Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Nov 13, 1975

221 N.L.R.B. 632 (N.L.R.B. 1975)

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sears, Roebuck and Co. and Barbara Schulze . Case 7-
CA-11682
November 13, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
standards of the Board (Respondent, in the course of its
retail sales operations, in a recent annual period, sold
goods in Michigan valued in excess of $1 million of which
goods valued in excess of $500,000 were received from
outside the State of Michigan).
Upon the entire record in -this case, from observation of
the witnesses, and after due consideration of the brief filed
by the Respondent (no other party filed briefs), I make the
following:
On August 14, 1975, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Sears, Roebuck
and Co ., Troy, Michigan, its officers , agents, succes-
sors , and assigns, shall take the action set forth in the
said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Detroit, Michigan, on May 1 and 2,
1975, upon a complaint issued on February 13, 1975,
pursuant to a charge filed by the above-named Charging
Party on January 6, 1975. The complaint alleges that
Respondent threatened employees with discharge if they
continued in their efforts to secure more protection for
employees on the employees' parking lots, and discharged
Bonnie Bradley and Barbara Schulze because of their
activities in connection with a petition of employees
seeking more protection on the employees' parking lots, in
violation of Section 8(a)(1) of the Act. Respondent's
answer denies the commission of the alleged unfair labor
practices, but admits allegations of the complaint sufficient
to justify the assertion of jurisdiction under current
221 NLRB No. 89
FINDINGS AND CONCLUSIONS
1. THE ISSUES
A. On the morning of August 16, 1974 (all dates
hereinafter in 1974, unless otherwise stated), Bonnie
Bradley was threatened with discharge by Respondent.
The General Counsel alleges that this was due to Bradley's
role in seeking to have Respondent provide better
protection for the employees on Respondent's parking lots,
activities assertedly protected under the Act. Respondent
does not dispute that activities of the sort asserted by
General Counsel are normally protected activities, but
contends that Bradley was reprimanded not for circulating
the petition, "but for the disruption of the work of others."
(Br. p. 7.)
B. Later in the morning of August 16, Bradley and
Barbara Schulze signed papers asserting that they were
resigning from Respondent's employ. General Counsel
contends that these resignations were involuntary, that
Respondent caused the employees to resign and sign
papers of resignation because of Respondent's opposition
to the employees' activities and efforts to obtain more
protection on Respondent's employee parking lots. Re-
spondent contends that the resignations were voluntary,
and that Respondent did not cause Bradley and Schulze to
execute the resignation papers. Respondent further asserts
that even if it were to be found that the employees had
second thoughts about resigning at the time they were
requested to sign the resignation papers, and were caused
to sign them at that time by Respondent, the two
employees, assertedly, had previously orally stated their
resignations to another management official who had
accepted their resignations, by which, it is contended, the
employees were bound. (The employees deny orally stating
that they had or were resigning.) Alternatively, Respondent
contends that even if it were to be found that Respondent
constructively discharged Bradley and Schulze, Respon-
dent's actions were based on the employees' misconduct
and not on their activities in seeking better protection for
employees on the parking lots. There is an issue as to
whether the employees engaged in misconduct.
C. The resolution of the issues depends in large part on
resolution of credibility conflicts. These have given me
much concern, and I have carefully considered the
testimony of each witness and the impressions made upon
me at the hearing in light of the entire record and the
arguments made in Respondent's brief. Upon considera-
tion of all the factors involved, and as set forth in some
detail hereinafter, I have for the most part credited the
testimony of Bradley and Schulze. They seemed to be
earnestly attempting to tell the truth. I was concerned with
SEARS, ROEBUCK AND CO. 633
the emotional stress, exhibited by Bradley as a witness,
which at times affected her testimony, but this seemed to
be due to the necessity that she recreate a very traumatic
episode in her life. In any event, she was corroborated by
Schulze at most crucial points.' I was not similarly
impressed with Respondent's witnesses, on the whole, as
noted hereinafter.
II. THE FACTS
A. Preliminary
Until August 16, Bonnie Bradley and Barbara Schulze
were employed by Respondent at a Credit Central
processing operation (herein called "Credit Central") on a
floor above one of Respondent's retail stores located at the
Oakland Mall, in Troy, Michigan. About the first of
August an incident occurred in which a strange an
followed Bradley from her car in Respondent's parking lot
adjacent to their place of work. This frightened Bradley
and some of the other employees with whom Bradley and
Schulze worked, and became the genesis of the train of
events which led to the termination of employment, of
Bradley and Schulze.
On several occasions , Bradley had discussed the employ-
ees' desires for improved security in the parking lot with
Don Edward Lindner, Respondent's Detroit Credit Cen-
tral operating manager . The indication from the record is,
and I find that Respondent, through management at Credit
Central, exhibited some resistance to the employees'
requests for improved security measures. The employees
clearly felt that nothing was being done.2
, On August 14, Bradley talked to a Mr. Dewey,
apparently involved with Respondent's store, security, and
had an appointment to talk with a Mr. Haitz, an official of
the store . That afternoon, Bradley was called into Lind-
ner's office where she was informed that her appointment
with Mr. Haitz was canceled . At that time Lindner sought,
apparently unsuccessfully, to secure from Bradley an
expression of satisfaction with security at the, parking, lot.
