Montgomery Ward and Co., Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1938

4 N.L.R.B. 1151 (N.L.R.B. 1938)

In the Matter Of MONTGOMERY WARD AND COMPANY, INCORPORATED, A
CORPORATION and UNITED MAIL ORDER AND RETAIL WORKERS OF
AMERICA
Case No. C-217-Decided January 26, 1938
General Merchandising Mail Order Business-Interference , Restraint or
Coercion : propaganda against Union , anti-union statements ; expressed oppo-
sition to Union-Company-Dominated Union: domination and interference with
administration of ; sponsoring and fostering growth of ; activities of super-
visory employees on behalf of-Discrimination : discharge ; refusal to hire
because of union membership-Stritce-Reinstatement Ordered: employee dis-
charged for union activity ; placement of person refused employment on prefer-
ential list for employment-Back Pay: awarded.
Mr. Paul F. Broderick and Mr. Henry H. Foster, Jr., for the
Board.
Mr. Henry N. Ess, Mr. John Barr, and Mr. Carl Enggas, of Kansas
City, Mo., for the respondent.
Woodruff cC Gard, by Mr. W. F. Woodruff and Mr. Spencer A.
Gard, of Kansas City, Mo., for U. W. E.
Mr. Howard Lichtenstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by United Mail
Order and Retail Workers of America, herein called the Union, the
National Labor Relations Board, herein called the Board, by George
0. Pratt, Regional Director for the Seventeenth Region (Kansas
City, Missouri ), issued and duly served its complaint dated June
16, 1937, against Montgomery Ward & Co., Incorporated ,l Chicago,
Illinois, herein called the respondent, alleging that the respondent,
at its Kansas City , Missouri , plant, had engaged in and was engaging
in unfair labor practices affecting commerce , within the meaning of
Section 8 ( 1), (2), and ( 3) and Section 2 (6) and (7) of the National
'Incorrectly designated in the complaint as Montgomery Ward and Company, Incor-
porated. a Corporation.
1151
1152 NATIONAL LABOR RELATIONS BOARD
Labor Relations Act, 49 Stat. 449, herein called the Act. On June
22, 1937, the respondent filed its answer to the complaint in Which it
admitted that it is engaged in interstate commerce, but denied that
it had engaged in or was engaging in the unfair labor practices
alleged in the complaint. At the same time the respondent filed a
motion to dismiss the complaint and a motion to make the complaint
more definite and certain.
Pursuant to notice, a hearing was held in Kansas City, Missouri,
from June 24 to July 9, 1937, before James C. Paradise, the Trial
Examiner duly designated by the Board. The Board, the respondent,
and The Union of Ward Employees, herein called the U. W. E., whose
motion to intervene was granted by the Trial Examiner, were repre-
sented by counsel.2 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 commencement of the hearing, the respondent renewed its
motions to dismiss the complaint and to make the complaint more
definite and certain, both of which were denied by the Trial Examiner.
Oh July 3, 1937, during the course of the hearing, counsel for the
Board moved to amend the complaint in various particulars and to
include an allegation with respect to the discriminatory refusal of
the respondent to employ Charles E. Hooper. This motion was
granted by the Trial Examiner over the objection of the respondent,
which was afforded opportunity to interpose an answer to the com-
plaint as amended.
On August 10, 1937, the Trial Examiner filed his Intermediate
Report, in which he found that the respondent had engaged in and
was engaging in the unfair practices alleged in the complaint, as
amended, except in so far as it alleged that the respondent had refused
to employ Charles E. Hooper because of his union membership. He
recommended that Robert Green, alleged to have been discrimina-
torily discharged, be reinstated, and that the U. W. E. be disestab-
lished as a collective bargaining agency.
Thereafter the respondent and the U. W. E. each filed exceptions
to the Intermediate Report and to various rulings of the Trial Exam-
iner. In addition, the U. W. E. filed a brief, which the Board has
considered. The Board has reviewed the rulings of the Trial Ex-
aminer on motions and on objections to the. admission of evidence and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. The Board has also considered the exceptions to
the Intermediate Report and finds them to be without merit. The,
2 The U. W. E. Is alleged in the complaint to be a company-dominated union within
the meaning of Section 8 (2) of the-Act. A motion to intervene made by counsel for
The Union of Ward Retail Employees was denied by the Trial Examiner, and this latter
union did not participate in the hearing.
DECISIONS AND ORDERS 1153
Board departs from the Trial Examiner's finding that Charles E.
Hooper was not discriminatorily refused employment.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a corporation organized under the laws of Illinois
on November 21, 1919, maintains its principal executive offices in
Chicago, Illinois. It conducts a general merchandising business
through the media of nine mail order houses and over 400 retail stores.
The mail order houses, located respectively in Chicago, Illinois;
Kansas City, Missouri; Fort Worth, Texas; Portland, Oregon; St.
Paul, Minnesota; Oakland, California; Baltimore, Maryland; Denver,
Colorado; and Albany, New York, sell directly 1o consumers, through
catalogues, a wide variety and selection of clothing, dry goods, fur-
niture, home furnishings, hardware, plumbing, heating, farm equip-
ment and supplies, building materials, jewelry, musical instruments.
tires and automobile accessories, electrical supplies, books, stationery,
drugs, cosmetics, and sporting goods. The retail stores, located
throughout the country, handle the same general lines of merchandise
but limit their sales to over-the-counter transactions. In addition
to its mail order houses and retail stores, the respondent also operates
several factories for the manufacture of paint, varnish, fencing, and
farm equipment.
