Sears Roebuck and Co.

National Labor Relations Board - Board Decisions

Mar 4, 1957

117 N.L.R.B. 522 (N.L.R.B. 1957)

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group of employees with related duties and interests of the sort which
the Board has consistently found may be severed from an existing
production and maintenance unit if they so desire, despite a bargain-
ing history on a broader basis 5
Accordingly, we find that the following employees may constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All watch engineers, first class, employed by the Employer in the
powerroom at its Belleville, New Jersey, plant, excluding all other
employees, guards, professional employees, and supervisors within
the meaning of the Act.
If a majority vote for the Petitioner they will be taken to have
indicated their desire to constitute a separate appropriate unit, and
the Regional Director conducting the election directed herein is in-
structed to issue a certification of representatives to the Petitioner for
the unit described in paragraph numbered 4, which the Board, under
such circumstances, finds to be appropriate for purposes of collective
bargaining. In the event a majority do not vote for the Petitioner,
these employees, shall -remain a .part. of the existing unit and the
Regional Director will issue a certification of results of election to
such effect.
[Text of Direction of Election omitted from publication.]
5 Botany Mills , Inc., 115 NLRB 1497; American Bosch firma Corporation , 115 NLRB
226; Industrial Rayon Corporation, 107 NLRB 1518. Also see Westinghouse Electric
Corporation, 108 NLRB 556.
Sears Roebuck and Co. and Office Employees International Union,
Local 130, AFL-CIO, Petitioner. Cases Nos. 14-EC-2987 and
14 ISM 135. March 4, 1957
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued herein on
July 12, 1956,1 an election was conducted on August 10, 1956, under
the direction and supervision of the Regional Director for the Four-
teenth Region, among the employees in the unit heretofore found
appropriate. Upon the conclusion of the election, the parties were
furnished a tally of ballots. The tally showed that of the approxi-
mately 63 eligible voters, 54 cast ballots, of which 26 were for the
Petitioner, 15 were against the Petitioner, and 13 were challenged.
On August 30, 1956, the Employer filed timely objections to the
election. As the challenged ballots were sufficient in number to affect
1 Not reported in printed volumes of Board Decisions and Orders.
117 NLRB No. 73.
SEARS ROEBUCK AND CO . 523
the results of the election, the Regional Director investigated both the
objections and the challenges, and thereafter, on October 31, 1956,
issued and duly served upon the parties a report on election objections
and challenges, a copy of which is attached, hereto,' in which he found
that the objections were without merit, and recommended that they
be overruled. and that the challenges to the.ballot of six individuals
be sustained and the remaining challenges be overruled. The Em-
ployer filed timely exceptions to the Regional Director's report insofar
as it finds no merit to the Employer's objections to the election, with
a supporting brief, but specifically takes no position with respect to
the Regional Director's recommendations as to the disposition of the
challenged ballots.
The Board has considered the Employer's-objections; the Regional
Director's report, and the Employer's exceptions thereto, and its sup-
porting brief, and hereby adopts the findings, with one exception 3
and recommendations of the Regional' Director. Accordingly, as we
are sustaining the challenges to the ballots of six individuals, and
as the tally of ballots therefore shows that the Petitioner has received
a majority of the valid votes cast in the election, we shall, in accord-
ance with the recommendations of the Regional Director, certify the
Petitioner as the collective-bargaining representative of the employees
in the appropriate unit.
[The Board certified Office Employees International Union, Local
130, AFL-CIO, as the designated collective-bargaining representative
of all office clerical employees of Sears Roebuck and Co. store at 1001
State Street, East St. Louis, Illinois, including employees in the dis-
play department, and customer service, employees performing "will
call" duties, but excluding all sales people, guards, watchmen, profes-
sional employees, confidential employees, all other employees, and all
supervisors as defined in the Act.]
7 The original report contains an appendix , consisting of Exhibits "A" and "B," which
is not reproduced herein -
a we disagree with, and hereby reverse , the Regional Director's recommendation that
the Employer 's objections be overruled for lack of proof of service . As set forth in the
Regional Director 's report, the Employer furnished proof that it sent a copy of the objec-
tions by ordinary mail to the Petitioner 's address as given by Petitioner at the representa-
tion hearing . Such proof of service is presumptive evidence of receipt . Petitioner avers
that it never received the objections . However, as Petitioner moved after the representa-
tion hearing and failed to give another address, we find, unlike the Regional Director,
that its affidavit of proof of nonreceipt does not serve to rebut the presumption of delivery
drawn from the Employer 's having mailed the objections to the only address known to it,
or furnished by Petitioner
REPORT ON ELECTION OBJECTIONS AND CHALLENGES
Pursuant to a Decision and Direction of Election by the Board dated July 12,
1956 ,1 an election in the above -entitled cases was conducted on August 10, 1956.
