Sears, Roebuck And Co.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sears, Roebuck and Co. and International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC. Cases 16-CA-7941, 16-CA-8047, 16-CA-8218, 16-CA-8382, 16-CA-8472, and 16-CA-8551 22 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 22 April 1980 Administrative Law Judge Richard D. Taplitz issued the attached decision. The Charging Party filed exceptions and a support- ing brief, and the Respondent filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions as modified, and to adopt the recom- mended Order. The sole issue before the Board concerns the Re- spondent's 22 May 1979 interview of employee Larry Ward, at which the Respondent denied Ward's request for the presence of a representative of his own choosing.2 The judge dismissed this aspect of the complaint, finding that the interview was conducted only to impose predetermined disci- pline and thus was not an interview to which Weingarten rights applied. Texaco, 246 NLRB 1021 (1979); Baton Rouge Water Works Co., 246 NLRB 995 (1979). We agree with the judge's dismissal of this aspect of the complaint but, as to the rationale, we rely instead on our view that Weingarten rights are inapplicable where, as in the case before us, there is no certified or recognized union.3 Pursuant to this view, we overrule the Board's contrary de- cision in Materials Research Corp., 262 NLRB 1010 (1982)., For purposes of our decision, the particular facts surrounding Ward's 22 May 1979 interview are not pertinent. Instead, the only pertinent fact is that, at the time of Ward's interview, Ward was not repre- sented by a recognized or certified union. Thus, when Ward requested a representative at his inter- view, his request was for a fellow employee or for a representative of the Charging Party Union that i Absent exceptions we adopt the judge's finding that the Respondent violated Sec 8(a)(3), (4), and (1) of the Act by requiring certain employ- ees to use vacation or personal holiday leave to attend a Board hearing and his dismissal of other 8(a)(1) and (3) allegations 2 NLRB v J Weingarten , 420 U S 251 (1975) The complaint also al- leged that Ward was unlawfully discharged for engaging in union activi- ties and for giving testimony to the Board The judge found that Ward was discharged for cause, and no exceptions were filed to that finding 3 We express no view on whether Ward's interview was the type to which Weingarten rights would attach if a recognized or certified union had been present was engaged in efforts to organize the Respond- ent's employees. In Materials Research Corp., 262 NLRB 1010 (1982), a Board majority extended the Supreme Court's Weingarten decision to unrepresented em- ployees.4 Former Chairman Van de Water and Member Hunter each filed a dissent to that expan- sion . We agree with them that the Materials Re- search majority was incorrect and, in so doing, we fully endorse former Chairman Van de Water's dis- senting opinion in that case with the following ad- ditional observations. S Weingarten rights stem from an employer action (an interview) which is reasonably perceived by an employee as affecting his or her terms and condi- tions of employment (the potential imposition of discipline).6 The Board and the Supreme Court have determined that an employee should not be required to participate in such an employer action alone, without his or her duly designated collec- tive-bargaining representative should such repre- sentative be requested. The Weingarten rule, in a unionized setting, is wholly consistent with established principles of labor management relations . Thus, pursuant to Sec- tion 9 and related provisions of our Act, a duly recognized or certified union is vested with the ex- clusive authority to represent unit employees and deal with the employer on all matters involving 4 The Materials Research rule was applied in E I du Pont & Co, 262 NLRB 1040 (1982) (Du Pont 1), and E I du Pont & Co, 262 NLRB 1028 (1982) (Du Pont II) The Ninth Circuit Court of Appeals denied enforce- ment of Du Pont I on the ground that the employee 's request for repre- sentation did not meet Sec 7's "concerted activities" requirement 707 F 2d 1076 (9th Cir 1983) The Third Circuit Court of Appeals granted enforcement in Du Pont !! 724 F 2d 1061 (3d Cir 1983) On 14 May 1984, the court vacated its order and remanded the case to the Board 5 Member Hunter has raised several compelling arguments in his Mate- rials Research dissent and his concurring opinion in this case Our major difference with Member Hunter is that he appears to view our holding here as a permissible interpretation of the Act , while we view the result rendered as one the Act compels 6 The Materials Research majority sought to deny this characterization of the Weingarten right by accusing former Chairman Van De Water of advocating a return to "pre-Weingarten" cases where an employee's right to representation applied only in disciplinary interviews See, e g , Texaco, 168 NLRB 361 (1967) In those cases, the Materials Research Corp majority conceded the existence of a necessary and direct link be- tween an employer action (an interview) and the impact on an employ- ee's terms and conditions of employment (discipline) They asserted, however, that that essential linkage was abandoned in Quality Mfg Co, 195 NLRB 197 (1972), and Mobil Oil, 196 NLRB 1052 (1972), in favor of a "`new' interpretation of Section 7 " Simply stated , the Materials Re- search Corp majority was wrong First, the former Chairman specifically quoted from and discussed Quality and Mobil, setting forth the parallels between Texaco and those cases regarding the characterization of the right involved 262 NLRB at 1017 Second , although the Board's focus did shift from disciplinary interviews to investigatory interviews in Quality and Mobil, it retained the essential linkage between employer action and the effect on an em- ployee's terms and conditions by imposing the requirement that the em- ployee reasonably believe discipline might result from the interview Quality MJg Co, 195 NLRB 197 at in 3, and accompanying text 274 NLRB No. 55 SEARS, ROEBUCK & CO 231 terms and conditions of employment, including wages, hours, benefits, and discipline. Accordingly, if an employer seeks to take an action that affects any of its employees' terms and conditions of em- ployment, it must recognize the union's legitimate representational rights and, therefore, it is not free to deal with employees on an individual basis over the employees' objections. In short, the application of Weingarten in a union setting meshes comfort- ably with established concepts governing dealings among employees, management, and unions. When no union is present, however, the imposi- tion of Weingarten rights upon employee interviews wreaks havoc with fundamental provisions of the Act. This is so because the converse of the rule that forbids individual dealing when a union is present is the rule that, when no union is present, an employer is entirely free to deal with its em- ployees on an individual, group, or wholesale basis. See Linden Lumber v. NLRB, 419 U.S. 301 (1974); J. I. Case Co. v. NLRB, 321 U.S. 332 (1944); NLRB v. Jones & Laughlin, 301 U.S. 1 (1937). Im- portantly, the freedom to deal individually spans all terms and conditions of employment, including the potential or actual imposition of discipline. Thus, when the Board held in Materials Research Corp. that Weingarten rights are applicable in a nonunion setting, it told employers, in effect, that they have the right to act on an individual basis with respect to an employee's terms and conditions of employ- ment except for the conduct of an investigatory interview. In an investigatory interview, where dis- cipline is reasonably foreseeable, the employer must accede to an employee's request for represen- tation or else forgo the interview altogether. In short, the Materials Research Corp. majority said that, with respect to disciplinary action, the non- union employer cannot deal with an employee on an individual basis; it must deal on a collective basis. Like former Chairman Van de Water, we cannot endorse any rule that so fundamentally alters our statutory scheme. Nor can we accept the rationalizations of the Materials Research Corp. majority that a nonunion employer can be required to deal with a Weingar- ten representative because (1) the Weingarten deci- sion is based on Section 7, which extends its pro- tections to represented and unrepresented employ- ees alike; and (2) the Weingarten representative is not cloaked with full collective-bargaining author- ity. Former Chairman Van de Water adequately dis- posed of the first of these arguments in his discus- sion of Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1974).7 In Emporium Capwell union-represented employees engaged in picketing in an effort to compel the em- ployer to deal with them, rather than the union, over the issue of racial discrimination. The employ- er discharged the pickets. The Supreme Court ruled that the discharges were lawful because the employees' actions contravened the exclusivity pro- visions of Section 9. Thus, even though the em- ployees were engaged in concerted activity that, in the absence of a union, would have been protected by Section 7, their rights in a unionized setting could not "be pursued at the expense of the orderly collective-bargaining process contemplated by the NLRA." 420 U.S. at 69. Such reasoning applies with equal force here. The scope of Section 7's protections may vary depending on whether em- ployees are represented or unrepresented, and the Section 7 rights of one group cannot be mechani- cally transplanted to the other group at the expense of important statutory policies.8 The second rationalization fares no better. Plain- ly a Weingarten representative cannot engage the employer in collective bargaining. It is clear, how- ever, that the representative acts as a representative for the employee being interviewed and all other em- ployees in the unit. The Weingarten Court contem- plated that the representative safeguard "not only the particular employee's interest, but also the in- See 262 NLRB at 1020 (dissenting opinion) Additionally, while Member Dennis holds that an unrepresented em- ployee does not have a Sec 7 right to refuse to participate in an investi- gatory interview without the assistance of a fellow employee, she empha- sizes that an employee does engage in protected concerted activity by re- questing that a coworker be present The Act forbids an employer from retaliating against an unrepresented employee for making a protected concerted request, but it does not mandate the granting of such a request Charleston Nursing Center, 257 NLRB 554, 555 (1981) (unrepresented em- ployees were engaged in protected concerted activity when they request- ed meeting with management to discuss grievances , but the employer was under no obligation to meet with them and could refuse to deal with the employees except on an individual basis) In Member Dennis' opinion , a request for the presence of a coworker is an attempt to initiate concerted activity because , if successful , two em- ployees would together confront the employer as it considered whether to impose discipline Member Dennis finds support for her position in the section of Meyers Industries, 268 NLRB 493, 497 (1984), setting forth the definition of concerted activity The Meyers Board cited with approval the Second Circuit's decision in Ontario Knife Co v NLRB, 637 F 2d 840, 844-850 (1980), in which the court stated Implicit, of course , in the Court's decision in Weingarten is that the action of an individual in requesting the assistance of a union stew- ard met § 7's requirement of concertedness as well While by defini- tion, an individual acting alone cannot act in concert, § 7 is not limit- ed to concerted activity per se Instead, it protects the "right to engage in concerted activities " If workers have the right to engage in concerted activities and to associate freely, then, as the Third Circuit recognized in Mushroom Transportation Co v NLRB, 330 F 2d 683 (3d Cir 1964), employers cannot obstruct an employ- ee's efforts to exercise those rights Individual activity can be pro- tected, therefore, if it is "looking toward group action " Mushroom Transportation, 330 F 2d at 685 Chairman Dotson finds it unnecessary to pass on the issue discussed in this footnote 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terests of the entire bargaining unit . . . ." 420 U.S. at 260. Further, the Board has held that the representative must be allowed to speaks and is free to make proposals and suggestions or to offer alternative discipline. As former Chairman Van de Water pointed out, such functions constitute "deal- ing with" the employer, and "dealing with" an em- ployer is a primary indicium of labor organization status as well as a traditional union function See 262 NLRB at 1016 fn. 30, 1019 fn. 40, and accom- panying text. Thus, to place a Weingarten repre- sentative in a nonunion setting is to require the em- ployer to recognize and deal with the equivalent of a union representative, contrary to the Act's exclu- sivity principle. For the foregoing reasons, and those former Chairman Van de Water cited in his Materials Re- search Corp. dissent, we reverse the Board's deci- sion in Materials Research Corp. and hold that the right to representation at Weingarten-type inter- views applies only to unionized employees. Be- cause Larry Ward was not a represented employee, we shall affirm the judge's finding that Ward's 22 May 1979 interview was not conducted in violation of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Sears, Roe- buck and Co., Oklahoma City, Oklahoma, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. MEMBER HUNTER, concurring. I concur in the result reached by the majority that the Respondent's denial of employee Ward's request for representation at the 22 May 1979 inter- view did not violate Section 8(a)(1) of the Act. As previously indicated,' I agree that Weingarten2 rights do not properly extend to unrepresented em- ployees. Thus, I join my colleagues in the majority in overruling Materials Research Corp.;3 however, I disagree with their stated reasons for doing so.4 The Materials Research majority opinion adopted the rationale that the Supreme Court 's decision in Weingarten compels the conclusion that unrepre- sented employees are entitled to the presence of a coworker at an investigatory interview if request- ed.5 Contrary to that approach, Chairman Dotson and Members Dennis, in the majority opinion here, have interrupted the Act so as to compel no Wein- garten rights for unrepresented employees. I dis- agree with both positions. Rather, I consider the extension of the Weingarten rights to unrepresented employees as a permissible but not a reasonable construction of the Act for the reasons set forth below and in my prior dissent in Materials Re- search. In reaching this conclusion, I start with an analy- sis of the Weingarten decision itself. In Weingarten, the Supreme Court upheld the Board's view of the scope of an employee's rights to union representa- tion provided by Section 7 of that Act. In Weingar- ten, a Board majority had adopted the administra- tive law judge's conclusion that, under Section 7, an employee's right to engage in concerted activi- ties for mutual aid or protection encompasses the right to the presence of a union representative at an investigatory interview which the employee rea- sonably fears may result in discipline. As is its ad- mitted practice, reaffirmed on several later occa- sions,6 the Supreme Court in Weingarten indicated it confined its inquiry to the construction of Sec- tion 7 at hand, permitting the Board in this area to initially define the scope of Section 7.7 As long as the Board's construction of Section 7 was not con- trary to the Act and was reasonable, the Court in- dicated it would give it considerable deference, even though the particular construction was not re- quired by the Act." To begin its inquiry into the reasonableness of the Board's construction of Section 7, the Supreme Court initially reviewed the Board's earlier deci- sions in Quality Mfg. Co., 195 NLRB 197 (1972), and Mobil Oil Corp., 196 NLRB 1052 (1972), where according to the Court, the Board had first "shaped the contours and limits of the statutory right" under consideration.9 In Mobil Oil Corp., the Board had stated that "[a]n employee's right to union representation upon request is based on Sec- tion 7 of the Act which guarantees the right of em- ployees to act in concert for `mutual aid and [sic] protection."'' ° The Board in Mobil thus recognized that an employee has a general right to assistance from his statutory representative and that the em- ployee himself can activate the right. However, the Board in Mobil, as preceded by its decision in 9 Southwestern Bell, 251 NLRB 612 (1980) 1 See my separate concurrence and dissent in Materials Research Corp, 262 NLRB 1010, 1021-22 (1982) 2 NLRB Y J Weingarten, 420 U S 251 (1975) 3 262 NLRB 1010 (1982) I find the issue raised in fn 8 of the majority opinion not presented here, and thus I do not pass on it 5 Materials Reasearch Corp , supra at 1014 6 NLRB P City Disposal Systems, 104 S Ct 1505 (Mar 21, 1984), Easiex, Inc Y NLRB, 437 U S 556, 568 (1978), Ford Motor Co. Y NLRB, 441 U S 488 (1979) r NLRB v, J Weingarten, supra at 266-267 8 Ibid 9 Id at 256 10 Mobil Oil Corp, supra SEARS, ROEBUCK & CO Quality Mfg., never lost sight of the fact that it was dealing in those cases with a right to "union" rep- resentation, I 1 and the Board in each case was es- sentially being asked to delineate where the bound- aries to this right exist. The Board had never previ- ously endorsed any notion that an employee's right to union representation from his statutory repre- sentative existed in every phase of his employment. What the Board did in Mobil and Quality Mfg. then was to state that the boundaries of the right to union representation extended at least as far as the investigatory interview which the employee fears may result in disciplinary action against him. It clearly did not address in those decisions the ques- tion whether that right extended to an unrepresent- ed employee. And, as noted, in its Weingarten deci- sion, the Supreme Court considered that those de- cisions "shaped the contours and limits of the statu- tory right." 12 The Supreme Court in Weingarten next noted the specific "contours and limits" to this statutory right to have union representation at the investigatory interview. According to the Court's opinion, inter alia, this right arose only in situations where the employee requested union representation; was con- fined to a particular confrontation between em- ployer and employee, i.e., the investigatory inter- view, rather than applying in all dealings between employer and individual employee; did not unduly hamper the employer's prerogatives in conducting its investigations as it deems fit; and entailed a cir- cumscribed participation by the union representa- tive without creating a duty to bargain on the part of the employer. According to the Court, the Board's construc- tion gave recognition to the right of union repre- sentation at the investigatory interview when it was most useful rather than delaying its exercise or diminishing its effectiveness until discipline actually had been imposed and the grievance mechanisms invoked.13 In this regard, the Court noted that the presence of a knowledgeable union representative might save valuable production time, avoid unnec- essary discipline and future grievances, and coin- cided with actual industrial practices. The Court then concluded that this construction of Section 7 I I In Mobil, the Board held "Thus, it is a serious violation of the em- ployee's individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employ- ee's request and compels the employee to appear unassisted at an inter- view which may put his job security in jeopardy " 196 NLRB at 1052 (Emphasis added ) In Quality Mfg, it stated- "After reflection, we have concluded that it is a serious violation of an employee 's individual right to be represented by his union if he can only request or insist on such representation under penalty of disciplinary action " Quality Mfg Co, 195 NLRB at 198 (Emphasis added ) I2 See fn 9 13 NLRB v J Weingarten , 420 U, S at 262-263 fn 7 233 by the Board, allowing for union representation at investigatory interviews, effectuated the most fun- damental purposes of the Act, i.e., permitting em- ployees to exercise full freedom of association, self- organization, and designation of representatives of their own choosing for the purpose of mutual aid or protection.14 In sum, an analysis of the Supreme Court's Wein- garten decision leads me to the conclusion that the decision sanctioned only the right to union repre- sentation in a certain situation and that the Court indicated that the Board's interpretation that an employee's Section 7 rights included the right to union representation at an investigatory interview "while it may not be required by the Act, is at least permissible under it."15 Clearly, however, to read Weingarten, as did the majority in Materials Research, as compelling the same construction of Section 7-when an unrepresented employee seeks a witness of his own choosing at investigatory inter- views-is erroneous, and ignores the Court's own recognized limits in reviewing the Board's con- struction of Section 7 on the facts of the case. I note that Justice Powell, joined by Justice Stewart, stated as dicta in his dissenting opinion on Weingar- ten, "While the Court speaks only of the right to insist on the presence of a union representative, it must be assumed that the § 7 right today recog- nized, affording employees the right to act in con- cert' in employer interviews, also exists in the ab- sence of a recognized union." [Emphasis added.] 