The Kansas City plant of the respondent, with which this pro-
ceeding is concerned, occupies an eight story building and is the
second largest of all of the respondent's plants with respect to floor
space. The building is divided functionally into two parts : the mail
order house, occupying six floors, and the retail store, occupying the
first two floors.
The mail order house was aptly described by its manager as a
mechanism created by the respondent to facilitate the distribution of
products-a conduit for merchandise from sources of supply to the
consumer. Merchandise is received from thousands of manufacturers
located in various states of the United States and in foreign coun-
tries. It is estimated that approximately 80 per cent of such mer-
chandise is shipped from sources outside the State of Missouri.
Products received at the mail order house are inventoried and
shipped out on order, in many instances without disturbing the
original packages in which they were received.
The mail order house supplies merchandise to about 65 retail
stores of the respondent located in Nebraska, Kansas, Oklahoma,
Arkansas, Missouri, and Iowa. In addition, it sells merchandise
1154 NATIONAL LABOR RELATIONS BOARD
directly to consumers within a region embraced by these States, and
on occasion to consumers located outside of this region. The net
sales of the Kansas City mail order house in 1936 were between $16,-
000,000 and $17,000,000, covering between 4,000,000 and 5,000,000 or-
ders. In the conduct of its normal operations it requires the services
of approximately 2,000 employees.
The Kansas City retail store, although occupying the same build-
ing as the mail order house, is operated as a separate and distinct
unit, having no connection either in personnel • or in management
with the mail order house. It receives approximately 80 per cent
of its merchandise from original sources of supply, all located outside
the State of Missouri. The remaining 20 per cent of its stock is
produced from the Kansas City mail order house. Most of the sales
of the retail store are made to consumers in Missouri, although on
occasion shipments are made outside the state. The retail store nor-
mally operates with approximately 265 employees.
II. THE ORGANIZATIONS INVOLVED
United Mail Order and Retail Workers of America is a labor or-
ganization affiliated with the Committee for Industrial Organization,
admitting to membership the employees of both the Kansas City
mail order house and the Kansas City retail store of the respondent.
The record does not disclose whether membership is limited to these
employees.
The Union of Ward Employees is likewise a labor organization
but is not affiliated with any other organization. Its membership
is open and limited to the employees of the respondent's Kansas City
mail order house, except supervisory employees and employees who
are members of any other labor organization.
III. THE UNFAIR LABOR PRACTICES
A. The formation of the U. W. E.
A description of the personnel organization of the respondent's
Kansas City mail order house is essential to a complete understand-
ing of the events that occurred at this plant. The mail order house
is under the direct supervision of the house manager, who is re-
sponsible only to the executive officers of the respondent at Chicago.
Under the house manager are the principal executive employees : the
superintendent of operations, the assistant superintendent of opera-
tions, the superintendent of merchandise, and the personnel man-
ager. Mail order house operations are carried on through approxi-
mately 20 departments, each under the supervision of either a depart-
ment head, an operating supervisor, or a division superintendent.
DECISIONS AND ORDERS 1155
Operations in the departments are further divided among approxi-
mately 70 supervisors, each of whom is responsible for the work of
from six to 45 employees in his unit. Supervisors have no authority
to hire or discharge. The record is clear, however, that they exer-
cise substantial authority over their subordinates.
Considering those who testified or were mentioned during the hear-
ing as typical, supervisors are old and trusted employees who have
been employed by the respondent for periods of from seven to 22
years. They receive a minunum of 36 cents per hour compared with
the basic wage of 31 cents paid to their subordinates. Each super-
visor is responsible for the work of his unit and for the maintenance of
discipline. In cases of unsatisfactory work or conduct within the unit,
the supervisor may initiate disciplinary action by reporting it to the
department head. In addition to his supervisory duties, the super-
visor also performs the same tasks as his subordinates.
Despite the attempt of the respondent to minimize the authority of
the supervisors, the record indicates that they are relied upon by
department heads for the maintenance of efficiency and discipline in
their units in the same manner as the house manager relies upon the
department heads for the proper conduct of their departments. We
conclude from the evidence that the supervisors employed in the mail
order house not only have the authority normally delegated to super-
visory employees, but they are also considered as supervisory employees
by the clerks, stenographers, and other employees under their
supervision.
Prior to April 1937 the respondent's employees in the Kansas City
plant were unorganized, and no union activity had taken place. Early
in April the Union commenced an organizing drive, and from the
latter part of April through May it held mass meetings at almost
weekly intervals. Officers were elected, conditions of employment and
grievances against the management were discussed, and committees
designated to negotiate with the management. The record discloses
that by the first week in May the Union had attracted the support of a
considerable number of employees of both the mail order house and the
retail store. Its literature and membership buttons were in evidence
throughout the plant, and its organization activities had not yet met
with opposition from the respondent.
