Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1964

145 N.L.R.B. 846 (N.L.R.B. 1964)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Inc. and Local 826, International Union
of Operating Engineers , AFL-CIO
Montgomery Ward & Co., Inc. and Local 826, International Union
of Operating Engineers , AFL-CIO, Petitioner . Cases Nos. 16-
CA-1795 and 16-RC-33P21. January 7, 1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On July 9, 1963, Trial Examiner John F. Funke issued his Inter-
mediate Report in Case No. 16-CA-1795, finding that the Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Intermediate Report. The Trial Examiner
also found that Respondent had not engaged in certain other unfair
labor practices and recommended that the allegations of the complaint
in respect thereto be dismissed . Thereafter, the General Counsel
filed exceptions to the Intermediate Report, together with a support-
ing brief.
Pursuant to a Decision and Direction of Election issued by the
Regional Director for the Sixteenth Region on April 15, 1963, an
election by secret ballot was conducted in Case No. 16-RC-3321 on
May 10, 1963, among the employees in the appropriate unit. At the
conclusion of the balloting, the parties were furnished with a tally
of ballots which showed that of approximately 53 eligible voters, 52
valid votes were cast, of which 16 were for the Petitioner, Local 826,
32 were against the Petitioner, and 4 ballots were challenged. There-
after, the Petitioner filed timely objections to conduct affecting the
results of the election.
Upon receipt of the Petitioner's objections, the Regional Director
conducted an investigation and, on July 3, 1963, issued his report on
objections, in which he concluded that the "decision" concerning the
conduct alleged as objections to the election should be consolidated
with Case No. 16-CA-1795 for the purpose of decision, since the
identical allegations were presently before the Board in that case.
Accordingly, on July 3, 1963, the Regional Director for the Sixteenth
Region issued an order transferring Case No. 16-RC-3321 to the
Board. As the two cases involve the same Employer, Union, and
evidence, they are hereby consolidated for purposes of this decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
145 NLRB No. 88.
MONTGOMERY WARD & CO., INC. 847
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and adopts the findings,' conclusions, and recommendations, of the
Trial Examiner but only to the extent consistent with this Decision
and Order. In addition, the Board has considered the objections to
the election and the entire record and makes the additional findings
set out below.
The complaint alleged, inter alia, that Respondent violated Section
8(a) (1) of the Act by maintaining n rule proscribing union activities
of its employees, while itself making antiunion speeches to assemblies
of employees and denying the Union's request for an opportunity to
address the employees. The Trial Examiner, although finding that
Respondent had promulgated an unlawful no-solicitation rule and that
Respondent had made antiunion speeches to its employees on company
property while refusing the Union an opportunity to address the em-
ployees in reply, nevertheless concluded that the denial of the Union's
request did not violate the Act. We disagree.
As set forth in more detail in the Intermediate Report, on Jan-
uary 16, 1963, Respondent's store manager, Clark, read to assembled
employees Respondent's written but unpublished rule relating to union
activity on company time and premises. As written, the rule pro-
hibited union solicitation and distribution of union literature on com-
pany time, but expressly provided that such activity by employees on
company property was permissible if (a) both the soliciting and
solicited employees were on their own time, and (b) the solicitation was
conducted in an orderly manner and did not interfere with the busi-
ness of the store. The written rule also proscribed all meetings and
'At the hearing , Alexander , Respondent ' s assistant manager, admitted that on two
occasions , while Respondent ' s employees were meeting at the union hall, he drove by the
hall for the purpose of checking parked cars in the hope of gaining information regarding
the number of employees in attendance. Although the Trial Examiner properly concluded
that Respondent violated Section 8 ( a) (1) by this conduct, he inadvertently failed to
bottom this conclusion on the necessary findings of fact . Accordingly , particularly on the
basis of Alexander ' s admission , we find that Respondent's assistant manager engaged in
acts of surveillance while Respondent ' s employees were engaging in activities protected by
Section 7 of the Act.