16 The Supreme Court majority in Weingarten never addressed Justice Powell's assumption concerning unrepresented employees. To place any reliance, as the Materials Reasearch majority did, on this unan- swered dissenting opinion footnote as compelling authority for the approach taken in Materials Re- search is to erroneously infer judicial support for a statement made to emphasize disagreement with the underlying decision. Rather, it indicates, if any- thing, the narrowness of the Weingarten Supreme Court decision and its intended application in the represented setting only. Thus cognizant of the narrowness of Weingarten, I find that Weingarten does not compel broadening Section 7 to extend Weingarten representation rights to unrepresented employees. Moreover, I do not view the Materials Research majority's exten- sion of Weingarten as a reasonable construction of Section 7 for the reasons set forth below. First, Materials Research effectively gives repre- sentation to employees who have not chosen to be 14 Id at 261-262 11 Id at 266-267 16 Id at 270 fn I 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented in any of their dealings with their em- ployer That decision professes that Section 7 re- quires that represented and unrepresented employ- ees be placed on the same footing. Yet, the pres- ence of an exclusive bargaining representative can affect an employee's Section 7 rights. For example, the presence of a bargaining representative alters Section 7 rights of employees by prohibiting them from bypassing their bargaining agent and dealing directly with their employer, except as provided in the proviso to Section 9(a) with respect to the ad- justment of grievances. In addition, the employees' Section 7 right to strike may be either contracted away entirely by the bargaining representative or become subject to the will of the majority of the bargaining unit employees. On the other hand, the presence of a bargaining representative can trigger employees' Section 7 right "to bargain collectively through representatives of their choosing" by af- fording employees access to the process and bene- fits of collective bargaining, including the right to require, upon reaching an agreement, a written and signed collective-bargaining contract. Thus, merely because the represented employee has a Section 7 right to a Weingarten union representative does not require a finding that unrepresented employees should be allowed to substitute a witness of their choice for the Weingarten union representative. Materials Research also wrongly denigrated, con- trary to the Supreme Court's rationale in Weingar- ten, the knowledge, skill, and experience which the union representative typically brings to the investi- gatory interview.17 It further ignores the fact that the union representative, contrary to the unrepre- sented employee witness, is charged with the con- cerns of the unit as a whole. 111 The union repre- sentative 's usefulness is evident since, as the Su- preme Court noted, early union involvement may achieve consistency in the employer's imposition of discipline and may foster other means to resolve the matter under investigation short of the imposi- tion of discipline. In the unrepresented setting, these benefits are less likely to occur. In the repre- sented setting, the employer regularly deals with the union representative on matters besides the in- vestigatory interview. There is more likelihood that the employer then will permit greater participation from the union representative at the investigatory interview because the employer knows that he may face the union representative again on this matter in a postdiscipline grievance or on other related matters. In addition, with the union representative, 17 See the extensive discussion on this point at NLRB v J Weingarten, 420 U S at 272 fn 7 18 See my concurring and dissenting opinion in Materials Research Corp, 262 NLRB at 1020, 1021 there is more impetus on the employer to make consistent disciplinary decisions because the union representative manifests an apparent solidarity of the employees in the unit. The presence of the union representative also has a beneficial effect for employers in that his presence may discourage friv- olous grievances and reduce the costs of nonfrivo- lous grievances. In the unrepresented setting, all of the above benefits are not likely to be achieved with the ad hoc appointment of coworkers as wit- nesses at investigatory interviews. Rather, in the unrepresented setting, there is an unlimited pool of potential witnesses at these interviews since the employee can choose any coworker he likes. This unlimited pool can hinder continuity and speedy in- vestigations which the employer seeks. Further, contrary to the majority opinion in this case, I fail to see the relationship between an un- represented employee's request for Weingarten rep- resentation and the provisions of Section 9 of the Act under the reasoning of Emporium Capwell Co. v. Western Addition Community Organization.19 I find Emporium Capwell inapplicable to the situation at hand. In Emporium Cap well, represented em- ployees engaged in picketing to force the employer to bargain directly with them instead of their ex- clusive bargaining representative. The Supreme Court in Emporium Capwell framed the issue in- volved as concerning whether attempts to engage in separate bargaining are protected by Section 7 or proscribed by Section 9(a) of the Act.2 ° In the Weingarten setting, there is, by definition, no duty on the part of the employer to bargain with the representative in the first instance.21 Thus, I am unable to understand the majority's reasoning as to how Emporium Capwell has any relevancy to the issue presented here, which, as I have noted, has nothing to do with collective bargaining. In view of the above, I find that Materials Re- search's application of Section 7 to provide a right of representation in this one instance to a group of employees who have not chosen a collective-bar- gaining representative is unwarranted and unwise. 19 420 U S 50 (1975) 20 Ibid 21 NLRB P J Weingarten, 420 U S at 259 DECISION STATEMENT OF THE CASE RICHARD D. TAPL1TZ, Administrative Law Judge. These cases were tried before me at Oklahoma City, Oklahoma, on 15 trial days between December 13, 1978, SEARS, ROEBUCK & CO and October 5, 1979.1 The charge and amended charge in Case 16-CA-7941 were filed, respectively, on June 12 and July 12, 1978 by International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, the Union A complaint issued thereon on July 31, 1978, al- leging that Sears, Roebuck and Co 2 the Company, vio- lated Section 8(a)(1) of the National Labor Relations Act The charge in Case 16-CA-8047 was filed by the Union on August 14, 1978. On September 21, 1978, the Regional Director for Region 16 of the Board issued an order consolidating Cases 16-CA-7941 and 16-CA-8047 and a consolidated complaint alleging that the Company violated Section 8(a)(1) of the Act. On October 11, 1978, the Union filed a first amended charge in Case 16-CA-8047 and on No- vember 21, 1978, the Regional Director issued a consoli- dated amended complaint alleging that the Company vio- lated Section 8(a)(1) and (2) of the Act. That complaint was amended on November 30, 1978 It was further amended when the trial opened before me on December 13, 1978. The charge, first amended charge, and second amend- ed charge in Case 16-CA-8218 were filed respectively on December 4, 12, and 13, 1978, by the Union A com- plaint issued in Case 16-CA-8218 on January 24, 1979, alleging that the Company violated Section 8(a)(1), (3), and (4) of the Act On January 29, 1979, I granted the General Counsel's motion to consolidate Cases 16-CA- 7941 and 16-CA-8047 with Case 16-CA-8218 and to consolidate the complaints in those cases The charge and amended charge in Case 16-CA-8382 were filed respectively on March 12 and April 17, 1979, by the Union. A complaint issued in that case on April 18, 1979, alleging that the Company violated Section 8(a)(1) and (3) of the Act. By order dated May 4, 1979, I reopened the record in Cases 16-CA-741, 16-CA-8047, and 16-CA-8218 (the trial in those cases had previously been closed), consolidated those cases with Case 16-CA- 8382, and consolidated the complaints which were based on all of those charges The complaint in Case 16-CA- 8382 was further amended at the hearing on June 5, 1979 The charges in Cases 16-CA-8472 and 16-CA-8551 were filed, respectively, on May 3 and June 15, 1979, by the Union An order consolidating those cases and a complaint thereon issued on July 13, 1979, alleging that the Company violated Section 8(a)(1), (3), and (4) of the Act. By order dated August 13, 1979, I reopened the record in Cases 16-CA-7941, 16-CA-8047, 16-CA-8218, 16-CA-8382 (the hearing in those cases had again closed), consolidated those cases with Cases 16-CA-8472 and 16-CA-8551 and consolidated all the complaints The hearing was closed for the last time on October 5, 1979. i In addition, trial began on some of those cases before a different ad- ministrative law judge on November 30 and December 1, 1978 That fudge disqualified himself and a trial de novo began before me on De- cember 13, 1978 2 The original complaint named the Company as Sears, Roebuck Cen- tral Service Center During the course of the trial an amendment was permitted which changed the name to read as in the caption Issues 235 The primary issues are- 1 Whether the Company through various supervisors violated Section 8(a)(1) of the Act by coercively interro- gating employees concerning their union activity; by of- fering money to an employee to induce him to refrain from supporting the Union; by threatening employees with reprisals for engaging in union activity and for ap- pearing to testify at an unfair labor practice hearing; by creating the impression of surveillance of union activity; by telling employees that the Company had not granted wage increases in reprisal for the employees' union activ- ity, by prohibiting an employee from talking about wages because of that employee's union activity; by tell- ing employees that if they engaged in a strike the Com- pany would not be obligated to reinstate them after the strike was over; by encouraging an employee to circulate an antiunion petition and rewarding him for circulating that petition, by refusing to allow employees to take leave without pay and by requiring them to take vaca- tion or personal holiday leave to absent themselves from work in order to assist counsel for the Charging Party and the General Counsel at an unfair labor practice hear- ing; and by denying an employee's request for represen- tation at an investigatory and disciplinary interview. 2. Whether the Company violated Section 8(a)(2) of the act by creating and dominating a labor organization known as the "Communications Committee." 3 Whether the Company violated Section 8(a)(3) and (4) of the Act by giving employee Earl Perkins an unfa- vorable work performance evaluation and by laying Per- kins off because of his union activity and because he gave testimony under the Act. 4 Whether the Company violated Section 8(a)(3) of the Act by demoting and reducing the pay of employee Shirley Segar because of her union activity 5 Whether the Company violated Section 8(a)(3) and (4) of the Act by discharging employee Curtis Larry Ward because of his union activity and because he gave testimony under the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Company On the entire record' of the case and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a New York corporation with places of business in Oklahoma City, Oklahoma, where it is en- ' The unoppc -i' is t, m .1 counsel for the General Counsel to correct the transcript of she record is noted and granted However, in the ab- sence of a further motion to correct and in view of the fact that most of the errors are either inconsequential or apparent on their face, a volumi- nous correction of the record will not be undertaken 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in the retail sales and service business. Though the Company does business throughout the United States its only facility involved in this proceeding is the one known as The "Sears, Roebuck Central Service Center" which is located at 1825 North Walnut Street, Oklahoma City, Oklahoma During the past year the Company pur- chased and received goods valued in excess of $50,000 directly from sources outside of Oklahoma and received gross revenues in excess of $500,000 at its Oklahoma City outlets. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company maintains a number of retail stores in the Oklahoma City, Oklahoma area It also operates a central service center in Oklahoma City which repairs appliances that have been sold by the retail stores The Company does not recognize any union as the represent- ative of its employees at the central service center 4 In the fall of 1977 one of the employees at the Central Service Center contacted the Union about the possibility of organizing the employees. On about February 1, 1978, Edward Gaskill, an International representative of the Union, was assigned the responsibility of organizing the Central Service Center Gaskill met with five or six of the Company's employees at the house of employee Charles Franklin about February 12, 1978. Some of those employees signed union authorization cards At that meeting it was decided that the employees who attended the meeting and some five others who Gaskill had spoken to were to make discreet inquiry among the Company's employees to ascertain whether the employ- ees were interested in the Union. Gaskill held a second meeting on March 13, 1978. Twelve or thirteen employees attended that meeting which was held at the Red Carpet Inn They discussed the strategy of a union campaign. Gaskill told them not to contact any of the employees about joining the Union until after work on March 17, 1978. Four of the employ- ees who attended the meeting, Larry Ward, Gary Han- shue, Donald Pruitt, and Earl Perkins, agreed that they would work for the Union in the open. Gaskill told them that he would send a telegram to the Company naming them as union people. On March 16, 1978, Gaskill met at the Red Carpet Inn with the committee members that had been appointed at the prior meeting for what Gaskill described as a "kick off' committee meeting. Beginning the following day, union authorization cards were sought from employees by the committee people and on March 18 and 19 au- thorization cards were handed in to the Union. 4 Unless otherwise specified, reference to "the Company" in this deci- sion refers to the Company's operation of the Central Service Center On the morning of March 20 Gaskill went to the Cen- tral Service Center and demanded recognition from the manager of the center, Richard Allen Braun.5 Braun de- clined to recognize the Union. Later the same day Gas- kill sent a telegram to Braun again demanding recogni- tion. The telegram stated in part: "Service employees Larry Ward, Gary Hanshue, Earl Perkins and Donald Pruitt have requested that I officially inform you of their support of the IUE in order that they be fully protected under the law."6 Braun testified that he first became aware of the union activity on March 18, 1978, when his assistant Jim Jenson called to say that employee Gene Robinson had come into Jenson's office and asked whether he was aware that Larry Ward had been out getting authoriza- tion cards signed The Company concedes that it engaged in an active campaign to dissuade the employees from joining the Union. However, it takes the position that its campaign was within the ambit of Section 8(c) of the Act7 and that it did not violate the Act The General Counsel contends that the Company violated the Act on numerous occa- sions as specified in the various complaints. B. The Alleged Interrogation, Threats, and Similar Coercive Conduct 1. The alleged Interrogation of Haggard by Fitzpatrick Jerry Fitzpatrick, an admitted supervisor, is the Com- pany's employee relations staff assistant. During the week of February 21, 1978, Fitzpatrick held four meet- ings with employees in which he discussed employee benefits and spoke of the possibility of implementing a communications committee . Clareon Haggard" testified that after one of those meetings he had a conversation with Fitzpatrick in the hallway. He averred that he told Fitzpatrick that he did not think a grievance committee would do any good and that he felt a union was needed; that Fitzpatrick asked why he thought a union would do any good and said that a grievance committee would do just as well as a union, that he said he felt a union could get wage increases and other benefits; and that Fitzpa- trick said "Well, I would not say too much against Sears' policies and things because they can make it mighty hard on you if they want to." Haggard also testi- fied that during the meeting with the employees Fitzpa- trick had spoken of forming a grievance committee. A 5 Respondent admits and I find that Braun is a supervisor within the meaning of the Act B Subsequently , the Union filed a petition for an election in Case 16- RC-7707 A hearing was held on the petition and the Regional Director for Region 16 directed an election among the employees of the Company at the Central Service Center The election was conducted on June 14, 1978, but the ballots have not been counted r Sec 8(c) provides "The expressing of any views, argument , or opin- ion shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit " a Haggard was discharged by the Company and that discharge was al- leged to be a violation of the Act in the first amended charge in Case 16- CA-7941 That part of the charge was dismissed and the complaint does not allege Haggard's discharge to be violative of the Act SEARS, ROEBUCK & CO 237 number of other employees testified as to what was said at that meeting and all of them recalled that Fitzpatrick spoke about a communications committee . Haggard's tes- timony that Fitzpatrick used the expression "grievance committee" at the meeting was not credible Fitzpatrick in his testimony acknowledged that he had a conversation with Haggard shortly after an employee meeting in which the communications committee was discussed Fitzpatrick testified that Haggard had been manipulating the system and was not reporting his true worktime, and that in this conversation Haggard said that he was having a difficult time understanding compa- ny policy with regard to filling out such items as time- cards Fitzpatrick , in his testimony , flatly denied that there was any mention of the Union or about the Com- pany being rough on Haggard As between Haggard and Fitzpatrick I credit Fitzpa- trick At the February 12, 1978 meeting that Gaskill had with employees he asked them to make discreet inquiry as to union interest among employees By late February 1978 the active phase of the union campaign had not yet begun. It is not likely that at that time Haggard would have volunteered to a supervisor the information that he was supporting a union . Moreover, Haggard's testimony was inconsistent with his prior sworn statements When the trial in this case opened before a different administra- tive law judge, Haggard testified to the same conversa- tion but made no mention of the Company being hard on him. The General Counsel contends that the transcript was in error, but even if that is so the testimony in the trial before me was inconsistent with two affidavits that Haggard gave to the General Counsel In the first affida- vit Haggard averred that Fitzpatrick made a remark about the Company being hard on him because of a con- versation he had with the local personnel person in which he complained about benefits . In a supplemental affidavit he again went over his conversation with Fitz- patrick and averred that a union was mentioned . In that affidavit there was no mention of the Company being hard on him . Fitzpatrick was a convincing witness and Haggard was not. I credit Fitzpatrick. 2. The alleged interrogation of Hanshue by Fitzpatrick Outside service technician Gary Hanshue testified that on March 23, 1978, after a company meeting at which company supervisors campaigned against the Union he met Fitzpatrick in the hallway Hanshue averred that Fitzpatrick asked him why he was involved in all the union mess and that he answered that that was the way it was Fitzpatrick denied having any conversation with Hanshue concerning the Union and specifically denied that he asked Hanshue why he was messed up with the Union. I do not believe that Hanshue was a reliable witness. In other parts of his testimony his assertions were ex- tremely difficult to believe . As is set forth in detail below, one of the primary issues of this case is whether Shirley Seger was demoted from radio dispatcher to call taker because of her union activity or because she im- properly used a code known as "Mr . Sylvester" in the course of her radio dispatching . Company Manager Braun testified that he had no knowledge of the use of the code until shortly before the demotion and it became important for the General Counsel's case to establish that Braun knew of and tolerated the use of the code at an earlier date, which was prior to Seger's union activity. Hanshue testified that at a meeting well before the demo- tion he heard Company Manager Braun tell employees that they were taking up too much air time with non- sense and that he saw Braun point to Clancy Gadd and heard him say, "That goes for you too, Mr . Sylvester " Gadd was the individual who originally thought up the name Sylvester Clancy Gadd who was a fully credible witness averred that the incident never happened. Braun also credibly denied Hanshue's assertion. I believe that Hanshue was inventing material to bolster Seger's case and I therefore have grave doubts as to the reliability of the remainder of his testimony . I credit Fitzpatrick over Hanshue with regard to the alleged interrogation. 