21, prepared a memo for com-
pany records wherein he referred to talks with Hays on June 20, in his testimony he
placed himself as talking with Hays during the week of June 12, on June 19, and
on June 20 . Wandell was unable to reconcile these inconsistencies . It is undis-
puted that Wandell telephoned Sears' office in Los Angeles on June 19 before learn-
ing of an early departure by Hays later that day. Therein, consistent with standard
procedure, he requested approval of his decision to discharge Hays. He telephoned
again on June 20 and received this permission . He also testified that he had recom-
mended the discharge of Hays to Store Manager Lawrence on two or three
occasions and that he had recommended it 4 days prior to June 19, on which
date Lawrence finally approved it; this last recommendation was not further explored
herein.
On June 19, according to Hays, he had no talks with Wandell, but the latter
testified as to considerable conversation on that date. According to Wandell, he
called Hays to his office and asked when he had visited Kipper and what his ac-
tivities had been on the afternoon of June 10. Hays replied that he had visited Kip-
per, had consummated the sale, and had then called upon another customer. He
gave Wandell the name of the customer, Schultze. Wandell then asked to see the
prospect card for Schultze . They went to the plumbing and heating department
,and Hays produced a prospect card, saying he had gone to see this customer at 5 p.m.
after the call upon Kipper.
It is the further testimony of Wandell that after this conversation with Hays, and
with the approval of Store Manager Lawrence, he then telephoned Los Angeles and
recommended the discharge of Hays. That afternoon Wandell, displaying consider-
able tenacity , called in Hays again . He explained that he wanted to find out what
had really happened on the afternoon of June 10 "because there seemed to be a
discrepancy ." He in effect asked Hays the same questions he had asked in the
morning and received the same answers.
Another incident of interest took place that afternoon , after the recommendation
of the Hays discharge by Wandell. I have previously set forth how Assistant De-
partment Manager Hauschild had instructed employee McConnaughey , earlier that
day, and in the presence of Hays, that no one was to leave early. Late that afternoon,
a telephone call came in for Hays. Hauschild took the call , was unable to find Hays,
and came to Wandell 's office. He asked Wandell if Hays had been given permission
to leave early or was in one of the offices. Wandell replied that he had not given
Hays permission to leave early . At this point , Store Manager Lawrence came
upon the scene and asked what the discussion was about Lawrence was duly in-
formed; Wandell went some 20 or 30 feet to the timeclock, pulled Hays' timecard
and noticed that it had been punched out at 5:17 p.m. Lawrence then commented,
"This is it." 22
Hays placed his initial talk with Wandell , when he named Schultze , on June 20
He testified that he was called to the office at approximately 10:30 a.m. Wandell
asked why the sales tickets on the Kipper sale were dated June 12, if the call had
been made on June 10. Hays explained that he had brought the credit information
and the check to the credit department on June 10, whereas he had written up the
tickets on Monday, June 12.
Wandell asked when Hays had been at the Kipper residence. Hays allegedly
replied, "You should know that as well as I do because I came in and asked your
permission. . . . What time do you think it was?" Hays then added that he had
left the store at 4 p.m., had returned at 5 p m., and had turned in the tickets to
Frances Johnson after which he had gone home.
Wandell asked why Hays had not returned to the sales floor Hays replied that
there was less than one-half hour left in the day and, moreover, had he returned, he
would have been "low man on the register." This would mean that Hays would
ff' Wandell placed Hauschild ' s visit to his office as taking place between 5 and 5 •10 p in
In view of the punch-out time on the card, it would seem that either the group discussed
the matter for some minutes , or else that Wandell was slightly off on his time
SEARS, ROEBUCK & CO., INC. 489
have been saddled with the responsibility of clearing the register and turning the
cash in to the cashier. This apparently has reference to Hays being low man at
sales because of his absence that afternoon . There is nothing to indicate the extent
of Hays' sales up to 4 p.m. that day or that of the other salesmen. It would seem,
however, that if Hays is credited that there was little business after 4 p.m. on Satur-
days, he may well not have been low man on the register , contrary to his fears.
