Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 2, 1965

155 N.L.R.B. 482 (N.L.R.B. 1965)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and Retail Clerks Union
Local No . 445 Chartered by Retail Clerks International Asso-
ciation , AFL-CIO. Cases Nos. 9-CA-39217, 9-CA-3326, and
9-CA-3353. November 2, 1965
DECISION AND ORDER
On February 19,1965, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision
together with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions and brief, and the entire record in the
case, and adopts the Trial Examiner's findings, conclusions, and recom-
mendation, except as modified herein.
Montgomery Ward & Co., Incorporated, is engaged in the retail sale
and distribution of general merchandise In October 1963 it opened a
catalog store in Algonquin Manor Shopping Center, Louisville, Ken-
tucky. On April 27, 1964, Eugene Frazier became the store manager,
succeeding Robert Hartley. The store employs 20 employees.
The Union began organizing in late March 1964, and between
April 19 and 22, 1964, obtained authorization cards from 17 of the 21
employees. On April 20, 1964, when the Union had 15 cards, Nancy
Von Bokern, International representative of the Retail Clerks, sent a
letter to Hartley informing him that Retail Clerks Union Local No.
445 had representation among the employees, and that employees Mil-
dred Robinson, Norma Milby, Margaret Bishop, Elaine McCandless,
Ruby Wright, and Bette Swindall constituted the organizing commit-
tee. Two days later, on April 22, Von Bokern, by telegram, advised
Ward's Chicago office that a majority of the Louisville store employees
had selected Local No. 445 as their collective-bargaining representa-
tive, and requested recognition. The telegram also stated that "in the
event you have any doubt as to our representing the majority of your
155 NLRB No. 34.
MONTGOMERY WARD & CO., INCORPORATED 483
employees, we will be more than willing to submit the signed authoriza-
tion cards of your employees to a neutral third party mutually agreed
upon and allow such third party to compare said cards with your pres-
ent payroll."
On April 24, 1964, the Union filed a representation petition. About
a week later, the Respondent advised the Union that it doubted the
Union's majority status. On May 27 and June 2, 1964, the Respondent
and the Union, respectively, signed a stipulation for a consent election
which was scheduled to be held on June 12, 1964. (The petition was
dismissed on August 3, 1963, after issuance of a complaint in Case No.
9-CA-3217, on July 27,1964. )
In a speech on May 5, Store Manager Frazier made a general state-
ment of policy to the effect that the Company was against the Union.
Specifically, he told the employees that they did not have to join the
Union; that if the Union won, it might lead to their discharge; and
that they might wish to get back the cards that they had signed. On
May 10, Frazier asked Mildred Robinson how she felt about the need
for a union. In his second speech on May 19, Frazier argued that the
Union would gain nothing for the employees which they would not get
if they did not join the Union. He illustrated this by pointing out that
present union contracts at other Montgomery Ward stores do not call
for anything more than what the nonunion store employees are pres-
ently receiving; that one unionized store did not receive benefits
granted to other stores until a later date because of a disagreement
with the union ; and that the Union would cost the employees more than
they would gain.
On June 3, employees Elaine McCandless and Norma Milby were
laid off as a result of a reduction in force in the credit department
resulting from the transfer of credit department operations to Chi-
cago, without being offered jobs in other parts of the store. On June 5,
Frazier made his final speech in which he declared that time and a half
over 40 hours would go into effect after the election; that the announce-
ment of who would get raises would be made after the election; that
the Union was engaging in threats and violence which the Employer
would take steps to stop; and that McCandless and Milby were laid off
due to the transfer of the credit facilities to Chicago.
On June 6, Frazier told Mildred Robinson that a company merit
raise would amount to more than any raise the Union could gain for
her. He also told her that she could get her card back from the Union
if she wanted to.
Later in June, Sales Manager Ralph Byron told Ruby Wright, "I
heard that you were organizing a union here." She said she was not,
but would try to find out. She spoke with him later that day, told him
she had heard this was going on, and asked if he were interested. He
212-809--66-vol. 155-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that he was not, as he represented management, but his boys
could join if they desired. The complaint in Case No. 9-CA-3217,
issued July 27, 1964, is predicated upon the above conduct.
On August 26, 1964, Attorneys Michas and Miller, attorneys for the
Respondent, distributed questionnaires to the employees. The intro-
ductory paragraph explains that the questionnaire is needed for litiga-
tion, and that the answers will have no effect on the employees' posi-
tions. Five questions were asked : The first three dealt with matters
contained in the complaint, and the last two inquired whether the
employees had been interviewed or had given a statement to a repre-
sentative of the Board. Robinson, Wright, Bishop, and O'Bannon
refused to answer the questions. Each was threatened with suspension
if she did not answer, each refused, and each was suspended for 2 days.
Wright, Bishop, and O'Bannon returned to work on August 31 after
filling out the questionnaire.
1. The discharges of Robinson, Wright, Bishop, and O'Bannon
(a) Mildred Robinson: Robinson, one of the members of the orga-
nizing committee and one of the four employees who refused to answer
the questionnaire, assumed her duties as sales and cash clerk in May
1964. She had no prior training then and received little thereafter.
A store audit conducted in June 1964 was critical of all departments,
including the sales and cash functions. Despite this, on July 20, 1964,
Frazier recommended a raise for Robinson commenting : "I think that
Mildred is very dependable-a sincere and hard working [employee]
and with more experience in her present job will be an asset to the com-
pany." About this time Willa Blakely was sent from Chicago to help
Frazier. She stayed 3 weeks and assisted in training Robinson and
other employees. At the end of August, Robinson was suspended for
refusing to answer the questionnaire. During this period another
audit was conducted showing Robinson still deficient. When she re-
turned to work on September 1, 1964, she was informed that she was
being transferred. Frazier told her that the Company needed some-
one "who is for the company, someone that we can trust" to fill the post.
He offered her the job either of countergirl, which he described as inter-
fering with her home life, or, as an alternative, telephone promotion
operator. At this point she told Frazier that she was quitting because
she could not work in an atmosphere where she was distrusted.
An employer is privileged to transfer an employee unless the trans-
fer is intended to discriminate against the employee because of his or
her union activities. In this case the following facts demonstrate that
Robinson was transferred for discriminatory reasons: She was a mem-
ber of the organizing committee; she was suspended for refusing to
MONTGOMERY WARD & CO., INCORPORATED 485
answer the questionnaire; the transfer occurred immediately after her
suspension; she had received a raise only a month before; the reason
given for her transfer, i.e., her inability to do the job, was known at the
time of the raise and was not corrected through an insufficient training
program of 3 weeks' part-time assistance; and the reason given for the
transfer at the time of the transfer was that the Respondent could
not "trust" someone who was not "for the company" in her position.
As her transfer was discriminatory, Robinson is entitled to reinstate-
ment to her former position. Whether she is also entitled to backpay
depends on whether her resignation was a reasonable reaction to the
transfer. We find that it was. The facts of the case are such that Rob-
inson at the time of her discharge could reasonably expect further dis-
criminatory treatment and possibly discharge. It must be remembered
that by the time of the announcement of the transfer, two members of
the organizing committee had already been discharged and Robinson,
herself, had been suspended for engaging in protected concerted activ-
ity. Because of this, we find that Robinson's reactions were reasonable
and that she is entitled to backpay as well as reinstatement.'
(b) Ruby Wright: Wright, also one of the organizing committee
members and one of those who refused to answer the questionnaire, was
a telephone operator. She returned to work from her suspension on
August 31, 1964. Bishop, who normally called the answering service
at 9 :30 a.m. to take orders that had been phoned in, was absent on Sep-
tember S. On Friday, September 4, or Tuesday morning, September 8,
Frazier instructed Wright to substitute for Bishop and to call the
answering service. Because of her inexperience in this job, she was
unable to handle the task and was forced, because she did not know the
procedure, to refer at least one customer's order to Frazier. As noted,
orders were normally called in for at 9 :30 a.m., but, since Wright did
not come to work until 10 a.m., she could not call for them then. She
was unable to write up the orders until 6 p.m 2 Wright told Frazier
about the delay in getting the orders and that not all the orders were
completed because the information was missing. Frazier at this time
did not criticize her for the delay. Wright worked on the job until
September 14, 1964, when Bishop returned. During the remainder of
1 This case is distinguishable from J. W. Mays, Inc., 147 NLRB 942. In that case the
Board ( Member Brown dissenting ) found that the employee at the time of her transfer
had no reason to apprehend that her transfer would lead to further discrimination
2 Much of the testimony as to this incident is devoted to who called whom during the
day. Persons from the answering service testified that they called four times during the
day and were told by the person answering that she was busy and to call back and that
no one called until 5 p.m . Wright testified that she tried to call back at 11.45 a in. The
relevance of all this seems rather slight to us in view of the fact that Wright admitted
that she did not receive the orders until 5 p.m . Accepting as correct the answering
service personnel 's testimony , it shows only that Wright was unable to handle the job as
a substitute which , in view of the fact that she was also handling her regular job and
did not know the procedure as a substitute , does not appear astounding.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this time her performance was not criticized. On Monday, Septem-
ber 14, 1964, Frazier called Wright in and told her that because of her-
delay in getting the orders on September 8, she was being terminated.s
We find that Wright was discriminatorily discharged in violation of
Section 8(a) (3) and (1) because she was on the organizing committee
and one of the four employees who refused to answer the question-
naire; the performance for which she was discharged was not one
involving her regular job but one in which she was substituting with
no prior experience; when Wright explained to Frazier the delay in the
incompleted orders, Frazier did not criticize her at that time; Wright
substituted not only on September 8 but also on September 9, 10, and
11, and there was no criticism of her work on these days, and Frazier
waited a week before discharging her.
(c) Margaret Bishop and Clara O'Bannon: Like Robinson and
Wright, Bishop was a member of the organizing committee and both
Bishop and O'Bannon 4 had refused to answer the questionnaire.
Bishop was a telephone promotion clerk and O'Bannon was a counter-
girl. Bishop's duties were to make outgoing phone calls to persons.
whose names began with the letters "R" through "Z" of the alphabet.
Frazier had told the countergirls that they were not to transfer incom-
ing calls unless a specific telephone promotion girl was asked for by the
customer. According to Frazier, he discharged O'Bannon and Bishop,
after he had Donald Leach, a management trainee, monitor their calls.
According to Leach, he discovered that O'Bannon was giving regular
customers of other promotion operators, as well as other types of
incoming calls, to Bishop. The reason alleged for this elaborate con-
spiracy was that Bishop was not making her quota and O'Bannon was
trying to help her meet it.
We find several difficulties with Frazier's account. Swindall, who
testified for the Respondent, stated that she also did not meet her quota
every day. The Trial Examiner credited the testimony of O'Bannon
and Bishop that while the rule existed, it was seldom observed. O'Ban-
non referred the calls to other telephone promotion girls and Bishop
received calls from other countergirls. Leach testified that O'Bannon
referred calls to other promotion girls and that whenhe worked on the
counter it was possible that he might also have referred calls to the
promotion girls. Therefore, we find that Bishop and O'Bannon, be-
9 The Trial Examiner discredited the testimony of Frazier , generally, in the matter of
the discharge of Wright , on the basis of his testimony in the Instant case and his reported
testimony in the unemployment compensation ease rising out of the discharge Since the
transcript of the unemployment compensation case was not available during the hearing,
no weight can be given to It. In any event , we believe that the Trial Examiner 's credi-
bility findings are fully supported by the transcript In this hearing.
4 Although the Trial Examiner correctly lists the members of the organizing committee
In his Decision , he Inadvertently Included O'Bannon as one of the committee In discussing
her discharge . We hereby correct this error.
MONTGOMERY WARD & CO., INCORPORATED 487
'cause of their activity in the Union, were singled out for discipline
for engaging in a practice that other employees also engaged in
without being disciplined.
Even if we accepted the Respondent's position that Bishop and
O'Bannon were disciplined for violating a store rule, it does not ex-
plain why they were discharged. According to Leach, if an employee
was charged with using the phones in an irregular fashion, the em-
ployee would be warned and put on probation for the first offense and
disciplined or discharged for the second offense. There was no conten-
tion by the Respondent that either had violated this rule or another
rule before. Thus, even on the Respondent's own version of the rules,
Bishop and O'Bannon at most should have been placed on probation.
We therefore find that the reason given for the discharge was a pretext
and that Bishop and O'Bannon were discharged in violation of Section
8(a) (3) and (1) of the Act.
