Sears Roebuck and Co.

National Labor Relations Board - Board Decisions

Feb 3, 1943

47 N.L.R.B. 291 (N.L.R.B. 1943)

In the Matter of SEARS ROEBUCB: AND COMPANY and LOCAL 214, MAIL
ORDER , WAREHOUSE & DISTRIBUTION WORKERS, ILWU, CIO
Case No. R-3979.-Decided February 3,19413
Investigation and Certification of Representatives : objection to election sus-
tained, results of prior election set aside, and new election ordered when peti-
tioning union prior to election and in violation of instructions of Board agent
distributed marked sample ballots which conveyed the impression that Board
sanctioned the election of petitioning union.
Mr. Stephen M. Reynolds, for the Board.
Mr. Fred A. Ossanna, of Minneapolis, Minn., for the Company.
Mr. Douglas Hall, of Minneapolis, Minn., for the C. I. O.
Mr. Harry Karsh, of Washington, D. C., and Mr. L. E. Goldberg,
of Milwaukee, Wis., for the A. F. of L.
Miss Marcia Hertzmark, of counsel to the Board.
SECOND SUPPLEMENTAL DECISION
ORDER
AND
SECOND DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 29, 1942, the National Labor Relations Board, herein called
the Board, issued a Decision and Order in the above-entitled proceed-
ing,' and" on October 19, 1942, a Supplemental Decision and Direction
of Election? Pursuant to the Direction of Election, an election by
secret ballot was conducted on November 16, 1942, under the direction
and supervision' of the Regional Director for the Eighteenth Region
(Minneapolis,,Minnesota). On November 17, 1942, the Regional Di-
rector, acting pursuant to Article III, Section 10, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, issued
and duly served upon the parties a Report on Ordered Election.
As to the balloting and its results, the Regional Director rreported
as follows : ,
42 N. L R B 1037.
44N L. R.B 506
47 N L R B, No 31
291
292 DECIS',ONS OF NATIONAL LABOR RELATIONS BOARD
Approximate number of eligible voters ------------------------ 1,188
Total ballots cast----------------------------------------- 981
Total ballots challenged -------------------------------- 5
Total void ballots____________ _____________________________ 0
Total valid votes counted-------------------------------- -__ 976,
Votes cast for 'American Federation of Labor -------------I-- - 283
Votes cast for Local 214 , Mail Order , Warehouse and Distribu-
tion Workers, ILWU , CIO--------------- --------------- 567
Votes cast for neither_____________________________________ 126
Objections to the conduct of the election were thereafter filed by the
American Fedeiatign of Labor, herein called the A. F. of L., which re-
quested that the election be set aside on the ground that the petitioning
union, herein called the C. I. 0., had, prior to the election, distributed
marked sample ballots bearing the name of the Regional Director, al-
legedly in violation of instructions of a Board agent.
On November 23, 19421 the Regional Director issued a Report on
Objections, copies of which were served on the parties, in which he
found that the objections,raised no substantial and material issues and
recommended that the' objections be overruled. Thereafter the A. F.,
of L. filed objections to the Report on Objections and the C. I. 0. filed
a reply to such objections. On December 2, 1942, the Board issued an
Order directing that a ,hearing be, held on the objections to the elec-
tion and referring the case to the Regional Director for issuance of
notice of hearing. Pursuant to • notice, a hearing on the objections
was held on December 28, 1942, before Gustaf B. Erickson. The Com-
pany, the A. F. of L., the C. I. 0.,.,and the Board appeared and par-
ticipated. The A. F. of L. and the C. I: 0. thereafter filed briefs
which the Board has considered. = 1
.Upon the basis of the entire record in the case, the Board makes the
following :
FINDINGS' OF FACT '
At a•meeting on November 4,'1942;'i t'which were present represent-
atives of the Company,•the A. F. of•L., and the C. I. 0., and a Field
Examiner for the Board, the-parties were advised by the Field Exam-
iner of certain regulations:pertaining to the coming election.
,On, or about November 13, 1942; the C. I. 0. issued tol employees of,
the Company a leaflet containing, among other,things, a (sample ballot
identical with that appearing in the-election notice previously posted.
by the Regional Director, except that the sample ballot in the leaflet
was marked with an "X" in the Square provided for designating the
C. I. 0. The leaflet bore the name of the Regional Director of the
Eighteenth Region in the same place as that information appeared on
the official election notice.
There is a direct conflict in testimony as to whether, among the in-
structions given by the Field Examiner on November 4, there was
`SEARS 'ROEBUCK AND ' COMPANY '293
- ohe' which expressly prohibited the use of the Regional Director's
.name on sample ballots to be distributed, by the unions prior to' the
election. We deem it unnecessary to resolve this conflict in -testimony.
