Montgomery Ward & Co.

National Labor Relations Board - Board Decisions

May 28, 1954

108 N.L.R.B. 1175 (N.L.R.B. 1954)

MONTGOMERY WARD & COMPANY 1 175
For the foregoing reasons , I will recommend that the complaint be dismissed in its
entirety.
Respondent, in an able brief filed with the Examiner, raised several additional arguments
in support of its motion to dismiss. However, in view of the conclusions set forth above. I
deem it unnecessary to pass upon any further aspects of the case.
On the basis of the foregoing and upon the entire record herein, I have reached the following:
CONCLUSIONS OF LAW
1. The Respondent, Kraft Foods Company, is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the complaint
within the meaning of Section 8 (a) (3) and (1) of the Act.
[Recommendations omitted from publication.]
prior to January 23 to induce his Union to change the practice in question. Moreover, and
most importantly, there was no evidence of any hostility on the part of the Respondent, as
there was in the Nu-car case, toward any efforts of the employees to persuade the Union
to abandon its agreement with the Respondent.
MONTGOMERY WARD & COMPANY and LOCAL 1627, RETAIL
CLERKS INTERNATIONAL ASSOCIATION, AFL. Case No.
18-CA-559. May 28, 1954
DECISION AND ORDER
On January 6, 1954, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above -entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices , and recommending that it cease and
desist therefrom and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Respondent filed exceptions to the Intermediate
Report and a supporting brief. The Respondent also requested
oral argument . This request is denied as the record and brief,
in our opinion , adequately present the issues and the positions
of the parties.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions, the brief,
and the entire record in the case, and finds merit in the
Respondent ' s exceptions.
On September 16, 1953, the Union began picketing the
Respondent's store for the purpose of obtaining certain eco-
nomic benefits in a collective-bargaining contract then under
negotiation. All employees continued working.
On September 17, a Railway Express driver, Dupey, came to
the store to deliver a number of packages. Ferrell, the Re-
108 NLRB No. 152.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's receiving clerk, said to Dupey, "You don't want to
cross no picket line," and Dupey left with the packages unde-
livered. That afternoon an agent of Railway Express reported
this occurrence to store officials, who relayed it to the Respond-
ent's vice president and manager of labor relations, Barr, who
ordered that Ferrell be discharged, and he was.
On the same day, a man named Morrow, who was visiting the
store to see a friend, a department head named McRae, went
to the furniture department, talked to salesman Menard, and
said he was interested in a piece of linoleum, although he was
not buying at that time. Menard said that Morrow would need
a remnant, and that there was none in stock. As Morrow was
leaving, Menard said, "Why don't you come back after this
thing is over and I'll fix you up with a remnant?" Morrow
repeated this conversation toMcRae, saying to McRae, " I guess
Paul [Menard] wasn't too anxious to wait on me."' McRae
reported this incident to Assistant Store Manager Somes, and
Menard was discharged after a report to Barr, and on Barr's
orders.
The Respondent asserts that it discharged Ferrell because
he had discouraged the delivery of packages which it was his
duty to receive, and Menard because, by suggesting to a pro-
spective customer that he come back after the picketing, he
had violated his obligation as a salesman . The Trial Examiner
rejected this explanation. He found that the Respondent "seized
upon these incidents as pretexts, marked them up far beyond
their real value, labelled them6'disloyal,' and hoped that the
Board would agree that the discharges were for 'cause.' " The
actual motive, the Trial Examiner is convinced, was discrimi-
natory and for the purpose of discouraging the Union's protected
activity of picketing.
This pretext conclusion of the Trial Examiner is not, in our
opinion, sustained by the evidence present in the record. There
is absolutely no affirmative evidence to support an inference of
discriminatory motivation. There is no evidence of unfair labor
practices by the Respondent apart from the alleged unlawful
discharges, and no evidence of hostility by the Respondent to
the Union or the two discharged employees. The case found by
the Trial Examiner therefore rests entirely on the discharges
themselves and the Respondent's explanation for those dis-
charges. The Trial Examiner found that Ferrell and Menard
were guilty of the conduct with which they were charged by the
Respondent. These offenses were serious and not trivial. The
Respondent paid them to exercise their best efforts on its
behalf: in the case of Menard to make and encourage sales; in
Ferrell's case to accept deliveries. Both men failed in their
duty to the Respondent: Menard by indicating a preference for
not making an immediate sale, and Ferrell by successfully
discouraging deliveries to the store. Both men, although con-
tinuing to work, were thereby cooperating with the outside
pickets in achieving the latter's objective. "An employee,"
MONTGOMERY WARD & COMPANY 1177
however, " cannot work and strike at the same time. He cannot
continue his employment and openly or secretly refuse to do
his work. He cannot collect wages for his employment , and, at
the same time , engage in activities to injure or destroy his
employer's business."' The fact that an employer discharges
individuals for engaging in such unprotected activity certainly
raises no inference of a discriminatory motive.
