Sears, Roebuck & Co.

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate type of unit in a public utility.3 As noted above, the employees of 2 of the Employer's exchanges are already represented; the remaining 83 exchanges constitute the residue of a systemwide unit. In order to afford the employees at the latter exchanges an opportunity to be represented, we shall direct an election for the residual group.4 As it is the policy of the Board to favor the largest feasible unit, a majority vote for the Petitioner will be taken as an indication of the employees' desire to be included in a unit with the Denison and Ida Grove employees now represented by the Petitioner, and the Regional Director conducting the election herein is instructed to issue a certification of results of election to such effect. Accordingly, we shall direct an election in the following voting group: All employees employed in the Employer's telephone exchanges lo- cated in the States of Iowa, Kansas, Oklahoma, and Missouri, includ- ing evening chief operators,5 and all telephone construction employees, but excluding employees who work at the Employer's Denison and Ida Grove, Iowa, exchanges, employees engaged in operations other than telephone, confidential employees, the field engineer at Clarence, Missouri,6 the three engineers stationed at Great Bend, Kansas,7 guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] CHAIRMAN FARMER took no part in the consideration of the above Decision and Direction of Election. 6 Cf. Caltifornia-Pacific Utilities Company, 93 NLRB 747; Southwestern Service Com- pany, 89 NLRB 114 4 Gulf States Telephone Company, 101 NLRB 270. 6 Pursuant to the agreement of the parties , the evening chief operators will be permitted to vote subject to challenge. The record contains no evidence as to their duties. 6 The Employer would exclude the field engineer as a managerial and professional em- ployee. The Petitioner stated, in effect, that it had no objection to his exclusion The record shows that he responsibly directs other employees Accordingly, we exclude him as a supervisor. 7 The Employer would exclude these engineers . The Petitioner does not object to their exclusion . As their duties are similar to those of the field engineer , we exclude them as supervisors SEARS, ROEBUCK & Co. and RETAIL CLERKS INTERNATIONAL ASSOCIA- TION, L. U. No 1625, AFL. Case No. 10-CA-1736. August 2,1954 Decision and Order On March 10, 1954, Trial Examiner Sidney L. Feiler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and 109 NLRB No. 102. SEARS, ROEBUCK & CO. 633 take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.' 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner 2 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent , Sears, Roebuck & Co., Miami, Florida, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Retail Clerks International As- sociation, L. U. No. 1625, AFL, or in any other labor organization, by discharging any of its employees, or in any other manner discriminat- ing against them in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with loss of employment or employee benefits because of their union membership or activities. (c) Interrogating its employees concerning their membership in, or their activities on behalf of, Retail Clerks International Associa- tion, L. U. No. 1625, AFL, or any other labor organization, in a manner constituting interference , restraint, or coercion in violation of Section 8 (a) (1). (d) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self -organization, to form labor organizations , to join or assist Retail Clerks International Association, L. U. No. 1625, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may 1 Respondent also requested oral argument. In our opinion, the record and the excep- tions and briefs fully present the issues and the positions of the parties . Accordingly, the request is denied. 2 We agree with the Trial Examiner that by Supervisor Wilson's questioning of employee Peyton and by Supervisor Gravely's interrogation of employee Yessman concerning union activities , Respondent violated Section 8 ( a) (1) of the Act. We find that, in the context of the threats uttered by several of Respondent 's supervisors and in the discriminatory discharge of Purdy, these acts of interrogation were coercive. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be affected by an agreement requiring membership in a labor organ- ization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Erwin L. Purdy immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Make whole Erwin L. Purdy in the manner set forth in the sec- tion of the Intermediate Report entitled "The Remedy" for any loss of pay he may have suffered by reason of the discrimination against him. (c) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and re- ports, and all other records necessary for a determination of the amount of back pay due and the right of reinstatement under the terms of this Order. (d) Post at its store at Miami, Florida, copies of the notice attached hereto and marked "Appendix." 3 Copies of said notice, to be fur- nished by the Regional Director for the Tenth Region, shall, after be- ing duly signed by Respondent's representative, be posted by Re- spondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps Re- spondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent discharged Fred W. Becker in violation of Section 8 (a) (3) of the Act, or engaged in acts of interference, re- straint, or coercion other than those specifically found by the Trial Examiner to be violative of the Act. MEMBERS PETERSON and BEESON took no part in the consideration of the above Decision and Order. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." SEARS, ROEBUCK & CO. 635 Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Retail Clerks Interna- tional Association, L. U. No. 1625, AFL, or in any other labor or- ganization, by discharging any of our employees, or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with loss of employment or employee benefits because of their union membership or activi- ties. WE WILL NOT interrogate our employees concerning their mem- bership in, or their activities on behalf of, Retail Clerks Interna- tional Association, L. U. No. 1625, AFL, or any other labor or- ganization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1). WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organ- ization, to form labor organizations, to join or assist Retail Clerks International Association, L. U. No. 1625, AFL, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all of such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3). WE WILL offer Erwin L. Purdy immediate and full reinstate- ment to his former or a substantially equivalent position without prejudice to his seniority or other rights and priveleges and we will make him whole for any loss of pay suffered as a result of the discrimination against him. SEARS, ROEBUCK & Co., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge and amended charge filed by Retail Clerks International Associa- tion, L. U. No. 1625, AFL, herein referred to as the Union, against Sears, Roebuck & Co., herein referred to as the Respondent or the Company, General Counsel for the National Labor Relations Board 1 by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint against the Respondent alleging that it had engaged in and was engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, 65 Stat. 601, herein called the Act. Copies of the charges, complaint, and notice of hearing were served upon all the parties. With respect to unfair labor practices the complaint, as amended, alleges in substance that the Respondent discharged and failed to reinstate the following employees at its Miami, Florida, store: Erwin L. Purdy and Fred W. Becker. These employees, it is alleged, were discharged because of their membership in and activities on behalf of the Union and because they engaged in concerted activities protected under the Act. It is further alleged that the Respondent, by certain named supervisors, interrogated employees concerning their union membership, activities, and desires, threatened employees with reprisals for engaging in union activities, and threatened that the Miami store would be closed if the Union was successful in its organizing campaign. The Respondent in its answer admits certain jurisdictional allegations and the terminations of Purdy and Becker but denies the commission of any unfair labor practices. Pursuant to notice a hearing was held at Miami, Florida, before the undersigned Trial Examiner. All parties were represented at the hearing and were afforded full opportunity to be heard and to examine and cross-examine witnesses. At the con- clusion of the presentation of evidence, the General Counsel moved to conform the pleadings to the proof as to formal matters. This motion, without objection, was granted as to all pleadings. The parties then were given an opportunity to present oral argument. Argument was waived by the parties. An opportunity was also afforded for the filing of briefs and/or proposed findings of fact or conclusions of law or both. Briefs were received on behalf of the General Counsel and the Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is now and has been at all times material herein a New York corporation engaged in the nationwide mail-order and retail selling of general mer- chandise with stores located in Florida and many other States of the United States. The Company annually purchases and sells general merchandise at its various stores valued at more than $1,000,000,000. Only its store at Miami, Florida, herein called the Miami store, is involved in these proceedings. The Company concedes that at all times here relevant it has been engaged in commerce within the meaning of the Act and the undersigned so finds. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, L. U. No. 1625, affiliated with the Amer- ican Federation of Labor, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The background and sequence of events This case is primarily concerned with the operations of certain appliance depart- ments referred to by the witnesses as the big ticket departments, in the Miami store and the activities and working conditions of commission salesmen employed in those 1 The General Counsel and the attorney representing him at the hearing are referred to herein as i he General Counsel The National Labor Relations Board is referred to herein as the Board. SEARS, ROEBUCK & CO. 637 departments. These departments and their division managers at the times here relevant were: Nanac Manager Sewing Machines and Vacuum William Winters Cleaners Stoves Raymond E. Salt Washing Machines James R. Wilson Refrigerators Garvis F. Gravely Radio and Television Joseph R. Laird The division or department heads reported to and were responsible to Carl Q. Alley, merchandising manager. He in turn was under the supervision of Erle M. Leighton, store manager. The commission salesmen were paid a fixed rate of commission on sales made. They had a weekly drawing account and were, except in the sewing machine and vacuum cleaner department, also paid a mileage allowance to reimburse them for trips made to customers which necessitated the use of personal automobiles. Some union activity occurred among the commission salesmen in the summer of 1952. Erwin L. Purdy and Fred W. Becker, named in the complaint herein as wrongfully discharged, took active parts in this campaign . After several months of activity the union campaign ceased. A new campaign began in February 1953 and was apparently inspired by griev- ances over the mileage policy of the Company. The written mileage policy of the Company called for a full itemization of all stops made by a salesman in his request for reimbursement for mileage . Also the rules provided that salesmen were to be paid for actual mileage covered up to a top limit of 1 percent of their net sales in each official monthly work period. A practice had developed among the salesmen of making out their requests for reimbursement by listing their mileage at the begin- ning and end of a particular trip without further breakdown. Also their requests for reimbursement usually came to 1 percent of their sales. There is testimony that there was a feeling among the salesmen that their compensation was actually the commission percentage plus an additional 1 percent for mileage . In fact, there is testimony that some salesmen were told by some supervisors that that was their com- pensation arrangement . In any event , division managers instructed the salesmen in January 1953 , that requests for reimbursement were to be filled out in detail showing the mileage between each stop on a particular trip , that salesmen were to be paid only for actual mileage up to a top limit of 1 percent of net sales in a particular period, and that requests for mileage reimbursement were to be turned in on the day each trip was made or at the latest the very next day. (It had been a custom of salesmen to accumulate their mileage trip sheets and turn them in once each month .) There was extensive discussion among the employees concerning the new instructions on mileage. As a result, Leighton called a meeting around February 4, 5, or 6. The written policy was read and explained to the salesmen at this meeting. After the meeting certain salesmen remained dissatisfied with the mileage policy and with other working conditions and discussed the possibility of union organization. This talk did not get beyond the discussion stage until February 26. Purdy met with an organizer for the Union on that day, signed a union card, and was instructed to see whether he could interest a group of men who could form a nucleus group for union activity. Purdy and some others began to sound out salesmen to determine which ones were interested in attending an initial union meeting . Such a meeting was held on March 5. Prior to that time and on March 3 , Purdy was discharged. At the March 5 meeting, those who attended signed membership cards and received blank cards for use in signing up other salesmen . On March 13 Becker's employ- ment was terminated. A detailed history of the union campaign from that date is not relevant in this case. B. The discharge of Erwin L. Purdy Erwin L. Purdy was employed as a salesman from July 9, 1949, until his discharge of March 31, 1953. He worked in the stove department until August 1952, when he transferred to the radio and television department where he was employed at the time of his discharge. There is no issue as to Purdy's ability to make sales. The Respondent concedes that his sales record was very good . He won prizes for his ability during the course of his employment. Store Manager Leighton who testified that he made the decision to discharge Purdy, testified in detail as to his reasons for terminating Purdy's employment. At the beginning of his testimony on Purdy, Leighton asserted that Purdy was discharged because he was always making derogatory remarks about the store management, al- most from the beginning of his employment . Some of these remarks were reported 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Leighton by Supervisors Alley and Gravely. When Purdy requested a transfer to the radio department in August 1952, consent was given to this transfer, according to Leighton, "in an effort to break the thing up a little bit." However, there was no change in Purdy's attitude. Leighton also testified that at the mileage meeting at the beginning of February 1953, Purdy had criticized the mileage policy and also the handling of a sales contest some time previously when Leighton had publicly announced that Purdy had won a prize over other salesmen in his territory, but had had to tell Purdy later that he had misinterpreted the rules of the contest and Purdy was not the official winner. These remarks by Purdy were made after Leighton had asked whether there were any comments. He did ask Purdy to sit down, finally, so that the meeting could be closed. Continuing his testimony, Leighton stated that he called Purdy to his office 2 days after the meeting and told him he had to change his attitude towards management and his outlook on life. It was agreed that Purdy would speak with Leighton if he had any further criticism. This was a corrective interview, according to Leighton, even though the Company's official form for such interviews was not used. Purdy's actions at the February meeting figured in his decision insofar as it entered into the complete picture, Leighton testified. On the mileage compensation question, Leighton testified that he had had reports Purdy was turning in his allowance slips on a 1-percent of monthly sales basis without listing actual mileage. Later on, Leighton also saw 2 mileage reports dated January 30 and January 31 on which Purdy had written "Saved Sears $5.00 Del charge." Summarizing his testimony Leighton testified that he was motivated in making the discharge by the fact "that he [Purdy] didn't get in line on the mileage, and has continued criticisms of management after my talking to him early in February." As to the criticisms of management policy, Leighton specified Purdy's criticism of the mechanics of cashing a $1 prize money voucher he had received on February 21, 1953, and his alleged statement to his supervisor, Joseph Laird, that he would con- tinue to handle mileage on the 1-percent basis, as Laird reported to Leighton. The latter testified he believed he received this report in the last week of February. Leighton testified that matters had been "building up" from adverse reports on Purdy, his transfer, the mileage meeting, the subsequent conversation between Leighton and Purdy, the prize money incident, and the handling of mileage. When he received the two reports on which Purdy had written that he had saved the Com- pany delivery charges, it was the straw that broke the camel's back, according to Leighton. Leighton was not certain when he received those reports but fixed the time in the last week in February. He maintained that at the time of the discharge he knew nothing about the Union "except as hearsay rumors that we had from time to time." He denied knowing anything of union activities by Purdy prior to his dis- charge and asserted that in the summer of 1952 he spoke with his regional office about Purdy and rejected a suggestion that he be discharged. Purdy's testimony did not differ substantially from Leighton's as to what occurred at the February meeting on mileage policy-also referred to as the meeting on the roof. He explained why he was disturbed over the way he was awarded a trip as a prize for being top salesman and then was told that actually he had not won. He also detailed comments he made at the meeting on the mileage policy and the method of comput- ing holiday pay. The validity of company policies and management practices is not in issue here and it is unnecessary to treat the points of difference in detail. Purdy was openly critical of company policy and practice, but these comments were invited by Leighton who was in charge of the meeting. Purdy further testified, in agreement with Leighton, that the latter summoned him to his office about 2 days after the meeting on the roof and after discussing what had occurred at the meeting told him to "get straightened out" and to get on Leighton's team. They shook hands when Purdy agreed to go along. As to