Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1945

64 N.L.R.B. 432 (N.L.R.B. 1945)

In the Matter Of MONTGOMERY WARD & CO., INCORPORATED and UNITED
MAIL ORDER, WAREHOUSE & RETAIL EMPLOYEES UNION, LOCAL 131,
AFFILIATED WITH UNITED RETAIL, WHOLESALE AND DEPARTMENT
STORE EMPLOYEES OF AMERICA, C. I. O.
In the Matter Of MONTGOMERY WARD & CO., INCORPORATED and UNITED
MAIL ORDER, WAREHOUSE & RETAIL EMPLOYEES UNION, LOCAL 131,
AFFILIATED WITH UNITED RETAIL, WHOLESALE AND DEPARTMENT
STORE EMPLOYEES OF AMERICA, C. I. O.
Cases Nos. 17-C-1054 and 17-C-1172, respectively.Decided October
24, 1945
DECISION
AND
ORDER
On January 27, 1945, the Trial Examiner 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 from the unfair labor practices
found and take certain affirmative action, as set out in the copy of
the Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
On September 18, 1945, the Board at Washington, D. C., heard oral
argument in which the respondent and the Union participated.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the respondent's brief and exceptions, and the entire
record in the case, and hereby adopts the findings,_ conclusions, and
recommendations of the Trial Examiner, with the additions noted
below.
We concur in the Trial Examiner's finding that by the speech of
Labor Relations Manager John A. Barr, delivered to the employees at
the respondent's plant on January 4 and 5, 1944, the respondent inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. In arriving at this conclu-
sion we have viewed the speech as part of the respondent's entire course
of conduct, set forth in the Intermediate Report. The discriminatory
64 N. L. R. B, No. 80.
432
MONTGOMERY WARD & CO., INCORPORATED 433
discharges of Medlin, Skinner, and Smith, several months before the
speech, served as a warning to the employees that the respondent was
prepared to use its economic power to defeat the Union. In the face
of these concrete examples of economic reprisals, the employees could
reasonably regard as meaningless the statement in Barr's talk that
the respondent would respect the right of any employee to join or
not to join a union. That the statement was in fact meaningless is
demonstrated by the respondent's subsequent discrimination against
Slanko, Sullivan, and Gaylord. Under these circumstances the speech
constitutes an inseparable part of the respondent's coercive course
of conduct and transgressed upon the exercise by the employees of
their right to choose a bargaining representative without restraint
or coercion by the respondent.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Montgomery Ward & Com-
pany, Inc., Kansas City, Missouri, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Mail Order, Warehouse &
Retail Employees Union, Local 131, affiliated with United Retail,
Wholesale and Department Store Employees of America, C. I. 0.,
or any other labor organization, by discharging, or refusing to rein-
state any of its employees, or by discriminating in any other manner
in regard to their hire or tenure of employment, or any term or con-
dition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Mail Order, Warehouse &
Retail Employees Union, Local 131, affiliated with United Retail,
Wholesale and Department Store Employees of America, C. I. 0., or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Henry Medlin, Roy F. Skinner, Walter L. Smith, Helen
Slanko, Ramona Sullivan, and Marvel Gaylord, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
3 Matter of Republic Aviation Corporation , 61 N. L. R. B. 347. °
670417-46-vol. 64-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Henry Medlin, Roy F. Skinner, Walter L. Smith,
Helen Slanko, Ramona Sullivan, and Marvel Gaylord for any loss of
pay they have suffered by reason of the respondent's discrimination
against them, by payment to each of them a sum of money equal to
the amount which each normally would have earned as wages from
the date of the discrimination against each to the date of the respond-
ent's offer of reinstatement, less his or her net earnings during said
period;
(c) Post at its Kansas City, Missouri, plant, including its retail
store, copies of the notice attached hereto, marked "Appendix A."
Copies of said notice to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by the respond-
ent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced,
or covered by any other material;
(d) 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.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist United Mail Order,
Warehouse & Retail Employees Union, Local 131, affiliated with
United Retail, Wholesale and Department Store Employees of
America, C. I. 0., or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
Henry Medlin
Roy F. Skinner
MONTGOMERY WARD & CO., INCORPORATED 435
Walter L. Smith
Helen Slanko
Ramona Sullivan
Marvel Gaylord
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 hire or tenure of employment or any term
or condition of employment against any employeee because of mem--
bership in or activity on behalf of any such labor organization.
MONTGOMERY WARD & CO., INCORPORATED
(Employer)
By ----------------------------------------
(Representative ) ( Title)
Dated------------------------
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. John A. Weiss and Mr. Robert S. Fonsek, for the Board
Mr. John A. Barr, Mr. Brooks Wynne and Mr. Dana Norton , of Chicago, Ill.,
for the respondent.
Mr. Edward Chevlin, of Kansas City , Mo., for the Union.
