Sears, Roebuck & Co. v. N.L.R.B.

• Decision Date: 17 November 2003
• Docket Number: No. 02-2504.,No. 02-2651.,02-2504.,02-2651.
• Citation: 349 F.3d 493
• Parties: SEARS, ROEBUCK & COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

349 F.3d 493

SEARS, ROEBUCK & COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

No. 02-2504.

No. 02-2651.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 2003.

Decided November 17, 2003.

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Todd D. Steenson, Holland & Knight, Tamra S. Domeyer (Argued), Exelon Business Services Company, Chicago, IL, for Petitioner Sears, Roebuck & Company in 02-2504.

Elizabeth Kinney, National Labor Relations Board, Region 13, Chicago, IL, John R. McIntyre (Argued), National Labor Relations Board, Appellate Court, Enforcement

Litigation, Washington, DC, Aileen Armstrong, National Labor Relations Board, Office of the General Counsel, Washington, DC, for Respondent NLRB in 02-2504.

John R. McIntyre (Argued), National Labor Relations Board, Appellate Court, Enforcement Litigation, Washington, DC, Aileen Armstrong, National Labor Relations Board, Office of the General Counsel, Washington, DC, Rochelle Kentov, National Labor Relations Board, Region 12, Tampa, FL, for Petitioner NLRB in 02-2651.

Todd D. Steenson, Holland & Knight, Tamra S. Domeyer (Argued), Exelon Business Services Company, Chicago, IL, for Respondent Sears, Roebuck & Company in 02-2651.

Before BAUER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Sears, Roebuck, and Company petitions for review of a decision of the National Labor Relations Board ("NLRB" or "Board") holding that Sears violated 29 U.S.C. §§ 158(a)(1) and (a)(3) by firing John Iaci, Corliss Hepburn, and Cordy Richardson for their protected union activities. Sears requests that we deny enforcement of the Board's order that the three be reinstated and otherwise compensated. The General Counsel of the NLRB cross-petitions for enforcement. Because substantial evidence does not support the Board's decision, we grant the petition for review and deny enforcement.

I.

At the end of 1996, John Iaci was an appliance repairman for Sears in West Palm Beach, Florida. Iaci had three decades of employment with Sears and, although Iaci had occasionally received what the General Counsel characterizes as "minor, informal discipline," his performance evaluations were mostly positive. The performance reviews, and possible annual raises, of a repairman like Iaci depended partly on the number of service calls that he completed. In February 1997, Iaci claimed falsely to have completed two repairs at a customer's house when, in truth, he had not even visited the customer's residence. Iaci's immediate supervisor, Christine Smith, discovered that he had falsified company records to reflect that he had completed the service calls and reported the problem to her boss, District Service Manager Ron Medford. In her memorandum to Medford, Smith stated that "Mr. Iaci is manipulating the system to his own benefit and to the customers [sic] detriment. In the time Mr. Iaci is doing these `dummy' rounds he could actually be handling customers who need service." She also noted that Iaci's misconduct had delayed customer repairs, added burdens to the repairmen who actually were visiting all of the customers whom they claimed to visit, and forced Sears to pay overtime.

Medford gave Iaci a chance to respond to Smith's conclusions. In a three-page, hand-written memorandum, Iaci threw himself on Medford's mercy. Iaci wrote that "I am very sorry 4 what I did + know it was wrong." He apologized profusely for his "mistake," admitting that he "said he had checked" a customer's dishwasher and washer "when in fact [he] never went" to the customer's residence. Iaci also pointed out, however, that he had "given [his] life to Sears" and that he had needed to work because he had a wife and house. He implored Medford, "[p]lease do not terminate me" and ended his memorandum with the following:

You probably think well if he did it once how many times before he has done it. I understand that. Please call [the customers on] my routes you will see this is not happening. This was isolated. I don't know what else to say except that I'm sorry. Very sorry.

Under the "Sears Human Resources Guide for Managers," "falsification of Company records" and "improper recording of detail" were grounds for "immediate termination." Instead of firing Iaci immediately, however, Medford decided to suspend him for a few days. After Iaci returned to work, Smith followed Iaci's suggestion and paid particular attention to his routes. Medford, for his part, warned Iaci that further violations of company policy would lead to termination of his employment. The Board aptly characterized this as a "last chance warning."