Due to the filing of an unfair labor practice charge by Office Employees Interna-
I Not reported in printed volumes of Board Decisions and Orders.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,tional Union , AFL-CIO, Local 130, hereinafter called Petitioner, against the Em-
ployer immediately before the scheduled start of voting , the ballots were impounded
pending investigation of the charge? On August 23, 1956, the tally of ballots was
issued showing the results of the election as follows:
Approximate number of eligible voters---------------------------------- 63
Void ballots-------------------------------------------------------- 0
Votes cast for Petitioner ---------------------------------------------- 26
Votes cast against Petitioner ------------------------------------------- 15
Valid votes counted----- --------------------------------------------- 41
Challenged ballots--------------------------------------------------- 13
'Valid votes counted plus challenged ballots------------------------------- 54
The challenges are sufficient in number to affect the results of the election.
On August 30, 1956, the Employer filed timely objections 3 to the election and to
conduct affecting the results of the election which may be summarized as follows:
Objection 1. The filing of the charge, although groundless, caused the employees
to think the Employer had done something illegal and that therefore the employees
needed the protection of a union; and the filing of the charge so close to the start of
the polling made it impossible to counteract its misrepresentations.
Objection 2. The filing of the charge delayed the start of the election, and gave
the Union time to circulate among employees and inform them of the allegations
of the charge.
Objection 3. The filing of the charge, its timing close to the election hour, and
union propaganda regarding the charge created "a climate of utter confusion" which
prevented "a free, meaningful, and uncoerced choice" by voters.
Objection 4. Announcement was made by the Board agent in a preelection con-
ference of representatives of the Employer and the Union that notwithstanding Em-
ployer's consent to withdrawal of the petition the election would be held and that
the ballots would be impounded because of the Union's announced intention to re-
quest either withdrawal of its petition or postponement of the election; and thus the
election was delayed "substantially" and'union propaganda regarding the situation
caused among voters "a confusion and misleading climate in which there cannot be
said to have been a free and meaningful election."
Objection 5. Further "confusion" among voters was caused by the Union challeng-
ing 21 of 54 ballots, eight of which were those of regular part-time employees. 'As
to these, the challenges were withdrawn at the tally.
Objection 6. Still further "confusion" was caused by a delay in the start of the
election of 15 minutes, which delay was due to union conduct as alleged in objections
3,.4, and 5.. Also, "approximately eight". eligible employees did not cast ballots.
Objection 7. The Union has "abused and misused the Board's election processes"
by filing the charge in "bad faith" so close to the election time that the charge could
not be checked or answered; withdrawing the charge after the election; asking for
withdrawal of the representation petition before the election and dropping the
request after having opportunity to canvass how each of the employees had voted; and
by challenging a substantial number of voters and after having opportunity to canvass
how each voted withdrawing the challenges, created an unwholesome, confusing,
and misleading climate for the holding of the election, thereby interfering substantially
with a,free election: •
1. THE OBJECTIONS
A. Service of objections to conduct of election upon a party
Petitioner contends that it was not served with a copy of the Employer's objections.
The Employer in serving the objections upon other parties used ordinary mail
rather than certified or registered mail and Petitioner asserts that it never received
a copy of the objections. Section 102.61 of the Board's Rules and Regulations pro-
vides that objections, when filed, "shall immediately be served upon each of the
other parties by the party filing them, and proof of service shall be made." The
manner of service and proof thereof are set forth in Section 102.81 of the Board's
Rules and Regulations as follows:
Same; by parties; proof of service.-Service of papers by a party on other
parties shall be made by registered mail or in any manner provided for the serv-
e The charge, which was docketed as 14-CA-1534, alleged that the Employer violated
the Board's 24-hour election rule. The charge was withdrawn by Petitioner on August 14,
1956.
8 Attached hereto as Exhibit A.
SEARS ROEBUCK AND CO. 525
ice of papers in a civil action by the law of the State in which the hearing is
pending. When service is made by registered mail, the return post-office re-
ceipt shall be proof of service . When service is made in any manner provided
by such law , proof of service shall be made in accordance with such law.
The Employer has submitted an affidavit stating that a copy of the objections and
covering letter were mailed in Chicago on August 29, 1956, to "Office Employees In-
ternational Union, Local 130, AFL-CIO, 2104 St. Louis Avenue, East St. Louis,
Illinois," with postage fully prepaid, and that the letter thus mailed bore a return
address to counsel representing Employer. The affidavit further states that as of Oc-
tober 2, 1956, such letter had not been returned. Copies of the objections and
covering letters were also mailed at Chicago on August 29, 1956, to the Intervenor
and to the Fourteenth Regional Office and were received by both.
The investigation reveals that the East St. Louis address to which copies of Peti-
tioner's objections were mailed was formerly the home address of Chester Borkowski,
president of Petitioner. Borkowski moved in May 1956, from this address, leaving as
a forwarding address his new East St. Louis residence. Letters from the Fourteenth
Regional Office of the Board-mailed in September 1956, to the old address have been
forwarded by the Post Office Department to Borkowski. However, Petitioner's
President Borkowski has submitted an affidavit stating that as of October 5, 1956,
neither Local 130 nor he, as president, has received a copy of the objections, and
that he first learned of the objections in a letter from the Regional Office dated
September 4, 1956 . The Employer has submitted no further proof that the ob-
jections were received by Petitioner. This presents the issue of whether service of
the objections was properly effected.