STATEMENT OF THE CASE
Upon a fifth amended charge in Case No. 17-C-1054, filed September 26, 1944,
and an amended charge in Case No. 17-G-1172, filed September 26, 1944, both
by United Mail Order, Warehouse & Retail Employees Union, Local 131, affiliated
with United Retail, Wholesale and Department Store Employees of America,
C. I. 0., herein called the Union, and pursuant to an order of the National Labor
Relations Board dated September 19, 1944, consolidating Cases Nos . 17-C-1Q54
and 17-C-1172, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Seventeenth Region ( Kansas City , Missouri),
issued its complaint dated October 4, 1944, against Montgomery Ward & Co.,
Incorporated , Kansas City , Missouri , herein called the respondent , alleging that
the respondent had engaged in and was engaging in unfair labor practices,
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 together with notice of hearing thereon, were duly served upon the
respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in substance
that the respondent : ( 1) discharged Henry Medlin on June 16, Roy F. Skinner
on July 8 , and Walter L. Smith on July 19, 1943 , and Helen Slanko, Ramona
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sullivan, and Marvel Gaylord on April 20, 1944, and thereafter refused to
reinstate them, because of their union membership and activities; (2) on and
after January 1, 1943, sought to dissuade its employees from affiliating with or
remaining members of the Union; caused its employees to be quizzed concerning
their membership and activity in the Union ; made statements, speeches, and
remarks and circulated various types of writings prejudicial to, disparaging of,
and vilifying the Union, its officers, members, leaders and agents; required its
employees to be present at meetings where said remarks were made; spied upon
its employees ; and treated employees who had affiliated with the Union with
less favor than before their affiliation and differently from non-union employees;
and (3) by such acts interfered with, restrained, and coerced its employees in
'the exercise of the rights guaranteed in Section 7 of the Act.
The respondent thereafter filed its answer dated October 13', 1944, admitting
the allegations of the complaint with respect to the nature of its business and
denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Kansas City, Missouri, from October
17 through 20, 1944, before the undersigned, Josef L. Hektoen, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel, and the Union by its representative ; all participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded to all
parties. At the close of the Board's case, counsel for the respondent moved to
dismiss the complaint. The motions were denied by the undersigned. At the'
close of the hearing, the undersigned granted the motion of counsel for the Board
to conform the pleadings to the proof in formal matters, and took under advise-
ment the motions of counsel for the respondent to dismiss the complaint. The
latter are hereby denied except as otherwise hereinafter indicated. At the close
of the hearing, all parties waived oral argument. No briefs have been received
by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, Montgomery Ward & Co., Incorporated, is an Illinois corpora-
tion having its principal office and place of business in Chicago, Illinois. It is
engaged in the sale and distribution of general merchandise throughout the United
States. It operates nine mail order houses and more than 500 retail stores in
various states, including a mail order house and retail store at Kansas City,
Missouri, the only establishment involved in this proceeding.
The respondent, in the course and conduct of its business at Kansas City, Mis-
souri, operates its mail order house and retail store in one large building. The
mail order house serves an area extending into six states and makes approx-
imately 60 percent of its sales to purchasers in states other than Missouri. Dur-
ing the fiscal year 1943, it purchased goods, materials, and commodities valued
in excess of $18,000,000, of which approximately 90 percent were shipped from
points outside Missouri; during the same period, its total sales were valued in
excess of $25,000,000, of which approximately 75 percent were sold and shipped
to points outside Missouri. During the same period, the respondent purchased
merchandise having an approximate value of $3,500,000 for sale through its retail
store, of which approximately 80 percent was purchased outside Missouri. Of
the retail sales, totalling in excess of $3,300,000, approximately 6 percent were
made to persons living outside Missouri. During 1944, the respondent's oper-
MONTGOMERY WARD & CO., INCORPORATED 437
ations continued approximately unchanged . The respondent admits that it is
engaged in commerce , within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Mail Order, Warehouse & Retail Employees Union, Local 131, affiliated
with United Retail, Wholesale and Department Store Employees of America,
affiliated with the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The Union and its predecessors have sought to organize the Kansas City plant
of the respondent since 1937. In March 1943, Edward Chevlin, union repre-
sentative, took charge of its efforts 1is do so. In June and July 1943, while the
Union's campaign was at its height, the respondent discharged three union
employees, one of whom, Skinner, was plant steward and chairman of its bar-
gaining committee. Chevlin testified, and the undersigned finds, that attendance
at union meetings thereafter fell off by about half and that the recruiting of new
members was materially retarded.
On December 13, 1943, the Board, after hearing upon petitions by the Union'
and International Union of Operating Engineers, Firemen and Oilers, Local No. 6,
affiliated with the American Federation of Labor, herein called the Engineers,
Issued its decision and direction of election 2 pursuant to which an election was
thereafter scheduled for January 11, 1944. On January 4 and 5, the respondent
conducted meetings of all its Kansas City employees on its property and during
working hours They were addressed by management officials and by John A.
Barr, its manager of labor relations and counsel. Barr's remarks, which are
hereinafter found to have constituted interference in violation of the Act, were,
in substance, before the election, distributed to all employees in printed form
and mailed with a covering letter from the respondent's house manager to those
who were absent from the plant but eligible to vote
The Union won the election for the retail store unit and lost in the mail order
unit ; the Engineers won in the engineers and firemen unit and Building and
Construction Trades Council of Greater Kansas City among the maintenance
craftsmen ; on February 4, 1944, the Board certified accordingly'
On April 12, 1944, the employees of the respondent's Chicago, Illinois, plant
struck. On April 13, the Kansas City union employees engaged in a one-day
sympathetic strike. On April 20, the respondent discharged three union em-
ployees for refusing to process orders received from the struck Chicago plant
and on the same day the union employees at Kansas City struck. On April 24,
the striking employees offered to return to work provided the three April 20
dischargees were taken back. The respondent refused to reinstate them. On
April 25, the striking employees nevertheless returned to work.'
