Montgomery, Ward and Co.

National Labor Relations Board - Board Decisions

Nov 2, 1939

17 N.L.R.B. 191 (N.L.R.B. 1939)

In the Matter of MONTGOMERY, WARD AND COMPANY and WAREHOUSE
EMPLOYEES' UNION No. 20,297 AFFILIATED WITH THE A. F. OF L.
Case No. C-987.-Decided November 2, 1939
General Merchandising Mail Order Business-Interference, Restraint, and
Coercion: espionage; employment of labor spies; employer ordered to cease
employing persons to investigate employees ' union activities ; anti-union state-
ments-Discrimination: refusal to reinstate following strike not caused by
employer's unfair labor practices ; charges of, not sustained-Reinstatement
Ordered: strikers to be placed upon preferential list and offered reinstate-
ment to former or equivalent positions before other persons are hired.
Mr. Lee Loevinger, for the Board.
Mr. Stuart S. Ball, Mr. John A. Barr, and Mr. R. F. Walker Smith,
of Chicago, Ill., for the respondent.
Mr. Gilbert E. Carlson, of Minneapolis, Minn., and Mr. Donald
Cassaday, of St. Paul, Minn., for the Union.
Mr. Harry A. Sellery, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Warehouse
Employees' Union No. 20,297, affiliated with the A. F. of L., herein
called the Union, the National Labor Relations Board, herein called
the Board, by Robert J. Wiener, Regional Director for the Eight-
eenth Region (Minneapolis, Minnesota), issued its complaint, dated
July 1, 1938, against Montgomery Ward and Company, Inc.,' St.
Paul, Minnesota, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
accompanied by notice of hearing, were duly served upon the re-
spondent and the Union.
In respect to the unfair labor practices, the complaint, as amended
during the course of the hearing, alleged in substance : (1) that
the respondent maintained at its St. Paul house a system of labor
1 Incorrectly designated in the complaint as Montgomery , Ward and Company.
17 N. L. R. B., No. 12.
191
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
espionage over its employees in the exercise of their rights to or-
ganize, and threatened and warned its employees at that house to
refrain from becoming or remaining members of the Union ; and
.(2) that the respondent, following a strike at the St. Paul house,
refused to reinstate 15 named employees because of their union mein-
bership and activity.
On July 8, 1938, the respondent filed an answer which, as amended
during the course of the hearing, denied the allegations of the com-
plaint in respect to the unfair labor practices. On July 8 the re-
spondent filed with the Regional Director a motion to strike the
allegations of the complaint relating to the unfair labor practices;
and a motion to make the complaint more definite and certain, and
on July 12, 1938, a motion to require the Board to answer certain
interrogatories in respect to the unfair labor practices alleged in the
complaint.
Pursuant to the notice, a hearing was held in St. Paul, Minnesota,
from July 21 through 26, 1938, before Mapes Davidson, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. At the beginning of the hearing the Trial
Examiner denied the above-described motions which had been filed
with the Regional Director.
At the close of the.Board's case counsel for the Board moved to
conform the complaint to the proof. The Trial Examiner granted
this motion, and ruled that the respondent's answer would also be
conformed to the proof. At the close of the hearing, the respondent
made several motions to dismiss the complaint for insufficient proof,
renewed its motion to strike various portions of the complaint, and
moved to dismiss the complaint because the respondent was not ac-
corded proper time to prepare its defense. The Trial Examiner
denied these motions. During the course of the hearing the Trial
Examiner made several rulings on other motions and on objections
to the admission of evidence. The Board has reviewed all the rul-
ings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On October 11, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. He
found that the respondent had engaged in and was engaging in un-
fair labor practices, within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the Act. He recommended that the re-
spondent cease and desist from interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
MONTGOMERY WARD AND COMPANY 193
Section 7 of the Act, that the respondent reinstate with back pay
three of the 15 employees named in the complaint, and that the com-
plaint be dismissed as to the 12 remaining employees named in the
complaint.
Exceptions to the Intermediate Report were filed by the respondent
on November 14 and by the Union on November 15, 1938. On July
6, 1939, the Union filed a brief in support of its exceptions and on
July 7, 1939, the respondent filed a brief in support of its exceptions.
Pursuant to notice, a hearing for the purpose of oral argument on
the exceptions was held before the Board in Washington, D. C., on
July 13, 1939. Only the respondent was represented by counsel and
participated in the argument. The Board has considered the briefs
and the exceptions to the Intermediate Report, and finds the, excep-
tions, except such as are consistent with the Decision and Order
herein, without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Montgomery Ward and Company, Inc., an Illinois corporation,
maintains its principal office and place of business in Chicago, Illi-
nois. It owns and operates a nine-story mail-order house in St. Paul,
Minnesota, herein referred to as the St. Paul house, which stocks and
sells general merchandise. This house supplies merchandise to 60
of the respondent's retail stores located in Iowa, Michigan, Minne-
sota, Montana, North Dakota, and South Dakota, and annually sells
about $20,000,000 worth of merchandise in those States. The re-
spondent has about 1,500 to 2,000 employees at the St. Paul house.
The respondent purchases the merchandise sold and distributed by
the St. Paul house from thousands of manufacturers located in vari-
ous States of the United States and in various foreign countries.
About 88 per cent of the merchandise purchased by the respondent
for the St. Paul house is shipped from points outside Minnesota.
About 68 per cent of the respondent's sales at the St. Paul house are
to customers residing outside Minnesota. The respondent admits
that it is engaged in interstate commerce.
II. THE UNION
Warehouse Employees' Union No. 20,297 is a labor organization
affiliated with the American Federation of. Labor, herein called the
A. F. of L., admitting to membership the employees of the St. Paul
house.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
In its brief the respondent stated that before and after the effective
date of the Act, it maintained an under-cover system in the St. Paul
house , and that in the latter half of 1936 and-the first half of 1937
the "respondent utilized its under-cover system for the purpose of
securing knowledge of union activities at. the plant."
In January or February 1935 Charles N. Bauer , an employee in
the St. Paul house, was summoned to the office of John M. Honan,
the chief of the St. Paul house police. Both Honan and D. G.
Ketchum, then personnel manager of the St. Paul house, discussed
with Bauer thefts and commercial irregularities allegedly occurring
among the employees and asked him to become an under-cover opera-
tive for the respondent . Ketchum told him that if he agreed to do
so, he would be promoted in about 6 months. Bauer accepted the
assignment and a few days later he received from Honan by mail a
bulletin of mimeographed instructions regarding his duties and the
reports he would make as an under -cover operative for the respondent.