The alternative method of service in Section 102.81 providing for service in any
manner authorized by the law of the State in which the hearing is pending, would
permit in this instance the use of ordinary mail in making service, pursuant to chapter
10, section 98 of the Illinois statute? However, the proof of service by ordinary
mail is one which may be rebutted when such proof does not go beyond,the fact of
mailing. In Beacon Mfg. Co. (94 NLRB 881), exceptions to a report on objections
were served by ordinary mail. The party to whom it was addressed asserted that it did
not receive the objections . The Board in rejecting the exceptions said:
Assuming that the Petitioner has sought to effect service of the exceptions by
inserting them in an envelope properly addressed to the Employer bearing suf-
ficient postage , and had deposited the envelope in a United States Post Office
Department mail box for delivery by regular mail this circumstance would at
best raise only a rebuttable presumption of delivery to the Employer. We agree
with the hearing officer that the Employer's proof of nonservice, which estab-
lishes that the Employer never received the exceptions supposedly mailed to it
by the Petitioner, effectively overcame this presumption. -
Since the Employer has not furnished adequate proof that Petitioner was served
with a copy of Employer's objections as required by Section 102.61 of the Board's
Rules and Regulations, the Regional Director recommends that the objections be
overruled for lack of proof of service.
B. The objections
Notwithstanding the foregoing recommendation to overrule the objections on pro-
cedural grounds, the Regional Director has caused an investigation to be made of the
objections and reports thereon , because the objections allege misuse of Board 's proc-
esses and irregularities in election procedures .5
Objections I and 3: These objections allege in substance that the late filing of the
groundless charge created a "climate of utter confusion" and "prevented a free, mean-
ingful, and uncoerced choice" by the voters. Accordingly, they will be considered
together.
The election involved an office clerical unit of the Employer's East St. Louis, Illi-
nois, store . In its Order directing the election the Board specified certain inclusions
and exclusions in the voting unit, but directed that the eight department heads and
their assistants should vote subject to challenge because insufficient evidence ap-
peared in the record on which the Board could base a finding as to whether or not they
were supervisors. At the preelection conference the Employer supplied a voting
list of 62 employees, but declined to take a position as to the eligibility of any of them.
The service in question was made in the State of Illinois.
Cf. Dornback Furnace & Foundry Co , 115 NLRB 350, in which supplemental objec-
tions untimely filed were considered because the conduct of a Board agent was involved.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the Employer identified for the Board agent conducting the election nine
individuals appearing.on the list as department heads or assistants. Petitioner at that
time contended that 3 others should be included in the supervisors group and an-
nounced that it would challenge all 12 as supervisors. Petitioner also announced at
the preelection conference that it would challenge the ballots of 14 part-time em-
ployees, including 1 person not on the lists
The election was scheduled from 11:30 a. m. to 1:30 p. m. At about 9 a. m. on
the morning of the election representatives of Petitioner stated to the Regional Di-
rector that the Employer had violated the Board's Peerless Plywood rule's by making
an election speech to the employees during working time within the 24 hours pre-
ceding the election and that, therefore, Petitioner wished to withdraw its petition.
The Regional Director stated to Petitioner's representative that if the 24-hour rule had
been violated Petitioner was protected by the Board's objection procedure and that
,if there had been no violation there was no proper basis for not proceeding with the
election. Petitioner was further advised by the Regional Director that any withdrawal
request would requite Board approval inasmuch as the election had been directed
by the Board. Petitioner then stated that it would submit a withdrawal request to the
Board in Washington.
Shortly thereafter, the Regional Director telephoned Store Manager de Greeff
and advised him that Petitioner had complained of the Employer having made a speech
about the Union within the 24 hours preceding the hour that the election was
scheduled to commence. De Greeff denied that any speech had been made and in
response to an inquiry, stated that the Employer felt that the election should proceed.
Petitioner made no request to the Board in Washington to withdraw its petition,
but did send the following telegram to the Board at 10:40 a. in.
BECAUSE OF MANAGEMENT VIOLATION OF TWENTY-FOUR HOUR
RULE WE FORMALLY PROTEST CONDUCT OF ELECTION IN SEARS,
ROEBUCK & CO. CASE 14-RC-2967 (SIC) BEING HELD LATER TODAY
STOP PROTEST AND OBJECTIONS ARE BEING FILED WITH REGIONAL
DIRECTOR KENEDY (SIC) PRIOR TO ELECTION.
At about 10 a. in., Petitioner's representative appeared at the Board office and
filed a charge (14-CA-1534) alleging that Petitioner had made a speech to employees
in violation of the Board's 24-hour election rule. Because of the prospective
withdrawal request, the field examiner assigned to conduct the election was instructed
to call the Regional Office before opening the polls. At the conclusion of the
preelection conference the Board agent telephoned the Regional Director and was
told to proceed with the election but to impound the ballots.