B. The Petition
During their afternoon break on August 15, certain
employees of Credit Central, including Bradley and
Schulze, were discussing their concern over parking -lot
security. One of them' suggested the 'circulation of a
petition and Bradley immediately went to her desk, during
breaktime; and typed several copies of such a petition.3
Respondent's contention that Bradley engaged in-miscon-
duct in the circulation of these copies of the petition is
considered immediately hereinafter. As Schulze, Bradley,
and another employee were leaving at the end of the day,
the girls showed the signed petitions to Jack Wheeler,
1 Among the various comments on the employees' testimony in
Respondent's brief, I have particularly noted and considered the contention
in fn. 2, p. 8, that Bradley's testimony concerning her prior affidavit
undermines the reliability of her testimony. I do not agree.
2 I do not mean to intimate that there was a need to improve security on
the parking lot (or the converse), or that Respondent did or did not take any
action as a result of the employees' complaints' Prior to the opening of the
hearing the parties entered into a stipulation to avoid litigation of the entire
matter of parking lot security which greatly limited the evidence presented.
3 The petition read "I -, care about the security in the Sears ' Parking
Bradley's immediate supervisor at,'Creddit Central, telling
him, "see . . . more people do care than what Mr. Lindner
said." 4 Bradley told Wheeler that the employees intended
to send the petition to the Respondent's headquarters in
Chicago or some other authority. Wheeler suggested that
the girls "sleep" on the matter before taking the petition
any further, and said he would talk to them about it in the
morning.. Bradley made Wheeler promise not to tell
Lindner about this because she was afraid he would be
angered by it, based on her prior experience with him.
Alleged misconduct in the circulation of the
petition
According to Lindner, on the morning of August 16, the
day after the circulation of the petition, Supervisor Beatrice
Alin approached him and informed him of the petition and
asserted that she had received complaints from employees
"that are being 'coerced and harassed into signing the
petition by one Bonnie Bradley . . . she indicated that
these certain employees were receiving nuisance phone
calls. Some of them she related . . . as being disruptive of
their work ... because of the nuisance phone calls....
[I ]n one, instance, of Barbara Wambaugh, . . . where
Bonnie had told her that she was afraid to sign the petition
because of her manager, Mr. Martin, might find 'out' about
it and fire her. There were other phone conversations,
apparently, that continued to be disruptive, `along with
actually going to the individual's desk."
This testimony was' received, over the objection of
General Counsel, for the fact of the report only and not for
the truth of the contents of the report. Respondent did' not
call Supervisor Ahn as a witness or anyone else assertedly
having any first hand knowledge of these alleged com-
plaints against Bradley, preferring to rely solely on
testimony of Bradley given on cross-examination.
Bradley works in an open area with approximately 100-
150 other employees. One copy of the petition was on
Bradley's desk, and during the afternoon several employees
came 'to her desk to sign it. Other copies apparently were
being circulated among the employees during the after-
noon, and were" 'collected at the end of the day, as
previously noted. During "the afternoon, Bradley ap-
proached three -employees at their desks concerning 'the
petition. As to one, an asserted assistant supervisor referred
to as "Leila," Bradley was told that everyone 'had signed
but Leila, and Bradley states that she went to Leila and
asked her why she would not sign, to which Leila replied
that she had worked for Respondent a long time and did
not want to jeopardize her job. Bradley spoke to another
employee who said that her supervisor, Mr. Martin, knew
of the petition and she did not want to sign it `for fear of
antagonizing him. With respect to a third employee, who
Lot. I believe that we need more security in the parking [sic] due to the past
problems that some of the girls in the credit central have had within the past
2 1/2 weeks. Signed [sic I your name below which will be accounted for in
the blank space above if you, agree." There are 52 names appended to the
three-petitions in evidence.
4 From this and the entire record it is inferred that Lindner had
expressed skepticism' that other employees were concerned about the
security problem; note the language of the petition ; see also, Lindner's
conference with Bradley on August 16, infra.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that she did not want to'sign the petition because her
husband worked for Respondent, Bradley told other
employees "to leave ' her' alone;" that the employees should
not "bug anybody, if they don't sign it, then they don't sign
it." Bradley, recalled calling Barbara Wambaugh on one
occasion 'on the interoffice phone. There is no evidence as
to the duration or the content of this call. There-is no
evidence that Bradley spoke to any other employees an the
interoffice phone about the petition except Schulze.
Bradley denied threatening, harassing, pressuring, forcing,
or badgering employees to sign the petition.