These instructions dealt at length with petty thievery and irregu-
larities . They also called for reports to the respondent of "Constant
expressions of dissatisfaction , or remarks directed against the em-
ployees' immediate superiors , the management , or the Company in
general , causing other employees ' minds to be in a constant state of
unrest." The instructions provided, inter alia, "Report in full detail
any signs of radicalism , naming the leaders and principal arguments
used. We are interested in learning the attitude of employees to-
wards their immediate and indirect superiors . Any comments in
this respect should be noted. " A sample report in the instructions
included the following extract :
Today I overheard Anna Costa talking to a group of girls in
the washroom . She stated that this company was a cheap outfit
and regular slave-drivers . She remarked that we were all foolish
to work under the present conditions for the amount of money
they paid us, and hoped that all of our employees would be or-
ganized in the near future and force the company to increase
rates. She said she was attending a dinner at the "Young Work-
ers of America" tonight and would report the present conditions
to this organization.
Bauer's instructions stated "Do not carry this bulletin , on your
person-leave it at your home for future reference. . . . All reports
should be prepared at home, and mailed in your vicinity . No reports
should be carried in your purse , or on your person, and brought into
MONTGOMERY WARD AND COMPANY 195
the building." Honan ordered him to mail the reports to the homes
of Hon an and Ketchum. Bauer later received additional instructions
from Honan by mail and made periodical reports to the respondent.
In June 1936 Honan wrote to Bauer :
The management is very much interested in knowing the full
details of the present labor situation throughout the house, namely,
what the attitude is of the persons who have recently joined
Local 120, what benefits they expect to derive from it, what their
general attitude is towards this movement, also if there is any talk
of organizing the house as a whole.
I don't believe it is necessary for me to tell you that any light
you can give us on this subject, will be appreciated. . . . Please
destroy this letter as soon as read.
In December 1936 Honan mailed to Bauer a mimeographed letter,
reading :
Labor organizers are again at work among Ward employees.
As usual, they are using the Government as an excuse to encour-
age organization among employes and to directly profit
themselves.
This letter went on to discuss a projected union of mail-order em-
ployees and concluded :
This is the way many organizations start and many times in the
end cause trouble between companies and employees, with the
result that both lose. You know that your Company is anxious
to do what is fair to its employees and; therefore, please be suae
to report as soon as possible any discussions you hear of this new
effort to cause trouble within the Ward organization.
Since this letter was mimeographed, it may be presumed that Honan
sent it to the respondent's other under-cover operatives as well as to
Bauer.
About September 1937 Honan told Bauer that the A. F. of L. was
holding a meeting in Drivers' Hall and requested him to attend and
submit a report upon it. Bauer attended the meeting and discussed
it the next day with Honan in the latter's office. Bauer concealed from
Honan the details of the meeting, merely telling him that working
conditions at the St. Paul house had been discussed. Honan then
asked Bauer to join the Union in order to report upon its activities
and stated that the respondent would pay the expenses of his mem-
bership in the Union. Bauer did not accept Honan's proposition.
In Jime or July 1935 at the request of Edward A. Everetts, foreman
of the box shop, Edward Pollek,2 a box maker, went to Honan's office.
2 Sometimes referred to in the record as "Pawlak."
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Honan discussed thefts and irregularities with Pollek ' and told him
that "a couple of fellows down there were radicals . . . carpenters
.who were not satisfied with their wages, always bellyaching . . . and
all that kind of talk." Honan asked Pollek to watch these men,
promising him "three dollars a week on any promotions that would
come in sight." After discussing Honan's proposal with Everetts,
who advised him to accept it, Pollek agreed to act as an under-cover
.operative for the respondent, and did so for about a month. During
this period he received by mail the same detailed instructions which
Bauer had received. Pollek gave up his activity as an under-cover
operative because "every time anybody says, `stool pigeon,' my face
got red and it was not the kind of job for me...."
Shortly after July 9, 1935, Honan asked George J. Grovhoug, a
receiver in the retail pool, to act as an under-cover operative, telling
him "that there was stealing and one thing and another going on
around the plant and that they had adopted a, new system of check-
ing up' on it and they found it to be very effective ..." As an in-
ducement to Grovhoug to perform this work Honan assured him that
he would receive preference in promotion. Grovhoug also received
by mail from the respondent various instructions regarding his duties
and reports as an under-cover operative. - These' instructions were
similar to those received by Bauer. In one letter Honan, in substance,
ordered Grovhoug to report on all the union activities of the respond-
ent's employees. In the course of his under-cover work Grovhoug
had four or five conferences with Honan although he made no reports
to him on union activity. .
About April 15, 1937, Anthony Czajowski, a stock helper, was sum-
moned to the office of L. L. Robinson, then personnel director of the
St. Paul house. This summons came shortly after Czajowski had
discussed various unions with Minar, a supervisor. Robinson dis-
cussed various types of labor organization with Czajowski, and sug-
gested that the respondent might have a better job for him if he would
'act as an'under-cover operative. Robinson told him "that (it) would
be for the good of the company, listening to employees speaking about
unions and giving confidential reports" of what the employees said.
Czajowski declined to be a labor spy. Robinson thereupon excused
him but told him to return to Robinson's office on the next morning.
When he did so, Robinson told him that without Robinson's know-
]edge the "better" job to which Robinson had referred had already
been filled by the supervisor on the floor.
In the spring of 1937 Czajowski was elected president of a labor
organization affiliated with the Committee for Industrial Organi-
zation, herein referred to as the C. I. O. local. This local admitted
to membership the respondent's employees. On the day after the
election, Roy E. Gunther, a division superintendent, questioned
MONTGOMERY WARD AND COMPANY 197
Patrick Leier, a porter, concerning the leadership of the C. I. O:
local. About November 1937 Gunther also asked Genevieve Larson,
a stock clerk under his supervision, what she thought of the Union.
In April 1937 Howard Vining, an employee, overheard Robinson
asking Russell Meehan, an auditor, to attend a meeting of the C. I. O.
local and to report to Robinson what was said at the meeting. In
the same month Honan asked Eugene Mendenhall, an employee, to
act as an under-cover operative, telling him "there was a lot of talk
now about the union and they wanted to know more about this
because the union was . . . bad business for employees as well as
the company, that it would cause trouble between the employees and
the company and they wanted to have everything peaceable," and
they "did not want to have any trouble...." In this conversation
Honan also mentioned that the respondent was interested in detect-
ing thievery and commercial irregularities. Honan mailed to Men-
denhall some of the same instructions sent to Bauer. Furth, a super-
visor, also urged Mendenhall-to act as an under-cover operative, tell-
ing him that "it would be very beneficial" to Mendenhall to do so.
L. L. Footh, manager of the St. Paul house, testified that in the
early summer of 1937 he instructed Honan to discontinue the use
of all the under-cover operatives. Nevertheless, about December
12, 1937, during a strike of the respondent's employees, Bernard
Simmer, then president of the Union, encountered Honan in a cafe
near the St. Paul house. Honan told him, "I will have to fire my
under-cover agents in your union. . . . It has-been reported to me
that you lost your voice and, as a matter of fact, ... you were
talking very well today." Simmer replied that since he had re-
covered his voice the respondent's under-cover agents had been ex-
cluded from the Union. Honan denied that they had been excluded,
saying, "Oh, no, we 'have them . . in there right now." A few
days later, about December 18, 1937, Honan, while intoxicated, en-
tered the Union's strike headquarters, causing a disturbance which
required that the police be called. In a police car while en route
to the police station, Homan said to Czajowski, "You ... think you
are getting away with a hell of a lot. Let me tell you, we are keeping
in touch with everything you are doing." Honan, while somewhat
intoxicated, also threatened Bauer during the strike, telling Bauer
that the "raw deal" which Bauer believed that he had received from
the respondent "is nothing compared to the screwing you are going
to get."