1 The Union filed its petition on September 2, 1943, and thereafter waived its right to
object to an election , if ordered , based upon certain charges of unfair labor practices it
had previously filed against the respondent.
2 53 N. L R. B 1300.
' In doing so , the Board stated, "Since the objections filed by the C. I 0. . . . are
under investigation , we shall not at this time make a finding respecting the mail order
unit for the Kansas City Mail Order House ." The Union subsequently sought and received
permission to withdraw its petition for that unit as well as its objections to the election.
4 The Chicago strike ended on the same day.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The 19113 discharges
Henry Medlin worked for the respondent from December 4, 1942, to June 16,
1943. He was an elevator operator under Foreman W. J Conrick and during
his tenure, received three 5-cent-per-hour increases in pay, the last about 2 weeks
before his discharge. The respondent accepted a suggestion by Medlin for the
improvement of its operations and paid him $1 therefor.
Medlin joined the Union in January 1943, was thereafter active in its affairs,
wore a union button at work,' served as steward of the elevator department,
and received publicity for his contribution of an idea for a cartoon appearing in
the May 7, 1943, issue of the union leaflet, "The Spotlight."'
On June 16, Medlin was called to the office of J. F. Brady, in charge of ship-
ping and receiving, and Conrick's superior. Brady, in the presence of Brady
Stevens, then personnel director of the respondent' and F. E. Beeson, its head of
protection, discharged for "Willful destruction of company property " Brady
who could not explain the presence of Stevens and Beeson in his office on this
occasion, testified that Medlin had been identified by Rex Herrick, department
manager of the eighth floor,' as the elevator operator who had defaced stock
fixtures by pasting union labels thereon and that he thereupon determined to
discharge Medlin. At the hearing, Medlin denied having pasted labels on stock
fixtures ° but both Brady and Beeson testified that he admitted having pasted
one label on a fixture. The undersigned is convinced and finds that Medlin did
in fact paste one label and admitted having done so. Brady testified that Medlin
protested against being discharged for doing so and that he told him that the
discharge was based upon past complaints as well. Outlined by Conrick, these
complaints were, according to his testimony, reported to him as follows: (1) an
anonymous complaint in January 1943, that Medlin was giving poor service on
"house sales" ; " (2) a February report from a fellow union member that Medlin
had used improper language in the presence of female employees; (3) an
anonymous report in February that Medlin was giving poor service; (4) a com-
plaint early in May received by Brady from a Miss Babic," a supervisor, and by
Brady relayed to Conrick, that Medlin had spoken to certain employees under
her ;12 and (5) a complaint from Brady later in May, that John Ethetton,13 oper-
ating manager of the plant, and his assistant, C. W. Gibson," bad found Medlin
"talking and laughing and having a regular picnic" with a number of female
employees in the plant. Conrick further testified, however, that about 2 weeks
"Medlin credibly testified without denial, and the undersigned finds, that during January
1943, Harold wood. supervisor of the linoleum department told him he should not be wear-
ing the union button, should he ashamed of doing so, and that he would get along better
if he were not a member of the Union.
'The evidence indicates, and the undersigned finds, that the respondent's management
obtained and perused copies of substantially all issues of the union's leaflets
4 Stevens was servine in the Navv at the time of the hearing and did not testify.
8 Herrick was not called as a witness by the respondent Brady testified that he believed
Herrick had gone from Kansas City to St. Paul or Minneapolis.
Stock fixtures are wooden counters or bins for storage of merchandise . They are
painted but not varnished.
1° When the retail store did not have a given item in stock, it was fetched for the waiting
customer from the mail order house.
31 There is no evidence that Babic was not employed by the respondent at the time of
the hearing. She was not called as a witness.
12 Medlin explained, and the undersigned finds, that he had merely assisted the employees
to roll a heavy truck of catalogues into his elevator. He had received no instructions to
refrain from doing so.
13 Ethetton was called as a witness by the respondent but was not questioned regarding
this incident.
14 Gibson did not testify.
MONTGOMERY WARD & CO., INCORPORATED 439
before June 16, when Medlin was discharged , he had recommended the third of
Medlin's increases in pay and that he would not have done so but for the fact
that he considered Medlin to have merited it "
From the entire record, the undersigned is persuaded that Medlin' s transgres-
sions, the evidence of which was less than impressive , were not of a nature to
have normally made him a candidate for discharge, particularly under the
obtaining conditions.18' Conrick's action in recommending an increase in pay for
him after the last thereof strongly buttresses that conclusion. The circum-
stances surrounding Medlin's discharge, the haste with which it was accom-
plished , the unexplained presence of Stevens and Beeson in Brady 's office on the
occasion thereof, the absence of Herrick, the trivial nature of the alleged reason
therefor, the drastic severity of its description as wilful destruction of company
property placed upon Medlin 's release slip, as well as the respondent ' s general
attitude of implacable hostility to the Union throughout the period covered by
the complaint, and hereinafter found, combine to convince the undersigned that
the respondent merely seized upon Medlin's having pasted one union sticker in
the plant 17 as an excuse to rid itself of him on account of his union activities
and membership against both of which he had earlier and prophetically been
discouraged by Supervisor Wood. He so finds.