Shortly after his return to work, Iaci became involved with the International Brotherhood of Electrical Workers, Local Union 349, AFL-CIO ("the Union"). According to Iaci's testimony, he had learned in late 1996 or early 1997 that the Union was attempting to organize Sears's West Palm Beach facility. Iaci started to play an active role in this attempt in the spring of 1997, when he began distributing union authorization cards to, and discussing the Union with, coworkers in the facility's parking lot. As Iaci put it, he distributed "approximately fourteen cards to fourteen different employees" in "[l]ate April, maybe through May" 1997.¹ In June 1997, Medford had a conversation with Iaci. Medford stated that Sears did not want a "third party" at the West Palm Beach facility, and he then asked Iaci if transferring Smith to a different location would "make the third party go away." Iaci replied that he did not know whether Smith's departure would make the "third party" go away, but that it would not hurt. Later that month, Medford assumed a new position with Sears and relocated to Illinois.

In the meantime, according to Smith's testimony, Iaci's troubles with Smith continued. Smith testified that, in March and April, she documented six instances in which Iaci falsely recorded that he had repaired a customer's appliance when, in fact, the customer had declined the repair. Again on July 28, August 4, and August 15, according to Smith's testimony, Iaci falsely reported that he had repaired an item when, in fact, he had not. (Ironically, Smith testified that she verified the infractions of July 28 and August 15 by, as Iaci himself had suggested, calling the customers on his routes.) Smith testified that, by lying about these events, Iaci once again falsely inflated his record of productivity; where no warranty or maintenance contract applied, Sears unsurprisingly charged customers more for a repair than it charged merely for sending a repairman to the customer's house and providing an estimate. Although Smith testified that she had counseled Iaci orally about these reports, from March through July, nonetheless, her monthly evaluations of Iaci's work were positive, containing compliments like "great job" and "this is a great performance."

In mid-August, Ralph Graettinger replaced Medford as the District Service Manager for the West Palm Beach and Plantation facilities. On August 21, Graettinger had a meeting with Iaci about issues related to work. Iaci told Graettinger that he was trying to straighten out some of the problems at work and that he was upset about the Union. According to Iaci's testimony, Iaci had said that "most of the employees really didn't want a Union but they did want the problems straightened out." Graettinger then stated to Iaci that he was not going to transfer Smith, and that Iaci had a "bad attitude," was too opinionated, was a bad influence on other employees, and said things that other employees should not hear.

In late August, according to Smith's testimony, Smith showed Graettinger the documentation regarding Iaci's false reports of having repaired appliances. Graettinger replied that Smith should prepare a chronological summary of Iaci's false reports. During her investigation, according to Smith's testimony, she discovered three more discrepancies on Iaci's routes, one of which involved an occasion on which Iaci had changed the warranty date on a customer's washing machine so that Sears (and not the customer) would assume the cost of the repair to that machine. Smith testified that Iaci then sold that same customer a maintenance agreement, on which Iaci reaped a commission. Smith testified that she presented a memorandum with supporting documentation to Graettinger on September 15, concluding that Iaci "continued to falsify his routes knowing the penalty for repeating these actions would be cause for dismissal."

Graettinger then had Sears's loss prevention personnel, under the direction of Richard Gonzalez, interview Iaci and investigate whether there was a legitimate explanation for his conduct. During the interview, Gonzalez assured Iaci that he would not be fired and essentially dictated the last two sentences of the statement that Iaci wrote.² That statement reads as follows:

On this date I discussed with Mr. Gonzalez about picking up calls while at the house and doing a minimal check. I was doing this to generate more completed calls and also at times to satisfy a customer request. I did not know Sears did not want this done. I know now and will not do this unless cust needs repair. Sometimes I did not do any check. On some occasions I changed the warranty date and sold an MA. The customer would get call done free and MA was sold. I understand doing this cause a loss to the company.

Immediately after reading the statement, Graettinger entered the interview room and fired Iaci.

Like John Iaci, Cordy Richardson was an experienced repairman for Sears, having worked for the company for more than two decades. In 1997 and 1998, Richardson worked out of Sears's facility in Plantation, Florida, and was also under the indirect supervision of Graettinger. Corliss Hepburn worked out of the same location, having repaired sewing machines and vacuum cleaners for about 14...