(d) McCandless and Milby: We also agree with the Trial Examiner
that McCandless, an inventory clerk, and Milby, a telephone promotion
operator, were laid off because of their union activities in violation of
Section 8(a) (3) and (1) of the Act. The record shows that both
,employees were prominent union advocates, a fact known to the
Respondent because both were named in the Union's first communica-
tion to the Respondent as being among the six-member organizing com-
mittee. Respondent sought to prove that the discharges were necessi-
tated by the removal of the credit operation to a central location
in Chicago and the elimination of the two credit positions. Immediate
doubt is cast on the bona fides of Respondent's defense by the fact that
neither McCandless nor Milby worked in the credit department. To
counter this, Respondent further contends that at the time of the
removal of the credit operations the store manager was instructed that
in making the selection for possible layoff, the present credit personnel
should be placed in other positions in the store provided that they had
the ability to perform other jobs and seniority to replace other persons
in the store. According to the store manager, McCandless and Milby
were selected for layoff instead of the two credit employees because
they had less store-wide seniority than the credit clerks, and because in
management's judgment they lacked the abilities, skills, and avail-
ability to do other work. There is no evidence in the record that a
strict seniority policy was followed or that these were the junior
employees in the store. Also, both employees were apparently doing
their jobs in a satisfactory manner. In view of all the other unlawful
activity engaged in by the Respondent, particularly the subsequent dis-
charge of three other members of the organizing committee, we find
that Respondent selected McCandless and Milby for layoff as the first
step in a campaign designed through a forceful display of power to
discourage the organization of its employees. Accordingly, on the
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis of the above and the entire record in this case, we find that the
Respondent, as part of its systematic campaign to eliminate the orga-
nizing committee, laid off employees McCandless and Milby in viola-
tion of Section 8 (a) (3) and (1) of the Act.
2. Section 8(a) (1)
(a) The questionnaire and the suspensions: In Johnnie's Poultry
Co.,5 the Board laid down the rule, inter alia, that in order for the ques-
tioning of employees to be held valid, their participation must be on a,
voluntary basis. It is obvious from the facts set out above that the
questioning here did not meet this criterion. In the circumstances of
this case, we find that the questioning occurred in such a coercive con-
text as to interfere with and restrain the employees in their right to
engage in protected concerted activity in violation of Section 8(a) (1)
of the Act. As the Respondent did not have the right to force the
employees to answer the questionnaire, a fortiori, the threat to sus-
pensions of Robinson, Wright, Bishop, and O'Bannon were also in
violation of Section 8(a) (1).6
(b) The speeches on May 5 and 9, and June 5, 1964: We find these
speeches are intimidatory in nature and violative of the Act, especially
as, taken together, all the speeches, and particularly that on June 5,
were designed to convey a threat of loss of benefits and the futility of
choosing a collective-bargaining representative if the Union won as
compared with the benefits employees would receive if the Union lost.'
(c) Other Section 8(a) (1) conduct: The Trial Examiner found the
following also constituted violations of Section 8(a) (1) : The question
to Mildred Robinson by Frazier on May 10 concerning her feelings
toward the Union; the statement by Frazier to Robinson on June 6
that a merit raise would benefit her more than a raise secured by the
Union; and the comment by Sales Manager Ralph Byron to Ruby
Wright in June that he had heard that she was organizing a union.
The May 10 conversation is clearly interrogation prohibited by Sec-
tion 8 (a) (1) of the Act. The June 6 conversation is an attempt to
secure Robinson's rejection of the Union referring to the merit increase
as the type of benefit to be gained from direct negotiation with Re-
spondent and rejection of the Union. Such promises of benefit are
prohibited by the Act. As the record does not establish either that
Byron is a supervisor or that he had authority to speak for the
Respondent, we find no violation based on his conduct, and the com-
plaint in this respect is dismissed.
5 146 NLRB 770 , reversed on other grounds 344 F. 2d 617 (C.A. 8).
6 Because of our disposition of this matter , we find it unnecessary to decide whether
the questions , per se, violated the Act.
7 Chairman McCulloch would find only that the speech of June 5, 1964, was unlawful,
basing that finding on the ground that it contained a promise of benefit.
MONTGOMERY WARD & CO., INCORPORATED 489
3. The refusal to bargain
The Union requested Respondent to bargain on April 22, 1964, at a
time when the Union had authorization cards from a majority of the
employees in an appropriate unit. Two days later the Union filed its
representation petition. About a week later the Respondent advised
the Union that it doubted the Union's majority. A stipulation for a
consent election was signed by the Respondent on May 22 and on June 2
by the Union. The election, scheduled to be held on June 12, was never
held.
To determine whether the Respondent acted in bad faith and thereby
unlawfully refused to bargain, the Board looks to its entire course of
conduct. An employer who engages in acts calculated to dissipate a
union's majority reveals his lack of good faith. This record estab-
lishes that Respondent engaged in illegal conduct in its speeches, inter-
rogations, questioning, discharges, and suspensions, all of which was
designed to undermine the Union's majority status and demonstrates
Respondent's bad faith. We therefore find that Respondent, on
April 22 or on any date thereafter, has refused to bargain in good faith
with the Union as the representative of its employees in violation of
Section 8 (a) (5) and (1) of the Act.8
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner , as modified
herein, and orders that the Respondent, Montgomery Ward & Co.,
Incorporated, its officers , agents, successors, and assigns , shall take the
action set forth in the Trial Examiner 's Recommended Order, as modi-
fied below.
Amend paragraph 1(c) of the Trial Examiner 's Recommended
Order to read : "In any other manner, ..."
8 Joy Silk Mille, Inc. v. N.L.R B., 185 F 2d 732 (C.A.D.C.).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On June 8, 1964,1 Retail Clerks Union Local No. 445, chartered by Retail Clerks
International Association, AFL-CIO, hereinafter sometimes called the Union, filed
a charge against Montgomery Ward & Co., Incorporated, herein sometimes called the
Respondent or the Company; on October 6, the Union filed another charge; and on
November 6, it filed a third charge against the Respondent. Each charge stated as a
basis therefor that the Respondent had engaged in and was engaging in certain unfair
labor practices affecting commerce as set forth and defined in the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. There-
after, the General Counsel of the National Labor Relations Board, on behalf of the
Board, by the Regional Director for Region 9, on July 27 issued a complaint against
the Respondent, Case No. 9-CA-3217; on October 6, issued a second complaint
' Unless otherwise shown, all dates hereinafter mentioned are for the year 1964.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the Respondent, Case No. 9-CA-3326; and on November 6, issued a third
complaint against the Respondent, all pursuant to Section 10(b) of the Act and
Section 102.15 of the Board's Rules and Regulations, Series 8, as amended. Unfair
labor practices in contravention of Section 8(a)(1), (3), and (5) of the Act are
alleged in the first complaint, and of Section 8(a)(1) and (3) in the second and
third complaints. The Respondent filed timely answer to each complaint, effectively
denying that it had engaged in or was engaging in the alleged unfair labor practices.
Upon appropriate order consolidating these cases for hearing and upon notice of
hearing, the consolidated cases came on to be heard before Trial Examiner Arthur E.
Reyman at Louisville, Kentucky, on December 7 through 9. At the hearing each
party was represented by counsel and was afforded full opportunity to be heard, to
call, examine, and cross-examine witnesses, to argue orally upon the record, to submit
proposed findings and conclusions, and to file briefs. A brief filed on behalf of the
Respondent has been carefully considered.
Upon the whole record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Montgomery Ward & Co., Incorporated, is an Illinois corporation,
with stores located throughout the several States of the United States, including one
at Louisville, Kentucky, where it is engaged in the sale and distribution of general
merchandise on a retail level. During the 12 months immediately preceding the
issuance of each of the complaints herein, which are representative periods, the
Respondent's gross volume of sales exceeded $500,000, and it had a direct inflow of
its products, in interstate commerce, of a value in excess of $50,000, which products
were delivered to its said Louisville, Kentucky, store from points outside the State of
Kentucky.
At all times material herein, the Respondent has been an employer as defined in
Section 2(2) of the Act and engaged in commerce and in operations affecting com-
merce as defined in Section 2(6) and (7) of the Act, respectively.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein , Retail Clerks Union Local No. 445, chartered by Retail
Clerks International Association, AFL-CIO, has been a labor organization as defined
in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Specific violations alleged in the complaints
In Case No. 9-CA-3217, Eugene A. Frazier, the Louisville store manager, is
alleged to have engaged in certain conduct on specific dates constituting interference
with, restraint, and coercion of the Respondent's employees at that store, as follows:
On or about May 5, in a speech to assembled employees, urging and directing them to
withdraw their membership from the Union; on or about May 11, interrogating an
employee concerning her membership in, activities on behalf of, and sympathy for,
the Union; on or about May 19 and June 5, in speeches to assembled employees,
threatening them that it would be ineffectual for the employees to select the Union
as their bargaining representative because the Union could gain no benefits under a
collective-bargaining agreement other than benefits presently enjoyed by those
employees of the Respondent who were not represented by a bargaining representa-
tive; on or about May 20, giving to employees the impression of having engaged in
surveillance of their union activities; on or about May 26 creating the impression of
having engaged in the surveillance of employees' union activities; on or about June 5,
in a speech to assembled employees, promising the Respondent's employees the
establishment of overtime pay, in order to induce them to refrain from becoming or
remaining members of the Union or giving any assistance or support to it and/or to
vote against the Union in a forthcoming Board election, on or about that day, in a
speech to assembled employees, promising them a raise in pay in order to induce them
to refrain from becoming or remaining members of the Union, or giving any assistance
or support to it, and/or to vote against the Union in a forthcoming Board election;
on or about that day, in a speech to assembled employees, urging and directing
employees to withdraw their membership in the Union; on or about June 6, promising
an employee a raise in pay in order to induce the employee to refrain from becoming
or remaining a member of the Union, or giving any assistance or support to it, and/or
to vote against the Union in a forthcoming Board election ; on or about that day,
MONTGOMERY WARD & CO., INCORPORATED 491
warning an employee that he was aware of the employee's sympathy for the Union;
and on or about that day urging and directing an employee to withdraw her member-
ship in the Union. The complaint in this case also alleges that on or about June 3,
the Respondent laid off employees Elaine McCandless and Norma Milby, and has
at all times since that date failed and refused to reinstate them to their former posi-
tions of employment, all because of their membership in, sympathy for, and activities
on behalf of, the Union.
In Case No. 9-CA-3217, it is further alleged that on or about April 18, 19, and
20 a majority of the employees in an appropriate bargaining unit designated and
selected the Union as their representative for the purposes of collective bargaining
with the Respondent and at all times since on or about April 20 the Union has been
the representative for the purposes of collective bargaining of the employees in the
said unit; that commencing on or about April 22 and continuing to date the Union
has requested and is requesting the Respondent to bargain collectively with it as the
exclusive bargaining representative of the employees in the said appropriate bargain-
ing unit; but that commencing on or about May 5 and at all times thereafter the
Respondent refused and continues to refuse to bargain collectively with the Union by
refusing to meet with agents of the Union and by engaging in the conduct above
described.2
The complaint in Case No 9-CA-3326 alleges additional acts of interference,
restraint, and coercion on the part of agents of Respondent and a discriminatory dis-
charge of an employee. It is alleged therein that C. J. Michas, as attorney and agent
of the Respondent, on or about August 26 and 27 interrogated employees about their
membership in, sympathy for, and activities on behalf of, the Union, threatened
employees with suspension or termination unless they complied with the Respondent's
demand for information regarding their membership in, sympathy for, and activities
on behalf of, the Union, interrogated employees as to whether they had given state-
ments to and been interviewed by agents for the Board, and on or about September 9
interrogated employees about their membership in, sympathy for, and activities on
behalf of, the Union. This complaint goes on to allege that Store Manager Frazier,
on or about August 26 and 27, threatened employees with suspension or termination
if they failed to comply with the Respondent's demands for information regarding
their membership in, sympathy for, and activities on behalf of, the Union, on or
about August 31 and September 1, requiring that employees who were suspended
and desired to return to work first comply with Respondent's demand for information
about their membership in, sympathy for, and activities on behalf of, the Union; and
it is alleged that on or about August 26 the Respondent suspended employee Ruby J.
Wright, and on or about August 27 suspended Margaret M. Bishop, Clara O'Bannon,
and Mildred D. Robinson because of their refusal to comply with Respondent's
demand for information about their membership in, sympathy for, and activities on
behalf of, the Union. It further is alleged that on or about September 1 the Respond-
ent demoted employee Mildred D. Robinson from her regularly assigned job as a
payroll clerk to employment as a sales clerk, the latter being a less desirable and
more onerous job, thereby constructively discharging her, and on or about Septem-
ber 9 Respondent refused and at all times thereafter has refused and failed to rein-
state her to her former position, all because of her membership in, sympathy for,
and activities on behalf of, the Union; and on or about September 21, the Respondent
discharged Ruby J. Wright and at all times since has iefused to reinstate her to her
former position, all because of her membership in, sympathy for, and activities on
behalf of, the Union.
