Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Mar 20, 1968

170 N.L.R.B. 533 (N.L.R.B. 1968)

SEARS, ROEBUCK AND CO.
Sears, Roebuck and Co. and its Sears Fashion Dis-
tribution Center and Local 148-162, Interna-
tional Ladies ' Garment
AFL-CIO. Case 22-CA-3016
Workers Union,
March 20, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 14, 1967, Trial Examiner
Frederick U. Reel issued his Decision in the above-
entitled proceeding, finding that the Respondent
had not engaged in unfair labor practices as alleged
in the complaint and recommending that the com-
plaint be dismissed, as set forth in the attached
Trial Examiner's Decision . Thereafter, the General
Counsel and the Charging Party filed exceptions
and supporting briefs. The Respondent filed cross-
exceptions and a supporting memorandum, and an
answering brief to the exceptions of tthe General
Counsel and the Charging Party.
Pursuant to the provisions o( Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications
noted below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts the recommendation of the
Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed.
' In view of our determination herein, we find it unnecessary to pass
upon the "comment" and statements of the Trial Examiner expressed in fn
3 of his Decision
We correct the Trial Examiner's inadvertent misstatement of the number
of employees under the supervision of Berardo to read "50 part-time and
25 full.time employees."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Frederick U, Reel, Trial Examiner: This case,
170 NLRB No. 76
533
heard at Newark, New Jersey, on June 12, 1967,
pursuant to a charge filed the preceding February
14; an amended charge filed February 24, and a
complaint issued April 20, raises the question
whether Respondent discharged its em-
ployee Frederick Scotti for lawful reasons or
because of his union activity, and-if the latter-
whether the fact that Scotti during his employment
by Respondent was also a paid organizer for the
Charging Party renders inappropriate the custom-
ary remedial order of reinstatement and backpay.
Upon the entire record, including my observation
of the witnesses, and after due consideration of the
unusually helpful briefs filed by each of the parties,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
Respondent, herein called the Company, is a New
York corporation, which includes among its opera-
tions in several States the maintenance at North
Bergen, New Jersey, of the "Sears Fashion Dis-
tribution Center," herein called the plant. The
value of goods annually received at the plant
directly from outside the State, and the value of
goods annually shipped from the plant directly to
points 'outside the State, each exceeds $50,000. The
pleadings establish, and I find, that the Company is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the National Labor Relations
Act, as amended, and that the Charging Party,
herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Scotti's Employment Prior to the Start of the
Union Campaign
The Company hired Scotti November 14, 1966,
as a receiving clerk under the supervision of Car-
mine Berardo. At this time, Scotti was also em-
ployed by the Union as a paid organizer, a fact of
which the Company was unaware. He testified that
his purpose in securing employment at the Com-
pany was "to organize and also to make some extra
money."
Berardo supervised approximately 75 part-time
and 50 full-time employees; Scotti was in the latter
group. Scotti testified that he was hired as a
"learner," and Berardo testified that he told Scotti
it would take 30 days for him to prove that he
could do the work. According to Berardo, Scotti
showed early promise of developing into a valued
employee, but on two occasions late in November
Berardo had telephone calls from John Cordova,
the head of the shipping department, that Scotti
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was in that department talking to some employees.
On another occasion, early in December, Berardo
received a telephone call from John Prehodka, the
distribution manager, complaining that Scotti was
in that department talking to employees and had
been doing so on several occasions. After the
second call from Cordova and again after the call
from Prehodka, Berardo spoke to Sotti, reproving
him for leaving his work area.' Berardo testified
that he received no more complaints about Scotti
and none in the week preceding Scotti's discharge
on December 16. After Prehodka's complaint, Be-
rardo transferred Scotti to an assignment which
restricted the possibility that Scotti would have oc-
casion as part of his job to go into other depart-
ments.
B. The Union's Campaign, the Company's
Opposition, and Scotti's Prounion Activity
Although Scotti spoke to employees about the
Union during the latter part of November, the
Company's first knowledge of the Union's organiz-
ing efforts apparently came early in December
when the Union intensified its drive, and visited
employees in their homes. In speeches delivered to
the employees on Thursday, December 8, the Com-
pany made clear its strong opposition to the
Union's effort to organize. Discussing one of these
speeches with other employees, including one Hugh
Coffee, Scotti suggested that they hear the Union's
side. He accordingly arranged a meeting for early
the following week at a nearby bakery, which was
attended by Scotti, Coffee, and about eight other
employees.