We affirm the Trial Examiner ' s findings that Alexander ' s and Clark's interrogations of
employees were not violative of the Act , but we do so solely because we are satisfied that
the record supports Respondent 's contention that these interrogations were conducted only
for the purpose of determining whether Respondent 's valid no -solicitation rule , as dis-
tinguished from its invalid oral rule referred to in this decision, had been violated and this
purpose was indicated to the employees questioned
We affirm the conclusion of the Trial Examiner that the discharge of Ham was not
discriminatory , but we do so without reliance upon the results of the lie detector test which
lie took at the Respondent 's suggestion The record shows , and the Trial Examiner
found , that there was other cause for his discharge
We do not adopt the Trial Examiner 's generalization at footnote 16 of the Intermediate
Report concerning the frequent inaccuracy of employee versions of employer speeches
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speeches. The General Counsel concedes that the rule as so written is
lawful on its face but contends, and the Trial Examiner so found, that
the written rule was supplemented by an oral rule, broader in scope,
promulgated by Clark at the same January 16 meeting at which the
rule was read. Clark, as evidenced by testimony credited by the Trial
Examiner, told the employees they were not to discuss the Union from
8:30 in the morning until 5:30 in the afternoon including lunch or
coffee-break time, which sere customarily spent by the employees at
one of two cafes outside the store, and that if they were caught doing so
they "would be fired." Because Respondent's business was that of a
department store, Respondent was privileged to promulgate a rule
prohibiting all union solicitation within the selling areas of the store
during both working and nonworking hours.' The restrictions on
union activity as orally amplified by Clark at the January 16 meeting,
however, far exceeded the privileged scope of no-solicitation rules
permitted in department stores. The announced prohibition extended
not only to nonpublic areas within the store, but also to any place
the employees happened to be between the hours of 8 :30 and 5 :30, in-
cluding the cafes outside the store where employees customarily took
their coffee breaks. The broad rule, as the Trial Examiner found, was
clearly violative of Section 8 (a) (1) of the Act.
The Respondent's utilization of company time and premises to
propagandize against the Union must be viewed against the back-
ground of its unlawful circumscription of its employees' anion activity.
Respondent's representatives made antiunion speeches to assembled
employees on company time and premises on January 16 and 24 and
May 9 .3 The Union, on January 23, requested permission to address
Respondent's employees during working hours, but was refused. The
issue here is whether in these circumstances Respondent's refusal to ac-
cord the Union an opportunity to address the employees violated
the Act. We hold that it did.
The principle that guides our decision in this respect is that stated
by the Board in The May Department Stores Company, d/b/a The
May Company' In that case, the respondent, an owner and operator
of a department store, had a broad no-solicitation rule which prohibited
union solicitation in the store's selling areas during both working and
nonworking time. As did the respondent here, the respondent in
that case made antiunion speeches to assemblies of employees on com-
2 See Marshall Field ci Company , 98 NLRB 88.
3 Although the speeches were not made during the regular working hours of the em-
ployees , the employees were paid for their time spent in attendance . The speeches,
therefore , were made on "company " time. ( See Texas City Chemicals , Inc., 109 NLRB
115, 116. )
' 136 NLRB 797, 799-800 . Although the 'Court of Appeals for the Sixth Circuit denied
enforcement of the Board 's Order in The May Company ( 316 F. 2d 797), we respectfully
disagree with the court and reaffirm the holding of the Board in May.
MONTGOMERY WARD & CO., INC. 849
pany premises and denied the union's request for equal opportunity
and time to address the same employees. The Board recognized that
the respondent, because of the character of its business, was privileged
to adopt a rule prohibiting union solicitation on nonworking time even
though this significantly restricted employees' self-organizational
rights by foreclosing discussion among employees at their place of
work as to the advantages and disadvantages of organization. The
Board found, however, that when the respondent itself utilized not only
company premises but company time to bring its antiunion message to
employees, it "created a glaring imbalance in organizational com-
munication." The Board ruled that although the respondent was not
obliged to forgo utilizing its time and premises for its antiunion cam-
paign, it was under an obligation, in order to allow a proper balance to
be maintained, to accede to the union's request to address the employees
under similar circumstances and the respondent's failure to do so,
the Board concluded, was violative of Section 8 (a) (1).
The facts in the instant case are much stronger for finding a viola-
tion than in the May case. For here Respondent did more than
merely promulgate a broad, privileged, and hence lawful, no-solicita-
tion rule. It went further and announced a rule which not only
prohibited union discussion in selling areas of the store, but which also
unlawfully forbade such activities in nonselling areas within the store
regardless of whether the employees were on free time or not, and
even went so far as to proscribe legitimate union activities off the
store's premises during the store's'business hours. In short, Respond-
ent seriously impaired lawful solicitation activities at the natural
site where employees are accessible for organizational efforts. Quite
clearly, here more than in May, Respondent's broad and unlawful
no-solicitation rule, coupled with its own use of company time and
property to impress its antiunion propaganda on employees, "created
a glaring imbalance in organizational communication" that justified
the Union's request to address employees under the same circum-
stances as had Respondent.
For the foregoing reasons, we find that Respondent, by denying the
Union's request, violated Section 8(a) (1) of the Act. It follows,
and we also find, that such conduct of Respondent also interfered
with the election of May 10, and we shall therefore set that election
aside and direct a new election.
THE REMEDY
Our finding of a violation of Section 8(a) (1) from Respondent's
refusal to allow the Union to address the employees has been predi-
cated on the Respondent's maintenance of an unlawful no-solicitation
rule. However, in view of the nature of Respondent's business anA
734-070-64-vol. 145-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that Respondent may adopt a broad, yet privileged, rule,
we shall direct Respondent, while enforcing either such a privileged
rule or an unlawful one, not to make antiunion speeches to employees
during company time on its premises without honoring a union's re-
quest similarly to address the employees.