3 The alleged threat to Perkins and Ward by Hancock Ronnie Hancock , an admitted supervisor, is an inside lead technician for the Company He was a friend of service technician Curtis Larry Ward and often visited Ward's home. On March 19 , 1978, Hancock visited at Ward's home and had a conversation with Ward and em- ployee Earl Perkins 9 They spoke about a number of work-related matters and also discussed the Union Ward testified that during the course of that discussion Han- cock said that things were really going to get sticky with this union thing before it was over ; that Ward asked for whom, and that Hancock did not reply. Perkins corrobo- rated Ward's testimony. Hancock's version of the inci- dent was that he said that it would be a long, drawn out thing. I believe that Hancock was a more reliable witness than either Perkins or Ward and I therefore credit Han- cock's version of the incident . After listening to Perkins in detail and analyzing his testimony I have no confi- dence whatsoever in his veracity In other parts of his testimony he put words in the mouths of supervisors that I simply could not believe the supervisors said Thus he testified that on August 31, 1978, when he was given an annual employee evaluation by Manager Braun, Braun told him that he was getting a low rating on "adherence to company policy" because he was handbilling , having people sign union cards and testifying at the representa- tion hearing . That was after the complaint in the original case had been issued. Braun's denial that he made such remarks was fully credible . Other parts of his testimony regarding the discharge of Ward were also incredible. t o Perkins testified that during the first week of May 1979 he was standing outside the breakroom when he over- heard Supervisor McPherson tell Supervisor Al Potts: "so far Ward and Hanshue have slipped us every time, but I don't know if they're going to get out of this next 9 Ward and Perkins testified that Gary Hanshue was also there Though Hanshue testified at length he did not make any mention of that particular conversation Hancock recalled that Ward and Perkins were there 10 The discharge of Ward is discussed in detail below 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing we've got for them." Both McPherson and Potts very credibly denied having such a conversation. I be- lieve that Perkins invented the entire incident. In yet an- other matter, with regard to an attempt to bolster the al- legation in the complaint that he (Perkins) was laid off for union activity he testified that on December 1, 1978, Braun made a damaging admission to him as Braun was leaving the courtroom. That incident will be discussed in detail in section B,9, below and the facts will not be re- peated here. I do not believe that Perkins was truthful in regard to that testimony even though he was corroborat- ed by Ward and Hanshue. Rather, I believe that Ward and Hanshue's credibility was substantially sullied by their demonstrated willingness to reiterate Perkins' unre- liable testimony I' In sum, I credit Hancock with regard to the March 19 incident. 4 The events at Ward's house on March 31, 1978 On March 31, 1978, Hancock again came to Ward's home. Ward testified that Hancock asked him if he (Ward) was involved with the Union and that he an- swered that he was Ward also averred that Hancock said that the Company knew who was behind the Union; that he asked Ward whether Ward would tell him if he guessed correctly; and that Ward said he would. Ac- cording to Ward, Hancock guessed it was Ken Skala and Ward replied that he was incorrect and that it was him- self (Ward) and two other employees whom he would not name Hancock's version of the incident was substan- tially different. He testified that it was Ward who asked him if he knew who started the Union and if he would like to guess who started it; that he guessed it was Don Pruitt; that Ward said it was not Pruitt; and that he said if it was not Pruitt he did not know who it was. Han- cock testified that Ward said that Chuck Franklin had initially started the Union and then had walked away from it leaving others holding the bag. As between Hancock and Ward I credit Hancock. Ward had been identified as a union adherent in Gaskill's March 20 telegram to Braun . As a supervisor it was likely that Hancock would have known of that telegram, and it was unlikely that 11 days later he would have asked Ward whether Ward was involved with the Union. As set forth above I do not believe that Ward was a credible witness. I do not credit his assertion that Hancock asked him whether he was involved with the Union or that Hancock said that the Company knew who was behind the Union. Shortly thereafter, Hanshue came to Ward's house while Hancock was still there. Ward and Hanshue asked Hancock a number of questions about company policy. Hancock replied that he did not have any answers for them and that Manager Braun would talk to them any time they wanted to speak about such matters. Ward said that he would talk to Braun any time that he did not have to leave the arm chair he was sitting on in order to do so. Hanshue suggested that Hancock call Braun up right then. Hancock called Braun on the telephone and Braun came to Ward's house and spoke to Ward, Han- shue, and Hancock 12 Hanshue testified to the following- Hanshue told Braun that they were involved in the Union and that they were in too deep to back out so that Braun should not try to talk them out of it; Braun asked them why they were in- volved with the Union, Ward replied that it was because they did not have a say in anything that went on; Braun said that he knew who started the Union and he named several names; Hanshue said that Braun was not correct and that it was Franklin who had started it; Hanshue asked about wages and Braun replied that wages were based on an 18-month projection system and that he could not do anything because his hands were tied with the Union coming in; and they spoke about working con- ditions and Braun asked what it would take to make them happy. Ward corroborated Hanshue's testimony in substantial part. Braun's version of the conversation was substantially different. Braun testified to the following: Hanshue made critical remarks about supervisors and they discussed those remarks; Hanshue raised the subject of the Union and said that it was Braun's favorite, Chuck Franklin, who started the Union and then backed out and dumped the whole thing on them; Hanshue said that he had called Franklin out and if he saw Franklin stuck in quicksand he would put a rock on his head; Hanshue said that he was in it for the money and Hanshue quoted some figures that General Electric and other companies were paying, Braun said that Hanshue's figures were not correct; and Ward mentioned something about wages and Braun said that he was not going to talk about wages with them. As is set forth above, I have substantial doubts as to the reliability of the testimony of Hanshue and Ward. Braun on the other hand was an extremely credible wit- ness. His demeanor was such as to inspire confidence both in the accuracy of his memory and in his candor. I credit Braun and I do not credit Hanshue and Ward. The General Counsel has not established by a preponderance of credible evidence that during this conversation Braun interrogated those employees, created the impression of surveillance, or told them that the Company had failed to grant wage increases in retaliation for the employees having sought union representation. 5. The alleged offer of money by Kerlin to Ward to induce him to refrain from supporting the Union Gary Kerlin, an admitted supervisor, is an employee relations assistant for the Company. He is stationed in Dallas, Texas, and works under the Company's manager of employee relations Peter Kristovich. About April 7, 1978, Kerlin attended a meeting in which a number of supervisors spoke to assembled employees. After the meeting, Kerlin and Ward had a conversation in the hall- way. Ward testified that he mentioned the fact that Kerlin was spending a lot of time in Oklahoma City and 12 These findings are based on the credited testimony of Hancock To the extent that the testimony of Ward and Hanshue differed from that of u My observations on Hanshue's credibility are discussed above Hancock, I credit Hancock SEARS, ROEBUCK & CO. Kerlin responded that he had not seen his wife in 2 weeks; Ward said, "What can I say?" and Kerlin said, "What would it take to buy you off?"; Ward said, "I don't know. What you got?", Kerlin reached in his pocket and Ward turned away and left Kerlin testified that after the meeting he introduced himself to a number of employees including Ward. He averred that he engaged in some small talk in which Ward said that it must be tough on him to travel all the time and that he answered that he saw more of his family than he did when he was in a retail store because he had more time off He emphatically denied in his tes- timony that he ever asked Ward what it would cost to buy him off or that he offered Ward any monetary in- ducement to refrain from supporting the Union . He fur- ther averred that he remembered Ward's name and the incident because he had seen Ward's name on the tele- gram from Gaskill. Kerlin impressed me as a reliable witness and I have no reason to doubt his credibility other than the testimo- ny of Ward. As stated above I am unable to place great reliance on Ward 's testimony I credit Kerlin and I do not credit Ward. 6 The allegation that Kristovich told employees that if they went on strike the Company would not be obligated to rehire them after the strike was over Peter Kristovich is the Company's manager of employ- ee relations in an 11 -state area which includes Oklahoma He is stationed in Dallas, Texas. In early June 1978 Kris- tovich went to the Central Service Center in Oklahoma City and made a number of speeches to separate groups of 10 or 15 employees concerning the Union's organiza- tion drive . Haggard , Perkins, and Hanshue testified that at meetings they attended Kristovich made certain re- marks concerning the right of strikers Their testimony was far from consistent Haggard testified that at a meeting held about the first week of June 1978, an employee asked Kristovich what the Company could do about replacing employees who went out on strike and that Kristovich answered that the Company could hire replacements and after the strike was over the Company did not have to hire any of the striking employees back at all 13 Perkins testified that at a meeting in May an employee asked Kristovich what would happen if there was a strike and that Kristovich replied by saying that the em- ployees of Montgomery Ward had gone on strike with the same Union , that those employees had been replaced, and that they would not get their jobs back until the people who replaced them were either fired or quit. Per- kins averred that he then asked Kristovich to explain the difference between an economic strike and an unfair labor strike and that Kristovich told him to sit down be- cause he had already asked his share of questions. Hanshue testified that at a meeting the first week of June 1978 an employee asked what would happen if the 13 The complaint appears to be keyed to that testimony It alleges that about June 7, 1978, Kristovich threatened employees by telling them in effect that if they went on strike the Company would not be obligated to rehire them after the strike was over 239 Union decided to strike He averred that Kristovich ex- plained that in an economic strike replacements could be hired and that the striker would be put on a list to return when the replacement left but that in an unfair labor practice strike the striker would be off the payroll and would have no opportunity to get the job back Kristovich in his testimony averred that he never told the employees that the Company did not have to rehire strikers. He also averred that no one ever asked him to explain the difference between an economic and an unfair labor practice strike and that he did not explain the difference 14 Kristovich testified that he told the em- ployees at the various meetings that strikes could happen when a union was part of the equation . He acknowl- edged that he spoke about striker replacements but that he also told the employees that as the replacements left the employer had the responsibility to notify the strikers that there was a job vacancy for them. He averred that he told them that when a replacement left, a striker could come back and that he described a situation with Montgomery Ward where that had occurred. I credit Kristovich and I do not credit Haggard, Per- kins, and Hanshue. I find that the General Counsel has not established by a preponderance of the credible evi- dence that Kristovich threatened employees that if they went on strike the Company would not be obligated to rehire them after the strike as alleged in the complaint. 7. The allegation that Braun prohibited an employee from talking about wages because of that employee's union activity The receiving department at the Central Service Center is restricted to parts department employees. On August 3, 1978, when Company Manager Braun went into the receiving department he saw Perkins sitting with his foot on the desk . Perkins had gone there to ask parts department employee Clara Harper if she wanted him to pick up something for lunch. Braun asked which of them was working . Harper said that she was and Perkins said that he was going out to lunch Perkins then left. Perkins testified that shortly thereafter Braun ap- proached him and told him that his services were not re- quired in the parts receiving area and to stay away from his "nigger girlfriend" (Clara Harper is a black parts de- partment employee). Braun in his testimony adamantly denied that he ever referred to Harper as a "nigger" or that he ever told Perkins to leave his "nigger girlfriend" alone. I credit Braun and I do not credit Perkins Later that day Perkins told other employees that Braun had called Harper a "nigger" and employees re- ported that back to Braun after a considerable disturb- ance had occurred among the black employees in the parts department. Braun held a number of interviews and confronted Perkins with the matter. Braun 's investigation led to a memorandum of deficiency interview being put in Perkins' file which stated that Perkins had caused a disturbance throughout the department and had upset morale of employees as well as production On August 4 14 It is noted that the first week in June 1978 was before the first unfair labor practice charge was filed 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Braun read that deficiency memorandum to Perkins. Per- kins testified that Braun told him that if he was seen out of his work area in the parts receiving area talking to employees about wages, holding up production, and not doing his job that he would be fired. Perkins averred that he replied by saying that Braun was doing it because of his union activity and that Braun said it had nothing to do with the Union Braun testified that he told Perkins that he (Perkins) was not supposed to be in the receiving department which was an unauthorized area for him and that he was not to be in any area while other people were working; that Perkins said that he was only there to get her a sandwich; and that he (Braun) replied that he did not care what Perkins was asking her, that she was working, and he was not15 and that Perkins should not be in areas while other people were working. I credit Braun and I do not credit Perkins. Perkins' ac- tivities with regard to the August 3 and 4 incident did not involve anything related to the Union and there is no indication that any supervisors thought they were union related. The evidence falls far short of establishing that Braun prohibited Perkins from talking about wages be- cause of Perkins' union activity as alleged in the com- plaint. 8. The incidents involving Robinson a. Background Eugene Robinson was employed by the Company from August 1969 until November 14, 1978, when he was discharged because of the Company's belief that he falsified company records. Robinson was actively antiun- ion. It was Robinson who about March 18, 1978, first in- formed company management that Ward was circulating union cards Robinson, at his own expense, went to an attorney on about March 24 to have a petition prepared saying that the employees did not want to be represented by the Union. He actively circulated that petition and sought signatures on it from employees After Robinson was discharged for allegedly falsifying company records, two charges were filed concerning his discharge. It ap- pears that both were dismissed because there is no allega- tion in the complaint that the discharge was unlawful. He gave his testimony after the discharge and at a time when it is likely that he felt that his loyalty to the Com- pany had been rewarded with a termination notice. He was obviously hostile toward the Company at the time of his testimony. Robinson testified that in a number of ways supervisors encouraged him to circulate the antiun- ion petition and rewarded him for doing so. 15 Braun also averred that he referred to a prior conversation they had a few weeks before In that incident two employees came into Braun's office asking about wage increases and saying that Perkins had given them some information on how the Company arrived at raises A few days later Braun told Perkins that if employees had questions about annual increases they could go to the personnel office and get the proper advice because a couple of people had come to him with wrong informa- tion that Perkins had given them b The alleged statements of Braun and the grant of a loan to Robinson About March 23, 1978, Robinson came into Company Manager Braun's office and said that he did not want the Union Robinson asked what he could do and Braun re- plied that he could not advise Robinson what he could do but that Robinson did have the same rights as those who were for the Union. Robinson testified that in the conversation he asked Braun about getting up an anti- union petition and that Braun replied by saying that he could not tell Robinson what to do but that he was not going to tell Robinson not to do it . Braun in his testimo- ny denied that anything was said about a petition and averred that he did not know anything about such a peti- tion until he received a letter from Union Representative Gaskill dated March 31, 1978, which stated that an out- side technician had been observed circulating an anti- union petition on company time and that the Union ex- pected the same privileges to be given to union support- ers.rs Robinson testified that on March 27 Braun spoke to him in the hall and asked him how he was doing on the petition, and that he said it was coming along rather well. He also averred that on March 30 he picked up the petition and showed it to Braun who read it and said, "Remember, I haven't seen this." Robinson testified that sometime between April 3 and 7, 1978, Braun asked him how much he paid for the petition; Robinson said $75; and Braun said to pass the word around and maybe somebody would help him with the expenses. He averred that about April 20 he took the petition with about 116 signatures to Braun's office and showed it to him and Braun said that he had been working hard and handed the petition back to him.'' The last conversation that Robinson testified to concerning the petition was on May 11, 1978, when according to Robinson he asked for a loan from the Company and Braun said that Robinson had done him a favor and he would do one for Robin- son. Braun denied the substance of Robinson 's testimony and averred in effect that he only had one conversation with Robinson concerning the petition. According to Braun, Robinson came into his office on April 7 and said that it was going well; Braun at that time knew of the petition and assumed that Robinson was talking about the petition; and Braun said that he did not want to hear about it and told Robinson to get out of the office. I believe that Braun was a more credible witness than Robinson . As stated above, Braun's demeanor on the stand made his testimony very convincing . I had reserva- tions concerning Robinson. He was a disgruntled former employee who had a bias against the Company. When it suited his interest he attempted to curry favor with the Company by voluntarily and without being solicited in- forming the Company about the union activities of a fellow employee. When he felt hostile toward the Corn- 16 Braun credibly testified that he called a meeting of supervisors in which Fitzpatrick told them that worktime was for work and no one was to work for or against the Union or circulate for or against the Union during work hours 17 About April 24, 1978, Robinson took the petition to the state labor board where he was told that the petition was worthless SEARS, ROEBUCK & CO 241 parry he testified against it He admittedly requested a loan for transportation money for himself and his wife when his father died and then kept the full loan even though his wife did not go with him. His testimony con- cerning prior salary advances and loans was so confusing and contradictory as to indicate an attempt at obfusca- tion. In addition, Robinson testified concerning conversa- tions with Fitzpatrick and McPherson as described below which were contradicted by those two witnesses Both Fitzpatrick and McPherson appeared to be credible witnesses. I credit Braun and I do not credit Robinson. The Company has a policy of granting employees salary advances and loans. The salary advances are taken back by the Company from the following week's salary. Loans are granted when the employee shows that he has a legitimate reason for wanting a loan. The loans are paid back over a longer period of time. The company manager has authority to grant loans up to $500 but amounts larger than that have to be cleared by a group office The complaint alleges that the Company rewarded an employee (Robinson) on May 11, 1978, for his antiunion activity by approving a loan for him. However, that alle- gation is refuted by company records and the credible testimony of Braun which establishes that Robinson was treated substantially the same with regard to loans both before and after he engaged in antiunion activity. Robin- son had a long history of applying for salary advances and loans with the Company. He received loans on De- cember 8, 1976, and June 1, and