-In our view , it is immaterial whether express instructions were given
by the' Board agent and whether the, C. I. O. violated such alleged in-
-structions . In order to maintain the integrity of secret ballot elections
conducted by the Board, it is necessary that employees be not misled by
any action , innocent or. otherwise , into believing that the Board favors
one labor organization' over another. It is clear and we - find that,em-
ployees may have received the erroneous impression , from the marked
sample ballots distributed by the C. I. O. bearing the name of the Re-
gional Director, that the Board was lending its support to one of the
contestants in the election.
The C. I. O. contends that the election should not be set aside be-
cause the A. F. of L. was aware of the distribution of the marked
sample ballots prior to the date upon which the election was held and
made no timely protest. This contention is without merit since the
'Board is primarily concerned with the complete protection of its pro-
cedures to insure employees fair acid impartial elections and it pat-
ently' cannot allow 'that objective to be defeated by the failure of one
labor organization involved to make timely protest of the activities
of another union., I
.
We shall set the election aside and shall direct that a new election be
'held. '
ORDER AND DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
'Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Sections 9 and 10, of National Labor
Relations Board Rules and Regulations-Series 2, as amended,
IT Is HEREBY ORDERED that the election of November 16, 1942, con-
ducted among the employees of Sears Roebuck and Company, Minne-
apolis, Minnesota , be,' and it hereby is, set aside ; and it, is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Sears Roebuck and
Company, Minneapolis, Minnesota, 'an election by secret ballot shall
be conducted as early as possible but not later than thirty (30) days
from the date of this Direction of Election under the direction and
supervision of the Regional Director for'the Eighteenth Region, act-
ing in this matter as agent for the National Labor Relations Board
and subject to Article III, Section 10, of said Rules and'Regulations,
among all employees in the operating and auditing divisions of the
Company's mail order plant in Minneapolis , Minnesota , including out-
side warehouses 2 and 3, work heads . and extra employees, but ex-
cluding all executives, supervisory employees, timekeepers, auditing
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department 168, buyers and reorder clerks, special merchandise' de-
partment, department series 400 , personnel and medical departments,
special police, special staff, efficiency department , credit union , office
of order administration , watchmen , and all retail store and retail ware-,
house employees, who were employed during the pay-roll, period im-
mediately preceding the date of this Direction , including any such
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off , and including employees
in the armed forces of the United States who present themselves. in
person atthe polls, but excluding any who have since quit or been dis-
charged for cause, to determine whether they desire to be represented
by Local 214, Mail Order, Warehouse & Distribution Workers, ILWU,
CIO, or by the American Federation of Labor for the purposes of col-
lective bargaining , or.by neither.
MR. GERARD D. REn LY, concurring specially :
The majority of the Board have correctly laid down the principle
`that employees should not be given the impression by any of, the
parties to an election that the , Board favors one side as against another.
I am not altogether convinced , however, in the absence of any regula-
tion or outstanding decision of the Board to that effect, that merely
copying the name of the Regional Director on a sample ballot conveys
this impression . It would seem obvious to any reasonable person that
a sample ballot in which the printed matter shows an ' X " in the box
designated for one of the parties is not an official document of the Board
or any government agency. Most working people who participate in
Board elections have also voted in state and national elections. Judi-
cial notice may be taken of the fact that the circulation of pictures or
replicas, of sample ballots with an "X" beside the name of a particular
candidate is a familiar technique in American politics . Few voters
are misled by it even though the names of the election commissioners
and other matters are included on the sample.
The objections to the election, which this Board deemed in its Order
of December 2, 1942, to raise a substantial issue , alleged not only that
the C. I. O. had placed the name of the Regional Director upon the
sample ballot attachedtoits leaflet, but that it had done lso in-violation
of instructions given by a Board agent in a conference at which all
parties were present. In other words, the gist of thel objection was
disregard of a Board agent's instructions-the same , ground upon
which we set aside an election in Matter of The Kilgore Manufacturing
Company, 45 N. L. R. B., No. 69. It therefore seems to, me important
to review the record of the hearing on objections since, the Trial Ex-
aminer who heard the case did not submit any Intermediate Report.
. There is a direct conflict in testimony, as to whether the instructions
given by Waers, the Field Examiner who handled the preliminaries
of the election , at a conference on November 4, 1942, included a warn-
SEARS ROEBUCK AND COMPANY 295
ing against the use of the Regional Director's name, on sample ballots
to be issued by the union prior to the election. At the hearing on
objections, Karsh, the A. F. of L.' organizer, testified that the Board
agent told the parties that sample ballots might be issued " as long as
there isn't any Board designation, or the Regional Director' s signature
on the ballot." , His testimony was corroborated by one, circumstance,
viz, that the A. F. of L., which also circulated a sample ballot with an
``X" in the square reserved for its local, did not print the name of the,
Regional Director at the foot of the ballot, but the term "A. F. of L.
Organizing Committee.", Karsh's recollection that this instruction was
given at the conference of November 4 was also corroborated by three
representatives of the Company.