It is apparently not unusual for employees from time to
time to walk to other employees' desks for brief remarks,
and employees on occasion have used the interoffice phone
to talk to one another: There seems to have been no
specific rule covering such conduct, but it seems clear that
Respondent sought to discourage it:
C: , Events of August 16
1. Meeting in Lindner's office
During the following morning, August 16, Bradley and
Schulze did not hear from Wheeler, but Bradley was called
into Lindner's office. According to Bradley, Lindner told
her that he was "sick and tired of you and Barb [Schulze]5
that. I was causing a conflict between 1490 [the Troy
store] and .8460 [Credit Central], and that he wasn't going
to stand for it, and that by doing this petition and going
behind his back I was betraying the, company. He said I
had no right ,to do this, I was causing a disturbance. And
he said he was going -to speak to Mr. Isaacs on Monday to
have me -released .... I started crying ... and I said,
why ... he just said . ,..that we were causing too much of
a disturbance and we were harassing peoples ... he said
... that he took a survey, and . . . the people were not
worried about the security problem.,And I said yes they
were, that's why we had the petition started." In response
to, a question from Lindner, Bradley informed him that the
purpose of the petition was to prove to Lindner "that there
were other people worried and scared about the problem."
Lindner, on the other hand, testified that he summoned
Bradley to-his office on this,occasion because of the report
made to him by Supervisor Beatrice Alin that employees
were being .coerced and harassed by Bradley to sign the
petition; that, after Bradley admitted that a petition
concerning parking lot, security, was being circulated, he
told her that he had complaints that she was coercing
employees to sign ; and that he refused, upon -Bradley's
request, to tell her who, had made the complaints, but told
her that he "did not want any disruptiveness in the office,
and that if she continued to pursue this type of coercion
, .. that it would be my recommendation, upon Mr. Issas'
return from vacation, that she be released." Lindner
further asserts that he told Bradley that he was not
I
5 Bradley at this point sought to bring Schulze into the meeting, but
Lindner told Bradley, in her words, "to sit down and shut up."
6 Bradley indicated at this point that she understood, however, that only
she was to be "released."
7 As previously noted, neither Supervisor Alin nor any employee testified
to asserted coercion or harassment by Bradley. Nor did Wheeler, Gay,' or
Duffy testify to any misconduct on her part.
8 Bradley, on cross-examination , recalled, though with some difficulty,
concerned with the petition, but by her-manner of handling
it, "by being disruptive in the office." Lindner also testified
that he told Bradley that Wheeler and Louise Gay (another
supervisor) had previously advised him that Bradley's work
"was not current, that she was making mistakes," "and that
Mr. Wheeler had had various conversations with her
regarding her nuisance calls again. Talkativeness in Mr.
Duffy's division, and being disruptive there as well."
Lindner says that at that point the conversation was
terminated.?
Though I credit Bradley's version of the meeting, I have
noted the points of similarity between her account and that
of Lindner. Bradley's version is to the effect that Lindner
reprimanded her because she was involved in the circula-
tion of the-petition and would seek to have her released for
that reason. Lindner, however, asserts that he told Bradley
that he was not concerned by the petition, but by the
manner of her handling of it and would seek her
termination for that reason, adding, for good measure,
other asserted, derelictions of Bradley.8 On the whole
record, I am convinced that Lindner was, in fact,
concerned about the employee activities (including the
petition) seeking to have Respondent accept a larger
responsibility for protection of the parking lots, and' was
upset = as Bradley testified - that she had drawn officials
of Respondent's store into the problem.
2. The meeting with Nippa
During this same morning, sometime after Bradley's
conversation with Lindner, both Bradley and Schulze met
with Russell W. Nippa, a management official with
jurisdiction over Credit Central, in his office at the Credit
Central location. According to Nippa, as he was walking
down one of the corridors (7 to 10 feet wide) in the office
area that morning, Bradley and Schulze "were standing in
front of me. They stopped my ability to be able to pass
down the corridor." Nippa says that Schulze said that she
had to see him "immediately, because I want to tell you the
reason why Bonnie and I have resigned from the
company." Nippa says that he agreed and requested that
the two come into his office. Nippa stated that both
employees were crying at the time.9 Though Nippa
expressed himself as being disturbed by the fact that the
two employees met him in the corridor and "balked [sic]
my ability to be able to pass down the hallway,". assertedly
caused him "to stop," so that "there wasn't any choice,"
there is no evidence that he made objection to the
employees, asked them to move aside, or suggested that he
was too busy to talk to them. Also, though Nippa described
the employees' attitude on this occasion as "arrogant,"
when asked to fully describe the conduct which led him to
this conclusion, he replied only that Bradley spoke with "a
very definite confidence" in stating that she wanted to talk
that Lindner had spoken to her about some asserted lapses in her work on
this occasion, as well as about reports he said he had received that girls were
being pressured to sign the petition. She testified that she informed Lindner
that she had not pressured or forced anyone to sign the petition. Lindner's
testimony is to the contrary.