At this time, according to Hays, Wandell also asked why Hays had punched out
at 5:17 p.m. on the previous day.23 Hays then claimed that the first shift customarily
left early after the late shift returned from lunch on late days such as Monday,
June 19. Wandell reverted to the Kipper call and asked if Hays was certain he had
not made another call on the afternoon of June 10 . Hays testified that "I finally
in desperation" admitted another call had been made . He testified that this was
not the truth but inasmuch as Wandell refused to accept the truth, he concluded that
if he said he had made such a call "the matter will be dropped." Wandell asked for
the name of the customer and Hays said he would have to get the name in the depart-
ment. He looked in his drawer , removed a sketch of a plan for a customer named
Schultze, and said that this was the call he had made after the Kipper call.
It is interesting to note that Hays testified he told Wandell he had turned in the
Kipper papers to clerk Spitz; that he had actually turned them in to Frances Johnson
for transfer to Spitz; and that he named Spitz because papers were normally turned
in to her. As indicated , he testified herein that he had turned the papers in to
Johnson , had held a conversation with her wherein she explained certain changes
in the credit system, and thereafter changed his testimony to the effect he had turned
them in to Spitz, this after Johnson testified about not being at work on June 10.
As for June 20, Wandell testified that he telephoned Mrs. Schultze that morning
and was told that Hays had visited her directly after lunch on June 10 at approxi-
mately 1:30 p .m. He called in Hays at 10 or 10 : 30 a.m ., after his call to Schultze,
and again questioned him as to his calls on June 10. Hays insisted that he had seen
Kipper and that he thereafter proceeded to the Schultze residence between 5 and
5:30 p.m.
Wandell also brought up the fact that Hays had punched out early at 5:17 p.m.
on June 19, after having heard Hauschild state that no one was to leave early.
Wandell asked why Hays had done so and Hays replied, "I just wanted to leave."
Hays denied telling Wandell on June 20 that he said he just wanted to go home early
and testified that he was following a regular practice and would be glad to work
until 5:30 p .m. if the other salesmen did, but did not want to be the only man
stuck with this chore.
According to Hays, he was called in again by Wandell at 3:30 p.m. and Wandell
asked about the order in which he had made the two calls. Hays stuck to his story
which was contrary to the fact. Hays protested that he did not want to be the
"fall guy," and if Sears wanted to abandon the practice of day calls , that was agree-
able with him. He reminded Wandell that on several occasions he, Hays, had at-
tempted unsuccessfully to be transferred out of Purse's department. Wandell replied
that this was now academic because he was releasing Hays.
It is to be noted that at noon on June 20, Wandell prepared two separate correc-
tive interviews . In one, he referred to the fact that Hays had left at 3:55 p.m. on
June 10 with approval to complete a sale with a customer a few blocks from
the store and that he had not returned to his department that day. He added
"Repeated irregularities and tardiness , leaving early , and failure to complete all
detail on proper leaving time ." In the other interview memorandum , Wandell
referred to the fact that Hays had left the store at 5:17 p.m. on June 19 without
permission when he was scheduled to be on the floor until 5:30 p.m.
Wandell testified that he called in Hays on Tuesday afternoon and reviewed his
record of the previous 5 to 7 years, mentioning his lack of cooperation , his poor
attitude , his constant breaking of store rules , his unchanged attitude after several
talks with Purse , the corrective interviews , his absence on June 10 , and ultimately
his early departure on June 19 without permission . He summed it up by stating "the
whole ball of wax was grounds for dismissal " and that Hays was terminated. In
other testimony concerning the conversation, he added that he had also referred to
Hays' ancient refusal to park in designated areas.