The complaint in Case No. 9-CA-3353 alleges that on or about October 16 the
Respondent discharged Margaret Bishop and Clara O'Bannon and at all times since
has refused to reinstate them to their former positions, all because of their member-
ship in, sympathy for, and activities on behalf of, the Union.
B. The store organization
The Company opened a catalog order store in the Algonquin Manor Shopping
Center in Louisville in October 1963. It employs some 20 employees, excluding
the manager and his assistant. Robert Hartley was manager until April 27 when
2 The complaint alleges , and the answer admits , that all employees at the Respondent's
Louisville , Kentucky , retail store, but excluding the store manager , assistant store man-
ager, and all guards , professional employees and supervisors as defined in the Act, as
amended, constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act . A petition for certification of representative was
filed by the Union on April 24 ; a stipulation for consent election was thereafter approved
by the Regional Director ; and the petition was dismissed August 3. Case No. 9-RC-587G.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eugene A. Frazier, store manager at Bedford, Indiana, was transferred to succeed
Hartley as manager of the Louisville store. The unfair labor practices charged
herein arise out of activities at the Louisville location.
During the times applicable to this case, four salesgirls were on the order desk;
their duties included waiting on customers who came into the stole and receiving
and writing up incoming telephone orders received at the order desk.
Four telephone promotional girls were employed, whose duties were to communi-
cate with prospective customers whose names were recorded in company records as
either holding a catalog or who had made purchases in the past. Each of these
employees worked from a card index file which represented the alphabetical assign-
ments of prospective customers to the individual. For example, one of the girls
covered customers whose last name began with the letter R through Z. Until Septem-
ber one or two credit clerks were employed and another person was assigned to sales
and cash report records. Other job classifications included those of auto service
manager, outside sales, part-time sales, teletype operator, janitor, auto service, and
outside salesman.
Of significance here is the decision of the Company to transfer its credit handling
to its Chicago catalog house. On March 14 Robert W. Northcross, corporate credit
manager of the Company, addressed a memorandum to R C. Ritchey, the sales
manager of the Chicago catalog house, on the subject of the centralization of catalog
store credit accounts, advising Ritchey of "the corporate policy to centralize all
catalog store accounts in every house territory in a mail order house central credit
unit" and instructing Ritchey to expedite the transfer of the Chicago house territory
catalog store accounts into the Chicago house central credit union "at the earliest
possible date." Vere McClement, personnel manager of the Chicago catalog house,
supervises an eight-State territory from the Chicago catalog store, comprised of some
113 stores including the Louisville store, and holds what he describes as "the person-
nel responsibility in regard to Louisville." Frazier testified that in a conversation
with McClement, held between the middle part and the latter part of May, he was
instructed to transfer credit media to Chicago and "from the standpoint, of course,
that I would have to reduce two people on my payroll and since I was to reduce these
two people on my payroll I should do it by seniority and of course persons with
ability."
McClement, as personnel manager of the Chicago catalog house, supervises person-
nel practice and policy over some 113 stores and their employee complement. In
such matters there is no one in the line of company authority between him and a
store manager. He is furnished with general knowledge of personnel and kindred
matters which occur in all of the stores and particular matters in a single store.
Policies and practices of the Company which govern the running of any store is
standardized because, in the words of McClement, "we are a large company and
must have necessity to operate under rules and regulations and most of necessity have
procedures and practices because we must present the same [corporate image] at all
locations, so it is essential that we have policies and practices, otherwise the results
would be rather chaotic I am afraid." It appears that no person is employed or any
employee discharged without clearance through McClement's office and, in a case
such as occurred at the Louisville store, where there is a union question. Such a
matter is usually handled by the Company's labor relations department and no
employees are terminated without the approval of that department although "they
still look up to me in a case like this for my personal recommendation in such a case
even though the line of communication might be through the Labor Relations Depart-
ment rather than through me." In connection with the facts in this case, the record
discloses that McClement was apprised of the circumstances as presented to him by
Frazier and members of the labor relations department concerning the layoffs and
discharges mentioned below.
According to Frazier, the first night that he reported to Louisville, Hartley, in the
presence of one District Manager Keeney, showed him a letter which Hartley had
received from the Union which, Frazier says, was his first knowledge of any union
activities in connection with the Louisville store. He said that on the morning of
April 28, a company representative, Lambert, described as being from the personnel
department or labor relations department in Baltimore, in the presence of Hartley
and Keeney, informed him that in view of the fact the Union was attempting to organ-
ize the employees of the store, it was their responsibility not to interrogate any of the
employees, or to try to persuade them in any way either to become or not to become
members of the Union, to refrain from any conversation with the employees except
to answer any questions which might be directed to them; and that Lambert gave him
a list of subjects to be checked in case of employee complaints, including lunchroom
MONTGOMERY WARD & CO., INCORPORATED 493
,or restroom facilities, work breaks, and kindred matters, and further instructed him
that "if a situation was brought about before I was to remove anyone from the payroll,
or promoted anybody, that I was to contact the labor relations department in Balti-
more or in Chicago as the case might be."
C. Union organization
At a time during the late part of the month of March, Nancy Von Bokern, an Inter-
national representative of the Retail Clerks International Association, AFL-CIO,
telephoned Elaine McCandless, an employee at the Louisville store, and discussed
with her the possibility of opening an organizing campaign at the store. Thereafter,
Von Bokern received from McCandless a list of employees' names, addresses, and
telephone numbers, after which she arranged with McCandless for a meeting with
the employees. A meeting was held at the home of Bette Swindall, an employee, in
the absence of Von Bokern, who had been called out of the city. A subsequent
meeting was held on April 19 in a conference room in the YWCA building in Louis-
ville when Bette Swmdall, Donald E. Miller, and Louise Underwood among others
signed union authorization cards which they delivered to Von Bokern 3
Elaine McCandless signed an authorization card on Apiil 19, and on April 20
secured the signatures on authorization cards of employees Robert West, Lynn Smith,
Shirleen Trollinger, and Barbara Allgood. Ruby J Wright signed an authorization
card on April 18 and obtained signed cards from Louise J. Marble, it being dated
April 24; Helen Livers and Joseph Greenwald, dated April 20; Carmel Shacklette,
dated April 22; and Louanna Cox dated April 23, all delivered by Wright to Von
Bokern. Mildred D. Robinson and Norma Milby signed cards at the meeting on
April 19 which they gave to Von Bokern. Margaret Bishop and Clara M. O'Bannon
both signed a card on April 19. Thus, on April 20 the Union held 15 authorization
cards and on April 23 or 24 held 17 such cards from store employees. The company
payroll for the week ending April 22 shows 15 names of employees who signed
authorization cards. The names of Lynn Smith and Joseph Greenwald do not appear
on the payroll list, which contains the names of 21 employees, including the name of
Leslie Langford who was hired the week following the week ending April 22.
Under date of April 20, Von Bokern as International representative addressed a
letter to Store Manager Hartley:
Dear Sir: Please be advised that Retail Clerks Union Local No. 445, AFL-
CIO, has interest among the employees of the Montgomery Ward Company, Inc.,
3511 Cane Run Road, Algonquin Manor Shopping Center, Louisville, Kentucky.
The following employees are on the organizing committee
Mildred Robinson Bette Swindall
Norma Milby Elaine McCandless
Margaret Bishop Ruby J. Wright
Discriminatory action against any employee in violation of their rights guaran-
teed by Federal Law shall be immediately reported to the National Labor Rela-
tions Board, Ninth Region.
A copy of this letter has been served this day on the National Labor Relations
Board, Ninth Region.
3 The form of the authorization card signed by each of these employees reads as follows:
RETAIL CLERKS INTERNATIONAL ASSOCIATION
(Affiliated with the AFL-CIO)
Authorization for Representation
Desiring to enjoy the rights and benefits of collective bargaining I, the
undersigned , employee of the_______________________________________
(Firm Name)
Store Address___________________________________ Store No .________
Employed as------------------------------------ Dept.------------
(Job Title)
Home Address----------------------------------- Phone _ ---_______
hereby authorize Retail Clerks International Association , AFL-CIO, or its
chartered Local Union to represent me for the purposes of collective
bargaining , respecting rates of pay , wages, hours of employment , or other
conditions of employment , in accordance with applicable law.
---------------------------- -------------------------------
Date ( Signature of Employee)
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By Western Union telegram sent April 22, Von Bokern as union representative
advised Richard Scheidt, Montgomery Ward & Company, 618 West (Chicago):
This is to advise that the majority of your employees in the Montgomery Ward
store Louisville, Ky. have selected the Retail Clerks Union No. 445 as their
collective bargaining representative. We request recognition as the exclusive
bargaining representative of the aforementioned employees We further request
that you meet with us as soon as possible for the purpose of negotiating a col-
lective bargaining contract covering wages, hours and all other conditions of
employment. In the event you have any doubt as to our representing the
majority of your employees we will be more than willing to submit the signed
authorization cards of your employees to a neutral third party mutually agreed
upon and allow such third party to compare said card with your present payroll.
You can contact us at Retail Clerks Union Local No. 445, Room 400-A, YWCA
building, Louisville, Ky., telephone 584-3627.
On April 24, the Union through International Representative Von Bokern filed a
petition for certification of representative with the Regional Director for Region 9.
(Case No 9-RC-5876). Thereafter, on August 3, that petition was dismissed by the
Acting Regional Director, he having on July 27 issued a complaint and notice of
hearing against the Respondent in Case No 9-CA-3217, one of the cases here under
consideration. The petition filed by the Union in Case No. 9-RC-5876 describes
the bargaining unit as all regular full-time and regular part-time employees of the
above-named Employer at its Louisville store, excluding the store manager, sales
manager, auto service manager, seasonal employees, guards, professional employees,
and all others excluded by the Labor Management Relations Act of 1947, as amended.
None of the employees whose names appear on the payroll for the week ending
April 22 is within the excluded classifications in the claimed appropriate bargaining
unit. As of the date of the filing of the petition, the Union held 17 valid authorization
cards from employees within the unit, or 18 if James Smith, the name appearing on
the April 22 payroll, is the Lynn Smith who signed a card.
A week or 10 days later after April 23, the date on which the Respondent received
the telegram claiming majority representation, the Company advised the union repre-
sentative that it doubted that the Union represented a majority. Subsequently, the
Respondent and the Union entered into a stipulation for a consent election, the
stipulation being signed for the Resopndent on May 27 and for the Union on June 2.
In the consent-election agreement, a Board-conducted election was scheduled to be
held on June 12. The election did not take place. As noted above, the petition was
dismissed on August 3 after the issuance of a complaint against the Respondent on
July 27. No appeal was taken by the Respondent on the dismissal of the petition.
The Respondent contends that because the Union filed its petition for certification
without waiting for a reply to its telegraphed demand for recognition, and because it
stipulated that an election should be held, the Respondent was under no duty either
to acknowledge the status of the Union or to undertake an investigation of its
claimed status. The Respondent concedes that the bargaining unit described is a unit
appropriate for the purposes of collective bargaining.
D. Company reaction to union organization
1. The speech of May 5
The first official expression of company view regarding the Union was imparted to
employees on May 5, when Store Manager Frazier conducted a meeting at the store
in what is called the telephone room. In addressing the store employees, he announced
his intention to hold other regular meetings after this first one, "on all sorts of sub-
jects so that everyone is completely informed about what is going on," and invited
questions from employees. After making a personal introduction, he adverted to
the Union:
Late week, during the smoke and confusion of Mr. Hartley's leaving and the
accompanying visitors, I received in the mail a document from the National
Labor Relations Board-that is the Federal Agency that handles union affairs.
In effect, the document was a claim by the Retail Clerks Union that they want to
get into this store. I don't doubt for a moment that they want to herd all of you
folks into the Union because you will then be just so many more dues contribut-
ing members. But what I do doubt is that all of the facts have been presented to
you. I seriously doubt that the Retail Clerks Union would make anything known
to you that wasn't to their advantage and in this situation the honest facts do
not favor the Union.