July 31, 1978. He re- ceived salary advances on March 1, May 25, and June 13, 1977, and on March 31 and April 21, 1978 Each of the loans and salary advances were for less than $500. The only loan that Robinson requested that was not granted was one for $746 on July 28, 1978. On that occa- sion Braun told Robinson that his (Braun's) top limit for a loan was $500 but that Robinson could talk to the unit manager. A few days later Robinson came back and said that he had been able to obtain $400 from friends and that he still needed $346. The $346 loan was granted on July 31, 1978 I find that the General Counsel has not es- tablished that Robinson was granted a loan because of his antiunion activity. c. The alleged remarks by Fitzpatrick and McPherson Robinson testified that on March 21 he had a conver- sation with Supervisor Fitzpatrick outside of Braun's doorway He averred that Fitzpatrick said that Robinson had "saved everybody's ass" by telling Braun about the cards that Ward was circulating, that the Company ap- preciated what he had done, and that the Company would be looking closely at him for doing it Fitzpatrick testified that he did not have any conversation with Rob- inson concerning the Union in 1978 and he specifically denied making the statements attributed to him by Rob- inson I credit Fitzpatrick and I do not credit Robinson. Robinson testified that about April 6, 1978, he had a conversation with Supervisor McPherson in which McPherson asked him how the petition was coming, and said that the Company was looking for a supervisor and it might be a good opportunity for Robinson According to Robinson, McPherson said that the Company was looking for people with drive, that people who wanted the Union just wanted to gripe and ride along with ev- eryone else; and that the Company was looking closely at what Robinson was doing against the Union Robinson also averred that McPherson picked up the petition, looked over the names, and said that Robinson was doing a real good job and should hang in there. McPherson in his testimony denied the remarks attrib- uted to him by Robinson McPherson testified as follows About March 31, 1978, Braun told McPherson that Rob- inson was spreading an antiunion petition and that it was not to be done on company time About a week later McPherson, who was Robinson's direct supervisor, spoke to Robinson on the telephone when Robinson called in from a customer's home During that conversa- tion Robinson told McPherson that he (Robinson) had an antiunion petition. McPherson told Robinson in sub- stance that he could not circulate it on company time. McPherson averred that he never discussed the Union with Robinson other than in that phone conversation about the petition McPherson did have a conversation with Robinson re- garding supervisors Robinson, who is black, complained about there being no minority supervisors and spoke about an NAACP investigation. They discussed which black employees might want to become supervisors but Robinson did not say that he was one of them I credit McPherson and I do not credit Robinson. Perkins testified that about March 28 or 29, 1978, he saw Robinson circulating the antiunion petition on com- pany premises during working time when Supervisor Jim Williams was about 20 feet away. Robinson also testified that for about 5 seconds he was soliciting an employee to sign a petition while Williams was standing less than 6 feet away. Williams credibly testified in substance that he did not observe any such incident. The General Counsel has not established that the Company knowingly permit- ted Robinson to circulate the antiunion petition on com- pany time and property 9. The alleged December 1, 1978 threat to Perkins because he appeared to testify Company Manager Braun together with Company Of- ficials Kristovich and Fitzpatrick, and Company Attor- ney Grove attended the hearing on December 1, 1978. Perkins, Hanshue, and Ward also attended that hearing As Braun, Kristovich, Fitzpatrick, and Grove were wait- ing for the elevator to leave the courthouse, Perkins, Hanshue, and Ward came out of the elevator and walked past them Braun was the last one to get on the elevator and as he passed Perkins there was a short conversa- tion '8 Perkins, Hanshue, and Ward all testified in sub- stance to the following Perkins said to Braun, "Boy, that's round one"; Braun responded, "Yes, you'll be sorry, smart ass", Hanshue called Braun an asshole, and Braun walked away Braun testified that as he passed Perkins, Perkins said, "That was round one" and that he 18 Kristovich, who had walked ahead with Fitzpatrick and Grove, tes- tified that he did not hear the conversation Fitzpatrick and Grove did not testify concerning it 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Braun) simply replied, "I'm sorry" He averred that nothing else was said, that he did not say, "You'll get yours, smart ass" and that he did not hear himself re- ferred to as an "asshole." Braun testified at great length throughout the hearing and I had an opportunity to observe his demeanor for a sustained period of time. Even under the substantial pres- sures of the trial he was completely self-possessed It was also apparent that he is a very intelligent individual On March 1, 1978, he was leaving a trial at which his com- pany was being accused of unfair labor practices He was in the presence not only of his attorney but of high rank- ing company officials In those circumstances he would have had to have completely lost his composure in order to have threatened Perkins in the presence of witnesses. It is extremely difficult to believe that this unflappable man so lost his composure at Perkins' reference to "round one" that he would make a damaging admission Also if Perkins, Hanshue, and Ward are to be believed, Braun lost his head when Perkins mentioned "round one" but retained his composure a second later and merely walked away when Hanshue called him an as- shole Perkins was being considered for layoff at that time and he was laid off 4 days later on December 5, 1978 I simply do not believe that Braun would have given ammunition to Perkins for an unfair labor practice charge at that time Braun impressed me as a credible witness and Perkins, Hanshue, and Ward did not. I credit Braun and I do not credit Perkins, Hanshue, or Ward. In sum, I find that the General Counsel has not estab- lished by a preponderance of the credible evidence that the Company violated the Act as alleged in paragraphs 8(a) through (1) of the complaint as amended in Cases 16-CA-7941 and 16-CA-8047, or in paragraph 7 of the complaint in Case 16-CA-8212 C. The Communications Committee As is set forth more fully above, on February 12, 1978, Union Representative Gaskill met with 5 or 6 employees at a meeting at which it was decided that some 10 em- ployees would make discreet inquiries among the Com- pany's employees to ascertain whether they were inter- ested in the Union During the week of February 20, 1978, the Company's employee relations staff assistant Fitzpatrick, who is stationed at the Dallas headquarters, held a series of meetings with employees of the Central Service Center at which he discussed various employee benefits. At the first few meetings he mentioned the pos- sibility of setting up a communications committee. During that week he discussed the matter with Company Manager Braun and Braun made the decision to institute such a committee At the remaining meetings with em- ployees, Fitzpatrick told them that the communications committee would be established Both Braun and Fitzpatrick testified that at the time the decision to form the communications committee was made they did not have any knowledge that there was union activity at the Central Service Center 19 As of the 19 The Union did not hold its "kickoff' committee meeting until mid- March 1978 and it was only after that time that employees solicited au- thorization cards from other employees Braun testified that he was un- date on which the decision was made to form the com- munications committee, the Union's organizational activi- ties were'still secretive and were intentionally being kept from observation by the Company. Those activities were not of such a nature as to give rise to an inference that the Company gained knowledge of them 20 The General Counsel attempted to establish knowledge of union activ- ity through the testimony of employee Donald Pruitt, who testified to the following incidents In November or December 1977 employee Skala was talking to several technicians in the presence of Hines2 i and Pruitt in a coffeeshop. In the context of speaking about problems with vacations and holidays, Skala said that if they got a union in there they would not have to put up with what they were having to go through Hines said something to the effect that that was the way it was. During the week of February 13, 1978, Pruitt had a conversation with Hines in a restaurant Hines said that Braun had request- ed him to get some of the technicians and find out about some problems they had concerning vacations and days off. They discussed those problems Then Pruitt asked Hines what the rumors were that they heard about a union and Hines replied that it was probably something that Skala had stirred up but it was nothing to worry about I am somewhat skeptical concerning Pruitt's testimo- ny. Pruitt was one of the early union activists and his name was mentioned as a union adherent in Union Rep- resentative Gaskill's telegram to Braun of March 20, 1978. It is unlikely that Pruitt would have asked a super- visor about the status of the Union during the week of February 13, which was shortly after Gaskill had told the union supporters to make discreet inquiries of other employees. Hines took the witness stand but did not deny Pruitt's assertions and I therefore credit Pruitt's tes- timony However, Pruitt's testimony does not establish that Hines, Braun, or Fitzpatrick knew that there was an active union campaign at the time the decision was made to form the communications committee. At best it shows that there had been some generalized talk about a union for some time and that Hines did not take such talk seri- ously 22 Fitzpatrick testified that he had no knowledge of any union activity at the time the communications committee was established and in effect that the communications committee could not have been set up as an alternative aware of union activity until March 18, 1978, when employee Robinson informed Supervisor Jim Jenson that Larry Ward had been out getting authorization cards signed Fitzpatrick testified that he had no knowledge of union activity until after that date 20 Cf K & B Mounting, Inc, 248 NLRB 570 (1980), Maniac Corp, 231 NLRB 858 fn 2 (1977) There was no testimony as to the number of em- ployees employed by the Company The Charging Party in the original charge states that the number was 140 21 Hines is an admitted supervisor 22 Haggard testified that in late February 1978 Fitzpatrick said some- thing to the effect that a grievance committee would do as well as a union That incident is discussed above in sec B,1, and as is set forth there I credit Fitzpatrick's denial that he made that statement Perkins testified that at a March 20 meeting Fitzpatrick, in the context of speak- ing about the Union, said that he realized there was a communications breakdown and that there might be a possible solution in the formation of the communications committee I do not credit Perkins SEARS, ROEBUCK & CO to union organization because the Union was not in the picture The General Counsel spent a great deal of time examining Fitzpatrick in an attempt to get an admission that a communications committee can be a substitute for unionization Fitzpatrick testified that to the extent that a communications committee opens better channels of communication and brings management's attention to problems the employees have there is less need for a labor organization. He averred in substance that the communications committee could make union representa- tion less attractive to employees but only in the same sense that a good benefit and compensation program makes a union less attractive. His testimony is clear that the communications committee was not keyed to the Union's activity because he did not know of that activi- ty. The balance of his testimony, when read as a whole, indicates that he was answering questions concerning theoretical possibilities rather than the actual situation at the Central Service Center. A nonunion employer does not per se violate the Act if it provides good wages and has effective communications with its employees, even though it hopes that its employment policies will lead to a satisfied work force that will not be interested in unionization. For an employer to violate the Act, there has to be a nexus between particular union activity and employer action to interfere with that activity through the manipulation of wages or similar matters. In the in- stant case if Braun and Fitzpatrick are credited with regard to their denial of knowledge of any union activi- ty, the General Counsel will have failed to have estab- lished a nexus between the union activity and the forma- tion of the communications committee. The timing of the decision to form the communica- tions committee was certainly suspect It occurred about a week after Gaskill sent employees to make discreet in- quiry concerning the union interest of other employees. The Company contends in substance that the timing was purely coincidental Fitzpatrick testified that he came to the Central Service Center at the request of local man- agement because there had been a number of recent changes in the profit-sharing and pension plan and that employees had been asking questions about those matters that local management thought he should answer He averred that during those meetings employees asked him a number of questions relating to local matters such as problems between parts department and outside service technicians and that he decided that a communications committee could be useful. He told Braun that the em- ployees did not understand each other's jobs and that at other facilities they had communications committees so that there would be more understanding when problems arose The Company already had communications com- mittees established in Denver, Colorado; Lincoln, Ne- braska; Tulsa, Oklahoma; and Dallas, Texas The one in Tulsa had recently been established. Braun decided to set up such a communications committee and contacted a number of other facilities where a committee existed to obtain additional information. Considering all the factors set forth above, I conclude that the testimony of Brau and Fitzpatrick to the effect that they did not know of any union activity at the time the decision was made to establish the communication 243 committee was credible. I further find that the establish- ment of the communications committee by the Company was not intended to interfere with the union activities of the Company's employees.23 Still left for consideration is the question of whether or not the communications committee was a labor organiza- tion within the meaning of the Act. It was created by the Company for company purposes and if it was a labor or- ganization then the Company violated Section 8(a)(2) of the Act by dominating it. The structure, function, and activities of the communications committee must there- fore be considered There are 10 different departments at the Central Service Center. Braun set up the communications com- mittee so that one employee from each of the depart- ments would meet with him at two successive communi- cations committee meetings. A rotating system was used so that each employee in each department would have an opportunity to sit in on two such meetings The em- ployee members of the communications committee were paid by the Company for the time they spent at the meetings. Fitzpatrick testified that the communications commit- tee was established to help resolve intrahouse problems such as difficulties which arose between the parts depart- ment and outside technicians. Kristovich testified that the communications committee was a vehicle to discuss such matters as uniforms, tools, and equipment Braun testified that the communications committee was de- signed to help employees understand each other's jobs so that there would be more understanding when a problem arose. The first communications committee was held on May 5, 1978. Six additional meetings were held between then and March 16, 1979. Notes of those meetings were taken by a clerk from the personnel office Those notes were put in question and answer form and posted on the em- ployee bulletin board. The notes of those meetings, to- gether with the credible testimony of Braun, tend to sup- port the testimony of Fitzpatrick, Kristovich, and Braun concerning the purpose of the meetings Braun credibly testified that at some of the meetings employees raised matters relating to wages and benefits and that he con- sistently refused to discuss such matters.24 Braun credi- bly averred that there were discussions at the meetings of such matters as problems related to technicians having difficulty getting the right kind of parts and problems re- 23 The complaint does not specifically allege that the formation of the committee was an interference with employee rights However, that matter has been fully litigated and I have therefore considered it The test of interference with 8(a)(1) rights turns on whether a company's conduct reasonably tends to interfere with those rights Generally, the question of a company's motive is immaterial Hanes Hosiery, Inc, 219 NLRB 338 (1975) However, with regard to changes in such matters as conditions of employment an employer has a legal duty to proceed as it would have done had the union not been in the picture McCormick Longmeadow Stone Co, 158 NLRB 1237, 1246 (1966) As the Company made the deci- sion with regard to the communications committee at a time when it did not know of the Union's organizational activity, the Company must have made that decision as if the Union had not been in the picture 24 Perkins and Ward testified concerning some of the discussions at communications committee meetings I do not believe their testimony was reliable and I do not credit it where it conflicts with that of Braun 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lating to the leaving of parts in such a way as to block entrance to an office. The record of this case contains voluminous notes of what occurred at the meetings A typical notation is 16-CA-8047 that allege that the Company violated Sec- tion 8(a)(2) of the Act be dismissed D The Evaluation of Perkins and His Layoff Problem- Technician should have training on the new lines of mdse Very embarrassing to tech to go into a customer's home and not know anything on the new line of mdse. Solution Representatives are now beginning to come in and familiarize techs with the new lines of mdse. Section 2(5) of the Act defines "labor organization" as "any organization of any kind, or any agency or employ- ee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning griev- ances, labor disputes, wages, rates of pay, hours of em- ployment, or conditions of work." In NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), the Supreme Court found that the term "dealing with" encompassed more than the usual concept of collective bargaining. Howev- er, in applying the Cabot Carbon decision the Board has held that not all grievance committees or communica- tions committees that deal with employers are labor or- ganizations within the meaning of the Act In John As- cuaga's Nugget, 230 NLRB 275, 276 (1977), the Board held that an employee's council did not "deal with" man- agement but rather performed a function for manage- ment in resolving employee grievances In Mercy-Memo- rial Hospital, the Board held that an employee's council did not "deal with" management but rather performed a function for management in resolving employee griev- ances. In Mercy-Memorial Hospital Corp, 231 NLRB 1108 (1977), the Board held that a grievance committee was not a labor organization when it was created to give employees a voice in resolving the grievances of their fellow employees at the third level of a grievance proce- dure oy deciding the validity of the employee's com- plaints and the appropriateness of the disciplinary reac- tion. In the instant case the communications committee dis- cussed matters related to work performance Many of those matters could have a direct impact on working conditions. The ease with which a technician could obtain parts could affect his working condition as could the question of training technicians However, the evi- dence in the record establishes that the communications committee was used as a management tool that was in- tended to increase company efficiency The communica- tions committee was not an employee representative or advocate The committee did not deal with the Company on behalf of the employees. The employees on the com- mittee were not 'selected by their fellow employees and they did not represent their fellow employees. All the employees, on a rotation basis, were to participate in meetings with management to give input in order to help solve management problems. I therefore find that the communications committee was not a labor organization within the meaning of the Act and I recommend that those parts of the complaint in Case 16-CA-7041 and 1. Perkins' union activity Earl Perkins was active on the Union's organizational committee since late February 1978. He solicited authori- zation cards for the Union, openly distributed campaign literature for the Union, and testified on behalf of the Union in the representation case and the unfair labor practice cases. He was one of the four employees who were identified as union adherents in Union Representa- tive Gaskill's March 30, 1978 telegram to Company Manager Braun The Company acknowledges that it knew since March 20, 1978, that Perkins was an active union adherent. 