ORDER
The Board adopts as its Order 5 the Recommended Order of the
Trial Examiner, with the following modifications :
1. Paragraph 1(a) is renumbered 1(b) and the following is in-
serted as paragraph 1(a) :
During an organizational campaign by a labor organization,
and while maintaining or enforcing either an unlawful no-solic-
itation rule or a broad, privileged no-solicitation rule, making
antiunion speeches to employees during working hours on Re-
spondent's premises without according, upon reasonable request,
the labor organization, against which such speeches are directed,
a similar opportunity to address the employees.
2. The Appendix attached to the Intermediate Report is modified
by inserting therein the following as the first substantive paragraph :
WE WILL NOT, during an organizational campaign by a labor
organization and while maintaining or enforcing either an un-
lawful no-solicitation rule or a broad, privileged no-solicitation
rule, make antiunion speeches to employees during working hours
on our premises without according, upon reasonable request, the
labor organization, against which such speeches are directed, a
similar opportunity to address the employees.
[The Board set aside the election held in Case No. 16-RC-3321 on
May 10, 1963, and remanded the case to the aforementioned Regional
Director for the Sixteenth Region for the purpose of conducting a
new election in the unit heretofore found appropriate by the Regional
Director.]
[Text of Direction of Second Election omitted from publication.]
s The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Montgomery Ward & Co, Inc., its officers, agents , successors, and
assigns, shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed against Montgomery Ward & Co., Inc., herein called Ward or
the Respondent, on February 11, 1963,1 by Local 826, International Union of
1 Unless otherwise noted all dates are 1963.
MONTGOMERY WARD & CO., INC. 851
Operating Engineers, herein called Local 826 or the Union, the General Counsel
issued a complaint dated March 23, 1963.2 This proceeding, with all parties rep-
resented, was heard by Trial Examiner John F. Funke at Big Spring, Texas, on
May 21 and 22, 1963. The complaint alleged that Respondent discharged one em-
ployee because he joined or assisted the Union in violation of Section 8(a)(3)
and (1) of the Act; and interrogated its employees; engaged in surveillance of their
union activities; threatened them with reprisals for engaging in union activity;
promised them benefits for refraining from union activity; enforced an unlawful
rule against union activity; and refused the Union's request to address its employees
on company property, all in violation of Section 8(a)(1) of the Act. The answer
denied specific allegations of the complaint and the commission of unfair labor
practices.
At the conclusion of the hearing the parties were granted leave to file briefs.
Briefs were received from the General Counsel and Respondent on June 24.
Upon the entire record in this case, and my observation of the witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Ward is an Illinois corporation having its principal place of business in Chicago,
Illinois. It operates a chain of retail stores throughout the United States. Respond-
ent admits and I find that it is engaged in commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Local 826 is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The discharge of Alfred Ham
Alfred Ham was employed by Ward from June 16, 1953, until February 7, 1963.
For 8 of these years he was department manager of the plumbing and building
materials department at the Big Spring store 3 and for 2 years he was a salesman at
the Fort Worth store.
Early in January 1963, Ham and some other employees became interested in join-
ing Local 826. On January 10 Ham distributed authorization cards on behalf of
Local 826 to other employees in the store. Among these employees were Helen
Alford and Juanita McMahon, invoice clerks.
C. J. Clark, manager of the Big Spring store, testified that on the morning of
January 22 when he reported for work he noticed that Helen Alford did not look
well. He asked her what was wrong and she told him that she had not slept well
because on the preceding afternoon Ham had passed her desk and told her that it
was too bad that she and other oldtimers would be left out when Ward went union.
Alford understood this to mean that she would lose her job if the Union became
the bargaining agent, although Ham did not use those words. Juanita McMahon
overheard the conversation and verified Alford's report when Clark questioned her.
On the next day, January 23, Charles F. Russ, labor relations assistant, James J.
Sullivan, regional personnel assistant, and A. G. Carmack, district manager for
Ward, visited the store. Clark reported to them that Ham had threatened Alford
and McMahon with discharge if they did not join Local 826.
Russ decided the threat should be investigated and testified that he interrogated
both Alford and McMahon, both of whom told him that Ham had tried to interest
them in joining Local 826; and that when they told him they were not interested,
Ham told them they and others would lose their jobs. Russ had Alford and
McMahon make written summaries of their statements. Russ then asked to see
Ham who was at home (it was his afternoon off) and Russ, Carmack, Sullivan,
and Clark waited until 8 p.m. to see him. Russ asked Ham if he had told Alford
and McMahon they would lose their jobs if they did not join the Union, and Ham
2 Paragraph 8 of the complaint was amended at the hearing to change "January 26" to
"February 7." Paragraph 7(a) was amended by striking the dates "January 19, 26,
and 28" and adding the date "January 11."