3. Conclusions
To sum up, there is presented a picture of no hostility by Respondent to union
organization as such in this store , because the Union has for many years rep-
='I WWWandell in his testimony places this topic as being raised in his conversation on the
afternoon of June 20.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resented these employees. Nor was there pending any question concerning the
representation of employees. In addition, the unfair labor practices heretofore found
are in the nature of technical violations closely tailored to Respondent's refusal
to incorporate two conditions of employment in a bilateral signed agreement, as well
as a failure in one instance to meet with an international representative. These do
not amount to a full-fledged case of opposition to the principles of the Act. In
addition thereto, the discharge of Hays came rather late in the day, after collective
bargaining had broken down.
There is the additional factor that Hays was not involved in the bargaining ne-
gotiations. As for evidence of hostility on the part of Respondent to Hays, the case
is weak, as found above. The strongest point for the General Counsel is the talk
of Wandell with Hardy but this, as found, was generally tailored to his comments
disclosing a dislike for the existing steward system. And, it is a fair statement that
there is a serious question concerning the legality of management participation and
assistance in the operation of this system. Moreover, this talk reflects Wandell's dis-
like of Hays as based upon a lack of personal responsibility because his wife worked
and there was no pressure upon him as there would be if he were the sole wage earner
in the family.
The record also discloses that Hays was unhappy under Purse and under Wandell
because, on his own testimony, he had been attempting unsuccessfully to transfer out
of this department. The inference is warranted that the strictness of Purse concern-
ing the observation of store rules contributed to this decision, and this, of course,
was a factor unrelated to union activities.
Even Hays' version of the talk with Wandell on June 20 demonstrates that he was
somewhat insolent, and demonstrates a desire on his part, in not returning to his de-
partment, to avoid a chore in computing the cash in the register in his department.
All this is consistent with Wandell's evaluation of the man. Hays went beyond this
and falsified the call to customer Schultze as well as his visit to Johnson in the credit
department. Although he retracted his testimony concerning his call to Johnson, de-
spite his previous detailed testimony about a lengthy conversation with Johnson
concerning changes in the credit department, his explanation of an afternoon visit
to Spitz is not entirely satisfactory On the other hand, the contradictions and de-
ficiencies in Respondent's case are manifest. It is readily apparent that the handling
of the case is no model in the field of personnel relations and it leaves much to be
desired.
My observation of the witnesses in this case and their demeanor left me with a
distinct impression that Wandell for some years had found Hays a constant irritant
on a personal basis for what Wandell, as well as Purse, deemed, correctly or incor-
rectly as the case may be, his lack of responsibility or lack of concern about detail.
And there is evidence that Hays had been reprimanded about not using the big ticket
user book within a short period prior to the discharge as well as being reprimanded
concerning an early checkout He in fact had also received a corrective interview
on May 17 concerning being late for work.
I find, therefore, that the evidence of union activities is weak and also that Re-
spondent's case leaves much to be desired. I find that Wandell had for a long time
wished to eliminate Hays from Sears' employ because of his disapproval of the man
and that he did so on June 20 when the occasion presented itself. I further find that
this was not predicated upon the union activities of Hays or on his union sympathies
but rather upon other unrelated considerations. I shall accordingly recommend that
this allegation of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III. above, occurring in connection
with its operations set forth in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Retail Department Store Employees Local 1207 is a labor organization within
the meaning of Section 2(5) of the Act.
SEARS, ROEBUCK & CO., INC. 491
2. Sears, Roebuck & Co., Inc., is an employer within the meaning of Section 2(2)
of the Act.
