Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

May 5, 1960

127 N.L.R.B. 582 (N.L.R.B. 1960)

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 10, 1959, was recognition is the fact that Local 701 continued to picket after
the election .8 The Trial Examiner believes this insufficient to sustain the General
Counsel's burden of proving that the purpose of the picketing was to secure recogni-
tion. Furthermore, as noted above, the affirmative evidence adduced herein tends to
establish that this was not the object of the picketing after April 10, 1959, and that
Local 701's actions after the election were not designed to coerce employees to choose
Local 701 as their bargaining agent.
In view of the foregoing, it is believed that the complaint, in its entirety, should be
dismissed.
[Recommendations omitted from publication.]
8Absent the testimony of Moore (which the Trial Examiner has rejected) there is no
affirmative evidence that Local 701's object in the postelection picketing was to secure
recognition.
Sears, Roebuck and Company and Local 688, Warehouse & Dis-
tribution Workers , affiliated with International Brotherhood
of Teamsters , Chauffeurs, Warehousemen & Helpers of Amer-
ica. Cases Nos. 14-CA-2045 and 14-RC-3463. May 5, 1960
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION
On October 23, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
Sears, Roebuck and Company, the Respondent in Case No. 14-CA-
2045, had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner further recommended
that a challenge to the ballot of Jewel Lamb, which was cast in a
Board-directed election, be overruled and that her vote be opened
and counted.' Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
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 brief, and the entire record in
the case, and finds merit in Respondent's exceptions. Accordingly,
we adopt the findings, conclusions, and recommendations of the Trial
'On January 9, 1959, a Board-directed election in Case No. 14-RC-3463 was held, in
which the employees at Sears' pool stock warehouse in St. Louis, Missouri, voted on
whether they would be represented by Local 688. In this election 24 votes were cast for
Local 688 and 23 against Local 688, with 2 ballots challenged. One challenge was over-
ruled by the Board, and that ballot was ordered opened and counted. The Board further
directed that a hearing be held on the second challenged ballot in the event the counting
of the first should not be dispositive of the election. Upon opening and counting said
ballot, it was determined that 24 votes had been cast for the Petitioner and 24 against
the Petitioner. Accordingly, a hearing on the second challenged ballot was scheduled by
an order dated June 11, 1959. Said order also consolidated the representation case with
Case No 14-CA-2045
127 NLRB No. 84.
SEARS, ROEBUCK AND COMPANY 583
Examiner, only to the extent that they are consistent with our deci-
sion herein.
Jewel Lamb had occupied, for a period of 12 years , the position
of "auditing supervisor" in the auditing department of Sears' pool
stock warehouse at St. Louis , Missouri . Late in 1958 , Local 688 began
an organizational campaign among the warehouse employees. Lamb
attended several union meetings. Shortly thereafter , an executive
of Sears instructed Lamb that the Company did not wish to have its
supervisors attending such meetings , as their so doing might influence
employees to support the Union . Miss Lamb nevertheless continued
to attend union meetings . She was notified that she was discharged,
on November 21, 1958, for having disobeyed the instructions previ-
ously given to her. On January 7, 1959, Local 688 filed the charge
herein alleging that Respondent , in discharging Lamb, had violated
Section 8 ( a) (1) and, (3) of the Act. Respondent denied that a
violation of the Act had been committed , contending that Lamb was a
supervisor, and that, having disobeyed instructions given to her, she
was properly subject to discharge . We agree with this contention,
and note that much of the testimony adduced on behalf of the
Respondent was neither discredited nor mentioned in the Intermediate
Report.
The Trial Examiner found that Lamb's work was routine in nature.
We disagree and find that the record establishes that Lamb's authority
was far greater than the Trial Examiner suggests. Lamb's superior,
Stone, testified that Lamb was authorized to, and in fact did, recom-
mend the hiring and discharge of employees .2 She was further
authorized to, and did, assign work to the employees in her department
and discipline them when necessary . She responsibly directed these
employees in order to make certain that all work was coordinated and
completed on schedule . She directed them in the use of new forms
and procedures . Lamb was also authorized to, and did , grant time off
to employees and recommend that they be given extra vacation time
where necessary .' We find that the exercise of such authority by
Lamb was not of a merely routine or clerical nature, but rather re-
quired the use of independent judgment.
In addition to the above-noted facts which are indicative of Lamb's
supervisory status, her special position in the office convinces us, unlike
the Trial Examiner, that Lamb possessed authority greatly in excess
of that possessed by other employees in the auditing department.
Thus, according to the testimony of Gerling , an auditing department
2 Stone cited six specific instances in which Lamb 's recommendation was sought with
respect to the hiring of new employees . Her recommendations were generally followed.