3 Neither Respondent nor the General Counsel claims that Ham was a supervisor within
the meaning of Section 2(11) of the Act.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated he had not. Ham admitted that he had tried to persuade them to join the
Union and told Russ that they had at first seemed interested, but later told him they
were not. When Russ asked Ham if these conversations took place on working time.
Ham stated it was on his lunchtime and Russ warned him that Ward did not permit
solicitation on company time.
On the next morning, following a meeting of the employees which was addressed
by Carmack on the subject of labor relations, Russ again called Alford and
McMahon into Clark's office and then called Ham. (Clark, Sullivan, and Carmack
were also present.) In this confrontation, Ham denied having threatened them with
loss of their jobs and Alford and McMahon stuck to their version. Russ testified
that he made it clear to Ham that he understood that Ham could have used language
which might have been subject to misconstruction by Alford and McMahon but that
since they were positive in their statements he suggested that Ham take a lie detector
test. Ham agreed, with the understanding, expressly stated by Russ, that he would
be cleared if the test indicated Ham did not intend a threat but that he would be
fired if he failed it.
On January 28 Ham was flown to Fort Worth where the test was given by
D. E. Wheeler, a polygraph expert. According to Russ, Wheeler gave him a pre-
liminary report by telephone within 24 hours in which he indicated to Russ that
Ham was not telling the truth on material questions. Later, on February 4, Wheeler
completed his report which was received by Russ on either February 5 or 6.
On February 7 Ham was discharged by Clark in the presence of Melvin Clark,
Ward's credit manager. According to Clark, he told Ham he was being discharged
for threatening and insulting employees, making remarks to customers, and breaking
Ward's no-solicitation rule. Clark 's testimony is that Handley,4 employed in the
labor relations department of Ward at Chicago, called on February 6, told him Ham
had failed to pass the lie detector test, and told Clark to proceed with the plans to
release him. If I understand Clark's testimony, he did not terminate Ham solely
because he failed the test although Russ had warned Ham he would be discharged if
he failed. Clark supported the discharge by relating other incidents involving threats
and a violation of the no-solicitation rule and had a memorandum of discharge
prepared after he talked to Handley.
Clark stated that on January 30 Nettie Essary, an employee, came to him and
told him she had been stopped by Ham as she was returning to her work and asked
to join the Union .5 Clark had Alexander, assistant store manager, prepare a written
statement which Essary signed.6
Ramona Molina, a cashier of Mexican extraction, testified that on January 19
Ham and an employee in the furniture department, Bill Wilson, had a conversation
in which Wilson asked Ham if he had signed her for the Union. Molina was in the
area and was intended to hear the conversation. Ham replied that he did not need
to. he had enough. He then added, "After the store goes union, I won't have to-
We won't have to be working with `wetbacks' and `niggers.' " Molina reported this
to Clark who, she said, made a written note of it. Clark testified that he regarded
this as a threat to another employee.
Molina also testified that in late January or early February a customer of the
store, McCuistion, was at her window where she was paying him money when Ham
walked by and remarked to McCuistion, "What are they doing Charley? Beating
you out of money, too?" This remark, Clark testified, he thought completely "out
of line."
Ham testified that he left two cards with the invoice clerks, Alford and McMahon,
on January 10 and that they requested a third card for the other invoice clerk, identi-
fied as Mrs. Houchin. He asked for the cards on January 15 and was told they had
left them at home. On either the 21st or 22d, Ham stated that Alford asked him
how the Union was going and he told her he had 75 percent of the store signed up.
She then asked him what would happen to the employees who had not signed and
he told her they would be left out-that the Union had enough cards.
The following Wednesday, January 23, he received a call at home from Clark
and went to the store where he met Clark, Russ, Sullivan, and Carmack. Accord-
ing to Ham, Russ told him he had serious accusations against him and read him
two statements from Alford and McMahon. Ham explained to Russ that he had
been asked by them about the Union and had only told them they would be left
out of the Union. Then Russ told him his statement was in conflict with those of
Alford and McMahon and asked him if he would take a lie detector test, an offer
6 Handley was in Fort Worth on the 5th and brought Wheeler's report to Chicago.
5 This was corroborated in substance by Essary.
0 Respondent's Exhibit No 7.
MONTGOMERY WARD & CO., INC. 853
Ham accepted. The next day he met in Clark's office with Alford and McMahon in
the presence of Russ, Clark, Sullivan, and Carmack and again there was disagree-
ment as to what Ham had said.
On January 28 Ham flew to Fort Worth and took the lie detector test.
On February 7 Ham was called to Clark's office where Clark told him he was
being terminated for soliciting. He received his pay with 2 weeks advance and
left the store. Later that morning he received a telephone call from Clark who
told him he could collect his commission money at any time and that he had
failed the lie detector test.