On about May 1, 1937, William Carl Weaver, the house manager of
the mail order house, called a meeting of department heads, operating
supervisors, and division' superintendents, and read to them a letter
which he had received from the executive office in Chicago. The let-
ter drew attention to the decision of the United States Supreme Court
upholding the constitutionality of the National Labor Relations Act
and expressed the intention of the respondent "to observe the letter
1156 NATIONAL LABOR RELATIONS BOARD
and spirit of this law." 3 , A day or two later Weaver called a second
meeting of this same group, stated that a Union handbill had been
found on a bulletin board in the plant, and advised the group that
the bulletin boards were for company business only and that any
notices not pertaining thereto were to be removed at once. There is
also testimony that Weaver further advised those present to maintain
a neutral attitude toward Union activity.
That the respondent, however, was merely paying lip-service to the
observance of the Act is unmistakably revealed by subsequent events.
During the first week in May, Ernest R. Thompson, an operating
supervisor, was summoned to Weaver's office to a conference with
Weaver, L. K. Bye, superintendent of operations, and Bullock, an
assistant to the operating superintendent, who is associated with the
Chicago offices of the respondent. According to Thompson, Bullock
stated that wages had been increased to the extent that stockholders
were receiving a small return on the profits of the respondent; that he
expected the employees to continue without organizing under the
C. I. 0.; and that C. I. 0. officials were not reputable and were acting
for their own financial interests, and not in the interests of the workers.
Thompson had been employed by the respondent for 22 years, and,
at the time of the hearing was a supervisory employee. He was not a
member of any labor organization, and the fact that his testimony
was wholly inimical to his own interests gives it added weight. This
testimony was not contradicted and was circumstantially corroborated
by Ralph Person, a division superintendent, called as a witness for
the respondent.
Person also was called to Weaver's office early in May for an indi-
vidual conference with Weaver and Bullock. Although he denied
that Bullock made any statements of the character Thompson testi-
fied to, he admitted that the C. I. 0. was discussed. Bullock further
stated, according to Person, "that the leaders of the C. I. 0. had been
causing quite a bit of trouble around the country and that he hoped
that we wouldn't have the same situation that had been in other
places." Person testified that "several of the boys told me they were
also called in" for individual conferences. It is also significant that
Bullock was not called as a witness to deny these statements attributed
to him.
In view of the fact that two meetings with department heads had
been called during the same week, at which the management expressed
its position with respect to labor organizations, no reason is apparent,
nor was any offered by the respondent, for these individual confer-
ences, admittedly on the same subject. It is obvious that the state-
ments made by Bullock to Thompson and Person were not conducive
3 Respondent 's Exhibit No. 3
DECISIONS AND ORDERS 1157
to the maintenance of the "neutral" attitude which the respondent
was allegedly seeking to promote. Indeed, from the activities which
followed, it is apparent that the respondent 's protestations of "neu-
trality" were designed to camouflage its active opposition to Union
organization.
According to Joe Collins, its self-styled author, the idea of the
U. W. E. was conceived on May 6, 1937. Collins had been employed
by the respondent as an engineer for about six years.- He was char-
acterized by several witnesses as the assistant to the chief engineer,
and by George L. Osborne, the personnel manager, as the senior in
the engineering department. Harry Staley, another engineer, testi-
fied that Collins issued orders to the engineers in the absence of the
chief engineer.
Collins' testimony regarding the organization 'of the U. W. E. is
undisputed . His principal reason for organizing was the desire to
keep the Union out. Although he had no objection to the specific
aims of the Union, in his own words, "I didn't want outsiders bar-
gaining for what I would want." On May 7, having obtained and
read a copy of the Act, he decided that the assistance of an attorney
was necessary . He thereupon consulted the superintendent of the
company for which he had worked before he was employed by the
respondent and asked him to recommend an attorney who "didn't
have a lot of political entanglements, a lot of labor entanglements,
and in particular one that had never represented Montgomery Ward
& Company in any law suit."
On the following day Collins started active organization work in
the plant by calling several employees, including supervisors, from
their work to his office in the engine room. Each person was sum-
moned separately, questioned regarding his attitude toward the
Union, and invited to attend a meeting at Collins' home on the
evening of May 9. No action was taken on that evening, and another
meeting was called the following evening at the home of Clara Sharp,
a supervisor.
The meeting of May 10 was attended by some 15 employees, includ-
ing Clara Sharp, Erma Pace, secretary to the superintendent of mer-
chandise; Ruth Walsh, a supervisor; Charles H. Nichols, a junior
rebuyer; Grace Johnson, a supervisor; Floyd Smith, chief electrician
in the shipping department, and Joe Collins. Minutes were taken by
Miss Pace and a- petition previously prepared by Woodruff & Gard,
the attorneys recommended to Collins, was signed by the employees
present who agreed-to act as an organizing committee for "The Union
pf Ward Employees of Kansas City, Missouri." Smith was elected
president , Nichols, vice -president , Erma Pace, secretary , and Collins,
treasurer.
1158 NATIONAL LABOR RELATIONS BOARD
On the evening of May 12, a meeting of the organizing committee
was called at the home of Ethel Brown in order to arrange for an
open meeting of the U. W. E. The position of Ethel Brown is
deserving of particular notice in view of the important role played
by her in the organization of the U. W. E. Characterized by the
respondent as a supervisor, she was employed in the mail order
house, and at the time of the hearing, held the position of head time-
keeper, ,having supervision of the timekeeping unit. Prior to 1933
she had handled the employment and personnel work in the mail
order house. There can be no doubt that Ethel Brown held a respon-
sible managerial position with the respondent, and the evidence
clearly indicates that she was identified with the management by
the employees.