9, Later, however, Nippa testified that when the girls met him in the
corridor they did not appear to be, nor were they, upset
SEARS, ROEBUCK AND CO. 635
to him "immediately, about Bonme['s] and my resignation
from the company."
Bradley and Schulze, on the other hand, testified that
only Schulze approached Nippa in the corridor, on this
occasion. Bradley had previously exited from Lindner's
office crying, and had told Schulze that Lindner was going
to have her (Bradley) terminated. Schulze asserts that she
told Nippa, in the corridor, that she and Bradley had a
problem, that they "were thinking of quitting" because of
their problem, and would really like to talk to him about
their problem. When Nippa said that he would talk to
them, Schulze 'called or motioned to Bradley, who
remained at her desk some distance away, to join them in
Nippa's office. Schulze denied that she told Nippa that the
employees "were quitting."
The testimony of the two employees as to what occurred
in Nippa's office that morning is fairly consistent and may
be expressed in the words of Schulze: ". . . We sat down
and I began to tell [Nippa] ... I started out by saying that
I am sure that you have heard about the security problem,
and that is as far as I got.... Well, he interrupted me, and
he started saying that he was sick and tired of the security
problem and that they were not going to change the
security problem, that they were very satisfied with it, And
then he started saying . . . that he thinks that we should
quit, and it would be better for me and for the company.
And I told him that I did not want to quit, that I had
worked for the company for almost 5 years, and that I
really enjoyed my job. And he . . . kept right on going
with what he was saying. . . . I don't understand what he
was saying . . . . He was using words that I have never
heard . . . and if I did hear them, I never knew the
meanings to them.10... He also told me that I should find
a job where the security guards would walk me to and from
my car at night. . . . [The subject of quitting] was brought
up many times, and I kept saying that I didn't want to quit.
I just think that this 'problem should be solved. It was
between Bonnie and security. . . . I didn't even have a
chance to tell him why I was there. And he was talking in
such a way that he would turn exactly what I was trying to
say around, and by the time I got, you know, enough nerve
to say what I wanted to, I didn't know what I was saying
because he had me totally confused. I was crying and I was
very upset, and from then on, I don't know what else was
said, and I just left." Schulze denied that she stated during
this meeting that she was "quitting" or "resigning."
Bradley testified that both she and Schulze said that they
were not resigning ; that Nippa criticized them for coming
directly to him rather than going to their immediate
supervisors ; that Nippa "kept insisting that it was best for
us and for the company if we would resign. And we kept
saying we wouldn't"; and that Nippa strongly suggested
that the employees "go right to personnel, now, and sign
10 Bradley also testified that "he was using words that I don 't know, that
I didn't know quite a few . . he used 'indubitably' and, I mean , big words
like that, and I didn 't understand a lot of them ." From observation of Nippa
and consideration of his manner of speech and choice of words , as well as
my observation of the employees , I have no doubt of the accuracy of this
testimony.
I Nippa denied knowledge , as of "the first thing in the morning," of the
employees', petition concerning parking lot security circulated the previous
day.
your resignations," saying that was all he had to say.
Bradley says both employees left crying.
On his part, Nippa testified that at the outset of this
meeting, Schulze said she wanted to tell him the reasons
"why we resigned - we are resigning from the company";
that they were dissatisfied with security arrangements in
the parking lot and with the disinterest of Lindner, Haitz,
and Respondent's management in making improve-
ments;11 that he advised them that Lindner, Haitz,, and
Respondent's management were aware of their concern
and were "always considering ways that they can improve
the security in the lot, and he [Haitz] had taken it under
advisement"; that it was apparent that the employees had
lack of confidence in Respondent' s management (in
Nippa's word, the employees were "disenchanted" with
management) and its approach to the,problem; and that,
under the circumstances, the employees' decision to resign
was in the best interest of the employees and Respondent.
Nippa states that he further told them that they should
seek employment at some place where security arrange-
ments were to their liking and "I told them that, I said, that
I want you to go across the corridor, to the personnel
office, and close your records with the company, and as
you have stated to me, I accept your resignation." When
asked why, in consideration of the employees' experience
and good employment records he didn't attempt to placate
Bradley and Schulze and attempt to retain them in
Respondent's employ, Nippa replied, "I accepted their
resignation because I had background on it, as to what
their concerns were, and I knew at that particular point
that they were disenchanted with our management
team. . . . 1112
Two events of some significance followed upon this
conference in Nippa's office. First, Bradley and Schulze
did not go to the personnel office to fill out personnel
papers relating to resignation, as Nippa had directed. They
went to the ladies room where they sat crying and were
consoled by other employees who assured them that
Respondent would not fire them, though the two said that
is what Nippa had said. Secondly, Nippa called Lindner
into his office to brief Lindner that the two employees had
resigned and had been directed to go to the personnel
office. Nippa stated that he did this so that Lindner, in
checking the employees out, would know what had
happened. ,
As between the accounts of the two employees on this
occasion and that of Nippa, I find the employees' version
more natural and persuasive. I was struck with Schulze's
statement that she enjoyed her job and wanted to continue
at work, not to quit.13 The thrust of the employees'
concerted activities was to improve their working condi-
tions at Respondent, not to sever their employment. It is
noted that Bradley and Schulze had not yet transmitted the
employee petition, secured just the day before, to Respon-
12 At the time, of this meeting Nippa had no information derogatory to
Schulze and apparently only some vague information concerning Bradley's
work-related problems It is inferred that by "background" Nipia had
reference to his knowledge of the employees ' discontent with security on the
parking lot.