the $1 prize money voucher, Purdy outlined the detailed steps necessary to collect the award. He did not expressly contradict Leighton's testimony that he had been highly critical of that procedure. Purdy also admitted writing on two reports that he had saved the Company de- livery charges. He denied that he failed to follow instructions for filling out mileage vouchers. He testified that he filed them daily and received no reprimands from his division manager, Laird, who had the responsibility of checking them. He also testi- fied that while he did not like the policy and said so, he did not recall telling Laird he would not follow it. Leighton testified that after his discussion with Purdy a day or two after the meet- ing on the roof, he had no conversations with Purdy until March 3 when he dis- charged him. Purdy testified that on February 27, the day after his initial contact with the Union, Leighton called him to his office and, as Purdy put it, "he told me SEARS, ROEBUCK & CO. 639 that although I was well liked in the store, and that my sales record was good, that I didn't seem to be playing on his team, and that I had better stop talking to the fellows on the outside, and that 1 should get on his team." Purdy also testified that Leighton did not further explain his remarks. Purdy, as previously mentioned, made the initial contact with the Union on the evening of 'Ihursday, February 26. He then proceeded to sound out sentiment among the salesmen to see whether a nucleus organizing group could be formed and a union meeting arranged. This canvassing of sentiment continued on Friday and Saturday, February 27 and 28, and during the following week. A union meeting was held on March 5. According to Purdy, he did most of the talking among the men in the beginning stages and then others joined. On Tuesday morning, March 3, Leighton summoned Purdy to his office and told him that his services would no longer be required. Purdy stated that he would like to continue in the Company's employ, even in some other store, but Leighton replied that there was no room for him with the Company. Joseph Laird was division manager of the radio and television department while Purdy worked there from August 1952 until March 1953. He testified that Purdy complained about having to make home demonstrations of television sets (a matter within the discretion of each salesman) and also when the credit department refused to approve sales he had made. (This was a source of irritation among all the sales- men.) Laird asserted that continued complaints from Purdy were bad for morale and on some occasions, salesmen told him they did not like to work with Purdy. Early in January, Laird testified, he asked that Purdy be transferred. In January 1953, salsmen received instructions to change the method of filling out and turning in mileage allowance sheets. Although the new policy required daily checking of these sheets, Laird, according to his testimony, did not make any check from the latter part of January until the second week in February. At that time, he reviewed 8 or 9 sheets with Purdy. These included the two sheets on which Purdy had written he had saved the Company delivery charges. Laird told Purdy he did not think it was necessary to write such an entry on the sheets. He also found another sheet on which a speedometer reading had been omitted. At that point, according to Laird, Purdy declared he would handle the mileage slips as he had done prior to the receipt of the new instructions. Despite this stand by Purdy, he continued to turn in mileage sheets almost daily and they were in proper form except for 1 or 2 which did not have a speedometer reading. A day or two after his talk with Purdy, which Laird fixed at February 12 or 13, Laird, according to his own testimony, reported to Merchandise Manager Alley that Purdy was not following instructions in filling out mileage sheets and also that he, Laird, did not think it was necessary for Purdy to note on two of the sheets that he had saved Sears delivery charges. He also had a conference with Leighton at about the same time at which he told him, "The same thing that I related to Mr. Alley." He further testified, in response to a leading question, that in addition to reporting Purdy's refusal to follow the mileage policy, he asked that he be transferred. Merchandise Manager Alley testified that while Purdy had been a good salesman he had received numerous reports that he was critical of company management, procedures, and supervisors. Laird, according to Alley, asked that Purdy be trans- ferred because of his bitter attitude. In the latter part of February a dispute arose as to whether Purdy or another salesman should get credit for a particular sale. Alley ruled against Purdy. According to Alley, Purdy became indignant over the way the prospect card file system was operated and under which he lost credit for the sale. Alley also stated that he passed along complaints about Purdy to Leighton. Hugh Barnes worked for the Company as division manager in the stove depart- ment for the 2 years prior to his leaving the Company's employ in January 1953. As such, he was the supervisor of Purdy (until his transfer to the radio department on August 21, 1952) and Fred W. Becker, the other dischargee in this case. He testified that there always was competition among the salesmen to make sales with attendant bickering, but that the most feeling existed between Purdy and Becker. He did tell Alley he would like to separate these two men. After Purdy was trans- ferred, things quieted down. What trouble there had been, according to Barnes, had been between the two, rather than complaints about store policy. Both were very good salesmen and it is customary to have some heartaches with that type of sales- man, according to Barnes. Barnes left the Company's employ before the 1953 union campaign commenced, but he was employed during the period of the 1952 campaign. He testified that he learned of this campaign from Becker and immediately reported it to Leighton and, in another conversation when he and Leighton were discussing which employees might be in the Union, Barnes protested, "It seems that all of this has been pointed right direct at me because Mr. Becker and Mr. Purdy are in my department." 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Purdy in his final appearance on the stand testified that he made many home demonstrations of television sets, but that he and the other salesmen did not like certain aspects of the work. As to mileage policy, Purdy denied making any statement after the meeting on the roof that he would not adhere to the rules on mileage policy. He maintained that he did follow instructions, although he did continue to voice his dislike of the mileage policy as did most of the other salesmen. Company procedures provide for corrective or disciplinary interviews in cases where employees receive official reprimands. The official form for such an inter- view contains space in which to note the basis for the reprimand and for the employee's signature. No such official form was ever used for Purdy, although Leighton testi- fied that his discussion with Purdy in the early part of February was a corrective interview. In addition to corrective interviews, company procedures provide for employee interviews twice a year for the purpose, according to Leighton, to find out what the employee is thinking. Purdy's retail employee review card noted such inter- views on March 21 and August 20, 1952, both conducted by Leighton. The record of the second interview contained the notation that Purdy was pleased with his impending transfer to the radio and television department, and, further "Talked about attitude and chips on shoulder." Conclusions It is not disputed that Leighton was highly displeased with Purdy's conduct dur- ing the mileage policy meeting and told him so. However, this incident occurred in the first few days in February 1953. The General Counsel contends, in substance, that after this incident Purdy's conduct was no different from what it had been in pre- vious months, and that there were no significant changes in his conduct or the Respondent's attitude towards him until he began his union organizing activities. It was this union activity that motivated Purdy's discharge, it is argued. Leighton several times in his testimony attempted to summarize his reasons for discharging Purdy. While his list of reasons was not always the same, a composite list of all the reasons given is approximately as follows: 1. Continued derogatory remarks about store management, as reported by Super- visors Alley and Gravely. 2. Purdy's behavior at the mileage allowance meeting and Leighton's conference with him on it. 3. Reports that Purdy was not obeying the mileage allowance instructions in reports he turned in. 4. The two mileage reports, dated January 30 and 31 on which Purdy had written he had saved Sears $5 in delivery charges. 