MONTGOMERY WARD & CO., INCORPORATED 495
He went on to refer to store problems and confusion which had existed, his intention
-to correct some of the conditions he found and criticized, and appealed to the employ-
ees to work with him to make the store a good one and his intention to make the
store a success and to manage it in the very fairest way he knew how, to be accom-
plished with or without a union. A fair appraisal of the whole content of this speech
shows a policy of opposition to the Union. His remarks, among others included the
following:
In other words, except in right-to-work states which have laws to prevent abuses
by the union-Kentucky has no such law-except in right-to-work states, every
person must join and pay dues if he wants to keep his job. There is no reason
to believe that it would be any different here. It doesn't matter what you think
is morally right, or what your length of service is, you must join or the union
can get you discharged. Part time, full time, it makes no difference. So the
same union that is supposed to offer security does, instead, offer forced member-
ship or job loss. To bad if you can't or won't pay the regular dues tribute.
You may have heard all kinds of promises or statements from this union or
from its agents about what it is supposed to offer, but just think for a moment.
These paid agitators are promising for some one else. They are making state-
ments about and promises for the company. Who has the right to promise for
another without his consent? That is ridicuous. So don't let them tell you they
want to be your friend. They could care less about your friendship. Ask
yourself what their real motive is. Why do they really care about you? The
answer has to be money-your money. This union is no charity, it is a business.
And it makes its income from dues payers who have little or no choice in the
matter.
He referred to an anticipated Board election "so that you will have a chance to vote
and vote in secret against or for your store." He promised to let the employees know
when the election was to be held and that in the meantime they were free to ask him
any questions concerning his remarks-"you will no doubt be exposed to a lot of
propaganda from the union, that is normal and to be expected. I intend to give you
only information so that you can make up your own mind."
2. The speech of May 19
Frazier addressed the employees under similar circumstances on May 19, during
the course of which he informed them that an election had been set for June 12 and
proceeded to instruct the employees concerning what he considered their rights to be
in connection with an election and what the results would mean to the employees
and to their employer. The theme of company opposition to the Union is apparent
from the whole context of this speech, which is substantially a commonly expressed
promanagement exposition of why the Union could not be of much, if any, benefit to
the employees. He said in part:
For example, has the union told you that if the union gets into this store and
you people are dissatisfied, as is so often the case, there is no way that you can
get rid of that union for three long years or for the length of any contract,
whichever is shorter? Yet, if the union is not voted in on June 12 you have the
right to call for another election any time after 1 year? Does this union adver-
tise that the contracts that it has with other Wards locations call for virtually
nothing more than company standard procedure and company policy? For
example, where the Retail Clerks Union now has a contract with any Ward store
the company benefits that the people receive are identical in every detail to the
company benefits that the people received in stores that don't have unions.
Another sad fact is that last June 1 at all of the 1,300 locations that Wards has
throughout the nation a brand new benefits program was effected except at those
stores represented by the Retail Clerks Union. They didn't get the new benefits
until much later than June 1, 1963, because of a disagreement with the union.
Yet, when they did get the benefits they were exactly the same as those at every
other Ward's location. And, even sadder is the fact that there are even now a
number of stores in this company represented by the Retail Clerks Union that
do not yet have these new benefits. And are you told that the Federal Govern-
ment now protects and guarantees through law such things as minimum wages,
overtime practices and other working conditions? This you get for free, too.
The Government doesn 't charge you dues nor does the company charge you
rent for vacations , holidays, funeral pay, jury duty pay, and all the other
benefits. Another fact the union will not dwell on is that under existing con-
tracts with this company all employees must join the union and pay union dues
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or the union can have them discharged. It is that simple. We have about 20'
people who work in our store and assuming the regular dues tribute to be $5,.
the union could expect to get our of our store $100 a month in dues alone.
Naturally, that does not include initiation fees or fines or other assessment ....
This speech ended with the following comment:
We are going to run this store with or without a union and we're going to be
working together for a long time with or without a union. But I want you to
understand that it is my opinion personally and the experience of your company
that the Retail Clerks Union would not benefit you, but on the contrary, it would,
over the long run, cost you more in dollars and cents than you would receive
and I think there would be a loss in our store of the spirit of cooperation and
mutual confidence that we are attempting to build and that we have so far started
to build very beautifully. If there are any questions, please let me know. Mean-
while, definitely plan to vote on June 12.
3. Speech of June 5
At another store meeting held on Friday, June 5, Frazier again addressed the store
employees. This speech bears quoting in full:
Since our last meeting several things have happened that I feel it necessary
to bring them to your attention.
As you may or may not know I have conducted a personnel survey and found'
that we are very competitive with other stores. However Sears does have a time
and half pay for over 40 hours, so the District Manager has authorized me to pay
time and a half over 40 hours. But since some may think that this is done as a
bribe, I am holding this off until after the election.
Your election has been set for June 12-64, so around June 18 this time and a
half for over 40 should go in to effect, this however is subject to change if the
election date is changed.
You may know that in the past few days that several distasteful things have
happened such as persons here in the store being threatened by others here in the
store. Name calling and automobile tampering with, this is the kind of things
that I will not stand for, some of you may or may not think this is funny but
let me assure you this is serious business and the Co. thinks this very serious and
in direct violation of your labor laws, therefor I have taken the following steps
to protect each every one of you:
I. I have notified the Labor Dept. attorneys and they may possibly draw
charges against the union.
IT. I have notified the local police authorities and a surveillance is being
kept.
III. I have also notified other authorities in our security force in Chicago
and action is being taken there so again I say do not fear these people who
are making the threats for those who want or need protection will have it.
IV. I have had or have made appraisals on all personnel and some of
these will be met with raises, however, this will not be accomplished until
after your election so I will not be accused of bribing anyone.
V. Mrs. McCandless and Mrs. Milby have been released due to reduction
in force as you know and our credit dept has been transferred to Chicago
so this reduction was done on a seniority basis.
VI. We have experienced some errors in billing the order, writing orders,
careless in the handling of money and undo loss of time so a training pro-
gram is going to be started so the above things can be corrected.
VII. I have noticed heie recently that scenes and disturbances have
occurred on the front counter where two or more of the employees will get
in to a discussion in front of a customer, this is not good for business-
therefore I will not have any more of this-if any misunderstanding arises
they will be aired away from the customers and preferrably[sic] out of the
store.
(Here the speech was interrupted, according to the testimony, which is to the effect
that while talking, Frazier was called to the telephone, and on his return continued.)
PS. I have lust received a call from Mr. Diehl. He states that his car has been
tampered with and could have caused him considerable trouble. This is the sort
of thing I am talking about that have to cease if any of us here is responsible .4
'The photostat of this speech introduced in evidence is in the handwriting of Frazier.
MONTGOMERY WARD & CO., INCORPORATED 497
4. Layoffs of Elaine McCandless and Norma Milby
As noted above, the Company in March 1964 decided to centralize all credit
operations in Chicago and as a result Store Manager Frazier, in consultation with
Personnel Manager McClement, as told to reduce his staff appropriately, taking into,
consideration the facts of seniority and ability to perform other jobs in trying to place
former credit employees. McCandless and Milby were laid off because, according
to Frazier, their lack of seniority and matters relating to the hours of their availability,
the judgment of Frazier of their particular abilities and skills to perform other work
in the store.
Norma Milby began work on December 5, 1963, as an inventory assistant. She
was laid off from February 28, 1964, until June 3, when she was again laid off. On
her recall in February, she worked as a telephone promotion operator.
She was called back to work in February by the Company without her making prior
application for reemployment
She testified that on or about May 26 or 28, after she had returned from McCory's
store where she had had lunch with Union Representative Von Bokern, she was
approached at her desk by Frazier who in the presence of Elaine McCandless told her
that he had heard that she had been detained, and entertained next door, and that
she had told him that what she did on her own time was her own business. At the
time of her layoff, Milby was working 6 hours a day, 5 days a week, or 30 hours
per week. She testified that the first time she had heard anything about the applica-
tion of seniority in regard to layoffs was at the time Frazier notified her of the reduc-
tion in force on June 3.
Elaine McCandless was first employed on October 10, 1963, and was laid off the
following June 3. McCandless, it will be recalled, is the first employee who acted
with Union Representative Von Bokern in the beginning in organizing the Union in
April. On or about May 20, she testified, after she had had lunch with Von Bokern
at McCorey's 5 and 10 Cent Store, adjacent to the Montgomery Ward store, in a posi-
tion where she and Von Bokern could be observed from the street, she was questioned
by Store Manager Frazier as to how good an organizer she was. At the time of her
layoff she was employed in the inventory department and was replaced as inventory
clerk by Louise Underwood, who was hired at the same time as she.
On cross-examination, McCandless testified as to two incidents, relatively minor,
which arose during the course of her work"-one, when she objected to cutting down
large cartons or boxes which she thought was the job of a porter and two, at another
time when she asked for help to move some heavy box springs and mattresses out of
her way. There is no claim made that these incidents were related to her layoff. She
also said when she was questioned by Frazier about how good an organizer she was
her only reply was, "Concerning my work, I am about a day behind."
Upon the discontinuance of the credit work in the Louisville store, the two women
previously employed in the credit department, Underwood and Allgood, both of
whom had been employed from October 7, 1963, were retained and given other work
in the store.
5. Interrogation of Mildred D. Robinson
Robinson, hired on or about October 28, 1963, performed the duties of payroll
clerk and sales and payroll and cash report clerk at various times. Her duties as
sales and cash reports clerk primarily were to keep the records of the store in the way
of bookkeeping showing the business done for each day, disbursements, bank state-
ments, and the keeping of payroll records. She signed a union organization card on
April 19, and attended those meetings called by Frazier at which he spoke to the
employees. She said that at the meeting of June 5, when Fiazier was interrupted by
a telephone call from Diehl, the credit supervisor, and had asked for questions she
told Frazier that she thought, union or no union, that the people who are working
there would not "stoop to do a thing like that" and that Fiazier had replied "well the
facts are here." She testified that on or about June 10, Frazier asked her "how do
you feel now about the need for a union" and she told him that "as far as the treat-
ment of the employees was concerned things had greatly improved." She testified
to a subsequent conversation between Frazier and her which took place on June 6:
At that time we were talking about the business of the store and Mr. Frazier had
said something to the effect that people, that somebody might think that he had
laid Elaine and Norma off because of their affiliation with the Union, this was
not so he had laid them off because of a reduction in store personnel and I said
well, Mr. Frazier speaking about the Union I sort of think that you got a lemon-
this thing was already going when you came to the store and I said that I think
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that each one of the girls here is really searching her heart for the right decision
to make about the union vote and I said the question now is how do you stop a
ball from rolling and he said I am glad that you asked me that question because
I can't go to the girls indiivdually. Also during this conversation Mr. Frazier
cited to me some union contract and the amount that a union raise would equal
and also the amount that a merit raise would equal, I don't remember the figures,
he asked me what would I rather have, a raise on my merit, or a raise that the
Union would give me.
Regarding the meeting of June 5, Robinson testified that Frazier told her:
He said, "Midge I know how you feel about the Union from the remark you
made yesterday" and I said that I didn't think that "I gave you any indication as
to how I felt about the Union." I again repeated by remarks and he said, "Well
perhaps I misconstrued what you said." He also told me at that time that I could
get my union card back if I wanted to-if the union representative wouldn't give
it back to me there wouldn't make any difference because no one would know
how I voted.
Further interrogation of Robinson by Frazier and C. J. Michas is discussed below.
6. Interrogation of Ruby Wright
Wright was employed from October 10, 1963, until September 14, 1964. During
the time of her employment she worked on the telephone, was a salesclerk, worked on
counter sales and in the inventory room, took credit applications, and helped process
credit application. At the time of her discharge she was engaged in telephone pro-
motion work. She testified that at sometime during the latter part of June, Sales
Manager Byron questioned her concerning union activities at the store. She testified:
"Well," he said, "I heard that you are organizing a union here" and I said to
him, "No, I am not organizing but I will see if I can find out." So later in the
afternoon when we talked again and I told him that I heard this was going on
and was he interested he said no, he wouldn't join because he was management,
but his boys could join if they cared to.
Further interrogation of Wright by Frazier and Michas is discussed below.
On September 14 she was discharged by Frazier on the ground that she had not
properly performed her duties in connection with orders taken by a contract answer-
ing service. These circumstances are discussed below in connection with the dis-
charge of Margaret Bishop and Clara O'Bannon.
7. Interrogation-the questionnaire
On August 26, Store Manager Frazier introduced two attorneys for the Respondent,
Messrs. Michas and Miller, to the employees and at that time Attorney Michas asked
the assembled employees to fill out a questionnaire , copies of which were then dis-
tributed to the employees. The questionnaire was headed by the following statement
over the name of Respondent Assistant General Counsel Brown:
TO ALL EMPLOYEES OF THE LOUISVILLE STORE:
We are engaged in litigation with the National Labor Relations Board and it is
possible that your services may be required as a witness . In order to verify what
the facts are, we request that you answer the following question . Do not consult
with others . We are interested in your answer . If further paper is required to
answer any questions , continue writing on the back of the page. You are advised
that your answers to this questionnaire will neither operate to your benefit nor
to your detriment. We are interested in this information solely in connection
with this litigation and it will have no effect one way or another , on your posi-
tion with Wards.