13 Schulze was admittedly a good employee. There was also no showing
of discontent on Bradley's part except with respect to parking lot security
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent's home office for action, as they intended. Respon-
dent attempts no explanation to account for their asserted
overnight decision to suddenly resign.14 On the other hand,
it makes sense that Schulze (who apparently had reason to
consider herself a valued employee) would attempt to
secure Nippa's support for their position by suggesting that
she and Bradley were thinking of resigning if Respondent
did nothing about the security problem. However, if they
had already made a firm decision to resign, it makes little
sense that they sought a conference with Nippa to tell him
about it. Even Nippa appeared to consider this unusual.
Moreover, upon leaving Nippa's office, the employees'
conduct did not indicate any desire to terminate their
employment, but the contrary.
Nippa's testimony, moreover, does not strike me as being
either natural or straightforward. On the record in this case
I do not credit Nippa's testimony that the employees'
conduct in the corridor was "arrogant" or contumacious.15
I have no doubt,that Nippa sought to have the employees
resign because of their activities in behalf of parking lot
security, and directed them to go to the personnel office for
that purpose. I do not believe that they "offered" him their
resignations, as Nippa testified, or that he formally
accepted their resignations on this occasion.
3. Meeting in the personnel office
After Bradley and Schulze left Nippa's office on the
morning of August 16, Nippa, as noted, called Lindner into
his office to brief him on Nippa's conversation with the two
employees and the fact that Nippa had directed them to go
to the personnel office to sign their resignation papers.
When Lindner discovered that they' had not gone to the
personnel office, he sent for them. Lindner and Betty
Daris, assistant personnel manager at Credit Central, met
with Bradley and Schulze in the personnel office. Accord-
ing to Schulze's testimony, which is essentially confirmed
by Bradley, the following occurred: "[Lindner] looked at
his watch, and he said he would have to make this quick
because he didn't have much time..' . . So he sat down and
he said, `I hear from Mr. Nippa that you girls are
resigning.' And I said, `I am not resigning.' And he said,
`You' are resigning.' And I said, `I am not.' And he said,
`Well, you girls are [released] as of this minute.' He then
got the release papers and pens and put them in front of us
and told us to sign them, and I said, `What for?' And- he
said, `Because you are being released.' 16 And so I started
signing them , and I handed them back to him after I signed
it, and he said, `You have to put a reason down.' And I
said, `What for?' And he said, `Because you do.' So I wrote
down, `Management," because management was telling me
to sign it.17 . . . He never offered for us to read what we
signed. I was too upset to ask. I didn't know what it was. I
figured it was just a release form, you know, that we were
14 The only event that had occurred was Lindner's threat to Bradley to
have her released for her part in circulating the petition Presumably, if this
was the causative factor for the alleged resignations , they would have
mentioned this to Nippa with other asserted criticisms of Lindner, but
Nippa does not mention this.
15 Lindner also testified that Nippa told him that the conduct of Schulze
and Bradley on this occasion was "extremely embarrassing." Nippa did not
testify, to this effect , except as noted above.
16 On cross -exanunation , Schulze recalled that , after she insisted that she
fired. So I was very upset at that time and I told him, at
this time, that he had no right to fire me without giving me
a warning, giving me an excuse, giving me anything; and
that I would take him to court. .._ . He laughed, and he
said, `Don't threaten ,me.' And he said if I said anything to
Chicago, it would just come back to him and it would do
me,no good."
Both Bradley and Schulze testified that they were in an
upset condition, crying, and that they continued to
reiterate throughout the conversation that they were not
quitting, and that Lindner insisted that they sign the
documents. Schulze testified and Bradley indicated that
they signed the, document without reading it or really
understanding its significance. Schultze's pertinent testimo-
ny, on cross-examination, was as follows:
Q. Well did you sign simply because [Lindner] told
that you had to?
A. He said that we were being released, and we had
to sign a paper. At this time I was very upset,`I was
crying, I didn't know what to do, and I had never been
fired before from a job, so I figured, the way he had
said it when you're fired, you sign a paper, saying that
you are fired. I had never been' given a chance to read
that paper. He never even told me to read that paper.