2. Perkins' work history Perkins was first hired in August 1971. After some time he left the Company's employ and then resumed employment in February 1973 when he became a lawn- mower repair technician. Thereafter he worked in the Company's gasoline engine shop and for some periods of time in a mini service center Sometime between January and early February 1978 he was an acting supervisor. He received some limited formal training from the Company but he signed up for several courses that he never com- pleted. He occasionally accompanied outside technicians but his skills in their type of work was limited and his primary function was to help move things. He received a number of pay raises during the course of his employ- ment. On some occasions he received praise for his work and on others criticism but the Company does not con- tend that on an overall basis he was other than a satisfac- tory employee. In an affidavit he gave to the General Counsel, Per- kins averred that the only time he received any discipli- nary action was on August 3, 1978, when he was given a written reprimand. While on the witness stand he testi- fied that he never received a deficiency memo prior to that date. Both the affidavit and the testimony are palpa- bly untrue On March 26, 1975, he received a memo con- cerning his being tardy eight times in January and Febru- ary and warning him that such conduct could lead to dismissal. About December 20, 1976, he received a memorandum of deficiency interview relating to an inci- dent in which he did not return to work after leaving for lunch and did not notify the Company. On December 11, 1976, or 1977,25 he received a timecard violation for checking in late or leaving early without writing on his timecard. On February 5, 1977, he received another timecard violation for the same offense On August 4, 1978, Perkins received a memorandum of deficiency interview for causing a disturbance throughout the department and upsetting the morale of the employees as well as production. That incident re- 25 The company records concerning this incident did not indicate the year but Perkins testified that the incident occurred while he was at the mini service center which would be 1976 or 1977 SEARS, ROEBUCK & CO lates to Perkins' statement to employees that Braun had told him to leave his "nigger girlfriend" alone It is dis- cussed in detail in section B,7, above As found there, the deficiency memo was not related to any protected activi- ty of Perkins. 3. The evaluation of Perkins on August 31, 1978 The complaint in Case 16-CA-8218 alleges that in August 1978 the Company issued an unfavorable work performance evaluation to Perkins because of his union activity. The Company gives an annual employee review to its employees It uses a form which lists seven separate per- formance elements. A numerical rating system is used which ranges from 1 for poor performance to 7 for out- standing performance, except for the category of adher- ence to company policies where the rating system goes from 1 through 4 (meets requirements of the job). In ad- dition, written comments are made on the form. Compa- ny records show employee reviews were given to Per- kins in August 1972, August 1973, May 1975, August 1976, August 1977, and August 1978. A different num- bering system was used prior to 1976. Five rating items were listed which were production, work quality, per- sonal presentation, relations with others and dependabil- ity. The numbering system went from I for outstanding to 5 for poor In 1972 Perkins was rated 3 which was average on all rating categories His supervisor made the comment on the report that Perkins had done a very good job and that the supervisor expected to give him more responsibility as time went on. The report for 1973 again listed Perkins as 3-average in all categories, the comment by his supervisor was that Perkins had been taking care of quick service at the stores in the summer as a gas engine technician and they had talked about pro- duction and other phases of service The 1975 review did not list any numbers to rate Perkins and the supervisor's comment was that Perkins was working quick service on mowers and had done a good job but needed improve- ment on paper work. The 1976 rating was on the new form. Perkins was given a 5 (partially exceeds require- ments of the job) on job knowledge, quality of work, public contact/service to others, working relations, and response to work demands. He was given a 6 (outstand- ing performance) on productivity and a 3 (partially meets requirements of job) on adherence to company policies. The comments on all of the elements other than adher- ence to company policies were laudatory With regard to adherence to company policies, the comment was made that Perkins was lacking in that area but that after a little talk he was about average again and improving. The overall comment by the supervisor on the evaluation was that the supervisor felt that Perkins had a lot of hidden potential and that he should take more training courses and show more initiative in other matters In the 1977 review Perkins dropped from a "6" to a "5" on produc- tivity and was given the same ratings he had received in 1976 on all the other performance elements The com- ments on the performance elements were all favorable. The supervisor's overall comment was that Perkins had a lot of good ideas but somehow lacked the initiative to put them in action. 245 For a substantial time in 1978 Perkins worked in a mini service unit and he was reviewed by Supervisor Lock. That was the second occasion on which Perkins had been reviewed by Lock All the other reviews had been given by different supervisors The first review by Lock was in 1973 and as stated above Lock rated Per- kins average on all of the rating categories and comment- ed that he had spoken to Perkins about production and other phases of service. The 1978 rating was quite con- sistent with Lock's opinion of Perkins as expressed in the 1973 review. Lock rated Perkins with a 4 (meets requirements of the job),26 on job knowledge, quality of work, and public contact/service to others With regard to job knowledge Lock commented that Perkins had the neces- sary knowledge to repair gasoline equipment but that he needed training in other areas by way of cross-training. With regard to quality of work Lock commented that Perkins could improve the quality by concentrating. With regard to public contact Lock noted that Perkins needed to apply himself to a greater degree. Lock rated Perkins with a 3 (partially meets require- ments of the job)27 on productivity and response to work demands. With regard to productivity Lock noted that Perkins needed to improve to bring out the potential that he was capable of. With regard to response to work demands Lock noted that Perkins had the capability to handle the area but needed to apply himself Lock rated Perkins 2 (below requirement of the job)28 on working relations and adherence to policies. With regard to working relations Lock noted that Perkins seemed to have problems and had to improve his atten- tion and concentration to bring him to potential. With regard to adherence to company policies Lock noted that Perkins needed to improve in various areas. He mentioned attendance, breaks, and tardiness. Perkins discussed the employee evaluation with Lock on August 31, 1978. Lock told Perkins that the evalua- tion was made before his transfer from the mini service department in July 1978 and that if Perkins felt the eval- uation was not accurate he could discuss it with Braun. Perkins said that he felt that he was graded too low on productivity and response to work demands. Lock sug- gested he talk to Braun. That afternoon Perkins com- plained to Braun about the evaluation Braun reviewed the evaluation with him line by line, With regard to job knowledge and quality of work Perkins had no com- plaint with the rating. Perkins said that he was not satis- fied with the 3 rating for productivity and he pointed out that supervisors gave him various jobs to do. Braun said that he thought Perkins had a point and he changed the rating from 3 to 4. Perkins appeared satisfied with that. 26 The explanation of this comment on the form is "consistently satis- factory, acceptable, adequate on all aspects of the element No particular problems on the element, generally no cause for concern, though im- provement is desirable " 27 The explanation of 3 was generally satisfactory, but sometimes below, below job requirements on some , but not most, aspects of the ele- ment, some slight improvement is necessary to meet job requirements 28 The explanation states generally less than satisfactory, below job re- quirements on most aspects of the element, considerable improvement is necessary to meet job requirements 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perkins was also satisfied on the rating for public contact/service to others. The next item discussed was working relations. They discussed the fact that Perkins complained in front of others about management's deci- sions and Braun said that if Perkins did not agree with management decisions that he should complain to him (Braun) and not to disturb the whole group. They went on to response to work demand and Perkins said in effect that it was not fair. Braun changed the rating from 3 to 4 The last item discussed was adherence to company policies Braun reminded Perkins of his attendance sheets and his long breaks and Perkins agreed with the rating. These findings are based on the credited testimony of Braun. Where the testimony of Perkins conflicts with that of Braun I do not credit Perkins. Perkins testified that in discussing adherence to company policy Braun said that it was pretty obvious that Perkins did not agree to company policy, that he had been handbilling the place, supporting outside interference and "stuff like that." Later in his testimony Perkins testified that Braun also spoke about Perkins' handbilling, having people sign union cards and testifying at the representation hearing as examples of Perkins not showing loyalty to the Com- pany. Yet further in his testimony he added that Braun said that Perkins and the three men on the telegram were not adhering with company policy because they ex- pressed support for an outside party This interview oc- curred 2-1/2 months after the original charge in Case 16-CA-7941 was filed. Braun knew that Perkins was a key union supporter because Perkins had been named in Gaskill's telegram. He also must have known that Per- kins would likely be a key witness against the Company I find Perkins' testimony to be totally incredible. I credit Braun's version of the conversation. The review form contains a space for employee com- ments. In that space Perkins wrote and signed the fol- lowing comment: "When first briefed on these ratings, I did not agree with some of them but was given a fair op- portunity to discuss these and I feel that these are fair." Perkins was an employee with a somewhat mixed em- ployment record. In 1973, prior to any union activity, his supervisor gave him what can only be described as a me- diocre rating . He was next rated by the same supervisor in 1978 when he worked for a long period under that su- pervisor. Again the supervisor gave him a mediocre rating. Perkins complained to Manager Braun about the rating and Braun raised the ratings in two major catego- ries. Braun appeared to be giving Perkins the benefit of any doubt rather than attempting to punish him for his known union activity. At that time Perkins expressed sat- isfaction with the final rating. Considering all of the fac- tors set forth above I find that the General Counsel has not established by a preponderance of the credible evi- dence that the Company gave Perkins a poor rating be- cause of his union activities and I recommend that that allegation of the complaint be dismissed. 4. The layoff of Perkins a. Facts Perkins was laid off on December 5, 1978. On March 19, 1979, he was recalled to the same job with the same rate of pay and benefits. The complaint in Case 16-CA- 8218 alleges that Perkins was laid off because of his union activity and because he gave testimony under the Act.29 The Company contends that a series of layoffs were required by business considerations and that Per- kins was selected because he had the lowest seniority in the gasoline engine shop. There is no contention that Perkins' work record or the evaluations of his work had anything to do with the layoff. The Central Service Center is in the business of repair- ing appliances which have been sold by the company stores. During 1977 the stores had engaged in a very ex- tensive promotional program that resulted in a large sales volume with an extremely poor profit picture. The system was changed in early 1978 but it took a number of months to implement the change and by July 1978 the Company was experiencing serious sales decreases. As early as February 1978 Company Group Operating Man- ager William Martin met with Braun and discussed the need to cut expenses and save payroll costs. By July 1978 sales were down almost 9 percent relative to the same month the previous year at the three stores whose products the Central Service Center worked on. In August the sales decrease was 11 percent, in September 14 percent, October 18 percent, November 22 percent, December 21-1/2 percent, and January 1979 17.28 per- cent in those stores In mid-October 1978 Martin received a poor profit report concerning the service department for the prior month. He met with Braun on October 18 and reviewed the previous month's performance and expenses. He told Braun that Braun was going to have to cut expenses im- mediately and that a minimum of $10,000 to $12,000 a month was going to have to be cut from his Central Service payroll so that they could continue the operation without going too much into the red At the same time that he was asking Braun to reduce payroll, payroll was being reduced in the retail stores. A reduction in force was put into effect throughout the Company's entire op- eration. The procedure was discussed with Braun begin- ning about February 1978 and at least twice a week during March, April, and May 1978 30 By late July 1978 Braun began to take action to cut costs. At that time there was a mint service unit located at the Sequoia store where Perkins was repairing lawn- mowers on a full-time basis. Braun decided that the same job could be done with a part-time person and he brought Perkins back to the Central Service Center. An electronic repairman who worked at the mini service unit retired and that repairman was not replaced. By the first part of October Braun knew that he had to take fur- ther action to reduce expenses and the heaviest expense the Company had was payroll. He adjusted his work staff and reassigned a number of employees who had 29 Perkins was present in the courtroom and was ready to give testi- mony at the hearing on November 30 and December 1, 1978 He did not actually take the stand on those days He did testify at the representation case hearing in Case 16-RC-7707 on April 25, 1978 10 Reductions in force were not common at the Central Service Center However, there was a substantial reduction in force at the Cen- tral Service Center in 1977 before Braun became manager At that time 14 employees were laid off from the Central Service Center SEARS, ROEBUCK & CO. multiple skills Two service technicians were placed in the installation department. Two other employees who had been in the drapery installation department were re- assigned to that department. By the latter part of 1978 the decline in the retail store sales was seriously affecting the service business, as the major portion of the service income came from the maintenance of service agree- ments. In mid-October when Martin instructed him to cut payroll costs, Braun looked over his entire operation to see where the cut would least hurt the business for the winter and spring months He cut back one clerical in the maintenance agreement office One employee was laid off from the dispatching area An employee was cut back who worked on heating or furnaces and one em- ployee from the outside electronics operation. One air- conditioning employee was laid off. One of the two tech- nicians in the small appliance repair shop was laid off. He reviewed the gasoline engine shop and decided that they could do without two full-time individuals as they were going into the light season for that type of repair. With all of the cutbacks he reviewed the service dates of the employees and the job duties of each individual. He considered seniority and whether an employee had skills that could be shifted to a different department. The lay- offs were on a continuing basis. Six employees were laid off on October 31, 1978. One was laid off November 6, one on November 14, and the last on December 5, 1978. Perkins was the one that was laid off on December 5. About November 20, 1978, Martin told Braun to see who else he could do without for the winter. Braun looked over his total operation and decided that they still had too many full-time individuals in the gasoline engine shop. Two employees had already been laid off from the gasoline engine shop . Perkins had no skills that were needed in any other department at that time and he was the least senior employee remaining in the gasoline engine shop. Perkins had more than 5 years' seniority and in accordance with company policy Braun had to obtain clearance from headquarters to lay off any em- ployee with that much seniority . Braun sought and ob- tained that clearance and Perkins was laid off on Decem- ber 5, 1978.31 Perkins was on layoff status from December 5, 1978, to March 19, 1979. During that time the Company did not hire any full-time employees in the gasoline engine shop even though some employees from different depart- ments were occasionally assigned there on a short-term basis. Three employees (Hart, Hague, and Hopkins) all of whom had less seniority than Perkins were reassigned into the gasoline engine shop on February 26, 1979, which was about 3 weeks before Perkins was recalled on March 19, 1979. Employees Hart, Hague, and Hopkins were moved into the gasoline engine shop on a part-time basis in July 1978. All had less seniority than Perkins but they were all part-time employees. None of them worked in that shop between October 14, 1978, and February 26, 1979, when they were transferred back into the shop. s There was work to be done in the gasoline engine shop at the time Perkins was laid off and there is no contention that the layoff was caused by a lack of work at such The Company 's contention is that a further layoff in that shop was deemed to be most appropriate in view of the Company's overall operation 247 Braun credibly testified that the situation changed about the last week in February with regard to the lawn- mower business because there was a break in the weather and a number of lawnmowers started coming in from dif- ferent stores He also credibly averred that he called part-timers to work and then offered Perkins his job back Perkins was not given any advance notice of his layoff but that was standard operating procedure for the Com- pany. None of the laid-off employees received advance notice. At the time of his layoff Perkins was told by Braun that the layoff was caused by a reduction in force b. Conclusions As is more fully set forth in section D,1, above, Per- kins was a key union supporter. The Company knew of Perkins' union sympathies as early as March 20, 1978. On December 5, 1978, some 8-1/2 months after the Compa- ny obtained knowledge of Perkins ' union sympathies, Perkins was laid off. He remained on layoff status for about 3-1/2 months and he was then recalled. The Company did not want its employees to be orga- nized and it engaged in a campaign to dissuade them from joining the Union. However, the Company had a right to express its views and arguments concerning unionization and under Section 8(c) of the Act such ex- pressions cannot constitute or be evidence of an unfair labor practice if they contain no threat of reprisal or force or promise of benefit. The many efforts of the General Counsel to prove that the company expressions did contain threats of reprisal or force or promise of ben- efit have fallen short of the mark as is set forth in detail above. The General Counsel has not established that the Company harbored the type of union animus that would make it reasonable to believe that it was motivated to get rid of union adherents. Moreover, the General Counsel's case must be considered in the light of the Company's defense The Company has established by credible evi- dence that economic circumstances required it to engage in a substantial reduction in force, that Perkins was one of a number of employees caught up in that reduction of force, that Perkins was the least senior employee in his department ; that during that time of retrenchment Per- kins' skills were not needed in any other department; and, in sum, that the layoff of Perkins was related to or- dinary business considerations rather than to his union activity or his giving of testimony. I find that Perkins' layoff was not causally connected to his union activity or to the fact that he gave testimony under the Act and I recommend that those allegations of the complaint be dismissed. E The Demotion of Shirley Seger 1. Background The complaint in Case 16-CA-8382 alleges that Shir- ley Seger was demoted and reduced in pay because of her union activity and that she was coercively interro- gated by Supervisor McPherson The Company denies that the interrogation took place . It contends that Seger had a long history of abusing air time in her capacity as 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD radio dispatcher and that the straw that broke the camel's back and caused the demotion was her use of an unauthorized code on the radio Seger was employed by the Company on August 16, 1977, as a parts clerk. She remained in the parts depart- ment until October 16, 1978, when she was transferred to the radio dispatch office where she was assigned the duty of talking to customers on the telephone and filling in for the head dispatcher on the radio communication with outside