Five questions were asked , the first three for information concerning what any
management employee may have done concerning matters set out in the complaint
in Case No. 9-CA-3217 , and the last two inquiring whether the employee had been
interviewed by or had given a statement to a representative of the Board. Of the
approximately 20 employees who received the questionnaire for completion, 16 corn-
pleted and returned it and 4 others refused to furnish the information requested either
in full or in part.
5 As above noted, the complaint in Case No . 9-CA-3217 had been issued on July 27.
MONTGOMERY WARD & CO., INCORPORATED 499
8. The discharges of Ruby Wright, Margaret Bishop, and Clara O'Bannon
Ruby Wright attended the meeting in the telephone room when Frazier introduced
Michas and Miller and was handed a questionnaire to complete. On that day she
signed the questionnaire and made a note to the effect that she did not care to answer
the questions. Thereafter, on the same morning, Frazier sent for her and she met
with him and Attorney Miller, who asked her why she did not complete the form, to
which she replied, "I felt it was against my rights to tell the Company how I felt about
the Union, and so forth"; that Miller explained the reasons why she should sign; that
Attorney Michas appeared and told her "That this was a serious thing and that if I
didn't sign it it might warrant a suspension, so I told him that I was sorry, but that I
just couldn't fill it out because I didn't feel it was necessary for me to tell the Company
how I felt about a union." She said the morning conversation with the three men
consumed about an hour; that in the afternoon Frazier summoned her to again talk
to Michas and he repeated that she would be subject to suspension if she did not com-
plete the form, and she repeated that she did not care to fill it out; she was excused
after Miller had again told her she might be subject to suspension; that later Frazier,
in the presence of Michas and Miller at the front counter in the store, informed her
that since she had refused to fill out the form they were giving her a 2-day suspension
and after the 2 days "If I decided to fill out the form or what have you then I could
bring it back"; and that Frazier told her if she did not sign it it could mean her dis-
missal. She was suspended for 2 days, returning to work on Monday, August 31.
She handed the form to Miller who examined it and after he had done so told her to
go back to work.
Wright was one of the girls employed as a telephone operator. She had been told
by Frazier sometime during the week before the Labor Day weekend to call Answer-
ing Louisville, a telephone answering service, to get their orders during Bishop's
expected absence; Bishop was absent on September 8; Wright, under circumstances
described below, did not obtain the orders from the answering service until about
5 p.m. and was unable or failed to write up three or four of these orders, and
two from the following day.
The answering service, Answering Louisville, employs some 35 telephone operators
who work on 3 shifts for 24-hour service, the first shift coming on duty at 8 a.m.,
the second shift at 3 p.m., and the third shift at 10 p.m. until 8 o'clock the following
morning. One of two specially instructed operators are assigned to take calls directed
to the store when it is closed. On receiving a call for Montgomery Ward, the operator
at the answering service receiving the call, recorded the order on a form provided
by the store, and then relayed the order with the information on the form to the store
on the following day. Wright received a call from the answering service on Septem-
ber 8, the first day of Bishop's absence from her job (Bishop being the person who
customarily telephoned the answering service for orders at 9:45 a.m.), and called
back at 11:45 a.m. to receive the orders which she had been too busy to receive when
the answering service first called on that morning. Her testimony to the effect that
she called back the answering service about 11:45 a.m. is in conflict with the testimony
of Mary Bowskill, a supervisor employed by Answering Louisville, and Nell Reed,
its manager. According to Bowskill and Reed they had called the store repeatedly
throughout the day and had received various excuses as to why the orders could not
be taken. Subsequently, Frazier made an investigation and after, according to him,
being satisfied that five of the six orders had not been placed, terminated the employ-
ment of Wright.
Before Frazier undertook his duties as manager, it was customary for the answering
service to send the orders received to the store by taxicab; after April, under Frazier's
instructions, the telephone operator at the store telephoned the answering service at
9:45 each morning to receive the information regarding orders taken by the answer-
ing service while the Louisville store was closed. Bishop was the person at the store
charged with the duty of telephoning the answering service each morning Monday
through Friday to obtain the orders so received. Bowskill testified that on Septem-
ber 8, the morning after the Labor Day weekend, when Bishop was absent, she did
not receive a telephone call from the store, so that about 10:30 that morning she
telephoned the store, informed whoever answered the telephone that she had some
orders, and was told that the person she was talking to was busy and would call her
back. Not receiving a call, she said, she again telephoned at 11:45 a.m. and spoke
to the same person who told her that she did not have an order blank and could not
then take the order, and after this brought the matter to the attention of Manager
Reed sometime in the afternoon. Records of Answering Louisville, identified by
Bowskill, indicate some six orders were held by the answering service from Septem-
212-809-66-vo 1. 155-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 6 to 8, and are identified as those orders which were not received on the day
Wright substituted for Bishop. It should be noted that either Bowskill or Reed usually
received the morning telephone call from the store. The whole substance essentially
of Bowskill's testimony is to the effect that no one from the store having called her
before 10 o'clock on September 8, she called later about 10:30 in the morning when
she was told by whoever answered that that person was busy and would call back.
Reed testified that about 2:30 p.m. on September 8, after talking to Bowskill, she
telephoned the store and was answered by a girl who then asked if she was ready to
take the orders, said she would call Reed back or that she could call her, that she was
too busy to take the order. She said that subsequently on that day she talked to
Assistant Manager Byron. Before talking to Byron, she said she had talked a second
time to a girl at the store.
Sometime prior to the day she was absent, Bishop had advised Frazier that she
expected to have to be away suddenly because of the serious illness of her brother.
This did happen on or prior to Friday, September 4, when Frazier instructed Wright,
who had no prior experience or had had no occasion theretofore to call for these
orders, to take care of that chore. She testified:
The day after Labor Day Mrs. Bishop whose job it was to take the calls from the
answering service was absent. I did not know the procedure. I had been sent
back to the telephone room and the answering service called and said they had
some orders and at that time I was busy, I had several calls waiting and I told
them that I was busy right now and I would call them back as soon as I was
free ... and they called a few minutes after I came in which would have been 10
after 10 and I didn't have a chance to call them back until around 11:30 and
when I called back at 11:30 the supervisor, whoever I was supposed to ask for
was busy at the time so she couldn't take the call ... she couldn't give me the
calls so they said they would call me. I don't know, in answering the telephone
everyone in the store is responsible for answering the telephone when it rings.
Now if they had talked with anyone else other than myself, I don't know, I only
know what part I handled and then I called them back in the afternoon I believe
it was, well, sometime in the afternoon, the orders were taken... I took the
calls later on in the afternoon and after I took the orders there were several of
the orders didn't have enough information on them and I had to call the customer
to find out if they were a charge, or a direct ship, or if they were going to pick
them up at the store, just what the status of the order was and I also had to call
one order, she hadn't completed and she asked me to call the customer to com-
plete it and so on, so I referred it to Mr. Frazier because I didn't know just what
the procedure was on it.
Although Frazier knew of the situation on September 8, he did not discharge or
cause the discharge of Wright until September 14. In the meantime, according to the
testimony of McClement, Frazier had reported to him and given him his version of
what had transpired in the absence of Bishop, and on the basis of the information
furnished to him by Frazier and upon the advice and consent of Attorney Scheidt,
McClement authorized the discharge of Wright.
Ruby Wright was one of those employees whose names were furnished to the Com-
pany on April 20 as being a member of the union organizing committee.
There is some ambiguity apparent in the testimony of Frazier concerning the
instructions he had given to Ruby Wright in connection with relieving Bishop. It
seems clear that Bishop customarily called the answering service at 9:45 a.m. after
reporting to work at 9.30; that at this time Wright customarily came to work at 10
o'clock; further, it is not clear whether Frazier instructed Wright to assume the duty
of calling the answering service on September 8 or whether he instructed her to do so
on September 4 or a day or so before then. Frazier said that Bishop had not informed
him on the day she left that she would not be there the day after Labor Day. Frazier's
final statement on this seems to be that he instructed Wright either on Wednesday or
Thursday during the week preceding Labor Day that she was to take this respon-
sibility upon Bishop's absence. It is still not clear whether he knew at that time that
Bishop would be absent on the day she was and had so informed Wright.6
6 There is in evidence a referee's decision on an appeal filed from a determination dated
October 9, 1964, by the Division of Unemployment Insurance, Commonwealth of Kentucky,
which was received on the degree of credibility to be accorded the testimony of Frazier
in the instant case. On the basis of his testimony in the instant case and cross-
examination herein, and his reported testimony as contained in the referee's decision, I am
impelled to doubt the accuracy of his testimony in connection with the discharge of
Wright.
MONTGOMERY WARD & CO., INCORPORATED 501
Margaret Bishop was one of the employees who attended the meeting on August 26,
received a questionnaire , and refused to sign it . On that day , she testified , Michas
talked to her several times about signing the questionnaire , telling her that if she did
not he would recommend that she be released or at least suspended. On the follow-
ing day Michas again inquired as to whether she had signed the questionnaire and
when she told him she had not, Michas notified Frazier , after which she was told
that she would be suspended for 2 days and if at the end of that period of time she had
not filled out the card she would be discharged . On August 26 she had put a note on
the questionnaire furnished to her that she would prefer not to answer the questions
"at the present time." She returned to work on August 31 and handed the completed
questionnaire to Frazier in a sealed envelope. Frazier opened the envelope and read
the questionnaire in her presence . On the questionnaire , Bishop had written a state-
ment dated August 28 , 1964, as follows:
I am answering these questions under the threat of being fired by Montgomery
Ward if I don't. I was told August 26 , 1964, by Mr. Michas that he had made
a telephone call to Chicago , and he had been advised that if I did not answer the
questions I would be laid off for 2 days, and at the end of that time I still refused
to answer Mr. Michas would recommend I be released.
I was told by Mr. Michas to come back August 27, 1964, to give him my
answer. I returned August 27, 1964, and Mr . Michas asked me if I was going
to answer . I told him I had made a phone call and was not able to reach my
party. He asked if this was for advice, and I told him yes . I was called out front
by Mr. Frazier and told to go home and return August 31 , 1964, to tell him if I
would answer the questions or not. If at that time I still refused Mr. Frazier
and Mr. Michas would recommend I be fired, and the both of them left no doubt
in my mind that this would be done.
I believe that this would be done since they carried out their threat of suspen-
sion of 2 days . Failing to sign a paper or be fired was the beginning of this
sorry mess. Mr. Kenny, district manager, of which the Louisville store is in,
told me personally that no Montgomery Ward employee had to sign anything
or be fired. So going on Mr. Kenny's advice I chose not to answer the question-
naire. I want it to be noted I did not ignore the [Exhibit not readable ]. Another
reason for not answering the questionnaire is in order to be truthful I would
have to know if Mrs. Louise Underwood is now or ever has been considered
supervisory . In April at the union organizing meeting Mrs . Underwood stated
she herself did not know if she was considered a supervisor or not. I am now
answering the questions under the assumption that she is not and never has been.
Another reason I preferred not to answer the questionnaire is Mr. Michas has
never shown me his credentials and how am I to know he is only on his
Mr. Frazier's word. I want it made quite clear until August 26, 1964, at which
time I had a copy of the questionnaire run through the Verifax machine I have
never given a statement or talked to anyone at the Labor Relations Board, which
is one of the questions . But I am sending a copy of this to the Labor Board. It
is my belief since Montgomery Ward had to have this to prepare their case it is
only fair that the Labor Relations Board have a copy so they too would know
my position . Maybe this makes my position clear. 1 am union . If Montgomery
Ward fires me now I will know it is because of my union activities.
At the hearing it was stipulated between counsel for the General Counsel and
counsel for the Respondent:
That on August 27 Mrs. O'Bannon was presented by counsel for the Respondent
a questionnaire like the questionnaires in evidence , that Mrs. O 'Bannon at first
refused to answer any questions on the questionnaire , later answered questions
other than three, four and five, which pertained to statements given and so on
to the Labor Board and then was told by counsel that she must answer those also
and upon her refusal to do so was suspended for a 2-day period without pay,
make that question four and five which she did not answer , refused to answer
questions four and five and on her refusal was suspended for a 2-day period
without pay.
It was further stipulated between counsel that O'Bannon was told at the time had she
not answered all the questions on her return she would be discharged.