Roy F. Skinner was hired by the respondent as a painter in November 1942.
It was then engaged in repainting the plant with a large force of painters. As
the work neared completion, Building Superintendent C. R. Maness reduced the
force and in February 1943, transferred Skinner to glazing and pipe covering.
At that time, the respondent was engaged in replacing broken windows and glass
throughout the plant. Skinner testified that Maness gave him the understanding
that his new job would be a permanent one, and that when and if his other work
did not demand his full time, he would fill in on the paint gang. Maness denied
that lie had told Skinner that the job would be permanent. The undersigned
found Maness an unimpressive witness, obviously anxious to do everything in his
power to assist the respondent. He found Skinner, on the other hand to have
been a witness worthy of belief. He therefore conclues and finds that Maness
spoke to Skinner substantially as the latter testified.
Skinner joined the Union in December 1942, became steward of the paint shop,
and in May or June 1943, plant steward and chairman of the Union's bargaining
committee. As such, Skinner on four occasions presented grievances to the
respondent's management and acted as the committee's spokesman.
Skinner, whose work took him about throughout the plant, testified without
contradiction, and the undersigned finds, that early in June 1943, Foreman
Byron West 'e told him that he was being watched by the respondent and that
he should be careful. About 2 weeks thereafter, West again warned him to be
cautious because "They are watching you . . . They have got somebody on
every floor in the plant watching you, trying to catch you doing something." 19
1S Q. Despite these complaints that you had , you considered his work sufficiently meri-
torious to recommend an increase?
A. I did.
1' The record reveals that during 1944, the employee turnover in the plant was 10 to 20
percent per month. Although figures therefor do not appear in the record, it is common
knowledge that the manpower shortage was acute in 1943 , as well.
17 Supervisors of the respondent testified that union stickers were pasted throughout the
plant in some profusion. '
11 West did not testify. He had resigned "on request" before the time of the hearing.
19 Employee E M Corbett credibly testified , and the undersigned finds, that during May,
he had heard West tell another employee to ask Skinner to be careful because "they were
watching him, and if he didn ' t watch his step they were going to fire him."
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter S. Smith 20 testified that during the first week of June 1943, Maness
called him to his office, told him that Skinner was giving him "a lot of trouble,"
that he would be compelled to "get rid of" him, that he was perplexed as to how
to accomplish this end, and asked Smith to help him by observing Skinner's
"actions and what he does, see what his time he is killing and who he is killing it
with and where he goes " Smith replied that he would see what he could do but
the evidence is silent as to whether he thereafter miide reports to Maness.
Maness denied ever having asked any employee to spy upon Skinner and denied
having so spoken to Smith. Smith was a persuasive witness. His testimony
was corroborative of West's statements to Skinner found above, and is credited.
The undersigned finds that Maness spoke to Smith substantially as the latter
testified.21
On July 2, Skinner was informed by Maness that his services would be dis-
pensed with on July 8 22 He was laid off on July 8, allegedly on account of
reduction of the respondent's force. He had 'received no complaints regarding
his work from the respondent.
Both before and after July 8, Skinner sought to obtain other work at the
respondent's plant. He was unsuccessful in doing so, however, supervisors of the
respondent informing him that despite Skinner's wish to do so they did not
believe it appropriate that he should take a job paying less than the 95 cents per
hour he had been earning and that none paying that wage was available 23
Maness testified that just prior to Skinner's discharge, in consultation with
Operating Manager Ethetton, he had decided to abandon the respondent's pro-
gram for the replacement of some 1800 pieces of glass throughout the plant and
to leave them in their damaged condition.24 He further testified that the normal
breakage in the plant provided replacement work for only one day's work per
week by a carpenter's helper and that pipe covering had been negligible since
Skinner's dismissal. Four painters were retained on the respondent's pay roll
at that time. They had greater seniority than Skinner.20
In the light of all of the surrounding circumstances, the bona jades of the
respondent's sudden cancellation of its ambitious program of re-fenestration of
the plant, are not free from doubt. But the undersigned finds it unnecessary
to resolve this question in view of the finding made below.
The respondent's steadfast refusal to give Skinner employment elsewhere in
the plant,2e as well as its surveillance of his activities, Maness' perturbed search
for a likely and expedient means of his elimination, and its abiding anti-union
animus, combine to persuade the undersigned that under the conditions obtain-
ing in the plant, it was motivated by illegal considerations in denying him work.
In the opinion of the undersigned, it would be unrealistic to conclude that in a
plant employing between 1600 and 1700 persons and faced with an acute man-
power shortage, the respondent, absent its anti-union motivation, would not
have found a place in its maintenance department in which to utilize Skinner's
21 Smith ' s discharge is discussed, infra.
21 From the context it is clear, and the undersigned finds, that both West and Maness
had reference to Skinner 's union activities.
22 It was not the respondent's practice to give dischargees notice.
23 Skinner stated that the plant was convenient to his home , that it was a pleasant place
in which to work, and that lie did not mind a reduction in pav.
24 Ethetton did not testify respecting this decision during his appearance on the witness
stand. The evidence indicates that the damaged glass had not been repaired at the time
of the hearing.
25 The respondent, however, determined "lay-offs, recalls, promotions and the like . . .
upon the basis of each employee's performance, ability, experience, and length of service."
26 It was the respondent 's custom to transfer employees who were laid off to other posi-
tions in the plant.