The respondent argues that in view of Footh's testimony that in
the summer of 1937 he ordered Honan to discontinue all his under-
cover operations, Honan was acting without authority from the re-
spondent if he thereafter continued employing under-cover opera-
tives. The respondent also claims that because Honan was intoxi-
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated during these conversations, he was not acting within the line
of his :authority, but was on a private frolic. Accordingly, the re-
spondent concludes that it cannot be held responsible for Honan's
statements to Bauer, Czajowski, and Simmer.
The respondent inaugurated an espionage system and authorized
Ronan to engage in under-cover operations on its behalf. Ronan
did so. Thereafter the respondent notified Ronan to discontinue the
spying, but, despite such notice, Honan continued the respondent's
espionage system. There is no showing that the respondent sought
to make clear to its employees, or even to the operatives themselves,
that it had abandoned its espionage. The respondent obviously did
not take effective action to insure the discontinuance by Ronan of
his activities. Under these circumstances it cannot disavow the
under-cover operations in which Ronan engaged on its behalf. It
is responsible for the violations of the Act involved in the use of
labor spies.3
. The respondent's contentions that it is not responsible for Honan's
remarks to Bauer, Czajowski, and Simmer, since they were made
while Ronan was intoxicated and on a private frolic, are equally un-
tenable. There is nothing in the record to indicate that Ronan was
in any degree intoxicated during his conversation with Simmer.
Although made when he was somewhat intoxicated, Honan's, remarks"
to Bauer and Czajowski conveyed the same meaning as the remarks
Ronan, while not intoxicated, made to Simmer. Moreover, Honan's
remarks were fully consonant with the performance of his duties
which, as we have found above, the respondent took no efforts effec-
tively to curtail. In any event, Ronan's statement to Simmer is a
clear and unequivocal expression that the respondent had not dis-
continued its under-cover operations in the summer of 1937, but that
it had labor spies in the Union in December 1937. Moreover the
fact that this statement took place off the respondent's premises in
no wise vitiates its effect. From time to time the under-cover oper-
atives were directed to mail their reports to the homes of Honan and
Ketchum. As noted above, in at least one instance an operative was
requested to join the Union and attend meetings. It is apparent,
therefore, that espionage was not limited to the respondent's premises
during working hours. In the light of these facts, the respondent
Cannot avoid responsibility for Honan's actions, as director of its
under-cover operations, because they occurred outside the plant.
8 See Swift & Company v. National Labor Relations Board, 106 F. (2d) 87, 93 ( C. C. A.
10th, 1939), where the Court states:
11. . . They (two high supervisory officials) took no effective means to stop repeated
violations of the Act. Furthermore, with respect to the acts of the supervisory foremen,
the doctrine of respondent superior applies and petitioner (the company) is responsible for
the actions of its supervisory foremen, even though it had no actual participation therein."
MONTGOMERY WARD AND COMPANY 199
The respondent further contends that it cannot be charged with
engaging in an unfair labor practice by maintaining its system of
espionage because there was no showing that any employees were
actually interfered with, restrained, or coerced thereby in the exercise
of the rights guaranteed in the Act. The respondent argues in sup-
port of its position that many of the employees whom it utilized to
spy upon their fellow employees did in fact join the Union and could
not therefore have been coerced by the respondent's practice. The
respondent's contention is plainly fallacious. It is sufficient that the
conduct which constitutes the gravamen of the unfair labor practice
normally results in interference, restraint, and coercion; it is imma-
terial that the proscribed conduct does not produce the desired result.
The respondent's invasion of the field of union activity which the Act
reserves as a matter of right to the employees is in itself an unfair
labor practice. That the employees whom the respondent instructed
to spy upon their fellow employees renounced their activity and
joined the Union does not legitimize the respondent's unlawful
conduct.
Finally, the respondent contends that although its, system of espi-
onage was revived in the spring of 1938, "the securing of these con-
fidential reports on labor activities . . . has not been resumed,
... the 'present instructions to under-cover agents call for no in-
formation other than that which is reasonably necessary to the
efficient operation of a large mercantile establishment such as a mail
order house, and . . . the under-cover agents are not instructed,
either expressly or impliedly, to report on any union activities." The
respondent argues therefore that its past violations of the Act are
not the proper subject of a cease and desist order. Assuming,
arguendo, the truth of the respondent's contention, we find no merit
in it. In the exercise of its remedial power the Board by its order
may bar the resumption of unfair labor practices, even if such prac-
tices have been discontinued.4
We are not satisfied, however, that labor espionage has been dis-
continued at the St. Paul plant. The respondent's present instruc-
tions to its under-cover operatives are substantially the same as the
instructions which Honan had used in 1935 and 1936. They deal in
large measure, as did Ilonan's instructions, with thefts and commer-
cial irregularities. Nevertheless, the present under-cover operatives
are also instructed to make reports of "Constant expressions of dis-
satisfaction or remarks directed against their immediate superiors,
the management, or the company in general, causing other employees'
minds to be in a state of unrest." A reasonably interpretation of the
s Consolidated Edison Co. v. National Labor Relations Board , 305 U. S. 197 (1938).
247384-40-vol. 17-14
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language quoted above would require the respondent's spies to re-
port upon any activity in which the employees might engage either
for the purpose of collective bargaining or for the redress of griev-
ances, and thus to report upon many forms of union activity. Par-
ticularly in view of the long continued labor espionage which the
respondent admittedly practiced, we cannot believe that the opera-
tives understand from a reading of these ambiguously phrased in-
structions that the respondent has irrevocably abandoned its labor
espionage. Neither by affirmative act nor word has the respondent
notified or sought to notify its employee spies that it will no longer
solicit or accept reports on the organizational activities of its
employees.
We find that by the employment of labor spies, as set forth above,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining and other mutual aid and
protection.
. As we have stated, in the spring of 1937 the C. I. O. local was
formed. About the same time an unaffiliated union was also formed,
the membership of which was limited to the employees of the St.
Paul house. This latter labor organization, as far as the record
discloses, existed for only a short period of time. During a rest
period in April 1937, Minar, an assistant supervisor from whom
Czajowski at times took orders, told the latter "that an organized
union wasn't the proper thing to join . . . that organized labor
was nothing but a bunch of racketeers; that a company union was
the thing to join." This conversation occurred at a time when the
organization of the unaffiliated union of the respondent's employees
was being discussed. Czajowski testified that about the middle of
May 1937, shortly after the C. I. O. local had elected its officers, he
overheard Gunther say to an employee, Kassekert, "If Ann Jones
hadn't hooked up with the union, she would probably have been in
a different place. Now that she is in the union she has no possible
chance for promotion.?' Gunther testified that Jones is an examiner
in his division, holds the best position on his floor, and could not be
promoted to a higher position in his division than the position she
now has. Gunther did not deny, however, making the above-quoted
remark to Kassekert. Nor does his testimony exclude the possibility
that Jones might be promoted to a position outside his department.