With respect to the alleged solicitation of Essary on company time, Ham stated
that he only asked her if she had been approached by anyone "on the Union" and
that she told him she did not know anything about it and did not want to.
As to McCuistion, Ham testified and admitted that he asked McCuistion if they
(Ward) were trying to beat him out of some money. Ham was not examined as
to the testimony of Ramona Molina but he did deny indicating to any employee
that he or she would be out of employment if the Union "got in."
2. Violations of Section 8(a)(1)
a. The no-solicitation rule and the Union's request
The complaint alleges that Respondent promulgated and enforced a rule pro-
hibiting its employees from engaging in union activity in nonworking areas on non-
working time. Respondent did have rules relating to union activity and in a speech
delivered by Store Manager Clark to employees after closing time on January 16,
he read the rule relating to union activity to the employees. The rule,'r which was
not published to the employees, read as follows:
9. Q. Do employees have the right to solicit union members on company
property on company time?
A. No member shall distribute union literature or solicit union membership
on company time or while the employees, to whom the literature is being dis-
tributed or whose membership is being solicited, are on company time. Em-
ployees may solicit union membership (including the distribution of union
literature) on company property so long as; (a) the employees, both those
soliciting and those being solicited, are on their own time; and (b) the solicita-
tion is conducted in a quiet and orderly manner and does not interfere with
the operation of the company's business . Meetings or speeches are not to be
permitted; and solicitation is forbidden which results in disturbing or inter-
fering with the work or function of any employee or department, or which is
detrimental to maintaining the premises in a clean and attractive condition.
The General Counsel contends that this rule, lawful on its face, was supplemented
by an oral rule promulgated by Clark in his speech to the employees on January
16. Three witnesses for the General Counsel, Greta Griffen, Dean Proctor, and
Bill Wilson, testified that Clark told the employees they could not discuss the Union
on company time or on coffee breaks .8 Griffen testified that Clark said, ". . he
didn't want any discussion of it [the Union] over across the street at the cafe over
coffee." Proctor testified that Clark told them that they were not to discuss the
Union from 8:30 in the morning until 5:30 in the afternoon and that if they were
caught discussing the Union on their time or coffee break "we would be fired."
Wilson testified that Clark told them there would be no solicitation either on or off
the job during working hours "due to the fact that this is my time, and this in-
cludes lunch and coffee breaks."
Clark testified that at the conclusion of his speech and after reading to the em-
ployees paragraph 9 of Ward's rules he told them:
Our hours now is from 8 :30 to 5:30 in the store; and while you are work-
ing, I want you to keep your mind on your business and let's get sales. And
I cannot continue to tolerate this in the store activity.
Two employees, Lois Carpenter and Louella McPherson, were called by Respond-
ent to testify to Clark's speech. Lois Carpenter testified Clark told them not to talk
about the Union during the hours they were supposed to be working and not "to
7 The rules, which were in a question and answer form, were apparently designed for the
guidance of Ward's supervisors. (Respondent's Exhibit No. 4.)
8 Ward's had no cafeteria on its premises so employees customarily took the coffee breaks
at one of two adjacent cafes, one of which was known as the Asia Cafe.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss it on the job, on our-while we were in the store or out." 9 Louella Mc-
Pherson testified that Clark told them, referring to discussions regarding the Union,
that any time in the building was Montgomery Ward's time and that any other time
was their own time.
Respondent admits that Local 826, through Frank Parker, its business representa-
tive, asked for time to address its employees and answer statements made by super-
visory personnel to the employees. According to Parker the request was made by
a telephone call to Russ on January 24 and repeated in a letter addressed to A. G.
Carmack sometime in April.10 According to Russ, the request was made on the
afternoon of January 23 when Parker and two other men met him at the store and
demanded recognition as exclusive bargaining agent on behalf of Local 826. When
this demand was refused, Parker requested permission to talk to the employees
which was also refused.
It is not disputed that Clark addressed the employees of Ward's after the close of
business on January 16; that Russ addressed them before the opening of the store
on January 24 and that Carmack addressed them on May 9 before the opening of
the store. In all these instances the employees were paid for their time in attend-
ing the meetings.
At the meeting on January 24 Russ invited questions from the employees after
he had concluded his talk and Ham went to the front of the room and spoke briefly
to the employees in favor of the Union.
b. Interrogation
James B. Alexander, assistant store manager, testified that on or about January
16 he had coffee with an employee named Harold Jones and asked him if he had
heard of any union activity in the store, and Jones told him that he had and that
he had signed a card which he had obtained from another employee named Bill
Wilson. Alexander asked him if the solicitation was being conducted by outsiders
or by employees and told him that Ward's did not permit solicitation on company
time on company premises
Harold Jones was not questioned as to this incident but he did testify that he had
a discussion concerning the Union with Store Manager Clark in Clark's office in
which Clark asked him if he had been approached by the Union and if he knew
how many cards had been signed. On cross-examination Jones testified that Clark
did not question him concerning his union activity and that he had sought informa-
tion from Clark concerning unions and his individual rights. On redirect Jones
testified that Clark did ask him if he had signed a union card.