Thereupon, the Board agent announced to the representatives of the Employer
and Petitioner that he would proceed with the election but that the ballots would be
impounded because of Petitioner's intent to ask withdrawal of its petition or post-
ponement of the election. It is the Board agent's recollection that he made no
mention of the charge having been filed. The Employer's counsel thereupon stated
to the Board agent that the Employer objected to proceeding with the election and
that the Employer did not oppose Petitioner's request to withdraw.
Shortly after the commencement of the election, the Employer's counsel tele-
phoned the Regional Director stating that it did not object to the Board's approval
of Petitioner's request for withdrawal of its representation petition and that the
Employer opposed the Board's proceeding with the election.8 The Regional Direc-
tor stated that Petitioner's attempt to withdraw its petition had come too late to
justify stopping the election where it appeared that Petitioner was fully protected
by the objections procedure in the event that the Peerless Plywood rule had been
violated. The Regional Director pointed out to the Employer's counsel that he had
directed the Board agent to impound the ballots because Petitioner had filed an
unfair labor practice charge against the Employer.
The investigation discloses that the Board agent did not open the polls until
11:35 a. m.-5 minutes after the scheduled starting time-and closed the polls at
1:30 p. in., the scheduled hour for closing the polls. The certification of conduct
of election signed by all ,parties recites that the polls were open from 11:35 to 1:30.
The delay was due to the extended preelection conference and due to some delay
No issue concerning part-time employees had been raised at the hearing. Consequently,
they are not mentioned in the Board's Decision and Direction of Election.
7 Peerless Plywood Co., 107 NLRB 427.
8 At the conclusion of the election the Employer submitted a letter, copy of whteh is
attached hereto as Exhibit B, confirming its telephone advice to the Regional Director
that it had no objection to the Petitioner's request to withdraw.
SEARS ROEBUCK AND CO. 527
experienced in making the telephone call to the Regional Director. • Eligible em-
ployees who were on duty were released from work in order to vote and those on
their lunch hours were notified of the balloting by a two-employee team of Employer
and Petitioner observers. All but 9 of the 62 employees on the voting list cast
their ballots None of the nine who did not vote was scheduled to work during
the voting period. Three of the nine were full-time employees, and six were part-
time.
In support of its contention that the charges created an atmosphere of "mistrust
and confusion" on the part of the employees, the Employer submitted a statement
by Store Manager de Greeff that Observer Hill had informed him that a number
of employees told her in the election room as they were about to vote that they
were "confused as to the election" and therefore asked her how they should vote.
This is denied by Observer Hill, who says that she made no statement to the
store manager about employees being confused or asking for voting instructions at
the polls. Observer Hill does state that she inquired of Store Manager de Greeff
as to when the ballots would be counted and said that she was confused about the
challenges since she saw no reason why eligibility could not have been decided in
advance of the balloting. Hill also stated that one employee, after casting a chal-
lenged ballot and while still in the voting area, asked the observer why her name
had been put on an envelope. The observer gave her the same explanation already
given by the Board agent to her and to all others whose votes were challenged, viz,
that it was necessary to rule upon the challenges before deciding whether the ballot
could be placed in the ballot box and counted.
The Employer has produced no further evidence as to confusion or mistrust, and
the investigation has revealed none. The voting was conducted in a room about
20 x 25 feet. Investigation reveals that the balloting was orderly and conducted with
the usual safeguards for secrecy of the ballot of each of the employees, in keeping
with the Board's standards for election procedure. The certification of conduct of
election was signed by the Employer's 2 observers, as well as the 2 observers for
Petitioner at the close of the polls.
The investigation further reveals. that there were no inquiries from voters to
anyone in the polling area, and that the only questions asked concerned the challenge
procedure which requires the voter to seal his ballot in an envelope on which relevant
data is written.
The Regional Director concludes that the evidence does not support the Employer's
claim that the voting was conducted in "a climate of confusion," or that employees
had been prejudiced against the Employer by the filing of the charge on the morning
of the election.
Accordingly, it is recommended that objections 1 and 3 be overruled.
Objections 2 and 6: Objection 2 alleges, in effect, that the filing of the charge
on the eve of the election was a deliberate maneuver on the part of the Petitioner
to gain time in which to circulate "the false and misleading idea among the employees
that the Company had done something improper, illegal, and coercive," giving the
Employer no opportunity to answer or refute such propaganda. Objection 6 asserts
that "the delay of 15 minutes in opening the polls" caused still further confusion so
that approximately eight employees did not cast ballots.
The investigation reveals that the polls opened 5 minutes late and that this delay
resulted from the extended preelection conference, and the necessity of the Board
agent to call the Regional Office for instructions before starting the election, together
with the discussions resulting from the Board agent 's announcement that the election
would be conducted and the ballots impounded. The Employer has produced no
evidence to support the contention that Petitioner circulated the reports of the
charge among employees prior to the voting.