The morning after the meeting at the bakery
(i.e., on December 13 or 14) Scotti asked Coffee
on the way into work what the men thought of the
Union, and Coffee replied that the men "didn't
want any part of it" as they were "afraid" and did
not "want to get involved." Later that morning
Scotti saw Coffee speaking to the latter's super-
visor, John Prehodka. A few minutes later Prehod-
ka called Scotti over and told him, to "stay away
from his boys" or Prehodka would call the matter
to the attention of Berardo, Scotti's supervisor. The
record does not indicate that Prehodka did report
this episode to Berardo.
Scotti testified that about a day and a half later,
however, Berardo transferred him from his job
receiving raincoats and suits, where he worked with
several other employees, to a job nearer Berardo's
door, where Scotti "was more or less isolated"
although there were employees 20 to 30 feet away.
Shortly after this, according to Scotti, he was
shifted again to an area "where no one was
around." Berardo testified that he moved Scotti at
an earlier date after the complaint from Prehodka. I
credit Berardo in this respect, but it is clear that
Scotti was given miscellaneous assignments during
the last week when work slacked off, and some of
these may have been in comparatively "isolated"
places.
C. Scotti's Discharge
On Friday, December 16, the Company laid off
most, but not all, its part-time employees for
economic reasons. On this day the Company also
let Scotti go, although as a full-time employee he
would normally have been retained' as long as part-
time men were still on the payroll. Scotti was
notified of his release in an interview ,in the office
of Personnel Manager Harold Gregory, at which
Scotti, Gregory, and Berardo were present.
Gregory told Scotti he was being laid off for want
of work. When Scotti inquired if he would be called
back when work picked up, Gregory for the first
time mentioned that he had heard reports of Scot-
ti's "wandering all over the plant" and said he
"would not take back employees under those condi-
tions."' Berardo testified that he recommended
letting Scotti go at the time of the layoff of the part-
time men because in view of the complaints during
the 30 days of Scotti's employment Berardo felt he
would not make a, satisfactory employee. The Com-
pany noted on Scotti's employment record that he
was released because of a "reduction in force."
D. Concluding Findings
During the first few weeks of Scotti's employ-
ment, and before the Company was aware of any
union activity, Berardo received three complaints
that Scotti was talking to employees in other areas
of the plant. During the last week of Scotti's em-
ployment, when the Company ,was aware of the
union movement, Berardo (according to - his
testimony) received no complaints about Scotti.
The question in the case is whether the discharge
of Scotti was caused by the complaints Berardo had
received or by Scotti's union activity.
Several factors militate in favor of the Company's
position. Scotti had been employed only 5 weeks,
and was thus completing the informal provisional
30-day period. The Company was laying off other
employees at this time, although Scotti as a full-
time employee would not ordinarily have been af-
fected. And there is no direct evidence that the
Company knew of Scotti's union activity at the time
of his discharge.
This'last statement poses the critical issue in the
case. General Counsel argues that the Company
must have known of Scotti's union activity. Other
employees knew of it, and some at least believed
(quite correctly) that Scotti was a union agent. But
I do not credit Scotti's denial that Berardo reproved him
Scotti denied that Gregory referred to the alleged "wandering," but I
credit Gregory in this respect
SEARS, ROEBUCK AND CO. 535
Scotti ' s union activities, though well known to the
employees , were not carried on openly before
management . Nor can it be inferred that manage-
ment surmised from Scotti 's wandering about the
plant that he was engaged in union activity, for the
complaints Berardo received predated the Union's
intensive campaign.
There remains for consideration the Coffee-Pre-
hodka episode early in the week of Scotti's
discharge . The day after the union meeting, Coffee
expressed antiunion sentiments to Scotti , who then
saw Coffee talking to his supervisor , Prehodka,
after which Prehodka told Scotti not to bother Pre-
hodka's employees . From this , General Counsel ar-
gues that Coffee told Prehodka about Scotti's pro-
unionism, thus supplying the missing element of
Company knowledge . Furthermore , so the argu-
ment runs, Scotti was promptly transferred to a more
isolated job to keep him from talking to other em-
ployees. On the other hand, Berard) testified that
he received no complaint from Prehodka at that
time , and Berardo places the moving of Scotti to an
earlier period , admitting that it was done to keep
Scotti from going to other departments to talk to
employees . As noted , I credit Berardo . Similarly
Prehodka places his telephone report to Berardo
about Scotti as occurring before the Coffee
episode, and an oral report to Berardo ( which the
latter did not recall ) as occurring still earlier. And
accepting Scotti 's testimony , Prehodka 's statement
to "stay away from " Prehodka 's men could refer to
Scotti 's practice in previous weeks of visiting in
Prehodka 's department.