5. Purdy's criticism of operating procedure in connection with cashing a prize money check. As to the first category, continued derogatory remarks, it is clear that Purdy was opposed to the mileage policy and said so. He was not alone in this; a good many witnesses in the proceeding testified they did the same thing. Laird, in his testimony, stressed that Purdy complained about making home demonstrations of television sets. Alley mentioned one occasion when Purdy became annoyed with the operation of the prospect card file system. There was one further specified item testimony by company witnesses as to derogatory remarks; namely, Purdy's conduct in connection with the cashing of a prize money voucher on February 21. There is some confusion in the testimony as to Purdy's alleged failure to obey mileage allowance instructions. Leighton testified he received reports that Purdy was turning in reports on a 1-percent of sales basis without listing actual mileage. Leighton was not certain when he received these reports, but at one point in his testimony he fixed the time as in the last week in February. Laird's version differed from Leighton's. He testified that Purdy at or about February 12 or 13 told him he would not follow mileage allowance regulations and that he reported this to Leighton and Alley within a day or two. Actually, even this version is open to a good deal of question. Laird admitted that Purdy submitted mileage sheets almost every day in February and they were in proper form. This fact supports Purdy's testimony that he did not refuse to follow instructions and did observe them to the best of his ability. Moreover, even if Laird's testimony that he told Leighton that Purdy refused to follow instructions is accepted, it is clear from it that the com- plaint was made in mid-February and not at the end of the month as Leighton testified. Purdy's writing on two mileage reports that he had saved the Company delivery charges, while a gratuitous statement, was not in and of itself a violation of the mileage allowance regulations. These slips, were dated January 30 and 31 and, according to the existing rule, should have been turned in to Laird. the department manager, SEARS, ROEBUCK & CO. 641 the same day or the day after their date. Laird did not deny that this was done, but testified that he delayed reviewing these and other slips until mid-February. Purdy testified that his recollection was that these slips were reviewed early in February. In any event, Laird's testimony that he reviewed these particular slips and told Leighton about them in mid-February differs from Leighton's recollection. Leighton testi- fied he learned of these entries in the last week in February. However, he was not too certain as to when he did learn of them, who told him about them, and the surrounding circumstances. The undersigned believes that either Purdy's or Laird's testimony as to the sequence of events is more credible and, even if Laird's version is accepted, it fixes the time of Laird's reports to Leighton about Purdy about 3 weeks before the latter's discharge. It is clear from the evidence that Purdy during his almost 4 years of employment was a highly productive salesman. It also is established that Purdy did not like some working conditions and expressed his dissatisfaction. At the beginning of the month of February the so-called meeting on the roof took place at which Purdy gave vent to his feelings to Leighton's displeasure. In the third week of the month the prize money incident took place. Beyond this there is no concrete evidence of any significant incident in the month. The undersigned finds that the evidence es- tablishes that Purdy obeyed mileage allowance instructions and this supports his testimony that he did not state that he would not follow those instructions. Even if Laird did make such a report, by his own testimony, it was a substantial period before Purdy's discharge. The weight of the evidence establishes that while there was dissatisfaction with aspects of Purdy's conduct, this was counterbalanced by Purdy's other qualities, including his sales ability. It was only when Purdy actively engaged in union activities that there was a hardening of attitude towards him. This sug- gests that it was Purdy's union activities that were the last straw not the two vouch- ers, dated a month before his discharge. The weight of the credible evidence es- tablishes that these entries were brought to Leighton's attention, if at all, several weeks before the discharge and that he did nothing about them at that time. However, the Respondent contends that there has been a failure to establish knowledge on the Respondent's part of Purdy's union activities and, therefore, since it had no such knowledge, the Respondent could not have discriminated against him because of those activities It asserts that there is no proof in the record that Purdy was questioned about his union activities prior to his discharge or that there was any discussion of the Union with him. Leighton denied any such knowledge and also denied having any knowledge of any employee's union activities in 1952. His testimony is directly opposed to that of Hugh Barnes, former manager of the stove department, who testified that he discussed the 1952 union activities with Leighton in detail, including the activities of Purdy. Barnes was no longed in the employ of the Respondent when he testified in this proceeding. His testimony was objective and marked by complete candor. It was not one-sided and contained frank appraisals of Purdy and Becker, in addition to the above testimony. The undersigned credits the testimony of Barnes and finds that Leighton knew of Purdy's union activities in 1952. It is conceded that the 1952 campaign definitely came to a halt long before the 1953 campaign began. It also is undisputed that Purdy was not penalized in any way for his activities and Leighton testified that he rejected a suggestion from his regional office in the summer of 1952 that he discharge Purdy because of his atti- tude. The course of the 1952 union campaign is not relevant, but the undersigned does find that Leighton know of Purdy's activities in the 1952 campaign. Purdy contacted an official of the Union on the evening of Thursday, February 26. The next day he started to see whether there was sufficient sentiment for organiza- tion so that a nucleus group could be formed and a meeting held. Purdy was the leader in this phase. Naturally, he and those who joined with him tried to keep their activities secret, but it was not easy to do so in view of the store organiza- tion. The union campaign started among the big ticket or large appliance sales- men. While a large staff was employed at the store, these salesmen worked in small groups. Purdy's department had seven salesmen; other departments had even fewer salesmen. Each department had its own supervisor. Furthermore, there were no physical barriers between departments and some supervisors could observe what went on in adjoining departments and talk to salesmen there. Under such circum- stances, it would only be a question of time until organizational activity would come to the attention of the Respondent. According to Purdy, on Friday afternoon, February 27, Leighton sent for him and told him that, as Purdy put it, "I had better stop talking to the fellows on the out- side, and that I should get on his team." Leighton did not advert to this testimony during his testimony, although he testified several times after this testimony was given, and prior to Purdy's appearance, he had testified that he had had no conver- 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sations with Purdy after the meeting on the roof . The undersigned credits Purdy's testimony. While Leighton did not further explain his remarks , they clearly referred to the only outside activity Purdy was then carrying on, namely, union activity. While they did not contain a threat of reprisal for continued union activities , they showed that Leighton was aware of Purdy's activities. Purdy did not heed Leighton's admonition and continued his activities . Over the weekend, arrangements were made for a meeting to be held on Thursday, March 5, and word of this was circulated among the men. On Tuesday morning, March 3, Purdy was discharged. The undersigned concludes from the testimony as summarized and his observa- tion of the witnesses that the preponderance of the evidence establishes that Purdy's leadership in union activities precipitated his discharge , in violation of the Act. C. The termination of Fred W. Becker Leighton testified that he decided to terminate the services of Fred W. Becker on substantially the same grounds as Purdy. Reports came to him , Leighton con- tinued, that on numerous occasions Becker criticized the store management and was not happy there. However, unlike Purdy, Becker when interviewed by Leighton, would always state that he liked working conditions at the Miami store, but after an interview he would almost immediately continue his criticisms. Such an incident occurred in January 1953 when, shortly after Leighton had had an interview with Becker, reports were made by Merchandise Manager Alley and Supervisor Gravely that Becker was continuing his criticisms . Leighton was not too specific as to the nature of these criticisms, although he did mention that Becker complained of the overstaffing of departments (a common complaint of the commission salesmen es- pecially when business was poor). Becker had had this critical attitude since he joined the store staff in September 1951, as a transferee from the Company's East St. Louis store. Leighton further testified that he had from 5 to 8 interviews with Becker during his tenure at the store. He was not sure what occasioned the January 1953 inter- view, or what was said, but asserted that there was a broad discussion in which he told Becker to change his attitude and "get on the winning team." Leighton asserted that he decided to terminate Becker's services because of his attitude and his criticism of management and linked the cases of Purdy and Becker in this re- spect. His testimony on this phase is: Well, then , after the meeting about the mileage policy on the roof, and Mr. Purdy's attitude on that, of course we linked Mr. Becker to a certain degree all along the line with that. At the time we discussed the release of Mr. Purdy, we also discussed the release of Mr. Becker, both for the good of the company Q. Not for any union reasons? A. No; not