We find that Gunther, made the statement attributed to him by
Czajowski.
On several occasions between June and December 1937, Harry
Benson, an order filler, overheard Otto, a supervisor, discussing
MONTGOMERY WARD AND COMPANY 201
organization of the St. Paul house. Otto's discussions were usually
held during working hours with Paul Shellstrom, one of Benson's
fellow employees. Otto said that the employees had tried to organ-
ize a union 7 or 8 years before, that the respondent was too strong
an organization to have a union among its employees, that neither
.the C. I. 0. nor the A. F. of L. had enough members, and that there
was not a chance to get a union organized in the St. Paul house.
In August 1937 George Moderbach, a supervisor, told George Sars-
gard, a mechanic, that he did not know what the respondent's em-
ployees would gain by joining a union, adding, "Take for instance
my floor . . . It (the work) requires no special experience. I
could go out on the street and pick up fellows to come in here and do
this kind of work." The threat implicit in Moderbach's statement,
that employees who joined the Union might be discharged, is obvious.
The record also contains statements made to Grovhoug by Otto, to
Larson by Orvold, to G. D. Nelson by Floyd Anderson, to Vining by
Jimmie Morrissey, and to Sarsgard by Charles E. Laurette,' during a
period of about a month immediately preceding the strike. Otto,
Orvold, Morrissey, and Laurette were supervisory employees. These
statements were arguments against the strike which was then im-
pending. For example, Otto warned Grovhoug that he would be very
foolish to go on strike and that the St. Paul house would "close down"
as the respondent's Kansas City house had closed down during a
strike. Larson overheard Orvold remark that "they would close
up the plant if we went out" on strike.
The respondent contends that it was "only natural that those em-
ployees not in sympathy with the proposed strike, and not knowing
to what extent it might adversely affect their income, would argue
against a strike and attempt to persuade their fellows not to strike."
These statements, however, emanating from employees in a super-
visory capacity, unquestionably amounted to more than statements of
opinion e
Footh verbally issued instructions in 1937 to the supervisory of-
ficials that they should "in no way influence the activity of employees
as far as union activities were concerned," and reiterated these in-
structions throughout the year. Despite Footh's instructions super-
visory officials, by seeking to discourage the union employees from
remaining members of the Union and from striking, did seek to
influence the union activities of the respondent's employees. Although
the respondent warned its supervisory employees not to influence the
union activities of the employees, it did not advise its regular employees
that the supervisory employees had been given this warning. The
5 Sometimes referred to in the record as "Loretz" or "Loretto."
6 National Labor Relations Board v. The Falk Corporation... 102 F. (2d) 383 (C. C. A. 7th,
1939).
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent is chargeable, therefore, with responsibility for the acts
of its supervisory employees in attempting to discourage the union
activity of its employees.7
We find that by the aforesaid acts of its supervisory employees,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining and other mutual aid and
protection.
B. The alleged discrimination in reinstatement
As noted above, a C. 1. 0. local was formed in the spring of 1937. In
August 1937 those of the respondent's employees who were members
of that local decided to affiliate with the A. F. of L. They individually
applied for and were admitted to membership in the Union. About
November 22, 1937, representatives of the Union conferred with three
of the respondent's officials regarding negotiation of a union contract.
L. C. Lustenberger, the respondent's general personnel manager, con-
cluded the conference with a statement that the respondent's officers
were not present, that he and the other representatives of the respond-
ent were only employees, and that the respondent had not up to that
time set a precedent for signing labor contracts. On December 5,
1937, after sending several notices to the respondent, to which no reply
was made, the Union voted to strike. Accordingly on December 6,
1937, about 342 of some 2000 employees went on strike and picketed
the St. Paul house. At a meeting on January 5, 1938, the Union voted
to call off the strike and the members were instructed to apply for
reinstatement.
The respondent's business declined sharply at the end.of the Christ-
mas season. From a peak for the year, in late December 1937, of
more than $800,000, the respondent's net weekly sales fell to almost
$200,000 by December 31, 1937, and to less than $250,000 by January
31, 1938. By about June 15, 1938, they had risen only to approxi-
mately $450,000. The number of employees likewise declined. From
a peak for the year, about December 15, 1937, of some 2,350 employees,
the number of employees declined to about 1,640 by December 31, 1937,
and to approximately 1,620 by January 31, 1938. By about June 15,
1938, it had risen to only some 1,680. The total operating man-hours
show a corresponding decline from about 124,000, about December 24,
1937, to approximately 57,000, about December 31, 1937. By January
31, 1938, they had increased to only some 64,000 and by about June
National Labor Relations Board v. The Falk , Corporation , footnote 6, supra ; National
Labor Relations Board v. The A. S. Abell Company, 97 F. (2d) 951 (C. C. A. 4th, 1938).
MONTGOMERY WARD AND COMPANY 203
15, 1938, to only approximately 67,000. The peak of the respondent's
total inventory was nearly $5,500,000 in September 1937. Thereafter
it declined steadily until December 1937 when it fell sharply to ap-
proximately $3,600,000 and remained below that level until July 21,
1938. It is apparent, therefore, that the strike began at a time when
the respondent's business operations were at their highest point of
the year, and that the strike was abandoned at a time when the
respondent's business operations were substantially at the lowest point
,of the year.
According to Footh the respondent had a larger inventory during
1937 than the subsequent volume of business for that year. warranted.
He received instructions from the respondent's office in Chicago,
Illinois, to plan for a smaller volume of business in 1938. The re-
spondent therefore sought during the first 3 months of 1938 to keep
its inventory substantially smaller for the year and likewise to keep
the number of employees as low as possible. Thus the respondent
reorganized the work in many of its departments. We do not find
that such reorganization was effectuated to discourage membership in
the Union.
Of the 342 strikers, 318 applied for reinstatement during and after
the strike. Of the 318, the respondent reinstated 276, as follows :
73 during the strike; 8 in January, 147 in February, 35 in March,
and 13 between April 1 and July 9, '1938, inclusive. Thus the re-
spondent reinstated more than 80 per cent of the strikers. Forty-two
strikers, including the 15 named in the complaint, were refused re-
instatement. Of these 15 the Trial Examiner recommended that the
complaint be sustained as to 3 s and dismissed as to 12.0 As to 4 10
of these 12 the Union has excepted to the Trial Examiner's
recommendation.
During the strike the respondent hired 227 employees to replace
the strikers. With a few exceptions all such employees were dis-
charged before Christmas 1937, and the balance thereafter. About
10 such employees were subsequently rehired, and 7 or 8 of them
were on the respondent's. pay roll on July 1, 1938. The respondent
hired 9 new employees between the end of the strike and July 1, 1938,
7 of them in June 1938.11 Between January 7 and July 1, 1938,
the respondent also rehired 13 individuals who had been on the pay
roll before December 6, 1937, but who were not on the pay roll be-
tween December 6, 1937, and January 7, 1938, of whom 7 were still
,on the pay roll when the hearing began.