Accordingly , we find that the evidence fails to establish that
the discharge of Menard and Ferrell violated Section 8 (a) (3)
of the Act. We shall therefore dismiss the complaint.
[The Board dismissed the complaint.]
Member Murdock took no part in the consideration of the
above Decision and Order.
i The Hoover Company v. N. L. R. B., 191 F. 2d 380, 390 (C. A. 6).
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served , acomplaint and notice of hearing thereon having
been issued and served by the General Counsel of the National Labor Relations Board, and an
answer having been filed by the above -named Respondent, a hearing involving allegations of
unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations
Act, as amended , 61 Stat. 136, hereuicalled the Act, was held in Escanaba , Michigan, on
January 6, 1954, before the undersigned Trial Examiner.
In substance the complaint alleges and the answer denies that the Respondent: (1) On
September 18, 1953, discruninatorily discharged employees Edward J. Ferrell and Paul A.
Menard because they engaged in concerted activities with other employees and to discourage
membership and activity in the charging Union ; and (2) thereby interfered with, restrained.
and coerced employees in the exercise of rights guaranteed by the Act.
At the hearing all parties were represented , were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce evidence pertinent to the issues , to argue
orally upon the record , and to file briefs . Counsel argued briefly but waived the filing of
briefs . The Respondent's motion to dismiss the complaint , upon which ruling was reserved at
the conclusion of the hearing , is disposed of by the following conclusions and recommendations.
Upon the entire record in the case , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Montgomery Ward & Company is an Illinois corporation , having its principal office and place
of business in Chicago , Illinois . It is engaged in the sale and distribution of merchandise at
retail and maintains mail -order houses , warehouses , and retail stores in various States of
the United States , including a retail store at Escanaba , Michigan , with which these proceedings
are concerned.
Its annual purchases for the Escanaba store are valued at more than $ 750,000 , about 95
percent of which are shipped to said store from points outside the State of Michigan. The
annual sales at the said store are valued at more than $ 750,000 , of which 6 percent are
shipped to points outside the State of Michigan.
The Respondent concedes that it is engaged in commerce within the meaning of the Act.
1 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Local 1627 , Retail Clerks International Association , AFL, is a labor organization admitting
to membership employees of the Respondent at its Escanaba store.
III. THE UNFAIR LABOR PRACTICES
The setting of this controversy may be quickly described. On September 16, 1953, after
prolonged but unsuccessful efforts to obtain a satisfactory contract renewal, the Union under-
took a somewhat novel course of action designed to obtain its demands. Although its employee-
members continued at work, the Union placed pickets before the entrances to the store, bearing
placards urging the public not to patronize it. At the same time the Union distributed handbills
which, in substance, asked the public to "Please Stay on the Outside and Help our People on
the Inside" to obtain a satisfactory contract. (The picketing was done, at least during the
period before the discharges here at issue, by one former employee and nonemployee union
officials).
Two days after the pickets appeared two employees--Ferrell and Menard --were summarily
discharged. There is no dispute that at the time of the discharges the Respondent knew
Ferrel to be, and Menard to have been, active union leaders, and that it also knew of the
picketing activities being conducted by the Union. Ferrell was on the current negotiating
committee, and Menard had previously been chairman of the same committee.
The motive for discharging these two employees is the major issue. The specific incidents
leading to the dismissal of each are as follows:
As to Ferrell: Ferrell was the store's receiving clerk. When express, freight, and parcel
post deliveries were brought to the store, it was his duty to receive, check, and see that they
were properly disposed of. There is no credible evidence that he failed to perform all
such activities after the pickets appeared on September 16. On September 17, however, a local
driver for the Railway Express Company, Arthur Dupey, came with a number of packages to the
delivery elevator at the rear of the store and rang the bell. Ferrell came down, saw him in the
delivery truck and said: "You don't want to cross the picket line, do you? " Dupey replied, "No.