General Counsel has undoubtedly established
suspicious circumstances . An antiunion employer
hay discharged a prounion employee early in the
union campaign. The ground relied on for
discharge was not stated to the employee until he
asked if he would be rehired, and does not appear
as the reason shown on the Company's records.
The Company admits that it had received no com-
plaints about the offensive conduct, alleged to be
the cause for discharge, in the week preceding the
-action. Unfair labor practice findings have been
made and sustained on nothing more than that. But
the employee was in a "trial" status, and had been
the subject of managerial complaints predating the
Company's awareness of union activity. Moreover,
the element of company knowledge must rest on in-
ference for Coffee was not called as a witness.
Recognizing that direct evidence of a purpose to
violate the statute is rarely obtainable, and that the
burden of proof may be carried by circumstantial
evidence from which reasonable inferences may be
drawn, I nevertheless conclude-with considerable
misgivings-that General Counsel failed to carry
the burden of establishing company knowledge of
Scotti's union activity, and that the complaint
should be dismissed.'
CONCLUSIONS OF LAW
The Company has not engaged in the unfair labor
practice alleged in the complaint.
RECOMMENDED ORDER
The complaint should be, and hereby is,
dismissed.
As the Board of higher reviewing authority may disagree with this
dismissal, I append comment on two matters which I would reach were
my basic conclusion otherwise
I I would find the discharge, if unlawful, violative of Section 8(a)( 3) as
well as of 8(a)( I) Although the complaint referred only to the latter sec-
tiOn, the failure to refer to Section 8(a)(3) does not preclude a finding that
that section was violated See A N P A v N L R B , 193 F 2d 782, 799-800
(C A 7), cert denied 344 U S 16, N L R B v Pecheur Lozenge Co , Inc ,
209 F 2d 393, 402 (C A 2), cert denied 347 U S 953, Frito Company v
N L R B , 330 F 2d 458 (C A 9), Independent Metal Workers Union, 147
NLRB 1573, 1576-77 The facts relating to Scotti's discharge were fully
litigated, and the question whether, if unlawful, the discharge violated Sec-
tion 8(a)(3) as well as 8(a)( I) is therefore properly before me under the
cases cited The theory of General Counsel in limiting the complaint to
Section 8(a)( I ) was that Scotti as a paid union organizer was not a bona
fide employee so as to be protected by Section 8(a)(3), but that as he ap-
peared to be an ordinary employee his discharge for union activity tended
to interfere with other employees' exercise of their Section 7 rights under
such cases as N L R B v Talladega Cotton Factors', Inc , 213 F 2d 208,
216-217(CA 5)
1 find, however, that Scotti was a bona fide employee The fact that he
was also paid by the Union to organize does not militate against that find-
ing If, for example, Scotti had used his free time as an employee to sell
products to other employees, and had b, ,n paid by another employer to do
so, this would not have affected his status as an employee of the Company
The case would be different if Scotts had been "planted" by a rival em-
ployer intending to harm the Company's business, but while the Company
may view the Union in no better a light, ceitainly under this statute it is
not appiopi iate to view the two as adveis,uies in that sense The Geneial
Counsel cites N L R B v Elias Btothe, s Bu; Bov, Inc , 327 F 2d 421
(C A 6), as holding that a paid union oiganizei is not a bona tide em-
ployee of the employee whose employees he is tiymg to organize The
court does indeed announce such a eesult, although the statement may
be oboes dicta (like this enure footnote) as the court also sets aside the
Board's ciedibility determinations As long as the employee gives a full
day's work to his "iegulai" employee, the tact that he renders see vices
in other hones to the Union does not affect his employee status, whether
such latter services aie paid of not Of cowse, if he seeks only tem-
poiaiy employment in ordee to organize, and withholds horn hisemployer
the fact that he seeks only tempoiaiy employment, a difteient result
might follow, but no such showing is made on this tecord
2 For reasons just indicated, I would, if I found the violation, accede to
Charging Party's request and recommend reinstatement and backpay