8 Czajowski , Sarsgard, and Tessman.
9 Benson, Erickson , Glantz, Gondek, Grovhoug, Larson, Leier, Midget, G. D. Nelson, Och,
Pollek , and Vining.
to Leier, G. D. Nelson, Pollek, and Vining.
11 This figure excludes a group of 42 comptometer operators hired temporarily for inven-
tory purposes.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There were 24 employees who were members of the union organiz-
ing and strike committees, 23 of whom went on strike. As far as
the record shows, the employees on these committees were the most
active and prominent union members. Of the 23 who went on strike,
22 applied for reinstatement after the strike. Of the 22, 16 were
permanently reinstated after the strike, 3 were temporarily rein-
stated, and 3 were refused reinstatement. G. D. Nelson, whose case
will be discussed below, as far as the record discloses, is the only 1
of the 16 permanently reinstated members of the strike and organiz-
ing committees who was reinstated to a less favorable position than
lie held before the strike. The Union has excepted to the Trial
Examiner's finding that he was not discriminatorily refused
reinstatement.
Of the three who were temporarily reinstated (Patrick Leier,
Valeria Och, and Arthur Tessman), the Trial Examiner found that
Leier and Och were not discriminatorily refused reinstatement and
that Tessman was so refused reinstatement.. The Union has excepted
to the Trial Examiner's finding as to Leier, but not as to Och. The
respondent has excepted to the finding as to Tessman.
Anthony Czajowski and Howard Vining were the two employees
who were members of the union organizing or strike committees who.
were refused reinstatement. The Trial Examiner found that Cza-
jowski was discriminatorily refused reinstatement and that Vining
was not so refused reinstatement. Exceptions have been filed to both
these findings."
Consequently, of the 22 members of the organizing and strike
committees only 5 were involved in the exceptions to the Intermediate
Report. The respondent and the Union have, each excepted to the
findings of the Trial Examiner in the cases of two other employees
who were not members of the union organizing and strike committees.
It is in the light of the foregoing facts that we must consider the
respondent's allegedly discriminatory refusal to reinstate the striking
employees.
1. The refusals to reinstate to which no exceptions were filed
The Trial Examiner recommended that the complaint be dismissed
as to 12 employees. No exceptions were filed to his findings and
recommendations in the cases of eight employees, Harry Benson,
Franklin Erickson, Pearl Glantz, Kenneth Gondek, George Grov-
houg, Genevieve Larson, Nick Malget, and Valeria Och. Upon an
examination of the record we find that it does not support the allega-'
'-"Henry Hentges , an employee who was a member of the union organizing or strike com-
mittees, was also refused reinstatement , but his name was not included in the complaint
and concerning him the record is silent.
MONTGOMERY WARD AND COMPANY 205
tions of the complaint that the above-named eight employees were
refused reinstatement because of their union membership and
activity.
2. The refusals to reinstate to which exceptions have been filed
Anthony Czajowski. Czajowski was first-hired-by the respondent
as a porter and supply boy on September 3, 1935. Except for a
week's lay-off shortly after he was first employed, he worked continu-
ously for the respondent until the strike.
Czajowski was the chairman of the organizing committee and the
president of the C. I. 0. local. He was instrumental in the shift of
the respondent's employees from affiliation with the C. I. 0. local
to the Union, but was not an officer of the Union. He wore his union
button at the St. Paul house, went on strike and picketed, and during
the strike made speeches to other labor organizations urging them
to support the strike. It should be noted, however, that, as far as
the record discloses, almost all the union members wore their union
buttons at the St. Paul house, went on strike, and picketed during
the strike.
In February 1937 Czajowski made a grossly obscene remark to a
female employee. Gunther, his supervisor, called this remark to the
attention of Robinson, who reprimanded Czajowski. There is a con-
flict in the evidence regarding Czajowski's reprimand. Czajowski
testified that Robinson told him that if he apologized, the incident
would be forgotten. Robinson, on the other hand, testified that he
told Czajowski that if he apologized, he would be given another
opportunity, but denied that he told Czajowski that the incident
would be forgotten.
About April 1937, Czajowski was promoted to the job of stock help-
er, a position which he held until the strike. When he was promoted,
Leier was assigned to Czajowski's old job as porter. At that time Gun-
ther told Leier that if he did one-half as well as Czajowski had done,
Leier would be a satisfactory porter. About May 24 or 25, 1937, while
en route to a company picnic, Simmer overheard Gunther say to
another employee that Czajowski "is a, good boy, good worker, a little
talkative."
Gunther, on the other band, testified that Czajowski was an unsatis-
factory stock helper. Gunther stated that Czajowski was disliked by
the stockmen for whom he worked because he told the stockmen how
the work should be done instead of following their orders. They told
him that they would prefer not to have a stock helper than to have
Czajowski as such. Gunther testified that Czajowski "bore an awful
lot of watching," that "his general attitude was to do as little as pos-
sible," that he did not ever remember keeping another employee for
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 months during a period when everyone with whom that employee
worked was complaining about him, and that he had intended to have
Czajowski discharged at the usual Christmas lay-off. Czajowski tes-
tified that neither Gunther nor the stockmen complained to him that
his work as a stock helper was unsatisfactory, and that the only com-
plaint from the stockmen was that they could not get a stock helper for
a sufficient length of time.
Czajowski has had three years of college training. At the time
when Czajowski was reprimanded for the remark which he had made,
Robinson decided to retain him as an employee because of his superior
education. One of the respondent's personnel policies is to employ
college-educated persons, because such persons are regarded as more
eligible for promotion than less educated persons. Robinson stated
that this personnel policy was the reason for retaining and there-
after promoting Czajowski, but that Czajowski's progress as a stock
helper was not satisfactory for a person of his education.
According to Czajowski, when lie applied for reinstatement on Feb-
ruary 3, 1938, Robinson told him that he would be reinstated when the
respondent's business increased. Robinson claimed that when Cza-
jowski applied for reinstatement, he considered the incident of the
lewd remark, Czajowski's record as a stock helper, the fact that he
had been away from the St. Paul house for about 2 months, and con-
cluded that he should not be reinstated. Robinson did not deny, how-
ever, Czajowski's testimony that the former told him that he would be
reinstated when business conditions improved. The functions of
Czajowski's former job as porter and supply boy have been combined
with those of an employee filling stock orders.
We are satisfied from the foregoing testimony that Czajowski was
a competent porter and stock helper. The respondent conceded his
competence as a porter and it is significant that none of the stockmen
were called to support Robinson's testimony that Czajowski was an
inefficient stock helper. The incident of the obscene remark was evi-
dently not regarded by the respondent as sufficiently important to
warrant his discharge at the time it was made and presumably could
have no similar weight to justify a refusal to reinstate him. Fur-
thermore, we accept as true Czajowski's testimony that Robinson
promised him a job when improved business conditions warranted his
reinstatement.