technicians Seger was regularly on the radio one full day each week and about 1-1/2 hours each day. Seger was given regular raises both while she was in the parts department and while she worked in the radio dispatch office. However, she had some difficulties with both jobs. On August 29, 1978, while she was working in the parts department she was given a memo- randum of deficiency interview for disrupting the work of others. She was told in the memorandum that she was not to assume the duties of a supervisor or take correc- tive action against fellow employees and that she had to realize that the only job assignment she had was to be concerned about her own assignment. She also was told that improvement would have to be made or she would no longer remain a company employee. Later her work improved and she was taken off the deficiency memo In October 1978 Assistant Service Manager Jenson spoke to Seger about a job as a caller on the newly es- tablished radio operation. He considered her for the job because she did a good mechanical job in the parts de- partment even though she had problems with her fellow employees. When Jenson offered her the job he told her that if she took it she would have to behave herself and that if she had problems with other employees she would have to come to supervisors about them. After Seger assumed her new duties in the radio dis- patch office she received both praise and criticism from supervisors She received a number of pay raises. She was told that she had a very good speaking voice for the radio. However, she continually laughed and joked on the radio and she was constantly criticized by her super- visors about her misuse of air time. Braun spoke to her about such matters about 20 times and other supervisors also criticized her about such matters. Company Office Manager Terry Brennen credibly testified that on 10 or 15 separate occasions he had conversations with Seger between November 1978 and March 1, 1979, in which he complained about her excessive language on the radio, unprofessional transmission of jokes, failure to give sup- port to the head dispatcher, failure to clock order cards properly, failure to properly maintain logs of break and lunch hours, and the general disorderly atmosphere in the dispatch office. He further credibly averred that he told Manager Braun that he had counseled Seger about such matters. Some of those criticisms were put in writ- ing and placed in her personnel file On February 12 Braun placed this note in Seger's per- sonnel file- Talked with Shirley about professionalism on the radio and following outlined procedure. Too much air time and it so had become part of the problem instead of controlling the problem Laughing on the radio-joking on radio and background noise. During the week of February 19, 1979, Braun's assist- ant Jenson placed this memo in Seger's personnel file: I've have [sic] talked to Shirley numerous times for her conduct on the radio, i.e., excessive laughing, using unauthorized verbalizing, not keeping the radio time free, letting the tecks have too much leeway on the radio, not keeping the tecks busy Shirley has been talked to her about tardiness and absenteeism She has also been talked to about the cleanliness of her area, also the organization of the dispatch function. On February 23 Braun placed this note in Seger's per- sonnel file. Talked with Shirley about what was said to a cus- tomer about a tech being in trouble. This was not professional in anyway and was none of the custom- er's business. I again reiterated to Shirley to do her job as instructed-nothing more & nothing less. All these incidents took place before Seger signed the union card. 2. Seger's union activity, company knowledge, and the alleged interrogation On March 20, 1978, Seger was approached by an em- ployee to sign a union authorization card. She refused to sign it and she made a point of telling various supervisors that she was against the Union. Later she changed her mind about the Union and on February 25, 1979, she signed a union authorization card On the evening of February 28, 1979, technician Johnny Frost told Supervisor McPherson that Seger had joined the Union and that Seger was using a secret code "Sylvester" on the radio to tell technicians that they were to call her on the telephone About 7:45 a.m. the following day, March 1, 1979, McPherson went to Braun's office and informed him of what the technician had said McPherson left Braun's office about 8:05 a.m. and at that time Braun's assistant Jenson came into the office. Braun told Jenson to check into the matter of the use of an unauthorized code and he asked Jenson to have Seger come to his office. Jenson left about 8:15 a.m. and a few moments later Seger came into Braun's office. As is set forth in more detail below they discussed the use of the unauthorized code The above findings are based on the credited testimo- ny of Braun, Jenson, and McPherson. Seger testified that the conversation with Braun occurred in the afternoon of March 1 after she told Supervisors Bradbury and McPherson that she had signed a union card. About 10 a.m. on March 1, 1979, Seger went into Supervisor Brad- bury's office and told him that she wanted him to know that she had signed a union card because it might cause trouble. Bradbury told her to follow her own beliefs and that he was not permitted to discuss it with her. Seger testified that between noon and 2 p.m. on that day she SEARS, ROEBUCK & CO went into Supervisor McPherson's office and told him that she had signed a union card and that she had decid- ed to give full support to the Union. She averred that McPherson asked her why she signed a union card and also asked her what she thought the Union could do for her 32 According to her testimony she replied that she felt the Company was discriminating against certain people who supported the Union and that she could not stand behind that. McPherson, in his testimony, acknowl- edged that Seger came into his office and told him that she wanted to say that she had joined the Union He averred that he responded that whatever she had to do was her business and it was none of his business. He spe- cifically denied asking her why she thought she needed a union or asking her what a union could do for her. I do not believe that Seger was a reliable witness and I credit McPherson I believe that she reversed the order of the meetings in order to make her case more plausible and that her testimony in that regard shed substantial doubt on her veracity in general She knew that the Company had been charged with violations of the Act and she claimed to have believed that the Company was discrimi- nating against employees because of union activity How- ever, she asserts that she volunteered to two supervisors the fact that she was a union adherent. Her testimony would indicate that she told the two supervisors about her union activity and shortly thereafter Braun called her into his office and talked about the unauthorized code. I believe what actually happened was that Braun called her in and told her about the code, that she was afraid that she would lose her job because of that, and that she then went out and told supervisors about her union ac- tivity in order to create the impression that the knowl- edge of her union activity was the reason that Braun called her into the office. In fact there was no need for Seger to falsify her testimony in order to establish that Braun knew about her union activity before he called her into the office on March 1, 1979. Braun acknowl- edged on the stand that he was informed of her union activity before 8 am on March 1, and that was before he called her into the office In view of that admission Braun would have no reason to falsify the chronology. However, Seger could not have known that at the time she testified, and I believe she falsified the chronology to make sure that company knowledge was established In view of that false testimony I do not think that Seger was a reliable witness and I credit McPherson's version of his conversation with Seger. I therefore recommend that the allegation of the complaint relating to the inter- rogation of Seger be dismissed. 3. The radio dispatch system Before November 1978 the Company dispatched its outside service technicians by use of the telephone The first service order that a technician was to make was given to him the night before After making his first call the technician would telephone into the dispatch office 32 It is noted that Seger referred to the March 1, 1979 conversation in an affidavit she gave to the General Counsel but there is no mention in that affidavit of McPherson's asking her why she signed a card or what the Union could do for her 249 for further assignments. The first or second week of No- vember 1978 the Company instituted a radio dispatch system Ordinarily the Federal Communications Commis- sion only grants one system for such radio dispatch The Company anticipated a high level of use of the radio dis- patch and therefore applied to the FCC for two separate systems. In order to justify the use of the second system the Company had to prove to the FCC through usage time studies that one system would be over utilized and that a second system was needed. The Company's appli- cation was granted and two separate systems were au- thorized and put into operation The FCC monitors the use of the systems and if it were ascertained that the Company was using air time needlessly or for nonbusi- ness matters the conclusion could be reached that the second system was not needed. The Company has a list of codes that are to be used by the dispatchers to save airtime For example, when a technician calls in to the dispatch office on the radio and says "ten-thirty" the dispatcher knows that the techni- cian is asking for his next work call and gives him the necessary information. All of the people involved have been instructed in the use of the codes and a list of the codes that are to be used are stapled above the dispatch microphone. The dispatchers and the technicians were all instructed that no telephone communications were to be had with the technicians unless the technicians had to talk to their supervisors. The telephone is used to call customers before the technician goes to the customer's home and if the telephone were used by the technicians it would limit the capacity of the Company to call out on the telephone to the customers. The radio is used in communications between the dispatchers and the techni- cians. When employees were being trained in the use of the radio they were instructed that the authorized codes were to be used and that nothing was to be added or de- leted. The use of unknown terms simply confused people. Company supervisors closely monitored the use of the radio. Braun kept a radio in both his office and his car, and the office radio was generally left on Braun often cut into the radio himself and told dispatchers or techni- cians to watch their air time. Part of Supervisor McPher- son's job was to monitor the conversations between the dispatchers and the technicians and it was his responsibil- ity to see to it that there was no misuse of air time 4. Seger's use of an unauthorized code and her demotion Sometime after Seger began to work in the dispatch office she had a conversation with outside electronics technician Clancy Gadd. She asked Gadd how they could work out a system whereby a technician would know to call dispatch without drawing undue attention from management Gadd suggested that they use an un- common name like "Sylvester J. Pussycat" on the radio to let a technician know that he was to call dispatch on the telephone without causing undue concern by anyone who might be listening on the radio Gadd testified that the code was devised not really to deceive but to main- tain a low profile and not draw undue attention from 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management because management had the ability to monitor the radio. Seger told some but not all of the technicians that when she used the worn "Sylvester" or "customer Syl- vester" on the radio the technician was to call her on a land line (telephone). Neither Gadd nor Seger said any- thing about the code to management , as the purpose of the code was to allow communications between Seger and certain technicians without the knowledge of the Company.33 Management first learned of the use of code "Sylves- ter" on the evening of February 28, 1979, when techni- cian Johnny Frost told Supervisor McPherson about it. McPherson informed Manager Braun about the code early the following morning and Braun took immediate action .34 Within the hour he called Seger into his office and she admitted that she had used a secret code He told her that she had been talked to on numerous occa- sions about following instructions, that she had built her own system contrary to management, and that he would get back to her about the situation 35 The following day, March 2, 1979, between 9 and 9.30 a in Braun again called Seger to his office He told her that she had elect- ed not to follow management instructions and proce- dures, and that she had previously had difficulties con- cerning following instructions. He told her that there was an opening in the call-taking section and that she could either take that or resign. She told him that she would take the call-taking job He informed her that she was no longer on the radio and he warned her that she was going to have to follow instructions as a call-taker and not invent her own system He read her a deficiency report, which stated: MEMORANDUM OF DEFICIENCY INTERVIEW NAME Shirley Seger - ACTIVITY Dispatcher The following matters which require correction have been fully discussed with the above employee: Re: Misconduct Shirley has been talked with on numerous occasions concerning her conduct on the radio as well as nu- merous reminders of following outlined procedures, set forth by Territory and local management. 33 Seger testified that she used the code "customer Sylvester" to cut down air time and to keep the technicians from getting into little argu- ments on the radio Gadd, in substance, testified that the code was used to circumvent management's monitoring of the radio I credit Gadd and I do not credit Seger 34 The General Counsel sought to establish that Braun knew about code "Sylvester" at an earlier date As is set forth in more detail in sec. B, 2, above, Hanshue testified that well before the demotion of Seger he heard Braun refer to Clancy Gadd as "Mr Sylvester " Both Braun and Gadd, in their testimony, denied that assertion For the reasons set forth above I credit Braun and Gadd and do not credit Hanshue Seger testi- fied that she told Supervisor Hines about the code Hines testified that he did not know about the use of the code before March 1, 1979 I credit Hines and I do not credit Seger 35 These findings are based on the testimony of Braun Where the tes- timony of Seger is inconsistent with Braun 's testimony regarding this conversation and the one on March 2 , 1 credit Braun Shirley has elected to allow or perpetrated among some Technicians secret codes for calling her by phone in the dispatch or whatever and has admitted such. Shirley has not been instructed to do such, did not acquire permission from anyone about this. She not only violated local procedures by using unac- cepted codes or procedures, but, also those proce- dures that Sears told the FCC we would use. It is possible that our license could be revoked for non- compliance Shirley is being taken out of the dis- patch office effective today She is being offered a position as Service Clerical as a call taker if she elects. Shirley must understand the job entails the same outline . . . that procedures outlined to her must be followed and must be in compliance with local policy and company policy. Decisions outside of her job are to be left to management. Any deviation from the above or other policies will mean termina- tion with Sears. This memorandum will be reviewed in thirty days. The memorandum was signed by Seger and Braun March 2, 1979, was a Friday. Effective the following Monday, March 5, 1979, Seger was demoted from a dis- patcher with a wage rate of $4 25 an hour to a service clerical with a wage rate of $3 50 an hour. 5. Conclusions When the active phase of the union campaign began in March 1978 Segar was vocally antiunion. She later changed her mind and, on February 25, 1979, she signed a union authorization card. Braun learned of Seger's union activity early in the morning of March 1, 1979, and on the same morning he called her into his office and criticized her for using an unauthorized code in the course of her radio dispatch work The following day he demoted her and reduced her salary Though the Gener- al Counsel has failed to establish that the Company en- gaged in the alleged violations of Section 8(a)(1) of the Act as described in sections B and E,2, above, the Com- pany admittedly campaigned against the Union and did not want the employees to be represented by a union The timing of the demotion with relation to the Compa- ny's obtaining knowledge of Seger's union activity gives rise to a strong suspicion that there was a causal connec- tion between that knowledge and the demotion. Howev- er, the Company's defense must also be considered. Seger had a long history of difficulties with regard to following company instructions. She was often criticized in that regard and specifically for improperly using air time. Other employees also misused air time but none of the other employees did anything comparable to Seger's use of an unauthorized code to intentionally circumvent the ability of management to monitor the use of the radio. Seger was not demoted until management learned of that misuse and the demotion followed immediately after the Company learned of it. Though the Company did consider Seger's entire employment history before the demotion, the precipitating event was the use of the SEARS, ROEBUCK & CO secret code. As none of the other employees engaged in that type of conduct there is no basis for claiming dispar- ate treatment against Seger The Company had set up a system whereby it could control and monitor the use of the radio and Seger's actions with regard to the secret code undermined that system The Company's reaction was quite measured with regard to Seger's offense. It did not discharge Seger as it might have done if it wanted to get rid of a union adherent It took her off the radio and placed her in another job where she could not under- mine the radio system. I credit Braun's assertion that Seger was demoted for work-related reasons I find that the General Counsel has not established by a preponderance of the credible evidence that Seger was demoted and had her salary reduced because of her union activity and I therefore recommend that that alle- gation of the complaint be dismissed F. The Discharge of Ward 1. Background The complaint in Cases 16-CA-8472 and 16-CA-8551 alleges that Curtis Larry Ward was discharged on May 22, 1979, because of his union activities and because he gave testimony under the Act. Ward was hired by the Company as a service techni- cian in February 1971 He remained in that position until his discharge on March 22, 1979, for allegedly falsifying company records. During his term of service with the Company he received a number of pay increases. He also received a number of certificates of praise from the Company when the Company received laudatory letters from customers about him The last such award he re- ceived was in 1976. On a number of occasions Ward got into substantial difficulties with the Company because of problems relating to his paperwork and his apparent dis- appearances when he was supposed to be working. Those matters are discussed in detail below. Ward was one of the early union adherents. He was a member of the organizing committee and he solicited union authorization cards as well as distributed handbills for the Union The Company first became aware of Ward's union activity on March 18, 1978, when employ- ee Robinson informed supervisors that Ward had been out getting authorization cards signed. Ward was one of the four employees named as union adherents in Union Representative Gaskill's March 20, 1978 telegram to Braun. Ward testified on behalf of the Union in the rep- resentation case and in the instant unfair labor practice case On May 22, 1979, 1 year and 2 months after the Company learned that Ward was a union activist, Ward was discharged. 2 The incidents preceding the discharge Ward had had problems relating to following his route well before Braun became manager in June 1977. A memorandum of deficiency interview dated March 19, 1974, spoke of Ward's numbering his route sheets and following the route strictly, as well as Ward's following through on promises made to customers. 