The minutes of the meeting of May 12 contained verbatim reports
submitted by the organizers. "Jessie Rinehart said they were
watched. However it was understood that Grace (Johnson) had an
office in the club and that she could be absent whenever she felt she
should . . . Albert Favon-I have run up against the supervisors-
three and they are all afraid of their jobs. I held a meeting this
morning. I went into the Preparation Room and Mrs. Wright
called her people together and I made a speech." The meeting was
concluded with a speech by Collins who advised : "Let us be on the
alert for any resistance on the part of the Company to our efforts to
organize. The Wagner Act allows them to protect their own prop-
erties from our efforts and insist that we do not solicit on Company
time. (We will solicit on Company time in a mild way.)" In view
of the fact that this meeting vas held in the home of the head tin-
le-keeper, that the speaker was Joe Collins, and that the audience
included Erma Pace and several supervisors, the excerpts from the
minutes of the meeting are unquestionably naive.4
It is evident that from the outset and through every step of its
organization, the U. W. E. anticipated that it would be charged with
company domination and that it took elaborate precautions to meet
the charge. Minutes of all the meetings were submitted to the
attorneys for legal approval. Organizing petitions were prepared by
the attorneys. A copy of the handbills advertising the open meeting
of May 14 was submitted to the attorneys, as were the "pertinent
questions and answers" distributed at that meeting. Two speeches
made at that meeting were carefully written out and edited in
advance, "so that they might not be misinterpreted nor cause a mis-
4 Erma Pace , who stated that she and the other organizers were loyal employees , testi-
fied that she did not believe that the management would be pleased with her organization
activities . On being questioned with reference to the minutes , she stated that she' did
not consider the violations of company rules mentioned in the minutes to be acts of
disloyalty.
DECISIONS AND ORDERS 1159
understanding of what we were about," and a stenographic record
was ordered made of the questions and answers asked and given
from the floor, allegedly because it was anticipated that an attempt
would be made "to befog the issues." The demands submitted to
the management on May 21, powers of attorney mailed to the em-
ployees after May 21, notices of the meeting of June 21, and the
permanent constitution of the U. W. E. adopted at that meeting
were all either prepared by or received the approval of the attorneys.
These facts are significant, not because the seeking of legal advice is
reprehensible, but because they indicated that the organizers required
assurances of the legal propriety of each and every one of their
activities. The evidence clearly indicates a consciousness on the part
of the organizers that their activities were not as "legal" as they
would have this Board believe.
The atmosphere of secrecy and of conflict with the management
sought to be created by the engine room conferences of May 8 and
by the minutes of the meeting of May 12 was completely at variance
with U. W. E. activities which were being openly carried on through-
out the mail order house. Ethel Brown, other supervisors, and some
of the department heads were promoting the cause of the U. W. E.
so openly and notoriously that it could only have been done with
the consent, if not at the request, of the respondent. Testimony con-
cerning the activities of these supervisory employees was uncon-
tradicted, and in many cases corroborated by the respondent's
witnesses.
Commencing on May 11, Ethel Brown held a series of meetings
in the recreation hall, many of them during working hours, which
were attended by substantial numbers of employees. She told the
employees that although they had never felt the need for a union,
since an outside organization had stepped in, a few "old timers" had
gotten together to form an employees' union; and that after the
U. W. E. had secured a membership of 51 per cent of the employees
and had been recognized by the respondent, demands would be dis-
cussed. Mrs. Brown also held numerous meetings in the various
departments before, during, and after working hours, the employees
being summoned from their work by their supervisors for the pur-
pose of attending. Petitions were available for signature in her office
during working hours, and members of the organizing committee
went to her office to sign additional petitions, to discuss organization
problems, to obtain American flag pins which had been adopted as
the emblem of the U. W. E., and to turn in funds which they had
collected.5
5 The funds collected by the U. W E, in the form of 25 cent membership fees, were
kept in the safe in the cashier ' s office of the plant.
67573-38-vol iv-74
1160 NATIONAL LABOR RELATIONS BOARD
The origin of the mailing list used by the U. W. E. was not di-
rectly established. Each of the respondent's witnesses who was ques-
tioned professed, ignorance as to its origin. Joe Collins admitted that
Ethel Brown told him that she had obtained a list of the mail order
house employees. Of the organizers, she alone had access to the
personnel records of the mail order house, and it is reasonable to
conclude that she prepared the mailing list from the respondent's
files.
In addition to her active organization work, Mrs. Brown, with
Joe Collins, was designated as the committee to present the demands
of the U. W. E. to the management, and she was also a member of
the committee which prepared the permanent constitution and
by-laws.
A rehearsal of the activities of each of the other supervisors who
promoted the U. W. E. would be repetitious. These activities were
not denied by the respondent and were substantially admitted by the
supervisors who testified, including Clara Sharp, Ruth Walsh,
Georgia Gilley, Grace Johnson, and Theresa Wells, Irene Nichols, a
junior supervisor under Mrs. Main, supervisor in the index depart-
ment, testified that Mrs. Main requested her and three other junior
supervisors under her, to obtain members for the U. W. E., and that
Mrs. Main notified the girls in her department of Ethel Brown's
meetings in the recreation room. Beulah Ogg, another junior super-
visor, corroborated Miss Nichols' testimony. She further testified
that Mrs. Main had said that the respondent would rather have a
union of its own than an outside union. Patricia Brittenstein and
Dorothy Wallace testified that they had been advised to attend a
meeting in the recreation room by Mrs. Short, their acting supervisor.