I don't want to cross no picket line," and promptly drove off without leaving the packages. i
As to Menard: Menard was head of the store's furniture department? Also on September 17
Donald Morrow, an advertising solicitor for a local newspaper, visited the store according
to his custom to pick up his friend, Lawrence McRae, another department head, to go out for
coffee. McRae was busy. While waiting, Morrow wandered into the furture department- -accord-
ing to his own testimony not as a customer since he had no intention of buying anything. While
there, talking with Menard, he noticed a roll of linoleum and remarked that he was building
an addition to his house and eventually would need a piece of such material. They discussed
prices and the size he would need . Menard said he would need a remnant , and that there were
no remnants in the store at the time. Their conversation shifted to other subjects. As Morrow
left to seek McRae, Menard said "Why don't you come back after this thing is over and I'll
fix you up with a remnant? " 9
Both of the foregoing incidents were reported the same day to the assistant store manager,
Gilmore Somes--the Ferrell matter coming to his attention from Ward Kortan, agent for the
Railway Express (who in turn had received his information from Dupey) and the Menard
occurrence coming to his attention from McRae (who had been told by Morrow). Somes, in his
turn, telephoned to the store manager, Gordon Jenson , who at that time was in another city,
and reported what had been reported to him.
Jenson returned to the Escanaba store the next day, September 18. He went to the express
office, where Dupey told him what had happened, in language quoted above.4 Upon the basis of
IThe quotations are from and the findings based upon the credible testimony of Dupey,
a witness for the Respondent.
2 No claim is made by the Respondent that he was a supervisor within the meaning of the
Act.
BThe quotations are from the credible testimony of Morrow, a witness for the Respondent.
4The Trial Examiner does not accept, as credible, Jenson's testimony that Dupey "stated
that he (Ferrell) refused" to accept the delivery. It is significant that Barr, an official of the
Company and also an attorney, who testified after both Jenson and Dupey, did not claim that
the report had reached him by the Jenson-Barnhill route that Ferrell had refused to accept
the delivery.
MONTGOMERY WARD & COMPANY 1179
reports received by him, and without questioning either Ferrell or Menard, Jenson called
Attorney Barnhill, at the Chicago office, reported what had been reported to him, and rec-
ommended the discharge of both employees. Barnhill, in his turn, reported to John A. Barr,
vice president of the Respondent, manager of labor relations, and also counsel of record.
Descending these various steps of command, Barr told Barnhill, and Barnhill told Jenson that
he should go ahead and dismiss Ferrell and Menard. Jenson promptly fired them. The Re-
spondent continues to refuse to reinstate either of them.
In substance, General Counsel contends that the Respondent, resenting the picketing pres-
sure (which shortly thereafter apparently caused the store to close at least temporarily),
retaliated by discriminatorily discharging two known union leaders and seized upon the above-
described incidents as mere pretexts.
On the other hand Barr claimed that he approved the dismissals because both employees,
in effect, violated their obligation of "faithfulness" to their employer while on the job in the
line of duty. Specifically, he claimed thatFerrellhad "discouraged the delivery of packages,"
and that Menard was guilty of "a violation of his duty of aggressive salesmanship."
The preponderance of credible evidence--adduced by the Respondent itself, and the reason-
able inferences which necessarily flow from such evidence, support the contentions of General
Counsel. Of particular significance, in the opinion of the Trial Examiner, is the fact that in
neither case did the Respondent, by either its store manager or its top official in the matter
of labor relations, make any effort to confront the employee with any charge of any sort. In
particular does the case of Menard fail even to approach a failure to be "aggressive."
Morrow, the Respondent's own witness, stated that he was not a customer, that he had no
intention of buying. And the Respondent's treatment of this case cannot be ignored in consid-
ering that of Ferrell. Ferrell refused no shipments, on the contrary the evidence is clear that
he received all shipments delivered after September 16 except that which Dupey voluntarily
declined to leave.
Further doubt upon the sincerity of Barr's claim is cast by his incredible statement that
it "was not an unusual practice" to discharge employees without giving them an opportunity
to give their "version of an alleged act." It may be considered almost common knowledge
that in the retail field complaints from customers against employees are of daily occurrence.
In an establishment that size of Montgomery Ward & Company, if discharges automatically
followed complaints, the turnover would resemble that of the Grand Central Station in New
York City. And in this case no complaint was brought by any customer.
