Sears, Roebuck And Co.

SEARS, ROEBUCK & CO Sears, Roebuck and Co. and Retail Clerks Union Local 770, Chartered by United Food and Com- mercial Workers International Union, AFL- CIO, CLC. Case 31-CA-10590 13 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 31 August 1981 Administrative Law Judge Jay R. Pollack issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The pertinent facts are undisputed. During 1980 the Union started an organizing campaign at the Respondent's Hollywood, California store. Em- ployee Peter Zastrow was active in the campaign, and the Respondent had knowledge of this as early as June. In the last week of October, the Respond- ent's employee relations representative William Lewis observed Zastrow distributing union litera- ture at the Respondent's Santa Monica store on behalf of a sister local of the Union. The next day, Lewis passed Zastrow on a stairway at work and said that he understood Zastrow had been at the Santa Monica store the previous night. When Zas- trow replied by shrugging his shoulders and smil- ing, Lewis continued, "I thought it was very inter- esting. I was wondering if you were on the interna- tional payroll of the Union since you're breaking over jurisdictional lines working for Local 770 in the Hollywood store and now working in the Santa Monica store for Local 1442." Zastrow re- plied, "What if I am?" and the conversation ended. The judge found that Lewis' question sought Zastrow's affiliation with the International and sister local and could be construed as seeking the reason for Zastrow's organizing on behalf of the sister local. On the basis of PPG Industries, 251 NLRB 1146 (1980), he concluded that Lewis had inquired about Zastrow's protected activity, there- by violating Section 8(a)(1) of the Act. After the issuance of the judge's decision, the Board pub- lished its opinion in Rossmore House,' overruling PPG Industries and holding that questions concern- ing the union activities of open and active union supporters are not necessarily unlawful if they are made in the absence of unlawful threats or prom- ises. ' 269 NLRB 1176 (1984) 9 Lewis' statement was made to an open and active union supporter in noncoercive circum- stances and did not contain any unlawful threats or promises. Under the rationale of Rossmore House, his remarks did not violate Section 8(a)(1) of the Act. We therefore shall dismiss the complaint. ORDER The complaint is dismissed. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. This case was tried before me at Los Angeles, California, on July 9, 1981, and is based on an unfair labor practice charge filed on October 31, 1980,1 and an amended charge filed on November 26, by Retail Clerks Union, Local 770 (the Union). On December 19, a complaint and notice of hearing issued on behalf of the General Counsel of the National Labor Relations Board by the Regional Director for Region 31. The complaint, as amended at the hearing, alleges in substance that Re- spondent has engaged in certain violations of Section 8(a)(1) of the National Labor Relations Act (the Act). Issues The primary issues are: 1. Whether William Lewis and Ray Hawkins, employ- ee relations representatives for Respondent, were agents of Respondent whose statements to employees were binding on Respondent 2. Whether Respondent violated Section 8(a)(1) of the Act, acting through Lewis, by questioning an employee concerning that employee's union activities and affiliation and by telling an employee that it was not a good idea for the employee to be working for the Union's parent organization 3 Whether Respondent violated Section 8(a)(1) of the Act, acting through Hawkins, by interrogating an em- ployee regarding the employee's opinion of the Union's chances in an upcoming Board election. All parties were given full opportunity to appear, to introduce relevant evidence, to examine and cross-exam- ine witnesses, to argue orally, and to file briefs. Based on the entire record2 and from my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION Respondent is a corporation duly organized under and existing by virtue of the laws of the State of New York ' Unless otherwise stated, all dates refer to calendar year 1980 2 On July 17, 1981, the General Counsel filed a motion for reconsider- ation concerning certain evidence offered by Respondent in support of Respondent's motion to dismiss/strike par 7 of the complaint (the allega- tion that Hawkins unlawfully interrogated an employee) In view of the disposition of that allegation it is unncecessary to rule on the issues raised by the General Counsel's motion 274 NLRB No. 2 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It operates retail stores throughout the country, includ- ing a store located in Hollywood, California, the facility involved herein. Respondent annually derives gross reve- nues in excess of $500,000 and annually purchases and re- ceives goods valued in excess of $50,000 directly from suppliers located outside the State of California. Accord- ingly, Respondent admits, and I find, that