Likewise, no evidence has been produced in support of the contention that the
failure of the nine employees to vote resulted in any way from the delay in opening
the polls, or that there was any confusion among the employees in the polling area,
or otherwise which might have had such effect. There is no evidence that any of the
eligible employees who did not vote appeared at the polls.
Accordingly, the Regional Director concludes that the 5-minute delay in opening
the polls had no prejudicial or coercive affect upon the employees, or in any way
created an atmosphere of coercion tending to interfere with the employees' freedom
of choice.
It is recommended that objections 2 and 6 be overruled.
Objection No. 4: Objection No. 4 alleges in substance that the Regional Director
ordered the Board agent to proceed with the election despite Employer's strenuous
objection to proceeding with the election in the face of Petitioner's withdrawal
request, to which the Employer made clear that it had no objection; that proceeding
0
528 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
with the election under these circumstances caused a delay in the election itself and,
created "a confused and misleading climate" in which there cannot be said to
have been a free and meaningful election.
The investigation discloses no evidence and the Employer has submitted no
evidence that the parties were in any way prejudiced by proceeding with the election
as scheduled. As noted above, the only basis for Petitioner's attempting to with-
draw was the assertion that the Employer had made speeches to the employees
within the 24 hours preceding the election. Store Manager de Greeff denied, prior
to the election, that any speeches had been made to employees within the 24 hours
and the Regional Director advised representatives of both Petitioner and Employer
that the objections' procedure afforded full protection in the event that the Peerless
Plywood rule had been violated. Accordingly, there appeared no basis for not
proceeding with the election.
As noted, above, the 5-minute delay did not result from the decision to proceed
with the election, but from the extended conference and a subsequent discussion by,
the parties relating to the question of withdrawal.
No evidence has been revealed by the investigation which supports the allegation
that any confusion or misleading climate among the employees resulted from the
decision to proceed with the election or from the 5-minute delay in opening the
polls.
The Regional Director concludes that there is no merit to objection No. 4, and
recommends that it be overruled.
Objection No. 5: Objection No. 5 alleges, in effect, that Petitioner further added
to the "confused situation" by deliberately challenging 21 of the 54 ballots cast
in the election when Petitioner knew that 8 of the 21 ballots challenged were regular
part-time employees entitled to vote.
Petitioner stated at the preelection conference that it would challenge the depart-
ment heads and assistants on the ground that they were supervisors and that it would
also challenge the part-time employees. The right of any party to a proceedings to
challenge a ballot at an election is established by the Board's Rules and Regulations
and the notice of the election itself states that the parties may each have an equal num-
ber of observers and that such observers will "(c) challenge voters and ballots...."
Consequently, no ulterior motive may be presumed from any timely challenge.
It is true that it was somewhat unusual to have 21 challenges out of the 54 ballots
cast, but even if any employee did not understand why his vote was being challenged
there still is no basis for inferring from this fact that he was confused by the chal-
lenges as to how he wished to mark his ballot because he secretly marked his ballot
in the voting booth. The investigation has revealed no evidence that the employees
were confused in their voting by reason of the challenges and the Employer has
furnished none.
The Employer further asserts that Petitioner has admitted that its challenges con-
stituted improper conduct at the election because Petitioner withdrew its challenges
as to the eight part-time employees before the ballots were counted. Parties fre-
quently withdraw their challenges before the ballots are counted. The Regional
Director concludes that bad faith cannot be imputed to Petitioner because of its
withdrawal of its challenges to the part-time employees. The withdrawal of the
challenges here occurred before the ballots were counted and could not have affected
the free choice of the voters in the election booth.
The Regional 'Director concludes that there is insufficient evidence to support
objection No. 5. Accordingly, it is recommended that objection No. 5 be overruled.
Objection No. 7: Objection No. 7 alleges in substance that Petitioner, by filing in
bad faith the charge against the Employer immediately before the election, was able
to use the charge as propaganda among the employees at a time when neither the
employees nor the Employer could check the truth or accuracy thereof. Objection
No. 7 also asserts that the withdrawal of the charge after the election is proof of
Petitioner's bad faith in filing the charge and that such conduct added to the' "con-
fused and misleading climate" for the holding of the election:
The question of whether or not the charge was filed in good faith need not here be
resolved. The issue to be-decided here is whether or not the filing of the charge on
the eve of the election constituted interference- with the freedom of choice by em-
ployees. The investigation reveals no evidence that any of the employees were
confused or misled by the filing of the charge. Similarly, the conduct of Petitioner
in withdrawing the charge and some of the challenges after the-election- has no bear-
ing upon the conduct of the election itself, or the freedom of choice exercised by the
employees at the time of the election. "
Finally, the Employer alleges in objection No 7 that Petitioner waited to with-
draw its charge and some of the challenges until after it had interrogated" the em-
SEARS ROEBUCK AND CO. 529
ployees and ascertained how they voted. There is no evidence to support the allega-
tion. In any event, the granting of Petitioner's request to withdraw the charge
subsequent to the election, cannot be used as the basis for an inference of conduct
affecting the election.