for any union reasons. The criticisms of Purdy and Becker were having a demoralizing effect, Leighton maintained. There is almost complete disagreement between witnesses for the General Counsel and the Company as to what developments led to the termination of Becker's em- ployment. According to Leighton, Becker never was discharged; he refused to accept a transfer to another store. The sequence of events, Leighton testified, was as fol- lows: Becker had been with the Company since March 1947. Under company rules, this length of tenure made it necessary to obtain specific approval from the regional office of the Company in Atlanta before he could be discharged. Leighton, on March 2, 1953, wrote a letter to the Atlanta office in which he stated: Along about this time of year we find it necessary to reduce our force in certain big ticket divisions so that the remainder of the people will not run a deficit figure. Going over our organization this year, we decided that we would cut off Fred Becker, Division 22. This employee has been with the company since 3-1-47, a transfer here from East St. Louis, Missouri, and has been on the Miami pay- roll since 9-12-51. In making this release, I feel that this is the logical man, as Mr. Becker's attitude is not always in line with the best interests of Sears I would appreciate your approval as soon as possible. Leighton received an oral suggestion from Atlanta that Becker be offered a transfer. Leighton then offered Becker a transfer to the Charlotte, North Carolina, branch store. Becker asked for time to think it over. He later said that he would prefer to stay in Florida and Leighton told him he would "check on that." Becker also SEARS, ROEBUCK & CO. 643 telephoned on Saturday, March 14, and asked for more time. Leighton gave him until the following Monday morning, March 16, to arrive at a final decision. On the morning of March 16 Becker appeared at Leighton's office with Edward J. Murphy, business agent of the Union. Leighton's initial testimony of what occurred then is as follows: At 9:30 Monday morning, right on the dot, he and Mr. Murphy came to the office. From that point on, I don't know whether Mr. Becker said he would or would not accept a transfer, but I was notified by Mr. Murphy that he repre- sented, I believe, the union in the store, and I assumed that Mr. Becker did not want to make the transfer for that reason. His papers show that he was termi- nated as of the previous Saturday night. Leighton then sent a letter to Becker dated March 16 in which he enclosed a check for all sums due him and a profit-sharing withdrawal form. He concluded the letter with this sentence: I am very sorry that this resignation is necessary, and that you did not see fit to accept the transfer to Charlotte. Later in the hearing, Leighton denied Becker's testimony that Leighton told him he was being discharged for union activities. He denied knowing anything about Becker's union activity or of anyone's activity in 1952. In later testimony, Leighton added more details to his testimony on his final con- versations with Becker. While he could not fix the date on which each conversa- tion took place, he testified he had 2 face-to-face discussions with Becker-1 in the week ending March 13 and the other on March 16, plus 3 or 4 telephone conversa- tions. On the first personal interview he told Becker the Company would be better off with him in some other capacity and offered him a transfer to the Company's Charlotte, North Carolina, store. He asserted that there could be no dispute over this because he discussed in detail the sales records of that store, its manager, and the question of whether Becker's income would be affected by the transfer. He main- tained that the transfer had been discussed by him with his southeast territorial office in Atlanta which had discussed it with the Charlotte store manager. Becker, according to Leighton, asked for time to think it over. The next day Becker asked for additional time and asked whether the transfer could not be ar- ranged in Florida. Leighton promised to see what could be done. Continuing his testimony, Leighton stated that he communicated with the Atlanta office but was told that a transfer could not be made in Florida because of business conditions. Leigh- ton relayed this information to Becker on Friday, March 13, and told him he would have to take the transfer to Charlotte. On Saturday, March 14, Becker phoned Leighton and asked for more time. Leighton gave him until the next Monday, March 16, to make a final decision. During the meeting with Becker and Murphy on March 16, Leighton testified, he asked Becker whether he would accept the transfer and Becker replied that he would not. Leighton conceded that severance pay, such as Becker received, is gen- erally paid to discharged employees, and company rules so provide, but he main- tained the matter was within the discretion of the store manager. Betty Ann Harding, Leighton's secretary, corroborated this version. She testified that her desk is outside Leighton's office, she could turn around and see into the office, and that she heard Leighton say to Becker. "Then I take it you do not accept the transfer?" She did not hear anything else. Becker's version of what occurred when his employment was terminated is as follows: On Friday afternoon, March 13, Becker, who had some union cards in his pocket, jokingly asked Joseph Laird, supervisor of the television department, whether he wanted to join the Union. At the same time Becker reached towards his pocket. When Laird took offense and asked Becker what he meant by that remark, Becker walked away. A few minutes later he was called to Leighton's office where the following conversation took place: Q. Tell me the conversation in Mr. Leighton's office as well as you can re- member it. A. He told me that he had been informed that I had joined the union, and that I had been participating in signing up other employees; and I told him yes to that. Then he said, "Well, under those circumstances, there is only one thing for me to do, and that is to discharge you." He said, "Your services will no longer be required at this store." Then I told him that I didn't think that was quite fair, because the reason I joined the union was because I thought it was my civil right, and inasmuch as I had six years with the company, I thought 334811-55-vol. 109-4 2 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the least they could do would be to transfer me perhaps to some other department . He didn't go along with the transfer to the other department, and I suggested a transfer perhaps to some other store; and in going along in that particular discussion he did agree , that he would consider a transfer to some other store, and in leaving I was told to contact him the following morning by phone. Trial Examiner FELLER : Was this all on the 13th? The WITNESS: This was all at 3:45 on Friday, the 13th; yes, sir. Q. (By Mr HAMILTON) What were you told as you left his office? A. I was told to leave the store immediately, and not to talk to anybody. Continuing his testimony , Becker testified he telephoned Leighton the next morn- ing, but Leighton said he was unable to speak with him then and Becker should get in touch with him Monday morning, March 16. There is agreement that on March 16 Becker went to Leighton' s office with Edward J. Murphy, a representative of the Union. Murphy told Leighton the Union claimed to represent a majority of the sales personnel in the store , and presented a letter to that effect. It is also agreed that Leighton told Murphy he could take no concrete action at that time , but would telephone him. As to Becker, there is a complete contradiction in testimony . Leighton's testi- mony, supported by Miss Harding, is that Becker refused a transfer at that meeting. Becker denied this and maintained he was never offered a transfer to Charlotte or any other store. He testified that at the conclusion of the conference he asked Leigh- ton what he wanted to do and that the latter replied that he could not go into that at that time , but would telephone him later. Becker replied that he did not have a telephone , but Murphy interjected that a message could be delivered by telephoning the office of the Union. All parties agreed that there were no further discussions of a transfer or termina- tion of Becker after Leighton sent the letter of March 16 in which he said, "I am very sorry that this resignation is necessary and that you did not see fit to accept the transfer to Charlotte." He did not reply to this letter, Becker asserted , because he received his severance and considered he was discharged . He maintained severance pay was only given in case of a discharge , not resignation. Becker's testimony was supported by Murphy. Murphy also contradicted Leigh- ton's testimony that the office door was open during the conference. Becker's case has similarities to Purdy's in addition to those already mentioned. Both had worked for the Company for a substantial period. Becker had been em- ployed from 1939 to 1941 and from 1947 to 1953 and was an experienced salesman. He was employed in the stove department all during his employment in Miami from September 1951 to March 13, 1953. Both were top salesmen in the amount of sales made. Both were members of the Union. Action was taken against both for an asserted overcritical attitude . The chief difference between them , according to Leighton, was that while Purdy was openly critical of management policies, Becker was not. However, Leighton testified he had reports from supervisors such as Alley and Gravely that Becker was critical and, the final reports were that he was as criti- cal as Purdy. Leighton had been getting