Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Feb 13, 1946

65 N.L.R.B. 1039 (N.L.R.B. 1946)

In the Matter of SEARS, ROEBUCK AND Co. and MAIL ORDER AND WARE-
HOUSE EMPLOYEES UNION, LOCAL 548, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, A. F. OF L.
Case No. 18-R-13,68.-Decided February 13, 19.46
Messrs. R. D. Hooke and James A. Mazzulla, of Chicago, Ill., for
the Company.
Mr. Thomas O. Kachelmacher, of Minneapolis , Minn ., for the
Teamsters.
Helstein and Hall, by Kenneth J. Enkel, of Minneapolis, Minn., for
the ILWU.
Miss Ruth E. Blie field, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Mail Order and Warehouse
Employees Union, Local 548, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. of L.,
herein called the Teamsters, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Sears,
Roebuck and Co., Minneapolis, Minnesota, herein called the Company,'
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Clarence A. Meter, Trial Examiner.
The hearing was held at Minneapolis, Minnesota, on September 18,
1945. The Company, the Teamsters, and Local 214, Mail Order, Ware-
house R Distribution Workers, ILWU-CIO, herein called the ILWU,
appeared and participated. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
.evidence bearing on the issues. At the hearing, the ILWU moved
to dismiss the petition on the grounds that (1) it has not had an
opportunity to enj oy the fruits of collective bargaining since its
certification on May 24, 1943, as bargaining agent for the employees
involved, and (2) the showing made by the Teamsters is insufficient
1 The name of the Company appears herein as it was amended at the hearing.
65 N. L . R. B., No. 186.
679100-46-vol. 65-67 1039
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to raise a question concerning representation. Ruling on the motion
was reserved by the Trial Examiner for the Board. For the reasons
appearing in Section III, infra, this motion is hereby denied. The
Trial Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded apportunity
to file briefs with the Board
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Sears, Roebuck and Co., a New York corporation, licensed to do
,business in the State of Minnesota, maintains 595 retail stores in 47
States, 10 mail order houses, and 20 factories, including a mail order
house and retail store in Minneapolis, Minnesota. The present pro-
ceeding involves only the mail order house in that city. During the
year 1944, the Company purchased for its Minneapolis mail order
house approximately $6,000,000, worth of goods, approximately 50 per-
cent of which was transported to it from points outside the State of
Minnesota. During the same period it purchased approximately
41,000,000, worth of goods for its retail store in Minneapolis, approxi-
mately 50 percent of which was bought outside the State. The Com-
pany's sales from its mail order house during this period totaled about
$9,000,000, and approximately 50 percent of such sales was to persons
living outside the State. During the same period the Company sold
from its Minneapolis retail store approximately $500,000 worth of
merchandise, approximately 20 percent of which was sold and deliv-
ered to persons outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act, and we so find.
O
II. THE ORGANIZATIONS INVOLVED
Mail Order and Warehouse Employees Union, Local 548, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization, affiliated with the Ameri-
can Federation of Labor, admitting to membership employees of the
Company.
Local 214, Mail Order, Warehouse & Distribution Workers, ILWU,
is a labor organization, affiliated with the Congress of Industrial Or-
ganizations, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Teamsters as
the exclusive bargaining representative of certain of its employees
SEARS, ROEBUCK AND CO. 1041
until the Teamsters has been certified by the Board in an appropriate
unit.
On May 1, 1942, the ILWU filed a petition with the Board, which
was dismissed after hearing on the ground that the bargaining unit
sought was inappropriate.2 Another petition was filed by the ILWU
on August 10, 1942, alleging as appropriate a unit different from that
previously requested. Pursuant to, a motion filed with the Board, a
Notice to Show Cause was issued, and, on September 25,1942, the Board
issued an order vacating the Decision and Order in the previous case,
reinstating the petition in that case, making the new petition a part
of the record in the original case, and treating it as an amendment to
the petition initially filed. Thereafter, the Board was informed that
the American Federation of Labor, herein called the A. F. of L.,
claimed an interest in the proceeding and had made a showing of rep-
resentation. Without a further hearing the Board directed an election
among the employees in substantially the same unit hereinafter found
appropriate with the ILWU and the A. F. of L. on the ballot.3 An
election was held on November 16, 1942, in which the ILWU received
a majority of the valid votes cast, but the election was set aside after
a hearing on objections to the conduct of the election filed by the A. F.
of L.4 Another election was held on March 4, 1943, pursuant to a
Second Direction of Election issued by the Board, in which neither
union polled a majority of the valid votes cast, and the Board there-
upon directed that a run-off election be held. The ILWU received a
majority of the valid votes cast in the run-off election and was certi-
fied by the Board on May 24, 1943.