Ruby Jones testified to receiving similar advice from her supervisor,
Mrs. Wells. None of this testimony was controverted by the respond-
ent. Georgia Gilley admitted telling Dorothy Hovak and Virginia
Phillips, after the plant had closed, that it would not open "under
the C. I. 0.," although she modified her admission by testifying that
she made the statement as her "own opinion."
In addition to the supervisors, others whose interests were close to
those of the management were also active in promoting the U. W. E.
Burnham King, an express clerk, testified that Westphal, the wage
incentive director (efficiency expert), noticed his Union button and
said, "Well, you fellows keep on and you will have it so nobody will
have a job." Westphal further said that he' did not believe that
the respondent would sign a contract with the Union. This testi-
mony is uncontradicted. James Brady, a division superintendent,
used the telephone on the desk of an employee, Mary Louise Zim-
merman, to order additional flag pins. Erma Pace, in addition to
DECISIONS AND ORDERS 1161
her other activities, had petitions available in her office and admitted
that many employees came up to sign them. Ernest Waite, a clerk
in Weaver's office, was likewise active. He told a fellow employee,
Maud Livingston, to join the U. W. E. if she wanted to keep her
job. After the strike, called by the Union on May 25, Waite visited
Miss Livingston at her home and told her that the plant would
remain closed unless 65 per cent of the employees joined the U. W. E.
It is clear that the widespread activities of the supervisors and
other confidential employees must inevitably have affected the em-
ployees' freedom of choice. The testimony of Ruth Walsh is eloquent:
Q. Now, Mrs. Walsh, why did you consider it an act of loyalty
to you that the girls who worked with you should join the union?
A. Well, I just thought it would show-as long as I was one of
the organizers and everything-we had started together and we
always stuck together, the people that was under me, and I just
took it for granted that they would be for me.
Q. You took it for granted that the people that worked under
you would be for whatever you were with?
A. Yes. I was really surprised that, they weren't.
During the period of organization activity for the U. W. E. in the
mail order house, similar activity was being carried on by supervisory
employees in the retail store. H. P. Gibson, assistant manager of the
retail store, testified that he, like Weaver, had received instructions
from the Chicago office to observe the provisions of the National Labor
Relations Act. Yet the organization of a union among the retail store
employees paralleled the organization of the U. W. E.
Three witnesses, Johanna Smith, Pearl Aldridge, and Thelma
Finter, all employees in the retail store, testified that early in May they
were asked to attend a meeting of employees at a tea room near the
plant. Miss Smith attended at the request of Mrs. Boon, the time-
keeper in the retail store, and Miss Aldridge and Miss Finter, at the
request of Walter Carlton, the supervisor of the hardware department.
Among the fifty employees present were Mrs. Boon and Mrs. Bolar,
head of the credit department. Stevenson, head of the sporting goods
department, presided.
Johanna Smith's testimony, corroborated by Thelma Finter, was not
contradicted by the respondent:
He (Stevenson) said, "I don't believe in Unions. I don't like
Unions. I never belonged to but one Union in my life, the I. W.
W., but we are here at the request of the management, to organize
- a company union. I think we have waited too long, but sign the
paper as you pass out." And Mrs. Boone hopped up and said,
"Collect a quarter because that makes it binding."
1162 NATIONAL LABOR RELATIONS BOARD
James B. Hutsell, a shipping clerk in the retail store, who had also
attended this meeting at the request of Mrs. Boon, had the following
conversation with Stevenson several weeks later :
Well I went over in Mr. Stevenson's department to get some
merchandise . . . I asked him how everything was coming and
he said it was coming all right. I said "Steve, tell me where the
union originated. Tell me when it was started and who started
it." And he said "I will tell you, we got orders from the company
to start a company union, and here we are."
This testimony remained uncontradicted by the respondent. There is
also uncontradicted testimony that Mrs. Boon solicited Paul Warner,
an employee, to join the retail employees' union; that Claude Nichols
employed in the receiving department, was likewise solicited by
Hickey, head of the automobile accessories department. The evidence
also shows that American flag pins used as the insignia of the U. W. E.
were also distributed in the retail store, and that the fee (25 cents) for
joining the unions in both the retail store and the mail order house
was the same.
The respondent submitted testimony to prove that it took a neutral
position; that its department heads were told of the respondent's desire
to observe the requirements of the Act; that it frowned equally upon
the activities of both unions on company time and property; and that
several supervisors were reprimanded by their department heads.
This testimony is unconvincing. No effort was ever made to curb the
activities of Ethel Brown; not one of the supervisors was actually
disciplined for the admittedly persistent and flagrant violations of
the respondent's rules; and with but a single exception, no supervisor
was ever reported by a department head to the manager. It is incon-
ceivable, in the face of its protestations of neutrality, that the respond-
ent did not know of the activities of its supervisors until the latter
part of May, when the Union complained to Weaver.