James Harrell, a porter, testified that Clark asked him if he had been approached
by anyone concerning the Union and that when Clark told him no, he told Harrell
he would be approached and when he was to let him (Clark) know.
William Wilson, employed in the floor covering department, testified that on
January 11, Clark came to him and told him he had bad news for him-that he
had learned that Wilson was an agitator for the Union. Wilson denied that he was
an agitator.
Clark testified that he returned from a trip to Fort Worth on January 16 (he had
learned of union activity at the store before he left) and Alexander told him that
the union activity had been picking up. Clark then decided to hold the after-hours
meeting with his employees. The next morning Alexander had a conversation with
Jones in which Jones told him that Wilson had given him a card at "the desk."
Alexander reported this to Clark who then went to Wilson and asked him if he was
pushing union activity in the store. When Wilson denied it, Clark asked him if
he was lying and Wilson again denied any activity. Clark then went to Jones and
asked him if any had been bothering him about the Union. Jones at first denied it
and then admitted Wilson had given him a card. Clark denied having any con-
versation with Jones in his office and denied asking him if he knew how many
people had signed cards. Clark admitted that, during the height of union activity,
he asked Harrell if anyone had bothered him about the Union. Again the inquiry
was directed toward discovering whether the employees were being solicited dur-
ing working hours.
c. Threats of reprisal and promises of benefits
The record contains no substantial evidence to support the allegations of sub-
paragraphs (c) and (d) of paragraph 7 which allege that on or about February 15
e This sentence was never completed nor was Carpenter questioned further as to what
Clark said The clear implication is that Carpenter understood Clark to mean the em-
ployees could not discuss it during working hours-either inside or outside the store.
1° General Counsel's Exhibit No . 3. The letter is undated.
MONTGOMERY WARD & CO., INC. 855
Respondent threatened its employees with discharge if they became or remained
members of the Union and that on or about January 28 Respondent promised its
employees economic benefits if they refrained from becoming or remaining members
of the Union.
B. Conclusions
1. The discharge of Ham
There is insufficient evidence in the record to support the charge that Ham was
discharged because of his union activity. It is true that he was a leading adherent
and organizer for the Union and that this fact was known to the Respondent.
It is also true that he told two employees, Alford and McMahon, that those who
had not signed cards would be left out. While it is true that these words are
ambiguous and Ham may have meant only that they would be left out of the Union,
the employees could have construed the words, as they did, to mean that they
would have been left out of their jobs." In any event, the conversation was reported
to Clark who in turn reported it to Russ, Sullivan, and Carmack. As reported by
Clark it was a clear threat by Ham that the employees who had not signed with
Local 826 would be discharged if the local became the bargaining agent. The
investigation did not satisfy Russ that Ham had not intended to threaten the em-
ployees with discharge and Ham was offered a lie detector test with the understanding
that if the test showed he lied as to his intent he would be discharged. Ham accepted
the offer. When the written report showed that he had been untruthful, Handley noti-
fied Clark to release him. It is true that Clark gave Ham additional reasons for
discharge which included soliciting employees on company time, threatening and
insulting employees, and making remarks to customers.12 While there is some
dispute as to whether Alford and McMahon were asked to sign cards while they were
on working time, Essary testified that she was on working time when asked to join
the Union, a request she reported to Clark. Far more serious, however, is Ham's re-
mark to Wilson in the presence of Molina that after the store went union they would
not have to work with "wetbacks and niggers." Molina was a forthright witness,
testifying freely and candidly, and I credit her completely. A threat of discrimination
based upon race or color is sufficiently contemptible, sufficiently cowardly to warrant
a preemptory discharge.13
I find Respondent did not violate Section 8(a)(3) of the Act by the discharge of
Ham. As the First Circuit has stated,14 the fact that a respondent may have been
pleased that an employee gave it good cause for discharge does not make the discharge
discriminatory.
2. Violations of Section 8(a)(1)
a. The no-solicitation rule and the Union's request
I find nothing unlawful in the Respondent's written rule against solicitation on com-
pany property on working time (Respondent's Exhibit No. 4) nor do I understand the
General Counsel to make such a contention. The issue presented is whether Clark,
in his speech of January 16, extended the rule beyond permissible limits by prohibiting
solicitation during lunch and coffee-break time.15 Not without some misgivings
I accept the testimony of the witnesses for the General Counsel that he did, perhaps
inadvertently, make such an extension.16 A prohibition of such latitude clearly ex-
ceeds the scope permitted department stores in the Bonwit Teller case.17 I therefore
find Respondent violated Section 8 (a) (1) of the Act by Clark's speech although there
is no evidence that Respondent either enforced or attempted to enforce the un-
lawful restriction imposed by Clark.
u Both employees were elderly women who needed their employment to support them-
selves which may have made them unduly apprehensive.