After its certification, in June 1943, the ILWU presented a pro-
posed contract to the Company and requested that negotiations con-
cerning the contract begin. No reply to the request was received from
the Company, and in July 1943, the aid of the U. S. Conciliation
Service was sought. The A. F. of L. meanwhile wrote the Company
on June 5, 1943, stating that it objected to recognition of the ILWU
by the Company, and that if the Company recognized the ILWU, it
would picket or take "other appropriate steps" to protect the rights of
its members.
On June 17, 1943, the A. F. of L. filed a petition with the Board.
The Regional Director, however, refused to issue a notice of hearing
because of the recency of the ILWU's certification. On appeal to the
Board, the Regional Director's ruling was sustained.5 Another letter
s 42 N L. R. B 1037.
8 44 N L. R. B 507.
4 47 N. L. R. B. 291
' On October 15, 1943, another petition was filed with the Board by the A. F of L.,
and here too , the Regional Director refused to issue a notice of hearing . An appeal was
also taken to the Board in this case and the Board sustained the action of the Regional
Director.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was sent to the Company on July 27, 1943, by the A. F. of L. in which
it reiterated the position taken in its previous letter.
The dispute between the ILWU and the Company was certified to
the War Labor Board, herein called the WLB, on August 24, 1943 . 11
A hearing was then held on October 28, 29, and November 15 and 16,
1943, before a WLB Panel in Region VI, at which hearing the Com-
pany referred to the position taken by the A. F. of L., stated that it was
not certain as to which union represented a majority of its employees,
and contended that the only function of the Panel was to make a
report to the Regional Board on the issue of whether or not the Com-
pany should bargain with the ILWU. Both the Company and the
A. F. of L. also questioned the WLB's jurisdiction over the Company
in view of the type of business in which it was engaged. On failure
of the Panel to confine itself to the bargaining issue, the Company,
together with the industry member of the Panel, left the hearing,
declining to discuss the ILWU's proposed contract.
After the Panel made its Report and Recommendations, on April
15, 1944, the Regional War Labor Board issued its Directive Order, in
which it refused to order the Company to accept a complete collective
bargaining contract prepared by the majority of the Panel, and de-
clined to order the Company to bargain collectively with the ILWU.
In the Directive Order, issued almost 2 years ago, the Regional War
Labor Board pointed out that the real issue was one of refusal to
bargain and that the remedy of the ILWU was to file an unfair labor
practice charge with this Board under the National Labor Relations
Act. It also indicated that the WLB should elect to force an employer
to bargain with a certified union only when "such action is justified
by the urgency of the situation in the effective prosecution of the war."
But the ILWU elected to press the proceeding instituted before the
WLB, and on April 27, 1944, it filed a petition for review. No charges
of refusal to bargain were filed with the National Labor Relations
Board. A Directive Order was thereafter issued by the National War
Labor Board on June 19, 1944, referring the case back to the Regional
Board for further proceedings. The Directive Order provided that "if
either the Company or another union petitions the National Labor
Relations Board for an election and so informs the Regional Board,
the proceedings will be stayed until the petition is acted upon, and,
if the petition is granted, until the certification of a collective bar-
gaining agent is made. If the petition is denied, or if it is granted,
an election is held, and the International Longshoremen's and Ware-
housemen's Union, Local 214, is certified, the processing of the case
will at once be resumed. If another union or no union, is certified,
6 Case No. 111-3085-D.
SEARS, ROEBUCK AND CO. 1043
the proceedings will be dismissed." 7 A show-cause hearing was sched-
uled by the Regional Board on July 25, 1944, but it was postponed
because of the filing of a petition with the National Labor Relations
Board by the A. F. of L. on July 24, 1944. Upon being advised that
our Regional Director had refused to issue a notice of hearing in peti-
tion filed with this Board," the Regional War Labor Board held a hear-
ing on October 24,1944. Another Panel hearing was held on December
4 and 5, 1944. The A. F. of L. appeared and was granted permission
to intervene in the Panel hearing. The Panel made its Report and
Recommendations on March 19, 1945, recommending that the National
War Labor Board take jurisdiction, and making specific recommenda-
tions as to substantive provisions of a contract. On May 4, 1945, a
hearing on this Panel report and the first Panel report was held before
the Regional War Labor Board, but up until the date of our hearing
in the instant case, no Directive Order had been issued.