As noted above, however, all jobs for which Czajowski is qualified
had been filled or consolidated. The respondent's refusal to make
room for Czajowski, either by discharging another employee or by a
further reorganization of the respondent's business was not required 13
is National Labor Relations Board v. Mackay Radio cG Telegraph Co.. 304 U. S. 333 (1938).
As noted above, we do not find that the respondent reorganized the work in its depart-
ments in order to discriminate against union members.
MONTGOMERY WARD AND COMPANY 207
Under the circumstances we find that the record does not support the
allegations of the complaint that Anthony Czajowski was refused re-
instatement because of his union membership and activity.
George Sarsgard. Sarsgard was hired by the respondent on June
2, 1936, as a mechanic in the maintenance department. At the time
of the strike he was earning 80 cents per hour. His duty was to keep
the electric motors.and conveyor belts used in transporting merchan-
dise within the St. Paul house in running order by cleaning, oiling,
greasing, and keeping them properly adjusted. Any shut-down of
the belts results in stopping the transportation of merchandise within
the St. Paul house.
Sarsgard joined the C. I. 0. local about May 1937, wore a union but-
ton at the plant, secured two members for the Union, went out on
strike, and picketed during the strike. He was not a member of any
union committee.
When he applied for reinstatement on January 7, 1938, Robinson
told him that "things" had been changed at the St. Paul house, that
the respondent had placed some one in his former job, but that if the
respondent's business increased, the respondent would again employ
him, since his employment record was satisfactory. When Sarsgard
reapplied for reinstatement in March 1938, Footh told him that the
respondent had a better man in his position and did not see why it
should lay the other man off in order to reinstate Sarsgard. He again
reapplied for reinstatement about July 5, 1938, asking for work of
any kind, but was not reinstated.
When Sarsgard went on strike, the respondent transferred Louis
McKenzie to the former's job as mechanic in the maintenance de-
partment. According to Robinson, McKenzie had originally been'
employed on June 18, 1936, as a pipe fitter for the installation of a
steam-heating system and at the time of the strike was engaged in
general mechanical maintenance work.
Following the strike the respondent reduced the number of its
maintenance employees. From November 1 to December 16, 1937,
it had an average of 26 such employees; the weekly average from
December 23, 1937, to March 3, 1938, was 19 such employees, a re-
duction of about 27 per cent in the number of mecchanical employees.
The respondent has hired no new employees for work for which
Sarsgard is qualified. As we have already stated, in the case of
Czajowski, the respondent was not required either to discharge an-
other employee or further to reorganize its business to make room
for Sarsgard.14
14 See National Labor Relations Board V. Mackay Radio & Tel. Co., footnote 13, supra.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the record does not support the allegations of the
complaint that George Sarsgard was refused reinstatement because
of his union membership and activity.
Arthur Tessman. Tessman was first hired by the respondent in
March 1933 and was continuously employed from June 21, 1935.
At the time of the strike he was working in the millwork pit as a
carpenter at 72 cents per hour plus a bonus under Leo C. Schultz,
who was in charge of the millwork pit. The millwork pit is a
part of the millwork department.
Tessman was on the union, organizing and strike committees, passed
out cards for the C. I. O. local, wore his union button at the plant, was
union job steward for his department, went on strike, and picketed
daily during the strike.
Before the strike Stanley Gieske was his helper earning 61 cents
per hour. A large part of their work was repairing the respondent's
millwork, that is, replacing moldings and glass broken in transit.
This repair work was necessary before the millwork could be sold
to the respondent's customers. They • also glazed unglassed doors
shipped to the St. Paul house and morticed millwork.
Late in 1937 a controversy arose among the millwork employees
who participated in a group bonus, that Tessman was not doing his
share of the work of the group although fully participating in the
bonus. Schultz withdrew Tessman and Gieske from the group bonus
and "ran" separate efficiency tests for 6 weeks on both of them. The
efficiency records gave Tessman a rating of 143 and Gieske a superior
rating of 150.
When the strike began the respondent abandoned its practice of
repairing damaged millwork, and began to-cull out such work and
sell it to jobbers, thereby eliminating about 98 per cent of the mill-
work repairing. At that time, Gieske was assigned to perform such
glazing work as the respondent continued to have and now does all
the glazing required in the millwork pit.
On January 6, 1938, when Tessman applied for reinstatement,
Robinson told him that there was no work for him at that time, but
that if business increased he would be notified to return. Tessman
was temporarily reinstated as a carpenter at 80 cents per hour on
March 7, 1938. During the following 2 months he and four other
specially hired carpenters built pit racks and stock bins for the re-
spondent as part of a physical rearrangement of the St. Paul house.
This carpentry work was too extensive to be handled by the respond-
ent's regular force of carpenters. Tessman and the four other car-
penters were laid off about May f8, 1938, when the work was
completed.
Tessman claimed that he was entitled to be reinstated as a car-
penter. The record shows, however, that the respondent employs
MONTGOMERY WARD AND COMPANY 209
two classes of carpenters, "rough" or "house" carpenters, and "fin-
ished" carpenters. Tessman was qualified to do the work of a rough
carpenter, but not that of a finished carpenter. Robinson cited cabi-
net work as an example of the work of a finished carpenter, for
which Tessman, in the respondent's opinion, is not qualified. On
December 1, 1937, six carpenters were employed in the carpentry shop,
and now only two carpenters, one Gustafson and Herbert Harley,
are so employed. Gustafson is a finished carpenter and Harley is a
superior mechanic, "catching on" more easily to work and doing a
more finished job, and is a better general utility carpenter than Tess-
man. Harley and Gustafson also went on strike but were reinstated.
It appears that both have more seniority than Tessman.
Tessman also claimed that two employees with less seniority, Skif-
-steel and Hillstrom, were working in the millwork department. It
does not appear that either Skifsted or Hilstrom went on strike with
the other employees. When Tessman applied for reinstatement, the
respondent was not required either to discharge another employee or
further to reorganize its business to make room for Tessman.15
We find that the record does not support the allegations of the
,complaint that Arthur Tessman was refused reinstatement because of
his union membership and activity.
Patrick Leier. Leier was hired as porter and supply boy by the
respondent on April 9, 1937, and worked continuously as such until
the strike. He was the only floor porter and supply boy in his
division. His job was to dump paper, keep the general appearance
of the floor neat, and see that sufficient supplies were available on the
floor at all times. About a month before the strike his floor was
awarded a pennant by the respondent for having been the cleanest
floor during the preceding month. The respondent concedes that he
was a satisfactory porter. At the time of the strike he was earning
40 cents per hour.
Leier joined the C. I. O. local when it first started, was on the union
organizing and strike committees, was a job steward for the Union,
passed out union literature and pamphlets in front of the St. Paul
house at various times from April 1937 until -the strike, and wore
his union button at work. Leier went out on strike and actively
participated as a picket and picket captain.