The form involved measures approximately 8-1/2 inches
by 5-1/2 inches. The front of the document, with many
spaces for the insertion of personnel information, was
apparently never shown to the two employees. In fact,
Respondent did not complete this side of the document
until August 21. The obverse of the document is divided
into two parts, with a double rule dividing the two halves.
One half contains 29 items in rather small type to be
checked off by management. None are checked. The top
part of the second half, in small (7-point) type, is as, follows:
I desire to resign on for the following reason:
I have also been informed and understand that, as a
result of voluntarily discontinuing my employment
with Sears, Roebuck and Co., my continuous service
with the Company is lost. In the event Company' policy
permits my reemployment, I understand it wilt be with
new service, and that I will not be immediately` eligible
for membership in any of Sears benefit plans.
Signature of Employee
Date
Schulze testified that she did not read any of the- above;
she states that "he pointed to where I signed, where I put a
reason, and I just wrote it.-
was not quitting, Lindner said that she was "being released as of this
minute," and at some point right after that said , "If you are not quitting,
then sign this release " Schulze did not at first recall this latter statement
until she was shown her pretrial affidavit.
17 Though Schulze's testimony is largely in the first person, itr is clear
from Bradley 's testimony and the record as a whole that Schulze was
speaking for both employees and that Lmdner's responses included both
Simultaneously with Schulze, Bradley signed the form , and, at Lindner's
request for a reason, inserted , "security and management problems."
SEARS, ROEBUCK AND CO. 637
After leaving the personnel office, both Bradley and
Schulze went to the ladies room where they vented their
emotions in an episode of weeping.
According to Lindner and Daris, the meeting in the
personnel office on this occasion was rather calm and
unemotional.18 Lindner states that at the outset, he told the
two employees that they had resigned from the Respon-
dent and he was there to check them out; that he pushed
two slips across the desk to the employees and asked them
to sign the slips; 19 that in his judgment they looked at the
back of the slips long enough to read what they were
signing; that Schulze asked what she should put down, to
which he replied "whatever your reasons are for resign-
ing"; that Schulze filled out the slip without hesitation; and
that Bradley filled out her slip after consulting with
Schulze, meanwhile whispering that she wondered what
her husband was going to say about "this"; that, at this
point, Schulze broke the calm by accusing Lindner of lying
to her, and in response to Lindner's assertion that she
should have come to him about this, said that Bradley said
she could not, which Bradley at that point denied; that
Schulze said she was going to obtain an attorney and go to
the Civil Rights Commission and the National Labor
Relations Board, to which he replied that this was her
prerogative, whereupon the meeting was terminated and
the employees left.
Lindner denied that in this conversation he stated that
the employees were being released or being discharged, or
anything like that; or that he told them that they had "to
write down a reason for resigning or leaving"; or that he
told them in words or substance, "If you are not quitting,
then sign this release"; or that he called the slips which the
employees signed "a release"; or that he did anything in
any way to hurry the employees; or that the employees
during the course of the conversation stated that they were
being fired; or that either of them said they were being
pressured or coerced.
After the two employees left the personnel office, Daris
learned that the two were in the ladies room, "crying very
hard," and she went in to try to calm them down. Lindner
heard that Bradley and Schultze were in the ladies room
"causing a commotion, and stating that they had been
fired." He told Daris to get them out of the building. Both
Danis and Lindner agreed that the two employees should
come back on Monday, August 19, to complete the
checkout procedure, inasmuch as it was expected that
Leona Fuerst, the personnel manager, would have returned
from her vacation and Darts told the employees to return
then.
The record leaves no doubt but that in the course of a
single morning, on August 16, Bradley and Schulze, both
18 Before entering the office, Lindner states he heard Bradley tell Schulze
that she did not know if she could keep from crying, but that neither was
crying "at that time." Daris testified that "Everybody was talking normally.
Bonnie [Bradley] was a little upset before she left [over a remark of
Schulze 1, but that was about the extent of it." Daris denied that either girl
was crying in the office, though she did not know if they had "tears in their
eyes."
19 Lindner denied ordering the employees to sign the slips. At one point,
Daris denied that Lindner told' the employees to sign the slips, though
"They may have filled it out, I don't know - maybe left their signature off
and [he I maybe asked for their signature "
20 In coming to this conclusion I have considered the testimony of
relatively young females (at the time about 18 and 22,
respectively), were placed under extreme emotional stress,
and that Respondent was aware of this. Two more
reluctant candidates for resignation it would be difficult to
imagine. Early in the morning, Bradley had been informed
by Lindner that she would be discharged. Upset by this
Bradley informed Schulze who sought a meeting with
Nippa. When they went to Nippa to discuss their problems
concerning Respondent's handling of the employees'
complaint concerning security on the parking lot, Nippa
ended by directing them to go to the Personnel Office and
sign resignation papers. Significantly, they did not do so
(as would have been expected if they were determined to
resign), but went to the restroom, where they had a crying
jag. Lindner had them summoned from there for the
purpose of , securing their signatures to Respondent's
resignation forms. The haste with which this was done is
marked. Lindner was not experienced in this procedure.
