Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

May 18, 1970

182 N.L.R.B. 491 (N.L.R.B. 1970)

SEARS, ROEBUCK AND CO. 491
Sears, Roebuck and Co. and Robert S. Sherman. Case
7-CA-7269
May 18, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 21, 1969 , Trial Examiner Samuel M.
Singer issued his Decision in the above -entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices , and recom-
mending that it cease and desist therefrom and take
certain affirmative action , as set forth in the attached
Trial Examiner ' s Decision . The Trial Examiner also
found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recom-
mended dismissal as to those allegations . Thereafter,
the Respondent ' filed exceptions to the Trial Examiner's
Decision and a supporting brief , and the General Counsel
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three -member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed . The rulings are hereby affirmed.
The Board has considered the Trial Examiner ' s Decision,
the exceptions and briefs , and the entire record in this
case , and hereby adopts the findings , ' conclusions, and
recommendations of the Trial Examiner.3
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act , as amended , the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner , and hereby orders that the
Respondent , Sears , Roebuck and Co ., Livonia , Michi-
gan, its officers , agents , successors , and assigns, shall
take the action set forth in the Trial Examiner ' s Recom-
mended Order.
TRIAL EXAMINER ' S DECISION
SAMUEL M. SINGER , Trial Examiner : This proceeding,
with all parties represented , was heard before me in
Detroit , Michigan , on various dates between June 23
and July 1 , pursuant to a charge filed April 3 and
complaint issued May 27, 1969 .1 The issue litigated
was whether or not Respondent , through certain conduct
(including interrogations , solicitation of complaints and
grievances , and promises to rectify and rectifying com-
plaints and grievances ) interfered with , restrained, and
coerced employees in violation of Section 8(a)(1) of
the National Labor Relations Act, as amended.
All parties appeared and were afforded full opportunity
to be heard and to examine and cross -examine witnesses.
Briefs were received from Respondent and General
Counsel on August 28 . Thereafter I granted Respondent's
request to file a reply brief , with leave to General
Counsel to submit a like brief.
Upon the entire record2 and from my observation
of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENT; LABOR ORGANIZATION
INVOLVED
Respondent , a New York corporation , maintains a
chain of retail department stores throughout the United
States , including the one in Livonia , Michigan , involved
in this proceeding . During the representative calendar
year 1968, Respondent ' s gross volume of business at
that store exceeded $500,000 ; within the same period
it purchased and there received , directly from outside
Michigan , products valued in excess of $ 100,000.
Local 299 , International Brotherhood of Teamsters,
-Chauffeurs , Warehousemen and Helpers of America,
Ind. (the Union here involved ) is a labor organization
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Solicitation of Employee Complaints and Grievances
1. Morale surveys in response to Union ' s recognition
demand and petition for election
' Respondent 's request for oral argument is hereby denied as the
record , including the exceptions and briefs, adequately presents the
issues and positions of the parties
' The Respondent contends that the record will not support an infer-
ence of unlawful motivation . We do not agree The timing of the
Respondent 's conduct , its deviation from past practice , and its repeated
references to the Union ' s request for recognition preceding the grievance
discussions all lead to the conclusion that the Respondent ' s conduct
was unlawfully motivated and, consequently , violative of Section 8(a)(1)
of the Act. See Tonkawa Refining Co ., 175 NLRB No . 102 para
2.
3 The Employer ' s exceptions , in large part , are directed to the credibili-
ty findings made by the Trial Examiner It is the Board's established
policy not to overrule a Trial Examiner ' s resolutions as to credibility
unless, as is not the case here , a clear preponderance of all the relevant
evidence convinces us that they are incorrect Standard Dry Wall
Products , Inc , 91 NLRB 544, enfd 188 F.2d 362 (C A. 3).
Respondent opened its Livonia store in the fall of
1964, under Store Manager Arthur Cone . Sheer is operat-
ing superintendent and Sparks head of the shipping
and receiving department . The latter supervises 35 of
Respondent's approximately 1,200 Livonia employees.
On December 31, 1968 , the Union sent a telegram
to Store Manager Cone, demanding recognition as exclu-
sive bargaining representative for certain employees,
including the shipping and receiving employees directly
involved here . After Respondent declined recognition,
Unless otherwise indicated, all dates herein refer to 1969
Transcript corrected by my order on notice dated September 19,
1969.
182 NLRB No. 68
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union on January 13 filed a petition for an election
with the Board's Regional Director.
Cone testified that "within the hour after receiving
the Union's telegram" for recognition he telephoned
Respondent's main personnel (Midwestern Territory)
office in Chicago to discuss the Union's demand. Cone
spoke to the head of that department (Robinson), the
assistant employee relations manager (Allen), and the
personnel staff assistant (Bennett). According to Cone,
"My major concern was with the morale, 'and the request
for the recognition at best gave indications that there
might be problems there-morale problems-that I need-
ed to evaluate." Allen, whom Cone described as especial-
ly equipped "in matters of taking 'a reading on the
morale," testified that he agreed "to come into the
store to assist him [Cone] in communicating with the
employees . . . and to advise him of matters related
to personnel," indicating that he, too, was "concerned
with employee morale" since "a demand for recognition'
can mean morale problems in some cases."
Allen arrived at the store on January 6 and "talked
a great deal with Mr. Cone" and the supervisory staff
in his first 5-day visit. He told them that "there were
certain actions, as supervisors, that they should guard
against," including threats and promises to employees;
and he promised to "try to keep the supervisors informed
as to what was taking place, and . . . would also commu-
nicate what was taking place to the employees in the
store."
Allen returned to the store the following week (January
13-15), as well as on January 29-31, February 4-7,
March•5 or 6, and April 3. Admittedly, he never previous-
ly visited the store, explaining , "I was never informed
of any morale problem" or other problems.' Allen tes-
tified that he would circulate' among employees in the
shipping and receiving department, introducing himself'
as "Greg Allen out of the Personnel Department from
Chicago," inform them of the Union's recognition
demand, and ask "how things were going, how they
were getting along , or what their job was, what they
were doing ." According to Allen, "whenever the
employee had finished with whatever he wanted to talk
about, [he] just thanked him and walked, away," in
each case volunteering that he' "was not interested in
their feelings about the union . . . one way or another."
These conversations, confined to the shipping and receiv-
ing employees "amongst" whom the Union claimed
recognition,4 took place at or around the employees'
work area, close to other working employees.
Allen further testified that as a result of these conver-
sations he became aware of "a lot of various complaints"
since the employees told him "of many problems."