Bishop was first hired in October 1963, quit the same month , and was rehired in
the early part of December of that year as a telephone promotional girl, whose duties
were to communicate with catalog customers and solicit sales. Her production
efficiency was measured by the amount of sales solicited, her quota being $108 sales
per day. Such sales included so-called callbacks when a customer calling the store
would ask for her by name . The Respondent asserts that she was consistently below
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this quota and had been warned in a personnel appraisal in July v and Frazier, in a
meeting with her and the three other promotion girls in September, had mentioned the
fact that she as well as the others were not meeting the quota. Thereafter, whether
due to the warning or not, Bishop's production appeared to increase. The Company
contends that this was because Clara O'Bannon, a countergirl, was giving regular
customers of other promotional operators, including Swindall, to Bishop and further,
that O'Bannon was referring other incoming calls to Bishop. Swindall testified that
she overheard a call coming in from one Post which she later learned was for her
but that Post was told that she was out and Post's order then given to Bishop.
Swindall did not discuss this matter with Frazier. It is said by both Frazier and
Donald Leach, who was at the store training to become a store manager, that they
noticed frequent referrals of calls by O'Bannon to Bishop. On October 14, on
Frazier's instructions, Leach monitored incoming calls and, according to his testi-
mony, found that O'Bannon was referring calls to Bishop when the customer did
not ask for Bishop and that a check of Bishop's incoming orders for that day showed
that only two of the six orders matched with the telephone promotion cards from
which she should have been soliciting business.
As one of the four salesgirls employed at the order desk, the duties of Clara
O'Bannon were to wait on customers, to receive and write up incoming telephone
orders, and, if an incoming call was for a particular telephone promotional girl, to
transfer the call to that girl. During the course of her duties it often happened that
when she, or any other girl on the order desk, was very busy and had one or two or
more customers waiting on the telephone, she then would interrupt whomever she
was talking to to ask them to wait a moment and she would go to the other telephone,
take the customer's telephone number, and call her back. Under general procedure
and orders laid down by Frazier, she and the other girls on the desk were not sup-
posed to transfer incoming calls unless a telephone promotional girl was asked for by
name by the customer. I gather not only from the testimony of O'Bannon but from
Frazier, himself, that O'Bannon as well as the other girls on the order desk would,
when they were busy on the telephone, transfer some incoming calls to telephone
promotional girls even though they were not asked for by name. O'Bannon was
acquainted with the telephone promotional files, having worked there herself, and
consequently, she explained, being familiar with the files held by the promotional
girls, she sometimes would give a call to a girl if the person's name happened to be in
that girl's file. It seems clear enough that according to formalized practice and
procedure, there was a distinct difference between the type of telephone calls that
came in and the way they were to be handled as between the promotional telephone
girls and the girls on the sales counter. In ordinary course, however, due to the press
of work, the distinction could not always be drawn so fine as a practical matter, so that
O'Bannon, as well as the other order girls, were accustomed to give some incoming
calls to promotional girls.
O'Bannon testified that after the dismissal of Ruby Wright, he informed her that
he was hiring a new girl who would be assigned to answering the incoming calls and
requested O'Bannon to train the girl on the counter to take incoming calls-"He told
me to look very closely to Mrs. Collier in training her about everything that I do on
the counter and he would have everybody in the store, promotional girls and all,
answering the telephone." In fact, the covering of the order desk appears to have
been extremely flexible, to the point where salesmen or Frazier himself, or Leach,
the manager trainee, were handling calls and waiting on customers at the order desk.
Frazier testified:
I have made several changes . . . as to whether they worked on the incoming calls
or whether they worked on the counter. So at times I had more than four
people so it depends upon a given situation. I have adjusted it to the needs of
the store in the requirements. We open at 10 in the morning and close at 9 in
the evening. And therefore to be consistent with labor requirements that you
do not work a person over 8 hours a day, this is what I have done, and to do
TThe appraisal dated July 20, 1964, by Frazier stated: "Mrs. Bishop with the proper
attitude could become a good employee, however she tends to take other peoples affairs
upon herself therefore does not pay enough sense of responsibility to her own work. She
is constantly dissatisfied with something or feels that someone else is getting a major
portion of attention other than herself. She was offered a job that she would like to do,
however it had to be on her own terms and under her own working conditions. If she
can not adapt herself to the present job and keep away from others affairs I feel that I
will have to terminate her before the next appraisal. I do not recommend a raise at
this time."
MONTGOMERY WARD & CO., INCORPORATED 503
this of course is still consistent with the requirements that you have a person
come on at 10 o'clock in the morning and work until 6 in the afternoon; you have
two other people that come off-you had to be completely covered from 12 noon
and work until 9 at night, this would give you a person who would get off for a
noon break and still give you complete on the counter.
On the basis of the testimony of Leach, on the day he was monitoring incoming
telephone calls, Mrs. O'Bannon made no secret of the fact that she was referring
incoming calls, not only to Bishop, but to other promotional telephone girls. Leach
said that on this day, as on other days, Frazier and he could hear O'Bannon referring
incoming calls to the promotional telephone girls; that as a matter of practice Mont-
gomery Ward has a procedure covering the monitoring of calls which requires that if
irregularities are found , the employee charged with an offense is warned and put on
probation, and the second offense calls for disciplinary action or a dismissal. If I
understand Leach's testimony correctly, without seeing the printed practice and pro-
cedures manual covering such a situation, the Ward system provides for the monitor-
ing of calls either from customers or from someone employed by the Company to
call in so that such a call might be checked by the monitor.
The testimony of Bishop reflects and substantiates the apparent fact that regular
procedure was varied from time to time by instructions from Frazier and others, and
that the records (promotional sheets) kept by the promotional operator do not
accurately reflect for every day what actually transpired in the way of the taking of
the orders on promotional calls initiated by the operator or in connection with calls
that came in and were received by a salesclerk and referred to the promotional
operator.
The Respondent called two store customers to testify. One, Brauckmann testified
that she had telephoned in an order for drapes, had not asked for anyone in particular,
and had placed her order; Post, another customer witness, testified that she had tele-
phoned on September 30, asked for Swindall, was informed that Swindall was not
there, and was referred to Bishop. Bishop wrote both orders. I assume the neutrality
and the disinterest of Post and Brauckmann; at the same time the loose application
as a rule of the Company regarding the duties of both the promotional telephone girls
and the sales order clerks compels me to give much less weight to the testimony of
these neutral witnesses had there been strict enforcement of company procedure in the
store. Also, even though Swindall testified unequivocally that these instructions of the
telephone promotional girls were not to take incoming calls unless the customer spe-
cifically asked for them, nevertheless these instructions were disregarded with the
tacit approval of Frazier, who, under cross-examination, testified that the servicing
of customers over the telephone was more important than strict adherence to the rules.
The $108 per day quota set for the promotional telephone girls was an arbitrary
figure. Employees other than Bishop had difficulty in meeting this arbitrary standard
of daily sales over the telephone. Obviously, as reflected by the testimony of the
point, a large order or two in an amount of $40 or $50 could be taken as well as
much smaller volume dollars orders. No explanation was advanced at the hearing
as to how the $108 standard was established.
9. Constructive discharge of Mildred Robinson
Mildred D. Robinson was suspended on August 26 for her refusal to complete the
questionnaire above referred to and on September 1 left the employment of the
Company upon being removed from her regularly assigned job as sales and cash
clerk. The General Counsel asserts that the transfer was in effect a demotion, in that
being assigned either as a countergirl or as a telephone promotion clerk, as Frazier
instructed, would result in giving her an assignment to less desirable work and a
more onerous job. Since she chose not to accept either of the assignments, the Gen-
eral Counsel asserts that she was constructively discharged by the Respondent. Each
of these jobs carried the same rate of pay.
An employee performance appraisal made by Frazier on July 20 included the
following comment:
I think Midge is very dependable-a sincere and hard working [employee] and
with more experience in her present job will be an asset to the company. I
recommend a raise to a $1.35 per hour.
Frazier testified that in his opinion "she was a very attractive person as far as the
customers were concerned and as far as the Company was concerned. She was an
asset to the Company, but she just was not capable of doing the job she was doing."
The Respondent contends that Robinson had great difficulty with the duties of the
position of sales and cash clerk; that an audit made of the store was critical of the
504 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"sales and cash" function (this audit having been made in June); that the store
manager requested a trainer and one Willa Blakely came from Chicago and helped
with Robinson's training ; that when Robinson was under suspension, he had to do
most of her work and found that the same conditions criticized in the audit report
still existed.8
As noted above, Mrs. Robinson was employed in October 1963 and worked in
several different jobs. She considered her assignment as sales and cash clerk to be a
promotion, even though the rate of pay for that job was the same as in other jobs. As
further noted above, she was questioned by Frazier concerning her interest in the
Union; she also refused to sign the questionnaire when pressed by Michas. After
being laid off on August 28, until the 31st, she returned to work on September 1, filled
out the questionnaire , and returned it to Frazier. After examining the completed
questionnaire Frazier said, according to Robinson: "Midge, I'm going to have to ask
you to take a job on the counter as a sales clerk." Then, according to her:
I asked him, I said, Mr. Frazier, why this statement said my job would be
affected in no way but what I put on this paper and he said, well, your will-call
ledger posting is behind-we have to have someone who is for the Company,
someone that we can trust .... I pointed out to him that it was behind and he
was aware of it being behind long before this came up because of the extra work
I had to do and he said, Midge, you did do some work but I had asked you to
write a letter to Chicago requesting some forms for register to keep the bank
withdrawals and deposit on them and he said you hadn't done this and I' m going
to have to ask you to take a counter and he said well perhaps the hours on the
counter job might interfere with your home life and I said, it would, and he said
well you either take the counter or take the telephone promotion and when he
told me that they had to have someone they could trust back in my position, I
asked him well Mr. Frazier if you can't trust me back there how do you know
you could trust me out here and he said I am not sure that I can trust you out
here.
She then telephoned her husband and after talking to him, told Frazier:
. I would be willing to take any job that he offered me and bear any humiliation
that he offered me and then he came on with this that they had to have someone
back there who is for the Company and I felt that I had given Ward's quite a
bit and this sort of hurt and I called my husband and I told Mr. Frazier I think
under the circumstances I can go home because I didn't feel this was the right
atmosphere to work under.
On cross-examination, Robinson gave answers indicating that she assumed the job of
sales and cash clerk sometime in May and that she was frequently assisted by Former
Store Manager Hartley and later by Store Manager Frazier, each one of whom at
various times made mistakes while they were working on these records.
It seems clear enough in the reocrd that Robinson was put on the job without
previous training, that it was true, as she said, that she learned by the trial and error
method with the assistance of Messrs. Hartley and Frazier before a person was sent
from Chicago to instruct her further as to the nature of her job. The Respondent
emphasizes in the brief filed on its behalf that Robinson stated she quit because "I
could not take the pressure." Her testimony under cross-examination on this point
is as follows:
Q. So you were offered in effect two separate positions, either the sales counter
girl or a telephone promotion clerk, is that correct?
A. With a cut in hours, yes.
Q. Did you understand you were going to get a cut in pay9
A. I didn't understand anything because it wasn't discussed.
$This audit apparently covered all of the operations of the store and many criticisms
were made therein in respect to the whole store operation, noting many lapses attributable
to employees other than the person handling the sales and cash records . Among defi-
ciencies noted were some 17 instances concerning employees' personnel files. Under
"miscellaneous ," a heading in the report , the following note is made:
At the audit date this store is not unionized However, a union election has been
called. This together with union and company charges and counter charges have
hampered the store manager in effectively discharging his managerial duties. The
store manager stated he felt if 60 percent personnel turnover would be necessary to
effectively staff the store. He claims to have been acting under the direction of the
Corporate Labor Relations Department and feels that this has kept him from making
the personnel changes he feels are necessary.
MONTGOMERY WARD & CO., INCORPORATED 505
Q. You didn't pursue the matter, did you?
A. Well he didn't neither.
Q. Isn't it a fact that you left because your feelings were hurt?
A. I left because I couldn't take the pressure.
Q. What pressure is that ma'am?
A. The coming in every day and not knowing what's going on next and not
knowing what you're going to be accused of doing something.
Q. You had been accused of doing something or not doing something prior
to this time?
A. No.
Concluding Findings
In full context the evidence and the proof adduced at the hearing affirmatively show
that the Respondent, prior to the issuance of the complaint in Case No. 9-CA-3217,
by the speeches of Frazier, the interrogation of individual employees, and the induce-
ments offered, all as noted above, and the subsequent suspensions and discharges of
employees, together with the use of the questionnaire, engaged in unfair labor prac-
tices substantially as charged in that complaint and in the complaints issued in the
other two cases. As is most often the situation in cases of this nature, there is no
direct admission of illegal motive, and therefore it is necessary to decide the issues on
the basis of inferences reasonably drawn from the facts before me. N.L.R.B. v.