'That memo stated that it had been explained to Ward that his current performance was totally inadequate and that immediate 251 improvement was necessary if he was to continue work- ing for the Company. A memorandum of deficiency interview in the fall of 1975 referred to problems relating to numbering his route sheets and making the calls in ac- cordance with the route sheet. The memo stated that the Company would not tolerate a casual attitude with regard to the deficiencies and that Ward was to under- stand that improvement was necessary if he was to con- tinue working for the Company In early January 1979 the Company's dispatcher came to Manager Braun and told him that they could not find Ward and could not contact him on his route. On Janu- ary 15, 1979, Braun learned that Ward had disappeared for 1-1/2 or 2 hours when he was supposed to have been working. His route sheet indicated that he was supposed to be at a certain place and he could not be located there. Ward was 2 hours late in returning to the Central Service Center and Braun questioned him about it when he returned Ward at first said that he had stopped for gas and then said that he had stopped to help someone out Braun told him the proper procedures had not been followed and that it should not happen again. In early February Ward disregarded company policy by failing to turn in some orders from his route sheet. Braun spoke to him about it Later a complaint was made that Ward had gone into a customer's house with a technician from Montgomery Ward 36 These and other items led to a memorandum of deficiency interview against Ward dated March 1, 1979. On that day Braun read the memoran- dum of deficiency to Ward in its entirety and Ward ad- mitted that he had done improper paperwork and said that he would try to correct it. In that interview Braun mentioned that he had spoken to Ward several times before about paperwork. The memorandum read: MEMORANDUM OF DEFICIENCY INTERVIEW NAME Larry Ward - ACTIVITY Service Tech- nician The following matters which require correction have been fully discussed with the above employee: Re: Falsification of Route Sheet - Time Card and Service Order, Misconduct of Service Tech- nician on Duty Upon confronting Larry with attached complaint. Larry admitted that he had a Ward's Technician in our customers home with him Larry also admits that his route sheets, service orders and time card were not accurate as to the times stated. Larry did go to the dentist on his lunch hour and said he was there an "hour or so." He also said he did not put "personal" on his time card which would result in Sears paying him for personal time 86 These findings are based on the credited testimony of Braun Where Ward's testimony differs from that of Braun concerning the various disci- plinary interviews I credit Braun and do not credit Ward 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also on Larry's call to customer Kitchen of 2/20. Larry called disptach at 10 50 from customers home. Dispatch called customers house at 10.53 and customer said he left twenty minutes prior. Larry could not be reached on the radio at 10:45 He showed a time of 11.35 to 12:45 on the order. His customer order for Mayse shows no entry time - dispatch clocked it at 10:26. Mr. Ward has signed an agreement with Sears on 8/18/78 that covers accuracy of recording times and paperwork. Mr. Ward was given a prior warning on 1/5/79 for loss of time. Accuracy of paperwork was covered with him then In November of 78, Mr Ward was warned of not following the procedures outlined to him. Mr. Ward has other history of improper procedure of paperwork and dispatching procedure and is fully aware of procedure handling. The company is making one final attempt to help Mr. Ward perform the total job required, if there is any further violation of this type occurrence, i.e., his failure to follow proper Route Sheets, Service Orders, and time card procedures, Mr. Ward will immediately be released from employment with Sears, Roebuck and Company. Also, to include any further occurrences of miscon- duct on Larry's part while in a customers home. A copy of Larry's Serviceman's Agreement with Sears is attached for his review, to refresh his memory of his responsibilities as a Sears Technician. This memorandum will be reviewed in thirty (30) days. Ward signed the memorandum of deficiency interview. Ward was scheduled to be reinterviewed on April 2, 1979. Shortly before that date Braun asked Ward's super- visor McPherson whether Ward had corrected his prob- lems and whether they should take him off the deficien- cy memo. McPherson said that he would check into it and get back to Braun. Because of that the reinterview was delayed On April 12, 1979, McPherson reported back to Braun and told him that Ward had engaged in serious errors in paperwork and that they still had prob- lems with him.37 After examining all the paperwork 37 The Company has a detailed procedure with regard to recordkeep- mg The technician makes entries on a route sheet, a timecard, and serv- ice orders The technician enters information about all the dispatches as well as starting time, lunchtime, breaktime, and quitting time on those records In addition, a hard copy of the service order is kept in the dis- patch office and is used for dispatching The dispatcher enters the dis- patch information and the information being radioed-in by the technician on the hard copy of the dispatch orders The times are also entered At the end of every day, the hard copy of the service orders are sent to the cashier where they are matched up with the paperwork coming in from the technician The dispatcher's entries should correspond with the infor- mation the technician writes on his paperwork and by a comparison of those reports some insight can be obtained into whether the technician's paperwork is erroneous or whether the dispatcher made mistakes McPherson gave Braun a written list of discrepancies concerning Ward's work. It contained discrepancies re- lating to 15 separate days between March 1 and March 31, 1979. Braun reviewed the list and decided that some of the items were merely nitpicking He crossed out a number of the items. He concluded, however, that some of the matters were serious and that they would extend Ward's review for another 30 days to see if they were corrected by then. On the same day Braun told Ward that they had come up with additional problems that needed correcting and he reviewed with Ward each of the items on McPherson's list that had not been crossed out. He also showed Ward the actual paperwork on which the list was based. Ward admitted that he made mistakes and that he had to correct them. Braun then told Ward that they would extend the review for an- other 30 days. Braun made a note on the deficiency memo which said that Ward had improved but still had to take more time and be more accurate. The note stated that the time recording had to be improved and there would be a review again in 30 days. About May 17, 1979, McPherson reported back to Braun and gave him a four-page list of errors in Ward's paperwork. Multiple errors were noted for each of 20 separate days between April 16 and May 12, 1979. Many of those items related to times that Ward should have been but was not working. McPherson told Braun that Ward was disappearing on them, was not doing the work he should have been doing, and was screwing the Com- pany. Braun told McPherson that he would handle it from there. On the same day, Braun told Company Security Man- ager Charles Hinderliter that Ward might not be record- ing his paperwork properly He said that he wanted Hin- derliter to put a radio in his car, to listen to all the radio communications to and from Ward, to go to the places where Ward was supposed to be, to observe when Ward arrived at and left the homes of customers, and to record all that information.38 On Friday, May 18, 1979, Hinderliter followed his in- structions and at the end of the day he told Braun that he would have a report ready on the following Monday, May 21 Hinderliter submitted his report on May 21. Braun then made lists which compared the information from Hinderliter's report with the information from the dis- patch office and the information Ward submitted in his paperwork. He collated those reports to show the arriv- al, departure, and travel times as shown by Ward, the dispatch office, and Hinderliter. That compilation showed major discrepancies between the times Ward ar- rived at customers, left customers, and called dispatch as se This was the first time that Braun had had an employee followed at the Central Service Center He had, however, done similar things at other locations where he worked including Springfield, Missouri, Fort Smith, Arkansas, and Tulsa, Oklahoma There were no union campaigns going on at those other places Hinderliter had engaged previously in similar surveillance of employees in other aspects of the company's busi- ness About a month before the Ward incident, he had, at the request of one of the managers, engaged in a surveillance to verify how long it took certain truckdrivers to make their run In the course of his work he en- gaged in some sort of surveillance about once a month SEARS, ROEBUCK & CO observed by Hinderliter and those times on records kept by Ward. Braun's analysis showed him that the total of Ward's worktime, travel time, breaktime, and lunchtime for that day was about 3-3/4 hours Over 4 hours were unaccounted for even though Ward was paid for the entire day Shortly after making his evaluation, Braun called the Company's manager of employee relations Kristovich at the Dallas headquarters He called Kristovich for advice because he knew that any action against Ward, who was a known union activist, would likely lead to litigation. Braun told Kristovich that Ward was flagrantly stealing time from the Company and he described the evidence he had of that. Kristovich said that he would think it over and call back Later that afternoon, Kristovich called Braun and suggested that to avert the possibility that there could be some error that two people witness what was happening. Braun then contacted Hinderliter and Ward's supervisor, McPherson, and told them that on the following day they were to repeat what Hinder- liter did on May 18. On May 22, 1979, McPherson and Hinderliter carried out the instructions that had been given to them by Braun until about 2.30 p.m when McPherson called Braun and said that Ward had not arrived at a particular call He told Braun that Ward had been making errors that morning Braun told McPherson to come back to the Central Service Center. When McPherson arrived he gave Braun a report that had been written while the events were occurring. Braun then called Kristovich and told him that Ward was stealing time and that as far as he was concerned Ward was no longer working for him. He contacted the group personnel office and told them what he was plan- ning to do He had the personnel department make out the paperwork for the release of Ward. About 4.10 p.m when Ward returned to the Central Service Center, Braun called him into his office Ward's route sheet and timecard were brought in. Supervisor McPherson was present. Braun reminded Ward that he was still on probation for falsification of routes in March and he asked Ward about each of the calls that Ward had made that day For each item the timecards and route sheets were compared against the activities that McPherson had actually observed that morning 39 It was apparent that there were serious discrepancies 40 There was also a prolonged discussion concerning Ward's whereabouts on May 18 After showing Ward all the documents and all the falsified records Braun asked him what Ward would do if he were a manager and Ward replied that he would fire him Braun then told Ward that Ward was released from the Company for falsifying company records after prior warnings. Ward replied by 39 During the course of this discussion Ward said that he was not going to stand for the harassment and he asked to have a witness or a representative of the Union present That matter is discussed in more detail below 40 Ward testified that on occasions there were transmission problems and that radios in certain areas could not receive calls from dispatch However, that could not have been a problem on May 18 or 22 because Hinderliter or McPherson were at the same locations as Ward and they heard all the radio communications 253 calling Braun a "son-of-a-bitch " Braun asked Ward why he had falsified the company records and Ward replied that Sears owed it to him Braun asked him what he meant by that and he replied that he did the work that other technicians were not capable of doing and that he was getting the same as the others for doing twice as much work The General Counsel contends that the Company took a lenient policy toward employees falsifying records and stealing time That contention has not been established None of the incidents pointed to by the General Counsel are comparable in degree to the type of conduct that Ward engaged in 41 The only comparable situation was one relating to Eugene Robinson. The Company be- lieved that Robinson had falsified his timecards and route sheets and he could not be found by dispatchers where he was supposed to be. Robinson was the individual who circulated an antiunion petition as is described in section B, 8, above and the Company knew that he was hostile toward the Union. Robinson, a known antiunion employ- ee, was discharged for the same type of conduct that Ward had engaged in 42 3. Conclusions Ward was one of the early union adherents He was named as one of the union adherents in Union Represent- ative Gaskill's March 20, 1978 telegram to Braun As de- scribed above, his union activity was extensive and was visible to the Company. He was discharged 1 year and 2 months after the Co.npany learned of his union sympa- thies As is set forth in detail above, the General Counsel has not established that the Company has engaged in the type of unlawful conduct that would warrant an infer- ence that it was motivated to discharge employees be- cause of their union activity. The General Counsel has not established that the Company treated Ward in a dis- parate manner43 with relation to similarly situated em- ployees who had not engaged in protected activity. The Company has established that it had very good reason for believing that Ward had engaged in substantial falsifi- cation of records to cover up his repeated disappearance from jobs when he was supposed to be working The Company has also shown that it made a very patient effort to correct Ward's problem and that Ward contin- ued to engage in the same type of misconduct. In sum, I find that the General Counsel has not estab- lished by a preponderance of the credible evidence that there was any causal connection between Ward's union activity or his giving testimony under the Act and his discharge. I recommend that the allegations of the com- 4i Ward and Perkins testified that they were told at various times by supervisors to falsify work records That testimony was patently incredi- ble Company witnesses credibly testified that the falsification of compa- ny records was never knowingly tolerated 42 Another employee, Mark Oliver, was also discharged for falsifying company records However, that incident involved the theft of money from a register and the falsification of records related to it Oliver's situa- tion was not fully comparable to Ward's 43 As set forth in sec B,3, above, Perkins' testimony that he overheard Supervisors McPherson and Potts plotting against Ward was not cred- ited 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint which allege Ward's discharge to be a violation of the Act be dismissed. G The Refusal to Allow Ward to be Represented at The Interview in Which He Was Terminated 1. Facts On May 21, 1979, Company Manager Braun reviewed the information that had been obtained concerning Ward's May 18 activities He came to the conclusion that on May 18 Ward had spent less than half the day work- ing and had falsified company records in an attempt to cover up that fact. On the same day he called company headquarters in Dallas and told Kristovich that Ward was flagrantly stealing time from the Company. Kristo- vich,suggested that Braun have two people witness what Ward was doing and Braun arranged to have Hinderliter and McPherson follow Ward the following day. On May 22 McPherson called Braun and told him that Ward had been making errors that morning. When McPherson came back to the Central Service Center that afternoon he gave Braun a written report which showed further transgressions by Ward. Braun contacted Kristovich and told him that as far as he was concerned Ward was no longer working for him. He had personnel prepare the discharge papers. Later that afternoon when Ward returned to the Cen- tral Service Center, he was told to report to Braun's office. Ward's paperwork for that day was also brought to the office. Braun started the conversation by remind- ing Ward that he was still on probation for prior warn- ing. At that point it was clear to Ward that the interview related to a disciplinary matter. Ward testified that he said to Braun: "Before you go any further, I'd like to re- quest Mr. Ed Gaskill, my union representative, or a wit- ness of my choosing to be present." Ward averred that Braun answered by saying there was not a union there and never had been and that McPherson was a witness. Braun testified that Ward asked to have a witness present, a representative of the Union present. He averred that he answered that they did not have a union and it was strictly between the Company and Ward. Braun acknowledged that he told Ward that there was not going to be anyone else present. Later in his testimo- ny Braun testified that he did not recall Ward using the word "witness" but that he assumed that "witness" and a "union representative" amounted to the same thing In view of Braun's lack of a clear recollection, I credit Ward. An extended interview followed in which the various documents were reviewed and in which Ward's where- abouts for that and the previous workday were dis- cussed. The interview ended with Ward being dis- charged. 2. Conclusions In NLRB v. J. Weingarten, 420 U.S 251 (1975), the United States Supreme Court held that an employer vio- lated Section 8(a)(1) of the Act by denying an employ- ee's request to have a union representative present at an investigatory interview, which the employee reasonably believed might result in disciplinary action. The Court, citing relevant language in Quality Mfg. Co., 195 NLRB 197 (1972); and Mobil Oil Corp., 196 NLRB 1052 (1972), found that 1. The right inheres in Section 7's guarantee of the right of employees to act in concert for mutual aid and protection. 2. The right arises only in situations where the employee requests representation. 3. The employee's right to request representation as a condition of participation in an interview is lim- ited to situations where the employee reasonably be- lieves the investigation will result in disciplinary action. 4. Exercise of the right may not interfere with le- gitimate employer prerogatives The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and foregoing any benefits that might be derived from one. 5. The employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. In Certified Grocers, 227 NLRB 1211 (1977), enf. denied 587 F.2d 449 (9th Cir. 1978), the Board held that an employer's statutory right to representation applied to both investigatory and disciplinary interviews if the em- ployee reasonably believed that disciplinary action might result. The Certified Grocers case was partially overruled by the Board in Baton Rouge Water Works Co, 246 NLRB 995, 997 (1979). Two members of the Board44 held, In Certified Grocers, the Board concluded that the Supreme Court's decision in Weingarten applied to any interview, whether labeled investigatory or dis- ciplinary, which the employee reasonably believes may result in disciplinary action being taken against him The United States Court of Appeals for the Ninth Circuit denied enforcement of the Board's Order, as in its opinion Weingarten did not require a right to representation when the purpose of the interview was merely to inform the employee that he was being disciplined. We have reexamined our decision in Certified Grocers and now think that case was wrongly decided on its facts. To that extent, it is overruled. We now hold that, under the Supreme Court's decision in Weingarten, an employee has no Section 7 right to the presence of his union repre- sentative at a meeting with his employer held solely for the purpose of informing the employee of, and acting upon, a previously made disciplinary deci- sion. 44 The third Board member concurred in the result, but made a dis- tinction between "investigatory interviews" and "disciplinary actions " Two members of the Board dissented SEARS, ROEBUCK & CO We stress that we are not holding today that there is no right to the presence of a union representative at any "disciplinary" interview. Indeed, if the employer engages in any conduct beyond merely informing the employee of a previously made disciplinary decision, the full pano- ply of protections accorded the employee under Wein- garten may be applicable. Thus, for example, were the employer to inform the employee of a disciplinary action and then seek facts or evidence in support of that action, or to attempt to have the employee admit his alleged wrongdoing or to sign a statement to that effect, or to sign statements relating to such matters as workmen's compensation, such conduct would remove the meeting from the narrow holding of the instant case, and the em- ployee's right to union representation would attach. In contrast, the fact that the employer and employee there- after engaged in a conversation at the employee's behest or instigation concerning the reasons for the previously determined discipline will not, alone, convert the meet- ing to an interview at which the Weingarten protections apply. A majority of the Board amplified the Baton Rouge case in Texaco, Inc., 246 NLRB 1021 (1979), which held. The pivotal question in such instances is whether, on the one hand, an employer, in summoning an employee to appear before management, is con- cerned solely with the administration of discipline or, on the other hand, seeks additionally to obtain facts, evidence, or an admission in support of the disciplinary action taken. In all of the above cases an employee was denied rep- resentation by a union where the union was the collec- tive-bargaining agent of the employees. In the instant case the Union was not the bargaining representative of a majority of the employees and the Company had no duty to bargain with it. The industrial stability that would result from a union's presence during interviews that might lead to discipline would not be enhanced where there is no collective-bargaining representative. In theory, a hundred different employees who are subject to such an interview might each ask for a different union to represent them and the Company would have to deal with a hundred different unions. The situation where there is no collective-bargaining representative was discussed in Glomack Plastics, 234 NLRB 1309 (1978), enf denied in part 592 F.2d 94 (2d Cir. 1979). In that case the Board held that the employ- ees were without union