MONTGOMERY WARD & CO.. INCORPORATED 441
unquestioned abilities at his regular rate of pay. This was Maness' plan at
the time he transferred Skinner with the promise of a permanent position. The
undersigned, upon the entire evidence, finds that the respondent denied Skinner
employment because of his well-advertised union membership and his leading
role in the union 's activities in the plant.
Walter L. Smith worked for the respondent as a machinist and welder from
December 1942, until the date of his discharge, July 19, 1943, and was attached
to the engine-room staff of the plant. He testified that during his employment
interview both Superintendent Maness and Foreman Joe Collins, his assistant,
asked him if he were a union member and that he replied that he was a member
of International Association of Machinists, affiliated with the A F. L. Maness
denied making the inquiry and testified that Smith volunteered the information.
Collins did not testify regarding the incident. Maness has been found to be an
unreliable witness. The undersigned credits Smith's testimony.
Smith joined the Union during December and testified that during February
1943, Foreman Collins told him that it was a "rat organization," that in 1937
its members had beaten Collins up, that anyone who belonged to it "didn't have
good sense ," and that he was sure that Smith, being a fellow Mason, could not be
a member thereof. Collins denied the remarks attributed to him by Smith. He
testified that he did not "have a thing in the world against the C. I. 0 nor the
A. F. of L., except the administration of their activities," that in 1937 he had
belonged to an inside union in the plant, and that it was common knowledge
among the employees that he had been slugged by C. I 0 adherents at that time.
The undersigned is persuaded and finds that Collins spoke to Smith substantially
as the latter testified.
During June 1943, as has been found above, Maness asked Smith to spy upon
the activities of Skinner in the plant.
On July 17; at about 3 p.m., Smith and M. M. Bush, an engineer, became involved
in an imbroglio which resulted in Smith's hospitalization and discharge by the
respondent. Bush, who was the leading proponent of the Engineers in the plant,
had on several occasions prior to this date heatedly argued the merits of that
organization as opposed to the Union with Smith zv Smith, however, did not
change his affiliation and refused to join the Engineers As Bush was about to
punch the engine-room time-clock, Smith came out of the machine-shop and spoke
to him. Bush did not answer him and Smith demanded to know the reason for
his truculence. Bush answered that he wished to have nothing to do with Smith,
that he should tend to his own business, and that they would go their separate
ways. Smith testified that Bush added that Smith had complained to Maness
respecting the custom of the engineers of washing up on company time, stated that
if Smith would give up "that rat C. I. 0." he would have like privileges, and
thereupon struck him several times over the head and shoulders with a saw-horse,
causing him to leave the engine-room and seek first aid for his badly lacerated
head at the plant infirmary. Bush, on the other hand, testified that Smith had
advanced upon him in a threatening manner, struck him on the shoulder, forced
him to retreat toward a running power-saw, and that Smith had thereupon struck
him with the saw-horse in self-defense. Bush was corroborated by Roy E.
Gallamore, an engineer and a fellow member of the Engineers.
Smith appears from the record to have been a somewhat contentious individual
given to freely expressing himself. Bush was also a man of decided opinions and
sT Bush denied having argued the union question with Smith. Portions of his own testi-
mony, however, reveal that he felt very strongly on the subject. Upon the entire evidence,
particularly Smith's credible testimony, the undersigned rejects Bush's denial.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both he and Smith were quite evidently in an acrimonious frame of mind when the
incident was precipitated, Bush bearing Smith a particular grudge on account of
his fancied or actual complaint to Maness respecting the washing up practice. In
consideration of these facts, it is the opinion of the undersigned that while Smith
may have reacted rather strenuously to Bush's surliness, the latter nevertheless
was the proximate cause of the affray. He so finds, and further finds that Bush
spoke to Smith as the latter testified. .
Smith was taken to a hospital, the plant's facilities being inadequate for the
treatment of his serious condition. On Monday, July 19, he visited the plant
and spoke to Maness. Smith testified that Maness informed him that he would
be discharged and that he followed his suggestion that he resign, in order to
protect his employment record, by signing a written resignation prepared by
Maness' secretary. He further testified that Maness informed him that at a
meeting or meetings between Ethetton, Collins," Bush and himself, the re-
spondent had determined to retain the services of Bush 2' and to discharge
Smith because an investigation and interview of witnesses by Maness had
resulted in a finding that Smith had been the aggressor in the fight. Smith,
according to his testimony, was refused an opportunity to tell his side of the
story by Maness, and later in the week by both Collins and Ethetton. Maness,
on the other hand, testified that Smith gave him the understanding that he
,believed that he would be discharged, that he replied that his status was uncer-
tain, that Smith thereupon asked to be allowed to resign, that Maness acqui-
esced, that Smith did not request a hearing with respect to the fight, and that
the respondent's decision to dispense with his services became final only on
July 21.
The evidence reveals that Smith no longer worked for the respondent after
July 19, but on account of technicalities in connection with his disability as a
result of the fight, did not receive a final separation slip until October 13, 1943.