The Regional Director concludes that there is no merit to objection No. 7 and
recommends that it be overruled.
H. THE CHALLENGES
Thirteen challenges by Petitioner remain for consideration. Of these, 12 were
challenged on the ground they were supervisors, and 1 as a casual part-time employee
not on the voting list supplied by Employer prior to the election. Petitioner now de-
sires to withdraw its challenge as to 1 of the supervisors and to change 2 other chal-
lenges from supervisory basis to confidential employees. The Employer takes no
position on the eligibility of any of the 13 employees challenged, although at the
hearing the Employer stated it believed "some of its department heads and assistants"
were supervisors within the meaning of the Act.
The East St. Louis store has some 300 employees and supervisors who are paid
weekly in cash, and 7 executives who are paid monthly by check. The latter are
sometimes referred to as "check list" executives, but will be referred to herein as
executives. Seven of the challenged voters work in four departments of the store,
each of which is headed by an executive. All employees use daily time cards except
about forty department supervisors and executives who merely sign the card at
the end of the week instead of using the daily time clock.
Executives and other department heads are away from their departments regu-
larly 1 day per week and once daily at lunch time or twice if the store is open in the
evening. The day off is due to the fact that the store operates on a 40-hour week
although open 6 days and 2 evenings a week. Days off of the executives are staggered
so that as many as possible of the seven are available on any particular day. If an
executive is absent , another is frequently consulted by supervisors acting as depart-
ment heads and either the store manager or his assistant generally will be in the
store. The days off of executives are staggered also with those of certain depart-
ment supervisors, so that some supervisors act as department heads regularly for a full
day, once a week. In addition, executives are away on vacation and on other occa-
sions when supervisors act as department heads.
Each of the 12 employees challenged as supervisors are regarded by the Employer
as "a supervisor for the purposes of the store." None of the 12 in question has
authority to hire. The Employer does not request nor require recommendations
from any of the 12 on promotion or discipline of fellow workers, but any such recom-
mendations would be given considerable weight. Two of the 12 have made such
recommendations. The supervisors receive a pay differential of from $2.50 to
$20 weekly.9
The following information about the respective job duties of the challenged voters
has been obtained from both Employer and Petitioner, and except in cases where
specifically mentioned the duties herein set forth are not disputed.
Raymond Castello, display manager (display department): The display depart-
ment prepares merchandise displays, window trim, decorations, signs, pennants, and
other display material used in and out of the store. Castello works with and directs
four display department employees, assigning them more or less interchangeably
to various tasks since their skills are similar . There is no executive in the display
department , and Castello acts as department head and reports to the store manager
or assistant store manager. Castello is one of the two challenged employees who
has volunteered personnel recommendations on employees in his work group. He
signs his timecard, and his wage differential is $10 to $20 weekly. He regularly
functions as a department head and assigns work. In his absence it appears that any
necessary direction is given by a sales department representative.
The Regional Director recommends that the challenge to the ballot of Castello
as a supervisor be sustained.
Carol Hackmann (advertising department) : The advertising department prepares
newspaper, radio, and program advertising. In the past, Hackmann has h-d the
help of one part-time employee who regularly worked 20 to 30 hours weekly in the
display department. On some occasions, when Hackmann was not on duty, the
.part-time employee worked alone. Hackmann assigned work to the part-time helper
9 The investigation shows differentials of $2 50 to $5 weekly, which the Employer re.
gards as "Flight," $5 to $10, which the Employer regards as "intermediate," and $10 to
$20, which the Employer regards as "substantial "
42:1784--57-vol. 117-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who is now on leave . A successor for the part-time employee may be obtained.
Hackmann does not allot advertising funds among the sales departments ; this is
done by formula . There is no executive in the department and Hackmann is respon-
sible to the store manager or assistant store manager . She signs her timecard
weekly and her wage differential is $10 to $20.
It appears that Hackmann 's relationship to the part -time employee , when there
is one in the department , is that of a senior, skilled worker directing another employee
rather than that of a supervisor within the meaning of the Act.10
The Regional Director recommends that the challenge of Hackmann be overruled.
Archie Bass, assistant customer service manager (customer service department):
The customer service department has six employees including Bass who are super-
vised by an executive . The department handles customer complaints , orders parts,
and distributes orders to contractors for customer service . In making occasional
adjustments outside of warranty periods on merchandise , the executive or, in his
absence, Bass occasionally exercises independent judgment . In the absence of the
executive , Bass acts as department head . Bass rings his timecard . His wage differ-
ential is $2 .50 to $5.
At the tally, the Petitioner stated that it wished to withdraw its challenge to Bass
as its investigation showed he did not have or exercise supervisory authority, but
Employer objected to the withdrawal. The direction of fellow employees by Bass
in the absence of the department head appears routine, and the independent judgment
he occasionally uses in adjusting complaints is insufficient to establish him as a part
of management.ii
The Regional Director recommends that the challenge to the ballot of Bass be
overruled.