When he applied for reinstatement about January 7 or 8, 1938,
Robinson told him that Gunther was satisfied with his work, but that
the system of division porters had been discontinued throughout the
St. Paul house. Employees in particular divisions are now required
themselves to keep the floors clean in their divisions. Leier was
reinstated on March 22, 1938, not to his old job, but to the position
11 See National Labor Relations Board v. Mackay Radio c6 Tel. Co., footnote 13, supra.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of order filler. He was laid off on April 12, 1938, because his pro-
ficiency on the respondent's "training standards" for employees doing
new work was .5 per cent less than the minimum and about 15.5 per
cent less than the average for employees on training standards.
After Leier was laid off, he and another person started to distribute
in the respondent's public cafeteria cards protesting against wage cuts,
and urging employees to join the Union. Two house policemen
quickly stopped the card distribution, stating that it was prohibited
by municipal ordinance. About 2 days later Leier received a dis-
charge notice from the respondent stating that his 30-day leave of
absence had expired and that his name had been removed from the
pay roll.
The respondent's practice is to lay off for 30 days employees not
immediately needed, where the respondent believes that it may be
possible to reinstate the employee within the 30-day period. If it is
not possible so to reinstate the employee, the respondent then notifies
him that his name has been removed from the pay roll, except in a
few cases where the lay-off may be extended for an additional 30,
days. Robinson had heard that an attempt had been made to distrib-
ute cards in the cafeteria, but had not known until the hearing who
had made the attempt, and the letter which he sent to Leier notifying
the latter that his name had been so removed was a routine letter.
Leier thereafter returned to the St. Paul house about eight times,,
but was never able to find Robinson in his office.
The employment of the floor porters has been discontinued, thereby
eliminating Leier's job, and he was given a trial period at another
job in which he did not fulfill the respondent's training standards.
In view of these facts we are of the opinion that his union activity
and membership were not the reasons for the respondent's refusal to
reinstate him. Moreover, when Leier applied for reinstatement, the
respondent was not required to discharge another employee or further
to reorganize its business to make room for Leier'e
We find that the record does not support the allegations of the com-
plaint that Patrick Leier was refused reinstatement because of his
union membership and activity.
George Dewey Nelson. Nelson was hired by the respondent on
October 12, 1936, as a millwork stock helper at 40 cents per hour plus
a bonus. His wages were raised by successive stages to 55 cents per
hour by the time of the strike.
Nelson was a member of the C. I. O. local, wore his union button at
work, and spoke in favor of the Union, to other employees. He was.
on either the union organizing or strike committees, went out on
strike, and picketed during the strike.
i8 See National Labor Relations Board V. Mackay Radio & .Tel. Co., footnote 13, supra.
MONTGOMERY WARD AND COMPANY 211
When Nelson applied for reinstatement on January 7, 1938, Robin-
son told him that the respondent could not then employ him, but
might at a later date . Thereafter he twice applied for reinstatement
and was finally reinstated on July 8, 1938, as a .. trucker at 50 cents
per hour, 5 cents less per hour than he had received before the strike
and without a bonus.
He asserted that he was entitled to reinstatement before Earl
Nelson, another employee not-related to him. The latter , also a union
member, had participated in)the strike and was reinstated on Febru-
ary 22, 1938 , as a service order filler for the millwork department,
before G. D. Nelson was reinstated as a trucker . A service order
filler fills orders for the catalog order department and the retail store.
Earl Nelson had completed 2 years of college work. G. D. Nelson
left school after the sixth grade.
Before the strike both G. D. and Earl Nelson had worked as service
order fillers during rush periods, but were not regular service order
fillers . Although it is not entirely clear from the record, it appears
that before the strike both G. D. and Earl Nelson did substantially
the same type of work as stock helpers engaged in manual labor.
Earl Nelson 's present . job.as a millwork service order . filler is a pro-
motion to a more responsible type of work . Both G. D. and Earl
Nelson went on strike . G. D. Nelson also claimed that two other
employees with less seniority , Gieske and Skifsted , have been re-
tained by the respondent in preference to him. It does not appear
that Gieske and Skifsted went on strike . Both men are doing differ-
ent work than G. D. Nelson performed . When G. D. Nelson applied
for reinstatement , the respondent was not required to discharge
another employee or further to reorganize its business to make room
for G. D. Nelson.17
We find that the record does not sustain the allegations of the
complaint that George Dewey Nelson was refused reinstatement
because of his union membership and activity.
Edward Pollek. Pollek was briefly employed by the respondent
in 1922, from 1923 to 1925 , and continuously from March 25, 1931,
at 72 cents per hour as a box maker in the box shop. The box and
the carpentry shops are at opposite ends of the same room in the
St. Paul house. Pollek had less seniority than any of the box
makers, but more seniority than any of the carpenters.
Pollek was one of the original members of the C. I . 0. local , signed
up the eight or nine employees in the box and carpentry shops, and
wore his union button at the plant . He went on strike and picketed
during the strike. Pollek was not a member of either the union
" See National Labor Relations Board v. Mackay Radio cC Tel. Co ., footnote 13, supra.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizing or strike committees. In April 1937 he was warned by
Everetts, his foreman, not to pass out C. I. 0. cards on company
time and property.
When Pollek applied for reinstatement on January 7, 1938, Rob-
inson told him that the respondent had rearranged its departments
and that he would inform Pollek if the respondent needed another
box maker in the next 6 months or year. The work in the box shop
has been reduced about 40 per cent. Before the strike the respondent
employed four box makers. At the time of the hearing it employed
three box makers, one of whom worked only part time.
Pollek reapplied for reinstatement in February 1938. He claimed
that meanwhile Hebert Schmidt, a carpenter with less seniority, had
been placed in the box shop. The record shows, however, that
Schmidt is working as a truck greaser in the maintenance depart-
ment, a different type of work from that done by Pollek before the
strike. Pollek also claimed that William Neudahl, who was orig-
inally hired as a carpenter, had less seniority than he, but had never-
theless been retained in the respondent's employ. Neudahl is the only
mason, bricklayer, and plasterer in the respondent's regular employ.
He does such work in addition to carpentry for the respondent. He
is, moreover, experienced in the use of "multimastic," a floor patching
compound used by the respondent, and is one of the few persons in
St. Paul and Minneapolis who are familiar with its use. Pollek has
no such experience. It does not appear that either Schmidt or
Neudahl. participated in the strike.