The respondent also attempted to prove that the Union carried on
widespread activities similar to those of the U. W. E. during working
hours. The overwhelming weight of evidence proves, however, that
except in a few isolated cases, no open solicitation of members for
the Union occurred during working hours; that Union activity con-
sisted of dropping handbills advertising its meetings on the stairs,
placing them on the belts and in the tubes used for communications
between departments, and, after the Union had been denied the
use of the bulletin boards, of pinning the handbills on the walls over
drinking fountains. The record further shows that Union hand-
bills found in the plant were promptly delivered to department heads
and consigned to waste paper baskets. Although both unions were
discussed throughout the plant, the Union held no meetings either
in the recreation room or elsewhere in the plant. The contention
DECISIONS AND ORDERS 1163
that the two unions carried on comparable activities is not borne
out by the record.
Any doubt that the respondent sponsored, encouraged and fostered
the U. W. E. is completely dispelled in the light of the events of
the morning of May 21. On May 19, a committee designated by the
Union conferred with Weaver regarding the discharge of Robert
Green 6 and the activities of the supervisors in promoting the U. W.
E. in the plant. Following this conference, Weaver summoned his
department heads and told them of the Union complaint regarding
the activities of supervisors. In the words of Osborne, the personnel
manager, "he was very insistent that department heads carry the in-
formation back to supervisors that it must be stopped." On May 20,
Weaver issued a bulletin to the employees requesting "that all activi-
ties which relate solely to your own problems be carried on outside of
working hours so that the efficiency and progress of the work of the
Company will not be affected." The bulletin further advised that
"all outside activities are purely voluntary on your part." 7 This bul-
letin could not be couched in milder terms. In any event, neither the
admonitions of department heads nor the bulletin itself had any ef-
fect upon the plans made for announcing the success of the U. W. E.
The inference is inescapable that had the respondent actually prac-
ticed its mild preachments, the activities of the supervisors, even at
that late date, Would have been curtailed.
On the evening of May 20 meetings of the organizing committee of
the U. W. E. were held in the homes of Clara Sharp and Ethel Brown.
Plans were made for the announcement in every department in the
plant that the U. W. E. claimed a majority of the employees, and
for the simultaneous distribution of the "demands" of the U. W. E.6
The signal for the distribution of demands and for the announcement
Was to be a dimming of the lights throughout the plant. While this
action was to take place in the plant, Joe Collins and Ethel Brown
were to present the U. W. E. demands to Weaver. Clearly, the
supervisors and others concerned would not have organized this coin-
prehensive plan in direct violation of orders issued that same day
unless they had received assurances, either express or implied, that
no serious consequences would follow.
On the morning of May 21, approximately 25 employees met in the
engine room and received the demands and final instructions. At
11: 00 a. m., Harry Staley, an engineer who had volunteered to give
the signal, attempted to dim the lights. Instead, the lights went out
entirely throughout the plant, and the continuous communication
belts stopped. During the four or. five minutes required to re-light
the plant and while the plant remained in virtual darkness, various
° The discharge is considered below.
7 Board's Exhibit No. 5
8 "What the Union of Ward Employees is Demanding for You." Board's Exhibit No 8
1164 NATIONAL LABOR RELATIONS BOARD
employees, including Clara Sharp, Ruth Walsh, Grace Johnson and
Lois Sykes, supervisors, and Thomas McCarty, foreman of the mail
order house jewelry department, distributed the demands and an-
nounced that the U. W. E. had been victorious in obtaining the
memberships of 51 per cent of all the employees.9
At the moment the lights went out, Collins and Mrs. Brown were
presenting the demands to Weaver. Weaver arose, excused himself,
and left his office. Collins testified that he could hear applause out-
side Weaver's office. Weaver returned in several minutes, did not
mention the occurrence, and gave no indication that he was in 'any
way affected by this flagrant and wholesale violation of instructions
which he had given to the department heads less than 48 hours earlier
and of the bulletin he had issued the day before. It is evident that
the entire affair had his tacit, if not his express, consent. It is
equally clear that the department heads were no more alarmed. The
few disciplinary measures that followed took the form of reprimands
by department heads to supervisors. The complacency with which
the management received an event which plunged the plant into
darkness and effected the complete stoppage of work of over 2,000
employees emphasizes its attitude of indifference or approval.
During the conference, Weaver was presented with the member-
ship cards of the U. W. E. On the following day Collins and
Mrs. Brown again conferred with Weaver and demanded recogni-
tion of the U. W. E. Weaver replied that the Union had also
demanded recognition. Thereupon Collins stated that he would file
a petition with the Board, and he advised Weaver that such action
would precipitate a strike.
On May 24 a committee of the Union met with Weaver and de-
manded recognition, claiming a majority of the plant. Weaver
refused, and following a vote of Union members, a strike was called
on May 25, 1937, which was still in effect at the time of the hearing.
The plant was completely shut down from the beginning of the
strike.
We find that the respondent dominated and interfered with the
formation of the U. W. E. in May 1937 and at all times thereafter
dominated and interfered with its administration and contributed
support to it; that by the activities above set forth, the respondent
has interfered with, restrained and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
B. The discharge of Robert Green
Robert Green, at the time of his discharge on May 6, 1937, was a
stock counter working from 42 to 48 hours per week in the mail
'There is also some evidence that these "demands" were likewise distributed in the
retail store where the lights were also extinguished during this period of time
DECISIONS AND ORDERS 1165
order house. Prior to his employment by the respondent on Novem-
ber 5, 1936, Green had been employed by the Federal Reserve Bank
for seven years and by an insurance company for about six months.