these reports for a year or two. Leighton denied that he had any knowledge of Becker's union activities or that it played any part in his decision to take action against him. When he was asked for details concerning criticisms voiced by Becker, Leighton testified that he had reports from Merchandise Manaeer Alley and Division Manager Gravely (Gravely was not direct supervisor over Becker ) but he could not recall specifically what the reports were. He later stated that he thought they reported in 1952 he complained of overstaffing in his department. He also testified that Hugh Barnes, who was Becker's supervisor until February 1, 1953, reported he had a criti- cal attitude and asked that he be transferred. Leighton further testified that he discussed the release of Purdy and Becker with the merchandise man, the division manager, the operating superintendent , and the personnel department. Merchandise Manaeer Alley testified that he had had no trouble with Becker, but Becker was critical of his department manager, Ray Salt (who had taken the place of Hueh Barnes February 1, 1953), and all the other salesmen complained that he was difficult to get along with and took sales which were properly theirs. This, Alley asserted, was bad for morale and could result in lower sales records by other salesmen. These complaints had been made over a long period of time, according to Alley. and Hugh Barnes, his supervisor , also mentioned this to him in 1952. Alley believed Barnes raised the question of transferring Becker (Barnes denied this in his testimony ). No written records of these complaints were made. Alley believed he discussed these complaints with Becker but did not have any written records or SEARS, ROEBUCK & CO. 645 memoranda about such conversations. Salt told him that he would have a smoother running department if Becker were out of it. Alley acknowledged that he had reports of other salesmen taking away sales from fellow-salesmen. Raymond Salt was appointed division manager of the stove department on Feb- ruary 1, 1953. He, therefore, was Becker's supervisor over a 6-week period. This included the last 2 weeks in February when Salt was on vacation. Salt testified that there were almost daily disputes over sales between Becker and the other sales- men, and he, Salt, asked Alley on February 8 or 9 to transfer Becker. He renewed that request twice in March; once on the second or third and the other time about a week later. On the first two occasions, Alley told him he would attempt to straighten the matter out and the last time told him that Becker had requested a transfer to the refrigerator department. He admitted that some of the disputes were decided in Becker's favor and that other salesmen questioned some of Becker's sales just as he questioned some of theirs. The Company files do not have any record of any corrective interview of Becker. His retail employee review card has notations that he was interviewed on March 21, 1952. He was interviewed next on August 21, 1952, at which time it was noted that morale in the stove department was discussed and, "We both feel that every- thing will improve." A final interview was had on March 3, 1953, at which time Leighton noted on the card, "Would possibly like to change departments. Likes Miami. Has new home No comments." Leighton testified that although he had already decided to remove Becker he did not discuss that with him because the pur- pose of the interviews recorded on these cards is to ascertain what the employee is thinking. Becker testified that in his year and a half in the Miami store he had never received reprimands from either Hugh Barnes, his supervisor during most of the period, or Ray Salt, his supervisor during his last 6 weeks. He also denied receiving any correc- tive interview and there is no written record of any such interview. Becker testified that he took part in the union organizational campaign in 1952. In May of that year, he stated, Barnes told the 3 salesmen of the stove department, Becker, Purdy, and 1 other, "he would appreciate it very much if we would lay off talking about union, about union activity and unions, because we were putting him on the spot. He said that the front office was under the impression that it was his department that had started the ball rolling as far as the union activity was con- cerned." Becker received corroboration on this point from Barnes who testified that when he heard from Becker that there was union activity at the store he immediately reported it to Leighton. In another conversation, Barnes and Leighton discussed which employees were in the union and Barnes protested, "It seems that all of this has been pointed right direct at me because Mr. Becker and Mr. Purdy are in my department " He told Leighton that there was union activity in all the commission sales departments and that Becker had told him about the Union. Leighton had replied, "You probably are putting too much confidence in Mr. Becker." Leighton did not advert to this testimony of Barnes, but he did deny any knowledge of prior union activity of Becker. The testimony of Barnes is credited. Becker agreed that he was not satisfied with working conditions in the store, especially the mileage policy and overcrowding of departments with too many sales- men, and expressed his opinion. However, he asserted other salesmen in his depart- ment took the same position. He also agreed that some men did not like to work with him because of competition for sales. Becker testified that he had been active in the 1952 union campaign. There was talk among the men about the possibility of union organization in February 1953 and Becker testified that he spoke in favor of it. However, nothing concrete was done until Purdy contacted the Union on February 26. Purdy told him of this before the latter's discharge on March 3, Becker testified, and invited him to a meeting of the Union on March 5. Becker then proceeded to talk about the Union to employees. He attended the March 5 meeting and signed a card. In succeeding days he talked to about 15 or 20 men about joining the Union and passed out cards. Conclusions Witnesses for the Respondent and the General Counsel were in irreconcilable con- flict in their oral testimony. However, certain written evidence, the validity of which has not been attacked, can be used as a framework or standard against which the conflicting evidence can be measured. This evidence consists of the following items: 1. Letter, dated March 2, 1953, from Leighton to his Atlanta office asking approval of his decision to terminate Becker because "attitude is not always in line with the best interests of Sears." 9 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Routine interview of Becker by Leighton on March 3 after which Leighton had made the entry on Becker's review card , "would possibly like to change depart- ments. Likes Miami. Has new home. No comments." 3. Letter from Leighton to Becker, dated March 16, enclosing a check and other documents and concluding, "I am very sorry that this resignation is necessary and that you did not see fit to accept the transfer to Charlotte." The first two items record action which took place very close in point of time. To the undersigned , the mental picture of Leighton solemnly interviewing Becker for the purpose of finding out his likes, dislikes , and problems the day after he had dispatched a letter setting forth his desire to terminate Becker is a difficult one to keep in focus. However, the authenticity of the letter to Atlanta has not been challenged and, in fact , is relied on by the General Counsel . Leighton testified that the interview was of a routine nature and is held periodically with all employees The letter of March 2 casts doubt on testimony presented by the General Counsel as to the later conversation between Leighton and Becker . Becker's version indi- cates that Leighton acted on the spur of the moment and because Becker had joined the Union and was signing up employees . Yet Becker had not done any of these things before March 2. On his own testimony, he did not join the Union until March 5 and he did not begin soliciting potential members until after the meeting He did not know of arrangements for the meeting until the morning of March 3. He testified that after the meeting on the roof he and other salesmen had discussed among themselves the need of a union , but had not done anything concretely about it until Purdy took the first step on February 26. Becker testified that Purdy told him, prior to March 3, of his contact with the Union and asked him to "talk up" the Union , but there is no evidence that Becker took any substantial part in union activities prior to the meeting on March 5. The General Counsel argues that Leighton 's letter of March 2 indicates that the Respondent determined to rid itself of Becker as soon as union activity began. The undersigned has credited the testimony of Hugh Barnes and has found that Leighton knew of Becker's participation in the 1952 campaign . However, there is no evidence that Leighton took action against the 1952 union adherents without regard to their 1953 activities and the evidence of Becker 's union activities in 1953 up to March 2 is quite meager. As to the meeting on March 16 , the undersigned , from his observation of the wit- nesses and study of their testimony , credits the testimony of Becker and Murphy that the question of Becker's transfer was left in abeyance and not settled at the meeting. Murphy testified that Leighton was confused at the meeting. There was an obvious reason for this. Murphy without any prior arrangement and notice had appeared with Becker and had given notice of the Union 's demand for recognition. Leighton's