According to Allen, he never informed any employee
3 According to Allen, however, during the 4 years he had worked
in the Chicago personnel department he had visited many other company
stores where "employee morale " was in question , "whether there
was a union involved or no union involved "
' The Union's petition for election (Case 7-RC-9254)' indicates that
the Union sought recognition on behalf of employees in two additional
departments (maintenance and automative ) No violation is alleged in
regard to any of those employees
"that I was there to rectify complaints." nor that he
was going to report the grievances. However, he in
fact reported these complaints to Cone or Operating
Superintendent Sheer, and "in some cases" Cone told
him what, if anything, he had done regarding them.
Personnel Staff Assistant Bennett of the Midwestern
(Chicago) Personnel Department also visited the Livonia
store during the weeks of January 4 and 13. He, like
Allen, had never previously visited that store. Bennett
testified that his supervisor in Chicago (Robinson) "indi-
cated to me he felt there were some morale problems
in the Livonia, store, and he asked me to visit the
store to evaluate if there were morale problems." Like
Allen, Bennett expressed the view that "an employee's
concern and interest " in unionism "could be" a "reflec-
tion of a morale problem"; and he "specifically did
not visit the Livonia store in the past because [he]
felt there were no serious morale problems." Bennett
reported to Robinson his finding "that some of our
employees had indicated to me dissatisfaction with some
parts of their work,"' He testified that he probably
also made a report to Store Manager Cone.
2. Interrogations
a. Smith
On January 14 or 15, Allen approached Richard Smith,
a checker-dockman, at Smith's worktable in the receiving
and shipping department. After his usual introductory
remarks (that he was from the Chicago Personnel Depart-
ment, that the Company had received a Union recogni-
tional demand, and that he was not interested in or
would not question the employees concerning the Union),
Allen asked "how [he] was doing, and if [he] had
any problems or complaints about [his] job." Smith
answered that he had "some problems," specifically
mentioning the Company's failure to promote him during
his 5 years of employment, "poor working facilities"
(insufficient lighting in the work area and a rough tabletop
"that caused him to get splinters"), and low earnings.
Allen said that he "would look into it . Find out why
[he] hadn't been promoted; and try to get some answers
for [him]."
A "couple of weeks later" Allen again asked Smith
"how [he] was doing" and if he "had any more problems
or complaints." He also asked "what kind of job [he]
would be interested in" if he were to get "a promotion
or transfer" from his position as checker. Smith said
that he "would like to go into selling or management
or something like that." Allen answered that he "would
look into it and find out what he could do about it.""
3 Although at first denying that he reported back to Robinson on
his visit to the store , he later stated , "I think I did" and then definitively
testified he did , but claimed that he could not recall the "specific
problems."
" The findings in the above two paragraphs are based primarily on
the testimony of Smith , which is in large part consistent with that
of Allen . Smith impressed me as an especially credible witness. Unlike
Respondent , I do not view Smith 's alleged difficulty in recalling minor
details of conversations as substantially affecting his credibility nor
the essential accuracy of his testimony on essential matters While
SEARS, ROEBUCK AND CO.
Subsequent to the above conversation, Smith was
called to Operating Superintendent Sheer's office, where
the latter told him that he was under consideration
for a stock supervisor position resulting from the transfer
of the previous supervisor (Lampman) toa sales position.
Smith replied that he "wasn't interested in it" because
of no previous stockroom experience and that, he pre-
ferred selling. Sheer remarked that he "was surprised
to hear that," indicating that the only reason he had
not previously been transferred to selling was that he
(Smith) had not evidenced such an interest.7 1
The next day, Wearing Apparel Superintendent Friess
offered Smith a salesman's position in the women's
shoe department, which Smith turned down. In the
beginning of May, Sheer offered Smith a sales job
in paints, which he accepted."
b. Sherman
Sherman, a checker-dockman, had three conversations
with Allen of the Chicago personnel department, one
with Sparks (his immediate store supervisor), and another
with Sheer (the store operating superintendent). In his
first talk with Allen in the marking room around January
13, Allen made his usual introductory remarks, referring
to his position in Chicago, the Union's recognitional
demand, and his lack of interest in the employee's
union attitude. Allen credibly testified that "the first
thing that [Sherman] talked about" was the Redford
Clinic, Sherman describing it as "a lousy place for
the Company to send employees [to] who had injuries
or were ill." Also according to Allen's credited testimo-
ny, Sherman protested that "the rate of pay he was
receiving was too low for the type of work he was
doing" and complained that another employee (Maynard)
"had been unfairly promoted."
In his second conversation with Allen, on February
4 or 5, Sherman protested that the unionized warehouse-
men at Respondent's Highland Park store, 10 to 15
miles away, were paid more. Allen replied that he "didn't
know" their rate, but "would find out. -9 Sherman tes-
tified credibly, without contradiction, that in the same
conversation he also complained to Allen 'about the
Company's "hiring employees off the street and giving
them a higher paying job, and not promoting from
within"; and that he also complained about the heaters
I do not ascribe to Allen any deliberate intention to falsify or mislead,
I was left with the impression that he sought to minimize the effect
upon employees of his remarks
' Findings in this and succeeding paragraph are based on substantially
uncontradicted testimony of Smith
9 Store Manager Cone testified that average earnings of paint salesmen
(who were on "straight commission") were 20 percent above those
of checker-dockmen (Smith ' s salaried classification prior to the transfer)
Cone indicated that while a transfer from the dock to paint sales
"can represent a promotion ," this is not necessarily so since a transferee
could turn out to be a poor salesman This apparently occurred in
Smith ' s case, since after about 7 weeks in the paint department he
asked to be returned to his former hourly paid checker-dockman job-
a request which Cone approved
° Allen testified that after checking the matter with Store Manager
Cone, he told Sherman the next day that Sherman's information was
inaccurate.
493
on the dock, needed repairs to equipment, and "better
treatment from our immediate supervisors." Allen said
that he "would check into it." Allen also recalled Sher-
man's raising the "bad deal" he got "a couple of years
ago" when he was made night receiving "supervisor,"10
only to be removed after 2 or 3 weeks for an allegedly
poor job, although he had been complimented on his
performance. Allen disclaimed any knowledge of the
event, explaining that he knew nothing of "the situations
. . . that have happened in the past in the store."
The third conversation took place at the Snackette
or coffeeshop on March 5 or 6. Allen credibly testified
that after Sherman introduced him to a friend-a former
Sears' employee-Sherman said to Allen, "If you want
to hear what's wrong with this Company ask this guy
[the friend]." Allen said that he "wasn't asking anybody
what was wrong with'the Company." According to
Allen, Sherman concluded the conversation with, "It
doesn't do any good to talk to you. Things are lousy
here. Things are real bad." According to Sherman,
Allen offered "to help us with our problems, and try
to rectify any complaints we had," to which Sherman
responded, "the damage was already done, and what's
to stop, even if the conditions improved, to go back
the same way they was before, before the union activities
started up."ii
Around the same time (end of February or early
March) Sherman had a conversation with Sparks, his
immediate supervisor and head of the shipping and
receiving department. Sparks said, "we are all human
and that we make mistakes, and in the future he will
try to be more understanding towards [Sherman], as
well as the employees." Sherman remarked, "the reason
that [Sparks] was being so nice and working conditions
improved is because of the union activities, and what's
to stop it to go back to the way it was before." Later
. 10 It is unnecessary to resolve the testimonial conflict as to whether
or not the job was supervisory.