it is an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues On July 25, the Union filed a petition in Case 31-RC- 4843, seeking a representation election among the selling and nonselling employees at Respondent's Hollywood, California store On August 18, the Regional Director for Region 31 approved a Stipulation for Certification Upon Consent Election in which the parties had agreed upon an election to be held on September 19 in an ap- propriate unit of the employees at the Hollywood store.3 On September 12, the Union filed an unfair labor prac- tice charge in Case 31-CA-10430. During the investiga- tion of that case, on September 16, the election sched- uled for September 19 was canceled. An election had not yet been held by the time of the instant hearing During the campaign preceding the scheduled elec- tion, William Lewis, an employee relations representative at Respondent's western territories office in Alhambra, California, was assigned to work at the Hollywood store. Ray Hawkins, an employee relations representative at Respondent's corporate headquarters in Chicago, Illinois, was assigned to assist Lewis during the preelection cam- paign at the Hollywood store. Lewis and Hawkins held meetings with supervisors and managers of the Holly- wood store in which they advised and counseled man- agement concerning the representation election cam- paign. The two employee relations representatives also conducted meetings with groups of employees to dismiss union-related matters and to campaign for the Respond- ent in the forthcoming representation election Hawkins also spent time visiting the various departments of the store so that he would be available to talk to any em- ployee who desired to talk to him about the organiza- tional campaign The alleged unfair labor practices arise out of two separate conversations, one between Lewis and employee Peter Zastrow and the other between Hawkins and employee John Sweetin. The General Counsel contends that Zastrow and Sweetin, both known union adherents , were unlawfully interrogated and fur- ther that Zastrow was unlawfully told that it was a "bad idea" for him to be working for the Union 's International organization . Respondent denies the agency status of Lewis and Hawkins and further denies the commission of any unfair labor practices. Finally, Respondent contends that, even if it has violated the Act, such violations are de minimis and do not require the issuance of a Board order. B The Evidence As stated earlier, Lewis is an employee relations repre- sentative for Respondent's western territories office, cov- ering approximately 14 western States. His general duties include attending negotiation meetings, arbitrations, and hearings on behalf of Respondent. During organization campaigns, such as the Union's campaign at the Holly- wood store, Lewis conducts meetings with management and employees At these meetings Lewis advises manage- ment as to what they can and cannot do under the Act. Lewis also conducts meetings with employees in which the organizational campaign and the law are discussed. As stated above, during the Union's organizing cam- paign, Lewis was assigned to the Hollywood store During early June, Lewis was present at a meeting in which Jerry Cohen, store manager at the Hollywood store, counseled employee Peter Zastrow for talking to employees on company time. Based on the credited testi- mony of Lewis,' I find that Lewis explained to Zastrow that under the Act the employee had the right to solicit for the Union or to distribute union literature, but that he could not do so while employees were working at their work stations Thus, as early as June, Zastrow was known to be a leading union adherent. Thereafter, Zas- trow continued to be active in campaigning on behalf of the Union. At the end of October, Zastrow distributed literature at Respondent's Santa Monica, California store 5 on behalf of a sister local of the Union The next day, Lewis passed Zastrow at a stairway in the Hollywood store and said, "Peter, I understand you were in the Santa Monica store last night " Zastrow shrugged his shoulders and smiled Lewis then said , "I thought it was very interest- ing I was wondering if you were on the international payroll of the Union since you're breaking over jurisdic- tional lines working for Local 770 in the Hollywood store and now working in the Santa Monica store for Local 1442." Zastrow answered, "What if I am?" Ac- cording to Lewis, whom I credit, he made no further comment to Zastrow As discussed above, the General Counsel contends that by this conduct Respondent vio- lated Section 8(a)(1) of the Act Respondent, on the other hand, contends that Lewis' conduct was not coer- cive and, therefore, not violative of the Act 4 Lewis testified in a straightforward and credible manner Further, his testimony was corroborated by documentary evidence Zastrow's testi- 9 The stipulated appropriate unit was all selling and non-selling em- mony, on the other hand, was contradicted by the documentary evi- ployees, including