On July 20, Smith filed a criminal complaint charging felonious ' assault
against Bush. On August 3, the matter was heard by Justice of the Peace
James J. Hurley, of Kaw Township, Jackson County, Missouri. Both Smith
and Bush were represented by counsel and themselves appeared in court with
witnesses. On August 6, Hurley found Bush guilty of common assault and fined
him $25 and costs. Maness, although he had excused employees under him,
among them those whom he had interviewed prior to his July 19 conference with
Smith, in order that they might appear as witnesses before Hurley, asserted
that he became aware of the result of the trial for the first time when he heard
testimony respecting it at the instant hearing. The undersigned considers it
so highly improbable that Maness, under the circumstances, could therefore
have avoided gaining such knowledge, even had he sought to do so, that he
discredits his testimony.
The impression sought to be given by Maness that Smith believed himself at
fault in the affray and embraced the opportunity to resign is comp'etely at
variance with Smith's action in preferring criminal charges against Bush on
the following day. With Maness' credibility as a witness even further weakened
by his unbelievable, yet professed, ignorance of the outcome of that trial, the
undersigned, in the light of all of the circumstances revealed by the record,
concludes and finds that his July 19 interview with Smith transpired as testi-
fied by the latter. Having obtained Smith's resignation, he refused to discuss
the matter further with him. The glaring disparity between the respondent's
treatment of Smith and of Bush, together with all the surrounding circum-
28 Collins, who was at home at the time of the fight, returned to the plant In order to
Interview Bush on the same afternoon.
20 Bush was suspended for half a day for his part in the fight.
MONTGOMERY WARD & CO., INCORPORATED 443
stances, leads the undersigned to the conclusion that Collins and Ethetton like-
wise considered the matter of Smith's employment a closed chapter and refused
to reopen it upon his request for a hearing of his version of the incident. He
so finds.
The respondent was well aware of Smith's union membership 80 The fact that
he was the sole union adherent in the engine room, a province of the Engineers
and an island in the sea of the Union's organizational efforts in the plant,n
together with his intransigent fealty to the Union in the face of the violent
remarks of Collins and the importunities of Bush, must also under the circum-
stances be found to have been within its knowledge. The undersigned, upon the
entire record in the case, is convinced and finds, that the respondent seized
upon Smith's participation in the engine-room fracas, and immediately, and
without hearing his version of the incident, put it to use as a pretext for his
discharge," its real motive for doing so being its desire to rid itself of him
because of his union membership.
The undersigned finds that the respondent has discriminated in regard to the
hire and tenure of employment of Henry Medlin, Roy F. Skinner, and Walter L.
Smith, thereby discouraging membership in the Union, and has thereby, and by
the acts and statements of Wood, Collins, West, and Maness, interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
C. The meetings of January 4 and 5, 1944
On January 4 and 5, 1944, all employees of the respondent at Kansas City
were addressed by John A. Barr, labor relations manager of the respondent.
Nine meetings were held and Barr's remarks to each were substantially identical88
Barr told the employees that the Union had "made many charges against
the Company from time to time, to the effect that the Company is violating the
law; that the Company is unpatriotic; . . . is working against the best interests
of the Employees, . . . The Company has recently filed a lawsuit against the In-
ternational Union. An election is to be held in a few days at which you will
decide whether or not the Union is to represent you in collective bargaining."
He then outlined the events of 1937, including a strike then called by the
Union's predecessor during which, according to Barr, "property was destroyed,
employees were physically assaulted and forced into the union. . . . This was
the beginning here at Kansas City of the Union which has continued to organize
in the plant, and the union which you will vote for or against at the elec-
tion.. .
Barr next adverted to the dispute between the respondent and the Union at
the Chicago plant, stated that the chief point of difference between them was
the closed-shop issue, that the respondent had refused to agree to a closed-shop
because it "felt, as it still feels, that the closed-shop requirement violates the
fundamental American principles of liberty and freedom, that liberty requires
that each employee be free to join the Union or not to join the Union as he
likes and without losing his job", and asseverated "that at Chicago the Com-
pany has been struggling for just one thing and that is to preserve to the em-
ployees there their freedom to decide this question of Union membership for
80 Maness related that Smith had shown him a receipt for union dues paid by'him and
that Maness had thereafter discussed the matter with Ethetton.
81 It will be recalled that the Engineers carried the January 1944 election in the engine-
room unit.
12 Smith's "resignation ," under the circumstances related above, was plainly tantamount
to discharge.
as A stenographic transcript of all the meetings is in evidence . It will be remembered
that the election was to be held about a week thereafter , on January 11t.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves whichever way they like without coercion or force from anybody,
the Company, the Union, or anybody else."
He thereafter made comments respecting the respondent's policies concerning
wages, lay-offs, grievances, and the like, and finally urged that all employees
vote in the election "
The substance of Barr's remarks, in printed form, was thereafter before` the
election distributed in the plant to all employees eligible to vote and with a
covering letter from House Manager Anderson mailed to those absent therefrom.
The respondent conducted its meetings on its property and attendance was
necessarily, in effect, compulsory. Barr took pains to point out that in the
opinion of the respondent, the Union had at all times behaved in a manner
to bring discredit upon iitself, that the respondent had recently filed a damage
suit against it,35 and that the employees were now to vote on the question of
whether they desired to be represented by it Having thus discouraged them
against remaining or becoming members of the Union, he followed with a demon-
stration of the futility of their doing so by stating that the respondent wds
unalterably opposed to the closed-shop, the normal goal of unions in contract
negotiation. The respondent thus served' notice upon its employees that it
would not bargain with the Union, should they choose it as their representa-
tive, respecting this vital subject despite the fact that the closed-shop is recog-
nized by the Act and has been stated by the Supreme Court in National Licorice
Co. v. N. L. R B, 309 U. S. 350, to be the frequent subject of negotiation between
employers and employees.