11 The findings on all three Allen-Sherman conversations are based
primarily on Allen's testimony Although I have not credited all details
on which Allen testified (including his denial that he ever told "Sherman
or any employee that [he] was there to rectify complaints"). I have
found Allen's accounts of the conversations generally more reliable
than Sherman ' s Sherman impressed me as a quick-tempered , disgruntled
employee, eager to impugn the Company's motives However, I do
not regard as significant Sherman's failure to mention certain matters
(including problems he raised with Allen ) in his prehearing affidavit
to a Board agent , since it appears that that affidavit was given primarily
to support charges other than those here litigated, namely, that Sherman
had been unlawfully discriminated against by being forced to take
a leave of absence, which charges apparently were dropped by General
Counsel Although, as indicated , and findings in this section up to
this point are based largely on Allen's testimony , I have credited
those portions of Sherman's which were uncontradicted, corroborated
by other credible testimony , or in line with inherent probability e g ,
complaints and improvements discussed with managerial officials, includ-
ing Allen's offer " to help [the employees ] with our problems, and
to try to rectify any complaints we had." I specifically discredit Sher-
man's uncorroborated testimony that in course of the conversations,
Allen made such statements as "Sears has just as good benefits, if
not better, than a store without^a union" and that he (Allen) stated
that he "don't see any reason why we need a union ." Allen impressed
me as a knowledgeable and sophisticated individual, experienced in
dealing with unions and union matters I yam convinced that in his
talks with employees, Allen studiously avoided direct references to
unionism
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sparks asked Sherman "if working conditions improved,
and is he being a better supervisor."12
In February, apparently before the above incident,
Superintendent Sheer informed Sherman , as he had
Smith (supra. sec. A, 2, a) that Sherman was one
of several employees "being considered " for the stock
supervisor job which had been vacated by Supervisor
Lampman. Sherman told Sheer that he did not want
the job because he was "never before all of this union
activity started" offered a supervisory position or other
"promotion."13
c. Graczyk
In middle January, Allen approached Graczyk, a
receiving clerk , and after his usual preliminary remarks,
asked whether Graczyk had "any problems or griev-
ances" he "would like to talk about." Graczyk said,
"we had a need for more men on the dock , and better
equipment, or to repair the equipment, and better dock
service." Allen answered that he "would see if he
could try to correct these complaints."
In a second conversation, on February 5 or 6, also
in the receiving area , Allen asked "if any conditions
had been changed or rectified since our last meeting."
Graczyk said that "some of them had been," but that
"nothing had been done about the dock service itself. "14
4 or 5, Allen again approached Cryer and asked "had
any of the grievances been settled ." Cryer answered
that some had, such as the one rectified through the
newly installed heated dock office.15
e. Pike
On January 13, Bennett (like Allen with Respondent's
Chicago Personnel Department) spoke with Pike , another
receiving and shipping employee . According to Bennett,
he mentioned that the Union had filed an election peti-
tion, asked "what his job was," and inquired "how
things were going with him." Pike credibly testified
that Bennett said "he had known of the union activities,
and he had come from Chicago to talk to the employees
and try to figure out-try to get their grievances and
complaints, and see if anything could be done to correct
them . "'" Pike said that he had no complaint , but (accord-
ing to Bennett) added that "he felt there was a need
for an electric hoist on the dock to be used for hauling,
loading and unloading paint ." In course of the conversa-
tion Bennett also mentioned that "each individual has
his right, if he wants to vote for the union or not;
that it was up to him.""
B. Correction of Employee Grievances and Complaints;
Improvements in Working Conditions
d. Cryer
Around January 13, Allen approached Cryer, another
shipping and receiving employee . After identifying him-
self and making his usual introductory remarks, Allen
asked if Cryer had "any grievances." Cryer said that
his "pay was low, insurance was inadequate , equipment
needed repairing "-specifically mentioning the poor con-
dition of jacks, the need of "warm clothing . . . in
the frigid weather," and the lack of sufficient heat
in the dock office. In a second conversation on February
1z Based on the credited testimony of Sherman . Although Sparks
denied the statements attributed to him , he admitted Sherman had
said that "the reason for all of these changes .. . in working conditions
is due to Union activity ." According to Sparks , Sherman 's remark
about union activity was typical , being his "pet" phrase "on any
occasion and at any time ." The statements Sherman attributed to Sparks
regarding improved conditions and Company mistakes strike me as
inherently probable and consistent in tenor with the pattern of other
Company utterances As hereafter noted (sec. C), Store Manager Cone
later admittedly made similar remarks about himself and the store
supervisors having been "guilty of neglect ," apologizing for paying
too little attention on "the important human problems" facing employees
13 Based on uncontradicted testimony of Sherman. Sheer did not
testify.
' Based on the credited testimony of Graczyk Admitting the two
conversations , Allen claimed that in the first one Graczyk had merely
said that all was "fine " when asked "how things were going ," while
in the second Graczyk complained about wages . Allen denied asking
any employee whether any complaints had been corrected or giving
any assurances that anything would be done about them Although
recognizing that Graczyk 's recollection on some aspects (working condi-
tion improvements ) are unclear and that his testimony on others was
conflicting , I nevertheless find his testimony on the matters here described
plausible and consistent with the pattern of conduct by Allen and
other supervisors, as corroborated and shown by other credible evidence
and circumstances.
General Counsel adduced evidence purporting to show
that in response to complaints and grievances elicited
from employees Respondent instituted improvements
in working conditions to discourage Union activity. On
the other hand , Respondent adduced evidence designed
to show that some complaints and problems raised by
the men were not acted upon , that some improvements
had been planned before advent of the Union, and
that correction of equipment and facilities was "a contin-
uing factor" in the store and "unrelated" to the Union
activity.