12 Ham's remark to MeCuistion would not endear him to a management anxious to
establish good will.
18 It does not appear that the General Counsel knew of this threat when he issued com-
plaint. There is no denial by Ham that this threat was made. The General Counsel does
not refer to this testimony in his brief, an omission I do not believe to be inadvertent.
14 N.L.R.B. v. Lowell Sun Publishing Company, 320 F. 2d 835 (C A. 1).
is Since there was no cafeteria at the plant presumably lunches as well as coffee breaks
were taken outside the plant, at least by some of the employees,
11 Particular reliance is placed upon the testimony of Mrs. Dean Proctor, whom I credit
in full. Experience establishes, however, that employees' versions of employers' speeches
are frequently inaccurate, perhaps due to an inattentiveness stemming from boredom.
17 Bonwit Teller, Inc., 96 NLRB 608, affd . 197 F. 2d 640 (C.A. 2).
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We then reach the question of the Union's right to address Ward's employees on
the company premises. At the time the first request was made, and I find the oral
request was made by Parker on January 23, Clark had already delivered his speech,
although not during working hours. Exactly when or how Parker wanted to address
Ward's employees at this time is not clear in the record except that he did request
that he address them during working hours. The request was refused and a sub-
sequent request made in writing received no reply. The record indicates that Car-
mack, to whom the letter was addressed, never received it-the letter was addressed
to the Big Spring store, Carmack's office was at Fort Worth.
The Board's rule with respect to the right of a union to enter upon an employer's
premises for the purposes of solicitation has most recently been set forth in The
May Department Stores Company, d/b/a The May Company, 136 NLRB 797.18
Quoting from its decision in Livingston Shirt Corporation, et al., 107 NLRB 400, it
stated the rule as follows:
We rule therefore that, in the absence of either an unlawful broad no-
solicitation rule (prohibiting union access to company premises on other than
working time) or a privileged no-solicitation rule (broad, but not unlawful be-
cause of the character of the business) an employer does not commit an unfair
labor practice if he makes a preelection speech on company time and premises
and denies the Union's request for an opportunity to reply.
The rule, stated as a per se rule, suffers from oversimplification.19 The Board, if
it follows the Supreme Court (see United Steelworkers case cited below), cannot
hold that in every instance an unlawful no-solicitation rule followed by employer
solicitation on its own premises in breach of the rule confers upon a union the un-
qualified right to use those premises for its own purposes. In the Steelworkers case
the Court stated:
. but the Taft-Hartley Act does not command that labor organizations as a
matter of abstract law, under all circumstances, be protected in the use of every
possible means of reaching the minds of individual workers, nor that they are
entitled to use a medium of communication simply because the employer is using
it. [Citations omitted.] No such mechanical answer will avail for the solution
of this non-.mechanical, complex problem in labor management relations .. .
The Board, in determining whether or not the enforcement of the rule in the
circumstances of an individual case is an unfair labor practice, may find alter-
native channels available for the communications on the right to organize.
Clearly this is mandate to look further than the finding of an unlawful no-solicitation
rule, a breach of that rule by the employer, and a request for and a denial of reciprocal
privileges to the union. Nor does Board's rule in The May Company acknowledge the
distinction between employee and outside organizers recognized in N.L.R.B. v. The
Babcock & Wilcox Company, 351 U.S. 105.
Thus the difficulty with the rule in The May Company and Livingston Shirt cases
is that it does not direct itself to the determination of whether or not the employer's
conduct produces an imbalance in opportunities for organizational communications.
This question does not depend upon a formalized standard but upon the existence
of alternative methods of communications open to the Union. (May Department
Stores, supra; Babcock & Wilcox, supra; The Steelworkers, supra.)
As to accessibility, the imposition of the no-solicitation rule cannot be said to have
imposed more than a negligible handicap upon the Union's organizational efforts. Big
Spring is a small community, the workers were few in number (about 50), the Union
had its own hall in the town, and the employees took their coffee breaks at two
cafes directly across the street from the store 20
11 Enforcement denied 316 F. 2d 797 (C.A. 6).
"The Board's penchant for per se rules is understandable since it facilitates the de-
cisional process. It has, however, received an inhospitable reception in the Supreme Court
See Local 357, International Brotherhood of Chauffeurs, Warehousemen and Helpers of
America (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667; NLRB. v.
News Syndicate Co., Inc., 365 U S. 695; Local 60, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, at al. (Mechanical Handling Systems) v. N.L R B , 365
U.S. 651 ; N.L R.B. v. United Steelworkers of America, CIO (Nutone, Inc ), 357 U.S. 357
20 Compare this situation with Bonwit Teller where approximately 1,000 employees were
involved, living in the entire metropolitan area of New York. To equate a small store in
Big Spring, Texas, with a large department store in a metropolitan area is to make obvious
the vulnerability of the per se rule.