The forms were not filled out in advance by management
as would appear normal. No thought was given to awaiting
the return of the personnel manager, who was experienced,
and who was expected to return on the next following
workday, The thrust of the entire procedure was to get the
employees' signatures on those papers as soon as possible. I
have no doubt that Lindner and Daris, as the result of their
efforts to locate and to'summon Bradley and Schulze from
the restroom, where they were weeping and discussing their
discharge by Nippa (as they interpreted it) with other
employees, were aware of the two employees' distraught
condition and the fact that they thought they were being
fired. I find it, impossible to believe that the two women
thereupon calmly and composedly signed the resignation
forms, as Respondent contends, because they wanted to,
and without compulsion. Schulze's threat, during this
meeting, to take legal action to contest her termination is
inconsistent with an alleged voluntary resignation. The
facts leading up to the events in the personnel office that
morning also indicate the contrary, and the fact that, after
that meeting, Schulze and Bradley immediately went back
to the restroom and engaged in what seems to have been
near hysteria, apparently again asserting that they had
been discharged, serves to further confirm that their action
was involuntary, and not what they desired. I am thus
convinced that the employees' version of the events in the
personnel office is the more reliable account.20
Conclusions
1. Respondent contends, as has been noted, that
Lindner's threat to have Bradley discharged was occa-
sioned by reports that she had engaged in activities
Fuerst, the personnel manager , and of Gregory B. Allen, a group personnel
manager of Respondent, who testified that after their discharge, Bradley
and Schulze said to them that the employees had given their resignations
(Fuerst said Schulze wanted her records to show that she had been fired), as
well as the testimony of Bradley and Schulze as to their conversations with
Fuerst; the fact that Schulze refused to sign Respondent 's forms precedent
to her being paid moneys due upon termination , and did, indeed, hire an
attorney to pursue her rights; as well as other evidence submitted by the
parties bearing on the credibility of the witnesses. It would unnecessarily
burden this already overlong decision to discuss in detail my evaluation of
this material.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing and harassing other employees and disrupting
their work. These matters unquestionably were brought up
by Lindner in his conference with Bradley on the morning
of August 16; 'but on the record as a whole, and as
discussed above, I'am convinced that the motivating factor
for the threat was Lmdner's' opposition to the employees'
concerted activities in seeking to have Respondent change
its security procedures and to Bradley as an instigator of
this effort, and I therefore find that by this threat to have
Bradley discharged Respondent violated Section 8(a)(1) of
the Act.
'2. Respondent argues that Bradley and Schulze offered
their resignations to Respondent's credit manager, Nippa,
"in a huff over their anger and frustration with the
management of the Company for not being more respon-
sive to their requests that more security be furnished in the
parking lot, and when the Company accepted their
resignations they became 'further angered and tried to
make it look like they were forced to quit or that they were
discharged," and contends, citing Southern Cement Co., 172
NLRB 383 (1968); M & M Charter Lines, Inc., 173 NLRB
605; and Royal Aluminum Foundry, Inc, 208 NLRB 102
(1974), that, once such resignations were accepted by
Nippa, the employees were bound and Respondent had no
obligation to permit them to change their minds. (Br. pp.
2-5.) However, as previously found, the employees merely
suggested to Nippa that they were "thinking of resigning"
because of their problems with security (not that they were
offering to quit), which Nippa seized upon and sought to
convert into a present resignation because of his annoy-
ance with the employees' efforts to obtain changes in
Respondent's security arrangements. Nippa thereupon
directed the two employees to' immediately go to the
personnel office and sign resignation forms. The record is
clear that Bradley and Schulze resisted this direction,
complaining to their fellow employees that they had been
discharged.
Even so, Respondent argues that Nippa's actions were
justified by Bradley's asserted misconduct in circulation of
a petition on the security problem, and by the alleged
insubordinate conduct of Schulze and Bradley in seeking
an audience with Nippa and expressing their dissatisfac-
tion with management in handling the security problem. I
disagree. Taking the latter contention first: As previously
noted, I find that there is no proof of insubordination on
the part of Bradley and Schulze justifying Respondent's
actions in causing the termination of the two employees
because of their protected concerted activities. On the basis
of this record, I find nothing untoward in the manner of
their seeking a meeting with Nippa to discuss their
problems. Nor do I find anything improper in their
criticizing to, Nippa, in his office, management's handling
of the security problem. If employees may not criticize
Respondent's handling of employee working conditions in
the terms set forth in the record in this case, the right to
take concerted action for improvement of working condi-
tions, guaranteed by Section 7 of the Act, would be shorn
of much of its effectiveness.
With respect to Bradley's alleged misconduct in circulat-
ing the employee petition with reference to the security
problem, according to Nippa's own testimony, he was
unaware of the circulation of the petition at the time he
talked to the two employees in his office that morning, so it
becomes difficult to say that he, acted on such knowledge.