Pauline Hayes, head control clerk (unit control department): Hayes and four
others in the unit control department are supervised by an executive. The depart-
ment maintains a perpetual inventory of sales merchandise and orders replacement
or new stocks, based on quantities specified by managers of about 50 sales depart-
ments. If suppliers will ship only in smaller or larger quantities than wanted, the
unit control department decides on the quantity to be ordered except that if units
are expensive the sales department is consulted.
Information on changes in sources of supply is directed to the department head,
who passes it on to Hayes, who is required to be familiar with this information and
the records concerning it. She writes some orders herself and totals all orders daily
by departments. She trains new clerks, and in the absence of the department head,
and often while he is present, gives to other clerks directions as to sources of supply
and quantities of goods to be ordered. Hayes rings her timecard and her wage differ-
ential is $2.50 to $5.
The directions that Hayes gives to other employees are "by the book" as they are
based upon record information about suppliers. It appears that Hayes performs
work of routine nature and that she seldom uses independent judgment in acting as
department head in the absence of the executive.
The Regional Director recommends that the challenge to Hayes be overruled.
Edith Barnhart, telephone operator (no specific department): Barnhart is the
senior of 3 telephone operators who work on the store's switchboard, generally 2
at a time. She instructs new operators but any personnel recommendation she might
make would be limited to the probation period of a new operator. The store's
personnel manager, an executive, supervises the operators. Barnhart rings her
timecard and her wage differential is $2.50 to $5.
It appears that Barnhart does not exercise, supervisory authority, since she does
not use independent judgment in giving directions to the other two operators. Rather,
all three are directly supervised by the personnel manager.
The Regional Director recommends that the challenge to the ballot of Barnhart
be overruled.
Mary Cox, auditing supervisor (auditing department): The auditing department
approves invoices for payment, keeps a daily sales record by departments, keeps
time records of employees and makes up the store payroll. The department head is
an executive, and there are 10 employees in the department including Cox. Cox
acts as department head in the absence of the executive and assigns work to employees
even when the controller is present.
10 TVcils Dairies Cooperative, 109 NLRB 1450.
U Plankimton Packing Company, 116 NLRB 1225. By contrast, buyers spending sub-
stantial time in purchasing were held to be exercising prerogatives of management and
were excluded from a voting unit.
SEARS ROEBUCK AND CO. 531
Cox is required to have a general knowledge of each employee's job and she
regularly assigns several clerks to the same task in order to meet priorities in work.
She usually makes out the payroll for the seven executives, but this is also done by
her assistant , Fritz, and occasionally by a timekeeper.
Cox is sometimes used to train auditing employees in other Sears stores, and was
away 4 months for this purpose in 1955 and about 2 months in 1956. She has on
occasion volunteered personnel recommendations and signs her timecard. Her
wage differential is $10 to $20. She regularly assigns work to clerks in the depart-
ment and acts in a supervisory capacity as department head in the absence of the'
executive.
The Regional Director recommends that the challenge to the ballot of Cox be
sustained.
Marceline Fritz, assistant auditing supervisor (auditing department): Fritz spe-
cializes in keeping records of the profit-sharing fund in which each store employee
participates . She assigns work in the absence of both the controller and Cox. When
Cox is away, sometimes for weeks at a time on training assignments , as mentioned
above, Fritz acts as department head, at least 1 day a week. Fritz rings her timecard.
Her wage differential is $5 to $10.
It appears that Fritz has had, and is likely to have, rather extensive periods of
acting at least 1 day a week as supervisor of the department during which she
assigns work.
The Regional Director recommends that the challenge to the ballot of Fritz be
sustained.
Richard Kelleher, assistant credit manager (credit department) : The credit depart-
ment has from 18 to 20 employees, with a peak of about 30 in the busiest season.
The department determines whether to extend credit to customers and to what limits.
The department is headed by an executive. Kelleher uses independent judgment in
passing upon credit applications, although in particular cases he may confer with
the executive or the executive may confer with him. While much of the work in the
department appears to be the routine handling of credit applications, Kelleher assigns
work to employees in the absence of the executive. He signs his timecard. His wage
differential is $10 to $20.
It appears that in a sizeable department of about 20 persons, which may increase
by half in a peak period, Kelleher assigns employees to work and regularly acts in a
supervisory capacity as department head
The Regional Director recommends that the challenge to the ballot of Kelleher
be sustained.
Blanche Taylor, head NCR cashier (credit department) : Taylor and five other
women in the credit department operate NCR posting machines. Taylor instructs
the other operators, but does not exercise independent judgment in the directions
she gives. She rings her timecard and her wage differential is $2.50 to $5.
It appears that Taylor functions as one of the more skilled employees in a group,
of six, and gives such instructions as may be necessary to the other employees in a
machine operation. Her work is nonsupervisory in character.