Stone testified that he could not recall any instance when he hired a new employee with-
out first consulting Lamb. On one occasion, according to Stone, he accepted Lamb's
recommendation to discharge a certain employee . ( There is no indication in the record
that more than one such recommendation was ever made by Lamb.)
3 Lamb made two such recommendations . Both were followed.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee, it was Lamb to whom all notices of resignation were given.
It was Lamb who screened all incoming mail to decide whether it
should be transmitted to Stone or whether she should handle it herself.
In addition, Lamb acted as "head" of the office when Stone was out on
business, which occurred 50 percent of the time, and when he took his
annual 2-week vacation.' Only Stone and Lamb had keys and, con-
sequently, access to Stone's desk and the contents therein. "Answering
the telephone," erroneously alluded to by the Trial Examiner as an
indication that Lamb's work was routine in nature, actually consisted
,of finding and relaying detailed information at the request of heads
of other departments, all of such calls having been directed specifically
to Lamb.
We are of the opinion that the preponderance of credible evidence
supports the position of the Respondent. Accordingly, we find that
Lamb was a supervisor within the meaning of Section 2(11) of the
Act, and, therefore, that the Respondent was lawfully entitled, under
the circumstances herein, to discharge Lamb for failure to obey her
superior's instructions. We shall order that the complaint be dismissed
in its entirety.
Having found that Jewel Lamb was a supervisor, we hereby sustain
the Employer's challenge to her ballot. As the Petitioner failed to
receive a majority of the valid ballots cast, we shall certify the results
of the election.
[The Board dismissed the complaint in Case No. 14-CA-2045.]
[The Board certified that a majority of the valid ballots was not cast
for Local 688, Warehouse & Distribution Workers, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, and that this Union is not the exclusive repre-
sentative of the employees at the St. Louis, Missouri, pool stock ware-
house of Sears, Roebuck and Company in the unit heretofore found
by the Board to be appropriate in Case No. 14-RC-3463.]
CHAIRMAN LEEDOM and MEMBER JENKINS took no part in the con-
sideration of the above Decision, Order, and Certification of Results
of Election.
4 The Trial Examiner , relying on Lamb's testimony , found that she was not authorized
to make "decisions" when acting as head of the office . We find it questionable that a
person in charge of an office in excess of 50 percent of the year is not empowered to make
"decisions" on any of the matters which may arise. In fact , it is undisputed that Lamb
was authorized to initial various vouchers and balance sheets in Stone ' s absence, where
such initialing indicated approval of the accuracy thereof.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On January 7, 1959, Local 688 , Warehouse & Distribution Workers, affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers
SEARS, ROEBUCK AND COMPANY 585
of America, filed a charge in Case No. 14-CA-2045. On January 9, 1959, a
Board-conducted election was held in Case No. 14-RC-3463. On March 26, 1959,
the General Counsel of the National Labor Relations Board issued and served a
complaint in the first mentioned case, and thereafter Sears, Roebuck and Company
filed its answer to said complaint. Pursuant to a Board order issued May 22, 1959,
directing that under certain specific circumstances a hearing be held to determine
the eligibility of one Jewel Lamb to vote in the said election, the Regional Director
for the Fourteenth Region on June 11, 1959, issued an order consolidating the
above-entitled cases and a notice of consolidated hearing. Pursuant to said order,
a hearing was held in St. Louis, Missouri, on August 18 and 19, 1959, before the
duly designated Trial Examiner.
The complaint alleges and the answer denies that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(3) and (1) by discharging and
refusing to reinstate the above-mentioned Jewel Lamb. In both cases only a single
major question is involved: Whether or not the said Jewel Lamb at the time of
her discharge was an employee within the meaning of the Act, as alleged by General
Counsel, or a supervisor within the meaning of the Act, as claimed by the Employer.
All parties were represented at the hearing by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues. Opportunity for oral argument was waived.
Briefs have been received from all parties.
After the close of the hearing a motion was received from counsel for the Employer
to correct the official transcript in accordance with an attached stipulation signed
by all parties. Said motion is hereby granted, and the motion and accompanying
stipulation are hereby made a part of the record.
Upon the entire record thus made, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Sears, Roebuck and Company is a New York corporation with its principal office
in Chicago Illinois. It is engaged in the business of retail sales and retail mail-order-
sales. During the calendar year 1958, it had a gross volume of business amounting
in value to more than $500,000.
The Employer operates a warehouse at 1024 South Vandeventer Avenue, St.
Louis, Missouri, and is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 688, Warehouse & Distribution Workers, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is
a labor organization admitting to membership employees of the Employer.
M. THE UNFAIR LABOR PRACTICES
A. The status of Jewel Lamb
Since ultimate conclusions in each of the two cases may only be reached after
determining the employee status of Jewel Lamb, that point will first be considered.