giving of two versions of what took place at the meeting also evidences his uncertainty . Miss Harding's testimony that she heard one sentence of the con- versation ; namely, an inquiry by Leighton of Becker that he did not accept a trans- fer, does not outweigh the detailed testimony of Becker and Murphy. However, this finding does not in and of itself establish that Leighton in this and in his final letter to Becker was actuated by antiunion animus and a desire to get rid of Becker because of his union activities . This could have been Leighton's pur- pose, but it also could be true that Leighton was actuated by an honest mistake. If Becker had taken steps to deny the purported offer of a transfer, the situation might have been clarified. Becker testified that he took no action because he con- sidered the letter a termination of employment . But his failure to take any action under the circumstances leaves the entire question of his termination under a cloud of uncertainty under which a finding of discrimination cannot be found to have been established on a preponderance of the evidence. There are suspicious circumstances connected with Becker's termination. He did take an active part in the 1952 campaign and his union sympathy then was known to the Respondent . At the time of his termination, Becker had joined the Union and was trying to sign up members. Leighton , in his testimony, linked Becker's conduct with that of Purdy and it has been found that the latter was discriminatorily discharged. Finally, the evidence of Becker's alleged criticism of management is not very detailed. However, it is apparent that Becker and his new supervisor, Salt, did not get on well and that Salt complained about Becker 's conduct to his supervisors. This situation began before union activity started Regardless of who was at fault, this factor did not have a connection with Becker's later union activities even though it is clear that Becker did not receive as sympathetic and forbearing treatment from his new supervisor than from his prior chief, Hugh Barnes. Furthermore , the fac- tors which have been listed above and which tend to support the General Counsel's case are balanced by certain written evidence as outlined which , in turn, casts doubt SEARS, ROEBUCK & CO. 647 on oral evidence presented by the General Counsel. Under these circumstances the undersigned concludes that while the circumstances attendant on the termination of Becker are highly suspicious , it has not been established by a preponderance of the evidence that he was terminated because of his union membership and activities in violation of the Act. D. Acts of interference, restraint, and coercion The complaint alleges that the Respondent by certain named supervisors interro- gated its employees concerning their union membership, activities, and desires; threatened its employees with discharge and other economic loss if they joined or retained membership in or engaged in activities on behalf of the Union; and threatened to close the Miami store if the union campaign succeeded. The evidence as to each of the supervisors is as follows: 1. James R. Wilson James R. Wilson is manager of the washing machine department. He customarily holds weekly staff meetings for his salesmen. His remarks at one such meeting in mid-March 1953 are alleged to have been in violation of the Act. John T. McGrath, a salesman, testified that Wilson told the salesmen to forget all about union activities, it would not get them any place, they should go out and sell washing machines, and that if they did not forget about the "whole thing" there would be new faces there. John L. Peyton testified that Wilson told the men that he was being criticized because the department was 100 percent for the Union, that he did not like it and that "it" had to be stopped-that the men could not use the phone or congregate on the floor in groups but would have to keep separated and keep busy. Peyton further testified that Wilson declared that it was detrimental to morale to have the men disturbed and that if activity did not cease other steps would be taken. Peyton admitted on cross-examination that the men had been congregating around the phone and talking among themselves and that union business had been discussed. Wilson maintained that the purpose of the meeting in question was for him to describe an official trip he just completed to a factory where washing machines were produced for the Company and that he merely told the men, after a remark had been made, that he did not want to have the Union discussed in any of the meetings. He denied advising any of the employees to get out of the Union or stating that there would be some new faces around if they did not get out of the Union. Wilson's version was supported by William Kay, a salesman who had signed a union card. Kay testified that Wilson stated that it was immaterial what the men did about the Union but that the men were there to make sales. Kay further testified that he did not hear Wilson say that there would be new faces if the men did not get out of the Union. The undersigned from his evaluation of the testimony of the above witnesses con- cludes that Wilson did tell the men to stop talking about the Union or that disciplinary action would be taken. However, it is clear from the detailed testimony of Peyton, a witness called by the General Counsel, that the men were taking a good deal of time from their regular work to discuss union matters. The Respondent was entitled to insist that working time should be devoted to saleswork. In the context in which Wilson's remarks were made it has not been established that Wilson was attempting to go beyond this in his orders to the men. Accordingly, the undersigned concludes that it has not been established that Wilson's remarks during the weekly staff meeting referred to in the testimony were in violation of the Act. McGrath further testified that he had two private conversations with Wilson about the Union. The first, he asserted, was immediately after the aforementioned meet- ing. Wilson called him to his office and asked how he could stop "this union busi- ness." When McGrath indicated that he was in sympathy with the Union, Wilson told him that if he continued in his "actions" that he "more or less" would lose his job and should think of his family and his age before continuing. Approximately a week later, according to McGrath, Wilson also told him that it would be best if he went over to the front office and saw Mr. Leighton and got on the "right side of the fence." Wilson denied telling McGrath to go to Leighton's office for any union matters and also denied ever having a conversation with any salesman about his union membership and activities. He maintained that whenever he was asked to give advice about the Union he took a neutral position. While McGrath was not too sure of some of the details of his conversations with Wilson the undersigned was impressed by the essential honesty of his testimony. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, the undersigned finds that Wilson did interrogate McGrath concerning his union membership and activities and that his statement of possible consequences if McGrath persisted in his actions was a thinly veiled threat of reprisal if McGrath continued his union activities. Raymond H. Yeager testified that at the meeting Wilson had told the men that the Union would not do them any good because they were salesmen, they should forget it, and go back to selling washing machines or there would be some new faces around . Yeager also testified that Wilson asked him in a conversation what the complaints of the men were and what he could do about it since he had heard that his department had gone 100 percent for the Union . Yeager replied that he (Wilson ) knew what the troubles of the men were and that he thought there was not much that Wilson could do about it at that time . The undersigned finds that this inquiry by Wilson was not violative of the Act. Peyton testified that in a private conversation with Wilson , Wilson asked him whether he was a member of the Union and when Peyton refused to answer the question Wilson replied that that did not make any difference since the front office knew who had joined the Union. The undersigned credits Peyton's testimony and finds that this interrogation of Peyton was violative of the Act. 2. Carl Q. Alley J. 0. McDevitt, a salesman in Wilson's department, testified that several days after Wilson had the staff meeting described above Wilson suggested that he see Carl Alley, merchandise manager of the store . McDevitt went to Alley's office and according to the former Alley told him that he thought that unions were all right but not for Sears Roebuck. Continuing his testimony McDevitt stated that in another conversation Alley told him that it might be possible that the store would be closed if the union activity continued. McDevitt then replied that he would not attend a scheduled union meeting and Alley replied that that "was agreeable." McDevitt was unable to give any detailed testimony as to his conversations with Alley so that a clear picture could be obtained as to the setting in which the alleged statements were made . He was uncertain as to the date or dates when these conver- sations took place. Furthermore, he did not have a clear recollection as to certain alleged conversations with Wilson and in particular the staff meeting which has been previously alluded to. Alley testified that it was not unusual for a salesman to be sent to his office with papers and that he recalled McDevitt coming to his office with some papers and asking him whether he knew anything about the "Union talk going on " Alley asserted that he replied that he could not discuss unions in any way and specifically denied stating that the company might close its doors if the Union was successful The undersigned from his observation of the witnesses and a study of their testimony credits Alley's testimony and finds that it has not been established that the Respond- ent, by Alley, threatened to close the Miami store if the Union was successful. 