Sears Roebuck and Co.

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD research group on experiments with new products. He uses. the babcock tester, microscope, and bacterial equipment. He is licensed by the State. On the basis of the foregoing, we find that the labora- tory man is a technical employee .4 Accordingly, in conformity with Board practice, he may not be added to the production and main- tenance unit as one of the parties to this proceeding opposes his inclusion.' We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Evart, Michigan, plant including truckdrivers and boilerroom employees, but excluding the laboratory employee, office clerical employees, execu- tive employees, administrative employees, professional employees, guards, working supervisors, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Buckeye Oil Company, 101 NLRB 30, 32. See also United States Gypsum Company, 109 NLRB 1402, 1405, where testers were found to be technical employees. 6 See Pacific Moulded Products, 111 NLRB 882, at 884. Sears Roebuck and Company and Sears Roebuck Employees' Council, Local #1635, Retail Clerks International Association, AFL-CIO,' Petitioner. Case No. 1-RC-3814. January 31, 1956 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Board Decision, Order, and Direction of Election,' an election by secret ballot was conducted on May 26, 1955, under the direction and supervision of the Regional Director for the First Region, among the employees in the unit found appropriate for pur- poses of collective bargaining. Thereafter, .a tally of ballots was fur- nished the parties showing that 103 ballots were cast for Petitioner, 35 for the Intervenor, and 228 for no union. On May 31, 1955, the Petitioner filed timely objections to conduct affecting the .results of the election. In accordance with the Board's Rules and Regulations, the Re- gional Director conducted an investigation of the matters raised by the Petitioner's objections and, on June 16,1955, issued and duly served. 1 As the AFL and CIO have merged since the holding of the election herein, we are amending the Petitioner's designation accordingly. 9 Sears Roebuck & Company, 112 NLRB 559, in which the instant case was consolidated for purposes of decision with Cases Nos. 1-RC-3813 and 1-RC-3827. 115 NLRB No. 47. SEARS ROEBUCK AND COMPANY 267 upon the parties his report on objections, in which he found that the objections failed to raise substantial and material issues with respect to conduct affecting the results of the election, and recommended that the Board overrule the objections and that a certification of results ,of election be issued. As no exceptions were filed to this report within the time provided therefor, the Board, on July 6, 1955, dismissed the objections and issued a Supplemental Decision and Certification of Results of Election .3 On July 18, 1955, Petitioner filed a petition with the Board in which it requested that the Supplemental Decision and Certification of Results of Election be set aside and that the Petitioner be permitted to file exceptions to the Regional Director's report on objections. After duly considering this matter, the Board, on July 22, 1955, issued an Order Revoking Supplemental Decision and Certification of Results of Election, in which it granted Petitioner until August 5, 1955, to file exceptions to the report on objections.' The Petitioner filed its ex- ceptions to the report on objections on August 3, 1955. 1. Petitioner's first objection to the election reads: Circulation of literature sponsored or initiated by the Com- pany under the guise of employee sponsorship, urging employees to vote no union. In a brief filed with the Regional Director in support of this objec- tion, the Petitioner alleged that a petition was circulated for 4 days on the selling floor of the Employer's store on company time, in the face of a strict no-solicitation rule, and that under the circumstances the circulation of such petition could not fail to have come to the attention of management and was "no doubt" instigated by the Em- ployer. The Regional Director's investigation disclosed the following : During May 12, 13, and 14, 1955, a petition was circulated in the Employer's store for signature by the employees, declaring the op- position of the signers to representation by any union. The sponsors of the petition were not identified therein. While the foregoing peti- tion was circulating, the Petitioner wired the Employer referring to the circulation of an antiunion petition by employees on company time and premises, and requesting permission to circulate a petition favorable to the Petitioner under similar conditions. The Employer 3 On July 7, 1955 , the Board issued an Order Correcting Supplemental Decision and Certification of Results of Election. A By telegram dated July 24, 1955, the Employer requested that the Board reconsider its July 22, 1955, Order Revoking Supplemental Decision and Certification of Results of Election , and by telegram dated August 5, 1955, the Employer requested that it be granted until August 26, 1955, to file a memorandum in opposition to Petitioner 's exceptions to the Regional Director 's report on objections. On August 10, 1955, the Board denied the former request and granted the latter request. The Employer thereafter timely filed a memorandum in opposition. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answered by telegram, assuring the Petitioner that it had no knowledge of the employee petition but that it would be stopped immedi- ately if circulated on company time. On May 14, the Employer posted a notice forbidding the circulation of petitions of any kind on company time, whereupon the circulation of the foregoing petition ceased. Those who circulated the petition denied that they used company time or that the Employer had any connection therewith. No evidence to the contrary was submitted by the Petitioner. The Regional Direc- tor found no merit in this objection and recommended that it be overruled. In its exceptions, the Petitioner quotes a letter of May 17, 1955, from Store Manager Romizer to the employees, in which he indicated his sympathy with the object of the foregoing petition and thanked those employees who had signed it for "their expression of confidence" in the Employer. The letter, as quoted, states further : After learning who some of the sponsors were I talked with them.... I told these sponsors that as far as I knew they were within their rights so long as the petition was not circulated by them while they were on Company time. The Petitioner argues that this letter does not deny prior knowledge of the circulation of the petition and, in effect, authorizes such cir- culation so long as it does not occur on company time, in contrast with the Employer's rigid enforcement of a no-solicitation rule against the Petitioner. Petitioner does not, however, renew its earlier con- tention that this petition was instigated by the Employer and was circulated on company time. While the Employer by the foregoing letter indicated approval of the circulation of the petition on the employees' own time, there is no evidence, or contention, that the petition was in fact circulated at all after May 14, when the Employer proscribed further circulation on company time. Nor can we infer from this letter alone that the Employer had any knowledge of the petition before the Petitioner's telegraphic protest. Moreover, even if we were to find that the peti- tion was circulated on company premises (but not on company time) with the knowledge of the Employer, there is no evidence that Peti- tioner sought, or was denied, an opportunity to circulate its own literature during nonworking hours.' Accordingly, there is no basis in the foregoing for finding any disparate treatment of Petitioner with regard to solicitation privileges 6 5 The Petitioner's telegram , referred to above, requested permission to circulate a peti- tion on company time and premises e The Petitioner contends that the Employer 's attitude to the circulation of the em- ployee petition contrasts with its "proven surveillance" of the Petitioner 's activities It is not clear, however, what surveillance is here referred to. SEARS ROEBUCK AND COMPANY 269 In support of its objections the Petitioner also furnished the Re- gional Director with a copy of a letter dated May 23, 1955, signed "Sears Roebuck Employees' Council, Local 11," which is presumably a designation of the Intervenor. This letter, which is addressed to the employees in the unit, contained comments adverse to the Petitioner and favorable to management, concluding with an admonition to the employees to vote for no union. The Regional Director's investigation disclosed no evidence supporting the Petitioner's contention that this letter was instigated by the Employer and he found that it constituted permissible election propaganda. In its exceptions the Petitioner contends that, by urging the em- ployees to vote for no union, the Intervenor demonstrated that it was an "instrumentality" of the Employer and was not a bona fide labor organization, entitled to a 'place on the ballot. The Petitioner con- tends further that the "no union" campaign by the Intervenor made a "sham of the election process and constituted a fraud on the Board and the employees," 7 and that the,election was thereby rendered un- fair and should be set aside. If the Intervenor was, as the May 23 letter indicates, no longer interested in representing the employees, it would have been better practice for it to withdraw from the election. However, its failure to do so is not, in itself, sufficient ground for setting aside the election, particularly as there is no evidence that the Employer was responsible for the Intervenor's conduct. Nor do we find any merit in the con- tention that, considering the Intervenor's no union campaign in the light of its past relations with the Employer, the Board should now find, in effect, that the Intervenor is company-dominated and should for that reason set aside the election. Although in a prior unfair labor practice case decided in October 1954 8 the Board found that the Intervenor was unlawfully assisted by the Employer, the Board re- fused to find that it was dominated by the Employer.9 In the absence of any finding in an unfair labor practice proceeding that the Inter- venor is company-dominated, the Board is precluded by Section 9 (c) (2) of the Act.10 from impugning the right of the Intervenor to a place on the ballot on the ground of company-domination. 7 The Petitioner 's exceptions state on this point : "A union is not entitled to a place on the ballot or to remain on the ballot when the union involved does not seek to repre- sent the employees but is essentially interested in defeating the efforts of a rival union and when in doing so it loin .; hands with the employer." 8 Sears Roebuck d Company, 110 NLRB 226. 8 Before directing the election herein, the Board ascertained that the Employer had complied with its order in that case Sears Roebuck d Company, 112 NLRB 55 9, foot- note 2 That subsection reads in part : " . . in no case shall the Board deny a labor organi- zation a place on the ballot by reason of an order with respect to such labor organization or its predecessor not issued in accordance with section 10 (c) " Section 10 (c) pre- scribes Board procedure in unfair labor practice cases. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor do we find any merit in Petitioner's position, even if we view it as a contention that the Intervenor's conduct is proof that the Em- ployer has not yet complied with the Board's order in the 1954 case, that the election was therefore prematurely directed, or that the Employer interfered with the election. The order in that case di- rected the Employer to cease and desist from recognizing, or giving effect to an existing contract with, the Intervenor, unless and until it was certified by the Board. The Petitioner does not cite any specific conduct of the Employer violative of this order, but would presum- ably have the Board infer such conduct from the similarity in the preelection strategy of the Intervenor and the Employer. While that is a suspicious circumstance, we do not regard it as sufficient basis for finding either, noncompliance by the Employer with the Board's order or interference by the Employer with the election." 2. The Regional Director found no merit in the Petitioner's second and third objections to the election, and recommended that they be overruled. As Petitioner has not excepted thereto, we adopt this rec- ommendation.la 3. In its exceptions the Petitioner contends that the election should be set aside (a) because of a series of alleged "captive audience" speeches delivered by management to the employees during the week preceding the election, and other related propaganda activities of the Employer, and (b) because of the distribution by the Employer among the employees of a pamphlet entitled "Questions the Clerks Can't Answer," which allegedly maligned the Petitioner and coerced the employees. However, as these matters were not included in the original objec- tions filed with the Regional Director, we find that they were not timely raised and may not now be considered by the Boar-d.'3 ii The Employer contends that the Board is precluded from considering the Petitioner's first objection on the merits because the conduct attributed therein to the Employer is the same as that alleged in a charge filed by the Petitioner on May 13, 1955, in Case No. 1-CA-1937 (not reported in printed volumes of Board Decisions and Orders ), and the subject matter of the charge was waived by the Petitioner as a basis for objecting to the election. However, as that charge necessarily does not relate to the incidents described above which occurred after May 13, we do not deem the foregoing waiver to be entirely dispositive of the instant issue. The Employer contends further that the Petitioner's original objections herein did not embrace the Intervenor 's May 23 letter and that any objection to the election on the basis of that letter is therefore untimely . However, we deem the reference in the Peti- tioner's first objection to the circulation of propaganda for a no union vote "under the guise of employee sponsorship" as broad enough to encompass the May 23 letter. 'A The third objection alleged "Circulation under guidance of Company of literature holding out that union was a source of trouble for employees . . . ." We take this to refer to a letter to the employees dated May 26, 1955, and signed "The Sears Vote No Committee " The gist of this letter was that a vote for the Petitioner would be a vote for "trouble," whereas a vote for no union would lead to "peace ." The Regional Director found no evidence to link this letter with the Employer and concluded that it was per- missible election propaganda The Petitioner's exceptions contain no reference to this letter. 'U Truman Fertilizer Co, 82 NLRB 940. Cf. Shirlington Supermarket, Inc., 110 NLRB 470; Safeway Motor Transit Corp., 83 NLRB 392. TRIANGLE TANNING CO. 271 Upon the entire record in this case, we find that the Petitioner's objections fail to raise substantial and material issues with respect to conduct affecting the results-of--tile-election. Accordingly, we over- rule.all the Petitioner's objections.14 As we find no merit in any of the Petitioner's objections, and as neither the Petitioner nor the Intervenor secured a majority of the valid votes cast, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for Sears Roebuck Employees' Council (unaffiliated) or for Sears Roebuck Employees' Council, Local #1635, Retail Clerks Interna- tional Association, AFL-CIO, and that these labor organizations are not the exclusive representatives of the employees of the Employer, in the unit heretofore found appropriate.] - 14 Petitioner alleges that the Regional Director was handicapped in his investigation of the objections by the fact that the employees had been intimidated, but that they would be willing to testify under the protection of a subpena. The Board has consistently held, however, that a party filing objections is obligated to furnish evidence in support of its charges , and that, unless such evidence is produced, the Regional Director is not required to further pursue his investigation of such objections The Board is fully able to protect against retaliatory action individuals who may aid it in its investigations . See Hincher Manufacturing Company, 106 NLRB 1314, and cases cited therein. Triangle Tanning Co. and Amalgamated Meat Cutters and Butcher Workmen of North America and International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, jointly,' Petitioner Lister Tanning Co. and Amalgamated Meat Cutters and Butcher Workmen of North America and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, jointly, Petitioner. Cases Nos. 13-RC-4609 and 13-IBC-4610. January 31,1956 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, and thereafter consolidated, a hearing was held before Jewel G. Maher, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Upon the entire record in these cases,' the Board finds : 1 The AFL and CIO having merged, we are amending the identification of the petition- ing labor organizations ' affiliation accordingly. 2 Certain motions which the hearing officer referred to the Board are treated in para- graph numbered 3, infra. ' The requests for oral argument, made by the Intervenor and the Employers in their briefs, are hereby denied, as the recoid and briefs , in our opinion , adequately set forth the issues and positions of the parties. 115 NLRB No. 46.