1. Promotions and job transfers
Smith: As already shown (supra, sec. A, 2, a), after
Allen of the Chicago Personnel Department asked Smith
is Based primarily on the testimony of Cryer, but only to the extent
found herein I do not credit Cryer' s testimony that Allen told him
that " if we didn 't get a union , Sears, Roebuck was going to correct
our conditions"-an outright coercive statement of the type not attributed
to Allen by any other employee and, as heretofore noted (supra, fn
11), not one a sophisticated individual like Allen would likely have
made Under all the circumstances , I credit Allen' s denial that he
made the alleged coercive remark . Allen admitted the two conversations
with Cryer, but, as in the case of Graczyk, claimed that the first
had been brief and unproductive ; and that it was only in the second
that the employee raised any grievances-in the case of Cryer questions
concerning hospitalization benefits and the Redford Clinic, the slippery
dock surface , "the poor state of repair and maintenance of the hydraulic
jacks," and the need for "protective clothing" in cold weather
'" Pike impressed me as a truthful, forthright, and careful witness.
I do not credit Bennett ' s general denial that he made the statement
in question.
'r Testimony on the Bennett-Pike conversation was admitted for back-
ground purposes only, the complaint having alleged no specific impermis-
sible conduct on the part of Bennett
SEARS, ROEBUCK AND CO. 495
if he had "any problems or complaints " about his job,
Smith mentioned among other things that he had worked
for Respondent for 5 years without a promotion. Allen
answered that he would "look into it ." Later , Superin-
tendent Sheer told Smith that he was being considered
for the vacant stock supervisor position , but Smith
turned this down , indicating a preference for a selling
job. The next day Smith was offered a shoe salesman's
position , but Smith declined this also. Later he was
offered and accepted a sales job in the paint department.
Store Manager Cone testified that it was "policy
of the company to provide an employment opportunity
for every person on our payroll . . . to rise within
our organization . . . in full keeping with the individual's
capacity and motivation ." He indicated that in line
with this policy "there is a substantial movement of
personnel from indirect sales " (such as a receiving and
shipping position ) to "direct sales ," a more desirable
job, with more opportunity for increased earnings and
promotion.
Sherman : As already indicated (supra . sec. A, 2,
b), Sherman who had been made night receiving "super-
visor" 2 years ago , had been removed after 2 or 3
weeks for alleged poor performance . Nevertheless, after
complaining against Respondent 's promotion policy (in
his second conversation with Allen on February 4 or
5), he was told that he was being considered for the
stock supervisor position . Store Manager Cone admitted
that Sherman was one of the four candidates selected
by Superintendent Sheer for consideration . The others
were Smith , Vaughn , and Oelette-the last named ulti-
mately promoted.'
2. Poor lighting inwork areas
As Store Manager Cone testified , Allen in his "discus-
sions with the employees within the receiving and mark-
ing operation " learned that "this area was poorly illumi-
nated ." Cone thereupon instructed Sheer to direct the
store engineer in charge of maintenance (Czapran) to
correct the condition , which he did. Cone testified that
other lighting corrections were made before and after
Allen's conversations with employees , in and outside
of the receiving and shipping area.
3. Rough tabletop surfaces
According to Cone , Allen also informed him of
expressed dissatisfaction with the tabletops in marking
rooms . Allen immediately directed the carpenters to
attend to the matter by providing "a more suitable
work surface."
4. Equipment repair
Allen similarly called Cone ' s attention to employee
complaints concerning the condition of skid-jacks used
in lifting heavy freight off the floor to move it to different
store areas . Cone's investigation showed "that the main-
tenance of these jacks had been neglected for a consider-
able period of time" and that it created a hazardous
and unsafe condition . According to Cone , he directed
the store engineer to attend to the matter "very promptly
and with first priority."
In or about March, Respondent also installed a new
electric lift hoist , used to take loads off the dock.
As noted , Bennett, of the Chicago personnel department,
learned of the employees ' desire for such equipment
in his January conversation with Pike ; and Bennett,
in turn , relayed the matter to Cone .' Cone testified that
he "had an awareness . . .about the need " of such
equipment even before receiving this report , that he
had discussed this subject with other management
officials, and that employee Wilson had earlier suggested
getting one.
5. Heated dock
Another employee complaint voiced to Allen involved
the lack (since the fall of 1968) of a heated dock office
where outdoor dock employees could seek shelter from
cold weather and do paper work . It is admitted that
by the end of January , Respondent erected a new dock
office with a heater . However , I credit Company testimo-
ny to the effect that the new dock office was planned
long before the Union came on the scene. Respondent
had had a small dock office, heated by a small electric
heater , until September 1968. Sparks , the head of the
receiving and shipping department , testified credibly that
in March and April 1968, after several employees had
complained to him about the office , he discussed with
the store engineer and operating superintendent "the
possibility " of replacing it with "a new dock office."
In September , a definitive decision was made to construct
a new heated office "after the peak Christmas season"
and thereupon (also in September ) the old office was
torn down. According to Sparks , the Christmas season
ended about the first week in January , but construction
of a new office was delayed to January 20 because
the carpenters and painters were engaged in removing
season displays "and some remodeling of the sales
floor which is the first concern of our business." The
new office was completed in 3 days (i.e., January 23)
and a heater installed on January 29.
6. Protective clothing
Store Manager Cone acknowledged that Allen
"advised [him ] that lack of proper clothing was an
irritating source of complaint to people working on
the dock." Subsequently Respondent furnished warm
weather gear on a pooled basis ; i.e., jackets and coveralls
were made available to inside employees when working
outdoors on the dock . Cone admitted that only gloves
had previously been provided , despite the "complaint
previously of those people permanently on the dock,"
explaining that he thought it was against "Sears' policy"
to furnish other protective gear . According to Cone,
he authorized issuance of the additional clothing after
Allen advised him that " it was somewhat of an optional
situation with respect to the manager of the store."
Also according to Cone, he had not been aware of
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hardship and indeed business "inefficiency" resulting
from employees working intermittently on the dock hav-
ing to secure personal protective clothing from cloak
rooms and automobiles.
7. Increasing men on the dock
As noted supra (sec. A, 2, c), one of the complaints
of Graczyk to Allen in their mid-January conversation
was that more men were needed on the dock. Allen
replied that he would look into this as well as other
complaints. While Graczyk testified that more men
worked on the dock in and after February, his testimony
on this point, including the number and identify of
individuals assigned, is vague and uncertain. To be
sure, the manner in which Respondent makes its assign-
ments renders it difficult to resolve the issue posed.
Thus, employees working predominately inside the store
(e.g., checkers) could be moved to "part- time " outside
dock work and others working predominately outside
could be assigned to "part -time " inside work, depending
on need; indeed, all subject to these assignments have
the same classification of "checker-dockman." Further-
more, during the period here involved Respondent was
obliged to reassign outside dock work as a result of
employee illness and disability and, in one case, military
service of a dockman. In any event, General Counsel
in his brief (p.11) claims no more than that Respondent
added one "regular" (or permanent) dockman in Febru-
ary, thereby increasing the regular dock force from
three in January to four in subsequent months.18 Howev-
er, Supervisor Sparks' uncontradicted, credited testimo-
ny shows that the four regulars employed in December
were reduced to three in January only because one
(McMahon) left for military service on January 3; that
because of the slack season in January, no replacement
was made for this employee until February 7, when
Respondent again attained a full four-man complement;
and that because of the increased dock work which
"starts building up for [the] spring season " in February,
Respondent retained the four-man dock force in March
and April. Sparks' testimony is corroborated by that
of Grazyk, who admitted that in February "we seemed
to be getting more trucks in, more merchandise" at
the dock than in January, and that the men were "behind
in their work" in February.