3. Raymond E. Salt Leonard Sobel , a salesman and union member in the stove department , testified that sometime in March he and another salesman, Andrew J. Fee, were talking with their supervisor, Raymond E . Salt, about the Union. Salt stated , according to Sobel, that if he were running the store he would find ways of getting rid of every union man he wanted to by using various pretexts and gave an illustration of how that might be done. Fee corroborated Sobel . Salt denied making any such statements. The undersigned credits the testimony of Sobel and Fee. However, it is clear from the testimony that Salt's statement was made in the course of a casual conversation in which he was bragging about his supposed cunning. There is nothing in the cir- cumstances surrounding this conversation establishing a veiled threat of reprisal against Sobel or Fee or other union members because of their union activities. The undersigned finds that no violation of the Act has been established by this incident. Sobel further testified that on another occasion he was giving a corrective or dis- ciplinary interview for a violation of a sales rule . When he returned to his depart- ment Salt told him that if he were Sobel he would resign because "they" would find anything they could to ruin his record and he would be unable to get a position else- where. Sobel did not take this advice and remained in the employ of the Company. Sobel also testified that Salt declared that the Company would take this punitive action against him because of his union activities . Salt denied Sobel's testimony. The undersigned credits Sobel 's testimony and finds that Salt's remarks in this instance SEARS, ROEBUCK & CO. 649 was violative of the Act. Salt's remarks were flat statements that the Company would take punitive action against Sobel and were, in effect, efforts to induce Sobel to resign. Even though the record does not show that any action was taken against Sobel, Salt's remarks were an attempted interference with the exercise of rights guar- anteed under the Act and hence constituted violation of Section 8 (a) (1) thereof. Peter Yessman testified that he had had a conversation with Salt in which Salt told him that the Union would not succeed, that it would not do much good , and that it would fail . Salt admitted telling Yessman that he doubted very much whether employees of the Company would be interested in joining the Union . The under- signed finds that Salt's remarks on this occasion were not violative of the Act. 4. Glen Crawford Frank Cifaldi testified that he signed a membership card in February 1953, that he soon wished to withdraw from the Union, and asked his supervisor, Glen Craw- ford, manager of the auto accessories department, for advice. Cifaldi testified that Crawford told him in reply that if he wanted to get out of the Union, he should have his name cleared at the front office. Cifaldi denied that Crawford questioned him as to his union membership but asserted that he volunteered that information to Craw- ford. Cifaldi although produced by General Counsel proved a most reluctant wit- ness and repudiated statements contained in a prior affidavit. Crawford did not testify. The undersigned concludes that it has not been established that Crawford interro- gated Cifaldi concerning his union membership and activities as alleged in the com- plaint. Cifaldi did testify that Crawford urged him to go to the front office to clear his name with respect to his union activities. The complaint does not contain any allegations referring to this incident and in view of the fact that Crawford did not testify concerning it the undersigned makes no findings thereon. Myron H. Cole testified that he had a conversation with Crawford in which Craw- ford told him that he did not think that the Union would do any good . The under- signed concludes that no violation has been established in this conversation. 5. William Winters Andrew J. Fee is a salesman employed in the vacuum cleaner and sewing machine department. He testified that he joined the Union and helped organize for it. He testified that sometime in March Winters told the salesmen that he did not want to hear any more union conversation in the department and that thereafter he followed Fee around and kept him under close observation. Winters testified that he told Fee not to take up any private or personal business during working hours and that he wanted him to pay attention to his job. He also testified that Fee often wandered off from his post of duty. The undersigned finds that the evidence does not establish that Winters was trying to do anything more than have salesmen under his supervision pay full attention to their work. In this there was no violation of the Act. Fee further testified that in May or June 1953 he asked Winters whether it would be possible to arrange for a 3-week vacation for him in the fall rather than 1 week he was entitled to under company rules. Fee had been able to make a similar arrange- ment the preceding fall. Winters told him that he would see what he could do and eventually said to him, according to Fee, "Well , if you weren't in this union activity it might be possible for you to get you three weeks." Fee was unable to receive an extended vacation in 1953. Although he testified in this proceeding, Winters did not refer to this alleged conversation in his testimony . The undersigned credits Fee's testimony and finds that Winters in violation of the Act told Fee that he was being penalized for his union activity. 6. Garvis F. Gravely Garvis Gravely is manager of the refrigerator and home freezer department. Peter F. Yessman, one of the salesmen in the department, testified that in the first day or two of union organization Gravely spoke to him in the latter 's private office and asked him if he knew what was going on. Yessman replied that he did . Gravely then asked "Is there much down there on the 2nd floor in big ticket?" Yessman replied that it was all over the store including the upstairs floor. Gravely then asked, according to Yessman, "How do you feel about it?" and Yessman replied , "I reserve the right to answer that question when the time comes." He then walked out of 4650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the office. Gravely denied that he ever mentioned the Union to any man in his department or questioned anyone as to whether he had joined the Union. The undersigned from his observation of the witnesses credits Yessman's testi- mony and finds that there was interrogation of Yessman as to his union member- ship and activities in violation of the Act. Gravely's name is not set forth in the complaint as one of those supervisors charged with interrogating employees and violation of the Act However, since this incident was fully litigated at the hearing the undersigned concludes that a finding as to that incident is warranted and neces- sary herein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States, and such of them have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged Erwin L. Purdy. It will be recommended that the Respondent offer him immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his se- niority or other rights and privileges and make him whole for any loss of pay he may have suffered by payment of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge to the date of the Respondent's offer of reinstatement, less his net earnings during that period (Crossett Lumber Company, 8 NLRB 440, 497-8), said back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. The Respondent upon request shall make available to the Board payroll and other records to facilitate the determination of the amounts due. Having found that the Respondent in various respects has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act, it will be recommended that the Respondent cease and desist therefrom. The character and scope of the unfair labor practices engaged in indicate an intent to defeat self-organization of employees and goes to the heart of the Act. It will be recommended that the Respondent cease and desist from such acts and from in any other manner interfering with, coercing, or restraining its employees in the exer- cise by them of the right to engage in concerted activities for the purpose of mutual aid or protection guaranteed them in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The Respondent, Sears, Roebuck & Co., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Retail Clerks International Association, L. U. No. 1625, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discharging Erwin L Purdy the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By such discrimination, by interrogating its employees concerning their union membership activities and desires, and by informing employees that they had been or would be penalized or suffer economic loss if they joined or retained member-, ship in or engaged in activities on behalf of the Union the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. 6. It has not been established that the Respondent discriminatorily terminated the employment of Fred W. Becker in violation of Section 8 (a) (3) of the Act or engaged in acts of interference, restraint, or coercion other than those specifically found hereinabove to be violative of the Act. [Recommendations omitted from publication.1