As previously indicated, the ILWU requests a dismissal of the
petition, asserting that it has not had an opportunity since its 1943
certification to enjoy the fruits of collective bargaining., In taking
this position it seeks to invoke the doctrine of the Allis-Chalmers case .9
We are of the opinion, however, that the principle enunciated in that
case is inapplicable to the facts set forth above. It is true that in cer-
tain circumstances we have afforded a measure of protection to a
recently certified union involved in WLB proceedings by refusing to
entertain a representation petition10 But in those cases, the facts
indicated that the labor organization had no remedy under the Act
and was properly before the WLB; the basic conflict between the
parties concerned the content of the substantive bargain. In the in-
stant case, however, the facts unmistakably indicate that at all times
the crucial issue between the ILWU and the Company was the
ILWU's right to recognition as the bargaining agent of the employees
here concerned. This question was one that should have been resolved
by the ILWTJ's filing an unfair labor practice charge alleging that
the Company had refused to bargain in violation of Section 8 (5) of
the Act. The ILWU thus chose the wrong forum in which to test
its rights.
'About October 4. 1944, the A. F. of L. petitioned the National War Labor Board to
modify its Directive Order to permit the determination of the bargaining agency by any
"Board or Agency, State or Federal , having jurisdiction to determine the bargaining
agents. " The National War Labor Board, on December 7, 1944, declined to entertain the
petition because of its untimeliness.
8 The A. F of L. appealed the action of the Regional Director, but the Board again
sustained the Regional Director.
s 50 N . L. R B 306
10 Matter of Kennecott Copper Corporation , 51 N. L. R. B. 1140; Matter of Aluminum
Company of America, 53 N. L. R B. 593; Matter of Taylor Forge & Pipe Works , 58 N. L.
R. B. 1375; Matter of American -Marsh Pumps, Inc., 59 N. L. It. B. 1084; Matter of Brown
Shoe Company , Inc., 60 N. I, R . B. 620; Matter of Aluminum Company of America, 58
N. L R B 24
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This was no accident or minor error of judgment. The ILWU,
ignoring the fact that the primary issue-the Company's alleged re-
fusal to bargain collectively, rather than substantive differences-was
one which Congress created the National Labor Relations Board to
resolve, preferred to take its case to the WLB, presumably believing
that a quicker remedy might be secured through that agency. But
surely this Board's procedures, now a decade old, would not have been
any less peaceable and orderly than those of the WLB. The Allis-
Chalmers doctrine had the salutary objective of not penalizing a union
which took a war-time dispute concerning conditions of employment
to the WLB, rather than utilize its economic strength; it should not
be extended to a situation where the only alternative to invoking the
WLB's jurisdiction was not self-help, but the use of the statutory ma-
chinery of a more appropriate Government agency. After all, the
Allis-Chalmers doctrine is in derogation of the fundamental right of
employees to select their representatives at reasonable intervals.
These Sears Roebuck employees have had no opportunity to express
their choice in almost 3 years. Whatever equities might favor the
ILWU in a different situation, they cannot, on this record, rise higher
than the right of the employees themselves to voice their present
desires.
As it happens, to dismiss the instant petition would not serve any
useful purpose. We would indeed be ignoring "practicalities" if, in
view of the history of the relations between the ILWU and the Com-
pany, we shared our dissenting colleague's assumption that dismissing
this petition would result in collective bargaining between the Com-
pany and the ILWU. In those cases in which we have applied the
Allis-Chalmers doctrine the certified union was either in the process
of procuring from the WLB a decision settling disputed substantive
issues, or had recently obtained a Directive Order from that agency.
With the disputed issues to be settled or already definitively resolved,
it was contemplated that a union would be in a position to obtain
substantial benefits of collective bargaining for those whom it repre-
sented. Here, however, no Directive Order determining the contro-
versy between the ILWU and the Company has been issued. Nor is
there any chance that one will issue, because the WLB is no longer in
existence 11
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates, contrary to the contention of the ILWU, that the
Teamsters represents a substantial number of employees in the unit
hereinafter found appropriate.12
n See text of Executive Order No 9672, dated December 31, 1945, establishing the Wage
Stabilization Board, particularly Section 3 of said Order.