Their timing, the circumstances of their utterance and publication, and their
content, taken in conjunction with the unfair labor practices of the respondent
found herein both before and after the election, render it plain, and the under-
signed finds, that Barr's statements were no mere expressions of the respondent's
opinion, protected by the First Amendment, but were intended to and did in fact
interfere with, restrain, and coerce its employees in the exercise of the rights
guaranteed in Section 7 of the Act 3'
D. The 1944 discharges
Helen Slanko, Ramona Sullivan, and Marvel Gaylord-were working in the
folder billing department in April 1944. Slanko was a sort and sign clerk. Her
duties were to sort incoming work, assign it to the various employees, and collect
the completed work. Sullivan and Gaylord were typists. All were members of
the Union, Gaylord being a steward. There were approximately 20 employees
in the unit, including 6 typists, under the supervision of Edna Kimak37 and
Department Head E. C. Colvin.
94 Other officials of the respondent, including House Manager C. W. Anderson, also ad-
dressed the employees. Their remarks were innocuous and consideration thereof is not
necessary for a determination of the issues posed by the pleadings.
a Employee Carl Swanson testified, and the undersigned finds, that after the meeting
which he attended, six or seven employees expressed apprehension respecting the suit and
its possible effect on them as members of the Union.
80 See N. L. R B. v. Tro)an Powder Co., 135 F. (2d) 337 (C. C. A. 3), cert. den. 320 U. S.
768 and 813, N. L. R. B. Y. M. E. Blatt Co., 143 F. (2d) 268 (C. C. A. 3), cert. den. 323
U. S 774; Matter of Tomlinson of High Point, Inc., 58 N. L R. B. 982 Cf N L. R. B. v.
American Tube Bending Co, 134 F. (2d) 993 (C. C. A. 2), cert. den. 320 U. S. 768.
87 Sullivan and Slanko testified that prior to April 12, 1944, Kimak on several occasions
asked them what had transpired at union meetings. Kimak denied having done so. The
evidence discloses that Kimak had at one time been a member of the Union and that after
Sullivan, Slanko, and Gaylord were discharged, told employee Julia Quinn that they were
in the habit of talking about the Union at work. The undersigned finds that Kimak spoke
to Sullivan and Slanko as they testified.
MONTGOMERY WARD & CO., INCORPORATED 445
On April 12, union employees at the respondent's Chicago plant went out on
strike. On April 13, the Kansas City employees also struck, but returned to work
the next day. The Chicago employees remained on strike. Before the strike,
there had been some rerouting of orders received by the Chicago office to the
Kansas City branch. The Board adduced considerable evidence that after April
14, the volume of Chicago orders rose to about 50 percent of all orders received.
The evidence reveals, however, that there was no increase in Chicago orders.
Nevertheless, members of the Union believed that an increase had occurred
and that they were being used to break the strike at Chicago. At a union meeting
held on April 17, the members agreed not to process Chicago orders.
Thereafter, in assigning the typing work, Slanko sought to give all Chicago
orders to Gaylord and Sullivan who set them aside without processing. At the
end of the day Slanko.withheld them. Without calling her supervisor's attention
to it she accumulated Chicago orders from April 18 to 20, when Kimak discovered
that fact and reported it to Colvin. Colvin interviewed the 3 employees-and told
them that they would have to process the Chicago orders or leave the plant. They
refused and were discharged.
Earlier in the day Union Representative Chevlin telephoned House Manager
Anderson and informed him of the Union's position on processing the Chicago
orders. Anderson denied that there had been an increase thereof and when
Chevhn mentioned the possibility of a strike, said, "go ahead and do anything
you want . . . . We are going to conduct our business and these people are
going to process these orders." Chevlin then telegraphed the respondent reiterat-
ing the Union's position. On the same day, after Slanko, Sullivan, and Gaylord
were discharged, the union employees struck.
On April 23, President Roosevelt telegraphed Chevlin, asking that the strikers
return to work. Chevlin received instructions to the same effect from his
superiors in the Union. At a union meeting held the same day, the strikers
agreed to return to work provided all strikers, including the 3 dischargees, were
rehired At a second meeting, held on the morning of April 24, Chevlin was
authorized to convey this proposal to the respondent. Chevhn met with House
Manager Anderson that afternoon, and informed him that Slanko, Sullivan, and
Gaylord were willing to ieturn to work unconditionally. Anderson refused to
reinstate them. On April 25, the striking employees nevertheless returned to
work
By refusing to process Chicago orders. Slanko, Sullivan, and Gaylord engaged
in lawful assistance of their union protected by Section 7 of the Act. Hence,
the respondent could not lawfully discharge them nor refuse to reinstate them
merely because they had exercised such rights.