There is no dispute as to the fact that for a period of about 10 years, on the
critical date of November 21, 1958, Jewel Lamb had held the title of auditing
supervisor in the auditing or pool stock controller office in the South Vandeventer
Avenue warehouse at St. Louis. There is sharp dispute as to whether or not this
title is and has been more than merely nominal.
Having fully considered and appraised all the testimony and other evidence in
the record, as well as the comprehensive briefs filed by all parties, the Trial Examiner
is of the opinion that the preponderance of credible evidence sustains the position
urged by General Counsel, and that in fact Jewel Lamb was an employee, and not
a supervisor, within the meaning of the Act.
This conclusion is based upon the following facts and factors:
1. Throughout this long period Lamb has worked alongside and with seven or
eight other girls in a small, open area under the direct supervision of an auditor,
or pool stock controller, who, during the earlier years, was Albert A. Hunt, and
since 1953 has been Walter E. Stone.
2. All work in this office, including that of Lamb, is routine in nature and in
accordance with the Employer's standardized operating procedure. In general,
Lamb's duties include making ledger entries and filling in for other girls in the
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office when they are absent. According to Stone's testimony Lamb spends from
"twenty-five to thirty percent of her time" performing "paperwork of the same
sort as . . . performed by the other employees," about 50 percent of her time
in "paperwork" somewhat different in nature from that of the other employees
(such as compiling reports consolidated from work performed by other girls and
the final balancing of "the number of journal entries"), and the balance of the time
in "answering the telephone," "answering questions from the girls," "helping the girls
physically on some thing that had to be done," and conferring with Stone "relative
to the office."
3. Throughout this long period, also, and despite her title of "supervisor," Lamb
has been paid-not on a salary basis as is Stone-but on an hourly basis, and
weekly in cash, as are other girls in the office. She was required to punch a time-
clock and like other employees was "docked" for time off-requirements not
imposed upon Stone.
4. When given the title of "auditing supervisor" Lamb was accorded a wage
raise of $3 a week, but when discharged in November 1958, appears to have been
receiving pay in accordance with a scale equal to that of other girls in the office,
longevity of service being considered. Although receiving $12 per week more
than the next-highest paid employee at that time, Stone admitted as a witness that
Lamb had about 4 years more seniority than that employee, and Lamb's testimony
is unrefuted that in each of her last 3 years she had received $4 per week merit
increases.
5. The testimony of Hunt, auditor, until Stone took over in this position, is
unrefuted that when he informed Lamb of her promotion to "auditing supervisor,"
he did not "at any time tell her she had the power to hire, fire, to assign girls to
permanent change of work, . . . to reward employees, to discipline employees, to
lay off or suspend employees." In an affidavit executed by Stone after Lamb's
discharge, this present auditor stated that "I did not ever specifically tell Jewel
Lamb that she had this recommendationary authority with respect to hiring and
discharges." As a witness, however, Stone said that he had "personally" told
Lamb that "she had the right to effectively recommend hiring and firing," and
explained the inconsistency between his testimony and the affidavit by stating:
At the time I originally made the statement that went into the affidavit . as
I understood it, they were of no value since they were made aftercthe official
union 's organizational campaign had been started so they would be of no value.
Stone's explanation thus supports Lamb's testimony to the effect that she was never
told that she possessed even "recommendationary" authority until after the Union
began organizing the employees in this department.
6. Lamb's testimony is undisputed that after being told she had such supervisory
authority in respect to recommending hiring and firing, no action of this nature
was taken in this department before her discharge. Nor was she given, at the
time, any increase in wages.
7. Stone's own testimony makes it clear that not even he had authority to do
more than recommend hiring or firing. It was the warehouse manager, not Auditor
Stone, who informed Lamb of her discharge, as described more fully below, and
Stone neither had been consulted in regard to this action nor had knowledge of
the proposed action until just before it was made.
8. Although witnesses for the Employer claimed that Lamb had the authority
to transfer employees, the claim is not supported by specific actions consonant with
the possession of such authority. Lamb's testimony is not credibly refuted that on
one occasion, when another department head had asked Lamb if he could "borrow"
one of the auditing employees for a short time, Lamb inquired if one employee was
busy and that employee, being free, went briefly to the other department. It appears
that Stone was temporarily absent at the time. When he learned of the incident, he
instructed both Lamb and the department head that "the next time anything like that
happened to go to him in the future . . . any time anybody wanted to leave the
office "
9. While it does appear that part of Lamb's duties down through the years has
been occasionally i to "train" a new employee in the department, it is clear that
this function followed normally from the fact that when given the title of "auditing
supervisor" she was instructed to learn all of the work in the department, in order
that she might fill in for other girls during their absence. There can be no dispute
that in the field of experience in that office, she possessed more than even Stone
himself. Experience in paperwork clearly is not determinative of supervisory
capacity.