office clericals and plant clerical employees at the Hol- dente Where there are conflicts in their testimony, I credit Lewis' testi- lywood store, excluding all confidential and leased department employ- mony over that of Zastrow ees, guards and supervisors as defined in the Act The unit consisted of 5 The employees of the Santa Monica store are not included in the bar- approximately 260 employees gaining unit at issue herein SEARS, ROEBUCK & CO As stated earlier, Ray Hawkins is a staff assistant in the employee relations department located at Respond- ent's corporate headquarters in Chicago , Illinois. Haw- kins' job duties cover the entire scope of labor relations, including negotiations , grievances, and arbitrations In organizing compaigns Hawkins advises management con- cerning campaign conduct . During the Union's organiz- ing campaign at the Hollywood store , Hawkins conduct- ed meetings with employees as well as managers and su- pervisors . At the meetings with employees Hawkins indi- cated that he would be available to answer employees' questions . When not attending meetings, Hawkins fre- quently walked through the Hollywood store talking to employees and making himself available to answer ques- tions of employees . During the campaign Hawkins became acquainted with John Sweetin, battery room su- pervisor6 in the auto service center at the Hollywood store . It is undisputed that Sweetin was a known union adherent and wore a union button to work every day. It is also undisputed that Hawkins and Sweetin discussed the Union at least three or four times during the first 2 weeks of September . At the time of these conversations, the representation election was scheduled for September 19 The auto center where Sweetin worked is a separate building on the parking lot of the Hollywood store. During the first 2 weeks of September , Hawkins would walk to the auto center and talk to the employees, in- cluding Sweetm.7 According to Sweetin , on one occa- sion Hawkins asked, "John, do you think the Union is going to get in' I don 't think so." Sweetin did not answer. Hawkins testified that he had three or four con- versations with Sweetin during the first 2 weeks of Sep- tember. According to Hawkins , he and Sweetin dis- cussed many matters, including the Union and on one occasion Sweetin told him that Sweetin thought the Union would get in. However , Hawkins denied that he ever made the statement attributed to him by Sweetin. I credit Hawkins' denial.8 Under the circumstances, I cannot find that Hawkins unlawfully interrogated Swee- tin as alleged in the complaint. C. Conclusions Regarding Agency Status The complaint alleges that Lewis and Hawkins are agents of Respondent within the meaning of Section 2(13) of the Act . Respondent denies such allegations in its answer to the complaint. Section 2( 13) of the Act does not define agency, rather, it states, "In determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his act , the question of whether the specific acts performed were actually au- thorized or subsequently ratified shall not be control- 6 Although Sweetm held the title of supervisor , the parties stipulated that Sweetin did not hold any of the indicia of supervisory status and was not a supervisor within the meaning of Sec 2 (11) of the Act 7 Approximately 25 employees worked at the auto center 9 I found Hawkins to be a candid and straightforward witness Swee- tin, on the other hand , appeared to contradict himself in certain aspects of his testimony and was contradicted by his own pretrial affidavit Where there is a conflict in their testimony, I credit Hawkins' version over that of Sweetin 11 ling" Under Section 2 (2) of the Act, "The term 'em- ployer' includes any person acting as an agent of an em- ployer, directly or indirectly " Accordingly, under the Act, common law principles of agency apply . See, e g., Burnup & Sims, 256 NLRB 965 (1981 ); Westward Ho Hotel, 251 NLRB 1199 (1980). Applying common law principles it is clear that Re- spondent may not escape responsibility for the statements of Lewis and Hawkins in the organizational campaign Respondent employed Lewis and Hawkins for the pur- pose of discussing union organizational matters with its managers and employees . The statements at issue herein were the kind of conduct that Lewis and Hawkins were employed to perform during their assignment at the Hol- lywood store. The statements were uttered at the Em- ployer's premises , during the workday, and were obsten- sibly for the Employer's benefit. Accordingly, employees would reasonably understand that Lewis and Hawkins spoke for management in discussing matters related to the organizational campaign See generally Sangamo Western, Inc, 251 NLRB 1597 (1980). Thus, I find that Respondent is accountable for the statements made by Lewis and Hawkins to employees Zastrow and Sweetin relating to the Union's organizational campaign. D. Conclusions Regarding the 8(a)(1) Allegations 1 As stated earlier, I find no credible evidence that Hawkins unlawfully interrogated employee Sweetin as alleged in the complaint I therefore recommend dismis- sal of that allegation of the complaint. 