Edward F. Tepper, d/b/a Shosnberg Farms, 297 F. 2d 280, 284 (C.A. 10); Amalga-
mated Clothing Workers of America, AFL-CIO (T.I.L. Sportswear Corporation)
v. N.L.R.B., 302 F. 2d 186, 190 (C.A.D.C.). Here, the Respondent disclaims any
intent to engage in any activity aimed to encourage or discourage membership of
employees in the Union by means of discrimination against any one or more
employees. Specific evidence of an intent to encourage or discourage is not an
indispensable element of truth of violation Section 8 (a) (3) of the Act which makes it
an unfair labor practice for an employer to encourage or discourage membership by
means of discrimination; and an employer's protestation that he did not intend to
encourage or discourage will be unavailing where the natural consequence of his
action was such encouragement or discouragement. The Radio Officers' Union of the
Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. N.L.R.B.,
347 U.S. 17, 45.
Respondent contends that the speeches of May 5 and 19 and June 5 were nothing
more than statements lawfully made by the Respondent concerning actual fact and
comment thereon. The Respondent's brief asserts "it may be that these facts would
discourage union enthusiasm, but it would be the facts and not any threat expressed
thereby." It is further contended on behalf of the Respondent that "all of this
opinion is protected by [Section] 8(c)." This argument of necessity must rest on a
view that each speech or all three speeches must be examined separate and apart and
totally removed from the whole congeries of the case. The argument is specious,
because when the speeches are considered with the surrounding facts and circum-
stances, statements contained therein must necessarily be found to be intended to
discourage membership in the Union.
Each speech was antiunion in tone, and the one of June 5 reminds the employees
that McCandless and Milby, each of whom the Company had known were on the
union organizing committee, had been "released" after being spoken to by Frazier
concerning their interest in the Union. Conduct, though evidenced only in part
by his speech, may amount, in connection with other circumstances, to coercion
within the meaning of the Act. N.L.R.B. v. Virginia Electric and Power Company,
314 U.S. 469; N.L.R.B. v. Eastern Die Co., 340 F. 2d 607 (C.A. 1), enfg. 142 NLRB
601.
The Board has held that an employer is privileged to interview employees for the
purpose of discovering facts within the limit of the issues raised by a complaint,
where the employer, or its counsel, does so for the purpose of preparing its case
for trial and does not go beyond the necessities of such preparation to pry into
matters of union membership, to discuss the nature or extent of union activity, to
dissuade employees from joining or remaining members of the union, or otherwise
to interfere with the statutory rights of self-organization See Joy Silk Mills, Inc. v.
N.L.R.B, 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A.D C.), cert. denied 341 U.S. 914.
In allowing an employer the privilege of ascertaining the necessary facts from
employees in these given circumstances, the Board and the courts have established
specific safeguards designed to minimize the coercive impact of such employer inter-
rogation. Thus, the employer must communicate to the employee the purpose of
the questioning , assure him that no reprisal will take place, and obtain his participa-
tion on a voluntary basis; the questioning must occur in a context free from
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer hostility to union organization and must not be itself coercive in nature;
and the questions must not exceed the necessities of the legitimate purpose, or
prying into other union matters, eliciting information concerning an employee's
subjective state of mind, or otherwise interfering with the statutory rights of employ-
ees. When an employer transgresses the boundry of these safeguards he loses the
benefits of the privilege. Johnnie's Poultry Co., 146 NLRB 770. Although an
employer may interview employees to verify a union's claim of majority status or
to ready his case for trial, that privilege is not unqualified. It is evident that, con-
sistent with the purposes of the Act, an employer may not exercise this privilege in
arbitrary manner or to inquire into union matters beyond the limits of the issues
raised by the complaint. Here, prior to the interrogation and the distribution of the
questionnaire , Store Manager Frazier had unequivocally expressed the opposition of
the Respondent to the Union, and the Respondent had refused to recognize it.
Accordingly, it must be found that such interrogations and the use made of the
questionnaire constituted an unwarranted intrusion into the protected activities of
employees. May Department Stores, Company, a Corporation, d/b/a Famous-Barr
Company, 70 NLRB 94; N.L.R.B. v. Katz Diug Co., 207 F. 2d 168, 171 (C.A. 8).
The instances of interrogation reported above far exceed the permissible limits
allowed an employer. Blue Flash Express, Inc., 109 NLRB 591. See also Okla. L.
Rev. 207, 210, 213, et. seq.
In The Lord Baltimore Press, 142 NLRB 328-329, the Board said:
We have recently been reexamining the scope of the preelection material and
have set forth the principles which now guide us in cases such as Oak,2 Dal-Tex,s
and Sewell Manufacturing Company .4 We have there rejected a narrow legal-
istic approach and indicated that we shall consider the entire situation of
employer and employee and the entire context of what has been said. We will
not consider words in isolation. We cannot properly assess the effect of cam-
paign material as our dissenting colleague does hereby plucking out a few
statements which, in isolation, might be considered innocuous. To read the
letter herein as a whole, as we must, is to realize that its entire thrust, achieved
by the careful juxtaposition of foreboding possibilities, is to impress upon the
employees the futility of choosing the Petitioner.
2 Oak Manufacturtng Company, 141 NLRB 1323.
Dal-Tex Optical Company, Inc 137 NLRB 761.
Sewell Manufacturing Company, 138 NLRB 66.
The organization of Local 445, the speeches delivered by Frazier to the employees
as a whole group, individual interrogation of employees, and the imposition of the
questionnaire upon them with a requirement that each employee complete the ques-
tionnaire , considered in connection with the Company's refusal to even discuss
recognition of the Union with its representatives constitutes a combination spelling
out interference, intimidation, and coercion within the meaning of Section 8(a)(1)
of the Act. The discharges and suspension of employees demonstrates the animus
of the employer against the Union and its adherents.
It is not without significance that five out of the six employees constituting the
union organizing committee are now out of employment because of incidents caused
and actions taken by the Company based on the employees' union membership and
activity. This fact must be significant. The language of the Board in Camco, Incor-
porated, 140 NLRB 361, 365, is applicable here:
In addition to the mathematical improbabilities involved in the Respondent's
argument that it selected these employees for discharge without reference to
their union activity, the Respondent's explanation as to why these particular
employees were selected as part of the reduction in force is unpersuasive 9
As stated by the court in N.L.R.B. v. Camco, Inc., 340 F. 2d 803 (C.A. 5)
1.
Coercion by interrogation is one of the "subtler" forms of management's inter-
ference with labor's protected rights. As the differences here between the
Examiner and the Board illustrate, the "act of interrogation is not coercive or
intimidating on its face, nor is it easy to demonstrate lust how often, and under
what circumstances, a threat of reprisal will be inferred by the employees."
0 It is, of course, a matter of speculation as to how many of the employees, if any, of
the 16 employees who had the questionnaire imposed upon them, completed the question-
naire because of what might happen to them if they, like 4 others, refused to complete it.
MONTGOMERY WARD & CO., INCORPORATED 507
Bourne v. N.L.R.B., 2 Cir. 1964, 332 F. 2d 47, 48 modifying 144 NLRB No. 75
[805] (Sept. 26, 1963), is helpful in determining the limits of proper interroga-
tion. In that case the court lists five factors to be considered in weighing the
lawfulness of company interrogation of employees:
"(1) The background, i.e. is there a history of employer hostility and
discrimination?
"(2) The nature of the information sought, e.g. did the interrogator appear
to be seeking information on which to base taking action against individual
employees?
"(3) The identity of the questioner, i.e. how high was he in the company
hierarchy?
"(4) Place and method of interrogation, e.g. was employee called from work
to the boss's [sic] office. Was there an atmosphere of `unnatural formality'?
"(5) Truthfulness of the reply."
The discharge of Ruby Wright and the suspensions and discharges of Margaret
Bishop and Clara O'Bannon I find to be based on a pretense of cause, and actually
because of their union membership and activity.
Wright, one of the first employees in the store, had performed her duties satis-
factorily and without complaint from her employer until the incident occurred which
is given as the ground for her discharge.
It will be recalled that Ruby Wright was suspended on August 26 because of her
refusal to fill out the questionnaire. She was discharged on September 21 for the
alleged reasons set forth above. As pointed out, the circumstances in connection
with her assignment to receive calls from the answering service was outside the usual
scope of her duties and, as she made clear, she was not fully apprised of the
importance of telephoning for orders received by the answering service, as had
always theretofore been done by Bishop. Her interrogation, her suspension, and the
facts underlying her discharge show clearly that the case against her was fabricated
and that except for her interest in the Union, she would not have been discharged
for the reason given.
The more elaborate cases built against Bishop and O'Bannon are, upon close exam-
ination , not separable from the basic fact that severe pressure had been exerted upon
each of them to complete the questionnaire, each had been suspended, each was on
the union organizing committee, and it is abundantly clear that the so-called quota
standard and the method in which incoming calls were allocated were possible of
variance, and certainly, prior to these discharges, loosely enforced.
The layoffs of McCandless and Milby have been commented on above. In his
June 5 speech, Frazier's remarks could easily have been construed as a warning
to other employees.
In the absence of any formal or even informal system of seniority in regard to
layoffs (or promotions or transfers), the layoffs of McCandless and Milby, two of
the most prominent organizers and among best known of the union adherents among
the employees, appears to be more than fortuitous. Each was qualified to perform
other duties and it would seem logical, if ability and experience had any weight at
all, that the two persons working in the credit department would have been the ones
to be laid off when the credit department was abolished, rather than the two who
were selected. It is true that both Underwood and Allgood, who were retained, had
signed union authorization cards; however, their names had not been brought to the
attention of the Company in the Union representative's letter of April 20, nor is
there any showing in the record that the Company was aware that they were union
adherents.
The enforced demotion of Mildred Robinson attained for the Employer its desired
effect-she quit rather than be transferred or demoted to another job and subjected
to the fear of further harassment. She was not a trained bookkeeper or accountant
and admittedly had had no experience in keeping cash and credits accounts before
she assumed those duties; and thereafter had very little if any instruction. She was
paid at the rate of $1.25 per hour and no more, and up until the time she refused
to sign the questionnaire there had been no complaint against, but praise for, her
work. She had been chided once by Frazier for neglecting or forgetting to request a
certain form from the Chicago office. The audit report mentioned above is not
persuasive so far as her work is concerned since the report on its face shows deficien-
cies throughout the whole operation of the store.
The chronology of essential facts in this case is significant. On April 20, the
Respondent was officially notified by the Union of its interest in the employees of
the Louisville store; on June 3 McCandless and Milby were terminated; on August 26
Wright was suspended, and on August 27 Bishop, O'Bannon, and Robinson were
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspended; on September 1 Robinson was demoted; on September 21 Wright was
discharged; and on October 16 Bishop and O'Bannon were discharged. Slotted in
between these times are the speeches of May 5 and 19 and June 3, the interrogation
of individuals by Frazier and his assistant manager, on August 26 the questionnaire
was distributed, and subsequent acts of interrogation occurred after that date and
through the discharge of Bishop and O'Bannon on October 16.
In N.L.R.B. v. Camco, Inc., supra, the court in support of the findings of the
Board, said:
Camco deprecates any notion that the questions put to the employees were
coercive. The Company draws attention to these facts. There were only
eleven acts of interrogation, ten by minor supervisors. The other inquiry, by
Theek [a supervisor], was made to an employee who had been his friend for
thirty years. The interrogation consisted only in asking whether the employee
had attended the union meeting or had heard about a union rumor, without
any effort to obtain other information on union activities. Finally, so Camco
contends, such remarks were natural and could be expected in an atmosphere
in which such discussions were occurring "all over the shop."
The questioning cannot be plucked out of context....
We hold therefore that fair inferences and substantial evidence compel affirm-
ance of the Board's finding that Camco's interrogation of its employees violated
Section 8 (a)( I) of the Act.
The context mentioned included these considerations • The company had publicly
announctd an antiunion policy; "the law of probabilities indicates a close connection
between the selection of men for interrogation and the union activities of those
men"; there was a manifestly close correlation between interrogations and the
terminations of employment; and some of the interrogatees gave untruthful answers,
apparently for fear of the consequences of revealing their union activities. Each of
these considerations is present in the instant case.
The Union had a clear majority when it made its demand for recognition and its
offer to the Company to prove its majority by a card check through a neutral agent.
The filing of a representation election petition by the union does not excuse the
company's refusal to recognize the union and bargain upon request. N.L.R.B. V.