3. All retail sales clerk employees of Respondent at three Seattle, Washington,
stores located at First and Lander, Roosevelt Way, and Market Street, excluding
supervisory personnel, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Retail Department Store Employees Local 1207 at all times material herein
has been and now is the exclusive representative of the employees in the aforesaid
appropriate unit for the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing to meet with a designated representative of the labor organization
representing its employees, and by refusing to incorporate in a bilateral signed contract
existing conditions of employment or any other conditions of employment that might
be agreed to, including the 1-percent commission program and clauses treating with
union membership, Respondent has refused to bargain with Retail Department
Store Employees Local 1207 as the representative of its employees in the above-
described appropriate unit, and has interfered with, restrained , and coerced its em-
ployees in the exercise of their rights under Section 7 of the Act, thereby engaging
in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not otherwise engaged in unfair labor practices within the
meaning of Section 8 ( a)(5) and ( 1) of the Act.
8. Respondent has not discriminated with respect to the hire and tenure of
employment of Jack Hays within the meaning of Section 8(a) (3) and ( 1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is rec-
ommended that the Respondent , Sears, Roebuck & Co, Inc., Seattle , Washington,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with Retail Department Store Employees Local 1207,
or any duly designated representative thereof, in the manner outlined above, as the
representative of its employees in the above-described appropriate unit.
(b) In any like or related manner refusing to bargain with said Union, or inter-
fering with , restraining, or coercing employees in the exercise of their rights under
Section 7 of the Act, except to the extent permitted under Section 8(a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request , meet with any designated representative of Retail Department
Store Employees Local 1207 and bargain collectively with said representative as
the representative of its employees in the above -described appropriate unit concerning
the provisions of a 1 -percent commission program for employees and a union
membership program , or any other conditions of employment , and, if an under-
standing is reached , embody such understanding in a signed agreement.
(b) Post at its three stores at Seattle , Washington , copies of the attached notice
marked "Appendix ." 24 Copies of said notice , to be furnished by the Regional
Director for the Nineteenth Region , shall, after being signed by Respondent 's repre-
sentative , be posted by Respondent immediately upon receipt thereof , and be main-
tained for a period of 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.
(c) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps it has taken to
comply herewith. 25
2< In the event that this Recommended Order be 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 be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
=5 In the event that this Recommended Order be 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 Respondent has taken to comply herewith "
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain with Retail Department Store Employees
Local 1207, or any designated representative thereof, as the representative of
our employees in the unit described below . The bargaining unit is:
All retail sales clerk employees at our Seattle, Washington , stores located
at 1st and Lander, Roosevelt Way, and Market Street, excluding supervisory
personnel.
WE WILL , upon request , bargain collectively with the above-named labor
organization , or any designated representative thereof , concerning the provisions
of a 1-percent commission program and a union membership program, or any
other conditions of employment , and, if an understanding is reached , we will
embody said understanding in a signed agreement.
WE WILL NOT in any like or related manner refuse to bargain with said Union
as the representative of our employees in said unit or interfere with , restrain, or
coerce employees in the exercise of the rights guaranteed by Section 7 of the
Act, except to the extent permitted under Section 8 ( a)(3) of the Act.
SEARS, ROEBUCK & Co., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof .and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Nineteenth Regional
Office, 327 Logan Building, 500 Union Street, Seattle, Washington, Telephone Num-
ber, Mutual 2-3300 , Extension 553, if they have any question concerning this notice
or compliance with its provisions.
Quality Coal Corporation , Brazil Block Coal and Clay Co ., Inc.,
and Center Point Block Coal Corporation and Carl F. Kumpf
and Local 7365, United Mine Workers of America , Charging
Party and International Union , Progressive Mine Workers of
America, Party to the Contract and Party of Interest
International Union , Progressive Mine Workers of America and
Local 7365, United Mine Workers of America , Charging Party
and Quality Coal Corporation , Brazil Block Coal and Clay Co.,
Inc., and Center Point Block Coal Corporation and Carl F.
Kumpf, Parties to the Contract and Parties of Interest. Cases
Nos. 25-CA-1399 and ?5-CB-457. October 25, 1962
DECISION AND ORDER
On December 15, 1961, Trial Examiner John H. Dorsey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
139 NLRB No. 6.