2 As described above, during the last week of Octo- ber, Lewis, after telling Zastrow that he knew the em- ployee had been organizing at the Santa Monica store, said, "I was wondering if you were on the International payroll of the Union since you're breaking over jurisdic- tional lines working for Local 770 in the Hollywood store and now working in the Santa Monica store for Local 1442." Zastrow answered, "What if I amt" Lewis did not respond further. The General Counsel contends that Lewis' statements amount to unlawful interrogation in violation of Section 8(a)(1) of the Act . Respondent contends that such state- ment is not unlawful and in any event was isolated and de mmimis. In support of her position the General Counsel relies on the recent case of PPG Industries, 251 NLRB 1146 (1980). In PPG, the Board held that questioning concern- ing union sympathies of active and open union support- ers was coercive even in the absence of other threats in the conversation The Board reasoned that such ques- tioning conveys an employer 's displeasure with employ- ees' union activity and thereby discourages such activity in the future. The coercive impact of such questions was held not to be diminished by the employees ' open union support or by the absence of attendant threats See also Centre Engineering, Inc., 253 NLRB 419 (1980). Respondent contends that PPG is distinguishable on the ground that Lewis did not inquire into Zastrow's union sentiments or affiliations but "rather into his status as a paid employee of the International , a matter of public disclosure " I cannot agree Lewis questioned Zas- 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trow's affiliation or relationship with the International and a sister local Further, Lewis' question could be con- strued as seeking the reason for Zastrow's organizing on behalf of a sister local of the Union. Zastrow's organiz- ing and reason for doing so are protected by Section 7 of the Act.9 Accordingly, I find that Lewis unlawfully in- terrogated Zastrow in violation of Section 8(a)(1) of the Act 10 As stated 'above, Respondent contends that the con- duct in this case is isolated and de mmimis. However, the Board has recently indicated that it will not dismiss a violation of Section 8(a)(1) on such grounds. In Regency at the Rodeway Inn, 255 NLRB 961 (1981), the Board re- versed an administrative law judge's dismissal of a single incident of interrogation which the judge found to be de mmimis and not requiring a remedial order. The judge had enumerated, among others, the following reasons for dismissal . The company had committed no other viola- tions of the Act, the record did not show that any other employee was informed of the incident; and at the time of the conversation, the union activities had been com- pleted. In reversing the judge, the Board specifically found it irrelevant that the company had not engaged in 9 I give no'weight to Respondent's argument that Zastrow engaged in unlawful conduct or misconduct at the Santa Monica store The only evi- dence presented in that respect was admitted for the purpose of showing the context in which Lewis' remarks were uttered Statements by the Santa Monica store manager to Lewis were not received for the truth of the matters asserted 10 Rdey-Berard, Inc, 253 NLRB 660 (1980), cited in Respondent's brief, does not require a different result In that case, the Board affirmed an administrative law judge 's finding of no violation when a supervisor asked a known union sympathizer how the union "was coming " The judge's decision, which issued prior to the Board's decision in PPG, stated, "There is nothing inherently coercive about a request for a predic- tion of election results from a known union sympathizer " Even assuming that aspect of Riley-Berard is valid after PPG, the factual situation herein is clearly distinguishable other unlawful acts, or that the statutory rights of only a single employee were violated or that the employee whose rights were violated did not communicate that fact to others. Id. Accordingly, under the principles of the Regency decision the violations herein cannot be con- sidered to be de minimis and a remedial order must be recommended. i i THE REMEDY Having found that the Respondent, Sears, Roebuck and Co., has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 Respondent violated Section 8(a)(1) of the Act by questioning an employee concerning the extent of his union affiliation and/or his reasons for engaging in union activities. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as found above, Respondent has not engaged in other unfair labor practices as alleged. [Recommended Order omitted from publication.] " Respondent contends that its conduct herein should not block the election in the representation case The representation case is not before me and , therefore, Respondent's argument is best directed to the Region- al Director or to the Board