The Trial Examiner is convinced, and concludes, that the Respondent seized upon these
incidents as pretexts, marked them up far beyond their real value, labelled them "disloyal,"
and hoped that the Board would agree that the discharges were for "cause." The actual
motive, the Trial Examiner is convinced, was discriminatory and for the purpose of dis-
couraging the Union's protected activity of picketing. As Barr said: "The Escanaba store at
that time was operating under the handicap of a picket line which had been established a few
days before for the purpose of discouraging customers from making purchases at the
Store...... An by thus retaliating against two of the Union's most active negotiators, past
and present, the Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed by the Act.
IV.. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
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 tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THEREMEDY
It has been found that the Respondent has engaged in and is engaging in unfair labor prac-
tices. It will be recommended that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
It has been found that the Respondent has discriminated against two individuals in regard to
their hire and tenure of employment. It will therefore be recommended that the Respondent
offer to Edward J. Ferrell and Paul A. Menard (upon resumption of the store operations)
immediate and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, and make them whole for any loss
1 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay they may have suffered by reason of the discrimination against them, by payment to
each of them of a sum of money equal to that which he would have normally earned less net
earnings ,5 which sum shall be computed on a quarterly basis during the period from the
discriminatory discharge to the date of proper offer of reinstatement, in accordance with
Board policy set out in F. W. Woolworth Company, 90 NLRB 289. It will also be recommended
that the Respondent make available to the Board, upon request, payroll and other records to
facilitate the checking of the amount of back pay due.
In the Trial Examiner's opinion, the commission of unfair labor practices generally is
reasonably to be anticipated from the Respondent's unlawful conduct as found above. It will
therefore be recommended that the Respondent cease and desist not only from the unfair
labor practices herein found, but also from in any other manner infringing upon the rights of
the employees guaranteed in the Act.
Upon the basis of the above findings of fact and upon the entire record in the case, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 1627 , Retail Clerks International Association , AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Edward J. Ferrell
and Paul A. Menard, thereby discouraging membership in a labor organization , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Relations Act as amended,
we hereby notify our employees that:
WE WILL NOT discourage membership in Local 1627, Retail Clerks International
Association, AFL, or in any other labor organization of our employees, by discriminatorily
discharging and refusing to reinstate any our our employees , or in any other manner
discriminating in regard to their hire and tenure of employment or .:ny term or condition
of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor organizations, to join or
assist the above-named labor organization , to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any or all
of such activities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL offer to Edward J. Ferrell and Paul A. Menard immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges, and make them whole for any loss of pay suf-
fered as a result of the discrimination against them.
5 Crossett Lumber Company, 8 NLRB 440.
MACK MANUFACTURING COMPANY 1 181
All our employees are free to become or remain members of the above-named Union or any
other labor organization. We will not discriminate in regard to their hire or tenure of em-
ployment or any term or condition of employment because of their membership in or activity
on behalf of any such labor organization.
MONTGOMERY WARD & COMPANY,
Employer.
Dated ................ By..............................................................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
MACK MANUFACTURING COMPANY and AMALGAMATED
PLANT GUARDS LOCAL 506, UNITED PLANT GUARD
WORKERS OF AMERICA, Petitioner . Case No. 4-RC-2258.
May 28, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William Nai-
mark, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error are are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The Petitioner seeks to be certified as representative of
the plant guards employed at the Employer's Allentown, Penn-
sylvania, plant. The Employer contends that the Petitioner is
not eligible to represent the Employer's guards, because it is
indirectly affiliated with a nonguard union, contrary to the pro-
visions of Section 9 (b) (3) of the Act, as amended., The
Employer asserts that the filing of the instant petition by the
Petitioner has not altered the indirect affiliation recently found
by the Board to have existed between the Petitioner's coaffiliate,
Local 504, and Local 677, UAW-CIO,' a t.onguard union repre-
senting the Employer's production and maintenance employees,
as the Petitioner has succeeded to the benefits of the guard
organizational work done by Local 677. The Employer urges
that the Board should not certify either the Petitioner's inter-
national or any of its locals until (a) the international prevails
upon Local 677 to post a notice to the employees stating that
it no longer is interested in organizing the Employer' s guards,
t Section 9 (b) (3) provides, inter alia, that " ... no labor organization shall be certified
as the representative of ... guards if such organization' admits to membership, or is
affiliated directly or indirectly with an organization which admits to membership, employees
other than guards." (Emphasis supplied.)
2107 NLRB 209.
1 , 08 NLRB No. 157.