His employment record was excellent, and it was conceded by the
respondent that he was an exceptional employee. Starting at 31
cents per hour, in the short space of six months Green had received
three increases in wages, and at the time of his discharge he was
earning 45 cents per hour. In addition, he received a weekly. bonus
which varied between 26 cents and three dollars.
On about May 1, Green called at Osborne's office and asked him
for a promotion. Osborne complimented him on his excellent record,
and during the course of the ' conversation they discussed the fact
that Green's wife was also employed in the plant. Osborne stated
that the management had found it necessary to transfer Mrs. Green
from the timekeeping to the time payment department because of a
rule that an employee's time sheet could not be computed by a rela-
tive. On May 3 Green was interviewed by a group merchandiser,
and on May 4 he was told by Patton, superintendent of merchandise,
that he would be given an opportunity for promotion as soon as an
opening occurred.
On the evening of the same day Green attended a Union meeting
became a member, and made an impassioned speech in which he
bitterly took the management to task for its treatment of the,
employees. The speech was enthusiastically received and caused
much comment throughout the plant on May 5, his fellow employees
jokingly nicknaming him "Bill" Green. On May 6 Osborne called
Green to his office and told him he was not to be promoted, but was
being discharged because of misstatements that he had made on
November 5, 1936, in his application for employment.
Osborne testified that two misstatements by Green formed the
basis for his discharge : he had listed his wife and child as de-
pendents, whereas he should not have listed his wife as a dependent
and should have listed his child as semi-dependent; and he had
failed to state that his wife was employed in the plant. That these
misstatements were alleged solely to cover the true reason for Green's
discharge is revealed in the testimony of Osborne alone.
The following definition of dependents appears on the reverse side
of the application form filled out by Green :10
The following persons shall be conclusively presumed to be
totally dependent for support upon an employee in the following
order:
The wife upon the husband legally liable for her support.
A husband mentally or physically incapacitated, upon the wife.
10 Respondent 's Exhibit No. 2.
1166 NATIONAL LABOR RELATIONS BOARD
Natural or adopted children, legitimate or illegitimate, under
the age of 18 years or over that age, if physically or mentally
incapacitated from wage earning and dependent upon the em-
ployee with whom he or she is living.
Osborne admitted that he did not know when a husband was legally
liable for the support of his wife under the laws of Missouri, but
nevertheless insisted that Green had made a deliberate misstatement
in listing his wife and child as dependents. Osborne's contention is
obviously without merit.
Similarly, Green's failure to state that his wife worked in the plant
was wholly immaterial. At the time Green was employed there was
no rule in effect that relatives could not be employed. It cannot
therefore be said that he would not have been employed if he had
revealed his wife's employment. Osborne admitted that he had
known that Mrs. Green was employed in the plant. He also knew of
dozens of other cases of relatives working in the plant. Indeed,
Osborne himself had a sister working in the retail store and a
brother-in-law in the mail order house. However, he contended that
in his opinion this misstatement rendered Green untrustworthy, de-
spite Green's exceptional record.
Osborne admittedly knew of Green's Union speech at the time of
the discharge. This Board does not attempt to interpret employers'
rules or pass upon their reasonableness. The only issue with which
we are concerned is whether Green had been discharged because of
his Union activity, and whether the respondent would have invoked
its rule had Green not made the speech on May 4. Clearly, an im-
material misstatement and a misstatement caused by the failure of a
layman to understand the legal significance of the word "dependent"
did not move the respondent to discharge Green. From all the evi-
dence we find that Green was discharged because of his activities on
behalf of the Union.
Green was not gainfully employed between the time of his dis-
charge and the date of the hearing. During this period, and before
the strike of May 25, 1937, the Union requested Weaver to reinstate
him on several occasions. Although Weaver is reported to have
stated that he would investigate the case, no action was taken to
reinstate Green.
C. The refusal to Aire Charles E. Hooper
For about three weeks prior to May 20, 1937, Charles E. Hooper
had been irregularly employed as an extra in the hardware depart-
ment of the retail store. Having been hired on previous occasions
by Mrs. Boon, the timekeeper, he applied to her for employment on
May 20. Mrs. Boon sent him to Robert H. Elliott, a floor supervisor
to see whether any work was available. Hooper testified that Elliott
DECISIONS AND ORDERS 1167
asked him which Union he belonged to, "Company or C. I. 0."
When he told Elliott that he was a member of the C. I. O., Elliott
stated, "I am sorry but I can't use you. I am not hiring any C. I. O.'s,
and I am not going to have them around." This testimony was cor-
roborated by J. E. Phelps who overheard the conversation and who
testified he warned Elliott that he was exposing himself to a fine by
making such statements. Phelps was not an employee of the respond-
ent. He was a member of a union affiliated with the Steel Workers
Organizing Committee and he was familiar with the Act. He and
Hooper at once went to the Regional Office of the Board and filed a
statement of the occurrence.
Although Elliott denied making the statements attributed to him
by Hooper and Phelps, he testified that he had mentioned the "labor
trouble" at the Ford plant in Kansas City, and had stated, "I per-
sonally don't think much of unions." Elliott's denials are uncon-
vincing, and the testimony of Hooper and Phelps takes on added
significance in view of the surrounding circumstances.