MONTGOMERY WARD & CO., IN C. 857
Two other factors mitigate against application of the rule in the instant case.
While it is true that Parker , the union agent , was denied permission to speak , Ham, the
leading employee organizer , was granted permission at the same time that Carmack
addressed the employees . He was given the floor , went to the front of the room, and,
while he spoke only briefly , he was not cut off or censored . Secondly , Respondent did
not violate its own rule since it spoke to the employees either before or after
working hours.
Taking the facts in their totality and with special reference to the United States
Supreme Court decisions cited , I find no violation of Section 8(a)(1) in the refusal
on the part of Respondent to grant the Union an opportunity to address its employees
on Respondent's premises.
b. Interrogation
I do not find Alexander 's interrogation of Jones unlawful . Alexander was a
minor supervisor who was not responsible for nor a participant in the formation of
Respondent 's labor policy . The interrogation took place on coffee break outside the
plant, there is no evidence of any context of coercion and the two men were friends.
It was a casual inquiry without consequential impact 21
As to the interrogation by Clark of Jones, Wilson , and Harrell , it is my finding
that in each case the interrogation resulted from reports to Clark that there was
solicitation of employees on working time 22 Under such circumstances I believe
the interrogation justified . I do not know how a company could enforce a no-
solicitation rule unless it could make inquiry concerning reported violations and I
do not know how inquiry could be made without interrogating the participants.
c. Surveillance
I find that Alexander's surveillance of the union meeting on January 28 constituted
unlawful interference , restraint, and coercion of the employees in violation of Section
8(a) (1). The fact that Alexander was seeking to determine the number of employees
attending rather than their identity does not lessen the violation . The employees
are entitled to be free from espionage for whatever reason.
IV. THE REMEDY
Having found the Respondent has engaged in and is engaging in certain unfair
labor practices , I shall recommend that it be ordered to cease and desist therefrom
and take certain affirmative action to effectuate the policies of the Act.
Since I do not regard the unfair labor practices as having a substantial impact
upon interstate commerce and since they were committed by minor supervisors in
Respondent's supervisory hierarchy without the knowledge or authorization of Re-
spondent's policymaking officials, I will confine the recommended cease-and -desist
order to the specific violations found.
Upon the basis of the foregoing facts, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local 826 is a labor organization within the meaning of Section 2(5) of the
Act.
3. By promulgating an unlawful no-solicitation rule and by engaging in surveil-
lance of union activity Respondent interfered with , restrained , and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7, thereby violating Sec-
tion 8(a)(1).
4. Respondent has not engaged in other unfair labor practices as set forth in the
complaint , as amended , herein.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case , it is recommended that the Respondent, Mont-
gomery Ward & Co., Inc., its officers, agents , successors , and assigns , shall:
21 Blue Flash Express, Inc., 109 NLRB 591, 597.
22 Alexander reported to Clark that Wilson had given Jones a card at "the desk "
Clark's interrogation of Harrell was directed to solicitation on company time
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from promulgating and keeping in effect a rule which prohibits
employees from engaging in union or other concerted activity off company property
on their own time and from engaging in surveillance of union activity.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Post at its Big Spring , Texas, store , copies of the attached notice marked
"Appendix ." 23 Copies of said notice , to be furnished by the Regional Director for
the Sixteenth Region , shall, after being duly signed by Respondent 's authorized rep-
resentative, be posted by Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter , in conspicuous places, including all
places where notices to employees are customarily posted . Reasonable steps shall
be taken to see that said notices are not altered , defaced, or covered by other
material.
(b) Notify the Regional Director , in writing , within 20 days from the receipt of
this Intermediate Report , what steps Respondent has taken to comply herewith.24
It is also recommended that the complaint herein be dismissed insofar as it alleges
that the Respondent has engaged in any unfair labor practices in violation of Sec-
tion 8 ( a)(1) except as above specifically found and that it be dismissed insofar
as it alleges any unfair labor practices in violation of Section 8(a)(3).
21 In the event that this Recommended Order shall be adopted by the Board, the words
"A Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order."
2+ In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of the receipt of this Order , what steps the Respond-
ent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT tell our employees they cannot engage in union solicitation or
other union activity on their own time.
WE WILL NOT engage in surveillance of union meetings or other union
activities.
MONTGOMERY WARD & CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth, Texas, Telephone
No. Edison 5-4211, Extension 2131, if they have any question concerning this notice
or compliance with its provisions.
Hawaii Teamsters and Allied Workers, Local 996 and Morrison-
Knudsen Company, Inc. Case No. 37-CD-4-2. January 7, 1964
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph 4(D) of Sec-
tion 8(b), the Board is empowered and directed to hear and deter-
145 NLRB No. 89.