Pollek contends, in effect, that the work in both the box and car=
pentry shops is such that employees in one shop are frequently shifted
to the other. The respondent contends that box making and car-
pentry are different occupations. Everetts testified that box making
is not a branch of carpentry, but a different occupation, and that the
only interchange of work between the carpentry and box shops is
that carpenters are sometimes temporarily transferred to the box
shop to break up boxes, but that box makers did not work in the
carpenter shop. Box makers cut lumber to specified lengths and
nail and screw such lumber together to make boxes. They also do
some other nailing. Carpenters, on the other hand build and repair
desks, racks, and bins, by cutting and assembling lumber in accord-
ance with a design, and by gluing, nailing, and screwing such lumber
together. We find that in the St. Paul house box making is not
a branch of carpentry. Pollek has not been a carpenter in any
capacity for the respondent. He is thus not qualified to work in
the carpentry shop. The amount of work and the number of em-
ployees in the box shop have been substantially reduced. Pollek
does not contend that he has more seniority than any of the box
MONTGOMERY WARD AND COMPANY 213
makers whom the respondent has retained. When Pollek applied for
reinstatement the respondent was not required to discharge another
employee or further to reorganize its business to make room for
Pollek.18
We find that the record does not sustain the allegations of the
complaint that Edward Pollek was refused reinstatement because of
his union membership and activity.
Howard Vining. Vining was continuously employed from October
15, 1928, principally working as a stockman. At the time of the
strike he was earning 55 cents per hour plus a bonus.
He joined the Union in October 1937, wore his union button. at
the plant, and was a member of the union strike committee. Vining
went orb strike and picketed during the strike. In November 1937,
when the strike was impending, Morrissey, his supervisor, called
Vining to his desk and told him that any employee§ who went on
strike would lose their jobs and that the respondent would close up
the St. Paul house as it had the Kansas City house, and would
"remember" the employees wearing union buttons.
When Vining went to the respondent's employment office on January
7, 1938, a stenographer on duty there instructed him to fill out an
application card, as all employees applying for reinstatement were
instructed to do. Vining regarded this instruction as a notice to
"start over as a beginner," and left the employment office without
complying with the instruction.
About March 2, 1938, Vining applied for reinstatement. He claims
that two stockmen with less seniority, Gilbert Rohling and Edward
Elli, have been retained in the respondent's employ in preference to
reinstating him. Elli has been continuously employed by the respond-
ent a year longer than Vining. Both Elli and Rohling were union
members and went on strike with Vining, but promptly applied for
reinstatement and were back at work when Vining applied in Feb-
ruary 1938.
In January 1938 the respondent reorganized its stock plan and put
the plan into effect on February 1, 1938. As a result of the reorganiza-
tion the respondent now employs fewer stockmen than it did before
the strike. The respondent was not required to discharge another
employee or further to reorganize its business to make room for
Vining.19
We find that the record does not sustain the allegations of the com-
plaint that Howard Vining was refused reinstatement because of his
union membership and activity.
Is See National Labor Relations Board v. Mackay Radio & Tel. Co., footnote 13, supra.
19 See National Labor Relations Board v. Mackay Radio & Tel . Co., footnote 13, supra.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order that it cease and desist therefrom, and that
it take certain affirmative action which will effectuate the policies of
the Act.
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
to them in Section 7 of the Act. In order to effectuate the policies of
the Act and free the employees from such interference, restraint, and
coercion, we will order the respondent to notify in writing all present
and any future under-cover. operatives at the St. Paul house that
they shall not, by spying or other activity, interfere with the exercise
by the respondent's employees of the rights guaranteed in Section 7
of the Act.
The respondent's refusal to reinstate the employees named in the
complaint was occasioned by a decrease in business and available work
at the St. Paul house. We will not, therefore, order their reinstate-
ment. In view of the respondent's unfair labor practices as set forth
in Section III A, however, there is grave danger that the respondent
will not reinstate these individuals even if their former or substan-
tially equivalent positions are open. In order to effectuate the policies
of the Act, we will require the respondent to place Harry Benson,
Franklin Erickson, Pearl Glantz, Kenneth Gondek, George Grovhoug,
Genevieve Larson, Patrick Leier, Nick Malget, George Dewey Nelson,
Valeria Och, Edward Pollek, George Sarsgard, Arthur Tessman, and
Howard Vining, for whom work was not available at the time of the
hearing, upon a preferential list for employment as it arises.20 We
will also order such placement for Anthony Czajowski, since Czajow-
ski's testimony is uncontradicted that Robinson told him that he
would be reinstated when business increased.
20Matter o f Benjamin Levine, doing business under the name and style o f Estellite Fix-
fiures Company and International Brotherhood of Electrical Workers, Local Union No. 438,
6 N. L. R. B. 400 ; Matter of American Manufacturing Concern and Local No. 6, Organized
Furniture Workers, 7 N. L. R . B. 753 ; Matter of American Numbering Machine Company
and International Association of Machinists , District #15, 10 N . L. R. B. 536 . Glantz was
in the respondent's employ at the time of the hearing , doing the same work she had done
at the time of the strike , but did not they, have the status of a permanent employee.
MONTGOMERY WARD AND COMPANY 215
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
b
1. Warehouse Employees ' Union No. 20 ,297 is a labor organization,
within the meaning of Section 2 (5) of the Act. .
2. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act , the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not discriminated in regard to the hire and
tenure of employment of Harry Benson, Anthony Czajowski , Frank-
lin Erickson, Pearl Glantz , Kenneth Gondek , George Grovhoug,
Genevieve Larson, Patrick Leier, Nick Malget, George Dewey Nel-
son, Valeria Och, Edward Pollek, George Sarsgard , Arthur Tess-
man, and Howard Vining, within the meaning of Section 8 (3) of
the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Montgomery Ward and Company, Inc, St. Paul,
Minnesota, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Either directly or indirectly engaging in any manner of
espionage or surveillance, or engaging the services of any agency
or individuals for the purpose of interfering with, restraining, or
coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, or to engage
in concerted activities for the purposes of collective bargaining and
other mutual aid or protection;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
247384-40-vol. l 7--15
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Notify in writing all its present and any future under-cover/
operatives at the St. Paul house that they shall not spy upon the
respondent's employees in their exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations of their own choos-
ing, and to engage in concerted activities for the purposes of collec-
tive bargaining and other mutual aid or protection, and that they
shall not report to the respondent regarding such exercise by the
respondent's employees;
(b) Place Harry Benson, Anthony Czajowski, Franklin Erickson,
Pearl Glantz, Kenneth Gondek, George Grovhoug, Genevieve Larson,
Patrick Leier, Nick Malget, George Dewey Nelson, Valeria Och,
Edward Pollek, George Sarsgard, Arthur Tessman, and Howard
Vining on a preferential list to be offered employment as it arises
on the basis of seniority by classification and offer them reinstate-
ment to their former or substantially equivalent positions before
any other persons are hired therefor,;
(c) Immediately post notices in conspicuous places throughout
the St. Paul house and maintain such notices for at least sixty (60)
consecutive days, stating that the respondent will cease and desist
in the manner set forth in paragraphs 1 (a) and (b), and that it
will take the affirmative action set forth in paragraphs 2 (a) and
(b) of this Order;
(d) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent discriminated
against Harry Benson, Anthony Czajowski, Franklin Erickson,
Pearl Glantz, Kenneth Gondek, George Grovhoug, Genevieve Lar-
son, Patrick Leier, Nick Malget, George Dewey Nelson, Valeria Och,
Edward Pollek, George Sarsgard, Arthur Tessman, and Howard
Vining in regard to the hire and tenure of their employment.