Elliott testified that he did not have the authority to hire. It can-
not be denied, however, that he did have the authority to employ
Hooper on the morning of May 20. According to his further testi-
mony, he told Hooper, after surveying the activity in the hardware
department, that there was no work available. He thus clearly im-
plied that had there been work, he could have employed Hooper.
From the entire record of this occurrence, however, and from the
testimony of Hooper and Phelps, we are satisfied that Hooper was
denied employment, even before Elliott knew whether or not work
was available. Elliott's own testimony shows that he had the au-
thority to hire Hooper, and we conclude that Hooper was refused
employment because of his union membership.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
As we have indicated above, the strike called by the Union on May
25, 1937, effected a complete stoppage of operations in both the mail
order house and the retail store. At the time of the hearing the strike
was still in effect and the business of the respondent had not been
resumed. The activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has dominated and interfered
with the formation and administration of the U. W. E. and has con-
1168 NATIONAL LABOR RELATIONS BOARD
tributed support to it. By such domination and interference the,
respondent has prevented the free exercise of its employees' right
to self-organization and collective bargaining. In order to restore
to the employees the full measure of their rights guaranteed under
the Act, we shall order the respondent to withdraw all recognition
from the U. W. E. and disestablish it as representative of its em-
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment,
or other conditions of employment.
We have found that the respondent discharged Robert Green be-
cause of his activities as a Union member. Since the discharge con-
stituted an unfair labor practice, he is entitled to reinstatement
together with back pay. The respondent's plant was completely shut
down on May 25, 1937, and was not reopened at least at the time of
the hearing in this case. Green is therefore entitled to receive back
wages from May 6, 1937, the date of his discharge, to May 25, 1937,
the date that the plant was shut down, and from the date that the
mail order house resumed operations until such time as the respondent
shall offer him reinstatement to his former position.
We have found that Charles E. Hooper was refused employment
by the respondent because of his union membership and that such
refusal constituted an unfair labor practice within the meaning of
the Act. Such refusal had the effect and will necessarily have the
effect of discouraging membership in the Union and thereby infring-
ing upon the rights of its employees to self-organization and col-
lective bargaining. To restore to its employees these rights and
to guarantee to Hooper the cessation of such discrimination, we shall
order the respondent to place Hooper on a preferential list of em-
ployees to be called for temporary employment and to offer him such
employment when work of the nature he had previously been engaged
in for the respondent is available.
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
1. United Mail Order and Retail Workers of America is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. The Union of Ward Employees is a labor organization, within
the meaning of Section 2 (5) of the Act.
3. The respondent, by discriminating, in regard' to the hire and
tenure of employment of Robert Green and Charles E. Hooper, and
thereby discouraging membership in a labor organization, has en-
gaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act.
DECISIONS AND ORDERS 1169
4. By its domination and interference with the formation and ad-
ministration of The Union of Ward Employees, and by contributing
support to said Union, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (2) of
the Act.
5. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
6. The aforementioned unfair labor practices are unfair labor prac-
tices affecting commerce, within the meaning of Section 2 (6) and
(7) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the re-
spondent, Montgomery Ward & Co., Incorporated, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist :
(a) From in any manner interfering with, restraining, or coercing
its employees at its Kansas City, Missouri, plant, in the exercise of
their rights to self-organization, to form, join or assist labor organi-
zations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of col-
lective bargaining and other mutual aid or protection, as guaranteed
in Section 7 of the National Labor Relations Act;
(b) From in any manner discouraging membership in United
Mail Order and Retail Workers of America or any other labor
organization of its employees at its Kansas City, Missouri, plant, by
discharging, refusing to reinstate, refusing to hire, or otherwise
discriminating against its employees and those seeking employment
in regard to hire or tenure of employment, or any term or condition
of employment;
(c) From in any manner dominating or interfering with the ad-
ministration of The Union of Ward Employees or any other labor
`organization of its employees at its Kansas City, Missouri, plant,
and from contributing support to The Union of Ward Employees
or to any other labor organization of its employees at said plant.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Robert Green immediate and full reinstatement to
his former position, without prejudice to his seniority and other
rights and privileges.
1170 NATIONAL LABOR RELATIONS BOARD
(b) Make whole said Robert Green for any losses of pay he has
suffered by reason of his discharge, by payment to him of a sum
of money equal to that which he would normally have earned as
wages from the date of his discharge to the date of such offer of
reinstatement.
(c) Place Charles E. Hooper upon a preferential list for tempo-
rary employment in work of the nature he had previously done for
the respondent, and offer to said Charles E. Hooper such employ-
ment when work of such nature is available;
(d) Withdraw all recognition from The Union of Ward Employees
as representative of its employees for the purpose of dealing with
the respondent at its Kansas City, Missouri, mail order house, con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment, and completely dis-
establish The Union of Ward Employees as such representative;
(e) Immediately post notices in conspicuous places throughout its
Kansas City, Missouri, mail order house and retail store, and main-
tain such notices for a period of thirty (30) consecutive days, stat-
ing : (1) that the respondent will cease and desist as aforesaid, and
(2) that the respondent will withdraw all recognition from The
Union of Ward Employees as the representative of any of its em-
ployees for the purpose of dealing with the respondent at its Kansas
City, Missouri, mail order house concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment, and that The Union of Ward Employees is dis-
established as such representative;
(f) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.