8. Better treatment from supervisors
As noted supra (sec. A, 2, b), Sherman had complained
to Allen, among other things, about the treatment "from
our immediate supervisors." Thereafter Sparks, Sher-
man's supervisor, spoke with Sherman, telling him that
"in the future he will try to be more understanding."
Still later, Sparks asked Sherman whether he was not
now "a better supervisor."
'B While , as General Counsel claims, two part -timers (Moore and
Pike) augmented the four-man dock force , these were merely inside
workers "more likely to go out " on the dock than would other checkers
in January and before
9. Unrectified complaints
Allen testified that many of the employee complaints
and problems raised in his conversations were not acted
upon by management . Among these were alleged low
wages (supra , sec. A, 2, b) and method of handling
merit wage increases ; Saturday overtime ; fully paid hos-
pitalization and maternity benefits; insufficient help in
the supply room , customer pickup desk , and on trucks;
onerous or unsavory duties such as unloading tires and
portering ; and condition of facilities , such as slippery
dock surface and no lock on a marking ticket cabinet.
10. Past Company policy and practice on improvements
Respondent adduced evidence purporting to show that
maintenance of equipment throughout the store was
a continuing practice. Store Manager Cone testified that
equipment installed when the store opened (Fall 1964)
was being replaced or repaired "with increasing frequen-
cy" and new equipment was being added "because
of the rapid growth of business." Cone's testimony
is supported by Company records, including budgets
for capital and maintenance expenditures.
Cone testified on various improvements made before
advent of the Union as a result of suggestions and
complaints by employees as well as managerial officials.
Thus, as a result of "a congested, cramped operation
causing complaints of the employees," he had "doubled
the size" of the receiving office in 1965 and he enlarged
it again in 1968. Similar complaints regarding "over-
crowded conditions" and "inability to move merchan-
dise" from the dock to stockroom led him in 1968
to a decision to enlarge that facility. Facilities other
than the shipping and receiving department here directly
involved were remodeled, revamped, or refurnished in
early 1969-including retail division 4265 (plumbing,
heating, and kitchen-planning), men's store, women's
and children's shoes, girls' department, male employees'
lounge, and major appliances-some prompted by
"expressed dissatisfaction" of employees, others by
business growth, and still others by "development of
new ways for presenting merchandise."
Cone testified that in the past he learned of employee
"problems" through his operating superintendent (Sheer)
and other supervisors in daily contact with employees,
as well as from employees directly while walking through
the store. Employee Pike testified that "You could just
go upstairs and ask to see Mr. Sheer or Mr. Cone
and tell them your complaints," but Pike later qualified
this by stating that he "just assumed this."]s Employee
iB Pike 's assumption presumably was based on a company booklet
("Getting Acquainted with Sears"), distributed to new employees, telling
them to "feel free to take your problem " to a supervisor or the
store's personnel department Pike testified , however, that prior to
Cone ' s April 3 speech (discussed infra) he could "recall" no instance
when a supervisor personnally told him that he could bring his complaints
to him ; and that he never took any complaint to Cone or Sheer
He did testify that while working in the stockroom , Sheer would come
around "almost every day or every other day" and since his transfer
to receiving , "not quite so often ," to ask him "how everthing was
going "
SEARS, ROEBUCK AND CO.
Smith indicated that in the 5 years he had been with
the Company no management representative or supervi-
sor ever approached him "to solicit" complaints, prior
to Allen's questioning following the advent of the Union.
Sherman, who had worked for the Company for about
5 years and Graczyk a total of about 3 years, testified
to the same effect.
C. Store Manager Cone's April 3 Speech
On April 1, the Regional Director issued his Decision
and Direction of Election in the representation proceed-
ing (supra, fn. 4) determining in essence that one of
the Union's three requested units-a unit of shipping
and receiving employees-was not appropriate and in
effect dismissing the petition insofar as it related to
those employees.20 At approximately 4 p.m. on April
3, Cone called a meeting of all the shipping and receiving
employees to inform them that they would not participate
in the election. Also present was Allen of the Chicago
personnel department who had examined and made two
corrections in a draft of a speech prepared by Cone.
Cone read his prepared text verbatim and answered
a question put by an employee.21
At the outset of his speech, Cone explained that
he "thought it important that we talk together briefly
regarding the recent Union activity." He gave a history
of the representation proceeding, including. the basis
of the Regional Director's Decision for ruling against
an appropriate unit confined to shipping and receiving
employees. Cone then stated:
More important than the legal procedures and
the ultimate decision, more important to you and
more important to me, is the need to assure you
of my interest in the problems within your Depart-
ment. As you know, Greg Allen . . . has spent
a considerable amount of time within your Depart-
ment in an attempt to learn about your problems
and to counsel with myself, Mr. Sheer, and Mr.
Sparks, concerning their correction. We hope that
we have made some progress. Let me assure you
that Mr. Allen, Mr. Sheer, together with myself,
will continue to devote time to your activities,
listen to your problems, and mutually seek their
solution. The atmosphere of a Sears store is, and
always has been, one in which an employee feels
"comfortable" and has the every-day awareness
that all members of supervision and management
are available to him for the purpose of sharing
his problems, both business and personal. I am
sure that we have been guilty of neglect and for
that, I apologize. I furthermore give you my assur-
ance that it will not reoccur. It appears in retrospect,
that the fast pace of activities within your depart-
10 Although it prevailed on this point, Respondent filed a request
for review of the Regional Director's other findings (e g , appropriateness
of two other nonselling units in which the Union sought representation),
which appeal is still pending before the Board
21 Based on the mutually corroborative and credited testimony of
Cone and Allen, in essential parts also corroborated by General Counsel's
witnesses Pike, Graczyk, and Cryer
497
ments caused me, caused Mr. Sheer, and caused
your supervisors, to devote too much time to our
business problems and too little time to the impor-
tant human problems that we all have.
I have no feelings about or toward any employee
who may have expressed an interest in the Union.
I am not curious nor inquisitive as to who they
are or might have been. I am most concerned
with the business and personal welfare of each
and every one of you and in providing an employ-
ment opportunity that is rewarding, from which
you can derive job satisfaction, and from which
you can seek promotion to activities that best make
use of your abilities and capacities.