The Regional Director recommends that the challenge to the ballot of Taylor
be overruled.
Catherine Kuenkler, group head (credit department) : Credit applications are
brought to Kuenkler by other clerks for review as to sufficiency of information. If
a customer is reluctant to supply information called for on the credit application,
Kuenkler herself may explain why it is needed. She is 1 of 2 or 3 in the department,
other than the executive and Kelleher, who have authority, within limits, to
approve credit applications. Kuenkler rings her timecard. Her wage differential
is $2.50 to $5.
It appears that Kuenkler's instructions to the other clerks in handling credit
applications are routine, and that she does not exercise independent judgment in
directing other employees. Since Assistant Kelleher is routinely present when the
department executive is away, there is little if any opportunity for Kuenkler to
exercise supervisory authority even if she should on occasion act as department head.
The Regional Director recommends that the challenge to the ballot of Kuenkler
be overruled.
Rosemary Mackey, head cashier (cashier department) - The department has no
separate executive, and Mackey reports to the store manager or assistant store man-
ager. The cashier department pays bills, collects bad checks, makes refunds to
customers, and prepares the store's cash payroll as made up by the audit depart
ment. There are four employees in the department, including Mackey, and all
work in cashier's quarters There is no outside work, because the collection of
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checks returned by banks is handled by correspondence or telephone or is assigned
to a collection agency.
Like a number of employees elsewhere in the store, Mackey okays customer
checks; signs Sears checks up to a limit in paying bills; and pays some bills in cash.
She signs her timecard. Her wage differential is $5 to $10.
The Petitioner asks that Mackey be excluded as a "confidential" employee, on
the ground that she prepares checks for the executive payroll. However, these
checks are prepared by the audit department, which sends an accounting of them
to the cashier department.
The supervisory duties of Mackey appear to involve little discretion, but there
is no other supervisor in the department of four employees and the variety of work
seems to warrant a supervisor in the group. The Petitioner's claim of confidential
status must be rejected, since the duties are not connected with labor relations.12
The Regional Director recommends that the challenge to the ballot of Mackey
be sustained as a supervisor, not as a confidential employee.
Inez Pope, assistant cashier (cashier department): Pope has the same authority
as Mackey except as to signing Employer checks. She rings her timecard. Her
wage differential is $2.50 to $5. The Petitioner asks for the exclusion of Pope as a
confidential employee handling payrolls.
With Mackey absent there are only two employees besides Pope, and the work
is routine. It does not appear that the duties of Pope or her wage differential are
those of a supervisor using appreciable independent judgment. The Petitioner's
claim that Pope is a confidential employee must be rejected since Pope's duties are
unrelated to personnel matters.
The Regional Director recommends that the challenge to the ballot of Pope be
overruled.
Eva Neiderbrach, casual part-time worker (audit department): Neiderbrach's
name did not appear on the payroll furnished by Employer before the election. The
voting list submitted by the Employer contained only the names of full-time em-
ployees and of part-time employees working regularly scheduled hours Fourteen
of the sixty-two employees listed were part-time workers on regular schedules. The
eligibility of part-time employees was not raised as an issue at the hearing and was
not dealt with in the Board's decision.
In addition to regularly scheduled employees, the store has other employees who
work on call as needed. They are called casual employees and usually work only
part of a day at a time. There are 3 or 4 casual employees at present who may
have employment in a given week, although at peak periods there may be 15 or
20 casuals in the clerical group.
Owing to the occasional long absences from the audit department of Cox on
training assignments, as noted above, Neiderbrach may sometimes work an entire
week but again may have no work at all for a month.
The Regional Director recommends that the challenge to the ballot of Neiderbrach
be sustained, since she is not regularly employed.
III. RECOMMENDATION AS TO CHALLENGES
On the basis of the duties outlined above, the Regional Director recommends that
the challenges as to the ballots of Raymond Castello, Mary Cox, Marceline Fritz.
Richard Kelleher, Rosemary Mackey, and Eva Neiderbrach be sustained.
It is further recommended that the remaining seven challenges be overruled
However, since they would not be determinative of the results of the election, it is
recommended that they not be opened and counted but that a certification issue on
the basis of the valid votes counted in the tally of August 23.
IV. RECOMMENDATION AS TO OBJECTIONS
Upon the findings and conclusions as to the objections above set forth, it is recom-
mended by the Regional Director that each of Petitioner's objections be overruled.
As provided in Section 102.61 of the Board's Rules and Regulations, Series 6, as
amended, any party desiring to take exceptions to the report and recommendations
herein may within ten (10) days from the date of issuance of this report, file with
the Board in Washineton, D. C., seven (7) copies of such exceptions. Immediately
upon the filing of such exceptions the party filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director for
the Fourteenth Region , National Labor Relations Board , Room 935,, U. S. Court-
house and Customhouse, 1114 Market Street, St. Louis 1, Missouri.
12 The B F. Goodrich Company, 115 NLRB 722.