Regin, personnel manager for the Company, testified that the Field
Examiner circulated among the parties at the November 4 conference
a copy of an election notice containing the ballot form generally used.
and stated that only the portion which was "bordered in a heavy black
border on the notice of election could appear." 3: Hooke, -a .personnel
department employee of the Company, also testified that Waers said
that only the portion enclosed in the lines should appear, on the sample
ballot and that "it could not bear any designation of any Board repre-
sentative." Fred A. Ossanna, counsel for the Company,.testified that
Waers told the parties that "the ballot that could be used was a plain
sample ballot . . . without any designation of the Regional'Board or
any of its representatives appearing on the sample ballot."
In rebuttal, two witnesses for the C. I. O., ^ Cadnius and Lindell,
officers of the union, said that Waers did not give any instructions at
this conference, and showed through another witness, Soderberg,
president of the C. I. O. local at Montgomery-Ward, that he had
made available to the Sears Roebuck local a copy of the sample bal-
lot which his local had circulated in advance of the Montgomery-
Ward election, and that this copy was used by the concern which
printed the' C. I. O. ballots.4 On cross-examination, the C. I. O.,
also brought out that the A. F. of L. organizer had subsequently
made telephone calls to the Regional Office of the Board to check
on the-proper form of the sample ballot. The purpose of this testi-
mony was to show that the A. Y. of L. did not receive instructions
about omitting the Regional Director's name until' after the con-
ference. Karsh was recalled to the stand, however, to state that he_
first telephoned merely, to verify the instructions which Waers had
first given him and was referred by Waers to the Regional Director;
3 The Regional Director's name and title appear outside the black border on both the
official notice of election and the_sample,ballot distributed by the C. I 0
+ This evidence `was excluded by the Trial Examiner , but possibly should have been
admitted , for the limited purpose of showing that the C I. 0 did not deliberately disobey
any directions given by Waers Even such proof, however, would not have disproved the
principal allegation, viz, that such an instruction had been given but had not been followed.
296 DECISIONS OF NATIONAL LALO'R, RELATIONS BOARD
that he telephoned the Regional Director on another occasion to
read to him the proposed form of their ballot;. and that it was from
the Regional Director that the suggestion of inserting "A. F of L.
''Organizing Committee" originated. This phase of the testimony was
uncontradicted.5
This conflicting testimony might well have been settled by Wars
himself, but unfortunately his recollection was not clear. He testi-
' fled that he was unable to recall' any discussion Concerning sample
'ballots at the conference of November 4. He also said he did not
'recall any instruction on that date about.omitting the name of the
'Regional Director from sample ballots or confining 'the ballot to
material within the black border,' and that if he had issued such an
instruction he would have made a note of it which he had not done.
He did recall, however, that at, one conference between the parties
ali election notice involving an election in another part of the State
was circulated. On cross-examination he said he did not want to
testify that such an instruction was not given, but 'simply that he
had no independent recollection of it and that had he been interro-
gated on the point he would in effect have issued the direction attrib-
uted to him.
It this were 'all that the record contained, it would be difficult
to reach any conclusion. Waers' inability to recall giving any in-
struction tends to corroborate the two C. I. O. witnesses, whereas
the account of the three company officials bears out the testimony of
Karsh, even though their description of the precise instruction alleged
to have been given by Waers differs slightly from his. This dis-
crepancy, however, was not material since no one attempted to quote
Waers verbatim. Nor was the credibility of the Company witnesses
impeached, although the C. I. O. did attempt to show that the Com-
pany favored the A. F. of L. and was attempting to deprive the
C. I. O. of the fruits of its election victory.6 '
There was, however, one admission elicited on cross-examination
from Lindell, the, second C. I. O. witness, which to my mind lends
significant support to the A. F. of L. version. As I have noted,
it was Waers' "impression" that not only had he not given any in-
struction about what matter should be printed, on a sample ballot,
but that no discussion or sample `ballots had taken place. Lindell,
however, admitted that Karsh had inquired about the propriety of
the A. F. of L. circulating a sample ballot with an "X" in the A. F.
E The Regional Director did not take the stand. Waers recalled the telephone call and
referring Marsh to his superior.
U The Trial Examiner excluded this offer, apparently on the ground that the objections
did not raise any question of Company interference. Had the offer been made for the
limited purpose of impeaching the Company witnesses, he might well have ruled otherwise.
1
SEARS ROEBUCK AND COMPANY 297
of L. square. It must therefore be inferred that Waers' "impres-
sion" was really based upon a complete absence of recollection of
some of the events at the conference. Since he testified that had the
question of sample ballots arisen lie would have given the instruc-
tion which Karsh recalls, it would seem that the balance of probabil-
ities favors the.,view that he did give such an instruction which
Cadmus either forgot or did. not hear.? While the matter is not
free from doubt, I therefore believe the weight of the evidence sup-
ports the allegations contained in, the objections to the election.
7 The varying accounts of the witnesses as to some of the collateral events which.
admittedly occurred at the conference indicate that, as frequently happens at large meet-
ings, some of those present did not pay careful attention to questions propounded by other
conferees.