In conclusion, I thank you all for coming, and
I emphasize to you my interest in you and in
your activities and I give you my assurance that
Mr. Sheer, Mr. Allen, Mr. Sparks-all of your
supervisors and I, will work in the direction of
correcting our faults and sharing your problems
with you.
D. Conclusions
1. Solicitation and adjustment of grievances
a. As the Supreme Court emphasized in N.L.R.B.
v. Exchange Parts Co., 375 U.S. 405, 409, "The broad
purpose of § 8(a)(1) is to establish `the right of employees
to organize for mutual aid without employer interfer-
ence."' This does not preclude an employer from com-
municating with his employees on unionism or engaging
in legitimate propaganda to defeat an organizational
drive. It does, however, proscribe conduct which,
expressly or impliedly, carries a "threat of reprisal
or force or promise of benefit." (Sec. 8(c) of the Act.)
Such promise or threat may be implicit and implied
rather than direct.22 Labor relations is a field where
"subtleties of conduct play no small part." N.L.R.B.
v. Express Publishing Company, 312 U.S. 426, 437.
Indeed, "[t]oday the employer seldom engages in crude,
flagrant derelictions. Nowadays it is usually a case of
more subtlety, perhaps the more effective, and certainly
more likely to escape legal condemnation." N.L.R.B.
v. Neuhoff Brothers, Packers, Inc., 375 F.2d 372, 374
(C.A. 5). "The test is whether the employer engaged
in conduct which, it may reasonably be said, tends
to interfere with the free exercise of employee rights
under the Act." American Freightways Co., Inc., 124
NLRB 146,147 .23 In making this determination, it should
be borne in mind that it is the reasonable "construction
[to be given] by the listener" (Hendrix Manufacturing
Co. v. N.L.R.B., 321 F.2d 100, 104 (C.A. 5)), which
is critical. Also to be "take[n] into account [is] the
22 See N L R B v Gissel Packing Company, Inc , 395 U S 575,
618-619 , Exchange Parts, supra , 375 U S at 409-410, N L R B. v.
Flomatic Corporation, 347 F 2d 74, 77 (C A 2), N L R B v Bendix
Corp., 299 F 2d 308, 309 (C A. 6)
23 See also Come Corporation of Charleston v N.L R.B , 375 F.2d
149, 153 (C A 4), N L R B v Illinois Tool Works, 153 F 2d 811
(C A 7)
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic dependence of the [listening] employee[s] on
the[ir] employer[s] " N L R B v Gissel, supra, 395
U S at617
b The basic issue here is whether Respondent's solici-
tation of employee grievances in response to the Union's
recognition demand, coupled with correction of those
grievances during the organizational campaign, may rea-
sonably be construed as illegal attempts to discourage
Union activity I agree with able Company counsel
(reply br 3-6) that no per se rule of thumb applies
Determination of the issue turns on the entire congeries
of facts in each case, including such factors as the
employer's true motive in soliciting and correcting the
grievances, his past policies and practices, and the nature
of the corrective action-the basic criterion being wheth-
er the employer's conduct was calculated or had the
reasonable tendency to induce employees to forsake
the union See, e g , Texaco Inc (Evansville, Indiana
Bulk Station), 178 NLRB No 72 24 I also agree with
Respondent that Board cases-such as Engineered Build-
ing Products Inc , 162 NLRB 649, 650, fn 1, 654-655-
indicate that soliciting grievances , without more , is per-
missible, even if occasioned by a union request for
recognition 25 While under certain circumstances an
employer, equating attempts to join a union with employ-
ee discontent and a "morale" problem, may inform
himself as a matter of "simple curiosity as to what
in the employees' working conditions disturbed them
to the extent where they desired to have union represen-
tation" (Texaco Inc , supra, 178 NLRB No 72), the
Board cases indicate, however, that the employer's soli-
citation is unlawful if it appears to be part of "a pattern
of unfair labor practices" (Engineered Building, supra,
162 NLRB at 650) or is otherwise bound to impress
upon employees that they are in no need of a union
to rectify working conditions and gain benefits previously
denied or not forthcoming Adjustment of working condi-
tions during an organizational campaign , in response
to complaints elicited through questioning triggered by
advent of a union, may, in certain circumstances, consti-
tute or be tantamount to granting betterments or improve-
ments, the reasonable tendency of which is to chill
unionism and to induce rejection of the previously desig-
nated bargaining representative 26
21 Cf N L R B v Harbison Fischer Manufacturing Co 304 F 2d
738 739-740 (C A 5) Hendrix Manufacturing v N L R B supra
321 F 2d at 103-105
25 See also Stuart F Cooper Co 136 NLRB 142 but see Fairchild
Camera & Instrument Corporation 169 NLRB 9 enforcement denied
on facts 404 F 2d 581 (C A 8)
2" See for example the following in which the Board found 8(a)(1)
violations Union Furniture Company Inc 118 NLRB 1148 1149
1155 ( systematic questioning of the employees concerning their gripes
and complaints followed by corrections pursuant to promises to
do something toward bettering conditions ) American Freightways Co
Inc 124 NLRB 146 (adjustment of two grievances during an organza
tional campaign ) Fairchild Camera & Instrument Corporation 169
NLRB 90 (meetings with employees to have them air their grievances
and thereafter granting them benefits pursuant to the complaints
International Harvester Company 170 NLRB No 134 (inquiries concern
mg grievances and corrections even where employees were not ques
tioned about union membership ) Eagle picker Industries Inc 171 NLRB
No 44 ( initiating during the election campaign a series of gripe
sessions at which [employer] solicited employees complaints and prom
c Applying these principles, I find that Respondent's
solicitation and correction of employee complaints and
grievances under the circumstances of this case reached
the level of interference in the unfettered exercise of
employee statutory rights As found, upon receiving
the Union's recognition request, Store Manager Cone
promptly, indeed "within the hour," contacted his mid-
western territory (Chicago) headquarters, which agreed
with him that the Livonia store faced a "morale" prob-
lem To solve this problem, two highly placed personnel
officials (Allen and Bennett) were promptly dispatched
to the store, there to systematically question employees
concerning specifics of their dissatisfactions and griev-
ances Introducing themselves as officials "out of the
Personnel Department from Chicago," Allen and Ben-
nett, after pointedly calling attention of the interviewed
employee to the Union's recognition demand, asked
him if he had "any problems or complaints" about
his job (while intoning the formula to the employee
that they were not interested in the employee's union
attitude) After hearing out the employee, the Company
official would promise to "look into" the voiced griev-
ance or try to rectify it Allen, as he testified, thus
learned of "a lot of various complaints" which he
reported to the store manager or operating superintend-
ent Some of the stated grievances admittedly were
corrected Smith, who had complained about Respond-
ent's failure to promote him in his 5 years at Sears,
was approached on three separate occasions about a
transfer or promotion-first by Superintendent Sheer
who advised him that he was being considered for
a vacant stock supervisor position, then by the head
of a shoe department who offered him a sales job,
and later again by Sheer who offered him a similar
job in the paint department and which Smith finally
accepted Sherman, who also complained about
Respondent's promotion policy, was similarly informed
that he was being considered for the stock supervisor
job, even though 2 years earlier he was told that he
was being removed from a night dock "supervisor"
position because he allegedly failed there Also, after
complaining to Allen about the treatment of "our immedi-
ate supervisors," the head of Sherman's department
(Sparks) came to assure Sherman that he "will try
to be more understanding " Still later, Sparks asked
him whether he was not now "a better supervisor "
Other complaints-by Smith, Sherman, and other
employees-relating to working conditions were rec-
tified, including complaints about lighting in work areas,
a tabletop surface, equipment such as jacks, and use
of protective clothing in cold weather 27 This in totality
ised corrective action at a time when this would have the natural
tendency to interfere with the employees organizational rights ) North
west Engineering Company 148 NLRB 1136 1139-40 (initiating meetings
with employees prior to election for the purpose of ascertaining and
correcting grievances) Cf S & H Grossinger s Inc 156 NLRB 233
234 modified on other grounds 372 F 2d 26 28 (C A 2)
27 In reaching the conclusions herein I do not rely on Respondent s
adjustment of employee complaints regarding the unheated dock office
since this correction was planned and decided upon before advent
of the Union nor on Respondents alleged assignment of additional
men on the dock since it appears that no material changes were made
in this regard
SEARS, ROEBUCK AND CO.