representation as a result of their employer's unlawful refusal to bargain and that the ab- sence of union representation under such circumstances did not deprive employees of their Section 7 rights There, the Board held that an employer violated the Act by refusing an employee's request that a witness be present at a disciplinary interview. The witness requested was a member of the union's negotiating committee. In Anchortank, Inc., 239 NLRB 430 (1978) the Board held that an employee was entitled to the presence of a union representative where the union had won an elec- tion but had not yet been certified. The Board held 255 Here, employees Charles and Kittley requested union representation at a time when the Union had been selected by a majority of employees in a Board-conducted election, but had not yet been cer- tified as bargaining representative. Their request was an exercise of the right guaranteed to them by Section 7 to act in concert for mutual aid and pro- tection. In these circumstances, the status of the re- quested representative, wjiether it be that of union not yet certified or simply that of fellow employee, does not operate to deprive the employees of the rights which they enjoy by virtue of the plain man- date in Section 7 A persuasive argument can be made that an employee in a disciplinary interview should not have the right to union representation where the union is not the collec- tive-bargaining representative of the majority of the em- ployees unless there are special circumstances such as that which existed in Glomack or Anchortank, Inc How- ever, the Board's dicta in Anchortank, in which a fellow employee is equated to a majority union representative, appears to indicate that an employee is entitled to union representation at a disciplinary interview by a union that is not the collective-bargaining agent of a majority of the employees Until the Board clarifies that dicta I feel con- strained to follow its apparent meaning.4e The law applicable to the instant case is not clear cut. Braun did engage in an extensive interview of Ward at which documents were analyzed and Ward's alleged fal- sification of documents and stealing of time were dis- cussed in detail. The records that Ward kept that day were reviewed for the first time by Braun during the interview . In a sense Braun was attempting to obtain facts and evidence However, the decision to discharge Ward was made and appeared to be irrevocable even before the interview. It is difficult to see how the pres- ence of a union representative during the interview would have changed the situation That is particularly so when the union representative was not the collective- bargaining representative of the employees, had no bar- gaining power, and had no contract machinery to invoke On May 21 Braun had told Kristovich that Ward was stealing time. Braun received further information re- garding errors from McPherson on May 22. Also before the interview he called Kristovich and said that as far as he was concerned Ward was no longer working for him. Personnel had already made up the discharge papers before the interview The interview can be looked at as a courteous gesture by Braun rather than a meaningful step in the discharge process. Some of the language in Texaco, Inc., 246 NLRB 1021 (1979), appears to apply to the instant case. The Board held: There is no evidence that Respondent needed or desired to obtain admissions of misconduct by the employees disciplined nor can such a purpose be in- ferred from the evidence. As previously mentioned, 4$ For a contrary view see Administrative Law Judge James F Mor- ton's decision in Materials Research Corp, 262 NLRB 1010, 1022-26 (1980) 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Administrative Law Judge concluded that all employees were offered an opportunity to explain or defend themselves. This offer, however, was not designed to obtain information to support Respond- ent's disciplines Rather, it constituted an essential part of the communication process during which an effort was made by Respondent to determine whether the employees understood the reasons for disciplinary action, their concurrence therewith aside Whether called "counseling" as Respondent urges, or by some other term, such conduct does not demonstrate, nor are we persuaded, that Re- spondent went beyond the parameters established in our Baton Rouge decision so as to warrant the pro- tection accorded employees by Weingarten.6 Accordingly, we hold that the employees in this case were not entitled to representation at the disci- plinary meetings here in question and, therefore, that Respondent did not violate the Act by compel- ling their presence at those meetings without benefit of the representation they requested. In view of the above, we shall dismiss the com- plaint herein in its entirety. 5 Member Jenkins does not rely on the principle expressed in this sentence 6 Member Murphy agrees that the meetings herein were not in- vestigatory interviews at which the employees were entitled to the presence of a union representative See her concurring opinion in Baton Rouge Water Works Company, supra Problems are also presented both by Ward's rather am- biguous request for representation and by the fact that the Union lists its address as Garland, Texas, a consider- able distance from Oklahoma City. Ward asked for the presence at the interview of Gaskill, his union represent- ative, or a witness of his choice. If he were merely seek- ing a witness as distinguished from a representative, it is difficult to see how his right to representation was denied. There is no indication in the record that any union representative other than Gaskill was involved with the organizational drive. There is also no evidence in the record to indicate whether or not Gaskill or any other union representative was physically in the Oklaho- ma City area or was available to attend the interview. Where a union is a collective-bargaining agent of one of the employees it ordinarily has representatives on the premises or nearby who are available to represent the employees when called on to do so. That was not the sit- uation in the instant case. There is no collective-bargain- ing representative and there is no evidence that Gaskill or any other union representative was in a position where they could have been available to attend the inter- view within a reasonable time. An employer is not re- quired to unduly delay a disciplinary or investigatory interview because of the unavailability of an employee's representative. Coca-Cola Bottling Co., 227 NLRB 1276 (1977). Under all these circumstances, I find that Ward was not unlawfully deprived of union representation or of a representative of his choosing at a disciplinary interview as alleged in the complaint, and I therefore recommend that that allegation of the complaint be dismissed 46 H. The Requirement that Employees Who Assisted the General Counsel and the Charging Party During the Trial Take Vacation or Personal Holiday Leave Rather Than Leave Without Pay 1. The facts The complaint in Cases 16-CA-8472 and 16-CA-8551 alleges in substance that the Company violated Section 8(a)(1), (3), and (4) of the Act by requiring employees Hanshue, Cole, Perkins, and Ward to take vacation or personal holiday leave rather than leave without pay when they were absent from work to assist counsel for the Charging Party and the General Counsel in the pres- entation of this case Hanshue, Cole, Perkins, and Ward were absent from work on various days to attend the trial of this case. They did so at the request of counsel for the General Counsel and for the Charging Party Counsel repeatedly conferred with those employees with regard to the pres- entation of the case and I am satisfied that counsel did so in good faith and not in an attempt to harass the Compa- ny by depleting its work force The Company utilizes three different types of leave. One is leave without pay where the Company permits an employee to take off from work without pay. It is also referred to as an excused absence The second is vaca- tion leave and the third is personal holiday leave. With personal holiday leave an employee can designate for himself the holiday. Both vacation and personal holiday leave are paid for by the Company There is no issue in this case with regard to rights of subpoenaed witnesses The only matter in litigation re- lates to the treatment of employees who left work to assist the Charging Party and the General Counsel in the presentation of this case At the trial on March 20, the Company took the position that leave without pay would not be granted to such employees and that if they left work to assist counsel for the Charging Party or the General Counsel the time spent away from work would be counted as vacation or personal holiday leave time. The Company took the same position with regard to the time that employees remained at the trial to assist coun- sel after they completed their testimony. Braun told Han- shue, Cole, Perkins, and Ward that they could not have leave without pay for appearing at the trial in a capacity other than as a witness and that they would have to take vacation leave or personal holiday leave. On March 19, 1980, Union Representative Gaskill sent a telegram to Braun and Braun's attorney requesting that those four employees be released from work to assist the General 46 Even if the Company had violated the Act by refusing Ward repre- sentation , I believe that a "cease and desist" rather than a "reinstatement with backpay" remedy would have been appropriate in view of the ser- ous nature of Ward's misconduct and the fact that a final decision to dis- charge him had been made prior to the interview A remedy must put an employee back into the position he would have been in but for the un- lawful conduct and the evidence establishes that Ward would have been discharged whether or not he had a representative present during the interview SEARS, ROEBUCK & CO. Counsel and the Union on March 20 through 23, 1980 The telegram stated that if the Company maintained its previous position with regard to requiring them to take vacation time and/or sick leave in order to participate in the hearings that additional unfair labor practice charges would be filed.47 The Company reduced the accrued vacation and per- sonal holiday leave of employees for being absent for work to assist counsel for the General Counsel and the Charging Party as follows Gary Hanshue-March 20, 1979 personal holiday .9 hours, March 21 personal holi- day 8 hours; Dorothy Cole-March 20 vacation 5.7 hours, March 20 vacation 8 hours; Earl Perkins-March 20 vacation 7.5 hours, March 21 vacation 8 hours and March 22 vacation 8 hours, Curtis Ward-March 20 per- sonal holiday 4 5 hours, March 21 personal holiday 8 hours, and March 22 personal holiday 8 hours Braun testified as to the reason the Company took the position it did with regard to employee absences as fol- lows The Company did not intend to penalize the four employees for assisting counsel at the trial. The compa- ny's business is traditionally seasonal The peak workload is during the summer because of the need for air-condi- tioner and lawnmower repair. That peak season is the time employees normally want their vacations. If em- ployees take their vacations in March during the slack season it means that there are more employees available during the busy summertime. By requiring the employees to take holiday or vacation leave in March, Braun was creating a situation where those employees would be available at a later date for work when they were needed even more. If he granted leave without pay in March those employees would be absent not only on the days of the hearing but again on the vacation and personal holi- day days In addition, all four employees were needed at work during the time in question Cole was answering calls from customers and handling the cash register, and the office was shorthanded for that type of work. Han- shue and Ward were outside technicians and the Compa- ny was running 4 or 5 days behind on outside repairs. Perkins was repairing lawnmowers and the Company was running 7 days behind in that type of work Perkins had been called back to work on March 19 because his services were needed 2. Conclusions As the Board held in Earringhouse Imports, 227 NLRB 1107, 1108 (1977), enf denied 600 F.2d 930 (D C. Cir. 1979). "[T]here can be little question but that an employ- ee has a right protected by Section 8(a)(4) and (1) to attend a Board hearing or otherwise participate in vari- ous stages of the Board's processes "48 In that case the 47 Braun testified that he did not receive that telegram However, it was sent in the regular course of business and an inference is warranted that the telegram was received by some management official in the Com- pany 48 The circuit court denied enforcement after noting that the exodus of employees from work closed the employer's entire production line and that there was no important need for the employees to attend the hear- ing 257 Board found that the employees had that protection even though they did not testify at the hearing. The Board noted that several employees made comments and passed notes to union counsel and that the hearing concerned them 49 In the instant case as in Earringhouse the em- ployees left work to attend a Board hearing which in- volved their own job interest Also in the instant case the employees engaged in a much more substantial role in as- sisting counsel for the Union than did the employees in Earringhouse. In the circumstances of this case Hanshue, Cole, Perkins, and Ward were engaging in a protected activity when they absented themselves from work to attend the Board hearing. However, the Company did have a legitimate interest in operating its business with- out interruption. As the Board held in Earringhouse: "[T]he resolution of the dispute before us requires the making of a proper accommodation between an employ- ee's right to attend a hearing during working hours and an employer's legitimate interest in operating his business without interruption." Unlike Earringhouse the instant case involves a situation where the Company did release the employees from work to attend the hearing. The only question presented related to the type of leave that the employees should be charged with. As the employees were released by the Company there is no need to bal- ance the immediate needs of the Company's production against the right of the employees to attend the hearing. The Company contends that future needs that would arise during the summer warranted the imposition of va- cation or personal holiday leave rather than leave with- out pay so that the employees would not be absent both during the time of the hearing and later in the year when their services would be needed at work However, we are concerned here with a small number of employees and a limited number of hours. The Company's prospec- tive needs during the summer months are too remote and uncertain to justify the Company's actions in terms of its legitimate interest in operating its business without inter- ruption. The Board considered a situation similar to the instant one in Western Clinical Laboratory, 225 NLRB 725 (1976), enfd. in pertinent part 571 F 2d 457 (9th Cir 1978) In that case an employee was subpoenaed to testi- fy at a Board hearing. After he completed his testimony, he remained at the hearing The employer refused to grant him leave without pay for the time he spent at the hearing after he completed his testimony and required that he take paid vacation for that time On the day the witness actually testified he was paid as if he had worked and it was not charged against his vacation. The Board held (225 NLRB at 726): In order for the Board to fulfill its obligation to adequately administer the Act, it is necessary that its processes not be unjustifiably fettered by any- thing that precludes parties from participating in such processes free from coercion or restraint In 49 Cf Home Lumber & Supply Co, 245 NLRB 358 (1979), where the Board held that employees were not engaging in a protected activity where they left work to vote in a Board-conducted election in which those employees were not part of the bargaining unit 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our opinion, forcing an employee who attends a Board hearing as a witness under subpoena to use his accrued vacation time, when he would prefer to take leave without pay, amounts to such a restraint regardless of the motive behind such action. In our judgment, potential witnesses will be reluctant to take the time to testify at Board hearings if they fear the loss of their accrued vacation time by doing so. Thus, the mere existence of such an apprehen- sion would have an adverse effect upon the Board's ability to conduct fair and complete proceedings. Though the Board specifically found that the employer's actions were not in reprisal for the employee having given testimony and were not calculated to discourage him from participating in the Board hearing,50 it con- cluded that the company's requirement that the employ- ee use his vacation time for attendance at the hearing violated Section 8(a)(3), (4), and (1) of the Act. In the instant case the employees attended the hearing to assist counsel for the General Counsel and the Charg- ing Party in the presentation of the case rather than as potential witnesses However, I believe that the same logic that the Board applied to potential witnesses also applied to employees who participate in the presentation of a case as the employees did herein. I therefore find that the Company's requirement that the four employees use vacation or personal holiday leave for attendance at the hearing was violative of Section 8(a)(3), (4), and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the Company has engaged in cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company violated Section 8(a)(3), (4), and (1) of the Act by requiring Hanshue, Cole, Perkins, and Ward to use vacation or personal hol- iday leave for attendance at the Board hearing, I recom- mend that the Company be ordered: to provide Hanshue with 8.9 hours of leave without pay and to cancel the deduction of that number of hours from his personal hol- iday leave; to provide Cole with 13.7 hours of leave without pay and to cancel the deduction of that number of hours from her vacation leave; and to provide Perkins 50 The same situation is present in the instant case The General Coun- sel has not established that the Company's actions were made in reprisal for the employees having given testimony or that they were calculated to discourage participation in the Board hearing with 23 5 hours of leave without pay and to cancel the deduction of that number of hours from his vacation leave, This order will allow Hanshue, Cole, and Perkins to take their full vacation or personal holiday leave at the time it ordinarily would have been granted Howev- er, Hanshue has already been paid personal holiday pay for the 8.9 hours, Cole has already been paid vacation pay for the 13.7 hours, and Perkins has already been paid vacation pay for the 23.5 hours Unless those employees refund to the Company the vacation or holiday pay for those hours the Company will not be required to pay va- cation or holiday pay for those hours when the normal vacation or holiday is taken. Otherwise, the Company would be required to pay double vacation or holiday pay for those hours Such payment would be a penalty rather than a remedy.51 CONCLUSIONS OF LAW 1. The Company is an employer engaged in 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. The Company violated Section 8(a)(3), (4), and (1) of the Act by requiring Hanshue, Cole, Perkins, and Ward to use vacation or personal holiday leave to attend a Board hearing. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as is set forth above, the General Counsel has not established by a preponderance of the credible evidence that the Company has violated the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed52 ORDER The Respondent, Sears, Roebuck and Co., Oklahoma City, Oklahoma, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Requiring employees to use vacation or personal holiday leave while attending and giving assistance to counsel for the General Counsel or the Charging Party at a National Labor Relations Board hearing (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act (a) Provide Gary Hanshue with 8.9 hours of leave without pay and cancel the deduction of that number of hours from his personal holiday leave. 51 Ward is no longer working for the Company The granting of leave without pay and the cancellation of the deduction from vacation leave for him would be meaningless There is no more vacation that he can take and he has already received vacation pay for the time in question 52 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses SEARS, ROEBUCK & CO (b) Provide Dorothy Cole with 13 7 hours of leave without pay and cancel the deduction of that number of hours from her vacation leave. (c) Provide Earl Perkins with 23 5 hours of leave without pay and cancel the deduction of that number of hours from his vacation leave. (d) Post at Central Service Center copies of the at- tached notice marked "Appendix "53 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found are dismissed. 53 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 259 WE WILL NOT require employees to use vacation or personal holiday leave while attending and giving assist- ance to counsel for the General Counsel or the Cliarging Party at a National Labor Relations Board hearing. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL provide Gary Hanshue with 8.9 hours of leave without pay and WE WILL cancel the deduction of that number of hours from his personal holiday leave. WE WILL provide Dorothy Cole with 13.7 hours of leave without pay and WE WILL cancel the deduction of that number of hours from her vacation leave. WE WILL provide Earl Perkins with 23.5 hours of leave without pay and WE WILL cancel the deduction bf that number of hours from his vacation leave SEARS, ROEBUCK AND CO.