12 The Field Examiner reported that the Teamsters presented 443 authorization cards,
bearing the names of 379 employees listed on the Company 's pay roll of July 23, 1945;
0
SEARS, ROEBUCK AND CO. 1045
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in substantial accordance with the agreement of the parties,
that all employees in the operating and auditing divisions of the
Company's mail order house in Minneapolis, Minnesota, including
employees of Outside Warehouse 2, work heads, and extra employees,
but excluding all timekeepers, employees of auditing department 168,
buyers and reorder clerks, employees of the personnel and medical
departments, special police, special staff, employees of the efficiency
department, employees of the credit unit, employees of the office of
order administration, watchmen, all retail store and retail warehouse
employees, executives, and all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act 13
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
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 Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Sears, Roebuck
and Co., 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, under the direction and supervision
of the Regional Director for the Eighteenth Region, acting in this
and that all but 36 undated cards, are dated during July, August, and September, 1945.
There are approximately 1,264 employees in the appropriate unit. The ILWU did not sub-
mit a showing of interest, evidently relying on its prior certification.
18 This unit is substantially the same as that found appropriate in Matter of Sears, Roe-
buck and Company , 44 N. L. R. B. 507 , with the exception that it does not include the
employees of "warehouse 3", the use of which has been discontinued.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including 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 at the polls,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of the election, to determine whether they desire to be represented by
Mail Order and Warehouse Employees Union, Local 548, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, A. F. of L., or by Local 214, Mail Order, Warehouse &
Distribution Workers, ILWU-CIO, for the purposes of collective
bargaining, or by neither.
MR. JOHN M. HOUSTON, dissenting :
I am of the opinion that no question concerning, representation
has arisen in this case and I would, therefore, dismiss the petition.
The decision of the majority is predicated upon assumptions which
I feel should not be accorded controlling significance here. Because
the intervenor did not seek a remedy under Section 8 (5) of the Act
upon the Company's refusal to honor our certification, but chose rather
to invoke the procedures of the National War Labor Board, the ma-
jority holds that it "chose the wrong forum in which to test its
rights." Granted that, on the facts before us in this proceeding, the
certification of the intervenor doubtless would have been given force
by this Board in a complaint case, I think that the intervenor, by pur-
suing a well recognized course in war time, exercised reasonable judg-
ment in submitting its difficulties to the National War Labor Board.
The reasonableness of that judgment, in large part, may be attributed
to the action of this Board in sustaining, on three different occasions
in 1943 and 1944, the action of its Regional Director dismissing peti-
tions filed by the present petitioner. It is fair to say that the inter-
venor, its status as certified representative made secure by this Board,
was encouraged to seek a settlement of the substantive issues in dispute.
Those issues could have been disposed of by the War Labor Board, the
agency created for that express purpose. By submitting its dispute
to that tribunal, the intervenor at least created the possibility that the
entire dispute might have been expeditiously settled. To hold now
that this attempt to invoke peaceable and orderly procedures is a
factor detrimental to the intervenor's position ignores practicalities.
I would hesitate, however, to agree that my position herein gives
subordinate posture to the right of the employees concerned to select
SEARS, ROEBUCK AND CO. 1047
representatives at reasonable periods. Certainly that right is of para-
mount importance. But it is not in derogation of that guaranty to
permit the representative already chosen a free chance to display its
worth to its constituents. That free chance has never been afforded
the intervenor and consequently the employees in this bargaining unit
do not have a real basis for a selective judgment.
My colleagues are of the opinion, however, that, "to dismiss the
instant petition would not serve any useful purpose" in that, because
the National-War Labor Board no longer exists, the intervenor's reli-
ance upon the Allis-Chalmers doctrine loses foundation 14 The demise
of that agency, however, has not precluded the fruitful possibilities
of free collective bargaining between parties to labor disputes. In-
deed, the intervenor and the Company are substantially in the position
they would have found themselves before the advent of the War Labor
Board.- Thus, the parties have only the practice of collective bar-
gaining to utilize in the resolution of their difficulties. If, as I think,
and I feel my colleagues would not disagree, because their decision
is otherwise premised, the equities are in favor of the intervenor,
it would seem that this case might well emphasize the need for dis-
putants to resort to collective bargaining at a time when that principle
is rather sorely in need of support. These considerations, rather than
the applicability or lack of it in respect to the Allis-Chalmers doctrine,
motivate my opinion that the intervenor is entitled to an opportunity
to bargain uninterruptedly with the Company.
14It is inherent in that doctrine that the war Labor Board was, or had been , available
to the labor organization seeking to invoke its procedures.
' I am not unmindful that the certification here was issued in May 1943, and that
there may be a question of turnover in the unit for which the intervenor was certified.
These factors, however, are not alluded to in the majority decision.