' In most instances , however , a new girl was trained by the employee leaving that job.
SEARS, ROEBUCK AND COMPANY 587
10. Not until a few days before her discharge was Lamb ever asked by higher
authority, during the long period of holding her title, as to her opinion regarding
proposed increases for other employees in the department.
11. Although Lamb acted as "head" of the office when Stone was out, her testi-
mony is unrefuted that on such occasions no "decisions were made. And Stone
admitted that when he was out, visiting other departments in the locality, if any
"critical matter" came up, Lamb called him by telephone.
12. That the authority exercised, and not the title held, is the determining factor
has been held by the Board in Southern Bleachery and Print Works, Inc., 115 NLRB
787, among other cases.
13. The situation in regard to Lamb is in accord with that described as to leadmen
by the Board in Bagwell Electric Steel Castings, Inc., 117 NLRB 1770, where it
said: . any recommendations they make are acted upon on the basis of the
admitted supervisors' own knowledge of the facts . ..'
14. As noted in point numbered 2, above, it is clear that Lamb had no appreciable
amount of time in which she might have served as a supervisor within the meaning
of the Act.
15. That Lamb on occasions acted as head of the small department of few em-
ployees during Stone's absence is not determinative of supervisory capacity. (See
Warren Petroleum Corporation, 120 NLRB 370, 377.)
B. The discharge
The record contains small dispute as to the facts leading up to Lamb's discharge
on November 21, 1958.
Sometime after the Union began organizing employees in this department Lamb
was warned by George Walton, an official in the Employer's employee relations
department, and by George Smit, the warehouse manager, that because she was a
supervisor she must not attend union meetings. Lamb continued to attend such
meetings, a privilege accorded to employees by Section 7 of the Act.
On November 21 she was dismissed by Smit, who read to her the following
statement:
We have not been satisfied with your over-all performance as supervisor. One
of your main responsibilities as a supervisor is to represent this Company
correctly in it's [sic] relationship with the employes you supervise. In recent
months, you have not done this to our, satisfaction and this unwillingness to
meet your responsibilities is specifically evidenced by your attendance at union
meetings. You were instructed that because of your responsibilities as a
supervisor, you should not attend such meetings. You chose to disregard these
instructions. This only added evidence to us of your attitude and unwillingness
to properly function and meet your responsibilities. We have lost complete
confidence in your ability to properly represent this company in your super-
visory duties. Your inability and unwillingness to properly represent this
Company as a supervisor makes it necessary for us to replace you with someone
who can. We are therefore removing you from the payroll today.
Lamb has not been reinstated.
The Trial Examiner concludes and finds that Jewel Lamb, an employee. within
the meaning of the Act, was discriminatorily discharged by the Employer on Novem-
ber 21, 1958, and since then has been refused reinstatement because she engaged in
union activities and to discourage membership in the Union, and that such action
interfered with, restrained, and coerced employees in the exercise of rights guaranteed
by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Employer set forth in section III, above, occurring in con-
nection with the operations of the Employer described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and free flow of commerce
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It will be recommended that the Employer offer immediate and full reinstatement
to Jewel Lamb, to her former or substantially equivalent position, without prejudice
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to her seniority or other rights and privileges, and make her whole for any loss of
pay she may have suffered by reason of the discrimination against her, by payment
to her of a sum of money equal to that which she would normally have earned as
wages from the date of the discrimination to the date of the offer of reinstatement,
less her net earnings during such period, in accordance with the Board policy set
forth in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company,
8 NLRB 440.
It will further be recommended that the Employer, upon reasonable request, make
available to the Board and its agents all payroll and other records pertinent to the
analysis of the amount due as backpay.
Since the violations of the Act which the Employer committed are closely related
to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct, the
preventive 'purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
be recommended that the Employer cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
As to the disposition of Jewel Lamb's ballot, an issue in Case No. 14-RC-3463,
it will be recommended that the Employer's challenge of said ballot be overruled,
and that her ballot be counted, since as an employee she was clearly eligible to vote.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 688, Warehouse & Distribution Workers, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminatorily discharging employee Jewel Lamb to discourage mem-
bership and activity in the above-named labor organization, and thereby interfering
with, restraining, and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, the Employer was engaged in unfair labor practices within
the meaning of Section 8 (a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
John H. Harland Company I and Office Employees International
Union, Local 386, AFL-CIO, Petitioner. Case No. 12-RC--818.
May 5, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Ernest W. Dean, Jr., hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
1 The name of the Employer appears as corrected at the hearing.
127 NLRB No. 83.