Whitelight Products Division, etc., 298 F. 2d 12, 14 (C.A. 2), cert. denied 369 U.S.
887; N.L.R.B. v. Samuel J. Kobritz, d/bla Star Beef Company, 193 F. 2d 8, 14
(C.A. 1); N.L.R.B. v. Sunrise Lumber & Trim Corp., 241 F. 2d 620, 624 (C.A. 2),
cert. denied 355 U.S. 818; N.L.R.B. v. Poultry Enterprises, Inc., 207 F. 2d 522,
524-525 (C.A. 5).
Section 8(a)(5) of the Act requires an employer "to bargain collectively with the
representatives of his employees, subject to provisions of Section 9(a)." Although
Section 9(c) (1) provides machinery by which the question of representative status
may be determined in a Board-conducted election, it has long been settled that an
election is not the only means by which a union's representative status may be
established. See United Mine Workers v. Arkansas Oak Flooring Co., 315 U.S. 62,
71-72, and cases cited therein at footnote 8. In N.L.R.B. v. Triffit of California, Inc.,
211 F. 2d 206, 209-210 (C.A. 9), it was held:
Respondent contends that it had no duty to bargain until the union had
established its majority status by a Board election. There is no absolute right
vested in an employer to demand an election. lob v. Los Angeles Brewing Co.,
9 Cir., 1950, 183 F. 2d 398. If an employer in good faith doubts the union's
majority, he may, without violating the Act, refuse to recognize the union until
its claim is established by a Board election. A doubt professed by an employer
as to the union's majority claim must be genuine. Otherwise the employer has
a duty to bargain and may not insist upon an election. Joy Silk Mills v. N.L.R.B.,
1950, 87 U.S. App. D.C. 360, 185 F. 2d 732.
. Respondent pursued a course of conduct that evidences a clear violation
of the Act's good faith requirements. It consistently refused to bargain with
the union, which at all relevant times represented a majority of respondent's
employees. . There was no necessity for the union to offer proof of the
genuineness of its majority claim absent a challenge by respondent.
And see N.L.R.B. v. Geigy Company, Inc., 211 F. 2d 553, 556 (C.A. 9), cert. denied
348 U.S. 821; Fred Snow, et al d/b/a Snow & Sons v. N.L.R.B., 308 F. 2d 687, 691
(C.A. 9). In the instant case, the Respondent made no effort whatsoever to deter-
mine union majority. It claims only that because it signed an agreement for a
consent election, it had discharged its obligation to bargain. This contention must
fall in the face of the unfair labor practices now found.
MONTGOMERY WARD & CO., INCORPORATED 509
In Local No. 152, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America v. N.L.R.B., 343 F. 2d 307, 310
(C.A.D.C.), the court, through Judge Fahy, said:
In the above circumstances the Board is entitled to enforcement of its order
that the Company cease and desist refusing to bargain with the Union. The
Board was justified in construing the Union's conduct described above as a con-
tinuing demand for recognition in circumstances where a formal demand in
light of the Company's prior peremptory refusal would have been useless. An
employer violates Section 8(a)(5) when, as here, it rejects a Union's bargaining
request, made in the honest but mistaken belief that a majority has been
obtained, without questioning the Union's representative status, and the Union
does obtain a majority shortly after such request. The facts warrant a finding
that the Union's demand for recognition continued to April 25. The matter is
expressed in a convincing manner in the decision of the Trial Examiner as
follows:
"The Company's refusal to bargain, however, was not based on the fact
that the Union held only 26 cards on April 18, but rather on an outright
rejection of the Union's request without regard to the number of cards
held. In the light of this refusal it would have been futile for the Union
formally to renew its request after April 25. Cf. N.L.R.B. v. Burton-Dixie
Corp., 210 F. 2d 199, 200, 201 (C.A. 10), where the union lacked a majority
at the time it requested recognition, but where the request was understood
to be of a continuing character. In Burton-Dixie, as here, the employer's
attitude made it quite clear that a later request would have been futile,
and the court's holding there that the Board properly found a refusal to
bargain suggests the propriety of a similar holding here. See also Scobell
Chemical Co. v. N.L.R.B., 267 F. 2d 922, 925 (C.A. 2), where the court,
assuming that the union lacked a majority at the time of its bargaining
request, found that it had such a majority the next day, and held that in
the light of the strike and picketing which there ensued, the union's request
for bargaining must be deemed a continuing request. The instant case is
like Scobell except that here, instead of striking and picketing, the Union
pursued its bargaining request through a petition for certification, until the
Company's unfair labor practices rendered the election route impassable.
Surely the Union here should not be in a worse position than the union
in Scobell for having followed peaceful procedures in pressing its con-
tinuing demand. I find, therefore, that the Company's refusal to recognize
the Union after April 25 violated Section 8(a)(5) and (1) of the Act."
I therefore find that by the speeches made to its assembled employees, the Respond-
ent by its store manager in effect threatened them that it would be ineffectual for
the employees to select the Union as their bargaining representative because the
Union could gain no benefits under a collective-bargaining agreement other than the
benefits presently enjoyed by the employees, promised the employees overtime pay
in an effort to induce them from supporting the Union and for the same purpose
promised them raises in pay, urged them to withdraw from their membership in the
Union and by promising a raise in pay to Mildred Robinson to induce her from
becoming or remaining a member of the Union, and by talking to employees and
making them aware of their membership in the Union, the Respondent has violated
the provisions of Section 8(a)(1). I find further violations of this section of the
Act in the termination of the employment of employees McCandless, Milby, Wright,
Bishop, and O'Bannon and in the forced discharge of employee Robinson; and in
the suspension from duty of employees Wright, Bishop, O'Bannon, and Robinson.
Violations of Section 8(a)(3) of the Act were committed by the Respondent, I
find, in the discharges of employees McCandless, Milby, Wright, Bishop, and
O'Bannon, and the constructive discharge of employee Robinson. Further, I find
that the Respondent has failed and refused to bargain in good faith with the Union
as the representative of its employees in a union appropriate for the purpose of
collective bargaining in violation of Section 8(a)(5) of the Act. Such refusal
further constitutes a violation of Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
The unfair labor practices in this case call for the conventional cease-and-desist
remedy, with a broad order in the light of the nature of the violations and the gen-
eral hostility to employee rights revealed in the interrogation and other unlawful
actions detailed above. Affirmatively, I shall recommend that the Company bargain
with the Union upon request; that it reinstate Elaine McCandless, Norma Milby,
Ruby Wright, Mildred D. Robinson, Margaret Bishop, and Clara O'Bannon to their
former or substantially equivalent positions, without prejudice to such employment
rights as had accumulated to them at the time of the discrimination against them,
with backpay in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recom-
mend that Elaine McCandless, Norma Milby, Ruby Wright, Mildred D. Robinson,
Margaret Bishop, and Clara O'Bannon be reimbursed for the time lost by them
through the unwarranted suspensions of each of them from their usual duties during
the times mentioned in section III hereof.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All employees at the Respondent's Louisville, Kentucky, retail store, but
excluding the store manager, assistant store manager, and all guards, professional
employees, and supervisors as defined in the Act, as amended, constitute a unit
appropriate for the purpose of collective bargaining within the meaning of Section
9(b) of the Act.
4. The Union, Retail Clerks Union Local No. 445 chartered by Retail Clerks
Intetrnational Association, AFL-CIO, has been at all times since April 20, 1964,
and now is the exclusive representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
5. By failing and refusing at all times since April 22, 1964, to bargain with the
Union as the exclusive bargaining representative of the employees in the aforesaid
appropriate unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. By interrogating and making promises or threats to its employees, including
those employees suspended or discharged as set forth above in section III hereof,
the Respondent engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) of the Act.
7. By discharging Elaine McCandless, Norma Milby, Ruby Wright, Mildred D.
Robinson, Margaret Bishop, and Clara O'Bannon and by suspending employees Ruby
Wright, Margaret Bishop, Clara O'Bannon, and Mildred D. Robinson from employ-
ment because of their interest in and activities on behalf of the Union, the Respond-
ent engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a) (1) and (3) of the Act.
8. The aforesaid unfair labor practices affect commerce 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 the
entire record in this proceeding, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that the Respondent, Montgomery
Ward & Co., Incorporated, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening or unlawfully interrogating employees with respect to their mem-
bership in, or activities on behalf of, Retail Clerks Union Local No. 445 chartered by
Retail Clerks International Association, AFL-CIO, or any other labor organization.
(b) Discriminating against any employee because of membership in, or activities
on behalf of, Retail Clerks Union Local No. 445 chartered by Retail Clerks Inter-
national Association, AFL-CIO, or any other labor organization.
MONTGOMERY WARD & CO., INCORPORATED 511
(c) In any like or related manner, or in any manner violative of Section 7 of
the Act, interfering with, restraining, or coercing employees in the exercise of their
right to self-organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which it is found is necessary to effectuate
the policies of the Act.
(a) Offer to reinstate Elaine McCandless, Norma Milby, Ruby Wright, Mildred D.
Robinson, Margaret Bishop, and Clara O'Bannon to their former or substantially
equivalent positions, and make each of them whole in the manner described in the
portion of this Trial Examiner's Decision entitled "The Remedy" for any loss of
earnings suffered by reason of the discrimination against her.
(b) Upon request, bargain collectively in good faith with Retail Clerks Union
Local No. 445 chartered by Retail Clerks International Association, AFL-CIO, as
the exclusive representative of all employees in the above-described appropriate unit,
and, if an understanding is reached, embody such understanding in a signed
agreement.
(c) Post at its Louisville, Kentucky, store, copies of the attached notice marked
"Appendix." 10 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by a representative of Respondent, be posted
by the Respondent immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous places, including all places
where notice to employees are customarily posted. Reasonable steps shall be taken
to ensure that such notices are not altered, defaced, or covered by any other material.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(e) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.11
It is recommended that unless on or before 20 days from the date of receipt of
this Trial Examiner's Decision, the Respondent notify said Regional Director, in
writing, that it will comply with the foregoing Recommended Order, the National
Labor Relations Board issue an order requiring Respondent to take the action
aforesaid.
10 If this Recommended Order is 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 . If the Board 's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
"If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 9, in writing, within 10 days from the
date of this Order, what steps Respondent 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, 1947, as amended September 14, 1959, we hereby notify our employ-
ees that:
WE WILL, upon request, bargain collectively in good faith with Retail Clerks
Union Local No. 445 chartered by Retail Clerks International Association,
AFL-CIO, as the exclusive representative of all employees in the bargaining
unit described below with respect to rates of pay, hours of employment, and
other conditions of employment, and, if an understanding is reached, we will
embody such understanding in a signed contract. The bargaining unit is:
All employees of Montgomery Ward & Co., Incorporated, at its Louisville,
Kentucky, retail store, but excluding the store manager, assistant store
manager, and all guards, professional employees, and supervisors as defined
in the National Labor Relations Act, as amended.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Elaine McCandless, Norma Milby, Ruby Wright, Margaret
Bishop, Clara O'Bannon, and Mildred D. Robinson their former or substan-
tially equivalent jobs, and pay each of them for wages lost from the date of
their respective discharges until the date of such offer of reemployment. We
shall also compensate Ruby Wright, Margaret Bishop, Clara O'Bannon, and
Mildred D. Robinson for time lost by them through suspension from work on
August 26 and 27, 1964.
WE WILL NOT threaten or interrogate our employees with respect to their
membership in, or activities on behalf of, Retail Clerks Union Local No. 445
chartered by Retail Clerks International Association, AFL-CIO, or any other
labor organization.
WE WILL NOT discriminate against any employee because of membership in
Retail Clerks Union Local No. 445 chartered by Retail Clerks International
Association, AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights guaranteed under Section 7 of the Act,
except to the extent that such rights may be effected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members in good standing of said Retail Clerks Union Local No. 445
chartered by Retail Clerks International Association, AFL-CIO, or any other labor
organization.
MONTGOMERY WARD & CO., INCORPORATED,
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, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200, if they have any questions concerning this notice of compliance with
this provision.
Phillips Manufacturing Company and International Union , Allied
Industrial Workers of America , AFL-CIO. Case No. 13-CA-
6851. November 2,1965
DECISION AND ORDER
On July 23,1965, Trial Examiner Harry H. Kuskin issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.'
1 The Respondent also filed a motion to correct and transpose portions of the record.
The General Counsel filed an opposition thereto, and the Respondent filed a response.
The Board finds the motion without merit. It is accordingly denied.
Our careful review of the entire record satisfies us that the Respondent's allegations
of bias and prejudice on the part of the Trial Examiner are entirely without foundation.
155 NLRB No. 56.