Sears Roebuck and Co.

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 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.