had all the earmarks of Employer channeling of the
Union ' s request for collective bargaining into the
Employer ' s preferred channel of individual bargaining
and thus a restraint of and interference with the employ-
ees' statutorily guaranteed rights to bargain collectively
if they so preferred.
d. In my view , the beneficial changes in terms and
conditions of employment effected during the organiza-
tional drive under the circumstances shown , in response
to unprecedented grievance solicitations and promises
to look into (or attempt to, rectify ) grievances by high-
level management officials from Respondent ' s Chicago
headquarters , following hard on the heels of the Union's
collective-bargaining request , were purposed to foster
and had the effect of creating the impression that the
employees ' needs and wants could be satisfied through
individual dealings , without a union , and that they needed
no labor organization to represent them . Under the
circumstances , I find that Respondent ' s action in at
least substantial material part was motivated by a desire
to wean away its dissatisfied employees from Union
representation and collective dealing , or at least to chill
their ardor for organizational activity . No other satisfac-
tory explanation has been put forward for Respondent's
three successive job offers and assurances of job consid-
eration following the Union ' s bargaining request to an
employee (Smith) who had been totally neglected in
this respect for no less than 5 years ; or for its treatment
of another employee (Sherman) who had 2 years earlier
been removed from a responsible position and now
was suddenly for no apparent reason tendered assurance
of consideration for supervisory promotion and better
treatment by his superiors ; or for its rectifying longstand-
ing grievances in regard to working conditions such
as lack of adequate clothing to protect against freezing
weather on the dock. Although in their conversations
with employees Company officials did not in haec verba
"promise " any grievance correction as the quid pro
quo for abandoning the Union , even the most naive
employee could hardly be left with any impression other
than the inquiries were triggered by the organizational
drive , particularly since the Company official in his
inquiry expressly linked the grievance solicitation with
the pending Union request for recognition . Cf. N.L.R.B.
v. Flomatic Corporation , 347 F.2d 74, 77 (C.A. 2).
The "intended and understood import of [the] message"
(N.L.R.B. v. Gissel, supra , 395 U. S. at 619) was plain.
"Employees are not likely to miss the inference that
the source of benefits now conferred is also the source
from which future benefits must flow and , which may
dry up if it is not obliged ." N.L.R.B. v. Exchange
Parts Co., 375 U. S. 405 , 409. As in Northwest Engineer-
ing Company , 148 NLRB 1136, 1140 , "the questioning
of employees concerning their grievances preliminary
to making . . . changes, and the changes themselves,
were part of a unified plan of the Respondent which
was reasonably calculated to influence employees in
the exercise of their rights guaranteed in Section 7
of the Act through granting or holding out the promise
of benefits ." See also Texaco Inc., supra , 178 NLRB
No. 72.
499
e. To be sure, as Respondent has pointed out, the
evidence is not one sided. In cases like this, it seldom
is. Livonia is a comparatively new and expanding store.
Improvements, replacements, and maintenance of equip-
ment and facilities are continuing factors; and budgets
and expenditures progressively grow. Moreover, some
of the improvements in question could be justified on
business grounds, as for example correction of the jacks
which presented a safety hazard. Nor were all complaints
acted upon, as for instance those on wages, hospitaliza-
tion benefits, insufficient help, and the slippery condition
of the dock surface. Furthermore, I have no doubt
that a satisfied work force was a major Company objec-
tive and that, even before advent of the Union, Respond-
ent had indicated to employees that they could discuss
problems with supervisors since low employee morale
could indeed have a deletrious effect on business. There
is also evidence that Store Manager Cone in the past
occasionally called on the Chicago Personnel Department
for assistance in handling employee morale.
Giving due weight to these and other considerations
adverted to by Respondent, I nevertheless conclude,
for reasons already indicated, that the grievance solicita-
tions, promises to look into the complaints or to try
to correct them, and the betterments in fact instituted,
were instituted or at least catalyzed by the Union's
collective-bargaining request and were accordingly ten-
dered and calculated to influence or persuade employees
to abandon support for the Union and to forget about
collective bargaining. Although prior to the organization-
al drive Respondent, as it claims, had avenues through
which employees could voice complaints (including talks
with supervisors), it had never previously solicited griev-
ances directly from employees-and certainly not in
the systematic or massive fashion employed by headquar-
ters emissaries from the prestigious Chicago Personnel
Department itself. Cf. Texaco Inc., supra, 178 NLRB
No. 72; Union Furniture, supra, 118 NLRB 1148. The
unusual attention bestowed upon employees, the unprec-
edented procedure and deviation from prior practice,
could and did reasonably lead dissatisfied employees
to conclude that but for the Union drive complaints
would have remained unalleviated. The fact that all
conditions complained about were not satisfied is not
determinative, since (for example) Respondent may sim-
ply have regarded some as too costly or unnecessary.