However, even if such knowledge as Lindner had that
morning hadbeen imputed toNippa, the record still does not
support a finding that Bradley had engaged in misconduct
justifying reprisal against her for engaging in otherwise
protected concerted activity. Lindner testified that he had
a report that Bradley had harassed and coerced employees
to sign the petition, and had made nuisance telephone' calls
to employees to that purpose, -and was disruptive of their
work. The evidence, however, is that in a group of
employees in which it was not unusual for employees to
briefly visit at other employees' desks, Bradley spoke with
three employees asking why they were not signing the
petition, instructed other employees not to bother one
employee who would not sign the petition, asserting it was
a matter of the employee's choice, and made two telephone
calls to other employees (including one to Schulze)
concerning this subject. The record does not show the
content or the duration of these calls, or that they'were
disruptive of the employees' work. On this record, it is
found, in accordance with Bradley's testimony, that she did
not harass or coerce or badger employees to sign the
petition. Nor will the record support a finding that Bradley
disrupted the employees at their work in the course of her
concerted activity.
Even assuming that Respondent's management was in
good faith in believing the reports that Bradley had
engaged in misconduct in the course of otherwise protected
concerted activity serious enough to justify her termina-
tion, such belief nevertheless does not justify interference
with an employee's rights under the Act where the -record
shows that the employee in fact did not engage in 'such
misconduct. See N.L.R.B. v. Burnup & Sims, Inc., 379 U.S.
21 (1964); Coronet Casuals, Inc., 207 NLRB 304 (1973).
On the basis of the entire record in this case, and the
facts and discussion set forth above, it is found that
Respondent, by compelling the resignations of Bonnie
Bradley and Barbara Schulze, interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
by the Act, and thereby violated Section 8(a)(1) of the
Act 21
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent, by, threatening to discharge and by
compelling the resignations of Bonnie Bradley and Barbara
Schulze because of their protected concerted activities,
discharged Bradley and Schulze in,violation of Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
21 In coming to this conclusion I have fully considered Respondent's their action However, considering their emotional state at the time and the
contention that the two employees must have known that they were signing pressures exerted upon them by their superiors, I do not think that these
resignation forms and should be held to have intended the natural effect of inferences necessarily follow from the evidence.
SEARS, ROEBUCK AND CO.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, it will be recommended that the Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. '
It having been found that Respondent unlawfully
discharged Bonnie Bradley and Barbara Schulze, it will be
recommended that Respondent offer each of them immedi-
ate and full reinstatement to their former jobs or, if such
jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority and other rights,
privileges, or working conditions, and make them whole for
any loss of earnings suffered by reason of their termination
of employment, by paying to each of them a sum of money
equal to the amount each would have earned from the date
of termination as found herein to the date of the
Respondent's offer to reinstate her as aforesaid, less her net
earnings during that period, in accordance with the
Board's formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of 6
percent per annum, as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employee
rights safeguarded by the Act, it will be recommended that
the Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. See Brads Machine Products, Inc., 191
NLRB 274 (1971).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER22
Sears, Roebuck and Co., the Respondent herein, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge, or other
reprisal, for engaging in concerted activities protected by
Section 7 of the Act.
(b) Discharging, causing employees to resign, or other-
wise terminating the employment of employees because
they engaged in concerted activities protected by Section 7
of the Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer Barbara Schulze and Bonnie Bradley immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent jobs, and
make them whole for any loss of earnings they may have
suffered by reason of their termination of employment, in
accordance with the provisions of the section entitled "The
Remedy," above.
639
(b) Preserve and make available to the Board, or its
agents, upon request, payroll and other records to facilitate
the effectuation of the order herein.
(c) Post at its operations at Troy, Michigan, copies of the
attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by an authorized
representative of Respondent, shall be posted by it
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 material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.
22 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
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.
23 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
THE LAW STATES THAT EMPLOYEES SHALL
HAVE THE RIGHT
To form, join, or assist labor organizations
To bargain collectively through representa-
tives of their own choosing
To engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection and
To refrain from any or all such activities,
except as may be required by a legal agreement
between an employer and the representative of
the employees.
WE WILL NOT threaten to discharge or otherwise
harm our employees because they engage in any of
these activities set forth above.
WE WILL NOT discharge or cause employees to resign
or otherwise terminate employees because they engage
in any of the activities set forth above.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of rights
protected by the law.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Bonnie Bradley and Barbara Schulze WE WILL make Bonnie Bradley and Barbara Schulze
immediate and full reinstatement to their former jobs whole for any loss of pay or other benefits suffered by
or, if those jobs no longer exist, to substantially them as a result of the termination of their employ-
equivalent jobs, without prejudice to their seniority or ment.
other rights, privileges , or working conditions . SEARS, ROEBUCK AND Co.