By refusing to perform their work, the three dischargees assumed a position
analogous to that of employees who go on strike because of a labor dispute not
caused by unfair labor practices and the respondent had the right to insist that
they do its bidding or leave the plant. But when they unconditionally requested
reinstatement on April 24, the respondent was placed under a duty to rehire
them, provided it had not replaced them.38 The evidence reveals that Kimak
first did Slanko's work on April 20 and that the following day, another employee
in the plant was called in to perform it. The respondent contends that the posi-
tions of Gaylord and Sullivan were abolished and that the typing in the unit
was thereafter performed by those remaining therein. The evidence reveals,
however, that before Sullivan and Gaylord left the plant, the typists in the unit
performed work elsewhere in the event that they were not busy with their usual
38 Matter of Gardner-Denver Company, 58 N. L. It. B. 81 ; Matter of Pinaud, Inc., 51
N. L. It. B. 235, N . L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tasks. In any event, the record clearly shows that the respondent took the
position that they had been discharged and would not be rehired Furthermore,
it was under a duty to employ them in any available positions which they could
perform. The evidence indicates, and the undersigned finds, that such posi-
tions were available in the plant." The undersigned finds therefore, that the
positions of the dischargees had not been replaced by the respondent at the time
they unconditionally applied for reinstatement.
Following the Board's decisions in the Pinaud and Gardner-Denver cases the
undersigned finds that on April 24, 1944, rather than April 20, when they were
discharged, the respondent discriminated against Slanko, Gaylord, and Sullivan
by refusing to reinstate them to their former positions, thereby discouraging
membership in the Union, and thereby, and by the statements of Kinade, inter-
fering with, restraining, and coercing its employees in the. exercise of the rights
guaranteed in Section 7 of the Act 40
IV. THE EFFECT OF 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in and is engaging
in certain unfair labor practices, the undersigned will recommend 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 in regard to the hire
and tenure of employment of Henry Medlin, Roy F. Skinner, Walter L. Smith,
Helen Slanko, Ramona Sullivan, and Marvel Gaylord. It will therefore be
recommended that the respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges. It will be further recommended that
the respondent make them whole for any loss of pay they may have suffered by
reason of the respondent's discrimination against them by payment to each of
them of a sum of money equal to the amount each would have earned as wages
from the date of the discrimination against them to the date of the respondent's
offer of reinstatement, less the net earnings 41 of each during said period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
31 House Manager Anderson testified'that the 10 to 20 percent monthly turnover of em-
plovees included stenographers, typists, billing clerks, and all types of office employees.
"The Board adduced evidence through employee Mae McDonald, denied by supervisor
Helen Dye , that the latter had made certain antiunlon statements to her The undersigned
was not impressed by McDonald's testimony , credits Dye's denials , and makes no finding
of interference based upon such evidence.
41 By "net earnings ..' is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B . 440. Monies received for
work performed upon Federal, State , county, municipal or other work -relief projects shall
be considered as earnings . See Republic Steel Corporation v. N. L. R. B. 311 U. S. 7.
MONTGOMERY WARD & CO., INCORPORATED 447
CONCLUSIONS OF LAW
1. United Mail Order, Warehouse & Retail Employees Union, Local 131, affili-
ated with United Retail, Wholesale and Department Store Employees of America,
C. I. 0., 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 Henry
Medlin, Roy F. Skinner, Walter L. Smith, Helen Slanko, Ramona Sullivan, and
Marvel Gaylord, thereby discouraging membership in the Union, the respondent
has engaged in and is engaging in unfair labor practices , within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, Montgomery Ward & Company,
Incorporated , its officers , agents, successors , and assigns , shall :
1. Cease and desist from:
(a) Discharging, refusing to reinstate, or in any other manner discriminating
in regard to the hire and tenure of employment of its employees, or any term
or condition of their employment ;
(b) In any mariner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist United Mail Order, Warehouse & Retail Employees Union, Local
131, affiliated with United Retail, Wholesale and Department Store Employees
of America, C. I. 0, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the polices of the Act:
(a) Offer Henry Medlin, Roy F. Skinner, Walter L. Smith, Helen Slanko,
Ramona Sullivan, and Marvel Gaylord, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges;
(b) Make whole Henry Medlin, Roy F. Skinner, Walter L. Smith, Helen
Slanko, Ramona Sullivan, and Marvel Gaylord for any loss of pay they may have
suffered by reason of the respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount each would normally
have earned as wages from the date of the discrimination to the date of the
respondent's offer of reinstatement, less the net earnings" of each during
said period;
(c) Post immediately in conspicuous places throughout its Kansas City,
Missouri, plant, including its retail store, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from which it is
recommended that it cease and desist in paragraphs 1 (a) and (b) hereof;
42 See footnote 41, above.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) that the respondent will take the affirmative action set forth in paragraphs
2 (a) and ( b) hereof ; and (3 ) that the respondent ' s employees are free to
become and remain members of United Mail Order, Warehouse & Retail
Employees Union, Local 131, affiliated with United Retail , Wholesale and
Department Store Employees of America , C. I. 0, and that the respondent
will not discriminate against any employee because of membership in or activity
on behalf of that organization ;
(d) Notify the Regional Director for the Seventeenth Region in writing within
ten (10 ) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10 ) days from-the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations , the Na-
tional Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective November 26,
1943, any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
Section 32 of Article II, of said Rules and Regulations , file with the Board,
Rochambeau Building , Washington , D. C., an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding ( including rulings upon all motions or
objections ) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of excep-
tions and/or brief, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the Re-
gional Director . As further provided in said Section 33, should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10 ) days from the date of the order transferring
the case to the Board.
JOSEPH L. HEKTOEN,
Trial Examiner.
Dated January 27, 1945