For like reasons I do not regard as decisive the circum-
stance that General Counsel's evidence on the unlawful
conduct is confined to the shipping and receiving employ-
ees and does not extend to the automative and mainte-
nance departments in which the Union also sought repre-
sentation (supra, fn. 4). The fact is that the shipping
and receiving department was the object of the Union's
organizational drive. For aught that appears, the Union
supporters were concentrated in that department, the
conditions there lent themselves to correction more readi-
ly than in other departments, and Respondent was more
concerned about organization of the shipping and receiv-
ing employees than of others. Finally, it is no answer
that the grievance solicitations were unaccompanied by
threats and derogatory antiunion statements, or were
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not part of a "pattern . . . of unfair labor practices"
or that no other unlawful conduct was found . "Defeat
of [Section 7] rights by employer action does not neces-
sarily depend on the existence of an antiunion bias."
Cf. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21,
23. See also N.L.R.B. v. Mrak Coa l Company, 322
F.2d 311 , 313. (C.A. 9); Terry Ihdustries of Virginia,
Inc., 164 NLRB 872(TXD), enfd . 403 F.2d 633 (C.A.
4).
For all of the foregoing reasons I find and conclude
that under all of the circumstances shown , including
its timing , Respondent ' s conduct in questioning employ-
ees concerning grievances , soliciting grievances , promis-
ing to look into or try to correct them and then correcting
them , was at least in substantial part motivated by
a desire to dampen and discourage employees' Union
activity . Respondent thereby interfered with and
restrained employees in the exercise of their statutory
rights to self-organization , in violation of Section 8(a)(1)
of the Act.
2. The April 3 speech
As found (supra, sec. C), after the Regional Director
issued his Decision and Direction of Election, Store
Manager Cone delivered a speech to shipping and receiv-
ing employees, announcingto them that the Regional
Director found their department, standing alone, not
an appropriate unit and that they would not vote in
the upcoming election. Cone then assured the men of
the Company's interest in their problems, apologizing
for the supervisors' past neglect, and promised them
that "it will not reoccur," explaining that thenceforth
the supervisors "will work in the direction of correcting
our faults and sharing your problems with you." Cone
also indicated that he had "no feelings about or toward
any employee who may have expressed an interest in
the Union," stating that he was "most concerned"
with the employees' "welfare" and in providing them
"an employment opportunity that is rewarding," satisfy-
ing, and which could lead to promotions in line with
employee "abilities and capacities." The complaint alleg-
es that this speech was coercive and violative of Section
8(a)(1) of the Act because Cone therein "instructed
said employees to direct their complaints concerning
working conditions directly to him and stated that they
would be hospitably considered."
I do not agree. To begin with, Cone's speech cannot
reasonably be construed as an instruction or direction
that employees bring their complaints to management,
to the exclusion of bringing and pressing complaints
through a collective representative of their choosing.
While Cone clearly indicated that, unlike in the past,
their complaints would be "hospitably considered," I
do not regard this assurance, outside the context of
contemporaneous Union activity and a pending election,
as coercive. Insofar as the shipping and receiving
employees were concerned, the election campaign was
over. There is no evidence that subsequent to the Region-
al Director's Decision (which made them ineligible to
vote) the Union filed 'or intended to file a new petition
to include them as part of an appropriate unit. As
indicated supra (sec. D, 1), employer solicitation and
correction of grievances in an organizational campaign
may be unlawful where his conduct can reasonably
be construed as a subtle employer technique to wean
dissatisfied employees away from a union, to impress
upon them that they need no labor organization to
secure correction of working conditions, and to influence
their vote by granting or holding out promise of benefits.
No such interference is justifiable from the timing and
content of Cone's speech. Cf. Orkin Exterminating Com-
pany of Kansas, Inc., 136 NLRB 630, 638-639.
I find and conclude that Cone's April 3 speech did
not interfere with, restrain, or coerce employees in
the exercise of their statutory rights to self-organization,
in violation of Section 8(a)(1) of the Act.28
CONCLUSIONS OF LAW
1. Under the circumstances shown, by questioning
employees concerning their grievances, soliciting griev-
ances, promising to look into or attempt to rectify them,
and by rectifying working conditions and instituting work
betterments, in response to the elicited grievances-
all at least in substantial part motivated by intent to
discourage Union adherence and activity-Respondent
interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act. ,
3. It has not been established that Respondent,
through Store Manager, Cone's speech of April 3, inter-
fered with, restrained, or coerced employees in violation
of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the
Act, I shall recommend that it cease and desist therefrom
and take affirmative action customarily required to reme-
dy unfair labor practices of the, nature found.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby make
the following:
RECOMMENDED ORDER
Sears , Roebuck and Co., Livonia, Michigan, its
officers , agents, successors , and assigns, shall:
1. Cease and desist from:
" The record shows that Cone's prepared speech was also delivered
(in the same manner as Cone ) by Superintendent Sheer to two groups
of other stockroom employees The complaint did not allege Sheer's
conduct to be a violation. For reasons stated, I would find his speeches
privileged even if so alleged
SEARS , ROEBUCK AND CO.
(a) Questioning employees and soliciting from them
grievances regarding working conditions , promising to
rectify and rectifying them , and instituting work better-
ments, with the purpose of interfering with , restraining,
and coercing employees in their free and unfettered
choice of a bargaining representative ; or so as to induce
or cause employees to reject and refrain from activities
in behalf or continued support of Local 299 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Ind., or any other labor organi-
zation ; provided, however , that nothing in this Order
shall be construed as requiring Respondent to vary or
abandon any benefits or working conditions heretofore
placed into effect.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its store in Livonia , Michigan , copies
of the attached notice marked "Appendix ." 29 Copies
of said notice , on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent ' s authorized representative , shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered , defaced , or covered by any other mate-
rial.
(b) Notify said Regional Director, in writing , within
20 days from the receipt of this Decision , what steps
have been taken to comply herewith.30
IT IS FURTHER ORDERED that the complaint be dis-
missed in all other respects.
ra In the event no exceptions are filed as provided by Section 102.46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings , conclusions, and
order, and all objections thereto shall be deemed waived for all purposes.
In the event that the Board's Order is enforced by a Judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
501
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
'" In the event that this Recommended order is adopted by the
Board , this provision shall be modified to read "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question or solicit you as to com-
plaints and grievances regarding working conditions,
nor shall we correct working conditions complained
about , in order to interfere with your choice of
bargaining representative , or so as to induce you
to reject and refrain from activities in support
of Local 299 , International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America , Ind., or any other labor organization.
However , this will not affect benefits or corrected
working conditions heretofore put into effect.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exercise
of the rights guaranteed you in Section 7 of the
National Labor Relations Act.
SEARS , ROEBUCK AND
Co.
Dated By
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board ' s Office,
500 Book Building , 1249 Washington Boulevard, Detroit,
Michigan 48226 , Telephone 313-226-3200.